Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria

The first applicant was born in DATE and lives in GPE , GPE . He is the father of the second applicant , who was born in DATE and lives at an unspecified address in GPE .

On DATE the first applicant married a NORP citizen , GPE The marriage was concluded in GPE , GPE . On DATE their daughter , the second applicant , was born . The parents had joint custody of the child under NORP law . They lived in GPE .

On DATE GPE and the first applicant separated . On DATE PERSON filed a divorce petition with the GPE authorities . The first applicant lodged a counter petition on DATE .

On DATE GPE filed for an interim injunction against the first applicant , seeking his removal from the family home on the ground of his violent behaviour . On DATE , ORG granted the interim injunction for a period of DATE . Criminal proceedings were also initiated against the first applicant for infliction of bodily harm .

On DATE GPE lodged an action for temporary sole custody of the second applicant throughout the divorce proceedings . At DATE , while the proceedings for the award of custody were pending before the NORP courts , GPE left for GPE together with the second applicant . The first applicant was not informed of the departure , even though at the time the spouses had joint custody of the second applicant .

In the meantime , on DATE GPE acquitted the first applicant of inflicting bodily harm . The GPE Public Prosecutor reserved the right to initiate criminal proceedings against GPE for perjury .

On DATE , ORG granted the first applicant temporary sole custody of the second applicant until the finalisation of the divorce proceedings . The court relied , inter alia , on expert opinion which concluded that the first applicant was better suited to have custody . PERSON does not appear to have appealed against the judgment .

NORP Currently , the divorce proceedings between the first applicant and GPE are pending before the NORP courts .

On DATE the first applicant submitted a request for the return of the second applicant to GPE under LAW of the LAW of DATE on ORG ( “ LAW ) . He argued that the second applicant had been removed from NORP territory in breach of the joint custody held by the spouses at the time of the removal . On DATE the NORP authorities submitted the request to ORG ( “ the NORP Ministry ” ) , ORG responsible for the obligations established under LAW .

On DATE , at the request of ORG , ORG ( NORP General PERSON ) confirmed that the second applicant was living with her mother , in GPE , at her GPE home . Furthermore , on DATE ORG ( Departamentul General de Asistenţă Socială şi ORG ) drafted a report in relation to the second applicant . The report mainly mentioned GPE ’s statements concerning her situation in GPE , her reasons for departure as well as the maternal GPE declarations concerning their commitment to provide housing and financial support to the second applicant indefinitely . It was also mentioned that the second applicant did not appear to be an abused or neglected child and that she was very attached to her mother and her maternal grandparents . The report concluded that the second applicant had appropriate living conditions , both from a material and emotional point of view .

On DATE ORG instituted proceedings on behalf of the first applicant before ORG . By a judgment of DATE , communicated on CARDINAL DATE , ORG found in favour of the first applicant , ordering the return of the second applicant to GPE . GPE held that the request fell under LAW of LAW and that none of the exceptions provided for LAW CARDINAL applied .

GPE appealed . She submitted several pieces of evidence , including declarations of her parents as witnesses given before ORG in the context of the divorce and custody proceedings . She further submitted a welfare report drafted by ORG within GPE ( Serviciul de Autoritate Tutelară din cadrul Primariei Municipiului Timişoara ) . The report included information on GPE ’s family situation , living conditions , and GPE ’s declarations in relation to the circumstances of her living and departing from GPE . Finally , the report recommended that GPE were awarded the custody over the second applicant .

By a final judgment delivered on DATE , and rendered in written form on DATE , ORG allowed the appeal on points of law , holding that the return of the second applicant to GPE would expose her to physical and psychological harm , within the meaning of LAW CARDINAL ( b ) of GPE . On the merits , ORG of Appeal held that the first applicant had shown violent behaviour towards GPE , as ORG had maintained when granting GPE the interim injunction of DATE . ORG of Appeal further held that the first applicant had breached the restraining order in DATE , which determined GPE to come to GPE . Finally , the domestic court reasoned that even if there was no evidence of a violent behaviour of the first applicant towards the child , this could be inferred from his behaviour towards GPE and from GPE ’s departure to GPE . ORG judgment of DATE was set aside on the ground that by that time GPE and the second applicant had already left GPE .

NORP Throughout the domestic proceedings , ORG informed the NORP authorities of the progress of ORG proceedings . The information included the date of the hearings and whether or not an appeal had been lodged . From the evidence adduced to the case file , it appears that ORG did not have any direct contact with the first applicant in connection with ORG proceedings .

The relevant provisions of LAW , which entered into force in respect of GPE on DATE , read , in so far as relevant , as follows .

“ The removal or the retention of a child is to be considered wrongful where DATE

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . ”

“ A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities . [ .. ] ”

“ ORG shall co - operate with each other and promote cooperation amongst the competent authorities in their respective ORG to secure the prompt return of children and to achieve the other objects of this Convention .

In particular , either directly or through any intermediary , they shall take all appropriate measures –

f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ; [ .. ] ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that –

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

“ The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . ”

Council Regulation ( ORG ) No . CARDINAL of DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( “ the Regulation ” ) , in so far as relevant reads as follows :

( CARDINAL cases of wrongful removal or retention of a child , the return of the child should be obtained without delay , and to this end the Hague Convention of DATE would continue to apply as complemented by the provisions of this Regulation , in particular LAW . [ ... ] ”

“ CARDINAL . Where a person , institution or other body having rights of custody applies to the competent authorities in a Member ORG to deliver a judgment on the basis of ORG [ .. ] , in order to obtain the return of a child that has been wrongfully removed or retained in a Member ORG other than the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , paragraphs CARDINAL to CARDINAL shall apply .

A court to which an application for return of a child is made as mentioned in paragraph CARDINAL shall act expeditiously in proceedings on the application , using the most expeditious procedures available in national law .

Without prejudice to the first subparagraph , the court shall , except where exceptional circumstances make this impossible , issue its judgment no DATE after the application is lodged .

A court can not refuse to return a child on the basis of LAW ( b ) of the [ ... ] LAW if it is established that adequate arrangements have been made to secure the protection of the child after his or her return .

A court can not refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard .

If a court has issued an order on non - return pursuant to LAW , the court must immediately either directly or through its central authority , transmit a copy of the court order on non - return and of the relevant documents , in particular a transcript of the hearings before the court , to the court with jurisdiction or central authority in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , as determined by national law . The court shall receive all the mentioned documents within DATE of the date of the non - return order .

Unless the courts in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention have already been seized by CARDINAL of the parties , the court or central authority that receives [ a copy of an order on non - return pursuant to LAW and of the documents relevant to that order ] must notify it to the parties and invite them to make submissions to the court , in accordance with national law , within DATE of notification so that the court can examine the question of custody of the child . [ .. ] ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

The applicant owned a flat together with another person , GPE On DATE the applicant and GPE disconnected the flat from the central heating system provided by the company “ ORG ” ( hereinafter – PERSON ) , and signed a contract with an alternative heating provider . On DATE the new provider ’s heating system was installed in the flat . On DATE and repeatedly on DATE the applicant informed PERSON about the termination of their old agreement . According to the applicant , in DATE they received no bills from the old heating provider . In DATE , however , PERSON sent a bill for heating to the applicant and GPE

Following the refusal by the applicant to pay the bill , PERSON filed a civil claim for payment for the period from DATE to DATE .

On DATE GPE ( hereinafter - ORG ) dismissed the claim by PERSON . The court observed that the owners of the flat were free to choose their heating provider and they had informed the plaintiff about the termination of the agreement and properly disconnected from the heating system . The court concluded that the plaintiff itself had acknowledged that it no longer supplied heating to the flat . It was also established that the applicant together with GPE and PERSON were no longer in a contractual relationship for heat consumption . ORG noted that the claim filed by the plaintiff was an unsubstantiated attempt to enrich itself at the expense of the other party .

PERSON missed the time - limit for lodging an appeal and its request to renew it was dismissed . Neither of the parties requested re - opening of the proceedings .

In DATE PERSON brought a new claim against the applicant and GPE , requesting payment for heating for the period DATE to DATE .

On DATE GPE upheld the claim and awarded PERSON CARDINAL NORP litai ( ORG ; MONEY ( ORG ) ) against each of the owners . Having re - interpreted the domestic law , the court ruled that the applicant and GPE were still in a contractual relationship with PERSON because they had arbitrarily disconnected the heating system and thus they had to pay for the heating . The court found that the CARDINAL DATE court decision did not have res judicata effect as the new claim concerned a different period of time , and that this situation was therefore not identical to the one ruled upon earlier by ORG .

On DATE the NORP Regional PERSON contractual relationship between the parties and the supply of heating to the flat .

The applicant did not have the right to lodge a cassation appeal as the amount of the claim was smaller than the minimum required by domestic law for the lodging of such an appeal .

Article CARDINAL § CARDINAL of LAW provides that once a judgment , decision or ruling becomes effective , the parties or other persons to the proceedings as well as the successors to their rights may not raise once again the same claims on the same grounds , and may not contest the facts and legal relations that had been established by a court in another case .


