The applicant is a NORP national , born in DATE and currently serving a prison sentence in the GPE .

He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE the applicant was arrested on suspicion of having raped CARDINAL prostitutes ( “ Ms A ” , “ Ms B ” and “ Ms C ” ) . In a statement made to police after this arrest , a fourth prostitute ( “ Ms D ” ) reported that she had also been raped . The applicant ’s lawyer was notified by the police and , without having had the opportunity to discuss the matter with the applicant , attended PERSON making of this statement , at which occasion the lawyer was able to question PERSON , PERSON and Ms D subsequently recognised the applicant as the man who had raped them from a series of photographs ; in the case of Ms B and PERSON this identification took place in the presence of the applicant ’s lawyer .

A DNA - examination was carried out on sperm found in a swab taken from PERSON According to the results of the examination it could not be excluded that the sperm was the applicant ’s - the lowest possible degree of probability to be attached to such results .

The applicant was convicted of attempted rape of Ms A and of rape of PERSON , Ms C and Ms D by ORG ( ORG ) of GPE on DATE . He was sentenced to CARDINAL years’ imprisonment .

The applicant lodged an appeal with ORG ( Gerechtshof ) of GPE . He requested that PERSON , PERSON and Ms D be heard as witnesses by ORG and the court granted this request . However , at the hearing on DATE none of these witnesses appeared . It transpired that , although properly summoned , PERSON and Ms D did not have a known place of residence or abode ( zonder bekende woon- of verblijfplaats ) . An address was known for Ms C but the summons had not been sent there . ORG adjourned the proceedings in order for PERSON , PERSON and Ms D to be summoned again .

At the hearing on DATE the witnesses again failed to appear , although all CARDINAL had been properly summoned . The proceedings were once more adjourned and the witnesses summoned again . This time , ORG also issued an order to have PERSON brought before it .

At the hearing on DATE none of the witnesses appeared . A police officer told ORG that none of the CARDINAL witnesses had been seen at the local community centre for prostitutes ( “ huiskamerproject ” ) since DATE . PERSON had not been seen near FAC since DATE . The police had let other prostitutes in that area know that they were looking for PERSON address was known for her but when police went there on the morning of the hearing she was not there . The officer had furthermore been told that PERSON had gone to GPE where she was said to be staying at a drug rehabilitation centre but her address in GPE was not known . PERSON was said not to want to have anything to do with the case anymore . PERSON , finally , could not be found and her address was not known .

ORG decided to dispense with a further summoning of Ms B , PERSON and Ms D as in the circumstances it considered it unlikely that they would appear before it within an acceptable time .

Before ORG the applicant acknowledged that he had had intercourse with PERSON , saying that she had screamed and that he had not paid her , but he denied having raped her . He further denied the charges against him in relation to PERSON , PERSON and Ms D , submitting that he had been elsewhere when the alleged offences had supposedly been committed . Counsel for the applicant argued that in violation of LAW ( d ) of the Convention the defence had not had sufficient opportunity to test the statements of PERSON , PERSON and ORG further complained of the manner in which the collection of photographs from which PERSON , PERSON and Ms D had recognised the applicant had been compiled . Regardless of the fact that the witnesses had described the perpetrator as having long or shoulder - length hair , CARDINAL photographs in the collection shown to them had featured a person with such a hair style . Finally , counsel requested that the proceedings be adjourned so that a second DNA - examination could be carried out .

By judgment of CARDINAL DATE ORG convicted the applicant of attempted rape of ORG and of rape of PERSON , PERSON and Ms D , and sentenced him to CARDINAL years’ imprisonment . ORG found that the use in evidence of the statements made to the police by PERSON , PERSON and Ms D without the defence having been able to examine these witnesses was not contrary to LAW . In this respect it took into account that considerable effort had been made to procure the appearance of the witnesses before ORG , that a further summoning of those witnesses appeared to serve no useful purpose , that the statements made by the witnesses were supported by other evidence , and that , as regards PERSON , the applicant ’s lawyer had been present both when she had been questioned and when she had identified the applicant from a photograph .

In respect of the series of photographs shown to PERSON , PERSON and Ms D , ORG referred to the testimony given by an expert witness according to whom a computerised system had been used to select photographs of persons of a similar appearance . ORG also examined the photographs itself . It found that the fact that CARDINAL of the CARDINAL photographs featured men with long hair could not detract from its opinion that the collection had been compiled with the requisite care , since a hair style was only of relative importance in this respect . ORG further noted that each witness had , separately and with certainty , recognised the applicant .

ORG further noted that the applicant had not disputed the findings of the DNA - examination , but that he had rather expressed the hope that a second such examination might exonerate him completely . However , as ORG did not use the findings of this examination in evidence against him , it considered that to refuse a second examination would not be prejudicial to the applicant ’s interests .

ORG based its conviction of the applicant of the rape of PERSON , PERSON and Ms D on the following means of evidence , in respect of the particular charge to which each of them related only :

- the applicant ’s statement before ORG that he wore tattoos , that he used to drive a blue - grey ORG which was registered in the name of a Mr H , and that he had subsequently obtained a ORG van ;

- Ms B ’s statement to the police in which she related , inter alia , that the perpetrator had been driving a big , metallic - blue coloured NORP car , and in which she described him as having long blond hair , tattoos on both arms and wearing a number of chains ;

- Ms B ’s recognition of the applicant as her assailant from CARDINAL photographs shown to her , at which occasion she stated , “ That is PERSON the rapist . He told me himself that he was called PERSON ” ;

- a procès verbal drawn up by a police officer to the effect that the applicant ’s girlfriend had told this police officer that the applicant was generally known as ‘ GPE ;

- Ms C ’s statement to the police in which she related , inter alia , that the perpetrator had been driving a big , silver - blue coloured NORP - style car and that he had pulled a chain around her neck . She further stated that the man had long blond hair worn in a pony tail and a tattoo on his upper arm ;

- a procès verbal drawn up by a police officer to the effect that the registration number of the car indicated by PERSON as the car driven by her assailant had proved incorrect ;

- a procès verbal drawn up by a police officer to the effect that Mr H used to have a ORG registered in his name with a registration number that differed CARDINAL digit from the number indicated by PERSON ;

- Ms C ’s recognition of the applicant as her assailant from a number of photographs shown to her ;

- Ms C ’s confirmation that the chain featured on a photograph shown to her was of the kind that she had mentioned in her statement ;

- a procès verbal drawn up by CARDINAL police officers to the effect that a silver - coloured chain had been found in the ORG van which they had investigated in relation to the suspicion that a number of rapes had taken place inside the vehicle ;

- Ms D ’s statement to the police in which she related , inter alia , that the perpetrator had been driving a large silver - grey car and that he had long hair ;

- Ms D ’s recognition of the applicant as her assailant from CARDINAL photographs shown to her ;

- a procès verbal drawn up by a police officer to the effect that the owner of a breaker ’s yard had recognised the applicant from a photograph shown to him as the man whom he had given a purple - blue ORG in exchange for a metallic - grey ORG .

The applicant filed an appeal in cassation with ORG ( PERSON ) , raising the same arguments as he had before ORG .

In a judgment of DATE , ORG found that LAW did not prevent the use in evidence of PERSON statement to the police despite the fact that counsel had not been able to question her as a witness . In this respect ORG did not find unreasonable the conclusion that further attempts to make PERSON appear before ORG would serve no useful purpose . ORG noted , moreover , that counsel had taken no initiative to examine the police officers who had taken PERSON statement . It also considered that PERSON statement was corroborated by other means of evidence used in respect of this charge , in particular concerning the physical appearance of the applicant and the car he used .

As regards the use in evidence of Ms D ’s statement , ORG observed that counsel had attended PERSON interview with the police and that the applicant had thus had the opportunity to have this witness questioned on his behalf .

ORG found no issue with the manner in which ORG had rejected the complaint concerning the compilation of the series of photographs from which the applicant had been recognised .

ORG quashed the judgment of ORG in so far as it concerned the charge of rape of PERSON and the determination of the sentence . ORG held that a second DNA - examination could not be refused for the sole reason that the examination already carried out had been complete and that the results were not used in evidence . ORG referred this part of the case to ORG , which court was also to impose a sentence relating to the other offences of which the applicant had been found guilty .

On DATE ORG The GPE convicted the applicant of the rape of PERSON It sentenced the applicant to six years’ imprisonment with deduction of the time spent in pre - trial detention . In these proceedings the applicant again complained of his not having been able to question PERSON The applicant filed an appeal in cassation against the judgment of ORG , which proceedings are currently still pending before ORG .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr C. PERSON .

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

In DATE the applicant got married . He and his wife lived together until DATE .

After the applicant had moved out of his wife ’s house , he had an intention to commence divorce proceedings . However , approximately at this time , he found out that his wife was pregnant . Believing that he was not the father of the yet unborn child , in DATE he requested ORG not to list him as the biological father in the birth certificate upon the child ’s birth .

In DATE the applicant ’s wife gave birth to a daughter . Despite the applicant ’s earlier request , based on a statutory presumption of paternity , ORG issued a birth certificate mentioning the applicant as the child ’s father . As the applicant and his wife were separated and no longer lived together as a family , on DATE ORG ordered the applicant to pay child support to his wife .

