On DATE ORG convicted the applicant , a NORP national born in DATE , on charges of receiving stolen goods and theft and sentenced him to DATE imprisonment . The execution of the sentence was suspended on probation for DATE .

On DATE the ORG convicted the applicant on charges of negligent drunken driving and negligent driving without licence and imposed a fine . Thereupon , ORG decided to prolong by DATE the applicant 's probationary period .

On DATE ORG charged the applicant and CARDINAL co - accused with several counts of fraud , committed DATE and DATE .

NORP Moreover , on DATE the applicant was issued with a penal order ( Strafbefehl ) by ORG in the framework of a summary procedure . He was sentenced to a fine of MONEY ( DEM - approximately CARDINAL Euro ) per day for DATE for an offence of fraud , committed in DATE to the detriment of PERSON Upon the applicant 's objection , lodged with the assistance of Mr GPE , main proceedings were instituted before ORG . On DATE these proceedings and the proceedings concerning the charges of DATE , were joined .

NORP In DATE the GPE ORG convicted the applicant of fraud and sentenced him to DATE imprisonment . The proceedings concerning the charge of fraud to the detriment of PERSON were provisionally stayed pursuant to section CARDINAL ( CARDINAL ) of LAW as it appeared unnecessary to sanction the offence in question separately , the applicant having been sentenced to DATE imprisonment in respect of the other fraud offences .

On DATE ORG issued a penal order against the applicant , convicting him of fraud , committed in DATE . He was sentenced to a fine of DEM DATE for DATE .

When the postman found nobody at the applicant 's home , the order was served in accordance with the relevant legal provisions , by way of a notification in his letter - box on DATE to collect the said decision deposited at the local post office in his absence . Since the applicant did not lodge an objection in time , the penal order acquired legal force as the final judgment in the matter on DATE . On DATE the ORG granted the applicant 's request for retrial .

On DATE ORG informed the applicant of its intention to revoke the suspension of his sentence of DATE and invited him to comment within DATE after service of the letter . Due to the applicant 's absence from home , the letter was served by way of a notification in his letter - box on DATE to collect the said letter at the local post office .

On DATE the ORG revoked the suspension of the applicant 's sentence to DATE imprisonment , imposed on DATE .

In the reasons given for its decision , ORG , referring to section CARDINALf ( CARDINAL)(CARDINAL ) of LAW , found that the applicant had committed criminal offences during the period of probation and had thereby shown that he did not fulfil the expectations upon which the suspension of the sentence was based .

ORG noted that , subsequent to the said suspension , the applicant had been convicted of further criminal offences and that these convictions had become final . Thus he had been convicted of traffic offences by ORG on DATE and of fraud by ORG on DATE . The court considered that in particular the applicant 's conviction of another offence relating to property had shown that he did not fulfil the expectations upon which the suspension of his sentence was based . Taking into account that the period of suspension had already once been prolonged , other , more lenient measures than revoking the suspension were not possible .

Due to the applicant 's absence , the order was also served by way of a notification in his letter - box on DATE to collect the decision of CARDINAL DATE deposited at the local post .

On DATE the applicant , assisted by PERSON , submitted an application for the reinstatement of the proceedings against the decision of DATE and lodged an appeal against the said decision .

NORP By letter of CARDINAL DATE ORG informed the applicant 's counsel that , considering ORG decision to stay the execution of the sentence ( PERSON ) until DATE , it would await the outcome of the proceedings before ORG regarding his request for reinstatement .

On DATE ORG decided to grant the applicant 's request for reinstatement and adjourned the appeal proceedings to await the final outcome of the FAC proceedings relating to his request for reinstatement . ORG considered that the question whether or not the applicant had committed a further offence of fraud was decisive for its decision on revoking his suspension . It noted that this request had been unsuccessful at first instance , but appeal proceedings were pending . ORG dismissed the applicant 's request to await the outcome of the proceedings relating to his request for retrial .

On DATE ORG informed the applicant that , following deliberations , the case remained adjourned to await the outcome of the FAC proceedings for reinstatement .

On DATE a hearing took place before ORG , which heard the statements made by PERSON and the further witness , police officer PERSON , in the presence of the applicant 's counsel . The applicant , waiting outside the court building , did not attend the hearing in order not to be seen in case of a confrontation with PERSON , as suggested by his counsel .

Following the hearing , ORG dismissed the applicant 's appeal against the decision of DATE on the ground that the reasons given in that decision were correct in their conclusion .

According to ORG , the applicant “ had not fulfilled the expectations upon which the suspension of his sentence ... was based , as he committed new offences during the period of suspension ” ( “ hat die Erwartungen , die der ... PERSON zugrunde lagen , nicht erfüllt , weil er in der FAC begangen hat ” ) .

In its reasoning , ORG noted the applicant 's final conviction by ORG on DATE .

As regards the penal order issued by ORG on DATE , it considered that the applicant 's pending request for retrial might result in the hearing of numerous witnesses . As the prolonged period of suspension had already expired DATE , ORG found that it could not await the outcome of these proceedings .

ORG turned next to the proceedings pending before ORG . It noted that , following the applicant 's successful appeal against the penal order of DATE , ORG had joined these and further criminal proceedings involving the applicant and CARDINAL other accused and relating to several charges of fraud . In the latter proceedings , trial proceedings had not yet been opened on account of difficult investigations . ORG stated that it would not await the outcome of these proceedings either . Rather , it opted for a procedure under section CARDINAL of LAW to examine the question whether or not , in addition to the conviction by ORG of DATE , the applicant 's criminal offence to the detriment of Mr. PERSON could constitute a reason for revoking the suspension of his sentence .

ORG considered that , having questioned Mr. PERSON and a further witness , the police officer PERSON , in presence of the applicant 's defence counsel , “ it had been able to obtain certainty that the applicant was guilty of fraud to the detriment of witness ... [ H. ] ( section CARDINAL of LAW ) ” ( “ hat dem NORP ... die PERSON verschafft , dass sich der Beschwerdeführer gegenüber dem Zeugen ... [ H. ] des Betruges schuldig gemacht hat ( § CARDINAL StGB ) ” ) .

In this respect , ORG took note of both witnesses ' indications as to the circumstances of the offence in question as well as to the criminal information laid by the victim H. and the subsequent investigations . Thus , ORG found that the applicant had offered PERSON a mobile phone and a video camera at a low price . When the transaction was to be carried out some time later at a parking place on the motorway , the applicant had taken PERSON 's money and disappeared without handing over the promised goods . While PERSON had not identified the applicant on police photographs shown to him at the police department DATE after the offence , he did recognise him in a collection of police photographs which had been presented to him by the police officer ORG considered that both witnesses ' statements were true . The court argued that PERSON had openly talked about his bad conscience regarding the low price of the CARDINAL objects and he had also admitted that , because he was ashamed , he had not told the truth as to the circumstances of the applicant 's disappearance on the occasion of his questioning by the police . Moreover , police officer PERSON had remembered many details and had also explained an amendment to the minutes of H. 's questioning .

Furthermore , ORG indicated that it had inspected the files of the proceedings pending before ORG inasmuch as the collection of police photographs was concerned . ORG noted that , when the scene of identifying the applicant had been re - enacted , the witness PERSON , following an initial hesitation as to a photograph showing another person , had clearly recognised the photograph showing the applicant . In these circumstances , ORG considered not necessary to re - enact the consultation of police photographs , which had been taken place at the police department DATE after the offence .

ORG did not take up the suggestion of the applicant 's counsel for an open confrontation between the witness PERSON and several persons , including the applicant . It considered that so much time had elapsed since the offence that the applicant 's appearance could have considerably changed . Furthermore , it had not been sure whether the applicant would have participated in such a confrontation . In this situation , it rather relied on the memory of the witness H.

ORG concluded that the strict conditions were met for considering an offence , prior to final conviction , as a reason for revoking a suspension . In cases as the present one , awaiting the final conviction would , on account of the considerable possibilities of delay , lead to the unbearable result that criminal offenders could commit further offences during the probationary period without any risk of suffering disadvantages .

According to ORG , the applicant 's conviction by ORG and his criminal offence against PERSON had shown that , contrary to the initial prognosis , the applicant was not able to live a law - abiding life . While the conviction by ORG merely disclosed a general lack of reliability and could not , taken alone , justify revoking the suspension , the applicant had proceeded in the case PERSON in a way similar to that followed for the offence underlying his DATE conviction . Accordingly , the suspended prison sentences had had no impact on the applicant . More lenient measures could not therefore be envisaged .

The decision was served on the applicant 's counsel on DATE .

On DATE ORG refused to admit the applicant 's constitutional complaint .

Subsequently , ORG at ORG suspended the execution of the sentence pending the proceedings before the ORG .

Sections CARDINAL of the Penal Code govern the suspended execution of sentences . Section CARDINAL concerns the conditions for suspension and reads as follows :

“ CARDINAL . Upon a sentence of imprisonment of DATE , the court shall suspend the execution of the punishment and grant probation if it can be expected that the sentence will serve the convicted person as a warning and he will commit no further crimes in the future even without the influence exerted by serving the sentence . Particularly to be considered are the personality of the convicted person , his previous history , the circumstances of his offence , his conduct after the offence , his living conditions and the effects which can be expected as a result of the suspension .

