Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is currently in FAC .

On DATE the applicant was discovered in possession of a package containing QUANTITY of heroin and was arrested by the GPE carabinieri . Proceedings were instituted against him for drug trafficking . On DATE the applicant appointed a lawyer of his own choosing , PERSON , who represented him throughout the proceedings .

The applicant subsequently requested , through the intermediary of his lawyer , adoption of the summary procedure ( giudizio abbreviato ) provided for in ORG CARDINAL to CARDINAL of LAW ( “ the ORG ” ) . The representative of ORG gave a favourable opinion . The GPE preliminary hearings judge , taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage ( allo stato degli atti ) ordered that the summary procedure be adopted .

At the private hearing held on DATE in the presence of the applicant , the latter , through the intermediary of his lawyer , pleaded not guilty on the ground that the drugs had been intended for his personal use and not for sale .

NORP In a judgment of DATE the GPE preliminary hearings judge sentenced the applicant to CARDINAL years’ imprisonment and a fine of MONEY ( MONEY ) . He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs . At the time of his arrest , the applicant had just purchased a quantity corresponding to CARDINAL average DATE doses .

The applicant appealed against the judgment , reiterating the arguments adduced at first instance . He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the LAW .

On DATE Mr M. was informed that the hearing had been set down for DATE . On DATE Mr M. objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room . ORG dismissed his request , observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings .

In a judgment of DATE ORG upheld the judgment at first instance .

The applicant appealed on points of law . He alleged that the appeal judges had not allowed him to attend his trial and that the summons to appear at the appeal hearing had not been translated into LANGUAGE .

In his final submissions , the public prosecutor requested that the impugned decision be set aside .

In a judgment of DATE ORG dismissed the applicant ’s appeal . It observed that neither the Convention nor the ORG required the steps in the proceedings to be translated into the language of a non - national defendant in GPE . However , the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings . As to the other complaints , ORG observed that the presence of the defendant was not required under the summary procedure , the adoption of which had been requested by the applicant himself of his own free will . Furthermore , the applicant had not made clear his wish to participate in the appeal hearing .

The summary procedure is governed by ORG CARDINAL to CARDINAL of the ORG .

NORP Under the terms of these provisions as they applied at the time when the applicant was arrested , the defendant could request , subject to a favourable opinion from the representative of ORG , that the case be decided at the preliminary hearing . If the judge deemed that the charges could be determined on the basis of the steps performed at the preliminary investigation stage and recorded in the file held by ORG ( fascicolo del pubblico ministero ) , he ordered the summary procedure to be adopted . The summary procedure was subsequently amended by PERSON no . CARDINAL of DATE . Under the new rules , a favourable opinion from the representative of ORG is no longer required , and the judge can not reject the request for the summary procedure to be adopted if the defendant does not request that any evidence be produced ( integrazione probatoria ) .

Where the summary procedure is adopted , the hearing takes place in private and is devoted to hearing the arguments of the parties , which must be based on the documents contained in the file held by ORG . If the judge decides to convict the defendant , the sentence is reduced by onethird ( LAW ) . The judgment is delivered in private .

Under the terms of LAW ORG :

“ The appeal judge shall be empowered to rule ( la congnizione del procedimento ) solely ( limitatamente ) on those aspects of the decision referred to in the grounds of appeal . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants are CARDINAL NORP nationals , whose names and dates of birth are shown in the ORG . ORG ( “ the Government ” ) are represented by PERSON , First Deputy Minister of ORG , and Mr PERSON GPE , Representative of GPE at ORG .

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

The applicants are victims of the GPE nuclear disaster who live in GPE of GPE . Under domestic law they were entitled to social benefits . Because the authorities had failed to pay the benefits in full or in time , the applicants sought relief in courts of GPE . The courts held for the applicants , the judgments became binding , but their full enforcement was delayed . Details of the judgments are shown in the Annex .


Violation of Art. 9;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient

The applicant was born in DATE and lives in Xanthi .

In DATE CARDINAL of the CARDINAL NORP religious leaders of LOC , ORG , died . On DATE the local Prefect ( Νομάρχης ) appointed the applicant to act as a deputy ( τοποτηρητής ) .

In DATE the CARDINAL independent NORP Members of ORG and PERSON requested the ORG to organise elections for the post of ORG . Having received no reply , the CARDINAL independent MPs decided to organise themselves elections at the FAC on DATE after the prayers . On that date the applicant was chosen to be ORG by those attending DATE prayers at the FAC .

On DATE the President of the Republic , on the proposal of ORG and under LAW , adopted LAW ( πράξη νομοθετικού περιεχομένου ) by which the manner of election of the Muftis was changed . PERSON no . DATE retroactively validated LAW of DATE .

On DATE , in accordance with the new regulations , ORG appointed another ORG . The applicant refused to step down .

CARDINAL sets of criminal proceedings were instituted against the applicant under Articles CARDINAL and CARDINAL of LAW for having usurped the functions of a minister of a “ known religion ” . ORG , considering that there might be disturbances in Xanthi , decided , under Articles CARDINAL and CARDINAL of LAW , that the proceedings should take place in other cities . The applicant was legally represented throughout the proceedings by lawyers of his own choice . The courts heard a number of prosecution and defence witnesses .

On DATE criminal proceedings were instituted against the applicant on the ground that on DATE and DATE he had issued messages in the capacity of the mufti of Xanthi .

On DATE the single - member first instance criminal court ( PERSON ) of GPE found the applicant guilty and sentenced him to QUANTITY months’ imprisonment ( decision no . CARDINAL ) . The applicant appealed ( see below paragraph CARDINAL ) .

On an unspecified date the applicant was charged for having issued messages in the capacity of the mufti of Xanthi on DATE , DATE and DATE .

On DATE the single - member first instance criminal court of GPE found the applicant guilty and sentenced him to CARDINAL months’ imprisonment ( decision no . CARDINAL ) . The applicant appealed .

On DATE the CARDINAL - member first instance criminal court ( PERSON ) of GPE upheld the applicant ’s conviction in the first and second sets of proceedings . It imposed a global sentence of CARDINAL months’ imprisonment and converted it into a fine ( decision no . CARDINAL ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .

On DATE a third set of proceedings was instituted against the applicant for the same offence on the ground that on DATE , CARDINAL DATE , CARDINAL DATE , DATE and CARDINAL DATE he had issued messages in the capacity of the mufti of Xanthi .

On DATE the single - member first instance criminal court of ORG found the applicant guilty and sentenced him to CARDINAL months’ imprisonment ( decision no . CARDINAL/CARDINAL ) . The applicant appealed .

On DATE the CARDINAL - member first instance criminal court of ORG upheld the applicant ’s conviction and imposed a sentence of CARDINAL months’ imprisonment . The court converted this sentence into a fine ( decision no . PERSON ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of Articles CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .

On DATE a fourth set of proceedings was instituted against the applicant on the ground that on DATE he had issued a message in the capacity of the mufti of Xanthi .

On DATE the single - member first instance criminal court of ORG found the applicant guilty and imposed on him an CARDINAL months’ prison sentence ( decision no . DATE ) . The applicant appealed .

On DATE the CARDINAL - member first instance criminal court of ORG upheld the applicant ’s conviction but reduced the prison sentence to DATE and converted it into a fine ( decision no . CARDINAL ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .

On an unspecified date a fifth set of proceedings was instituted against the applicant on the ground that on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE he had issued messages in the capacity of the mufti of Xanthi .

On DATE the single - member first instance criminal court of GPE found him guilty and sentenced him to CARDINAL months’ imprisonment ( decision no . CARDINAL ) . The applicant appealed .

On DATE the CARDINAL - member first instance criminal court of GPE upheld the applicant ’s conviction but reduced the prison sentence to DATE and converted it into a fine ( decision no . DATE ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .

On DATE ORG rejected the applicant ’s appeals concerning the first , second , third and fourth sets of proceedings . It considered that the offence in LAW was committed “ when somebody appeared as a minister of a known religion and when he discharged the functions of the minister ’s office including any of the administrative functions pertaining thereto ” . The court considered that the applicant had committed this offence because he behaved and appeared as ORG . It further considered that the applicant ’s conviction was not contrary to Articles CARDINAL , CARDINAL and CARDINAL of the LAW , because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a ORG . As regards Article CARDINAL of the Convention , ORG considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights ( judgments FAC . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) .

On DATE ORG rejected the applicant ’s appeal concerning the fifth set of proceedings for the reasons set out in its judgments FAC . CARDINAL/CARDINAL and CARDINAL/CARDINAL ( judgment no . CARDINAL/CARDINAL ) .

CARDINAL more sets of proceedings were instituted against the applicant on the ground that on various dates he had issued messages in the capacity of the mufti of Xanthi . The applicant was found guilty by the single - member first instance criminal court of PERSON ( decisions nos . CARDINAL , DATE and DATE ) .

On DATE the CARDINAL - member first instance criminal court of PERSON acquitted the applicant in the light of the ORG ’s judgment in the Serif v. GPE case ( no . MONEY , ORG CARDINAL–IX ) . The court held that , by addressing religious messages to a group of people who voluntarily followed him as their religious leader , the applicant had not usurped the functions of a minister of a “ known religion ” , but had simply exercised his right to manifest his religion , a right guaranteed by LAW ( decisions ORG . DATE , DATE and PERSON ) .

Article CARDINAL of LAW GPE between GPE and others , on the one hand , and GPE , on the other , which was concluded on CARDINAL DATE and ratified by ORG by a law published in ORG on DATE , provides as follows :

( original )

« GPE vie , les biens , l’honneur , la religion et les coutumes de ceux des habitants des localités cédées à la PERSON qui resteront sous l’administration hellénique seront scrupuleusement respectés .

Ils jouiront entièrement des mêmes droits civils et politiques que les sujets hellènes d’origine . GPE liberté , la pratique extérieure du culte seront assurées aux PERSON ( ... )

Aucune atteinte ne pourra être portée à l’autonomie et à l’organisation hiérarchique des communautés musulmanes existantes ou qui pourraient se former , ni à l’administration des fonds et immeubles qui leur appartiennent ( ... )

PERSON , chacun dans sa circonscription , seront élus par les électeurs musulmans ( ... )

PERSON , outre leur compétence sur les affaires purement religieuses et leur surveillance sur l’administration des biens vacoufs , exerceront leur juridiction entre musulmans en matière de mariage , divorce , pensions alimentaires ( néfaca ) , tutelle , curatelle , émancipation de mineurs , testaments islamiques et successions au poste de mutévelli ( NORP ) .

Les jugements rendus par les Muftis seront mis à exécution par les autorités helléniques compétentes .

Quant aux successions , les parties NORP intéressées pourront , après accord préalable , avoir recours au mufti , en qualité d’arbitre . ORG arbitral ainsi rendu toutes les voies de recours devant les tribunaux du pays seront admises , à moins d’une clause contraire expressément stipulée . ORG

On DATE GPE concluded CARDINAL treaties with the principal PERSON in Sèvres . By the first treaty the ORG powers transferred to GPE all the rights and titles which they had acquired over LOC by virtue of LAW they had signed with GPE at FAC on DATE . The second treaty concerned the protection of minorities in GPE . Article CARDINAL § CARDINAL of the second treaty provides as follows :

“ GPE agrees to take all necessary measures in relation to the NORP to enable questions of family law and personal status to be regulated in accordance with NORP usage . ”

On DATE GPE and GPE signed a treaty for the exchange of populations . On DATE GPE and others , on the one hand , and GPE , on the other , signed LAW . Articles CARDINAL and CARDINAL of this treaty give the NORP minority of GPE the same protection as LAW . On DATE GPE signed a LAW with the principal ORG bringing into force the CARDINAL treaties concluded in Sèvres on DATE . ORG ratified the CARDINAL above - mentioned treaties by a law published in ORG on DATE .

In its decision no . CARDINAL ORG considered that it was obliged to apply NORP law in certain disputes between NORP by virtue of LAW DATE , LAW and LAW of DATE .

Law no . DATE provided that the Muftis , in addition to their religious functions , would have competence to adjudicate on family and inheritance disputes between NORP in so far as these disputes are governed by NORP law . It also provided that the Muftis were directly elected by the NORP who had the right to vote in the national elections and who resided in the LOC in which the Muftis would serve . The elections were to be organised by the ORG and theological school graduates had the right to be candidates . Article CARDINAL § CARDINAL of the law provided for the promulgation of a royal decree to make detailed arrangements for the elections of the Muftis . Such a decree was never promulgated .

Under the legislative act of CARDINAL DATE the functions and qualifications of the Muftis remain largely unchanged . However , provision is made for the appointment of the Muftis by presidential decree following a proposal by ORG who , in his turn , must consult a committee composed of the local ORG and a number of NORP dignitaries chosen by the ORG . The act expressly abrogates PERSON no . CARDINAL . In the act it is envisaged that it should be ratified by law in accordance with Article CARDINAL § CARDINAL of the LAW .

Law no . DATE retroactively validated the legislative act of DATE .

Article QUANTITY provides as follows :

“ In exceptional circumstances , when an extremely urgent and unforeseeable need arises , the President of the Republic may , on the proposal of ORG , adopt legislative acts . These acts must be submitted to ORG for approval ... within DATE ... ”

Article CARDINAL of the Criminal Code provides as follows :

“ CARDINAL . A person who intentionally usurps the functions of a ORG or municipal official is punished with imprisonment DATE or a fine .

This provision also applies when a person usurps the functions of a lawyer or a minister of ORG or another known religion . ”

ORG has considered that this provision applies in the case of a former priest of ORG who continues to wear the priest robes ( decision no . MONEY ) . The priest in question was defrocked after he joined ORG , a religious movement formed by NORP priests who wanted the ORG to maintain the PERSON calendar . In decision no . CARDINAL ORG considered that the offence in LAW is also committed by a person who purports to discharge the administrative functions of a priest . In decisions nos . CARDINAL/CARDINAL and DATE ORG applied LAW to cases of persons who had purported to exercise the religious functions of an NORP priest by conducting services , christening children etc .

“ A person who publicly wears the uniform or the insignia of a ORG or municipal official or of a religious minister of those referred to in LAW without having the right to do so ... is punished with imprisonment DATE or a fine . ”

Ministers of ORG and other “ known ” religions enjoy a number of privileges under domestic law . Inter alia , the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service .