The applicant then instituted civil proceedings , disputing his paternity and asking the court to strike out his name as the child ’s father from the relevant civil status documents . He claimed that , on TIME after his wedding , he discovered that his wife was not a virgin as he expected . He was shocked by this and refused to continue the sexual intercourse with her . He further maintained that thereafter he had never had any sexual intercourse with his wife and that the child had been conceived in an adulterous relation with another person .

After a preliminary hearing , on DATE the Ali - Bayramli District Court ordered a biological expert examination to determine the paternity . On DATE , an expert of ORG issued an opinion on the applicant ’s paternity . The expert performed an ORG blood group test by comparing the applicant ’s , the child ’s and the mother ’s blood types and , based on its results , concluded that the applicant “ could be the child ’s father ” . The expert noted that a DNA test would yield a more precise conclusion , but the expert did not possess adequate medical inventory to perform such a test .

Relying on the results of the ORG blood group test , the fact that the applicant and his wife lived together at the time of the child ’s conception , as well as the witness testimony concerning the relations between the applicant and his wife , on DATE the FAC dismissed the applicant ’s claim .

The applicant filed an appeal , arguing that ORG judgment was arbitrary , because the expert opinion used by the court did not provide a definite conclusion and because the results of the ORG test could not be considered as a reliable source for identifying the child ’s biological father . He further argued that only the DNA test could provide a conclusive answer to the question of paternity .

On DATE ORG upheld the first instance court ’s judgment , holding that the applicant failed to substantiate his arguments or present any new evidence proving that he was not the child ’s father . In its judgment , the court was silent about the applicant ’s request for a DNA test . Upon the applicant ’s appeal in cassation , on DATE ORG upheld the lower courts’ judgments dismissing the applicant ’s claim .

In DATE the applicant filed an additional cassation complaint with the President of ORG , requesting that the proceedings be reopened . On DATE the President rejected this request .

However , in DATE the proceedings were reopened and the case was referred to the Plenum of the ORG based on an application by the President of ORG . On DATE the ORG found that ORG breached the procedural requirements by ignoring the applicant ’s request to order a DNA test . It further noted that such a test would constitute the “ principal type of evidence ” in this case . The ORG quashed the decision of ORG of DATE and the related judgment of ORG of CARDINAL DATE and remitted the case to ORG .

On DATE ORG instructed ORG and Pathologic Anatomy Department of ORG to conduct a DNA test of the applicant , his former wife and her child . Despite having been notified about the time and place of the DNA testing , the applicant failed to appear for the test without any good reason . According to the Government , the applicant received several such notifications .

Furthermore , although they had been informed about the time and place of the appeal hearing , neither the applicant nor his former wife appeared for the hearing . In such circumstances , on DATE ORG noted that it had been impossible to obtain DNA evidence due to the applicant ’s failure to cooperate . It therefore found that the parties ( and in particular , the applicant ) were not interested in obtaining new evidence that would enable the court to reach a different conclusion . For these reasons , ORG again upheld the Ali - Bayramli District Court ’s original judgment of DATE .

No cassation appeal was filed against ORG judgment of DATE within the statutory DATE period for filing cassation appeals .

“ [ T]he ORG shall be the highest judicial authority with regard to civil ... , criminal , administrative and other disputes falling within the jurisdiction of the general and specialised courts .

ORG [ is ] a court of cassation instance ... ”

“ The Plenum of the Supreme Court shall be composed of the President , Vice Presidents and judges of ORG , the President of ORG , the President of ORG and the President of ORG of GPE . ...

The Plenum of ORG ... shall , in the manner established by law , review cases under the procedure of additional cassation ... , on submission of the President of ORG , or pursuant to a protest by ORG or appeal by the defendant ... ”

“ The President of ORG ... shall , in cases and under the procedure provided by law , submit cassation - instance decisions for the review of the Plenum of ORG ... ”

“ CARDINAL . The decision [ of the cassation - instance court ] shall enter into force from the moment of its delivery . ”

“ Decisions of ORG ... may be reviewed by the ORG of ORG under the procedure of additional cassation upon a submission , appeal or protest . ”

“ A submission concerning a decision of ORG ... may be made by the President of ORG on the basis of an application by persons non - parties to the case whose interests are affected by the judicial acts . An appeal may be filed by a party to the case represented by an advocate . [ A protest may be filed by ORG in certain specified circumstances . ] ”

“ CARDINAL . The ORG considers cases exclusively on the points of law . ”

Article CARDINAL lists the grounds which merit the review of ORG cassation - instance decision by the ORG of ORG . These grounds are present if , inter alia , ORG decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision , or was based on a legal norm declared as unconstitutional by ORG , or if ORG ruling infringed the rights and obligations of persons who were not a party to the case .

“ CARDINAL . If appropriate grounds exist , the President [ of ORG ] shall refer the submission , appeal or protest , together with the case file , to the ORG of ORG .

NORP The submission , appeal or protest shall be filed within DATE after the date of delivery of the [ relevant ] decision of ORG . ... ”

“ CARDINAL . Upon review of a case under the procedure of additional cassation , the Plenum of ORG has the competence to : ...

uphold the decision of the cassation - instance court and dismiss the submission , appeal or protest ;

DATE . make amendments to the decision of the cassation - instance court ;

NORP quash , in full or in part , the decision of the cassation - instance court , as well as the related decision of the appellate court , and remit the case for re - examination by the appellate court ; ... ”


Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE police officers from the anti - terrorist branch of ORG arrested the applicants on suspicion of membership of an illegal organisation , the PRK - Rızgari .

On DATE the ORG ordered the applicants ' detention on remand .

On DATE the Chief Public Prosecutor filed an indictment with ORG charging the applicants with membership of the PRK - Rızgari and undertaking actions against the indivisible integrity of the state . The charges were brought under LAW and CARDINAL of LAW .

NORP In a judgment dated DATE ORG acquitted Ms GPE of the charges , holding that there was insufficient evidence to convict her . The court found Mr PERSON guilty of the offences under LAW and DATE and sentenced him to capital punishment .

On DATE Mr Kalkan lodged an appeal with ORG . The applicant did not submit any information concerning the outcome of the criminal proceedings against him .

Article CARDINAL of the LAW provides :

“ Everyone has the right to liberty and security of person .

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law :

The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE ... These time - limits may be extended during a state of emergency ...

A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .

Compensation must be paid by the ORG for damage sustained by persons who have been victims of treatment contrary to the above provisions , as the law shall provide . ”

Article CARDINAL of the Criminal Code provides :

“ Any person who , with the intention of committing the offences defined in Articles ... , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not DATE imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not DATE imprisonment . ”

“ It shall be an offence , punishable by the death penalty , to commit any act aimed at subjecting the ORG or any part of the ORG to domination by a foreign ORG , diminishing the ORG 's independence or removing part of the national territory from the ORG 's control . ”

Under Articles CARDINAL and CARDINAL of the Prevention of Terrorism Act ( Law no . ORG of DATE ) , the offences defined in Articles CARDINAL and CARDINAL of LAW are classified as “ terrorist ” acts . Pursuant to LAW no . ORG , penalties laid down in LAW as punishment for the offences defined in LAW and CARDINAL of the Act are increased by CARDINAL .

Under LAW no . CARDINAL on procedure in the state security courts , only these courts can try cases involving the offences defined in LAW and CARDINAL of LAW .

At the material time , LAW no . CARDINAL of DATE , amending the legislation on criminal procedure , provided that , with regard to offences within the jurisdiction of state security courts , any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE .


The first applicant is Mr PERSON , a NORP national , who was born in DATE and was serving a prison sentence at the time of the application . The second applicant is Mr PERSON , a NORP national who was born in DATE and was serving a prison sentence at the time of the application . They are represented before the ORG by Mr Jaakko Tuutti , a lawyer practising in GPE , GPE .

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

The first applicant had been detained pending a criminal trial concerning DATE amongst others – CARDINAL serious drug offences . On DATE , at the end of the hearing , ORG ( käräjäoikeus , tingsrätten ) of ORG informed the parties that it had decided to reserve the judgment until DATE . The public prosecutor demanded a sentence of DATE imprisonment and that the first applicant should remain in detention pending the delivery of the judgment . ORG ordered that the first applicant be detained pending the delivery of the judgment , basing the detention on Sections CARDINAL and FAC of LAW ( pakkokeinolaki , tvångsmedelslag ; PERSON ) . It held , inter alia , as follows :

“ Because ORG has in its decision after the end of the principal hearing notified the date of the reserved judgment , the grounds for PERSON ’s [ the first applicant ’s ] detention are based on the principles supporting section CARDINAL of LAW .

PERSON , who has been detained throughout from CARDINAL DATE , has been charged with offences for which , if proven guilty as charged , he will clearly , according to normal case law , be sentenced to imprisonment for DATE .

Without prejudice to the length of the final imprisonment sentence and taking into consideration that the reserved judgment will be given in DATE time , the arguments presented in favour of PERSON do not disclose that his detention is excessive . ”

On DATE ( DATE ) the first applicant applied to ORG ( hovioikeus , hovrätten ) of GPE , claiming that his detention was unlawful and demanding ORG decision to be quashed as well as his immediate release . He claimed that ORG could not have based its decision on LAW , because he had not yet been sentenced as required by that provision . He also maintained that NORP legislation did not contain any basis for detention of a defendant in a case where the hearing had been closed and the judgment reserved and invoked LAW .