( CARDINAL ) The court may also suspend the execution of a longer term of imprisonment which does not exceed DATE under the provisions of subsection ( CARDINAL ) and grant probation if a comprehensive evaluation of the offence and personality of the convicted person reveals the existence of special circumstances . In making the decision the efforts of the convicted person to make restitution for the harm caused by the offence should particularly be considered . ”

According to section DATE , the competent court determines the period of probation of DATE . It may subsequently be reduced to the minimum or prolonged to the maximum before its expiration . The court may impose conditions on the convicted person ( section PERSON ) , and may issue instructions to the convicted person for the duration of his period of probation ( section DATE ) or place the convicted person under the supervision of a probationary officer ( section ORG ) . According to section DATE , such decisions may be taken or amended at a later stage .

As regards the revocation of a suspension , section CARDINALf of the Penal Code provides inter alia that

“ CARDINAL . The court shall revoke the suspension of a sentence if the convicted person commits a criminal offence during the period of probation and , thereby , shows that he did not fulfil the expectations upon which the suspension of the sentence was based

NORP The court shall , however , refrain from revocation when it suffices :

( CARDINAL . ) to impose further conditions or instructions , in particular to place the convicted person under the supervision of a probation officer ; or

( CARDINAL ) NORP to prolong the period of probation ... ”

Section CARDINAL of the Code of Criminal Procedure provides for the provisional stay of the prosecution in the following terms :

“ CARDINAL . NORP The public prosecutor may decide not to prosecute

( CARDINAL ) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect to be imposed - for another offence ... ...

Once proceedings have been instituted , the court may provisionally stay them at any stage on an application by the public prosecutor . .... ”

Court decisions other than conviction and sentence may be challenged in proceedings instituted under section CARDINAL of LAW . In such proceedings , the appellate court may order investigations or proceed to own investigations ( section CARDINAL ( CARDINAL ) ) .


Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione temporis;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

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

On DATE the Foreign Ministers of the NORP GPE and GPE signed a non - aggression treaty ( known as LAW ) which included an additional secret protocol whereby the parties agreed to settle the map of their “ spheres of interests ” in the event of a future “ territorial and political rearrangement ” of the then independent countries of LOC , including GPE . According to the protocol , the eastern part of NORP territory was “ to fall to ” GPE .

On DATE GPE invaded GPE , starting the Second World War . On DATE ORG marched into NORP territory , allegedly acting to protect the NORP and NORP living in the eastern part of GPE because ORG had collapsed under the NORP attack and could no longer guarantee the security of its own citizens . ORG did not offer any military resistance . The GPE annexed the territory newly under its control and in DATE declared that the CARDINAL NORP citizens who lived there were henceforth NORP citizens .

In the wake of ORG advance around CARDINAL NORP soldiers , border guards , police officers , prison guards , ORG officials and other functionaries were detained . After they had been disarmed , CARDINAL of them were set free ; the others were sent to special prison camps established by the FAC ( ORG , a predecessor of the ORG ) in GPE , PERSON and ORG . On DATE it was decided that the NORP officer corps should be billeted at the camps in GPE and ORG and the remaining functionaries , including the police officers and prison guards , in PERSON .

NORP In DATE Mr PERSON , head of the GPE , submitted to PERSON , Secretary General of ORG , a proposal to approve the shooting of NORP prisoners of war on the grounds that they were all “ enemies of the NORP authorities and full of hatred towards the NORP system ” . The proposal specified that the prisoner - of - war camps held CARDINAL former NORP officers , officials , landowners , police officers , gendarmes , prison guards , settlers and intelligence officers , and that the prisons in the western regions of GPE and GPE accommodated a further CARDINAL former NORP citizens who had been arrested .

On DATE the ORG of ORG of ORG , the highest governing body of GPE , took the decision to consider “ using a special procedure ” and employing “ capital punishment – shooting ” in the case of CARDINAL former NORP officers held in the prisoner - of - war ( POW ) camps , as CARDINAL members of various counter - revolutionary and espionage organisations , former landowners , industrialists , officials and refugees held in the prisons of western GPE and GPE . The cases were to be examined “ without summoning the detainees and without bringing any charges , with no statement concluding the investigation and no bill of indictment ” . Examination was delegated to a CARDINAL - person panel ( “ troika ” ) composed of ORG officials , which operated on the basis of lists of detainees compiled by the regional branches of the FAC . The decision on the execution of the NORP prisoners was signed by all the members of the ORG , including PERSON , PERSON , PERSON , Molotov , GPE and GPE .

The killings took place in DATE and DATE . Prisoners from the PERSON camp were killed at a site near GPE , known as ORG ; those from the ORG camp were shot in the GPE NKVD prison and their bodies were buried near the village of Pyatikhatki ; the police officers from PERSON were killed in the GPE ( now Tver ) NKVD prison and buried in ORG . The circumstances of the execution of the prisoners from the prisons in western GPE and GPE have remained unknown to date .

The precise numbers of murdered prisoners were given in a note which PERSON , Chairman of ORG ( ORG ) , wrote on DATE to PERSON , Secretary General of ORG : “ All in all , on the basis of decisions of the NORP ORG ’s special troika , a total of CARDINAL persons were shot , CARDINAL of them in PERSON ( LOC ) , CARDINAL in the ORG camp near GPE , CARDINAL in the PERSON camp ( NORP district ) and CARDINAL in other camps and prisons in western GPE and GPE ” .

In DATE and DATE , first NORP railroad workers and then ORG discovered mass burials near ORG . An international commission consisting of CARDINAL forensic experts and their support staff from GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE was set up and conducted the exhumation works from DATE . The remains of CARDINAL NORP officers were excavated , of whom CARDINAL were identified . The commission concluded that the NORP had been responsible for the massacre .

The NORP authorities responded by putting the blame on the NORP who DATE according to GPE – had in DATE allegedly taken control of the NORP prisoners and had murdered them . Following the liberation of the GPE district by ORG in DATE , the ORG set up a special commission chaired by PERSON ORG which purported to collect evidence of NORP responsibility for the killing of the NORP officers . In its communiqué of DATE , the commission announced that the NORP prisoners had been executed by the NORP in DATE .

On DATE , in the course of the trial of NORP war criminals before ORG , the NORP prosecutor cited the ORG commission ’s report in seeking to charge the NORP forces with the shooting of CARDINAL NORP prisoners in DATE . The charge was dismissed by the GPE and NORP judges for lack of evidence .

On DATE PERSON wrote the above - mentioned note to PERSON , recommending “ the destruction of all the [ CARDINAL ] records on the persons shot in DATE in the ... operation ... [ T]he reports of the meetings of the FAC GPE troika that sentenced those persons to be shot , and also the documents on execution of that decision , could be preserved . ”

The remaining documents were put in a special file , known as “ package no . CARDINAL ” , and sealed . In NORP times , only the Secretary General of ORG had the right of access to the file . On DATE its contents were officially made public on the website of ORG ( rusarchives.ru ) . The file contained the following historical documents : PERSON note of DATE , the ORG ’s decision of DATE , the pages removed from TIME meeting and PERSON PERSON ’s note of CARDINAL DATE .

The first applicant , Mr PERSON , was born in DATE . He is the son of Mr PERSON , born in DATE , who was a lieutenant in ORG before the Second World War .

The second applicant , Mr PERSON , was born in DATE . He is the grandson of Mr PERSON , born in DATE , a lieutenantcolonel in ORG .

Both Mr PERSON and Mr PERSON were taken prisoner of war during the NORP invasion of GPE in DATE and sent to the ORG camp in the GPE . Mr PERSON was listed as no . ORG among the prisoners in the camp , and PERSON as no . CARDINAL . They were subsequently transferred to a prison in GPE and executed in DATE .

The first and second applicants , PERSON and ORG , were born respectively in DATE and DATE . They are the daughter and wife of Mr Wincenty Wołk , born in DATE , who was a lieutenant in a heavy artillery unit of ORG before the Second World War . He was taken prisoner of war by ORG in TIME DATE and held in GPE special camp ( listed in position CARDINAL on ORG dispatching list CARDINAL/CARDINAL MONEY ) . He was killed on CARDINAL DATE and buried in GPE . His body was identified during the DATE exhumation ( no . CARDINAL ) .

The third applicant , PERSON , was born in DATE . She is the granddaughter of Mr PERSON , born in DATE , who was a reserve officer in ORG . He was taken prisoner of war by ORG at the NORP border on around DATE and held in GPE special camp ( listed in position CARDINAL on list CARDINAL ) . He was killed and buried in PERSON . His body was identified during the DATE exhumation ( no . CARDINAL ) .

The fourth applicant , PERSON , was born in DATE . She is the daughter of PERSON , born in DATE . An officer of ORG , PERSON was taken POW by the NORP near GPE , GPE , and detained in the special FAC camp at ORG ( pos . CARDINAL ) . He was presumed killed in GPE and buried at Pyatikhatki near GPE ( now GPE ) .

The fifth applicant , Mr PERSON , was born in DATE . He is the son of PERSON , born in DATE . The fifth applicant ’s father , a commander of the police station at the NORP - Soviet border in GPE , was arrested there by NORP troops and taken to the special GPE camp at PERSON ( position CARDINAL on list CARDINAL/CARDINAL ) . He was killed in Tver and buried in ORG .

The sixth applicant , Mr PERSON , was born in DATE . His father , PERSON , born in DATE , was a police officer working in Luck in eastern GPE . In DATE he was arrested by NORP troops and placed in the PERSON camp ( position CARDINAL on list PERSON ) . He was killed in Tver and buried in ORG .

