Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 13+6-1 - Right to an effective remedy (Article 6 - Right to a fair trial;Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE ORG on ORG ( “ the Commission ” ) recognised the applicant ’s and other heirs’ inherited title to a number of plots of land , amongst which a plot of land measuring QUANTITY m. As the restitution of that plot of land was impossible since it was occupied , the Commission decided that the applicant and the other heirs would be compensated in CARDINAL of the ways provided for by law .

On DATE , relying on the right of first refusal , the applicant concluded a sale contract with the PERSON regional office of ORG for the purchase of a pharmacy and its corresponding plot of QUANTITY m , which was allegedly part of the plot of land measuring QUANTITY m.

NORP The chemist of the pharmacy lodged a complaint with the PERSON prosecutor office alleging that the sale contract was unlawful .

On DATE the ORG prosecutor initiated civil proceedings with ORG ( “ the ORG ” ) seeking the nullity of the sale contract and the nullity of the GPE decision . The chemist intervened as a third party .

On DATE ORG declared null and void , in part , the ORG ’s decision in so far as it had restored to the applicant the plot of QUANTITY m which corresponded to the site of the pharmacy . Relying on an expert ’s report , it found that the plot of QUANTITY m had been expropriated in DATE , as a result of which LAW was inapplicable ratione temporis . Thus , the applicant could not claim a property right over that plot of land pursuant to LAW in so far as it had not been expropriated by the communist regime . Furthermore , the court decided to annul the contract for the purchase of the pharmacy since any such contract was based on the premise that only the owner of the site had the right of first refusal over the buildings constructed on it . However , the operative part of the judgment stated that the applicant would be compensated only in respect of QUANTITY m , the remainder of the property rights over QUANTITY . m having been declared null and void .

On DATE ORG upheld ORG decision . It found that the prosecutor had locus standi to lodge a civil action in accordance with ORG . It also held that the civil action was not time - barred as it had been lodged pursuant to LAW . It further dismissed the applicant ’s complaint about the assessment of evidence and the credibility of the expert ’s report .

On DATE ORG dismissed the applicant ’s appeal since it did not contain any lawful ground of appeal in accordance with LAW .

On DATE the applicant filed a supervisory review request ( rekurs në interes të ligjit ) with ORG .

On DATE ORG dismissed the applicant ’s supervisory review request in the light of impending review proceedings that she had instituted ( see “ The review proceedings ” below ) .

On an unspecified date the applicant filed a constitutional appeal .

On DATE ORG , sitting in plenary session , dismissed the applicant ’s appeal finding that there had been no breach of the right to fair hearing . It found that the prosecutor ’s civil action had been supported by the intervention of the chemist who had full interests in the case and did not disclose any breach of the applicant ’s right to a fair trial . It further held that there was no other compelling evidence that the fairness of the proceedings had been tainted .

On an unspecified date the applicant requested revision of the decision of DATE .

On DATE ORG dismissed the revision request .

On DATE , following the applicant ’s appeal , ORG upheld the decision of DATE .

It would appear that the applicant ’s appeal to ORG was dismissed on an unspecified date .

On DATE the applicant lodged a request with ORG for the interpretation of its decision of DATE , arguing that there existed a discrepancy between the reasoning and the operative part of the decision .

On DATE ORG entertained her request and rectified the operative part of the decision of DATE . It confirmed that the applicant ’s property rights could not be recognised in respect of QUANTITY m and that the applicant should be compensated as regards the plot of land measuring CARDINAL sq . m in CARDINAL of the ways provided for by law .

NORP The decision became final and binding on DATE , no appeal having been filed against it .

To date , the authorities have still not complied with the ORG decision of DATE , as rectified and interpreted by the decision of CARDINAL DATE .

The relevant provisions of LAW read :

Article CARDINAL § CARDINAL

“ In the protection of his constitutional and legal rights , freedoms and interests , or in the case of a criminal charge brought against him , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

Article CARDINAL § CARDINAL

“ State bodies shall comply with judicial decisions . ”

Article CARDINAL

“ The Constitutional Court shall decide : ... ( f ) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

The relevant domestic law as regards property restitution and compensation in GPE has been described in the judgments of ORG and Others v. GPE , no . CARDINAL , § § DATE , DATE , ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE , ORG and Others v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .

New and substantial legislative measures have been enacted amending the principal DATE Property Act since the adoption of those judgments . The principal amendments are as follows :

Section CARDINAL extended until DATE the time - limit for the completion of the examination of applications for the recognition , restitution and compensation of immovable properties , with the exception of payment of the amount of compensation , the time - limit for which was fixed for DATE .

Section CARDINAL established the Agency for ORG ( “ the central Agency ” ) which replaced ORG on the ORG and Compensation of Properties ( “ the ORG ” ) . The central Agency , which was headed by a Director , had its seat in GPE and was made up of CARDINAL regional Agency offices .

According to section DATE , the regional Agency office was responsible for the initial examination of applications for the recognition of property rights , in response to which it decided on the restitution of property and/or compensation in lieu thereof . Section CARDINAL set the time - limit for the submission of applications for the recognition of property rights for CARDINAL DATE .

Section CARDINAL stipulated that an appeal against a decision of the regional Agency office could be lodged with the central ORG . The decision of the central ORG could be appealed against to ORG within DATE of its notification .

Section CARDINAL extended until DATE the time - limit for the completion of the examination of applications for the recognition , restitution and compensation of immovable properties , with the exception of payment of compensation .

Section CARDINAL provided for the establishment of the In - kind ORG ( NORP ) alongside ORG ( “ ORG ” ) . Within DATE from the LAW ’s entry into force , the ORG had to approve the list of properties to be allocated to the IkCF .

Section CARDINAL provided that the central ORG was responsible for examining claims for in - kind and financial compensation . The central ORG was also responsible for examining appeals against the decisions of regional Agency offices .

Section CARDINAL reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights . The claimant or ORG had the right to appeal against that decision within DATE to the central ORG , which was the highest administrative body . Such an administrative decision was amenable to judicial review in accordance with the provisions of LAW .

Section CARDINAL extended until DATE the time - limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices . It also provided for the possibility for a claimant to be given a new time - limit by way of a court decision .