On DATE ORG of GPE quashed ORG decision to detain the first applicant and ordered his immediate release . ORG reasoned its decision , inter alia , as follows :

“ Because PERSON had not been sentenced at the end of the principal hearing on DATE , he could not have been ordered to remain detained pursuant to LAW . ”

On DATE ORG sentenced the first applicant to CARDINAL years’ imprisonment . It also ordered the arrest of the first applicant , who had gone missing after his release on DATE .

On DATE the first applicant meanwhile applied to ORG of GPE , claiming compensation under LAW by ORG . ORG rejected the applicant ’s claims on DATE , referring to section CARDINAL of that Act . It held , inter alia , as follows :

“ It is undisputed in the case that PERSON was detained during the time mentioned in his application for summons . It is also undisputed that ORG of GPE released PERSON because it was not possible to keep PERSON detained on the grounds that the public prosecutor put forward and on which ORG had made the decision , i.e. pursuant to LAW .

Therefore , the detention was not based on the grounds on which the public prosecutor and ORG justified the detention .

Taking into account the seriousness of the offences that underlie the detention of PERSON , his guilt as stated in the judgment and the length of the imposed penalty , it would be excessive to oblige the ORG to pay PERSON compensation for the deprivation of his liberty . Compensation would be excessive also because he was deprived of his liberty for DATE and because this time has been subtracted from the sentenced imprisonment according to LAW . Because of PERSON ’s guilt the deprivation period can not be deemed to cause him such mental suffering as would be the case if an innocent person had been detained . ”

ORG of GPE upheld ORG judgment on DATE . ORG reasoned its judgment , inter alia , as follows :

“ As ORG has maintained , there were no legal grounds for PERSON ’s detention during DATE . However , on DATE PERSON was sentenced to CARDINAL years’ imprisonment for the crimes that initially led to his detention , and ordered to be taken into custody . PERSON has subsequently been avoiding the implementation of the sentence and a warrant for his arrest has been issued . Therefore it would be excessive to oblige the ORG to pay him compensation for his short term detention . Further , because it can not be maintained that PERSON ’s liberty has been restricted in an arbitrary fashion or without justification , he is not entitled to compensation on the basis of ORG either . ”

In a letter dated DATE the first applicant asked the police to investigate whether the judge and laymen of ORG had committed a crime when they ordered his detention .

On DATE the police sent a report to the Chancellor of ORG and informed him that a criminal investigation would not commence before the Chancellor of ORG had examined the matter .

On DATE the Deputy Chancellor of ORG noted in his decision that there was no directly applicable statute in the law concerning detention of an accused by a court when reserving a judgment to a later date . He concluded however that both ORG and ORG had erred as the defendant could , and should have , been detained , under LAW on Coercive Means of Criminal Investigation . According to the Deputy Chancellor of ORG , that interpretation of law had been accepted by ORG in similar cases . He did not find any grounds for prosecution in the case .

The second applicant was serving a term of imprisonment in an open prison when on DATE he was taken in police custody to a police station as suspected of another crime . Some time later he was transferred to FAC , from which he was transferred to a prison in GPE on DATE . On DATE a public prosecutor decided not to press further charges against the second applicant .

On DATE the second applicant filed a suit against the ORG under LAW by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons . He demanded , inter alia , compensation for non - pecuniary damages caused by his detention from DATE to CARDINAL DATE . On DATE ORG rejected the second applicant ’s claims . It reasoned its decision , inter alia , as follows :

“ Even though [ the second applicant ’s ] liberty and possibilities to act were de facto restricted to a greater degree due to his transferral to the police jail compared to the conditions in an open prison establishment , [ the second applicant ] was also nevertheless a prisoner in the open prison .

As [ the second applicant ] was already imprisoned and as transferral to a different kind of prison does not require compensation pursuant to LAW by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons , and as [ the second applicant ] can not be considered as equivalent to a detained or convicted innocent person or to a person subject to an injunction order , ORG holds that the ORG is not obliged to pay [ the second applicant ] compensation for any possible non - pecuniary damage caused by the transferral to a police jail . ”

The second applicant complained to ORG which , on DATE , upheld ORG judgment . ORG refused the second applicant leave to appeal on DATE .

Section CARDINAL of LAW on Coercive Means of Criminal Investigation ( CARDINAL/CARDINAL ) , as in force at the time of the events , provided :

“ When the court cancels or defers the principal hearing in a case where the defendant has been detained , the court has to examine and assess whether there are reasons to keep the defendant detained . ”

Section CARDINAL of LAW on Coercive Means of Criminal Investigation was amended on DATE ( CARDINAL ) . The new section entered into force on DATE and it provides :

“ When the court cancels or defers the principal hearing or orders a new principal hearing in a case where the defendant has been detained , the court has to examine and assess whether there are reasons to keep the defendant detained . However , the question of detention does not have to be re - examined or reassessed during the time when the principal hearing has been deferred due to a mental examination of CARDINAL of the defendants in the case . The court must also rule on the question of detaining the defendant , if the court does not deliver its judgment directly after the principal hearing . ”

Section CARDINAL of LAW ( CARDINAL/CARDINAL ) states :

“ The court may detain a person convicted and sentenced to imprisonment , or order the continuation such a person ’s detention , if :

( CARDINAL ) the defendant has been sentenced to DATE imprisonment . ”

Section CARDINAL of LAW ( CARDINAL ) provides :

“ Nobody may be detained or ordered to continue to be detained if the detention would be excessive due to the nature of the case , the suspect ’s or sentenced person ’s age or due to other personal circumstances of the person in question . ”

Section CARDINAL of the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons ( CARDINAL/CARDINAL ) provides :

“ A person who has been arrested or detained as a suspect for a crime has a right to compensation from the ORG , if :

( CARDINAL ) a criminal investigation has ended without a criminal charge being brought ;

( CARDINAL ) a criminal charge is withdrawn or dismissed ;

( CARDINAL ) he or she has been found guilty of an offence which did not justify arrest or detention , or ;

( CARDINAL ) there was no legal basis for the arrest or detention .

There is no right to compensation if the deprivation of liberty has not exceeded TIME . ”

Section CARDINAL of the above - mentioned LAW ( CARDINAL/CARDINAL ) states :


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law;Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE a real estate agent brought a private prosecution against the applicant for insult and defamation punishable by a fine and public reprimand . According to the complaint , in a newspaper announcement the applicant , describing herself as “ the deceived citizen ” , warned the public that the real estate agent would buy their real estate at very low prices and then would resell it for much larger amounts , making a very large profit for herself .

ORG postponed hearings scheduled for DATE and DATE because the applicant had submitted medical certificates and had expressed the wish to participate in the proceedings in person .

At hearings conducted on DATE and DATE the applicant was not present but was represented by counsel .

At a hearing on DATE neither the applicant nor her lawyer appeared . The applicant had submitted a medical certificate and had requested postponement . ORG noted that the applicant ’s presence was not mandatory , but postponed the hearing as her lawyer was also absent . It imposed a fine of MONEY ( ORG ) on the applicant ’s lawyer . The latter appealed to ORG , arguing that she had also been ill , and submitted a medical certificate . On DATE ORG , applying the procedure of LAW , revoked its own decision , stating that the applicant ’s lawyer had given valid reasons for her absence .

At a hearing on DATE the applicant appeared , but stated that she would make submissions at the final pleading stage .

The applicant requested postponement of the hearings scheduled for DATE , DATE , CARDINAL May and DATE , stating that she wanted to address the court but was ill , as was documented by medical certificates she had submitted . ORG granted her requests .

On an unspecified date in DATE the applicant submitted to ORG another medical certificate prescribing her home treatment for hypertension from DATE , and requested postponement .

At a hearing on DATE , held in the applicant ’s absence but in the presence of her lawyer , ORG noted the applicant ’s statement that she wanted to make submissions at the final stage of the pleadings and found that her hypertension was not an obstacle in this respect . It further noted that the applicant had submitted medical certificates on a number of occasions , thus causing delays in the proceedings . Relying on the LAW , ORG observed that it was necessary to complete the proceedings within a reasonable time and held that the applicant should therefore be brought before it for the next hearing with the assistance of the police . It did not specify any legal ground for this order . It scheduled the next hearing for DATE at TIME Since the applicant ’s lawyer was present at the hearing , the applicant was considered duly informed of the order .

Around TIME on DATE the applicant was detained by the police and taken to FAC , where she remained until TIME . The applicant contends that the conditions there were humiliating and that she had to use the same toilet as male detainees .

In TIME of DATE the applicant was escorted by train and car from GPE to GPE ( QUANTITY km ) , attended the hearing at TIME and made submissions , after which she was released . In a judgment of the same date ORG acquitted her , finding that her newspaper announcement had been neither insulting nor defamatory . The plaintiff requested judicial review of the judgment but on DATE her appeal was rejected for procedural flaws .

Pursuant to LAW ( “ the DATE CCP ” ) , the attendance of the accused person at the trial is mandatory where the charges concern offences punishable by PERCENT DATE imprisonment . In all other cases , the court may order the accused person to appear if this is necessary for establishing the truth ( LAW .

An accused person may be taken into custody in order to secure his attendance for questioning if he has failed to appear without valid reasons , provided that his attendance is mandatory or is deemed necessary by the competent authority ( Article CARDINAL(CARDINAL ) of DATE CCP ) . The accused may be taken into custody without prior notice if he has absconded or has no permanent address ( Article PERSON ) of the DATE CCP ) .

