Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , PERSON , is an NORP national who was born in DATE and lives in the GPE . The President decided not to disclose the applicant ’s identity to the public ( Rule CARDINAL § CARDINAL ) . He is represented before the ORG by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) are represented by their Deputy Agent , PERSON of ORG .

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

NORP The applicant fled his native GPE on DATE and travelled to the GPE where he arrived on DATE and applied for asylum . He was subsequently joined in the GPE by his spouse and CARDINAL of their CARDINAL children , the latter born DATE . On unspecified dates , the applicant ’s spouse and CARDINAL daughters were all granted GPE residence permits .

On DATE the Minister for ORG ( Minister PERSON ) rejected the applicant ’s asylum request by holding LAW DATE LAW relating to ORG ( “ the DATE LAW ” ) against him . The Minister based this decision on the applicant ’s statements about his career from DATE to CARDINAL as an officer in the ORG - e Dowlati / PERSON Dowlati ( “ ORG / WAD ” ) ; the intelligence service during the former communist regime in GPE in which he had last held the rank of colonel , and the general official country assessment report ( algemeen ambtsbericht ) on GPE , drawn up on DATE by ORG . According to this official report , LAW could be held against virtually every NORP asylum seeker who , holding the rank of third lieutenant or higher , had worked during the communist regime for the ORG . Although this decision entailed that the applicant was no longer lawfully staying in the GPE and was obliged to leave the country , the Minister further decided that for the time being the applicant would not be expelled to GPE as it could not be excluded that , if returned to GPE , he would run a real risk of being subjected to treatment contrary to LAW .

On DATE the applicant filed an appeal against this decision with ORG ( rechtbank ) of GPE . In its judgment of DATE , ORG accepted the appeal and quashed the impugned decision . Although it agreed with the Minister ’s decision and pertaining reasoning to hold LAW against the applicant , it also held – referring to a ruling given on DATE by ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) and noting that the Minister had acknowledged that in GPE the applicant would be exposed to a risk of treatment proscribed by LAW that the Minister should also have examined whether the applicant had established that LAW constituted a sustained obstacle to his expulsion to GPE . Consequently , the Minister ’s examination had been incomplete .

On DATE , the Minister took a fresh decision on the applicant ’s asylum request , holding that it could not be concluded from the applicant ’s account – viewed against the background of the current political and social situation in GPE – that there existed a real and foreseeable risk that the applicant , if returned to GPE , would be subjected to treatment in breach of LAW . The Minister decided again to hold LAW against the applicant and , furthermore , decided to impose an exclusion order ( ongewenstverklaring ) on the applicant . As to the applicant ’s reliance on his right to respect for his family life within the meaning of LAW in the GPE with his spouse , their children and CARDINAL grandchild born in the GPE in the meantime , the Minister found that the exclusion order entailed an interference with the applicant ’s rights under this provision but that the general interest outweighed the applicant ’s personal interests .

On DATE , the applicant filed an objection ( bezwaar ) with the Minister against the decision to impose an exclusion order . As this order was immediately enforceable and the objection did not have suspensive effect , he also filed a request with ORG of The Hague for a provisional measure , i.e. an injunction on his expulsion pending the objection proceedings . On DATE , the applicant also filed an appeal with ORG of The GPE against the decision to reject his asylum request .

On DATE , ORG of The GPE sitting in GPE accepted the applicant ’s appeal and quashed the impugned decision . It noted at the outset that , since no appeal had been filed against the judgment of DATE , the decision to hold LAW against the applicant had become final , and that the subject of the present appeal was the question whether the applicant had established that he would run a real risk of being subjected to treatment prohibited by LAW if returned to GPE , and , if so , whether that risk constituted a sustained obstacle . Noting that , in contrast to the decision of QUANTITY DATE , it had been concluded in the impugned decision at issue that the applicant had not established the existence of a real risk of treatment in violation of LAW in case of his return to GPE , ORG found that this changed opinion had not been duly reasoned . Accordingly , it remitted the case to the Deputy Minister of Justice ( ORG ; the successor to the Minister for ORG ) for a fresh decision .

On DATE , apparently at the applicant ’s request , the NORP mission in the GPE issued a written statement , confirming that the applicant “ is an NORP national and has not committed any crime against humanity during his duty in GPE ” .

On DATE , the Deputy Minister filed an appeal against the judgment of DATE with ORG . On DATE , ORG accepted this appeal , quashed the judgment of DATE and declared inadmissible the applicant ’s appeal of CARDINAL September CARDINAL against the decision to reject his asylum request . Referring to a ruling it had given on DATE ( PERSON [ Immigration Law Reports – “ JV ” ] CARDINAL ) , ORG found that the applicant did not have an interest in a determination of his appeal since as long as the exclusion order which had also been imposed on him remained in force , the appeal in issue could never lead to lawful stay .

On DATE , the provisional - measures judge ( voorzieningen - rechter ) of ORG of The GPE sitting in GPE granted the applicant ’s request for an injunction on his expulsion pending the proceedings on his objection to the decision to impose an exclusion order on him .

On DATE , the Deputy Minister rejected the applicant ’s objection of DATE . The Deputy Minister noted that the decision to hold LAW against the applicant had become final and that for that reason an exclusion order could be imposed . The Deputy Minister held that the statement of the NORP mission in the GPE did not alter the decision , which had already become final , that LAW was applicable , as this statement did not provide any concrete elements to cast doubts on the correctness and completeness of the information contained in the official report of DATE . As regards LAW , the Deputy Minister found that the applicant , noting his asylum account and his activities in GPE , had established that he had well - founded fears for assuming that , if returned to GPE in the present day situation , he would run a real risk to be subjected to treatment proscribed by this provision . However , this did not entail that the applicant was eligible for a residence title . This was dependent on the question whether this risk constituted a sustained obstacle . On this point , the Deputy Minister concluded that it had not been established that this was the case and that there was no reason to hold that withholding a residence permit from the applicant was disproportionate . As regards LAW , the Deputy Minister reiterated that the decision to impose an exclusion order entailed an interference with the applicant ’s right to respect for his family life but , taking into account the guiding principles set out in the ORG ’s judgment in the cases of GPE v. GPE , ( no . CARDINAL , § DATE , ORG CARDINALIX ) and PERSON v. the GPE ( [ ORG ] , no . CARDINAL , § DATE , ORG CARDINALXII ) , considered – with extensive reasoning – that the interest of public safety and national security , as well as the prevention of crime and the protection of the rights and freedoms of others weighed more heavily than the applicant ’s interest in an undisturbed family life . The Deputy Minister concluded that the interference was justified and not in breach of LAW .

The applicant ’s appeal against this decision was rejected on CARDINAL DATE by ORG of The GPE sitting in GPE . It agreed with the Deputy Minister that the decision taken on DATE to hold LAW against the applicant had become final and that the applicant had not demonstrated that LAW constituted a sustained obstacle to his expulsion to GPE . As regard LAW , it held :

“ It is not in dispute that the exclusion order entails interference in the appellant ’s family life . In assessing whether such interference is justified , the guiding principles as set out in the ruling of ORG DATE , JV CARDINAL/CARDINAL ( LOC v. GPE ) and supplemented in the ruling of DATE , JV QUANTITY ( GPE v. the GPE ) must explicitly be taken into consideration . In weighing the general interest of the ORG against the appellant ’s personal life not only the separate principles must be addressed but these must also be considered in their correlation . And it must also be examined whether the imposition of an exclusion order , having regard also to its consequences , is proportionate . There must be a fair balance between the interests involved .

