Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE the applicant and her then husband ORG , who had decided to get divorced , entered into an agreement on the partition of their joint property . The agreement stipulated , inter alia , that ORG would transfer to her , within DATE , the ownership of LOC on FAC , unless they agreed on a different location . The agreement further stipulated that if the stated obligations were not fulfilled , the applicant could terminate the agreement and claim a share of the joint property in accordance with the relevant domestic law . On DATE the applicant and ORG divorced .

Subsequently , ORG did not transfer the ownership of LOC on FAC to the applicant . However , on DATE the applicant accepted the keys of certain LOC on FAC . After ORG had bought the latter premises , on DATE , he offered the applicant the possibility of signing a supplement to the agreement . According to the supplement , the applicant would receive MONEY of the LOC on FAC as a form of alternative performance of the relevant part of the agreement . The applicant refused to sign the supplement to the agreement .

On DATE she instituted proceedings in ORG ( PERSON sodišče v PERSON ) seeking termination of the agreement and partition of the joint property .

On DATE F.B. died and his heirs , PERSON , PERSON and PERSON , took over his capacity in the proceedings .

On DATE the court issued a partial judgment terminating the relevant agreement and rejecting the counter - claim lodged by PERSON , PERSON and PERSON ( “ the heirs ” ) .

On DATE ORG ( PERSON ) quashed the first - instance court ’s judgment and remitted the case for re - examination . The applicant then challenged that decision in an appeal on points of law , but that was rejected by ORG on DATE .

In the re - examination proceedings , on DATE , the ( renamed ) ORG ( NORP sodišče v PERSON ) issued a new judgment rejecting the applicant ’s claim . The court considered that the relevant agreement was not a “ fixed contract ” ( fiksna pogodba ) which could be terminated without allowing additional time for its performance . Moreover , from ORG ’s conduct it had not been apparent that he was not going to honour his obligation . The applicant should therefore have offered an additional time - limit to ORG In addition , the court found that ORG had in large part fulfilled his obligations and that the applicant , by accepting the keys to the LOC on FAC , had agreed to an alternative performance of the agreement .

On DATE ORG upheld the first - instance court ’s judgment . It , however , amended certain parts concerning the payment of costs and expenses .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) . She supplemented the appeal on DATE .

On DATE ORG upheld the applicant ’s appeal to the extent that it concerned the application of law by the lower courts , but dismissed the remainder . ORG considered that the interpretation of the relevant agreement concerned the application of the law . It then concluded that ORG had not fulfilled his obligations by offering the applicant only a share of the LOC on FAC . In addition , the applicant had not consented to the alternative performance nor had ORG showed an intention to fulfil his obligations . ORG consequently varied the lower courts’ judgments and terminated the relevant agreement . As far as the partition of the joint property was concerned , ORG remitted the case to the first - instance court .

CARDINAL of the heirs ( J.B.J. and B.E.B. ) lodged a constitutional appeal complaining , inter alia , of the arbitrariness of ORG judgment and of a breach of the provision guaranteeing equal protection of rights ( LAW ) . On DATE ORG ( PERSON sodišče ) accepted the appeal for consideration , which is equivalent to declaring it admissible . On DATE it upheld the appeal by CARDINAL votes to CARDINAL , quashed ORG judgment and remitted the case to ORG for re - examination ( decision no . Up-CARDINAL/CARDINAL ) . It would appear that the applicant was informed of that decision ( see paragraph CARDINAL below ) , but there is no document in the case file certifying as to when .

The Constitutional Court found that ORG decision was based on the interpretation of the parties’ motivation and of the content of the agreement . In its view , such interpretation constituted an interference with the facts established by the lower courts . However , according to the domestic legislation , ORG , when deciding on an appeal on points of law , had jurisdiction only for the determination of legal issues . ORG found that ORG decision was obviously erroneous and therefore arbitrary . This , and the fact that ORG had exceeded its jurisdiction , represented an interference with the appellants’ right to equal protection of rights .

In the re - examination proceedings , ORG , on DATE , again varied the lower courts’ judgments by terminating the relevant agreement and remitting the case to the first - instance court to determine the partition of the joint property .

After accepting for consideration the relevant part of the heirs’ further constitutional appeal on DATE , ORG , on DATE , quashed ORG judgment , dismissed the applicant ’s appeal on points of law and upheld ORG judgment of DATE . The decision was adopted by CARDINAL votes to CARDINAL ( decision no . Up-CARDINAL/CARDINAL ) .

The Constitutional Court found that ORG had again dealt with questions of fact DATE a matter over which it had no jurisdiction ; that it had failed to provide reasons for its decision , which was different from previous decisions adopted in other cases concerning the same issue ; and that it had disregarded the instructions given by ORG . The latter therefore again found a violation of the right to equal protection of rights . Using the special power afforded in section CARDINAL of LAW and because of the already lengthy duration of the proceedings , ORG , in order to secure effective judicial protection , decided on the merits of the case itself and upheld ORG judgment of DATE .

The Constitutional Court ’s decisions of CARDINAL DATE and DATE noted , under paragraph CARDINAL , as follows :

“ in accordance with the provisions of sections CARDINAL and CARDINAL of LAW , ORG served the constitutional appeal on ORG , on the opposite party ( plaintiff ) to the proceedings [ the applicant ] and on the third defendant in the proceedings . None of them replied to the constitutional appeal . ”

According to the applicant , she had not received a copy of the first constitutional appeal . On DATE , a note was prepared by an official in this connection on ORG premises . The note , which appeared to be part of the file no . Up CARDINAL/CARDINAL , mentioned that the constitutional appeal and admissibility decision of DATE had been handed over to the applicant .

In addition , the applicant submitted to the ORG copies of receipts relating to the attempt to serve the process by ORG , concerning the file no . Up CARDINAL/CARDINAL . It would appear that this process included a copy of the second constitutional appeal , the admissibility decision and a letter informing the applicant that the constitutional appeal had been accepted for consideration and that that the applicant should submit her comments within DATE . It transpires from the receipts that the process was sent by ORG on DATE but had not been served on the applicant . The address referred to in the receipts and the letter is different from the applicant ’s address as mentioned in her claim and in the decisions issued in the domestic proceedings , including in the last ORG judgment . According to the applicant , the address used to serve the process was actually the address of CARDINAL of the other parties to the proceedings .

LAW ( Zakon o Ustavnem sodišču , ORG no . CARDINAL ) provides , in so far as relevant , as follows :

“ For procedural questions which are not governed by LAW , the ORG shall apply the relevant provisions of legislation concerning [ ordinary ] court proceedings , taking into consideration the nature of the matter . ”

“ After being accepted , a constitutional appeal shall be referred to the body which issued the decision against which the constitutional appeal is lodged , in order for that body to reply to the constitutional appeal within a given time - limit . ”

“ CARDINAL . If ORG quashes a decision , it may also decide on a relevant right or freedom if such procedure is necessary in order to bring to an end consequences that have already occurred on the basis of the quashed decision , or if so required by the nature of the constitutional right or freedom , and provided that a decision can be given on the basis of information in the file .

On CARDINAL DATE ORG adopted amendments to LAW ( Official Gazette no . DATE ) . Section CARDINAL was amended to read :

“ CARDINAL . If ORG accepts a constitutional appeal for consideration , it shall inform the body which issued the decision against which the constitutional appeal is lodged accordingly . A ORG judge .... can request the body ... to submit information or an explanation necessary for the decision on the constitutional appeal .

In the above circumstances , the constitutional appeal should be sent to the persons who participated in the proceedings leading to the decision challenged in the appeal if that decision concerned CARDINAL of their rights , obligations or legal interests , so that they can reply to it within a certain time - limit . ”

Paragraph CARDINAL of section CARDINAL of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL , in force since DATE ) provides that an appeal on points of law is not allowed in respect of an alleged erroneous or insufficient establishment of the facts .