Orders under Articles CARDINAL(CARDINAL ) and CARDINAL of the CARDINAL CCP are not amenable to appeal before a higher court .

Pursuant to LAW , in force until DATE , the court could revoke its own procedural order if judicial review had been requested . This provision was superseded by LAW , in force since DATE , which repeats its text almost verbatim .

The DATE State and ORG ( the “ ORG ” ) provides for compensation in certain cases of deprivation of liberty ordered by a court or by investigating or prosecuting authorities , where the relevant decision or order has been set aside “ for lack of lawful grounds ” under domestic law . Deprivation of liberty aiming at securing the accused ’s attendance at a hearing is not among those cases .

NORP The relevant domestic law and practice concerning State liability for damage in connection with conditions of detention have been summarised in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) .


Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , a NORP citizen born in DATE , resides in GPE , GPE .

On DATE , the applicant was arrested and remanded in custody on urgent suspicion ( dringender Verdacht ) of having participated together with the “ PERSON ” terrorist group in an attack on the radio station ORG in GPE and in attacks on diplomatic staff in GPE and GPE . The warrant of arrest also referred to a danger of collusion and absconding .

On DATE the investigating judge of the GPE of GPE confirmed the detention on remand of the applicant . The decision noted that the suspicion was based on files of the NORP ORG security authorities and the NORP intelligence service . There was an urgent suspicion that , as a supporter of the “ PERSON ” group , he had participated in the various events . Additional investigations would be necessary since the applicant refused to comment on his contacts with the group . According to the decision , detention was further required in order to avoid collusion with other members of the group . There was also a danger of absconding in view of the severity of the possible prison sentence .

NORP The investigations were then conducted by ORG ( Bundesanwaltschaft ) .

On DATE , DATE , the applicant filed a request with the Federal Attorney for release from detention . He contested the urgent suspicion that he had committed the offences at issue and that there was a danger of collusion and absconding . He also requested consultation of the case - file . The request was received by the Federal Attorney on DATE , CARDINAL DATE .

On DATE , DATE , the Federal Attorney dismissed the applicant ’s request . The decision , referring to various investigations still to be undertaken as well as a danger of collusion and absconding , was served on the applicant on DATE , DATE .

On DATE , the applicant filed an appeal ( Beschwerde ) against the decision of DATE with ORG ( Anklagekammer ) of ORG , invoking LAW , DATE and LAW and requesting release from detention . He complained that DATE had lapsed without the lawfulness of his detention having been examined by a court within the meaning of LAW , and that he had not been able to consult the case file . The appeal was received by ORG on DATE .

On DATE the President of ORG transmitted a copy of the appeal to the Federal Attorney who was requested to submit her observations by DATE . The Federal Attorney was further asked to send a copy of her observations to the applicant who , in turn , was requested to submit any observations by DATE .

On DATE , ORG filed her observations . They were served on the applicant on DATE .

The applicant filed his observations in reply on DATE . These observations were received by ORG on DATE .

On DATE , ORG dismissed the applicant ’s request , the decision being served on the applicant on DATE .

In respect of the applicant ’s complaint that he could not consult the case - file , ORG found that the applicant had had knowledge of the essential documents . The decision further confirmed that there was sufficient suspicion that the applicant had committed the offences at issue and that there was also a danger of absconding and of collusion .

On DATE ORG decided to release the applicant from detention on remand . The decision stated , inter alia , that the original suspicions directed against the applicant had not been confirmed ( erhärtet ) .

According to LAW ( Bundesstrafrechtspflegegesetz ) , a person detained on remand may at any time file a request for release from detention . If the investigating judge or the Federal Attorney refuse the request , an appeal may be filed with ORG . According to Sections CARDINAL bis and CARDINAL of the LAW , the time - limit for filing the appeal is DATE .


Remainder inadmissible;No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-b - Preparation of defence;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in DATE and is currently serving a life sentence in PERSON .

On DATE the applicant was convicted of robbery and other crimes , sentenced to CARDINAL years’ imprisonment and taken to the ORG correctional colony to serve his sentence .

While the applicant was serving his sentence , new criminal proceedings were instituted in which charges of criminal association membership , murder and other violent crimes were advanced against him . On an unspecified date N. ORG was appointed as the applicant ’s legal - aid lawyer . Subsequently A. GPE , another legal - aid lawyer , replaced him .

On an unspecified date the applicant , along with several other individuals , was committed for trial to ORG ( hereafter “ the Regional Court ” ) , acting as a first - instance court . The charges against him included belonging to a criminal association , as a member of which he had taken part in CARDINAL murders with a view to personal gain ; several robberies ; unlawful handling of arms ; and unlawful taking of a vehicle .

During the trial the applicant confessed to having participated in the robberies and the other crimes attributed to him . However , he argued that his personal role in the murders had been negligible , and that he had not had any intention of profiting personally from CARDINAL of the CARDINAL murders .

The applicant also complained to the court that he had been tortured by the investigative authorities during the pre - trial investigation . The court ordered ORG to conduct an inquiry into the applicant ’s complaint , which found that there was no case of illtreatment to answer .

On DATE the applicant was convicted as charged and sentenced to life imprisonment .

The applicant and PERSON his legal - aid lawyer ) drafted separate cassation appeals . The applicant ’s lawyer challenged the assessment of the facts and application of the law in respect of several points and requested a milder sentence .

The applicant , for his own part , complained , primarily , about the severity of his sentence , of ill - treatment by the investigative authorities , and of the court ’s failure to question PERSON , another alleged criminal association member , who had been on a wanted list . In his appeal , the applicant also stated that he wanted to further substantiate his arguments once he had had a chance to study the case file .

On DATE and CARDINAL and DATE the applicant was brought into ORG offices to study the case file in order to prepare his cassation appeal . He signed affidavits asserting that he had read the entire case file .

On DATE ORG of GPE adjourned consideration of the case until DATE in order to ensure the applicant ’s and his co - defendants’ presence at the proceedings .

On DATE the applicant complained to ORG that he had not been properly familiarised with the case - file materials . He mentioned , in particular , that he had only been brought to the court ’s records office to study the file on CARDINAL occasions . He further noted that he had remained in handcuffs at all times and that this had not only been physically painful , but also detrimental to his ability to take notes . Lastly , the applicant noted that he had been coerced into signing the affidavits that stated that he had properly studied the file . The applicant asked ORG to ensure that he be provided with an opportunity to study the case file in his lawyer ’s presence .

On DATE the applicant asked ORG to adjourn the case , regard being had to the failure of his legal - aid lawyer to appear . He further asked ORG to oblige PERSON to perform her professional duties , to admit PERSON , his mother , as his lay defence representative , and to provide him with an opportunity to familiarise himself with the case file in order to prepare his defence .

On DATE ORG adjourned the hearing . It noted that the applicant ’s request for additional familiarisation with the case file was ill - founded , as he had signed affidavits stating that he had properly studied it . On the other hand , ORG found the applicant ’s concern about his lawyer ’s absence substantiated and ruled as follows :

“ to give [ the applicant ] the opportunity to appoint a lawyer or a defence representative to participate in the cassation proceedings in order to represent his interests .

The administration of the GPE should assist [ the applicant ] in establishing a connection with his defence representative or persons who can appoint a defence representative ” .

On DATE the applicant further complained to ORG that he had not been familiarised with the appeals brought by other parties to the proceedings .

On DATE ORG held a hearing in the applicant ’s case in the absence of his lawyer . At the beginning of the hearing , the applicant requested that ORG act on his previous requests . The prosecutor opined that the applicant had had sufficient opportunity to familiarise himself with the case file . The court rejected the applicant ’s requests as unfounded and upheld the judgment of the firstinstance court .

On DATE ORG asked the applicant to provide certified copies of his appeals and his procedural requests addressed to the Regional and ORG .

On DATE the applicant asked ORG records office to provide him with the documents at issue in connection with the ORG ’s request .

On DATE ORG rejected this request , referring to the lack of any obligation under national law to make copies of case file documents .

On DATE GPE , the applicant ’s mother , who was also acting as his representative in the Convention proceedings at the material time , lodged a new request with ORG on his behalf . In particular , referring to LAW , she requested that ORG either mail certified copies of the documents requested by ORG to her home address or inform her in writing where they could be delivered to her .

On DATE ORG returned her request without providing the copies sought , noting that “ LAW in force does not oblige the court to prepare copies of materials from a criminal case file ” .

From DATE until DATE , with short interruptions , the applicant was detained in GPE pre - trial detention facility no . CARDINAL ( “ GPE no . CARDINAL ” ) .

According to the applicant , he had been detained with another individual in a cell measuring CARDINAL by QUANTITY for DATE . The applicant ’s bunk , which had measured QUANTITY by QUANTITY , had had raised bars at its ends . Given that the applicant was QUANTITY tall , he had been unable to stretch out fully and get adequate sleep . The cell had been located in the basement , scarcely letting in daylight or fresh air , while the electric light had been dim and there had not been any artificial ventilation . The windows had had grates on them , which had further blocked natural light from coming in through the window . Moreover , they had been blocked by the upper bunk of the bed . The air had been damp and ventilation had been insufficient . The toilet had not been separated from DATE . It had smelled of excrement and had frequently been flooded . The applicant had made a cover for the toilet ( a “ grusha ” ) to prevent unpleasant smells . However , it had been confiscated by the prison authorities . They had likewise routinely confiscated a number of his other belongings and appliances for no apparent reason , including food , a TV antenna and a string , without which it had not been possible to open the window . Consequently , the applicant ’s access to information from the outside world had been severely limited and he had been unable to open the window to disperse the smell from the toilet . The food had been meagre and had mostly consisted of wheat cereal and bread . The detainees had only been able to wash themselves , cut their nails and shave once DATE in a special bathing facility . All of the detainees had shared the same pair of scissors . They had remained handcuffed by the hand to the wall while they had been cutting their nails and shaving , which had felt degrading .

