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[ "Mr GPE has a degree in technical sciences from ORG and is the author of a thesis submitted to ORG . He is now retired and lives at GPE ( GPE of GPE ) , where he conducts private research in his own laboratory .", "NORP In collaboration with PERSON , a professor at ORG and a technical adviser at ORG , Mr GPE carried out a study of the effects on human beings of the consumption of food prepared in microwave ovens . Over a period of DATE , the blood of CARDINAL volunteers who followed a macrobiotic diet was analysed before and after consuming QUANTITY types of food ( some were cooked or defrosted in a microwave oven and the others were raw or cooked by conventional means ) . A research paper was written . It was dated DATE and entitled PERSON über die ORG durch konventionell und i m GPE aufbereitete Nahrung ( “ Comparative study of the effects on human beings of food prepared by conventional means and in microwave ovens ” ) , and it concluded as follows ( translation of an extract from the summary in NORP that was appended to it ) :", "“ …", "… a significant relation was established between the absorption of microwave energy by the food and its transfer to the volunteers’ blood . Thus this energy could be inductively transmitted to human beings by means of the food , a phenomenon governed by the laws of physics and confirmed in the literature [ references to : PERSON , PERSON , GPE , GPE , DATE ; PERSON , Die heutige ORG zerstört sich selbst , ORG für GPE , GPE Brede CARDINAL , PERSON , DATE ] .", "The measurable effects on human beings of food treated with microwaves , as opposed to food not so treated , include changes in the blood which appear to indicate the initial stage of a pathological process such as occurs at the start of a cancerous condition . ”", "The DATE ORG PERSON devoted part of its nineteenth issue ( DATE ) to the effects on human health of using microwave ovens .", "On the cover there is a picture of the Reaper holding out one hand towards a microwave oven , together with the following title :", "“ The danger of microwaves : scientific proof ”", "In an editorial on page CARDINAL Mr PERSON writes :", "“ …", "To say that our journal is fearless is almost to state the obvious . The Journal PERSON was the first newspaper in the world to pinpoint the dangers of microwave ovens and has kept up its accusations despite massive attacks by the promoters . DATE science proves us right ( see pages CARDINAL–CARDINAL ) . Microwave ovens should be banned . We would not be surprised if the researchers who have had the courage to defend the findings of their research were attacked in their turn , seeing that MONEY are at stake . But truth is in the end more durable than a deal involving CARDINAL at the expense of our health . We shall continue to fight for the truth in this case too .", "… ”", "On the same page the following can be found under the heading Imprint :", "“ … Editorial staff : … H.U. GPE , René d’Ombresson … ”", "NORP On pages CARDINAL–CARDINAL there is an article by PERSON entitled “ Microwave ovens : a health hazard . Irrefutable scientific evidence ” and the introductory paragraphs are worded as follows :", "“ A scientific study demonstrates the health hazards of food prepared by microwave radiation and proves the ORG PERSON right .", "Off to the scrap heap and the rubbish dumps with microwave ovens ! The treatment to which they subject food is so pernicious that it causes a change in the blood of whoever eats it and this leads to anaemia and a precancerous condition . These are the findings of a rigorous study carried out by a professor of the ORG [ ORG ] and an independent researcher , who were determined to answer once and for all the crucial question : are microwave ovens harmful or not ? Here is a simplified summary of the study , followed by the study itself for those who are not put off by figures and scientific demonstrations . We were anxious to publish both these , albeit at the risk of repetition , so that the findings should be available to the widest possible public . ”", "The article continues ( pages CARDINAL–CARDINAL ) :", "“ Simplified summary of the research", "… warnings are being given by more and more people : microwave ovens are not harmless .", "Legitimate anxieties", "Only recently , ORG made public a brief report containing the anxieties of certain researchers , confirming the main points of the findings made by Dr PERSON , an independent researcher , findings which we published in detail in our DATE issue . The claim that microwave ovens were harmful came as a bombshell to technologists and industrialists and provoked wide discussion , which we reported on in the DATE issue of the ORG PERSON .", "Giving a scientific reply", "The claim was taken seriously , however , by a number of scientists , including Mr H. ORG , Professor of ORG at ORG , who undertook some research in collaboration with PERSON . It is the damning findings of that work that we are summarising here , in its broad outlines , and are publishing for the first time .", "Sealing is sufficient …", "… [ The ] effects [ of artificial microwaves ] have been known since the last world war thanks to CARDINAL of their applications , radar . …", "And food ?", "On the other hand , hardly any questions were asked about the quality of food irradiated in this way . It was accepted that such food was neither better nor worse than food cooked by conventional means . But , to our knowledge , no research attempted to answer the question ‘ harmful / not harmful?’", "Harmfulness demonstrated", "DATE the answer is unequivocal : the use of microwaves for preparing food is harmful . The microwaves impair the organic substances and cause alarming changes in the blood of those who consume them , notably anaemia and precancerous conditions . Those are the findings of the study carried out by Professor Bernard H PERSON and Dr PERSON .", "Clinical research", "…", "CARDINAL food variants", "…", "Incriminating results", "Food treated by microwaves caused significant changes in the volunteers’ blood ( a drop in haemoglobin levels , an increase in the haematocrit , in leucocytes and in the levels of cholesterol particularly of the ORG and LDL forms ) . As regards lymphocytes , the drop was more rapid and more marked where the food was a vegetable prepared with microwaves than it was with other variants .", "Such changes in the blood count appear to indicate the initial stage of a pathological process such as occurs in a precancerous phase . As the experiment covered DATE , it is reasonable to wonder about the longer - term effects , a fortiori if the effects of the radiation persist .", "Long - term effects", "Does food irradiated by microwaves absorb the radiation and transfer it to the organism it is supposed to feed ? To answer this crucial question , the researchers applied a known bacterial bioluminescence method which allows the degree of stimulation or inhibition of bacteria in the blood to be measured . The results clearly show that irradiated food irradiates in its turn and that this prolonged effect on the blood must be taken seriously since the phenomenon is CARDINAL of direct irradiation , whose consequences are only too well known .", "Measuring the hidden dangers", "…", "Burying one ’s head in the sand", "The scientific literature on the damage caused to living organisms by direct microwave radiation is particularly voluminous . It is so revealing that it is surprising that the use of microwaves has not long since been replaced by another technique that is less dangerous and better suited to nature . The pernicious effects of microwaves range from the destruction of cell membranes and cell respiration and cell - division disorders to haemolysis ( destruction of red blood cells ) , leukaemia and the blockage of natural cycles .", "Aligned - covered", "…", "Cathodic constraints", "…", "ORG beings in danger !", "Not a single atom , molecule or cell can , while remaining whole , resist destructive forces of such power , even if that power is no greater than QUANTITY . When CARDINAL considers that CARDINAL of the weight of plants , animals and human beings is accounted for by water , the biological dangers represented by such microwaves can easily be imagined .", "A prey to viruses", "In addition to the thermic effects of microwaves , there is an athermic effect , although official science pays little attention to it , no doubt because it is not measurable . But under the influence of these CARDINAL factors molecules are shattered , their structures deformed and their natural functions perverted . … A cell weakened in this way rapidly becomes an easy prey for viruses and fungi .", "Like a cancer cell", "If the stress is maintained under the influence of the microwaves , the repair mechanism breaks down and the cell , for want of energy , switches to anaerobic respiration ( without oxygen ) . In place of HCARDINALO and COCARDINAL ( aerobic respiration ) there appears , inter alia , the cell poison HCARDINALOCARDINAL and ORG , as can be observed in a cancer cell .", "As can be seen , Professor PERSON and Dr PERSON ’s findings are sufficiently alarming for the use of microwave ovens to be rapidly banned , their manufacture and sale to cease and all ovens currently in service to be scrapped . Public health is at stake . ”", "Pages GPE contain the following account of the study in question :", "“ The complete research paper", "Comparative study of the effects on human beings of food prepared by conventional means and food prepared with microwaves", "PERSON … PERSON", "Introduction", "…", "Tolerance thresholds", "… The harmfulness of microwaves , and above all their thermic effect on biological systems , was discovered very early on DATE ) . Tolerance thresholds were accordingly established , for microwave ovens as for other applications , in order to avoid the undesirable effects of any leaking radiation .", "Harmful or not harmful ?", "The quality of food prepared with microwaves has not been officially questioned . It is simply accepted that food prepared in this way is neither better nor worse than food cooked by conventional means . So far as is known , there has not yet been any scientific research which has clarified the possible effects on health of food defrosted or cooked in microwave ovens . Given the widespread use of this method of cooking , is it not appropriate that the question ‘ harmful / not harmful’ should at last be answered scientifically ?", "In this study various foodstuffs were accordingly examined firstly in their raw state and secondly in technologically prepared form , defrosted or cooked by conventional means and with microwaves .", "Description and mode of action of microwaves on living beings through direct radiation and through food prepared in microwave ovens", "…", "Well - known pernicious effects", "The scientific literature on the damage to living organisms by direct microwave radiation is particularly extensive . It is so revealing that it is surprising that the use of microwaves has not long since been replaced by another technique better attuned to nature . The pernicious effects of microwaves range from the destruction of cell membranes and cell respiration and cell - division disorders to haemolysis , leukaemia and genetic changes including the blocking of natural cycles .", "Infernal radiation", "The artificial production of microwaves is based on the principle of alternating current . Matter ( atoms , molecules , cells ) which is irradiated by this electromagnetic radiation thus undergoes , according to the radiation frequency , CARDINAL polarity reversals or oscillations per second . Not a single atom , molecule or cell of a living organism would be able to resist destructive forces of such power , even if it was only of the order of QUANTITY .", "Mind the water !", "Of all the matter and substances in nature which are polar , the hydrogen in water reacts with the greatest sensitivity . …", "Mr PERCENT water , beware !", "… the biological effects of artificially created microwaves will be correlated above all with the generation of heat by friction . And since plants , animals and human beings are PERCENT water , it is not difficult to imagine the biological dangers of such microwaves . …", "Easy prey for viruses", "In addition to the thermic effects of microwaves there is also an athermic effect … , of which little official notice has been taken until now . It is not measurable like the thermic effect . But under the influence of these CARDINAL effects , molecules are shattered , their structure deformed and their natural functions perverted . Such effects are probably qualitative . This pernicious effect at the qualitative level and the weakening of organic systems , such as cell membranes , are used in genetic engineering to gain access to genes . In this way the genes can be artificially altered by radiation . The cells are thus broken into and the energy tension between the outside and the inside of the cell is removed . A cell weakened in this way becomes an easy prey for viruses and fungi .", "Danger ! Cell poison", "If the stress were to be maintained , inter alia by microwaves , the repair mechanism would break down and the cell , for want of energy , would be obliged to switch to anaerobic respiration . In place of HCARDINALO and COCARDINAL ( aerobic respiration ) there appears , among other things , the cell poison HCARDINALOCARDINAL and ORG as in a cancer cell . This is why leaked radiation from microwave ovens is so dangerous . Yet safety standards vary from country to country . This shows only too well that the problem is far from being resolved , especially as microwave ovens , as we know very well , are not always reliably sealed and become less leakproof with use , as experience has shown .", "Danger to the eyes , lungs and endocrine system", "The microwaves , which in the light of our scientific knowledge can be identified as the main cause , together with artificial radioactivity , of ‘ electrosmog’ , impair the functions of all living organisms , functions which depend on natural fields . ... It can be expected that these effects will be detectable in the blood count .", "As powerful as a television transmitter", "Basically , microwaves can produce the same changes in form and structure in food prepared in microwave ovens as they can in living organisms . …", "Microwave transmitters on the loose in the organism", "Through this irradiation of food the structure of the molecules is likewise broken down and deformed and new substances with lasting effects are created about which science knows very little . Furthermore , this powerful , artificially produced radiation will be induced in the food , which in its turn , by a well - known electromagnetic process , will become a source and carrier of the radiation . The actual process of induction in organic matter is not entirely understood .", "A phenomenon unknown in nature", "…", "A proper clinical study", "Whether and to what extent microwaves are harmful or harmless can at present be determined only by an indirect method – by assessing the effects on living organisms . The present research , based on a method of that kind , is designed to measure the effects of different foodstuffs , cooked by conventional means and with microwaves , as interpreted through changes in the parameters of the blood count of volunteers .", "Research plan", "…", "Analysis and observation of the food variants", "…", "Discussion of the results", "General findings", "All the measures ( original values and control values ) of erythrocytes , haemoglobin , haematocrits and leucocytes are at the bottom of the normal range of variation . A haematological interpretation shows up indications of a tendency to anaemia among the volunteers .", "That situation becomes more marked during DATE , when , together with a further deterioration of the blood parameters , an increased level of cholesterol becomes apparent .", "…", "Table CARDINAL summarises the results", "( See Table CARDINAL )", "The differences in effects on the human organism of food prepared by conventional means or with microwaves are negligible for a single serving . Certain tendencies , however , are visible , in some circumstances significant ones , statistically confirmed by the Rank method .", "Appearance of anaemia", "In the vegetables prepared with microwaves ( variant CARDINAL ) the erythrocytes tend to increase . Among other blood factors , the erythrocytes have the property of being mobilised ( probably from the spleen ) and rapidly increasing in number in the blood under the influence of short - term stress . If the stress continues , the number falls . Anaemic tendencies thus appear .", "ORG in food transit", "In unpasteurised milk ( variant CARDINAL ) haemoglobin levels tend to fall , in vegetables cooked with microwaves ( variant CARDINAL) they drop significantly . Haemoglobin deficits are to be regarded as stress indicators . The CARDINAL foodstuffs in question cause stress in the human organism . The digestion of unpasteurised milk is radically different from that of heated milk . The transit of unpasteurised milk through the stomach , because of its coagulation and breakdown , is lengthy and is associated with some stress for the organism . This process , however , is natural , normal and not toxic .", "Aggressiveness of milk heated with microwaves", "The transit of heat - treated milk through the stomach and intestines is generally more rapid than that of unpasteurised milk . The proteins are transformed to such an extent that they coagulate into magma more quickly . But in this accelerated transit they are not fully broken down . The heated milk thus has a less stressful effect on the organism but its nutritional value is also less . Milk heated with microwaves , on the other hand , unlike conventionally heated milk , clearly creates a situation of stress which is in no way comparable to that caused by unpasteurised milk .", "Rheumatism , fever and pituitary insufficiency", "Haemoglobin concentration and corpuscular content react like haemoglobin . There is a significant drop in the levels above all in foodstuffs prepared with microwaves ( variants CARDINAL , CARDINAL and CARDINAL) . These losses also indicate anaemia . In the reference literature they are associated with microcytosis ( haemoglobin content ) , poisoning ( chemical , radiation ) and their consequences : rheumatism , fever , pituitary insufficiency , etc .", "The haematocrit increases partly significantly in vegetables prepared with microwaves ( variants CARDINAL and CARDINAL) . While the low haematocrit values may indicate anaemia – as a result of repeated pernicious influences – increasing values are more a sign of acute poisoning .", "Beware , leucocytes on the increase !", "The increase in leucocytes , which exceed the normal DATE variations DATE after consuming food , for example – is taken very seriously by haematologists . Leucocytes are particularly sensitive to external challenges . They are often a sign of pathogenic action on the organic system by poisoning and non - infectious damage to the ( cell ) tissues . The increase in leucocytes in food prepared with microwaves ( variants CARDINAL , CARDINAL and CARDINAL) is greater than with the other variants . The consequences of such a challenge can easily be imagined .", "Decreasing lymphocytes", "Lymphocytes in principle react to external challenges ( poisons , for example ) in the opposite way to leucocytes . They tend to decrease . They react similarly to haemoglobin . The effect of a challenge is above all observable in unpasteurised milk ( variant CARDINAL ) and in vegetables prepared with microwaves ( variants CARDINAL and CARDINAL) . In these cases DATE initially in every instance – the lymphocytes decrease more significantly than with the other variants .", "Cholesterol , the result of stress", "Although , according to accepted opinion , cholesterol levels rise only slowly and over a long period , cholesterol and , more particularly , its ORG and LDL constituents increase after consumption of vegetables cooked with microwaves ( variants CARDINAL and CARDINAL) . On the other hand , with milk ( variants CARDINAL to CARDINAL ) the cholesterol level tends to remain unchanged , and in the case of unpasteurised milk ( variant CARDINAL ) it even drops significantly . This most interesting finding bears out the most recent scientific knowledge , according to which cholesterol , in a situation of acute challenge , can also increase rapidly owing not so much to the cholesterol content of food as to an external challenge .", "Cholesterol out of nothing", "Such challenges , as the present research shows , are also possible through foodstuffs which contain practically no cholesterol . Artificial radiation and poisons ( antigens ) have a cholesterol - forming effect . In an electromagnetic field , cholesterol undergoes changes in its crystal structure and is eliminated from the blood in the form of a deposit . In cancer patients the blood cholesterol level is always very high . This is why a raised blood cholesterol level may be regarded as an obvious sign of a precancerous condition or a developing cancerous condition .", "Loss of iron", "Iron levels tend to increase in vegetables prepared with microwaves ( variants CARDINAL and CARDINAL) , contrary to all the other variants . PERSON might be thought to be the cause of this phenomenon , being itself a consequence of damage to the membranes of blood cells . Research undertaken up to now does not enable any significant conclusions to be drawn .", "Established pathogenic disorders", "In sum , the results obtained from analysing the blood count of the volunteers fed on food prepared with microwaves to the exclusion of the other variants show changes which bear witness to pathogenic disorders . They present a pattern which might correspond to the beginning of a cancerous development and deserves attention . These results match the effects of chemico - physiological deformations observed in living cells subjected to microwave irradiation .", "Microwaves on the loose in the blood", "The luminescence of bacteria in contact with the serum of volunteers who had consumed food irradiated by microwaves is significantly higher than that produced by the blood of other volunteers fed on the other food variants . The possibility of a transfer of the radiation energy by induction , through the consumption of foodstuffs prepared with microwaves , and their effect on a living organism , in this instance the blood , must be considered .", "Such physical phenomena are scientifically proved . The destructive power of microwaves through direct irradiation , as attested in the scientific literature ( see the previous paragraph ) , could also have harmful effects on human beings through indirect radiation , through irradiated food . ”", "Half of page CARDINAL is taken up with a drawing representing a microwave oven , through the glass panel of which can be seen the head of the Reaper . The same picture , reduced in size , appears on pages CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and DATE .", "On DATE Professor PERSON made the following statement :", "“ Statement concerning false information about foodstuffs treated or prepared in microwave ovens which appeared recently in ORG ( DATE ) [ and ] ORG ( GPE , DATE ) .", "While the published figures and the description of the preliminary experiment are correct , I totally dissociate myself from the presentation and interpretation of the preliminary exploratory experiment carried out in DATE , which was published without my consent by the co - author of the study in the journals cited above .", "The results obtained do not in any circumstances justify drawing any conclusions as to the harmful effects of food treated with microwaves or a predisposition to the appearance of a given pathological condition . As the objective publication of the study in a forthcoming issue of the periodical Alimenta ( DATE ) will show , CARDINAL conclusion is unavoidable , namely that it is necessary to undertake , as a matter of urgency , multidisciplinary and multifactorial basic research on the effects on ( certain parameters of ) health of the consumption of food treated with microwaves in comparison with food prepared using other food technologies or culinary techniques .", "The major unknown factor is the source of the funds needed to finance such a study . ”", "The proceedings against Mr PERSON", "On DATE ORG ( “ the NORP ” ) applied to the President of ORG under LAW ( “ the ORG ” ) for an interim order prohibiting Mr PERSON , on pain of the penalties provided in LAW , “ from using … the image of a man ’s skeleton or any other image suggesting the idea of death … associated with the graphic , photographic , oral or written representation of a microwave oven ” , “ from stating … that microwave ovens must be abolished and their use banned ” , “ from stating … that scientific research proves what a hazard food that has been exposed to radiation in a microwave oven is to health and backs up the ORG PERSON ” or “ from stating … that microwave ovens must all be destroyed without exception because food is harmed by these dangerous appliances to such an extent that it causes , in those who consume it , a change in the blood count and leads to anaemia and a precancerous stage ” .", "In an order of DATE the President of ORG dismissed the application . Firstly , he expressed doubts as to the applicability of the ORG , noting , in particular , the following :", "“ … [ the ORG as amended is ] not … applicable to all forms of unfair behaviour regardless of the sphere in which it occurs . Its purpose is in fact only to ensure fair , undistorted competition ( section CARDINAL ORG ) and it applies only in the context , admittedly understood in a broad sense , of economic competition . The LAW can not , on the other hand , govern fields unconnected with that , such as political , sporting or scientific competition … or the expression of philosophical , moral or religious convictions . In that sense , the issue [ of the existence ] of detriment to a competitive relationship may remain relevant …", "In the instant case it may be doubted whether such a relationship has really been damaged or threatened by the defendant ’s campaign against microwave ovens as that campaign is not in any way directed at any particular manufacturer or distributor of such appliances . … The situation is in this respect very different from the CARDINAL ruled on in the judgment published in RO CARDINAL IV CARDINAL , in which a journalist had given erroneous information about the merits of CARDINAL rival brands of sewing machine . … ”", "Secondly , he held that , “ supposing the ORG to be applicable ” , LAW CARDINAL of LAW did not allow the relevant interim orders to be made . In this connection , he noted the following reason in particular :", "“ ...", "... the imminent infringement of which the [ ORG ] complains is not , prima facie , apt to cause it any damage affecting it personally . On the other hand , some of its members may suffer damage in the form of loss of turnover . ... there is nothing to show that such damage might be very substantial , and it can not be presumed that it will be .", "Indeed , no information has been provided on the turnover in respect of microwave ovens achieved by the members of the association , the relation which that turnover bears to the turnover in respect of other appliances , whether there has been any reduction in the sale of microwave ovens since the articles appeared in issue no . CARDINAL of the ORG PERSON or any reconversion to purchases of traditional cookers . Prima facie , it seems doubtful that the defendant ’s campaign has entailed any largescale disaffection of the general public . Admittedly , his journal has a large circulation , but it must be read above all by people who have already made up their minds and who in all probability did not envisage buying a microwave oven . As to other members of the public , while they might have heard about PERSON statements , which have been echoed in the ordinary press , they will also have been aware of the reassuring statements published in particular by the ORG and the ORG [ ORG ] that have also been referred to in the general press . When one sees how ineffective anti - smoking campaigns are , despite being based on undisputed scientific data and being supported by the authorities , it is by no means certain that the defendant ’s statements , even if they were to be repeated , could substantially affect the market in microwave ovens for any length of time .", "... In the light , inter alia , of the private expert ’s report by Professor PERSON [ see paragraph DATE below ] , the clarification given by the WHO and the ORG and his own modest knowledge of scientific method , the President takes it as read that the research carried out by Dr PERSON is insufficient to support the categorical conclusions which the defendant thought he could draw from it . The most that can be deduced from that research is that it would be appropriate to carry out a more thorough , rigorously methodical survey on a larger number of people . It is clearly unreasonable to affirm , as was done in issue no . CARDINAL of the ORG PERSON that it has been scientifically proved that microwave ovens are harmful and that they must be immediately destroyed and their use banned . It nonetheless remains the case that some scientists still have doubts about the safety of microwave ovens . The fact that they are in a minority does not of itself enable one to exclude the possibility that they might be partly right , as this is an area in which no certainty exists . Indeed , when the ORG ’s report is read in full it can be seen that there remain a number of unresolved problems .", "In these circumstances , and even if it seems highly likely that PERSON statements are wholly unfounded , I can not find that it is absolutely clear that that is the case . ...", "… Lastly , the interim orders sought would appear disproportionate at all events . They would in fact lead to a kind of judicial censorship of scientific research and the conclusions that may be drawn from it , and this is scarcely compatible with the living traditions in this country , in which it is generally considered that it is for one ’s peers and not for the courts to assess the worth and significance of a scientist ’s work . ”", "The judge nevertheless took formal note of Mr PERSON ’s undertaking", "“ … not to use in forthcoming publications of his newspaper or in any other publications or at press conferences , public events or presentations to the media images of a skeleton or a cross or tomb in association with the presentation of a microwave oven ” .", "On DATE Mr PERSON made the following statement ( translated from NORP ) :", "“ We refer to the summary which appeared in issue no . CARDINAL … of the ORG PERSON under the title “ Microwave ovens : a health hazard ” and certify that Mr PERSON and PERSON can not be held responsible for either its form or its content , for which sole responsibility lies with the editor . The same applies to the cover page . Furthermore , we should like to point out that the title and sub - title of the research report which followed it were likewise the editor ’s responsibility .", "We must also expressly emphasise that Mr GPE has never been a member of our newspaper ’s editorial staff or paid as such . The fact that Mr GPE ’s name ( like Dr PERSON ) appeared in the imprint under the heading Editorial staff instead of under Contributors to this issue was due to a mistake in the editorial office . ”", "The ORG asked Mr PERSON to publish a statement to the effect that he would no longer make unfair comments on microwave ovens . He did not reply .", "On DATE the association lodged an application under the ORG with ORG ( ORG ) of the GPE of GPE , seeking to have Mr GPE prohibited , on pain of the penalties provided in LAW ( imprisonment or a fine ) and LAW a fine of MONEY or imprisonment , in serious cases for DATE ) , from stating that food prepared in microwave ovens was a danger to health and led to in the blood of those who consumed it changes that indicated a pathological disorder and presented a pattern that could be seen as the beginning of a carcinogenic process , and from using , in publications and public speeches on microwave ovens , the image of death , whether represented by a hooded skeleton carrying a scythe or by some similar symbol .", "As before the President of ORG , the plaintiff association produced a private expert ’s report by Professor PERSON of ORG of ORG . The report , dated DATE , concludes ( translated from NORP ) :", "“ PERSON and GPE ’s experiments on the harmfulness of food heated by microwaves and their interpretations of them were not conducted and described according to scientifically recognised criteria . They are of no scientific value ; the conclusions drawn from them as to the alleged harmfulness of food cooked by microwaves have no verifiable basis and are unsustainable . ”", "In a judgment of DATE ORG allowed the application . It gave the following reasons ( translated from NORP ) :", "“ CARDINAL . …", "The amended ORG differs from the former enactment in having substantially wider scope . Its key characteristic is its functional approach , based on guaranteeing fair , undistorted competition . That approach is apparent from the new drafting of the Act ’s protective aim in section CARDINAL ORG and has led to a new definition of the offence of unfair competition in the general provision of LAW . The requirement of a competitive relationship , for instance , has been removed from the LAW . Its personal scope , as apparent from section CARDINAL , does not cover only the acts of competitors , suppliers and customers ; third parties not involved in such relations may be ( independently ) liable if their conduct affects relations in the context of economic competition and if , through their statements , they adversely affect the competitive position of the person targeted ( see NORP and ORG , ORG , p. CARDINAL ) . Competition is particularly affected by consumer - protection organisations , but also , for example , by reviewers , art critics and media personalities . Also caught by the LAW are the authors of financial analyses , company reports and – what is of importance here – scientific studies , provided that the essential elements of the offence of unfair competition are present ( PERSON , SZW CARDINAL/CARDINAL , p. CARDINAL ) . In the event of inaccurate , misleading or unnecessarily derogatory statements concerning the subject of study , these people will be guilty of unfair competition . The new wording of section CARDINAL ORG has thus put an end to the old controversy as to whether the application of the LAW requires the existence of a competitive relationship . Persons unconnected with a sector who interfere in the competition between third parties are likewise caught by LAW ( PERSON , PERSON , p. CARDINAL ; cf . FAC CARDINAL IV CARDINAL : ORG ) . In each case , however , it must be ascertained whether the behaviour of the person concerned affects the relations between competitors or between suppliers and customers . The LAW is directed at all those whose behaviour or commercial management may have an effect on economic competition . The decisive factor is whether the activity complained of has direct or indirect effects on the competitive position of the person making it or of a third party ( GPE , GPE Wettbewerb , GPE DATE , pp . CARDINAL and DATE ) . Both according to legal writers and in practice , economic relevance in the sense of a potential aptitude to affect competition is taken into account ( see PERSON , PERSON i QUANTITY UWG , SMI DATE , pp . CARDINAL et seq . ) . Capability of affecting competition must be determined objectively ; it is of no importance whether given behaviour is associated with a subjective intention to affect the market ; the decisive factor is whether the action in question is objectively apt to affect competition ( PERSON , ibid . , p. CARDINAL ; cf . ORG , pp . CARDINAL et seq . : ORG ) . This was so in the instant case , as was set out above in relation to the question of the plaintiff ’s locus standi . Even if there is no certain proof of a connection between the drop in turnover in respect of microwave ovens and the [ defendant ’s ] behaviour , it is clear that the statements and publications complained of in the instant case are apt to diminish sales of microwave ovens and , consequently , to harm the businesses associated with the plaintiff . The objective aptitude to affect competition is therefore established .", "Section CARDINAL ORG defines as unfair and illegal ‘ any conduct or commercial practice ... if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and ORG . The general provision of LAW is given concrete expression by the provisions of sections CARDINAL to CARDINAL , which describe the special factual ingredients ( NORP ) of the offence . Section CARDINAL(a ) provides that a person acts unfairly if , in particular , he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements . Unfair competition does not necessarily presuppose either bad faith or fault , but merely an objective breach of good faith ( BGE CARDINAL PERSON , CARDINAL ) . A statement is ‘ inaccurate’ if it can objectively be seen to be false ( NORP and Troller , p. CARDINAL ) . A statement is ‘ ORG if , while not untrue , it creates a false impression through the use of devious means ; as with the risk of confusion in the context of trademark disputes , the yardstick to be used here is that of the usual vigilance and discernment of the customers targeted . A statement may be ‘ unnecessarily wounding’ in various ways . Firstly , the manner in which a statement is made may be considered improper if it goes far beyond what would appear reasonable in the light of what had caused the statement to be made . Secondly , even where an accurate factual basis exists , the value judgments expressed may be unlawful if they appear unjustified on the facts . Lastly , a statement may also be wounding if it is inaccurate or is mainly and without good cause intended to harm another . Criticism that is impermissible in form , content or aim is therefore unacceptable … It has already been held in ORG CARDINAL no . CARDINAL … that the description ‘ dangerous’ was derogatory in character . Advertising based on fear , using expressions such as ‘ take X , otherwise it will be too late’ , ‘ do n’t take any risks’ , ‘ better too early than too late’ , ‘ tooth decay is lurking’ , or even simply ‘ keep your ORG is also unacceptable …", "…", "… it is certain that it can not be said that it is scientifically proved that food prepared with a microwave oven constitutes a danger to health and is carcinogenic . To date , there has been no scientific evidence that such a danger exists . The defendant ’s assertions are not corroborated either by his own research DATE which did not meet generally accepted scientific standards DATE or by that of other , respectable scientists . The opposite would seem to be nearer the truth , as is shown by the observations of ORG and ORG . In that regard , the fact that Professor PERSON clearly dissociated himself from the conclusions drawn by the defendant from their joint research is likewise significant . The defendant ’s statements that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it that indicate a pathological disorder and present a pattern that could be seen as the beginning of a carcinogenic process are manifestly false and untrue and consequently inaccurate within the meaning of section CARDINAL(a ) ORG . The application must therefore be allowed . The applicant remains of course free to base his propositions on new scientific findings .", "…", "There would nonetheless have been a breach of the ORG even if the defendant ’s belief had been objectively accurate since , as has already been said , section CARDINAL(a ) ORG also prohibits misleading or unnecessarily wounding statements . Such statements were made in the present case as will be explained in greater detail under point CARDINAL below .", "The ORG can not share the opinion of Professor PERSON , published in ORG DATE , p. CARDINAL and cited by the defendant , that for an unfair act to affect competition within the meaning of section CARDINAL ORG there must be a corresponding intention , that is to say a subjective wish to have an impact on competition . That view is inconsistent with the aim pursued by the ORG , which is to guarantee , in the interests of all the parties concerned , fair , undistorted competition ( see section CARDINAL ORG ) ; those concerned are thus competitors , customers and the general public ( ‘ tripartite nature’ of competition law and ‘ equivalence’ of the CARDINAL interested groups , PERSON , pp . CARDINAL and DATE ) . There is consequently nothing in the LAW to support that opinion . An amendment to the LAW would be necessary for that ( cf . PERSON , ZSR CARDINAL I , DATE , pp . CARDINAL et seq . , with reference to ORG reply to the motion of a national councillor , PERSON , concerning a revision of the ORG , ORG of DATE ) . … The principle of good faith mentioned in the general provision of section CARDINAL ORG , which is decisive of the issue of fairness and therefore of legality , must be construed in the light of the Act ’s purpose and the special factual ingredients of section CARDINAL(a ) ORG . These define in greater detail the unlawful conduct , for which no fault is required , constituting the tort of ‘ unfair competition’ . No competitive relationship between the ‘ ORG and the ‘ victim’ is required under LAW ( see above ) . All that is needed is behaviour apt to affect competition ; a very weak link with an economic activity will thus suffice ( GPE , Unlauterer Wettbewerb , p. CARDINAL ; cf . also BGE CARDINAL IV , pp . CARDINAL et seq . : ORG ) ; that is a consequence of the functional conception that governed the revision of the LAW . The new ORG was intended to enlarge the sphere of protection afforded by the LAW . Thus , in the light of the provision setting out the aim pursued by the LAW and of the general provision of the LAW , the requirement of an intention to affect competition is incompatible with the definition of the tort of unfair competition within the meaning of the general provision of section CARDINAL ORG , as it is not contained in that definition ( cf . PERSON , loc . cit . , p. CARDINAL ) . Anyone who in his media work seeks to cause a scandal or a sensation is also caught by LAW Freedom of the press does not relieve those concerned from the obligation to comply with professional ethical standards – on the contrary , it takes such an obligation for granted ( GPE , loc . cit . p. CARDINAL , cf . PERSON , loc . cit . , p. CARDINAL ) .", "Even if the ORG were to accept Nobel ’s opinion , it would not in the instant case be led to a different conclusion . Intention ( PERSON ) is a particular form of knowledge that one is acting wrongly ( PERSON ) . For such intention to exist , it suffices that the person concerned is aware of the possibility that the act will be carried out and that he accepts that possibility ( recklessness ; cf . Stark , PERSON , ORG , notes CARDINAL et seq . , pp . CARDINAL et seq . ) . As a subscriber to the ORG PERSON the defendant knew to whom he was sending the research paper for publication . He thus accepted the simplistic and exaggerated interpretation of the published article , and he also endorsed the publication in its entirety since at no stage did he dissociate himself from even part of it in writing but , while not considering it to be PERCENT accurate , nevertheless approved it with the representation of the Reaper .", "Since the scope of the ORG is determined by the mere potential aptitude to affect competition , acts performed in the exercise of fundamental rights in the field of ideas are covered by it , even when they have only a remote link with economic activity ; only acts that are no more than ideas fall outside the scope of the statute , provided that they are confined to a strictly personal sphere of activity ( GPE , loc . cit . , pp . CARDINAL et seq . , PERSON , ORG , p. CARDINAL ) . In that respect , whether or not the activity concerned is remunerated is irrelevant . However , an act will not be caught by the ORG merely because it is performed outside the private sphere . It is necessary that there be a link , however weak , with an economic activity . Acts that are performed for purely disinterested ends are not covered by the ORG . Such would be the case , for example , with associations whose activity is wholly disinterested . An association will be disinterested if it pursues altruistic aims and does not deal in the ( economic ) market . If it does so deal , even without seeking to make a profit , it will lose the exemption ( GPE , loc . cit . p. CARDINAL ) .", "The freedom to carry out scientific research , which can be considered a fundamental right ( see PERSON , PERSON , pp . CARDINAL et seq . ) has not been infringed in the instant case . The defendant was and remains entitled to pursue his research . The majority of legal writers consider that scientific freedom includes the freedom to carry out research , to teach and to use the result of research done by others ( see PERSON , loc . cit . ) . In that regard , it is necessary to distinguish scientific freedom from the freedom to communicate to others the knowledge gained . Like practically all fundamental rights , this freedom of expression ( as an unwritten fundamental right ) is not , however , without limits in its application . It is subject to restrictions , especially in the sphere of the mass media , by the legal order , which provides for the protection of reputation in LAW and for protection of all aspects of the personality , including economic ones , in LAW and the ORG ( see PERSON , loc . cit . , pp . CARDINAL et seq . ; ORG CARDINAL : ORG ) . Scientific freedom does not therefore justify publication – especially in non - specialist periodicals ( publication in specialist reviews would have to be considered differently ) – of provisional results of research that are misleading or devoid of sound scientific basis and do not enable conclusions to be reached with certainty . Scientific researchers must be aware of their responsibilities and give consideration to the issue of what status laymen will give to the expression of their opinion . These constraints apply to the defendant likewise . The mere fact that the application of a statute affects the exercise of a fundamental right by no means signifies that the restriction of that right is unlawful . When it enacted the ORG , the legislature knew perfectly well that there was a risk that the statute would come into conflict with the protected area of intellectual freedoms . That is why section CARDINAL ORG provides , by way of a cross - reference to LAW and CARDINAL f of LAW , that preventive measures against periodicals may be ordered only in the strictly limited circumstances set out in LAW . In the absence of more detailed provision , the assumption must be that no privilege should attach to facts such as those in the instant case . Independently of that issue , it must also be observed that , on the basis of the principle that there is no hierarchy of fundamental rights ( see ORG untereinander , thesis , GPE DATE , pp . CARDINAL et seq . ) , it is necessary to weigh against the fundamental rights relied on by the defendant the right to freedom of trade and industry .", "An essential feature is how language is used to communicate a scientific opinion when knowledge is still uncertain and , for example , is based solely on sample surveys or experiments involving small numbers of people ( CARDINAL in this instance ) who do not represent a cross - section of the population . The more clear - cut the reports of opinions , the stricter are the requirements to be made of the linguistically correct representation of the opinions concerned . It is also significant that , even after the event , the defendant did not distance himself from gross simplifications and exaggerations in the article or from the image of the Reaper with a microwave oven , which appears on every page of the research paper .", "Since the defendant has identified himself with the article in its entirety , the plaintiff ’s application must , in terms of competition law , be allowed . Through his assertions , which have been mentioned in detail above , and the use of the image of the Reaper , for which he is liable as he knew the style of the review and accepted and approved that exaggerated representation , the defendant has , irrespective of whether the substance was true , overstepped the acceptable limits and has thus acted ‘ unnecessarily woundingly’ within the meaning of section CARDINAL(a ) ORG . By combining a tabloid - style report with scientific comment he has also misled the intended readership . In particular , the image of the Reaper and statements such as ‘ microwave ovens are more harmful than the GPE gas ORG , ‘ … you are exposing yourself to a slow death … ’ , or ‘ … it is certain that you will die from cancer … ’ … amount to unacceptable playing on the fear of death . The defendant himself had to admit that the journalist from the ORG PERSON had gone a bit too far and that his article was a little tendentious . He said that he had not liked that very much as a scientist , but the reporter had nonetheless been right . It was sometimes necessary to use a journalistic style to wake people up ...", "…", "Among other forms of protection , the civil law affords the possibility of applying for an injunction ( PERSON ) . The purpose of such an application is to obtain from the court an order prohibiting the defendant from interfering in the plaintiff ’s sphere of interest . Such an order may concern existing or continuing interference and threatened interference . The court may allow such an application irrespective of whether damage has been caused ( NORP and ORG , p. CARDINAL , ORG CARDINAL ) . Applications may be lodged and injunctions issued only in respect of precisely defined acts which the defendant has committed and is likely to continue to commit or is about to commit ( BGE CARDINAL II CARDINAL ) . That is clearly true in the instant case , especially as the defendant has expressly stated that he will continue to follow that route scientifically … and has not distanced himself from the publications in issue . To the application for an injunction there may be joined an application for an order that , if he breaches the injunction , the defendant shall be punished with imprisonment under LAW or a fine ( BGE CARDINAL II CARDINAL ) . That penalty must be supplemented by the one provided for in LAW .", "… ”", "On an application by the applicant , ORG ( ORG ) delivered the following judgment on DATE ( translation from NORP ) :", "“ …", "The appellant submitted that the ORG was not applicable in the instant case since the statements complained of were made disinterestedly with a view to protecting public health and not in a context of competition .", "( a ) The ORG is intended to guarantee , in the interests of all the parties concerned , fair , undistorted competition ( section CARDINAL ) . Consequently , any conduct or commercial practice is unfair if it offends the principle of good faith and affects relations between competitors or between suppliers and customers ( section CARDINAL ORG ) or is apt to affect them ( Cherpillod , ‘ L’application de la loi contre la concurrence déloyale aux journalistes’ , résumé of a lecture of DATE , given to ORG , p. CARDINAL ) . When the ORG is applied with a view to preventing distortions in competition in the private sector , however , the conduct of persons who are not in competition with the supplier or customer affected may also be classified as unfair . That is indisputably the position according to current legal theory and the case - law ( BGE CARDINAL IV CARDINAL E. CARDINAL , pp . CARDINAL et seq . and references , QUANTITY , p. CARDINAL ; Nobel , PERSON GPE für die GPE , in GPE DATE , pp . CARDINAL et seq . ; ORG , PERSON , in ORG droit européen de la concurrence déloyale en formation , pp . CARDINAL et seq . and p. CARDINAL ) . Notwithstanding that no competitive relationship is required , only conduct that can be described as an act of competition is prohibited , that is to say acts which are objectively aimed at affecting competitive relationships and not those which take place in a wholly different context . For the purposes of the ORG the conduct of the tortfeasor must therefore be related to the market or competition ( ‘ marktrelevant , marktgeneigt oder wettbewerbsgerichtet’ – Schluep , loc.cit . ) . Competition can only exist where the action of the person concerned has , or is apt to have , an effect outside the private sphere ( GPE , Unlauterer Wettbewerb , p. CARDINAL ) . Consequently , the only acts that are competition - related are those which increase or reduce the market share or the rate of success in finding customers of businesses formed with a view to profit or which objectively pursue those aims ( see PERSON , PERSON , CARDINALnd ed . , DATE , p. CARDINAL ) . The decisive factor , as the court below rightly pointed out , is economic relevance in the sense of a potential aptitude to affect competition ; for that purpose , an objective aptitude is sufficient and it is of no importance whether there was a subjective intention of intervening in the economic sphere . That being so , it is of no help to the appellant to rely on the academic legal theory that , although the need for a competitive relationship has been dispensed with , an act committed with the intention of affecting competition is required in all cases for there to be an infringement of the ORG ( Nobel , loc . cit . , passim ) . Quite apart from the fact that that theory entails the risk of confusion between the concept of illegality and elements of the notion of fault , the appellant is confusing motive and intention . He does not deny that he is seeking to protect consumers by influencing their behaviour in the market and thereby affecting the sales market for the product he criticises . That clearly shows a competitive intention , even if it is prompted by idealistic motives and not by the pursuit of gain .", "( b ) Scientific research and publications are not in themselves directed at competition if they remain within the academic context ( PERSON , loc . cit . ) . They so become , however , if the target readership may objectively construe the scientific opinions as being designed to influence the behaviour of market players and , in particular , of customers . It is unnecessary to explain this in greater detail where science is used as a disguised means of advertising and where scientific knowledge may serve to boost a product ’s sales ( GPE and GPE , GPE , CARDINALth ed . , DATE ... ) . The same must apply , however , where allegedly scientific statements are used in a competitive context to influence negatively the sales of a particular product through denigration of it . Such statements likewise amount to acts of competition covered by the ORG and are subject to its requirement of fairness ( Baumbach and GPE , loc . cit . ) .", "The statements held against the applicant are , in both content and presentation , regard being had in particular to the readership of the periodical concerned , clearly intended to influence the market since , at least objectively , they are unmistakably aimed at deterring consumers from buying and using microwave ovens . They are thus apt to affect competition . That is why ORG rightly considered that they came within the scope of the ORG and therefore examined whether they should be described as unfair within the meaning of that Act .", "( a ) The appellant considers that the order prohibiting his using symbols evoking death is contrary to federal law as it was not he who was responsible for the use of the image of the Reaper in the Journal PERSON in respect of which the injunction was imposed and so no recurrence is likely . The ORG emphasised that it remained unproved that the appellant had taken part in the design and editing of the periodical or that his approval had been sought before the article in question appeared . The appellant had , however , become aware of the tenor of the article because he was a subscriber to the review but had not distanced himself from it in any way and had even said , at the trial , that he liked the image of the Reaper . The court concluded that the appellant had knowingly accepted his research paper being used in a simplified and exaggerated manner and had approved the publication in its entirety .", "…", "ORG prohibited the appellant ‘ from stating that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it that indicate a pathological disorder and present a pattern that could be seen as the beginning of a carcinogenic PERSON . The appellant says that that prohibition is contrary to federal law since the prohibited statement is not unfair within the meaning of the ORG and enjoyed the protection afforded to fundamental rights .", "…", "( b ) As already indicated , given the readership to which his statements were addressed and the scientifically unsophisticated content of those statements , the appellant has left the purely academic sphere and entered the realm of competition . He is therefore subject to the fairness requirement laid down by the ORG .", "Section CARDINAL(a ) ORG provides that a person acts unfairly if he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements . In the appellant ’s defence , it must admittedly be acknowledged that it is not always easy to establish the degree of scientific truth of an assertion , since in this sphere of knowledge , what is held to be true DATE will often be superseded DATE and true again the day after ( GPE and GPE , loc . cit . , ... ) . That does not , however , mean to say that ostensibly scientific views on one ’s own work or the work of others in the competition field must always unconditionally be considered fair . When an opinion relating to the market refers to a question that is professionally controversial and is presented as being objectively accurate or scientifically confirmed , that means that the party concerned has opted in favour of a particular opinion and is ready to answer for its accuracy also in the context of competition ( ORG , CARDINAL , in GPE DATE , pp . CARDINAL et seq . , PERSON , p. CARDINAL ) . Positive or negative advertising containing scientific data must , accordingly , in the public interest and in order to ensure effective competition , only be accepted if the data reflect established scientific knowledge or at least if the advertising clearly states that there are differing opinions . If there is no absolute guarantee that the scientific data are correct , the uncritical publication of them is at least deceptive and is accordingly misleading within the meaning of section CARDINAL(a ) ORG ( Baumbach and PERSON , loc . cit . , ... ) . That was so in the instant case . According to ORG there is absolutely no scientific confirmation of the applicant ’s argument ; on the contrary , it has been mostly rejected . To hold it out as accurate in the context of competition is unacceptable under section CARDINAL(a ) ORG , and accordingly the injunction issued by ORG does not infringe any provision of federal law .", "( c ) There can be no question of the ORG ’s having been applied in breach of LAW or LAW Statutes must , in particular , define fundamental rights and other , conflicting duties of the ORG so that these CARDINAL concerns of constitutional law may be taken into consideration to the greatest possible extent ( PERSON , PERSON schweizerischen ORG , p. CARDINAL ) . This notion of regulation and the values underlying it must also be taken into account in the drafting of statutes . The smooth operation of competition and economic freedom , freedom of expression , scientific freedom and freedom of the press must be guaranteed as well as possible , but at the same time limited so that the various constitutional objectives may be reconciled in practice . In that regard , it should be noted that the ORG provides a remedy only in respect of unfair statements , and the meaning and purpose of freedom of expression or freedom of the press can not be to legitimise unlawful public assertions of that kind . ( PERSON , PERSON des Bundesgesetzes gegen den unlauteren GPE ( GPE ) für die GPE , in ORG CARDINAL , pp . CARDINAL et seq . ) . Anyone claiming scientific freedom is therefore wholly free to expound his knowledge in the academic sphere but , where competition is concerned , he may not claim to have the truth on his side where the opinion he is putting forward is disputed . An opinion which has not been confirmed scientifically must in particular not be misused as a disguised form of positive or negative advertising of CARDINAL ’s own work or the work of others . In the present case , that is all the more true as ORG expressly left the applicant free to base his proposition on new scientific findings .", "The appeal must therefore be dismissed … ”", "Section CARDINAL of LAW of DATE reads as follows :", "“ CARDINAL . Any abuse of economic competition resulting from deception or any other conduct contrary to the principle of good faith shall be deemed to be an act of unfair competition within the meaning of this Act .", "The principle of good faith is not complied with where , for example , a person", "( a ) denigrates others or the goods , work , activity or business of others by making inaccurate , misleading or unnecessarily wounding statements ;", "… ”", "The Act of DATE was repealed by LAW of DATE , the relevant provisions of which are as follow :", "Section CARDINAL", "“ This Act is intended to guarantee , in the interests of all the parties concerned , fair , undistorted competition . ”", "Section CARDINAL", "“ Any conduct [ ORG ] or commercial practice [ ORG ] shall be unfair and illegal if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers . ”", "Section CARDINAL", "“ A person acts unfairly if , in particular ,", "( a ) he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements ;", "… ”", "Section CARDINAL", "“ CARDINAL . Anyone who through an act of unfair competition sustains or is threatened with damage to his goodwill , credit , professional reputation , business or economic interests in general , may apply to a court :", "( a ) to prohibit the act if it is imminent ;", "( b ) to order that it cease , if it is still continuing ;", "( c ) to declare it unlawful , if the interference it has caused persists .", "He may , in particular , seek an order that a rectification or the judgment be communicated to third parties or published .", "He may also , in accordance with LAW , bring an action in damages and for reparation of non - pecuniary damage and require that any gain be handed over in accordance with the provisions on intermeddling . ”", "Section CARDINAL", "“ …", "The actions provided for by section CARDINAL , sub - paragraphs CARDINAL and CARDINAL , may also be brought by :", "( a ) professional associations and economic associations whose memoranda and articles of association authorise them to defend the economic interests of their members ;", "… ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant held positions as head of the education department of ORG ( Qafqaz Müsəlmanlar İdarəsi , the official governing body of NORP religious organisations in GPE ) , member of the PERSON ( NORP Judges ' ) Council ( PERSON ) of ORG , and director of the PERSON branch of ORG . He was also a founder and editor - in - chief of a journal called PERSON , published since DATE and printing various articles with an NORP religious content .", "On an unspecified date , the applicant lodged an application with ORG ( “ the ConEC ” ) for the single - seat ORG No . CARDINAL for registration as a candidate in the upcoming elections to ORG ( ORG ) on DATE . Together with the application , he submitted a written undertaking to terminate any professional activities incompatible with the office of member of parliament .", "According to TIME of the joint meeting of ORG of ORG held on DATE , the applicant 's membership of ORG was terminated on the basis of his own resignation letter . It was noted that the resignation was accepted in view of the applicant 's having nominated himself as a candidate for the parliamentary elections .", "According to an order issued by the chairman of ORG on DATE , the applicant was relieved of his positions as head of the ORG 's education department and director of the PERSON branch of ORG .", "On DATE the ConEC refused to register the applicant as a candidate because he “ was continuing his activities as a professional clergyman ( peşəkar din xadimi ) ” , which were incompatible with the requirements of Article CARDINAL of LAW .", "The applicant complained about this decision to ORG ( “ the ORG ” ) . On DATE the ORG rejected the applicant 's complaint . The entire ORG decision consisted of the following :", "“ [ The ORG ] , having examined the complaint of ORG , who has nominated himself for election to PERSON ... , in accordance with Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW and LAW and CARDINAL of the Law of CARDINAL DATE on the approval and entry into force of LAW , decides :", "To reject the complaint of ORG as unsubstantiated . ”", "NORP The applicant lodged an appeal against this decision with ORG , complaining that his candidacy had been terminated unlawfully as he had resigned from all positions involving “ professional religious activity ” and was no longer engaged in any religious activities . On DATE ORG rejected his appeal , finding that the ORG 's decision was lawful . Specifically , ORG noted :", "“ According to the materials in the case file , ORG , who has nominated himself for election to PERSON , is a clergyman .", "According to LAW , the right of clergymen ... to participate in elections may be restricted .", "According to the requirements of LAW , clergymen may not serve as members of the Milli Majlis while they are engaged in professional religious activity .", "The applicant 's arguments that he had been relieved of his positions with ORG and ORG can not be considered as a ground for upholding his claim .", "Specifically , the fact that [ the applicant ] has been relieved of the above - mentioned positions does not rule out his engaging in professional religious activity .", "On the other hand , according to LAW , a clergyman may not be elected as a member of ORG .", "Accordingly , given that the decision of ORG was in compliance with the requirements of the LAW and LAW , the arguments advanced in the applicant 's appeal can not be considered as a basis for quashing this decision . ”", "The applicant lodged a cassation appeal against this judgment with ORG . On DATE ORG dismissed the appeal using the same reasoning .", "The applicant attempted to have the proceedings reopened and the case reviewed by ORG , by lodging an additional cassation appeal with ORG President . On DATE ORG President rejected his request , finding no grounds for reopening the proceedings .", "Lastly , the applicant lodged a constitutional complaint . By an inadmissibility decision of DATE , ORG refused to admit the complaint for examination on the merits , finding that the applicant had essentially disputed the factual findings of the courts of general jurisdiction ( specifically , on the question whether the applicant was actually engaged in any “ professional religious activity ” ) . ORG noted that it had no competence to review the correctness of the It also stated the following with regard to the restriction of clergymen 's right to stand for election in general :", "“ According to LAW , GPE is a democratic , secular , unitary republic governed by the rule of law . LAW ( I ) of the LAW provides that religion shall be separate from the ORG . In this context , the above provisions must inevitably be taken into account in the constitutional rules on formation of the supreme elected government body .", "The restriction on the election of clergymen to government bodies , which is based on the demands of the public interest , has the primary aim of separating religion from the ORG . The restriction serves the purposes of removing matters inherent in the ORG 's functioning from the sphere of influence of religious communities , clerics and religious figures , and keeping such influence to a minimum .", "Another aim of the restriction is to separate religious voters from the clergy in the context of the election process , as a means to ensure that voters form their opinions and make their choice free from any undue interference .", "It must be noted that the legal systems of a number of other GPE also provide for restrictions on the right of clergymen to stand for election . ...", "Article CARDINAL.CARDINAL.CARDINAL of the Electoral Code provides that clergymen can not be members of the Milli Majlis , President of the Republic , or members of municipalities while they are engaged in professional religious activity . As such , the legislator applied the “ religious - based eligibility requirement ” restricting clergymen 's right to serve as members of parliament only to periods when the latter are engaged in professional religious activity . ”", "At the material time , the relevant provisions of the LAW provided as follows :", "“ I. The NORP State is a democratic , secular , unitary republic governed by the rule of law . ... ”", "“ I. Religion is separated from the ORG in GPE . All religious faiths shall be equal before the law .", "II . The spreading and proselytising of religions which undermine human dignity and contradict the principles of humanism shall be prohibited .", "III . The ORG education system shall be secular . ”", "“ I. Citizens of GPE shall have the right to elect and be elected to the institutions of government , and to participate in referendums .", "II . Persons whose legal incapacity has been determined by a court decision shall not have the right to participate in elections and referendums .", "III . Members of the armed forces , judges , ORG officials , clergymen ( din xadimləri ) , persons imprisoned pursuant to a final court judgment , and other persons specified in this LAW and in legislation may be subject by law to restrictions on their right to participate in elections . ”", "“ I. Every citizen of GPE not younger than DATE may be elected as a member of the PERSON ... in a manner stipulated by law .", "II . Persons who have dual citizenship , those who have obligations vis - à - vis other GPE , those who work within the system of the executive or judicial power and those who carry out any other types of remunerated activity except scientific , pedagogical or creative activities , clergymen ( din xadimləri ) , persons whose legal incapacity has been determined by a court decision , those who have been convicted of serious crimes and those who are serving prison sentences pursuant to a conviction under a final judgment , can not be elected as members of the Milli Majlis ... ”", "At the material time , the relevant provisions of LAW provided as follows :", "“ CARDINAL . Except for the cases stipulated in LAW and in this Code , every citizen who has active electoral rights shall also have passive electoral rights , that is , he or she shall have the right to form a referendum campaign group and to be elected as a member of ORG , as President or as a member of a municipality , provided he or she meets the candidacy requirements laid down by LAW for these offices .", "Restrictions on passive electoral rights shall be established by ORG DATE , and CARDINAL of the LAW of GPE and by this Code .", "Pursuant to Articles CARDINAL ( III ) , CARDINAL of the LAW of GPE , the following persons shall not have passive electoral rights , that is , they shall not have the right to be elected as a member of the Milli Majlis , as President or as a member of a municipality :", "persons serving prison sentences pursuant to a conviction under a final judgment ;", "CARDINAL.CARDINAL.CARDINAL . persons convicted of the crimes under Articles CARDINAL - CARDINAL.CARDINAL of LAW of GPE ;", "CARDINAL.CARDINAL.CARDINAL . NORP citizens of GPE with dual citizenship ( until their second citizenship expires ) ; and", "NORP citizens of GPE who have obligations vis - à - vis foreign States ( until such obligations are terminated ) ... ”", "“ CARDINAL . Cases of incompatibility of positions shall be established by ORG DATE and CARDINAL of the LAW and by this LAW .", "Pursuant to LAW ) of LAW , the following persons shall not have the right to serve as members of the Milli Majlis , as President or as members of municipalities , by virtue of the positions they occupy :", "CARDINAL.CARDINAL.CARDINAL . Members of the armed forces ( while in military service ) ;", "CARDINAL.CARDINAL.CARDINAL . Judges ( while in office ) ;", "Civil servants ( while in ORG service ) ; and", "CARDINAL.CARDINAL.CARDINAL . Clergymen ( din xadimləri ) ( while engaged in professional religious activity ( peşəkar dini fəaliyyət ilə məsğul olduqları müddətdə ) ) . ”", "“ ...", "An application containing a written undertaking by the candidate to terminate any activities incompatible with a post in an elected ORG or municipal body shall be submitted together with the notification mentioned in LAW . This application shall contain information on the candidate ( [ including ] his or her official workplace ( or type of activity , if not working ) ... ”", "“ CARDINAL . All the registered candidates and referendum campaign groups shall have equal rights and responsibilities , taking into account their status .", "Registered candidates and authorised representatives of referendum campaign groups who are in ORG or municipal service or who work in the mass media under an employment or civil contract shall be released from performing their official duties during the period of their participation in the election ( referendum ) campaign ( this rule shall not apply to the [ current ] President of GPE , [ current ] members of the Milli Majlis or [ current ] members of municipalities ) . The approved copy of the relevant order [ on release from performing official duties ] shall be submitted to the electoral commission registering the above - mentioned candidates or authorised representatives within DATE , at the latest , from DATE of registration . Such candidates or authorised representatives shall not abuse their official authority or positions in order to gain privileges or advantages . ”", "“ CARDINAL members shall be elected to the Milli Majlis from single - seat constituencies ( CARDINAL member per constituency ) . ”", "“ The citizens of GPE indicated in LAW may be elected as members of the Milli Majlis ... ”", "At the material time , the Law on Freedom of Religion provided as follows :", "“ In GPE , religion and religious institutions ( dini qurumlar ) shall be separate from the ORG .", "The ORG shall not delegate any of its functions to religious institutions and shall not interfere with their activities .", "All religions and religious institutions shall be equal before the law . ...", "Religious institutions shall not participate in the activities of political parties and shall not provide them with financial assistance .", "In the event of the election or appointment of clergymen ( din xadimləri ) to positions in the institutions of government , their activities as clergymen ( onların din xadimi kimi fəaliyyəti ) shall be suspended for the period during which they occupy the relevant position . ”", "The case of PERSON v. GPE ( no . CARDINAL/CARDINAL , declared inadmissible by ORG in a ORG decision of DATE ) contained the following facts relevant to the present case regarding the eligibility requirements laid down by LAW . The applicant in that case was a candidate in the elections of DATE for the single - seat PERSON Electoral Constituency No . DATE . CARDINAL of his opponents , PERSON , was the Head of ORG ( “ the ORG ” ) . Heads of regional executive authorities were appointed and removed from their posts by the President of the Republic . Following his formal registration as a candidate , PERSON was temporarily relieved of his official duties , without pay , until DATE , pursuant to an ORG decision of DATE signed by PERSON himself . This decision was duly notified to the electoral authorities and ORG . G.A. also submitted an undertaking to terminate any activities incompatible with the office of member of parliament , if elected as such . The applicant challenged the lawfulness of the election process in the constituency before the domestic authorities , arguing that PERSON should have been definitively removed from his post by a presidential order prior to his formal registration as a candidate . The electoral authorities and courts dismissed the applicant 's claims , noting that PERSON had been temporarily relieved of his duties in full compliance with LAW and that , therefore , he was not in a position to unduly influence the electoral process in his capacity as a high - ranking civil servant . For these reasons , PERSON was allowed to stand as a candidate . Subsequently , PERSON won the election in the constituency . On DATE G.A. was definitively removed from his post by a presidential order ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested on suspicion of murder .", "On DATE ORG ( Sąd Rejonowy ) ordered his detention on remand .", "The applicant ’s detention was subsequently extended on DATE , DATE and on DATE .", "On DATE the bill of indictment was lodged .", "On DATE ORG ( PERSON ) extended the applicant ’s detention until DATE . The court relied on a strong suspicion that he had committed the offence in question , which was supported by evidence . It attached importance to the grave nature of the offence and the likelihood of a severe sentence of imprisonment being imposed on him . In addition , keeping him in custody was necessary to ensure the proper conduct of the proceedings . Lastly , the court stressed that there were CARDINAL coaccused and CARDINAL witnesses involved in the proceedings .", "On DATE the trial court held the first hearing . It subsequently held CARDINAL hearings in the case .", "On DATE ORG extended the applicant ’s detention until DATE . The court repeated the reasons given previously . Upon an appeal by the applicant , ORG ( Sąd Apelacyjny ) upheld that decision on DATE .", "On CARDINAL DATE ORG again extended the applicant ’s detention . The court stressed that he was likely to receive a particularly severe sentence .", "On CARDINAL DATE the ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment . On DATE the applicant ’s lawyer lodged an appeal . He was kept in detention pending appeal for the CARDINAL subsequent months .", "On DATE ORG upheld the first - instance judgment .", "On DATE the applicant ’s lawyer filed a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) .", "On DATE the applicant informed the Registry that his cassation appeal had been rejected by ORG .", "At the time of lodging his application with the ORG the applicant was detained in the course of criminal proceedings against him .", "On DATE ORG received a letter from the applicant dated DATE . The envelope bears a stamp “ censored on ... ” ( ocenzurowano dn .... ) and an illegible signature .", "On DATE ORG received the application form from the applicant ( dated DATE ) . It was delivered in an envelope bearing a stamp “ censored on ... ” ( ocenzurowano dn .... ) . It also bears an illegible signature and a handwritten date , DATE .", "The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .", "NORP The relevant domestic law concerning the means of monitoring the correspondence of persons involved in criminal proceedings applicable at the material time is set out in the ORG ’s judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE ." ]