According to section CARDINAL , the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on DATE , with the exception of the payment of the amount of compensation , the deadline for which was fixed for DATE .

Section CARDINAL extended until DATE the deadline for the allocation of properties to the IkCF .

Section CARDINAL provided that in addition to the budgetary appropriations , the allocations obtained by virtue of this law and other donors , the ORG would also be made up of proceeds obtained through auctions of ORG which had not been the subject of a Commission decision .

Section CARDINAL abolished the regional Agency offices . It stated that the archives of those offices would be transferred to the central ORG . According to section CARDINAL , the central ORG would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices . The central ORG continued to examine appeals lodged with it against former regional Agency offices’ decisions .

According to section CARDINAL , the claimant or ORG had the right to appeal against the central ORG ’s decision within DATE of its notification to ORG .

Section CARDINAL set the deadline for the completion of the examination of applications for the recognition and restitution of properties for ORG CARDINAL DATE .

The DATE LAW chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices .

Section CARDINAL extended until DATE the deadline for the allocation of properties to the ORG .

Pursuant to LAW which established ORG , the Government adopted the above - mentioned decisions , DATE , in respect of the award of financial compensation to former owners .

In DATE financial compensation was awarded in respect of compensation claims arising out of ORG decisions . In DATE financial compensation was awarded in respect of compensation claims arising out of the decisions of the GPE and ORG . In DATE the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued . In DATE and DATE all former owners , who were entitled to compensation , following a ORG regional ORG ’s decision , were eligible to apply for financial compensation .

According to the CMDs adopted DATE , a claimant was required to lodge a standard application for financial compensation with the central Agency in GPE , furnishing , inter alia , the GPE / regional ORG ’s decision that recognised his right to compensation . Only those former owners who had not previously received compensation were entitled to financial compensation from DATE to DATE . The DATE ORG provided that a former owner was entitled to financial compensation on the condition that he had not benefited from : a ) previous compensation ; b ) partial restoration / restitution of the property ; c ) the right to first refusal ; d ) the implementation of the LAW on the Distribution of Land ( Law no . DATE of DATE ) .

Applications would be examined in chronological order on the basis of the ORG ’s / regional ORG ’s decision date and number . The amount of financial compensation , which was to be calculated on the basis of property valuation maps , was limited to a maximum of CARDINAL sq . m.

The lodging of an application entailed the payment of a processing fee . Former owners who had been unsuccessful in their application for financial compensation in DATE could re - submit their application in the following year(s ) once they had paid the processing fee .

None of those decisions provided for the award of compensation to holders claims arising out of a final , enforceable court decision .

By virtue of the above - mentioned decisions , CARDINAL of which were adopted in DATE and CARDINAL in DATE , the ORG approved and issued property valuation maps as listed above . The maps included the reference price per square CARDINAL throughout the country .

The first decision fixed the price of land for the regions of GPE , PERSON , PERSON and ORG ; the second decision fixed the price of land for the regions of ORG , PERSON , PERSON and PERSON ; the third decision fixed the price of land for the regions of ORG , PERSON , ORG , PERSON and GPE . The fourth decision contained an updated price list for certain cities .

The DATE LAW provided for the establishment of an In - kind ORG ( “ NORP ” ) . The Government would adopt the procedures for the allocation of properties covered by the NORP .

By decision of CARDINAL DATE the Government laid down the criteria and the procedures for the determination of ORG properties covered by the ORG ( ORG no . CARDINAL of CARDINAL DATE ) . LAW lists the types of properties , for example : a ) public immovable property which is located in tourist areas ; b ) properties of ORG which are not used by the armed forces and have been approved by the President of the Republic ; c ) available agricultural land belonging to ORG ; d ) forests , pastures and meadows ; and e ) property of ORG institutions which falls outside their intended activity .

The ORG and its regional offices are responsible for checking the legal status of each property as submitted by the respective ORG institution . The ORG submits the final list of immovable properties for inclusion in the NORP to the Minister of Justice . The Government are to approve the list and publish it in ORG .

To date , it would appear that no such list has yet been approved .

Articles CARDINAL - CARDINAL govern the adjudication of administrative disputes , following exhaustion of all administrative remedies . Article CARDINAL provides that a party may bring an action before a court with a view to revoking or amending an administrative decision . Under Article CARDINAL a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly , individually or collectively .

With regard to the appeal procedure before ORG , the Code of Civil Procedure , in so far as relevant , reads as follows :

Article CARDINAL

“ Decisions of ORG and ORG may be appealed against to ORG on the following grounds : ( a ) the law has not been complied with or has been applied erroneously ; ( b ) there have been serious breaches of procedural rules ( pursuant to LAW ) ; ( c ) there have been procedural violations that have affected the adoption of the decision . ... ”

Article CARDINAL

“ An appeal [ to ORG ] shall be declared inadmissible if it contains grounds other than those provided for under the law . The inadmissibility of appeals shall be decided upon in deliberations in camera . ”


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lived in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE , GPE .

ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .

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

In DATE the applicant left GPE for GPE .

NORP In DATE ORG of GPE started an investigation of the activities of a criminal gang which operated in DATE in the GPE region . As a result of the investigation fortysix members of the gang stood trial before ORG . Proceedings against the remaining alleged members of the gang , including the applicant , whose whereabouts could not be established , were separated .

On DATE ORG charged the applicant in absentia , issued an order for him to be remanded in custody and declared him a wanted person . The charges against the applicant , as amended on DATE , included , in particular , attacks on businesses and citizens ( under LAW ) , acquisition , transfer , storage , transportation and carrying of firearms ( under LAW ) , murder of CARDINAL person in DATE , murder with particular cruelty of CARDINAL persons in DATE and CARDINAL more persons in DATE ( under LAW punishable by DATE to twenty - five years’ imprisonment , life imprisonment or death ) .

On DATE the applicant was arrested in the NORP region in GPE .