The seventh applicant , Mr PERSON , was born in DATE . His father , Mr PERSON , born in DATE , was headmaster of a primary school in GPE , GPE . He was arrested by the NORP and detained at the ORG camp ( pos . CARDINAL ) . He was presumed killed in GPE and buried in Pyatikhatki .

The eighth and ninth applicants , Mr PERSON and PERSON PERSON , born respectively in DATE and DATE , are the children of PERSON DATE PERSON . Their father was born in DATE and served as a doctor in ORG . He was taken prisoner of war at GPE , GPE , and held at the ORG camp ( pos . DATE ) . He was presumed killed in GPE and buried in Pyatikhatki .

The tenth and eleventh applicants , PERSON and Ms PERSON , born respectively in DATE and DATE , are the daughters of Mr Michał Adamczyk . Born in DATE , he was the commander of the GPE police station . He was arrested by the NORP , detained at the PERSON camp ( position CARDINAL on list CARDINAL/CARDINAL ) , killed in Tver and buried in ORG .

The twelfth applicant , PERSON , born in DATE , is the daughter of PERSON . Her father , a NORP officer , was born in DATE and was held at the PERSON camp after his arrest by NORP troops . He was killed and buried in PERSON ; his body was identified during the DATE exhumation .

The thirteenth applicant , Mr PERSON , born in DATE , is a nephew of Mr PERSON . PERSON , born in DATE , was held at the ORG camp ( pos . CARDINAL ) and was presumed killed in GPE and buried in Pyatikhatki . A list of ORG prisoners which included his name was retrieved from the coat pocket of a NORP officer whose remains , with gunshot wounds to the head , were excavated during a joint NORP exhumation near GPE in DATE .

On DATE , during a visit by NORP President PERSON to GPE , the official news agency of the GPE published a communiqué which affirmed , on the basis of newly disclosed archive materials , that “ PERSON , PERSON and their subordinates bore direct responsibility for the crime committed in GPE ” .

On DATE a district prosecutor ’s office in GPE opened , on its own initiative , a criminal investigation following the discovery of mass graves of NORP citizens in the city ’s wooded park . On DATE ORG ) prosecutor ’s office instituted a criminal case into “ the disappearance ” in DATE of the NORP prisoners of war held in the FAC camp in PERSON . On DATE the Chief Military Prosecutor ’s Office joined the CARDINAL criminal cases under the number CARDINAL and assigned it to a group of military prosecutors .

In DATE , NORP and NORP specialists carried out exhumations of corpses at the mass burial sites in GPE , ORG and PERSON . They also reviewed the archive documents relating to the PERSON massacre , interviewed CARDINAL witnesses and commissioned medical , graphology and other forensic examinations .

On DATE NORP President PERSON revealed that the NORP officers had been sentenced to death by PERSON and the ORG of ORG . The director of ORG handed over to the NORP authorities a number of documents , including the decision of DATE . During an official visit to GPE on DATE , President PERSON paid tribute to the victims in front of ORG in GPE .

In DATE prosecutors from GPE , GPE , GPE and GPE held a working meeting in GPE , during which they reviewed the progress of the investigation in case no . CARDINAL . The participants agreed that the NORP prosecutors would ask their NORP and NORP counterparts for legal assistance to determine the circumstances of the execution in DATE of CARDINAL NORP citizens who had been arrested .

On DATE the NORP authorities informed their NORP counterparts that they had not been able to uncover any documents relating to the execution of NORP prisoners of war in DATE . In DATE the NORP authorities produced documents concerning the transfer of NORP prisoners from the ORG camp to the ORG prison in GPE .

In DATE , DATE and DATE the President of ORG ( INR ) repeatedly , but unsuccessfully , contacted the NORP ORG with a view to obtaining access to the investigation files .

On DATE the Chief Military Prosecutor ’s Office decided to discontinue criminal case no . CARDINAL , apparently on the ground that the persons allegedly responsible for the crime had already died . On DATE ORG for ORG classified CARDINAL volumes of the case file – out of a total of CARDINAL volumes – as “ top secret ” and a further CARDINAL volumes as “ for internal use only ” . The decision to discontinue the investigation was given “ top - secret ” classification and its existence was only revealed on DATE at a press conference given by ORG .

Further to a request from ORG for a copy of the decision of DATE , ORG refused to produce it , citing its secrecy classification . However , it transpired from their submissions that the investigation had been discontinued on the basis of LAW ( CARDINAL ) of LAW in connection with the PERSON death .

DATE CARDINAL prosecutors from the INR conducting the investigation into the PERSON massacre and the chief specialist of ORG for ORG against the NORP Nation visited GPE at the invitation of ORG . They examined the CARDINAL volumes of case no . CARDINAL which were not classified , but were not allowed to make any copies .

On DATE the NORP President conveyed to the Speaker of the NORP ORG CARDINAL volumes of the PERSON investigation files . In total , according to the information submitted by ORG , the NORP authorities handed over to them certified copies of CARDINAL volumes that contained CARDINAL pages .

In DATE , Mr DATE a NORP lawyer retained by the applicant PERSON and by the applicant PERSON mother DATE applied to ORG with a request to be provided with documents concerning Mr PERSON , Mr PERSON and a third person .

On DATE ORG replied to counsel that ORG was investigating a criminal case concerning the execution of NORP officers in DATE . In DATE the investigation had recovered CARDINAL bodies in the GPE , GPE and GPE regions and identified some of them , including Mr PERSON and Mr PERSON . Their names had also been found on the list of prisoners in the ORG camp . Any further documents concerning them had been previously destroyed .

On DATE Mr PERSON formally requested the Chief Military Prosecutor ’s Office to recognise Mr PERSON ’s and PERSON PERSON ’s rights as relatives of the executed NORP officers and to provide them with copies of the procedural documents and also of personal documents relating to Mr PERSON and Mr PERSON .

DATE . On DATE the Chief Military Prosecutor ’s Office replied that Mr PERSON and Mr PERSON were listed among the prisoners of the ORG camp who had been executed in DATE by the FAC and buried near GPE . No further materials concerning those individuals were available . Copies of the procedural documents could only be given to the officially recognised victims or their representatives .

Subsequently the applicants Mr PERSON and PERSON retained NORP counsel , PERSON . On DATE he asked the Chief Military Prosecutor ’s Office for permission to study the case file .

On DATE the Chief Military Prosecutor ’s Office replied to PERSON that he would not be allowed to access the file because his clients had not been formally recognised as victims in the case .

Counsel lodged a judicial appeal against ORG Office ’s refusals of DATE and DATE . He submitted , in particular , that the status as a victim of a criminal offence should be determined by reference to the factual circumstances , such as whether or not the individual concerned had sustained damage as a result of the offence . From that perspective , the investigator ’s decision to recognise someone as a victim should be viewed as formal acknowledgement of such factual circumstances . Counsel sought to have the applicants PERSON and PERSON recognised as victims and to be granted access to the case file .

On DATE ORG of ORG rejected the complaint . It noted that , although Mr PERSON and Mr PERSON had been listed among the prisoners in the ORG camp , their remains had not been among those identified by the investigation . Accordingly , in ORG view , there were no legal grounds to assume that they had died as a result of the offence in question . As to the materials in the case file , ORG observed that the decision to discontinue the criminal proceedings dated DATE had been declared a ORG secret and , for that reason , foreign nationals could not have access to it .

On DATE ORG of GPE upheld that judgment on appeal , reproducing verbatim the reasoning of ORG .

On DATE counsel for the applicants filed a judicial appeal against the prosecutor ’s decision of DATE . They submitted that the applicants’ relatives had been among the imprisoned NORP officers whose execution had been ordered by ORG on DATE . However , the applicants had not been granted victim status in case no . CARDINAL and could not file motions and petitions , have access to the file materials or receive copies of the decisions . Counsel also claimed that the investigation had not been effective because no attempt had been made to take biological samples from the applicants in order to identify the exhumed human remains .

On DATE ORG of ORG dismissed the appeal . It found that in DATE ORG and ORG of the Polish ORG had excavated the remains and then reburied them , without identifying the bodies or counting them . A subsequent excavation in DATE had only identified CARDINAL persons and the applicants’ relatives had not been among those identified . ORG acknowledged that the names of the applicants’ relatives had been included in the FAC lists for the PERSON , ORG and ORG camps ; however , “ the ‘ PERSON investigation ... did not establish the fate of the said individuals . ” As their bodies had not been identified , there was no proof that the applicants’ relatives had lost their lives as a result of the crime of abuse of power ( Article CARDINAL of the DATE NORP Criminal Code ) referred to in the decision of DATE . Accordingly , there was no basis for granting victim status to the applicants under LAW . Moreover , classified materials could not be made accessible to “ representatives of foreign States ” .

Counsel submitted a statement of appeal in which they pointed out that the lack of information about the fate of the applicants’ relatives had been the result of an ineffective investigation . The CARDINAL persons had been identified only on the basis of the military identity tags found at the burial places and the investigators had not undertaken any measures or commissioned any forensic examination to identify the exhumed remains . Furthermore , it was a publicly known fact that the DATE excavation had uncovered the remains of CARDINAL people , of whom CARDINAL individuals had been identified . Among those identified were CARDINAL persons whose relatives had been claimants in the proceedings . The granting of victim status to the claimants would have allowed the identification of the remains with the use of genetic methods . Finally , counsel stressed that the PERSON criminal case file did not contain any information supporting the conclusion that any of the NORP officers taken from the FAC camps had survived or died of natural causes .