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[ "NORP The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE .", "On DATE CARDINAL inspectors of ORG ( PERSON ) inspected the LOC of the applicant under ORG ( PERSON ) . The inspectors found that the applicant ’s house was being painted by CARDINAL persons who did not have either GPE nationality or a nationality that allowed them to be equated with GPE nationals for employment purposes and that they did not hold a work permit ( tewerkstellingsvergunning ) . During the inspection , the CARDINAL inspectors entered the applicant ’s garage , which was not connected to his house , in the applicant ’s absence and without his permission , where they questioned the CARDINAL foreign persons . The applicant alleges that no interpreter was present .", "On DATE the applicant and his wife were questioned by CARDINAL inspectors of ORG regarding the alleged infringement of ORG . During the interview , one of the inspectors stated “ whenever there was a foreign smell , I would always ask for [ a work permit ] ” . The applicant expressed his discontent with this behaviour of the inspector but no note was taken of the incident in the report of the interview .", "On DATE the Deputy Minister ( staatssecretaris ) of ORG ( PERSON en GPE ) sent copies of the inspectors’ reports to the applicant .", "In a letter dated CARDINAL DATE , the Deputy Minister informed the applicant of the intention to fine him MONEY ( ORG ) in accordance with section CARDINALa in conjunction with LAW .", "NORP In his written comments ( zienswijze ) the applicant disputed the amount of the fine and he complained that the inspectors had entered his garage without his permission . By decision of CARDINAL DATE the Minister of ORG and Employment rejected the applicant ’s arguments and imposed the fine of CARDINAL ORG .", "The applicant lodged an objection ( bezwaar ) against this decision , explaining in more detail the arguments stated in his written comments , pleading mitigating circumstances and arguing further that he disagreed with the different interpretations of the word “ employer ” in the GPE legal system . Furthermore , he complained about the behaviour of CARDINAL of the inspectors of ORG during the interview of DATE .", "During a hearing by telephone ( telefonische hoorzitting ) on CARDINAL DATE the applicant was given the chance further to elaborate on these statements .", "On DATE the Minister dismissed the applicant ’s objection , stating the legal grounds for the decision and pointing out to the applicant that , in relation to the behaviour of the inspectors during the interview , he could file a formal complaint against these persons with ORG . The applicant ’s complaints regarding the entering of the garage were also rejected as it had appeared that the garage was not in direct connection with his house , which obviated the need for permission to enter it .", "The applicant appealed against the decision to ORG ( rechtbank ) on DATE restating the arguments set out in his objection , including the complaint that the inspectors of ORG had entered his garage without his permission .", "On DATE ORG held that because the applicant ’s garage was not directly connected to his house , the inspectors had not needed permission to enter it . ORG rejected the applicant ’s other complaints but decided to reduce the fine to the amount of ORG CARDINAL,CARDINAL because the proceedings before the court had exceeded a reasonable time .", "On DATE ORG of ORG ( GPE bestuursrechtspraak PERSON , “ ORG ” ) dismissed the applicant ’s appeal holding , inter alia , that it had not been properly argued as regards the entering of his garage by the inspectors .", "The relevant sections of ORG ) Act provide as follows :", "In this LAW and delegated legislation based on it , [ the following definitions shall apply ] :", "a. The Minister : the Minister of ORG and Employment ;", "b. employer :", "CARDINAL NORP the person who , in the exercise of an office , profession or business , has someone else perform work ( degene die in de uitoefening van een ambt , beroep of bedrijf een ander TIME verrichten ) ; ...", "It is forbidden for an employer to employ a foreign national in the GPE without a work permit .", "Any failures to comply with sections CARDINAL(CARDINAL ) ... shall be deemed administrative offences ( overtredingen ) . ...", "A civil servant appointed by the Minister [ i.e. the Minister of ORG and Employment ] for that purpose and coming under the Minister ’s authority shall , in the Minister ’s name , impose an administrative fine on any person to whom the obligations deriving from this Act apply , in so far as the failure to comply with such obligations is deemed an administrative offence .", "NORP The administrative offences defined for the purpose of this LAW ( [ d]e terzake van deze wet gestelde overtredingen ) shall apply with regard to every person with whom or in relation to whom an administrative offence has been committed ( ten opzichte LOC , met of QUANTITY aanzien van wie een overtreding is begaan ) . ”", "The Foreign Nationals ( Employment ) Act Fining Policy Rules , first published in ORG , no . CARDINAL and renewed DATE since then ( as relevant to the case before the ORG , Official Gazette DATE , no . CARDINAL ) , set out a tariff to be applied in imposing administrative fines . A legal body which employs a foreign national without a work permit will be fined ORG CARDINAL . If the employer is a natural person not a legal entity , the fines are reduced by CARDINAL ." ]