The applicant , Mr PERSON , is a GPE national , born in DATE , and he is currently in prison in GPE . He is represented before the ORG by PERSON and PERSON , a firm of solicitors practising in GPE .

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

In DATE the applicant was convicted of inflicting grievous bodily harm .

On DATE the applicant ’s cousin shot a man at point blank range in the thigh with a sawn - off shotgun in the living room of the applicant ’s home . The applicant was arrested on DATE . He denied any knowledge of the incident claiming that that night he had been to a number of pubs , gone home , had tea and gone to bed .

On DATE he was interviewed by the police and he declined to answer questions . Later , on DATE , he requested an interview with the police . This time he told the police that he knew who was responsible for the shooting but that he had nothing to do with it . He said the shooting had taken place outside his house and that he had not been present . He was charged at the conclusion of that interview with wounding with intent to cause grievous bodily harm and with possession of a firearm . He then requested a further interview when he admitted that he had been at a pub with the victim and his cousin . The applicant claimed that when he arrived home the shooting had already happened and this time he named his cousin as responsible . When asked how he knew if he was not present at the time , he said that he had received a phone call from his cousin admitting responsibility .

On DATE , the applicant ’s cousin was subsequently convicted of wounding with intent to cause grievous bodily harm and was sentenced on DATE to CARDINAL years’ imprisonment .

The applicant , who had fallen ill during the trial , was tried later in DATE on CARDINAL count of wounding with intent to cause grievous bodily harm and CARDINAL count of possession of firearm with intent to endanger life . He did not give evidence at his trial or call any witnesses on his behalf . The victim ’s evidence was that the applicant had entered the room in his house with a sawn - off shotgun , had pointed the gun at the victim ’s head and legs and then left the room . He came back within TIME with his cousin , his cousin had the gun , the cousin pointed the gun at the victim ’s head and then his legs and then shot the victim in the thigh . It was the prosecution ’s case that the applicant had been behind the shooting and was responsible for providing the weapon . There was unchallenged evidence that the victim ’s blood and flesh were found on the chair where he was shot in the applicant ’s house and wadding from a shotgun cartridge and more of the victim ’s blood were found outside the applicant ’s house .

At the close of the prosecution case it was submitted on behalf of the defence that there was no case to answer . The trial judge rejected the application ruling that there was no inherent weakness sufficient to enable him to withdraw the case from the jury . The applicant , who began to feel unwell during these proceedings , did not leave the court until after the judge ’s ruling . Since the applicant was not intending to give evidence or call any evidence in his defence , at that stage all that remained were the closing speeches of counsel to the jury . The trial judge had already enquired as to whether the applicant had been warned of the possible consequences of not giving evidence before the applicant was taken ill .

The trial judge adjourned the trial to seek a report on the applicant ’s health . He was informed that the applicant was suffering from angina and was to be discharged from hospital TIME . The trial judge directed the trial to resume DATE . The applicant attended but his counsel requested permission for the closing speeches to be given in his absence . The prosecution and the trial judge agreed that the applicant could go home .

On DATE the trial judge gave a detailed summing - up to the jury . In outlining to the jury the functions of the judge and jury , he stated :

“ ... You must ... be careful to decide the case only on the evidence which has been placed before you . You are entitled to draw inferences ; that is to come to common sense conclusions based upon the evidence which you accept , but you must not speculate about what evidence there might have been because that amounts to no more than guessing , and you must not do that . ”

As to the burden and standard of proof , he pointed out that :

“ As in all cases under the NORP criminal law , the prosecution must prove that the defendant is guilty . [ The applicant ] does not have to prove his innocence . Indeed , he has chosen not to give evidence . That is his right .

In a criminal trial , the burden of proving the defendant ’s guilt lies always upon the prosecution , and in order to succeed in proving the defendant ’s guilt , the prosecution must make you sure of it . Nothing less than that will do , and so if after you have considered all the evidence you are sure than PERSON is guilty , then you must return a verdict of guilty . If you are not sure , your verdict must be not guilty . ”

He then went on to deal with the separate consideration of the CARDINAL counts against the applicant :

“ [ The applicant ] faces CARDINAL counts on this indictment . You must consider the case against and for the defendant on each count separately . They are merely there as a matter of convenience on the same sheet , but you may feel that in this instance they stand or fall together ” .

and he then dealt with the earlier conviction of the applicant ’s cousin :

“ ... you have heard that [ the applicant ’s cousin ] who is named in count CARDINAL of this indictment with [ the applicant ] , has been convicted . Well , the only reason you have been given this information is because it is evidence which goes to prove that this offence was committed at least by [ the applicant ’s cousin ] ... [ The applicant ’s cousin ] and other evidence tells you that it occurred in a room in [ the applicant ’s ] home , but that is the only purpose of the evidence . It does not prove anything else , and apart from its relevance to that matter , it has no bearing and must not have any bearing on your decision as to whether the prosecution has made you sure of this defendant ’s guilt ” .

The trial judge then dealt with the question of the relevance of the earlier lies told by the applicant to the police :

“ You know , you may feel , that [ the applicant ] has lied to the police . Certainly , virtually the whole of the first interview were lies and it may be that you will conclude that there are lies in [ interviews ] CARDINAL and CARDINAL as well . Well , you are entitled to consider whether this supports the case against him . You should consider : “ Why did he lie ? ” . Now , the mere fact that a defendant tells a lie is not in itself evidence of guilt . A defendant may lie for many reasons . They may possibly be innocent ones ... in the sense that they do not denote guilt of this offence . For example , it may be ... to bolster a true defence mentioned to you by [ the applicant ’s counsel ] a short while ago . It might be to protect somebody else or to conceal some conduct , which is not good conduct , but falls short [ of ] the commission of the offence , or it might be out of panic or confusion . If you think there is , or may be , an innocent explanation for the lies , then you should take no notice of them . It is only if you are sure that he did not lie for an innocent reason , then the lies can be regarded by you as evidence supporting the prosecution case and going towards the proof of guilt . ”

He then directed the jury as regards the inferences that might be drawn from the applicant ’s failure to give evidence :

“ Now , [ the applicant ] has not given evidence . That is his right . He is entitled to remain silent and require the prosecution to prove its case . Indeed , it would be strange if he were not because at the start of every interview he is given a caution : “ You do not have to say anything ” , and a few more words are added .

So , ladies and gentlemen , you must not assume he is guilty just because he has not given evidence . Because failure to give evidence can not on its own prove guilt . But , of course , he was told , and you have heard me mention it to [ the applicant ’s counsel ] DATE , that depending on the circumstances , you may take into account the failure to give evidence when deciding on your verdict .

[ The applicant ] did answer questions in interview and he now seeks to rely on those answers which are , of course , evidence in the case , but they are merely evidence of what he said then when being questioned by the police . It is a matter for you to decide what weight you should give to them , but you are entitled to bear in mind that those answers were not given here before you . They were not given on oath , and the prosecution has had no opportunity to test them before you in cross - examination . ”

On DATE the jury found the applicant guilty of wounding with intent to cause grievous bodily harm and of possessing a firearm with intent to endanger life . In DATE he was sentenced to life imprisonment pursuant to section CARDINAL of ORG and a tariff of DATE and DATE was fixed .