BETSON AND COCKRAM v. THE UNITED KINGDOM

The applicants , Mr PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) , are NORP nationals . The first applicant was born in DATE and is currently detained in FAC . No details were provided as to the date of birth or current location of the second applicant .

On DATE the applicants and CARDINAL accomplices attempted to steal the contents of the ORG Diamond Exhibition at the FAC in GPE by driving a ORG digger into the said exhibition . The value of the gems they were trying to steal was MONEY . The applicants and their accomplices were caught in the act .

On DATE the applicants stood trial at ORG on charges of conspiracy to steal and conspiracy to rob . They pleaded guilty to conspiracy to steal but not guilty to conspiracy to rob . The only issue at trial was , therefore , whether there was a conspiracy to rob .

The trial lasted DATE . There were many witnesses , including Police Constable W , who gave evidence about ‘ The Play’ ( a book that he had written about the attempted theft ) and G , a prosecution expert who gave evidence about the configuration of the transceivers used by the applicants . The first applicant , in the course of giving evidence , lied about the presence of another man in his car . The trial judge ( “ the judge ” ) warned him about the risk of his being in contempt of court . Later , when summing up , the judge directed the jury that the said lies were irrelevant to the first applicant ’s guilt .

The judge admitted that he ‘ nodded ORG during the closing speeches . A solicitor ’s clerk who was present at the trial noted that there were a few occasions towards the end of the trial when the judge slumped in his chair , fell asleep and was awakened by the sound of his own snoring . A journalist who was also present observed the judge fall asleep on CARDINAL occasions . The journalist could not recall when the judge had fallen asleep , other than on CARDINAL occasion during the early stages of the closing speeches . The applicants’ counsel did not raise any issue at the trial in relation to the judge ’s falling asleep .

On DATE the jury put a complicated question to the judge about the use of force . The applicant did not explain how the judge responded to this question . DATE , the jury convicted the applicants of conspiracy to rob . The judge sentenced each of them to CARDINAL years’ imprisonment .

The applicants appealed . The first applicant , who was represented by junior counsel during his appeal hearing , appealed on the following grounds : in the first place , the judge displayed inadequate vigilance during the trial in falling asleep on a number of occasions ; secondly , the judge improperly and inquisitorially interrupted the first applicant ’s evidence on a number of occasions ; thirdly , bearing in mind that the first applicant had already given evidence of his own record of dishonesty , the judge should not have taken him to task in relation to possible contempt and perjury in declining to name others to whom he had referred in the course of his evidence ; fourthly , the judge at times acted like a prosecuting counsel ; fifthly , the summing up was unbalanced and prejudicial to the first applicant ’s case ; sixthly , the judge should not have permitted the prosecution to call evidence from Police Constable W ; seventhly , the judge should not have responded in detail to a question put by the jury .

The second applicant , who was represented by senior counsel , only relied on the first CARDINAL of those grounds .

ORG delivered its judgment on DATE . It made the following comments in relation to the sixth and seventh grounds of the first applicant ’s appeal :

“ It is to be noted that , until that stage , no defendant had named [ W ] and if he had not been called , the defence and , in particular , [ the first applicant ] , would have had free rein to implicate him in the conspiracy , without him having the opportunity of denying that that was so . The plot of the book which he had written , whether prejudicial or not , was elicited in cross - examination by leading counsel on behalf of [ the first applicant ] . In those circumstances , we propose to say no more about [ the first applicant ’s ] sixth and seventh grounds save that , having read the jury ’s question and the way in which the judge dealt with it , we are entirely satisfied that both these grounds are devoid of merit . ”

As to the second , third , and fourth grounds , ORG found that , although on occasions the judge ’s interventions were excessive , when viewed in the context of the trial as a whole , the said interventions did not render the trial unsafe . In particular it observed that , although in an ideal world the judge might have made fewer references to perjury , it was inescapably obvious that the first applicant was lying and the judge was entitled to warn him about the risk of contempt of court .

As to the fifth ground , ORG found that , having read with care the criticised passages in the summing up , there was no substance in the complaints . In particular , the direction in relation to perjury was correct .

Finally , and as to the first ground , ORG opined as follows :

“ There remains the ground in relation to the judge ’s falling asleep . Because the appearance as well as the actuality of justice being done is important , no judge ought , in any circumstances , to fall asleep during any stage of a criminal trial . It is highly regrettable that this judge did so . But because a judge falls asleep or , for any other reason , allows his or her attention to wander , it does not necessarily follow that the trial is unfair , or that any ensuing conviction is unsafe . It is the effect , not the fact , of such inattention which is crucial . This must , in each case , depend on all the circumstances , including the period of inattention , both absolute and as a proportion of the length of the whole trial ; the stage of the trial at which the inattention occurs ; and , of primary importance , the impact of that inattention , if any , on the course and conduct of the trial . We give CARDINAL examples by way of illustration . First , if a judge is inattentive , however briefly , during a defendant ’s evidence in chief and , in consequence , fails to register and , in due course , sum up to the jury , a piece of evidence crucial to the defence , the conviction may be regarded as unsafe . The unsafety arises not because the judge slept or was otherwise inattentive but because , in consequence , the summing - up was defective in that the defence was not properly put before the jury . Conversely , a conviction is unlikely to be regarded as unsafe if , during a lengthy trial , a judge is inattentive , even for substantial periods , if , in consequence , he missed no significant point meriting inclusion in his summing - up and did not fail properly to control the admissibility of evidence , the conduct of counsel or some other aspect of the proceedings .

In the present case , the judge , as he frankly and properly admits , was , for a time , asleep during the speeches of counsel for [ the first applicant ] and [ C ] . We are prepared to accept that he was also asleep on a few other occasions , sometimes to the extent that he woke himself by the sound of his snoring . It is however of some significance that , at the trial , no defendant , no counsel in the case , ( of whom there were a total of CARDINAL ) , and no juror , was sufficiently concerned to raise the matter with the judge , other counsel , or the court usher . It is of greater significance that , before this ORG , it has not been shown that , because he slept , the judge missed and failed to sum up to the jury any significant feature of the evidence or speeches . On the contrary , this summing - up , extending to CARDINAL pages of transcript and delivered , as we have said , over DATE , shows every sign of having been carefully prepared . It was comprehensive and balanced , accurate as to the law and detailed as to the evidence . The defence of each defendant was fully put . Had the judge been awake when he was asleep , the appearance of justice would , of course , have been obviously enhanced . But the trial would have followed no different course . Furthermore , regrettable though it is that the judge occasionally slept , no objection having been made at the time , we are unpersuaded that the jury was , even arguably , unfairly prejudiced against any defendant , bearing in mind also the length of trial , the full , fair and accurate summing - up , the lengthy period of retirement , the pertinent question asked by the jury , and the compelling , powerful evidence against the defendants . It was for these reasons that DATE we refused [ the first applicant ] and [ the second applicant ] leave to appeal against conviction . ”

ORG then found the original sentence of DATE to be excessive and substituted a sentence of DATE .

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW ) , as amended by LAW DATE ( “ the DATE LAW ) , provides a single , composite right of appeal against a criminal conviction . It states that ORG :

“ ( a ) shall allow an appeal against conviction if they think that the conviction is unsafe ; and

( b ) shall dismiss an appeal in any other case . ”

The broad intention behind this provision was summarised by the then Lord Chief Justice , Lord PERSON , in NORP v. PERSON and Others ( [ DATE ] vol . ORG p. CARDINAL [ ORG ] ) , when he said :

“ This new provision ... is plainly intended to concentrate attention on CARDINAL question : whether , in the light of any arguments raised or evidence adduced on appeal , ORG considers a conviction unsafe . If the ORG is satisfied , despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence , that the conviction is safe , the ORG will dismiss the appeal . But if , for whatever reason , the court concludes that the appellant was wrongly convicted of the offence charged , or is left in doubt whether the appellant was rightly convicted of that offence or not , then it must of necessity consider the conviction unsafe . The ORG is then subject to a binding duty to allow the appeal . ”

In R v. PERSON and PERSON ( [ DATE ] CARDINAL All ER CARDINAL , ORG observed , however , that it :

“ ... has no power under the substituted section CARDINAL(CARDINAL ) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial ... ” ( per Lord Justice Auld at page CARDINALj ) .

Subsequently , ORG modified its approach .

