Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in Split . She is unemployed and unwaged .

From DATE the applicant occupied a room and common premises of a privately owned flat in Split together with other tenants . On DATE the applicant found that the lock of the entrance door to the flat had been changed and that her belongings had been removed from the flat . The applicant called the police , who drew up a report . On DATE the applicant brought a civil action in ORG ( PERSON ) against CARDINAL individuals , GPE and GPE , seeking protection against the disturbance of her occupation of a room and common LOC in the flat .

After a first - instance judgment by default of DATE had been quashed at a hearing held on DATE before ORG , subsequent hearings were held on DATE , CARDINAL DATE , DATE , CARDINAL May and DATE , when a fresh judgment , allowing the applicant ’s claim , was adopted . It was , however , quashed by ORG ( PERSON ) on DATE and the case was remitted to ORG .

In the fresh proceedings ORG held hearings on DATE , DATE and DATE and DATE , DATE , DATE and DATE . On DATE a judgment ordering that the applicant was to regain her co - occupation of the flat in question was adopted . A subsequent appeal by the defendants was declared inadmissible in a decision of ORG , adopted on DATE , which was upheld by ORG on DATE .

Since the defendants in the civil proceedings had failed to comply with the judgment of DATE , the applicant applied to ORG on DATE , seeking an enforcement order . The order was issued on DATE . The defendants lodged an appeal . The execution of the order was scheduled for DATE . It was duly carried out . However , on DATE the applicant was thrown out of the flat ( see paragraph CARDINAL below ) . Accordingly , on DATE she requested ORG to resume the enforcement proceedings .

On DATE the ORG allowed the GPE appeal , quashed the enforcement order of DATE and remitted the case to ORG . The latter , on DATE , invited the applicant to amend her request . The applicant submitted an amended request on DATE . On DATE ORG again invited the applicant to amend her request . The applicant submitted the amended request on DATE . On DATE ORG invited the applicant to adjust her request within DATE . On DATE ORG dismissed the applicant ’s request for the enforcement proceedings to be resumed .

On DATE the applicant complained to ORG ( Ustavni sud Repbulike Hrvatske ) about the length of the civil proceedings described above . In a decision of DATE ORG dismissed the complaint as ill - founded , finding that the proceedings had been concluded within a reasonable time .

On DATE the applicant lodged a complaint about the length of the enforcement proceedings with ORG . On DATE ORG allowed the complaint , found a violation of the applicant ’s right to a hearing within a reasonable time , awarded her CARDINAL NORP kunas ( HRK ) in compensation and ordered ORG to complete the enforcement proceedings within DATE , although in fact those proceedings had already ended with ORG decision of DATE . ORG examined the length of the enforcement proceedings with reference to the period from DATE until DATE .

On DATE , DATE after the applicant had regained possession of the flat in question , she was attacked by CARDINAL individuals , QUANTITY women and a man , upon her arrival in front of the flat . During the incident of DATE the police were called and arrived on the scene . They interviewed the applicant and drew up a report . The relevant part of the report reads as follows :

“ [ The applicant ] stated that at TIME she had been verbally and physically attacked by CARDINAL individuals when she had attempted to enter a flat ... The attackers had pulled her hair , hands and clothes and thrown her down the stairs from the first floor . They had also insulted her by shouting obscenities ... She further stated that they had threatened to kill her if she came back .

There were visible bruises and contusions on PERSON ’s right hand and her shirt was torn at the back . She asked for medical assistance after the interview .

On DATE the police lodged a complaint with ORG against CARDINAL individuals , including PERSON , for disturbance of public peace and order , alleging that they had physically attacked the applicant , kicked her entire body , pulled her by the hair and pushed her down the stairs , all the while shouting obscenities at her . The first hearing in the proceedings was held on DATE .

In a decision of CARDINAL DATE the ORG found all CARDINAL defendants guilty of insulting the applicant with defamatory expressions and sentenced them to a fine in the amount of HRK CARDINAL . As to allegations of the physical assault on the applicant they found that there were insufficient evidence in that respect .

NORP However , this decision did not become final since the applicant lodged an appeal , complaining that ORG had not addressed her allegations of physical assault . On DATE the same ORG terminated the proceedings on the ground that the prosecution in respect of the offences with which the defendants were charged had meanwhile become time - barred . The applicant lodged an appeal . Both appeals lodged by the applicant were dismissed on CARDINAL DATE by ORG .

In a detailed criminal complaint of DATE filed against CARDINAL individuals with the ORG ( Općinsko državno odvjetništvo Split ) the applicant alleged , inter alia , that on DATE at TIME , when she had arrived in front of the flat in question , CARDINAL individuals , PERSON , ORG and ORG , had come out of the flat , shouting at her and preventing her from entering the flat . They had attacked her physically , insulted her and threatened her , telling her not to come back or she would disappear and “ be disposed of ” . The applicant also submitted medical evidence showing that she had sustained blows to her elbow and tailbone .

In a decision of CARDINAL DATE the ORG Attorney ’s ORG decided not to open an official investigation on the ground that the act in question qualified as a criminal offence of inflicting bodily injuries of a lesser nature and that a prosecution for that offence had to be brought privately by the victim . The decision , inter alia , stated :

“ In her criminal complaints [ the applicant ] stated that on DATE TIME in front of a flat in Split ... , the suspects had verbally attacked her and insulted her , kicked her with their hands and legs all over her body , pulled her hair and pushed her down the stairs while PERSON had also threatened her not to come back to the flat or otherwise she would disappear .

The applicant was also instructed to proceed accordingly and to lodge within DATE a request for an investigation with a ORG investigation judge .

The applicant complied with the said instruction on DATE and submitted a request to a ORG investigation judge seeking to have an investigation opened in connection with the above event . She sought an investigation in respect of CARDINAL individuals , including GPE , GPE and PERSON , listing their names and addresses . She proceeded to describe the event in question in detail , specifying the acts carried out by her QUANTITY attackers . She made a list of evidence in support of her allegations , including medical documentation about the injuries she had sustained and the police report issued on DATE . She further alleged that these acts constituted , inter alia , the criminal offence of making threats under LAW and the criminal offence of violent behaviour under LAW . She specified her allegations in respect of each of the individuals concerned .

On DATE ORG invited the applicant to amend her request within DATE so as to include a description of the offence , the legal classification of the offence and circumstances showing that there was a well - founded suspicion that the individuals in question had committed criminal offences , as well as evidence supporting her allegations . On DATE the applicant submitted an amended request , repeating in essence the same allegations as in her initial request . In her further submissions of CARDINAL DATE the applicant submitted some documents from the minor - offences proceedings .

On DATE the ORG investigation judge declared the applicant ’s request for an investigation ( istažni zahtjev oštećene kao tužiteljice ) inadmissible . The relevant part of this decision reads :

“ The injured party , acting as subsidiary prosecutor ( oštećena kao tužitelj ) , has lodged with this court a request for an investigation in respect of PERSON and others ...

Pursuant to LAW , paragraph CARDINAL , of LAW , this court invited the injured party acting as subsidiary prosecutor on DATE and once again orally , to amend her request and warned her that it would be declared inadmissible if she did not comply with the instruction within the set time - limit . The injured party acting as subsidiary prosecutor answered both calls but has failed to amend her request for an investigation in accordance with the court ’s instruction . The court considers the injured party ’s submission incomprehensible and incomplete . Therefore , it has to be declared inadmissible pursuant to LAW , paragraph CARDINAL , of LAW . ”

On DATE the applicant lodged an appeal against the above decision with ORG . She claimed that she had fully complied with the instructions given in the court ’s letter of DATE amending her initial request for an investigation so that it contained all the necessary information . She further contended that she had never received an oral invitation . On DATE ORG dismissed the applicant ’s appeal , finding that “ the submissions lodged by the subsidiary prosecutor are incomprehensible and incomplete ” . The applicant lodged a further appeal against that decision .

On DATE the applicant also complained to ORG ( PERSON ) about the length of the criminal proceedings . On DATE the applicant ’s complaint was dismissed and she was instructed to lodge such a complaint with ORG . On DATE the applicant lodged a complaint about the length of proceedings with ORG , before which it is still pending .

NORP The applicant ’s appeal was declared inadmissible by ORG on DATE . On DATE the applicant lodged a fresh appeal , which is still pending .

The relevant parts of LAW ( PERSON , ORG no . CARDINAL/CARDINAL ) read as follows :

“ ( CARDINAL ) Criminal proceedings in respect of criminal offences shall be instituted by ORG in the interest of GPE and its citizens .

( CARDINAL ) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private prosecution or that the ORG Attorney ’s ORG should institute criminal proceedings upon [ a private ] application . ”

“ Whoever inflicts bodily injury to another person or impairs another person ’s health shall be fined or sentenced to imprisonment for a term not exceeding DATE . ”

“ Criminal proceedings for the offence of inflicting bodily injury ( LAW ) shall be instituted by means of private prosecution . ”

“ ( CARDINAL ) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined CARDINAL DATE wages or sentenced to imprisonment for a term not exceeding DATE .

( CARDINAL ) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year .

( CARDINAL ) Criminal proceedings for the criminal offences defined in DATE and QUANTITY of this Article shall be instituted upon [ a private ] application . ”

“ A public official , or another person acting at the instigation or with the explicit or tacit acquiescence of a public official , who inflicts on another person pain or grave suffering , whether physical or mental , for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , shall be sentenced to imprisonment for a term from DATE . ”

“ Whoever for such purposes as violent abuse , ill - treatment or particularly insolent behaviour in public submits another person into a degrading position shall be sentenced to imprisonment for a term from DATE . ”

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide as follows :

“ ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...

( CARDINAL ) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the ORG Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor .

( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .

( CARDINAL ) Where the ORG Attorney finds that there are no grounds to institute or conduct criminal proceedings , the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this LAW . ”

LAW obliges the court conducting the criminal proceedings to instruct a participant in those proceedings who may be ignorant in such matters about his or her rights and the consequences of a failure to undertake a requisite procedural step .

Articles CARDINAL to CARDINAL regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor . The Criminal Code distinguishes between these CARDINAL roles . A private prosecutor ( privatni tužitelj ) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by LAW ( these are offences of a lesser degree ) . The injured party as a subsidiary prosecutor ( oštećeni kao tužitelj ) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities for whatever reason have decided not to prosecute .

“ ( CARDINAL ) A request to prosecute shall be lodged with the competent ORG Attorney ’s ORG and a private prosecution with the competent court .

( CARDINAL ) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute .

( CARDINAL ) Where the injured party has lodged a criminal complaint or a request to prosecute but the [ competent authorities ] establish that the criminal offence in question should be prosecuted upon a private prosecution , the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if they have been submitted within the time - limit prescribed for [ bringing ] a private prosecution ... ”

Pursuant to LAW , the ORG Attorney is under a duty to inform the injured party within DATE of a decision not to prosecute and of the party ’s right to take over the proceedings , as well as to instruct that party on the steps to be taken .

( CARDINAL ) Where the criminal proceedings are conducted upon a request by the injured party acting as a subsidiary prosecutor in respect of a criminal offence punishable with more than CARDINAL years’ imprisonment , he or she may ask to have legal counsel appointed free of charge where this is in the interests of the proceedings and where the injured party lacks the means to bear the expenses of legal representation ... ”

“ ( CARDINAL ) Private prosecutions , bills of indictment , requests to prosecute , legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law .

( CARDINAL ) The submissions referred to in paragraph CARDINAL shall be comprehensible and contain the necessary information for the authorities to act upon them .

( CARDINAL ) Unless otherwise provided in this LAW , the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them . Where the submissions have not been amended as required , the court shall declare them inadmissible .

( CARDINAL ) In its invitation to amend the submissions , [ the court conducting the proceedings ] shall warn the person concerned about the consequences of not complying with the instruction . ”

“ ( CARDINAL ) ORG shall report criminal offences subject to public prosecution .

“ ( CARDINAL ) A [ criminal ] complaint shall be lodged with the competent ORG Attorney ’s [ ORG ] in writing or orally .

“ Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution , the competent ORG Attorney shall declare it inadmissible in a reasoned decision ... ”

Article CARDINAL governs , inter alia , the required contents of a request for an investigation , namely : identification of the person in respect of whom the request is submitted , a description and the legal classification of the offence at issue , the circumstances confirming a reasonable suspicion that the person concerned has committed the offence at issue , and the existing evidence .

Article CARDINAL , paragraph CARDINAL , allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigation judge of a competent court a request for prosecution and other submissions .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG were represented by PERSON , Representative of GPE at ORG .

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

The applicant purchased a flat from a private company . It subsequently transpired that the flat was under charge . On DATE and CARDINAL DATE ORG of GPE declared the sale of the flat to the applicant void ab initio and transferred the title to it to a Mrs S.

On DATE the applicant sued the original seller , claiming recognition of her title to the flat . By judgment of CARDINAL June CARDINAL the Krasnooktyabrskiy ORG accepted her claim . This judgment became final . On DATE it was set aside because the judgment of CARDINAL DATE had not been taken into account , and the proceedings resumed .

Having re - examined the applicant ’s claim against the original seller , on DATE ORG discontinued the proceedings for lack of jurisdiction . On DATE the Presidium of ORG re - opened the proceedings by way of supervisory review . On DATE ORG issued a new decision discontinuing the proceedings , which was again quashed by way of supervisory review on DATE for similar reasons .

DATE and DATE , and then DATE the proceedings were either adjourned or stayed upon the applicant ’s requests . On DATE the ORG rejected the applicant ’s claim for recognition as a good faith purchaser of the flat . The applicant appealed to ORG . After she had complied with the formal requirements , her appeal was scheduled for hearing . On DATE its examination was adjourned until DATE due to the applicant ’s illness . On DATE the ORG quashed the judgment of DATE and remitted the case for a re - examination . It found that ORG had failed to examine some of the applicant’

In DATE and DATE the proceedings were stayed at the other party’ requests . The applicant did not challenge these suspensions of the proceedings .

By judgment of CARDINAL DATE ORG dismissed again the applicant ’s claim . On DATE and CARDINAL DATE the judgment was rectified . On DATE the ORG quashed the judgment and remitted the matter to the district court for a fresh decision . The proceedings were stayed on DATE until DATE due to PERSON illness . The hearings scheduled for DATE and DATE were adjourned because the presiding judge ORG was involved in another case or had a meeting in the town hall .

On DATE the ORG stayed the proceedings at the other party ’s request . On DATE the ORG quashed that decision . On DATE ORG rejected as unfounded the applicant ’s bias complaint in respect of judge T. and adjourned the hearing at the other party ’s request .

By judgment of DATE the ORG declared the sale of the flat void ab initio and ordered the respondent company to pay MONEY to the applicant . ORG upheld that judgment on DATE .

In a litigation between the original seller and third persons , including PERSON , on DATE ORG upheld PERSON title to the flat . The court refused to process the applicant ’s appeal against the judgment on the ground that she had no standing in those proceedings . Apparently , the applicant did not appeal against this refusal .


CASE OF İLBEYI KEMALOĞLU AND MERIYE KEMALOĞLU v. TURKEY

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

The applicants were born in DATE and DATE respectively , and live in GPE . They are the parents of Atalay LOC , who died in DATE , when he was DATE .

On DATE GPE was hit by a heavy snow storm . Consequently , upon the instructions of ORG , schools in GPE broke up for the DATE beak DATE than scheduled . On DATE , Atalay had gone to his primary school on the municipality ’s shuttle , which travelled between his home and the school . After the school bulletins had been distributed , classes were dismissed at DATE , before the normal school day was over .

According to the information in the case file , Atalay had not enrolled for the paid school bus , but was using the shuttle that was operated for free by the municipality . As the early dismissal of the classes had not been notified to the municipality , the shuttle did not come when the school was closed . Atalay therefore tried to walk back home , which was QUANTITY away from his school . TIME , when he did not return from school , the applicants called the police . However , it was not possible to find Atalay . His body was found the following day , frozen near a river bed .

Following the incident , the Primary School Inspectors’ Presidency of ORG ( GPE Valiliği İl Milli Eğitim Müdürlüğü İlköğretim PERSON ) initiated an investigation , during which the inspectors took the statement of the driver of the municipality ’s shuttle . He explained that on DATE of the incident he had taken CARDINAL students from their homes and had left them in front of the school . DATE , he took them back around TIME On DATE , no one informed him that the school would be closed at TIME Therefore , when he went to the school , everyone had already left . The inspectors prepared a report on DATE and found that the deputy headmaster of the school had been at fault for not informing the municipality about the early closure of the schools . On DATE the Presidency concluded that the deputy headmaster of the school had been at fault for neglecting to inform the municipality ’s shuttle service of the early dismissal of the classes . It accordingly decided to issue a warning to the deputy headmaster as a disciplinary sanction .

On DATE the applicants filed CARDINAL separate actions with ORG against ORG , GPE and GPE . Alleging that their son had lost his life due to the negligence of the domestic authorities , the first applicant requested MONEY ( TRL ) ( MONEY ( ORG ) at the time ) and the second applicant GPE CARDINAL,CARDINAL,CARDINAL ( QUANTITY at the time ) covering both pecuniary and non - pecuniary compensation . They also requested legal aid for the court fees .

On DATE ORG requested the applicants to complete the case file by submitting relevant documents in support of their legal aid claim within DATE .

In support of their legal aid claim , both applicants submitted to ORG certificates from the office of the headman ( muhtarlık ) attesting to their indigence , certificates from the LOC confirming that they did not own any immovable property and certificates indicating that they were in debt to ORG .

On DATE ORG dismissed the applicants’ request for legal aid without giving any specific reasons .

Subsequently , on CARDINAL DATE the applicants were notified that they were required to pay ORG ( MONEY at the time ) and ORG ( approximately ORG CARDINAL,CARDINAL at the time ) respectively for the court fees within DATE in order for the proceedings to be continued .

On DATE ORG decided to discontinue the proceedings as the applicants had failed to pay the relevant court fees .

In the meantime , on DATE the applicants filed a criminal complaint with ORG against the school headmaster , the deputy headmaster and PERSON class teacher . On an unspecified date , pursuant to Law no . DATE ( PERSON on the Prosecution of Civil Servants and Public Officials ) ORG referred the file to LOC office and requested authorisation to prosecute the accused persons .

On DATE the LOC Governor refused to authorise the public prosecutor to initiate criminal proceedings against the school headmaster , the deputy headmaster and the class teacher , on the basis of a report prepared by the headmaster of ORG , who stated that no fault could be attributed to the accused persons .

On DATE the applicants lodged an objection against the decision of the LOC Governor ’s office .

On DATE ORG annulled the decision of LOC and held that there was sufficient evidence in the case file to initiate criminal proceedings against the accused headmaster , deputy headmaster and class teacher .

Accordingly , on DATE the ORG filed an indictment with ORG against S.Ç ( the deputy headmaster of the school ) , PERSON ( ORG ’s class teacher ) and ORG ( the school headmaster ) , accusing them of misconduct in office under LAW of the former LAW . The applicants joined the criminal proceedings as civil parties and reserved their right to claim compensation .

During the proceedings , the court heard the defence statements of the accused . Atalay ’s class teacher , PERSON , maintained that a day before the incident she had told her students that their parents should be present on DATE as school bulletins would be distributed . The court also obtained an expert opinion from a psychologist , who stated that a DATE child could not be expected to find effective solutions when faced with extraordinary situations . In this connection , she stated that the child could not have foreseen the dangers he would face when he tried walking home alone in the heavy snow storm .

On DATE the ORG acquitted the accused persons of the charges against them . In its decision , the court held that the death of Atalay had not been the result of a deliberate action . The reasoning stated that there were CARDINAL pupils in the school , and that it could not be considered reasonable to expect the school authorities to control where the pupils went after the classes were dismissed . The court further held that in order to conclude that there had been misconduct in office , the public officer had to have wilfully neglected performing his duty . According to the court , in the instant case the school authorities could not be reasonably expected to foresee that Atalay would be frozen to death on his way back home . The court also decided that it did not have jurisdiction to examine whether or not there had been a service - related fault ( hizmet kusuru ) in the circumstances of the present case .

On DATE ORG quashed the judgment of ORG , without examining the merits of the case , for procedural reasons , namely due to the absence of the signature of the court ’s clerk on TIME of a hearing which had been held on DATE . The case file was accordingly remitted to ORG .

On CARDINAL DATE the ORG once again acquitted GPE , S.Ö and ORG of the charges against them on the basis of the same reasoning as given in its previous judgment of DATE .

The appeal proceedings are still pending before ORG .

A full description of the relevant domestic law regarding legal aid may be found in GPE and PERSON v. GPE , no . QUANTITY , § § DATE , DATE

In DATE , the minimum wage in force was GPE CARDINAL ( approximately EUR CARDINAL at the time ) DATE .


The applicant was born in DATE and lives in GPE .

On DATE the applicant was granted a lease by GPE to run a car park on a plot of land by the coast in the GPE district of GPE .

On DATE and DATE ORG attached to ORG issued CARDINAL orders requesting the applicant to pay compensation for occupying the car park DATE and DATE .

On DATE , DATE and DATE respectively the applicant filed CARDINAL separate cases with ORG against ORG , requesting that the orders be annulled . The first case concerned the period DATE and DATE , the second case concerned the period DATE and DATE and the third case concerned the period DATE and DATE .

On DATE ORG annulled the orders dated DATE and DATE . The administrative authority appealed . ORG on DATE ORG quashed the respective judgments of ORG .

On DATE ORG followed the reasoning set out in ORG decision and dismissed the cases . The applicant appealed .

On DATE ORG quashed the respective judgments of ORG once again .

On DATE ORG decided to annul the respective compensation orders .

According to the information in the case file based on the latest submissions by the parties , both actions are apparently still pending before ORG .

On DATE ORG annulled the compensation order dated DATE . The administrative authority appealed and subsequently on CARDINAL DATE ORG quashed the judgment of ORG .

On DATE ORG followed the reasoning set out in ORG decision and dismissed the case . According to the information in the case file , this action is still pending before ORG .


The applicant is an NORP national , born in GPE in DATE and , according to the most recent information contained in the file , living in the GPE .

He is represented before the ORG by PERSON , a lawyer attached to the ‘ s - ORG Seekers ( PERSON ) based in GPE .

The proceedings in question in the present case concern the applicant ’s application for recognition of his refugee status in the GPE .

The following is a summary of the proceedings :

The applicant entered the GPE on DATE on a valid NORP passport bearing his own name . A photocopy of the passport was made by the immigration authorities before it was handed back to the applicant . The applicant applied for recognition of his refugee status ( or in the alternative , a residence permit on humanitarian grounds ) DATE .

According to the report of the interrogation referred to in the following paragraph , the passport contained a NORP visa .

The applicant was interrogated ( nader gehoor ) by an official of ORG ( Immigratie- en Naturalisatiedienst ) of ORG on DATE . No lawyer or other assistant was present . The applicant spoke his own language , LANGUAGE , and was assisted by an interpreter .

The applicant stated that the NORP visa had been arranged for him by an acquaintance called PERSON whose address he did not know . PERSON was an active member of the NORP organisation , which is illegal in GPE , but the applicant was unable to state particulars on PERSON ’s activities . ORG After arriving at FAC the applicant had given his passport to an assistant of the person who had arranged his journey for him . He had not had to pay for his journey ; PERSON had done that , apparently on the instructions of the Mujahedin .

None of the applicant ’s relatives – parents , siblings – had ever been in trouble with the NORP authorities or with any organisations or groups in GPE . Neither had the applicant himself .

The applicant claimed to be a member of the NORP but held no membership card . His activities in GPE had consisted of writing “ code - like slogans ” ( code - achtige leuzen ) on walls , on the instructions of one H. who was his contact with the party . He was unable to explain the meaning of these code - like slogans .

In addition , he had taken part in a demonstration in the town of PERSON on DATE aimed at obtaining provincial autonomy for that locality . This demonstration , in which CARDINAL persons had participated , had been indirectly organised by the Mujahedin . It had resulted in the wrecking of a public building . The demonstration had been video taped . On DATE the applicant ’s contact PERSON had failed to turn up for an appointment and on DATE the applicant had gone into hiding .

The applicant had been warned by PERSON on DATE that H. had been arrested and that his ( the applicant ’s ) life would be in danger if PERSON mentioned him to the authorities .

The applicant had been able to leave GPE on his own passport because PERSON had contacts who could influence the passport officials via the Mujahedin organisation . PERSON himself had come to GPE airport to see the applicant off .

The applicant stated that he had nothing further on which to base his request for recognition of his refugee status . He feared that , if returned to GPE , he would be imprisoned and made to tell the authorities everything he knew about the GPE , after which he would be executed .

The Mujahedin are an organisation outlawed in GPE . It follows a NORP ideology and is opposed to the present NORP government .

On DATE the Deputy Minister of ORG gave a decision refusing the applicant ’s applications . Firstly , he did not consider it credible that the applicant had ever been involved in the activities of the NORP , given that he had never held a party card and was unable to explain the code - like slogans which he had allegedly written on walls . The applicant ’s participation in the demonstration in PERSON on DATE was in itself not decisive , in view , especially , of the large number of participants and the fact that the applicant was not among its leaders . Secondly , the applicant had been able to return to his home and remain there in perfect safety at least until DATE ; if the NORP authorities had wanted to prosecute him they would presumably have arrested him immediately . Thirdly , the applicant had left GPE travelling under his own name and on a valid passport which was checked by the authorities at his departure . In view of these circumstances the applicant ’s application for recognition of his refugee status was manifestly ill - founded . Finally , no cogent reasons of a humanitarian nature to grant the applicant a residence permit had been suggested , nor were any such reasons apparent .

The applicant lodged an objection ( bezwaarschrift ) to the Deputy Minister against this decision . In so far as it was directed against the refusal of recognition of his refugee status , against which no objection was possible , the applicant ’s objection was transmitted to ORG of The Hague to be dealt with on the basis that it constituted an appeal .

The applicant also applied directly to the President of ORG of GPE for an interim measure consisting of a decision preventing his expulsion pending the further proceedings .

A single - judge chamber of ORG of The Hague , sitting in GPE , dealt with all CARDINAL of the remedies instituted by the applicant – the objection against the refusal of a residence permit , the appeal against the refusal of recognition of his refugee status , and the application for an interim measure – together . A hearing was held on DATE . The applicant had not been expelled in the meanwhile .

ORG gave a decision on DATE . It held that the applicant ’s story was not credible , and in so far as it was true , insufficient in any case to grant him recognition of his refugee status . The applicant was not able to provide any information at all about the Mujahedin DATE an organisation which , in any event , was active mostly outside GPE DATE , he had never even seen a party card and could not state whether other members had such a card or not , and he was unaware of the meaning of the slogans he had allegedly written on walls ; on these grounds it was held unlikely that he had been a member of that organisation . Moreover , the slogans were allegedly intelligible only for a select group , and the applicant had never been arrested in connection with his activities . That H. might betray the applicant was no more than a supposition and had not been substantiated . In so far as the applicant ’s fears were based on his participation in the demonstration in PERSON , it was noted that the applicant had not been able to substantiate his allegation that the authorities were aware of it , and he had moreover not found it necessary to flee until DATE . He had , moreover , been able to remain at his own home all that time . The objection , the appeal and the application for an interim measure were therefore all dismissed .


The applicant is an NORP national , born in DATE and living in PERSON . She is represented before the Court by PERSON PERSON , a lawyer practising in PERSON .

A.

On DATE criminal proceedings were opened against the applicant and her husband , GPE , respectively , on suspicion of their having brought into circulation large amounts of narcotic drugs ( GPE grosser Mengen Suchtgift ) . On CARDINAL DATE the investigating judge discontinued the proceedings against the applicant . He noted that the applicant had denied being involved in any criminal act . As GPE had availed himself of the right not to give evidence against his wife ( PERSON ) , it was unlikely that the applicant ’s defence would be disproved .

On DATE the ORG convicted GPE amongst others of the above charges . In its reasoning , the court , referring to statements made by GPE , noted several times that the applicant had contributed to the commission of the offence at issue .

Having regard to the above judgment , ORG ) requested the re - opening of the proceedings against the applicant on DATE . ORG noted that GPE had previously availed himself of the right not to give evidence against his wife . His statements in the proceedings before ORG therefore constituted new evidence .

On DATE ORG ( Ratskammer ) of FAC ( PERSON für PERSON ) granted the re - opening request .

On DATE the applicant was arrested . Subsequently , the investigating judge ordered her detention on remand , finding that there was a suspicion of her having committed the above offence , as well as a danger of absconding . On DATE she was released on bail .

On DATE ORG ( Oberlandesgericht ) quashed the order to re - open the proceedings and referred the case back to FAC . It found that the latter should have carried out further investigations into the precise contents of GPE ’s statements before ORG . On DATE ORG of the Graz Regional Court again decided to re - open the proceedings . The applicant ’s appeal against this decision was dismissed by ORG on CARDINAL DATE . She was finally acquitted on DATE .

On DATE the applicant filed an action claiming compensation for unlawful detention under section CARDINAL § CARDINAL ( a ) of the Compensation ( Criminal Proceedings ) Act DATE ( Strafrechtliches Entschädigungsgesetz ) . She argued that her detention DATE and DATE had been unlawful as she had been arrested before the order to re - open the criminal proceedings had become final .

On DATE ORG granted the applicant ’s action , finding that she was entitled to compensation . It held that , as a general rule , arrest and detention of a suspect could lawfully be ordered even before the re - opening order became final as the appeal against it had no suspensive effect . The investigating judge was bound by the order to reopen the proceedings . Furthermore , ORG noted that , at the time the applicant ’s detention was ordered , there was a reasonable suspicion against her as GPE had incriminated her in the proceedings before ORG . Having regard to the sentence she risked incurring , namely one to DATE imprisonment , and to the fact that she was unemployed at that time and not well integrated in society , the court also found that at that time a danger of absconding had properly been assumed by the investigating judge . However , it followed from the decision of CARDINAL DATE that the order to re - open the proceedings had been premature and therefore unlawful . The court accordingly concluded that the applicant ’s detention , being based on that defective order , had likewise been unlawful .

On DATE ORG ( Oberster Gerichtshof ) allowed the appeal of ORG and dismissed the applicant ’s action . It noted that the order to re - open proceedings which had been discontinued meant that they were resumed at the stage of the preliminary investigation . The re - opening order served as a legal basis for the continuation of the proceedings and also for the suspect ’s arrest and detention , even before it became final , as the appeal against it did not have suspensive effect . The investigating judge was bound by that order and had no competence to review its lawfulness . The fact that , in the present case , the order had later been quashed by the appellate court did not retrospectively render unlawful the applicant ’s detention , which had duly been based on a reasonable suspicion and the danger of absconding . The decision was served on CARDINAL DATE .

B. Relevant domestic law

The relevant provisions of LAW ) , in the version in force in DATE , provided as follows :

According to section CARDINAL , ORG of the competent criminal court could , upon ORG request , re - open proceedings against a specific suspect which had been discontinued , if criminal liability for the offence had not become statute - barred and new evidence was adduced which appeared likely to lead to the suspect ’s conviction ( paragraph CARDINAL ) . An appeal against ORG decision could be lodged with ORG ( paragraph CARDINAL ) .

As section CARDINAL was silent on the question whether or not such an appeal had suspensive effect , the general rule laid down in CARDINAL LAW applied , namely that an appeal against the decision of ORG had no suspensive effect .


Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

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

On DATE the applicant was arrested under section CARDINAL of LAW DATE on suspicion of rape of the complainant at her home in DATE . A police officer ( an officer of PERSON ) cautioned him to the effect that he was not obliged to speak but anything he might say might be given in evidence . He was taken to a police station where he was informed by the police that they had information that he had been involved in other sexual offences against the same complainant . The applicant denied any involvement in the alleged offences .

A police officer asked the applicant whether he would provide a sample of his blood and the applicant agreed . The sample was taken in the police station by a medical doctor with the consent of the applicant . The applicant was released from custody . He was then charged with CARDINAL sexual offences contrary to , inter alia , LAW DATE against the complainant . Those offences took place over a period of DATE ) while the complainant was DATE . The applicant did not dispute during his trial ( see below ) that he had provided the sample voluntarily but he argued that he had not been cautioned about the use that could be made of the sample . The trial judge found that he had been given the appropriate caution ( that he was not obliged to give any sample but that any tests carried out on the blood sample might be admitted in evidence against him ) and that he had fully understood it . It was not disputed that the sample had been taken under the common law and not pursuant to ORG Forensic Evidence ) Act , DATE ( “ the DATE LAW ) .

NORP In DATE he was re - arrested and returned for trial before ORG ( “ ORG ” ) . His trial began on DATE .

The trial judge tried , as a preliminary issue in the absence of the jury , the admissibility of the DNA evidence drawn from the blood sample . The applicant had argued that he had not been properly cautioned and that the sample had been unlawfully taken because the common law power , on which the police relied , had been ousted by LAW . The trial judge heard oral evidence from relevant police officers , the applicant and the relevant doctor : the trial judge found that the applicant had been cautioned by the police ( that he was not required to provide a sample but that , if he did so , the sample could be analysed and the results admitted against him at trial ) and that he had understood the caution . The trial judge noted that , having given a sample , the applicant had then signed a statement , after he had consulted his solicitor , in which he accepted that he had volunteered the sample after such a caution . The trial judge concluded that he had been properly cautioned prior to giving the sample . He also found that the common law power to obtain a blood sample remained and co - existed alongside that of LAW so that the common law was a valid legal basis for the taking of the voluntary blood sample . The trial judge , in his ruling admitting the evidence , did so principally on the basis of section CARDINAL(CARDINAL ) of the DATE Act : it stated that the powers conferred on the police under LAW were without prejudice to other powers exercised by them which meant that the power of the police to invite persons to voluntarily provide a blood sample applied in this case and was unaffected by the provisions of LAW .

The complainant did not identify the applicant in her evidence but stated that the offences had been committed by the same man since , inter alia , the perpetrator referred to earlier incidents when later assaulting her . The DNA evidence was key : the prosecution ’s case was that the DNA evidence linked the applicant to CARDINAL of the offences ( DATE and DATE ) and , if the jury were to find that the DNA evidence established his guilt for those CARDINAL offences , it was also entitled to conclude that the same person committed all or any one of the other offences . The trial ended on DATE when the applicant was convicted by jury on CARDINAL counts of rape , attempted rape , indecent assault or sexual assault from DATE . In DATE he was sentenced to concurrent terms of CARDINAL years’ imprisonment .

On DATE the applicant applied for leave to appeal to the ORG mainly contesting the lawfulness of the blood sample arguing that the only lawful basis for it being obtained , retained and used was LAW . Of the CARDINAL grounds of appeal , the first and last referred to the applicant ’s constitutional rights : that the trial judge had erred in finding that the sample had been lawfully taken under the common law and thus failed to vindicate his constitutional right to bodily integrity ; and that the police had failed to inform the applicant that his sample would be used to investigate offences other than that relating to DATE contrary to his rights to bodily integrity , to privacy , not to incriminate himself and to fair procedures .

His appeal to the ORG was heard on CARDINAL and DATE . Further submissions were requested and filed in DATE . On DATE he was released from prison .

By judgment of DATE the ORG rejected his appeal . It reviewed in some detail and confirmed the trial court ’s factual findings as regards , inter alia , the caution given to the applicant prior to giving the sample . It also underlined the legality under the common law of collecting forensic evidence on a voluntary basis from person in custody :

“ While the conduct of criminal investigations by the [ police ] must be carried out within the ambit of the law and in accordance with the law , many of the procedures which they adopt may not require the exercise of powers expressly conferred by statute . The interviewing and taking of statements from witnesses to a crime , the entry upon the scene of a crime , its examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on the basis of the consent and cooperation of the citizens concerned . ... An example would be where a householder permits a [ police officer ] to enter or enter and search premises without the need for a search warrant .

Cooperating citizens may willingly provide the [ police ] with forensic evidence such as fingerprints , clothing or blood samples to assist them in their inquiries . A rape victim may willingly provide a sample of pubic hair so that the [ police ] may determine whether it matches a pubic hair discovered in the course of their investigations in circumstances which , if matched , may implicate a suspect . Of course the gathering of such evidence and its use at a criminal trial from persons , who at the trial have the status of witnesses rather than that of an accused , is rarely a source of controversy . ... Inevitably , ... the obtaining of forensic evidence from persons in custody may often be a source of legal controversy at a trial and subject to particular scrutiny as to its lawfulness and its voluntary nature . ... It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial provided that it was obtained voluntarily and with the full consent of the person in custody . Provided consent is fully and voluntarily given and the person in custody is of full age and not otherwise suffering from any legal or other incapacity , they may give a forensic sample , including in response to a [ police ] PERSON request , and the [ police ] may take it or receive it . That is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent , as such , on the existence of express statutory powers to collect such voluntarily provided forensic evidence . In short , it is not unlawful to take voluntarily provided forensic samples from persons in custody . ...

It would indeed be extraordinary if [ parliament ] contemplated that any forensic sample freely and voluntarily provided by a person in custody and then forensically examined by the [ police ] which was lawful before the passing of the LAW should be considered unlawful after the passing of the LAW without any express provision to that effect , even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused . ”

The ORG went on to find that LAW created a statutory regime distinct from the common law and , further , that that regime did not have the effect of abolishing the existing common law power . Both legal bases , statutory and common law , subsisted . LAW extended existing law ; it did not abrogate it . The DNA evidence , drawn from the sample taken under the common law , was admissible . Finally , the ORG did not consider tenable the factual presumption underlying the CARDINALst ground of appeal because the applicant had never disputed that he had given the sample voluntarily and it was the uncontested evidence of the prosecution that the police had informed him that they were investigating , not only a sexual offence committed against the complainant in DATE , but also his involment in other sexual offences against her .

By perfected order ( not submitted ) of the ORG of CARDINAL DATE , the ORG gave leave to appeal pursuant to LAW DATE on a point of law of general public importance desirable in the public interest to be examined by ORG . ORG judgments recorded the text of the question certified by the ORG as follows :

“ Is it lawful for a member of ORG , when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis , to do so without having invoked the provisions of LAW ( LAW , DATE ? ”

By Notice of Motion dated DATE ( grounded upon an affidavit of the same date and a Notice of Appeal dated DATE ) , the applicant requested , pursuant to section CARDINAL of ORG ( LAW DATE , leave to add CARDINAL grounds of appeal for ORG consideration . The first CARDINAL and last grounds read as follows :

“ CARDINAL . That ORG erred in law or erred on a question of mixed fact and law in holding that LAW of the [ CARDINAL LAW ] did not preclude [ the police ] from taking a voluntary forensic sample from a person in custody without invoking the provisions of the said LAW and that the said section of LAW was designed to enable [ the police ] to obtain such forensic samples which might otherwise be refused and to provide for admissibility of such evidence arising from the refusal , and that the neglect , failure or refusal by the [ police ] to take the said sample under the aegis of the said LAW was ultra vires , contrary to LAW Article CARDINAL.CARDINAL.CARDINAL and CARDINAL of the LAW .

That the learned trial judge erred in law and on the facts in ruling that the blood sample from the Accused for the purpose of DNA testing was admissible in evidence , that it was lawfully taken and/or did not require to be taken pursuant to ORG Forensic Evidence ) Act DATE , and thereby failed to vindicate the Accused ’s Constitutional Rights to his bodily integrity . ...

On DATE ORG rejected ( by a majority ) the appeal . All judges agreed that it had been long accepted that the police could , under the common law , obtain information and samples from a person so long as that person ’s consent was given voluntarily . Indeed , even the judge who dissented on the question of the effect of the DATE Act noted that the applicant had accepted that there had been a power to take samples by consent under the common law , he referred to the ORG judgment on the issue cited at paragraph CARDINAL above and he added :

“ CARDINAL . Neither the inviolability of the dwelling nor the right to bodily integrity of the human individual , though these are personal rights which enjoy constitutional protection , prevents individuals from agreeing to provide access to the CARDINAL and samples from the other . Most citizens will perceive it as their duty to assist in the investigation of crime . Many will wish to eliminate themselves from suspicion ; many others will wish to assist in finding the perpetrator of a crime . Where evidence is thus freely and voluntarily provided by a person at liberty , no principle of the criminal law prevents material thus gained in the course of police investigation from becoming the subject - matter of evidence at a criminal trial against the provider . ”

ORG found that the DATE Act did not deprive the police of their ability to take samples under the common law since both the statutory and common law schemes for taking samples co - existed . It was satisfied that the matter in issue was not the application of a policy of ORG ( “ ORG ” ) , ( whereby he had advised that , after the coming into force of the LAW , the police could still take samples that were provided voluntarily and on consent ) or whether that policy was appropriate or not . Rather , the matter in issue was a question of law . The advice of the ORG was an interpretation of LAW . The issue was whether that interpretation was correct . ORG conducted a detailed construction of the DATE Act in order to ascertain the intention of the legislature . It noted that the common law approach to obtaining information by consent was well established . It was a fundamental aspect of the approach to investigating crime . It was a practical approach . Any alteration to such a fundamental aspect of criminal investigation would require a clear expression of an intention to change . No such approach was apparent from the words of the LAW .

It further noted that section CARDINAL(CARDINAL ) of LAW expressly stated that the powers conferred by that section were without prejudice to any other powers exercisable by a member of ORG : it thereby expressly retained powers of ORG . ORG went on to note the detrimental consequences to a ‘ person’ under LAW and it gave , as an example , the ‘ inference’ which might be raised at the trial , and upon which a jury might rely for corroboration . There was also the possibility of the offence of obstruction under section CARDINAL(CARDINAL ) of LAW . No such detrimental consequences arose under the common law . Therefore it considered that to apply the statutory scheme in the absence of a clear mandatory requirement under statute would be a step too far . ORG was satisfied that the ORG did not intend to exclude the common law when it passed LAW and that the common law might also be applied to a person detained or in prison as referred to in LAW .

Finally , ORG noted CARDINAL other grounds of appeal ( Nos . CARDINAL and DATE ) which the applicant ’s counsel had highlighted in his oral submissions and which it rejected .

One judge dissented on the effect of LAW and considered that , when a person was in custody , it would be absurd , “ inconsistent and potentially unfair ” to ignore the statutory regime which he considered the Government to have intended would apply in such circumstances . He regarded the first CARDINAL grounds of the applicant ’s appeal as concerning the question of the “ admissibility of the evidence ” . He found that the failure to apply the CARDINAL LAW was not an interference with the constitutional rights of the applicant since he had freely agreed to provide a sample of his blood . He also considered that this failure to follow the statutory regime did not impact on the admissibility of the DNA evidence : while the blood sample had been obtained unlawfully , it had led to the production of objective material evidence linking the applicant to the offences so that “ no breach of a constitutional right was involved ” .

The LAW

Article CARDINAL concerns the constitution and powers of ORG ( the ORG ) and , in so far as relevant , provides as follows :

“ CARDINAL.CARDINAL The sole and exclusive power of making laws for the ORG is hereby vested in the ORG : no other legislative authority has power to make laws for the ORG . ”

Article CARDINAL is entitled “ Personal Rights ” and , in so far as relevant , reads as follows :

“ CARDINAL The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .

CARDINAL The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name , and property rights of every citizen . ”

Section CARDINAL(CARDINAL ) of the DATE LAW as follows :

“ Where a member of the Garda Síochána arrests without warrant a person whom he , with reasonable cause , suspects of having committed an offence to which this section applies , that person may be taken to and detained in a Garda ORG station for such period as is authorised by this section if the member of ORG in charge of the station to which he is taken on arrest has at the time of that person ’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence . ”

The police may obtain samples on a voluntary basis from persons in custody under the common law . There are no specific rules laid which regulate the taking , use , retention or destruction of such samples . No inferences may be drawn from a refusal to provide a sample .

The DATE Act also permits the taking of samples from persons in custody . It provides for authorisation to request samples on a consent basis , it allows the drawing of inferences in case of a refusal and it governs the use of samples pre - trial and post - trial including destruction .

NORP In DATE a circular of ORG ( “ ORG ” ) advised that , after the coming into force of LAW , the police could still take samples that were provided voluntarily and on consent . If consent was obtained , the sample was taken under common law rules . If the person refused , a written consent was requested . If obtained , the sample was taken under LAW and , if refused , the provisions of LAW on negative inferences could come into play .

The long title to the DATE LAW states it to be “ An LAW to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences ” . It came into force on DATE and it applies only to persons in custody under LAW and under LAW .

Section CARDINAL provides the primary power to take samples :

“ ( CARDINAL ) Subject to the provisions of subsections ( CARDINAL ) to ( CARDINAL) ... , where a person is in custody ... , a member of ORG may take , or cause to be taken , from that person for the purpose of forensic testing all or any of the following samples , namely -

( a ) a sample of -

( i ) blood , ...

( CARDINAL ) A sample may be taken under this section only if -

( a ) a member of ORG not below the rank of superintendent authorises it to be taken , and

( b ) in the case of a sample mentioned in subparagraph ( i ) , ... of paragraph ( a ) of subsection ( CARDINAL ) of this section ... the appropriate consent has been given in writing . ...

( CARDINAL ) Before a member of ORG takes , or causes to be taken , a sample under subsection ( CARDINAL ) of this section , or seeks the consent of the person from whom the sample is required to the taking of such a sample , the member shall inform the person-

( a ) of the nature of the offence in which it is suspected that that person has been involved ,

( b ) that an authorisation has been given under subsection ( CARDINAL)(a ) of this section and of the grounds on which it has been given , and

( c ) that the results of any tests on the sample may be given in evidence in any proceedings . ...

( CARDINAL ) The powers conferred by this section are without prejudice to any other powers exercisable by a member of ORG . ”

According to LAW , where consent required under LAW is refused without good cause following an appropriate caution , then a trial court may draw inferences from that refusal and the refusal with such inferences can amount to corroboration of any evidence in relation to which the refusal is material . LAW provides for the destruction of records and samples where proceedings are not instituted within DATE of taking the sample or where the person is acquitted or discharged or the proceedings are discontinued .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . DATE he worked as a judge at ORG ( Amtsgericht ) .

On DATE ORG issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed CARDINAL criminal offences , including CARDINAL counts of fraud , CARDINAL count of instigation to falsification of official records , CARDINAL count of bodily injury , CARDINAL count of perversion of justice in connection with judicial bribery , CARDINAL count of illegal arms trade and CARDINAL counts of having failed to pay contributions to the social security on behalf of a company ’s employees . According to the preliminary investigations , the applicant was suspected of having been involved in a number of fraudulent real - estate transactions . He was further suspected of having , in his capacity as a ORG Judge , unlawfully released CARDINAL of his suspected co - offenders from detention on remand .

On DATE the applicant was arrested and subsequently detained on remand .

On DATE ORG brought an indictment against the applicant , which had an overall length of CARDINAL pages .

The hearing before ORG began on DATE and ended on DATE . During that time , the trial took place on DATE during which numerous witnesses were heard .

On DATE and DATE , DATE , DATE and DATE and DATE ORG upheld the arrest warrant and ordered the applicant ’s continued detention on remand .

On DATE , DATE , DATE and DATE , DATE and DATE and DATE the Schleswig - Holstein Court of Appeal ( Oberlandesgericht ) rejected the applicant ’s complaints against the continuation of his detention on remand .

On DATE , in a reasoned decision of a total length of CARDINAL pages , ORG found that the preliminary examination had confirmed a strong suspicion against the applicant . This assessment had been based on numerous witness statements , which were corroborated by numerous documents and further circumstantial evidence .

ORG considered that there was a risk of collusion ( GPE ) within the meaning of section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung , see relevant domestic law below ) , on the ground that if the applicant was released , he might try to influence other accomplices or witnesses . This was corroborated by the strong suspicion that the applicant had , in the past , built up a smoke screen which was aimed at preventing possible controls by hiding the real facts . The applicant was suspected of having employed a front man ( ORG ) in order to disguise his own role in the real estate business . According to the results of the preliminary investigations , there was specific evidence that the applicant and his co - offenders had , in the past , intimidated both business partners and accomplices by use of threats and violence . There were further indications that the applicant had influenced witnesses before his arrest .

On DATE ORG ordered the applicant ’s continued detention . It found that the reasons to suspect him of the alleged crimes , as laid down in the arrest warrant , persisted . While the risk of collusion did not persist , as the evidence was sufficiently secured by ORG preliminary investigations , there was the danger of the applicant ’s absconding . In case of his conviction , the applicant would have to face a severe prison sentence . Furthermore , he had been disallowed part of his income in disciplinary proceedings . In case of his conviction he would risk removal from office and the loss of his pension claims , which would mean the destruction of his social , professional and economical basis . As the applicant ’s children were already grown up , his social bonds were not of such a weight as to prevent him from absconding . On the other hand , the applicant had declared that his wife possessed considerable property . Under these circumstances , there was no less intrusive measure possible to prevent the applicant from absconding than the further continuation of his detention on remand .

Also on DATE , ORG ordered the continuation of the detention on remand . Referring to its earlier decision of DATE , that court found that the risk of collusion persisted . It further found that the duration of the detention was justified by the exceptional extent of the investigations .

On DATE ORG rejected the applicant ’s fresh complaint against his continued detention . Referring to its decision of DATE and examining the new arguments put forward by the applicant , it found that the grounds of suspicion against the applicant persisted . ORG further maintained that the danger of collusion persisted , as the raising of evidence before ORG had not yet considerably advanced .

Furthermore , the danger of absconding persisted , as the applicant tried to evade the proceedings by rendering himself unfit to plead . In this respect , ORG referred to the Public Prosecutors submissions of DATE , which read as follows :

“ In this respect the Chamber [ of ORG ] has rightly pointed out that the accused , on DATE , had rendered himself unfit to plead and that he , on another occasion , refused to take his medication , which led to similar results . Furthermore , the ORG could take into consideration that the accused ’s and his lawyer ’s behaviour did not give the impression that the accused was interested in a swift termination of the proceedings . This is confirmed by the fact that , during DATE of hearings , the accused respectively his lawyer had lodged a total of CARDINAL motions for bias against the court , which have so far all been rejected as being unfounded . It is therefore acceptable if the ORG deduces that there is the concrete danger that the accused would try to render himself unfit to plead if he were released from the supervision of detention on remand ... ”

ORG followed these submissions .

On DATE the applicant submitted a medical attestation according to which it was indicated to discontinue treatment with antidepressant medicine , as his state of health had stabilised and requested , once again , to be released from detention .

On DATE ORG rejected the applicant ’s fresh request inter alia for the following reasons :

“ As the ORG has just pointed out in its decision of DATE on the applicant ’s CARDINAL motion for bias , the accused and his defendants pursue a procedural strategy which is primarily aimed at obstructing the proceedings . Accordingly , the ORG continues to expect that the applicant , if released , would do everything to evade the proceedings . It is obvious that such can not only be done by overdosing or refusing prescribed medication . Accordingly , the medical attestation ... was not fit to disprove the ORG ’s expectations . The danger that the accused would abscond from the proceedings had been further increased by the fact that the evidence presented so far has not yielded any facts in the applicant ’s favour ... ”

In his complaint , the applicant contested that he had put himself into a state of being unfit to plead and that there had not been any evidence in his favour . Furthermore , ORG had failed sufficiently to expedite the proceedings .

On DATE ORG rejected the applicant ’s complaint . Referring to its former decisions and examining the new arguments put forward by the applicant , that court confirmed that a strong suspicion against the applicant persisted and that there remained the risk of the applicant ’s absconding and of collusion . With regard to the conduct of ORG , ORG found as follows :

“ There is no indication that ORG failed sufficiently to expedite the proceedings , as prescribed by LAW sentence CARDINAL of the Convention . The latter provides that a detained person is entitled to trial within a reasonable time . As ORG correctly pointed out , the proposed dates for hearings could not be used because either the accused or his counsel were unable to attend . ”

On DATE the applicant lodged a further complaint against the arrest warrant , alleging , inter alia , that ORG had failed sufficiently to expedite the proceedings . He complained , in particular , that CARDINAL dates for hearings had been cancelled because of a judge ’s holidays and a lay judge ’s attendance of a funeral .

On DATE ORG rejected the complaint , pointing out that the cancellation of the hearings had been justified and that the ORG had offered alternative dates for hearings , which could not take place as the accused ’s counsel had been unable to attend .

On DATE ORG confirmed ORG decision .

On DATE the applicant lodged a further request to quash the arrest warrant . Referring to the ORG ’s judgment in the case of GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALXI ) , the applicant maintained that only compelling reasons could justify his detention on remand for a period of DATE . According to the applicant ’s allegations , the domestic courts had failed to conduct the proceedings with due diligence .

The applicant maintained that there had never been a strong suspicion against him . Furthermore , there had never been facts confirming a risk of collusion . He further maintained that there had not been any danger of his absconding , as he entertained close contacts to his wife and to his CARDINAL grown - up children . He pointed out that he had at no occasion attempted to evade . Finally , the applicant maintained that ORG had failed to hold hearings at all available dates . In this respect , he pointed out that the chamber had heard another criminal case on DATE from DATE to DATE .

On DATE ORG rejected the applicant ’s motion . It found , first , that there existed the risk that the applicant might attempt to make himself unfit to plead by abuse of medication . In this respect , ORG stated that the applicant ’s medical condition on DATE had necessitated extensive medical treatment in order to restore his fitness to plead . A blood examination had revealed a toxic overdose of medication . The strong suspicion against the applicant had been confirmed by the evidence taken .

With respect to the applicant ’s complaint about an alleged lack of diligence , ORG pointed out that , until DATE , it had held hearings on DATE . The parallel proceedings had been conducted with a partially differing composition of the ORG .

ORG further maintained that the applicant had delayed the taking of evidence . A large part of the length of the proceedings was imputable to the applicant ’s own conduct .

On DATE the ORG rejected the applicant ’s complaint . Referring to ORG comments in the complaint proceedings and to its previous decisions of CARDINAL DATE , DATE and DATE , DATE and DATE , ORG confirmed that the strong suspicion that the applicant had committed the offences he was accused of persisted and that he was likely to tamper with evidence or abscond if released . With regard to the applicant ’s complaint under LAW , ORG found that the domestic authorities had displayed special diligence given the complexity of the case . They had expedited the investigations following the applicant ’s arrest in DATE and continuously held hearings in the applicant ’s case since DATE . The chamber had generally held hearings at DATE . There was no indication that ORG could have considerably expedited the proceedings .

ORG finally found the applicant ’s continued detention to be proportionate , given both the conviction the applicant was likely to face and the general interest in the integrity of the judicial system .

On DATE ORG refused to admit the applicant ’s constitutional complaint for lack of prospect of success .

On DATE the further execution of the arrest warrant was suspended ( GPE ) and the applicant released .

On DATE the applicant , who was at that time detained on remand , wrote a letter to the journalist PERSON He alleged that a prosecution witness had stated during a public hearing that he had been induced by ORG to give false evidence against the applicant . In return , ORG had discontinued prosecution in CARDINAL criminal proceedings directed against that witness . The applicant added that ORG actions had been unfair ( “ unlautere NORP ” ) .

On DATE , the applicant wrote another letter to the journalist PERSON in which he repeated his allegations . He added that ORG had refused to hear the respective witness on these allegations .

On DATE ORG ordered under LAW of LAW in conjunction with rule CARDINAL § CARDINAL , no . CARDINAL , of the Rules on the Execution of Detention on Remand ( Untersuchungshaftvollzugsordnung , see relevant domestic law below ) that the CARDINAL letters should not be delivered , but returned to the applicant . It found that both letters contained allegations of prosecution of innocent persons and defamatory statements directed against ORG and DATE with respect to the second letter DATE also against ORG .

On DATE the applicant lodged a complaint . He maintained , in particular , that his allegations had been true .

On DATE the ORG rejected the applicant ’s complaint . It found that the content of the letters had been designed to jeopardise the purpose of detention on remand ( section QUANTITY of LAW ) , as the applicant had accused ORG of having employed illegal means . The transmission of the letters was also apt to disturb the prison order , as it could set an example for other prisoners . ORG further pointed out that it was not established that the applicant ’s allegation had been true . The applicant was in a position to pursue his interests by the means provided to him in the criminal proceedings .

On DATE ORG refused to admit the applicant ’s complaint .

On DATE ORG sentenced the applicant to DATE and QUANTITY months’ imprisonment .

The admissibility of detention on remand is governed by LAW ) , the relevant provisions of which read as follows :

Section CARDINAL

“ ( CARDINAL ) Detention on remand may be ordered against the accused if he is strongly suspected of the offence and if there is a ground for arrest . It may not be ordered if it is disproportionate to the significance of the case or to the penalty ... likely to be imposed .

( CARDINAL ) A ground for arrest shall exist if on the basis of certain facts :

it is established that the accused has fled or is hiding ;

considering the circumstances of the individual case , there is a risk that the accused will evade the criminal proceedings ( risk of flight ) ; or

the accused ’s conduct gives rise to the strong suspicion that he will

a ) destroy , alter , remove , suppress , or falsify evidence ,

b ) improperly influence co - accused , witnesses , or experts , or

c ) cause others to do so ,

and if , therefore , the danger exists that establishment of the truth will be made more difficult ( risk of collusion , GPE ) .

Section CARDINAL

( CARDINAL ) Only such restrictions may be imposed on the arrested person as are required by the purpose of detention on remand or by the need for order in the prison .

Rule CARDINAL § CARDINAL of the Rules on ORG ) provides that a judge is entitled to stop a letter , if the delivery of that letter is suited to jeopardise the prison order . According to rule CARDINAL § CARDINAL , no . CARDINAL , this can inter alia be the case if the delivery of the letter – in the knowledge of its content - would constitute an offence .


Pecuniary and non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is a company incorporated under the laws of GPE .

In DATE the Moldovan Parliament enacted legislation for the privatisation of certain items of ORG property , including the “ LOC ” hotel . On DATE the applicant company was declared the successful bidder in the auction held for the sale of the hotel . It paid CARDINAL Moldovan lei ( MDL ) ( MONEY at the time ) . On DATE the applicant company purchased from the PERSON municipality the QUANTITY of land on which the hotel was situated , for MDL CARDINAL ( CARDINAL ( ORG ) at the time ) .

According to the applicant company , in DATE following the purchase of the hotel large sums of money were spent on its renovation and the purchase of new furnishings and equipment .

On DATE ORG initiated court proceedings , seeking the annulment of the hotel ’s privatisation and repayment to the applicant company of the price paid . On DATE ORG accepted ORG request and annulled the privatisation of the hotel . The court ordered the return of MDL CARDINAL to the applicant company and the return of the hotel to the ORG .

The applicant company ’s appeal was left without examination by ORG on DATE because of a failure to pay court fees in full .

In separate proceedings , which ended with a judgment of ORG on DATE , the sale of the land underlying the hotel was also annulled .

The judgment of DATE was fully enforced in instalments in the period DATE and DATE . The sum of MDL CARDINAL was the equivalent of approximately EUR CARDINAL in DATE .

NORP The applicant company initiated court proceedings against the Government , claiming compensation for damage caused to it as a bona fide buyer of the hotel . It paid MDL CARDINAL in court fees . On DATE ORG rejected these claims . On DATE ORG dismissed the applicant company ’s request for a court fee waiver owing to its inability to pay . It informed the applicant company that the appeal could not be examined on account of the failure to pay the court fees in full . The new time - limit for paying the court fees was DATE ; the applicant company did not meet this deadline .

ORG The applicant company hired an expert to make a valuation of the current market price of the hotel and underlying land . The expert explained that he was able to make the valuation only if he had access to the hotel itself and all its documents , including documents from the ORG - controlled real - estate register . Since the hotel is currently owned by the ORG , on DATE the applicant company sought the assistance of ORG office in ensuring the expert ’s access to the hotel and the relevant documents . In a letter dated DATE ORG informed the applicant company that it should contact the hotel ’s administration and the real - estate registry .

On DATE the applicant company asked the hotel ’s administration to allow the expert access to the hotel . In another letter on DATE , the applicant company asked the real - estate registry to allow its expert access to the relevant documents . In a letter dated DATE the hotel ’s administration informed the applicant company that permission from the Government was necessary in order to ensure access to the hotel . In a letter dated CARDINAL DATE the real - estate registry informed the applicant company that it was not authorised to grant access to the requested documents , since it “ did not offer such a service ” .

On DATE ORG made an attachment order , prohibiting the disposal of the hotel . On DATE , the applicant company asked the Government to allow its expert access to the hotel . It received no answer . On DATE the applicant company informed ORG about the situation and asked for his assistance in obtaining access to the hotel and the relevant documents . It also noted that the refusal to grant such access might be considered as a violation of its rights guaranteed by LAW . The applicant company did not receive a reply to this letter .

On DATE the applicant company lodged with ORG a request for the annulment of the judgment of DATE and subsequent related judgments against it , referring to the principal judgment as a ground for its request . The applicant company also sought the attachment of the hotel ’s building , land and bank accounts pending examination of its request .

At the first hearing of DATE the parties were informed of a postponement of the hearing until DATE in view of a request by ORG . The applicant company asked for a copy of the request , which was refused . It then asked for access to the case - file and found no request from ORG , who had not been a party to any of the domestic proceedings in DATE and DATE .

Before the hearing of DATE , CARDINAL of the judges on the bench of ORG examining the case was replaced by another judge . During that hearing the Government ( plaintiff in the original domestic proceedings and current owner of the “ FAC ” hotel ) submitted its response to the applicant company ’s request of DATE . They considered , in particular , that awarding the applicant company compensation in the amount of EUR CARDINAL,CARDINAL.CARDINAL would constitute sufficient just satisfaction within the meaning of LAW .

Before the next hearing on DATE CARDINAL judges on the bench of ORG examining the case were replaced by other judges . The examination of the case started anew . On DATE the applicant company ’s lawyer examined the case file in order to determine the reasons for the CARDINAL replacements of judges in the case . He found no such explanation .

On DATE ORG annulled the judgments of DATE and DATE and of CARDINAL DATE against the applicant company ( see the facts of the principal judgment for more details ) , and ordered a full re - hearing by ORG . The proceedings are still pending before that court .

On DATE the ORG asked the parties to submit additional observations by DATE , limited to the issue of the value of the FAC hotel , and directed the Government to allow the applicant company access to the hotel and its documents . The applicant company ’s expert was then given access to the hotel and its documents .

The valuation submitted by the applicant company on DATE was prepared by an expert with CARDINAL years’ experience in intellectual property and business valuation and comprised CARDINAL pages and a number of annexes . The final value of the hotel ( MDL CARDINAL , approximately ORG CARDINAL ) was calculated by using CARDINAL separate methods of valuation .

On DATE the Government asked for an extension until DATE of the time - limit for submitting their valuation . However , they did not submit any observations by that date . They sent a “ preliminary report ” on DATE on the value of the FAC hotel . According to that “ preliminary report ” , made on DATE , the hotel was worth MDL CARDINAL ( EUR CARDINAL ) . The “ preliminary report ” included CARDINAL pages , CARDINAL of which were copies of licences held by the valuer , CARDINAL page listed the “ conditions and disclaimers ” concerning the limits of the valuer ’s liability and another described the name and address of the FAC hotel and the amount at which it had been valued . No calculations were included . At the date adoption of its judgment , the ORG had not received the final report of the valuer hired by the Government .

Article CARDINAL of the Civil Code reads :

“ ( CARDINAL ) Default interest is payable for delayed execution of pecuniary obligations . Default interest shall be PERCENT above the interest rate provided for in LAW refinancing interest rate ] unless the law or the contract provides otherwise . Proof that less damage has been incurred shall be admissible .

( CARDINAL ) NORP In non consumer - related situations default interest shall be PERCENT above the interest rate provided for in LAW unless the law or the contract provides otherwise . Proof that less damage has been incurred shall be inadmissible . ”