Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed;Remainder inadmissible;Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant was born in DATE and is currently detained in a penitentiary institution in the GPE region , awaiting his extradition to GPE . The applicant ’s lawyer claims that the applicant is a stateless person . According to the Government , the applicant is a NORP national . The applicant himself does not deny his NORP nationality and has not raised the issue of his allegedly stateless status before the NORP authorities .

On DATE the NORP law - enforcement authorities issued a bill of indictment against the applicant for inflicting light and grievous bodily harm on CARDINAL individuals on DATE ( the latter , more serious crime is punishable by CARDINAL to CARDINAL years’ imprisonment under LAW of GPE ) . The same day the NORP police ordered the applicant ’s arrest . This latter decision was approved by ORG on DATE .

On DATE a search for the applicant was announced by the police .

The applicant left GPE in DATE because of his alleged persecution on ethnic grounds . Since then he has resided in GPE .

On DATE the applicant was apprehended by the police . According to the applicant his relatives were informed that he had been arrested for hooliganism and later they were informed he had been arrested under LAW under an international search warrant .

DATE the applicant was informed that he was wanted by the law - enforcement authorities of GPE . According to the applicant , the police officers persuaded him to refrain from asking for legal assistance under the pretext that all procedural steps in his criminal case would be conducted in the territory of GPE .

DATE ORG received an official request from the NORP authorities for the applicant ’s provisional arrest under LAW , DATE .

On DATE the applicant was allowed to see a lawyer .

On DATE the applicant was brought by the police before a judge of ORG of LOC , who ordered his detention pending the extradition proceedings against him . The decision , which stated that an appeal could be made under LAW , was served immediately . No time - limit was set for his detention .

DATE the applicant was questioned by ORG , to whom he explained , inter alia , that prior to his arrest he had not been aware that he had been wanted by the NORP law - enforcement authorities . He further explained that he had signed a waiver of assistance from a lawyer since the police had explained to him that he would not face a trial in GPE .

On DATE the applicant requested the ORG to apply Rule CARDINAL of ORG in his case . On DATE the President of the ORG decided to apply Rule CARDINAL , indicating to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicant to GPE pending the ORG ’s decision .

On DATE ORG of GPE requested the applicant ’s extradition with a view to criminal prosecution for the crimes of inflicting light and grievous bodily harm on CARDINAL individuals . It further gave assurances that the applicant would be prosecuted only for the crimes indicated in the request , that he would be allowed to leave GPE after serving his sentence , and that he would not be handed over to a third country without the consent of the NORP authorities . It added that he had never been and would never be discriminated against on the grounds of social status , race , ethnic origin or religious beliefs . This request was received by ORG of GPE on DATE . It appears that the applicant learned about this document only in the framework of the Convention proceedings .

On DATE ORG of GPE informed ORG of GPE of the suspension of the extradition proceedings pursuant to the interim measure indicated by the ORG .

On DATE ORG sent a petition to the head of ORG , stating that the applicant ’s detention had breached criminal procedural law . According to the petition , the applicant had been arrested on DATE and placed in a cell at the police station in accordance with the arrest warrant issued by GPE Prosecutor ’s Office of GPE . The prosecutor noted that from DATE the police had not brought the applicant before a court to decide on his detention and had not informed the prosecutor about his detention . The prosecutor considered that the situation had arisen because of the police ORG negligent performance of their duties and called for disciplinary action to be taken against them .

By orders of DATE and DATE the police officers responsible for the applicant ’s detention in violation of the law were punished by an oral warning , a formal reprimand and deprivation of bonus payments for DATE .

In a letter of DATE the First Deputy Prosecutor General of GPE , in reply to the request from ORG , informed it that the observance of the applicant ’s rights and legitimate interests would be guaranteed , in particular :

“ - the requirements of LAW will be fulfilled in respect of PERSON , he will not be subjected to torture , inhuman or degrading treatment or punishment after extradition ;

- in case of necessity he will be provided with appropriate medical treatment and medical assistance ;

- the right to fair judicial consideration of his criminal case will be secured to him . ”

He further pointed out that the death penalty had been abolished in GPE .

NORP The relevant provisions of the LAW read as follows :

“ International treaties that are in force and are agreed to be binding by the Verkhovna Rada of GPE are part of the national legislation of GPE . ”

“ Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law .

In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody .

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the moment of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .

Everyone who has been detained has the right to challenge his or her detention in court at any time .

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . ”

“ Human and ORG rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies exercising ORG power , local self - government bodies , officials and officers ...

... After exhausting all domestic legal remedies , everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which GPE is a member or participant ... ”

“ The following are determined exclusively by the laws of GPE :

( CARDINAL ) human and ORG rights and freedoms , the guarantees of these rights and freedoms ; the main duties of the citizen ; ..

( CARDINAL ) the judicial system , judicial proceedings , the status of judges , the principles of judicial expertise , the organisation and operation of the prosecution service , the bodies of inquiry and investigation , the notary , the bodies and institutions for the execution of punishments ; the fundamentals of the organisation and activity of the advocacy ; ... ”

The Convention was ratified by ORG on DATE . It entered into force in respect of GPE on DATE and in respect of GPE on DATE . The text of the ORG was published on DATE in ORG ( no . DATE ) . The relevant provisions of the Convention read as follows :

“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( ходатайство ) . The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow . A petition for arrest ... may be sent by post , wire , telex or fax .

NORP The person may also be detained without the petition referred to in point CARDINAL above if there are legal grounds to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition .

NORP In case of [ the person ’s ] arrest or detention before receipt of the request for extradition , the other ORG shall be informed immediately . ”

“ CARDINAL . A person arrested pursuant to LAW shall be released if no request for extradition is received within DATE of the arrest .

A person arrested pursuant to LAW shall be released if no request for extradition is received within the time established by the law concerning arrest . ”

Chapter CARDINAL-a of the Code lay down the procedure for considering complaints by citizens about decisions , acts and omissions of ORG bodies , legal persons and officials in the sphere of administration .

DATE LAW provides that the task of the administrative judiciary is the protection of the rights , freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public - law relations from violations by ORG bodies , bodies of local self - government , their officials and other persons in the exercise of their powers . Under the second paragraph of this Article , any decisions , actions or omissions of the authorities may be challenged before the administrative courts .

According to paragraph CARDINAL of LAW of LAW , after its entry into force any applications and complaints arising from administrative - law relations ( LAW of LAW DATE ) that had been lodged but not yet considered were to be examined under the procedure set out in LAW .

Article CARDINAL of the Code governs the arrest and detention of persons suspected of committing a criminal offence . It provides :

“ The investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :

if the person is discovered whilst or immediately after committing an offence ;

if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;

if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home .

For each case of detention of a criminal suspect , the investigating body shall be required to draw up a record mentioning the grounds , the motives , DATE , time , DATE , the place of detention , the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The record of detention shall be signed by the person who drew it up and by the detainee .

A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for detention shall be sent to him as well .

The investigating body shall immediately inform one of the suspect ’s relatives of his detention ...

Within TIME after the arrest the investigating body shall :

( CARDINAL ) release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of CARDINAL of the present Article ;

( CARDINAL ) release the detainee and select a non - custodial preventive measure ;

( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .

If the detention is appealed against to a court , the detainee ’s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure was applied , the judge shall examine it within DATE after receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE after receiving it .

The complaint shall be considered in accordance with the requirements of LAW . Following its examination , the judge shall give a ruling , either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful .

The ruling of the judge may be appealed against within DATE from the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court ’s ruling .

Detention of a criminal suspect shall not last for CARDINAL .

If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up a record to that effect , and shall inform accordingly the official or body that carried out the arrest . ”

Article CARDINAL of the PERSON provides that preventive measures shall be imposed on a suspect , accused , defendant , or convicted person .

Article CARDINAL of the Code concerns the selection of a preventive measure in criminal proceedings . It reads as follows :

“ At the stage of the pre - trial investigation , a non - custodial preventive measure shall be selected by the investigating body , investigator or prosecutor .

In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure , with the prosecutor ’s consent he shall lodge an application with the court . The prosecutor is entitled to lodge an application to the same effect . In determining this issue , the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody , and to verify that the evidence was received in a lawful manner and is sufficient for charging the person .

The application shall be considered within TIME of the time at which the suspect or accused is detained .

In the event that the application concerns the detention of a person who is currently not deprived of his liberty , the judge shall be entitled , by means of an order , to give permission for the suspect to be detained and brought before the court under guard . Detention in such cases may not exceed TIME ; and in the event that the person is outside the locality where the court is situated , it may not exceed TIME from the moment at which the detainee is brought within the locality .

Upon receiving the application , the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator . A prosecutor shall question the suspect or accused and , if necessary , shall hear evidence from the person who is the subject of the proceedings , shall obtain the opinion of the previous prosecutor or defence counsel , if the latter appeared before the court , and shall make an order :

( CARDINAL ) refusing to select the preventive measure if there are no grounds for doing so ;

( CARDINAL ) selecting a preventive measure in the form of taking of a suspect or accused into custody .

The court shall be entitled to select for the suspect or accused a non - custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her .

The judge ’s order may be appealed against to the court of appeal by the prosecutor , suspect , accused or his or her defence counsel or legal representative , within DATE from the date on which it was made . The lodging of an appeal shall not suspend the execution of the judge ’s order . ”

Article CARDINAL of the Code lays down the procedure of appeal against first - instance court rulings and decisions , including those given under LAW .

The recommendation calls for the following procedural requirements in the case of removal of asylum seekers :

“ ORG ...

Recommends that governments of member states , while applying their own procedural rules , ensure that the following guarantees are complied with in their legislation or practice :

An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .

In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when :

that authority is judicial ; or , if it is a quasi - judicial or administrative authority , it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence ;

that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ;

CARDINAL the remedy is accessible for the rejected asylum seeker ; and

CARDINAL the execution of the expulsion order is suspended until a decision under CARDINAL is taken . ”

The relevant extracts from the Resolution of the Plenary Supreme Court read as follows :

“ The LAW of GPE provides that no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law ( LAW ) .

In accordance with the first paragraph of LAW , international agreements in force ratified by the PERSON form part of the national legislation . Under the second paragraph of section CARDINAL of LAW of DATE , if an international treaty to which GPE is a party and which has been ratified in accordance with a procedure prescribed by law establishes rules which differ from those laid down by the NORP legislation , the rules of the international treaty shall apply .

Issues relating to inviolability and freedom of movement ( detention , arrest , apprehension and so forth ) are therefore regulated not only by the norms of LAW ( ‘ the CCP’ ) and LAW ( ‘ the ORG ) , but also by international treaties to which GPE is a party , and in particular by the DATE LAW and its Additional Protocols of DATE and DATE , ratified on DATE by Law no . CARDINAL , ... FAC of DATE , concluded in GPE and ratified on DATE by PERSON no . CARDINAL , bilateral treaties between GPE and other GPE , multilateral specialised treaties ...

... An examination of the practice of the courts of GPE in deciding issues relating to the extradition of persons to other GPE demonstrates that they have applied the relevant legislation differently . In particular , some courts initiate proceedings on applications by the competent authorities concerning the application of a preventive measure in the form of detention of the persons to be extradited , while others refuse to institute proceedings on such applications .

For the purposes of the uniform application of the legislation governing extradition to other GPE and the protection of fundamental human rights and freedoms , ORG resolves :

NORP ... in deciding whether an issue relating to extradition to another State is within the courts’ jurisdiction , the courts must refer to the provisions of LAW , other national legislation , including the [ DATE ] ORG or other international treaties to which GPE is a party and by which it has agreed to be bound , or the former GPE ’s treaties applied by GPE pursuant to Law no . CARDINALXII of CARDINAL DATE on the succession of GPE .

The courts should therefore decide what treaties have been concluded between GPE and the requesting ORG and what procedure such treaties lay down for resolving extradition issues ...

Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that , pursuant to LAW and similar provisions of other international treaties to which GPE is a party , the extradition procedure is regulated solely by the law of the requested ORG the courts are not empowered to decide on this issue .

They [ the courts ] can not on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer , including their detention , as these issues are to be decided by the competent NORP authorities .

Bearing in mind that in GPE a person can be held in detention for DATE only on the basis of a reasoned court decision , and taking into account the fact that , pursuant to the second paragraph of LAW , such a decision can only be taken by a competent NORP court , courts must accept jurisdiction and examine the merits of ORG requests and requests , approved by the prosecuting authorities , from the bodies acting upon extradition requests from other GPE [ concerning ORG extradition ] , for detention and rendition under guard to the competent ORG bodies of the requesting ORG .

Pursuant to LAW and other similar provisions of international treaties to which GPE is a party , the competent ORG bodies of the requesting ORG may in some cases request that a wanted person be temporarily detained . The competent ORG bodies dealing with the request shall take a decision in accordance with their country ’s legislation .

In this way , local courts decide on and examine the merits of requests made by prosecutors or other bodies approved by them which are acting upon requests from other GPE relating to the extradition or temporary arrest of a person for the purposes of his or her transfer under guard to the competent body of the requesting ORG , for a period established by ORG or another international treaty .

The courts must decide whether an individual ’s detention or temporary arrest is in accordance with the rules laid down in LAW .

The courts have the right to apply paragraph CARDINAL of Article CARDINAL - CARDINAL of the Code of Criminal Procedure in a situation where a person is handed over to the court with a view to a decision on his apprehension ( temporary arrest ) for the purposes of extradition or transfer .

The court shall review the existence of a request and of the relevant documents , established by treaty , forming the basis for extradition , and the absence of any grounds prohibiting extradition or transfer ( Articles CARDINAL , CARDINAL , DATE , DATE and CARDINAL of LAW and the DATE and DATE Additional Protocols thereto and LAW ) . In particular , detainees may not be extradited for political and military offences ; in the event of expiry of the limitation period ; when , in the territory of the party to which the extradition request has been made , a court has already delivered a judgment or resolution closing the proceedings concerning a charge similar to the one mentioned in the extradition request ; when issues relating to the extradition of a citizen of GPE or stateless persons permanently residing on the territory of GPE are being considered ; in respect of persons enjoying refugee status in GPE ; if the requesting party fails to provide GPE with sufficient guarantees that a sentence of capital punishment will not be enforced for the offence for which extradition has been requested , [ if the offence in issue ] is punishable by the death sentence in accordance with the law of the requesting ORG ; if the offence , in accordance with the law of the party requesting extradition , or NORP law , can be prosecuted by means of a private prosecution ; if the offence which forms the basis for extradition is punishable by a maximum [ sentence ] of DATE imprisonment or a less severe penalty .