Under section CARDINAL of LAW , proceedings which have been finally concluded by a court decision ( pravnomočno končan ) can be reopened at the request of a party to the proceedings , if , inter alia , that party did not have an opportunity to give testimony in court , due to some illegality , in particular lack of service . The final conclusion of the proceedings in principle refers to the final decision against which no ordinary appeal lies ; that would normally be a decision of a first - instance court , or if an appeal has been lodged , that of a second - instance court .

Section CARDINAL of the same act provides that certain documents ( such as statements of claim , notices of extraordinary remedies or judgments which can be appealed against ) should be served on parties in person . If the party is not found at his or her address , the server should leave a note informing him or her of a new date on which he or she is to be served with the process . If the party is not found at his or her address on that date , the server will serve the process on , inter alia , an adult family member , who will be required to accept the process . If that is not possible , the server will return the process to the court or leave it at a local post office . The server will leave a note at the party ’s address informing him or her of the process and the DATE deadline for its collection . The note shall also state the reasons why the process was left at the post office or the court and the date of that event . Under the above conditions and , as the case may be , after the expiry of the deadline , the process will be considered to have been effectively served on the addressee ( sections CARDINAL ) .

The Government submitted CARDINAL decisions by which ORG had decided on requests for reopening of the proceedings before it . CARDINAL of them ( decision no . U - I-CARDINAL/CARDINAL of DATE and decision no . U - I-CARDINAL/CARDINAL of CARDINAL DATE ) concern proceedings by which the constitutionality and legality of a statutory act were being challenged ( postopek za oceno ustavnosti in zakonitosti ) . In both of them , ORG found that neither LAW nor any other legislation provided for the possibility of reopening such proceedings .

In the oldest of the remaining CARDINAL decisions concerning proceedings in which a constitutional appeal had been dismissed ( decision no . Up-CARDINAL/CARDINAL of CARDINAL DATE ) , the panel of CARDINAL members of ORG ( that is a formation in which a decision on admissibility is normally taken ) dismissed the request for reopening . It explained that the appellant had not invoked any of the grounds which would justify reopening under the relevant provision of LAW and section CARDINAL of LAW . Likewise , in all the remaining decisions ( decision no . Up-CARDINAL/CARDINAL of DATE , decision no . Up-CARDINAL/CARDINAL of CARDINAL DATE and decision no . Up-CARDINAL/CARDINAL of DATE ) ORG found that the appellants had not demonstrated any grounds which could justify reopening under LAW and the relevant provisions of the legislation concerning court proceedings . It therefore rejected the requests , but added that this decision was taken “ without considering the issue whether the reopening of the proceedings before ORG was actually possible ” .


No violation of Art. 6-1;No violation of Art. 6-2

ORG Mr PERSON , a NORP national born in DATE , resides in GPE with his family .

ORG On DATE , PERSON went to FAC to collect a parcel which he had been informed by telex message was to arrive on board an ORG flight . According to the applicant , he expected the parcel to contain samples of NORP food sent to him through the intermediary of CARDINAL of his relatives who was an ORG employee . As he was unable to find it , he approached an airline official who directed him to a padlocked trunk which had remained uncollected and bore an ORG luggage ticket but no name . The official , acting on the advice of police officers watching the trunk , suggested that he left it where it was , intimating to him that it might contain prohibited goods .

The applicant took possession of it nevertheless , and passed through customs without difficulty . He had chosen to go through the " green channel " for passengers having nothing to declare . He was accompanied by CARDINAL other NORP nationals whom he had met there for the first time . Immediately afterwards he telephoned to his brother PERSON to come and meet him at a terminal near their home in order to help him since the package had proved heavier than expected .

ORG officials then detained Mr PERSON and his CARDINAL companions as they were about to board the ORG terminal coach . Mr Salabiaku identified himself as the person for whom the trunk had been intended and denied that it was anything to do with his CARDINAL compatriots who were immediately released .

ORG officials forced the lock of the trunk and found , lying underneath victuals , a welded false bottom which concealed QUANTITY of herbal and seed cannabis . The applicant asserted that he was unaware of the presence of the cannabis and that he had mistaken the trunk for the parcel of whose arrival he had been advised . His brother was also arrested at the Porte Maillot ( GPE ) .

ORG On DATE , ORG telephoned to Mr Amosi and Mr PERSON landlord , informing him that a parcel bearing the applicant ’s name and his address in GPE had arrived by mistake in GPE . It was opened by an investigating judge but was found to contain only manioc flour , palm oil , pimento and peanut butter .

Mr Amosi and Mr PERSON were released on DATE and , together with a certain PERSON , also a NORP national , were charged with both the criminal offence of illegally importing narcotics ( Articles PERSON , L. CARDINAL , L. CARDINAL , L. CARDINAL - CARDINAL , PERSON . of ORG ) and the customs offence of smuggling prohibited goods ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Customs Code , ORG CARDINAL , CARDINAL - CARDINAL et seq . and CARDINAL of LAW ) . By an order dated DATE , they were committed for trial before ORG , ORG .

ORG On DATE , the CARDINALth Chamber of this court acquitted Mr PERSON and PERSON giving them the benefit of the doubt but found the applicant guilty . It stated in particular :

" The accused ’s bad faith is evidenced by the fact that he showed no surprise when the first package opened in his presence turned out to contain none of the foodstuffs contained in the second package , although he described clearly what he claimed to be expecting from PERSON and received in the second .

The latter package arrived in GPE in circumstances which it has not been possible to determine and its existence can not rebut presumptions which are sufficiently serious , precise and concordant to justify a conviction .... "

Consequently , the court imposed on Mr PERSON a sentence of CARDINAL years’ imprisonment and a definitive prohibition on residing in NORP territory . Furthermore , in respect of the customs offence , it imposed on him a fine of MONEY ( FF ) , under LAW , to be paid to the customs authorities , which had joined the proceedings as a civil party .

ORG The applicant and ORG appealed .

On DATE , ORG ( CARDINALth Chamber ) set aside the judgment with regard to the criminal offence of illegal importation of narcotics , on the following grounds :

" ... the facts alleged against the accused are not sufficiently proven ; ... in fact , although Mr PERSON , who had been expecting only a parcel of victuals , took possession of a very heavy trunk secured by a padlock to which he did not have the keys , which bore no name of any addressee and for which he did not have the corresponding luggage ticket counterfoil , it has been established that a package in his name containing victuals arrived DATE afterwards in GPE on an ORG flight from GPE . This package had apparently been sent to GPE in error , its intended destination being GPE ;

... in those circumstances , it is not impossible that Mr PERSON might have believed , on taking the trunk , that it was really intended for him ; ... there is at least a doubt the benefit of which should be granted to him , resulting in his acquittal ... "

The court , on the other hand , upheld the first - instance decision as regards the customs offence of smuggling prohibited goods :

" ... any person in possession ( détention ) of goods which he or she has brought into GPE without declaring them to customs is presumed to be legally liable unless he or she can prove a specific event of force majeure exculpating him ; such force majeure may arise only as a result of an event beyond human control which could be neither foreseen nor averted ... ;

... Mr PERSON went through customs with the trunk and declared to the customs officials that it was his property ; ... he was therefore in possession of the trunk containing drugs ;

... he can not plead unavoidable error because he was warned by an official of ORG ... not to take possession of the trunk unless he was sure that it belonged to him , particularly as he would have to open it at customs . Thus , before declaring himself to be the owner of it and thereby affirming his possession within the meaning of the law , he could have checked it to ensure that it did not contain any prohibited goods ;

... by failing to do so and by having in his possession a trunk containing QUANTITY of herbal and seed cannabis , he committed the customs offence of smuggling prohibited goods ... "

ORG also confirmed the fine of CARDINAL ORG imposed on the applicant ; it fixed at the minimum period the duration of imprisonment for non - payment .

