Violation of P1-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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 “ basic theses ” , 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 “ commodity bonds ” ( товарные чеки ) which gave their bearers the right to purchase consumer goods , such as refrigerators , washing machines , tape recorders and passenger cars . The Urozhay-CARDINAL ( “ ORG ” ) 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 :

“ 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 . ”

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 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 .

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 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 .

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 :

“ ... 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 . ” ( decision of DATE )

As no such act had yet been passed , the court dismissed Mr PERSON 's action .

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 :

“ 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 ... ”

“ 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 . ”

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 :

“ 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 ... ”

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 :

“ 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 . ”

On DATE the Government approved Regulation no . CARDINAL on State commodity bonds , which provided as follows :

“ 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 –

– 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 ... ”

On DATE LAW ( no . CARDINAL-FZ , ФЗ « О государственных долговых товарных обязательствах 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 :

“ 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 ... ”

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 “ the LAW ” ) . 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 :

“ 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 – in an established form and within the constitutional limits – 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 . ”


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

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 ’s 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 ’s 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 ’s 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 :

“ 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 ’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 .

NORP In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

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 ’s decision or by its erroneous official action ( ORG o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “ LAW ” ) 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’ practice , LAW of DATE does not allow for compensation for non - pecuniary damage unless it is related to deterioration of a person ’s health . In such cases the amount of compensation is governed by Regulation No . CARDINAL .


Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

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 “ FAC ” ) and the council ’s legal expert ( “ PERSON ” ) . 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 “ Former Deputy Mayor [ ORG ] and serving judge [ R.M. ] responsible for series of offences in GPE scam ” . The names of the former deputy mayor and of the city council ’s 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 :

“ 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’ specialist departments to lay down the practical arrangements for implementing the council ’s 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 ’s irresponsible employees the power to decide when a vehicle is illegally parked – 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’ majority of the total number of councillors . Before a contract is signed , it must be referred to all the local council ’s 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 – generally that of securing material advantages – 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 ’s 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 ’s 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’ coordination department ... notified PERSON in writing of the possibility of the contract being terminated on the following grounds : ... ‘ 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 : ‘ 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 ’s capital , that is CARDINAL lei . Your share in the partnership ’s net income will have to be recalculated in relation to the parties’ contributions.’

Facts are facts , and the documents in our possession speak for themselves of the illegal Vinalex scam . ”

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 “ Vinalex ” which was full of banknotes . The CARDINAL characters were depicted as saying to each other :

“ Hey , [ NORP ] [ diminutive form of PERSON first name ] , you ’ve done a good job there ! When I was deputy mayor we made quite a bit , enough to go to GPE ... ”

“ [ NORP ] [ diminutive form of the former deputy mayor ’s first name ] , if you become a lawyer , I ’ll become a judge and we ’ll have enough to travel round the world ... ”

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 ’s 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 ’s 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 ’s 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 – 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 “ ensure compliance with the law ” as regards the parties’ 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 “ 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 ” . 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 ’s 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 ’s 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 – 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’ imprisonment for insult and CARDINAL months’ imprisonment for defamation , and ordered them both to serve the heavier sentence , namely CARDINAL months’ 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 :

“ 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 ‘ series of offences’ the fact of committing several offences ; he understood by ‘ a multiple breach of the criminal law’ 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 ’s 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 : ‘ 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 ’s favour.’ ”

With regard to the documentary evidence on which the injured party intended to rely in support of her allegations , the court observed :

“ 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 ( ‘ The conditions for the performance of these services shall be laid down in the partnership contract to be drawn up’ ) ; 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 . ”

With regard more particularly to the article and cartoon in issue , the court held :

“ ... 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 ‘ 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)’ ...

The ORG considers that publication of the article in the newspaper can not have been justified by a ‘ legitimate interest’ in that it was not based on actual facts and the provision of accurate information to the public . It concludes that the defendants ... ‘ ORG the content of LAW : ‘ Freedom of expression shall not be prejudicial to a person ’s dignity , honour and private life or to the right to one ’s own GPE , and of LAW : ‘ Public and private media shall be required to provide the public with accurate information.’