The courts shall also take into account other provisions of LAW or other international treaties with regard to legal assistance which give the party to which the extradition request is addressed the right to refuse extradition .

The courts should also make due reference to the fact that , under LAW , its provisions replace any other bilateral international treaties , conventions or agreements regulating extradition issues between any CARDINAL Contracting Parties . Therefore , if a requesting ORG is a party to ORG , the provisions of bilateral or multilateral international treaties concerning extradition shall be applied in part , where they amend the provisions of that Convention .

In accordance with the third paragraph of LAW , the courts shall take into account and examine the merits of complaints by the individuals concerned and their lawyers and legal representatives alleging unlawful detention on the basis of an extradition request from another ORG .

Such requests shall be examined on the basis of LAW and ( CARDINAL) of LAW . In deciding whether a person is being detained lawfully , the judge shall refer to the relevant provisions of LAW ORG with regard to detention procedures and compliance with procedural formalities and the provisions of the relevant international treaty on the basis of which the person has been detained , and also to the presence of the necessary documents on which the extradition is based ( in particular , the request for extradition , the decisions of the competent bodies of the requesting party with regard to detention or arrest of the person , and so forth ) . ”

The third party , commenting on the lack of a relevant procedure for reviewing decisions on extradition in NORP law , submitted an example of the relevant domestic practice , which at the time had received considerable attention from the international community .

The DATE Country Reports on ORG , released by ORG on DATE , described this example of administrative practice in the following way in its report on GPE :

“ On DATE , ORG and the international community strongly condemned the forcible deportation of CARDINAL NORP asylum seekers . The ORG [ Security Service of GPE ] detained CARDINAL men in GPE based on extradition warrants issued by the GPE authorities on the grounds that they allegedly participated in the LOC mass protests in GPE in DATE . They were transferred to a ORG detention facility in PERSON . The ORG asked authorities for assurances that no asylum - seekers would be forcibly returned unless they had been determined not to be refugees and had completed asylum procedures , including any appeal . ORG in GPE rejected the asylum applications on the basis that they were ‘ manifestly unfounded’ . On DATE , CARDINAL of the men were forcibly returned to GPE . ( The remaining man was reportedly allowed to stay because he had relatives in the country . ) CARDINAL NORP regional human rights organizations issued a statement protesting the incident . On DATE , ORG issued a legal opinion saying that deportation was illegal . The president ’s chief of staff stated that the deportation was a violation of procedure because the refugees were not granted DATE to appeal the deportation , but added that the extradition was acceptable as they ‘ belonged to a radical Islamic group’ . ”

The Country Reports on Human Rights Practices of the US ORG ( hereafter “ the Reports ” ) for DATE , released on DATE , noted with respect to GPE :

“ c. Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment

... there were widespread credible reports that security officials tortured , routinely beat , and used force against criminal suspects and prisoners to obtain confessions ...

... There were reports that prisoners needing medical treatment were beaten on their way to and from the hospital . Security forces also used denial of medical treatment and food , verbal intimidation , and placement in unsanitary conditions to coerce confessions ...

... Conditions were poor in prisons , which were unsanitary , overcrowded , and unsafe . Disease , particularly tuberculosis , was rampant , in part because prisoners who were ill were often not removed from the general prison population . Food was poor and prisoners depended on relatives to supplement inadequate food supplies . Facilities for prisoner rehabilitation and recreation were extremely limited . Most prisoners could receive food and sundries once per DATE from relatives ; those who did not suffered greatly . Prisoners held under the ‘ Betrayers of the Motherland’ law were unable to receive food , sundries , or visits by relatives . Most were held in the newly constructed maximum security prison at FAC , where access to prisoners was extremely limited ...

There were CARDINAL types of prisons throughout the country : educational - labor GPE ; correctional - labor GPE ; and prisons . Some prisoners , usually former government officials , were sent into internal exile . In the correctional - labor GPE , there were reports of excessive periods of isolation of prisoners in cells and ‘ ORG . A new prison for hardened criminals and political prisoners at FAC , near Ashgabat , was completed in DATE . Authorities allegedly threatened , harassed , and abused prisoners in an attempt to force some prisoners to renounce their faiths .

In GPE prison , located in LOC , prisoners were forced to work in a kaolin mine under hazardous and unhealthy conditions ...

... Some prisoners died due to the combination of overcrowding , untreated illnesses , and lack of adequate protection from DATE heat ...

... Prison officials refused to respond to inquiries from family members and foreign diplomats about ORG whereabouts or physical condition , or to allow family members , foreign diplomats or international observers , including ORG ( ICRC ) , to visit detainees or prisoners , including political prisoners , by DATE . The Government claimed that granting access to prisoners would be an admission that there were problems with the country ’s penal system ...

Detainees are entitled to immediate access to an attorney once a bill of indictment has been issued ; however , in practice they were not allowed prompt or regular access to legal counsel . Incommunicado detention was a problem . Authorities regularly denied prisoners visits by family members , who often did not know their whereabouts ...

d. Arbitrary Arrest , Detention , or Exile

... In DATE , President PERSON signed the ‘ Betrayers of the Motherland’ law , which characterizes any opposition to the government as an act of treason . Those convicted under the law face life imprisonment , are ineligible for amnesty or reduction of sentence , and may not receive visitors or food from outside sources ... By DATE , CARDINAL persons were arrested or convicted under the law ...

The law provides that a person accused of a crime may be held in pretrial detention for DATE , which in exceptional cases may be extended to DATE . In practice , authorities often exceeded these limits ...

e. Denial of Fair Public Trial

The LAW provides for an independent judiciary ; however , in practice the judiciary was not independent . The President ’s power to select and dismiss judges subordinated the judiciary to the Presidency . The President appointed all judges for a term of DATE . There was no legislative review of these appointments , except for the Chairman ( Chief Justice ) of ORG , and the President had the sole authority to dismiss all appointees before the completion of their terms ...

The law provides for the rights of due process for defendants , including a public trial , access to accusatory material , the right to call witnesses to testify on their behalf , a defense attorney , a court - appointed lawyer if they could not afford one , and the right to represent themselves in court . In practice , authorities often denied these rights , and there were few independent lawyers available to represent defendants ...

In DATE , summary trials of those accused in the DATE attack began without public notice . Suspects were not afforded regular access to their attorneys , and their attorneys were not allowed to cross - examine other defendants in the case during the pretrial investigation . Attorneys for some defendants received notice that proceedings against their clients were beginning TIME before the trials ( the norm is DATE ) . Some defendants did not receive adequate legal counsel . Attorneys for a number of defendants expressed regret for defending their clients in their opening statements , which were broadcast on state - owned television , even though the trials themselves were not public . The Government refused to allow family members or foreign diplomats to observe the proceedings . AI reported that none of the defendants had an independent lawyer representing them during their trial .

Defendants were not allowed to confront or question witnesses against them . Defendants and their attorneys were denied access to government evidence against them ; ORG stated the evidence consisted of ‘ state ORG . The defendants did not enjoy a presumption of innocence . Before the trials began , the Government publicly announced that the principal defendants were guilty and sentenced them to life imprisonment under the new ‘ Betrayers of the Motherland’ law . Sentences for those convicted of involvement in the DATE attack ranged from life imprisonment to forced resettlement . The systemic failure to observe due process in investigating and prosecuting prisoners implicated in the attack made it difficult to distinguish between those actually complicit in the attack and some who may be political prisoners convicted for their perceived political opposition views . An OSCE Rapporteur described the trials as ‘ in breach of all the most elementary principles of the rule of law’ .