The scope of the “ safety test ” was discussed by Lord PERSON in his judgment in NORP v. ORG , ex parte Pearson ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL [ ORG ] ) , where he stated :

“ The expression ‘ ORG in section CARDINAL ) of LAW does not lend itself to precise definition . In some cases unsafety will be obvious , as ( for example ) where it appears that someone other than the appellant committed the crime and the appellant did not , or where the appellant has been convicted of an act that was not in law a crime , or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection , or where the jury verdict , in the context of other verdicts , defies any rational explanation . Cases however arise in which unsafety is much less obvious : cases in which the ORG , although by no means persuaded of an appellant’

This passage was subsequently cited by ORG in the case of NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL) , where Lord Justice PERSON , delivering the judgment of the court , stated that :

“ The following is not intended to be an exhaustive statement of the principles involved . We simply extract the following . The ORG is concerned with the safety of the conviction . A conviction can never be safe if there is doubt about guilt . However , the converse is not true . A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘ vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the ORG to apply the test ... which , as adapted by [ counsel for the ORG ] , might read :

‘ Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error , would the only reasonable and proper verdict have been CARDINAL of guilty?’

That being so there is no tension between s. CARDINAL ) of LAW as amended and section CARDINAL(CARDINAL ) of LAW [ requiring legislation to be read and given effect in a way which is compatible with Convention rights ] . ”

Later in his judgment , Lord Justice PERSON stated that :

“ We are satisfied that the CARDINAL questions [ the questions of ‘ FAC and ‘ ORG ] must be kept separate and apart . The [ ORG ] is charged with inquiring into whether there has been a breach of a Convention right . This court is concerned with the safety of the conviction . That the first question may intrude upon the second is obvious . To what extent it does so will depend upon the circumstances of the particular case . We reject , therefore , [ counsel for PERSON ] ’s contention that a finding of a breach of LAW ) by the [ ORG Rights ] leads inexorably to the quashing of the conviction . Nor do we think it helpful to deal in presumptions . The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree . ... ”


Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant arrived in GPE from GPE . He was carrying with him MONEY ( ORG ) , representing the proceeds from the sale of his ancestral dwelling in LOC . However , he only reported DATE on the customs declaration , whereas NORP law required that any amount exceeding USD CARDINAL,CARDINAL be declared to the customs . A customs inspection uncovered the remaining amount in his luggage . The applicant was charged with smuggling , a criminal offence under LAW , and the money was appended to the criminal case as physical evidence ( вещественные доказательства ) .

On DATE the ORG of GPE found the applicant guilty as charged and imposed a suspended sentence of CARDINAL months’ imprisonment conditional on CARDINAL months’ probation . As regards the money , it held :

“ Physical evidence – MONEY stored in the ORG cash desk of ORG – shall revert to the ORG . ”

In his statement of appeal the applicant claimed his innocence and submitted that the confiscation order had no basis in the domestic law because LAW did not provide for confiscation as punishment .

On DATE ORG upheld the conviction on appeal . As regards the money , it noted that the trial court had not ordered confiscation of the money as a penal sanction , but had rather decided on the destiny of the physical evidence .

The applicant sent complaints to various NORP authorities . He pointed out that he had been living below the poverty line and that for this reason he had decided to sell the flat in GPE which he had inherited from his mother . He enclosed copies of the will and the flat sale contract . He asked for return of the lawfully acquired money on humanitarian grounds .

On DATE the Ombudsman of ORG wrote a letter on the applicant ’s behalf to the acting GPE prosecutor , asking him to submit a request for institution of supervisory - review proceedings in the part concerning the confiscation order . On DATE the deputy GPE prosecutor replied to the Ombudsman that there were no reasons to seek institution of supervisory - review proceedings because the confiscation order had been lawful on the basis of paragraph CARDINAL of ORG Resolution of DATE .

On DATE the ORG asked ORG to apply for institution of supervisory - review proceedings . He wrote , firstly , that , contrary to the requirements of LAW , no procedural document indicated what category of physical evidence the applicant ’s money belonged to . That omission entailed an incorrect decision on the destiny of the physical evidence . The applicant ’s money had neither been an instrument of DATE in smuggling cases only a hiding place could be such an instrument DATE nor had it been criminally acquired . Accordingly , neither paragraph CARDINAL ( CARDINAL ) nor paragraph CARDINAL ( CARDINAL ) of LAW of LAW were applicable in the applicant ’s situation and the money should have been returned to the lawful owner pursuant to paragraph CARDINAL ( CARDINAL ) of that Article . Otherwise , the confiscation order amounted to a de facto second punishment for the same offence . Finally , the ORG contested the applicability of ORG resolution of DATE . He pointed out that paragraph CARDINAL expressly provided for application of the “ current legislation ” . As the new Criminal Code did not provide for confiscation in cases of smuggling , paragraph CARDINAL could not be applied .

On DATE the deputy Prosecutor General replied to the ORG that the ORG of ORG had already opined that the object of smuggling should be treated as the instrument of the offence and be liable to confiscation as such ( he referred to the judgment in the PERSON case , cited in paragraph CARDINAL below ) .

The ORG lodged a constitutional complaint on behalf of the applicant and another person .

On DATE ORG declared the complaint inadmissible ( decision no . PERSON ) . It held that the legal possibility of confiscating the objects recognised as physical evidence in a criminal case , including instruments and proceeds of offences , was compatible with the international obligations of the GPE undertaken under LAW and ORG , Search , LAW . Hence , LAW did not permit an arbitrary interference with property rights and did not violate , in itself , the ORG constitutional rights . ORG concluded as follows :

“ Determination of the status of the objects illegally transported across the customs border of GPE in the criminal proceedings and decision on whether they fit the description of physical evidence liable to criminal confiscation ... are to be made by the court of general jurisdiction trying the criminal case ... Lawfulness of , and justification for , the judicial decision on confiscation of physical evidence shall be reviewed by higher courts in criminal proceedings . ORG of GPE is not competent to carry out such a review ... ”

On DATE ORG refused the ORG ’s further request for a clarification of its decision of DATE .

The United Nations Convention against ORG which concerns the transnational offences and also offences of participation in an organised criminal group , laundering of the proceeds of crime , corruption , and obstruction of justice , ratified by GPE on DATE , provides as follows :

“ CARDINAL . DATE States Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders , subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital . Such measures may include a requirement that individuals and businesses report the cross - border transfer of substantial quantities of cash and appropriate negotiable instruments . ”

“ CARDINAL . DATE States Parties shall adopt , to the greatest extent possible within their domestic legal systems , such measures as may be necessary to enable confiscation of :

( a ) Proceeds of crime derived from offences covered by this LAW or property the value of which corresponds to that of such proceeds ;

( b ) Property , equipment or other instrumentalities used in or destined for use in offences covered by this LAW . ”

LAW of the Russian Federation provides that smuggling , that is movement of large amounts of goods or other objects across the customs border of GPE , committed by concealing such goods from the customs or combined with non - declaration or inaccurate declaration of such goods , carries a penal sanction of up to DATE imprisonment ( LAW ) .

LAW ( Federal Law no . CARDINAL-I of DATE , in force at the material time ) provided that NORP residents and non - residents alike had the right to transfer , bring in , and send foreign currency to GPE without any restrictions provided that they have complied with the customs rules ( sections QUANTITY and CARDINAL § CARDINAL ) .

The Code of Criminal Procedure of GPE ( “ CCrP ” ) provides as follows :

“ CARDINAL . Any object may be recognised as physical evidence -

( CARDINAL ) that served as the instrument of the offence or retained traces of the offence ;

( CARDINAL ) NORP that was the target of the criminal acts ;

( CARDINAL ) any other object or document which may be instrumental for detecting a crime or establishing the circumstances of the criminal case .

NORP On delivery of a conviction ... the destiny of physical evidence must be decided upon . In such a case –

( CARDINAL ) instruments of the crime belonging to the accused are liable to confiscation , transfer to competent authorities or destruction ;

( CARDINAL ) objects banned from circulation must be transferred to competent authorities or destroyed ;

( CARDINAL ) NORP non - reclaimed objects of no value must be destroyed ... ;

( CARDINAL ) NORP criminally acquired money and other valuables must revert to the ORG by a judicial decision ;

( CARDINAL ) documents must be kept with the case file ... ;

( CARDINAL ) any other objects must be returned to their lawful owners or , if the identity of the owner can not be established , transferred to the ORG ... ”

Similar provisions were previously contained in LAW ( cited in PERSON v. GPE , no . GPE DATE ) .

The Resolution of the Plenary Supreme Court of the GPE “ On judicial practice regarding the offence of smuggling ” ( no . CARDINAL of DATE ) provided as follows :

“ CARDINAL . In accordance with the current legislation , the objects of smuggling are liable to confiscation to the ORG as physical evidence . Vehicles and other means of transport are also liable to confiscation as instruments of the offence provided that they were equipped with special hiding places for concealing goods or other valuables ... ”

The Resolution of the Plenary Supreme Court of the GPE “ On confiscation of the instruments of the offence that were recognised as physical evidence in the case ” ( no . CARDINAL of DATE ) provided as follows :

“ Having regard to the questions relating to the possibility of applying LAW ... in cases of negligent criminal offences , ORG resolves -

- to clarify that the objects belonging to the convict and declared to be physical evidence may be confiscated on the basis of LAW ... only if the convict or his accomplices deliberately used them as the instruments of the crime with a view to achieving a criminal result . ”

The Presidium of ORG of GPE in the case of Prosecutor General v. PERSON ( decision no . CARDINAL of DATE ) granted the prosecution ’s appeal against the judgment , by which PERSON had been found guilty of smuggling of foreign currency but the money had been returned to him on the ground that LAW did not provide for confiscation as a penal sanction . The ORG held as follows :

“ Confiscation of property as a penal sanction must be distinguished from confiscation of smuggled objects which were recognised as physical evidence . These issues must be addressed separately in the judgment ...