On DATE a deputy Prosecutor General of GPE , relying on ORG CARDINAL and CARDINAL of ORG ( “ the DATE Minsk Convention ” ) , requested a deputy Prosecutor General of GPE to extradite the applicant to GPE so that he could be prosecuted for the offences with which he was charged . ORG guaranteed that the applicant would only be prosecuted for offences in connection with which he would be extradited , that after his trial or after serving his sentence , if convicted , he would be free to leave GPE and that he would not be transferred to a third state without GPE consent . It was stated further that the request was not aimed at persecuting the applicant on the grounds of his race , religion , ethnic origin or political convictions , and that the statute of limitation for his prosecution had not expired .

On DATE ORG , NORP region , convicted the applicant of forgery of a NORP passport , using which he had lived in GPE under a false name , and sentenced him to DATE imprisonment . A decision on the applicant ’s extradition was postponed . His conviction became final on DATE .

On CARDINAL DATE the deputy Prosecutor General of GPE ( “ the RF ” ) , relying in particular on LAW and CARDINAL of the DATE Minsk Convention and Articles DATE of LAW , granted the request for the applicant ’s extradition . The decision noted that the offences with which the applicant had been charged in GPE constituted crimes under the NORP criminal law punishable with DATE imprisonment , and that the statute of limitation for their prosecution had not expired . The applicant was a NORP national and did not have NORP citizenship .

On DATE the ORG deputy Prosecutor General communicated his decision to the GPE Deputy Prosecutor General , inviting the latter to inform him , under LAW , of the outcome of the criminal proceedings against the applicant . The extradition was to take place once the applicant ’s sentence for passport forgery had been served and the extradition decision had entered into force .

On DATE the NORP Deputy Prosecutor General , in reply to the ORG Deputy Prosecutor General ’s inquiry , supplemented his request for the applicant ’s extradition with additional assurances , notably that in the event of the applicant ’s extradition to GPE the requirements of LAW would be observed , the applicant would not be subjected to torture , inhumane or degrading treatment or punishment . If convicted , he would not be sentenced to death . He would be given a fair trial and , if necessary , provided with appropriate medical care .

NORP The applicant appealed against the extradition decision to ORG . A judge to whom the case had been allocated enquired with ORG about the possibility of obtaining additional assurances from GPE , to the effect that the relevant court there would not impose the death penalty on the applicant , or that the death penalty would not be carried out . Following that inquiry ORG obtained a Note of DATE , no . DATE , of ORG in GPE which states as follows :

“ The Embassy of the Republic of Belarus in GPE presents its compliments to ORG of GPE and , in reply to Note no . CARDINAL/CARDINAL дснг of DATE , has the honour to present the following information .

ORG in GPE confirms that compliance by all NORP law - enforcement organs , including courts and organs of execution of sentences , with the undertakings given by ORG on behalf of GPE of the nonapplication of the death penalty to PERSON , is both lawful and compulsory .

By virtue of the law of GPE , in particular LAW , only GPE Office has the power to give a written undertaking on behalf of GPE of the nonapplication of the death penalty to a person whose extradition is being sought . In this connection , the written undertaking by GPE Office on behalf of GPE of the non - application of the death penalty to PERSON has in essence the force of an international legal obligation of GPE which is subject to rigorous observance .

Taking into account the aforementioned circumstances , the written undertaking by GPE Prosecutor General ’s Office specifically indicates that in the event of delivery of a “ guilty ” verdict a court with jurisdiction to examine the case will not sentence PERSON to death ( « ... в случае вынесения обвинительного приговора в нем компетентным судом PERSON будет назначено наказание GPE виде смертной казни ... PERSON ) . That court will be bound to examine that undertaking at the [ PERSON ’s ] trial and regard it as an obligation of GPE not to apply the death penalty to him .

We should also inform you that ORG of GPE and its diplomatic representation offices are not vested by NORP law with powers to give additional legally binding guarantees of non - application of the death penalty .

ORG in GPE avails itself of this opportunity to renew to ORG of GPE the assurances of its highest consideration . ”

From DATE , after serving his sentence for the passport forgery , the applicant was in custody pending extradition . He was released on DATE when the maximum time - limit for detention had been reached .

The applicant ’s request for refugee status was refused by a final decision of ORG on DATE ; on an appeal by the applicant that decision was upheld by ORG on DATE and ORG on DATE .

On DATE ORG , sitting in a panel of CARDINAL judges , held an open hearing . Having heard the applicant , his counsel and the prosecutor and having examined other evidence , ORG upheld the extradition decision , which it found to be in compliance with LAW of DATE , the GPE CARDINAL Convention and LAW . ORG examined the assurances given by ORG General’

NORP In particular , as regards the applicant ’s argument that CARDINAL leaders of the gang convicted of the murders , which offences formed part of the charges against him , had been sentenced to death and executed , ORG established , on the basis of official information from the NORP authorities , that those individuals had never been extradited ; they had been arrested in GPE in DATE and detained there until their conviction and execution .

The applicant ’s allegations that he had been persecuted in GPE for his political activity , detained unlawfully and illtreated were found by ORG to be incoherent , unsubstantiated and lacking essential details . No evidence of his detention or illtreatment had been provided . Political motives for leaving his home country had for the first time been raised at the last hearing before ORG , without any details being provided . He had stated to the court previously that he had left GPE to find a job . He admitted at the hearing that he was not a member of any political , religious , non - governmental or military organisation , and had never distributed materials or appeals in the context of agitation . He had made the same statements when detained with a view to extradition . His wife , daughter and sister were NORP nationals , resided in GPE and had never been persecuted . Upon arrival in GPE he had not applied for refugee status or for NORP citizenship , but had lived under a forged NORP passport .

ORG examined human rights organisations’ reports submitted by the defence , which indicated that the human rights situation in GPE was unstable . Relying on the Convention case - law , ORG noted that the reference to a general problem concerning human rights observance in a particular country could not alone serve as a basis for refusal of extradition . The charges against the applicant did not relate to political activity . The applicant ’s allegation that any detainee would be subjected to ill - treatment in GPE was too general . He was accused of banditry , illegal weapons trafficking and the murder of CARDINAL people with aggravating circumstances . There was no evidence that the applicant had engaged in any political activity . His allegations of earlier instances of illtreatment in GPE were vague , totally unsubstantiated and unconvincing . ORG concluded that there were no grounds to believe that the applicant would be subjected to treatment dangerous to his health or life , or that his trial would be unfair . The applicant had no health issues requiring him to stay in GPE on humanitarian grounds .