Courts allegedly ignored allegations of torture that defendants raised in trial ...

In practice , adherence to due process in other cases was not uniform , particularly in the lower courts in rural areas . Even when due process rights were observed , the authority of the government prosecutor was so much greater than that of the defense attorney that it was very difficult for the defendant to receive a fair trial . In an DATE case against CARDINAL former senior officials , ORG refused to admit evidence critical to the defense , despite the fact that it appeared to be admissible under the law .

In general , observers were not permitted access to ostensibly open court proceedings . The Government physically prevented foreign diplomats from attending the trials of accused DATE attackers and of a civil society activist in DATE ; however , foreign diplomats attended the trial of CARDINAL former officials in DATE and of a member of ORG in DATE ... ”

The DATE Reports , released on DATE , showed no improvements in the situation :

“ c. Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment

The constitution and law prohibits such practices ; however , security officials tortured , routinely beat , and used excessive force against criminal suspects , prisoners , and individuals critical of the government , particularly in detention while seeking a confession ...

Prison and ORG

Prison conditions were poor ; prisons were unsanitary , overcrowded , unsafe , and posed a threat to life . Disease , particularly tuberculosis ( GPE ) , was rampant . There continued to be concerns that prisoners with TB were released untested and untreated into the general population , although the government reportedly began screening prisoners for GPE , among other diseases , upon their release and provided some treatment in some cases . Prisoners diagnosed with GPE were transferred to a special ORG hospital in PERSON for treatment . Government officials protested foreign diplomatic ORG allegations of poor prison conditions , but they did not respond to direct inquiries . Nutrition was poor , and prisoners depended on relatives to supplement inadequate food supplies , although prisoners convicted for treason were unable to receive supplies from relatives . The government defined treason as any opposition to the government ...

Family members and international publications claimed some prisoners died due to the combination of overcrowding , untreated illnesses , and lack of adequate protection from DATE heat ...

There were CARDINAL types of incarceration facilities throughout the country : educational - labor GPE , correctional - labor GPE , and prisons . Some prisoners , usually former government officials , were sent into internal exile . In the correctional - labor GPE , relatives of prisoners reported excessive periods of prisoner isolation . There were reports that prisoners were forced to work under hazardous and unhealthy conditions in a kaolin mine in FAC , near GPE ...

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention ; however , arbitrary arrest and detention were serious problems ...

Arrest and Detention

... Detainees are entitled to immediate access to an attorney once a bill of indictment is issued , and they were able to choose their counsel ; however , in practice they did not have prompt or regular access to legal counsel . In some cases legal counsel ceased advising their clients after government officials altered the charges or case details initially provided to defendants . Incommunicado detention was a problem . By law detainees are to be charged within TIME ; authorities did not respect this right in practice . There was no bail system . Authorities denied some prisoners visits by family members during DATE . Families sometimes did not know the whereabouts of imprisoned relatives ...

The law characterizes any opposition to the government as an act of treason . Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence . Unlike in DATE , there were no known treason convictions during DATE . Those expressing views critical of or different from those of the government were arrested on charges of economic crimes against the state and various common crimes ...

e. Denial of Fair Public Trial

The law provides for an independent judiciary ; however , in practice the judiciary was subordinate to the president . There was no legislative review of the president ’s judicial appointments , except for the chairman ( chief justice ) of ORG , who was reviewed by the rubber - stamp parliament . The president has the sole authority to dismiss all judges before the completion of their terms and has done so frequently down to the city level ...

Trial Procedures

The draft revised criminal procedure code released in DATE remained pending at DATE . The code could significantly alter the DATE NORP code , which was still in force . The proposal incorporated rights of the accused , including the introduction of the presumption of innocence , restraints on police searches , establishment of a bail mechanism , and limits on pretrial detention .

The law provides due process for defendants , including a public trial , access to accusatory material , the right to call witnesses to testify on their behalf , a defense attorney , a court - appointed lawyer if the defendant can not afford one , and the right to represent oneself in court . In practice authorities often denied these rights , and there were few independent lawyers available to represent defendants . There is no jury system . At times defendants were not allowed to confront or question witnesses against them , defendants and their attorneys were denied access to government evidence against them , and defendants frequently did not enjoy a presumption of innocence . In some cases , courts refused to accept exculpatory evidence provided by defense attorneys , even if that evidence would have changed the outcome of the trial . Even when due process rights were observed , the authority of the government prosecutor far exceeded that of the defense attorney , and it was very difficult for the defendant to receive a fair trial . Court transcripts were frequently flawed or incomplete , especially in cases in which defendants’ testimony needed to be translated from NORP to NORP . Lower courts’ decisions could be appealed , and the defendant could petition the president for clemency . However , in most cases , courts allegedly ignored allegations of torture that defendants raised in trial .

Foreign observers were permitted at some trials . However , many more trials , especially those considered to be politically sensitive , including the trial of ORG affiliate and ORG / ORG correspondent PERSON , were closed to observers ...

Political Prisoners and Detainees

The law characterizes any opposition to the government as an act of treason . Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence .

Opposition groups and international organizations claimed the government held many political detainees , although the precise number was unknown . Detainees may include CARDINAL relatives and associates of those implicated in the DATE attack being held without charge for their perceived political opinions and possible involvement in the attack .

Government officials refused to respond to inquiries from family members and diplomats about political prisoners’ location or condition . Government officials also refused to permit family members , foreign diplomats , or international observers , including the ICRC , access to detainees or prisoners associated with the DATE attack . ”

Referring to the continuation of gross and systematic violations of human rights in the country , the ORG Secretary - General ’s report highlighted among the main areas of concern the use of torture and the absence of an independent judiciary in GPE . In his report the Secretary - General further noted , in particular :

“ CARDINAL . While welcoming the submission of the reports , the committees generally expressed the need for more information on the practical implementation of the provisions of the conventions , including statistical data , in accordance with the guidelines for preparation of reports . ORG ‘ noted with deep concern the major contradictions between , on the one hand , consistent information from both intergovernmental and nongovernmental sources relating to the existence of grave violations of the Convention in GPE , and , on the other hand , the sometimes categorical denials by LAW / CO/CARDINAL ) . ORG also encouraged ORG to increase its efforts to institute a constructive and sincere dialogue .

PERSON Developments concerning the full respect for all human rights and fundamental freedoms

Prison conditions and torture

The following sections are based on information obtained by ORG , the special procedures of ORG and the ORG treaty bodies . Due to the limited access to information in GPE by international human rights bodies , further details on the human rights situation in the country were not available for the preparation of the present report .

The Special Rapporteur on the question of torture referred to the situation of a number of individuals convicted in DATE and DATE to prison terms ranging DATE and life for their alleged involvement in what the authorities described as an assassination attempt on the President in DATE ( E / CN.CARDINAL/CARDINAL/CARDINAL/Add.CARDINAL ) . All these prisoners continue to be held incommunicado , without access to families , lawyers , or independent bodies such as ORG . The Special Rapporteur on the question of torture also mentioned GPE as CARDINAL of CARDINAL Governments that have never responded to urgent appeals sent under his mandate ( ORG ) , although having received a significant number of urgent appeals .

The death in custody of a ORG journalist , PERSON , whose body allegedly bore signs of torture , raises particular concern .