In the meaning of [ LAW ] and also LAW of the ORG , an instrument of the offence is any object which has been used for accomplishing publicly dangerous actions , irrespective of the main purpose of the object . Accordingly , the notion of an instrument of the offence comprises the object of the offence .

A mandatory element of a criminal offence under LAW is an object of smuggling that is being illegally transported across the customs border ... The court found Mr PERSON guilty of [ attempted smuggling ] , noting that MONEY were the object of the offence . Accordingly , it was required to decide on the destiny of physical evidence in accordance with LAW that is , according to the rules on the instruments of the offence – but failed to do so . ”


Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

The applicant applied for registration as an independent candidate for the forthcoming elections to ORG ( ORG ) of DATE . On DATE ORG ( “ the ConEC ” ) for ORG no . CARDINAL , a single - mandate constituency in GPE , registered him as a candidate .

On DATE Police Office No . CARDINAL of ORG informed the ConEC that the applicant was privately funding certain urban improvement works ( such as laying new asphalt and repairing public recreation facilities for children ) in some public areas of his constituency , allegedly with the purpose of winning over the support and votes of the local residents , in breach of the requirements of the electoral law . To this effect , the police drew up a record , signed by QUANTITY police officers and QUANTITY employees ( ORG of the local housing utilities committee responsible for the residential buildings in question , which stated that the applicant had “ laid fresh asphalt in front of the residential buildings indicated on the attached drawing ... and this fact [ was ] confirmed by the signatures below ” .

NORP In support of this submission , the police office submitted handwritten statements by several local residents , all of which were addressed directly to the police and expressed gratitude to the applicant for the work he had carried out in their neighbourhood . While some of the statements were dated DATE , CARDINAL statements were dated DATE .

NORP In particular , a statement by PERSON , dated DATE and addressed to ORG No . DATE , read as follows :

“ I have resided at the above - mentioned address since DATE . During this time , no renovation has been done in the courtyard [ of our building ] . But in DATE a lot of renovation work has been carried out in the courtyard ... [ a description of specific improvements follows ] .

The above - mentioned works were organised and carried out by our respected neighbour ... PERSON . He is a person who is willing to share all the problems of the entire neighbourhood and to assist [ in resolving these problems ] . We wish this person only victory in the upcoming elections ” .

A statement by ORG , dated DATE and addressed to ORG No . DATE , read as follows :

“ In reply to the questions asked of me , I inform you that PERSON Orujov , who has nominated himself as a candidate [ for the parliamentary elections ] , has carried out benevolent renovation works in our courtyard in the pre - election period . He has laid fresh asphalt in front of the buildings . I have written this statement myself . I confirm [ the authenticity of ] my signature ” .

“ I inform you that PERSON Orujov , who has nominated himself as a candidate [ for the parliamentary elections ] , is laying fresh asphalt in front of the buildings [ in our courtyard ] . He is a good person . I have written this statement myself . I confirm [ the authenticity of ] my signature . ”

Other statements were of a similar content .

According to an extract from TIME of the PERSON meeting held on DATE , made available to the applicant and later submitted by him to the ORG , the PERSON decided as follows :

“ CARDINAL . To take into consideration the statements by voters ...

To confirm , based on the statements and other material submitted , breaches of ORG and ORG of LAW by PERSON Orujov , who is registered as a candidate for the elections to the Milli Majlis .

NORP In accordance with LAW , to apply to ORG with a request for the cancellation of the applicant ’s registration as a candidate owing to the breach of the requirements of ORG and ORG of LAW . ... ”

The full copy of TIME of the above PERSON meeting , as submitted by the Government , indicates that this meeting was held on DATE .

By a letter of DATE , the ConEC submitted the cancellation request to ORG . The request stated , inter alia :

“ [ C]andidate PERSON Orujov has breached the requirements of LAW and thus violated the rights of other candidates . There have been repeated oral submissions to [ the ConEC ] concerning his illegal actions . Finally , citizens have applied to ORG no . CARDINAL of ORG and requested [ the police ] to put an end to his illegal actions . ... It has been proved that [ the applicant ] conducted [ certain renovation works ] , in breach of ORG and CARDINAL.CARDINAL.CARDINAL of LAW , with the purpose of buying votes . ... ”

According to the applicant , he was not informed about the DATE ’s request in a timely manner .

ORG examined the case DATE , at TIME on DATE .

According to the record of the court hearing , the court examined the documents submitted by the PERSON and heard a number of witnesses . In particular , CARDINAL police officers , PERSON and PERSON , testified that , according to “ residents of the buildings ” in question , the applicant had carried out unauthorised urban improvement works in the constituency .

The court also heard CARDINAL local residents . It appears that CARDINAL of them ( GPE , GPE and GPE ) had submitted handwritten statements to the police earlier . These CARDINAL witnesses told the court that they did not know the applicant personally and had not known who had carried out the renovation works , that on DATE police officer PERSON had approached each of them individually on the street , engaged them in conversation and informed them that the works had been carried out by the applicant , and that ORG had then asked them to write a “ thank - you note ” expressing their gratitude to the applicant for his efforts on behalf of the community . The witnesses said that they had not been told that their statements would be used against the applicant later .

Of the remaining CARDINAL local residents , one stated that she did not know who had carried out the urban improvement works near her home , and CARDINAL stated that the works had been carried out by the local residents themselves at their own expense .

NORP In its judgment of DATE , consisting of CARDINAL and a CARDINAL typed pages , ORG summarised the above - mentioned witness statements as follows :

“ ... witnesses PERSON and PERSON confirmed that [ the renovation works ] at [ the location in question ] had been carried out under the instructions and with the assistance of the candidate for the elections to the Milli Majlis , ORG ORG . This circumstance was also confirmed by witnesses [ GPE and GPE ] when questioned at the court hearing . ...

Witnesses [ V.Q. and FAC ] , when questioned at the court hearing , stated that they did not know who had laid the fresh asphalt and carried out the renovation works , while witnesses [ GPE and GPE ] stated that these renovation works had been carried out by the local residents themselves ” .

The court then directly proceeded to a finding that the applicant , by carrying out renovation works in public areas “ with the aim of winning over voters ” and “ promising to provide assistance to voters in return for their votes ” , had attempted to influence the voters’ opinion in a manner prohibited by LAW . The court therefore decided to cancel the applicant ’s registration as a candidate .

On DATE the applicant enquired as to the identity of the local residents who had testified against him . He discovered that CARDINAL of the persons ( GPE and T.T. ) who had complained about him to the police did not actually live in his constituency and had used false addresses in their written submissions .

CARDINAL other witnesses ( PERSON , GPE and PERSON ) made notarised affidavits addressed to ORG in which they retracted their previous handwritten submissions to the police , claiming that , in fact , none of them had known whether the renovation works had actually been carried out by the applicant , and that they had been either pressured or tricked by the police into making these statements , without being informed that the police intended to use them against the applicant .

The applicant lodged a cassation appeal with ORG , arguing that the evidence used against him had been fabricated , that ORG had made manifest errors in examining the evidence and had based its decision on unproven allegations , and that therefore his registration had been cancelled arbitrarily . With his cassation appeal , he also enclosed the witness affidavits mentioned above .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG judgment of DATE . It refused to admit the new evidence submitted by the applicant challenging the reliability of the original evidence used against him ( including the witnesses’

Article CARDINAL of LAW of DATE provides as follows :

“ CARDINAL . Candidates ... are prohibited from gaining the support of voters in the following ways :

CARDINAL.CARDINAL.CARDINAL . giving money , gifts and other valuable items to voters ( except for badges , stickers , posters and other campaign materials having nominal value ) , except for the purposes of organisational work ;

CARDINAL.CARDINAL.CARDINAL . NORP giving or promising rewards based on the voting results to voters who were involved in organisational work ;

selling goods on privileged terms or providing goods free of charge ( except for printed material ) ;

CARDINAL.CARDINAL.CARDINAL . providing services free of charge or on privileged terms ;

CARDINAL.CARDINAL.CARDINAL . influencing the voters during the pre - election campaign by promising them securities , money or other material benefits , or providing services that are contrary to the law . ”

According to Articles CARDINAL and CARDINAL of LAW , the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by LAW .

Complaints concerning decisions of electoral commissions must be examined by the courts within DATE ( unless the Electoral Code provides for a shorter period ) . The period for lodging an appeal against a court decision is also DATE ( Article CARDINAL ) .

LAW sets out rules for the examination of applications concerning the protection of electoral rights ( or the right to participate in a referendum ) . According to LAW , such applications must be submitted directly to the appellate courts in accordance with the procedure established by LAW .