On DATE ORG of GPE upheld the judgment of DATE in its entirety . It repeated verbatim extensive passages of the findings of ORG , but also added that the decision of DATE could not be quashed because the prescription period had expired and because the proceedings in respect of certain suspects had been discontinued on “ rehabilitation grounds ” .

On DATE Memorial , a NORP human - rights non - governmental organisation , lodged an application with ORG office to declassify the decision of DATE . In its answer dated DATE , the prosecutor ’s office informed PERSON that it was not competent to set aside the classified status which had been approved on DATE by ORG for ORG ( “ the Commission ” ) .

On DATE Memorial applied to the Commission for declassification of the decision of CARDINAL DATE , claiming that the classification of the materials of the PERSON investigation was morally and legally unacceptable and that it had also been in breach of section CARDINAL of LAW which precluded classification of any information about violations of human rights . By letter of CARDINAL DATE , the ORG replied to PERSON that their application had been examined and rejected , without providing further details .

Memorial challenged the ORG ’s refusal before ORG . At the hearing on DATE the court read out the ORG ’s letter of DATE addressed to the presiding judge . The letter stated that the Commission had not made any decision on DATE to classify the decision of ORG office from DATE .

To ascertain which authority was actually responsible for the classification of the decision of DATE , the court summoned representatives of the Commission and of ORG office to the following hearing . That hearing was held in camera and the participants were forbidden to reveal any information from the hearing . However , it became publicly known that ORG requested ORG to summon representatives of ORG .

On DATE ORG rejected , following another in camera sitting , PERSON ’s application to declassify the decision of CARDINAL DATE . A copy of ORG decision was not made available to the ORG .

Most applicants repeatedly applied to different NORP authorities , first and foremost the Chief Military Prosecutor ’s Office , for information on the PERSON criminal investigation and for the rehabilitation of their relatives .

By a letter of DATE sent in response to a rehabilitation request by PERSON , ORG confirmed that her husband Mr Wincenty Wołk had been held as a prisoner of war in the PERSON camp and had then been executed , along with other prisoners , in DATE . It was stated that her application for rehabilitation would only be considered after the conclusion of the criminal investigation .

Following the discontinuation of the investigation in case no . CARDINAL , on DATE PERSON asked ORG for a copy of the decision on discontinuation of the investigation . By letter of CARDINAL DATE the prosecutor ’s office refused to provide it , citing its top - secret classification . On DATE the NORP Embassy in GPE asked the prosecutor ’s office for an explanation concerning the rehabilitation of Mr GPE . In a letter of DATE , the prosecutor ’s office expressed the view that there was no legal basis for the rehabilitation of Mr PERSON or the other NORP citizens because the investigation had not determined which provision of the DATE LAW had been the basis for their repression . A similarly worded letter of CARDINAL DATE refused a further request to the same effect by PERSON .

On DATE the Chief Military Prosecutor ’s Office rejected a request for rehabilitation submitted by counsel on behalf of all the applicants . The prosecutor stated that it was not possible to determine the legal basis for the repression against NORP citizens in DATE . Despite the existence of some documents stating that the applicants’ relatives had been transferred from the ORG camps at ORG , GPE and GPE , the joint efforts by NORP , NORP , NORP and NORP investigators had not uncovered any criminal files or other documents relating to their prosecution in DATE . In the absence of such files it was not possible to decide whether LAW would be applicable . Furthermore , the prosecutor stated that the remains of the applicants’ relatives had not been discovered among the human remains found during the exhumation works .

DATE . Counsel lodged a judicial appeal against the prosecutor ’s refusal .

After several rounds of judicial proceedings , on DATE ORG of GPE dismissed the appeal . While the court confirmed that the names of the applicants’ relatives had featured on the FAC lists of prisoners , it pointed out that CARDINAL bodies had been identified as a result of the exhumations conducted in the context of case no . CARDINAL and that the applicants’ relatives had not been among those identified . The court further found that there was no reason to assume that the CARDINAL NORP prisoners of war ( the applicants’ relatives ) had actually been killed , and that NORP counsel had no legal interest in the rehabilitation of NORP citizens .

On DATE ORG rejected , in a summary fashion , an appeal against ORG judgment .

On DATE ORG , the lower chamber of ORG , adopted a statement entitled “ On the PERSON tragedy and its victims ” which read , in particular , as follows :

“ DATE , CARDINAL of NORP citizens held in the prisoner - of - war camps of the FAC of the GPE and in prisons in the western regions of the NORP SSR and NORP SSR were shot dead .

The official NORP propaganda attributed responsibility for this atrocity , which has been given the collective name of the PERSON tragedy , to NORP criminals ... In DATE our country made great strides towards the establishment of the truth about the PERSON tragedy . It was recognised that the mass extermination of NORP citizens on GPE territory during the Second World War had been an arbitrary act by the totalitarian State ...

The published materials that have been kept for DATE in secret archives not only demonstrate the scale of this terrible tragedy but also attest to the fact that the PERSON crime was carried out on the direct orders of PERSON and other NORP leaders ...

Copies of many documents which had been kept in the closed archives of the ORG of ORG of GPE have already been handed over to the NORP side . The members of ORG believe that this work must be carried on . It is necessary to continue studying the archives , verifying the lists of victims , restoring the good names of those who perished in GPE and other places , and uncovering the circumstances of the tragedy ... ”

The Convention ( IV ) respecting the Laws and Customs of War on Land and its annex : Regulations concerning the Laws and Customs of War on Land ( The GPE , DATE ) , to which GPE but not the GPE was a party , provided as follows :

“ Art . CARDINAL . Prisoners of war are in the power of the hostile Government , but not of the individuals or corps who capture them .

They must be humanely treated .

Art . CARDINAL . In addition to the prohibitions provided by special Conventions , it is especially forbidden –

( b ) To kill or wound treacherously individuals belonging to the hostile nation or army ;

( c ) To kill or wound an enemy who , having laid down his arms , or having no longer means of defence , has surrendered at discretion ...

Art . CARDINAL . No general penalty , pecuniary or otherwise , shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible . ”

The Convention relative to the Treatment of Prisoners of War ( GPE , DATE ) provided as follows :

“ Art . CARDINAL . Prisoners of war are in the power of the hostile Government , but not of the individuals or formation which captured them .

They shall at all times be humanely treated and protected , particularly against acts of violence , from insults and from public curiosity .

Measures of reprisal against them are forbidden .

Art . CARDINAL . No prisoner of war shall be sentenced without being given the opportunity to defend himself .

No prisoner shall be compelled to admit that he is guilty of the offence of which he is accused .

Art . CARDINAL . A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power . ”

The Charter ( Statute ) of ORG ( Nuremberg Tribunal ) , set up in pursuance of the agreement signed on DATE by ORG , GPE , GPE and the GPE , contained the following definition of crimes in LAW

“ The following acts , or any of them , are crimes coming within the jurisdiction of the ORG for which there shall be individual responsibility :

( a ) crimes against peace : namely , planning , preparation , initiation or waging of a war of aggression , or a war in violation of international treaties , agreements or assurances , or participation in a common plan or conspiracy for the accomplishment of any of the foregoing ;

( b ) war crimes : namely , violations of the laws or customs of war . Such violations shall include , but not be limited to , murder , ill - treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war or persons on the seas , killing of hostages , plunder of public or private property , wanton destruction of cities , towns or villages , or devastation not justified by military necessity ;

( c ) crimes against humanity : namely , murder , extermination , enslavement , deportation , and other inhumane acts committed against any civilian population , before or during the war ; or persecutions on political , racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the ORG , whether or not in violation of the domestic law of the country where perpetrated . ”

The definition was subsequently codified as ORG in the LAW in GPE and in the Judgment of the ORG , formulated by ORG in DATE under ORG Resolution CARDINAL ( II ) and affirmed by ORG .

DATE . The Convention on the Non - Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity ( CARDINAL DATE ) , to which ORG is a party , provides in particular as follows :

“ No statutory limitation shall apply to the following crimes , irrespective of the date of their commission :

( a ) War crimes as they are defined in GPE , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG ...