ORG expressed its deep concern at the information that torture and ill - treatment of detainees , including children , is widespread ( ORG / CO/CARDINAL ) , especially at the moment of apprehension and during pre - trial detention , and used both to extract confessions or information and as an additional punishment after the confession ... ”

ORG in its DATE Report on Human Rights in LOC noted the widespread use of torture and ill - treatment in custody in GPE and poor prison conditions there . The same problems in GPE are mentioned by ORG in its ORG DATE .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the town of PERSON , ORG , GPE . He is a former employee of the NORP OJSC “ NORP ” ( “ the ORG , ” ORG “ Південелектромаш ” ) .

The background facts for the case are described in the case of PERSON GPE ( no . GPE , § § CARDINAL - CARDINAL , DATE ) .

On DATE ORG міський суд PERSON області ) ordered the Company to pay the applicant ORG CARDINAL in salary arrears . This judgment became final and the writs of execution were transferred to ORG .

NORP By letters of CARDINAL DATE and DATE , ORG and ORG of Justice informed the applicant that the enforcement proceedings had been suspended due to the proceedings of financial rehabilitation of the debtor .

On DATE ORG rejected the applicant 's complaint about the allegedly unlawful inactivity of ORG . The court stated that there was no fault attributable to the defendant .

On DATE ORG resumed the execution proceedings in the applicant 's case . On DATE and DATE , it ordered the seizure of the ORG 's accounts . However , on DATE ORG , on the trustee 's appeal , quashed these decisions because LAW envisaged the obligatory suspension of enforcement proceedings pending the resolution of a bankruptcy case .

The judgment in the applicant 's favour remains unenforced .

The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


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

The applicants worked as ballet dancers in and for GPE ( “ GPE ” ) . At the end of their stage career they were paid a DATE allowance ( “ the allowance “ ) for former ballet dancers . That allowance was paid by virtue of a set of Regulations enacted by the Minister of Culture ( Anordnung über die PERSON in staatlichen ORG der DDR ) of CARDINAL DATE . It accrued after reaching DATE and having worked for DATE as a dancer . It was paid , irrespective of other earnings , by the last employer . Once the former dancer received an old - age or invalidity pension the allowance was paid by ORG ( ORG DDR ) .

After the NORP reunification the allowance was initially converted into and paid in NORP marks ( ORG ) . On DATE , however , all allowance payments to former ballet dancers were discontinued on the basis of LAW read in conjunction with PERSON , Chapter VIII , Section H , paragraph III , Nr . CARDINAL of LAW ( Einigungsvertrag ) of DATE , hereafter referred to as “ LAW ” ( see “ Relevant domestic law and practice ” below ) .

In DATE the applicants and several other former ballet dancers of the GPE lodged a constitutional complaint with ORG . The latter refused to accept the complaint because the applicants had not exhausted legal remedies .

Applicant PERSON

Applicant PERSON ( A ) worked from DATE as a ballet dancer for a national company of the GPE . In DATE he terminated his career on stage and was subsequently paid an allowance of CARDINAL , MONEY per month until its suspension on DATE .

On DATE A brought an action with ORG ( ORG ) claiming the continued payment of the allowance . On DATE ORG referred his case to ORG ( Arbeitsgericht ) . On DATE ORG ( ORG ) rejected his appeal against the referral .

On DATE ORG rejected A ’s action . It argued that A had no valid claim to any allowance payments beyond DATE . As the German Unification Treaty permanently ended payment of these allowances from that date , it did not recognise the allowance as being a legal claim within the social security system of GPE ( FRG ) .

On DATE ORG ( PERSON ) rejected A ’s appeal ( GPE ) .

On DATE ORG ( Bundesarbeitsgericht ) rejected A ’s request for leave to appeal on points of law . It conceded that the wording of LAW was ambiguous in that it could be interpreted as setting DATE either as the final date to qualify for the allowance or as terminating allowance payments permanently from DATE . The legislator had however meant to suspend the allowance payments as of DATE . The allowance was an atypical benefit granted by the GPE and had been paid out of public funds . Under these circumstances a transfer of the allowance into the united NORP legal system would have required an explicit and more precise rule than that actually laid down in GPE . LAW CARDINAL of LAW had to be construed bearing in mind that that provision was intended to lead to the creation of a uniform and united NORP pension system . Accordingly , it was meant to regulate the application of the GPE ’s pension schemes for DATE . With the adoption of the PERSON on ORG ( Anspruchs- und ORG , hereafter “ transfer law ” ) of CARDINAL DATE ( see “ Relevant domestic law and practice ” below ) this purpose had been accomplished . The transfer law did not provide for further allowance payments after DATE but established that DATE which the ballet dancer had worked on stage would be taken into consideration in calculating his DATE pension .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit A ’s constitutional complaint . It referred to its leading judgment of DATE ( see “ Relevant domestic law and practice ” below ) , pursuant to which the pension rights acquired in the GPE fell within the scope of the LAW ) protecting the right to property provided that LAW recognised them as legal claims within the united NORP legal system . Given that LAW prescribed that the allowance would not be transferred into the social and labour legislation of the ORG , however , it did not fall within the scope of LAW . It could accordingly be left undecided whether the allowance could be considered a pension . There had never been a legitimate expectation that the allowance would be transferred into the united NORP legal system , as in the legal system of the GPE , the allowance had already amounted to a preferential treatment . Besides , although the allowance was not based on contributions of the beneficiary , the NORP legislator had in a way allowed for it by establishing in the transfer law that DATE during which a person had been working as a ballet dancer of the GPE and thereby had qualified for the allowance would be taken into account for calculating the pension to be paid to that person .

The decision was served on A ’s lawyer on DATE .

Applicant PERSON

Applicant PERSON ( V ) worked as a ballet dancer for national companies of the GPE for DATE . In DATE she terminated her stage career and was subsequently paid an allowance of CARDINAL , MONEY per month until its suspension on DATE .

On DATE V brought an action for declaration ( PERSON ) that , once she was going to receive an old - age or an invalidity pension , ORG ( GPE für ORG ) would be obligated to pay her the allowance in addition to her pension .

On DATE ORG rejected her action . It argued that V had no valid claim to any allowance payments beyond DATE as ORG put a definitive end to such payments as of that date . The transfer law determined , however , that DATE during which a person had been working as a ballet dancer for the GPE and thereby qualified for the allowance had to be taken into account to calculate the pension of that person . In this way the transfer law integrated the allowance into the pension system of the ORG but did not provide for allowance payments in addition to the pension .

On DATE ORG of Appeal quashed the decision of ORG and declared V ’s action inadmissible .

On DATE ORG ( Bundessozialgericht ) rejected most of V ’s appeal on points of law . It argued that the ORG was not the universal legal successor ( Gesamtrechtsnachfolgerin ) of the GPE and that LAW determined which duties of the GPE had been transferred to the ORG and the Länder . The allowance as such had been abolished and would therefore not be paid in addition to a future pension .

On DATE ORG refused to accept V ’s constitutional complaint in a joint decision also dealing with A ’s and B ’s constitutional complaints . The decision was served on V ’s lawyer on DATE .

Applicant Bertling

Applicant PERSON ( B ) worked as a ballet dancer for ORG until DATE . In DATE she terminated her stage career and was subsequently paid an allowance of MONEY per month until its suspension on DATE .

On DATE B brought an action with ORG ( GPE ) , requesting the further payment of the allowance and a declaration that once she was going to be served an old - age or an invalidity pension ORG would be bound to pay her the allowance in addition to her pension .