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 . ”

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’ 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’ 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 ’s application as being manifestly ill - founded , for the following reasons :

“ 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 ‘ 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 ’s 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 ... ”

With regard to the amount which the applicants had been ordered to pay in damages , ORG held :

“ ... 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 . ”

ORG held , lastly , in relation to the alleged unlawfulness of the temporary prohibition on the applicants’ working as journalists :

“ ... 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 . ”

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 ’s employment record ( cartea de muncă ) , 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 “ Events ” 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 ’s 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 :

“ 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 . ”

“ 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 . ”

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 :

“ 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 ’s guardian or statutory representative . ”

“ 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 ... ”

The relevant provision is worded as follows :

“ 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 .

“ 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 . ”

“ A person sentenced to a term of imprisonment of DATE shall be legally rehabilitated if he does not commit any further offences for DATE . ”

“ 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 . ”

“ 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 ... ”

“ Before applying to have a decision quashed , the Procurator - General may order a stay of its execution . ”


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

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’ 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’ 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 ’s 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’ 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’ 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 ’s decision of CARDINAL DATE . The proceedings are still pending .

On DATE the applicants applied for judicial review of the prefect ’s 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 ’s application ( judgment no . DATE ) on the ground that “ preparatory acts ” 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 ’s 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 § 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 ’s request for a joint hearing with his applications of DATE and DATE to be satisfied .


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

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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 ’s 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 ’s house , searched it and intimidated the applicant and members of her family .

On DATE the prosecutor ’s office of ORG ( “ the district prosecutor ’s office ” ) opened a criminal case against ORG under LAW § CARDINAL ( terrorism ) , CARDINAL § CARDINAL ( participation in an illegal armed group ) , CARDINAL § CARDINAL ( aggravated possession of weapons ) and CARDINAL ( assault on a law - enforcement officer ) of LAW ( “ CC ” ) . 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 ’s office .

On DATE Mr GPE , an officer of the police special - purpose squad ( “ OMON ” ) , came to the applicant ’s house and asked PERSON to follow him to an unidentified destination “ to explain that [ PERSON ] was not implicated in any terrorist activities ” . The CARDINAL men got into GPE ’s vehicle , a VAZ-CARDINAL , and drove off . The applicant memorised only a sequence of CARDINAL figures from the car number plate , namely “ CARDINAL ” .

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 “ a shepherd ” and another as “ a villager of ORG ” . 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 ( “ APCs ” ) 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 ’s abduction , the vehicle in which he had been placed by his abductors , was stationed at ORG of the ORG ( “ the ROVD ” ) .

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 ’s 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 ’s 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 ’s office of ORG , the military prosecutor ’s office of ORG ( UGA ) , the Prosecutor of GPE and the district prosecutor ’s 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 ’s vehicle with plate no . “ CARDINAL ” 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 ’s office of GPE ( “ the NORP prosecutor ’s office ) forwarded the applicant ’s complaint about the abduction of PERSON for examination to the district prosecutor ’s office .

On DATE ORG forwarded the applicant ’s complaint about “ the abduction of ORG by officers of the special - purpose ORG of the Interior ” to ORG .

On DATE the applicant re - submitted her complaint of CARDINAL October CARDINAL to the same ORG authorities .

On DATE the NORP prosecutor ’s 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 ’s office of ORG forwarded the applicant ’s complaint about the abduction of her son to the UGA military prosecutor ’s 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 ’s office .

On DATE the prosecutor ’s 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 ( “ ORG of the ORG ” ) informed the applicant that they had forwarded her complaint about the abduction of PERSON to the district prosecutor ’s office for examination .

On DATE ORG of the ORG replied to the applicant ’s 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 ’s 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 ’s 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 ’s 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 ’s representatives wrote to the prosecutor of ORG , enquiring , among other things , whether the district prosecutor ’s 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 ’s representatives complained to the NORP prosecutor ’s 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 ’s representatives wrote to the prosecutor of ORG and the NORP prosecutor ’s office , reiterating the questions raised in their letters dated DATE and CARDINAL DATE .