It is noted that the Deputy Minister , in reaching the decision , has taken into account the above principles , also referred to as “ the LOC criteria ” . On appeal , the appellant has merely submitted that in the impugned decision the Deputy Minister has not made an assessment based on the guiding principles but only considered that the interest of public safety and national security ought to outweigh the appellant ’s interest in an undisturbed family life . ORG considers that , in his criticism of the extensive assessment by the Deputy Minister , the appellant has not sufficiently focussed on ( parts of ) that assessment . In the opinion of ORG , the Deputy Minister could conclude that the exclusion order does not violate LAW . ”

The applicant ’s subsequent appeal to ORG was dismissed on DATE . It upheld the judgment of CARDINAL DATE . In so far as the applicant relied on LAW held :

“ In the decision of DATE , the Deputy Minister has balanced the general interest DATE which is served by the protection of public safety as well as the prevention of crime and the protection of the rights and freedoms of others – against the alien ’s personal interest in exercising his family life in the GPE with his wife and children and in this has attributed decisive weight to the general interest . In so doing , the Deputy Minister has had regard to the “ guiding principles ” formulated by ORG in the judgment of ... GPE v. GPE and the additional criteria cited in ... GPE v. the GPE . The Deputy Minister has attached substantial weight to the fact that LAW has been held against the alien . The Deputy Minister has further taken into account that the alien has lived outside of the GPE for the greatest part of his life and can therefore be considered capable of independently fending for himself in another country . The Deputy Minister has further adopted the position that , although a considerable period of time has elapsed since the facts occurred for which the alien is being held responsible , in view of their gravity the interest of public order weighs more heavily . As regards the alien ’s family members , the Deputy Minister has taken the view that , although at the time the decision was taken there was an objective obstacle to the family life at issue being exercised in GPE , this did not alter the fact that it had not appeared that there was an objective obstacle to family life being exercised in another country . According to the Deputy Minister , it could be expected of the alien ’s family members to follow him to another country . The Deputy Minister has found it to be of relevance that DATE at the time of the decision – three children of the alien had reached adulthood whereas it had not appeared that there existed “ more than normal emotional ties ” between them and the alien . Also , CARDINAL of the children was DATE at the time of the decision DATE and thus , according to the Deputy Minister , did not require daily care by the parents . According to the Deputy Minister , it could also not be excluded that this child , in her GPE company , could adjust in a country other than the GPE . The Deputy Minister has lastly considered that the family members could also maintain contact with the alien without the latter staying in the GPE .

Having noted the decision of DATE , ORG has correctly not accepted the alien ’s argument that the Deputy Minister had given insufficient reasons for the finding that the exclusion order does not violate LAW . The fact that the alien has not been criminally convicted does not mean that the holding against him of LAW is an insufficient basis for interference with his right to respect for this family life .

The grievance fails . ”

No further appeal lay against this ruling .

Until DATE , the admission , residence and expulsion of aliens were regulated by LAW DATE ( PERSON ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW DATE ( PERSON ) . On DATE , LAW DATE was replaced by LAW . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW . LAW ( PERSON ) applies to proceedings under LAW , unless indicated otherwise in this LAW .

Under LAW of LAW , an alien is eligible for a residence permit for the purpose of asylum if , inter alia ,

- he or she is a refugee within the meaning of the CARDINAL Refugee Convention , or

- he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

If the exclusion clause under LAW of the CARDINAL ORG is held against an asylum seeker , the alien concerned loses any protection which might have been available under this LAW and , consequently , becomes ineligible for a residence permit for asylum under LAW of LAW ( article CARDINAL of LAW and LAW ) .

Under LAW , judicial review by ORG and ORG in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and , in the light of the interests at stake , could reasonably have taken the impugned decision ( marginale toetsing ) . Both before ORG and ORG it is possible to apply for a provisional measure ( voorlopige voorziening ) pending the outcome of the appeal proceedings .

Article CARDINAL of LAW DATE provides that a foreign national may be declared an undesirable alien , entailing the imposition of an exclusion order , on the ground , inter alia , that he or she poses a danger to public safety or national security and/or that it is in the interests of the international relations of the GPE . An exclusion order entails a ban on residing in or visiting the GPE .

An exclusion order , which is immediately enforceable , can be challenged in administrative law appeal proceedings under the terms of LAW . Such appeal proceedings do not have automatic suspensive effect .

Article CARDINAL of LAW ( GPE ) provides that an alien who stays in the GPE while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by CARDINAL months’ imprisonment or a fine of CARDINAL CARDINAL,CARDINAL euros . In accordance with the discretionary powers held by the public prosecution service ( opportuniteitsbeginsel ) , it remains for that service to decide in each individual case and in line with the general policy rules defined by ORG ( College van procureursgeneraal ) whether to prosecute or not .

An exclusion order may be revoked , upon request , if the alien concerned has been residing outside the GPE for an uninterrupted period of DATE ( article DATE of LAW ) . Such revocation entitles the alien to seek readmission to GPE territory subject to the conditions that are applicable to every alien .

The implementation as from DATE of ORG Directive CARDINAL/CARDINAL/EC of DATE ( on common standards and procedures in Member GPE for returning illegally staying third - country nationals ) has no consequences in respect of persons on whom an exclusion order has been imposed and which has obtained the force of res iudicata . Exclusion orders which are being challenged in administrative appeal proceedings or in respect of which a request for revocation has been filed may be replaced by an entry ban ( inreisverbod ) within the meaning of the Directive and a decision to that effect can be challenged in administrative appeal proceedings .

Pursuant to article CARDINAL of LAW , a decision rejecting an alien ’s request for admission to the GPE automatically has , amongst others , the following legal consequences :

- the alien is no longer lawfully residing in the GPE ;

- he / she is required to leave the GPE within DATE ;

- officials entrusted with the supervision of aliens are authorised DATE if the alien has not voluntarily left the GPE within the delay fixed for this purpose DATE to proceed with his / her effective removal from the GPE .

Under the preceding Aliens Act DATE , a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings . This is no longer possible under LAW DATE and a negative decision on an admission request is therefore known as a so called “ multi - purpose decision ” ( meeromvattende beschikking ) .

Pursuant to the provisions of ORG ) , in force as from DATE , and article CARDINAL of LAW DATE an alien who does not have lawful residence in the GPE is not entitled to any benefits in kind , facilities and social security benefits issued by decision of an administrative authority . Derogation is possible if the benefits relate to education for minors , the provision of essential medical care ( i.e. prevention of life - threatening situations or loss of essential functions ) , the prevention of situations that would jeopardise public health of pose a risk for third parties ( for instance prevention of infectious diseases , or care related to pregnancy and childbirth ) or the provision of legal assistance to the alien concerned .

In a ruling of DATE ( PERSON ) , ORG considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi - purpose decision on a request for a residence permit , that the competence to proceed with effective removal is a legal effect ipso iure ( rechtsgevolg van rechtswege ) of the refusal of such a request , and that this competence is not of a discretionary nature . Although reiterating that in principle no further remedy lies against a multi - purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned , ORG also accepted that in certain exceptional circumstances , such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal ( daadwerkelijke uitzettingshandeling ) , an objection ( bezwaar ) and subsequent appeal ( beroep ) may be filed against an act aimed at effective removal . Under the terms of article CARDINAL of LAW , such an act can be equated with a formal decision within the meaning of LAW which can be challenged in separate administrative appeal proceedings .

A refusal on the basis of LAW of the CARDINAL Refugee Convention to grant an asylum - related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of LAW .

In CARDINAL rulings handed down on , respectively , CARDINAL and DATE ( nos . CARDINAL/CARDINAL and CARDINAL ) , ORG of ORG noted that , according to article CARDINAL § CARDINAL of LAW , a refusal to grant asylum entailed that the person concerned should leave the GPE voluntarily , failing which he or she could be expelled . It accepted that an alien – who was denied entry pursuant to LAW but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of LAW can be denied a residence permit . It did however underline the legislator ’s apparent wish to limit the size of this group as much as possible . Where an asylum seeker is able to demonstrate that LAW constitutes a sustained obstacle to his or her expulsion to the country of origin , , the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of LAW , as they had first examined whether and concluded that the exclusion clause of LAW applied . ORG concluded that , therefore , the immigration authorities’ examination of these cases had been incomplete .

These rulings resulted in an amendment to the relevant rules . Where it has been established that a person , for reasons based on LAW , can not be expelled to his or her country of origin but who , pursuant to LAW , is ineligible for any kind of residence permit , no act aimed at effective removal will be undertaken , at least for as long as these reasons exist . However , no residence title will be issued to the alien concerned who remains under the obligation to leave the GPE at his or her own motion . It further remains possible to proceed with his or her effective removal as soon as this no longer entails a risk of treatment contrary to LAW in the country of origin or to proceed with removal to a third ORG willing to accept the person concerned .