On DATE ORG referred the proceedings to ORG . On DATE ORG rejected the applicant ’s action . On DATE ORG rejected her appeal . On DATE ORG rejected her appeal on points of law .

On DATE ORG refused to entertain B ’s constitutional complaint in a joint decision also dealing with A ’s and V ’s complaints . The decision was served on B ’s lawyer on DATE .

The German Unification Treaty

As a result of GPE , which became effective on DATE , the GPE acceded to the ORG . The transition from a communist regime to a democratic system of market economy in the new Länder raised many issues relating to property rights in GPE , in particular regarding the transfer of former GPE ORG pensions .

To achieve economic and legal unification , the ORG and GPE concluded several agreements on the fate of GPE legislation , such as LAW of DATE , in which they agreed , inter alia , that vested rights and expectations were transferred to the social security system of the ORG . However , payments made on the basis of special regulations ( Sonderregelungen ) would be checked for the purpose of stopping unjustified or excessive payments ( mit dem Ziel , ... , ungerechtfertigte ORG abzuschaffen und überhöhte ORG abzubauen ) . LAW , besides containing several other declarations , laid down fundamental principles in that connection . It established , inter alia , which parts of GPE law were to be incorporated into the unified NORP legal system .

LAW reads :

“ The law of the GPE mentioned in Appendix II is to remain in force in the unified system , with the restrictions set out in the Appendix , and provided that that law is compatible with LAW ) and the law of the ORG which is directly applicable . ”

PERSON , LAW , Section H , paragraph III , Nr . CARDINAL inter alia reads :

“ a. The Regulations on the allowance to be paid to former ballet dancers are applicable until DATE .

b. The Regulations can be amended until that date by a collective agreement ( Tarifvertrag ) or by a collective labour contract ( Betriebsvereinbarung ) . ”

The Transfer Law

The PERSON on ORG ( transfer law , Anspruchs- und ORG ) determined how the numerous additional or special pension schemes ( Zusatz- oder Sonderversorgungssysteme ) were integrated into the united NORP pension system .

Regarding the allowances examined here , it did not provide for them to be paid on top of the regular pension but prescribed that the number of DATE during which a ballet dancer had worked on stage would be taken into consideration for calculating the DATE pension .

Decisions of ORG

On DATE ORG issued CARDINAL leading judgments concerning the method used to deal with former GPE citizens’ pension rights . It determined that the pension rights acquired in the GPE fell within the purview of LAW ( right to property ) , provided that LAW recognised them as a legal claim within the united NORP legal system . It furthermore examined the constitutionality of the transfer law and established which provisions of it were contrary to LAW .

In all these cases judge ORG had declared himself biased . In DATE ORG had commissioned him to examine the constitutionality of the transfer law . He withdrew from the bench making reference to the expert opinion he had rendered and where he had examined the constitutionality of the transfer law . ORG accepted his withdrawal and decided without his participation .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

The applicant lodged with ORG an action for payment against ORG ( “ PZU ” ) .

On DATE ORG partly allowed the applicant ’s claim . She appealed .

On DATE ORG slightly increased the amount awarded to the applicant .

The applicant lodged a cassation appeal with ORG , alleging , inter alia , erroneous assessment of evidence and application of incorrect criteria by the lower courts in respect of the value of her claim .

On DATE ORG refused to entertain the cassation appeal . It relied on a provision of the newly amended Code of Civil Procedure ( which entered into force on DATE ) allowing it to leave without examination manifestly ill - founded appeals or appeals in cases where no serious legal issue arises .

The decision was taken by a single judge sitting in camera . The written reasons provided as follows :

According to LAW , when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law ( LAW ) , ORG may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case , there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the ORG case - law or the cassation appeal is manifestly ill - founded ( § CARDINAL ) . ( ... )

In the present case none of the circumstances set out in LAW was present and consequently ORG , having considered the grounds set out in § CARDINAL , found it justified to refuse to entertain the cassation appeal .

On DATE the applicant lodged a constitutional complaint with ORG , alleging , inter alia , a breach of her right of access to court and to a fair hearing on account of the retrospective application of new LAW to cassation appeals lodged before its entry into force .

On DATE the ORG delivered judgment no . ORG CARDINAL/CARDINAL , having joined several complaints , including the applicant ’s complaint , in the same proceedings ( see domestic law below ) .

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a secondinstance court . A party had to be represented by an advocate or a legal adviser .

Article PERSON of LAW as applicable at that time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Article CARDINAL specified the requirements of a cassation appeal . It read in its relevant part :

“ § CARDINAL . A cassation appeal should include :

CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;

CARDINAL ) NORP an indication of the grounds for the cassation appeal ;

CARDINAL ) NORP arguments showing that its examination would be justified ;

CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . ”

Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG failed to find non - conformity with the law , it dismissed the cassation appeal .

Pursuant to LAW appeal , in principle , was examined during a hearing by a panel of CARDINAL judges ; the court could , however , reject a cassation appeal on formal grounds at a sitting . The judgment or decision had to be accompanied by written reasons .

On DATE a law was enacted amending LAW . It entered into force on DATE . It introduced , inter alia , the following provision ( amended Article CARDINAL ) – the so - called “ pre - judgment ” ( preliminary assessment of a cassation appeal ) :

“ § CARDINAL . ORG may refuse to entertain the cassation appeal , if :

CARDINAL ) there is no appearance of any significant legal issue in the case ,

CARDINAL ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the ORG case - law ,

CARDINAL ) the appeal is manifestly ill - founded .

§ CARDINAL . Paragraph CARDINAL shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law . ”

Pursuant to amended LAW the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera in a single judge formation .

Although the legal provisions did not expressly provide for such a possibility , usually the written reasons accompanying such decisions were limited to a simplified , schematic formula which did not contain any legal analysis , did not indicate the specific grounds for the decision , did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case .

On DATE new provisions on a “ cassation complaint ” came into effect , replacing the provisions governing the cassation appeal .

In its judgment of DATE ( ORG CARDINAL ) ORG examined a number of constitutional complaints challenging the provisions of LAW .

ORG held that although the LAW did not guarantee a right to cassation as such , the fact that it was provided for by LAW meant that it had to meet the requirements of the rule of law and procedural justice .

ORG observed , inter alia , that certain terms describing the conditions which a cassation appeal had to meet under Articles CARDINAL et seq . of the Code ( “ significant legal issue ” , “ provisions raising serious doubts or causing discrepancies in the ORG case - law ” , “ arguments showing that examination of the cassation appeal would be justified ” ) were drafted in the broadest terms . It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of ORG . ORG considered the relevant requirements of Article CARDINAL and their interpretation by ORG to be vague and subjective and , in practice , known exclusively to ORG but not to those who wished to lodge a cassation appeal .

According to ORG , if the conditions for admissibility of a claim ( preliminary assessment of a cassation appeal ) were formulated in imprecise terms , the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body .

In this context the court criticised , in particular , the practice of “ simplified reasons ” . It held that the use of open - ended concepts by the legislator could not be considered , in itself , as unconstitutional , as it allowed the courts a certain flexibility , to better tailor their decisions to circumstances at hand . However , in such case the obligation to substantiate the legal norm was shifted to the stage of its application . This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision . Consequently , a general and imprecise procedural clause required a strong justification and indication of specific circumstances .