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[ "NORP In DATE the applicant appeared as defence counsel in ORG ( raastuvanoikeus , rådstuvurätt ) in CARDINAL sets of criminal proceedings against her client PERSON and others . The applicant acted as counsel under the DATE LAW ( laki maksuttomasta oikeudenkäynnistä , lag om DATE rättegång CARDINAL ) with ORG consent .", "In the DATE trial the public prosecutor , ORG , requested that PERSON , his brother PERSON and GPE be temporarily barred from conducting business ( liiketoimintakielto , näringsförbud ) . The request had been triggered by the winding up of various companies which the defendants had owned or in which they had held positions of trust . At a hearing on DATE ORG argued , inter alia , that regardless of whether ORG had actually participated in the administration of the companies , he should be barred from conducting business , given his formal membership of their boards of directors . Evidence was heard from the companies ' bookkeeper , GPE , who was one of the witnesses . Those proceedings ended with a decision of DATE rendered by ORG ( korkein oikeus , högsta domstolen ) .", "In the meantime , GPE , FAC , GPE and GPE had been questioned as suspects in relation to a complaint lodged by PERSON ( the wife of ORG ) alleging that they had , among other things , abused their positions of trust within one of the companies . On DATE T. decided not to bring charges against ORG , having found no evidence that he had participated in any meeting of the board at which the funds invested by the complainant had been allocated for purposes to which she had not agreed , or that FAC had otherwise consented to such allocation .", "On DATE PERSON was charged with aiding and abetting fraud and abusing a position of trust . GPE was accused , inter alia , of aggravated fraud and fraud , whereas GPE was charged with abusing a position of trust . The public prosecutor , ORG , had summoned ORG to testify but the applicant and the other defence counsel objected to this on behalf of their clients . Before ORG the applicant read out and handed in a memorial entitled “ Role manipulation and unlawful presentation of evidence ” ( in NORP , “ PERSON ja kiellonvastainen todistelu ” ) in which , among other arguments , she made the following points :", "“ ... The indictment seeks to hide the fact that S.S. ... was ... chairman of the board of the company in question . ...", "The blatant abuse in respect of the presentation of evidence must lead the court to reject such evidence . ...", "The prosecutor 's arrangement shows that he seeks , by means of procedural tactics , to make a witness out of a co - accused so as to support the indictment . In order to prevent the accused from submitting evidence on those points the prosecutor has , in the same case , brought trumped - up charges against a person who would qualify as a witness . ... Such deliberate abuse of discretion on the part of a public authority is highly unusual in a ORG governed by the rule of law .", "As regards , in particular , the procedural tactics which the prosecutor has adopted in the present case , namely CARDINAL instances of role manipulation in one and the same case , I submit that a milder form of such manipulation has been condemned by ORG . That precedent disclosed unlawful behaviour similar to that of the prosecutor in the present case ...", "The prosecutor has , in this case , committed role manipulation , thereby breaching his official duties and jeopardising legal security ... ”", "T. having denied the above allegations and maintained his request , ORG rejected the objection of the defence and allowed ORG to testify . On DATE the defendants were convicted . GPE and GPE were given suspended prison sentences and fines , and GPE sentenced to fines . They were all ordered to pay damages and costs . All appealed , GPE and GPE arguing , inter alia , that ORG should not have been heard as a witness .", "NORP In its judgment of DATE ORG ( hovioikeus , hovrätt ) upheld the decision to hear FAC as a witness but acquitted GPE and GPE of the charges regarding abuse of a position of trust . They were nonetheless ordered to pay damages to the complainant .", "GPE and PERSON requested leave to appeal to ORG . Having been invited to comment on ORG 's request , the applicant maintained on behalf of GPE that FAC should not have been heard as a witness . Leave to appeal was granted to GPE only . In its decision of CARDINAL DATE ORG set aside the order requiring GPE to pay damages .", "T. reported the applicant 's statements of CARDINAL DATE to ORG ( kanneviskaali , hovrättsfiskalen ) of ORG for consideration of possible defamation charges . On DATE the Acting Prosecuting Counsel formed the view that the applicant had been guilty of defamation but decided not to indict her , since the offence had been of a minor character . The Acting Prosecuting Counsel gave the following reasons , among others :", "“ The defamation now in question can not be expected to result in a more severe punishment than a fine .", "[ The applicant ] made her aforementioned ... submission in order to prevent the examination of [ ORG ] as witness . By acting in this manner [ the applicant ] attempted to defend her client 's interests in the trial . ... In her submission [ she ] attempted , perhaps in part due to her inexperience , to place ... the case before ORG in the context of the ... NORP precedent and its formulations . The submission was thereby worded quite sharply with the effect of offending T. ... , although [ the applicant ] was not able to show the requisite factual grounds for the allegations concerning [ T. ]", "At the same hearing ... ORG found no obstacles to examining [ S.S. ] as a witness . In its reasons ORG noted that no elements had transpired from the pre - trial record or other material on the basis of which the prosecutor could be seen as having deliberately selected certain persons as the accused in the case . The ... ORG did not reverse [ that ] decision of ORG . In the circumstances the [ applicant 's offence ] has not caused any particularly significant harm to [ T. ] ... ”", "Using his independent right of private prosecution , ORG nevertheless brought criminal proceedings against the applicant in ORG . Before ORG the applicant argued that , as defence counsel , she had to be afforded far - reaching freedom of expression . Prosecutors and legal counsel were obliged to tolerate criticism to a much wider extent than private individuals . The applicant 's statements had been addressed exclusively to ORG and had been limited to criticising the procedure which ORG , as prosecutor , had adopted in her client 's case . As ORG had dismissed the applicant 's objection to hearing ORG as a witness , the statements could not qualify as defamatory within the meaning of LAW , LAW , of LAW ( rikoslaki , strafflag ) .", "T. argued that the applicant 's statements to ORG on DATE were capable of subjecting him to contempt and hampering the performance of his professional duties and his career . He referred to his lengthy service as public prosecutor , to his municipal position of trust and to his chairmanship of the local branch of a political party .", "On DATE ORG convicted the applicant of public defamation committed “ without better knowledge ” ( julkinen ei vastoin parempaa tietoa tehty herjaus , offentlig smädelse dock inte emot bättre vetande ) , i.e. negligent defamation , to be distinguished from public defamation “ despite better knowledge ” , that is to say , intentionally imputing an offence to T. whilst knowing that he had not committed it ( rather than voicing a mere suspicion that he had ) . The applicant was sentenced to a fine of CARDINAL markkas ( FIM ) ( MONEY ( ORG ) ) . She was further ordered to pay ORG CARDINAL,CARDINAL ( FAC ) in damages for the harm suffered by T. and FIM CARDINAL ( EUR CARDINAL ) for his costs ( both sums with PERCENT interest ) . Lastly , she was ordered to pay ORG CARDINAL ( EUR CARDINAL ) in costs to the ORG . ORG gave the following reasons , among others :", "“ The obligation of an advocate is to safeguard his or her client 's interests within the confines of the law and good advocacy ethics . The requirements relating to an advocate 's activities appear in rather general provisions and rules . According to generally recognised principles , an accused must be provided with all necessary guarantees for his or her defence . Similarly , an advocate may request that every aspect of his or her client 's case be correctly and properly dealt with by the court . [ Counsel ] is under a duty to point out the errors and deficiencies which he or she notices . To this end an advocate is free to criticise anything of relevance to the case . Such criticism must nonetheless be appropriate and based on facts . The grounds for the criticism must be carefully considered . ... The manner in which an advocate proceeds is also limited , inter alia by the provisions in LAW of LAW .", "In the [ present ] case it has been established that [ the applicant ] alleged , in her aforementioned written submission , that [ T. ] had , in assessing who should be charged in the case , deliberately abused his discretion and thereby breached his official duties .", "T. was thus accused of an intentional offence in office within the meaning of LAW , LAW , of LAW . [ The applicant 's ] conduct would ... constitute a criminal offence if her statements were capable of subjecting [ T. ] to contempt or of hampering the performance of his duties or career . On this point ORG notes that the statement was made by a legal practitioner trained as a judge ( varatuomari , vicehäradshövding ) . The statements were made at a public hearing before ORG . The statement may thus have spread into the public domain . The statements concerning the ... abuse of discretion in breach of official duties may therefore have subjected [ T. ] to contempt or may have hampered the performance of his duties or his career progress .", "[ T. ] had decided not to bring charges against [ ORG ] in the absence of evidence sufficient for an indictment . ORG notes that no elements have transpired which would lead [ it ] to believe that [ ORG 's ] aforementioned decision was not based on the appropriate reasons set out in the decision . In its decision made at the same hearing ... ORG found no obstacle to examining [ S.S. ] as witness . In its judgment of DATE the ... ORG did not reverse ORG decision .", "On the basis of the charges which [ T. ] brought against [ GPE ] ORG convicted [ him ] of having abused a position of trust . In its aforementioned judgment ORG ... acquitted [ GPE ] but upheld ORG decision in respect of his obligation to pay damages . ORG notes that in this respect no elements have transpired which would lead [ it ] to believe that [ T. ] decided to bring charges against [ GPE ] so as to prevent his being examined as a witness .", "[ The behaviour imputed to T. ] has not been proved .", "There is no reason to believe that [ the applicant ] acted with intent ... , although she did express her criticism in a manner defaming [ T. ] . In order to defend her client 's interests [ the applicant ] attempted to prevent [ ORG ] from being heard as a witness and to put forward elements relating to his credibility . [ The applicant ] was in principle entitled to criticise the public prosecutor and to voice her suspicion that the prosecutor had acted incorrectly . In the assessment of [ the applicant 's ] guilt no reason has been disclosed for reaching any conclusion other than that she failed to take sufficient care in considering the grounds for her criticism . ORG therefore concludes that [ the applicant ] did not act contrary to her better knowledge . [ She ] must have realised , however , that her statements were defamatory in nature and were capable of subjecting [ T. ] to contempt or of hampering the exercise of his official duties or career . ... ”", "Both PERSON and the applicant appealed to ORG . On DATE ( Korkein oikeus CARDINAL:CARDINAL ) ORG , sitting as a ORG of CARDINAL judges with Justice Tulenheimo - Takki holding a casting vote , upheld ORG reasons but set aside the applicant 's sentence , considering that her offence had been minor in nature . Accordingly , the fine imposed on her was lifted but her obligation to pay damages and costs was upheld . Justices PERSON and ORG voted in favour of upholding ORG judgment as a whole , whereas Justices GPE and GPE found that the applicant should be acquitted and relieved of her obligation to pay damages . According to the voting procedure laid down in LAW , DATE , of LAW ( PERSON , PERSON Balk ) , the judges in favour of imposing a penalty on the applicant were considered to form the majority , and the more lenient of the CARDINAL views within that majority prevailed . Justice GPE , whose opinion was joined by PERSON , reasoned as follows :", "“ This case concerns , on the one hand , the freedom of speech of the defence lawyer of an accused in criminal proceedings and , on the other hand , the threshold for considering criticism of a public prosecutor 's official actions a criminal offence .", "It is in the nature of a fair trial that counsel for the defence must , if the client 's best interests so require , be free to criticise the public prosecutor 's official actions without thereby being threatened with punishment . This is considered to be an essential principle of human rights in the NORP countries where the rule of law prevails . The ... principle [ becomes devoid of meaning ] if defence counsel 's freedom of expression is excessively restricted in such a situation . Legal provisions which restrict this freedom of expression must therefore be interpreted narrowly . Correspondingly , one can expect a public prosecutor to tolerate even sharp criticism of his or her official actions at a public hearing . This is due to the specific nature of the post of public prosecutor .", "The act imputed [ to the applicant ]", "On the basis of ORG reasoning , I consider that [ the applicant ] did not have any intention to offend [ T. ] or to act contrary to her better knowledge . The question ... is therefore whether [ she ] is guilty of the defamation imputed to her by ORG .", "In the trial in question [ the applicant ] considered the interests of her client to require that the [ prosecution witness ] be disqualified from testifying against his brother . To this end [ the applicant ] stated her suspicion that [ T. ] , in considering whether to press charges , had been guilty of ... role manipulation . [ The applicant ] considered it necessary to stress , in particular , that such action was , in her opinion , incompatible with NORP law and therefore in breach of the ... duties of the prosecutor . As her client 's defence counsel , [ the applicant ] had a right to express such opinions and , as a public prosecutor , [ T. ] was obliged to tolerate such criticism . As a party to the proceedings , [ T. ] had an opportunity to respond to [ the applicant 's ] statements and dismiss the opposing party 's suspicions if he regarded them as groundless .", "On the other hand , there was no need for [ the applicant ] , in her capacity as defence counsel , to state her opinion as to whether [ T. ] had possibly committed an offence in office by acting in the alleged manner ... In this respect I consider [ the applicant 's ] statements inappropriate .", "Constitutive elements of defamation", "But did [ the applicant ] commit defamation ? Is it enough for the fulfilment of the elements in LAW , LAW , of LAW , to allege that someone is ' guilty of a specific offence ' in the circumstances mentioned in this provision - or is it also required that the alleged offence is capable of subjecting the said person ' to contempt or harming his professional life or career ' ? The provision is linguistically open to various interpretations . ORG has applied the interpretation which is more favourable to the accused by finding that [ her ] conduct would constitute a criminal offence [ only ] if her statements were capable of subjecting [ T. ] to contempt or of harming his professional life or career . I agree with ORG interpretation .", "Considering the broad definition of this offence , it is not reasonable to consider that any allegation of an offence would suffice to cause ... the injurious consequences mentioned in this provision . In order for the definition of defamation to be satisfied evidence is therefore also required in a given case that ... the allegation ... of an offence did produce an injurious consequence .", "Assessment of the injurious character of the allegation of an offence", "It is common knowledge that the role of an accused person 's defence counsel includes criticising the prosecutor 's decision to bring charges ... This is almost a rule , especially when the charges against counsel 's client are denied . It is also known that the language used by counsel may be sharp and counsel 's view particularly subjective . The public present at a trial are therefore usually able to adopt a prudent attitude towards the criticism to which the parties subject each other . Neither is all criticism likely to be taken literally even if those who have presented it are legally trained .", "As regards [ T. 's ] alleged role manipulation as such , [ the applicant ] did not state that [ T. ] had done something he had not done . Instead , she questioned the appropriateness of [ his ] decisions ... [ The applicant ] alleged that the actual purpose of [ ORG 's ] actions had not corresponded to the stated grounds for the actions . On that basis [ the applicant ] made known that she considered [ T. 's ] official actions unlawful and purposely harmful to her client . Despite their unconditional tone and formulation [ the applicant 's ] statements could be understood more or less as [ her ] own doubts as to the reasons why [ T. ] had acted the way he did .", "Conclusion", "In the light of the above - mentioned considerations , I do not consider that [ the applicant 's ] allegation that [ T. ] had committed an offence in office was capable of subjecting [ him ] to contempt or of harming his professional life or career within the meaning of LAW , LAW , of LAW . Therefore I consider it not proved that [ the applicant ] committed defamation ... I would quash ORG judgment and dismiss the charges and compensation claims against [ the applicant ] .", "Costs", "In so far as court costs are concerned , I consider , despite the outcome of the case , that [ the applicant ] , given the inappropriate tone of her remarks , gave cause for [ T. ] to initiate proceedings against her . Considering the facts , I nonetheless find ... that both parties should bear their own costs . ”", "According to LAW , LAW , of LAW , as in force at the relevant time , a person alleging , albeit not contrary to his or her better knowledge , that someone had committed an offence was to be convicted of defamation , unless he or she could show probable cause in support of the allegation .", "NORP The current LAW , LAW , of LAW , as amended by LAW no . CARDINAL/CARDINAL , provides that where criticism is aimed at the conduct of another person in his or her political or business activity , public office or function , scientific , artistic or other comparable public activity , and where this criticism clearly does not exceed the limits of acceptable conduct , it shall not be considered defamation within the meaning of paragraph CARDINAL .", "According to LAW , Article CARDINAL , of LAW , the court may order that an unsuitable legal representative should no longer appear in the case before it . The court may also , on similar grounds , revoke the appointment of counsel instructed under the legal - aid scheme ( section CARDINAL of LAW ) .", "The intervener concluded from its survey of a number of member ORG i.e. GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) as well as of certain other GPE ( GPE , GPE and GPE ) that a great majority of them accord a privilege to lawyers for statements they make while representing clients in court . Although the extent and application of such privilege may differ from jurisdiction to jurisdiction , every surveyed ORG recognises that a lawyer 's ability to express himself or herself is closely linked to counsel 's obligation to defend the client . The privilege for allegedly defamatory statements allows counsel to argue as effectively as possible , relying even on facts which they can not be sure are true . For example , in the GPE allegations that the prosecutor has abused his or her discretion are regularly made by defence lawyers . Potentially relevant allegations which are entirely unsubstantiated are simply disregarded .", "To the extent that restrictions are permitted on a lawyer 's statements in court , most of the jurisdictions surveyed by ORG tend to favour the use of disciplinary measures over criminal sanctions . In the view of the intervener , this might reflect the position taken by ORG in the context of LAW , namely that a relatively light criminal sanction may already serve to chill even appropriate and measured criticism ( see , for example , the PERSON v. GPE , judgment of DATE , Series A no . CARDINAL ) .", "Where criminal sanctions are permitted in theory , in most of the jurisdictions surveyed by the intervener they are rarely used in practice , and then usually only in extreme circumstances and provided that intent can be shown , as opposed to mere negligence . Even where a lawyer 's statements may in principle be subject to restrictions , those are generally imposed only when the statement is not only defamatory but also entirely unrelated to the proceedings or the parties .", "Furthermore , almost all of the jurisdictions surveyed by the intervener recognise the fundamental difference between the roles of the prosecutor , being the opponent of the accused , and the judge . This distinction generally provides an increased protection for statements that are critical of the prosecutor .", "It is the intervener 's conclusion that in most of the surveyed jurisdictions it is unlikely that a defence lawyer would be criminally prosecuted for having criticised the manner in which a prosecutor is handling a case or for having indicated that the prosecutor has abused his or her discretion . On such facts recourse to criminal proceedings would not be deemed necessary .", "According to paragraph CARDINAL of ORG adopted in DATE by ORG on ORG and the Treatment of Offenders ) , lawyers should enjoy “ civil and penal immunity for relevant statements made in good faith in written or oral pleadings in their professional appearances before a court , tribunal or other legal or administrative authority ” .", "In its Recommendation ( DATE ) CARDINAL ORG recommends the governments of Member States to take or reinforce , as the case may be , all measures they consider necessary with a view to implementing the freedom of exercise of the profession of lawyer . For instance , “ lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards ” . Lawyers should , however , “ respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards ” ( principles I:CARDINAL and III:CARDINAL ) ." ]