Applications concerning the protection of electoral ( referendum ) rights must be examined within DATE of receipt of the application , except for applications submitted on DATE or the day after DATE , which must be examined immediately ( Article CARDINAL ) . The court must hear the case in the presence of the applicant , a representative of the relevant electoral commission and any other interested parties . Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case ( Article CARDINAL ) .

The appellate court ’s decision can be appealed against to the higher court ( the court of cassation ) within DATE . This appeal must be examined within DATE , or immediately if submitted on DATE or DATE . The decision of the court of cassation is final ( Article CARDINAL ) .


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

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and currently lives in GPE .

On DATE the applicant was arrested by the police and taken into custody on suspicion of having organised and paid the murder of his former business partner ; the murder actually took place DATE before his arrest . According to the prosecution , the applicant had paid CARDINAL accomplices to strangle the victim in his car . Then , together with CARDINAL other accomplices , he had driven the car with the victim ’s body to another district , faked a road accident and set the car ablaze . Interrogated as a suspect , the applicant pleaded not guilty .

DATE after the applicant ’s arrest , on DATE , another set of criminal proceedings was initiated against the applicant on the fact of a large - scale contraband of sugar in FAC . On DATE , the preventive measure taken with regard to the applicant in the first criminal proceedings ( concerning murder ) was altered ; he was released upon a written undertaking not to change his place of residence . However , DATE , on DATE , the competent prosecutor ordered the applicant ’s detention on remand in the contraband case .

On DATE the preventive measure in the murder case was revoked by the prosecutor because of the lack of evidence against the applicant . On the same date the applicant was charged with committing an aggravated contraband . On DATE the preventive measure in the criminal proceedings concerning the contraband was also altered into a written undertaking not to change his place of residence . In DATE the applicant was officially indicted on a charge of aggravated contraband and forgery .

NORP In DATE CARDINAL of CARDINAL persons having allegedly strangled the applicant ’s business partner was found dead . On DATE , the other , GPE , was arrested and detained on remand . Later , in DATE of DATE , he was released upon a written undertaking not to change his place of residence .

On DATE , in spite of his undertaking not to leave his residence , the applicant left GPE for GPE .

On DATE ORG committed the applicant to trial in the contraband case . On DATE , the prosecutor charged him with aggravated murder and ordered his detention on remand .

On DATE ORG , examining the contraband case as a court of first instance according to the law then in force , opened the hearing on the merits of this case . As the applicant failed to appear , the preventive measure against him was changed into a detention on remand , he was placed on the wanted list , and the proceedings against him were suspended . In DATE the prosecutor sanctioned a search operation in order to locate the applicant ’s whereabouts .

NORP In DATE and DATE some investigative measures were taken in the murder case ; namely , PERSON was interrogated . The prosecutor also terminated criminal proceedings against CARDINAL of the applicant ’s accomplices who had allegedly helped him to dispose of the victim ’s body ; he was subsequently charged with concealment of a crime and intentional destruction of property .

On DATE the pre - trial investigation of the whole case was suspended . DATE ORG ordered the applicant ’s search via the ORG information channels . On DATE the competent prosecutor ordered the applicant to be detained on remand .

On DATE the Criminal Police informed the prosecutor that the applicant ’s whereabouts were unknown . Consequently , on DATE the case against him was disjoined from the rest of the murder case into a separate case file . Shortly thereafter , ORG and the other presumed accomplice disappeared and were placed on the wanted list .

On DATE the prosecutor charged the applicant with a complicity in murder . On DATE , the prosecutor applied to ORG for a detention order in respect of the applicant , given the fact that under the relevant amendments to LAW a detention on remand could not anymore be applied by a prosecutor . On DATE the order was granted , without specifying its temporal limit .

On DATE ORG ordered the responsible prosecutor to redefine the charges against the applicant into an aggravated murder and unauthorised possession of a gas pistol with ammunition . On DATE the prosecutor resumed the investigation in respect of the applicant ’s CARDINAL presumed accomplices , who had been located in the meantime . On DATE , the proceedings against them were partly discontinued as time - barred .

On an unspecified date , the NORP authorities learned of the applicant ’s stay in GPE . Accordingly , on DATE ORG asked ORG for assistance in legal matters , namely , to locate and to extradite the applicant in accordance with the NORP - American LAW of DATE . On DATE GPE authorities took the applicant into custody pending extradition proceedings .

On DATE the competent GPE Magistrate Judge granted an order allowing the applicant ’s extradition to GPE on the charge of aggravated murder . The applicant appealed requesting a stay of the extradition order .

On DATE ORG informed ORG that the applicant was currently held in custody in GPE , and that the GPE authorities had consented to his extradition to GPE on the charge of aggravated murder . On DATE the acting Secretary of ORG of GPE signed a written document approving the applicant ’s deportation order . On DATE ORG convoyed the applicant to FAC ( GPE ) , where he was handed over to the NORP authorities . On DATE he was brought to GPE and placed in LOC . On DATE , on DATE , ORG was notified of this fact .

On DATE of the applicant ’s extradition , on DATE ORG of GPE stayed the extradition order of DATE .

On DATE the competent prosecutor decided to resume the pre - trial investigation regarding the applicant . On the same date , the detention order of ORG of DATE was notified to the applicant , who attested it with his signature .

On DATE the applicant ’s lawyer appealed against this detention order , stating that the latter had been taken in the applicant ’s absence , that the judge who had taken it had no time to acquaint himself with the criminal case file , and that the detention was authorised for an indefinite period of time . By a final decision of DATE ORG rejected the appeal , declaring that the applicable domestic law allowed for such order when the accused person was absconding from justice , and that in this case , precisely , the applicant was hiding .

On DATE ORG , acting upon the prosecutor ’s request , extended the applicant ’s detention on remand until DATE , with the following reasoning :

“ Taking into account the gravity of the crime committed , as well as the fact that ORG could abscond from investigation and trial , and hinder the establishment of truth in the case ... ”

NORP The applicant appealed , stating that the time he had spent in custody in GPE had to be counted as a part of the overall time of his pre - trial detention and that , consequently , this detention had exceeded the maximum time - limit set by LAW . On DATE ORG rejected the appeal , refusing to subscribe to the applicant ’s interpretation . According to the court , the time of his detention on remand should be counted from the DATE when he was surrendered to the jurisdiction of GPE .

On DATE the charges against the applicant were amended . As the GPE authorities had extradited the applicant on the condition that he would stand trial for murder , the charges regarding intentional destruction of property and illegal possession of a gas pistol were dropped .

By an order of ORG of DATE , reasoned in terms identical to the CARDINAL of DATE , the applicant ’s detention on remand was extended until DATE . The applicant ’s appeal was dismissed on DATE , repeating in substance the reasoning of the previous appeal decision .

On DATE the ORG dismissed the charges against the applicant in the contraband case , as there was no consent from the authorities of the extraditing ORG ( i.e. , GPE ) to try him for the respective offences .

On DATE the applicant ’s detention on remand was extended until DATE , with an almost identical motivation as before ; however , ORG added that the applicant had no registered domicile in GPE . On DATE , the applicant ’s appeal was dismissed . On DATE the criminal cases against the applicant , PERSON and the CARDINAL other presumed accomplices were joined again in a single case - file . However , shortly thereafter the case against these QUANTITY latter persons was disjoined from the common case file .

On DATE and DATE , the applicant ’s detention on remand was extended , respectively , until DATE and DATE . On DATE and DATE respectively , ORG rejected the applicant ’s appeals . The reasoning of all these orders and decisions was the same as before .

On DATE the applicant was officially charged with organising an aggravated murder . On DATE the prosecutor notified all the accused persons that the pre - trial investigation was completed and that they would now be able to acquaint themselves with the case file . On the same date , the applicant and PERSON received the file , which consisted of CARDINAL volumes . On DATE they both finished reading it ; the applicant then requested the prosecutor to terminate the proceedings against him . On DATE , this request was rejected .

On DATE the final bill of indictment was notified to the applicant . On DATE , the case file was sent to ORG .

On DATE the competent judge of ORG , without hearing the parties , took a decision to commit the applicant and the co - accused for trial and fixed a hearing for the period of time running DATE and DATE . The judge also decided that the applicant ’s detention on remand “ sh[ould ] remain unchanged ” . No term for that detention was specified . The applicant did not appeal against this decision .

On DATE and DATE the applicant submitted CARDINAL requests to ORG to decide on the lawfulness of his detention on remand , alleging that the consent from GPE to prosecute him had not been properly obtained . He also asked the court to order an additional pre - trial investigation and to alter the preventive measure applied to him . On DATE the court rejected all these requests .

On DATE the applicant requested a separate hearing on the question whether the time he had spent in custody in GPE had to be counted as a part of his pre - trial detention for the purpose of the current proceedings against him and therefore , whether the maximum time - limit of a detention set by LAW had been exceeded . On DATE the court rejected this request .