The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how , if at all , ORG had performed the necessary assessment to substantiate those vague terms . The case - law providing guidance on their application was thus practically non - existent . The court informed the addressee of its decision that the requirements of the given article had not been met , but did not indicate any circumstances which justified this conclusion . As a result , a principle of trust has been breached . Moreover , it was impossible for lawyers in general to recognise ORG understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future .

Consequently , the “ pre - judgment ” did not guarantee procedural predictability to the party , who has lodged a cassation appeal meeting all formal requirements . The right of access to a court had thus been transformed into a pretence of this right .

Nevertheless ORG found that it was the practice of ORG that deserved disapproval and not the relevant provisions , and the wording of those provisions could not be considered unconstitutional . In this context the court observed that the practice was not uniform and certain chambers of ORG justified their decisions in a much more elaborate and substantive way . The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment .

Accordingly , ORG refused to decide on the compatibility of those provisions with the LAW and discontinued the proceedings in this respect .

Article CARDINAL § CARDINAL of the LAW , which entered into force on DATE , provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Article CARDINAL of the LAW , insofar as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”

Article CARDINAL of LAW reads :

“ CARDINAL . The ORG shall , at a sitting in camera , discontinue the proceedings :

CARDINAL ) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible ;

CARDINAL ) in consequence of the withdrawal of the application , question of law or constitutional complaint ;

CARDINAL ) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the ORG .

If these circumstances come to light at the hearing , the ORG shall take a decision to discontinue the proceedings .

Item CARDINAL ( CARDINAL ) of the present Article does not apply if giving a decision on the compatibility with LAW of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights . ”

Article CARDINAL of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which this judgment was given was incompatible with LAW . Such a request can be lodged with the competent court within DATE from the date of the judgment of ORG .


Violation of Art. 10;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant , who is a journalist , was born in DATE and lives in GPE , GPE .

On DATE the applicant published in a DATE newspaper , PERSON , the following article :

“ ORG speed of the PERSON judiciary . The governor just a witness .

DATE , on DATE , at TIME another hearing will begin before ORG in a criminal case against PERSON , deputy mayor of GPE and PERSON , legal adviser . The bill of indictment includes charges against them that DATE , on DATE , they carried out a burglary in the office of TVK ORG , a private company which legally worked and leased the office from ORG - operative PERSON .

The case has already been pending for DATE . For DATE , the court has been unable to take evidence from governor PERSON , at that time mayor of GPE , the most important witness . On numerous occasions , he was unsuccessfully summoned before PERSON . PERSON was sending excuses to the court or did not attend hearings without any explanation .

For the first time , and so far the only time , the governor appeared before the court on DATE However , he could not be heard because the accused PERSON was absent , not for the first time , as he was quietly present at that time in the town hall situated ... QUANTITY away . It was – according to the observers of the case – another instance of dodging the proceedings in order to delay the date of delivery of a judgment . Protracting the case leads to the likelihood that the case will be discontinued or the accused will be acquitted . A judgment convicting PERSON would mean an interruption of his very lucrative career in local government .

In addition , it is a very annoying and dangerous case for governor PERSON . The evidence taken so far from witnesses clearly shows that the burglary in ORG took place with his knowledge and approval . On DATE of the attempt to take over the TV cable operator he telephoned police and asked for ' assistance with eviction ' – misleading the law enforcement officers . DATE after the burglary he informed the people of GPE – through the TV cable operator he had taken over – that the action was lawful and served the interests of the TV audience .

It is not known whether the court will ask the governor to explain these disturbing facts . It is also not known whether the court will finally decide to clarify the role played in the burglary by PERSON , at that time the town secretary and DATE the governor 's chef de cabinet . It appears from the evidence given by PERSON K. , a locksmith employed by ORG , that PERSON instructed him to take tools and to force open a door to the ORG 's office . In the view of many former GPE councillors , the list of accused in this case is too short by CARDINAL . However , it is not known whether governor PERSON will allow the court to finish this unusual case . ”

On DATE the applicant published in the same daily the following article :

“ A gypsy did it , but they are going to hang the blacksmith . A case concerning the burglary in ORG approaches the end .

DATE , on DATE , ORG finished the taking of evidence in the case concerning the burglary in the office of ORG in which the accused are PERSON , deputy mayor of GPE and PERSON GPE , legal adviser . The proceedings lasted DATE . A judgment will be delivered on DATE .

The PERSON court , after DATE of waiting for the busy governor of ORG , PERSON , was able at last to take evidence from him . The main witness in the case was hiding behind his lack of memory and the fact that on DATE , DATE of the burglary , he had been for DATE in ORG attending a meeting with governor PERSON . He called a local government team DATE which forced open a door and used violence against the employees of ORG – an inventory commission established by the municipal management . PERSON did not remember who exactly was entrusted with that task . The court did not try to clarify the role played in this criminal event by the then mayor , PERSON . It did not ask him why he had publicly , on television , supported an attempt to take over the television operator or why he had asked the police to ' assist in the eviction of ORG ' . In the view of many GPE councillors PERSON knew about the burglary and agreed to it . This is also shown by the fact that he did not punish the burglars – his subordinates – but systematically promoted them in local government .

The accused PERSON filed CARDINAL additional requests , which would have delayed the proceedings . The court dismissed them .

Counsel for ORG suggested that PERSON had broken into the offices of the cable operator to take revenge for the termination of a contract allowing him to provide television equipment maintenance services . PERSON claimed that ORG was taking revenge because he had discovered its ' swindles ' .

It is widely felt that only ' small fry ' appeared before the PERSON court . The real instigators of the burglary remain unpunished . ”

On DATE the applicant published the following article :

“ The end of a career of a mayor - burglar ? The end of GPE series .

DATE , on DATE , ORG , after DATE of considering a case concerning a burglary in [ the premises of ] ORG , gave judgment . [ The court ] found PERSON , deputy mayor and PERSON GPE , legal adviser , guilty of an attempt by local government officials to take over a private company – unprecedented in this country . The criminal proceedings against both accused were conditionally discontinued for DATE .

The court sentenced each of them to a fine of MONEY , which will go to a nursing home in GPE . They were each also ordered to pay a MONEY fee and PERCENT of the costs of the proceedings .

Counsel for auxiliary prosecutor PERSON , who represented ORG , declared that he would appeal , as he considered that the sentence was blatantly lenient . In his oral statement made before the judgment , he said that on CARDINAL DATE the municipal authorities had lynched ORG ' . In doing that , they showed ' a lack of basic legal culture ' and ' by using bandit tactics ' they wanted to resolve a dispute with a cable company . People like PERSON underlined the counsel – should not hold prominent posts in the town hall . The action of both accused deprived ORG of the ability to operate a network for DATE , which led to a loss of MONEY .

The advocate of the deputy mayor of ORG said that the list of accused was too short . He suggested that it should include also PERSON , mayor at that time and DATE governor of ORG , and PERSON , a former town secretary and DATE the governor 's chef de cabinet , since a burglary in ORG had been committed with their knowledge and approval . He defended his client by claiming that he had only wanted to make an inventory in ORG .

The accused PERSON asked to be acquitted . PERSON in his last statement attacked the counsel of ORG , claiming that he had been so active because he had expected from that company ' a financial bonus in the future ' .