In his application for leave to appeal against conviction to a single judge of ORG , the applicant argued that the trial judge wrongly rejected the defence submission that there was no case to answer and wrongly failed to withdraw the case from the jury . On DATE the single judge rejected the applicant ’s appeal , finding as follows :

“ The trial judge pointed out with sufficient care the contradictions and weaknesses in the evidence against you . There was evidence that you told or indicated to your partner ... to leave the room ; that you then entered the room where the victim was with a sawn - off shotgun and pointed it at his head , chest and legs ; that you then left the room and returned with PERSON who now held the gun which was loaded and you were present when he fired at the victim . The Jury were entitled to infer either that when you entered the room with the gun it was loaded or that it was subsequently loaded in your presence . There would have been no need to load it if the only intention was to frighten the victim . Thereafter you were seen to dispose of something in the garden and both you and [ your cousin ] tidied up the room where the shooting occurred . You then either lied to the ORG or said that you had no comment to make to their questions .

In those circumstances , there was evidence for the Jury to consider and evidence from which they could infer that you had the necessary intent to be a joint participant in the offence . ”

In DATE the applicant submitted amended grounds of appeal with his renewed leave to appeal application to the full ORG , adding numerous complaints about the trial judge ’s summing up .

The full ORG rejected each ground of appeal against conviction on DATE . It “ emphatically ” agreed with the single judge ’s views as regards the first ground of appeal ( that there was no case to answer ) and rejected each allegation as regards the trial judge ’s summing up .

As to his claim that the trial judge invited the jury to consider the applicant ’s failure to give evidence against him in terms that were not sufficiently clear , ORG found that the trial judge could have said more at the relevant juncture but it wondered whether any further degree of clarity would have helped the applicant in the circumstances . It did not accept the applicant ’s complaint about the trial judge ’s reference to his not giving evidence as a “ failure ” to give evidence : it found that the use of the word “ failure ” in that context was neutral , proper , fair without innuendo or pejorative force .

Finally , the applicant ’s claim that the trial judge had invited the jury to consider drawing an adverse inference against him for not giving evidence at his trial when in fact he was medically unfit to attend his trial was also rejected , ORG noting that the defence had already declared before the applicant absented himself that it would not be calling any evidence and that the trial judge had satisfied himself , by asking the applicant ’s counsel , that the applicant had been warned of the possible consequences of not giving evidence .

On DATE , on the applicant ’s appeal against sentence , ORG quashed the sentence of life imprisonment and substituted a term of DATE imprisonment .

Section CARDINAL of ORG LAW DATE , which concerns the exercise of the defendant ’s right to silence at trial , provides that :

“ ( CARDINAL ) At the trial of any person for an offence , sub - sections ( CARDINAL ) and ( CARDINAL ) below apply unless–

( a ) the accused ’s guilt is not in issue ; or

( b ) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ;

but subsection ( CARDINAL ) below does not apply if , at the conclusion of the evidence for the prosecution , his legal representative informs the court that the accused will give evidence or , where he is unrepresented , the court ascertains from him that he will give evidence .

( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

Section CARDINAL ( CARDINAL ) adds that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

Section CARDINAL(CARDINAL ) of the DATE Act is the subject of Practice Direction : ORG ( Defendant ’s Evidence ) ( [ DATE ] CARDINAL Cr . App . NORP CARDINAL ( ORG ) Guidance ) which sets out how the trial judge must ensure in open court that a defendant who decides not to give evidence at trial has been warned ( by his counsel ) that the jury may draw adverse inferences from this .

In NORP v. PERSON ( [ DATE ] CARDINAL Cr . App . PERSON ) , Lord PERSON considered the direction that should be given by the trial judge to the jury and emphasised CARDINAL essential points .

“ CARDINAL . The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .

An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .

Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant ’s silence .

NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

The ORG specimen direction for the use of trial judges concerning section DATE at the time of the applicant ’s trial stated :

“ The defendant has not given evidence . That is his right . He is entitled to remain silent and require the prosecution to prove its case . You must not assume he is guilty just because he had not given evidence because failure to give evidence can not , on its own , prove guilt . However , as he has been told , depending on the circumstances , you may take into account his failure to give evidence when deciding on your verdict .

NORP In the first place when considering the evidence as it now is , you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution .

NORP In the second place if you think in all the circumstances it is right to do so , you are entitled , when deciding whether the defendant is guilty of the offence(s ) charged , to draw such inferences from his failure to give evidence as you think proper . In simple terms , this means that you may hold this failure against him .

[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against the defendant that he has not given evidence . That evidence is ( here set out the evidence ) . If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence , do not hold his silence against him . If , on the other hand , it does not in your judgment provide an adequate explanation for his absence from the witness box , then you may , if you think it right , hold his failure to give evidence against him . ]

What inference can you properly draw from the defendant ’s decision not to give evidence before you ? If you conclude that there is a case for him to meet , you may think that if he had an answer to it he would have gone into the witness box to tell you what it is .

If , in your judgment , the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give , or none that would have stood up to cross - examination , then it would be open to you to hold against him his failure to give evidence , that is , taken it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so . ”


The applicant , Mr LOC , is a NORP national who was born in DATE and lives in FAC . He was represented before the Court by Mr PERSON del Rosal , a lawyer practising in GPE .

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

On DATE the applicant was arrested in GPE and remanded in custody in execution of a NORP arrest warrant issued by the NORP judicial authorities following a judgment by the PERSON tribunal de grande instance delivered in his absence on DATE . In that judgment , the court had sentenced the applicant to CARDINAL years’ imprisonment for a drug - related offence .

On DATE central examining magistrate no . CARDINAL referred the case to the Audiencia Nacional for a decision on the merits . However , he considered that the statutory time - limit for surrendering the applicant to the NORP authorities had not been complied with and that the application to have the applicant surrendered to the NORP authorities could therefore be rejected , the applicant being opposed to it .

On DATE the applicant submitted an application for bail , arguing that there was nothing to indicate that he had committed the offence in respect of which the NORP courts had delivered their judgment in DATE . ORG dismissed his application by a decision of DATE .

However , on DATE the same court ordered the applicant ’s release . At the same time , it requested the NORP authorities to provide the fingerprints of the person who had been detained in GPE , and asked ORG for the fingerprints of the person who was the subject of the extradition request .

In a decision of DATE , the Audiencia Nacional agreed to surrender the applicant to the NORP authorities . It noted that the procedure complied with the conditions laid down in PERSON CARDINAL/CARDINAL of DATE , which had been enacted in GPE pursuant to the obligations on the ORG under the framework decision on the NORP arrest warrant and the surrender procedures between member GPE adopted by ORG on DATE ( ORG CARDINAL/CARDINAL of DATE ) . The decision made the surrender of the applicant to the NORP authorities conditional on any sentence that might be imposed upon him being executed in GPE , as the judgment convicting him had been delivered in his absence and was therefore subject to appeal .

On DATE the applicant submitted an application for interpretation ( aclaración ) of that decision . The application concerned , firstly , whether he had been identified and by what means and , secondly , the application to his case of LAW DATE on passive extradition and not of the framework decision of ORG of DATE , given that the facts at the origin of the criminal proceedings in GPE had taken place between DATE and DATE . On DATE the Audiencia Nacional dismissed the application , considering that the contested decision did not fall into the category of cases subject to an application for interpretation under section CARDINAL of LAW . Owing to an error , the applicant was not informed that his application had been dismissed .

