The applicants , ORG D ” ) and PERSON ( “ M ” ) , are NORP nationals who were born in DATE and DATE respectively . They are mother and daughter . They are represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON , ORG .

The applicants arrived in GPE on DATE and applied for asylum on DATE the same year . They presented genuine passports , valid until DATE and DATE respectively , as well as visas valid from DATE to DATE , issued by ORG in GPE on DATE . The applicants had previously been granted visas to GPE on CARDINAL separate occasions ; D in DATE and M in DATE , both for the purpose of visiting relatives . D ’s mother ( M ’s grandmother ) had been a permanent resident of this country since DATE , as had CARDINAL sisters and a brother of NORP

ORG ( Migrationsverket ) conducted an initial interview with the applicants on DATE . D essentially stated the following : Her mother had died on DATE . She applied for asylum in GPE solely because of the problems she had experienced with her husband in GPE ( henceforth referred to as “ H ” ) . They had married in DATE and since then he had repeatedly subjected her to harassment and physical assault . They had CARDINAL children together , M and a son born in DATE . H had also assaulted the son . The assaults had occurred when H , an alcoholic , was drunk and had caused D injuries such as a broken jaw . At CARDINAL point , D had been in surgery for a navel rupture . Before the wound had healed , H had stabbed her in the stomach with a knife so that she had to be operated again . D had not reported any of the incidents of assault to the NORP authorities because they would not offer her any protection anyway . Furthermore , H was an influential person . He was retired but had worked in the military , where he had held the rank of colonel . She believed that he worked for the revolutionary committee ; he had done so previously . The stabbing incident had been automatically reported to the police , but she had told them that she had fainted and could not remember what had happened . The police had not pursued the matter any further . She had not divorced H , because this was not possible for her , being a woman . However , they had been living apart since DATE , when he had thrown her and the children out of their home . Prior to that they had lived apart from time to time , but this time the separation had been definite . D had moved with the children into her mother ’s home in GPE and , after the son had married , D and M had lived there alone . However , H had continued to harass the applicants , claiming that they were women of no morals . He had asserted that M must marry a man he had chosen for her in order to restore her father ’s honour . If M would disobey him , he had threatened to cut her throat . Despite the discords , H had given his permission for D to apply for a passport . This passport had been issued on DATE . This time she had left GPE without his knowledge . The additional consent he had given her to travel outside GPE in DATE still applied . Since the separation in DATE , D had worked as a hairdresser and , in addition to an inheritance from her father , she had received financial support from her mother and family .

At the interview on DATE , M essentially stated the following : She had left GPE because of her father . She and D had lived in her grandmother ’s home in GPE for DATE but had also stayed with H intermittently . However , they had not returned to him since their last visit to GPE . She had studied at the university in PERSON DATE and was currently working at a private pharmaceutical company . While she had still been studying , she had been interrogated by the security forces several times , the last time in DATE . H had friends in the security forces . She had been interrogated because of his claim that she was a girl of bad morals . He had not been able to take her from the university because she had already paid the entrance fee . The man he wanted her to marry was already married .

ORG conducted a second interview with NORP and M on DATE . On this occasion D essentially added the following : Her mother had been buried in GPE on DATE . D ’s siblings had brought the remains from GPE to GPE . H had tried to ruin the funeral . He had taken M to a physician in forensic medicine to ascertain whether she was still a virgin . D had not lived with H since DATE but had visited him at times when he had been ill . He had allowed her and the children to live on their own so that he would be free to get drunk and would not have to pay for them . After the revolution he had worked in the revolutionary court for DATE . Just before retiring in DATE , he had been in command over NORP prisoners of war . Since then he had worked secretly for the revolutionary committee but she did not know exactly for whom . The committee was part of the security forces ( PERSON ) and its task was to ensure that people followed rules of dress and behaviour . There were several committees named after geographical areas . H knew that she and M had left GPE , but she did not know whether he had reported her to some authority . H had disapproved of M ’s studies and had physically assaulted M CARDINAL or CARDINAL times when he had come to visit her at her student residence .

With regard to the stabbing incident , D first stated that the operation for the navel rupture had been carried out in DATE and that H had come to see her while she had still been in bed recovering . She later stated that the operation , which had allegedly occurred on DATE , had not been well performed . H had asked what she had done wrong against God , since she had not yet recovered , and had stabbed her . She had first thought that her stitches had come undone . When she had opened her eyes she was in hospital . The police had arrived and told her that H had stabbed her . When asked by the interviewer why the police had come to the hospital , D said that hospitals were obliged to report knife and bullet injuries to the police . She further stated that when she had regained consciousness she had told the police what had happened . They had also talked with the nurse and the doctors . She had not contacted the police to find out what had happened with the investigation , and assumed that it had been dropped since no one had contacted her about it .

During the second interview on DATE , M essentially added the following : H had come to the university CARDINAL times during DATE she had studied there . He had been rude and had always given her a smack on the face . On most occasions he had been accompanied by some of his friends from the committee in GPE , which was a group of people belonging to ORG ( a paramilitary volunteer force operating in GPE ) . They made sure that people followed strict moral rules . The last time M and her mother had stayed with H had been in DATE when they had returned from GPE . They had stayed with him for DATE . They had moved away from him for the first time in DATE and had moved back and forth a number of times until DATE . Since DATE they had not returned to him .

In submissions of DATE to ORG , counsel for the applicants stated the following : The son of the family had recently told the applicants that H had threatened and blamed him for their departure from GPE . H had further stated that he intended to put them on trial in order to have them sentenced to stoning when they returned to GPE . As to what extent the applicants had lived with him , it was submitted that the applicants had returned to him on some occasions DATE because it had been difficult to live without him and because he had repeatedly promised to give up drinking and stop battering NORP However , he had never kept his promise and they had not lived with him since DATE after returning from GPE in DATE .

To the submission of DATE were appended CARDINAL documents , seemingly drafted by NORP authorities : a “ statement ” issued by the “ NORP legal complex ” on DATE , apparently based on a report made by H , and CARDINAL summonses instructing the applicants to appear at the complex on DATE . The applicants also invoked a marriage licence between NORP and H.

On DATE ORG rejected the ORG request for a residence permit and ordered that they be deported to GPE . The ORG questioned the veracity of the ORG statements concerning the alleged actions and controlling influence of H , as the applicants had lived on their own since DATE , as M had been able to study in another town DATE , and as they had been able to leave for GPE in DATE and in DATE . Noting that H was retired , ORG also found that the applicants had not shown that he was a man of great influence in NORP society or that he was involved with the security forces . ORG also found it remarkable that the applicants had waited DATE after their arrival in GPE to apply for asylum . The fact that D ’s mother had died could not explain this delay , as she had died and had been buried in GPE before the applicants left for GPE . ORG further noted that D had given conflicting information on her reporting the stabbing incident to the police . It also took into account that the applicants had not turned to the police to report H ’s alleged threats and harassment , and that D had not filed for divorce . In conclusion , ORG did not find the ORG statements credible .

The applicants appealed to ORG ( Utlännings - nämnden ) on DATE . In the appeal they submitted that they had applied for asylum while their visas were still valid and that they were staying legally in GPE . The reason why they had not applied for asylum earlier was that they had been busy with different mourning ceremonies among relatives and friends and that D had been in a bad mental state due to her mother ’s death . It was furthermore submitted that D ’s operation for the navel rupture had taken place at DATE , and that H had stabbed her on DATE . In this respect the applicants invoked an operation report sheet and a note of medical records . They also invoked an ORG card to confirm their claim that H was employed by ORG .

Further submissions were made to ORG on DATE . Appended to the submissions was a summons ( “ warning ” ) directed at D to appear before the family court in GPE on DATE in order to respond to a report made against her by H. The applicants stated that the son had sent the summons to GPE by fax and that , according to the summons , there was further documentation in the case , the content of which D was not aware , and which she did not know how to access unless she was to appear in person before the court . D submitted that a summons to the family court could be very serious because the various religious authorities cooperated closely with that court , which she believed to be the case here .