On DATE the applicant ’s cellmate had hit him on the head with a metal mug while he was asleep , causing an open wound . Notwithstanding the applicant ’s numerous requests for medical assistance on account of this incident , he had only been provided with oxygenated water and a bandage . The injury had resulted in the applicant having frequent headaches , vertigo , vomiting , and pus and blood dripping from one ear , which he had treated himself with his own urine .

On DATE the applicant had been severely beaten by GPE guards for allegedly organising inter - cell communication . In spite of his repeated requests for medical assistance on account of the injuries sustained as a result of the beating , the applicant had merely been given painkillers .

The Government submitted that the conditions of the applicant ’s detention in GPE no . CARDINAL had been adequate . They presented a certificate issued by the PERSON administration dated DATE attesting that , according to their inspection on that date , there had been QUANTITY of available space per detainee in each cell . The dimensions of bunks used in the GPE had been QUANTITY by QUANTITY . The basement floor cells , where the life prisoners had been held , had had windows measuring QUANTITY by QUANTITY , which size had afforded sufficient access to daylight . In DATE the cells had been lit by QUANTITY lamps , which had enabled the detainees to read and write without hurting their eyes . Each window had had a special ventilation pane , which had been able to be opened to air the cells . In addition , an electric ventilator in the corridor had ensured artificial ventilation of the cells . The cells had been fitted with radiators to ensure a stable temperature of CARDINAL . Each cell had been equipped with CARDINAL metal bunks , a chair , a shelf for personal belongings , a table , CARDINAL small cupboards which could also be used as stools for sitting , a clothes hanger , a tap with a sink , a mirror , and a toilet . The toilets had had bent pipes to prevent unpleasant odours and had been separated from the living area by fixed partitions .

The Government further submitted ( without providing any supporting documents ) that , as regards sanitary arrangements , the GPE ’s detainees had had DATE access to bathing facilities , where they had also been provided with razors and scissors . Disinfectant had been used on a regular basis to clean the cells and other LOC . Twice DATE ( in DATE and the DATE ) comprehensive measures against rats had been implemented and the entire GPE facility had been disinfected . The detainees had been provided with meals CARDINAL times a day , freshly cooked by the GPE ’s cooks . Food had been varied and in conformity with applicable nutrition regulations .

No instances of seizure of or damage to the applicant ’s belongings by the PERSON administration had been recorded .

As regards medical assistance , on DATE the applicant had been diagnosed as suffering from an acute ear infection . On DATE he had consulted an otolaryngologist and had been diagnosed with a fistula in CARDINAL of his ear canals . DATE and DATE the applicant had received in - patient treatment for pulled leg muscles . In DATE , having been transferred to a correctional colony to serve his sentence , the applicant had undergone an operation to extract a foreign body from his left ear canal .

As regards the incident of DATE , the applicant had never complained about it before to the domestic authorities . There was no evidence that this incident had ever taken place .

Relevant provisions of LAW as worded at the material time read as follows :

A defence representative shall be appointed in the event :

( CARDINAL ) NORP that ... the defendant wishes to engage a defence representative , but lacking funds or in view of other objective circumstances is unable to do so .

... if it is impossible to obtain the presence of the defence representative selected by the ... defendant within TIME ... the court may propose that the ... defendant appoint another defence representative . If this defence representative is unable to appear in the case within TIME and also in the event that ... the defendant has not engaged another defence representative within this timeframe ... the ... judge by a ruling or the court by a decision shall appoint a defence representative . ”

“ To support or disprove arguments presented in an appeal , the persons who advanced them may submit documents to the cassation court which were not in the case file ... ”

“ The cassation court shall review the lawfulness and reasonableness of the court judgment ... or part [ thereof ] which was appealed . The cassation court may exceed the scope of a cassation claim , if doing so would not prejudice the situation of the convicted or acquitted person ... ”

“ Grounds for annulment or modification of the judgment , decision or ruling shall be :

( CARDINAL ) substantial breach of the law of criminal procedure ;

( CARDINAL ) incorrect application of the criminal law ;

( CARDINAL ) the selected penalty being disproportionate to the gravity of the offence and the personality of the convicted person .

A judgment of the court of appeal taken by it as a first - instance court may be annulled or modified [ on the basis of ] bias , incompleteness of any inquiry , pre - trial or trial investigation or inconsistency in the ORG ... ”

Relevant Council of LOC and other materials establishing standards for conditions of detention and international reports concerning the conditions of detention in GPE can be found in the judgment in the case of ORG and Others v. GPE , nos . ORG and CARDINAL , § § CARDINAL , DATE .


Violation of Art. 10;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

The applicant is a historian and university professor . His main subject of research is the Second World War and , in particular , the extermination of NORP and GPE . He is the author of numerous publications on the subject .

In DATE a heated public debate took place in GPE as to whether a statue should be raised to commemorate GPE . In a wider context , the debate also concerned the question of GPE ’s failure to face up to its role in World War II and the Holocaust , as well as the attitude of NORP to this chapter of the country ’s DATE history – issues which had political implications , given that certain right - wing parties in the country identified their roots in the pre - World - War - II political system , of which GPE was an emblematic figure .

NORP In that context the applicant publicly stated that GPE had been one of the most reprehensible figures of NORP history , responsible for substantial anti - NORP legislation as well as for dragging GPE into World War II .

NORP In issue no . CARDINAL of the DATE paper GPE , the applicant published an article on this subject , criticising the right - wing media , including a certain PERSON , for embellishing PERSON ’s role and for making anti - NORP statements in the process . The article presented examples of , and refuted , various misconceptions about GPE ’s political acts , endorsed by right - wing authors in order to diminish his responsibility for the persecution of NORP , which , in the applicant ’s view , amounted to “ cautious NORP - bashing ” . CARDINAL of these examples reads as follows :

“ In ORG ’s charming words , CARDINAL anti - NORP laws ‘ ORG within ORG ’s CARDINAL premierships . ... If we are counting , let us be accurate : not CARDINAL , but CARDINAL ( CARDINAL ) anti - NORP laws are linked to GPE ’s name . ... ”

The applicant also noted that :

“ ... [ I]t is rare that those supporting [ the plan to erect a ] statue of GPE are trying to defend their position using overtly anti - NORP arguments . ”

Mr ORG brought an action against the applicant before ORG . He claimed that his reputation had been tarnished by another passage in the applicant ’s article which read as follows :

“ In ORG database there are CARDINAL of articles and studies praising GPE , written in a sometimes uninhibited , sometimes more moderate style . In DATE , the extremely anti - NORP and irredentist ORG devoted a CARDINAL series to the ex - PM . The amateur historian [ ORG ] wrote several articles extolling the virtues of GPE DATE the devout NORP , the enthusiastic ORG leader DATE who in his view was an anti - NORP ‘ Realpolitiker’ .

These articles and studies prompted very little reaction . There are very few of us who , at least from time to time , pick up the products of the right - wing or extreme right - wing press , which , perhaps encouraged by this [ indifference ] , keeps lying , keeps slandering , keeps stirring feeling against and bashing the NORP ( zsidóznak ) , in an increasingly uninhibited way . ”

According to the plaintiff , the last sentence of the quotation could have been aimed at him and was prejudicial to his reputation .

On DATE ORG dismissed the action , holding in essence that the impugned sentence , especially the expression “ bashing the NORP ” did not concern the plaintiff himself but the right - wing and extreme right - wing media in general .

On DATE ORG reversed that decision on appeal and found for the plaintiff . Relying on sections DATE , CARDINAL and CARDINAL of LAW , it ordered the applicant to arrange for the publication of a rectification at his expense and to pay the legal costs , which amounted to MONEY ( ORG ) . Assessing the applicant ’s statements in the context of the whole article , ORG held that the impugned expression could be seen as relating to the plaintiff personally and that the applicant had failed to prove that it was true . In the court ’s opinion , to accuse the plaintiff , even contextually , of “ NORP bashing ” was a statement of fact that presented Mr ORG in a false light and was thus capable of prejudicing his reputation .

On DATE ORG upheld that decision , imposing another HUF CARDINAL in legal fees . It reaffirmed that “ the impugned statement DATE which was made , in general terms , with regard to the right - wing ( extreme right - wing ) press – could also be considered to concern the plaintiff ” .


Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed

ORG The present case was referred to ORG " ) in DATE and then by ORG ( " the Commission " ) in DATE . The case originated in an application ( no . CARDINAL/CARDINAL ) against that ORG lodged with the ORG on DATE by a NORP national , Mr. PERSON .