( b ) ORG against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG ... ”

“ The States Parties to the present Convention undertake to adopt , in accordance with their respective constitutional processes , any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that , where they exist , such limitations shall be abolished . ”

LAW on the Law of Treaties ( DATE ) , to which GPE is a party , provides as follows :

“ Every treaty in force is binding upon the parties to it and must be performed by them in good faith . ”

“ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ... ”

“ Unless a different intention appears from the treaty or is otherwise established , its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before DATE of the entry into force of the treaty with respect to that party . ”

ORG General Comment No . CARDINAL [ CARDINAL ] , The Nature of the General Legal Obligation Imposed on States Parties to the LAW , adopted on DATE ( CARDINALth meeting ) , reads as follows :

“ CARDINAL . The obligations of the LAW in general and article CARDINAL in particular are binding on ORG as a whole . All branches of government ( executive , legislative and judicial ) , and other public or governmental authorities , at whatever level – national , regional or local – are in a position to engage the responsibility of ORG . The executive branch that usually represents ORG internationally , including before the ORG , may not point to the fact that an action incompatible with the provisions of the LAW was carried out by another branch of government as a means of seeking to relieve ORG from responsibility for the action and consequent incompatibility . This understanding flows directly from the principle contained in LAW , according to which a ORG ‘ may not invoke the provisions of its internal law as justification for its failure to perform a treaty’ ... ”

DATE LAW , to which ORG is a party , reads as follows :

“ No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . In particular , no one shall be subjected without his free consent to medical or scientific experimentation . ”

At its meeting on DATE ORG , established under LAW , expressed the following views upon consideration of communication No . CARDINAL/CARDINAL , submitted on behalf of PERSON and Mr PERSON against GPE :

“ CARDINAL.CARDINAL The ORG notes that the author ’s claim that her family was informed of neither the date , nor the hour , nor the place of her son ’s execution , nor of the exact place of her son ’s subsequent burial , has remained unchallenged . In the absence of any challenge to this claim by ORG , and any other pertinent information from ORG on the practice of execution of capital sentences , due weight must be given to the author ’s allegation . ORG understands the continued anguish and mental stress caused to the author , as the mother of a condemned prisoner , by the persisting uncertainty of the circumstances that led to his execution , as well as the location of his gravesite . The complete secrecy surrounding the date of execution , and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress . The ORG considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son , and their subsequent persistent failure to notify her of the location of her son ’s grave amounts to inhuman treatment of the author , in violation of article CARDINAL of the LAW . ”

At its meeting on DATE ORG expressed the following views upon consideration of communication No . DATE , submitted on behalf of PERSON , PERSON , PERSON and PERSON against GPE :

“ CARDINAL The Committee noted ORG arguments concerning the inadmissibility of the communication ratione temporis . Having also noted the ORG arguments , the ORG considered that a distinction should be drawn between the complaint relating to Mr. PERSON and the complaint concerning Ms. PERSON and her children . The ORG considered that the death of PERSON , which may have involved violations of several articles of the LAW , occurred on DATE , hence before the LAW and LAW entered into force for GPE . This part of the communication was therefore inadmissible ratione temporis . PERSON death certificate of CARDINAL DATE , stating that he died of natural causes - contrary to the facts , which are public knowledge and confirmed by ORG ... - and the authorities’ failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms. PERSON and her children ...

CARDINAL Concerning the alleged violation of article CARDINAL , ORG understands the anguish and psychological pressure which Ms. PERSON and her sons , the family of a man killed in disputed circumstances , have suffered and continue to suffer because they still do not know the circumstances surrounding the death of PERSON , or the precise location where his remains were officially buried . PERSON family have the right to know the circumstances of his death , and the ORG points out that any complaint relating to acts prohibited under article CARDINAL of the LAW must be investigated rapidly and impartially by the competent authorities . In addition , the ORG notes , as it did during its deliberations on admissibility , the failure to correct PERSON death certificate of CARDINAL DATE , which records a natural death contrary to the publicly known facts , which have been confirmed by ORG . ORG considers that the refusal to conduct an investigation into the death of PERSON , the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. PERSON and her sons , in breach of LAW ... ”

Article CARDINAL sets out the grounds for discontinuation of criminal proceedings . Paragraph CARDINAL ( CARDINAL ) specifies that the proceedings are to be discontinued , in particular , in the event of the suspect or defendant ’s death .

Article CARDINAL defines a “ victim ” as an individual who has sustained physical , pecuniary or non - pecuniary damage as the result of a crime . The decision to recognise the individual as a “ victim ” must be made by the examiner , investigator , prosecutor or court .

According to the preamble , the purpose of LAW is the rehabilitation of all victims of political repression who were prosecuted on the territory of GPE after DATE , and restoration of their civil rights . Political repression is defined as any measure of restraint , including a deprivation of life , which was imposed by the ORG for political motives ( section CARDINAL ) . Section CARDINAL describes the categories of persons who are eligible for rehabilitation ; section CARDINAL contains the list of criminal offences , such as high treason , espionage , violence against prisoners of war , murder , robbery , war crimes , crimes against humanity , in respect of which no rehabilitation is allowed .

Section CARDINAL of LAW ( Law no . PERSON of DATE ) contains a list of information which may not be declared a ORG secret or classified . The list includes in particular information about violations of rights and freedoms of individuals and citizens and information on unlawful actions by the ORG authorities or officials .

On DATE the Government adopted the Regulation on preparing ORG secret information for transfer to foreign states and international organisations ( no . CARDINAL ) . It provides that a decision on transferring such information may be made by ORG on the basis of a report prepared by ORG on ORG ( § CARDINAL ) . The recipient party must undertake an obligation to protect the classified information by way of entering into an international treaty which would establish , among other matters , the procedure for transferring information , the confidentiality clause and the dispute resolution procedure ( § CARDINAL ) .

Chapter CARDINAL contains a list of crimes against peace and security of humankind . Article CARDINAL prohibits in particular “ cruel treatment of prisoners of war or civilians ” , an offence punishable by up to twenty years’ imprisonment .

Article CARDINAL § CARDINAL stipulates that the offences defined in Articles CARDINAL ( War ) , CARDINAL ( Prohibited means of war ) , CARDINAL ( Genocide ) and CARDINAL ( Ecocide ) are imprescriptible .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

On TIME CARDINAL DATE the applicant , at that time aged DATE , went out with several friends in the centre of GPE to play electronic games . On the way back he left the main group to see a classmate of his and her sister to their door . After he had walked the girls home at TIME , he ran back to rejoin his friends . The applicant was wearing shorts , a yellow teeshirt and a green sleeveless jacket .

On TIME , some time after TIME , the PERSON police received a report that an icecream booth in the centre of the town had been vandalised by QUANTITY individuals . A police patrol was dispatched to the scene and arrested the first of them , but the second managed to get away . All patrols in the area were put on alert and ordered to track him down . The description given over the police radio was of a man wearing short pants and a lightcoloured teeshirt .

At that time Mr PERSON and PERSON , both trainee police officers , were in the area of the incident , patrolling in PERSON private car . Although they were supposed to be accompanied by a supervising police officer , chief sergeant A. , they were patrolling by themselves , as sergeant PERSON had been dispatched elsewhere . Their car was in a street which was not well lit . Seeing the applicant running past the car , they assumed that he was the offender at large . They got out of the car and gave chase . The applicant heard their steps , but , seeing that they had come out of an unmarked rather than a police car , kept on running . It was disputed whether or not Mr PERSON and PERSON had shouted “ Stop ! Police ! ” after the applicant . They submitted that they had done so , whereas the applicant and several witnesses stated that they had not heard the officers shouting . The chase continued for TIME . The applicant ran by ORG Shortly afterwards , Mr PERSON caught up with the applicant in front of a beauty parlour and apparently tripped him over . The applicant fell on the ground , face down . Mr PERSON then started hitting the applicant 's back and legs with a truncheon and kicking his torso . Soon after that Mr GPE caught up with them and also started hitting the applicant 's back and legs with a truncheon and kicking his torso . The applicant averred that Mr V.E. had sat on his back and had delivered several truncheon blows to his head . The applicant was crying and begging the officers to stop , insisting that he had done nothing wrong . Mr GPE was an eyewitness to the incident , and so were a Mr P.S. and a Mr V.K.

Shortly afterwards , chief sergeants PERSON and PERSON arrived at the scene . By that time the physical assault on the applicant had stopped . The applicant was lying on the ground and Mr PERSON and Mr GPE were standing beside him . The applicant 's teeshirt was soaked with blood coming from the neck area .

Chief sergeants PERSON and GPE helped the applicant get into their patrol car . On the way to the hospital they stopped at a fountain and told him to wash the blood off his neck . The applicant told the officers that he felt pain in his legs and in his right lumbar area .

The applicant was admitted to the emergency ward of ORG at TIME Upon his admission he stated that he could not see . His blood pressure was measured to be CARDINAL/CARDINAL . It was found that he had a traumaticlacerated injury on the back of his head . He was also complaining of severe pain in the area of the right kidney . He was taken to the surgical ward and the injury on his head was treated .

From the hospital the applicant was taken to the police station , where he was questioned at TIME It was established that he had nothing to do with the breaking of the icecream booth . After the questioning an officer took the applicant home . When the applicant 's mother saw the state the applicant was in , she asked a friend to drive the applicant and herself back to the emergency ward of ORG . There she was informed that the applicant had already been treated and that there was nothing more the staff could do , as there were no doctors on the ward at that time , only paramedics .

The applicant and his mother then went to the police station to find out why he had been beaten and apprise the police of the names of the eyewitnesses to the incident . They were given the names of the officers who had assaulted the applicant and TIME left the station and went home .

When the severe pain in the applicant 's right lumbar area continued through TIME and blood showed up in his urine , a doctor was called in and examined the applicant at TIME on DATE . He found that the applicant had a reddening of the skin in the groins , parallel traces of blood suffusions and grazes on the calves , CARDINAL on the left leg and CARDINAL on the right leg , and a head injury .

At TIME on CARDINAL DATE the applicant went once more to the emergency ward of ORG . At TIME he was admitted to the surgical ward . He was diagnosed as suffering from contusion in the right lumbar area , commotion of the right kidney and haematuria ( blood in the urine ) , and was treated with styptics and antibiotics . He remained in hospital until DATE .

DATE , on DATE , the applicant was urgently admitted to the urology centre of ORG in GPE because of macroscopic haematuria ( high levels of blood in his urine ) and sustained dull pain in his right lumbar area . His right kidney was found to be surrounded by a haematoma and retaining liquid . It was established that his blood pressure was ORG because of , among other reasons , the pressure from the haematoma on the kidney . The applicant was treated with spasmolytics , analgesics and antibiotics . The applicant had to be released on DATE due to an inhospital infection outbreak .