On DATE ORG of GPE dismissed the applicant ’s appeal against ORG judgment , having endorsed ORG findings .

On DATE the ORG , acting upon the applicant ’s request , decided to apply Rule CARDINAL of ORG , indicating to the Government of GPE that the applicant should not be extradited to GPE until further notice by the ORG .

The CIS Convention on Legal Assistance and Legal Relations in Civil , Family and Criminal Matters ( signed in GPE on DATE and amended on DATE , “ the DATE Minsk Convention ” ) , to which both GPE and GPE are parties , provides as follows :

“ CARDINAL . The Contracting Parties shall ... on each other ’s requests extradite persons , who find themselves in their territory , for criminal prosecution or serving a sentence .

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . ”

“ CARDINAL . Extradition shall not be carried out if :

( a ) NORP the person whose extradition is being requested is a citizen of the requested ORG ;

( b ) At the moment of receipt of the request criminal prosecution can not be initiated according to the legislation of the requested ORG ... as a result of the expiry of the statute of limitations or on another legal ground ;

( c ) a judgment or a decision on termination of proceedings have been delivered and entered into force on the territory of the requested ORG in respect of the person whose extradition is being requested for the same crime ;

( d ) in accordance with the legislation of the requesting and requested Contracting Parties the crime is being prosecuted by way of private prosecution ( on a victim ’s request ) ... ”

“ CARDINAL . A request for extradition shall include the following information :

( a ) NORP the title of the requesting and requested authorities ;

( b ) the description of the factual circumstances of the offence , the text of the law of the requesting ORG which criminalises the offence , and the punishment sanctioned by that law ;

( c ) the [ name ] of the person to be extradited , DATE of his birth , citizenship , place of residence , and , if possible , the description of his appearance , his photograph , fingerprints and other personal information ;

( d ) information concerning the damage caused by the offence .

A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order ... ”

“ CARDINAL . Without the requested ORG consent the extradited person must not be prosecuted or punished for the crime committed before his extradition for which he had not been extradited .

Furthermore , without the requested ORG consent the person can not be transferred to a third state ... ”

“ The Contracting Parties shall notify each other of the outcome of the criminal proceedings against the extradited person . On request , a copy of the final judgment shall be sent . ”

“ Relations concerning extradition and criminal prosecution are performed by ORG ( prosecutors ) of the Contracting Parties . ”

Similar provisions are contained in chapter DATE ( FAC ) of LAW of GPE , which governs the procedure to be followed in the event of extradition . Under LAW § CARDINAL of the Code , the extradition decision is taken by ORG or his deputy .

Under LAW of GPE , the death penalty is applied , until its abolition , as an exceptional punishment for certain very grave crimes . The death penalty can not be imposed on anyone who has committed offences when under DATE , on women , or on men who have reached DATE by the date of delivery of a judgment . The death penalty can be replaced by a life sentence by way of clemency . The last CARDINAL executions reportedly took place in DATE .

Under LAW of LAW , ORG of GPE encloses with a request for extradition a written undertaking on behalf of GPE that the death penalty will not be applied to a person whose extradition is being sought , if such an undertaking is a condition of the requested state ’s granting the extradition request .

Under LAW , prosecution in criminal proceedings and the bringing of criminal charges before the courts are carried out by prosecutors on behalf of the ORG . Under LAW DATE PERSON on ORG of GPE , ORG supervises the activities of all ORG offices in GPE .

The Coordination Council of the Prosecutor Generals of States Parties to ORG ( ORG ) was created in DATE and given the status of ORG interstate organ in DATE . CARDINAL of its tasks is to assess the efficiency of the CIS DATE Minsk Convention and to propose measures for improvement of regulation of the relations governed by that Convention . It organises cooperation between the prosecutors of the GPE members and facilitates the defence of rights of their citizens .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants are CARDINAL NORP nationals . Mr PERSON ( the first applicant ) was born in DATE and lives in PERSON . The second applicant , Mr ORG , is the first applicant ’s brother who was born in DATE and lives in PERSON . The third applicant , PERSON , was their mother . She was born in DATE , lived in Rybník pri Ratkovej and died on DATE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicants filed an action with the Rimavská Sobota ORG claiming a sum of money . On DATE the applicants specified their action .

On DATE ORG delivered a payment order . On DATE the defendant company filed an objection to the order . The order ceased to have effect .

ORG scheduled hearings for DATE and DATE . On CARDINAL and DATE the applicants requested that the hearings be cancelled and that their representative be heard , for reasons of procedural economy , by a court in PERSON .

On DATE the ORG representative was heard by a different court in accordance with the applicants’ above proposal . On DATE the case file was returned to the Rimavská Sobota ORG .

On DATE ORG dismissed the action . On DATE the ORG quashed the first - instance judgment .

The applicants challenged the length of the proceedings before the Rimavská Sobota ORG by way of a constitutional complaint . On CARDINAL DATE ORG found that the applicants’ right under LAW to a hearing within a reasonable time had not been violated . It held that there had been a single period of inactivity DATE and DATE which did not justify the conclusion that the length of the proceedings was excessive . It noted that the applicants by their unspecific action had contributed to the overall length of the proceedings .

On DATE ORG rejected the action . The decision was quashed by the court of appeal on DATE .

On DATE the case was assigned to another judge .

On DATE and DATE ORG dismissed the action and the judgments were quashed by the court of appeal on DATE and DATE , respectively . The proceedings are pending .


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

The applicant was born in DATE and is currently detained in GPE , GPE .

On DATE the applicant was arrested on suspicion of uttering threats and domestic violence . On DATE ORG ordered his detention on remand .

On DATE he was admitted to a psychiatric hospital and diagnosed with paranoid schizophrenia . He was discharged from the hospital on DATE .

On DATE the ORG gave a decision and discontinued the proceedings against the applicant . The court found it established that the applicant had committed the offences with which he had been charged . However , he could not have been held criminally responsible as he had been suffering from paranoid schizophrenia . It further referred to the experts ' opinion and ordered that the applicant be placed in a psychiatric hospital .