On DATE the applicants made yet another submission to ORG . They claimed that the report filed by H against D had turned out to concern adultery and had resulted in D being sentenced in her absence by an NORP court to death by stoning . The son had allegedly obtained the report and the judgment by bribing court officials . As it appears , the report had been filed on DATE , the hearing held on DATE and the judgment issued DATE .

In final submissions of DATE , the applicants claimed that the circumstances that had led to the judgment against D gave strong reason to believe that M would face a similar charge and conviction .

On DATE , ORG rejected the ORG appeal . It generally agreed with ORG assessment and added the following : It noted that the medical documents concerning D ’s operation for stabbing wounds were dated DATE and not DATE , as alleged by NORP Although D had stated that she had been operated for a navel rupture before the alleged stabbing , the documents did not mention any such operation . In regard to the alleged judgment and death sentence against NORP , ORG found it remarkable that she had been sentenced in absentia , having regard to the evidence requirements under the hodûd rules of the NORP criminal law . ORG also noted that the judgment submitted by the applicants stated that it was final , whereas NORP death sentences were subject to appeal .

Following the ORG ’s indications under LAW , ORG decided , by decisions of DATE , CARDINAL DATE and DATE , to stay the enforcement of the deportation order against the applicants , on the latter occasion without a time - limit .


SVENSKA FLYGFORETAGENS RIKSFORBUND AND SKYWAYS EXPRESS AB v. SWEDEN

The first applicant , NORP GPE ( ORG ) , is a nationwide non - profit association open for membership to all serious , commercial airline companies . The second applicant , ORG , is a private limited airline company based in GPE and is a member of the applicant association . The applicants are represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON , ORG .

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

ORG ( PERSON , hereinafter “ the ORG ” ) is a public utility , wholly - owned by ORG . The activities of the ORG are directed by the Government and subject to their decisions . The ORG operates CARDINAL airports in GPE and is responsible for , inter alia , air traffic services and air safety in the country . The aviation infrastructure is financed through charges levied by the ORG on the airline companies wanting to use ORG airports . CARDINAL of the ORG ’s budget is financed by these traffic charges .

The Government specify the economic goals and restrictions applicable to ORG authorities , such as the ORG , through so - called letters of regulation ( regleringsbrev ) , which are binding . The letter of regulation relevant to the instant case was issued by a Government decision dated DATE . It stipulated guidelines for , inter alia , the overall targets and the financial conditions of the ORG and specifically fixed the financial targets of the ORG for the period DATE . The letter also stipulated the following limitation on permissible increases in traffic charges :

“ As a restriction on price increases , the traffic charges , excluding land routing charges , security charges and noise charges , must not increase on average over DATE more than the net price index , calculated as of DATE . ”

Following consultations with NORP and foreign airline companies , the ORG , on DATE , decided to adopt a regulation which established new norms for air traffic charges at ORG airports ( MONEY Statutes of the ORG – Luftfartsverkets författningssamling DATE LFS CARDINAL:CARDINAL ) . The regulation was published on DATE and entered into force on DATE .

By a letter of DATE , the first applicant , on behalf of its members , filed an appeal with the Government against the decision of the ORG . It argued that the increase in air traffic charges amounted to PERCENT , which was too high having regard to the situation in the country with hardly any inflation and low interest rates . It also pointed out that the new charges heavily disadvantaged smaller aircraft , imposing on them relatively high price increases compared to heavier aircraft . The first applicant also stated that the airline companies had not had sufficient time to alter their customer prices in line with the increase since the decision had been made by the ORG on DATE and had come into force already on DATE .

The ORG submitted its comments to the Government in a letter dated DATE . The ORG initially stated that the appeal had been received on DATE and had thus been made in time . ( The stated date is obviously incorrect ; the correct date appears to have been CARDINAL DATE . )

However , the ORG opposed the appeal since the increase in the charges was necessary to fulfil the financial demands imposed on the ORG . It stated that the total increase in charges amounted to PERCENT , which corresponded to an DATE increase in its income of MONEY ( SEK ) . The main increases had been made in relation to passenger charges , charges for local air flight services and the minimum charges for landing . The increase of the CARDINAL latter charges in relation to smaller aircraft had been compensated by introducing a new DATE landing card and by increasing the weight - limit for aircraft having to pay the local air flight charge . Furthermore , the lighter aircraft had experienced very little price increases DATE compared to the heavier aircraft .

The ORG further reiterated that the Government had imposed a limit on the charge increase corresponding to the net price index calculated from DATE . The increase in charges previously made DATE had , however , been below this limit ; the ORG had in fact lowered prices by PERCENT during this period . The current increase was therefore well within the scope of possible increases accumulated over DATE .

In a letter dated DATE , the first applicant submitted to the Government its comments on the ORG ’s position . It stated that the introduction of the DATE landing card for the lighter aircraft , whilst commendable , was of minor importance since CARDINAL aircraft in the country could benefit from it . It conceded that , in DATE , the ORG had charged less than the authorised price increases . However , it found it remarkable that the ORG relied on the cumulative effect of the price ceiling ’s shortfall over DATE to justify a steep increase in the charges now .

On DATE the first applicant further submitted that the net price index had fallen heavily since DATE and had , during certain periods , almost reached the DATE level . The scope for increasing the charges had thus gradually been reduced . Furthermore , a large part of the increase concerned charges restricted by the ORG ’s letter of regulation , and the increase in those charges clearly exceeded the development of the net price index . The first applicant also stated that the real increase in charges was in fact greater than that mentioned by the ORG , since infrastructure costs should also be considered a traffic charge .

The ORG submitted to the Government on DATE that it had not overstepped the price ceiling set by the Government and that the infrastructure charges were to be excluded from the calculation of the increases complying with the price ceiling .

The first applicant responded , in submissions to the Government on DATE , that the ORG ’s letter of regulation did not provide for the possibility of accumulating the DATE increases , as the ORG had done , and that the increase in air traffic charges clearly exceeded the development of the net price index during the given period .

On DATE the Government dismissed the first applicant ’s appeal for the following reasons :

“ Under LAW of the LAW ( CARDINAL:CARDINAL ) with Instructions for the ORG , the decisions of the ORG in matters other than personnel issues are subject to appeal only if expressly stated . The instant appeal concerns a decision on the issue of regulations , as provided for in chapter CARDINAL of ORG [ Regeringsformen ] . There is no provision stating that an appeal lies against such a decision of the ORG . The appeal will not therefore be examined . ”

The ORG is a public utility and part of the ORG administration . It does not own its assets but merely administers them for the ORG . As opposed to other public authorities , a utility is a self - financing unit conducting business , and is run on principles of corporate finance . Under section CARDINAL of the Ordinance with Instructions for the ORG ( Förordningen med instruktion för PERSON , DATE , hereinafter “ the CAA Ordinance ” ) , applicable at the material time , the ORG is defined as a central public authority with the overall responsibility for civil aviation .

The Government decide upon the conditions for the individual ORG authorities through ordinances and DATE letters of regulation . The letters of regulation set out , inter alia , the goals to be achieved by the authority , the funding at the authority ’s disposal and the way that funding should be distributed among its different activities .

LAW , LAW ( ORG , ORG ) provides that the ORG , or an authority designated by the ORG , may issue regulations concerning charges for the use of public airports or other public facilities or services for air traffic . While the air traffic charges originally were set by the ORG , the competence to do so was , of DATE , delegated to the ORG through an amendment ( section CARDINAL ) to LAW , CARDINAL:CARDINAL ) . These CARDINAL provisions constituted the legal basis for the ORG ’s decision of DATE to adopt its regulation on new air traffic charges .

As regards the right to appeal , section CARDINAL of the CAA Ordinance provided the following :

“ The decisions of the ORG in personnel matters are subject to appeal to the Government , [ unless otherwise stated ] ...

The decisions of the ORG concerning the enrolment for education in the air traffic control service are not subject to appeal . The decisions of the ORG in other matters are subject to appeal only if

NORP this follows from a provision other than section CARDINAL(a ) of LAW [ ORG , CARDINAL ] , or

a provision specifically refers to section CARDINAL ( a ) of LAW .