NORP Throughout DATE the applicant underwent numerous examinations of his right kidney .

On DATE the applicant was admitted to the urology ward of ORG “ Pirogov ” , after complaining from dull pain in his right lumbar area . He was diagnosed as suffering from hydronephrosis of the right kidney ( pathological chronic enlargement of the collecting channels of a kidney , leading to the compression and the eventual destruction of kidney tissue and the deterioration of the kidney function ) . On DATE he underwent surgery and his right kidney was removed . On CARDINAL DATE he was released from hospital .

On DATE the applicant 's mother complained about his beating to ORG . On DATE the applicant 's father also lodged a complaint with ORG .

On DATE ORG , which was competent to deal with offences allegedly committed by police officers , opened criminal proceedings against Mr PERSON and Mr GPE

NORP The investigator to whom the case was assigned conducted a series of interviews on CARDINAL , DATE and DATE . He questioned the applicant , PERSON I.P. , PERSON and several other witnesses . On DATE and CARDINAL DATE the investigator questioned chief sergeant PERSON and CARDINAL other police officers .

On DATE Mr PERSON and PERSON were charged and questioned . During questioning PERSON stated that he had tripped the applicant but had not subjected him to any other violence . PERSON stated that he had only hit the applicant once with a truncheon on the legs , but had not subjected him to any other violence .

On an unspecified date the investigator ordered a medical expert report to determine the extent of the applicant 's injuries . The report was drawn up by PERSON , head of the forensic medicine ward of ORG . She found that the applicant had had a wound on his head , haematomas and grazing on his legs , contusion of the right lumbar area and haematuria . She concluded that the beating had caused the applicant a shortterm lifethreatening health disorder , due to a traumatic - haemorrhagic shock resulting from the contusion of the right kidney and a massive haematoma around the kidney .

On DATE the applicant 's mother , acting for the applicant , who was still underage , submitted a civil claim against Mr PERSON and Mr V.E. She sought CARDINAL old NORP levs ( ORG ) on the applicant 's behalf .

Another series of interviews was conducted on DATE by another investigator at ORG . Mr PERSON and Mr DATE were questioned .

On DATE ORG submitted to ORG an indictment against Mr PERSON and PERSON GPE , charging them with causing intermediate bodily harm to the applicant . On DATE the case was set down for hearing .

The first hearing took place on DATE . Mr PERSON and PERSON GPE were represented by PERSON , a former military prosecutorgeneral . The applicant , who was also represented by counsel , amended his civil claim , seeking interest as from DATE of the beating and naming ORG as a third defendant . The court heard Mr PERSON , PERSON , the applicant , the applicant 's mother , chief sergeant PERSON , several other police officers , Mr GPE , Mr PERSON and Mr DATE Noting that the statements of the accused differed from those of the eyewitnesses , the court carried out a confrontation . Finally , the court heard Dr PERSON , the medical expert who had given an opinion about the extent of the applicant 's injuries . The accused disputed Dr PERSON 's conclusions and requested a new medical report to be drawn up by CARDINAL experts , excluding Dr PERSON The court acceded to the request and ordered a new expert report , to be drawn up by CARDINAL medical experts .

In their report the CARDINAL medical experts ( PERSON , head of the forensic medicine and ethics department of ORG in GPE , PERSON , head of department at ORG of the Institute , and PERSON , senior assistant at the anaesthesiology and intensive care departments of ORG concluded that as a result of the DATE incident the applicant had suffered a contusion of the right kidney , haematomas and grazing of the CARDINAL legs , a wound on the head and a reddening in the right part of the groins . Unlike PERSON , they concluded that the traumaticneurogenic shock suffered by the applicant had not become truly lifethreatening . They also found that before the incident the applicant had been suffering from a congenital kidney anomaly , which had been the reason for the applicant 's haematuria after the incident . In the experts ' view , the applicant 's kidney injury had not been lifethreatening and had had no longlasting effects on his health . The beating had caused the applicant only a temporary ( CARDINAL or threeweek ) health problem .

The next hearing took place on DATE . The court heard the CARDINAL medical experts , who stated that they adhered to the conclusions given in their report . The prosecutor noted that the first report , drawn up by Dr PERSON , and the second report , drawn up by the CARDINAL medical experts , substantially differed on the issue of the extent of the injuries suffered by the applicant . He therefore requested an additional expert report , to be drawn up by CARDINAL experts , including Dr PERSON The court acceded to the request .

On DATE the report of the CARDINAL medical experts was ready . They concluded that the applicant had suffered a traumaticneurogenic shock , which , however , had not deteriorated and had not become lifethreatening . They also concluded that before the incident the applicant had been suffering from a congenital kidney anomaly , which had been the reason for his haematuria after the incident . In the experts ' view , the applicant 's kidney injury had not become lifethreatening . As regards the later surgical removal of the kidney and its potential causal link with the beating , the experts were of the opinion that , in view of the long time - span between the beating ( DATE ) and the surgery ( DATE ) and the nature of the injury , it could not be concluded that the removal of the kidney had been a direct and proximate consequence of the beating . Additionally , the applicant 's congenital kidney anomaly had been prone to natural deterioration and could have led on its own to a decline in the kidney function , which was what had made the removal necessary . It could not be categorically established that the beating had not contributed to the need for the removal of the kidney , but the main factor had been the congenital anomaly .

After several adjournments due to difficulties with the attendance of all CARDINAL medical experts , ORG listed a hearing for DATE . At that hearing the court heard all CARDINAL medical experts . CARDINAL of them stated that they adhered to the conclusions made in their report . By contrast , Dr PERSON stated that she did not agree with the conclusions of the report and that she still maintained the opinion expressed in her initial report . The applicant presented Xrays of his kidneys and , after examining them , the CARDINAL experts stated that they still adhered to the conclusions reached in their report . The applicant increased his civil claim to BGL CARDINAL . In his concluding argument the public prosecutor stated that , in view of the experts ' opinion , he did not pursue the charge of intermediate bodily harm , and urged the court to characterise the officers ' act as inflicting minor bodily harm .

In a judgment of CARDINAL DATE ORG found Mr PERSON and PERSON guilty of inflicting the applicant minor bodily harm and not guilty of inflicting him intermediate bodily harm . It sentenced them to DATE imprisonment , suspended for DATE . The court also partially allowed the applicant 's claim for damages , awarding him ORG CARDINAL , to be paid jointly and severally by the CARDINAL officers and the vicariously liable ORG in GPE .

The court found that Mr PERSON had tripped the applicant and that the applicant had fallen on the ground face down . After that Mr PERSON had delivered a number of blows on the applicant 's back and legs with a truncheon and had kicked several times his torso . When PERSON GPE had arrived he had also hit the applicant 's back and legs with a truncheon and had kicked his torso . During the beating the applicant had told the CARDINAL accused that he had done nothing wrong . The court stated that it did not find the accused 's averment that they had not beaten the applicant persuasive , because it was disproved by the testimony of QUANTITY eyewitnesses NORP and Mr DATE and of the applicant himself . The court considered that the eyewitnesses ' and the applicant 's testimony was consistent and reliable .

The court also examined the officers ' assertion that they had acted lawfully , in a situation calling for the arrest of a suspect , and that they had inflicted bodily harm in their efforts to subdue the applicant . In that connection , it noted that the accused were substantially stronger physically than the applicant , that Mr GPE , Mr GPE and chief sergeant PERSON had testified that the applicant had not tried to resist , and that at the time of the incident the applicant had been DATE . The court accordingly rejected the assertion .

As regards the extent of the applicant 's injuries , the court held that the opinion of the CARDINAL medical experts , which appeared objective , impartial , consistent , wellreasoned and in conformity with the medical documents in the case file , should be given more credit than that of Dr FAC In the court 's view , the CARDINAL experts ' arguments confuted her opinion . The court therefore held that as a result of the beating the applicant had suffered a temporary ( CARDINAL or threeweek ) nonlifethreatening health disorder , which amounted to minor bodily harm within the meaning of ORG CARDINAL to CARDINAL of LAW of DATE ( “ the ORG ” ) .

Finally , the court rejected Mr PERSON and Mr GPE 's defence under LAW that they had only used the force necessary to arrest a presumed offender , injuring the applicant in the process of subduing his resistance . The court acknowledged the great disparity in terms of physical strength between the CARDINAL policemen and the applicant . Moreover , the other witnesses had clearly indicated that the applicant had not put up any resistance requiring the use of force . Finally , at the time of the incident the applicant had been DATE and his age was visible from his physical features .

Mr PERSON and Mr GPE appealed , arguing that their actions had not constituted an offence , as they had acted within the bounds allowed by LAW of DATE . In the alternative , they submitted that the sentences imposed on them were too harsh . The applicant also appealed , arguing that the amount of damages awarded to him was too low .

ORG held a hearing on DATE . The officers were represented by their counsel , PERSON The applicant was represented by CARDINAL lawyers .