On DATE the court also refused the applicant 's motion for release . The court considered that there was a reasonable suspicion that the applicant might commit another crime .

On DATE ORG extended the applicant 's detention until DATE . The court referred to the reasons given previously . In addition , it relied on the risk that the applicant might commit yet another offence . It stressed that it was necessary to keep the applicant in detention until his admission to a psychiatric hospital .

The applicant was transferred between different detention centres . After DATE he was detained in ORG .

On DATE ORG was informed that the applicant had appealed against the decision of DATE . However he had filed his appeal with ORG instead of with ORG . Therefore , ORG asked the lower court to examine whether the applicant 's motion could be regarded as an appeal against the decision of DATE .

On DATE the ORG dismissed the applicant 's appeal and upheld the decision of DATE . The court held that all the conditions for imposing the preventive measure on the applicant had been met .

On DATE the ORG gave a decision and ordered that the applicant be placed in ORG . It was also established that the applicant could be admitted to this facility on DATE . However , the applicant subsequently appealed against this decision in so far as it related to the choice of hospital and the case file was transferred to the ORG . On DATE the ORG upheld the decision of DATE .

The applicant was admitted to the hospital on DATE .

It appears that he left the hospital on a later unknown date before DATE .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines pre - trial detention as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) .

A more detailed rendition of the relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other preventive measures can be found in the ORG 's judgments in the cases of ORG v. GPE ( no . GPE , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides :

“ If the proceedings are discontinued by reason of insanity of the accused , preliminary detention may be maintained pending the application of a preventive measure . ”


MCDERMOTT AND OTHERS v. IRELAND AND KEEGAN v. IRELAND

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens

The CARDINAL applicants , PERSON , PERSON , Mr PERSON and PERSON as well as PERSON , are NORP nationals who live in GPE . They are represented before the Court by PERSON , a solicitor practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

NORP The case concerns the death of the applicants’ children in a fire in DATE in FAC ( “ the Stardust ” ) in GPE . The facts of the case , as submitted by the parties , may be summarised as follows .

NORP In TIME of DATE a catastrophic fire swept through the PERSON in which CARDINAL persons were present . CARDINAL persons died and CARDINAL were seriously injured . The overwhelming majority of the victims were DATE . It remains the greatest disaster to have occurred in the history of the State .

CARDINAL of the first applicant ’s children died in the fire , the second applicant lost a daughter as did the third and fourth applicants . CARDINAL of the fifth applicant ’s daughters also died in the fire and a third was injured .

Within TIME of the first call to ORG , all available police officers in the area were dispatched to the scene . A police investigation commenced immediately . An investigation team , of CARDINAL persons of various specialities , was assembled at the special incident centre under the control of ORG from ORG . Extensive forensic examinations were carried out and CARDINAL witness statements were taken . Post - mortem examinations were carried out by ORG pathologists . The Coroner held Inquests ( the Coroner ’s Act CARDINAL ) in DATE and made findings as to the physical causes of death . In DATE DNA tests allowed the identification of the remaining CARDINAL unidentified bodies ( not the deceased children of the applicants ) .

On DATE the ORG was established ( Tribunal of Inquiry Evidence Acts DATE and DATE ) to inquire into all aspects of the fire including its cause . It was chaired by Mr Justice PERSON assisted by CARDINAL assessors : a Professor of ORG of ORG ; the Chief Inspector of ORG in GPE ; and the Head of ORG of An GPE ( ORG ) . It sat for DATE ( DATE ) , it heard evidence from CARDINAL witnesses including victims , next - of - kin of the deceased and many experts and it commissioned extensive tests .

The Tribunal ’s ORG dated the CARDINAL DATE made findings and recommendations in relation to a very broad range of issues .

The ORG found that there had been serious deficiencies as regards the content of , compliance with and application of applicable planning , building , electrical , safety and fire standards by the owners of the Stardust , by relevant ORG bodies and officials . The ORG treated CARDINAL of the owner ’s evidence “ with great reserve ” , which owner bore a special responsibility for the “ recklessly dangerous ” practice of keeping the emergency doors chained which was done with “ reckless disregard ” for the safety of those on the LOC . The ORG found that , without all of these deficiencies , the injuries sustained would have been unquestionably less and the death toll would almost certainly have been reduced .

While the ORG ’s conclusions were critical of ORG ( responsible for the fire services , building regulations and planning ) , the ORG did not point to the particular fault or deficiencies of individual officials in the ORG and no administrative or disciplinary enquiries were later pursued . The ORG mentioned by name a number of officials of ORG but it did not appear to allot individual blame given the system failures at issue . Some responsibility was attributed to a Senior Building Surveyor in ORG as regards failing to follow up on the use of carpet tiles on the walls . However , the ORG accepted that it was possible , as the Surveyor had argued , that the relevant regulations were not clear on this subject .

As to the police investigation , the ORG found that it was exhaustive and meticulous and to be commended , although there had been “ serious short comings ” in the forensic investigation . Some of the owners and staff of the PERSON did not give the police the assistance to which they were entitled , CARDINAL member of staff deliberately attempting to deceive the police on whether the exit doors had been locked .

The ORG went on to make broad recommendations on the approach to be adopted to fire safety in GPE ( “ serious shortcomings in the approach to fire safety in GPE which much be remedied as a matter of urgency ” ) including on education , training , allocation of responsibility for fire safety and legislative / regulatory changes as well as recommendations concerning the enforcement of standards .

As to the cause of the fire , it made CARDINAL findings . On the one hand , it found , based on the absence of any evidence , that the cause of the fire was “ not known and may never be known ” . On the other hand , based on a hypothesis , it found that the more probable “ explanation ” was that the fire was started deliberately in LOC of the PERSON . However , the ORG went on , erroneously as later accepted , to adopt its hypothetical explanation of arson as a “ finding of fact ” and as its conclusion as to the probable cause of the fire .