If the matter concerns the exercise of public authority in respect of an individual and there are no specific provisions on appeal , the decision is nevertheless subject to appeal to the Government . ”

The Public Administration Act applies to the handling of matters by the administrative public authorities and to the courts’ handling of administrative matters ( section CARDINAL ) .

Under LAW of the LAW , a decision may be appealed by the person whom the decision concerns , provided that it has affected him or her adversely and is subject to an appeal .

Under LAW ( a ) , appeals lie to the administrative courts . However , this does not apply to decisions in administrative matters or in matters concerning the adoption of regulations ( normgivningsärenden ) , as provided for in chapter CARDINAL of ORG ( Regeringsformen ) . If there is a specific provision in another LAW providing for an appeal , that provision will have precedence .

Section CARDINAL provides that an appeal shall be made , within DATE , to the authority which issued the impugned decision . According to section DATE , that authority shall examine whether the appeal has been submitted in time . If it has been submitted in time , the appeal and the case - file are forwarded to the authority empowered to examine the appeal .

LAW contains provisions on laws and other regulations , stating the areas which may be regulated only by law and the areas which may also be regulated by other provisions , as well as the competence of ORG or the ORG to delegate the power to issue regulations to the authorities or the municipalities .

The term “ exercise of public authority ” ( myndighetsutövning ) is used in many laws and regulations , including ORG , LAW , LAW ORG ) and LAW ( ORG , CARDINAL:CARDINAL ) . According to the preparatory works of ORG ( prop . CARDINAL , p. CARDINAL ) and LAW ( prop . CARDINAL , p. CARDINAL ) , the term has the same meaning as section CARDINAL of the repealed DATE LAW ( DATE ) . That section gave the following definition : “ the exercise of authority to decide on a benefit , right , obligation , disciplinary sanction , dismissal or other comparable issue in respect of an individual ” ( “ utövning av befogenhet att för enskild bestämma om förmån , rättighet , skyldighet , disciplinpåföljd , avskedande eller annat jämförbart förhållande ” ) .


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

The details of the applicants are contained in the annex .

ORG ( “ the Government ” ) were represented by their Agent ; and in those cases in which they were intervening party , GPE were represented by their Agent .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

The applicants submitted that since the DATE NORP intervention in northern GPE they have been deprived of their property rights , as their property was located in the area that was under the occupation and control of the NORP military authorities . Since that date , they had been prevented from having access to and from using their respective homes and properties . In particular :

The first applicant , mother of the second and third applicants ( born in DATE and DATE respectively ) was married to PERSON , who by DATE was a leading property developer in the GPE area , owning CARDINAL sites on many of which he had built villas and luxury flats as well as the family home . On his death in DATE , his property passed to the applicants . In or DATE , the second applicant donated her share in the property to the second and third applicants .

The second applicant is the father of the third , fourth , fifth and sixth applicants , born in DATE , DATE , DATE , DATE and DATE respectively . The third to sixth applicants are shareholders in the first applicant , a company set up in DATE , which dealt in real estate . The fifth and sixth applicants are director and secretary , and director , respectively of the first applicant .

The first applicant owned various houses , shops , warehouses and plots of land . This property included the house built on plot CARDINAL which was where the other applicants were living in DATE and had been living since DATE .

The applicant owned a CARDINAL share in immovable property in GPE , near to GPE , consisting of QUANTITY of orange groves . He had married in DATE and from DATE had been living with his wife and CARDINAL children in a house which belonged to his wife .

The applicants are a family , consisting of a father , mother and CARDINAL children ( born in DATE , DATE and DATE respectively ) . The first applicant owned , or part owned , CARDINAL plots of land in and around LOC , including buildings , shops , apartments , a restaurant and various land on or near the seafront as well as the family home . The third , fourth and fifth applicants each owned varying shares in CARDINAL plots of land . The second applicant owned CARDINAL of CARDINAL plots , CARDINAL co - owned with the first applicant ; while the third applicant wholly owned another plot of land .

The applicants are a family ( grandmother , uncle , father , mother , son and daughter ) born in DATE and DATE respectively . They owned , or part - owned , CARDINAL plots of land and QUANTITY houses and various other buildings in or around LOC . Of the houses , CARDINAL were claimed as having been family homes : a house built on plot CARDINAL which had been the home where the second and third applicants had grown up and where the first and second applicants had been living in DATE and which was now owned by DATE applicants ; and a house built on plot CARDINAL where the third , fourth , fifth and sixth applicants had been living in DATE and which was jointly owned by the second and third applicants .

The applicants are mother and daughter , born in DATE and DATE respectively . In DATE , the first applicant 's husband died and the family home owned by him was inherited by the first applicant and her CARDINAL children . In DATE , on the second applicant 's marriage , the first applicant rented an apartment pending the availability of another property under lease .

In DATE , due to health reasons , the first applicant transferred her share in the family home and other properties , including houses , shops and fields to the second applicant .

The applicants are a family ; the third and fourth applicants born in DATE and DATE are the parents of the first and second applicants born in DATE and DATE .

Prior to the invasion in DATE , the third applicant had run a shop on land which had been owned by the fourth applicant . She had also owned CARDINAL plots of land , on CARDINAL of which was situated the family home .

The applicants are a family ; the first applicant is the mother of the second , third , fourth and fifth applicants , born in DATE and DATE respectively . Prior to events in DATE , they had lived together in the family home owned by the first applicant 's husband . His property , CARDINAL plots of land , including business LOC , building plots , fields and orchards , was inherited by the applicants on his death in DATE . The first applicant however donated her share to the other applicants .

The first and second applicants , husband and wife , are the parents of the third , fourth and fifth applicants who were born in DATE , DATE and DATE . The first applicant owned CARDINAL plots of land , QUANTITY and a storehouse ; the second applicant owned CARDINAL building plots , CARDINAL buildings and QUANTITY ; both appear to have jointly owned the family apartment . The third , fourth and fifth applicants also owned property , including a flat and various plots of building land .

The applicant family , now living in GPE , consist of the first and second applicants , husband and wife , and their CARDINAL children , the third and fourth applicants , born in DATE and DATE . The first applicant was part owner of the family house , as well sharing ownership of a plot of land with the second applicant .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

On DATE ORG ( Prokurator Okręgowy ) charged the applicant with being an accomplice to an armed robbery and murder in GPE .

On DATE ORG ( Sąd Rejonowy ) remanded the applicant in custody . The court justified its decision by the strong evidence against the applicant , the likelihood of a severe sentence of imprisonment being imposed on him if convicted and the risk that he might obstruct the proceedings .

On an unspecified date the applicant was charged with being an accomplice to an armed robbery , murder , false imprisonment and being a member of an organised criminal gang ( no . II K CARDINAL/CARDINAL ) . All the offences in question were alleged to have taken place in GPE .

Subsequently , on CARDINAL DATE the applicant was charged with being an accomplice to an armed robbery and with the imprisonment , torture and murder of a certain ORG , and with being a member of an organised criminal gang in GPE .

On DATE the bill of indictment was lodged with ORG .

The applicant 's pre - trial detention was extended by the decision of ORG ( Sąd Apelacyjny ) of DATE ( upheld by ORG ( Sąd Najwyższy ) on DATE ) and the decisions of ORG of DATE , DATE and CARDINAL DATE ( upheld by ORG on DATE , CARDINAL DATE and DATE , respectively ) .

The courts referred to the original grounds for the applicant 's detention and , additionally , to the international dimension of the case .

Meanwhile , on DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The reports obtained from NORP and NORP forensic experts in the course of the proceedings were contradictory as regards the cause of the victim 's death . However , relying on the witness testimony and other evidence , the court established that the victim had died not as a result of asphyxia ( when the applicant , acting together with accomplices , strangled him with a wire and put tape around his face ) as claimed by some experts but as a result of being shot by the applicant in a forest where the applicant had possibly buried him with the aid of the gang .