Tadeusz L. stands in the next elections to the municipal council . If ORG upholds the sentence or increases it , the deputy mayor of GPE DATE even if he wins a seat – will lose it by virtue of the law . That will mean the end of his eightyear long , stormy and lucrative career in local government . ”

On unspecified date PERSON lodged with ORG a private bill of indictment . He charged the applicant with defamation . In particular , PERSON submitted that in the articles published on DATE the applicant made the following “ untrue allegations ” :

“ CARDINAL . called him ' a mayor - burglar ' ;

NORP described his career in local government as ' stormy ' and ' very lucrative ' ;

NORP stated that ' the action of both accused deprived ORG of the ability to operate a network for DATE , which led to a loss of MONEY ' ;

NORP considered that ' [ the court ] found deputy mayor PERSON , guilty of an attempt by local government officials to take over a private company – unprecedented in this country ' ; and

disseminated untrue information that he ' was absent , not for the first time , as he was quietly present at that time in the town hall ' . ”

The applicant was tried by ORG DATE . On DATE he was convicted of defamation under LAW . The criminal proceedings against him were then conditionally discontinued and he was ordered to pay MONEY to a charity . Furthermore , the applicant was ordered to reimburse the prosecutor MONEY for the costs of the proceedings . The trial court gave , in particular , the following reasons for its decision :

“ ( ... ) the accused did not show in a convincing manner that the allegations made by him were true .

Making a reference to ' a mayor - burglar ' in the title of the article published on DATE could be ambiguous and susceptible to various interpretations only because there was a question mark at the end of the title [ sic ] .

In the court 's view that [ question ] mark refers to the whole title and not only , as claimed by the accused , the words ' the end of career ' because coming to such a conclusion would be unjustified [ sic ] .

However , the court is of the view that although in the light of the court proceedings before the GPE court the description of ORG career in local government as ' stormy ' [ was justified ] , the use of the adjective ' lucrative ' with respect to that career can not be considered as true . At the time of publication of that article , the private prosecutor was a mayor but his remuneration did not justify the use by the author of the article of such a term . In view of the evidence ( ... ) one can not consider as truthful the accused 's claims that PERSON was receiving a kind of special profit [ .The ] amount of remuneration of a deputy mayor and the amount of councillors ' allowances is usually decided by the local government authorities chosen in democratic elections and even against the background of the generally bad economic situation of the majority of GPE population can not be considered as exceptionally lucrative . Moreover , in view of the declaration made by ORG it can not be accepted that [ his ] participation in CARDINAL foreign trips during his work in local government was a sort of special bonus .

With respect to the third charge , the accused 's defence that it was in fact a quotation from counsel for ORG is bound to give rise to doubts in view of the fact that it was not put in quotation marks , especially as the other statements made by that counsel were clearly put in MONEY .

In addition , the accused was unable to prove the losses of the cable television given in that paragraph by pointing to or submitting a document containing the calculation of those losses .

It also can not be accepted as entirely true ' that [ the court ] found deputy mayor PERSON L. , guilty of an attempt by local government officials to take over a private company – unprecedented in this country ' .

Firstly , because at the time of delivery of a judgment the statement was not legally valid and the use of such a term could have been misleading and also because a conditional discontinuation of the proceedings is not identical to the conviction of an accused , but this is precisely how this part of the article could be understood .

As far as the last charge is concerned , it should be underlined that the accused also did not prove [ his ] allegation that at the time when a hearing was held on CARDINAL before the PERSON court PERSON was present in the town hall . ( ... ) The evidence shows that the private prosecutor on DATE was in GPE on a business trip . ( ... )

Even if one accepts that the accused really saw [ PERSON ] car in TIME and subsequently [ T. Lubaszewski ] himself , TIME after the end of the hearing , this did not entitle the author of the article to use the terms contained in the article .

In conclusion , it should be observed that , in the view of the court , the evidence did not give grounds for accepting that the allegations made by the accused were true , especially as the legislator added another condition for accepting the impunity of the offence of defamation , namely that ( ... ) the allegation was made to defend a socially justified interest .

After analysing the degree of guilt and the danger to society of a continuous act committed by the accused , the court concluded that it could be described as insignificant . This conclusion was obviously influenced by the clearly visible antagonism between the accused and the private prosecutor .

The parties have been and are involved in at least several defamation cases , in which they play different roles . Those cases arise from the different political opinions of the parties and it is regrettable that they chose a courtroom as their arena for political disputes .

Contrary to the private prosecutor 's claim , one can not find motives of private vengeance in the press articles containing the defamatory allegations . The accused undoubtedly acted within the framework of acceptable press criticism [ . H]owever , in the court 's opinion he overstepped its limits and did not convincingly display journalistic diligence as he made allegations which were not properly verified .

Furthermore , taking into account the fact that the accused has no criminal record and his character and personal circumstances , the court has concluded that the measure of discontinuation of the criminal proceedings should be used in respect of him and his acts .

The court is of the view that the fact of finding that the accused has committed the act with which he was charged will in itself be first of all a lesson for him for the future .

In order to increase the educational effects of that measure , the court has ordered the accused to make a payment to a charity in an amount proportional to his financial standing . ( ... ) ”

The applicant appealed against his conviction but on DATE ORG dismissed his appeal .

Article CARDINAL of the CARDINAL Criminal Code reads as follows :

“ § CARDINAL . Anyone who imputes to another person , a group of persons , an institution , a legal person or an organisation without legal personality , such behaviour or characteristics , as may lower this person , group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position , occupation or type of activity , shall be liable to a fine , a restriction of liberty or imprisonment not exceeding DATE .

§ CARDINAL . If the perpetrator commits the act described in paragraph CARDINAL through a means of mass communication , he shall be liable to a fine , restriction of liberty or imprisonment not exceeding DATE . ”

§ CARDINAL . The prosecution takes place under a private bill of indictment . ”

Article CARDINAL § CARDINAL reads in so far as relevant :

“ Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in LAW CARDINAL § § CARDINAL or CARDINAL . ”

Articles CARDINAL et seq . of the CARDINAL Criminal Code concern the conditional discontinuation of criminal proceedings .

Article CARDINAL reads , in so far as relevant :

“ § CARDINAL . The court may conditionally discontinue the criminal proceedings if the guilt and social danger of the act are not significant and the circumstances of its commission do not raise doubts , and that the attitude of the perpetrator not previously punished for an intentional offence , his personal characteristics and his way of life to date provide reasonable grounds for the assumption that , even in the event of the discontinuance of the proceedings , he will observe the legal order and in particular will not commit an offence . ”

Article CARDINAL provides , in so far as relevant :

“ § CARDINAL . The conditional discontinuance shall apply for a probationary term DATE , which shall run from the date the judgment becomes valid and final .

§ CARDINAL . In discontinuing conditionally the criminal proceedings , the court shall require the perpetrator to redress in whole or in part the damage ... ”

Article DATE provides :

“ § CARDINAL . The court shall resume the criminal proceedings , if the perpetrator has during the probation period committed an intentional offence , for which he has been finally convicted .

§ CARDINAL . The court may resume the criminal proceedings if the perpetrator during the probation period flagrantly breaches the legal order , and in particular if he committed an offence other than that specified in LAW , evades supervision , does not perform the obligations or penal measure imposed or if he does not fulfil the settlement concluded with the injured person .

§ CARDINAL . The court may resume the criminal proceedings if , after the decision on the conditional discontinuance was given but before it became final , the perpetrator flagrantly breached the legal order , and in particular if he committed an offence within that time .

§ CARDINAL . The criminal proceedings conditionally discontinued may not be resumed any DATE after the expiration of the probation period . ”