[ "10" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in FAC . The respondent Government were represented by their Agent , PERSON , succeeded by PERSON P. ORG in that function .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is registered as the father of a child to whom his former wife gave birth on DATE .", "On DATE the applicant commenced divorce proceedings . In the action the applicant stated that he and his wife had had no sexual intercourse for DATE .", "As he considered that he was not the natural father of the child , the applicant requested , inter alia on DATE , that an action under LAW ) of LAW ( see “ Relevant domestic law and practice ” below ) be filed with a view to having this issue determined . In the request the applicant stated that he had had no sexual intercourse with his former wife and that the latter had a friend with whom she had met at the relevant time .", "A blood test was arranged . However , it was not carried out as the applicant had not paid the costs .", "In DATE , a public prosecutor arranged for another blood test of the applicant and of his former wife , as well as of the child . In a report of CARDINAL DATE an expert found that the blood analysis did not exclude that the applicant was the natural father of the child . The expert further expressed the view that it was most probable that the applicant had fathered the child .", "On DATE ORG in PERSON informed the applicant , with reference to the expert ’s conclusion , that an action under LAW ) of LAW could not be filed in his case as it had not been shown , in an objective manner , that the applicant was not the natural father of the child .", "On DATE and on CARDINAL DATE the applicant filed a complaint with ORG . He argued that the probative value of the above blood test was low and asked that a DNA test be carried out . The applicant explained that the latter test was capable of reliably showing whether or not he had fathered the child . He requested that another person whom he considered to be the natural father of the child should also undergo the test .", "On DATE ORG dismissed the applicant ’s complaints . The applicant was informed that the child ’s mother was opposed to further examination by experts as the child had fainted in the course of the first examination , and that she was not willing to bear the costs of such an examination . The letter further stated that public prosecutors lacked power to order the mother to undergo further examination and to bear its costs . Finally , the applicant was informed that his further submissions in this matter would not be dealt with unless they contained relevant new information .", "On DATE the applicant sent a letter to ORG which he entitled “ Attempt to reach a settlement ” . He challenged the viewpoint expressed in the above letter of DATE . He argued , in particular , that a DNA test involved no risk , that he was ready to cover its costs , and reiterated his request that such a test be carried out in his case . The applicant received no reply .", "Pursuant to Section CARDINAL(CARDINAL ) of LAW , the husband of a woman who gives birth to a child during the marriage or not DATE after its dissolution shall be considered the child ’s father .", "Section ORG ) provides that a husband can deny paternity before a court within DATE after learning that his wife gave birth to a child .", "Under LAW ) , when the time - limit for denying paternity has expired , ORG may file an action to disprove paternity provided that the determination of the issue is justified by the interests of society .", "According to the practice of the public prosecutors , an action under LAW ) of LAW can only be filed when reliable proof exists that the mother ’s husband did not father the child ." ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "On DATE FAC , the first applicant ’s husband and the second applicant ’s father , died in a traffic accident .", "On DATE the applicants brought a civil action against the insurance company ORG with ORG ( PERSON ) seeking damages .", "ORG held hearings on DATE and DATE , CARDINAL May , DATE and DATE and DATE .", "On DATE and DATE the applicants filed CARDINAL rush notes requesting the court to schedule a hearing and deliver a decision .", "The hearings scheduled for CARDINAL DATE and DATE were adjourned due to the illness of the judge . The hearings scheduled for DATE and DATE were adjourned for absence of the summoned witnesses . At the hearing held on DATE the court heard those witnesses .", "On DATE ORG closed the main hearing and gave judgment dismissing the applicants’ claim . The judgment was served on the applicants on DATE .", "On DATE the applicants appealed to ORG ( Županijski sud u GPE ) .", "On DATE ORG quashed the first - instance judgment and remitted the case . The decision was served on the applicants on DATE .", "In the resumed proceedings , ORG held hearings on DATE , DATE and DATE .", "The Government submitted that the court also had held a hearing on DATE . According to the applicants that hearing never took place .", "It appears that the proceedings are still pending before ORG .", "Meanwhile , in DATE the applicants lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining about the length of the proceedings .", "On DATE ORG declared the ORG complaint inadmissible , since ORG had given its judgment in the case while the complaint had been pending before ORG .", "The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :", "“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...", "( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...", "( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”" ]

[ "13", "6" ]

[ "6-1" ]

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[ "NORP In DATE the applicant participated in a protest campaign against the stationing of interceptor fighter planes ( Abfangjäger ) near FAC . In the course of a police action , Police Officer PERSON charged the applicant with having scratched his right arm , and he subsequently requested that the applicant be prosecuted for having caused grievous bodily harm ( schwere ORG ) . In DATE ORG ) informed the applicant that the investigation proceedings against him had been discontinued .", "On DATE the “ PERSON ” , issued in GPE , published the following article , under the title “ ORG politician and member of ORG injured civil servant / Request for him to be handed over on account of the risk of infection ” and with the headline “ Police Officer claims : AIDS test for PERSON ! ” . The article read as follows :", "“ Dramatic contribution to the debate on the privilege of members of ORG : Police Officer PERSON ( DATE ) from Aflenz not only requests that ORG politician and member of ORG PERSON be handed over , but also that the member of ORG - who is immune because of privileges , be subjected to an AIDS - test . Reason : PERSON scratched PERSON and drew blood .", "' I do n't dare to touch my wife and I ca n't even kiss my children ' - Since he has been involved in a police action against the opponents of the [ planes ] the family life of Police Officer PERSON is ruined . The fear of the immune deficiency syndrome paralyses the social relations and the sexual life of the father of CARDINAL .", "The explosive background : On DATE , shortly after the [ planes ] had been stationed , ORG , a senior ORG , participated in a police action in the area of a camp of opponents of the [ planes ] at FAC . On this occasion , ' friction ' developed between the demonstrators and the police . The result of an altercation between ORG and the Green politician PERSON was CARDINAL bleeding scratches , CARDINAL , the other QUANTITY long , to ORG 's right lower arm . CARDINAL witnesses and the local medical officer confirmed the injuries .", "ORG does not claim that the immune member of ORG is suffering from the immune deficiency syndrome , but , as the ORG told the ' PERSON ' : ' The member of ORG had been in contact with the other demonstrators and they were not particularly clean . ' Criminal proceedings against PERSON on a charge of causing bodily injury have been discontinued on the ground of the triviality of the injury . PERSON nevertheless requests that the member of ORG be handed over .", "' Mr. PERSON has to undergo an AIDS - test , as he might have infected me ' , states ORG and thereby asks the PERSON ' scratcher ' to have a blood sample taken for the purposes of an immune deficiency syndrome test . PERSON 's victim also intends to claim compensation for moral damages . As regards his claims for compensation , ORG is represented by the PERSON lawyer PERSON , who is known to be close to the opponents of the [ planes ] and not to the authorities who guard the [ planes ] . ”", "This article , reproduced on pages CARDINAL and CARDINAL of the newspaper , was accompanied by a photograph showing the applicant and QUANTITY police officers with the sub - title “ AIDS - test for the privileged member of ORG ? PERSON ( centre ) in an altercation with the police . ”", "The article was announced on the front page as follows :", "“ Green politician PERSON should have an AIDS test .", "The Police Officer PERSON from GPE asks Green member of ORG to undergo an AIDS - test . PERSON scratched PERSON and drew blood in the course of an altercation ( pages CARDINAL ) . ”", "The applicant requested the author of the article in question , who had not contacted him prior to its publication , to publish a rectification as well as a statement drafted by the applicant .", "The text of this statement , published in ORG on CARDINAL DATE , read as follows :", "“ In the context of the report on ORG 's request for an AIDS - test , the ' PERSON ' wishes to clarify that , when mentioning the disease AIDS , it never intended to defame , for personal or political reasons , the member of ORG PERSON . We wish to apologise for any gross claims which were not appropriate to our standards of fairness and our reputation as journalists . ”", "NORP This statement was printed as an annex to an article with the headline \" Defamation of Green politician not intended / hygiene expert PERSON reassures : ' No AIDS - infection from scratches ! ' \" , with the following text :", "“ On DATE , the PERSON ' hygiene - king ' , university professor PERSON , reassured the Police Officer PERSON from GPE , who feared an infection with AIDS from scratches which were allegedly inflicted on him by Green member of ORG . PERSON : ' AIDS can not be caught from scratches . '", "PERSON , President of ORG , informed the ' PERSON ' : ' Nobody has anything to fear from a simple scratch . Infection is impossible . ' The Head of the Graz Institute for Hygiene declared his immediate willingness to ' hold at any time an explanatory talk ' with the senior Police Inspector and his family .", "As reported PERSON feared that he had been infected with the AIDS virus by CARDINAL scratches to his right lower arm , which were inflicted on him in the course of an altercation with the Green member of ORG PERSON . Criminal proceedings on a charges of causing bodily harm ( superficial reddening ) have been discontinued by ORG on the ground that the factual elements of the offence were not present . ”", "The article further referred to the applicant 's claims that the matter was a political campaign intending to bring him into disrepute .", "Also on CARDINAL DATE the applicant , on the occasion of a press conference , commented on the events of DATE and in particular the above articles of CARDINAL and CARDINAL DATE . He informed the press of his opinion regarding the background to the events which he considered to be a \" political character assassination \" ( \" politischer Rufmord \" ) . When asked by a journalist how he felt about the above events , the applicant replied as follows :", "“ This is NORP - journalism . ”", "This statement was quoted in the NORP media .", "On DATE the company publishing the newspaper “ ORG ” brought injunction proceedings under section CARDINAL of LAW ( ORG ) against the applicant with ORG ( PERSON für PERSON ) . It requested that the applicant be prohibited from repeating the statement according to which the contents of the “ PERSON - Zeitung ” were “ NORP - journalism ” and to arrange for a rectification .", "In the context of private prosecution proceedings instituted by the applicant in respect of the article of CARDINAL DATE , ORG ( PERSON für PERSON ) , as confirmed by ORG ( Oberlandesgericht ) on DATE , convicted the company publishing the “ PERSON - Zeitung ” of defamation , pursuant to LAW ( Mediengesetz ) , and ordered it to pay compensation to the applicant .", "On DATE the ORG dismissed the injunction claim . The Court observed that section CARDINAL of LAW envisaged an injunction in respect of any statement of facts which jeopardised someone 's reputation , income or livelihood , the untruth of which was known or must have been known . Considering all circumstances , and in particular the background of the press conference and the impugned statement , the ORG found that the applicant had used the expression “ NORP - journalism ” as a value - judgment . The ORG based its decision on the statements made by the applicant and various witnesses , as well as on an expert opinion regarding the interpretation of the expression “ NORP - journalism ” .", "On DATE ORG dismissed the plaintiff 's appeal ( GPE ) . ORG confirmed the findings of the first instance court that the impugned statement was a value - judgment . Furthermore , even assuming that the impugned statement was an untrue statement of fact , the plaintiff had failed to show that the applicant had known or should have known that this statement was untrue . In this respect , ORG referred to the expert opinion according to which the defamation of political opponents with an alleged illness was an essential element of the journalism under the NORP regime . Furthermore , even assuming that the impugned statement amounted to an insult , it was justified as a reaction to the plaintiff 's previous publication on the applicant .", "On DATE ORG ( Oberster Gerichtshof ) , upon the plaintiff 's further appeal ( außerordentliche Revision ) , reversed ORG decision and issued an injunction against the applicant prohibiting him from repeating the statement that the article of CARDINAL DATE amounted to “ NORP - journalism ” , and similar statements .", "According to ORG , section CARDINAL LAW presupposed facts , i.e. circumstances , the existence of which could be demonstrated . If a value - judgment was based on particular facts it comprised a statement of facts . The question whether or not “ facts ” had been disseminated had to be examined against the general context of the impugned statement , as understood by the man in the street . In this respect the interpretation least favourable to the offender had to be placed on the statement . Objective criticism presupposed that the value - judgment corresponded to unchallenged or proven facts . ORG further observed that , under section CARDINAL LAW , the plaintiff had to prove that the discrediting statement was untrue , unless the statement also amounted to an insult ; in the latter case , the offender had to prove the truth of the statement concerned . The question whether or not a statement constituted an unlawful interference with a person 's reputation could only be assessed by balancing all relevant circumstances .", "ORG found that the applicant 's reproach of “ NORP - journalism ” had concerned an article published by the plaintiff , and had arisen on the occasion of a press conference concerning the plaintiff 's defamatory report about the applicant . The impugned statement had been an answer to a question put by CARDINAL of the journalists , and , in the circumstances , the ORG had no doubt that this statement only related to the particular article of CARDINAL DATE . In this context , the applicant 's statement was a value - judgment . In any event , there was no indication as to how the journalist had understood the applicant 's reproach “ NORP - journalism ” .", "ORG considered further whether this value - judgment fell within the scope of section CARDINAL § CARDINAL of LAW . The plaintiff could claim an injunction under this provision if , considering all circumstances , the plaintiff 's interests were not less important than the applicant 's . ORG found that the plaintiff had an interest not to be associated with ORG . The reproach “ NORP - journalism ” was close to a charge of criminal behaviour under LAW ( GPE ) . ORG also noted that the applicant 's statement was a reaction to an article published by the plaintiff which contained the assumption that the applicant was suffering from the immune deficiency syndrome , i.e. a contagious disease , which provokes fear and antipathy amongst the majority of the population . His indignation about the defamatory reporting might appear understandable but could not justify the reproach that the plaintiff 's way of reporting came close to criminal behaviour , in particular as he himself could have brought proceedings under section CARDINAL of LAW against the plaintiff . Balancing all circumstances , ORG concluded that the applicant 's interests did not outweigh the plaintiff 's . The right to freedom of expression could not justify such a serious attack on the plaintiff 's reputation . For the same reasons , the impugned statement could not be regarded as permissible political criticism , which is supposed to provoke or shock . ORG also noted that , having regard to the applicant 's submissions in the course of the proceedings , there was a risk that he would repeat the statement in question .", "NORP This decision was served on the applicant 's counsel on DATE .", "Section CARDINAL of the NORP Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows :", "“ ( CARDINAL ) Anybody who , due to defamation , suffers real damage or loss of profit , may claim compensation .", "( CARDINAL ) The same applies if anyone is disseminating facts which jeopardise someone 's reputation , income or livelihood , the untruth of which was known or must have been known to him . In this case there is also a right to claim a revocation and the publication thereof ... ”", "After the Second World War , GPE introduced legislation penalising activities inspired by ORG ideas , i.e. LAW ( GPE ) . In LAW ( Staatsvertrag ) of DATE , GPE confirmed its undertaking to prohibit any such activities .", "The applicant applied to ORG DATE . He alleged that ORG judgment of DATE prohibiting him from repeating the reproach with “ NORP - journalism ” constituted a violation of LAW .", "The Commission declared the application ( no . CARDINAL ) admissible on DATE . In its report of CARDINAL DATE ( former LAW ) , it expressed by a majority the opinion that there had been no violation of LAW ." ]

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[ "10" ]

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[ "The applicant was born in DATE and lives in PERSON .", "In DATE ORG of GPE ( ARC ) instituted criminal proceedings against several police officers , including the applicant , on charges of abuse of position .", "On DATE the applicant was arrested in connection with these proceedings . In the course of the proceedings the applicant was detained in various detention facilities , including ORG ( “ the ORG ” ) , where he was held from CARDINAL DATE to DATE and from DATE to CARDINAL DATE .", "On DATE the applicant was brought before ORG of PERSON ( the “ ORG ” ) which ordered that more information on the applicant be obtained to decide on his further detention . ORG also decided that , pending the collection of this information , the applicant ’s detention should be extended until DATE .", "On DATE ORG extended the applicant ’s detention for DATE . It noted , in particular , that the applicant had been charged with numerous counts of abuse of position , connected to illtreatment of individuals and unlawful entry into residential LOC . Regard being had to the nature of the charges and to the applicant ’s official status , there was a high risk that he would engage in new criminal acts , put pressure on witnesses or obstruct the investigation in other ways .", "On DATE ORG of the ARC ( “ the Court of Appeal ” ) upheld this decision .", "On DATE , following a request by the ORG office , ORG extended the applicant ’s detention for DATE , noting that the investigation had still been unable to collect all the evidence , and that the applicant ’s personal situation had not changed .", "On DATE ORG upheld this decision .", "By DATE the investigation had been completed and the ORG office referred the case to the Chairman of ORG to determine which trial court would consider the applicant ’s case .", "On DATE the applicant requested the governor of the detention facility to release him in view of the fact that the court order for his detention had expired . His request was refused , with reference to the fact that the pre - trial investigation was finished and the bill of indictment had been transferred to the judicial authorities .", "On DATE the Chairman of ORG referred the case to ORG ( hereafter “ the ORG ” ) for trial .", "On DATE ORG committed the applicant for trial . According to the Government , on the same date the court upheld the applicant ’s detention , having found no reasons to release him . According to the applicant , the court did not decide on the issue of extension of his detention on that date . The parties did not provide a copy of the relevant ORG decision .", "On DATE ORG , having examined the case in the course of adversarial proceedings , in which the applicant was represented by an advocate of his choice , found the applicant guilty of several counts of abuse of authority and sentenced him to DATE and CARDINAL months’ imprisonment . The court also prohibited the applicant from occupying a law - enforcement post for DATE .", "On DATE ORG upheld the judgment of DATE .", "On DATE ORG dismissed a cassation appeal by the applicant as unsubstantiated .", "From DATE to CARDINAL DATE and from DATE to CARDINAL DATE the applicant was held in ORG ( Temporary Detention Centre ) .", "According to the applicant , during his stay in ORG he shared a QUANTITY cell with CARDINAL other detainees . The toilet and washstand in the cell were not separated from DATE . The cell had no windows , no table and no chairs , and the ventilation was unsatisfactory . For sleeping arrangements the cell had a wooden platform . Once every DATE the detainees were taken out for TIME exercise . At all other times they remained confined to their cells . Before he was detained , the applicant had been suffering from hypertension . While he was in detention his health worsened to the point that on CARDINAL occasions an ambulance had to be called .", "On DATE ORG notified the applicant , in response to his complaints about the conditions of his detention , that disciplinary action had been taken against the ORG governor and CARDINAL officers for unspecified breaches of the law .", "On DATE the ARC Department of ORG acknowledged to the applicant that ORG had not been properly equipped and that the detainees had been taken out for exercise only once every DATE because of the overcrowding of the ORG facilities . They noted that the ORG building had been constructed in DATE and had not undergone any capital renovations since that time . They also noted that the overcrowding of the ORG had been due to restrictions on the admission of detainees by the PERSON no . CARDINAL ORG ( GPE ) .", "According to the ORG , ORG had CARDINAL cells , capable of accommodating CARDINAL inmates . All the cells were located in the basement and had no windows . However , the cells were well lit by electric light , enabling the detainees to read , equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platforms , tables , toilets and wash - stands . The detainees were provided with pillows and mattresses . While he was in detention , the applicant was provided with meals , time for outdoor exercise and access to washing facilities . On CARDINAL occasions ( CARDINAL and DATE ) an ambulance was called to examine the applicant at his request . He was diagnosed with a respiratory infection and hyperthermia and found not to need in - patient treatment . During his entire stay in ORG , the applicant was examined regularly by medical professionals and made no other health complaints except those mentioned above .", "The relevant domestic law concerning pre - conviction detention can be found in the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , DATE ) .", "The relevant international material concerning the conditions of detention is summarised in the judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § DATE , DATE ) ." ]

[ "3", "5" ]

[ "5-1" ]

[ "5-1-c" ]

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[ "The applicant , PERSON PERSON , is a NORP national . He is now detained in FAC of GPE , in GPE . He is represented before the ORG by Mr M.Shaw , professor of PERSON and barrister practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE PERSON was found dead in the apartment where she lived with her husband . TIME her husband was arrested and charged with manslaughter . The applicant contended that his wife had committed suicide by throwing herself out of the second floor window on the pavement below . The police reported to the coroner that there was reasonable suspicion of violent death or death brought about by an unknown cause . The coroner instructed pathologists Professor PERSON and PERSON to carry out a post mortem examination of the body of the deceased . The examination was carried out on DATE by these pathologists in the presence of PERSON ( also a pathologist ) who was present as representative of the family of the deceased and as an observer in pursuance of a relevant order by the coroner . The pathologists concluded that a deep fracture of the scull and brain and the inhaling of a quantity of blood had led to the victim ’s suffocation . In particular , Professor PERSON noted that the victim had received blows in the neck which had distorted the vocal cords so that the victim was unable to scream . Moreover , the bleeding of the nose , the lips and the larynx brought about a huge bleeding of the respiratory system so that the victim could not be in a position to take the decision to fall from the window .", "The coroner made an order for the immediate burial of the body .", "PERSON had also carried out a review of the scene of the crime , at the request of the victim ’s family , in which he noted : “ Regarding the above spots and splashes of blood , it is the suggestion of the witness that they prove the manner in which the deceased fell from the second - floor window . In particular , the witness is of the opinion that the body was not ejected , as it happens in the ordinary cases of persons falling by their own will , but it fell after having come in touch with the front surface of the ledge under the window of flat n CARDINAL . ”", "After the post - mortem examination of the body , PERSON concluded as follows : “ In the area of the throat and the respiratory system , the witness observed multiple bruises on the soft tissues in the area of the larynx , in the front and the sides . The appearance , the size and the position of the bruises suggested that they had been caused by the exertion of forceful pressure by human fingers . He also observed a suppressed total fracture of the right front gristle of the larynx . According to the witness , this fracture suggests the exertion of forceful pressure by the edge of a human thumb . ”", "On DATE , the father of the victim filed an ex - parte application for ordering PERSON to carry out a second post mortem examination . On DATE , the coroner dismissed the application . On CARDINAL DATE upon request of the relatives of the victim and the oral authorisation of the Attorney General and the police , PERSON carried out a second post mortem examination of the body . The cause of death given by PERSON was strangulation .", "On DATE the applicant was convicted by ORG of the offence charged and sentenced to DATE imprisonment . The applicant challenged the accuracy of the second post mortem examination . Dr Matsakis was exhaustively cross - examined and the defence called their own expert witness , a professor of forensic pathology at ORG . ORG evaluated both reports and decided to accept the evidence provided by PERSON by a reasoning covering CARDINAL pages of the judgment .", "The applicant appealed on points of law to ORG .", "On DATE ORG dismissed the applicant ’s appeal . It based its decision , inter alia , on the PERSON judgment of ORG .", "ORG held that the second post mortem examination was illegal because , in the circumstances , it amounted to a breach of Section CARDINAL(CARDINAL ) of LAW and of the order to bury the body made thereunder .", "ORG further held : “ The relatives of the victim had applied to the coroner for leave for the carrying out of a second post mortem examination . Their application was dismissed . Instead of seeking to quash this ruling through the procedures provided for by law , they sought and succeeded the carrying out of a post mortem examination through a relevant oral authorisation of the Attorney General of the Republic and the police . What actually happened , amounted to getting around the ruling of the coroner not through the procedures provided for by the law but through means which are unknown to the law ” .", "ORG added that the fact that the prosecution had the initiative in the preliminary examination and in gathering material of evidence did not render the trial unfair . The applicant had the opportunity to cross - examine witnesses against him and enjoyed a full equality of arms in the proceedings .", "Furthermore , ORG held : “ However , we note that the relevant illegality was brought about in an effort to help the relatives of the victim , who , in their distress , were seeking a second opportunity to investigate the circumstances in which their beloved met her death ” . ORG further stressed that besides the evidence of PERSON , there was the evidence of the victim ’s father , who was at the flat of the first floor , right below the couple ’s flat , and whose narration reads as follows in ORG judgment : “ Then , he heard a loud shout by the accused like roaring ( he imitated the roaring in the court room ) and TIME the noise of something like a bundle falling on the floor . Then , after TIME , he heard something like dragged steps as if somebody was dragging something heavy , furniture being bumped and the noise of a window or a door being opened . ”", "LAW of the Coroner ’s PERSON . CARDINAL provides :", "“ An order authorising the burial or other disposal of a body upon which it has been decided to hold an inquest may be issued by the coroner at any time after the body has been viewed . ”", "Under the domestic laws of the Republic , a distinction is drawn between the admissibility of illegally obtained evidence according to the nature of the illegality . In the leading case of the Police v. PERSON ( DATE ) CARDINAL ORG CARDINAL , ORG held in the light of Articles CARDINAL and QUANTITY of the LAW that evidence obtained in violation of constitutional rights and liberties was inadmissible .", "If evidence is obtained by other illegal means , its admissibility is a matter falling within the discretion of the trial court . The domestic courts have adopted the principles established by the LANGUAGE common law as set out by ORG in the case of NORP v. PERSON ( DATE ) CARDINAL All E.R. DATE . In practice , the test applied under the common law is the same as that now applied in GPE under section CARDINAL of ORG DATE , which was explained in paragraph CARDINAL of the ORG ’s judgment in the case of PERSON v. the GPE ." ]