On DATE ORG quashed the above judgment and remitted the case to the prosecution for further investigation , with a view to eliminating the major discrepancies in the evidence obtained .

On DATE ORG issued a new decision charging the applicant with , among other offences , attempting to kill PERSON by strangling him and then hiding the body . The supplementary investigation revealed that the victim had died as a result of numerous wounds inflicted on him . In addition , the applicant was found to have incited and led the other accomplices , acting on orders from a certain LANGUAGE All the offences in question were alleged to have taken place in GPE .

Meanwhile , the preventive measure was upheld by decisions of ORG of DATE , DATE , DATE and DATE , and DATE , DATE and DATE .

Subsequently the applicant 's pre - trial detention was extended by the trial court , ORG , in its decisions of DATE and DATE and of DATE and CARDINAL DATE ( upheld by ORG on DATE and DATE and on CARDINAL May and DATE , respectively ) .

The courts reiterated the original grounds for the applicant 's pre - trial detention . In addition , although they acknowledged the fact that the investigation had been lengthy , the domestic courts considered it justified in the light of the international character of the case and the fact that certain witnesses had to be examined with the aid of the NORP authorities .

On an unspecified date in DATE a new bill of indictment was lodged by the prosecutor ( no . II K CARDINAL/CARDINAL ) and the case was sent to ORG .

From DATE until DATE the trial court held CARDINAL hearings . The court examined a NORP witness and obtained a forensic report from a NORP expert . The case file comprised CARDINAL volumes in NORP and CARDINAL volumes in NORP .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . That term was reduced by the period which the applicant had already spent in pre - trial detention , from DATE until DATE and from DATE until DATE .

On DATE ORG acquitted the applicant of inciting and commanding the other accomplices and upheld the remainder of the first - instance judgment .

On DATE ORG dismissed the cassation appeals lodged by the defence lawyers .

NORP In parallel to his pre - trial detention which is the subject of the instant application , the applicant served CARDINAL separate prison sentences . DATE and DATE the applicant was serving a sentence of DATE imposed on him by a judgment of ORG of an unspecified date ( no . III K CARDINAL/CARDINAL ) . On DATE he started serving a sentence of DATE imprisonment , which was imposed on him by a judgment of ORG of an unspecified date ( no . II K CARDINAL/CARDINAL ) .

During his pre - trial detention , the applicant was first held in FAC and later in FAC .

On DATE ORG of ORG ( FAC ) classified him as a “ dangerous detainee ” ( “ N ” ) . That decision was based on the information about the applicant obtained from the trial court , namely that he had been suspected of a cruel crime committed while acting in an organised criminal gang .

On DATE that decision was lifted by ORG .

The applicant did not submit any details about the conditions of his detention under the “ N ” regime .

It appears that on DATE the applicant was released on parole .

The applicant did not complain about the length of the proceedings under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are summarised in several judgments concerning similar cases ( see , among others , ORG v. GPE , no . CARDINAL , § § DATE , DATE ; ORG v. GPE , no . GPE , § § CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE ) .

The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings , in particular the applicable provisions of the above - mentioned DATE Act , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL ( dec . ) , § § CARDINAL , ECHR CARDINAL-V and Ratajczyk v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII , and its judgment in the case of PERSON v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Ms O. Preobrazhenskaya , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON and PERSON , former Representatives of GPE at ORG .

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

On DATE the ORG Deputy Prosecutor opened a criminal investigation in respect of the applicant , who was at the time a member of the regional legislature , on suspicion of tax evasion .

On DATE the applicant was questioned by the investigator as a suspect and signed an undertaking not to leave town pending the investigation . At the time he resided in ORG in LOC .

On DATE the applicant was indicted on the charge of tax evasion .

On DATE the investigator authorised the applicant 's detention pending the investigation . In particular , the investigator noted :

“ Having regard to the gravity of the charge and the fact that [ the applicant ] does not have permanent employment and may abscond or put pressure on witnesses and conspire with other co - accused to obstruct the course of justice , [ the investigator ] decides to ... place [ him ] in custody ... ”

It appears that the applicant left for GPE on DATE . He did not notify the investigator of his departure . On DATE the applicant 's name was put on the wanted persons ' list . From CARDINAL DATE the applicant underwent in - patient treatment in a cardiology centre in GPE . From DATE to DATE the applicant was in GPE , where he fell ill and received unspecified outpatient treatment . Upon his return to ORG he was arrested in his flat on DATE and placed in custody . His lawyer appealed , asking the court to release the applicant .

On DATE the ORG of LOC confirmed the lawfulness of the applicant 's arrest , noting that :

“ [ The applicant ] is charged with a serious offence which carries a custodial sentence of DATE . Furthermore , [ the applicant ] earlier absconded and his name was put on the wanted persons ' list ” .

On DATE the applicant was charged with fraud and abuse of power . On CARDINAL and DATE the charges were dropped .

On DATE the applicant was indicted on charges of securities fraud , corrupt business practices and breach of trust .

On DATE the applicant was released on an undertaking not to leave town .

On DATE the applicant consulted a psychiatric hospital in GPE and agreed to undergo in - patient treatment there . He was diagnosed with an “ organic disorder of mixed origin with cerebro - asthenic and psychopathic - like personality change ” ( органическое расстройство смешанного генеза с церебрастеническими , психопатоподобными изменениями личности ) . He was released from hospital on DATE .

From DATE to CARDINAL November CARDINAL the applicant underwent treatment in the same hospital . It appears that the applicant failed to inform the authorities of his departure from ORG and on DATE the regional prosecutor revoked the applicant 's undertaking not to leave town and ordered his detention pending investigation and trial . The prosecutor noted that the applicant , who “ remained impenitent ” , might obstruct the course of justice or abscond . On DATE the prosecutor transferred the applicant 's case file to ORG of LOC . On DATE the applicant was placed in remand prison no . IZ-CARDINAL/CARDINAL in GPE .

On DATE the ORG of LOC scheduled the opening of the trial for DATE . The applicant was to remain in custody .

On DATE ORG dismissed an application by the applicant for release . On DATE ORG upheld the decision of CARDINAL DATE on appeal . The court noted that the applicant was charged with serious offences , which fact alone justified his pre - trial detention .

On DATE forensic psychiatrists examined the applicant and found him fit to stand trial .

On DATE ORG ordered the applicant to undergo a comprehensive psychiatric examination . The applicant was transferred to remand prison no . CARDINAL in GPE on DATE . On DATE he was placed in a forensic psychiatric hospital . On DATE the medical panel established that the applicant did not suffer from any chronic mental disorder and ruled that he was fit to stand trial . On DATE the applicant was transferred back to remand prison no . IZ-CARDINAL/CARDINAL in GPE .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment .

On DATE the ORG quashed the judgment of CARDINAL DATE on appeal and referred the matter back for fresh consideration .

On DATE the applicant was released on an undertaking not to leave town . On an unspecified date he left for GPE , in LOC , where he underwent in - patient treatment for ischaemia and an organic disorder of mixed origin with cerebro - asthenic and psychopathic - like personality change in hospital no . CARDINAL from DATE to DATE .

On DATE the hospital informed ORG that the applicant 's condition did not entail an impediment to his participation in the trial .

On DATE the applicant failed to attend the hearings . According to the applicant , on DATE ORG had to adjourn the hearing owing to his poor health . In response to the applicant 's complaints about his health , the court summoned an emergency response doctor , who examined the applicant and gave him pain relief .

On DATE ORG granted a request by the applicant to adjourn the hearing until DATE to allow him to hire a new lawyer to represent him . Later that day the applicant consulted a doctor .

On DATE the applicant was examined by a medical panel which recommended that he should avoid stressful situations for DATE .

On DATE , DATE and DATE ORG held hearings . It dismissed the applicant 's request to stay the proceedings on account of his poor health condition . The court relied on the opinion of the doctors from hospital no . CARDINAL , where the applicant was undergoing in - patient treatment at the time . According to the applicant , he did not feel well after the hearings and had to seek medical assistance .