On DATE , the Audiencia Nacional ordered that the applicant be detained for surrender to the NORP authorities . An appeal ( recurso de súplica ) lodged against that decision was dismissed on DATE , as the measure had been adopted for the purposes of surrendering the applicant to the NORP authorities but the applicant could still serve the final sentence in GPE .

Relying on DATE ( right to a fair trial ) in conjunction with ORG ( right to freedom ) and CARDINAL ( principle of legality ) of the LAW , the applicant lodged an amparo appeal ( action for infringement of fundamental rights ) with ORG against the decisions of DATE and DATE and DATE . ORG dismissed the appeal in a judgment delivered on DATE and served on DATE .

It dismissed the complaints relating to the decision of DATE as they were out of time , and considered that the applicant had not been adversely affected by the failure to notify him of the rejection of his application for interpretation of the decision delivered on DATE because that application had clearly been futile .

With regard to the decisions of DATE and CARDINAL DATE relating to the detention of the applicant for the purposes of surrendering him to the NORP authorities , ORG noted that the amparo appeal did not contain any complaint about those decisions ; the applicant had confined himself to arguing , firstly , that the Audiencia Nacional should have applied the extradition law , which he considered to be of greater relevance to his case , and not PERSON CARDINAL/CARDINAL on the NORP arrest warrant and , secondly , that the NORP criminal proceedings resulting in a NORP arrest warrant being issued against him had related to a statute - barred offence . In that connection , ORG observed that it was not its task to reconstruct the reasons given by applicants for lodging an appeal .

The applicant then requested that the decision of DATE be served on him , which was done on DATE . On DATE he lodged a further amparo appeal with ORG . In a decision of DATE , the court dismissed the appeal , holding that an application for interpretation which artificially extended the proceedings was inadmissible .

“ CARDINAL . The courts can not amend decisions once they have been signed ; however they can interpret obscure concepts and correct clerical errors ... ”

“ ... The purpose of this PERSON is to fulfil the obligations which the framework decision creates for the member GPE , and which consist of replacing extradition procedures with a new procedure for surrender [ to the authorities of the applicant ORG ] of persons who are suspected of having committed an offence or who try to escape justice after being convicted by a final decision . ...

The application of the principle of mutual recognition requires that , once the competent authority has received the NORP warrant with a view to its execution , this takes place practically automatically , without the judicial authority that executes the warrant having to examine the application again to verify its conformity with domestic law . Therefore , the reasons enabling the judicial authority to refuse execution are laid down by law , and the nature [ of the warrant ] allows that authority to make an objective assessment . Thus the usual reasons for refusal in extradition proceedings are eliminated , such as those relating to the non - surrender of nationals or to the fact that certain offences are considered to be political offences .

The extremely innovative nature of this procedure is even clearer if we consider that it applies to the long list of categories of offences set out in the framework decision , for which the existence of double criminality can no longer be verified . Accordingly , when the judicial authority receives a NORP arrest warrant for one of the types of offence listed , and provided that the corresponding sentence exceeds a given threshold , it must proceed with execution , whether or not its criminal legislation provides for such an offence . ... ”


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE . His present place of residence is unknown .

On DATE and CARDINAL DATE PERSON and PERSON were robbed in their flats . The first robbery took place in the building where the applicant ’s acquaintance PERSON lived , while the second victim was her distant relative .

On DATE the police questioned PERSON , who was suspected by one of the victims . She stated that both robberies had been committed by the applicant and his friends .

On DATE PERSON was hospitalised with a head injury and concussion . On DATE she complained to ORG that she had been coerced by the police into testifying against the applicant . After PERSON went into hiding from the authorities . Her complaint was later examined as part of the applicant ’s trial ( see paragraph CARDINAL below ) .

Late in TIME of CARDINAL DATE or during TIME of CARDINAL DATE the applicant was apprehended by the police on suspicion of the robberies of PERSON and PERSON His arrest was documented on DATE .

On DATE the ORG of Kyiv ( “ the Solomyanskyy Court ” ) severed the charge concerning the robbery of Ms Z. and remitted the case in that part for additional investigation . Its outcome is unknown .

While it is not known when the applicant began to be legally represented , it transpires from the aforementioned ruling of DATE , as well as from the subsequent judicial decisions , that from that point onwards CARDINAL or sometimes CARDINAL lawyers represented him in the course of the trial .

Although the applicant consistently denied guilt , both during the pre - trial investigations and the trial , on DATE ORG found him guilty of the violent robbery of PERSON and sentenced him to DATE and CARDINAL months’ imprisonment with confiscation of all his personal property . The court relied on the statements of the victim , who recognised the applicant as CARDINAL of the perpetrators , as well as the statements of a witness who had seen him close to the crime scene around the time of the robbery . The court further relied on the statements given by PERSON during the pre - trial investigation . It also heard statements from CARDINAL defence witnesses , according to which the applicant had spent DATE with them on DATE , but did not trust the statements , deeming them too general and contradictory .

On DATE ORG ( “ the ORG ” ) quashed the judgment and remitted the case for additional investigation , having pointed out a number of procedural shortcomings .

On CARDINAL DATE ORG delivered a new judgment , the operative part of which was identical to the previous one . The court additionally heard a number of defence witnesses who stated that they had either spent DATE on DATE in the applicant ’s company or had seen him at various times on that date . The court decided , however , that those statements were either untruthful , because the witnesses were the applicant ’s friends and wanted to help him avoid criminal liability , or unrelated to the precise time when the robbery had been committed . PERSON was questioned during the trial and retracted her earlier statements incriminating the applicant as given under duress . However , the court chose to rely on those earlier statements as more plausible and concordant with the other facts . It noted , in particular , that she had not requested a medical examination until DATE after her questioning by the police and that there was no evidence that the injuries discovered had been inflicted on her in police custody . While PERSON contended that she had been hiding in fear that the police might seek revenge , the court considered it more probable that she had in fact been afraid that the applicant ’s accomplices who had not been detained might seek revenge .

On DATE and DATE ORG and ORG respectively upheld the aforementioned judgment .

On DATE the applicant was released on parole .

According to the applicant , the Chief and Deputy Chief of ORG of LOC ( начальник та заступник начальника відділу кримінального розшуку Солом’янського PERSON МВС PERSON ) , officers NORP and PERSON , tortured him in the police station at FAC during TIME CARDINAL DATE . They allegedly sought , but failed to obtain , a confession from him to several counts of robbery .

As submitted by the applicant , T. and PERSON punched and kicked him , forced him to stand for a long time with his legs wide apart , attempted to insert a truncheon into his anus , and put a plastic bag over his head , stopping him from breathing . In TIME of CARDINAL DATE they allegedly took him to the police station garage , where they forced him to undress , handcuffed him to a radiator and poured cold water on him from a car - wash hose until he lost consciousness . After the applicant regained consciousness , he found himself inside the police station and was given a mug of hot water to drink and some drops .

On DATE the applicant wrote an “ explanatory note ” , stating that he had accidentally fallen in the street the night before and had received some injuries as a result . He noted that he had no complaints against the police .