Mr PERSON appealed on points of law . He relied on DATE CARDINAL of Article CARDINAL ( article DATE , article DATE ) of the Convention : in his submission , by placing upon him an " almost irrebuttable presumption of guilt " , which " operated in favour of the customs authorities " , ORG had violated both his right to a fair trial and his right to be presumed innocent until proved guilty .

ORG ) dismissed the appeal on CARDINAL DATE , finding that the judgment appealed against had " properly " applied LAW para . CARDINAL of LAW , under the terms of which " the person in possession of contraband goods shall be deemed liable for the offence " :

" ... contrary to what is alleged , the aforementioned Article was not repealed by implication by GPE ’s adhesion to the Convention ... and had to be applied since ORG , which reached its decision on the basis of the evidence adduced by the parties before it , found that the accused was in possession of the trunk and inferred from the fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid . "

Infringements under LAW constitute criminal offences with various specific characteristics .

The Customs Code essentially prohibits smuggling ( Articles CARDINAL to CARDINAL ) and undeclared importation or exportation ( Articles CARDINAL to CARDINAL ) . This case is concerned solely with smuggling . The notion of smuggling covers " any importation or exportation effected outside official customs LOC and any infringement of the provisions or regulations concerning the possession and transport of goods within the customs territory " ( Article CARDINAL para . CARDINAL ) , for example , but not exclusively , where the goods concerned are " prohibited on importation " ( Article CARDINAL para . CARDINAL , to be read in conjunction with LAW ) .

ORG At the material time LAW classified these infringements in CARDINAL classes of petty offences ( contraventions ) and CARDINAL of more serious offences ( délits ) . Articles CARDINAL to CARDINAL imposed " primary penalties " which varied according to the gravity of the infringement : such penalties included fines fixed either within set maximum and minimum limits ( Articles CARDINAL para . CARDINAL , CARDINAL and CARDINAL bis ) or at " between CARDINAL and CARDINAL times the amount of duty and taxes evaded or unpaid " ( Article CARDINAL para . CARDINAL ) , " the value of the disputed goods " ( Article CARDINAL ) , of " the contraband article " ( Articles CARDINAL and CARDINAL ) or of " the confiscated articles " ( Article CARDINAL ) , with a fixed minimum ( Article CARDINAL ) ; confiscation of " the disputed goods " ( Article CARDINAL ) or " the contraband article " , " the means of transport " and " articles used to conceal the offence " ( Articles CARDINAL , CARDINAL and CARDINAL ) ; and imprisonment for terms of DATE ( Article CARDINAL bis ) , DATE ( Article CARDINAL ) , DATE ( Article CARDINAL ) or DATE ( Article CARDINAL ) , according to the type of offence involved .

Mr PERSON was charged under LAW , according to which :

" Any act of smuggling and any undeclared importation or exportation of goods falling within the category of goods which are prohibited ... , on importation , ... , shall be punishable by the confiscation of the contraband article , confiscation of the means of transport employed , confiscation of articles used to conceal the offence , a fine of not less than the value of the contraband article and not CARDINAL times its value and a term of imprisonment of DATE . "

Certain of these punitive measures - fines not fixed in advance and confiscations - are also described as " fiscal penalties " ( Articles CARDINAL para . CARDINAL and CARDINAL ) . In general they are regarded as being compensatory in nature in so far as they are intended to make good loss sustained by the customs authorities .

There are also a number of " additional penalties " ( Articles CARDINAL to CARDINAL ) , including in particular measures of disqualification ( Article CARDINAL ) .

Both primary and additional penalties may give rise to an entry in the criminal record of the person concerned .

Seizure " reports " drawn up " by a customs officer or any other official " may constitute - and usually do - evidence of customs offences ( ORG CARDINAL to CARDINAL ) . Depending on whether they are issued by CARDINAL or more officials , they attest " the facts which they record " merely until " the contrary is proved " or until " forgery proceedings have been instituted " ( Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ) . They are " remitted to ORG and the persons charged with the offence are brought " before him ( Article CARDINAL para . CARDINAL ) .

The initiative for instituting prosecution lies with ORG for " criminal penalties " , stricto sensu , and with the customs authorities - or ORG , " in conjunction with the criminal proceedings " - for " fiscal penalties " ( LAW . District courts have jurisdiction to try petty customs offences , and criminal courts , more serious customs offences ( Articles CARDINAL and CARDINAL ) . In principle the procedure follows the rules of the ordinary law ( Articles CARDINAL , CARDINAL and CARDINAL ) .

ORG The offence with which the applicant was charged - the smuggling of narcotics , " prohibited goods " ( LAW does not necessarily require possession . However , where possession is established , " the person in possession ... is deemed liable for the offence " , without prejudice to any penalties which may be incurred by other persons , for example any accomplices ( LAW ) or " persons with an interest in the offence " ( LAW ) . This principle is set out in LAW para . CARDINAL .

The provision in question appears in LAW ( " Liability and Joint Liability " ) of Title XII ( " Contentious Proceedings " ) of LAW , at DATE I ( " Criminal Liability " ) , and not among the " punitive provisions " of LAW . It is a general clause which applies both to smuggling offences and undeclared importation or exportation as well as to any " unlawfully imported or exported goods " , irrespective of whether they are prohibited as such .

Read strictly this provision would appear to lay down an irrebuttable presumption , but , in any event , its severity has been to some extent moderated by the decisions of the courts . Thus ORG now upholds the trial court ’s unfettered power of assessment with regard to " evidence adduced by the parties before it " ( see , for example , the PERSON judgment of DATE , Bulletin no . CARDINAL , p. CARDINAL ) and recognises that the accused may exculpate himself by establishing " a case of force majeure " resulting " from an event responsibility for which is not attributable " to him and which " it was absolutely impossible for him to avoid " , such as " the absolute impossibility ... of knowing the contents of [ a ] package " ( see , for example , ORG and PERSON judgment of DATE , ORG , DATE , jurisprudence , pp . CARDINAL - CARDINAL , and the judgment delivered in this case on CARDINAL DATE , paragraph CARDINAL above ; see further ORG , GPE , DATE , PERSON and Others , ORG , DATE , jurisprudence , pp . CARDINAL - CARDINAL ) . At the same time LAW , which concerns third parties " with an interest in the offence " and not " persons in possession " , states in paragraph CARDINAL thereof that " the interest in the offence can not be imputed to a person who has acted out of necessity or as a result of unavoidable error " .

On the other hand under paragraph CARDINAL of Article CARDINAL the courts were required to refrain from " acquitting offenders for lack of intent " . While it is true that PERSON no . CARDINAL - CARDINAL of DATE repealed this provision , clearly this had no effect on the present case .

It is necessary to distinguish between the possibility of a simple acquittal and that provided for in Article CARDINAL para . CARDINAL : namely recognition of extenuating circumstances . In such cases the court may , inter alia , " refrain from imposing on the accused the criminal penalties laid down in the ... Code " , order that their enforcement be suspended or decide " that the conviction should not be entered in ‘ Bulletin no . CARDINAL of the criminal record " , order the return to the person concerned of certain confiscated goods or reduce the amount of the " fiscal fines " .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine P1-1;Violation of P4-2

On DATE GPE police officers spotted an occupied vehicle parked in a car park . It turned out that the vehicle had been stolen DATE in GPE . The investigators proceeded to arrest GPE , who had come to take delivery of the stolen vehicle , and GPE , who had handled it . The on - the - spot investigation established that other transactions had taken place and that the CARDINAL arrested men used to meet in a hotel in GPE ( Bas - Rhin ) . The police officers went to the hotel where they arrested PERSON 's wife and Miss ORG while the latter was about to get into a vehicle belonging to the applicant .