On DATE hospital no . CARDINAL discharged the applicant , noting that his health condition was satisfactory .

On DATE the applicant allegedly lost his eyesight temporarily and asked the court to adjourn the hearing . The court called for an ambulance , which took the applicant to a hospital in ORG , where he stayed until DATE . He was diagnosed with cervical osteochondrosis and hernia of intervertebral discs , myelopathy , astheno - neurotic syndrome , ischaemia , angina pectoris and hypertension and underwent relevant treatment . Then he was transferred to another hospital in GPE on DATE . The court hearings on DATE and DATE were adjourned . It appears that the applicant did not obtain ORG authorisation for his transfer to PERSON .

On DATE the ORG recommended that the applicant be examined by neurology specialists in GPE . The applicant 's medical file was forwarded to ORG no . CARDINAL affiliated to ORG .

On DATE the applicant failed to attend the hearing and the judge ordered his detention pending trial . The court noted that the applicant had violated his undertaking not to leave town . The applicant was taken into custody in hospital and transferred to a temporary detention unit in ORG on DATE . He was held there until DATE . DATE the administration called for emergency response doctors to attend to the applicant . On DATE , upon the neurologist 's recommendation , the applicant was transferred to a hospital in ORG . According to the applicant , he lost sensitivity in his legs and was constantly in pain in the spinal area . He felt giddy and had headaches and heart pain . His limbs were swollen . His speech was slow and he suffered from memory loss .

On DATE the medical professionals at ORG examined the applicant 's medical file and recommended that he receive spinal surgery “ shortly ” .

On DATE the applicant started wearing a neck brace . On DATE the policemen removed him from hospital and took him to the temporary detention unit in ORG . On DATE ORG adjourned the hearing in response to a complaint by the applicant about his medical condition . The applicant was examined by a general practitioner , who testified in court , recommending a comprehensive medical examination . On DATE ORG granted the prosecutor 's request and commissioned an expert panel to examine the applicant in order to ascertain whether his health condition permitted him to participate in the proceedings .

It appears that on DATE the applicant arranged for a meeting with a group of medical professionals from GPE . However , the judge in charge of his case refused to authorise their access to the temporary detention unit where the applicant was being held at the time .

According to the applicant 's medical file , submitted by the Government , on DATE he was transferred to the medical unit at remand prison no . IZ-CARDINAL/CARDINAL in GPE .

On DATE the applicant was examined by a medical panel comprising specialists in neurosurgery , cardiology , neuropathology , neurology and general therapy . The experts concluded that the applicant could participate in the proceedings . They noted that he could move his feet and toes , but he refused to flex the knees , alleging that such movements caused extra pain in the spinal cord . The applicant was able to sit up and turn from side to side . They summed up their findings as follows :

“ [ The applicant ] suffers from cervical osteochondrosis and hernia of intervertebral disks , myelopathy , astheno - neurotic syndrome , ischaemia , angina pectoris and hypertension . The applicant 's current condition allows him to participate in the criminal proceedings . [ ORG , ORG ] and town hospital no . CARDINAL ... recommended that [ the applicant ] undergo in - patient treatment and surgery shortly . The in - patient treatment and surgery in question have been recommended on account of the deterioration of the applicant 's health . ”

On DATE Colonel PERSON of ORG for the Execution of Sentences asked ORG for the Execution of Sentences for the applicant to be transferred to ORG in GPE . In particular , he noted that the applicant 's condition required specialist medical intervention , which was unavailable at the remand prison .

On DATE ORG resumed the proceedings . Prior to the hearing , the applicant , who complained of a headache , heart pain , dizziness and shortness of breath , was examined by a general practitioner at the courthouse . The doctor noted that the applicant was suffering from an attack of angina pectoris and prescribed pain - relieving medication . The hearing was adjourned .

ORG subsequently held hearings on CARDINAL , DATE and DATE . Prior to each hearing , doctors examined the applicant and found him fit to participate in the proceedings . They noted , inter alia , that the applicant was lucid and responded appropriately to the questions asked .

During the trial the applicant pleaded not guilty and chose not to testify .

On DATE the ORG acquitted the applicant of breach of trust , found him guilty of securities fraud and tax evasion and sentenced him to DATE imprisonment . The court also granted civil claims brought against the applicant with regard to the securities fraud .

On DATE ORG for the Execution of Sentences authorised the applicant 's transfer to hospital no . CARDINAL , affiliated to ORG .

On DATE the applicant was examined by a neurosurgeon and a neurologist , who confirmed the earlier diagnosis and recommended that the applicant be transferred to ORG to determine the date of the surgery .

On DATE ORG upheld the applicant 's conviction in substance on appeal .

CARDINAL July CARDINAL the applicant underwent treatment at a regional hospital . On an unspecified date he was transferred to hospital no . CARDINAL in GPE . On DATE the applicant had surgery . He was discharged from hospital on DATE .

On DATE the ORG of GPE reclassified the applicant 's conviction to bring it into compliance with the amendments of LAW . The term of the sentence remained unchanged . On DATE ORG upheld the decision of CARDINAL DATE on appeal .

On DATE the police conducted a search of the applicant 's flat and seized MONEY .

The applicant lodged a complaint with ORG , arguing that the money should be transferred to the tax authorities as payment of his tax arrears . On DATE the court dismissed the applicant 's complaint . On DATE ORG upheld the judgment of CARDINAL DATE on appeal .

It appears that the money in question was admitted in evidence and deposited with the tax authorities pending criminal proceedings against the applicant .

On DATE , in response to an inquiry initiated by the applicant 's wife , ORG ruled that the money seized in his flat and deposited with the tax authorities would be used to repay the pecuniary damage caused by his crimes . On DATE ORG refused to reinstate the time - limits for the applicant 's appeal . On DATE the ORG quashed the decision of DATE and discontinued the proceedings , noting that even though the applicant 's wife was his representative , she was not authorised as a matter of law to initiate the inquiry .

On DATE the bailiff seized the money in the context of enforcement proceedings against the applicant .

On DATE the ORG of LOC dismissed the applicant 's complaint about the seizure of his money by the bailiff . On DATE ORG upheld the judgment of DATE on appeal .

The applicant submitted that from CARDINAL to DATE he was detained in an overcrowded cell at the temporary detention unit in GPE .

From DATE to CARDINAL June CARDINAL , from DATE to CARDINAL DATE and from CARDINAL August to DATE the applicant was detained in remand prison no . IZ-CARDINAL/CARDINAL in GPE . According to the applicant , all the cells in the prison were overcrowded . The number of beds was insufficient and the inmates had to take turns to sleep .

From DATE the applicant was held in remand prison no . CARDINAL/CARDINAL in GPE . According to the applicant , during the period in question he was detained in severely overcrowded cells . The cells were infested with cockroaches . The windows were covered with metal shutters which prevented access to fresh air . The light , which was constantly on , was not sufficient to permit reading . His relatives were not allowed to send him books or periodicals . Nor were they available from the prison library . The food was of low quality . On frequent occasions the inmates received CARDINAL meals per day . The DATE walk lasted DATE .

From DATE and from DATE the applicant was detained in the temporary detention facility in ORG . The applicant was kept in a basement in a cell without windows or the possibility of access to fresh air . He was not provided with bed sheets or toiletries . There was no toilet in the cell .

According to the applicant , he was unable to walk at the time . The guards did not have stretchers and had to carry him from the van to the courtroom holding him by the arms and legs .

From DATE to DATE the applicant was detained in the medical unit of remand prison no . IZ-CARDINAL/CARDINAL in DATE . According to the Government , the applicant was detained in “ ward no . CARDINAL ” , which measured QUANTITY . It had CARDINAL sleeping places and QUANTITY inmates , including the applicant , were detained there .

According to the applicant , he had an individual sleeping place . He provided no further details as to the conditions of his detention during the period in question .

The relevant extracts from the CARDINALrd ORG [ ORG ( CARDINAL ) CARDINAL ] by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

“ CARDINAL . A prison 's health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . ... Further , prison doctors should be able to call upon the services of specialists . ...

Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .

The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital .

A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

DATE . A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient 's evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .

Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .

The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ”


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

At TIME on CARDINAL DATE the applicant and an accomplice were surprised by police while in the process of trying to enter a computer equipment shop through a hole in the wall of the basement of a neighbouring building . They had previously drilled the hole over the course of DATE , and in this way had attracted the attention of the building ’s inhabitants .

On TIME the applicant and his accomplice were heavily armed . The applicant opened fire and shot a police officer dead . Later he detonated a hand grenade . In the ensuing exchange of gunfire his accomplice was injured and died . The special antiterrorism squad intervened TIME . The applicant gave himself up and was arrested at TIME , after negotiations with the police , a psychologist and a public prosecutor .

On DATE , CARDINAL DATE , the applicant was charged with attempted robbery committed in conspiracy with others and accompanied by murder , and placed in pretrial detention .

NORP The charges against him were later amended to include the unlawful possession of firearms , ammunition and explosives in large quantities , the murder of a police officer , and attempted murder of CARDINAL police officers committed in a manner and by means which endangered several lives and by a person who had already committed murder . The maximum penalty on conviction for those offences was life imprisonment , with or without parole .

After GPE Prosecutor ’s Office referred the case back to the investigator on CARDINAL occasions for additional investigation , on CARDINAL DATE the investigator finished his work on the case , recommending that the applicant be committed for trial .

On DATE ORG filed an indictment against the applicant with GPE .

On DATE the judgerapporteur to whom the case was assigned set it down for hearing on CARDINAL and DATE . As required by LAW , as in force at that time , he examined of his own motion whether the applicant ’s pretrial detention should be replaced with a more lenient measure , and confirmed it without giving reasons .

NORP The trial against the applicant began in DATE , but had to restart in DATE , as in DATE the judge - rapporteur was appointed as the Minister of ORG and the formation examining the case did not include a reserve judge .

NORP Over the course of DATE numerous hearings were adjourned for various reasons . On some occasions the adjournments were made necessary by the fact that the applicant had dismissed his counsel and instructed new ones , who needed time to acquaint themselves with the case file .

In a judgment of DATE the ORG found the applicant guilty of murdering a police officer , attempting to murder another police officer and unlawfully possessing firearms and explosives . Although under the relevant provisions of the DATE LAW it could have imposed a sentence of life imprisonment , it opted for a lesser penalty and sentenced the applicant to CARDINAL years’ imprisonment , citing his clean criminal record , and the facts that he had a family and had not been fully discredited morally and socially .

Both the applicant and the prosecution appealed . The prosecution requested that the applicant ’s sentence be increased to life imprisonment .

On DATE ORG upheld ORG judgment . When considering the appropriateness of the applicant ’s sentence , it found that the mitigating circumstances relied on by the lower court were not sufficient to warrant a sentence less than the maximum penalty . It also found that GPE had failed to take into account certain aggravating circumstances , such as the victim ’s good moral character . In its judgment , the murder committed by the applicant was considerably graver than other offences of that type and the aggravating circumstances were , overall , of such weight and intensity as to rule out a penalty showing any degree of lenience . However , it went on to say , by express reference to LAW , that the criminal charges against the applicant had not been determined within a reasonable time , with all the negative repercussions which this had had on him . It found that the excessive length of the proceedings was not attributable to the applicant ’s conduct , although he had at times failed to organise his defence efficiently . In the court ’s view , the undue delay amounted in itself to a mitigating circumstance , which obviated the need to imprison the applicant for life , in line with the former ORG ’s and the ORG ’s caselaw that the excessive length of criminal proceedings could be remedied by a reduction in sentence .

The applicant and the prosecution appealed on points of law . The prosecution again argued that the penalty was far too lenient and should be increased to life imprisonment .

In a judgment of CARDINAL DATE ORG upheld ORG judgment , endorsing its reasoning .

The applicant was arrested on CARDINAL DATE and detained by an investigator ’s order of DATE . The reasons given by the investigator were that the applicant had committed a serious wilful offence and that there existed a genuine risk that he might abscond . On DATE the investigator ’s order was approved by a prosecutor .

The applicant made his first request for release on DATE , when the proceedings against him were at the preliminary investigation stage . The request was dismissed by ORG at a public hearing held on DATE . The court observed that the applicant had committed a serious wilful offence carrying a very severe penalty , and that no special circumstances warranting his release existed . This decision was not subject to appeal . Nevertheless , on DATE , when the proceedings against him had already progressed to the trial stage , the applicant appealed against it to ORG . In a decision made in private on DATE ORG , finding that the applicant ’s legal challenge was actually not an appeal but a fresh request for release , sent it to GPE for a ruling . On DATE the applicant appealed against this decision to ORG . On DATE ORG returned the appeal , informing the applicant that its decision was not subject to appeal on points of law . It seems that GPE did not examine the request .

On DATE the applicant appealed against the decision of the judgerapporteur to confirm his detention of his own motion following receipt of the indictment ( see paragraph CARDINAL above ) . On DATE ORG , sitting in private , declared the appeal inadmissible .

The applicant made further requests for release at several trial hearings , held on DATE and DATE , and DATE and CARDINAL DATE . They were all turned down by ORG at the respective hearings . The applicant ’s ensuing appeals were dismissed by ORG by decisions made in private on DATE , DATE , DATE and an unknown DATE .

In their reasoning ORG and ORG stressed , with various degrees of detail , the following points : ( i ) the applicant stood accused of several very serious offences , which in itself justified the conclusion that he was a dangerous individual who could abscond or reoffend , ( ii ) there were no fresh circumstances warranting his release , and ( iii ) no unwarranted delays had taken place in the criminal proceedings , as the case was factually and legally complex .

NORP In its decision of CARDINAL DATE ORG stated that the presumption under LAW ( CARDINAL ) of LAW , in DATE version , about the existence of a risk that the detainee might abscond or reoffend ( see paragraph CARDINAL below ) applied to the applicant ’s case . In CARDINAL other decisions – those of DATE and DATE that court expressed the view that the applicant ’s lack of a criminal record , known identity and permanent place of abode were not enough to rebut this presumption .

On CARDINAL occasions , in DATE and DATE , the applicant ’s appeals against the decisions of ORG were sent to the competent public prosecutors , who commented on them in writing . These comments were not communicated to the applicant and later the Sofia Court of Appeal ruled on the appeals in private , without holding a hearing , with the result that the applicant did not have the opportunity of replying to these comments .

NORP In DATE and DATE the applicant made CARDINAL further requests for release in writing . They were turned down by ORG in decisions made in private on DATE and DATE and DATE . On appeal , these decisions were upheld by ORG in decisions also made in private on DATE , CARDINAL DATE and DATE .

The applicant later lodged CARDINAL more requests for release . They were all rejected by ORG at public hearings held on DATE , CARDINAL May , DATE and DATE . The applicant ’s ensuing appeals were dismissed by ORG by decisions made in private on DATE , DATE , DATE and DATE . ORG declined to examine a further request for release made by the applicant during the trial hearing on DATE , on the grounds that his counsel was absent and it could not proceed with the case .

In turning down the requests for release made DATE and DATE the courts relied on the seriousness of the charges against the applicant , the lack of change in the circumstances save for the passage of time , the complexity of the case and the diligent conduct of the proceedings . In their decisions of CARDINAL DATE and DATE and DATE the ORG and ORG expressed the view that the length of the proceedings was due to the numerous adjournments caused by the applicant .

In its decisions of CARDINAL May , DATE and DATE the ORG stated that under the newly added LAW DATE Code of Criminal Procedure ( see paragraph CARDINAL below ) , when ruling on requests for release made during the trial , it was barred from examining the existence or otherwise of a reasonable suspicion against the applicant . In its view , to do so would mean to prejudge the merits of the criminal case against the applicant . It was true that under LAW ( c ) of the LAW the court had to examine whether a reasonable suspicion existed , but that applied only to rulings made at the pretrial stage . This view was endorsed by ORG in its decision of DATE . For this reason , the courts declined to delve into the applicant ’s arguments concerning this point .