In a judgment of CARDINAL DATE ORG upheld ORG judgment . It held that the manner in which the applicant 's injuries had been caused had been correctly established by the lower court . There existed direct evidence that the applicant had been subjected to violence even after he had been brought to the ground and had not had the possibility to resist or run away . Even if the officers had misidentified the applicant , this had not legally justified the physical assault that they had inflicted on him . Moreover , the use of force had continued after the applicant had been subdued . There existed a direct causal link between the violence and the injuries sustained , as confirmed by all of the medical expert reports . The court went on to state that it did not agree with the lower court 's conclusion as regards the extent of the applicant 's injury . To exclude the causal link between the surgical removal of the applicant 's right kidney and the incident of CARDINAL DATE , ORG had relied on the conclusion of CARDINAL medical experts and had rejected as illogical the conclusion of Dr PERSON However , that court had disregarded that conclusion on purely formal grounds , without discussing its main points . It was unclear whether the opinion of the CARDINAL experts was in fact based on the raw medical data , which in turn cast doubt on its correctness . The court concluded that if the lower court had taken into account these considerations , it could have made a different finding as to the reason for the surgical removal of the applicant 's right kidney . However , since no appeal had been lodged by the prosecution , the court only noted this factual mistake and did not correct it in its judgment by holding that the applicant had suffered intermediate bodily harm , as that would worsen the accused 's position .

Mr PERSON and PERSON appealed on points of law to ORG . The applicant also appealed , requesting an increase in the amount of damages awarded .

ORG held a hearing on DATE . It heard the applicant 's and the officers ' oral argument and accepted their written pleadings for consideration . The prosecutor present at the hearing submitted that both appeals were groundless and should be dismissed .

In a final judgment of CARDINAL DATE ORG reversed Mr PERSON 's and PERSON convictions and acquitted them . It also dismissed the applicant 's civil claim . Its opinion read as follows :

“ ... The courts below arrived at the erroneous conclusion that the CARDINAL [ officers ] ' act had been wrongful and contrary to LAW ...

This is so for the following reasons :

The [ officers ' ] act does not amount to an offence , as they acted under the prerequisites of section CARDINAL(CARDINAL ) , points CARDINAL and CARDINAL of LAW [ of DATE ] and within the bounds set by this LAW on the use of physical force , namely information about the perpetration of a publicly prosecutable offence in the centre of GPE , which was broadcast over the [ police ] radio station and was received by [ Mr PERSON ] and [ Mr GPE ] . Moreover , the description of the perpetrator who had fled from the crime scene coincided with the appearance of the [ applicant ] , and for this reason the ... officers mistook him for the wanted offender . What is more , the [ applicant ] did not obey and through his actions refused to comply with the lawful order of the [ officers ] , who tried to stop him by shouting ' Stop ! Police ! ' Instead , he tried to escape , in order to avoid arrest by the [ police ] , who , in line with their duties , gave chase with a view to arresting the suspect . As it were , not only did the [ applicant ] not obey , but he also resisted the [ police officers ] . Finally , the injuries he sustained upon his arrest are within what is permissible under sections DATE and CARDINAL of the [ LAW of DATE ] .

The overall situation , including the [ applicant ] 's inadequate behaviour , led the [ officers ] to conclude that he was the offender who was being sought after and who had to be caught , overawed and apprehended . This conclusion and the lawful actions of the officers , including the use of force with its consequences for the [ applicant ] , rule out the criminality of their act . [ To hold o]therwise [ would mean to render ] the abovementioned provisions of the [ LAW of DATE ] nugatory . ”

Section CARDINAL(CARDINAL ) of the now repealed LAW of DATE ( „ Закон за националната полиция “ ) read , as relevant :

“ ... police [ officers ] may use ... force ... when performing their duties only if they [ have no alternative course of action ] in cases of :

NORP resistance or refusal [ by a person ] to obey a lawful order ;

NORP arrest of an offender who does not obey or resists the police [ officers ] ; ... ”

By CARDINAL ) of the LAW , the use of force had to be commensurate to , inter alia , the specific circumstances and the personality of the offender . Section CARDINAL(CARDINAL ) of the LAW directed police officers to “ protect , if possible , the health ... of the persons against whom [ force was being used ] . ” Section CARDINAL(CARDINAL ) of the LAW provided that the use of force had to be discontinued immediately after its aim had been attained .

Article CARDINAL LAW , adopted in DATE , provides that the injuring of alleged offenders during their arrest is not a criminal act , provided that there exists no other way for their apprehension and the measures used during the arrest do not exceed what is necessary and lawful . By paragraph CARDINAL of this Article , there is such an excess where there exists an obvious disproportion between the character and the gravity of the offence allegedly perpetrated by the arrestee and the circumstances of the arrest , and also where the arrestee is unnecessarily and excessively harmed . The persons effecting the arrest are criminally liable only if they cause the harm wilfully .

Articles CARDINAL , CARDINAL and CARDINAL of the ORG make it an offence to inflict grievous , intermediate or minor bodily harm on another person . The ORG defines intermediate bodily harm as , inter alia , CARDINAL which involves a temporary lifethreatening health disorder or a permanent nonlifethreatening health disorder ( Article CARDINAL § CARDINAL of the ORG ) . Minor bodily harm is one which does involve a health disorder , but is not specifically referred to in Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG ( Article MONEY § CARDINAL of the ORG ) .

If the bodily harm is inflicted by a police officer in the course of or in connection with the performance of his duties , the offence is an aggravated one ( Article CARDINAL § CARDINAL ( CARDINAL ) of the ORG ) . It is publicly prosecutable ( LAW ) .

Criminal proceedings for publicly prosecutable offences could be instituted only by the decision of a prosecutor or an investigator ( Article CARDINAL of the ORG , as in force at the relevant time ) . The prosecutor or the investigator had to open an investigation whenever they received information , supported by sufficient evidence , that an offence had been committed ( Articles CARDINAL and CARDINAL of the ORG , as in force at the relevant time ) .

Before DATE the offences allegedly committed by police officers were tried by military courts ( LAW ( CARDINAL ) of the ORG , as in force at the relevant time ) . In DATE this text was amended to provide that the military courts no longer had jurisdiction in respect of such offences ( Article CARDINAL § CARDINAL ( CARDINAL ) of the ORG , as amended in DATE ) . A new amendment in DATE reverted to the old regime ( LAW ( CARDINAL ) of the ORG , as amended in DATE and in force until DATE ) . If a case falls within the jurisdiction of the military courts , the preliminary investigation is handled by military investigators and prosecutors .

Section CARDINAL(CARDINAL ) of ORG of DATE ( „ Закон за задълженията и договорите “ ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another person . LAW provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant , a NORP citizen born in DATE , is a businessman residing in PERSON in GPE .

The applicant ’s son founded the ORG , a construction company , whereby the applicant acted as guarantor ( PERSON ) for a credit . He also assisted his son in various administrative tasks concerning the company .

In DATE , the GPE company went bankrupt . ORG ( Ausgleichskasse ) of ORG suffered losses in particular as to contributions of the company to the old age insurance scheme . ORG regarded the applicant as being the administrative and commercial manager of the company and therefore liable for the sum of MONEY ( CHF ) .

The applicant objected , whereupon on DATE and DATE ORG introduced a compensation action against the applicant .

NORP The action was upheld on DATE by ORG ( Verwaltungsgericht ) of ORG which nevertheless reduced the amount to CHF CARDINAL,CARDINAL.CARDINAL .

In its decision , ORG referred , inter alia , to the statement of a certain PERSON , a former member of the board of the company , according to which the applicant had granted the company an advance payment . ORG then examined whether the applicant had in fact had the position of an executive ( Organ ) of the company and whether in this respect it was necessary to hear the witnesses PERSON . R and PERSON The decision referred , inter alia , to CARDINAL letters of the applicant to ORG , i.e. , of DATE in which he stated that the company no longer had any assets , and of DATE in which he had signed " as a representative " . As a result , the ORG concluded that the applicant had in fact had the position of an executive of the company , for which reason further evidence was not necessary .

On DATE the applicant filed an administrative law appeal with ORG ( Eidgenössisches Versicherungsgericht ) , contesting the action , and requesting the hearing of various witnesses , inter alia , PERSON . NORP and PERSON as well as ORG where he had introduced proceedings against a certain R.H.

The applicant ’s appeal was transmitted for observations to ORG of ORG , ORG of ORG , and ORG ( ORG für ORG ) .

On DATE , ORG of the Canton of Schwyz submitted its observations on the applicant ’s administrative law appeal to ORG , the statement numbering CARDINAL pages . ORG proposed in particular the dismissal of the applicant ’s appeal .

In its statement ORG commenced with a " preliminary remark " according to which the applicant had not , in the administrative proceedings , referred to the separate procedure before another court concerning a certain PERSON As a result , ORG had not regarded it necessary to consult that case - file , and it could not be said that ORG had not sufficiently examined the facts . ORG further stated that the applicant had implicitly admitted that he was an executive of the GPE company when filing the letters of DATE and DATE .

According to the submissions of ORG , it further transpired from separate execution proceedings that various foreign currency deals had been transacted by the applicant ’s family over the GPE , leading to returns of CHF MONEY . However , the ORG was concerned with constructions , not with foreign currency deals . It could not be said that the applicant had not been in a position to take decisions with binding legal effect . ORG also considered it unnecessary to hear the witnesses PERSON . NORP and PERSON Thus , in its decision it had considered that the CARDINAL witnesses were quarrelling with each other , and the applicant had not shown in what respect the hearing of these witnesses would be useful .

ORG submitted a similar statement , whereas ORG did not file any submissions .