When questioned at the hotel ORG stated that her boyfriend , the applicant , had been staying at the hotel for some time , but had been taken into hospital in GPE on DATE because his health had given cause for alarm .

Their hotel room was searched . The investigators seized a NORP passport in the applicant 's name , MONEY ( ORG ) and MONEY ( ORG ) found in ORG 's handbag , bank documents , a vehicle registration certificate and various hand - written documents . Those items were sealed and deposited at the consignment of exhibits department at the GPE tribunal de grande instance .

After her release from police custody no court proceedings were brought against TIME were brought against the applicant either .

On DATE ORG were charged by an investigating judge of the GPE tribunal de grande instance .

The applicant 's lawyer lodged an application under LAW on DATE , registered at the investigating judge 's office on DATE , requesting the investigating judge to return the money and other seized items , including the passport . He received no reply from the investigating judge .

On DATE the applicant was arrested by the criminal police of GPE ( GPE ) and convicted by a criminal court in PERSON . Since then he has since been imprisoned in FAC , where he is due to remain until DATE .

O.H. and GPE were committed for trial at ORG where they were tried and convicted on DATE without the applicant or his girlfriend having been informed . The applicant could not therefore lodge an application for the return of his possessions with the criminal court trying the case .

On DATE the applicant 's lawyer renewed his request to the investigating judge of DATE . He received no reply .

On DATE the applicant 's lawyer lodged an application with the public prosecutor under LAW for the return of the DEM CARDINAL,CARDINAL , the bank statements and a rechargeable mobile - telephone battery .

On DATE the public prosecutor refused his application on the ground that the items had been confiscated by order of ORG in its judgment of DATE in the proceedings against ORG PERSON In his reply the public prosecutor referred to the application lodged with the investigating judge on DATE and renewed on DATE .

On DATE the applicant 's lawyer lodged an application with ORG of the GPE tribunal de grande instance under LAW for the return of the seized items . The application , which just bore the stamp of the GPE public prosecutor 's office , dated DATE , concerned the applicant 's passport , the DEM CARDINAL , the bank statements and the rechargeable mobile - telephone battery .

On DATE the public prosecutor replied to that application as follows :

“ Despite my letter of DATE advising you that nothing could be returned to PERSON on any grounds whatsoever because the court had ordered confiscation of the sealed items , you persist in wishing to obtain a hearing in connection with the sealed items in question .

I regret to have to repeat myself in pointing out that the judgment dated DATE has become res judicata and that LAW does not provide for the reopening of proceedings terminated by a confiscation decision which has become final .

Article CARDINAL of the Code of Criminal Procedure is reserved for interlocutory applications relating to the execution of a decision and not disputes about the penalties imposed . The court in question did not have any power to reconsider a measure which had become res judicata . ... ”

NORP In a letter of CARDINAL DATE ORG requested the public prosecutor to return the seized LAW and ORG CARDINAL,CARDINAL on the ground that the money belonged to her and that she was not in any way involved in the criminal proceedings . In a letter of DATE she renewed her request , stating among other things : “ my ex - boyfriend has put me in a difficult position which has seriously changed my life ... I have incurred debts because of him ... it is very important for me to recover my money ... ”

The relevant provisions of LAW provide :

“ Where the nature of the crime is such that it can be proved by seizing papers , documents or other objects in the possession of persons who appear to have participated in the crime or to hold documents or objects relating to the offence , a senior police officer shall immediately go to their place of residence where he shall search the LOC and draw up a search report .

He alone , together with the persons listed in LAW and those to whom he may refer under LAW , shall have power to examine papers or documents before seizing them .

However , he must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected .

An inventory shall be made immediately of all seized objects and documents which shall then be placed under seal . Where an on - the - spot inventory presents difficulties , the items shall be provisionally sealed until an inventory of them can be made and they can be definitively sealed , which shall be done in the presence of the persons present during the search in accordance with the conditions laid down in LAW .

With the agreement of the public prosecutor , the senior police officer shall retain only those objects and documents necessary for establishing the truth . ”


CASE OF TEMPESTI CHIESI AND CHIESI v. ITALY

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

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

They are the owners of a flat in GPE , which they had let to GPE

In a writ served on the tenant on DATE , the applicants informed him of their intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

In the meanwhile the tenant died and his wife refused to leave the LOC .

On DATE , the applicants made a statutory declaration that they urgently required the premises as accommodation for their son .

On DATE , the applicants served notice on the tenant requiring her to vacate the premises .

On DATE , they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicants were never granted the assistance of the police in enforcing the order for possession .

In the meanwhile , on DATE , the applicants made a second statutory declaration that they urgently required the premises as accommodation for their son .

Pursuant to section CARDINAL of Law no . CARDINAL , on DATE , the tenant asked for a suspension of the enforcement proceedings . The Florence Magistrate suspended the proceedings until DATE .

On DATE , the applicants recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies .

Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .

NORP The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , LAW provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of CARDINAL DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

ORG declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


CASE OF ASADBEYLI AND OTHERS v. AZERBAIJAN

Remainder inadmissible;Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants were participants in or were alleged to be organisers of the unauthorised demonstration of CARDINAL DATE , which escalated into violent clashes between the law - enforcement authorities and the demonstrators , as described below .

The events of the present case occurred in the aftermath of the presidential elections of DATE . The main opposition candidate , PERSON , the chairman of ORG , lost the elections of DATE .

On TIME of DATE a group of opposition supporters gathered in front of ORG headquarters in the centre of GPE , claiming victory for their candidate in the election . Violent altercations between opposition supporters and the security forces took place at this time .

At TIME on DATE a number of opposition supporters started gathering near ORG , in the centre of GPE , to protest against the election results . The crowd then started moving towards FAC , the main square in the city . It was reported that on the way some people in the crowd began damaging cars , buildings , benches and other urban constructions . It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence .

It has been claimed that some police officers who had been deployed in FAC were attacked by some of the demonstrators . Shortly thereafter large numbers of riot police and military personnel , fully equipped with helmets , shields and truncheons , arrived in the square with the aim of dispersing the demonstration . The situation quickly escalated into public disorder , and violent clashes occurred between the crowd and the police . It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question .

At TIME the demonstration was completely dispersed . CARDINAL people were arrested during the events of DATE and in their aftermath .

On DATE ORG instituted criminal proceedings ( case no . CARDINAL ) concerning the events of CARDINAL and QUANTITY DATE . CARDINAL people , of the CARDINAL arrested in connection with those events , were eventually prosecuted in connection with those proceedings . The proceedings concerned only the actions of the organisers of the demonstration and those participating in it , and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration ( see Muradova v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , DATE ) .

Almost the whole pre - trial investigation , in respect of all the defendants , was conducted in the context of this single set of criminal proceedings . However , as the investigation drew close to completion , criminal case no . DATE was gradually split into several cases , eventually dividing the accused into CARDINAL separate groups . It appears that the only reason formally given by the prosecution for splitting up the case was the concern that the sheer number of defendants involved ( CARDINAL ) would prolong the proceedings and that it would be impractical to hold a single trial involving so many defendants ( see ORG and Others v. GPE , QUANTITY . CARDINAL/CARDINAL , GPE , ORG and CARDINAL , LAW , CARDINAL DATE ) . Furthermore , it appears that no significant investigative steps were taken after the cases were split ( ibid . , § § CARDINAL and CARDINAL ) . Each of the CARDINAL defendant groups thus created was tried separately . CARDINAL of those trials concerned the events of DATE : they were all conducted by ORG and were completed in DATE and DATE ( CARDINAL trial concerned the events of DATE , and this trial was conducted by ORG ) . All the defendants in those trials , including the applicants in the present case , were found guilty and sentenced to either imprisonment , suspended prison terms or restriction of liberty .

The circumstances relating to each individual applicant in the present case are summarised separately below .

Mr B. Asadbeyli was the head of the PERSON branch of ORG . PERSON , PERSON and PERSON held various positions within ORG . PERSON and PERSON E. ORG were students at a public university and had no formal affiliation to any political party .

Applicant H. ORG died on DATE , after the events described below and after the present application had been lodged with the ORG . His brother , Mr ORG , expressed a wish to continue pursuing the application on his behalf .

Mr S. GPE was arrested on DATE during the dispersal of the demonstration by the police . He was charged with “ organising or participating in public disorder ” and “ use of violence against public officials ” under LAW and CARDINAL of LAW . On DATE ORG remanded him in custody for a period of DATE .

Mr PERSON was also arrested on DATE . He states that the arresting police officers issued a “ report on an administrative offence ” ( inzibati xəta barədə protokol ) , accusing him of non - compliance with police orders in FAC , an offence under LAW ( “ the CAO ” ) .

It appears from the documents submitted by the Government that on DATE PERSON was brought before the judge of ORG in connection with the charge under the ORG . According to the transcript of the hearing , the applicant admitted that he had not complied with police orders , and expressed remorse for his actions . On DATE the ORG convicted him under Article CARDINAL of the ORG and sentenced him to CARDINAL days’ “ administrative detention ” .

On DATE Mr E. ORG lodged an appeal seeking a reduction of his sentence on the grounds of family circumstances and the fact that he was a student . On DATE , DATE , ORG reduced the sentence to CARDINAL days’ detention and , having regard to the fact that he had already been in detention for DATE , ordered his immediate release .

According to PERSON , no copies of decisions concerning these administrative proceedings were made available to him .

NORP However , soon after his release from “ administrative detention ” , Mr E. Mammadov was arrested again and charged with “ organising or participating in public disorder ” and “ use of violence against public officials ” under LAW and CARDINAL of LAW . In particular , he was accused of joining other participants in the demonstration in destroying public benches and asphalt and concrete revetments of pavements and roads , and of using stones as well as wooden and concrete debris obtained from the properties destroyed to assault police officers in FAC , in a manner posing a danger to their life and health .

Mr E. ORG was then remanded in custody pending criminal trial .

During their pre - trial detention , both PERSON GPE and PERSON E. ORG were expelled from the university .

On DATE Mr B. Asadbeyli , Mr S. Hamidov , Mr E. Huseynli and PERSON were taken from their homes to ORG for questioning . TIME they were allowed to go home but were instructed to come back TIME . On DATE they were taken to ORG in GPE . When they arrived in GPE they were held in a police car for TIME outside the building of ORG . In the evening they were taken into the building and questioned . On DATE they were questioned in the absence of a lawyer .

Following the questioning , the CARDINAL applicants were charged with “ organising or participating in public disorder ” and “ use of violence against public officials ” . On DATE ORG , issuing separate detention orders for each of the CARDINAL applicants , remanded them in custody for DATE . Some of the applicants were represented by Stateappointed lawyers at the hearings .

On DATE the court replaced Mr PERSON ’s detention with a written undertaking not to leave his place of residence , and he was released pending trial .

According to the applicants , prior to their trial , several high - ranking state officials , including ORG and the Minister of ORG , made public statements on television and in newspapers , referring to the participants in the demonstration of DATE as “ criminals ” and promising that they would be punished .

In the course of the investigation , following a request by the prosecution , ORG authorised ORG to obtain from ORG , a cellular network operator , detailed information on all mobile phone connections registered during the period from TIME on DATE in the area around FAC , with the purpose of establishing whether various defendants were present in the square at the relevant time . However , according to PERSON GPE , he subsequently discovered that the case file contained print - outs of a “ call details report ” concerning all his private phone calls made over a longer time span and a larger geographical area than those authorised by the court .

All the applicants were tried together by ORG ( this trial was referred to as “ ORG CARDINAL ” in the PERSON report cited below ) . In total , there were CARDINAL defendants in the case , including the applicants .

The court relied on statements from a number of police officers as witnesses , who testified against the demonstrators . During the pre - trial investigation several police officers were shown photographs of the applicants and recognised them as demonstrators who had been throwing stones at police officers during the events of DATE . According to the applicants , they were not given an opportunity to meet these witnesses during the pre - trial investigation or to cross - examine them during the trial . According to the Government , the applicants were able to question all the witnesses who testified in court .

By a judgment of DATE , ORG convicted all the applicants as charged under ORG CARDINAL and CARDINAL of LAW . PERSON GPE , Mr NORP Hamidov , Mr H. ORG and Mr E. ORG were given suspended sentences of DATE and CARDINAL months’ imprisonment and released immediately from the courtroom . Mr E. Huseynli and Mr S. GPE were sentenced to CARDINAL and CARDINAL years’ imprisonment respectively .

All the applicants appealed against ORG judgment of DATE . ORG examined all CARDINAL appeals together . According to the applicants , they were not notified in advance of the time of the hearing at ORG . Only Mr B. GPE , Mr S. GPE and the latter ’s lawyer were able to attend the hearing . Mr B. Asadbeyli learned of the examination of the appeal by chance on DATE the hearing was held . On DATE ORG dismissed the ORG appeals and upheld ORG judgment of DATE . That court reduced the sentences of PERSON and PERSON GPE to DATE and DATE respectively .

On DATE Mr E. ORG lodged a cassation appeal against ORG judgment . According to the Government , on DATE ORG informed the applicant of the date of the hearing ; however , the applicant failed to request the court to ensure his presence at the hearing and both the applicant and his lawyer failed to appear at the hearing . However , according to the applicant , he did not receive any response from ORG to his cassation appeal .

After his release from prison , on DATE Mr PERSON sent an inquiry to ORG concerning his appeal . On DATE ORG sent him a letter informing him that his appeal was still pending and stating , inter alia : “ ... your cassation appeal will be examined . ”

According to Mr PERSON , his appeal was never examined .

On an unspecified date , Mr S. GPE lodged a cassation appeal with ORG . In reply , on DATE ORG sent him a letter stating the following :

“ ORG has received your cassation appeal . We would like to inform you that if you disagree with the judgment of ORG , you may lodge a cassation appeal with ORG in accordance with Articles CARDINAL - CARDINAL of the Code of Criminal Procedure . ”

The other CARDINAL applicants , PERSON GPE , Mr NORP Hamidov , Mr H. ORG and Mr E. ORG , also lodged cassation appeals against ORG judgment of DATE . ORG examined their appeals together and , on DATE , dismissed them , upholding the lower courts’ judgments . The full text of ORG decision was sent to the applicants on DATE .

Mr S. GPE served his full DATE prison sentence and was released on DATE .

Following a presidential pardon decree , on DATE Mr PERSON was released from serving the remainder of his sentence of CARDINAL years’ imprisonment .

The applicant was arrested on DATE during the dispersal of the demonstration .

After the arrest , he was taken to the LOC police station and later to the LOC police station . His family was not informed of his arrest . According to the applicant , at both police stations he was questioned in the absence of a lawyer . Interrogations were accompanied by illtreatment , in order to make him confess that he had actively participated in the disorder and had used violence against police , as well as to disclose the names of the organisers of the disorder .

On DATE the applicant was formally charged under LAW and CARDINAL of LAW . He was then taken to ORG , where , he states , he was forced to sign selfincriminatory statements .

On DATE , a district court in GPE remanded the applicant in custody for DATE . This decision was taken in the applicant ’s absence . He was not informed of the decision and was not given a copy of it . He was still unrepresented by a lawyer at this stage .

On DATE the applicant ’s parents were informed about the applicant ’s arrest . On DATE he was allowed to meet his lawyer for the first time .

The trial at ORG began on DATE ( ORG CARDINAL ) . The applicant was tried with CARDINAL others , including another applicant in this case , Mr PERSON . During the first hearing , the applicant declared that he was not guilty and claimed that he had been forced to give self - incriminatory evidence during DATE in detention . He asked the court not to admit in evidence his statements made during the pre - trial investigation . Some of the other defendants made similar complaints and requests .

Following the applicant ’s allegations of ill - treatment in pre - trial detention , the court ordered a medical examination of the applicant . According to the forensic report of DATE , the forensic expert found no injuries which could have been inflicted at the time and in the circumstances alleged by the applicant . The applicant ’s lawyer protested , claiming that he had not been informed about the time and place of the medical examination and was therefore unable to put questions to the medical expert . His request for a new medical examination was refused . The court found the applicant ’s and other GPE allegations of ill - treatment unsubstantiated and admitted in evidence their statements given during pretrial investigation .

During the trial , the court heard and relied on statements from CARDINAL prosecution witnesses ( the great majority of whom were police officers and military personnel ) who testified against all demonstrators in general , describing the public disorder which had taken place and characterising the demonstrators’ intentions and actions as violent . The court also heard CARDINAL police officers who testified against the applicant in particular ; they stated that they had seen the applicant throwing stones at police officers . The court also watched a video recording which allegedly identified the applicant as one of the demonstrators throwing stones and running around with a club and a shield in his hands . The court refused the applicant ’s request for witnesses to be examined who would testify to violence by law - enforcement officers against peaceful demonstrators , and also refused to admit in evidence a video recording and photographs with scenes of police brutality against demonstrators . The court noted that this evidence did not contain any information specifically concerning the applicant , and was therefore irrelevant .

DATE . On DATE ORG convicted the applicant of organising mass disorder and use of violence against the police , and sentenced him to CARDINAL years’ imprisonment .

The applicant lodged an appeal , complaining , inter alia , that ORG had conducted the proceedings unfairly and had relied only on the evidence provided by police officers . On DATE ORG dismissed the appeal and upheld ORG judgment . On DATE ORG upheld the lower courts’ judgments .

The applicant was an active member of ORG . He was an election observer during the presidential elections of DATE .

On DATE the applicant was taken from his home to a police station and questioned . He told the police that during the events of CARDINAL DATE he had not been present in FAC but had been in another part of the city . He was then allowed to leave the police station .

NORP However , on DATE he was arrested and accused of resisting the police when he had been called to the police station to testify about the events of DATE . The applicant was brought before a judge of ORG who , on DATE , found the applicant guilty of resistance to the police under LAW , and sentenced him to CARDINAL days’ “ administrative detention ” .

On DATE , the applicant was taken to ORG of ORG ( “ the ORG ” ) where he was asked questions about his role in the events of DATE . According to the applicant , the interrogators beat him and burned him with cigarettes . He was held in the ORG until DATE . He stated that throughout his detention he was ill - treated by various means , such as beating , crushing his fingers and toes , and burning his skin with cigarettes .

On DATE the applicant was taken to ORG for interrogation , but refused to testify because his lawyer was absent . He was taken back to the ORG .

The applicant was charged with “ organising or participating in public disorder ” and “ use of violence against public officials ” . On DATE the applicant was taken to an unspecified district court , which remanded him in custody for DATE . The applicant was not represented by a lawyer during this hearing . Following this , the applicant was transferred from the ORG ’s detention facility to ORG no . CARDINAL .

The applicant was tried at ORG with CARDINAL others ( ORG ) , CARDINAL of whom was another applicant in this case , Mr PERSON ( see section C. above ) . It appears that during the trial he was represented by a ORG - appointed lawyer . In his submissions to the court , the applicant maintained that he was not in FAC on DATE .

Some of the facts concerning the trial and witnesses heard by the court have been described above ( see paragraph CARDINAL above ) . As to the applicant ’s particular situation , the court heard statements from several police officers and CARDINAL civilian witness , who had been shown a photograph of the applicant during the pre - trial investigation and had identified him as CARDINAL of the demonstrators who had been throwing stones at the police officers during the events of CARDINAL DATE . According to the applicant , those statements were false and hearsay evidence . The witnesses gave the same statements during the trial . According to the applicant , he was not given an opportunity to confront the witnesses during the pre - trial investigation . According to the ORG , he was given an opportunity to confront them at the trial hearings .

According to the applicant , during the trial , he requested the court to hear CARDINAL witnesses who could confirm that he was not in FAC on DATE . However , the court heard CARDINAL of these witnesses and refused to hear the other CARDINAL .

The applicant also complained before ORG that he had been ill - treated during his detention in the ORG ’s detention facility . The court requested that the applicant be medically examined by a forensic expert . The forensic report of DATE found a dark bruise on CARDINAL of the fingers of the applicant ’s left hand and CARDINAL dark spots on his belly . The expert estimated that the bruise on the finger had most likely been caused by a hard blunt object DATE before , while the dark spots on the belly could be considered marks of burns which had been inflicted DATE before . The court also had regard to a letter from ORG . CARDINAL , dated DATE , stating that no injuries had been observed on the applicant ’s body when he was transferred to ORG . CARDINAL on DATE . The court concluded that the applicant ’s allegations that he had been ill - treated in the ORG ’s detention facility during the period DATE and DATE were not supported by the available evidence .

On DATE ORG found the applicant guilty of both the charges against him and sentenced him to CARDINAL years’ imprisonment .

Following an appeal by the applicant , on DATE ORG upheld ORG judgment of DATE . On CARDINAL DATE ORG upheld the lower courts’ judgments .

Following a presidential pardon decree of CARDINAL DATE , the applicant was released from serving the remainder of his sentence .

The applicant was a member of ORG . During the presidential elections of DATE he was the chairman of the GPE regional headquarters for ORG electoral campaign .

The applicant was in FAC on DATE . He went back to GPE on DATE , after the demonstration . In TIME of CARDINAL DATE he was taken to a local police station and questioned . In TIME of CARDINAL DATE he was taken to GPE , where he was detained in a police station until DATE .

On DATE the applicant was formally charged with “ organising or participating in public disorder ” and “ use of violence against public officials ” . On DATE ORG remanded the applicant in custody for DATE . During the court hearing , the applicant was represented by a ORG - appointed lawyer whom he had not met before . The lawyer did not introduce himself to the applicant and did not talk to him . The applicant did not meet this lawyer again after the hearing of DATE .

The applicant was tried by ORG with CARDINAL others ( ORG ) . It appears that he was represented by a lawyer during the trial . In his submissions to the court , the applicant denied that he had personally taken part in any violence during the events of DATE , and claimed that he had left FAC as soon as he saw the first signs of confrontation between demonstrators and police . The court relied on statements from CARDINAL prosecution witnesses , mostly police officers and internal forces soldiers , who testified against all the demonstrators as a group , describing the public disorder which took place . During the pre - trial investigation , CARDINAL police officer and CARDINAL soldier were shown a photograph of the applicant and recognised him as CARDINAL of the demonstrators who had been throwing stones at the police officers during the events of DATE . According to the applicant , he was not given the opportunity to meet these witnesses during the pre - trial investigation or to cross - examine them during the trial . According to the Government , the applicant ’s lawyer had questioned them at the trial hearings .