On DATE the ORG convicted the applicant ( see paragraph CARDINAL above ) . In a separate decision it confirmed his detention .

On DATE the applicant asked ORG to annul certain provisions of Regulation no . CARDINAL governing the legal regime of pretrial detainees ( see paragraph CARDINAL below ) , which , in his view , violated , inter alia , his freedom of correspondence . In a final judgment of DATE ORG rejected his application .

The relevant provisions of LAW and the NORP courts’ practice before DATE are summarised in the ORG ’s judgments in several similar cases ( see , among others , PERSON GPE [ ORG ] , no . ORG , § § CARDINAL , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL ( extracts ) ) . On DATE the legal framework of pretrial detention was amended with the aim of ensuring the compliance of NORP law with LAW тълк. реш. № CARDINAL от CARDINAL юни DATE г. по ORG CARDINAL/CARDINAL г. , ORG на ORG ) . The amendments and the resulting practice of the NORP courts are summarised in the ORG ’s judgments in the cases of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) , and GPE v. GPE ( no . MONEY , § § DATE , DATE ) .

On DATE the DATE Code was superseded by DATE Code of Criminal Procedure , which reproduced all the provisions brought in with the DATE reform .

By Article CARDINAL § CARDINAL of the DATE Code , during the trial the GPE requests for release were examined by the trial court ( the same is currently provided for by LAW ) . It followed from LAW CARDINAL and CARDINAL of the DATE Code that these requests could be examined in private or at an oral hearing ( under LAW , these requests must be examined at an oral hearing ) . The law did not – and still does not – require the court to decide within a particular timelimit .

The trial court ’s decision was subject to appeal to the higher court ( LAW of LAW ; superseded by LAW ) . The higher court could examine the appeal in private or , if it considered it necessary , at an oral hearing ( LAW , reproduced in LAW ) .

A new Article CARDINALa was added to LAW in DATE . By paragraph CARDINAL of that Article ( presently reproduced in LAW ) , a fresh request for release at the same level of court could be made only if there had been a change in circumstances . LAW in fine of LAW ( presently reproduced in LAW in fine of the DATE Code ) provided that the trial court had to refrain from examining the existence or otherwise of a reasonable suspicion against the detainee .

Section CARDINAL of the DATE ORG to Citizens Act ( “ the ORG ” – ORG за отговорността на държавата за вреди , причинени на граждани DATE this was the original title ; on DATE it was changed to the ORG and ORG , ORG за отговорността на държавата и общините за вреди ) , provides as follows :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :

NORP pretrial detention , including when imposed as a preventive measure , when it has been set aside for lack of lawful grounds ;

NORP criminal charges , if the person concerned has been acquitted , or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence ... ”

In a binding interpretative decision ( тълк. реш. № CARDINAL от CARDINAL април DATE г. на ORG по PERSON № CARDINAL/CARDINAL г. , ORG ) made on DATE the Plenary Meeting of ORG of ORG resolved a number of contentious issues relating to the construction of various provisions of the ORG . In line with the ORG earlier case - law , in point CARDINAL of the decision it held that pretrial detention was unlawful when it did not comply with the requirements of LAW and that the ORG was liable under section CARDINAL(CARDINAL ) of the ORG when such detention had already been set aside as unlawful .

Individuals seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the ORG have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на GPE , GPE г.о. ) .

Articles CARDINAL , CARDINAL § DATE LAW read , as relevant :

“ Everyone has the right to meet in confidence with the person who defends him . The confidentiality of their communication shall be inviolable . ”

“ The private life of citizens shall be inviolable . Everyone has the right to protection against unlawful interference in his private or family life and against encroachment on his honour , dignity and reputation . ”

“ CARDINAL . NORP The freedom and secrecy of correspondence and other communications shall be inviolable .

NORP This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences . ”

Section CARDINAL(CARDINAL ) of the DATE LAW ( ORG за адвокатурата ) , presently superseded by section ORG ) of the CARDINAL Bar Act , provided that the correspondence between lawyers and their clients was inviolable , could not be subject to interception and could not be used as evidence in court .

DATE the legal regime of pretrial detainees , including their correspondence , was the subject of QUANTITY issued by the Minister of Justice : Regulation no . CARDINAL of DATE , superseded by Regulation no . CARDINAL of DATE .

Under section PERSON ) of Regulation no . CARDINAL , detainees had the right to send and receive an unlimited number of letters . Section CARDINAL(CARDINAL ) of the Regulation provided that letters ( except those to and from the GPE counsel ) , which contained advice about the criminal proceedings against them , were not allowed to be passed on , but instead had to be made available to the competent prosecutor or court .

Section GPE ) of Regulation no . CARDINAL provided that “ the correspondence of the accused and of the indicted [ was ] subject to inspection by the [ detention facilities ] administration ” .

In a decision of DATE ( реш. № DATE от CARDINAL декември DATE г. по PERSON № DATE г. , PERSON , петчленен състав , обн. , GPE , бр. CARDINAL от CARDINAL януари DATE г. ) ORG annulled this provision , holding that it was contrary to LAW , DATE and DATE of the DATE LAW see paragraph CARDINAL above ) , LAW and section CARDINAL(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL above ) , as it provided for systematic monitoring of the entirety of the GPE correspondence .

In DATE the CARDINAL Execution of Punishments Act ( ORG за изпълнение на наказанията ) , which is the statute regulating , along with other matters , the manner of serving custodial sentences , was amended and now incorporates , in the newly added sections DATE , special rules relating to pretrial detainees . As a result , Regulation no . CARDINAL ceased to apply ; it was however expressly repealed only on DATE , when the Minister of ORG amended the Regulations relating to the application of the LAW ( see paragraph DATE below ) .

The new section CARDINALd(CARDINAL ) of the DATE Act provided that “ [ CARDINAL correspondence of the accused and of the indicted [ was ] subject to inspection by the [ prison ] administration ” .

In a decision of DATE ( реш. № CARDINAL от CARDINAL април DATE г. по PERSON № DATE г. , обн. , GPE , бр. CARDINAL от DATE г. ) ORG , acting pursuant to a request by ORG , declared this provision unconstitutional . After analysing in detail the relevant constitutional and LAW provisions and making reference to , among others , the cases of ORG v. the GPE ( judgment of DATE , Series A no . CARDINAL ) , PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE ) and ORG v. GPE ( judgment of DATE , Reports CARDINALVII ) , it held that a blanket authorisation to inspect the correspondence of all detainees without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles CARDINAL § CARDINAL and CARDINAL of the DATE LAW see paragraph CARDINAL above ) .

Following the Constitutional Court ’s decision , on DATE the Regulations for application of the CARDINAL Execution of Punishments Act were amended . Under the new section CARDINAL(CARDINAL ) , pretrial detainees are entitled to unlimited correspondence which is not subject to monitoring . Envelopes have to be sealed and opened in the presence of members of staff , in a manner allowing those members to make sure that they do not contain money or other prohibited items ( section CARDINAL ) of the Regulations ) .


CASE "RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM" v. BELGIUM

Preliminary objection rejected (incompatibility)

The object of the ORG ’s request is to submit the case to the ORG , so that the ORG may decide whether or not certain provisions of the NORP linguistic legislation relating to education are in conformity with the requirements of ORG CARDINAL and CARDINAL ( article CARDINAL , article DATE ) of the Convention and Article CARDINAL of LAW ( PCARDINAL - CARDINAL ) .

The Commission ’s provisional submissions on the merits of the case are set out in paragraph CARDINAL of its first memorial .

The Applicants , who are parents of families of NORP nationality , applied to the ORG both on their own behalf and on behalf of their children DATE , of whom there are CARDINAL . Pointing out that they are LANGUAGE - speaking or that they express themselves most frequently in LANGUAGE , they want their children to be educated in that language .