Eligibility for an eventual temporary regular residence permit may arise when the obstacle based on LAW return to his / her country of origin is of a sustained nature . In practice , such a situation may arise after a period of unlawful residence in the GPE of the alien concerned for DATE whilst Article CARDINAL continues to stand in the way of removal to his / her country of origin and without any prospect of change in that situation in the foreseeable future , and where the alien concerned has demonstrated that despite his / her best efforts there is no possibility for him / her to relocate to a third country , and where the continued withholding of a residence permit would be disproportional .

Article CARDINAL of the DATE LAW , as amended by LAW of DATE provides as follows :

“ The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that :

( a ) he has committed a crime against peace , a war crime , or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes ;

( b ) he has committed a serious non - political crime outside the country of refuge prior to his admission to that country as a refugee ;

( c ) he has been guilty of acts contrary to the purposes and principles of ORG . ”


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant , Mr Anatoliy Pavlovych PERSON , is a NORP national who was born in DATE and resides in the village of PERSON , in GPE , GPE .

In DATE , the applicant retired from the army . Upon retirement , the applicant was entitled to compensation for his uniform and to reimbursement of his travel expenses . As this compensation remained unpaid for DATE , the applicant instituted proceedings in ORG against ORG ( Донецкий Областной Военный PERSON ) , seeking recovery of the debt .

On DATE , the court found for the applicant ( ORG суда Донецкого гарнизона ) and awarded him ORG CARDINAL,CARDINAL.CARDINAL for the uniform and ORG CARDINAL.CARDINAL for travel expenses . The court decision was not appealed and therefore came into force on DATE . The execution writs were sent to ORG ( PERSON исполнительной службы Ворошиловского районного управления юстиции PERSON области ) and the enforcement proceedings started on DATE .

The debtor was given time to execute the judgment voluntarily , until DATE . After the debtor had failed to execute the judgment , ORG sent the execution writs and payment orders to ORG to withdraw the amount of the award from the debtor ’s account , which revealed a lack of funds for such payments .

On DATE , the payment order and execution writ were returned to ORG without execution due to the debtor ’s lack of funds .

On DATE , the enforcement proceedings in the applicant ’s favour were joined to other enforcement proceedings against the debtor .

On DATE , the debtor transferred to ORG the amount of UAH MONEY ( the reimbursement of the travel expenses ) to be paid to the applicant . However , this sum was only transferred to the applicant on DATE ( DATE according to the applicant ) . The delay , according to the ORG , was caused by a lack of information about the applicant ’s banking details .

On DATE and DATE , the execution writ and the payment order for the remaining amount ( the compensation for the uniform ) were twice re - sent to ORG . They were returned without enforcement on the same grounds as DATE a lack of funds on the designated account .

NORP On DATE ORG checked and attached the debtor ’s accounts . The Bailiffs also checked and found that the debtor had no vehicles or real estate in its possession .

On DATE and DATE the execution writ for the remaining amount and the payment order were twice re - sent to ORG . They were returned without enforcement on the same grounds . ORG also noted that the payment order had expired on DATE .

NORP In response to the applicant ’s inquiry , he was informed by ORG in DATE that the debtor ’s accounts had been frozen and that the execution of his judgment would take place as soon as ORG budgetary money could be transferred to it .

On DATE , joint enforcement proceedings against the debtor , including the applicant ’s judgment , were initiated by ORG for a total amount of UAH CARDINAL,CARDINAL.CARDINAL .

On DATE , ORG attached the debtor ’s account in the “ ORG .

On DATE , ORG also ordered an attachment of the debtor ’s funds which had accumulated in CARDINAL accounts .

On DATE , the judgment given in the applicant ’s favour was enforced in full .

On DATE , the amount awarded was transferred to the applicant ’s bank account .

LAW provided as follows :

“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”

Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department for that ORG or with a local court . LAW entitles the creditor to institute court proceedings against a legal person , entrusted with the enforcement of a judgment , for inadequate enforcement or non - enforcement of a judgement , and to receive compensation .

LAW provides for the liability of bailiffs for any inadequate performance of their duties , as well as compensation for damage caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .

According to LAW , accounts other than the one designated for a particular payment , as well as the property of ORG , can not be used to enforce a court decision .

NORP Under clause CARDINAL of the regulations , the forced recovery of funds must be executed from the same account as that of ordinary payments .

The law suspended certain provisions of the Law of GPE “ on the social welfare and legal protection of military personnel and their families ” , in particular with regard to compensation for clothing and travel expenses .


Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;No violation of Art. 6-3-b;No violation of Art. 6-1 and 6-3-d;No violation of Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

In DATE Mr D. , a businessman from GPE informed the police that since DATE he and his CARDINAL business partners had been paying a DATE fee to a local gang for “ protection ” . Mr NORP gave the police audio records of his telephone conversations with the gangsters , which he had secretly made when the “ fee ” had become too burdensome for him . The police set up an undercover operation . Police agents secretly observed the meetings between the CARDINAL businessmen and the gangsters and recorded their conversations . At the last meeting , which took place on DATE , the businessmen handed to the emissaries of the gang the money they had earlier received from the police . After the receipt of the money the CARDINAL emissaries of the gang were arrested and the money ( which had been previously marked by the police ) was seized from them . CARDINAL of the alleged gangsters was PERSON , the applicant ’s brother .

On DATE the applicant was charged with large - scale extortion as part of an organised criminal group ( LAW ( a ) and ( b ) of LAW of GPE ) . However , because his whereabouts were unknown , on DATE the case against the applicant was separated from the case of other members of the group . On CARDINAL DATE the applicant was put on a wanted list .

On DATE ORG issued a detention warrant in respect of the applicant . It referred to the gravity of the charges and the risk of his absconding , as well as to the fact that the applicant was on the wanted list . The detention warrant did not specify the period of detention .

On DATE the applicant was arrested at his house in LOC . On the same date he was detained .

On DATE ORG authorised the extension of the applicant ’s detention until DATE . The detention warrant referred to the gravity of the charges and the risk of the applicant absconding , re - offending or interfering with the investigation . There is no information on whether the applicant appealed against that decision .

On DATE the ORG of GPE considered the detention request lodged by the prosecution . The defence argued that there were no grounds for continued detention since the applicant had no criminal record , permanently resided in GPE , and had not tried to flee from the investigation – at the time when he had been on the wanted list he had been living in his DATE house in LOC with his minor children and had not been aware of the proceedings against him . The defence also contended that the charges against the applicant were unfounded and noted long periods of inactivity on the part of the investigation authorities during previous detention periods .

NORP The court rejected those arguments and extended the applicant ’s detention until DATE . The court held that the applicant had been accused of grave crimes and that he had to take part in several investigative activities . The court also found that the applicant would flee from justice given that he had previously been on the wanted list , and had been arrested in GPE . There is no information on whether the applicant appealed against that decision .

On DATE ORG extended the applicant ’s detention until DATE holding that there were no grounds to amend or revoke the preventive measure , given the gravity of the charges and the risk of his absconding . There is no information on whether the applicant appealed against the decision .

On DATE the investigation was completed and the case file was sent to ORG ( hereinafter DATE ORG ) .

On DATE ORG scheduled a preparatory hearing . In its decision to hold a preparatory hearing it also ordered that the applicant ’s detention should remain unchanged . The court neither specified the time - limit for his detention nor gave the reasons for such decision .

On DATE the preparatory hearing was held . The defence filed a request for release stating that the decision ordering the applicant ’s detention pending investigation had expired and that he was therefore being unlawfully detained . They also noted that the decision of DATE did not contain any reasoning . ORG rejected the request referring to the gravity of the charges and to the fact that the court had not yet assessed the evidence . As to the subject matter of the accusations against the applicant , ORG remitted the case to the prosecution because the bill of indictment had been issued improperly and was not ready for examination at the trial . The prosecution was given DATE to modify the bill of indictment . The ruling of ORG referred to LAW ( CARDINAL ) of LAW ( CCrP ) ( “ Types of decision which can be taken at the preparatory hearing ” ) , LAW ( CARDINAL ) ( “ Returning the case to the prosecutor ” ) , and LAW ( “ Deciding on the measure of restraint [ during the trial proceedings ] ” ) .