In TIME DATE the applicant was taken to another police station in FAC , LOC , TUM-CARDINAL ( PERSON управління міліції DATE , ORG ) .

On DATE the applicant ’s mother complained to the ORG that he had been ill - treated in police custody .

On DATE representatives of the ORG visited the applicant in ORG and took photographs of his injuries . The applicant provided the ORG with CARDINAL colour photographs , which , according to him , are those taken by the ORG ’s representatives . From these photographs , the following injuries can be seen on his body : a large bruise on the inner part of his left thigh , a considerable number of bruises on the upper parts of both buttocks , several sores and bruises on the front of both ankles , and sores on the bridge of his nose . The date printed on the photographs is DATE .

On DATE the applicant gave an account of the CARDINAL DATE events to the ORG ’s representatives in writing . He submitted that on DATE he had been forced to write that he had no complaints against the police .

On DATE the ORG wrote to ORG that the applicant ’s situation called for investigation .

On DATE a doctor examined the applicant and discovered CARDINAL bruises on his face , arms , buttocks and legs ( with the largest one measuring QUANTITY ) , as well as sores on his wrists and feet . He concluded that the injuries were not serious , and that they had been inflicted by blunt objects , possibly on CARDINAL or DATE .

On DATE an investigator of ORG and ORG ( начальник PERSON по особовому складу ORG ) questioned the applicant about his alleged ill - treatment .

On DATE another investigator of ORG ordered another forensic medical examination aimed at answering the following questions : whether the applicant had any injuries on his body and , if so , how they had been inflicted ; whether those injuries could have been inflicted on CARDINAL or DATE ; and how serious they were .

On DATE ORG ( “ the SDPO ” ) instituted a criminal investigation , without naming any specific individuals , into the allegation that LOC police officers had exceeded their powers by engaging in violent and degrading treatment of the applicant . The investigation was entrusted to SDPO investigator PERSON

On DATE a new forensic medical report confirmed the results of the applicant ’s medical examination of CARDINAL DATE .

On DATE the investigator ordered another medical examination to clarify : whether the applicant could have inflicted the injuries on himself ; whether he could have sustained those injuries by falling ; what his body position had been during the infliction of the injuries ; and whether he could have sustained them in self - defence .

On DATE an expert report answered those questions as follows : the injuries were to parts of the applicant ’s body on which self - infliction would be possible ; the possibility that they had been the result of a fall was excluded ; and the remaining CARDINAL questions could not be answered .

In the meantime , on DATE , the applicant was assigned victim status .

On DATE the investigator questioned the forensic medical expert , who confirmed that the applicant could have sustained his injuries at the time and under the circumstances described by him .

On DATE the SDPO opened a criminal case against police officers T. and PERSON on suspicion of abuse of power associated with violence and degrading treatment ( LAW ) , given that the applicant had recognised them as those who had allegedly tortured him .

On DATE those officers were suspended from duty .

On DATE they were indicted , and the case was sent to ORG of Kyiv ( “ the Golosiyivskyy Court ” ) .

On DATE ORG directed the SDPO to find out with whom the applicant had shared cells from CARDINAL to CARDINAL DATE and to question these persons .

On DATE the court referred the case back to the SDPO for additional investigation , which was to clarify the origin of the applicant ’s injuries given that , on the one hand , they were to parts of his body on which self - infliction would be possible and , on the other hand , his cell - mates at the time had not been identified or questioned .

On DATE the forensic medical expert , repeatedly questioned by the investigator , confirmed again her earlier findings that the applicant ’s injuries could have been inflicted as he had described .

On DATE formal charges were brought against T. and Z. under LAW .

On DATE the SDPO invited the NORP Chief of Police to consider suspending ORG , who had resumed his work as a police officer at some point in the meantime , from his duties .

On DATE the ORG approved a bill of indictment against T. and PERSON and sent the case to ORG for examination .

On DATE the trial began .

On DATE the applicant lodged a civil claim seeking compensation for non - pecuniary damage in the amount of CARDINAL NORP hryvnias ( ORG ) .

On DATE ORG found T. and PERSON guilty and sentenced them to CARDINAL years’ imprisonment with a prohibition on working in law - enforcement bodies for DATE . The prison sentence was suspended for DATE on probation . The court also awarded the applicant UAH CARDINAL,CARDINAL in compensation for non - pecuniary damage , to be paid by the defendants .

While both defendants admitted that they had questioned the applicant on TIME CARDINAL - CARDINAL DATE in the police station at FAC , they denied any coercion . However , the court found that there was sufficient evidence to establish their guilt . It took into account statements by several witnesses , who had seen the applicant during DATE before his arrest without any visible injuries . Furthermore , the court relied on the statements of the applicant ’s cell - mates in TUM-CARDINAL at FAC ( where he had been placed in TIME DATE ) , who , on the one hand , had seen numerous bruises and sores on his body , but , on the other , denied any ill - treatment in ORG . Also , the police officers who had escorted the applicant from the police station at FAC to ORG on DATE stated that at that time his face was already bruised and swollen . The court also examined the photographs of the applicant taken by the ORG ’s representatives on DATE and relied on the findings of the medical reports of CARDINAL DATE and CARDINAL DATE . It noted that the applicant ’s description of the police station garage where he had allegedly been ill - treated , was very detailed and subsequently confirmed as accurate , which showed that he had indeed been there .

On DATE ORG quashed the judgment and remitted the case for additional investigation . It concluded that the investigation had been incomplete , mainly because it had failed to establish how exactly the injuries had been inflicted on the applicant .

On DATE investigator PERSON took the case over .

DATE . On DATE he ordered another forensic medical examination with a view to clarifying the number , nature , location , origin and date of each of the applicant ’s injuries .

On CARDINAL DATE an expert report was produced , which confirmed the findings of the earlier reports . It further specified that the abrasions on the applicant ’s wrists could have been caused by handcuffs , while the bruises could have been caused by being punched , kicked or hit with a truncheon .

On DATE the investigator instructed the NORP Chief of Police to find the truncheon with which the applicant could have been beaten . The reply given on DATE stated that it could not be found .

On DATE T. was again suspended from duty ( it is not known when he resumed his duties following the earlier removal ) .

On DATE investigator PERSON decided to withdraw from the case . He considered that the evidential basis was limited to the applicant ’s allegations and not corroborated by any other valid evidence . The investigator grounded his withdrawal by that view and further referred to the principle of the impartiality of the investigation .

On DATE reversed that withdrawal as lacking legal basis .

On DATE the investigator applied to the Deputy General Prosecutor for an extension of the term of the pre - trial investigation to DATE ( the DATE term was to expire on DATE ) given that the accused had not yet studied the case file . In the application the investigator however indicated that T. and PERSON had been protracting the investigation by taking an unjustifiably long time to familiarise themselves with the file and by unmeritorious requests for unnecessary investigation measures .

On DATE the SDPO indicted T. and PERSON again .

On DATE ORG started the examination of the case .

On DATE the applicant brought a new civil claim against T. and Z. within the criminal proceedings .

During the period DATE the court adjourned hearings CARDINAL times for a total of over DATE because of the absence of a number of witnesses .

On DATE ORG again remitted the case for additional investigation on the following grounds : the GPE lawyer had been deprived of his licence at some point during the pre - trial investigation , but had nonetheless continued to represent them . As a result , the court considered that the defence rights of T. and PERSON had been violated .