On DATE ORG transmitted the statement of ORG to the applicant for information , expressing its regret that it had by mistake not done so earlier on .

On DATE the applicant submitted a statement on the submissions of ORG of DATE . The front page read :

" the observations contain three important new points which were not contained in the decision of ORG . I could not therefore make any observations thereupon in my administrative law appeal of DATE . As a result , it must be possible for me now to make such observations which I am herewith submitting . "

NORP The applicant then pointed out that ORG had stated that he had never mentioned a further set of proceedings against a certain PERSON This was a new point . He had only found out about PERSON in the decision of ORG itself , for which reason he could not have commented thereupon in the proceedings before ORG . The applicant furthermore pointed out that ORG had made new submissions when stating that in view of his letters of DATE and DATE he had effectively accepted having the position of an executive of the ORG company .

Finally , the applicant explained that ORG submissions were also new to the extent that reference was made to foreign currency deals . This information came from the separate proceedings before ORG , ORG , and not from him . To the extent that ORG concluded on the basis of this information that the applicant had , in fact , had the position of an executive , he should have been permitted to comment on this point .

ORG dismissed the applicant ’s administrative law appeal on DATE .

NORP The decision first recalled the procedure before ORG itself , noting in particular that the applicant had submitted further observations on CARDINAL DATE without being requested to do so . The court then noted that according to LAW of LAW ( Organisationsgesetz ) , observations were only exceptionally exchanged a second time between the parties . The decision continued :

" ( Such a second exchange of observations ) will be required for reasons of a fair hearing if in the observations new factual statements have been made , the correctness of which does not immediately transpire from the case - file and which are of relevance for the decision . As regards new legal arguments it must be borne in mind that ORG is called upon ex officio to apply the correct law . The mere fact that these observations refer to supporting arguments in addition to those mentioned in the contested decision can not justify the possibility to reply thereto . It would be different , if ORG were of the opinion that the contested decision could be upheld , not with the reasons originally given , but with other reasons , now mentioned in the observations ...

In the light of these principles the applicant ’s request along these lines , namely to have a second exchange of observations , appears unfounded . It is irrelevant in this respect that the observations of ORG were only submitted belatedly ( nachträglich ) . Thus , in those observations no new factual or legal points were raised : Rather , the circumstances mentioned by the applicant ( statement of NORP about advances paid to the capital of the company ; profits from currency deals ) disclose that they were already known in the case - file stemming from the proceedings of the PERSON and PERSON execution authorities and thus clearly transpired from the file . Therefore , the applicant could , and ought to , have prepared everything necessary in order to avoid a second exchange of observations ... Furthermore , the new point of the previous court which he has mentioned , regarding his executive position , merely concerns an additional argument which further supports the grounds mentioned in the contested decision . This does not warrant the possibility of a further reply . As a result , the applicant ’s observations , submitted without being so requested , can not be legally considered ( aus dem Recht zu weisen ) . "

Insofar as the applicant complained that certain witnesses had not been heard , ORG considered , inter alia , that ORG had pertinently mentioned the circumstances under which a company executive became liable for the company ’s debts . In respect of the witnesses PERSON . NORP and PERSON , the hearing of which had been requested by the applicant , ORG referred to the accurate observations filed by ORG on DATE .

According to LAW of LAW ( Organisationsgesetz ) , ORG is called upon to examine administrative law appeals against cantonal decisions in last resort concerning matters of social insurance . In principle , the court is free to establish the facts . However , according to LAW , it considers itself bound by the facts if the lower instance which determined them was a court to the extent that the determination is not manifestly incorrect , incomplete or in breach of essential procedural rules . As a result , there is only a limited possibility to put forward new facts in the proceedings before ORG ( see Bundesgerichtsentscheide [ ORG ] CARDINAL V CARDINAL ) .

In the administrative law proceedings before ORG there is , in principle , CARDINAL exchange of statements in which the other parties and instances concerned may file their observations on the administrative law appeal ( LAW of LAW ) . According to the practice of ORG , a second exchange of statements will take place if new facts transpire in the observations the correctness of which can not be established in the case - file and which observations appear pertinent for the final decision . If new legal considerations are raised for the first time in these observations , a second exchange of statements will take place if the contested decision can no longer be based on the reasons given by the lower court ( see ORG CARDINAL ; CARDINAL ORG ; CARDINAL Ia CARDINAL ; CARDINAL I CARDINAL ) .


Violation of Art. 6-2;Not necessary to examine Art. 14

The applicant was born in DATE and lives in GPE .

On DATE he was arrested in connection with an investigation concerning a case of arson committed on DATE .

On DATE ORG of ORG refused to extend the validity of the arrest warrant . On appeal , ORG of ORG overturned that decision and prolonged the applicant 's pre - trial detention .

On DATE the investigating judge rescinded the warrant concerned .

On DATE and DATE respectively ORG and ORG , ruling on the action to be taken on the basis of the investigation to date , held that there was insufficient evidence to commit the applicant for trial and discontinued the proceedings .

On DATE the applicant claimed compensation for unwarranted pre - trial detention , relying on the Law of CARDINAL DATE ( see “ Relevant domestic law ” below ) .

On DATE the Minister of ORG refused the applicant 's claim on the ground that he had not “ established his innocence by adducing factual evidence or submitting legal argument to that effect ” , as required by section CARDINAL(CARDINAL)(b ) of the Law of DATE . That requirement was justified , according to the Minister , in the case of an order or judgment discontinuing criminal proceedings , given that a discontinuation decision was not a bar to the reopening of the case if new information or evidence were to come to light .

On DATE the applicant contested the Minister 's decision by means of an application to the Unwarranted Pre - trial ORG .

On DATE the applicant appeared before ORG , which upheld the refusal of his claim by a decision taken on DATE and served on the applicant on DATE . It noted that the grounds for presuming the guilt of the applicant , who had always denied committing the offence he stood accused of when appearing before the courts investigating the charge , had been held to be insufficient to justify committing him for trial . It observed that , although the applicant had announced his intention of submitting a pleading setting out the evidence in the file which “ amply ” proved his innocence , he had not done so and had not replied to the ORG 's submissions . Consequently , ORG found that he had not proved his innocence as the law required ( dat verzoeker derhalve het bij de wet van hem vereiste bewijs van onschuld niet bijbrengt ) .

At the material time the relevant provisions of the Law of DATE on compensation for unwarranted pre - trial detention read as follows :

“ ( CARDINAL ) Any person deprived of his liberty in conditions incompatible with LAW DATE , approved by LAW of CARDINAL DATE , shall be entitled to compensation .

( CARDINAL ) The action for compensation shall be brought in the ordinary courts in accordance with the formalities laid down in LAW and directed against ORG in the person of PERSON . ”

“ ( CARDINAL ) A compensation claim may be lodged by any person held in pre - trial detention for DATE , provided the detention concerned or its prolongation were not provoked by his own conduct :

( a ) if he has been exculpated directly or indirectly by a judicial decision that has become final ;

( b ) if after being discharged through an order or judgment discontinuing the proceedings he establishes his innocence by adducing factual evidence or submitting legal argument to that effect ;

( c ) if he has been arrested or kept in detention after expiry of any statutory limitation period ;

( d ) if he has been discharged through an order or judgment discontinuing the proceedings which expressly states that the act which gave rise to the pre - trial detention did not constitute a criminal offence .

( CARDINAL ) The amount of compensation shall be determined equitably , and with regard to all the circumstances of public and private interest .

( CARDINAL ) Where the person concerned is not able to bring compensation proceedings in the ordinary courts , compensation may be claimed by means of a written request to the Minister of ORG , who shall rule on it within DATE .

The compensation shall be awarded by the Minister of ORG from the ORG account if the conditions set out in subsection ( CARDINAL ) above are satisfied .

Where compensation is refused , or the amount is considered insufficient , or the Minister of ORG has not replied within DATE of the request , the person concerned may apply to ORG set up in accordance with subsection ( CARDINAL ) below .

In the case of prosecution for CARDINAL of the offences defined in ORG , CARDINAL and CARDINAL of LAW , committed against the person detained , DATE mentioned in the preceding paragraph shall begin to run on DATE when that prosecution is closed by a decision that has become final .

( CARDINAL ) ORG is hereby instituted to hear appeals against decisions taken by the Minister of Justice , or rule on compensation claims where the Minister has not reached a decision in accordance with the conditions set out in subsection ( CARDINAL ) above .

ORG shall be composed of the President of ORG , the President of the PERSON d'Etat and the President of ORG or , where one or more of those persons are prevented from sitting , of the Vice - President of ORG , the Vice - President of the PERSON d'Etat and the Vice - President of ORG .

The duties of secretary to ORG shall be performed by CARDINAL or more members of the registry of ORG appointed by its president .

The rules of procedure of ORG shall be laid down by the ORG .

( CARDINAL ) ORG and claims shall take the form of applications in CARDINAL copies signed by the claimant or his lawyer and lodged with the registry of ORG within DATE of the Minister 's decision or of the expiry of the time within which he should have announced it .

The ORG shall lay down the procedure before ORG sitting in closed session .

ORG shall give its ruling on the opinion expressed at the hearing by ORG attached to ORG , after hearing the submissions of the parties .

ORG decisions shall be delivered at a public sitting . No appeal shall lie against them .

At the parties ' request , an extract from ORG decision shall be published in the ORG belge , but the extract may not mention the amount awarded . The costs of publication shall be borne by the ORG . ”