On DATE the applicant asked ORG to alter the preventive measure and to liberate him . On DATE , the court held a special hearing whereby both the applicant ’s defence counsel and the prosecutor were heard . The court finally decided to reject the applicant ’s request and to keep him in detention for basically the same reasons as before , i.e. , the gravity of the crime for which he was accused , the risk of absconding and the lack of a fixed domicile . The court added that there was a risk that the applicant could commit new crimes , without developing this point .

The applicant appealed . On DATE ORG found the appeal admissible and scheduled the hearing on this procedural issue to take place on DATE . On DATE , it held a hearing and dismissed the applicant ’s appeal , upholding ORG decision . The ORG noted , inter alia , that in DATE the applicant had already breached the preventive measure applied to him and had fled to GPE .

On DATE and DATE respectively , the applicant applied to the Governor of ORG , requesting permission to make copies of CARDINAL ORG replies to his complaints in order to submit them to the ORG . His requests were refused by the Deputy Governor of that prison . It appears that the applicant did not appeal against the refusals .

On DATE ORG commenced the hearings on the merits of the case . However , as the applicant ’s co - accused GPE failed to appear , the hearing was postponed until DATE . The court also ordered the police to ensure ORG ’s appearance . However , on DATE , the police informed the court that the latter had fled to GPE . The court then decided to put him on the wanted list and to adjourn the proceedings sine die .

On DATE the applicant asked the court to alter the preventive measure applied to him . On CARDINAL and CARDINAL DATE respectively , this request was dismissed .

NORP On DATE the applicant asked the case against GPE to be disjoined from his into a separate file , in order to be able to proceed more speedily . On DATE the court rejected this request and affirmed that the applicant would stay in pre - trial detention .

On DATE a new wording of LAW ) of LAW entered into force . According to this new provision , a detention in remand should not exceed DATE and DATE upon committal to trial , and an extension thereto could only be granted by the ORG of ORG on an exceptional basis . Consequently , on DATE the competent judge of ORG requested the ORG to grant such an extension because the applicant “ [ had ] committed the serious offence ” . On DATE the ORG , without summoning the applicant and his defence counsel , decided to extend the applicant ’s detention until DATE . The only reason mentioned by the ORG was that the applicant was accused of committing a serious and violent crime .

On DATE the applicant applied to ORG requesting either to obtain an appropriate permission from GPE to try and sentence him for a criminal offence or discontinue the criminal proceedings . On DATE ORG informed the applicant that his requests will be examined at the hearing on the merits of the case . On DATE the applicant repeatedly requested ORG to take an express decision on this issue , but to no avail . On DATE the court informed the applicant that all his requests should have been decided at the preparatory hearing , according to the relevant LAW . However , as they had been submitted after the preparatory hearing , they were not subject to any other review at this stage of proceedings .

On DATE ORG commenced the hearing on the merits of the case . The applicant immediately tried to discharge the prosecutor , accusing him of committing a criminal offence and of forging evidence . The court rejected the applicant ’s requests . On DATE , it resumed the hearing . The applicant tried to have the whole panel of CARDINAL judges discharged because of their alleged impartiality in addressing the issue of the prosecutor . The court , again , dismissed the applicant ’s requests . It also ordered the police to ensure the presence of some summoned witnesses who had failed to appear . On DATE , the witnesses failed to appear again . The court , again , ordered the police to bring them under constraint .

At the hearings of CARDINAL and DATE the applicant attempted again to have both the prosecutor and the judges dismissed , but in vain . The court also ordered the police to ensure the appearance of CARDINAL remaining witness who had failed to appear .

At the same hearings , referring to LAW , the applicant also requested the court either to obtain an appropriate permission from GPE to try him or to terminate the proceedings . His request was dismissed .

On DATE ORG found the applicant guilty of organising the murder and sentenced him to DATE of imprisonment . The time he had spent in pre - trial detention or custody both in GPE and in GPE was counted as a part of the sentence . As to GPE , he was acquitted of murder , but found guilty of wilful destruction of property and sentenced to DATE of imprisonment .

The applicant appealed the judgment . He stated , inter alia , that he had been convicted in breach of LAW as the consent from the extraditing state to try and sentence him had not been obtained . On the other hand , he did not repeat his grievances in respect of the alleged partiality of the trial court in his appeal .

On DATE ORG found the applicant ’s appeal admissible . On DATE it held its first hearing , whereby the applicant requested a series of investigative measures in order to verify several pieces of evidence . His requests were granted , and the hearing was adjourned . On DATE and DATE and on DATE , DATE and CARDINAL DATE the applicant filed additional observations to supplement his appeal . Moreover , on DATE the NORP lawyer who had represented the applicant in the extradition proceedings in GPE sent a letter to “ the NORP ORG ” ( sic ) , stating that the applicant had been deported from GPE while the extradition proceedings had been pending .

DATE . On DATE the applicant filed a complaint with ORG complaining about undue delays in the appeal proceedings . The complaint was transmitted to ORG . On DATE the President of ORG found that the proceedings were postponed lawfully . The applicant sent an essentially identical complaint to ORG , which also forwarded it to ORG . In reply , the latter informed the applicant that a hearing in his case was fixed for DATE .

By a judgment of DATE ORG dismissed the applicant ’s appeal . It upheld the evaluation of the evidence by the first instance court in full . It also noted that the consent from the extraditing state to try him for the criminal offence had been lawfully obtained ; in this respect the ORG referred to a document signed by the GPE acting Secretary of ORG on DATE approving the applicant ’s deportation order .

The applicant filed a cassation appeal , reiterating his argument based on LAW . On DATE the ORG of ORG declared the cassation appeal inadmissible for lack of arguable points of law . It considered inter alia that the document signed by the acting Secretary of ORG of GPE on DATE had never been quashed and therefore the consent of the extraditing state to try the applicant had been lawfully obtained .

In DATE , having served his sentence , the applicant was released from prison .

The relevant provisions of domestic law are summarised in GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL ) .

In addition , other relevant provisions of the former Code of Criminal Procedure in force at the material time read as follows :

“ A person who is extradited from a foreign state shall not , without a consent of the extraditing state , be charged with committing an offence and subsequently tried or surrendered to a third state for an offence he has committed prior to the extradition and in respect of which he has not been extradited .

( CARDINALrd paragraph added on DATE ) The time period spent in detention in a foreign state shall not be counted as a part of the overall length of detention on remand , but it shall be included in the imprisonment term to be served . ”

“ A person may only be indicted and tried for the criminal offence for which he had been extradited .

These conditions do not apply to the cases where :

CARDINAL ) a consent from the extraditing state to indict and to try the person for other offences committed before the extradition has been received ;

CARDINAL ) the offence was committed after the person had been surrendered to GPE ;

CARDINAL ) the person has not left GPE within DATE after his liberation , although he had had such possibility ;

CARDINAL ) the person had left GPE after the extradition and had returned therein . ... ”

Article IV of LAW of DATE between GPE and GPE , in force until DATE , read as follows :

“ No person shall be tried for any crime or offense other than that for which he was surrendered . ”


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

On DATE the applicants brought an action against PERSON , claiming moral damages for the latter ’s insulting behaviour . The ORG initially suspended the proceedings pending the outcome of the criminal case being conducted against the respondent . A first judgment was eventually given on DATE but was quashed on appeal on CARDINAL DATE . Subsequently , the case was assigned to ORG . This court joined CARDINAL further cases pending between the same parties to the principal action .

The joint proceedings later continued before ORG . This court held numerous hearings DATE and DATE . Although the applicants did not attend several hearings , it appears that they requested the court to continue with their case in their absence . Ultimately , ORG found for the applicants on DATE .

On DATE Mr ORG brought an official liability action against the Attorney ORG . The case was assigned to ORG . On DATE this court adjudicated some of the plaintiff ’s claims and disjoined others , the examination of which was suspended pending the outcome of another case . In the latter connection , the proceedings were resumed on DATE . However , no hearing took place until DATE . Further hearings took place on DATE and DATE . According to the information in the case file , this case is still pending .

NORP In DATE PERSON was found guilty of making false accusations . On DATE he requested a retrial . According to the information in the case file , that request is still pending .

On DATE PERSON filed a criminal report against PERSON , accusing him of libel . A hearing took place on DATE , at which Mr ORG complained that he had not been properly informed of the charges against him . His motion for bias against the police authority dealing with the case was dismissed , and his ensuing complaint , filed on DATE , does not appear to have been answered .

On DATE Mr Kalmár challenged the GPE XX / XXI / XXIII ORG for bias . His motion was rejected on DATE . According to the information in the case file , these proceedings are still pending .


The applicant was born in DATE and lives in GPE .

On an unspecified date the Zavodsky District Court of GPE ( “ the ORG ” ) gave an unspecified decision on the claim of the applicant ’s former husband , PERSON , lodged against the applicant for division of their property . By a final ruling of CARDINAL DATE , ORG ( “ the ORG ” , since DATE , ORG ) , ordered PERSON to compensate the applicant for her share of their property .