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[ "The applicants were born in DATE and DATE respectively . The first applicant is serving a prison sentence in FAC no . CARDINAL . The second applicant lives in GPE .", "On DATE CARDINAL persons wearing masks , one of whom was armed with a gun , attacked a certain PERSON and her son at the door of their flat in GPE . In the course of the fight the armed intruder shot at PERSON , after which they both retreated without any further action and without their faces being seen . TIME PERSON died .", "On DATE , at TIME , the police apprehended the first applicant in the street and took him to the Pivdenno - Zakhidna Police Station . According to a written explanation addressed by CARDINAL of the arresting officers to the Chief of ORG , the apprehension was occasioned by the suspicious behaviour of the applicant , whom the police had seen “ walking fast and looking around ” , entering a building ( according to the case - file materials , that was the building in which the applicant lived ) , leaving it when approached and trying to re - enter it later . In the applicant 's submission , he was asked by CARDINAL officers to go to the police station “ to clarify some issues ” , to which he agreed .", "The applicant was body - searched in the police station . As a result , a packet containing a “ green substance of plant origin ” was discovered in his pocket . According to the applicant , it had been planted on him by the police .", "On DATE , at TIME , on the premises of the police station , the applicant was placed in “ administrative detention ” on suspicion of illegal drug possession . As noted in the respective police report , the offence on suspicion of which the applicant was detained was “ a breach of Article CARDINAL of the Code on Administrative Offences ” .", "The applicant 's relatives , while learning about his detention from a witness , were not informed of his whereabouts and enquired unsuccessfully at various police stations and detention facilities in the town , including ORG .", "On DATE an expert report was issued , according to which the substance discovered in the applicant 's pocket was not a drug .", "On DATE CARDINALHe was however immediately re - arrested in the framework of the criminal proceedings ( see below ) .", "On DATE the police terminated the administrative offence proceedings , finding that there was no case to answer .", "The applicant 's account of the events of CARDINAL DATE is as follows . During TIME DATE he was taken from the cell to an office in the Pivdenno - Zakhidna Police Station , where the police officers GPE and GPE urged him , under threat of violence , to confess that he had murdered PERSON As the applicant refused to confess , at QUANTITY those officers brought in a manual electricity generator . The applicant was handcuffed and suspended from a metal bar CARDINAL tables , with naked wires from the generator attached to his ankles and coccyx . CARDINAL of the officers , GPE , administered electric shocks to the applicant , while the other officer , PERSON , gagged his mouth with a sofa cushion . At TIME the applicant lost consciousness . After he had recovered consciousness , several officers took it in turns to beat him until TIME , having previously put a bullet - proof jacket on him and covered his head with a pillow . In the meantime , at TIME , the applicant heard his wife ( the second applicant ) being questioned in the neighbouring office . CARDINAL of the officers entered the office where the applicant was , and asked his colleague : “ Do you think she would be able to survive what he has gone through ? ” The applicant then wrote his first confession , allegedly under dictation from a police officer . He stated that he had committed the murder of PERSON together with a certain Mr M. At TIME the applicant was placed in FAC ( the “ FAC ) .", "The Government did not submit their version of the events of CARDINAL DATE , apart from mentioning the first applicant 's placement in FAC .", "At some point on DATE the applicant was taken to the investigator in ORG ( “ the KCPO ” ) , to whom he complained about his alleged torture by electric shocks .", "On DATE the applicant repeated his complaint to the investigator during questioning . On DATE he was examined by a doctor of ORG , who noted that his both ankles had sores of QUANTITY and QUANTITY x QUANTITY respectively . The doctor concluded that those injuries were minor and could have been inflicted on the applicant with blunt objects DATE . Given their nature , which the doctor described as “ unspecific ” , he expressed doubt as to the plausibility of the applicant 's allegation that electric current had been applied to him .", "On DATE the applicant 's lawyer and relatives complained to the KCPO that he had been tortured during TIME of CARDINAL DATE by CARDINAL police officers , GPE and NORP They noted that the doctor who had examined the applicant on CARDINAL DATE had ignored a number of pinpoint sores on his ankles and that the medical report had been inaccurate . The complainants sought an investigation into the matter and a new medical examination of the first applicant .", "On DATE the first applicant raised the ill - treatment complaint before ORG during the examination of the prosecutor 's request for him to be remanded in custody ( see paragraph CARDINAL below ) . The court allegedly ignored his complaint .", "Later on DATE the first applicant was allegedly beaten again by police officers , who had previously put a bullet - proof jacket on him . He confessed to the crimes again .", "On DATE the ORG examined the office in which the first applicant 's questioning had been conducted on DATE and issued a report according to which “ there were no foreign objects discovered there which could have been used for inflicting bodily injuries ” .", "On DATE the first applicant underwent another forensic medical examination ordered by the investigator . According to its report , CARDINAL pinpoint sores had been discovered on the applicant 's feet and ankles , each QUANTITY wide and QUANTITY long . A purple bruise , QUANTITY x QUANTITY , was discovered on the back of his right thigh . The doctor concluded that the injuries were minor and could have been inflicted with blunt objects , possibly on DATE . The report mentioned : “ There is no medical indication that the injuries were caused by an electric current ” .", "On DATE the Khmelnytskyy ORG issued a report of its internal investigation in which it found the first applicant 's allegation of his ill - treatment in police custody to be unsubstantiated . The report was based on the questioning of the police officers involved , who denied any coercion , as well as the medical findings of CARDINAL DATE and the office examination report of DATE .", "On DATE the KCPO issued a decision refusing criminal prosecution of the police officers for lack of corpus delicti in their actions . It was mainly based on the questioning of the police officers involved and the findings of the medical reports of CARDINAL May and DATE .", "The first applicant challenged that refusal both separately and in the course of his own trial . In DATE the KCPO informed him that his complaints about his alleged ill - treatment by the police had been added to his own case file and would be considered in the course of his trial .", "Overall , the prosecutor 's refusal on DATE to bring proceedings against the police officers involved to establish their criminal liability was quashed and subsequently upheld CARDINAL times . Having quashed it for the last time on DATE , ORG ( “ the NORP Regional Court ” ) also referred to the fact that the first applicant 's ill - treatment complaint had been included in the case file concerning his own criminal case and was to be examined in the context of his trial ( see also paragraph CARDINAL below ) .", "On DATE the first applicant was transferred from FAC to ORG ( “ the GPE ” ) . According to the Government , he did not raise any allegation about illtreatment before the ORG or the GPE medical personnel or administration .", "On DATE the first applicant was allegedly beaten up again by the police officers who had escorted him to the court for a decision regarding his detention . On DATE his father raised a complaint in that regard before ORG ( “ the ORG ” ) .", "The applicant 's father also complained about the alleged illtreatment of the applicant to the hotline of ORG of ORG .", "On DATE the aforementioned authority decided to forward the case to ORG ( “ the KRPO ” ) given the inability of its own investigation to establish the truth .", "In DATE the first applicant 's lawyer asked a licensed private forensic - medical centre for an expert 's conclusion regarding the following : ( a ) whether the findings of the medical reports of DATE and DATE provided grounds to state that the injuries to the applicant 's ankles might have been caused by blunt objects ; ( b ) what marks typically appeared on the skin in cases of direct contact with electric current and whether the marks on the applicant 's body were of that nature ; ( c ) what injuries could be caused if a bullet - proof jacket was put on the person before beating .", "On DATE CARDINAL experts of the aforementioned centre , with CARDINAL and DATE of experience respectively , issued a report with the following conclusions : the first applicant 's injuries could not have been caused by blunt objects ; their number and features indicated that they might have been inflicted on CARDINAL DATE by contacts , possibly multiple ones , with naked electric wires . As to the question about injuries from beatings inflicted through a bullet - proof jacket , the doctors referred to statements from their colleagues at ORG given in the course of the trial , according to which in such cases internal injuries could be inflicted . They could be identified by PERSON , whereas the first applicant had not been X - rayed .", "As is apparent from the ruling of ORG of DATE ( see paragraph CARDINAL below ) , the above medical report had been included in the first applicant 's case file .", "The facts concerning the investigation into the applicant 's illtreatment allegation in the course of his trial are summarised below in the sections pertaining to the trial .", "On DATE the first applicant confessed to the armed assault and murder of PERSON ( see also paragraph CARDINAL above ) .", "On DATE the investigator applied to ORG for authorisation to search CARDINAL flats where the first applicant 's domicile was registered and where he actually lived . As noted in the application , the investigation had revealed that the applicant might have been involved in the murder and that significant evidence might be found at the place of his residence and/or official domicile .", "On DATE ORG authorised the requested searches .", "At TIME the police searched the flat where the first applicant lived with his wife ( the second applicant ) . TIME they searched his parents ' flat where his domicile was registered . Apparently the searches did not reveal anything of relevance to the investigation .", "On CARDINAL DATE a criminal case was opened against the first applicant on suspicion of assault with intent to commit robbery and murder for profit , and he was arrested by the investigator in the context of the criminal proceedings . The investigator documented the arrest at TIME by filling in a document template entitled “ Record of a suspect 's arrest ” . The reasons for the arrest were included in the pre - printed part of the template and read as follows :", "crime committed , provides grounds for his detention ” .", "In the line “ Explanations of the detainee ” it was noted that the first applicant “ had not given any explanations ” . The applicant had been body - searched , with “ nothing having been discovered ” . On DATE he withdrew his earlier confessions , alleging they had been extracted by force .", "NORP On DATE the KCPO requested ORG to remand the applicant in custody , referring to strong evidence against him and to the fact that he was suspected of having committed serious crimes . According to the request , on CARDINAL DATE the first applicant had walked into the Pivdenno - Zakhidna Police Station and had given himself up to the police , confessing to assault and murder . It then stated that he had been detained on suspicion of the aforementioned crimes on DATE .", "On DATE , CARDINAL DATE , ORG , following a hearing with the participation of the first applicant and the lawyer contracted by his parents , PERSON . ( see § DATE below ) , allowed the prosecutor 's request and remanded the applicant in custody . It referred to the gravity of the charges against him and the inherent risk of his absconding or obstructing justice . It was noted in the aforementioned ruling that it could be appealed against within DATE .", "The case file contains a copy of the first applicant 's written statement dated DATE , according to which he refused to make any statement in the course of the pre - trial investigation , relying on LAW . At the same time it transpires from some other documents that on the aforementioned date the applicant made another confession . According to the first applicant , he confessed again after his alleged beating by police officers in FAC and the confession was dictated by the investigator .", "On DATE the first applicant again confessed to those crimes in the presence of his lawyer ( Mr Ma . ) . According to him , those confessions were made in the presence of the police officers involved in his alleged illtreatment . The record of his questioning of DATE contained both his confession and his note “ I do not admit my guilt ” .", "On DATE a certain Mr PERSON was arrested on the same charges as those laid against the applicant and confessed to the crimes after his alleged beating by police officers ( as he would later complain during his trial ) .", "On DATE a confrontation was held between the applicant and Mr M. , during which the first applicant repeated his confession in the presence of the appointed lawyer Mr PERSON . ( see paragraph CARDINAL below ) .", "On DATE the first applicant , in the presence of the lawyer Mr Ma . , retracted his earlier confessions as having been given under duress and pleaded not guilty .", "On DATE ORG , acting at the prosecutor 's request , extended the term of the first applicant 's detention to DATE , referring to the seriousness of the charges against him and to the inherent risk of his absconding , as well as the possibility of his impeding the investigation which had not yet been completed .", "On DATE the charges against the first applicant were changed from premeditated murder to grievous bodily harm causing death . Both co - accused were also charged with violent robbery and unlawful possession of weapons .", "DATE . On DATE the investigation was declared complete , and the first applicant and Mr M. received access to the case file .", "On DATE the case was sent to ORG .", "According to the first applicant , he was not legally represented during the period from DATE .", "The Government maintained that on DATE a lawyer ( Mr PERSON . ) was appointed for the applicant .", "On DATE the first applicant 's parents entered into an agreement with a private lawyer , PERSON . , for legal representation of the applicant in the criminal proceedings against him .", "On DATE Mr Ma . received from the investigator dealing with the case a written permit for his meetings with the first applicant in the Khmelnytskyy ORG , where his client was detained .", "On DATE the first applicant refused the services of the appointed lawyer Mr PERSON . and expressed his wish to be represented by Mr Ma . During some investigative activities thereafter he however agreed to be represented by PERSON .", "On DATE Mr Ma . was not admitted to see the applicant on the ground that the permit allegedly contained flaws . On DATE he complained about that to the Chief of ORG .", "On DATE Mr Ma . also complained to the KCPO that the investigator was obstructing his participation in the investigative measures . He submitted in particular that he had not been duly notified of the investigative activities , which were conducted in his absence . Furthermore , he complained that the lawyer appointed for the applicant was incompetent .", "On DATE the Chief of ORG wrote to PERSON . that indeed the ORG official had wrongly impeded his meetings with the applicant for which he had been disciplined .", "On DATE ORG held a preparatory hearing at which it maintained the first applicant 's detention . The materials submitted by the parties to the ORG did not contain a copy of that ruling .", "On DATE ORG , under the presidency of Judge PERSON , acquitted the applicant on all the charges , while the other co - defendant , PERSON , was found guilty of an unrelated instance of illegal possession of weapons ( a hunting gun and a box of bullets – of no relation to the murder of PERSON had been discovered in his garage ) . The court found that there was no evidence of the defendants ' guilt and that their confessions had been extracted by force .", "The judgment noted as follows :", "“ As it had been stated by the defendants in the course of the pre - trial investigation and later confirmed during the trial , ... the police had applied physical and psychological violence to them with the intention of coercing them into confessing to the murder which they had not committed and the circumstances of which they had found out from the police .", "There are no doubts about that , as it clearly transpires from the case file that the defendants were under arrest when they wrote their confessions . They name specific officers of ORG as behaving violently towards them , and give a detailed account of their actions . The medical examinations held at the defendants ' requests [ ... ] revealed injuries to their bodies . During the pre - trial investigation [ the applicant and PERSON ] retracted their confessions to the crime against the family of PERSON . and complained to various authorities that they had been illtreated in police custody . ”", "The court noted that both the circumstances and motives of the crime were presented inconsistently in the confessions of the co - defendants . It observed that they had attracted the suspicion of the police only because the son of PERSON , who had happened to see them together in the street , believed that their statures and size were similar to those of the offenders . The court found that that investigation had wrongly taken over that wholly unsubstantiated argument . Moreover , it recognised all the findings of the investigation as mere presumptions not corroborated by any evidence .", "The court further observed that the pre - trial investigation relied “ as one of the key pieces of evidence proving the defendants ' guilt ” on the statements of a taxi driver , PERSON , who stated that he had taken CARDINAL passengers somewhere close to the building where the murder took place . The court noted , however , that his description of those passengers changed on DATE in comparison with that given earlier on CARDINAL March CARDINAL . While PERSON had not been able to indicate any specific features of their appearance , he later recognised the first applicant from a choice of CARDINAL persons “ by his size ” .", "As to the other evidence , CARDINAL witnesses had seen QUANTITY persons running down the stairs close to the murder site , but they were not able to identify them as the defendants . The investigation had also found a box containing bullets at Mr M. 's home , but they were of a different type from the one with which the victim had been shot .", "The court lifted the preventive measure concerning the applicant .", "On DATE , CARDINAL DATE , ORG issued a separate ruling , by which it brought to the attention of the ORG , ORG and ORG the following violations :", "“ [ the defendants ] had been detained for fictitious reasons ; they had not been examined in the presence of attested witnesses ; neither the reasons for the detention nor their right to defence had been explained to them ; and their relatives had not been informed that they were detained ” .", "It was also noted in the separate ruling that the defendants had consistently complained that they had been ill - treated in police custody , naming the police officers involved , and that injuries had been discovered on their bodies . The court considered that the doctor who had examined the applicant on CARDINAL DATE had come to a superficial and unfounded conclusion that there were no injuries caused by electric current .", "DATE . On CARDINAL DATE ORG also issued another ruling , by which it quashed the prosecutor 's decision of DATE not to open a criminal case into the applicant 's allegation that he had been ill - treated in police custody .", "PERSON ( the son and husband of the deceased PERSON having victim status in the proceedings ) appealed against the judgment of CARDINAL DATE . In DATE they challenged before ORG the composition of ORG , which was to examine their appeal , on the ground that some of its judges allegedly had friendly relations with Judge PERSON under whose presidency the impugned judgment had been delivered at first instance . They further contended that certain judges there were members of the regional lawyers ' qualification and disciplinary board to which the defendants ' lawyers also belonged . PERSON therefore sought the transfer of the case to any other regional appellate court .", "On DATE the Deputy President of ORG instructed ORG to transfer the case to ORG ( “ the ORG ” ) “ with a view to ensuring the most comprehensive and objective examination of the case ” .", "On DATE ORG found that the first - instance court had failed to assess all the evidence in the case thoroughly and conclusively and that it had accepted the defendants ' allegations that they had been ill - treated in police custody , without having taken into consideration the related findings of the prosecution authorities . It also remarked that no assessment had been made of the confessions by the defendants in the presence of their lawyers . The ORG noted that some hearings had been held without the prosecutor 's participation , and that ORG had not responded to the victims ' request for remittal of the case for additional investigation , by which they had sought application of a stricter provision of LAW . On those grounds , ORG quashed both the acquittal and the CARDINAL rulings of ORG of DATE , and remitted the case to it for fresh examination by a different panel .", "ORG rejected the victims ' request for transfer of the case to any other trial court in the NORP region , as such a transfer would be contrary to LAW ( “ the ORG ” ) .", "In DATE and DATE the lawyer representing the victims requested ORG to transfer the case from ORG to a court in a different region . He noted that Judge PERSON under whose presidency the case had earlier been examined ( see paragraph CARDINAL above ) , was the Deputy President of ORG and that he would therefore influence the proceedings regardless of the panel 's composition .", "On DATE the First Deputy President of ORG , while finding no grounds to transfer the case to a different region , instructed ORG to consider transferring it to another court within the GPE region .", "On DATE ORG transferred the case to ORG ( “ the ORG ” ) , within the GPE region .", "DATE . On DATE ORG held a preparatory hearing , during which the victims unsuccessfully sought a change of preventive measure in respect of the defendants .", "On DATE the ORG again rejected the victims ' request for pre - trial detention of the co - defendants instead of an undertaking not to abscond . The court noted that the co - defendants had not been evading or impeding the investigation .", "On DATE ORG remitted the case to the KCPO for additional investigation , indicating CARDINAL shortcomings in the investigation previously undertaken , which could not be remedied in the course of the trial .", "The court noted , inter alia , that the defendants ' confessions lacked consistency , as did the statements by the witnesses and the victim ( Mr I. , the son of PERSON ) . It observed in particular that PERSON had initially stated on several occasions that he and his mother had been attacked by their business competitors . Later in the trial , he changed both his description of the perpetrators ' appearance ( which then contradicted that given by some other witnesses ) and his version as to who they might have been . Furthermore , the case file contained a report from the police , according to which one of the taxi drivers had heard from a neighbour of PERSON that the latter had been receiving threatening telephone calls because she had reduced the prices of her products . There was no further investigation into the matter .", "NORP The court also noted that the investigator had given no reasoning for having changed the charges against the applicant from murder to inflicting grievous bodily harm causing death , with a new charge of illegal possession of weapons added .", "The Shepetivka Court next expressed its concern over the way the investigation had received the statements by the taxi driver PERSON ( according to the court 's ruling DATE a key witness in the case ) , who had recognised the applicant as CARDINAL of his CARDINAL passengers whom he had driven to the building where the crime was committed , around the time of the murder , had waited for there for TIME and had then driven to a café . The court noted that on DATE the investigator had questioned PERSON as a witness in the case concerning the murder of PERSON , while at the same time PERSON was detained in the PERSON on suspicion of illegal drug possession . While both PERSON and the investigator denied the above in the course of the applicant 's trial , the ORG administration confirmed that on the aforementioned date , which was also the documented date of PERSON questioning as a witness , he had been in detention in the ORG . Moreover , according to the register of detainees ' movements , on the above - mentioned date PERSON was in the ORG .", "Furthermore , the court noted that the defendants ' allegations that they had been ill - treated in police custody had not been duly investigated . Its critical remarks included the following :", "“ The [ KCPO ] refused to open a criminal case relying on the absolutely identical explanations of the [ police officers ] , who are interested persons and whom the defendants accuse of torture , as well as the conclusions of the internal investigation undertaken by senior [ police officers ] in respect of their own subordinates , which the court considers unacceptable .", "At the same time , the [ KCPO ] failed to clarify why , for what reasons , under what circumstances and in what manner [ the applicant ] sustained the injuries while being held in the ORG , but not in the GPE , for DATE .", "... The case file contains a forensic medical report , according to which [ the applicant 's ] injuries might have originated from electric shocks .", "... Given the discrepancies in the medical findings ... , an additional forensic medical examination should be undertaken ... ”", "On DATE , DATE , ORG issued a separate ruling indicating a number of gross violations of the criminal procedural legislation in the course of the pre - trial investigation , similar to those mentioned in the separate ruling of ORG of DATE . The court again criticised the investigation undertaken into the allegations of both defendants about their ill - treatment in police custody . It made , in particular , the following observation :", "“ The prosecutor entrusted the official investigation into the use of force on the defendants directly to the supervisors of the officers whom the defendants accuse of torture , and that investigation yielded a decision that there had been nothing criminal in the actions of those officers . The court considers this unacceptable . ”", "Furthermore , the court noted that the investigators had imposed on the applicant an appointed lawyer , although the applicant had already been represented by a lawyer of his own choosing , who remained uninformed about the investigative measures undertaken .", "The victims appealed against the aforementioned rulings of ORG . At the same time , they opposed the examination of the case by ORG .", "On DATE the First Deputy President of ORG again instructed ORG to transfer the case to ORG , referring to the reasoning given in support of such transfer in his letter of DATE .", "On DATE ORG sent the case file to ORG .", "On DATE the ORG quashed , on formal grounds , the separate ruling of ORG of DATE and upheld the decision of the KCPO of DATE refusing to institute criminal proceedings against police officers on the first applicant 's complaint that he had been ill - treated . ORG concluded that the requirements of LAW ORG had not been complied with : there had been no written application for quashing the refusal of DATE , and , in any event , such an application would have had to be lodged with ORG .", "ORG also excluded from the ORG ruling of DATE remitting the case for additional investigation all issues other than those concerning the classification of the defendants ' actions under LAW and assessment of the testimony of the son of PERSON Thus , ORG noted in its ruling as follows :", "“ In the light of all the materials of the case , namely , the collected evidence , the nature of the criminal actions , the instrument of the crime being a firearm , the conclusions of the forensic medical expert on the location and nature of the wounds , the bench considers that the victim 's ... life was taken deliberately and thus there is every ground to classify the defendants ' actions under a different criminal provision envisaging liability for a more grievous crime ” .", "On DATE , at TIME , the first applicant was arrested by the investigator on suspicion of premeditated murder . The investigator substantiated this decision with the standard wording of the arrest report template , which read as follows :", "“ the eyewitnesses , including the victims , directly indicate this person as the one who committed the crime ” .", "On DATE the KCPO ordered the applicant 's release with a reference to the criminal procedure provisions concerning a replacement of CARDINAL preventive measure by another .", "On DATE first applicant complained to the ORG about the alleged unlawfulness of his detention during the aforementioned period .", "In line with the aforementioned ruling of ORG ( see paragraph CARDINAL above ) , the first applicant challenged the ORG 's ruling of DATE before ORG .", "On DATE ORG quashed the ruling of DATE and remitted the case to the KCPO , allowing the complaint .", "On DATE ORG quashed the aforementioned ruling of CARDINAL DATE on the ORG 's appeal and ruled that the investigation into the alleged ill - treatment was to take place within the first applicant 's own criminal case , which was being examined by ORG .", "On DATE the investigator brought formal charges against the first applicant on CARDINAL counts of premeditated murder for profit ( considering that he had also attempted to kill the son of PERSON and failed for reasons beyond his control ) , violent robbery and illegal possession of weapons .", "On DATE the investigator applied to ORG for replacement of the preventive measure in respect of the first applicant from the undertaking not to abscond to pre - trial detention . Referring to the seriousness of the charges as advanced on DATE and the inherent risk of absconding , the investigator submitted that detention was a more appropriate preventive measure .", "On DATE ORG – at the hearing with the participation of the first applicant and his lawyer – examined the aforementioned application of the investigator as well as the first applicant 's complaint about the alleged unlawfulness of his detention from DATE . The court lifted the applicant 's undertaking not to abscond and remanded him in custody at the prosecutor 's request . It dismissed as unsubstantiated the applicant 's complaint about his arrest of DATE . The court gave as the reasons for the new preventive measure the fact that the applicant was suspected of serious crimes and that he could abscond or hinder the establishment of the truth . The court referred to unspecified statements made by the victims . As regards the applicant 's complaint about his detention from CARDINAL to DATE , it noted that there were no reasons to consider it unlawful .", "The first applicant 's father and lawyer appealed , submitting that the applicant had always complied with the investigator 's summons while under the undertaking not to abscond and that the allegations of the victim 's family about his attempts to influence their testimony had been confined to their suspicion that “ somebody had been following them ” . Furthermore , they noted that the first applicant had health problems , referring to the fact that at the time of the arrest order he was undergoing in - patient treatment in a neurological hospital , of which he provided documentary evidence . They also submitted that he had a permanent place of residence , no criminal record in the past , had a small baby to support , and was studying at a university . They therefore insisted that there were no reasons to believe that he would abscond . The first applicant 's representatives also challenged the finding of ORG concerning his detention from DATE . They did not make any comments or complaints regarding their or the applicant 's access to the case - file materials prior to the examination of the prosecutor 's appeal by the court on DATE .", "On DATE ORG , following a hearing with the participation of the first applicant 's lawyer and father , rejected the applicant 's appeal and upheld his detention with a reference to the gravity of the charges against him and “ the witnesses ' fears for their safety ” . It also dismissed the applicant 's complaint concerning his detention from DATE having found “ no significant grounds for recognising [ it ] unlawful ” .", "On DATE ORG extended the first applicant 's pre - trial detention , on the investigator 's application , to DATE ( to CARDINAL DATE with his detention from DATE to CARDINAL DATE included therein ) . The court referred to the gravity of the charges against the applicant and his unspecified attempts to impede establishment of the truth , as well as to the significant volume of the case file .", "On DATE the investigator applied to ORG for another extension of the first applicant 's pre - trial detention , referring to the scope of the remaining investigative work .", "NORP In DATE ( the date is illegible ) ORG extended the applicant 's pre - trial detention to DATE ( to CARDINAL DATE ) . It founded its decision on the time required for the applicant to study the case file , the seriousness of the charges , and his “ negative behaviour when at large ” .", "On DATE the first applicant was indicted , and the case was sent to ORG .", "On an unspecified date in DATE it was decided that ORG would try the case as a court of first instance .", "On DATE ORG held a preparatory hearing . The court upheld the first applicant 's detention , having found that “ there [ were ] no grounds for changing the preventive measure ” . It did not set any time - limits for the detention .", "NORP On DATE ORG found the first applicant guilty of premeditated murder for profit committed following a conspiracy with a group of persons , assault with intent to rob , and illegal possession of weapons , and sentenced him to DATE imprisonment .", "The court relied , inter alia , on the statements by the taxi driver Mr PERSON , according to which he had taken CARDINAL passengers to the building where the crime was committed , waited for them there for TIME and then driven them away . He recognised the applicant “ by the features of his face , shape of the nose and his hair ” as being CARDINAL of those passengers . PERSON that any pressure had been put on him by the police . He mentioned that he had been questioned in the prosecutor 's office , but did not remember any details about that questioning . The investigator who had questioned PERSON stated that the questioning had taken place in the prosecutor 's office and on a different date than that mentioned in the questioning report , with the discrepancy in the dates being a typing error . Mr PERSON denied as inaccurate the first applicant 's allegation that he had admitted to the latter having slandered him under pressure from the police . The court noted as follows :", "“ There is no information from which it could be discerned that unlawful investigation methods were applied to witness [ Mr K. ] entailing his incriminating statements against the defendants as they allege .", "The allegation of [ the first applicant ] that [ Mr PERSON ] was arrested on DATE , remained in police custody until DATE and that is why he recognised [ the first applicant as the offender ] is unfounded . It is not corroborated by the materials of the case and can not be interpreted as an indication of any pressure on [ Mr PERSON ] with a view to incriminating the defendants . The witness [ Mr PERSON ] denied this fact during the court hearing in a categorical manner , as well as denying the allegation that he had admitted to [ the first applicant ] having incriminated him under pressure from the police , as [ the first applicant ] has submitted many times .", "The panel considers the statements of [ Mr K. ] given during the pre - trial investigation and the trial to be truthful , as both during the pre - trial investigation and during the judicial proceedings they were identical , consistent in detail and without any considerable discrepancies as alleged by the defendants and their defence . The court therefore takes them into consideration in the basis of the conviction as proof of the defendants ' ... guilt , being concordant with the other evidence . ”", "The court also took into account the testimony of the son of PERSON , who thought he had recognised the first applicant and the other co - defendant by their postures and gestures , having seen them together in the street . It further took note of statements from several witnesses who had seen QUANTITY persons wearing masks close to the crime scene . ORG relied on the defendants ' confessions given at the initial stages of the pre - trial investigation . It attributed some discrepancies between the defendants ' versions to the voluntary nature of their confessions . The police officers allegedly involved in the defendants ' ill - treatment were questioned in the trial and denied those allegations . The court also noted that the first applicant had not complained about his ill - treatment to the ORG or to the GPE authorities . It questioned the doctors who had examined the first applicant in DATE , and they again concluded that his injuries were not typical of the effects of electric current . Furthermore , the court relied on the ruling of ORG DATE refusing to open a criminal case in respect of the first applicant 's complaint . In the light of those considerations , the trial court found the first applicant 's allegation that he had been ill - treated unsubstantiated .", "The term of the first applicant 's imprisonment was to be calculated from DATE and included his detention from DATE to CARDINAL DATE and from DATE .", "The first applicant lodged a cassation appeal , alleging , inter alia , that his guilt had never been proven and that his conviction was primarily based on his confessions extracted by torture and in the absence of legal assistance . He noted that the forensic medical report corroborating his allegation of having been tortured by electric shocks had remained ignored .", "Furthermore , the first applicant stressed that the statements of PERSON K. , on which the trial court had relied as proof of his guilt , had drastically changed over time to his disadvantage and in suspicious circumstances . He submitted in particular that PERSON had initially stated that he did not remember any features of his passengers of DATE . The first applicant further noted that on DATE the police had apprehended PERSON for being drunk . During his subsequent body - search a package of substance of “ plant origin ” had been discovered on him , and PERSON PERSON had been arrested . It was during his administrative detention that he had “ remembered ” some general features of CARDINAL of his passengers . The first applicant referred to specific pages in the case file quoting PERSON as having stated during the trial that “ there [ was ] a significant difference between those to whom [ he ] had given a lift [ on DATE ] and the defendants ” and that the investigator had included some untruthful information in the records of his questioning during the pre - trial investigation . The applicant also submitted that the case file contained a transcript ( by a technical expert ) of his conversation with PERSON made in DATE ( apparently during the period when the first applicant had been at large ) , in which PERSON had stated that the police had forced him to incriminate the defendants under threat of being accused himself of the murder of PERSON , that drugs had been planted on him and that he had made the incriminatory statements while being detained in the ORG . The first applicant stressed that PERSON had admitted in court that he had indeed met him in DATE and that their conversation could have been recorded . He further complained that although the defence had sought the examination of the aforementioned audiotape in the hearing and putting questions in that respect to PERSON , the trial court had dismissed that motion without any explanations . It was also mentioned in the cassation appeal that the case file contained a copy of the investigator 's ruling of DATE about refusal to open a criminal case against Mr PERSON without reference to any provision of LAW a fact , which , according to the first applicant , had remained without assessment .", "On DATE ORG upheld the first applicant 's conviction . It referred mainly to his confessions during the pre - trial investigation , including those given in the presence of his lawyer , which it found to be corroborated by other evidence in the case . As to the first applicant 's allegation that he had been ill - treated in police custody , the court noted that it had studied the videotape of the investigative activities and found that the applicant had given his confessional account of the events in a free and detailed manner and that there were no injuries on his body . Furthermore , according to the above ruling of ORG , the first applicant “ had never referred to any specific persons who had allegedly illtreated him ” and that he “ had always replied that he was well when asked about his health ” . The court considered that all the persons involved in the investigation of the applicant 's allegation of ill - treatment had been questioned in the course of the trial and all the respective medical reports had been studied . In the light of all the aforementioned , it found the complaint of ill - treatment to be wholly unsubstantiated .", "As regards the statements of witness PERSON , ORG noted that he “ had been examined many times both during the pre - trial investigation and the trial ” and that he had recognised the first applicant “ without any hesitation ” . It further noted as follows :", "“ There is no information from which it could be discerned that the law - enforcement authorities applied unlawful methods to this witness , and therefore his statements were rightly taken into consideration in the basis of the conviction ” .", "The second applicant worked at a factory run by the victim 's family . At DATE she was in DATE of pregnancy .", "On DATE , at TIME , the second applicant was at her workplace . The manager asked her to come in for a work - related conversation , when CARDINAL plain - clothes police officers , allegedly without any explanation and not allowing her to change out of her uniform into her own clothes , took her to the Pivdenno - Zakhidna Police Station . The second applicant was placed there in a room she described as very cold . The police officers , as well as the widower of Ms I. , who was also present at the police station , allegedly shouted at her , threatened her with imprisonment and pushed her in the back , pressurising her to testify against her husband .", "The second applicant wrote that her husband ( the first applicant ) had been with her at home at the time of the murder .", "After the questioning , which lasted for TIME , the second applicant was taken back to the factory . She had to wait there for some time until the door was opened so that she could change into her own clothes .", "On DATE the second applicant complained to the prosecution authorities about the alleged unlawfulness of her detention on CARDINAL DATE .", "On DATE the prosecution office wrote to her that the police had not violated any criminal procedure legislation .", "Articles DATE and CARDINAL of the LAW , which are relevant to the case , read as follows :", "Everyone has the right to respect for his or her dignity .", "No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ...", "Every person has the right to freedom and personal inviolability .", "No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law .", "In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of their holding in custody .", "Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the moment of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .", "Everyone who has been detained has the right to challenge his or her detention in court at any time .", "Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . ”", "Articles CARDINAL and CARDINAL concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of DATE in the case of NORP v. GPE ( no . CARDINAL , § DATE ) .", "Article CARDINAL envisages DATE imprisonment as the penalty for premeditated murder and imprisonment of DATE or for life as the penalty for premeditated murder for profit and/or committed following conspiracy by a group of persons .", "Article CARDINAL penalises premeditated infliction of grievous bodily harm causing the victim 's death by imprisonment for DATE .", "Under paragraph CARDINAL of Article CARDINAL , assault with intent to rob committed by an organised group or coupled with infliction of grievous bodily harm is punishable by imprisonment for a term of DATE , with confiscation of property .", "Paragraph CARDINAL of Article CARDINAL provides for DATE imprisonment for illegal possession and use of weapons .", "Under Article CARDINAL , deliberately unlawful arrest is a crime punishable by a maximum of DATE imprisonment .", "DATE prohibits production , purchase , storage , transport , or dispatch of drugs or psychotropic substances in small quantities without the purpose being trafficking .", "Article CARDINAL provides for administrative detention on account of an administrative offence for a maximum of TIME . In exceptional cases envisaged in the legislation the duration of the administrative detention may be longer . Persons suspected of a drug offence may be detained for TIME for compilation of the offence report . If the identity of the suspect is not known , or if there is a need for a medical examination or clarification of the circumstances in which the drug had been procured , or if the drug needs to be analysed , the administrative detention may last up to three days subject to the prosecutor 's notification , or up to ten days – subject to the prosecutor 's approval and if the offender 's identity is unknown .", "The provisions concerning the application of preventive measures and their types , time - limits for pre - trial detention and also the grounds for and procedure of detention by an enquiry body ( the investigator in the instant case ) , can be found in the GPE v. GPE judgment , no . CARDINAL , § § DATE , DATE .", "The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of CARDINAL DATE in the case of GPE v. GPE ( no . CARDINAL , § CARDINAL ) .", "Under LAW , if the court discovers a violation of law and/or of citizens ' rights in the course of a pre - trial enquiry or investigation , or during an examination of a case in a lower - level court , it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation . Failure to take the requisite measures is considered an administrative offence .", "Article CARDINAL provides that legal representation during the enquiry , the pre - trial investigation and the trial before the first - instance court is obligatory if , inter alia , the possible penalty is a life sentence . It further specifies that in this case the legal representation must be provided from the moment of the arrest or the laying of charges against the person .", "Article CARDINAL obliges prosecutors , investigators , bodies of enquiry and judges to accept applications or communications as to the crimes committed or prepared , including in cases that fall outside their competence , and to adopt CARDINAL of the following decisions within the DATE time limit : ( CARDINAL ) to institute criminal proceedings ; ( CARDINAL ) to refuse to institute criminal proceedings ; or ( CARDINAL ) to remit the application or communication for further examination according to jurisdiction .", "Pursuant to paragraphs CARDINAL and CARDINAL of LAW , persons remanded in custody are held in ORG ( SIZOs , part of the penal system ) . Exceptionally , they may also be held in Temporary Detention Facilities ( ITTs , part of the police infrastructure ) , but for DATE . If it is impossible to ensure a transfer to a GPE within the aforementioned time - limit , because of its remote location or lack of infrastructure , a detainee may stay in an ORG for DATE .", "Under LAW , complaints against decisions of an investigator or prosecutor refusing to initiate criminal proceedings may be filed by a person whose interests it concerns with the local court at the place of the respective authority or official .", "Before the amendments of DATE , Article CARDINAL had specified that a court ruling following the preparatory hearing prior to a trial had to give reasons in the event of changing the preventive measure . By the aforementioned amendments , that provision was repealed . Article CARDINAL , as worded at the material time , obliged the judge of a trial court dealing with the case to consider in the preparatory hearing , inter alia , whether there were grounds for changing , lifting or applying a preventive measure .", "Under paragraph CARDINAL of Article CARDINAL , essential violations of the criminal procedure legislation are those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful , reasoned and just judgment . Paragraph CARDINAL of this Article includes a violation of the right of an accused to defence , as well as a breach of the territorial jurisdiction rules , among such essential violations which warrant the quashing of a judgment in any event ( that is , regardless of whether the requirements of paragraph CARDINAL have been met ) .", "Chapter CARDINAL of the Code dealt with complaints against decisions , acts or inactivity on the part of ORG and local self - government bodies as well as their officials . In particular , LAW provided that anyone who considered that his or her rights or freedoms had been infringed by a decision , act or omission on the part of a ORG body , legal entity or official could lodge a complaint with a court .", "Articles CARDINAL and CARDINAL ( as worded before the amendments of DATE ) can be found in the following judgments respectively : NORP v. GPE , no . CARDINAL/CARDINAL , § DATE , DATE , and ORG v. GPE , no . CARDINAL , § DATE , DATE ) .", "Following the amendments to LAW of DATE , the list of cases where the right to compensation would arise was expanded by the following point :", "“ ( DATE ) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court ( save for rulings on remittal of cases for additional investigation ) ” .", "The relevant extracts from LAW provide as follows :", "“ While being held in police stations detainees are particularly exposed to the risk of being beaten or humiliated . ...", "The Commissioner has been underlining in each DATE report that law - enforcement officials systematically subject detainees to torture . ...", "The Commissioner has emphasised on numerous occasions that CARDINAL of the main reasons for violence by the police is the actual preservation of the rate of resolved crimes as a benchmark for performance reporting . The police achieve the required statistics of resolved crimes by torturing innocent persons . And the figures in support of this statement are dramatic . ...", "The following phenomenon was noted in the past and still remains in place . In order to verify whether a person is involved in a crime , he / she is placed under administrative arrest on falsified grounds and subjected to intensive torture with a view of breaking his / her will and extracting a confession to the crime . It is this period when the detainee is particularly exposed to serious risk of loss of life or becoming disabled or being subjected to unbearable humiliation and loss of dignity . ... ”", "The relevant extracts from the ORG to ORG on the visit to GPE carried out by the ORG from DATE [ ORG ( DATE ) CARDINAL ] read as follows :", "“ ...", "Since the ORG 's first visit to GPE , the treatment of persons deprived of their liberty by ORG staff has been a cause of very serious concern . The DATE visit revealed a slight reduction as regards the scale of the phenomenon of ill - treatment , although not sufficient to dispel the ORG 's misgivings . Indeed , in the course of the DATE visit , the ORG 's delegation received a significant number of allegations of deliberate physical ill - treatment of detainees [ ... ] inflicted by operational officers , in particular during initial questioning in district police stations with a view to securing confessions in respect of the criminal offence for which the persons in question were detained or additional confessions relating to unsolved crimes . [ ... ] In some cases , the severity of the ill - treatment alleged – which could also consist of a combination of several forms of ill - treatment – was such that it could be considered as amounting to torture .", "...", "In the light of the delegation 's findings , ORG has no alternative but to revert back to the conclusion it reached in paragraph CARDINAL of its DATE visit report . DATE , it has to be said that persons deprived of their liberty by ORG staff still run a significant risk of being subject to ill - treatment – on occasion , severe ill - treatment / torture – by operational officers , in particular during interrogation . ”" ]