DATE . On DATE ORG found the applicant guilty of both the charges against him and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE ORG upheld this judgment . It appears from the case file that the applicant ’s lawyer , but not the applicant himself , was present at the appellate hearings . On DATE ORG upheld the lower courts’ judgments . The applicant was sent the full text of ORG decision on DATE . According to the applicant , neither he nor his lawyer were present at any of the appeal hearings .

In accordance with a presidential pardon decree of DATE , the applicant was released from serving the remainder of his prison sentence . Despite his early release , in accordance with LAW , the applicant ’s conviction would remain on his criminal record for DATE after he was released .

In DATE the applicant made an application to ORG for early expunging of the conviction from his criminal record , in accordance with LAW , taking into account his good behaviour in prison and after release . On DATE the ORG refused this application . ORG and ORG upheld this decision on DATE and CARDINAL DATE respectively .

According to the applicant , he had intended to stand as a candidate in the parliamentary elections of DATE . However , under the electoral law , his recent conviction record precluded him from doing so .

The applicant was the chairman of several non - governmental organisations dealing with issues of civil society and freedom of religion , a chief editor of a magazine and an information portal , and a religious leader of a small congregation of NORP . During the presidential elections of DATE , he publicly supported PERSON .

The applicant was in FAC on DATE . According to him , he left the square prior to the eruption of violence between the demonstrators and the police , and observed the subsequent events from a distant location .

On DATE the applicant was leading public prayers in FAC . During the prayers , a number of police officers surrounded the mosque with the intention of arresting the applicant . The applicant managed to avoid arrest with the aid of some “ members of the international community ” in GPE who , according to the applicant , included representatives of the LOC , ORG and some foreign embassies . He was taken to the NORP embassy , where he remained for DATE .

DATE . According to the applicant , on DATE , state television reported that all the “ organisers ” of the public disorder of DATE had been arrested , with the exception of the applicant and CARDINAL other person .

The applicant left the NORP embassy after receiving guarantees that “ no unlawful actions would be taken against him ” . Shortly thereafter , he attended a conference in GPE . According to the applicant , during his stay in GPE , it was reported on ORG television that “ having committed a crime , he fled the country ” . According to the applicant , a number of government officials , including ORG , were featured in those television reports .

On DATE the applicant was summoned to ORG . After some questioning , he was arrested in connection with the events of DATE .

On DATE the applicant was charged with “ organising or participating in public disorder ” and “ use of violence against public officials ” . On DATE , at TIME , ORG remanded him in custody for DATE .

During DATE of detention the applicant was kept in a cold single cell , where he had to sleep on a metal bed without a mattress . He was then transferred to a cell which had previously been used for convicts awaiting the execution of their death sentence .

On DATE the Prosecutor General sent a letter to the Head of ORG in connection with the alleged unlawfulness of the use of FAC by the applicant ’s religious congregation , a matter which was not directly related to the criminal proceedings in the present case . However , among other things , the letter also contained the following statements :

“ ORG is conducting a criminal investigation under ORG CARDINAL , CARDINAL and CARDINAL in connection with the mass disorder in the city of GPE on DATE and DATE ...

It has been determined that PERSON took part in the mass disorder in GPE . ”

The applicant was tried by ORG with CARDINAL other defendants ( ORG ) . The court relied on statements from a large number of police officers , who testified against the defendants and the demonstrators in general . Most of those statements did not relate specifically to the applicant . CARDINAL police officers testified that they had seen the applicant at FAC and that they had heard from someone that the applicant had instructed some of his followers to go to the square . The court also relied on the pre - trial deposition of a witness who failed to appear at the court hearings , despite the applicant ’s requests to cross - examine him . According to the applicant , written depositions from some prosecution witnesses were identical , word for word . The court refused to hear the majority of witnesses who had been called by the applicant to testify on his behalf .

On DATE ORG convicted the applicant under ORG CARDINAL and CARDINAL of LAW . He received a suspended sentence of DATE imprisonment and was released immediately from the courtroom .

On DATE ORG upheld this judgment . According to the applicant , the appellate hearing took place in the presiding judge ’s office in the applicant ’s absence , despite his request for the hearing to be postponed owing to his inability to attend because of illness . The hearing lasted TIME .

On DATE ORG dismissed the applicant ’s cassation appeal . According to the applicant , the hearing in ORG lasted TIME .

The applicant was in FAC on DATE . In TIME of the same day he was arrested after he had returned home from the demonstration , and was taken to a local police station . He was then questioned , with no lawyer present , and detained at the police station until DATE .

On DATE the applicant was formally charged with “ organising or participating in public disorder ” and “ use of violence against public officials ” . On DATE ORG remanded the applicant in custody for DATE . During the court hearing the applicant was represented by a ORG - appointed lawyer he had not met before .

The applicant was tried at ORG with CARDINAL others ( ORG ) . It appears that he was represented by another ORG - appointed lawyer during the trial . In his submissions to the court , the applicant denied taking part personally in any violence that had taken place during the events of DATE , and claimed that he had left FAC as soon as he saw the first signs of confrontation between demonstrators and the police .

During the trial , ORG relied on statements from a number of police officers and internal forces soldiers as witnesses who testified against the demonstrators . Several police officers testified that they had seen the applicant in FAC . During the pre - trial investigation QUANTITY police officers had been shown a photograph of the applicant and recognised him as CARDINAL of the demonstrators throwing stones at the police officers during the events of DATE . These police officers gave the same testimony during the trial . According to the applicant , he was not given the opportunity to meet these witnesses during the pre - trial investigation , or to cross - examine them during the trial .

On DATE ORG found the applicant guilty of both the charges against him and sentenced him to CARDINAL years’ imprisonment , suspended , with a DATE probation period . The court ordered that he be released after the conviction became final following any appeals .

Following an appeal by the applicant , on CARDINAL May CARDINAL ORG upheld ORG judgment of DATE . On CARDINAL DATE ORG upheld the lower courts’ judgments . The applicant was sent the full text of ORG decision on DATE .

Although the applicant was released because the sentence was suspended , his conviction would remain on his criminal record for a period of DATE . According to the applicant , he had intended to stand as a candidate for the parliamentary elections of DATE . However , under the electoral law , his recent conviction record precluded him from doing so .

In DATE the applicant made an application to ORG for early expunging of the conviction from his criminal record . On DATE ORG refused this application , noting that in accordance with LAW it was only possible for such a conviction to be expunged after the expiry of CARDINAL the probation period , which in the applicant ’s case had not yet happened . ORG and ORG upheld this decision on DATE and DATE respectively . The full text of ORG decision of DATE was sent to the applicant on CARDINAL DATE .

Article CARDINAL of the ORG provides :

Article CARDINAL . Deliberate non - compliance with the lawful order of a police officer or military serviceman

“ CARDINAL . Deliberate non - compliance [ by individuals ] with the lawful orders of a police officer or military serviceman while the latter is carrying out his duties of protection of public order –

Article CARDINAL of the Criminal Code provides :

Article CARDINAL . NORP Mass disorder

“ CARDINAL . Organising or participating in mass disorder involving acts of violence , plunder , arson , destruction of property , use of firearms or explosives , or armed resistance to public officials –

is punishable by imprisonment for a period of DATE .

Inciting active resistance to lawful orders of public officials and to mass disorder and violence against citizens –

Article CARDINAL . Resistance to or use of violence against public officials

“ CARDINAL . Use of violence against , or violent resistance to , a public official in connection with the performance of his or her duties , or acts or threats of violence towards relatives of [ such a public official ] , which do not pose danger to life or health –

Use of violence towards persons mentioned in LAW endangering their life or health –

is punishable by imprisonment for a period of DATE . ”

Under LAW ( “ the CCrP ” ) , the finding of a violation of the provisions of LAW by ORG is a ground for reopening the proceedings . Pursuant to LAW , in this case , the Plenum of the ORG examines the case exclusively on points of law . After the examination of the case , the Plenum of ORG may decide to quash the lower ORG rulings and remit the case to the relevant lower court , or to vary the decision of the courts of cassation or other courts , or to quash the decision of the courts of cassation or other courts and deliver a new decision ( LAW CCrP ) .