The ORG ’s finding of arson provoked anger and immediate protestations among the survivors and the bereaved . It was perceived as casting a suspicion of criminal wrongdoing over all who attended the PERSON on TIME of the fire . It was considered to exclude negligence proceedings against the owners of the PERSON and that it facilitated the award of damages for malicious damage by the ORG to the owners ( see immediately below ) . It would appear that the fifth applicant ’s husband set up ORG ( “ the ORG ” ) in DATE , its main objective being to campaign for a further inquiry .

A police preliminary investigation report was completed in DATE : nothing factual as to the origin of the fire had come to light . The police report and file was forwarded ORG ( “ ORG ” ) who directed that no prosecution be pursued . In DATE , following the conclusion of the ORG , a further police file ( including an engineering report which was unable to identify evidence of any fault in the electrical , heating or ventilation systems which could have started the fire ) was sent to the ORG , who again directed that no prosecution be pursued . At the time , no reasons were given for the ORG ’s decisions . All police investigation material was made available to ORG .

In DATE the owners of the PERSON brought a claim in malicious damage against the ORG . They relied on their own expert evidence and , while they did not specifically rely on ORG , they did rely heavily on experts who had given evidence to the ORG to the effect that the fire had been caused deliberately . The ORG ’s expert witness considered he could not refute this evidence and ORG accepted their evidence . In DATE that court found in favour of the owners , the trial judge stating that he had no doubt that the fire was malicious . In DATE the owners were awarded a total of CARDINAL NORP Pounds ( ORG ) . The ORG was legally advised that an appeal had no reasonable prospect of success .

On DATE the Government established the Stardust Victims Compensation Tribunal ( “ the Compensation Tribunal ” ) to award ex gratia compensation for loss attributable to the fire . This tribunal comprised a ORG judge , a barrister and solicitor . Bereaved persons could claim compensation and acceptance of an award was conditional on discontinuing , or waiving the right to take , civil actions . Rejection of an award left claimants free to take civil actions except before ORG . Awards could not be appealed and no award could be made for the benefit of a deceased ’s estate . Claimants were entitled to be heard and could call witnesses unless the tribunal considered it unnecessary . Claimants’ costs , even those already incurred in discontinued civil actions , would be discharged by the ORG . CARDINAL applications were received . Cases were heard from DATE . Given the distressing circumstances of the fatalities , claimants were awarded the maximum statutory amount for mental distress . CARDINAL applicants were refused compensation and CARDINAL withdrew their applications . CARDINAL awards , totalling GPE CARDINAL,CARDINAL,CARDINAL.CARDINAL , were made . All awards were accepted .

The fifth applicant ’s husband challenged the refusal by ORG of an award for nervous shock . While it was accepted that he had suffered grief and sorrow , he had not suffered a psychiatric illness and was not therefore entitled to damages for nervous shock under the scheme . By judgment of DATE ORG rejected his case ( The ORG ( PERSON and PERSON v. the ORG ( [ DATE ] I.L.R.M. CARDINAL ) . Mr PERSON died that DATE . The PERSON family award ( including damages for mental distress and loss of earnings ) totalled DATE .

In DATE ORG published a report which recorded general conclusions and the total sum of compensation paid . The report criticised the fact that it was only before it that that many victims had been able to be medically examined and treated by doctors for the first time since the fire . The report therefore recommended that the Government put in place contingency plans , not only for rescuing victims and for their treatment in hospital , but also for monitoring their later progress .

In DATE the ORG submitted a report to ORG , ORG ( “ ORG ” ) . ORG referred the report for expert analysis which concluded that the ORG ’s report did not contain any new evidence . ORG was informed of this in a meeting in DATE . A letter DATE from the police to the solicitor of the ORG explained the scope of this expert analysis and detailed why there was no new evidence warranting the police re - visiting the investigation . The applicants maintained that they were given a copy of this letter only after ORG ( paragraphs CARDINAL - CARDINAL below ) .

The ORG then obtained reports from CARDINAL fire experts whose evidence was that a more probable cause of the fire was that it started , or involved combustibles in , FAC ( in the roof space ) which contained a considerably greater fuel load than LOC . The findings were published in a report called “ Nothing but the Truth ” and the report was the subject of a television documentary in DATE . In DATE the ORG , through its solicitors , presented a full submission for a further inquiry ( also called “ Nothing but the Truth ” ) to the Government . In DATE the ORG was informed that , while the expert advice to the Taoiseach ( Prime Minister ) was that the report contained no new material which would justify holding an enquiry , he was willing to arrange for an independent examination of the ORG ’s submissions by an appropriate person with legal experience .

Further to negotiations between the Government and the ORG , an agreement was reached on the appointment of an independent person to review the case made by ORG for a further inquiry . In DATE the appointment of Mr PERSON GPE was agreed . On DATE the Government established the independent “ PERSON ” review of the ORG ’s case for a renewed inquiry to establish the cause of the fire . The terms of reference were :

“ CARDINAL . ... [ Mr PERSON ] shall :

- consider the [ Report of the ORG ] ;

- consider all the issues which are raised by the [ ORG ] , as are summarised in the submission “ Nothing But The Truth ” and in the supplemental submission to “ Nothing But The Truth ” ( delivered on the CARDINALth of DATE ) , and all the evidence and submissions as may be presented on their behalf as he considers necessary and relevant to the case for a further inquiry .

- In the course of a private examination of the issues ,

( a ) meet such people and secure such advice as he considers necessary to ensure complete understanding of the matters and issues .

( b ) facilitate a detailed presentation by the [ Committee ] of the case for renewed inquiry as they see it .

( c ) have such regard to as he thinks appropriate to submissions , if any , as may be made by other persons / parties including any Government Departments or ORG or the owners of the PERSON together with any observations on or response thereto from the [ Committee ] .

- carry out such inquiries or investigations that he , in his sole discretion , considers necessary for clarification of the issues raised by the [ ORG ] , but he shall not initiate any further investigations into the cause of the fire .

Following his assessment of the issues raised by the [ ORG ] and related matters , as set out above , Mr PERSON shall , without undue delay , report to the Government and shall therein make a recommendation as to whether a new inquiry should be established and may make such other recommendations as he considers appropriate . ”

Mr PERSON advertised in local and national newspapers seeking submissions . He heard submissions from all interested persons and parties . ORG , whose legal representation was financed by the Government , gave oral evidence over DATE and made written submissions . A large body of documents was gathered , all of which were made available to the ORG ’s legal representatives . Mr PERSON considered he was entitled to assess not only the applicants’ new evidence , but any other issue pertinent to the question of the need for a further enquiry .