[ "3", "5", "6" ]

[ "5-1", "5-2", "5-3", "5-4", "5-5", "6-1", "6-3" ]

[ "6-3-c" ]

[]

[]

[]

[ "ORG The first applicant , PERSON , is a NORP citizen born in DATE .", "On DATE , after a trial lasting DATE , he was convicted by a jury before ORG at GPE of an offence of burglary and sentenced to CARDINAL years’ imprisonment . In addition , on the same occasion he received CARDINAL sentences of imprisonment of DATE each , to run consecutively to the DATE sentence but otherwise concurrently ( giving a total sentence of DATE and DATE ) , in respect of CARDINAL charges of burglary to which he had pleaded guilty before the same ORG DATE . In deciding the appropriate sentences to impose , the judge also took into account CARDINAL other offences which Mr. PERSON had admitted to but which did not proceed to trial . At his trial , Mr. PERSON was represented by solicitors and counsel , under a legal aid order .", "ORG The counsel who had represented Mr. PERSON at the trial advised him in a written opinion dated DATE that \" no prospect whatsoever exists of appealing the conviction successfully \" . Counsel came to a similar conclusion regarding an appeal against sentence . In counsel ’s view , \" the offences were serious and the property unrecovered . He had a substantial criminal record and had served several prison sentences for offences of dishonesty . A further prison sentence was inevitable and the length of sentence passed was equally inevitable \" .", "Notwithstanding this advice , Mr. PERSON went ahead and lodged an application seeking leave to appeal against both conviction and sentence . His application was signed by him on DATE and received by ORG on DATE . The gravamen of his application was premised on his view that witnesses who should have been called in his defence were not called . In his application , he acknowledged that he had read ORG , which is given to every prisoner contemplating an appeal to ORG and which states :", "\" Advice on appeal", "Loss of Time", "...", "If you are thinking about an appeal you should get advice . Your solicitors and counsel at the trial are best able to give it . If they advise that there are grounds of appeal and these grounds are settled and signed by counsel ORG will know that you had reasons to apply . It is useless to apply without grounds , or to try to invent them if there are none . Reasons are required - not a form of words .", "So it is important to get advice . If you can not get it , and put in an application without it , you should say why ... before setting out your own grounds . You may , if you wish , ask ORG to help you to get advice . But if your solicitor or counsel has advised against an appeal the ORG will not give you another solicitor for that reason only .", "If you apply without real grounds you might lose by it . Your application may go first to a single Judge who might refuse it and direct that part of the time in custody after putting in the notice of application shall not count towards your sentence . If you then abandoned the application that time would be lost , but only that time . If , however , you renewed the application to a ORG they might direct that you lost more time . The result in either case is a later date of release . \"", "ORG Mr. PERSON , dissatisfied with the manner in which his defence had been conducted at his trial , dismissed his solicitors and , on DATE , instructed his present solicitors .", "In the meantime , ORG wrote to Mr. PERSON ’s former solicitors , informing them that he had applied for leave to appeal and asking them whether they had advised him in this connection . ORG also invited the solicitors to comment on the allegation made by Mr. PERSON in his application that a certain individual should have been called as a witness at his trial . In response , the solicitors forwarded a copy of counsel ’s adverse written advice and described their attempts to trace a large number of witnesses whom Mr. PERSON had initially intended to call in his defence . They explained that Mr. PERSON had later decided against calling most of the witnesses they had succeeded in tracing .", "The new solicitors sought legal aid in order , inter alia , to investigate the possibility of applying for a retrial because of additional evidence that could be obtained . Mr. PERSON also requested ORG to postpone the hearing of his application for leave to appeal pending the outcome of inquiries commenced by his new solicitors . A limited grant of legal aid was made .", "ORG Mr. PERSON ’s application for leave to appeal was considered by a single judge , Mr. Justice PERSON ( see paragraph CARDINAL below ) . The additional information obtained from Mr. PERSON ’s former solicitors was also put before Mr. Justice PERSON , together with the relevant court papers ( for example , witness statements , a social enquiry report and a psychiatric report ) . The judge allowed the request that the application be heard although it had been lodged out of time but refused leave to appeal and various ancillary applications made ( for legal aid , bail , leave to be present and leave to call witnesses ) . The judge gave the following written reasons , dated DATE , for his refusal :", "\" You were convicted by the jury upon ample evidence after a full and correct summing up by the judge . The many witnesses you now say you wish to call were not required to be called by you at your trial . There is no ground for interference with the verdict of the jury .", "The total sentence passed upon you was not excessive or wrong in principle . \"", "ORG On DATE , Mr. PERSON renewed all those elements of his application which had been refused by Mr. Justice PERSON . The Form SJ on which this application was made contained the following warning :", "\" LOSS OF TIME . A renewal to the ORG after refusal by the Judge may well result in a direction for the loss of time should the ORG come to the conclusion that there was no justification for the renewal . If the Judge has already directed that you lose time the ORG might direct that you lose more time . \"", "ORG A request to extend legal aid was refused at DATE . The solicitors therefore advised Mr. PERSON that they were unable to carry out any further investigations on his behalf , that the results of the investigations they had carried out were inconclusive and that , consequently , they were not in a position to advise him whether he should pursue his application for leave to appeal or not .", "ORG On DATE , the full ORG rejected the application in its entirety , finding the grounds of appeal to be \" wholly without foundation \" . In its judgment , delivered by Lord Justice PERSON , ORG stated :", "\" [ Mr . PERSON ] had no conceivable reason to approach this Court for leave to appeal against either conviction or sentence . His learned counsel , in a very careful opinion on conviction , said : ‘ In my opinion no prospect whatsoever exists of appealing the conviction PERSON , and further that in relation to sentence a further prison sentence was inevitable and the length of sentence passed was equally inevitable . When a person , in the light of advice of that kind and clearly without any ground whatsoever for challenging a conviction properly passed , wastes the time of the court by pressing on with his applications for leave to appeal as this applicant has done , it is right that the ORG should consider whether or not his time in prison should be extended . We have come to the conclusion that it should be . \"", "ORG therefore ordered that DATE spent by him in custody pending the hearing of his application should not count towards his sentence .", "ORG The second applicant , PERSON , is a NORP citizen born in DATE .", "On DATE , he appeared before the Reading ORG charged , with CARDINAL others , with conspiracy to supply heroin during DATE up to DATE . The trial terminated DATE , on DATE , when the jury returned verdicts of guilty in respect of Mr. PERSON and his co - accused . Mr. PERSON was sentenced to DATE imprisonment , his CARDINAL co - accused to DATE and CARDINAL months’ imprisonment respectively .", "ORG At his trial , Mr. PERSON was represented , under the legal aid scheme , by a solicitor and by counsel . Following his conviction , his counsel advised him against lodging an application for leave to appeal as , in counsel ’s opinion , ORG would be unlikely to interfere with the exercise of the trial judge ’s discretion to admit certain damaging evidence since the trial judge had applied the law correctly .", "ORG Mr. PERSON nevertheless drafted his own grounds of appeal against both conviction and sentence , which his solicitor then rendered into a \" more comprehensible form \" and had typed . The solicitor signed on Mr. PERSON behalf the acknowledgement of having read the Form AA on advice on appeal and loss of time ( see paragraph CARDINAL above ) . The application for leave to appeal was received by ORG on DATE . The principal ground advanced by Mr. PERSON for arguing that the conviction was unsafe was that damaging statements had been obtained from him under duress whilst he was suffering from withdrawal from drugs . His main contention in relation to his sentence was that it was unfair , having regard to his role in the conspiracy and to the sentences received by his co - defendants .", "On DATE , ORG sent Mr. PERSON and his solicitor copies of the short transcript of his trial . On DATE , he submitted further grounds in support of his appeal , including an unsigned , undated letter claimed by him to have been written by CARDINAL of his co - accused before the trial and purporting to clear him of any involvement in the offence of which he was subsequently convicted .", "ORG These documents , along with all other relevant papers , were put before a single judge , Mr. PERSON . On DATE , the single judge refused leave to appeal against conviction and sentence as well as the ancillary applications ( for legal aid and leave to be present ) . In the written decision sent to Mr. PERSON , the judge stated : \" there are no reasons to justify granting you leave to appeal \" .", "ORG Mr. PERSON nonetheless renewed his application for leave to appeal . The Form SJ he used for this purpose ( signed by him on DATE and received by ORG on DATE ) contained the same warning as given to Mr. PERSON ( see paragraph CARDINAL above ) .", "ORG On DATE , the full ORG , presided over by the Lord Chief Justice ( Lord PERSON ) , refused the application made by Mr. PERSON . The ORG first found that \" there are no possible grounds for giving leave to appeal against conviction \" . As to the issue of sentence , the ORG took the view that the trial judge had had ample opportunity to apportion the degree of moral responsibility between Mr. PERSON and his co - accused and hence to grade the sentence imposed on him . The ORG concluded : \" ... he must pay the penalty for renewing this hopeless application . He will lose DATE . \" Consequently , DATE of the period spent in custody by Mr. PERSON awaiting the outcome of his application for leave to appeal did not count towards service of his sentence .", "ORG Under LAW DATE , a person convicted of an offence on indictment ( as were both applicants ) may appeal to ORG against his conviction . Where the appeal is not on a question of law alone , leave of ORG must first be obtained , unless the trial judge has granted a certificate that the case is fit for appeal ( section CARDINAL(CARDINAL ) ) . A person convicted of an offence on indictment may also appeal to ORG against a sentence passed ( not being a sentence fixed by law ) , but such appeal is similarly subject to the leave of ORG ( sections CARDINAL and DATE ) . An application for leave to appeal , notice of which must be on the relevant form prescribed by LAW DATE , will normally be referred in the first place to a single judge ( sections DATE and CARDINAL(CARDINAL ) ) .", "ORG According to Rule CARDINAL(CARDINAL ) of ORG DATE , the single judge may sit in such place as he appoints and may sit otherwise than in open court . The principal purpose of the system of referring applications for leave to appeal first to a single judge is to identify those cases where the grounds of appeal are substantial and arguable .", "Where a single judge refuses an application for leave to appeal , the notification of the decision to the applicant will give the name of the judge and the reasons for the refusal . If an applicant wishes to pursue his application further , he must so notify ORG on the prescribed form within DATE of the date on which the notice of the refusal was served on him . In that event , his application will be determined , in open court , by the full ORG ( section ORG ) of LAW DATE ) . Leave to appeal will be granted if any CARDINAL member of ORG is of the view that it should be granted ( NORP v. ORG CARDINAL at CARDINAL ) .", "The single judge and the full ORG deal with an application for leave to appeal , and associated applications , in the light of all the case - papers and the grounds of appeal , but in the majority of cases without hearing oral argument . Nevertheless , an applicant for leave to appeal may always at private expense instruct counsel to appear and make oral submissions before both the single judge and ORG ) ) .", "ORG There is no absolute right to legal aid for representation during the procedure for consideration of an application for leave to appeal . The vast majority of defendants in criminal trials before ORG are legally aided . This aid extends up to receiving advice from counsel on the question whether there appear to be reasonable grounds of appeal and , if such grounds appear to exist , assistance in the preparation of an application for leave to appeal where such application is required ( LAW DATE , sections PERSON ) and CARDINAL ) ) . On the other hand , if trial counsel advises against an appeal , the trial legal aid order ceases , both for solicitors and counsel . ORG , the single judge and the full Court , however , have discretion to grant legal aid where an applicant for leave to appeal is unrepresented ; they may also do so , whether or not counsel settled the grounds of appeal , for the purposes of further advice and assistance or for oral argument before a single judge or ORG , sections CARDINAL ) and CARDINAL ) ; ORG ( General ) Regulations ( DATE ) , Regulation CARDINAL(CARDINAL ) ) . Where legal aid has been refused by a judge , the Registrar can not grant it unless the circumstances have changed ( ORG ( General ) Regulations DATE , LAW ) ) . In general , all would - be appellants have the opportunity of obtaining legal advice and assistance as to grounds of appeal and , if they can not pay for it themselves , it will be available under legal aid .", "ORG The presence of a person in custody before ORG when it is considering an application for leave to appeal is always subject to the leave of the ORG ( section CARDINAL(CARDINAL)(b ) of LAW DATE ) . In practice , leave for a person in custody to be present at the hearing of an application for leave to appeal will only be given in exceptional circumstances , and rarely where the application is being considered by a single judge .", "Grounds of appeal against conviction are limited . ORG does not re - hear the case on the facts . It may hear fresh evidence , although the mere fact that a convicted person says he wished that other evidence had been called at his trial is not enough . He has to demonstrate to the satisfaction of the ORG that fresh evidence which he seeks to adduce is credible and relevant to an issue in the case , and that there was a good reason why it was not called at the trial .", "In the proceedings for examination of an application for leave to appeal , no witnesses are called ; ORG , whether it be the single judge or ORG , will consider , firstly , whether the grounds as drafted are capable of constituting grounds for appeal and , secondly , whether they have any merit . If the grounds constitute legitimate grounds of appeal and are of some merit , then leave will be granted . But if the grounds , as drafted , are not legitimate grounds for appeal or do not merit further argument or consideration , leave will be refused .", "Any convicted person who chooses to take legal advice in relation to an appeal will have those basic principles explained to him . He will further be advised that counsel is not permitted to draft grounds which are unarguable .", "Under the terms of section ORG ) of LAW DATE , in determining an appeal the Court of Appeal shall \" so exercise their powers ... that , taking the case as a whole , the appellant is not more severely dealt with on appeal than he was dealt with by the court below \" .", "ORG Under LANGUAGE law , in cases in which there is no appeal , a convicted person starts to serve a sentence of imprisonment immediately it is imposed ; and , during any appeal proceedings , he ( or she ) is not regarded as being in detention on remand . The duration of any sentence must , however , be treated as reduced by the time spent prior to trial in custody on remand .", "Section CARDINAL(CARDINAL ) of LAW DATE further provides that the time during which an appellant is in custody pending the determination of his appeal ( including his application for leave to appeal ) \" shall , subject to any direction which ORG may make to the contrary , be reckoned as part of the term of any sentence to which he is for the time being subject \" . Where leave to appeal is granted ( see paragraph CARDINAL above ) , the ORG has no power to make such a direction ( section CARDINAL ) of the Act ) .", "However , ORG is not precluded from directing that any such time , or part of it , should not count towards an applicant ’s sentence when it refuses an application for leave to appeal . Although this did not occur in the present case , the power to make an order of this kind may also be exercised by a single judge ( section CARDINAL(CARDINAL)(h ) of the Act ) . Where such a direction is made , the reasons must be given and communicated to the applicant ( section CARDINAL ) of the Act ) .", "ORG Prior to DATE , the law had been that the time during which an unsuccessful application for leave to appeal was pursued was not in principle reckoned as part of the sentence but the applicant did not lose DATE unless ORG ordered otherwise . The ORG retained an overriding discretion to order that no time , or more or less time , should be lost in any particular case . In practice , the ORG rarely gave a special direction and the prisoner thus almost invariably lost DATE by operation of the relevant statute .", "The present rule was introduced in DATE - being re - enacted in section CARDINAL of LAW DATE - in implementation of recommendations made in DATE in a report prepared by an ORG on ORG Paper Cmnd DATE ) . ORG had suggested that the ORG should bring its mind to the question of loss of time instead , as had been the case , of operating an almost automatic rule to the disadvantage of the appellant . The ORG , in making its recommendations , recognised the dangers of weakening the barriers against unmeritorious applications for leave to appeal being made , but envisaged that the power retained by the ORG to penalise an applicant whose application was totally devoid of merit would act as a deterrent against a possible flood of hopeless applications .", "ORG Nonetheless , in DATE , the number of applications for leave to appeal had risen to CARDINAL and by DATE applications were being made at the rate of CARDINAL a month . As a matter of practice , it was almost unknown for a single judge to give directions for loss of time . On DATE , the Lord Chief Justice ( Lord PERSON ) issued a Practice Direction drawing attention to the fact that the sheer volume of applications was leading to unacceptable delays which could not be tolerated in respect of applications which had merit ( DATE All England Law Reports CARDINAL ) . He therefore announced that because facilities for advice on appeals were available to appellants , almost without exception , under the legal aid scheme , the single judge should have no reason to refrain from directing that time should be lost if he thought it right so to The stated aim of the exercise of the ORG ’s power in this manner was \" to enable prompt attention to be given to meritorious cases by deterring the unmeritorious applications which stand in their way \" . Within DATE the number of applications fell by MONEY to CARDINAL cases per month .", "ORG On DATE , the Lord Chief Justice ( Lord PERSON ) issued a further Practice Direction reminding those concerned of the power , both of the full Court and of the single judge , to order loss of time ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . This reminder had once more become necessary as \" meritorious appeals [ were ] suffering serious and increasing delays , due to the lodging of huge numbers of hopeless appeals \" .", "ORG According to the Government , the great majority of appeals are those where a convicted person is serving a sentence of imprisonment , and loss - of - time orders have in practice specified a maximum loss of DATE .", "During DATE , CARDINAL applications for leave to appeal were registered . Precise figures regarding the number of cases in which loss of time was ordered , and the amount of time ordered to be lost in such cases , are not available . However , from information held by ORG it appears that loss of time was ordered in respect of CARDINAL applications ( which figure includes orders made by both single judges and the full ORG ) ; that the loss of time ordered ranged from DATE ; and that in MONEY of these cases the loss of time ordered was for DATE ( this being the normal order ) or less . In DATE , DATE for which statistics were available , CARDINAL cases were dealt with in all . Single judges dealt with CARDINAL . The total number of cases listed in the full ORG was CARDINAL . Those cases consisted of renewals of applications to the ORG after refusal by the single judge , cases where leave to appeal had been granted and cases referred directly to the ORG . CARDINAL per cent of all applicants were in custody ." ]