On DATE ORG quashed that decision and referred the case back to the first - instance court , allowing the public prosecutor ’s appeal .

On DATE ORG issued a special ruling ( окрему ухвалу ) bringing to the attention of the GPE Chief of Police the latter ’s failure to comply with the court orders of DATE , DATE and DATE , that the obligatory attendance of numerous witnesses should be ensured . The orders were that the police were to take appropriate measures and report to the court .

On DATE the applicant wrote the following statement addressed to the President of ORG :

“ I , PERSON , would like to make the following statement . ORG of GPE is currently examining a case against the Chief of ORG [ T. ] and [ Z. ] , in which I am a victim . I retract the statements which I gave in the prosecutor ’s office under pressure from the investigator and in court , namely that it was precisely [ T. and PERSON ] who had beaten and humiliated me . The investigator [ N. ] demanded that I identify [ T. and PERSON ] . In exchange , he promised I would be acquitted and that criminal department officials would be held liable . I remembered [ T. ] because he had been the Chief , and [ PERSON ] because he had been wearing glasses . I could recognise only those CARDINAL , as I could not , and do not now , remember any other officers . I was beaten up at FAC , no . CARDINAL , as they really needed my confession to the robbery . But I did not remember any officers from LANGUAGE [ street ] , and I was advised to incriminate those I remembered . When the investigator [ N. ] came to see me , I was at a loss and did not know what to tell him . But he reassured me and told me that I did not have to worry and that I was to testify against those I remembered . As to what exactly I had to tell and to show , he told that he would help me . At the same time , he promised that if I followed his advice I would be at liberty shortly . It is very difficult for me now to testify before the court , for I have got confused in my statements because it was the investigator [ N. ] who gave them to me . I therefore request you not to disturb me any longer regarding the case of [ T. and PERSON ] and not to bring me to the court ” .

On DATE ORG directed the SDPO investigator to establish the actual places of residence of CARDINAL witnesses whose obligatory presence had been ordered , but who had failed to attend and whom the police had failed to bring to the courtroom . CARDINAL of the witnesses in question were police officers , CARDINAL were detained ( at the time ) in the police stations where the applicant had been placed on DATE , CARDINAL were acquaintances of the applicant , and CARDINAL was the forensic expert .

On DATE ORG also ordered obligatory attendance by the applicant , who had been released from prison in the meantime in DATE and had not been appearing for hearings .

On DATE the police informed the court that the applicant ’s actual place of residence could not be established .

On DATE and CARDINAL DATE the court ordered mandatory attendance by the applicant , to be ensured by the police .

DATE . On DATE ORG referred the case for additional investigation , given the need to question the applicant regarding his statement of DATE .

On DATE ORG quashed the aforementioned decision and remitted the case to the first - instance court for examination . The parties did not provide the ORG with a copy of this ruling .

According to the most recent information submitted by the Government in DATE , the case remains pending before ORG .

Article CARDINAL § CARDINAL , as worded in DATE , provided for DATE imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of DATE as punishment for exceeding one ’s power by engaging in the violent or degrading treatment of a victim .

The relevant extracts from LAW provide as follows :

“ ... On DATE the mother of detained PERSON complained [ to the ORG ] that her son had been tortured in ORG ( у Солом’янському ORG PERSON ) . Staff members of the ORG ’s ORG verified this allegation on site and found numerous traces of beatings on the body of PERSON ( photos were taken ) .

PERSON gave the following explanations to the staff of the ORG ’s ORG : “ I was tortured for TIME in the district police station . Trying to extract a confession to a crime from me , they beat me , forced me to stand with my legs wide apart ( садили на « шпагат » ) , prevented me from breathing by putting a plastic bag over my head , hanged me naked from handcuffs and poured cold water on me for TIME , threatening to make a General PERSON out of me . To conceal the torture , they forced me to write a statement that I had injured myself by an accidental fall on my way home the previous evening and that I had no complaints against the police . ”

By the way , this is a typical example : police officers often force the victims of torture to write a no - complaint statement under threats that the torture will continue or in exchange for release . Later on [ such statement ] is used by the police as a key proof of their innocence as regards any injuries sustained by the person .

After its own investigation and the ORG ’s application to ORG concerning the verification of PERSON ’s allegations , ORG opened a criminal case concerning the police officers , which is now being examined by ORG of GPE . ... ”


Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1 (length);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed

The applicant was born in DATE and lives in the town of GPE , the GPE region .

On DATE the applicant was transferred from her position of deputy director of ORG “ GPE ” ( “ the Company ” ) to the position of economist .

On DATE she instituted proceedings in the ORG ( “ the ORG ” ) against the Company , seeking reinstatement in the position of deputy director .

On DATE the applicant was dismissed from the position of economist , as she refused to take up her new duties .

NORP In DATE she lodged with ORG a new claim against the Company , seeking annulment of her dismissal , recovery of salary arrears and compensation . The new claim was joined to the initial proceedings .

On DATE the applicant challenged the judge , Mr B. , who was dealing with her case , and ORG , alleging that they lacked impartiality , as the Company had produced and installed window grids in the court 's new building free of charge . On DATE the President of that court , Mr V.L.G. , rejected the applicant 's motion on the grounds that it did not contain any reasons for the disqualification of the judge .

By letter of CARDINAL DATE , the President of ORG requested the Chairman of ORG of the Company to provide the court with a computer . The letter read as follows :

“ The ORG of GPE requests you to provide a computer for the court 's use . ”

NORP The letter also contained a handwritten resolution , allowing the request .

NORP On DATE the court found in part for the applicant . It annulled the ORG 's order of DATE . On DATE the ORG quashed the decision of the first instance court and remitted the case for a fresh consideration .

On DATE ORG found in part for the applicant . It ordered the Company to pay the applicant ORG CARDINAL.CARDINAL in salary arrears and other payments . The court further rejected the applicant 's claim against her dismissal .

The applicant appealed in cassation . On DATE the ORG quashed the decision of DATE concerning the pecuniary award and remitted that part for a fresh consideration .

On DATE ORG found against the applicant . On DATE ORG rejected the applicant 's appeal in cassation .

On an unspecified date the President of ORG lodged a protest ( a request for a supervisory review ) with the ORG of that court , seeking annulment of the decisions of CARDINAL DATE and CARDINAL DATE . On DATE the ORG allowed the protest , quashed those decisions and remitted the case for a fresh consideration .

On DATE the applicant challenged the impartiality of ORG . On DATE the President of the court rejected the applicant 's motion as unsubstantiated .

On DATE the applicant changed her claim , seeking modification of the reasons for her dismissal , recovery of salary arrears and compensation .

On DATE ORG found in part for the applicant . It ordered that the reasons for the applicant 's dismissal be changed and awarded her ORG CARDINAL,CARDINAL.CARDINAL in salary arrears and other payments . That decision was not appealed against and became final .

On an unspecified date the Deputy President of ORG lodged a protest with the ORG of that court , seeking annulment of the decision of CARDINAL DATE as regards the pecuniary award . On DATE the ORG allowed the protest , quashed the decision of DATE in respect of the award and remitted that part for a fresh consideration .

On DATE ORG found in part for the applicant and ordered the Company to pay her ORG MONEY in salary arrears and other payments . That decision was not appealed against .