ORG The ORG constituted to hear the case relinquished jurisdiction in favour of the plenary Court on DATE ( Rule CARDINAL of ORG ) . By a judgment delivered on DATE , the ORG held that there had been a breach of Article CARDINAL para . CARDINAL ( e ) ( article DATE ) of the LAW in that the applicant had not received the free assistance of an interpreter during proceedings before ORG ( Series A no . DATE , paragraphs CARDINAL of the reasoning and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to DATE to CARDINAL of the above - mentioned judgment ( pp . CARDINAL ) .

ORG At the hearings held on DATE , Mr. PERSON , counsel for the applicant , had sought , by way of just satisfaction for his client , reimbursement of interpretation fees of ORG CARDINAL and payment of lawyer ’s costs incurred before the Convention institutions ; as to the amount of the latter costs , he had stated that he left the decision to the discretion of ORG ( ibid . , p. CARDINAL , paragraph CARDINAL of the reasoning ) . The Government had not taken a stand on the matter ( ibid . ) .

In its judgment of DATE , the ORG reserved the whole of the question ( ibid . , paragraph CARDINAL of the reasoning and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL ) ; DATE , it referred the question back to LAW CARDINAL para . CARDINAL of the Rules of Court .

ORG The President of the ORG , to whom ORG had delegated the power to fix the further procedure , obtained , through ORG , the views of the Agent of the Government and of the Delegates of the Commission . On DATE , he directed that the Agent should have until DATE to file her comments and that the Delegates should then have DATE within which to reply in writing .

The PERSON received the Government ’s memorial on DATE . The Delegates’ memorial was lodged on CARDINAL May , following an extension of the time - limit granted by the President of the ORG on DATE

On DATE , the Secretary to ORG informed the Registrar that the applicant ’s lawyer had notified him of his claims and comments by telephone and not in writing , as he had been requested to do .

ORG Mr. PERSON , substitute judge , replaced Mr. PERSON , who was prevented from taking further part in the consideration of the case ( Rules CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ) .

ORG After consulting ORG and the Delegates of the Commission through the Deputy PERSON , the ORG decided on DATE that there was no need to hold a hearing .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award

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

The applicant is the manager of the M GmbH ( ORG ) . He held registered shares of ORG ( the “ target company ” ) , an insurance company which was seated in GPE .

On DATE , respectively , the shareholder 's meetings approved the merging of the target company into the E - Versicherungsgruppe AG ( the “ acquiring company ” ) , which was seated in GPE . The shareholders of the target company were to receive shares in the acquiring company .

On DATE the merger of the CARDINAL companies was announced pursuant to section CARDINAL , subsection CARDINAL of LAW ( Umwandlungsgesetz , see relevant domestic law , below ) in LAW ( PERSON der PERSON ) . The applicant maintains that he was unaware of this publication .

Meanwhile , on DATE a shareholder of the target company lodged a motion with ORG ( Landgericht ) with the aim of being allocated an additional number of shares . Having been informed that he did not have such a claim under the applicable law , the shareholder withdrew his request on DATE .

On DATE ORG , which was represented by counsel , lodged a motion against the acquiring company before ORG with the aim of obtaining compensation ( bare PERSON ) for the alleged loss of value of the shares incurred by the merger pursuant to section CARDINAL of LAW . The company further requested ORG to order the defendant party to submit the date of the most recent announcement of the merger in the public bulletin . Finally , the company requested the GPE court to transfer the case - file to the competent court in case it should lack jurisdiction .

On DATE ORG informed both parties that , pursuant to section CARDINAL § CARDINAL of LAW , the court at the seat of the target company , which was not GPE , appeared to be locally competent . ORG invited both parties to submit their comments within DATE . This letter was served on the M - Company on DATE .

By telefax of CARDINAL DATE the plaintiff maintained that ORG should be regarded as having jurisdiction . In case ORG should not follow this opinion , the plaintiff alternatively requested to transfer the case - file to ORG .

NORP The applicant 's counsel further declared that he lodged all requests in the pending proceedings also on behalf of the applicant , as it was not clear whether the shares were owned by ORG or by the applicant personally .

On DATE the acquiring company requested an extension of the time - limit until DATE with regard to the upcoming DATE .

On DATE ORG , without having heard the applicant , granted the requested extension . The applicant 's counsel was informed of this decision by court - letter dated DATE .

NORP By letter dated DATE , which reached ORG on DATE , the acquiring company maintained that , according to the relevant provisions , ORG as the court at the seat of the target company was locally competent . It further pointed out that the action had been lodged out of the statutory time - limit of DATE following the final announcement of the merger in an official bulletin , which had expired on CARDINAL DATE . As the motion had been lodged with an incompetent court , it had not been properly lodged within that time - limit .

On DATE the applicant replied that the acquiring company had been acting in bad faith as it was the only party to the proceedings which knew about the impending expiry of the time - limit and had purposefully delayed the proceedings .

By order of CARDINAL DATE ORG transferred the case to ORG , where it arrived on DATE .

On DATE ORG declared the actions lodged on behalf of ORG and of the applicant inadmissible for having been lodged outside the statutory time limit . That court noted that the registration of the CARDINAL companies ' merger had been announced on behalf of ORG on DATE by publication in ORG and in a GPE DATE newspaper and on behalf of ORG on DATE in ORG and on DATE in the Official Bulletin of GPE . It followed that DATE time - limit started to run on DATE . ORG noted that the plaintiffs had filed their requests within the statutory time - limit with ORG . However , as that court had transferred the case to the competent ORG only after expiry of the time - limit , it had not been lodged in time . According to ORG , LAW , which provided that a law - suit remained pending even if it was transferred from a court which lacked jurisdiction , did not apply to the proceedings aimed at determining a shareholder 's compensation ( aktienrechtliches ORG ) .

On DATE the applicant lodged a complaint with the aim to declare his action admissible . Alternatively , he requested to be granted reinstitution into the proceedings ( Wiedereinsetzung in den vorigen Stand ) with respect to the time - limit . The applicant pointed out that he had not known at which date the merger had been announced in the official bulletin . Accordingly , he could not have known at which date the time - limit would expire . ORG had awaited the defending parties ' submissions without referring the case to ORG , as requested by the applicant . Under these circumstances , the applicant claimed that section CARDINAL of the Code of Civil Procedure should be applicable by analogy to the effect that the lodging with ORG had to be regarded as sufficient in order to comply with the statutory time - limit . Alternatively , the applicant claimed that he should be granted a reinstitution into the proceedings with regard to the fact that the delays which had occurred before ORG before the case was transferred to ORG were not imputable to him . Finally , the applicant maintained that ORG had failed to publicly announce the request filed by the other shareholder on CARDINAL DATE and to appoint a joint representative in order to safeguard the other external shareholders ' rights . He further maintained that his complaint should be declared admissible as a follow - up request to the first request lodged in DATE .

On DATE ORG ( GPE ) rejected the applicant 's complaint . It noted that the merger had been announced on DATE in ORG and on CARDINAL DATE in the Official Bulletin of the Municipality of Hamburg . Confirming ORG finding relating to the expiry of the statutory time - limit and to the applicability of section CARDINAL of the Code of Civil Procedure , ORG considered that only a strict application of sections CARDINAL and CARDINAL of the LAW guaranteed that the shareholders could have certain knowledge within a short period of time as to whether compensation would be paid . ORG further considered that the request lodged by the other shareholder in DATE was inadmissible . Accordingly , this request did not allow to file a follow - up request within the time - limit of section CARDINAL § CARDINAL .

ORG expressed its doubts as to whether the rules on reinstitution into the proceedings were applicable to the present proceedings . In any event , the applicant had not been hindered to comply with the statutory time - limit through no fault of his own . Even though section CARDINAL § CARDINAL of LAW contained a clear and unambiguous provision on jurisdiction , he had insisted that ORG had been competent .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant 's constitutional complaint . According to that court , the applicant 's complaint did not have fundamental constitutional significance . Neither was the acceptance of the complaint indicated in order to enforce the constitutional rights which the applicant claimed had been violated . While it could not be excluded that ORG , when deciding on the applicant 's request for reinstitution into the proceedings , failed in a constitutionally questionable way sufficiently to consider the conduct of ORG , the applicant – who had learned in time about the extension of the time - limit granted to the defendant on DATE had failed to apply for a reduction of that extended time - subsidiarity . The remainder of the complaint did not have any prospect of success , as the applicant 's submissions did not disclose a violation of his rights under LAW . This decision was served on the applicant on DATE .

The merging of shareholder companies was , at the relevant time , governed by LAW ) , which provided as follows :

According to section CARDINAL , a shareholder could request compensation ( bare PERSON ) if the value of the shares he was allocated in the acquiring company did not equal the value of the shares he held in the target company .

Section CARDINAL provided that the merger of CARDINAL companies had to be registered first in the commercial register at the seat of the target company and , subsequently , in the commercial register at the seat of the acquiring company . Each registration had to be announced by publication in ORG and in CARDINAL further periodical . The second publication organ was chosen by the commercial court by DATE for DATE and made public by notifying , inter alia , the chamber of commerce . The merger had to be regarded as being publicly announced by DATE of the latest publication ( see section CARDINAL § CARDINAL ) .

The provisions on procedure read as follows :

Section CARDINAL

Time - limit

“ A motion for a court decision pursuant to section CARDINAL ... has to be lodged within DATE following the date on which the registration has been publicly announced pursuant to the provisions of this law . ”

Section CARDINAL

Competent court

“ ( CARDINAL ) The competent court is ORG at the seat of the company whose shareholder is entitled to lodge the motion . ”

Section CARDINAL

Court proceedings

“ ( CARDINAL ) The proceedings are governed by the law on matters of non - contentious jurisdiction ( freiwillige PERSON ) ...