The prosecution appealed against the part of this decision concerning the remittal . The defence appealed against the refusal to release the applicant . The appeals were lodged on CARDINAL and DATE respectively .

According to the Government , the applicant ’s statement of appeal against the detention order of DATE was received by ORG on DATE . On DATE the applicant was handed a copy of the appeal by the prosecution . The case was received by ORG on DATE . The appeal hearing was scheduled for DATE . However , since the applicant ’s lawyers failed to produce powers of attorney , the appeal hearing was adjourned until DATE .

On DATE ORG allowed the prosecution ’s appeal and referred the applicant ’s case back to ORG for a preparatory hearing . The appeal of the defence was dismissed for the same reasons as given by ORG in its decision of DATE . ORG decision also referred to the provision in the ORG establishing a default DATE detention period after the referral of a case to the trial court .

On DATE the second preparatory hearing was held . The defence filed a new application for release . In addition to the arguments mentioned earlier they referred to the unreasonable period of detention and the lack of special diligence during the proceedings . ORG once again ordered the case to be remitted to the prosecutor and rejected the request for release , relying on the same arguments as in the previous decision , namely the gravity of the charges and the need to carry out additional investigative activities . The ruling contained references to Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the CCrP. Both prosecution and defence appealed .

On DATE ORG returned the case to ORG for another preparatory hearing . It also upheld the decision of ORG regarding the applicant ’s detention .

On DATE ORG scheduled a preliminary hearing , and held that the applicant should stay in custody . It does not appear that the court indicated in its ruling any time - limit for the applicant ’s further detention .

On an unspecified date the defence appealed against the ruling of DATE .

On DATE the court held a preliminary hearing and scheduled a hearing on the merits . ORG rejected the applicant ’s request for release and confirmed that the applicant should remain detained pending trial , without , however , indicating any time - limit for the detention .

On DATE the defence lodged an appeal against the decision of CARDINAL DATE . They claimed that the DATE time - limit for detention pending trial had expired on DATE and that the applicant was therefore being detained unlawfully .

On DATE the applicant ’s detention pending trial was extended for DATE because judgment on the merits had not yet been delivered . ORG referred to the gravity of the charges and to the fact that the court had not yet assessed the evidence . The defence appealed . The statement of appeal against the decision of DATE was dated DATE , although it is unclear whether it was introduced on that date .

On DATE ORG dismissed appeals against the decisions of CARDINAL , DATE and DATE holding that the findings of ORG had been correct .

According to the applicant , on DATE his detention was extended for DATE , with the same reasoning as before . In support of his assertion the applicant submitted a copy of the ruling of ORG of GPE of that date , signed by Judge PERSON The defence appealed against that ruling ; the applicant submitted a copy of the statement of appeal with ORG stamp on it confirming the date of introduction ( DATE ) and the incoming mail number ( no . DATE ) . The applicant claimed that the appeal court had never considered the complaint . The Government claimed that on DATE the applicant ’s detention had not been extended , and that the applicant ’s detention was still covered by the detention order of CARDINAL DATE .

On DATE ORG adopted the judgment in the applicant ’s case .

The applicant ’s case was initiated jointly with the cases of other members of the organised criminal group , including the applicant ’s brother , PERSON They were all accused of large - scale extortion . Owing to the failure to find the applicant , his case was separated from the case of the other members of the group .

On DATE the NORP ORG convicted Mr M. of large - scale extortion as part of an organised criminal group ( LAW ( a ) and ( b ) of LAW of GPE ) . ORG was sitting as a panel of CARDINAL judges comprising a professional judge ( PERSON , the president ) , and CARDINAL lay judges .

The judgment of DATE started with the finding that Mr PERSON had committed extortion in concert with “ unidentified persons ” . In relating the facts of the case the court once mentioned the applicant ’s name . Specifically , on page CARDINAL of the judgment the court held that an unidentified member of the gang had mentioned in a telephone conversation with CARDINAL of the victims that “ [ the applicant ] was unhappy that the victims had not transferred the money to [ Mr M. ] at his first request ” .

The applicant ’s name was also mentioned in the part of the judgment summarising the witness statements . In particular , on page CARDINAL of the judgment in connection with the testimony of PERSON , who denied his or his brother ’s involvement in the criminal group . ORG , however , found that Mr M. ’s testimony was refuted by the incriminating evidence , namely witness statements . Some of the witnesses , as well as confirming the role of PERSON in the gang , mentioned that the applicant had been an important person in the gang and participated in negotiations as a person of authority ( page CARDINAL ) . They further mentioned that the applicant had told the victims that “ they had to pay him in order not to pay other persons he had talked to ” ( page CARDINAL ) , that the money was collected from the businessmen for the applicant ( page CARDINAL) , that “ [ the applicant ] had been introduced [ to them ] as a leader of the criminal group ” ( page CARDINAL) , and that the victims “ had paid mobile telephone bills for [ the applicant ] ” ( page CARDINAL) . ORG also examined information on the telephone communications of PERSON and the applicant and referred to them in its judgments ( without , however , indicating their importance for the conviction ) .

The applicant ’s case was heard by Judge PERSON of ORG ( the same judge who had earlier presided over the trial in the case of PERSON ) . The first hearing on the merits took place on DATE .

The applicant pleaded not guilty . He did not deny that he knew the victims and that he had had some dealings with them . Namely , he confirmed that he had met with them several times DATE . However , he denied that his involvement in their business had been of a criminal character . He also denied having received from the victims or from PERSON any criminal payments . He further denied the participation of PERSON , his brother , in any criminal activity .

At the following hearings the court heard testimony of CARDINAL witnesses for the defence , NORP and PERSON , who both denied any involvement of the applicant or PERSON M. in the crimes . They testified that the money had been paid by the victims to Mr M. as a rental fee for storage space on LOC owned by the applicant .

The victims ( Mr NORP and his CARDINAL partners ) , on the contrary , testified that in DATE they had met with the applicant who had offered them criminal “ protection ” from other gangs and fixed a DATE fee for it . At one of the meetings with the applicant another gangster had threatened the victims with beatings . In DATE the victims had been paying the money to the gang , generally not to the applicant directly but to other gangsters , in particular to Mr M. However , the victims had understood that the money had been destined for the applicant . The victims had had several other meetings with the applicant in different places where the amount of the DATE fee had been discussed . Other members of the gang had always referred to the applicant as a person of authority . Throughout that period the applicant had been personally involved in the negotiations with other gangs .

The court also examined audio records secretly made by CARDINAL of the victims and later by the police during the surveillance operation . Although the applicant was not identified as CARDINAL of the speakers on those audio records , other gangsters had often referred to somebody named PERSON ( which is the applicant ’s first name ) who had supposedly been a person of authority within the gang . The applicant claimed that they had probably meant another person also named GPE .

ORG also examined other evidence . Witness PERSON confirmed that several meetings between the applicant and the victims had taken place . Witness Ya . , an accountant for the victims , confirmed that CARDINAL of the alleged members of the applicant ’s gang had been formally employed by the victims and had been receiving a salary , without , however , doing any actual work . She did not know about any official business transactions or rental agreements between the applicant and the victims . The prosecution also produced the applicant ’s and other members of the gang ’s telephone bills which had been paid by the victims , and some other circumstantial evidence .

During the court proceedings in the applicant ’s case the defence requested that Mr PERSON be summoned . He explained to the courts that Mr M. ’s testimony was important . The applicant claimed that according to the victims the money obtained from them had been passed to him by PERSON and that the examination of the latter “ could shed light on these events ” . The defence also alleged that without proving the fact that the money had been passed to the applicant he could not be found guilty and that PERSON had to be summoned as all the witnesses referred to him in their testimony . The trial court rejected the request holding that the court had not yet assessed all the evidence .

Some time later the defence requested the admission in evidence of PERSON written statement obtained by CARDINAL of the defence lawyers who had visited Mr M. in prison and had interviewed him . In those statements Mr PERSON had denied his and his brother ’s ( the applicant ) involvement in the gang . The court refused on the ground that the written statement of PERSON had not been “ duly certified ” and it was unclear whether that statement had indeed been taken from PERSON

The defence also requested leave to examine the victims of the impugned extortion for a second time , owing to inconsistencies in their earlier submissions . The request was not granted .

At some point in the proceedings the defence challenged the judge claiming that she was not impartial . They contended that the same judge had earlier found the applicant ’s brother guilty in a case closely connected with the applicant ’s case . Moreover , the defence noted that the trial judge was the same judge who had earlier remitted the case to the prosecutor and might therefore have been prejudiced in this case . However , the judge refused to withdraw . On DATE occasions the defence objected to questions put by the judge to the applicant , claiming that those questions were favourable to the prosecution .

It took the trial court CARDINAL hearings to examine the evidence produced by the parties . The hearings took place on CARDINAL and DATE , and on CARDINAL , CARDINAL , DATE , DATE and DATE . The last hearing on the merits was held on DATE . On DATE the court heard the last witness , examined certain written materials in the case file and examined the requests of the defence . The judge , having decided that the examination of evidence was over , invited the parties to proceed with their final submissions . The defence objected to ending the examination of the evidence without summoning Mr M. The objection was rejected . The defence then requested an adjournment for DATE to prepare their final submissions . The judge ordered a TIME break and then proceeded to the final submissions . These were made after a TIME break . All CARDINAL lawyers for the applicant were able to make oral submissions , in addition to their written submissions which they had handed to the court .

On DATE ORG found the applicant guilty of extortion and sentenced him to DATE imprisonment and confiscation of criminally obtained assets . In the opening paragraphs of the judgment ORG found that the applicant and his brother , PERSON , who had earlier been convicted by the same court on DATE , as well as several other unidentified people , were members of an organised criminal group created to extort large sums of money from local businessmen . DATE the applicant had met with those businessmen on several occasions . He had offered them protection from other gangs in exchange for a DATE fee . The money had usually been passed from the victims to the applicant through other members of the group , including the applicant ’s brother , PERSON In addition , the victims had been required to pay an unidentified member of the gang ’s telephone bills and later those of the applicant himself . The judgment contained a detailed account of all payments which had passed through PERSON to the applicant and of the amounts of the telephone bills paid by the victims . It also described several episodes when unidentified members of the gang had claimed additional payments on the applicant ’s behalf .

The court further analysed the testimony of witnesses NORP and PERSON examined at the request of the defence . The judge noted that although both NORP and PERSON had referred to the existence of a rental agreement between the victims and the applicant , it had allegedly been concluded in the name of a firm which had ceased to exist by that time and had never been signed by the applicant . Furthermore , the court did not have a copy of that agreement and other evidence in the case file contradicted the submissions of NORP and PERSON , in a telephone conversation between CARDINAL of the victims and a member of the gang , the latter had instructed the former to tell the police that the payments had been made within a rental agreement . As a result , the judge dismissed the testimony of NORP and PERSON as unreliable .

The applicant ’s lawyers appealed . In particular , they drew the court ’s attention to the fact that at the trial the victims had acknowledged that they had been giving the money not to the applicant but to other persons . The applicant ’s lawyers insisted that the trial court ’s failure to summon and question PERSON made the trial unfair .

On DATE ORG examined the appeal by the defence . It amended the judgment of ORG because of changes in GPE . The confiscation order in respect of criminally obtained assets was thus quashed . However , the remainder of the judgment of DATE was upheld .

After arrest the suspect can be placed in custody “ pending investigation ” . LAW CARDINAL , CARDINAL of the new CCrP ( of DATE , in force since DATE ) requires a judicial decision by a district court on a reasoned request for detention by a prosecutor , supported by appropriate evidence , before a defendant can be detained or his or her detention extended . Detention “ pending investigation ” should not exceed DATE ( LAW DATE ) . The period of detention “ pending investigation ” is calculated up to DATE when the prosecutor sends the case to the trial court ( LAW ) .

From the time the prosecutor sends the case to the trial court , the defendant ’s detention is “ pending trial ” . Upon receipt of the case file the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) of the ORG ) .

The period of detention “ pending trial ” is calculated up to the date on which the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL of the CCrP ) .

The trial judge can return the case to the prosecutor to remedy the defects impeding the trial ( LAW ( CARDINAL ) of the CCrP ) , for instance if the judge has identified serious deficiencies in the bill of indictment ( LAW ( CARDINAL ) of the ORG ) or a copy of it was not served on the accused . The judge must require that the prosecutor comply within DATE ( Article CARDINAL § CARDINAL ) and must also decide on a preventive measure in respect of the accused ( Article CARDINAL § CARDINAL ) .

By Federal Law no . CARDINAL of DATE , Article CARDINAL was amended to the effect that , if appropriate , the judge could extend the term of detention with due regard to the time - limits set forth in LAW

Pursuant to LAW , the court of appeal has to set the date , time and place of an appeal hearing and inform the parties accordingly . The parties should be informed DATE in advance of the date of the appeal hearing . The court has to decide whether or not the detainee should be brought to the court of appeal in person . That Article also regulates the arrangements governing a detainee ’s appearance in appeal proceedings in person and his or her appearance via video - link .

For further details concerning NORP legislation on pre - trial detention , detention pending trial and remittal of the case to the prosecution for correcting defects of the bill of indictment , see the cases of GPE v. GPE ( no . CARDINAL , § § CARDINAL et seq . , CARDINAL DATE ) and PERSON ( PERSON ) v. GPE ( no . CARDINAL , § § CARDINAL et seq . , DATE ) .

Article CARDINAL of the ORG provides that “ factual circumstances established in a court judgment ... which have acquired legal force , should be accepted by a court ... without additional verification . However , such a court judgment can not predetermine the question of guilt of those persons who had not participated in [ those ] proceedings ” .

Articles DATE of the CCrP describe situations in which a judge can not sit on the bench in a particular case . The judge must withdraw if he is an injured party in that criminal case , if he has already participated in that criminal case in a different capacity ( for example , as a representative of a party , as a witness , etc . ) , if he is a relative of any participant in the criminal proceedings , or “ if there are other circumstances which give reason to believe that [ the judge ] is personally , directly or indirectly , interested in the outcome of the criminal case ” . The judge whose impartiality is in doubt must withdraw of his own motion ( Article CARDINAL § CARDINAL ) ; alternatively , a party to the proceedings may challenge a judge on those grounds ( Article CARDINAL § CARDINAL ) . Article CARDINAL of the ORG provides that the same judge can not sit on the bench in the trial court and later in the court of appeal or in the supervisory review court in the same case . The same judge who sat on the bench during the first trial can not remain in the composition if the case is remitted for re - trial . However , there are no rules governing the participation of the same judge in different , yet related , criminal cases .


Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award

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

The applicant was born in DATE and is serving a sentence of imprisonment in GPE .

During TIME there was a theft from an administrative building in the village of GPE , LOC . A fax machine , an electric kettle , a wristwatch and a desk clock were stolen . On DATE the authorities opened a criminal inquiry and arrested a Mr A. During his interview , from TIME , he admitted the theft and named the applicant as his accomplice . A search was carried out in the applicant 's house ; several compact discs , a radio receiver and a telephone set were seized .

It appears that at TIME on TIME the applicant was arrested at his home by CARDINAL officers from the GPE district police station in LOC . The applicant was taken to the police station and placed in the temporary detention centre . At an unspecified time on the same day Mr S. , an investigator with the GPE district police , notified the GPE district prosecutor of the applicant 's arrest . The notification had no reference number and no indication of TIME .

According to the applicant , at TIME on DATE he swallowed an open safety pin in order to protest against his allegedly unlawful arrest . He was taken to a public hospital for an X - ray examination , which confirmed the presence of a safety pin in his stomach . At TIME the applicant was brought back to the police station . Policemen stripped him down to his underwear and handcuffed both his hands to the bars in the lobby of the detention centre . At TIME he was given a chair . During TIME he was allowed to sleep on the floor . He remained handcuffed , was given some water and tea but no food . The applicant was interviewed by an investigator on TIME CARDINAL DATE . At TIME he felt sick and was examined by paramedics . At TIME the applicant was released .

According to the Government , at TIME on DATE the applicant swallowed an open safety pin . After he had been examined at the hospital , he was brought back to the police station . He threatened to slit his veins . He was taken out of the cell , inspected and handcuffed with one hand to metal bars . He remained under the supervision of the on - duty officer . At TIME the applicant was given a mattress and bedding . The handcuffs were regularly moved from one hand to the other . The applicant was taken to a toilet , at his request , and was given water and tea . On TIME investigator PERSON interviewed the applicant . At or QUANTITY the applicant alleged that he felt sick because he had swallowed a razor blade . He was examined by paramedics , who found that the complaint was false .

On DATE Mr A. was interviewed again and stated that he had committed the theft alone . It does not appear that the applicant was subsequently prosecuted for the theft committed during TIME to CARDINAL DATE . It appears , however , that he was sentenced to a prison term in relation to other criminal offences .

As can be seen from an undated certificate issued by ORG of LOC , the arrested persons ' register and the arrest notification register for DATE did not contain any information that the applicant had been arrested DATE under LAW .

In DATE the applicant sued the GPE district police station for compensation in respect of non - pecuniary damage caused by his allegedly unlawful detention and handcuffing on CARDINAL and DATE . By a judgment of DATE ORG dismissed his claim . The applicant was neither present nor represented at the hearing . On DATE the ORG quashed the judgment on the ground that the applicant 's attendance had not been secured , and remitted the matter for a fresh examination . ORG joined the resumed proceedings as a co - defendant .

By a judgment of CARDINAL DATE ORG dismissed the applicant 's claim . On the basis of testimony by investigator PERSON , it found that the applicant had been lawfully detained from CARDINAL to CARDINAL DATE with a view to dispelling or confirming the suspicion of his involvement in the theft . ORG further found that the use of handcuffs had also been lawful and justified . In so finding , it took statements from witnesses : another detainee , PERSON , and CARDINAL on - duty officers , PERSON . and PERSON . They stated that the applicant had been verbally abusive and had shouted , banged at the door , incited to mass disorder and threatened to slit his veins with a razor blade . He had been handcuffed to prevent mass disorder and self - harm . While handcuffed , he had been given food and drink and a mattress to sleep on during the night , and had also been allowed to use the toilet . ORG found that the use of handcuffs from TIME on DATE to TIME on DATE had been compatible with the requirements of section CARDINAL of LAW for the prevention of mass disorder or attempts to inflict self - harm ( see paragraph CARDINAL below ) . In ORG view , the application of handcuffs had not impaired the applicant 's rights , inflicted physical suffering or diminished his honour or dignity .

On DATE ORG upheld the judgment . It noted that the applicant 's deprivation of liberty had been in compliance with NORP law and the Convention because he had been lawfully arrested for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense .

In the meantime , in DATE the applicant had asked the NORP regional prosecutor to open a criminal case against the police officers who had been allegedly responsible for his unlawful detention and handcuffing .

On DATE Mr M. , an investigator with the GPE district prosecutor 's office , refused to institute criminal proceedings . He noted that the GPE district police station possessed no documents or records concerning the applicant 's arrest in DATE . He took a statement from investigator PERSON , who denied that he had ever detained the applicant as a suspect . On the strength of that evidence the investigator concluded that the applicant had not been arrested or detained at the police station from CARDINAL to CARDINAL DATE .

On DATE the GPE district prosecutor annulled Mr PERSON 's decision and asked his deputy , PERSON . , to resume the inquiry .

By a decision of CARDINAL DATE PERSON . refused to institute criminal proceedings in respect of the applicant 's allegations . He had not interviewed the applicant in person but instead quoted his statements to ORG . He had interviewed investigator PERSON , who had retracted his earlier statement and stated that he had apprehended the applicant as a suspect . A record of the arrest had been properly compiled , but after the applicant 's release , he had taken it away from the police station with a view to putting it in the file but had subsequently mislaid it . PERSON . also interviewed the director and deputy director of the temporary detention centre , who claimed that the record of the arrest had been properly drafted and that the handcuffs had been applied to prevent self - harm . CARDINAL on - duty officers testified in the same vein . Relying on those statements and the findings of ORG in the civil proceedings ( see paragraph CARDINAL above ) , PERSON . determined that the use of handcuffs had been lawful and justified .

By a judgment of CARDINAL DATE ORG upheld PERSON . 's decision by way of judicial review . It found that the inquiry had been thorough and complete and that sufficient evidence of the lawfulness and reasonableness of the applicant 's arrest and handcuffing had been collected . ORG took note of the certificate from the head of the district police station showing that the record of the arrest and the detention registers for DATE had been destroyed after DATE storage . ORG held in that connection that the “ documents had been wrongly destroyed before the expiry of the correct retention period ” but that there was no proof of malice on the part of the public officials . In ORG view , PERSON . had not been required to hear the applicant in person because he had set out his allegations in sufficient detail . Nor had he been required to examine further witnesses , including other detainees , because the statements by police officers had been sufficient . Lastly , ORG dismissed as insignificant the applicant 's argument that the use of handcuffs had not been recorded in any reports , as required by domestic law .

On DATE ORG upheld the judgment .

By a letter of CARDINAL DATE the ORG informed the applicant that the present application had been communicated to the respondent Government . This letter was received at ORG remand centre no . CARDINAL on DATE and was handed over to the applicant on an unspecified date . By a letter of CARDINAL DATE the applicant was invited to submit before DATE his comments on the ORG 's observations . This letter was received at the detention facility on DATE and was handed over to him on or DATE . By a letter of DATE the applicant was provided with a copy of the LANGUAGE translation of the Government 's observations . This letter was received at the detention facility on DATE and was handed over to the applicant on DATE . The delays were due to the applicant 's transfers between several detention facilities . All CARDINAL letters were monitored and stamped by the prison staff .

It appears that on DATE the detention facility dispatched a letter from the applicant to the ORG . However , the letter was returned to the detention facility by ORG with a requirement to add stamp value and remove sellotape from the envelope . In DATE the ORG of LOC held that the refusal to dispatch the letter for lack of funds was unlawful .

On DATE , CARDINAL DATE and CARDINAL DATE the applicant 's representative brought a number of complaints before ORG in relation to various restrictions concerning the correspondence between the applicant and ORG , as well as between the applicant and his representative before ORG ( see below ) .

As can be seen from a certificate issued by the administration of colony no . CARDINAL in GPE , submitted by the Government , DATE the applicant submitted a number of letters for dispatch to ORG . The register of outgoing correspondence contained various entries such as “ complaint ” , “ petition ” , “ additional complaint ” , “ request concerning the course of proceedings ” , “ request concerning receipt of the previous letter ” , “ request concerning the list of previously submitted documents ” , “ complaint concerning a violation of his rights ” . It appears that the entries for the letters submitted for dispatch in DATE were marked as “ sealed envelope ” without any further indication of the contents .

On DATE ORG , a non - governmental organisation in GPE , received a letter from the applicant enclosing an authority form for PERSON to represent him in the proceedings before the ORG .

On DATE , DATE and DATE and DATE the applicant sent letters to PERSON at the address of ORG . The letters were accompanied by covering notes by the facility administration , summarising their contents . On DATE PERSON sent a letter to the applicant , who was then being held in prison hospital no . CARDINAL in GPE . The letter was monitored and stamped by the facility administration on DATE ; the stamp was placed directly above the text of the letter . In the meantime , on DATE ORG had received a letter from the applicant , the envelope of which carries a stamp indicating that the letter had been inspected by a correspondence officer .

As can be seen from a certificate issued by the administration of colony no . CARDINAL in GPE , produced by the Government , in DATE and DATE the applicant submitted a number of letters for dispatch to PERSON at the address of ORG . The register of outgoing correspondence contained various entries such as “ request for legal assistance ” , “ complaint concerning the proceedings before the ORG ” , “ complaint ” , “ letter – replies to questions from the ORG ” , “ request concerning legal assistance ” , “ request concerning samples of documents ” , “ request concerning translation ” , and “ personal letter ” .

On DATE the applicant 's representative wrote to the administration of GPE prison no . CARDINAL indicating that she was representing the applicant before the ORG and that her correspondence with him should be treated as privileged and confidential .

On DATE the applicant 's representative sent a letter to the applicant by registered mail , indicating on the envelope “ from advocate NORP ” . This letter was returned to her with a note “ not required because of the time - limit since DATE ” .

In DATE and DATE the applicant submitted for dispatch CARDINAL letters addressed to PERSON . The administration of the detention facilities dispatched these letters with notes indicating the number of pages in the correspondence . CARDINAL of the notes was addressed to ORG ; the other CARDINAL notes also indicated that the letters were addressed to “ advocate NORP ” .

Article CARDINAL of the RSFSR Code of Criminal Procedure ( RSFSR CCrP ) allowed the arrest of a suspect ( i ) at the time of the offence or immediately thereafter ; ( ii ) if eyewitnesses pointed to him as the perpetrator of the crime ; or ( iii ) if the suspect bore or was in possession of evident traces of the crime or if such traces were found on his clothes or at his home . A record of the arrest was to be drawn up with an indication of the legal basis and the reasons for the arrest , its time and place , and a statement by the arrested person . A prosecutor was to be informed within TIME . After the receipt of the notification the prosecutor had TIME to authorise the arrested person 's placement in custody or to order his release .

The arrested or detained suspect should be interviewed immediately or , if this was impossible , within TIME ( Article CARDINAL ) .

Article CARDINAL of the Civil Code provides that damage caused by unlawful actions or inaction on the part of a public authority or a public official should be compensated . Article CARDINAL § CARDINAL of the Code provided , at the time , that damage caused by unlawful prosecution or unlawful placement in custody should be compensated for in full by the ORG , irrespective of any fault by public officials . Article CARDINAL § CARDINAL provides that other damage caused by unlawful activity on the part of the investigative authorities or the prosecutor 's office should be compensated for under the rules laid down in Article CARDINAL .

Article CARDINAL § CARDINAL of LAW protects the confidentiality of correspondence and communications and allows restrictions on them only on the basis of a court order . LAW provides that rights and freedoms may be limited by a federal law in so far as is necessary for protecting the constitutional regime , morals , health , the rights and legitimate interests of others , and for ensuring national defence and security . ORG has held that the above limitations could be imposed in relation to the deprivation of liberty of convicted persons and concomitant restrictions ( decisions of DATE and DATE ) .

Article CARDINAL of LAW provides that the incoming and outgoing correspondence of a convicted prisoner may be inspected . However , a convicted prisoner 's correspondence with a court , a prosecutor 's office , a public authority supervising detention facilities , a federal or regional ombudsman and ORG should not be monitored . Convicted prisoners ' correspondence with their defence counsel or other persons providing legal advice on legal grounds should not be monitored , except if the prison administration has confirmed information that the correspondence contains information aimed at criminal activity . In such situations the prison administration should issue a reasoned decision on monitoring the correspondence . In addition , under LAW adopted by ORG on DATE ( decree no . CARDINAL ) , outgoing correspondence should be put in a mailbox or handed over to the prison staff in an unsealed envelope , except if such correspondence is privileged .

ORG of GPE has examined the legality of the above legislation and held that it was aimed at “ protecting the rights and legitimate interests of other persons ” and did not violate the requirements of LAW , which , in turn , referred to “ public safety ” and “ the protection of the rights and freedoms of others ” . The court also held that the censorship rule was “ nothing but ” a way of exercising the right and thus could not be a violation of the right to correspondence ; in any event , the censorship regime was subject to “ constant control and supervision ” ( see decisions of DATE and DATE ) .

On DATE ORG Administrative Rules on the examination of detainees ' complaints to public authorities ( decree no . CARDINAL ) . The Rules provide that stationery and postal costs are to be paid in compliance with federal legislation ( Rule CARDINAL ) . Correspondence addressed to a prosecutor , a court or a public authority supervising detention facilities , the federal or regional ombudsman or ORG should not be inspected . Such correspondence should be dispatched to the addressee within DATE in a sealed envelope ( Rule CARDINAL ) . Correspondence addressed to other public authorities , non - governmental organisations or defence counsel should be dispatched within DATE ( Rule CARDINAL ) . Replies to “ suggestions , applications and complaints ” should be handed over to the detainee within DATE of their receipt ; the detainee should sign the record ; and the correspondence may be included in the detainee 's prison file ( Rule CARDINAL ) . Since DATE such incoming correspondence is read out instead of being handed over to the detainee , and is compulsorily included in the prisoner 's file ; the detainee may purchase a copy of the correspondence for his personal use . Rule CARDINAL of the ORG provides that in order to ensure the right of petition to the ORG the prison administration should inform the detainee of the “ procedure for making such applications ” and provide him with an application form , the instructions for applications and ORG postal address .

Under LAW of LAW , persons detained on remand ( suspects and accused ) can only correspond through the intermediary of the detention facilities ; detainees should pay for their own correspondence . The correspondence is inspected . If the correspondence contains information which may obstruct the criminal proceedings or support a criminal activity , such correspondence should not be dispatched or handed over to the detainee to whom it is addressed . The dispatch of outgoing correspondence or the handing over of incoming correspondence should be carried out within DATE or as soon as it has been translated into NORP . If the detainee has left the detention facilities , the correspondence should be forwarded to the new address within DATE . Under section QUANTITY of LAW , a detainee ( suspect or accused ) should dispatch his correspondence to ORG or municipal authorities and non - governmental organisations through the intermediary of detention facilities . Correspondence addressed to a prosecutor , a court , the federal or regional ombudsman or ORG should not be monitored . Correspondence to other public authorities , non - governmental organisations or defence counsel should be examined by the administration of the detention facility and dispatched within DATE .

DATE Code of Criminal Procedure defines “ defence counsel ” as a person who represents a suspect or defendant in criminal proceedings and provides him with legal advice . It also specifies that in order to act as defence counsel , an advocate should produce his certificate to practise law and an order from his law firm authorising representation of the person concerned .

Section CARDINAL of the DATE LAW provides that handcuffs may be used on a suspect or accused to put an end to his unlawful resistance , and to prevent him from escaping or from causing damage to others or himself .

ORG Rec(CARDINAL)CARDINAL to member GPE on ORG , the relevant parts of which read as follows :

“ CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice .

CARDINAL Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense .

CARDINAL Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners .

CARDINAL ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential .

CARDINAL A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security .

CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings ...

CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .

CARDINAL ORG and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .

CARDINAL ORG law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted . ”

The DATE ORG relating to Persons Participating in Proceedings of ORG reads as follows :

“ The Contracting Parties shall respect the right of the persons referred to in paragraph CARDINAL of LAW to correspond freely with the ORG .

As regards persons under detention , the exercise of this right shall in particular imply that :

... such persons shall have the right to correspond , and consult out of hearing of other persons , with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the ORG , or any proceedings resulting therefrom .

In application of the preceding paragraphs , there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a NORP society in the interests of national security , for the detection or prosecution of a criminal offence or for the protection of health . ”

GPE is not a party to this Agreement .

The instrument of ratification of the Convention deposited by GPE on DATE contained the following reservation :

“ In accordance with LAW , GPE declares that the provisions of LAW and CARDINAL shall not prevent ... the temporary application , sanctioned by the second paragraph of point CARDINAL of LAW of GPE , of the procedure for the arrest , holding in custody and detention of persons suspected of having committed a criminal offence , established by LAW paragraph CARDINAL , LAW paragraph CARDINAL , ORG CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , DATE , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure of DATE , with subsequent amendments and additions ... ”


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-3-a;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

C. Russo;J.A. Carrillo Salcedo;N. Valticos

Mr PERSON was born in GPE and now resides at Steinalben in GPE , of which country he is a national .