The ORG summarised the issues raised by it as follows :

“ ( CARDINAL ) that the ORG ’s finding of fact that the fire was probably caused deliberately is based on hypothesis and not established by evidence and is for that reason inherently unsatisfactory ;

( CARDINAL ) that the hypothesis upon which the ORG ’s finding is based is itself demonstrably flawed because it can not be reconciled with the known facts of the fire including evidence accepted by the ORG ;

( CARDINAL ) that new expert and factual evidence establishes as a probability that the fire began in the Lamp Room and spread via ORG to LOC ;

( CARDINAL ) that the “ methodology ” used by the ORG was flawed insofar as insufficient scrutiny or examination was given to the possibility that the fire originated in the roof space having regard to the very considerable quantity of combustible material that was contained in FAC and the fact that FAC was effectively in the roof space ;

( CARDINAL ) that only the very considerable fuel load in FAC could have provided the basis for the rapid development of the fire which engulfed the PERSON within TIME . ”

On DATE ORG was published . Having reviewed the evidence and submissions of ORG together with the ORG ’s database of material , PERSON concluded ( paragraph CARDINAL ) that the ORG had established a prima facie case that :

“ ( CARDINAL ) the ORG ’s finding of fact that the fire was probably started deliberately is on its face a mere hypothetical explanation for the probable cause of the fire and is not demonstrated by any evidence that the fire was started deliberately ;

( CARDINAL ) in the absence of any such evidence and on the basis of new expert evidence relating to the early collapse of the ceiling in LOC , the explanation can not be demonstrated to be objectively justifiable . ”

Mr PERSON was further satisfied , on a prima facie basis , that :

“ ( CARDINAL ) that neither the ORG nor the ORG have identified any evidence which can establish the cause of the fire ;

( CARDINAL ) that the new and other evidence relied upon by ORG at its highest merely establishes that the fire began in the roof space but does not establish its point of origin or cause . ”

As to the ORG ’s call for a new inquiry to establish the cause of the fire , PERSON considered that , in the absence of any identified evidence which could establish its cause , the issue was whether a new inquiry would serve any useful purpose . He continued :

“ CARDINAL It could be argued that a further inquiry would at least establish whether the fire began in LOC or in the roof space . However , it seems to me that at a remove of DATE from DATE of the fire and in the absence of any identified evidence which can establish the cause of the fire wheresoever it arose , the public interest would not be served in establishing a further inquiry solely for that purpose . It could also be argued that there should be a further enquiry to establish the probable cause of the fire . However , it seems to me that in the absence of any identified evidence capable of establishing the cause of the fire , such an inquiry can only at best produce a hypothetical finding neither capable of proof or disproof and therefore of no obvious or any forensic value . ”

Mr PERSON went on to point out that :

“ PERSON The real difficulty is CARDINAL of record and lies in the fact that despite having made a finding based on the absence of evidence that “ the cause of the fire is unknown ” , the ORG has failed to acknowledge and record this finding as its conclusion as to the cause of the fire . Instead the ORG has only recorded its finding as to the probable cause of the fire . In so concluding and in the absence of any evidence that the fire was started deliberately , the ORG has placed on the public record a finding of probable criminal wrongdoing which is prima facie speculative and fraught with evidential and logical difficulties . Moreover , insofar as it is stated to be a “ finding of fact ” , the finding is so phrased as may well give the mistaken impression to a reasonable man or woman in the street that it is a finding established by evidence that the fire was started deliberately and not a mere hypothetical explanation for the probable cause of the fire . ”

Mr PERSON found this to be profoundly unsatisfactory to the survivors and the bereaved who , through ORG , argued that such was the scale of the disaster that it has become a matter of communal if not national history to an extent that engaged a public interest in ensuring that the public record was factually accurate and established by evidence .

NORP However , the new and other evidence relied on by the Committee , at its highest , established that the cause of the fire was unknown , a finding already made but not properly acknowledged and recorded by the ORG . As to how to correct this , PERSON proposed alternative solutions . Since the ORG was established by ORG , the ORG could consider whether it could correct the public record by placing on the record of ORG an acknowledgement of the ORG ’s findings that there was no evidence that the fire was started deliberately and that the cause of the fire was unknown ; or , if such an acknowledgement could not be made by the ORG , a further limited inquiry would be needed but simply to clarify the public record in this limited respect .

Finally , noting the failure by the ORG to act on the earlier recommendation of ORG , PERSON recommended that a committee be formed to monitor the progress of victims and to ensure that counselling and medical treatment , where necessary and appropriate , was afforded to survivors and the bereaved at the expense of the ORG .

On DATE the Coffey Report was published , the Government published a statement acknowledging and accepting the conclusions and recommendation of ORG . On DATE and DATE PERSON ( ORG ) and PERSON ( the ORG ) respectively , passed motions acknowledging and accepting the conclusions and recommendation of ORG and , notably , that the cause of the fire was unknown and that arson was merely a hypothetical explanation which had not been demonstrated .

In DATE the Government published a LAW which began operating in DATE .

A building regulation regime was introduced by LAW DATE and LAW DATE . LAW DATE was brought into force in DATE and updated in DATE and ORG were also adopted thereunder which , inter alia , made locking of exits and blocking escape routes from places of assembly an offence . ORG DATE provided for increased powers for fire authorities to inspect LOC , issue warning notices and , where necessary , serve closure notices . A series of ORG have been published by ORG providing fire safety advice for persons in control of LOC . Following a full review of fire services in GPE in DATE , ORG was implemented to further enhance fire safety enforcement powers . A ORG ( DATE ) was introduced to improve responses to major emergencies and a ORG was formed in DATE . The numbers of fire services’ staff sharply increased and fire services funding and training significantly improved . Following the criticisms of it in ORG , ORG significantly increased staffing especially in fire prevention , established a training centre and purchased new fire stations and equipment as well as a new communications centre .


Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant filed for divorce before ORG . She also claimed custody of the couple 's CARDINAL children , born respectively in DATE , DATE and DATE , and requested the payment of maintenance and the division of the matrimonial property .

After repeated motions for bias filed by the applicant 's husband , ORG was first appointed to hear the case . As a consequence of the husband 's further motion for bias , the case - file was then transferred to ORG .

On DATE the President , the Vice - President and all the judges of ORG declared bias .

On DATE ORG appointed ORG and the Borsod - Abaúj - Zemplén County Regional Court to hear the case .

On DATE ORG requested the applicant to supplement her action within DATE . Following the grant of an extension of this time - limit , the applicant submitted additional material on DATE .

A hearing was held on DATE .

On DATE ORG requested the school attended by the couple 's children to provide an opinion . It also appointed ORG ( “ the Institute ” ) to give an expert psychological opinion on the parties and their children and requested to be advised as to which parent was the more suitable to raise the children .

NORP The applicant together with the CARDINAL children failed to appear at the examinations scheduled for DATE as they had not received any notification .

The examinations scheduled for DATE could not be carried out as the husband and CARDINAL of the children failed to appear .

On DATE the Borsod - Abaúj - Zemplén County Regional Court found the husband 's renewed motion for bias of DATE unsubstantiated .

On DATE ORG ordered the parties to provide information about the children 's situation and the issue of maintenance .

In her letters of DATE and CARDINAL DATE , the applicant requested ORG to schedule a hearing in the case and , as an interim measure , to order her husband to pay maintenance .

On DATE the husband filed a motion for bias against all of the judges of the county .

On CARDINAL DATE the applicant requested ORG to deal with the case urgently . On DATE she repeatedly requested the court to pronounce the divorce , to grant her custody of the children , to oblige her husband to leave their flat and to pay maintenance .

On DATE ORG dismissed the husband 's renewed motion for bias and warned him that if he submitted another unsubstantiated motion , he would be fined .

At the court 's request of CARDINAL DATE , the applicant provided information about the maintenance of the children .

On DATE the husband again filed a motion for bias against the judges dealing with the case .

On DATE ORG suspended the proceedings pending the outcome of a parallel action to place the husband under guardianship .

At the applicant 's request , on DATE ORG decided to resume the proceedings and to appoint a guardian ad litem to represent the husband .

On DATE the applicant elaborated her action and requested the court to obtain psychological and educational opinions on the children . The latter opinion was submitted on DATE . On DATE the ORG appointed an expert psychologist .

On DATE the parties ' CARDINAL eldest children requested the court to place them , by way of an interim measure , with the applicant .

On DATE the ORG informed the court that it struck the case out of its list as the husband and the CARDINAL eldest children had repeatedly failed to appear for the examination .

On DATE ORG ordered that the CARDINAL eldest children be placed with the applicant and obliged the husband to hand them over to her within DATE . On DATE the husband appealed against this decision . On DATE the applicant informed the court that its order could not be executed as the children had in the meantime been placed in a children 's home .

On DATE ORG dismissed the husband 's renewed motion for bias of DATE .

On DATE the Borsod - Abaúj - Zemplén County ORG quashed the order of CARDINAL DATE and remitted the issue of interim measures to ORG .

At the applicant 's request , on DATE ORG discontinued the proceedings . In her appeal , the applicant requested that the proceedings be resumed and that the case , rather than being discontinued , should be transferred from PERSON to a court in the town where she was domiciled . On DATE the Borsod - Abaúj - Zemplén County Regional Court dismissed her appeal .

On DATE the applicant renewed her action before ORG .

A hearing took place on DATE and a further hearing was scheduled for DATE .

At present , the case is pending before ORG .

Article CARDINAL § CARDINAL of the Code of Civil Procedure reads as follows :

“ If a party submits a motion for bias , which is manifestly unsubstantiated , or repeatedly submits unsubstantiated motions in the same proceedings in respect of the same judge , the court may , as a provision of the order dismissing the motion , impose a fine on him . ”


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

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

CARDINAL .

In DATE the applicant was arrested and charged with gross indecency . He was subsequently also charged with rape . The charge of rape related to an incident alleged to have occurred while the complainant was between DATE . It was not reported to the police until she was DATE .

On DATE the applicant was convicted of CARDINAL count of rape and CARDINAL counts of gross indecency . He was sentenced to DATE imprisonment , including DATE for the rape count .

The applicant appealed against conviction and sentence . On CARDINAL DATE ORG rejected his appeal against conviction . However , it reduced the sentence of imprisonment in respect of the rape count to DATE . His total sentence was therefore CARDINAL of CARDINAL years’ imprisonment .

The applicant immediately applied to ORG ( “ CCRC ” – see below ) to have his case referred to ORG . No copy of the application has been provided to ORG and the grounds for the request to the ORG are unknown .

On DATE , the ORG notified the applicant that it had decided not to refer his case to ORG . The decision of the ORG has not been provided to the ORG , despite specific requests on DATE and DATE .

Section CARDINAL of LAW DATE ( “ the DATE LAW ) sets out the power of the ORG to refer a case to ORG and provides :

“ ( CARDINAL ) Where a person has been convicted of an offence on indictment in GPE and GPE , the Commission—

( a ) may at any time refer the conviction to ORG , and

( b ) ( whether or not they refer the conviction ) may at any time refer to ORG any sentence ( not being a sentence fixed by law ) imposed on , or in subsequent proceedings relating to , the conviction . ”

Section CARDINAL of the CARDINAL Act provides :

“ CARDINAL ) A reference of a conviction , verdict , finding or sentence shall not be made under any of sections CARDINAL unless—

( a ) the Commission consider that there is a real possibility that the conviction , verdict , finding or sentence would not be upheld were the reference to be made ,

( b ) the ORG so consider—

( i ) in the case of a conviction , verdict or finding , because of an argument , or evidence , not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it , or

( ii ) in the case of a sentence , because of an argument on a point of law , or information , not so raised , and

( c ) an appeal against the conviction , verdict , finding or sentence has been determined or leave to appeal against it has been refused .

( CARDINAL ) Nothing in subsection ( CARDINAL)(b)(i ) or ( c ) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it . ”