On an unspecified date the Acting President of ORG lodged a protest with the ORG of that court , seeking annulment of the decision of DATE . On DATE the ORG allowed the protest , quashed the decision of the first instance court and remitted the case for a fresh consideration .

On DATE the applicant lodged with ORG an appeal in cassation against the decision of DATE . On DATE the President of ORG rejected the applicant 's appeal in cassation , as the disputed decision could not be appealed .

ORG scheduled a hearing in the case for DATE . Following the applicant 's request , the hearing was postponed until DATE .

On DATE the President of the court , sitting as a single judge , found against the applicant .

In her appeal against the decision of CARDINAL DATE , the applicant raised a complaint of actual bias of the President of ORG , alleging that the court had received certain goods due to ' unofficial ' relations between the ORG 's management and Mr V.L.G.

On DATE ORG upheld the decision of DATE . The court did not deal with the applicant 's allegations of bias on the part of the President V.L.G.

On DATE the applicant appealed in cassation . On DATE ORG of GPE refused to consider the applicant 's appeal for being lodged out of time . It further held that the first instance court should have ruled on the admissibility of the applicant 's appeal in cassation .

On DATE the applicant requested an extension for lodging an appeal in cassation . On DATE the ORG granted her the extension requested , finding that the applicant had complied with the statutory time - limit for lodging her appeal in cassation .

On DATE the applicant lodged with the same court her new appeal in cassation , in which she reiterated her complaint about actual bias of the President V.L.G.

On DATE the panel of CARDINAL judges of ORG , sitting in camera , rejected the applicant 's request for leave to appeal in cassation , having found that there were no grounds for referring the case to ORG of ORG .

According to the records provided by the ORG , out of CARDINAL hearings held DATE and DATE CARDINAL were adjourned due to the absence or at the request of the applicant . CARDINAL hearings were adjourned because of the absence of the representatives of the defendant company .

DATE provided CARDINAL grounds on which a judge could be challenged and should withdraw from the case :

if he participated at an earlier stage of the proceedings as a witness , expert , interpreter , representative , prosecutor , court secretary ;

if he was personally interested , directly or indirectly , in the outcome of the proceedings ;

if his relatives took part in the proceedings ;

if he had particular relations with the persons who took part in the proceedings ; or

if there were other reasons for which his impartiality could be doubted .

Under Articles CARDINAL , the persons who took part in the proceedings could lodge a motivated application for withdrawal of a judge . The application should be examined by the court hearing the case .

According to Article CARDINAL , the resolutions adopted by the courts concerning the applications for withdrawal of a judge could not be appealed against . The parties could , nonetheless , submit their objections against such resolutions together with their appeal against the judgment in their case .

Pursuant to Articles CARDINAL and CARDINAL , the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned . The court of appeal had the power to examine new evidence , and the evidence which allegedly had not been examined in compliance with the Code . It was entitled :

to reject an appeal ;

to quash the judgment of the first instance court and to remit the case for a fresh consideration , if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined ;

to quash the judgment of the first instance court and to discontinue the proceedings ;

to change the judgment or to adopt a new judgment .

According to Article CARDINAL , the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration :

if the case had been considered by a person , who had not been entitled to sit as a judge in the case ;

if the judgment had been adopted or singed by a judge who had not heard the case ;

if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing ; or

if the judgment concerned the rights and obligations of persons who had not participated in the case .

Under LAW , the grounds for an appeal in cassation were incorrect application of substantive law by the lower courts or violation of procedural rules . LAW provided that the case should be referred to ORG :

if the appeal raised an issue of incorrect application of the procedural rules by lower courts ;

if a similar case was pending before the ORG ;

if application of the law by lower courts run contrary to the practice of the court of cassation ; or

if the court of appeal had acted as a first instance court in the case .

The case could also be referred to the ORG if the decisions had significant importance for uniform application of the law , or if the appeal contained information about the erroneous application of substantive or procedural law which had led or could have led to the wrongful decision in the case .

Pursuant to LAW , an appeal in cassation was to be lodged within DATE after the decision of a court of appeal had been pronounced . By GPE , which came into force on DATE and was later repealed as of DATE , the above time - limit was reduced to DATE . The time - limit for lodging an appeal in cassation could be extended by a first instance court , if it found that the initial time - limit had not been complied with for good reasons .

Article CARDINAL of the Code provided for the filter of appeals in cassation by a panel of CARDINAL judges of ORG who were entitled to decide whether or not leave to appeal should be granted . No participation of the parties was foreseen at that stage of proceedings . Leave to appeal was granted unless the panel unanimously decided otherwise .

Pursuant to Article CARDINAL , the court of cassation had power :

to reject an appeal ;

to quash , in full or in part , the decision at issue and to remit the case for a fresh consideration to the court of first instance or the court of appeal ;

to quash the decision of the court of appeal and to uphold the judgment of the first instance court ;

to quash the decisions in the case and to discontinue the proceedings ; or

to change the decision on the merits of the case .

According to section CARDINAL of the Act , the regional departments of justice ( territorial branches of ORG ) were responsible for technical maintenance of the district and town courts .

Under LAW of the LAW , the president of a district or town court exercised specific managerial and procedural functions . The president presided in court hearings , appointed judges to preside in a hearing , and distributed work among judges . He was also responsible for regular meetings with citizens , explanation of the law to them , and receiving complaints and propositions from them . The president oversaw the work of the registry and bailiffs . He organised the work on judicial statistics , standardisation of judicial practice , and training of the court staff .


The applicant , PERSON , is an NORP national , born in DATE and living in GPE . She is represented before the ORG by Mr F. Hitzenbichler , a lawyer practising in GPE .

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

On DATE , the applicant filed an action with ORG ( Bezirksgericht ) requesting the repayment of rent and of capital expenditure ( GPE ) from her lessor . In these and the subsequent proceedings the applicant was represented by counsel .

On DATE , ORG dismissed the action . The applicant appealed against this decision on DATE .

On DATE , ORG ( Oberlandesgericht ) referred the case back to ORG requesting that additional evidence be taken . As regards the capital expenditure the applicant appealed against this decision on DATE .

On DATE , ORG dismissed the appeal and confirmed ORG decision to refer the case back to ORG for the taking of additional evidence .

ORG held hearings on DATE and DATE . An expert was appointed on CARDINAL DATE , who submitted his opinion on DATE . Following a change of the competent judge a further hearing was held on CARDINAL DATE where the expert was present and orally explained his opinion .

On DATE , ORG , having regard to the submissions of the parties , the witnesses , and the experts , rendered a partial judgment granting the applicant ’s claim for repayment of certain sums which she had paid in rent . Her claim for repayment of capital expenditure was admitted in substance , the precise amount remaining to be fixed after the taking of further evidence .

On DATE , ORG dismissed the applicant ’s appeal as far as the claim for capital expenditure was concerned .

The defendant filed a further appeal on points of law on DATE . Thereupon , on DATE , ORG confirmed ORG decision as to the claim for repayment of rent , but agreeing with the defendant dismissed the applicant ’s claim for compensation for capital expenditure finding that ORG had wrongly applied the law in this respect . The decision was served on DATE .

Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .

" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert ’s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .

( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .

( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . "