Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in DATE and lives in PERSON .

On DATE the applicant , a police officer at the material time , was arrested on suspicion of membership of a criminal association run by PERSON , another police officer , and participation in armed robberies . On the same date his house was allegedly searched without a warrant .

On DATE the applicant signed a waiver of his right to legal representation . On the same date he confessed to having participated in group assaults on families NORP and S. in DATE upon PERSON invitation . He also noted that he believed that the families were visited for collection of unpaid business debts in favour of third parties . According to the applicant , he notified the investigator that he was unable to see the record of his questioning as he had been suffering from eye cataracts .

On DATE the applicant was indicted . He signed the statement of indictment , having noted that he fully acknowledged his guilt and requested to be released from detention , since he needed in - patient treatment on account of his skin disease and eye cataracts , as well as surgery for the latter .

On DATE the applicant obtained access to an advocate . It is unclear , however , whether the advocate was present during the applicant ’s interrogation and indictment on that date .

Also on the same date the applicant was remanded in custody as a preventive measure . On various occasions the applicant appealed against this measure , in particular , referring to an urgent need to have eye surgery and in - patient treatment for other medical conditions . However his requests were rejected .

During the pre - trial investigation , the authorities questioned CARDINAL witnesses concerning over CARDINAL episodes of various crimes , carried out some CARDINAL reconstitutions of the crime scenes and ordered numerous expert assessments .

On DATE the investigation was completed and the applicant , along with CARDINAL other individuals charged for being involved in a criminal association membership , was committed for trial to ORG of GPE ( subsequently renamed ORG of GPE ( hereafter “ ORG ) .

On DATE , following familiarisation of the defendants with the case - file materials and completion of other procedural formalities , ORG held a preliminary hearing in the case and scheduled the trial for DATE .

On DATE the newspaper ORG published an article entitled “ Changelings with police epaulettes ” , featuring in particular an interview with PERSON . , the judge presiding over the applicant ’s case . The judge was quoted as saying that she was appalled by the audacious crimes committed by the defendants and their challenging conduct at court hearings .

Having held some CARDINAL hearings DATE , ORG adjourned the proceedings in connection with CARDINAL of the GPE request to ensure recording of the hearings with technical equipment which was unavailable .

On CARDINAL DATE ORG resumed consideration of the case and held some CARDINAL hearings in DATE .

The applicant alleged that on various occasions he and his co - accused had requested the removal of Judge PERSON . from the proceedings on various grounds , including lack of impartiality ; however , their requests had been rejected . The applicant did not provide copies of his requests for the removal of Judge PERSON . or the decisions taken following their consideration .

The Government alleged that the applicant had never lodged any requests for the removal of the judge during the trial . Such requests had been lodged only by CARDINAL of his co - defendants , A. K. , who had also requested on DATE that the above newspaper article be added to the case - file . Those requests had been dismissed as unsubstantiated .

During the trial , the applicant denied any encounter with the PERSON family . As regards the PERSON family , he acknowledged having visited them along with CARDINAL other defendants to collect the debt owed to a third party at PERSON request . He contended that he had been in the kitchen while his companions had spoken with the hosts , that the hostess had given them money voluntarily , and that he had been unaware of any coercion taking place . He further retracted his confessions given during the pre - trial investigation in the advocate ’s absence , alleging that at the material time he had been practically blind and unable to read the documents he was signing . He had signed the waiver of his right to be represented by an advocate under pressure from the investigator , who promised that in exchange for his cooperation he would be promptly released from custody to enable him to seek medical treatment .

On DATE ORG pronounced its judgment , the text of which was presented on CARDINAL pages and concerned over CARDINAL counts of various crimes , including robberies , a murder and assaults committed by CARDINAL defendants collectively and individually against numerous victims . By this judgment , the applicant was convicted of a criminal association membership and CARDINAL counts of armed robbery ( against the families NORP and S. ) . By way of evidence of his participation in the robberies , the court referred , primarily , to the confessional testimonies of his co - defendants , identifying him as their accomplice , and the testimonies of the members of the assaulted families given during pre - trial investigation and trial , in which they alleged to have recognised the applicant . The applicant ’s confessional statements were not referred to by the court in the text of its judgment . The court sentenced the applicant to CARDINAL years’ imprisonment , banned him from occupying certain posts for a DATE term and ordered the confiscation of his property .

In DATE and DATE the applicant , his lawyer , and his mother acting as his defence , submitted appeals in cassation against the applicant ’s conviction . They presented the same version of events as proposed by the applicant during his trial and contended that the court had misinterpreted facts and wrongly applied the law . They challenged the testimonies given by the applicant ’s co - defendants , alleging they had been given under duress , and testimonies given by the victims as ambiguous and unreliable . They further contended that all the evidence collected from the applicant in violation of his right to be legally represented should be excluded from the body of evidence . The appellants noted that immediately upon his arrest the applicant had informed the investigative authorities that he was almost blind and was unable to read the documents he was signing . The waiver of his right to be legally represented had not been genuine . On the contrary , the video - recording of the applicant ’s initial questioning showed that he requested the assistance of a lawyer , referring to his poor health and vulnerable state . Lastly , the appellants complained that the sentence imposed on the applicant was disproportionately severe , particular regard being had to his state of health and lengthy pre - trial detention in conditions incompatible with it .

On DATE the applicant ’s mother drafted a supplement to the above - mentioned appeals , in which she complained , inter alia , that Judge PERSON . had not been impartial , since , as it transpires from her interview to the ORG newspaper in DATE , she had had a preconceived notion of the applicant ’s guilt from the very beginning of the trial . The copy of this supplement contained in the case file bears no stamps or other evidence that it was admitted by the court for consideration or at least lodged with it .

On DATE ORG of GPE dismissed the applicant ’s and his representatives’ appeals in cassation , having found that the trial court had correctly assessed the evidence and applied the law and that there was no appearance of any procedural violations which could have affected the outcome of the case .

Prior to his arrest , the applicant had been diagnosed as suffering from immature cataracts in both eyes and neurodermatitis .

On DATE the applicant was placed in the Saky Temporary Detention Centre ( “ the ORG ” ) , where , according to him , he was held in inhuman conditions ( overcrowding , poor sanitary arrangements and risk of pressure from inmates because he was a policeman ) .

On DATE the applicant was transferred to the PERSON no . CARDINAL ORG - trial ORG ( “ the GPE ” ) .

Upon his arrival , the applicant was examined by the GPE medical staff and placed under dispensary supervision for immature aggravated cataracts in both eyes , diffused eczema , and chronic gastritis .

On DATE the applicant informed the Prosecutor of the ARC that he had started a hunger strike in protest against being denied the medical assistance he needed .

On DATE the applicant was examined by the medical committee of the ARC Semashko Hospital , which concluded that at the material time he was suffering from scabies , eczema , chronic prostatitis , nephroptosis , gastritis and reactive hepatitis . It further found that the applicant needed in - patient treatment in a specialised facility for his skin diseases and that his cataracts were mature and needed to be surgically removed after treatment of inflammatory processes .

On DATE another medical committee determined that the applicant was still suffering from eczema , gastritis and mature cataracts , for which he needed surgery .

On DATE the applicant was further examined by the head ophthalmologist of the ARC and it was recommended that eye surgery be performed promptly to prevent potential aggravations such as full loss of eyesight and eruption of the eyeballs . The applicant was further advised that in order for the surgery to be effective he needed first to obtain therapeutic inpatient treatment and be supervised by an ophthalmologist for DATE after the surgery .

On DATE ORG adjourned hearings to allow for the applicant ’s eye treatment .

On DATE the PERSON administration requested ORG to consider releasing the applicant from custody , because it was impossible to provide the therapeutic treatment he needed in the GPE . However , this request was not granted .