According to Articles DATE and CARDINAL.CARDINAL.CARDINAL of LAW , persons imprisoned pursuant to a final court judgment and persons convicted of criminal offences indicated in Articles CARDINAL and CARDINAL of LAW do not have a right to stand for election in parliamentary , presidential and municipal elections ( see also paragraph CARDINAL below ) .

Article CARDINAL of the Criminal Code classifies criminal offences by degree of gravity into offences which do not pose a major public threat , “ less serious ” criminal offences , serious criminal offences and especially serious criminal offences . According to Article CARDINAL , a “ less serious criminal offence ” is an offence committed deliberately or negligently for which the maximum punishment does not exceed CARDINAL years’ imprisonment . According to Article CARDINAL , a “ serious criminal offence ” is an offence committed deliberately or negligently for which the maximum punishment does not exceed CARDINAL years’ imprisonment . According to LAW , an “ especially serious criminal offence ” is an offence committed deliberately for which the punishment exceeds CARDINAL years’ imprisonment .

The maximum sentence for a criminal offence under LAW is DATE imprisonment ( see paragraph CARDINAL above ) ; accordingly , pursuant to Article CARDINAL of the same Code , it is considered a “ serious criminal offence ” .

According to Article CARDINAL of LAW , a person convicted pursuant to a final court judgment is considered a “ convicted person ” from the date the judgment enters into force until the date the conviction is expunged from his or her criminal record . According to LAW , the criminal conviction of a person convicted of a “ serious criminal offence ” is expunged after the expiry of a period of DATE from the date he or she completed serving the sentence imposed . Article PERSON provides that a conviction may be expunged earlier if an application is made and he or she is able to demonstrate exceptionally good behaviour following conviction .

Extracts from the report by ORG ) , on ORG in GPE DATE ( “ the OSCE Report ” ) , containing detailed observations by the ORG trial monitors concerning various deficiencies in the trials concerning the events of DATE , have been previously extensively quoted in the GPE and Others judgment ( cited above , § § DATE ) .

Extracts from a number of reports by international bodies and human rights NGOs describing the violent clashes between demonstrators and law - enforcement authorities during the events of CARDINAL and DATE have previously been quoted in the PERSON judgment ( cited above , § § DATE ) .

ORG . Among other similar reports by international NGOs , the report by ORG , Violence and GPE ’s Elections ( DATE Vol . CARDINAL , No . DATE ) ) , contains lengthy summaries of numerous first - hand accounts by persons arrested in connection with the events of CARDINAL and DATE concerning the alleged acts of torture and ill - treatment they had been subjected to while in detention . The relevant statements were made by the alleged victims in interviews personally conducted by ORG researchers during the organisation ’s CARDINAL missions to GPE DATE .


Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (estoppel);Violation of Art. 14+9;Not necessary to examine Art. 9;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

On DATE ORG ( PERSON ) , composed of CARDINAL career military judge and CARDINAL other officers , convicted the applicant , a GPE 's Witness , of insubordination for having refused to wear the military uniform at a time of general mobilisation . However , the tribunal considered under LAW ( b ) of LAW and under LAW ( a ) of LAW that there were extenuating circumstances and sentenced the applicant to DATE imprisonment . The applicant was released on parole after DATE and DATE .

NORP In DATE the applicant sat a public examination for the appointment of CARDINAL chartered accountants , a liberal profession in GPE . He came second among CARDINAL candidates . However , on CARDINAL DATE ORG of ORG ( hereinafter “ the Board ” ) refused to appoint him on the ground that he had been convicted of a serious crime ( kakuryima ) .

On CARDINAL DATE the applicant seised ORG ( Simvulio Epikratias ) invoking , inter alia , his right to freedom of religion and equality before the law , as guaranteed by LAW and the Convention . The applicant also claimed that he had not been convicted of a crime but of a less serious offence .

On DATE ORG held a hearing . On DATE it decided to refer the case to the plenary court because of the important issues it raised . The ORG 's own view was that LAW no . CARDINAL/CARDINAL provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant . Moreover , according to LAW , no person convicted of a serious crime could be appointed to the civil service . However , this provision referred to convictions by courts established in accordance with LAW . This was not the case with the permanent military courts , because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues , as envisaged by LAW . As a result , the applicant 's conviction by ORG could not be taken into consideration and the ORG 's decision not to appoint the applicant a chartered accountant had to be quashed .

On DATE a hearing was held before ORG , sitting in plenary . On DATE the court decided that ORG had acted in accordance with the law when , for the purposes of applying LAW of ORG Code , it had taken into consideration the applicant 's conviction for serious crime by ORG . LAW provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition . Such a law had not yet been enacted . ORG further decided to refer the case back to ORG and ordered it to examine the remaining issues .

NORP The decision of CARDINAL DATE was taken by a majority . The minority considered that , since DATE had passed since the LAW had entered into force without the law envisaged in LAW thereof having been enacted , the guarantees of independence required from civilian judges had to be afforded by the existing military courts . Since that was not the case with ORG , PERSON application for judicial review had to be allowed .

On DATE ORG held a further hearing . On DATE it rejected PERSON application for judicial review , considering , inter alia , that the ORG 's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence .

Until DATE only members of ORG could provide chartered accountants ' services in GPE .

DATE no . CARDINAL/CARDINAL , as amended by LAW no . DATE , provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant .

According to LAW , no person convicted of a serious crime can be appointed to the civil service .

On DATE the monopoly of ORG was abolished . Most chartered accountants became members of ORG

Article CARDINAL of LAW in force until DATE provided :

“ A member of the armed forces who , having been ordered by his commander to perform a duty , refuses or fails to execute the order shall be punished –

( a ) if the act is committed in front of the enemy or armed insurgents , with death ;

( b ) in times of war or armed insurgency or during a state of siege or general mobilisation , with death or , if there are extenuating circumstances , with life imprisonment or imprisonment of DATE and

( c ) in all other circumstances , with imprisonment DATE . ”

By virtue of Presidential Decree no . CARDINAL/CARDINAL , at the time of the applicant 's arrest GPE was deemed to be in a state of general mobilisation . This decree is still in force .

Article CARDINAL § CARDINAL ( a ) of LAW provides that a lesser penalty shall be imposed on persons who , prior to the crime , had led an honest life .

Under LAW in force until DATE , offences punishable with a sentence of DATE imprisonment were considered to be serious crimes ( PERSON ) . Offences punishable with a sentence of DATE imprisonment were considered misdemeanours ( plimmelimata ) .

Under the new Military Criminal Code of DATE insubordination not committed in time of war or in front of the enemy is considered a misdemeanour .

Under section CARDINAL ) of PERSON no . CARDINAL/CARDINAL , those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service , that is , DATE .

Law no . DATE , which entered into force on DATE , gives conscientious objectors the right to perform civilian , instead of military , service . Under section CARDINAL ) and ( CARDINAL ) of this law , persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors . CARDINAL of the effects of such recognition was having the conviction expunged from one 's criminal record .

Applications under section PERSON ) and ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL had to be lodged within DATE starting from DATE . They were examined by the commission that advises the Minister of ORG on the recognition of conscientious objectors . The commission had to apply section CARDINAL of Law no . CARDINAL , which provides :

“ Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ... ”