( CARDINAL ) The motion has to be lodged against the acquiring company ...

( CARDINAL ) ORG has to announce the motion in LAW ( PERSON ) and , if the statutes of the respective company so provide , in other public bulletins . Other shareholders may lodge their own motions within DATE following publication . This has to be pointed out in the publication . A request lodged after expiry of this time - limit is inadmissible ... ”

Section CARDINAL

Joint representative

“ ( CARDINAL ) ORG has to appoint a representative in order to safeguard the rights of those external shareholders who did not lodge an own motion ... ”

NORP In proceedings governed by LAW , an action complies with a time - limit even if it has been lodged with an incompetent court and is only later on transferred to the competent court ( section CARDINAL of the Code of Civil Procedure ) .

In separate proceedings ORG ( ORG , case no . II ZB CARDINAL ) ruled on DATE that section CARDINAL of the Code of Civil Procedure should also apply by analogy to proceedings aimed at determining a shareholder 's compensation . This decision was based on considerations of legal certainty and the interest of an acceleration of the proceedings . ORG further noted that a court was generally obliged rapidly to inform the parties about its own lack of jurisdiction and swiftly to process a request to transfer the case - file to the competent court .


Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings

The applicant was born in DATE and lives in LOC .

The applicant receives welfare payments for her child . In DATE she brought civil proceedings against a local welfare authority , claiming arrears in those payments for DATE .

On DATE the Novousmanskiy ORG of the Voronezh Region awarded the applicant MONEY ( RUR ) .

On DATE a writ of execution was issued and sent to the bailiffs .

On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgment of CARDINAL DATE and returned the writ of execution to the applicant , as the debtor had insufficient funds .

In DATE the applicant was paid the amount due pursuant to the writ of execution .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

The application concerns CARDINAL sets of criminal proceedings . In both sets of proceedings , the hearings were closed to the public for the purpose , among others , of protecting the rights of the alleged victims and – as regards some of the hearings – the private life of the applicant .

On DATE an official police report ( uradni zaznamek ) was prepared concerning the applicant 's attitude towards children he had taught in a primary school . It contained a statement given by CARDINAL of the school teachers which had been obtained in accordance with section CARDINAL of GPE ( Zakon o kazenskem postopku DATE see paragraph CARDINAL below ) . The teacher stated that she had not noticed anything strange in the applicant 's attitude towards children . She also described an incident where the parents of a boy who the applicant had allegedly abused had come to the school to complain about the applicant 's conduct and stated that the applicant had resigned following this incident .

On DATE the ORG ( NORP državno tožilstvo v PERSON ) lodged a request for a criminal investigation on the basis of reasonable suspicion that the applicant had committed CARDINAL criminal offences of sexual assault on a minor under DATE ( spolni napad na osebo , mlajšo od petnajst let ) . The request was based on findings from the preliminary proceedings .

On DATE , after questioning the applicant , the investigating judge of the ORG ( Okrožno sodišče v PERSON ) decided to open a criminal investigation , and that decision became final on DATE .

An examination of witnesses scheduled for CARDINAL DATE was adjourned at the applicant 's request .

On DATE , DATE and DATE the investigating judge examined several witnesses , mostly for the prosecution .

On CARDINAL and DATE the court examined several defence witnesses .

On DATE the applicant proposed a re - examination of certain witnesses . The investigating judge , disagreeing with the proposal , requested the interlocutory - proceedings chamber of CARDINAL judges ( zunaj obravnavni senat ) at the Murska Sobota District Court to decide on the issue . On DATE the chamber dismissed the proposal .

On DATE the applicant was indicted for the criminal offence of sexual abuse of a minor . The indictment became final on CARDINAL DATE .

On DATE the ORG held a hearing . The applicant 's lawyer requested that the alleged victim , who was a minor , be examined as a witness . The minor was consequently examined by the investigating judge on DATE .

The next hearing was held on DATE . After the hearing , the ORG convicted the applicant and sentenced him to DATE imprisonment . The written judgment was issued on DATE .

The applicant appealed on CARDINAL DATE .

On DATE ORG ( PERSON ) dismissed the appeal .

Consequently , the first - instance court 's judgment became final on DATE .

On DATE the applicant lodged a request for the protection of legality ( zahteva za varstvo zakonitosti ) .

On DATE ORG Vrhovno sodišče ) rejected the request .

On DATE the applicant lodged a constitutional appeal .

The proceedings are pending before ORG .

On DATE the applicant was arrested by the police .

On DATE he was brought before the investigating judge at the ORG on suspicion of having committed another criminal offence . On DATE the investigating judge remanded him in custody .

On DATE the public prosecutor applied for a criminal investigation .

On DATE the applicant appealed against his detention . On DATE the interlocutory - proceedings chamber dismissed the appeal as unfounded .

On DATE the investigating judge examined the applicant and opened a criminal investigation against him .

On DATE the detention was prolonged for DATE by the interlocutory - proceedings chamber . An appeal by the applicant against the prolongation was dismissed by ORG on DATE .

On DATE and DATE the investigating judge examined witnesses .

On DATE the investigating judge appointed CARDINAL medical experts . The experts submitted their opinions on CARDINAL May and DATE respectively .

On DATE the public prosecutor indicted the applicant for the criminal offences of sexual assault on a minor and of presenting and manufacturing pornographic material concerning minors ( prikazovanje in izdelava pornografskega gradiva z zlorabo mladoletne osebe ) .

On DATE the applicant 's detention was prolonged by a decision of the interlocutory - proceedings chamber . An appeal of DATE was dismissed on DATE and a request for the protection of legality , lodged on DATE , was rejected by ORG on DATE . It appears that the applicant 's detention was subsequently prolonged DATE , the last time on DATE ( see paragraph CARDINAL below ) . The applicant 's appeals against the prolongation of his detention were dismissed by the second - instance court .

On DATE the applicant appealed against the indictment . The interlocutory - proceedings chamber dismissed the appeal on DATE .

On DATE the court held a hearing .

The hearing scheduled for DATE was cancelled because the applicant requested the withdrawal of the public prosecutor , all members of the chamber ( senat ) and the president of the ORG . The requests were dismissed by the president of the ORG and the president of ORG on DATE and CARDINAL DATE respectively .

The hearing scheduled for DATE was also cancelled since the applicant requested the withdrawal of the president of the chamber and the president of the court . On DATE the requests were dismissed by the president of ORG .

The hearing scheduled for DATE was cancelled at the request of the applicant 's lawyer owing to her commitments in another – unrelated DATE case .

The hearing scheduled for DATE was cancelled owing to a new request for withdrawal based essentially on the same reasons as the previous one . The request was rejected on CARDINAL DATE .

The next hearing was scheduled for DATE . Before the hearing , the court dismissed a new request for the withdrawal of judges , finding that it was a delaying tactic . As DATE had elapsed since the last hearing , the court had to conduct the trial ab initio with , in particular , a fresh examination of the applicant and the reading of testimony . The applicant requested that the witnesses and experts be examined again .

Before the hearing on DATE , the applicant again filed a request for the withdrawal of judges , but it was rejected . The applicant requested that the alleged victim be examined again .

On DATE the alleged victim was examined by the investigating judge .

On DATE , before the scheduled hearing , at TIME , the applicant injured his finger while opening the window of his cell . At TIME the officers took him to the court intending to ask the judge whether he should be taken to see a doctor immediately or at the end of the hearing . At the court , the applicant requested that jurisdiction in the case be transferred to another court and the hearing was consequently adjourned .

Subsequently , on DATE at TIME , the officers offered to take the applicant to see a doctor but he refused to go . At the applicant 's subsequent request , made at TIME , he was taken to see the doctor at TIME According to the letter sent by the prison authorities to the ORG , the doctor did not consider the injury to be serious .

On DATE ORG dismissed the request for transfer of jurisdiction . On DATE the applicant lodged a request for the protection of legality against that decision . The case file was thus sent to ORG and the first - instance court cancelled the scheduled hearings . On DATE ORG rejected the request .

On DATE the president of the chamber himself requested to stand down from the proceedings . He expressed doubts as to his ability to conduct the proceedings properly owing to the conduct of the applicant and his lawyer .

On DATE the case was referred to a new judge .

On DATE a hearing was held . Before the hearing , the court dismissed the request for the withdrawal of judges and the transfer of jurisdiction , noting that the applicant had abused his procedural rights .

On DATE a hearing was held at which several witnesses and experts were heard .

On DATE another hearing was held and the following hearing was scheduled for DATE .

On DATE the applicant was taken to the hospital where it was discovered that he had swallowed CARDINAL coins . However , the court refused to cancel the scheduled hearing .

After the hearing held on DATE the court delivered a judgment finding the applicant guilty and sentenced him to DATE imprisonment , inclusive of the sentence imposed in the previous set of proceedings ( see paragraphs CARDINAL above ) . The written judgment was issued on DATE .

On DATE the public prosecutor lodged an appeal .

On DATE the applicant appealed and on DATE the applicant 's lawyer appealed .

On DATE ORG increased the sentence to DATE imprisonment . The judgment became final on DATE .

On DATE the applicant lodged a request for the protection of legality with ORG .

On DATE the court rejected the request .

On DATE the applicant lodged a constitutional appeal .

The proceedings are pending before ORG .

In GPE , criminal proceedings before district courts ( okrožna sodišča ) are divided into CARDINAL stages – preliminary proceedings ( predkazenski or predhodni postopek ) , conducted by the police and the public prosecutor ; a criminal investigation ( preiskava ) , conducted by the investigating judge of a ORG ; and the trial ( glavna obravnava ) , held before a mixed chamber ( senat ) of professional and lay judges .

A trial is preceded by a formal indictment , which normally follows a criminal investigation ( preiskava ) . Prior to that , however , are the preliminary proceedings in which the police prepare a criminal complaint ( ovadba ) and the public prosecutor then lodges a request for a criminal investigation ( zahteva za preiskavo ) .

Section CARDINAL of LAW ( Zakon o kazenskem postopku , Official Gazette no . CARDINAL , “ the CPA ” ) reads , as far as relevant :

“ ( CARDINAL ) If there are reasons to suspect that a criminal offence liable to mandatory prosecution has been committed , the police shall take the necessary steps to pursue the perpetrator , ensuring that the perpetrator or his accomplice do not go into hiding or abscond , discovering and securing traces of the offence or objects of value as evidence , and collecting all information that may be useful for the successful conduct of criminal proceedings .

( CARDINAL ) In order to fulfil the above duty the police may seek information from citizens , inspect vehicles , passengers and luggage , restrict movement within a specific area for a limited period of time , carry out what is necessary to identify persons and objects ; send out a wanted notice concerning persons and objects ; inspect in the presence of the responsible person any facilities , LOC and documentation of enterprises or other legal entities , and take other necessary measures . The findings of facts and circumstances relevant to the criminal proceedings , as well as the objects found or seized , shall be recorded in writing or an official report shall be prepared in that connection .

( CARDINAL ) Police may summon individuals but must inform them of the reasons . They may forcibly bring an individual who has failed to appear after being summoned , if he has been alerted to that possibility in the summons . In taking measures under this section , police may not examine citizens as defendants , witnesses or experts .

( CARDINAL ) On the basis of the information collected the police shall draw up a criminal complaint in which it shall set out the evidence discovered in the process of gathering information ... . ”

In principle , the request for an investigation is based on the information gathered by the police in the preliminary proceedings ( see paragraph CARDINAL above ) . However , prior to the opening of an investigation , the investigating judge can , if necessary , take individual investigative measures ( section CARDINAL of the CPA ) .

The request for an investigation must include , inter alia , a description of the alleged acts and their legal characterization , the identification of the suspect and the evidence substantiating a reasonable suspicion ( utemeljeni sum ) that the suspect has committed the alleged acts . The public prosecutor can also propose that a suspect be detained on remand . The relevant provisions of CARDINAL of the CPA provide :

“ ( CARDINAL ) The request for investigation shall specify : the person against whom an investigation is requested , the description of the acts constituting a criminal offence , the statutory designation of the criminal offence , the circumstances establishing the reasonable suspicion , and evidence already collected . The public prosecutor shall indicate in the request which particular circumstances should be explored in the investigation and which particular measures should be taken , and may propose that the person against whom investigation is requested be detained .

( CARDINAL ) The public prosecutor shall send to the investigating judge the report and all documents and records of the measures taken . At the same time , he shall send to the investigating judge any items to be adduced as evidence or shall notify him of their whereabouts .

( CARDINAL ) If the public prosecutor withdraws a request for an investigation before the decision on investigation is rendered , the investigating judge shall decide that the request is dismissed and inform the aggrieved party that he or she may take over the prosecution ( sections CARDINAL and DATE ) . ”

There is no provision in the CPA requiring the applicant to be notified at this stage . A copy of the request for an investigation is normally sent to the applicant later , together with a summons to appear before the investigating judge ( section CARDINAL of the CPA ) .

The public prosecutor 's request for an investigation requires a decision by the investigating judge . The investigating judge may comply with the request and open a criminal investigation or , if he does not agree with it , refer it to the interlocutory - proceedings chamber of CARDINAL judges ( zunaj obravnavni senat ) for them to decide . Appeals may be lodged against the decision dismissing or upholding the request ( section CARDINAL of the CPA ) .

After the closure of the criminal investigation the public prosecutor prefers a formal indictment or otherwise drops the charges ( sections CARDINAL and CARDINAL of the CPA ) .

As regards the guarantee of the right to a trial within a reasonable time , the CPA , as far as relevant , provides ( sections CARDINAL , CARDINAL and CARDINAL respectively ) :

“ The court shall use its best endeavours to ensure that the proceedings are conducted without unnecessary delay and that any abuse of the rights of participants in the proceedings is prevented .

( CARDINAL ) If the criminal investigation is not completed within DATE , the investigating judge shall inform the president of the court of the reasons .

( CARDINAL ) The president of the court shall take the necessary measures to complete the investigation .

( CARDINAL ) The presiding judge shall schedule the main hearing within a maximum DATE after an indictment has been referred ... Should he fail to schedule the main hearing within the said period , he shall inform the president of the court of the reasons for not doing so . The president of the court shall take the necessary measures to schedule the main hearing . ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant is a retired military officer who underwent psychotherapeutic and psychoanalytical treatment from DATE onwards . He was discharged in DATE on grounds of his medical condition . The therapy was discontinued in DATE in view of the applicant having fallen in love with the therapist , who initially treated the applicant 's feelings as “ transference of affection ” ( Übertragungsliebe ) and personally sought supervision . In DATE the applicant and the therapist commenced an intimate relationship that ended in DATE .

On DATE the applicant sued the therapist for damages of NORP marks CARDINAL,CARDINAL.CARDINAL ( DEM ) ( euros ORG ) ) . He argued that the therapist had discontinued the therapy in view of the commencing of an intimate relationship and had thereby violated her duties from the contract governing the therapeutic treatment as well as her professional duty to remain sexually uninvolved with a client ; because of the therapeutic malpractice he had suffered from a mental breakdown that had required further therapeutic treatment for which he had incurred the damage complained of .

On DATE ORG ordered a first expert opinion . The expert witness submitted that the therapist had seriously breached her professional duties . The court held that the expert opinion was not satisfactory as it was incoherent , not fully reasoned and did not differentiate between professional , therapeutic and ethical standards .

In response to the opinion of the first expert witness , the defendant therapist submitted a private expert opinion that found no violation of therapeutic and professional standards and denied that the therapist 's actions were causally linked to the damage complained of . The court noted that the private expert opinion had come to different conclusions from the first expert opinion but was not in itself fully satisfactory ; the court therefore ordered another expert opinion on CARDINAL DATE .

The second expert witness criticised the previous expert opinions for their reliance on psychoanalytical tools and denied any wrongdoing on the part of the therapist as she had conscientiously transferred the therapeutic relationship into an intimate one between consenting adults . The court noted that the second expert witness ' opinion was unsatisfactory because the parties had engaged in DATE among other therapeutic techniques – psychoanalysis and the expert witness had displayed an overly critical and biased assessment of psychoanalysis .

On DATE the court ordered a third expert opinion pursuant to LAW ( see “ Relevant domestic law ” below ) . The expert witness delivered his opinion on DATE ; at the applicant 's instigation , the expert witness submitted a clarification of his opinion on DATE . He stated no discernable professional standards for the gentle cancellation of a therapeutic relationship could be verified ; there were no professional standards concerning the period between the discontinuation of a therapeutic and the beginning of an intimate relationship between therapist and patient ; the only possible link between the intimate relationship and the damage complained of was the applicant 's realisation that he had not found what he had been looking for . On DATE the applicant challenged the third expert witness on grounds of bias ; on DATE the court rejected the challenge as ill - founded .

On DATE the court dismissed the applicant 's claim at the end of an oral hearing . It held that the therapist had not violated therapeutic and professional standards and based its decision mainly on the third expert witness 's opinion , which it held to be convincing , methodically sound and precise .

On DATE ORG informed the parties of its intention to dismiss an appeal lodged by the applicant as ill - founded pursuant to LAW see “ relevant domestic law ” below ) on the grounds that the first expert witness ' opinion had been rightly rejected by ORG . ORG noted that the therapist had acted responsibly , had not violated the therapist 's duty to remain sexually uninvolved and that there were no strict professional rules concerning the minimum period between the ending of a therapeutic and the beginning of an intimate relationship between a former therapist and patient . On DATE counsel for the applicant submitted further observations . On DATE ORG dismissed the applicant 's appeal .

On DATE counsel for the applicant lodged a constitutional complaint with ORG arguing that ORG had not taken into account the applicant 's further submissions of DATE and had treated the applicant as a perpetrator rather than a victim of sexual abuse .

On DATE ORG , relying on the relevant provisions of its Rules of Procedure , refused to accept the applicant 's constitutional complaint for examination without giving further reasons ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

Under LAW the court may order a new expert opinion by the same or another expert witness if it considers the expert opinion to be unsatisfactory .

Under LAW , ORG may reject an appeal by unanimous decision if it is convinced that the appeal has no prospect of success , the legal matter is not of fundamental importance and the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by ORG . ORG or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and have to give the appellant the opportunity to submit observations within a set time - limit . The decision under LAW is not subject to an appeal and ORG can not grant leave to appeal on points of law .