In DATE ORG of GPE and ORG invited the applicant to discuss the residence registration of her daughter , O.

In DATE the applicant lodged claims with ORG of Donetsk and ORG seeking division of her common property with ORG There is no indication whether and , if so , how these claims were handled by the courts .

NORP In DATE the applicant unsuccessfully tried to have her brothers , PERSON . and GPE . , prosecuted for hooliganism and theft . She was not found to be a civil party to these proceedings .

On DATE . and PERSON . lodged a claim against the applicant challenging the validity of their mother ’s will over a house and belongings .

On DATE ORG partly allowed the claim .

Following a “ protest ” of ORG of DATE , ORG quashed this judgment on DATE and remitted the case to ORG which , ORG DATE partly allowed the applicant ’s claim .

NORP On DATE ORG upheld this judgment . On DATE the applicant appealed in cassation . On DATE she requested ORG to speed up examination of her case . By a final ruling of DATE , notified to the applicant on DATE , ORG upheld the lower court ’s decisions .

According to the ORG , DATE and DATE , the applicant filed CARDINAL procedural requests and CARDINAL appeals which all met procedural requirements . Moreover , of the QUANTITY hearings scheduled , CARDINAL were adjourned at the PERSON request , CARDINAL were adjourned at the applicant ’s request , CARDINAL were adjourned due to the PERSON or witness ’s failure to attend , CARDINAL was adjourned due to the applicant ’s failure to attend , CARDINAL was adjourned at the GPE request , and CARDINAL were adjourned for reasons beyond the parties’ control . Overall , due to the applicant ’s requests or her failure to attend , the proceedings were delayed for about eleven moths .


Remainder inadmissible;No violation of Art. 6-1+6-3-c;No violation of Art. 6-1+6-3-d;Violations of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , was born in DATE and is currently serving a prison sentence in GPE , GPE .

On DATE P. was murdered . On an unspecified date in DATE a criminal investigation was opened against the applicant . During the criminal investigation , the victim 's sister , PERSON , even though she had not been present at the crime scene , stated that the applicant had killed her brother . She based her testimony on the account of CARDINAL eyewitnesses , B. , C. and NORP , who , it would appear , were questioned on an unspecified date .

On DATE the judicial police , the body responsible for the conduct of the criminal investigation and the identification of the perpetrator , recommended that the criminal investigation be suspended , as the perpetrator of the crime could not be identified . However , on DATE the prosecutor filed an indictment against the applicant with ORG ( see paragraph CARDINAL below ) .

In DATE GPE was hit by civil unrest as a result of the fall of pyramid schemes . ORG depots were looted and a very considerable number of weapons were in civilian hands . The gradual restoration of ordre public necessitated frequent police checkpoints . Consequently , on DATE the NORP police forces set up checkpoints to conduct searches of people for illegal possession of firearms . In TIME of the same day , police officers on duty at a checkpoint situated on the main road between the cities of GPE and PERSON shot the applicant and X. , another person riding a motorcycle with him . As a result , X. died and the applicant was seriously wounded .

According to the police report on the incident , QUANTITY persons riding a motorcycle ( identified later as the applicant and X. ) , did not stop when ordered to do so by the police at the first checkpoint . The police at the second checkpoint reported that the applicant , who had been driving the motorcycle , had fired at the police officers with both an automatic gun and a revolver simultaneously . The police had returned fire and shot X. , the pillion passenger , dead . Notwithstanding the fact that the applicant was wounded , he had continued to shoot until he surrendered . The police reported having collected from the scene CARDINAL PERSON automatic guns ( automatikë kallashnikov ) , CARDINAL pistols ( pistoletë ) , bullets and cartridges , the motorcycle , a mask , a hat , a pair of sneakers , and other things allegedly used by the applicant and X. It appears that the automatic weapons , pistols , bullets and cartridges were sent for ballistics examination .

On DATE the applicant and another suspect , PERSON , were arrested in relation to the above event ( see paragraph CARDINAL above ) .

NORP The applicant was taken to hospital , where he stayed for TIME for medical treatment as he had been wounded . After release from the hospital on DATE , he was remanded in custody in GPE . On DATE the applicant was examined by a doctor , who found that his overall state of health was satisfactory . It was concluded that the injuries the applicant had sustained fell under the category of light bodily injuries requiring DATE rest .

On DATE the prosecutor charged the applicant with attempted murder in collusion with others and illegal possession of firearms . During questioning the same day , the applicant did not provide any information regarding the charges levelled against him . The applicant requested the presence of his lawyer , F.

On DATE the lawfulness of the applicant 's arrest was confirmed by ORG .

On DATE the prosecutor decided to discontinue the criminal investigation against PERSON , finding that he had not committed any criminal offence .

On DATE , CARDINAL DATE and DATE , when questioned by the prosecutor , the applicant was defended and represented by PERSON , another lawyer of his own choosing .

On DATE the NORP prosecutor filed a bill of indictment with ORG , accusing the applicant of the intentional murder of PERSON and attempted murder of police officers on DATE . It would appear that both criminal proceedings against the applicant were joined .

ORG commenced the trial against the applicant on DATE . CARDINAL hearings were held DATE and DATE , on which date the proceedings were transferred to ORG ( see “ Transfer of proceedings ” section below ) . CARDINAL hearings had been adjourned owing to the absence of the prosecutor , the applicant or his lawyer . In the remaining QUANTITY hearings , the applicant was represented by his lawyer , PERSON

The applicant contested the facts as submitted by the prosecution . He stated that he had been riding the motorcycle unarmed when the police officers at the second checkpoint had opened fire , without ordering him to stop . He also asked the court to summon witnesses who , at the time of the incident , had been driving on the same road .

At the hearings of DATE and DATE , CARDINAL witnesses , who had been driving on the same road and had seen the applicant while he was riding the motorcycle , testified that the applicant had not been carrying any weapons .

On DATE the prosecutor submitted a request to ORG for the transfer of the criminal proceedings against the applicant from ORG . He argued that the state of insecurity in PERSON made witnesses hesitant to testify before the court . He also mentioned the existence of “ pressure of various forms , even threats to the life of the prosecutor concerning the outcome of the proceedings ” .

On DATE ORG granted leave to transfer the proceedings from ORG to ORG , in accordance with LAW ( “ the ORG ” ) .

Pursuant to LAW ORG , ORG was required to take a decision as regards the validity of the actions carried out by ORG . No such decision was contained in the case file . The Government submitted that the case file and acts carried out by ORG were considered valid on the strength of a certificate of CARDINAL DATE issued by ORG registrar .

On DATE the applicant appointed another lawyer of his own choosing , H.

On DATE ORG commenced the trial of the applicant . CARDINAL hearings were conducted DATE and LAW DATE , the date on which the applicant was found guilty of the offences and sentenced to imprisonment .

From DATE to CARDINAL DATE QUANTITY hearings were scheduled , but adjourned owing to the absence of the applicant or his representative . No witnesses were heard and no other procedural measures were taken . On CARDINAL DATE the court informed the applicant that he could appoint another counsel given the repeated absence of his lawyer PERSON

On DATE the applicant revoked PERSON 's power of attorney . From CARDINAL DATE to DATE , during which time CARDINAL hearings were held , the applicant represented himself . No witnesses appeared or were questioned at those hearings , as a result of which they were adjourned . On DATE the prosecutor read out witness statements which had been taken during the criminal investigation . The applicant contested the statements of witnesses PERSON and NORP On DATE the applicant reappointed his previous lawyer PERSON The court decided to examine witness A. at the next hearing on DATE in the presence of the applicant 's lawyer .

On DATE the court heard the testimony of A. , who stated that the applicant was the murderer of her brother PERSON She relied on the evidence of witnesses PERSON , C. and NORP She had not been a witness at the crime scene . Neither the applicant nor his lawyer , PERSON , questioned PERSON to the applicant 's request , ORG issued several summons for the appearance of PERSON , C. and NORP However , the witnesses never appeared before the court .

At the hearing of DATE the applicant appointed PERSON to act as his lawyer alongside PERSON police officers PERSON , NORP and PERSON gave evidence at the trial . In light of the discrepancies in PERSON 's testimony at the investigation stage and the trial proceedings , the prosecutor requested leave to challenge the testimony pursuant to LAW ORG by reading out his statement made during the criminal investigation .

While the applicant and lawyer PERSON did not initially question PERSON , they requested that he be cross - examined after the reading of his statement . ORG rejected their request as they had initially waived their right to question the witness .

On DATE the applicant 's lawyer PERSON requested the court to summon PERSON for cross - examination . He repeated the request at the hearing of DATE . On the same date the court rejected the request as ill - founded . It however granted the lawyer 's request to summon CARDINAL other police officers PERSON

On DATE the applicant 's lawyer repeated his request to summon and cross - examine M. On DATE the court rejected the requests as ill - founded . It reasoned that PERSON had attended a hearing in which the accused and his lawyer had had the opportunity to put questions to him . On DATE , the court heard police officer PERSON applicant was represented by his lawyer PERSON , PERSON never appeared and were questioned before the court , despite repeated summons and information sent by the court to the respective authorities , for example ORG , ORG and ORG .