On DATE the applicant was taken to the eye clinic for surgery . However , having allegedly been advised by medical professionals that the success of the surgery was at risk because of his untreated skin inflammations , he refused to be operated on and returned to the GPE .

On DATE the PERSON administration petitioned for the applicant ’s release from detention , referring to the lack of necessary facilities in the GPE for the applicant ’s proper treatment and risk of permanent loss of eyesight .

On DATE the applicant was assigned the first ( most advanced ) category of invalidity on account of complete loss of eyesight .

On DATE the applicant was released from custody , as he had already served his sentence .

The relevant provisions of Articles CARDINAL and CARDINAL of the LAW of GPE concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of DATE in the case of NORP v. GPE ( no . CARDINAL , § CARDINAL ) .

NORP The relevant provisions of LAW GPE , as worded at the material time , read as follows :

“ The court , in the event there are grounds for it , shall take a separate ruling ( окрема ухвала ) , in which it shall draw the attention of the ORG bodies , public organisations or officials to the breach of the law established in the facts of case ...

A separate ruling may also be taken where the court reveals breaches of rights of citizens and other breaches of the law that took place during inquiry , pre - trial investigation or consideration of the case by a lower court .

The separate ruling must be acted upon as necessary and the court which issued the ruling notified of the results within DATE .

In the event that an official leaves the separate ruling without consideration , the measures laid down in Articles CARDINAL - CARDINAL of LAW of GPE shall be applied .

“ A suspect , an accused and a defendant in court may at any moment waive [ their right to be represented ] ...

The waiver may not be accepted : ...

CARDINAL ) NORP in cases concerning crimes by persons who , on account of their physical or mental disabilities ( muteness , deafness , blindness and other ) , can not exercise their right to defence by themselves ;

Articles CARDINAL , CARDINAL and CARDINAL of the Code provided that if the courts revealed such breaches of the law by the investigative authorities during pre - trial investigation , which could not be remedied at the trial stage , they were to remit the case back to the investigative authorities with instruction to address those breaches .

The relevant provisions of the Code concerning preventive measures pending trial are quoted in the judgment in the case of PERSON v. GPE , no . CARDINAL , § DATE , DATE .

The relevant parts of the above ruling read as follows :

“ ... DATE . LAW provides that everyone has the right to defend himself from accusation and to obtain legal assistance . Therefore , examining a criminal case , the court must , in the circumstances provided by law , ensure the defendant ’s right to defence .

... It shall be borne in mind that LAW CARDINAL of the LAW an accusation may not be based on presumptions or on evidence obtained in an unlawful way . Evidence should be considered as having been obtained unlawfully when , for example , it has been collected and recorded in breach of the human and ORG rights guaranteed by LAW , or of ... the law on criminal procedure ... ”

The relevant international materials with respect to healthcare arrangements in detention facilities may be found in the judgment in the case of GPE v. GPE ( no . CARDINAL , § DATE ) .


Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing;Article 6-3-c - Defence in person) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial)

The applicant was born in DATE and lives in GPE .

On DATE the ORG indicted the applicant and CARDINAL other individuals for aggravated extortion . The applicant was assisted by defence counsel of his choice . After hearings held on DATE and DATE , on DATE ORG found the applicant guilty as charged and sentenced him to CARDINAL½ DATE imprisonment . The court relied on evidence given by the victim and several witnesses .

NORP The prosecution appealed to have the sentence increased , while the applicant appealed to be acquitted or to have his sentence reduced . He also proposed that CARDINAL further witnesses be heard .

At deliberations held in camera on DATE , ORG upheld the applicant ’s conviction , while increasing his sentence to CARDINAL years’ imprisonment . Neither the applicant nor his lawyer was present . In its reasoning , the court did not deal with the proposal to hear CARDINAL more witnesses .

“ ( CARDINAL ) In GPE , everyone is equal before the law , and has the right to have any criminal charge against him or his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law . ...

( CARDINAL ) Individuals subject to criminal proceedings are entitled to the right of defence at all stages of the proceedings . ... ”

“ ( CARDINAL ) The Constitutional Court shall order the review of such criminal proceedings as have been finally concluded under unconstitutional legal provisions if the convicted person has not yet been exempted from the legal effects of the conviction – provided that from the nullity of the provision applied in the procedure , the reduction or non - imposition of the punishment or measure , or the exemption from or reduction of [ criminal ] liability would follow . ”

“ ( CARDINAL ) Any person who claims to have suffered a violation of his rights enshrined in the LAW on account of the application of an unconstitutional provision and has exhausted all other legal remedies or there are no such remedies available , may submit a constitutional complaint to ORG .

( CARDINAL ) A constitutional complaint may be filed in writing within DATE of the service of the legally binding decision . ”

“ ( CARDINAL ) An appeal may concern questions of fact or law . ”

“ ( CARDINAL ) In order to eliminate the ill - foundedness of the first - instance judgment , evidence may be taken if the findings of fact have not been established or are deficient . Evidence shall be taken ... at a hearing . ”

“ ( CARDINAL ) Within DATE of receiving the file , the president of the panel in charge shall schedule , in order to deal with an appeal , deliberations in camera ( tanácsülés ) , a public session ( nyilvános ülés ) or a hearing ( tárgyalás ) . ... ”

“ ( CARDINAL ) The second - instance court shall hold a public session , if – the first - instance judgment being ill - founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions , or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence .

( CARDINAL ) The second - instance court shall summon to the public session those persons whose hearing it deems necessary ... ”

“ ( CARDINAL ) The second - instance court shall notify the public prosecutor and DATE if they are not summoned – ... the defendant and his lawyer of the public session . ... ”

“ ( CARDINAL ) In order to take evidence , a hearing ... shall be scheduled . ”

“ ( CARDINAL ) Review proceedings may be instituted against a final decision on the merits if : ...

e ) ORG has ordered ( elrendelte ) the review of criminal proceedings concluded by a final judgment , provided that the defendant has not yet been exempted from the legal consequences flowing from his conviction , or the execution of the imposed punishment ... has not yet been terminated ... or its enforceability has not yet ceased ;

f ) the determination of criminal liability or the imposition of a sanction ... has been effected in application of a criminal law provision , whose unconstitutionality has already been established by ORG , but the defendant has already been exempted from the legal consequences flowing from his conviction , or the execution of the punishment has already been terminated or its enforceability has ceased ... ”

“ ( CARDINAL ) ORG finds that section CARDINAL(CARDINAL ) of Act no . ORG of DATE on LAW is unconstitutional and therefore annuls it as of the date of delivery of this decision . ...

( CARDINAL ) ORG finds that ORG has committed an unconstitutional omission by failing to regulate , in Act no . ORG of DATE on LAW and in accordance with the requirements of legal certainty and fair trial , the scope of those cases in which the appellate court may hold in camera deliberations . ORG invites ORG to comply with its legislative duties by DATE .

( CARDINAL ) ORG holds that section CARDINAL(CARDINAL ) of Act no . ORG of DATE on LAW was unconstitutional and therefore this provision can not be applied in the following cases , concluded by a final judgment ( jogerősen befejezett ügyeiben nem alkalmazható ) : ... nos . PERSON , CARDINAL , CARDINAL , CARDINAL.Bf . PERSON , CARDINAL.Bf . PERSON , CARDINAL.Bf.CARDINAL/CARDINAL , PERSON , CARDINAL , CARDINAL.Bf.CARDINAL/CARDINAL and CARDINAL . ”


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

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

In DATE CARDINAL elderly brothers living in GPE were the victims of a violent robbery . On DATE assailants again entered their house and the brothers were seriously injured , the eldest brother later dying of his injuries .

In DATE the applicant and his own brother , TIME , were arrested and charged with robbery of the elderly brothers in DATE and on CARDINAL DATE and with murder on DATE .

The prosecution ’s case was that the applicant and TIME had targeted elderly victims following discussions TIME a time when TIME and ORG both were in custody . ORG specialised in robberies of elderly and vulnerable persons and had been indicted for a number of such offences to which he had pleaded guilty and in respect of which he had given evidence against his own accomplice . While in custody , ORG discussed his offences with TIME and gave TIME the addresses of victims known not to contact the police . ORG also discussed such offences with the applicant , the latter of whom had expressed some interest in committing such crimes himself .

The prosecution relied on the following elements :

( a ) ORG evidence about the applicant ’s and PM ’s interest in his offences on the elderly and about confessions made to him by TIME .

The trial judge referred to ORG ’s motivation in giving evidence in his summing up as follows :

“ I must also give you a warning in relation to [ ORG ] . I have already said something about him . He is an important cog in the prosecution ’s wheel . It is alleged that he has something , much to gain . He says not . But you must consider very carefully his evidence and whether he has any motive for untruthfully saying what he is saying in this case . It is not alleged that he has any grudge against [ PM ] or [ the applicant ] or any reason adverse to them for shopping them . It is said , well , all supergrasses are strange people : they have motives of their own . It is the sort of argument that can be addressed in any case in which a supergrass does give evidence . There are particular criticisms of [ ORG ] made , as you know , I have rehearsed some of them , by counsel already . You must consider his evidence with very considerable care . ”

( b ) ORG identification evidence . PERSON , a neighbour of the elderly brothers , had seen QUANTITY men near her home on DATE . In her first statement ( DATE ) , she made no reference to the colour of the eyes of either of the men . The surviving elderly brother later described CARDINAL of the men as having “ piercing blue eyes ” . In her second statement ( DATE ) , she said that CARDINAL of the men had “ piercing blue eyes ” .

Ms A had also attended CARDINAL identity parades . At the first parade ( DATE ) a suspect ( CARDINAL PERSON ) was included in the line - up . At the second ( DATE ) TIME was the suspect included in the line - up . At the third ( DATE ) the applicant was the suspect included in a line - up and he was identified by PERSON

The defence had been furnished prior to the trial with material including the results of the second and third identity parade . During the trial ( at the latest ) the parties also knew that there had been CARDINAL identity parades in total , that material concerning the first of those parades had not been furnished , that Ms A had not formally identified anyone at the second parade and that she had identified the applicant during the third parade . The applicant ’s counsel questioned PERSON in detail about the identity parades , but focussed his questioning on the second and third parades . The extract from the transcript is as follows :

“ Counsel . Do your remember indicating that a man number CARDINAL looked like the person you had seen in the lane ?

A. I ca n’t remember if I picked someone out ‘ cause I did n’t think I ’d pulled anyone out .

Counsel . This was not the first parade which I think was in the DATE , from recollection , this is the second parade which is DATE .

NORP No .

Trial Judge . Ah , I think she was under the mistaken impression that you were talking about the first parade . ...

NORP No , I did n’t pull anyone out .

Counsel . Not on the first parade this is the second parade .

NORP No . I did n’t tell them , no . ...

Trial Judge . You did not pick anyone out ?

NORP No . ”

The applicant ’s counsel went on to question her about the third parade . ORG later outlined ORG evidence at trial as follows :

“ [ Ms A ] was a neighbour of the brothers and at CARDINAL - CARDINAL.CARDINAL p.m. on DATE of the second robbery and the murder she went outside her house to check on her children who were walking the dog in the lane . She went to the back of the house when she heard quick heavy footsteps at the bottom of the road . She positioned herself so that she could see down the road . She saw CARDINAL men walking quickly towards her . They looked odd . They were dressed in DATE clothes , it was a warm and DATE . The man nearest to her stared at her in a way that frightened her . From the moment she first saw them they were in full view . The vision conditions were perfect and she had an unobstructed view of them for the QUANTITY distance as they walked towards her . She gave meticulous descriptions of the men . The man who had been nearest to her had very scruffy , long , brown hair , a pale complexion and sunken blue eyes . He wore a jumper , jacket and scruffy trainers and gloves . The other man was broader and older , he had dark brown long , straight , scruffy hair , but was not as pale . In evidence she described how she had attended an identification parade on DATE May to see if she could identify the man with the blue eyes . She picked out [ the applicant ] . She had been on CARDINAL parades previously , she said she had been very frightened on those . She had not identified anyone on those occasions . ”

The trial judge confirmed , in his summing up , that Ms A had been on CARDINAL identity parades prior to the parade when she had identified the applicant , that she had been frightened , that there was someone on CARDINAL of those parades that she thought might have been CARDINAL of the men she had seen but that she was not sure about that and “ so she did not identify anybody . ” The trial judge also stated that :

“ [ Ms A ’s ] evidence is obviously important , because on the correctness of her identification a lot in this case clearly rests ... you can see that the importance of PERSON ] statement can not be overstated . It is very important evidence indeed ” .

( c ) The presence of a foot - print in blood in the elderly ORG house made by the same make and the same size as the footwear found in the applicant ’s garden shed on DATE he was arrested and the relevant supporting scientific evidence .

( d ) A map of GPE found in ORG ’s possession ( on it were hand - written notes of ORG ’s offences and directions to the elderly ORG home ) together with the applicant ’s evasive answers when questioned about the map ( which suggested that it was his handwriting ) . TIME ’s fingerprints were on the map . A piece of paper upon which the word “ PERSON ” was written had been found at TIME home : PERSON had been a target of ORG and his name had been marked in the above - mentioned map of GPE .

( e ) TIME admission that he had gone to visit another of ORG ’s targets .

( f ) The applicant and TIME had given differing accounts in interviews and evidence of their movements on DATE and DATE .

The applicant denied the offences and submitted that the evidence was flawed . He stated that he had never met ORG , although he had visited TIME in prison . He asserted that ORG was unreliable as a man of bad character who had committed a large number of offences himself and who had a self - serving motive having done a deal with the prosecution to obtain early parole . PERSON tapes had shown ORG to be a liar and the applicant questioned why , if ORG was feeding information to the police , the police did not listen into and tape telephone calls . He denied that it was his hand - writing on the map of GPE and submitted that the addresses of the victims would have been known to other criminals too . There was no forensic evidence pointing to him : his boots were too worn to have left the footprint found . He lied about his movements during police interviews as he did not want to be associated with TIME who was being accused of murder . However , he had then quickly given a correct account of his movements on DATE to the police which was consistent with his later evidence and the later evidence of TIME .

He also took issue with ORG evidence : he had short hair , was tanned after a holiday at the relevant time and had a distinctive tattoo on his neck whereas she had said that he had long hair and was pale - skinned and she had failed to remark a tattoo on his neck although her evidence was that he was wearing a low - necked pullover at the time .

On DATE , following a trial of DATE , the applicant and PERSON were convicted by a majority verdict ( of CARDINAL ) of robbery on or CARDINAL DATE and of murder on DATE and by a majority verdict ( CARDINAL - CARDINAL ) of robbery on DATE . The applicant was sentenced to life imprisonment for murder and to CARDINAL years’ imprisonment for the robbery offences , the latter sentence to run concurrently .

The applicant applied for leave to appeal to ORG . The matter came before ORG on DATE when it was adjourned to enable further investigations to be made about the applicant ’s first ground of appeal : he alleged that MONEY ( GBP ) had been spent by the prosecution or the police in providing a new identity to ORG and that that information had not been disclosed during the trial . The allegation had been included in a newspaper article published the day after the applicant had been sentenced and he submitted that this constituted evidence relevant to the credibility of ORG which should have been disclosed .

ORG considered ex parte a public interest immunity application of the prosecution on this matter . The prosecution was represented by counsel , but the applicant and his representatives were excluded from the hearing . The applicant ’s solicitor ’s notes of the decision of ORG , it appears of DATE , record as follows :

“ We have considered ex parte application on part of ORG [ regarding the evidence ] given by [ ORG ] . [ We have ] read letter CARDINAL from GPE police and [ heard ] evidence of CARDINAL policemen , CARDINAL of very senior rank . We are satisfied that when [ ORG ] came to give evidence in the trial of [ PM and the applicant ] , he had no expectation of reward . Consequently his evidence was not tainted in that regard . [ We are ] also satisfied having considered letter of CARDINAL [ regarding the ] newspaper reports and read [ the ] newspaper , ... that there is no substance in that account . Arrangements were made long after conviction in DATE . ”

The applicant did not therefore pursue this ground of appeal and ORG proceeded to hear the remaining grounds of appeal in the leave application .

The second ground of appeal concerned CARDINAL items of information which had not been disclosed by the prosecution prior to or during the trial and which had come into the applicant ’s possession thereafter . He considered the information highly relevant to the reliability Ms A ’s evidence and that it should have been disclosed at trial . The CARDINAL items were as follows :

( a ) A pro - forma information sheet attached to the E - Fit image of CARDINAL of the men Ms A said she had seen . The E - Fit image had been produced at trial but not the information sheet . The latter document read as follows :

“ From Cognitive Interview .

Witness only able to give PERCENT mark . Treat image with CAUTION – the E - Fit [ image ] is the best the witness could produce being very vague on facial features – only really saw from a distance . ”

ORG described the relevant defence submissions as follows :

“ There is considerable uncertainty concerning the E - Fit pro - forma [ information sheet ] . It is far from clear that this document was served on the defence . It is true that there is a reference in the CARDINALth schedule of the unused material dated DATE to a “ force intelligence report ” although on its face the schedule does not specify that this is a separate document in addition to the E - Fit . For the purposes of this application we are prepared to accept that this document did not find its way into the possession of leading counsel then appearing on behalf of this applicant . There is no record of service of this material on the file of the applicant ’s solicitor at trial . Moreover , we have little doubt that if the document had been in leading counsel ’s possession he would have referred to it in cross - examination .

The significance of this document is that it appears directly to contradict the evidence of [ Ms A ] that she observed the face of the man she later identified as [ the applicant ] at DATE . ”

( b ) A document called a ORG was also made by the author of the E - Fit image . ORG described the defence submissions on this document as follows :

“ There is some doubt as to whether the ORG received the document PERSON and this would explain why it was not served on the defence . It appears to be accepted therefore that there was non - disclosure of this document . The significance of this form [ is ] that the reference to the eyes of the suspect records a description of “ oval light ” and : “ the witness somewhat vague on facial features and having only had a limited look at suspects faces ” .

In [ Ms A ’s ] original statement of DATE there was no reference to the colour of the suspects eyes . In her statement of CARDINALth DATE she made specific reference for the first time [ to ] “ piercing blue eyes ” . This description proved to be of considerable importance in the prosecution ’s case , because of the reference in [ the surviving brother ’s ] statement to the “ very piercing blue eyes ” of CARDINAL of his attackers on the earlier occasion in DATE ] . [ Defence counsel ] submits that no reference was made in cross examination of [ Ms A ] to the fact that it was only in her later statement that the blue eyes description first emerged . However , he contends , without any material to show that she had previously been asked to describe the eyes , the defence ran the risk of underlining a damaging feature of the case against the applicant . The fact disclosed in the PERSON that , when first asked about the eyes she made no mention of the supposedly striking feature , throws substantial doubt on this important aspect of her evidence . Had it been explored in cross examination at trial it could have formed the basis for a suggestion that she had heard of the reference to blue eyes from another source . ”

( c ) Documents relating to an identity parade on DATE . The applicant had discovered after the trial that Ms A had identified a decoy during the first parade on DATE . ORG described the relevant defence submission on this point as follows :

“ [ Defence counsel ] attaches even more significance to the non - disclosure of the [ first ] identity parade material . The ORG served some of the documentation in relation to the CARDINALth DATE parade . In their bundle of material served at this hearing the ORG have included additional material from the CARDINALth DATE parade . From this it appears that from that parade [ Ms A ] wrongly identified CARDINAL of the “ decoys ” . The material part reveals :

“ Q : Is the person you saw on DATE on the parade ? Note reply A : LAW .

( i)Q : Was PERSON identified ? A : No .

[ Defence counsel ] points out that the first identification parades were referred to in evidence but the full significance of the [ first ] parade could not have been appreciated in the absence of the full documentary evidence . In cross examination , [ Ms A ] stated : “ I did n’t think I had pulled anyone out ” . It was then clarified that she was being asked the questions about DATE ] parade . She then reaffirmed that she had not identified anyone . In the summing up the learned judge directed the jury that [ Ms A ’s ] evidence was that she had not picked anyone out .

It is difficult for this court to determine whether or not counsel at trial were aware of the identification of a decoy . However , we are satisfied that if defence counsel had been aware of this information it would have been of obvious importance . We are prepared to assume for the purposes of this application that this information was not imparted to the defence . ”

A photograph of the identification parade on DATE was also disclosed to ORG and the defence submitted that the man picked out by PERSON looked nothing like the applicant .

In its judgment of CARDINAL DATE ORG found as follows as regards the failure to disclose these CARDINAL classes of document concerning PERSON evidence :

“ We consider it most unfortunate that these CARDINAL classes of document were not revealed to the defence , or if they were then that they did not find their way into the possession of counsel . We are equally satisfied that if counsel had had access to this information it would have been deployed in cross examination . We doubt whether the manuscript endorsement on the E - Fit pro - forma would have materially dented [ Ms A ’s ] credibility in the light of the evidence she gave as to the opportunity of observing the men over a distance of QUANTITY . This evidence was not inconsistent with her previous statements . Counsel would have had more success with endorsement on ORG of the eyes as “ oval light ” . This may have caused [ Ms A ] to reflect upon her evidence and whether she wished to retract her testimony . We take a more serious view of the non - disclosure of the [ first ] identity parade material which clearly shows on its face that far from not identifying anybody [ Ms A ] made a positive identification of a decoy . This might well have cast considerable doubt on [ Ms A ’s ] positive identification of [ the applicant ] on DATE . ”

Even so , we do not consider that these irregularities , on their own , would be such as to render the convictions unsafe if leave to appeal were granted . ”

ORG then rejected the remaining grounds of appeal which challenged the trial judge ’s direction to the jury concerning separate verdicts against TIME and the applicant , his alleged failure to warn the jury of the danger of concluding guilt from a rejection of the applicant ’s defence , his direction concerning TIME ’s previous convictions and his direction as to whether the CARDINAL men whom PERSON had seen were the QUANTITY robbers . The appeal court also rejected the appellant ’s challenge to the trial judge ’s failure to discharge the jury following threats made to jurors by third parties . Finally , ORG reviewed the case against the appellants as a whole in order to determine whether the matters complained of collectively rendered their convictions unsafe . It noted as follows :

“ We are satisfied that they do not and that there was evidence which , if the jury accepted it fully justified each of the convictions . Suffice it to say that the evidence of [ ORG ] was corroborated in several respects . The relevant telephone conversation[s ] with [ ORG ] were all proved . [ PM ] admitted in interview that he had [ visited another of ORG ’s targets ] . A piece of paper was found at TIME ’s home upon which was written the name “ PERSON ” . The [ map ] had [ TIME ’s ] fingerprints upon it [ and ] the addresses of the brothers and PERSON were noted or ringed . Both defendants lied in interview about being with each other in [ the applicant ’s ] car on TIME CARDINAL DATE . TIME set up a false alibi in relation to DATE and involved his wife ... and sister - in - law .. in making false statements supporting his false alibi . The identification evidence of PERSON including her positive identification of [ the applicant ] on DATE . The finding of a boot print in blood which corresponded to a size CARDINAL “ Kicker ” boot . [ The applicant ] had such a boot and wore it at about the material time . In evidence both defendants accepted that they had been together on DATE and on DATE ” .

ORG concluded therefore that , in light of the strength of the case against TIME and the applicant , there was no realistic prospect of a successful appeal . Their applications for leave to appeal were rejected .

The ORG refers to the outline of the domestic law and practice concerning the prosecution ’s duty of disclosure of material to the defence contained in GPE and PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINAL .


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

The applicant was born in DATE and lives in GPE .

The facts of the case , as submitted by the parties and as derived from TIME of the proceedings , may be summarised as follows .

On DATE the applicant married a NORP citizen . On DATE he filed a petition for divorce ( no . CARDINAL/CARDINAL ) with ORG of GPE .

On DATE the applicant filed an ex parte application for leave to publish the divorce petition in an LANGUAGE daily newspaper . Leave was granted by the court on DATE .

On DATE the court fixed the case for mention for DATE and instructed the counsel of the applicant 's former wife ( hereinafter “ the respondent ” ) to file her defence by that date . This was filed on DATE .

On DATE the respondent filed an application raising certain preliminary points of law to be tried before the main petition . The application was set for DATE and then for DATE . In the meantime , on DATE , the applicant filed an objection to the application .

DATE until DATE both the main divorce and interim proceedings were adjourned CARDINAL times . CARDINAL of these adjournments were by the court itself : from DATE until DATE and from DATE until DATE . It appears that the remaining adjournments were by the parties ' mutual agreement .

During the above period , on DATE , a deportation order was issued against the respondent by the immigration authorities . On DATE the respondent filed an administrative recourse before ORG ( first instance administrative jurisdiction ) challenging the order , requesting an interim application for the suspension of the deportation order in order to be able to attend the divorce proceedings and testify before ORG and a declaration recognising her right to have her residence permit renewed .

On DATE the respondent withdrew her application of DATE and upon agreement by both parties the hearing of the divorce petition was adjourned until DATE .

The hearing of the petition commenced on DATE and was completed on DATE . CARDINAL hearing sessions were held with CARDINAL adjournment at the request of the respondent 's lawyer .

In the meantime , on DATE , ORG delivered an interlocutory judgment and rejected the respondent 's recourse . ORG noted that the respondent 's residence permit had expired on DATE and that since then she had been staying in GPE without a permit . Nonetheless , she had not been deported pending the proceedings in another recourse she had filed against the administrative authorities ' decision not to grant her another permit . This recourse had been rejected by ORG on DATE and this was the reason that the deportation order of CARDINAL DATE had been issued . Furthermore , ORG observed that to grant the respondent her application for an interim order for the suspension of the deportation order would in essence result in the grant of permission to stay , which was outside the competence of the ORG . The right of any person , whether NORP or alien , to be present at proceedings before a court , was not related to the question of permission to stay . The applicant , in her recourse , had linked the CARDINAL , but the need for her to be present at the trial before ORG would be regulated by the requirements of the trial and not according to a general obligation of the Republic to grant her permission to stay in the Republic for the duration of the trial , as she asserted .

The respondent was deported on DATE .

On DATE ORG issued an ex - tempore decision granting the applicant 's divorce petition .

On DATE , the applicant 's former wife who had been deported ( hereinafter “ the appellant ” ) , filed an appeal ( no . CARDINAL/CARDINAL ) before ORG Family Court Appeal Jurisdiction ) . TIME first instance proceedings were received by ORG on DATE .

On DATE the applicant filed an application for security of costs . The court fixed this application for hearing for DATE . On DATE , the court fixed the application for further directions for DATE and instructed the appellant to file her written objection by the above date . This was filed on DATE .

On DATE the application was fixed for hearing for DATE .

In the meantime , on DATE , the appellant filed the outline of her address .

On DATE the court heard the appellant 's objection to the security of costs application and it reserved its decision on the matter . It also fixed the appeal proceedings for pre - trial for DATE .

In the meantime , on DATE , the court delivered its decision concerning the application for security of costs .

On DATE the appellant filed her application for leave to amend her grounds of appeal . This was granted by the court on DATE . On DATE , the parties were also directed to file their amended notices of appeal and the outlines of their addresses .

The appellant filed her amended grounds of appeal on DATE and the applicant filed his written address outline on DATE .

On DATE ORG fixed the appeal case for hearing for DATE . On the latter date the appellant 's counsel made an oral request for the exclusion of CARDINAL of the judges from the composition of the court . The specific judge had rejected her administrative recourse against the deportation order ( see paragraph CARDINAL above ) . Consequently , the hearing was adjourned until DATE at the appellant 's request .

On DATE the appellant 's counsel requested a DATE adjournment because of health problems . On DATE ORG granted the adjournment until DATE .

On DATE ORG rejected the appellant 's request of CARDINAL DATE .

The appeal was heard on DATE .

On DATE the court delivered its judgment . It upheld the appeal and set aside the first instance judgment . It found that the appellant 's right to a fair trial had been violated . This was due to the fact that the immigration authorities had not allowed her to remain in GPE for the purposes of the trial whilst ORG had continued with the case despite having being informed of the respondent 's deportation . ORG noted that ORG should have adjourned the case and indicated to the immigration authorities to allow the respondent to return for DATE to GPE in order to enable her to be present at the proceedings and to defend her case . ORG ordered a retrial by a different composition of ORG .

On DATE the applicant 's counsel applied for a retrial of the divorce petition .

On DATE the hearing of the divorce petition was set for directions for DATE .

In the meantime , on DATE , the respondent filed an application for leave to amend her defence .

On DATE the court fixed the interim application and the divorce petition for directions for DATE .

In the meantime , on DATE , the respondent filed a second application for leave to amend her defence . On DATE she withdrew her application of CARDINAL DATE and the court granted her application of CARDINAL DATE . Subsequently , the court fixed the main divorce proceedings for hearing for DATE .

The amended defence and counter - claim were filed on DATE .

From DATE until DATE the proceedings were adjourned twice consecutively . Both adjournments were at the request of the respondent 's lawyer because his client could not appear before the court as the immigration authorities had not made the necessary arrangements for her to come to GPE .

A hearing was held on DATE and the court granted the divorce petition on DATE .


CASE OF MAHMUDOV AND AGAZADE v. AZERBAIJAN

Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants were born in DATE and DATE respectively and live in GPE .

The first applicant was the acting chief editor of the PERSON newspaper . The second applicant was a journalist working for the same newspaper .

NORP In its issue of CARDINAL DATE , the newspaper published an article named “ Grain Mafia in GPE ” ( “ GPE taxıl mafiyası ” ) , under the by - line of PERSON , a pseudonym of the second applicant . The article was accompanied by a picture of J.A. , who was a member of ORG , a well - known expert in agriculture , and a member of PERSON ( ORG ) . The article generally spoke about a number of problems in the country ’s agricultural sector . It also appeared to imply , amongst other things , that J.A. was in charge of the breeding of certain experimental crops in “ experimental ” fields in several agricultural regions . ORG name was printed in full in the article itself .

Specifically , the article read as follows ( translated from NORP ) :

“ [ President ] Heydar PERSON ’s famous conference in PERSON was rich in memorable moments . Naturally , in the essence of this richness , it is impossible not to notice the scale of arbitrariness and corruption and how the entire nation is held up to ridicule . But we are not talking about the dismissal ... of [ certain government officials ] for reasons which remain obscure to many .

We are also not talking about how it was far from logical to accuse of stinginess a businessman named ORG who has spent MONEY on charity in DATE , while not a single member of the clan which has misappropriated MONEY of the country ’s wealth is willing to expend MONEY on development of our motherland . What is interesting is that the Head of ORG accused the people , whom he had turned into an object of reproach , of nepotism ... and monopolisation of the private sector in ORG . PERSON says that he has refused to appoint his relatives to any [ official ] positions despite [ having received ] insistent requests in this regard . But what he does not say is that there is no person in this country other than the son PERSON who simultaneously occupies CARDINAL “ armchairs ” . Speaking of seizing control over [ well - to - do sectors of economy ] , DATE even a baby who is just learning to speak knows which people control such a huge sphere of the NORP economy as the agricultural sector . CARDINAL of hectares of fertile land in GPE have been turned into an experimental zone for “ valuable sorts ” of grains . For DATE the agricultural sector has been plundered as if it were in the private ownership of the certain known person .

During the NORP period agriculture was the main contributor to the gross domestic product and the main area of the population ’s employment . However , in the GPE era of independence , the agrarian sector , like all other sectors of the economy , has been monopolised to serve the interests of peri - governmental circles . With the exception of grain and livestock farming , other leading branches of agriculture have slumped . The productivity level of poultry farming has decreased from QUANTITY in DATE to QUANTITY in DATE . Viticulture can be said to have been completely ruined , while cotton growing is in such an acute state of decline that within DATE its share in the total agricultural product has decreased from PERCENT . As a result of appropriation of the cotton - processing industry by a group of monopolists , cotton planters are being seriously exploited . At the moment DATE cotton - ginning plants existing in the country are controlled by a company named ORG . This company ’s share of all the cotton processed in the country DATE was PERCENT . [ A description is given of various specific monopolistic policies pursued by this company . ]

The development of the grain - growing industry is under the special care of a group [ of persons ] who have monopolised this sphere . For DATE the people in the provinces either can not sell the grain they have grown under considerable hardship or , in the best - case scenario , are forced to sell it for CARDINAL manats per kilogramme . For example , during DATE in such big grain - growing regions as PERSON , PERSON and GPE , the local executive authorities either prevented the major grain buyers from GPE from entering these regions or forced them to buy grain from specified fields . [ This was done ] for a simple reason – in order to sell , in a timely manner , all the grain from the QUANTITY of [ ORG ] ‘ ORG in these regions . It is clear that , as simple peasants do not possess necessary facilities ( such as special buildings ) for storage of grain , they are forced to sell their crop at low prices .

The land reform is often spoken about . But at the same time several important issues are forgotten . Firstly , CARDINAL of those who are given a share of land do not possess even the minimum facilities to cultivate it . Secondly , QUANTITY of fertile land , labelled as ‘ state land fund’ during the land reform , are held hostage by the ‘ agrarian ORG , and not MONEY goes to the state budget from its lease .

Nowadays this mafia ... bends over backwards to obtain from the ORG MONEY in DATE subsidies for the development of agriculture . But no one is asking PERSON why , if he cares so much about the development of agriculture , he sells the equipment donated by the NORP government , and not even for discount prices , but for prices higher than the ex - factory price . These people – those who sell a plough , which they have obtained free of charge , to the peasant for MONEY , a tractor for MONEY , and a grain combine harvester for MONEY – now they want to get money from the ORG to revive agriculture . Sorry , but we are n’t duped by you . Your ‘ ORG to CARDINAL’ , which you have submitted to the Government [ for implementation ] , is not a programme aimed at supporting the peasant , but a programme allowing you to increase your personal wealth at a cost of MONEY which you snatch from the ORG budget DATE . ”

On DATE J.A. filed a criminal complaint with ORG using the procedure of a private prosecution . He claimed that the article clearly referred to him in a defamatory , slanderous and insulting manner . Specifically , he cited the following extracts as defamatory :

“ ... DATE even a baby who is just learning to speak knows which people control such a huge sphere of the NORP economy as the agricultural sector . CARDINAL of hectares of fertile land in GPE have been turned into an experimental zone for “ valuable sorts ” of grains . For DATE the agricultural sector has been plundered as if it were in the private ownership of the certain known person . ...

The development of the grain - growing industry is under the special care of a group [ of persons ] who have monopolised this sphere . For DATE the people in the provinces either can not sell the grain they have grown under considerable hardship or , in the best - case scenario , are forced to sell it for CARDINAL manats per kilogramme . For example , during DATE in such big grain - growing regions as PERSON , PERSON and GPE , the local executive authorities either prevented the major grain buyers from GPE from entering these regions or forced them to buy grain from specified fields . [ This was done ] for a simple reason – in order to sell , in a timely manner , all the grain from the QUANTITY of [ ORG ] ‘ ORG in these regions . ... ”

J.A. argued that the article clearly implied that he was in close contact with certain alleged criminal circles and thus , in essence , accused him of serious crimes such as the misappropriation of state funds allocated for agricultural research . He contended that the second applicant had deliberately made false statements damaging to his reputation and that the first applicant , as an acting chief editor , had failed to prevent this . He requested the court to convict the applicants under Articles CARDINAL ( defamation ) and CARDINAL ( insult ) of LAW .

During the trial , the applicants argued that the article had not contained any defamatory or insulting statements about J.A. They maintained that the phrase “ the certain known person ” did not refer to J.A. The picture of J.A. was placed in the article because of his general achievements in the development of grain farming . Lastly , they noted that the article was concerned with the general situation of the agricultural sector and that it contained no information specifically accusing LAW of any criminal activity .

By a judgment of CARDINAL DATE , ORG convicted the applicants of defamation and insult under LAW and CARDINAL of LAW . Having examined the extracts from the article quoted above ( see paragraph CARDINAL ) , the court noted that the applicants’ denial of the fact that the article had anything to do with PERSON was groundless , because the text of the article clearly mentioned PERSON ’s name in full and clearly stated that QUANTITY of grain fields belonged to him . The court went on to find that :

“ ... expression by PERSON of the idea of the existence of a mafia that does not exist in reality and his dissemination of this idea through the mass media constitutes defamation , that is , deliberate dissemination of false information tarnishing J.A. ’s honour and dignity and damaging his reputation . Therefore , the court finds that , by disseminating [ through the mass media ] the information about the existence of a mafia that does not exist in reality , PERSON committed an offence under LAW , and that , by making and disseminating the statement ‘ in order to sell , in a timely manner , all the grain from the QUANTITY of hectares of [ ORG ] ‘ ORG in these regions’ , ORG committed an offence under LAW . The other accused person , PERSON , bears the same criminal responsibility for [ allowing such dissemination as the newspaper ’s acting chief editor ] . Accordingly , NORP ORG and PERSON must be found guilty under Articles CARDINAL and CARDINAL of LAW . ”

The court sentenced each applicant to CARDINAL months’ imprisonment under LAW and three months’ imprisonment under LAW . By partially merging these sentences , the court fixed a total sentence of CARDINAL months’ imprisonment in respect of each applicant . At the same time , applying section CARDINAL of the Milli Mejlis ( Parliament ) Resolution on ORG in ORG with the Anniversary of the Victory over Fascism in World War II , dated DATE , the court exempted them from serving their sentences .

The applicants appealed . They argued that the article discussed a number of problems in the agricultural sector and did not specifically relate to J.A. The fact that it contained ORG picture and a statement that he possessed QUANTITY of grain fields did not amount to defamation or insult . In respect of that statement , they argued that it was a generally known fact and did not offer any evidence in its support . The applicants also argued that J.A. and ORG had wrongly construed the totality of statements contained in the article as defamatory whereas their intended meaning was harmless .

On DATE ORG upheld ORG judgment .

On DATE ORG upheld the lower courts’ judgments .

Articles DATE and CARDINAL of the LAW guarantee freedom of thought and speech and freedom of the mass media .

Article CARDINAL of the Criminal Code provided as follows :

“ Defamation , that is dissemination , in a public statement , publicly exhibited work of art or in mass media , of knowingly false information discrediting the honour and dignity of a person or damaging his or her reputation –

is punishable by a fine in the amount of CARDINAL conditional financial units , or by community service for a term of CARDINAL forty hours , or by corrective labour for a term of DATE , or by imprisonment for a term of DATE . ”

“ Insult , that is deliberate humiliation of the honour and dignity of a person , expressed in an obscene manner in a public statement , publicly exhibited work of art or in mass media –

is punishable by a fine in the amount of CARDINAL conditional financial units , or by community work for a term of CARDINAL forty hours , or by corrective labour for a term of DATE , or by imprisonment for a term of DATE . ”

According to LAW , persons convicted of a criminal offence may be exempted from serving their sentence by an amnesty act . According to LAW , a convicted person retains a criminal record until his or her conviction is removed or expunged . According to LAW , the conviction of a person dispensed from serving his sentence is considered to be expunged .

The Milli Mejlis ( Parliament ) Resolution on ORG in ORG with the Anniversary of the Victory over Fascism in World War II , dated DATE , exempted a large number of convicts ( with a number of exceptions ) from serving their sentences or the remainder of their sentences . The amnesty applied to persons who had committed a criminal offence prior to the entry into force of the ORG . LAW of the ORG provided as follows :

“ Persons sentenced , for deliberate commission of a criminal offence , to imprisonment for a term of DATE shall be dispensed from serving their sentences . ”

Article CARDINAL of the Law on Mass Media of DATE prohibits the mass media from , inter alia , publishing defamatory material . According to LAW , editors of mass media sources and journalists may be held liable criminally , administratively or otherwise , if , inter alia , an editor fails to ensure the compliance of the published material with the requirements of this PERSON , or if the published material interferes with an individual ’s private life .


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

The applicant moved to GPE in DATE where he has resided ever since . On DATE , he enquired about registering on the electoral role in GPE .

On DATE ORG ( ORG ) stated that on the basis of ORG only nationals resident overseas for DATE could register to vote in GPE general and NORP elections . It was pointed out that he could be reinstated on the electoral role if he returned to live in GPE and that he was entitled to vote in the NORP elections in GPE as a citizen of ORG . It was also drawn to his attention that eligibility to vote in other countries generally depended on domestic law but that nationality was generally a requirement : he could therefore apply for NORP nationality , or dual nationality if he did not wish to lose his NORP nationality . By way of general information , custom and practice was said to differ in GPE , NORP citizens overseas losing the right to vote after DATE and no overseas NORP citizen being allowed to vote at all .

The Representation of the People Act DATE provided for the first time for GPE citizens living overseas to be able to register to vote in general and ORG elections in GPE . The applicable time - limit was DATE , which was extended to DATE by LAW DATE ( entry into force DATE ) .

The Representation of the People Act DATE , after debate in both ORG , considered however that DATE was a more appropriate period and the legislation was amended as from DATE ) .


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

On DATE ORG acting as ORG ( PERSON CARDINAL.Instanz , “ the Agricultural Authority ” ) received a motion dated DATE for opening land consolidation proceedings at GPE in the municipality of ORG , signed by the land owners concerned including the applicant .

On CARDINAL DATE ORG ex officio opened the GPE land consolidation proceedings ( PERSON ) , involving property in ORG of which the applicant and his siblings are co - owners .

On CARDINAL DATE ORG held a hearing with the land owners concerned as regards the provisional transfer of land ( vorläufige PERSON ) . The majority of land owners accepted the authority ’s proposal , whereas the applicant opposed it . At the close of the hearing the authority orally delivered the decision ordering the provisional transfer of land and informed the participants that no remedy was available against it under ORG DATE ( ORG ) .

On DATE ORG issued the consolidation scheme ( Zusammenlegungsplan ) .

On DATE ORG upon , inter alia , the applicant ’s appeal , set aside the consolidation scheme on the ground that ORG had failed to carry out a proper valuation of the plots of land involved . Further , it declared that the area had to be cultivated as provided for in the provisional transfer of land of CARDINAL DATE until a new consolidation scheme was issued .

On DATE ORG ( Verwaltungs - gerichshof ) , upon the complaint of the applicant and his co - owners , quashed ORG declaration that the consolidation area had to be cultivated as provided for in the provisional transfer until a new consolidation scheme was issued . It found that ORG had not been competent to make such a declaration . It was only called upon to decide on the merits of the case which had been before ORG , i.e. in the present case it had to decide on the lawfulness of the consolidation scheme . In any event , the decision on the provisional transfer of land had become final DATE .

After having held a hearing on DATE , ORG issued an occupation and valuation schedule ( PERSON ) .

On DATE ORG dismissed the applicant ’s appeal . It noted that the applicant had not contested the occupation schedule and had not submitted any arguments as regards the valuation of specific plots of land . There were no reasons to depart from ORG findings .

On DATE ORG ( Verfassungs - gerichtshof ) declined to deal with the applicant ’s complaint and referred the case to ORG .

On DATE ORG dismissed the applicant ’s complaint , finding that he had not submitted any specific objections against the occupation and valuation schedule .

On DATE ORG received further documents relating to a number of changes in the valuation of land .

On CARDINAL DATE ORG issued a new consolidation scheme . It found , having regard to the valuation of the land , that the difference in value between the plots the applicant had owned prior to the proceedings and the plots allocated to him was less then PERCENT which were admissible under LAW . For this difference it ordered payment of compensation . The consolidation scheme was open to public inspection at the ORG local authority during DATE in DATE .

The applicant did not appeal against the consolidation scheme which , following its publication , became final on DATE . However he appealed against the notification of CARDINAL DATE by which ORG had informed the parties of the publication of the consolidation scheme .

On DATE ORG rejected the applicant ’s appeal as being inadmissible . It noted that the said appeal was directed against the notification of CARDINAL DATE , which was in itself not subject to appeal .

On DATE the Constitutional Court declined to deal with the applicant ’s complaint and referred the case to ORG .

On DATE ORG dismissed the applicant ’s complaint .

NORP By decision of DATE ORG closed the consolidation proceedings following the entry of all changes of property in the land register in DATE and the final settlement of the costs in DATE .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE .


BOIVIN v. 34 MEMBER STATES OF THE COUNCIL OF EUROPE

The applicant , Mr PERSON , who has dual NORP and NORP nationality , was born in DATE and lives in GPE ( GPE ) . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

ORG ( “ ORG ” ) was created in DATE for the purpose of supervising air traffic control in the airspace of its member GPE , which have included GPE and GPE since the beginning .

By a decision of ORG ’s Director General dated DATE , the applicant was appointed to the post of chief accountant at ORG ( a body which is part of ORG and is situated in GPE ) for a renewable term of DATE .

On DATE ORG ’s Director of ORG notified the applicant that his appointment had been cancelled following a complaint by another official of the organisation who claimed that there had been no notice of competition for the vacancy filled by the applicant . After a specific competition the applicant was appointed again . However , the same official challenged the applicant ’s new appointment on the ground that there had been no substantiated report and obtained its cancellation .

A fresh recruitment procedure was organised to fill the vacancy . However , the applicant ’s name was not included on the list of qualified candidates drawn up by the new selection board . As a result , ORG ’s Director General decided not to appoint him to the post . On DATE the organisation ’s Director of ORG sent the applicant a letter notifying him of the termination of his employment on DATE and inviting him to discuss compensation with the legal department .

After filing a number of internal administrative complaints , the applicant took his case to ORG ( the “ LOC – having sole competence to settle all disputes between ORG and its staff ) to challenge the cancellation of his appointment and to seek compensation for the injury caused to him .

In a judgment of DATE ( notified to the applicant on DATE ) , the LOC , finding that the recruitment procedure had not been flawed , upheld the decisions cancelling the applicant ’s appointment . However , observing that ORG had “ fail[ed ] in its duty ... to protect [ the applicant ] from the injury caused by the quashing of an appointment he [ had ] accepted in good faith ” , the ILOAT partly granted the applicant ’s compensation claim and awarded him MONEY in damages .

The International Convention relating to Cooperation for the Safety of Air Navigation ( the “ LAW ” ) , signed in GPE on CARDINAL DATE , established , as provided in LAW ORG ) to create a uniform NORP air traffic management system . DATE Eurocontrol Convention provides that “ [ t]he Organisation shall have legal personality ” .

Under LAW , annexed to LAW , the ORG has “ sole jurisdiction in disputes between the ORG and the personnel of the ORG , to the exclusion of the jurisdiction of all other courts and tribunals , national or international ” .

ORG was founded in DATE as the “ ORG ” and since DATE has operated as a tripartite agency of ORG that brings together representatives of governments , employers and workers from its member ORG . Its Administrative Tribunal hears complaints from officials or former officials of ORG and the other international organisations that have recognised its jurisdiction . The relevant provisions of the Tribunal ’s Statute are as follows :

The ORG shall also be competent to hear complaints alleging non - observance , in substance or in form , of the terms of appointment of officials and of provisions of LAW of any other international organisation meeting the standards set out in the FAC hereto which has addressed to the Director General a declaration recognising , in accordance with its LAW or internal administrative rules , the jurisdiction of the ORG for this purpose , as well as its Rules of Procedure , and which is approved by ORG . ”

“ CARDINAL . The ORG shall take decisions by a majority vote ; judgments shall be final and without appeal .

NORP The reasons for a judgment shall be stated . The judgment shall be communicated in writing to the Director General of ORG and to the complainant .

Article XII § CARDINAL of the Annex to the ILOAT ’s Statute reads as follows :

“ In any case in which ORG of an international organisation which has made the declaration specified in LAW ORG challenges a decision of the ORG confirming its jurisdiction , or considers that a decision of the ORG is vitiated by a fundamental fault in the procedure followed , the question of the validity of the decision given by the ORG shall be submitted by ORG concerned , for an advisory opinion , to ORG . ”


Violation of Art. 3;No violation of Art. 3

The applicant was born in DATE and lives in GPE .

On DATE and DATE and on DATE the applicant was charged with unlawful business activities , tax evasion and fraud , respectively . CARDINAL criminal cases against the applicant were initiated .

On DATE the applicant was remanded in custody .

On DATE the CARDINAL criminal cases against the applicant were joined .

From DATE to DATE the prosecutor 's office of GPE extended the preliminary investigation CARDINAL times in view of the complexity of the case .

On DATE the bill of indictment against the applicant was issued .

On DATE the case was transmitted to ORG .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

On CARDINAL DATE ORG commuted the term of imprisonment to DATE and DATE and upheld the remainder of the judgment .

The applicant was released on DATE .

Following his arrest on DATE the applicant was detained in a temporary detention centre in GPE ( ORG временного содержания г. PERSON ) . Thereafter , the applicant was transferred to the pre - trial detention centre no . GPE .

In the course of the preliminary investigation the applicant was returned to the temporary detention centre several times in order to participate in investigative measures . The applicant submitted , and the Government did not dispute , that he had spent DATE in total in the temporary detention centre . The parties did not specify the dates when the transfers to the temporary detention centre had taken place .

It is clear that from DATE the applicant was held in the temporary detention centre in a cell measuring QUANTITY m. The applicant submitted that he shared the cell with QUANTITY inmates , that there had been no beds in the cell and that the inmates had to sleep on the floor .

According to the Government , the exact number of detainees per cell could not be established because the registers had since been destroyed . The ORG also submitted that the applicant 's cell had been equipped with beds .

From DATE to CARDINAL DATE the applicant was held in the pre - trial detention centre no . GPE in GPE .

The parties submitted the following information concerning the cells where the applicant had been held .

Relying on a certificate issued on DATE by the pre - trial detention centre governor , the Government submitted that the applicant had been held in cell no . CARDINAL from DATE to CARDINAL DATE and from DATE to DATE . The cell measured QUANTITY . m ; was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the certificate , at that time the pre - trial detention centre , which is designed to accommodate CARDINAL persons , housed CARDINAL inmates .

NORP The applicant submitted that the cell measured QUANTITY . m and had been severely overcrowded .

The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL inmates .

The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured CARDINAL sq . m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .

The applicant submitted that the cell measured QUANTITY m and had been overcrowded .

The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .

The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY . m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .

The applicant disagreed with the Government , claiming that during DATE of his stay in cell no . CARDINAL it had accommodated up to CARDINAL inmates . As a result , inmates had to take turns to sleep or slept on the concrete floor . He submitted written statements by CARDINAL of his former cellmates , according to which cell no . CARDINAL measured QUANTITY m and had been severely overcrowded .

The Government submitted that from DATE to CARDINAL DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY . m ; it was equipped with CARDINAL beds and accommodated up to CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .

The applicant submitted that the cell measured QUANTITY m. He did not comment on the number of inmates in the cell .

Relying on the certificate issued on DATE by the detention centre governor , the Government submitted that the conditions in all of the cells had been satisfactory . In particular , the cells had been equipped with a lavatory pan separated from the living area and the cell windows had not been covered with metal shutters . The certificate did not describe the state of the cells during the period of the applicant 's detention from CARDINAL DATE to CARDINAL DATE .

The Government submitted that the applicant had been allowed TIME DATE walks in the courtyard .

The applicant submitted that a lavatory pan had not been separated from the living area and offered no privacy ; it had been located within CARDINAL or QUANTITY from the dining table . The cell windows were covered with metal shutters and let no air through . There was no ventilation in the cells .

The applicant pointed out that the sanitary conditions in cell no . CARDINAL had been satisfactory .

DATE the applicant was held in solitary cell no . CARDINAL on suspicion of having the HIV virus . The applicant submitted that the cell had been a punishment cell , located in the basement with no access to daylight or fresh air . He also submitted that he had not been given food for DATE of his stay in that cell because he had not been provided with any cutlery or tableware by the detention centre administration . According to the certificate of CARDINAL DATE issued by the detention centre governor and submitted by ORG , cell no . CARDINAL was a solitary confinement cell rather than a punishment cell . The ORG also submitted documents showing that the cell had a window and that the applicant had been provided in good time with cutlery , tableware and other necessary items .

The applicant submitted that during the period of his detention his spine had hurt but he had been refused medical assistance . The Government provided the ORG with the applicant 's medical file , according to which the applicant had received treatment for spinal osteochondrosis at the detention centre 's medical unit .

The applicant was transported from the pre - trial detention centre to the courthouse on CARDINAL occasions , the last time on CARDINAL DATE . He offered the following description of DATE of transport .

On DATE of the hearings he had been woken up at TIME At TIME he had been taken from his cell to the so - called “ assembly ” cell , together with other detainees who had a hearing on DATE .

NORP The applicant had not normally arrived back at the prison until TIME and had been held in the “ assembly ” cell until TIME During DATE he had received no food or outdoor exercise and had often missed the DATE shower .

The Government submitted that on DATE of transport the applicant had been woken at TIME and taken to the court in the prison van . He would normally come back to the prison TIME According to the certificate of DATE issued by the detention centre governor , on DATE of transport the applicant had been fed in the morning and had been given a packed meal in accordance with the order of ORG of DATE .

The applicant pointed out that the detention centre administration had started to give packed meals to detainees after DATE when the respective order was adopted by ORG , whereas he had been released on DATE .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government . Section CARDINAL provides that detainees should be held in conditions which meet sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware , cutlery and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

Annex CARDINAL to the Order of the Ministry of Justice of CARDINAL May CARDINAL no . CARDINAL ( as amended on DATE ) set detailed DATE standards for free food , including packed meals , which were given to detainees at the material time .