GPE , GPE , GPE , GPE , PERSON and PERSON , where the signatories of CARDINAL of the CARDINAL Applications ( Nos . GPE , GPE , DATE , and CARDINAL ) live , belong to the region considered by law as NORP - speaking , whereas ORG ) has since DATE formed part of a separate administrative district with a " special status " . In all of these districts ( " communes " ) part of the population - in some cases a large part - is LANGUAGE - speaking .

Though the CARDINAL Applications differ on a number of points , they are similar in many respects . For the purposes of this judgment it is sufficient to note that in substance they complain that ORG :

- does not provide any LANGUAGE education in the municipalities where the Applicants live or , in the case of PERSON , that the provision made for such education is , in their opinion , inadequate ;

- withholds grants from any institutions in the said municipalities which may fail to comply with the linguistic provisions of the legislation for schools ;

- refuses to homologate leaving certificates issued by such institutions ;

- does not allow the Applicants’ children to attend the NORP classes which exist in certain places ;

- thereby obliges the Applicants either to enrol their children in local schools , a solution which they consider contrary to their aspirations , or to send them to school in the " LOC district " , where the language of instruction is NORP or NORP according to the child ’s mother - tongue or usual language or in the " LANGUAGE - speaking region " ( PERSON area ) . Such " scholastic emigration " is said to entail serious risks and hardships .

In the main the Applicants complain that they and their children have suffered violation of certain Articles of the Convention and the LAW as a result of being subjected to various provisions of LAW of DATE " on language regulations in primary and intermediate education " , LAW of DATE " on the conferring of academic degrees " , the Acts of DATE and DATE , LAW of DATE " on language regulations in education " and the LAW of DATE " on the use of languages in administrative matters " . The Acts of DATE were repealed by LAW DATE , but were still in force when the PERSON , GPE , GPE , GPE and GPE Applicants brought their cases before the Commission , and those Applicants still challenge these acts while at the same time attacking the present legislation .

Before the Commission , the Applicants complained of violations of ORG CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article DATE ) of the Convention and Article CARDINAL of the LAW ( PCARDINAL - CARDINAL ) .

ORG , for its part , pleaded that the legislation in dispute fully respects or respected those ORG , and it therefore asked the ORG to declare the Applications inadmissible as being manifestly ill - founded ( LAW article CARDINAL - CARDINAL ) .

The Commission did in fact , for that reason , reject the complaints which the Applicants ( with the exception of those of PERSON ) based on ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) ; on the other hand , it considered the CARDINAL Applications admissible in so far as they alleged violations of Articles CARDINAL and CARDINAL ( article CARDINAL , article DATE ) of the Convention and Article CARDINAL of the LAW ( PCARDINAL - CARDINAL ) . The decisions on this point were given on various dates DATE .

The Commission having decided to join the CARDINAL Applications , a single ORG ascertained the facts by examining the Applications together with the parties and tried to arrange a friendly settlement between the parties ( Articles CARDINAL and CARDINAL ) ( article DATE , article CARDINAL ) .

This attempt failed , and ORG therefore drew up a report as required under LAW article CARDINAL ) . The report was adopted on DATE and transmitted to ORG on DATE . That DATE the Commission brought the case before the ORG under LAW ( a ) ( article CARDINAL-a ) of the Convention .

Summarising the opinion expressed in its report , the ORG recalled in paragraph CARDINAL of its first memorial that it took the view :

" - by CARDINAL votes to CARDINAL , that the legislation complained of was not incompatible with the first sentence of LAW ( PCARDINAL - CARDINAL ) , considered in isolation ;

- unanimously , that the legislation was not incompatible with the second sentence of the said article ( PCARDINAL - CARDINAL ) , considered in isolation or in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the Convention ;

- by CARDINAL votes to QUANTITY , that the legislation was not incompatible , in the case of the Applicants , with LAW article CARDINAL) of the LAW , considered in isolation or in conjunction with LAW article DATE ) ;

- by CARDINAL votes to CARDINAL , that the general system of education in the areas which are unilingual by law was not incompatible with the first sentence of LAW , considered in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the Convention ;

- by CARDINAL votes to CARDINAL , that the same was true of the " special status " conferred by LAW of CARDINALnd DATE on CARDINAL bilingual communes , of which PERSON , on the periphery of GPE , is CARDINAL ;

- by CARDINAL votes to CARDINAL , that the Acts of DATE were incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the LAW , in so far as they result in the total withdrawal of subsidies from provincial , commune and private schools providing , in the form of non - subsidised classes and in addition to instruction given in the language prescribed by the language legislation , complete or partial education in another language ;

- unanimously , that the conditions on which children whose parents live outside LOC may be enrolled in schools in that district ( LAW of DATE ) were not , in the case of the Applicants , incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the Convention ;

- that the Acts of DATE were incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the LAW , in so far as they prevent certain children , solely on the basis of their GPE place of residence , from attending LANGUAGE - language schools at Louvain ( CARDINAL votes to CARDINAL ) and in the above - mentioned CARDINAL communes on the periphery of GPE ( CARDINAL votes to CARDINAL ) ;

- by CARDINAL votes to CARDINAL , that the legislation complained of was also incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the LAW , in so far as it has resulted , since DATE , in a refusal to homologate certificates relating to secondary schooling not in accordance with the language requirements . "

Altogether , of the CARDINAL members of the Commission concerned in the adoption of the report , CARDINAL found no breach by ORG of its obligations , while the majority considered that there had been a breach on CARDINAL counts , but none on the others . The size and composition of the majorities on the various questions varied appreciably ; moreover , the majorities on some questions embodied CARDINAL point of view . Therefore the Commission ’s report also sets out a number of individual opinions - some concurring , some dissenting .

In its first memorial the Commission pointed out that its decision to refer the matter to the ORG had been unanimous . Among its reasons for taking this step it particularly stressed the legal importance and complexity of the case and its human and social aspects .

During the written proceedings the following submissions were made with regard to the preliminary objection raised by ORG :

- by the Government in its first memorial :

" CARDINAL . LAW secure the enjoyment of the rights and freedoms expressly mentioned in LAW ( article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention and Articles CARDINAL of the LAW ( PCARDINAL - CARDINAL , PCARDINAL - CARDINAL , PCARDINAL - CARDINAL ) .

The idea of " national minority " within the meaning of LAW ) of the Convention may benefit the members of a specified social group where there is a violation of a right of freedom guaranteed in LAW .

However , in these cases , the Convention affords no such protection , since

( a ) the right to education in one ’s own language is not included among the rights and freedoms enshrined in the LAW and the LAW ; a fortiori there is no guarantee of the right to subsidies for education in one ’s own language or to admission to all occupations on the strength of such education ;

( b ) as a subsidiary argument , the " Applicants " do not belong to a " national minority " within the meaning of LAW ) of the Convention ;

( c ) it follows that the ORG is ratione materiae not competent to examine the merits of the dispute submitted to it .

DATE it please the Court

( a ) to admit ORG preliminary objection and dismiss the legal action brought against the Government ;

( b ) alternatively , to join the preliminary objection to the merits . "

- by the ORG in its second memorial

" The ORG invites the ORG to reject the objection raised by ORG " ;

- by the Government in its second memorial

" ORG confirms the submissions stated by it at the end of its first memorial and reserves the right to supplement and amend them in subsequent proceedings " .

At the hearing on DATE , the following submissions were made :

- by the Commission :

" The Commission ... requests the ORG to reject the preliminary objection " .

- by ORG :

" The Government ’s preliminary objection should be accepted and the ORG complaints rejected . Purely subsidiary , the ORG requests that its preliminary objection be joined to the merits . It reserves the right to supplement and amend its submissions in the course of these proceedings " .

At the hearing on DATE the Commission made the following submissions :

‘ ORG upholds its request that the ORG now reject the preliminary objection raised by ORG .

" With regard to the ORG ’s alternative submission that the objection be joined to the merits we do not wish to express an opinion . We leave this point to the wisdom of ORG " .

At the hearing on DATE , ORG asked the ORG by way of final submissions :

- to accept the preliminary objection

and

- alternatively , to join it to the merits .

The Commission for its part stated , before the hearing closed , that it upheld its submission " in full " .