On DATE the NORP prosecutor ’s office replied to the applicant ’s 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 ’s version that her son had been abducted by unidentified persons on DATE . However , apart from the applicant ’s 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 ’s 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 ’s Office replied to the applicant that they had forwarded her complaint about the abduction of her son to the military prosecutor ’s office of ORG ( “ the ORG prosecutor ’s office ” ) .

By a letter of CARDINAL DATE the district prosecutor ’s office informed the applicant ’s 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 ’s 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 ’s 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 § CARDINAL and CARDINAL § 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 ’s office searched the applicant ’s 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 ’s 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 ’s 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 ’s 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 ’s 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 ’s office had received the applicant ’s complaint that on DATE persons in camouflage uniforms had arrested PERSON at the “ NORP ” highway near FAC woodland and had taken him to an unknown destination . It further stated that the applicant ’s 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 ’s 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 ’s 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 :

“ ... [ 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 ’s silvery VAZ-CARDINAL vehicle with licence plate containing figures “ CARDINAL ” [ 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 “ E-CARDINAL ” . 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 “ ORG ” . 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’t know if he is alive or not . There were many rumours about my son ’s placement in various power structures of the ORG in GPE ; I mentioned all that information in my complaints to the authorities . ”

On DATE the investigator in charge of case no . ORG instructed ORG police to examine the applicant ’s 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 “ NORP ” motorway ) .

It appears that following the investigator ’s instructions the police interviewed CARDINAL residents of ORG ; they all stated that they did not know anything about the abduction of the applicant ’s son .

On DATE and DATE a number of law - enforcement authorities forwarded to the district prosecutor ’s office the applicant ’s 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 ( справка ) , which , in so far as relevant , reads as follows :

“ The ROVD has operational information [ оперативная информация ] to the effect that on DATE unidentified officers of security forces stopped on the ‘ RostovBaku’ 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 ‘ Akhmed’ , 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 ’s ensuing whereabouts or the persons who had arrested him . ”

On DATE the district prosecutor ’s office suspended the investigation in case no . DATE , owing to its failure to find PERSON . By the same decision the district prosecutor ’s 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 , § § CARDINAL , CARDINAL DATE ) .


Violation of Art. 5-1-a;Not necessary to examine Art. 6-1 and 6-3

Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

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 Gijón .

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 ’s superior imposed a disciplinary penalty on him consisting of CARDINAL days’ 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 León 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 ’s 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 “ without affecting service ” 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 ’s 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 ’s submission that the words “ without affecting service ” 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 ’s case as he was on sick leave .

ORG noted that ORG had already considered the question of “ house arrest ” 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 ’s 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 :

“ The appellant ’s 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 – 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 ’s 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 ) . ”

“ 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 . ”

By an instrument dated DATE , GPE ratified the ORG subject to a reservation under former LAW with respect to LAW and CARDINAL § 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 :

“ 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 – 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 . ”

“ Under the supreme command of the King , the armed forces , composed of the army , the navy and the air force ... ”

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 .

“ 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 ... ”

“ ( CARDINAL ) By reason of its status as an armed military institution , the ORG shall be subject to specific rules in disciplinary matters ... ”

“ ... the disciplinary rules currently [ in DATE ] applied to ORG are those applicable to the armed forces . However , this arrangement is only operative ‘ until specific rules are issued’ 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 ... ”

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 “ 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 ” ( explanatory note ) .

The explanatory note to Law no . CARDINAL/CARDINAL also states :

“ ... 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 ... ”

The relevant provisions of Law no . CARDINAL/CARDINAL read as follows :

“ 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 . ”

“ The penalties which may be imposed for minor breaches are :

– an administrative reprimand ( administrative admonishment ) ,

– loss of CARDINAL days’ leave ,

– house arrest of CARDINAL . ”

“ 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 . ”

“ Disciplinary penalties shall be enforceable immediately and the lodging of an internal or judicial appeal shall have no suspensive effect . ”

“ ... 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 . ”

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 ;