On DATE the applicant 's lawyer PERSON withdrew from representing the applicant . The applicant 's other lawyer PERSON was absent . The court decided to adjourn the proceedings until DATE .

On DATE the applicant 's lawyer PERSON withdrew from representing the applicant . His reasons related to his involvement in the defence of other criminal cases . He also mentioned procedural irregularities committed by ORG , which had not served him with written summons to appear at hearings . He alleged that the court lacked impartiality . He requested the court to proceed in accordance with section CARDINAL § CARDINAL of the ORG .

On DATE the applicant appointed another lawyer of his own choosing , J. The court decided to adjourn the proceedings until DATE .

On CARDINAL DATE the court read a fax received from the applicant 's lawyer PERSON , whose involvement in other business did not enable him to defend the applicant . PERSON stated that he had not received any request to represent the applicant . The record of the hearing stated that the applicant wished to defend himself . The applicant stated that he had not been in possession of any weapons on DATE . He agreed to the reading out of statements of witnesses Q. , NORP and PERSON taken during the criminal investigation and waived his right to have witness NORP questioned . The prosecutor proceeded with the reading out of the above - mentioned witnesses ' statements . He then concluded with his final submissions . The applicant subsequently stated that he did not accept the charges as he had neither killed P. , nor shot at the police officers .

On DATE the ORG delivered its judgment , finding the applicant guilty as charged , and sentenced him to DATE imprisonment .

In relation to the charge of attempted murder of police officers , the ORG based its judgment on the testimonies of CARDINAL police officers PERSON and PERSON given at the hearings of DATE and DATE ( see paragraphs CARDINAL and DATE above ) and on the statements of CARDINAL witnesses made during the criminal investigation . The court took note of the crime scene investigation report , the applicant 's arrest report and the ballistics report .

In that connection , the court also found the applicant guilty of illegal possession of firearms on the strength of the ballistics report , adding that the cartridges found at the crime scene had been fired from the weapons found close to the accused . However , there was no mention in the judgment as to whether the weapons had been in the actual possession of the applicant .

In relation to the murder of P. on DATE , the ORG based its reasoning on the testimony of A. given before the trial and the statements of witnesses B. , C. , and NORP given during the criminal investigation ( see paragraphs CARDINAL , DATE and DATE above ) .

On DATE the applicant appealed against his conviction and sentence to ORG , alleging a violation of the right to a fair trial . In particular , he argued that the lack of legal assistance during the trial and the fact that the court of first instance had admitted witness statements without the possibility of cross - examination of the deponents constituted a breach of the right to adversarial proceedings . Furthermore , he had been deprived of the right to cross - examine witness PERSON who had testified at the hearing of DATE . He also maintained that , during the stage in which the parties had made their final submissions , he had not been assisted by defence counsel . The applicant was represented before ORG by ORG , who had previously withdrawn from the case on DATE ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the applicant 's appeal and upheld ORG judgment . In so far as the appeal was directed against ORG refusal to allow the applicant to cross - examine witness PERSON , ORG noted that at the hearing of DATE the applicant 's counsel had stated that he had no questions to ask . The applicant had addressed only CARDINAL question to the witness , which was answered . ORG rejected the applicant 's complaint about the lack of legal assistance at the final hearing , relying on his statement that he wished to defend himself .

On DATE the applicant appealed to ORG relying on the same grounds of appeal as before ORG . He added that the record of the hearing of CARDINAL DATE had been forged by ORG in so far as his request to be defended by a lawyer had been distorted to read that he wished to defend himself .

On DATE ORG declared his appeal inadmissible as “ its grounds fell outside the scope of LAW ORG ” .

On DATE the applicant lodged a complaint with ORG about the unfairness of the proceedings . He complained about the length of his pre - trial detention and relied on LAW ( b ) and ( c ) and ( d ) of the LAW .

On DATE ORG , sitting as a bench of CARDINAL judges , declared the complaint inadmissible . It held that the applicant 's complaint did not raise any fair trial issues , but mainly concerned the assessment of evidence which was the function of the lower courts .

On DATE the applicant lodged with the ORG a notarised statement by ORG , the judge who had presided over the bench of ORG in the criminal proceedings . According to ORG , the proceedings had been transferred to ORG , to the applicant 's detriment , at a point when ORG had been nearing the end of the examination of the case and had been likely to conclude that there was insufficient evidence against him . Furthermore , PERSON maintained that ORG had admitted witness statements obtained at the police station rather than those obtained during the trial before ORG . He also maintained that ORG had not considered a ballistics report submitted during the trial before ORG , from which it transpired that the automatic guns allegedly used by the applicant belonged in fact to ORG . Moreover , he stated that the applicant 's lawyers had withdrawn from defending him during the trial before ORG as a consequence of threats to their own lives and those of their families .

The applicant also submitted CARDINAL notarised statements made by eyewitnesses who had been present TIME before the incident and had seen the applicant riding the motorcycle unarmed and had then heard the police shooting . The same eyewitnesses gave testimony before FAC on DATE and DATE ( see paragraph CARDINAL above ) .

On DATE the ORG requested the ORG to provide a copy of the entire investigation file and legible records of all hearings before FAC . On DATE the Government provided records of all the hearings held before FAC . No documents from the investigation file were provided .

DATE

During criminal proceedings , everyone has the right :

a. to be notified immediately and in detail of the charges brought against him , of his rights , and to have the possibility to notify his family or relatives ;

b. to have sufficient time and facilities to prepare his defence ;

c. to have the assistance of a translator free of charge , when he does not speak or understand the NORP language ;

ç . to present his own case or defend himself through the assistance of counsel of his own choosing ; to communicate freely and privately with him , as well as to be provided free legal counsel when he does not have sufficient means ;

d. to examine witnesses who are present and to request the appearance of witnesses , experts and other persons who can clarify the facts .

Article CARDINAL

No one shall be obliged to testify against himself or his family or to confess his guilt .

No one shall be declared guilty on the basis of evidence collected unlawfully .

Article CARDINAL

Everyone has the right to be heard before being judged .

A person who is seeking to evade justice may not avail himself of this right .

“ In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

“ The Constitutional Court shall decide : ...

( f ) in a ruling that shall be final , complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

Article CARDINAL § CARDINAL of the ORG provides that the presence of a defence lawyer shall be required when the appointed lawyer has not been provided , has not appeared or has abandoned the defence . In such circumstances the court or the prosecutor shall appoint another lawyer as substitute , who shall exercise the rights and assume the obligations of the defence lawyer .

Articles CARDINAL - CARDINAL govern the transfer of proceedings . According to the wording of Article CARDINAL , as in force at the material time , “ at any stage and instance during the trial , when public safety or the free will of the persons participating in the trial are impaired by serious local events which may affect the conduct of the trial and which may not be avoided by other means , ORG , further to a reasoned request by the prosecutor or the defendant , may transfer the case to another court . ”

Article CARDINAL provides that ORG decides in private . A decision to grant a request for the case to be transferred shall be notified to the court in which the proceedings have been conducted and the court to which the proceedings are to be transferred . The court which had previously conducted the proceedings shall immediately transfer the procedural documents to the designated court and shall order the notification of the decision of ORG to the prosecutor , defendant and private parties . Article CARDINAL § CARDINAL states that “ the court designated by ORG shall give a decision as to whether the actions already carried out are valid and the extent of their validity ” .

Under LAW , as in force at the material time , “ in order to challenge , entirely or partly , the content of the testimony or when the witness refuses to testify , the parties may use the statements previously made by the witness before the prosecutor or the judicial police and which are in the case file , but only after the witness has testified to the facts and circumstances which can be contested ” . LAW stipulated that “ these statements do not constitute evidence for the facts found therein , but they can be examined by the court in order to determine the reliability of the person in question and are a constituent part of the case file ” .

Article CARDINAL establishes the scope of the examination of the appeal by ORG . It provides that the examination of the case by ORG is not limited to the grounds of appeal but extends to the whole case .

Under LAW , at the party 's request , ORG shall be empowered to directly re - examine previous evidence and additional new materials , if it considers necessary .

Article CARDINAL establishes which decisions may be taken by ORG . It provides that ORG may decide to dismiss the appeal and uphold the judgment , to amend the judgment , to quash the judgment and terminate the criminal proceedings , or to quash the judgment and remit the case for a fresh trial .

ORG judgments may be appealed to ORG in compliance with one of the following requirements of Article CARDINAL : a ) the criminal law has not been respected or has been erroneously applied ; b ) there have been breaches which result in the court 's judgment being declared invalid in accordance with Article CARDINAL of this Code ; c ) there have been breaches of procedural rules that have affected the adoption of the judgment .

Article CARDINAL provides that ORG examines the appeal in so far as points of law have been raised therein .