On CARDINAL DATE the municipal police of PERSON ( PERSON ) detained him on the public highway shortly after he had torn down some small ornamental flags erected in connection with a fête organised by a political party . The police , who had intervened at the request of CARDINAL of the organisers , took him to the police station because he did not have any identity papers with him and , according to their version of events , because he had to be protected against the hostility of the participants . On this occasion he wounded CARDINAL of the police officers .

On DATE the carabinieri , who had also intervened on DATE , submitted a report on the incident to ORG . On DATE Mr Brozicek sent a letter , in LANGUAGE , to the Police Chief ( questore ) of GPE , which was subsequently transmitted to ORG , who ordered its translation into NORP on DATE .

ORG opened an investigation and on DATE sent to the applicant - by registered letter requiring acknowledgment of receipt and bearing the address of the applicant 's then residence in GPE - a " judicial notification " ( comunicazione giudiziaria ; see paragraphs CARDINAL - CARDINAL below ) . It informed him that proceedings had been instituted against him for the offences of resisting the police and assault and wounding ( Articles CARDINAL and CARDINAL of LAW ) . In addition , it invited him to appoint a defence lawyer of his choice and informed him that if he failed to do so PERSON , avvocato , would be appointed by the authorities .

On DATE Mr Brozicek returned the document to ORG with the following note ( translation from the NORP ) :

" I return the enclosed document to the sender as I find it difficult to understand . In lodging my detailed complaint of CARDINAL DATE - on which no action has yet been taken even though the facts complained of could have far - reaching consequences - and in all correspondence to date with the NORP authorities , I have always expressly requested that either the mother tongue of the persons concerned or CARDINAL of the international official languages of ORG be used , in order to avoid from the outset any risk of misunderstanding . "

ORG received this letter on DATE . It did not send any reply and did not have the letter translated .

On DATE ORG sent to the applicant by registered letter requiring acknowledgment of receipt a second " judicial notification " . In addition to the information contained in the first notification , it asked the applicant to provide an address for service in GPE ( Article CARDINAL bis of LAW ) .

On DATE the NORP postal authorities returned the letter to the sender marked " unclaimed " .

The acknowledgment of receipt bore the name " Brozicek " , in a different space to that provided for the addressee 's signature . The Government maintained that it was the applicant 's signature but he has always denied this ; he claimed that he had not received the communication because he had just moved house . The expert opinion ordered by ORG ( see paragraphs CARDINAL and CARDINAL above ) did not resolve this question .

By an order ( decreto ) of CARDINAL DATE ORG stated that it had not been possible to notify the applicant and that " further enquiries at the place of birth and place of last residence " had not produced any result . He appointed a defence lawyer and directed that all the documents for notification to the accused during the investigation should thereafter be lodged at the secretariat of ORG .

At the hearing before ORG on CARDINAL DATE , the ORG affirmed that the reference to further enquiries was probably an oversight . They maintained that the provision applied to the applicant was the second part of the second paragraph of LAW ( concerning an accused who has given no address for service , see paragraph CARDINAL below ) , which does not require such enquiries .

ORG summonsed PERSON to appear for examination on DATE , but to no avail , and , on DATE , he asked the President of ORG to commit the applicant for trial .

The trial was set down for DATE but when the time came the proceedings had to be adjourned because the date of the hearing had not been notified to the accused .

On DATE the President of ORG decided that any notification would be lodged with the court registry because the accused had not provided an address for service in GPE ( Articles CARDINAL and CARDINAL bis of LAW , see paragraph CARDINAL below ) . He also appointed a lawyer to represent the accused .

After an adjournment for reasons extraneous to the proceedings , the trial took place on DATE .

On that date the applicant was convicted in absentia , sentenced to DATE imprisonment and ordered to pay the costs . The sentence was , however , suspended and no reference to the conviction was to be included in criminal - record certificates issued at the request of private individuals .

This decision too was notified to the applicant by being lodged at the court registry because , still pursuant to LAW , the president of the court had again noted , on DATE , that ORG had not provided an address for service in GPE .

As there was no appeal , the judgment became final on DATE .

On CARDINAL DATE the applicant received a letter from ORG at ORG ( ORG ) . The letter informed him of his conviction by judgment of the PERSON court of DATE , which had become final on DATE , and that the conviction had been entered in the NORP criminal records ( LAW , Bundeszentralregistergesetz ) .

On DATE lodged an application with the Commission , stating , inter alia , that " the possibilities for appealing [ were ] manifestly time - barred under NORP law ... " . On DATE he also wrote to ORG and ORG .

In his letter to ORG he requested its assistance in securing , as soon as possible , the rectification or the annulment of the PERSON judgment .

In his letter to ORG he claimed that he had not received any information in his own language on the trial and had been unable to defend himself because neither the indictment nor the judgment had been notified to him . He asked what possibilities of appealing against the decision were open to him .

On DATE the NORP Ministry replied that he could lodge an appeal against the judgment outside the normal time - limits ( hereinafter referred to as a " late appeal " ; see paragraph CARDINAL below ) , if the notification to him had not been lawfully made , and seek a retrial .

The applicant did not avail himself of either of these possibilities .

ORG instructed ORG to determine whether there was any possibility of appealing against the judgment of DATE . As the first result of its communications with the PERSON court , the ORG forwarded to the applicant , on DATE , a photocopy of the NORP text of the judgment , which was for the most part handwritten . PERSON acknowledged receipt of this text by a letter dated DATE .

A judicial notification is the document by which the judicial authorities inform the person suspected of having committed an offence that an investigation has been opened and invite him to appoint a defence lawyer of his choice and to provide an address for service . It must specify the legal provisions infringed and the date of the alleged offence .

The investigating judge , in the event of a " formal " investigation , or the public prosecutor , where the investigation is " summary " , must send the notification at the very beginning of their investigation ( ORG CARDINAL and CARDINAL of the Code of Criminal Procedure ) .

The notification must be sent by registered letter requiring acknowledgment of receipt . If the letter is not delivered because the addressee is untraceable ( irreperibile ) , a bailiff must serve the notification in accordance with the normal procedure ( Articles CARDINAL - CARDINAL of the Code of Criminal Procedure ) .

In its PERSON and Others judgment of DATE and its NORP judgment of CARDINAL DATE ( Series A no . CARDINAL , p. CARDINAL , § § DATE , and Series A no . CARDINAL , p. CARDINAL , § § DATE , and pp . CARDINAL - CARDINAL , § § DATE ) the ORG gave a brief description of the NORP legislation then in force as regards the notification to a person or an accused who is " untraceable " , trial in absentia ( contumacia ) and " late appeal " ( appello apparentemente tardivo ) .

In this regard LAW provides as follows ( translation from the NORP ) :

" Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad , ORG or trial judge ( pretore ) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted . This formality shall neither suspend nor delay the proceedings .

Where the accused 's address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate , the judge or the public prosecutor shall make the order ( decreto ) provided for in LAW .

The above provisions shall not apply where the issue of an arrest warrant is mandatory . "

The second sub - paragraph of Article CARDINAL states that ( translation from the NORP ) :

" The judge or the public prosecutor ... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved or proves impossible to carry out be effected by means of lodging the relevant documents at the registry of the judicial organ before which the proceedings are pending . The defence lawyer shall be informed without delay of any such notification . "

The possibility of lodging a " late appeal " was at the time derived from judicial interpretation of Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , according to which ( translation from the NORP ) :

" In the case of in absentia proceedings , an extract of the decision or judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings , subject to the provisions of the third paragraph of Article CARDINAL . "

For the decisions or judgments referred to in LAW , the period within which the accused may appeal shall begin to run from the notification of the decision or judgment .

On the basis of these provisions the courts had consistently held that if the notification of an extract of a decision or judgment delivered in absentia was not lawful because it had been wrongly assumed that the accused did not intend to participate in the proceedings , the person concerned could , within DATE , contest such notification and challenge the finality of the decision in question . If he was successful in so doing , he was accorded a new time - limit within which to appeal against the said decision .

The new Code of Criminal Procedure , which came into force on DATE , now makes express provision for this possibility of " re - establishing the time - limit " .