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[ "14", "5", "6" ]

[ "5-1", "6-1", "6-3" ]

[ "6-3-c" ]

[ "The applicants , who were born in ORG , currently reside in GPE .", "The facts of the case are in dispute between the parties .", "On TIME and in TIME of CARDINAL DATE , the applicants heard gun fire coming from outside their village of GPE , located in the administrative jurisdiction of the LOC within the province of ORG . The firing continued until DATE a.m. Subsequently , soldiers entered the village and told all the villagers to gather at the village mosque .", "The applicants alleged that the following took place :", "On DATE the applicant was at home with his family . During the night he heard gun fire coming from outside the village . In TIME of CARDINAL May his son , PERSON , left to take the livestock out of the village . The soldiers stopped his son , checked his identity card and released him .", "When the soldiers entered the village , they ordered all the villagers to gather near the village mosque . They asked them whether there were any ORG members in the area and whether they had been giving them food . The villagers replied that ORG activities were frequent in the area . Thereafter , the soldiers started to burn the houses in the village . At that time , the applicant ’s son returned to the village and was taken away by the soldiers together with CARDINAL other villagers . The applicant , together with the remaining villagers , was sent away from the village . After DATE , they were allowed to go back to the village . When they came back , they saw that the village had been burned down . DATE , the applicant went to the ORG public prosecutor and to the military authorities to inquire into his son ’s whereabouts . However , he received no reply . On DATE , DATE after the incident , the corpses of CARDINAL persons , including PERSON , PERSON , ORG and PERSON , were found near the village . The corpse of the applicant ’s son was found QUANTITY away from the others . The body was taken to ORG and was subsequently buried in the ORG cemetery .", "The applicant and her family lived in the hamlet of GPE in the GPE village . On TIME DATE the applicant was at home with her family . At TIME they heard gun fire near their house . It continued until TIME In the morning of CARDINAL May , the applicant ’s brother in - law , PERSON , led the animals towards the GPE village . PERSON was DATE and he was of unsound mind . At the same time , the applicant and her children tried to leave the hamlet . However , they were not able to go very far as the area was surrounded by soldiers . From a distance , the applicant saw her house catch fire . On TIME CARDINAL May the applicant and her children stayed in the forest and saw smoke rising from the surrounding hamlets and villages . TIME of CARDINAL May , they headed towards ORG .", "On CARDINAL DATE the applicant heard from her neighbours that her brother - in - law , PERSON , had been arrested by the security forces near the GPE village together with CARDINAL other villagers . Upon receiving this information , the applicant attempted to search for PERSON . However , as the roads were blocked with panzer tanks , she could not go back there . When she returned to ORG , her children told her that ORG body had been found and identified by PERSON ’s brother , PERSON . According to PERSON , PERSON skull was completely shattered and there were CARDINAL bullet holes in his chest .", "The applicant went back to the village DATE and saw that her house had been burned down .", "The applicant and her children were in the village on TIME CARDINAL DATE . They heard gun fire throughout TIME . On DATE , at TIME , soldiers arrived in the village and told the villagers to gather around the mosque . The applicant and her children accordingly went to the mosque . The commander then ordered the soldiers to start burning the houses . The applicant ’s house was burned down along with others . Subsequently , all men who were DATE were ordered to leave the village together with a soldier . The applicant saw PERSON , ORG , PERSON and PERSON being taken away by a soldier . After some time , the applicant heard gun fire from the direction where the men had been taken , and she subsequently saw a couple of soldiers coming back to the village from that direction .", "The applicant was in the village of GPE on TIME CARDINAL DATE . In TIME of CARDINAL May at TIME , the village was surrounded by soldiers , who arrived in the village by vehicles , panzers and a helicopter . The villagers were ordered to gather around the mosque and they were interrogated about ORG activities . The soldiers then began burning down the houses . The village men who were DATE were asked to leave the village with the soldiers . Upon this order , the applicant ’s son PERSON , who was DATE , together with PERSON and ORG , were taken away by the soldiers . The applicant was sent to ORG with the remaining villagers . He tried to get information as to the whereabouts of his son . However , the soldiers did not allow him to look for him . After DATE , the applicant returned to the village . The following day , some villagers went to the ORG public prosecutor to obtain information about the missing villagers . The body of the applicant ’s son was subsequently found near the village together with the bodies of PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , ORG and PERSON . PERSON ’s body was found QUANTITY away from the other bodies . The applicant heard that there were CARDINAL bodies at the scene of incident . The body of the applicant ’s son was buried on DATE in ORG .", "The applicant lived in the village of GPE . When the firing stopped at TIME on CARDINAL DATE , the applicant fled from the village . While running away , she saw a helicopter land in the village . She saw smoke rising from the village . DATE when she returned to the village , she saw that her house had been burned down .", "The applicant and his family lived in a hamlet of the GPE village . On TIME DATE they heard gun fire . It continued until CARDINAL a.m. When the firing stopped , the applicant and his family tried to go to ORG . While they were passing near the GPE village , they were stopped by soldiers and the applicant ’s son , PERSON , was taken away by the soldiers . The applicant was able to witness smoke rising from the nearby villages and hamlets in the area . The applicant and the rest of the family members continued towards ORG and stayed there with relatives for DATE . On DATE the applicant was informed by some villagers that his son PERSON had been found dead together with CARDINAL other villagers , ORG , PERSON and PERSON . The applicant subsequently went to the ORG public prosecutor and the leader of the ORG and told them about the incident . However , they both responded that there was nothing they could do to help him . When the applicant received permission to collect his son ’s body , he went back to the village . He saw that the village had been burned . He subsequently found the corpse of his son behind some rocks . There were several bullet marks on the body . The applicant took his son ’s body to ORG and subsequently buried him in ORG .", "The Government denied the allegations submitted by the applicants . They informed the ORG that an armed clash had taken place on CARDINAL and CARDINAL DATE in the vicinity of the NORP village , also attached to LOC . According to the Government , CARDINAL soldiers had been killed during this incident .", "NORP In support of their submissions , the Government provided the full case file concerning the investigations into the killings of PERSON , PERSON , PERSON and ORG .", "On DATE the corpses of PERSON , PERSON and PERSON were found in the vicinity of the GPE village . These corpses were brought to ORG by the villagers . After the bodies were officially identified , post - mortem examinations were carried out on the bodies by a doctor together with the ORG public prosecutor . The doctor perceived that rigor mortis had set in and bruising had appeared on the body of PERSON . He noted the presence of", "a bullet entry hole under the right eye and a bullet exit hole measuring QUANTITY . in the occipital area , which had cracked the skull and caused heavy damage to the brain ;", "a bullet entry hole on the left side of the chest and an exit hole on the fourth vertebra , measuring QUANTITY , which had caused damage to the spine ;", "a bullet entry hole on the lower right side of the abdomen and a bullet exit hole , measuring QUANTITY . on the right side of the thigh ;", "a bullet entry hole on the front exterior side of the left arm and a bullet exit hole on the interior side of the left arm ;", "a bullet entry hole on the front part of the left arm and a bullet exit hole in the palm of the left hand ; and", "scars possibly caused by gunshot wounds on some parts of the body .", "No other signs were observed on the body . As the cause of death was found to be the destruction of the brain by gun shots , it was decided not to carry out a classical autopsy on the body .", "On DATE the villagers found the body of ORG near the village of GPE . The body was brought to ORG . Together with the ORG public prosecutor , the doctor conducted a post mortem examination . In the report , it was noted that rigor mortis had set in and bruising had appeared on the body . The doctor also found", "a bullet entry hole above the left eyebrow and a bullet exit hole in the occipital region measuring QUANTITY . , as a result of which the skull had been shattered and the brain heavily damaged ;", "CARDINAL adjacent bullet entry holes on the left side of the neck ;", "CARDINAL adjacent bullet exit holes on the right side of the neck , under the chin ;", "a bullet entry hole on the left leg and a bullet exit hole in the calf measuring CARDINAL x QUANTITY ;", "CARDINAL wounds , CARDINAL on the back of the right ankle measuring CARDINAL x QUANTITY . and another on the front part of the ankle measuring CARDINAL x QUANTITY , possibly caused by bullets ;", "a fractured tibia ; and", "a bullet entry hole on the right calf and a bullet exit hole above the right knee , causing a wound measuring QUANTITY . , which had damaged tissue and fractured the lower part of the femur .", "No other signs were observed on the body . As the cause of death was found to be the destruction of the brain by gun shots , it was decided not to carry out a classical autopsy on the body of ORG .", "On CARDINAL DATE the bodies of PERSON and PERSON were also found by the villagers near the mountains in the vicinity of the GPE village , and were brought to ORG . The body of PERSON was identified by his father PERSON and the body of PERSON was identified by his brother . The doctor conducted post - mortem examinations in the presence of ORG .", "In the report on the body of PERSON , it was noted that rigor mortis had set in and bruising had appeared on the body . The doctor also found", "a bullet entry hole in the chin , and a bullet exit hole , measuring CARDINAL x QUANTITY . which had caused heavy damage to the brain ; and", "CARDINAL bullet entry holes in the left collar bone area , the right collar bone area and the right side of the neck , and CARDINAL bullet exit holes , CARDINAL in the shoulder blade area and CARDINAL under the left underarm .", "No other signs were observed on the body .", "In the report on the body of PERSON , it was noted that rigor mortis had set in and bruising had appeared on the body . The doctor also found", "a bullet entry hole in the neck and a bullet exit hole above the right shoulder blade ;", "a bullet entry hole in between the shoulder blades , and a bullet exit hole in the front part of the right underarm , measuring QUANTITY ;", "a lateral wound measuring QUANTITY . in the femur area which had been caused by a sharp object ;", "a wound which had been caused by a sharp object , measuring CARDINAL x QUANTITY on the right biceps ;", "CARDINAL further wounds on the right arm , caused by a sharp object ;", "a bullet entry hole on the lower interior part of the left knee and a bullet exit hole on the exterior part of the knee , measuring CARDINAL x QUANTITY ;", "scars due to gun shots on the left leg ; and", "the right ear of the deceased was missing for unknown reasons given the DATE delay in the autopsy .", "As the doctor had found that both PERSON and PERSON had died from gunshot wounds , he did not deem it necessary to perform a classical autopsy on the bodies .", "The Government maintained that investigations were initiated to find the perpetrators of these killings . In this respect , they referred to the correspondence between the ORG public prosecutor and ORG . Copies of several letters , written by the prosecutor to the gendarme commander , asking the commander to conduct an investigation into the killings of PERSON , PERSON , PERSON and ORG were submitted to ORG . The gendarme commander also sent regular reports to the prosecutor indicating that it had not been possible to locate or identify the perpetrators .", "On DATE the ORG public prosecutor took statements from CARDINAL villagers , PERSON and PERSON , in connection with the killings of PERSON and PERSON . In his statement , PERSON explained that he did not know PERSON or PERSON but he had heard that someone from the GPE village had been abducted and killed in DATE . When interrogated about the killing of PERSON and PERSON , the second witness , PERSON , explained that he had known PERSON and PERSON . He also knew that these CARDINAL villagers were found dead . However he had no knowledge as to who might have killed them .", "On DATE the ORG public prosecutor concluded that it had not been possible to establish the identities of the perpetrators of the killings of PERSON , PERSON , PERSON and ORG . He accordingly decided to issue a continuous search warrant for the perpetrators of the killings , which would remain valid for DATE , the statutory time limit under LAW of LAW . The prosecutor also instructed the authorities to continue pursuing a meticulous search for the perpetrators .", "Subsequently on DATE , DATE , CARDINAL DATE , DATE , DATE and DATE , gendarme officers attached to ORG went to the GPE village for onsite inspections . In their respective reports , they stated that there was no new evidence concerning the incidents , and that the identities of the perpetrators could not have been established .", "In respect of relevant domestic legislation , the ORG refers to PERSON v. GPE ( judgment of DATE , Reports of ORG , ORG § DATE ) and PERSON and Others v. GPE ( judgment of DATE , Reports CARDINAL , § § CARDINAL ) ." ]

[ "13", "2" ]

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[ "13", "14", "18", "2", "3", "5" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE .", "The applicant ’s late father was a member of ORG ( LOC sosvet ) of the then GPE during the Second World War , appointed by the NORP government during its occupation of GPE .", "In DATE the applicant ’s father left GPE , but his family stayed there . From DATE he was based in GPE .", "On DATE ORG ( PERSON narodne časti – “ the ORG ” ) of GPE ( GPE republika GPE ) sentenced the applicant ’s father in absentia on the basis of the LAW on the Punishment for Crimes and Offences against ORG ( ORG o kaznovanju zločinov in prestopkov zoper slovensko narodno čast , enacted on DATE , ORG of ORG and ORG of GPE no . DATE “ the ASNH ” ) to “ loss of national honour for DATE , to light forced labour for DATE and to the confiscation of PERCENT of all of his property ” on account of his “ intentional political cooperation with the fascist occupier ” and the corresponding “ prejudice to the good reputation and honour of the NORP nation and its resistance ” .", "On DATE the applicant ’s father died .", "On DATE GPE became independent .", "On DATE the LAW of GPE ( “ the LAW ” ) entered into force .", "On DATE the Convention and on DATE Protocol No . CARDINAL to the Convention entered into force in respect of GPE .", "On DATE , relying on section CARDINAL of LAW , the applicant lodged a request for the protection of legality ( zahteva za varstvo zakonitosti ) with ORG sodišče ) against the ORG ’s judgment of DATE . The applicant requested that the judgment be quashed and the case be remitted to the first - instance court for re - examination owing to the violation of the applicant ’s father ’s defence rights .", "On DATE the applicant amended his request , arguing that his father had not acted against the interests of the nation . He attached copies of CARDINAL documents which he claimed that his father would have submitted in his defence had he had an opportunity to attend the trial .", "ORG later joined the proceedings in the applicant ’s case to the proceedings instituted by ORG , successors of PERSON , who had also been sentenced in the ORG ’s judgment of DATE .", "On DATE ORG dismissed the applicant ’s request and partly upheld PERSON ’s and S.B ’s request , with effect also for the applicant . By virtue of its decision , ORG quashed the penalty of confiscation of PERCENT of all of the applicant ’s father ’s property , owing to the lack of reasoning on that point . As to the applicant ’s fresh submissions of DATE , ORG found that they had been lodged out of time . As to the complaint concerning the trial in absentia , ORG held that it was not competent to deal with questions of fact and as a result could not consider the question whether the applicant ’s father had in fact been a fugitive . It added that the trial in absentia of his father would in any event have also been justified on the other grounds referred to in the ASNH , namely that he had been “ unavailable ” .", "Referring to ORG ( PERSON sodišče ) decision of DATE ( see “ Relevant domestic law ” below ) , ORG furthermore found that the ASNH did not have an unlawful retroactive effect . In the applicant ’s father ’s case , his conviction was based on sufficiently established facts , namely his membership of ORG and certain specific acts of political collaboration with the occupier . The relevant provision of the ASNH , which represented the basis for his conviction , was therefore not a lex incerta and had not been applied arbitrarily .", "On DATE the applicant lodged a constitutional appeal with ORG .", "On DATE the Constitutional Court found that it could only deal with the alleged violations relating to ORG judgment and that it had no jurisdiction to consider the complaints concerning the trial in DATE since it had taken place before the LAW had entered into force . As to the issue of lex certa , it referred to its previous decisions providing criteria for assessing laws enacted prior to the entry into force of LAW ( see “ Relevant domestic law ” below ) . It found that ORG , applying the above - mentioned criteria , had sufficiently and convincingly explained its decision . It concluded that the applicant ’s complaints were manifestly ill - founded .", "On DATE the ORG decision was served on the applicant .", "On DATE ORG ( U - I-CARDINAL/CARDINAL ) decided that the courts in GPE should not rely on the provisions of LAW DATE , which had established the jurisdiction of military courts at the material time , if they had been used , inter alia , to incriminate persons purely on the ground of their status and had not had regard to the particular acts of the accused . In the same decision ORG requested ORG to ensure that extraordinary remedies would be available in order to annul any unjust decisions delivered on the basis of legislation passed by the wartime and post - war revolutionary government .", "On DATE LAW ( Zakon o kazenskem postopku , Official Gazette no . CARDINAL ) was passed . It came into force on DATE .", "Section CARDINAL of LAW provides for the possibility to lodge a request for the protection of legality against decisions which had become final before the date of its entry into force . It states , in so far as relevant :", "“ ... the convicted person and persons referred to in subsection CARDINAL of section CARDINAL of the present Act [ among others also children of convicted persons ] shall be entitled , within DATE of the entry into force of the present Act , to lodge a request for the protection of legality against a judicial decision which became final before the entry into force of the present Act and against proceedings conducted before such final and binding decision was adopted . ”", "Section CARDINAL of LAW lays down the conditions under which a request for the protection of legality can be lodged :", "“ ( CARDINAL ) A request for the protection of legality against a final judicial decision and the judicial proceedings which preceded that decision may be submitted in the following cases :", "CARDINAL ) on the grounds of a violation of criminal law ;", "CARDINAL ) on the grounds of a fundamental violation of the rules of criminal procedure referred to in the first subsection of section CARDINAL of the present Act [ listing such procedural violations ] ;", "CARDINAL ) on the grounds of other violations of the rules of criminal procedure if such violations affected the lawfulness of a judicial decision .", "( CARDINAL ) A request for the protection of legality may not be lodged on the grounds of an erroneous or insufficient establishment of facts , or against a decision of ORG ... ”", "Furthermore , section CARDINAL of LAW provides :", "“ ORG shall by a judgment dismiss a request for the protection of legality as unfounded , if it establishes that the violation of the law alleged by the requesting party has not been committed or that the request for the protection of legality has been lodged on the grounds of an erroneous or insufficient establishment of facts . ”", "Lastly , section CARDINAL provides for the various decisions which may be adopted by ORG in well - founded cases :", "“ ( CARDINAL ) If ORG finds that a request for the protection of legality is well - founded it shall pass a judgment by which , depending on the nature of the violation , it shall : modify a final and binding decision ; or annul in whole or in part the decision of both the court of first instance and the higher court or the decision of the higher court only , and remit the case to the court of first instance or the higher court for a fresh decision or re - examination ; or it shall confine itself to establishing a breach of the law .", "... ”", "On DATE ORG , in decision no . U - I-CARDINAL/CARDINAL , considered the provisions of the ASNH . It found :", "“ [ CARDINAL provisions of the LAW on the Punishment for Crimes and Offences against ORG ... were in contradiction with the general principles of law recognised at the material time by civilised nations , in so far as they represented , because of their uncertainty , a basis for arbitrary use of the [ ORG . In such a case ... their use in the proceedings would be in contradiction with the LAW . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant 's employer went into liquidation on CARDINAL DATE . On DATE the applicant was dismissed from his job and he received MONEY ( MONEY ) in severance pay . The applicant 's further claims against his former employer were channelled into the ongoing liquidation procedure . Ultimately , the review bench of ORG awarded him ORG CARDINAL ( approximately EUR CARDINAL ) in compensation in DATE , which , as far as it can be determined from the case file , was never paid to him . Because of his abovementioned pending and registered claim ( hitelezői igény ) , he remained a “ creditor ” and , therefore , a party to the proceedings .", "On DATE the Baranya County Regional Court deleted the applicant 's former employer from ORG . In DATE ORG ordered the stay of the proceedings until the legal successor of the debtor joined the proceedings . The applicant appealed against this decision .", "NORP In DATE ORG quashed the order and remitted the case to ORG . In DATE ORG indentified the legal successor of the debtor and continued the liquidation proceedings which are still pending ." ]

[ "6" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant became a civil servant employed by ORG ( ORG , ORG ; henceforth “ the GPE ” ) where he worked until his retirement .", "On DATE the Trustees of the ORG ( pankkivaltuusto , bankfullmäktige ) amended the pension rules of the ORG so that men who had entered into the service of the ORG prior to CARDINAL DATE and who continued their employment until retirement were also granted an opportunity to lower their retirement age from DATE . For DATE the retirement age was lowered , the pension accrued prior to DATE was reduced by PERCENT . At its highest the early retirement reduction was PERCENT for DATE . Under the pension rules of CARDINAL DATE the retirement age for women who had entered the service of the ORG prior to CARDINAL DATE was DATE and no reductions applied to pension accrual .", "Prior to his retirement the applicant applied for a preliminary ruling on how his pension would be calculated . His application was rejected by ORG ( johtokunta , direktionen ) on DATE as giving such a decision was not considered particularly important to the applicant . On DATE the applicant was granted a pension , which was reduced by PERCENT for DATE prior to DATE on the ground that he had retired at DATE . The pension so calculated amounted to MONEY ( ORG ) per month .", "On DATE the applicant petitioned ORG , requesting rectification so that no reduction should apply when his pension was calculated . He also requested that the decision of CARDINAL DATE be overturned as it had been taken by a body which was not competent and was contrary to LAW now CARDINAL ) of LAW . He underlined that his petition was not to be interpreted as an appeal to ORG , ORG ) against the decision to grant him a pension . On DATE the ORG dismissed the applicant 's petition without examining the merits since it had no competence to review the lawfulness of the impugned decision and the issue could not be rectified .", "It appears that the applicant did not appeal to ORG against any of the decisions of DATE and DATE . However , he lodged an appeal with ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) against the decision of DATE . On DATE ORG rejected the appeal . It found that the decision by the Trustees of the ORG in DATE was not a decision that could be rectified . Therefore , and as there was no indication of partiality and as the NORP aspects relied on by the applicant were irrelevant for the outcome of the case , it found that there were no reasons to alter the finding of ORG .", "Having received the decision , the applicant requested a copy , inter alia , of the referendary 's written proposal to the judges . On DATE the referendary sent copies of the requested documents , save for the confidential parts of her proposal which under LAW , section CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalken ) formed part of the deliberations of the court . On DATE the applicant maintained that he had a right to receive a complete copy of the latter document and demanded that his request be transferred to the chancellery 's session for decision . On DATE the applicant 's request was rejected in the chancellery 's session as he had not shown that he needed the said part of the document which formed part of the court 's deliberations and which could therefore be produced only exceptionally .", "On DATE ORG dismissed the applicant 's request of DATE for the said document to be sent directly to ORG as such an application for documents fell outside the scope of the LAW on the Openness of Government Activities ( laki viranomaisten toiminnan julkisuudesta , lagen om offentlighet i myndigheternas verksamhet ) . The applicant 's subsequent request for copies of the proposals underlying these decisions was rejected as no written proposals had been drawn up . On DATE the applicant requested a fresh decision , arguing that the previous one was poorly reasoned . He also alleged partiality . ORG interpreted his petition as an extraordinary appeal , which it rejected on DATE as ill - founded .", "The applicant 's request for a copy of the proposal underlying the decision was granted on DATE save for those parts of the court 's deliberations which were to be kept secret under ORG ( laki oikeudenkäynnin julkisuudesta hallintotuomioistuimissa , lagen om offentlighet vid rättegång i förvaltningsdomstolar ; Act no . CARDINAL/CARDINAL ) . On DATE the applicant renewed his request , arguing that the contents might affect the proceedings before ORG . On DATE ORG rejected his request under the said LAW .", "The applicant was granted a separate old age pension as of DATE at DATE , amounting to ORG CARDINAL per month , from ORG Valtiokonttori , ORG ) due to his service in ORG during DATE . No reduction for the accrual prior to DATE was applied .", "The applicant petitioned the Chancellor of ORG ( oikeuskansleri , justitiekanslern ) and ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) . On DATE and CARDINAL DATE the Deputy Chancellor of ORG and the Deputy ORG respectively found no reason to take measures . On DATE the Deputy ORG found no reason to re - examine the case . On DATE the applicant was informed by ORG that his case would not be re - examined in the absence of new facts relevant to the case .", "In DATE the applicant petitioned ORG in order to obtain information for the proceedings before ORG . The Bank produced certain information such as the names of employees affected by the DATE amendment . However , it refused to produce information about their retirement age , their addresses , telephone numbers , bank account details and so on . It is not known whether the applicant appealed to ORG .", "Meanwhile , on DATE ORG granted PERSON a pension and applied , in accordance with its practice , the early retirement reduction as described above . On DATE ORG dismissed the applicant 's appeal against the ORG 's decision in the case of PERSON without considering its merits as the decision did not directly affect him . In any event , an appeal against a pension decision lay with ORG , not ORG . On DATE ORG ( decision no . CARDINAL ) rejected PERSON arguments that the early retirement reduction was discriminatory and in breach of LAW and LAW . However , it amended the pension decision by granting PERSON a pension right amounting to PERCENT on the ground that he fulfilled the so - called pension guarantee requirement as he had completed DATE of service . ORG has ruled in a similar case also on DATE in the case of Mr PERSON", "Meanwhile , following the judgment of DATE by ORG in the case of PERSON in which it was found that the fact that the applicant 's pensionable age was set higher than that of men doing the same work was in breach of the principle of equal pay laid down by LAW , ORG reached the same conclusion in its decision concerning ORG on DATE . The person concerned was a former employee of the NORP military service .", "LAW NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL ) provides that :", "“ No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . ”", "LAW provides that the property of everyone is protected .", "Section CARDINAL of the Act on Equality between Women and Men ( laki naisten ja miesten välisestä tasa - arvosta , lagen om jämställdhet mellan kvinnor och män ; Act no . DATE ) prohibits both direct and indirect discrimination based on gender . According to its section CARDINAL , subsection CARDINAL , direct discrimination means , inter alia , putting women or men in an unequal position on the basis of gender . LAW , subsection CARDINAL , point CARDINAL of the same LAW provides that :", "“ An employer 's conduct constitutes discrimination prohibited under LAW if the employer applies the pay or other terms of employment in such a way that CARDINAL or more employees , because of their gender , find themselves in a less favourable position than CARDINAL or more other employees performing the same work or work of equal value in the employer 's service . ”", "LAW on ORG ( laki PERSON , lagen om ORG ; Act no . CARDINAL ) provides , inter alia , that :", "“ The Trustees of the ORG shall confirm ORG and issue regulations concerning the management of the ORG 's pension liability , upon proposal of the ORG . ”", "The LAW does not provide any means to appeal against the decisions of the Trustees of the ORG .", "Section CARDINAL of the LAW on Officials of ORG ( laki PERSON virkamiehistä , lagen om ORG tjänstemän ; Act no . DATE ) provides the following :", "“ ORG shall treat all officials in its service equally to ensure that no - one is unjustifiably treated differently because of his origin , citizenship , gender , religion , age , political or union activities , or on other comparable bases .", "ORG shall not forbid an official to join or belong to an association or pressure him to join a particular association , nor forbid him to resign from such . ”", "Section CARDINAL , subsections CARDINAL , of the same LAW provide the following :", "“ An official who considers that ORG has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to ORG . No request for rectification can be made in a matter that falls within the jurisdiction of ORG , unless ORG has decided not to settle the matter under section CARDINAL , subsection CARDINAL , of the LAW on ORG ( CARDINAL/CARDINAL ) .", "Rectification of a decision by which ORG has issued an official with a warning , laid him off or given him notice , cancelled the service relationship , suspended him from office or decided on a matter concerning his pension contribution or secondary occupation , as well as a decision referred to in paragraph CARDINAL on a request for rectification referred to in paragraph CARDINAL can be requested by appealing to ORG in accordance with the provisions of ORG ( ORG ) . A matter referred to in this paragraph shall be treated as urgent by ORG .", "Decisions of the ORG concerning pension can be appealed against to ORG . Otherwise , as regards a request for rectification on pension , the applicable provisions of the Act on State Pensions ( CARDINAL/CARDINAL ) shall apply .", "Section CARDINAL , subsection CARDINAL , of the same LAW provides that", "“ [ t]he right of an employee of ORG to a pension paid from the ORG 's funds is determined , to the extent applicable , on the same grounds as state pension cover . State pension cover refers to the right to pensions , survivors ' pensions and other benefits which are payable from the state 's funds and the content of and eligibility for which are regulated by LAW and the related legislation . Pensions and survivors ' pensions are granted by ORG . ”", "More detailed provisions on the payment of pensions and survivors ' pensions and pension cover in other respects are contained in ORG ( NORP pankin eläke- ja perhe - eläkesäännöt ; pensionsstadgan och familjepensionsstadgan för ORG ) . The Trustees of ORG , elected by the ORG , adopt the ORG on the basis of ORG proposals .", "Section CARDINAL , subsection CARDINAL , of LAW with its earlier wording , as amended on DATE , read as follows :", "\" Eligibility for old age pension requires that the beneficiary has completed his or her service and reached DATE , or DATE if the beneficiary , immediately before retirement , has been serving ORG or its ORG for DATE , and DATE in the case of a female employee . A beneficiary who retires as a member of the ORG is entitled to old age pension irrespective of age . ”", "The lower retirement DATE for women was applied until DATE , when the amendment of LAW , subsection CARDINAL , of ORG entered into force . With this amendment the retirement age of women was raised from DATE but the retirement age of men remained unchanged , that is , DATE . The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the ORG began on DATE or thereafter .", "For the equalisation of the retirement ages , men were granted the right to opt for a lower retirement age . On DATE the Trustees of the ORG amended the entry into force provision of LAW in the following manner :", "\" However , as of DATE , the earlier provision is applicable both to women who have entered service in the ORG prior to CARDINAL DATE and to men who have entered service in the ORG before that date .", "The beneficiary has the right to choose between the lower retirement age , based on the earlier provision , or the higher retirement age . If a man chooses the lower retirement age , the amount of his pension accrued on the basis of the duration of his service is , in respect of the service prior to DATE , reduced by CARDINAL percentage units per month of earlier retirement . \"" ]

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[ "The applicant was born in DATE and is presently serving a prison sentence in ORG .", "On DATE ORG ( PERSON ) convicted the applicant of fraud and sentenced her to DATE imprisonment . The court also ordered her to pay CARDINAL NORP kunas ( HRK ) in damages to the injured party . The first - instance judgment was upheld by ORG PERSON u GPE ) on DATE .", "The applicant served the sentence in ORG from DATE until DATE , when she was conditionally released . Her conditional release expired on DATE .", "On DATE ORG ( PERSON ) convicted the applicant on CARDINAL counts of fraud , sentenced her to DATE imprisonment and confiscated HRK CARDINAL from her , which it attributed to the proceeds from her criminal activity . The court also ordered her to pay HRK CARDINAL in damages to various injured parties . The sixth count of the applicant 's conviction was identical to the offence for which the applicant had been sentenced by ORG on DATE . The judgment was upheld on DATE by ORG ( Županijski sud u GPE ) , sitting as an appellate court .", "On DATE the applicant started to serve her sentence .", "On DATE the applicant lodged an application for a retrial , claiming that she had been sentenced twice for the same offence . On DATE ORG granted the application . On DATE ORG acquitted the applicant on the charge of fraud in respect of which she had already been convicted by ORG and upheld her other convictions of CARDINAL DATE the court sentenced her to DATE imprisonment and confiscated HRK CARDINAL from her on account of her criminal activity .", "The medical documentation submitted by the applicant shows that since DATE she has been suffering from chronic hepatitis ( Hepatitis C ) with a very high level of viremia ( presence of viruses in the blood ) . She has unsuccessfully undergone interferon treatment . Due to the effects of that disease her liver is damaged and her general health condition is very bad . People with hepatitis C usually suffer from constant exhaustion ; pain in the abdomen , joints and muscles ; general sickness and weakness ; and often depression . A low - fat diet is required in order to reduce liver damage . The disease is potentially fatal . On an unspecified date the applicant also contracted hepatitis A. In addition to that , she suffers from endometriosis .", "During her first stay in ORG , from DATE , the applicant was put on a low - calorie diet as a punishment for her attempts to complain about the conditions in the prison . She was first given the job of handling dissolvent without any protection and later made to work full time on shovelling pebbles . As a consequence , she collapsed and was transferred to the prison hospital ( GPE lišene slobode , hereafter “ the hospital ” ) where she spent DATE . She was transferred in a van , accompanied by a driver , a nurse and a policewoman . The transfer took TIME and they had several coffee breaks and a lunch break , during which they left the applicant in a closed van , without food or water and with the windows shut .", "In the hospital the applicant shared a hospital room with CARDINAL other inmates , most of whom were suffering from various mental disorders or epilepsy . The room had no sanitary facilities . The common sanitary facilities were shared by male and female inmates of the same floor . There were QUANTITY female and CARDINAL male inmates on the applicant 's floor . Access to toilets was allowed only in the company of a prison warden . The prison wardens were all male . Requests to be accompanied to the toilet were often ignored for prolonged periods of time . There was no access to the toilet during TIME and the inmates had to use a common chamber pot ( CARDINAL for CARDINAL inmates ) . The rooms were unlocked for TIME when the inmates were allowed to go out into the corridor , take a shower or wash their clothes . If an inmate urinated or threw up in the room , it had to be cleaned by the other inmates .", "After her return to ORG , the applicant was again given the job of handling dissolvent , without any protection . After she had collapsed again , she was assigned another job .", "The applicant was discharged on DATE . Her conditional release expired on DATE .", "Following a fresh criminal conviction , on DATE the applicant was taken by police to ORG ( NORP za psihosocijalnu dijagnostku ORG ) , a detention centre in GPE , where she stayed for DATE .", "According to the applicant , she had not been allowed to write to the ORG . The prison authorities had repeatedly questioned her as to what she had written to the ORG about her previous stay in ORG and the hospital . After she had refused to reply she had been transferred to ORG and placed in the high - security unit where she had been ever since .", "Požega Penitentiary consisted of CARDINAL buildings that were old and in a bad state of repair . The walls were damp , windows broken and the heating facilities old and insufficient . As a result , it was often very cold in the cells and in the other prison areas . On DATE the water leaked through the roof into the bedrooms . The sewage and water installations often broke down and when this happened the inmates were deprived of running water for DATE .", "Požega Penitentiary was divided into CARDINAL sections : an open section with the lowest security regime , a semi - open section with a medium security regime and a closed section with the highest security regime . The applicant had been assigned to the latter one . She had been put in a cell measuring QUANTITY with CARDINAL other inmates . The beds were old and partly broken , and the mattresses were torn and soiled . There were CARDINAL toilets on average for CARDINAL inmates . The inmates were not allowed to use the toilets at TIME . The applicant had been put in the same cell as an inmate who took heavy sedatives and therefore soiled her bed almost every night , which created an unbearable smell in the cell . The penitentiary lacked sufficient sanitary facilities , so inmates were occasionally sent to take showers in the basement . The showers there were mouldy and there were often mice , cockroaches , rats and cats running around . The inmates were not allowed to wash their civilian clothes in the penitentiary laundry room but had to wash them by hand and dry them in a very small room , which created an unbearable smell .", "Before every meal the inmates were lined up in the courtyard where , regardless of the weather conditions and often for a prolonged period of time , they waited to be allowed access to the canteen . The applicant found it increasingly difficult to bear such line - ups on account of her illness .", "Inmates were made to work TIME . From CARDINAL May to CARDINAL DATE the applicant had not worked because of her health condition , but later on she had volunteered to work in order to earn at least some money to buy vitamins and some food . The applicant earned between HRK CARDINAL and CARDINAL per month , HRK CARDINAL of which she was obliged to save . She worked as a seamstress . She was allowed TIME rest in her bed per day . The bedrooms were locked for the rest of DATE . If she needed more rest she had to seek the doctor 's permission each time . The applicant found it almost unbearable not to be able to stay in her bed for longer periods during DATE since she suffered from tiredness associated with hepatitis C.", "Although a low - fat diet for her liver disease had been prescribed , the applicant was served food cooked in pig fat . In general the food served to the inmates was insufficient and of poor quality . The bread was often stale and the food had often gone off . Breakfast often consisted of a spoon of bare pig fat .", "She had seen a doctor once , on DATE . The medical documentation stated only that the test for hepatitis C was positive and that her viremia was CARDINAL units / ml of serum . Apart from that , the applicant had not been sent for any other medical check - ups despite having a serious disease which required regular tests and check - ups . Since her arrival at ORG the applicant had not been seen by a hepatologist . She stated that she had not asked to be sent to the prison hospital because the conditions there were even worse than in Požega Penitentiary .", "All letters sent and received by the inmates were subject to censorship . On several occasions the applicant was told to shorten her letters addressed to her family and not to write about the conditions in the prison . Mail was received with DATE delay . Mail sent without a request for acknowledgment of receipt often did not reach its destination at all . The inmates had to bear all the postage costs . All telephone calls were screened . The inmates apparently had to bear the costs of the telephone calls they made . The applicant stated that she had not been informed that she was entitled to any visits .", "According to the Government , the penitentiary had been built in DATE and had been adapted to the life and accommodation of inmates so as to comply with the conditions set out in the relevant legislation . It was able to accommodate CARDINAL inmates , yet on DATE there had been DATE inmates . Each section comprised bedrooms , sanitary LOC , a living room , a tea - kitchen , a smoking area , an area for leisure activities , a library with computer equipment and LOC for religious worship . The inmates were allowed to use the toilet and other sanitary facilities at any time and for an unlimited period . Each living room was equipped with a television set and a DVD or video recorder . Inmates were allowed to watch television until TIME on DATE and until TIME on DATE and DATE .", "As to the applicant 's personal circumstances , the ORG submitted that after her initial DATE stay at ORG , she had been placed in the high - security unit and assigned to a non - working group on account of her health condition . The applicant had been qualified as having minor adaptability problems as most of the time she had been without any obvious occupation , just listening to music . Occasionally she had got into arguments with other inmates . She had lacked the motivation for more active participation in her individual programme , remaining passive and inert , with no insight into her own behaviour and uncritical in respect of her criminal conviction . However , with time the applicant 's attitude had altered for the better . She had expressed a higher level of motivation for completing her DATE duties and had satisfactorily participated in her counselling sessions , distancing herself from negative events in the section , and concentrating on herself . She had also expressed a wish to work and , as of DATE , had been working in the laundry service where she had been given less demanding tasks .", "As of DATE the applicant had been labelled “ successful ” , which had resulted in her removal to a semi - open section from DATE . Ever since then she had benefited from the following privileges : unsupervised use of telephone in her free time ; unlimited correspondence at her own expense ; the right to receive a package once a DATE and during public holidays ; an additional package once DATE ; the right to supervised TIME visits twice a DATE and during public holidays ; and an unsupervised TIME DATE visit .", "As to the medical care provided to the applicant , they submitted that CARDINAL doctor and CARDINAL nurses were employed in the penitentiary . During her second stay in the penitentiary the applicant had been allowed to stop work until she herself had asked to work again . She was also prescribed a liver and vitamin diet and offered fresh cheese and dairy products . On DATE she underwent a qualitative and quantitative test for chronic hepatitis virus and was informed of the results . Since CARDINAL DATE she had seen the prison doctor on CARDINAL occasions .", "As to the applicant 's right to respect for her correspondence , they submitted that she had been able to send and receive letters at her own expense without any limitation . During her stay in the high - security section she had had to hand over her letters DATE opened – while the letters addressed to a legal representative , ORG authorities and international organisations for the protection of human rights had to be handed over sealed . Packages could be sent DATE .", "It appears that the applicant complained to the prison authorities , ORG and the President of GPE . She did not submit copies of the letters she had sent to these authorities , stating that she had not made any . However , she submitted a letter of CARDINAL DATE sent to her by ORG , ORG , the relevant part of which read as follows :", "“ ORG , ORG , has received your complaint of CARDINAL DATE in which you expressed your dissatisfaction with the accommodation arrangements with other inmates , the approach of the prison officials , the health care and the manner of using your free time . ”", "The applicant 's complaints were declared unfounded .", "Furthermore , the ORG submitted a complaint lodged by the applicant in a letter of CARDINAL DATE , lodged with ORG judge responsible for the execution of sentences PERSON u GPE ) , alleging , inter alia , that she suffered from chronic hepatitis and that , on account of her illness , she was not able to comply with the prison regime . Although the judge held an interview with the applicant on DATE , he did not adopt a formal decision on her complaints . The interview and subsequent action had concentrated solely on giving advice to the applicant about applying for a retrial ( see paragraph CARDINAL above ) .", "Article CARDINAL of LAW ( Ustav PERSON ) provides :", "“ No one shall be subjected to any form of ill - treatment ... ”", "ORG o izvršavanju kazne zatvora , Official Gazette no . CARDINAL of DATE , and no . CARDINAL of DATE ( consolidated text ) - “ the LAW ” ) came into force on DATE , and the provisions concerning the judge responsible for the execution of sentences came into force DATE , on DATE . The relevant provisions of the Act read as follows :", "“ ( CARDINAL ) Inmates shall have the right to complain about an act or decision of a prison employee .", "( CARDINAL ) Complaints shall be lodged orally or in writing with a prison governor , a judge responsible for the execution of sentences or ORG . Written complaints addressed to a judge responsible for the execution of sentences or ORG shall be submitted in an envelope which the prison authorities may not open ... ”", "“ ( CARDINAL ) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him , or limiting him in , any of the rights guaranteed by LAW .", "( CARDINAL ) NORP for judicial protection shall be decided by the judge responsible for the execution of sentences . ”", "“ ( CARDINAL ) The accommodation of inmates shall meet the required standards in terms of health , hygiene and space , including climatic conditions .", "( CARDINAL ) ORG shall as a general rule be accommodated in separate rooms ...", "( CARDINAL ) ORG rooms shall be clean , dry and of adequate size . Each inmate shall have QUANTITY and QUANTITY of space in the room .", "( CARDINAL ) Every room ... must have daylight and artificial light ...", "( CARDINAL ) ORG and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions , whenever they wish to do so .", "( CARDINAL ) ORG shall have drinking water at their disposal at all times . ”", "“ CARDINAL . The penitentiary or prison shall supply the inmates with underwear , clothes and bed linen appropriate to the climatic conditions . ”", "“ CARDINAL . Inmates shall be served CARDINAL meals DATE with a caloric value of QUANTITY per day . The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person . ”", "“ ( CARDINAL ) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ”", "“ ( CARDINAL ) Inmates shall have the right to unlimited correspondence at their own expense .", "...", "( CARDINAL ) Inmates shall have the right to correspond with their lawyer , the ORG authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters ... ”", "The relevant part of the ORG on the Minister of ORG 's visit to ORG on DATE , published on ORG official internet page , reads as follows :", "“ ... Minister of ORG was informed about the situation in the Požega Penitentiary by its director PERSON . ' Our needs are fairly high as the roof , outer walls and installations are in need of repair as well as the other things , for which we would need CARDINAL kunas ' said PERSON . ”", "The relevant part of ORG on ORG , Penitentiaries and Correctional Institutions in DATE submitted to ORG on DATE ( NORP o stanju i PERSON , zatvora i odgojnih zavoda za DATE . ORG , koji je predsjedniku PERSON sabora dostavila PERSON , aktom od CARDINAL . DATE . godine ) reads as follows :", "“ ... state of repair of the buildings of FAC and ORG is highly unsatisfactory as regards the mains installations ( gas , water , electricity , canalisation / sewage ) , construction of buildings ( unsafe static , woodwork falling apart , the state of repair of the roof ) ... ”" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the ORG by PERSON PERSON , her husband . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant received dental treatment during which she suffered a cerebral haemorrhage . According to her , the dentist did not provide her with the necessary medical help .", "On an unspecified date the applicant lodged a complaint against the dentist with ORG . On DATE the ORG ( oblastní stomatologická komora ) filed a criminal complaint against the dentist .", "On DATE the applicant joined the proceedings as a civil party , when her husband was heard by police officers and expressed , on behalf of his wife , a wish to join the proceedings .", "On DATE the dentist was formally indicted for failure to provide medical assistance . On CARDINAL DATE his lawyer informed ORG ( okresní soud ) about a possible friendly settlement of the case . On DATE ORG conditionally stayed the criminal proceedings for DATE , ordering the dentist to pay CZK CARDINAL ( ORG CARDINAL ) to the applicant . According to the Government , the dentist paid the sum requested .", "In a judgment of DATE ORG acquitted the dentist and instructed the applicant that she may claim damages in civil proceedings .", "On DATE the ORG Králové ORG ( krajský soud ) dismissed the appeals of the prosecutor and the applicant . This decision was apparently the last domestic decision taken in these proceedings .", "On CARDINAL DATE the applicant filed with ORG an action in which she claimed compensation from the dentist for alleged malpractice .", "On DATE ORG dismissed the applicant ’s action . According to the Government , the proceedings have not yet been meritoriously terminated .", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) ." ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "The first applicant is a person divested of legal capacity owing to his mental and physical retardation . He goes to a workshop for adults at the LANGUAGE primary school in GPE for TIME a week . He is taken care of by his mother , the second applicant . The medical documentation of DATE submitted in respect of the first applicant describes his health as follows :", "“ ... in his very early childhood he suffered from purulent meningitis , which resulted in permanent consequences and epilepsy . He is retarded in his mental and physical development and is under the constant supervision of a neurologist and psychiatrist . Owing to hydrocephalus he has had a Pudenz valve [ a type of cerebrospinal fluid shunt ] implanted . ... his eyesight is very poor ... and he is dependent on his mother as regards feeding , dressing , personal hygiene and moving about . His spine is mobile but painful in the lower region . ... he suffers from severe foot deformation , ... has difficulty walking ; walking on his toes and heels is not possible . Mentally he is emotionally distant , fearful and he has a poor vocabulary . ... ”", "The applicants live in a ground - floor flat in a block of flats in ORG , a part of GPE . The PERSON primary school is nearby in their neighbourhood .", "It appears that the applicants were subjected to harassment DATE and DATE . They alleged that pupils from the PERSON primary school , all minors , frequently harassed them , and in particular the first applicant , at all times of DATE , especially when the pupils returned home from school in groups and in TIME when they gathered without parental supervision on and around a wooden bench in front of the balcony of the applicants’ flat . The harassment , in their submission , was motivated by the first applicant ’s health and both NORP origin . A larger group of children , also minors , came DATE to a park in front of the applicants’ flat , shouted obscenities at the first applicant , called him names and wrote insulting messages on the pavement . The children often rang the applicants’ bell , asking when the first applicant was going out . They often spat at him .", "A police report of DATE shows that the second applicant called the police at TIME and complained that unknown young persons were harassing her son and had smashed some objects on her balcony . The police arrived at the applicants’ home at TIME and the second applicant told them that at TIME she and the first applicant had left the flat and that when they had returned at TIME she had found the balcony ruined and all the flower beds torn up . She also told the police that the first applicant had been harassed for a longer period of time by children in the neighbourhood on account of his mental retardation . She named CARDINAL of the children .", "On DATE ORG ordered the supervision of the parental care of GPE , a pupil at PERSON primary school , on account of his poor school results , problematic behaviour and tendency to commit criminal offences . There was no mention of his involvement in the harassment of the applicants .", "A medical report drawn up on DATE shows that the first applicant had been psychologically and physically harassed in the street and that he had cigarette burns on both hands . The doctor asked the social authorities to institute proceedings for the protection of the first applicant as a person with serious mental disorders and described him as a peaceful and benign person who could not and did not know how to defend himself from the abusers .", "NORP In a letter of DATE to the ORG , the second applicant complained that on DATE CARDINAL children , GPE and GPE , had harassed the first applicant . She alleged that while riding their bicycles they had approached the first applicant and burned his hands with cigarettes . She also complained that the first applicant had been continually harassed by children attending a nearby school on the basis of his mental retardation and added that she had on numerous occasions complained to ORG and the authorities of the PERSON primary school , but to no avail .", "On DATE the applicants’ lawyer complained to the police about the incident of DATE .", "A police report of CARDINAL DATE records that on DATE on the premises of FAC the police interviewed GPE , born in DATE , and PERSON , born in DATE . The relevant part of the report in respect of PERSON reads :", "“ When asked whether he remembers the event of DATE in ... GPE , [ GPE ] said that at TIME he was there with his friend PERSON , who is in the seventh grade at ORG , and that PERSON , an older boy from the seventh grade of the same school , arrived together with CARDINAL men , unknown to him , who were playing with a ball . A person who is disabled and has had problems from birth and who lives in a block of flats in ... Street was playing between the buildings . At CARDINAL point , ORG lit a cigarette , approached PERSON and burned his right hand several times , after which they all ran away because that person started to shout . ”", "The relevant part of the report in respect of PERSON reads :", "“ When asked whether he remembers the event of DATE in ... GPE , concerning the harassment of a disabled person , PERSON , [ ORG ] says that he was not present on that occasion but that at DATE during the TIME break he had met GPE , who is in the fifth grade at the same school and who told him that he [ GPE ] and GPE at TIME had burned with a cigarette the hand of a person named PERSON in ... Street who lives on that street and is disabled .", "When asked a further question as to whether he knew what that person looks like , he answered that he used to go to play on that street with other boys from the neighbourhood and he saw that person , who is CARDINAL , strongly built , has short salt - and - pepper hair and a pale complexion and has difficulty speaking . That person plays with other children who tease him and he runs after them and beats them . ”", "A police report of CARDINAL DATE records that on DATE on the premises of FAC the police interviewed GPE , born in DATE . The relevant part of the report reads :", "“ When asked whether he remembers the event of DATE in ... GPE , concerning the harassment of a disabled person , PERSON , DATE , [ GPE ] said that he remembered that occasion , that it was a DATE ... and that he took his bicycle and went ... with GPE to ... Street , where they saw PERSON , a person disabled from birth , between the buildings , playing with a ball with some children who took the ball and did not want to return it to him . When he saw this , he [ GPE ] asked the children why they did not give the ball back to PERSON , and PERSON started to shout and wave his hands . The children then threw the ball and he took it . He [ GPE ] was holding a cigarette in his left hand ... and as he was passing PERSON on his bicycle he [ PERSON ] started to wave his hands and slapped him a few times on the hand in which he was holding the cigarette and thus PERSON burned his hand . He was sure that he burned PERSON only once and he was sorry for it . He did not understand why PERSON reacted in such a manner because it was not his [ GPE ’s ] fault that some children took his ball . The pupil PERSON was not with them .", "...", "When asked a further question as to whether PERSON had problems with other children , [ GPE ] answered that he is often on that street where PERSON plays ball with other boys and that these children tease PERSON because of his illness ... and then he runs after them and catches them .", "In the end [ GPE ’s ] mother PERSON was advised to keep an eye on GPE ’s behaviour . She said that she had no problems with him and she did not know why he had done this . ”", "On DATE the II FAC sent a report to the GPE State Attorney ’s ORG stating that", "– on DATE they had received a letter from ORG stating that it had received a letter from the second applicant in which she had alleged that her son had been ill - treated by GPE and others and enclosed medical documentation ; and", "– on DATE they had received a letter from the ORG stating that she had also received a letter from the second applicant who was seeking help in connection with the frequent harassment of the first applicant .", "The police also informed the GPE State Attorney ’s ORG about the interviews they had conducted with the children GPE , GPE and ORG", "In a letter of CARDINAL DATE the II FAC informed the ORG that they had interviewed the children GPE and GPE , that they had contacted the headmaster of PERSON primary school , that the police officers from the station had been informed about the problems and that they had regularly patrolled the streets in question .", "On DATE the police informed ORG that they had established that on DATE at TIME the first applicant had been playing with a ball in the street with some boys from the neighbourhood who had taken his ball away , which had upset him . When the boys GPE and GPE had gone past the first applicant he had waved his hands and GPE had unintentionally burned them .", "On DATE ORG drew up a report on the first applicant . The relevant part of the report reads :", "“ ...", "On DATE [ the first applicant ’s ] mother , PERSON , complained to us about harassment of PERSON , alleging that the children ... were visiting the girls PERSON and PERSON , who lived in their block of flats . The PERSON girls said that they had not harassed PERSON and that the leader of the group had been PERSON", "An agreement has been reached with the PERSON girls and their mother , GPE , that the girls will stop hanging around in front of the block of flats and will find another place to do so in order to avoid conflicts .", "H. and her parents were summoned to this office . H. said that she would no longer hang around in front of that block of flats and that there had been peace for a time .", "After that the boys started to come , in different groups , so that PERSON could not tell their names , but she knew that they attended PERSON primary school .", "PERSON again complained of harassment on DATE , when PERSON had been burned with cigarettes and [ she said that ] the harassment had continued .", "On DATE an interview with PERSON was carried out . [ She said ] that the problems had continued . There were constantly new children who provoked PERSON , mostly acquainted with the PERSON girls . There would be peace for DATE and then the problems would start again . She had good relations with the school counsellor , the defectologist and the headmaster .", "PERSON stated : ‘ On DATE first the girls came and stood next to the bench . PERSON told PERSON to come inside because she knew how afraid he was of them . They said that he did not need to be afraid because they would soon leave . Then a group of boys came and sprayed PERSON with water from a balloon.’", "PERSON also said that lately PERSON had again started to get children to meet up in front of the building , which upset PERSON .", "The police and the school were informed about the above events .", "The school [ authorities ] talked to all the children who had been reported and to their parents .", "The police carried out an inquiry [ and interviewed ] the children who had been present when PERSON was burned .", "In order to prevent further harassment we wrote to the school [ authorities , asking them ] to hold meetings with all children and parents at the beginning of DATE , in all classes , to inform everyone of the problem and to make it clear that they were all responsible for the ill - treatment until the perpetrators were identified . It was also suggested that lectures and workshops with children be held in order for them to understand that there were persons with disabilities who had the same rights as everybody else – to walk about and live their lives outside their flats without being harassed by anyone .", "It was agreed with police officer GPE from FAC that the police in charge of that neighbourhood would keep a closer eye on and patrol more frequently the street in order to identify the perpetrators of the harassment .", "On DATE a visit of the family was carried out and only PERSON was found ; he did not know where his mother was and also said that the children had not teased him lately . PERSON was in the flat and there were no children around the building .", "... ”", "On DATE the GPE State Attorney ’s Office informed the second applicant that the perpetrators of the criminal offence of violent behaviour under LAW were GPE and GPE , who were children DATE , and that therefore no criminal proceedings could be instituted against them . The second applicant was instructed that she could bring a claim for compensation in civil proceedings .", "A police report of CARDINAL DATE states that on DATE the second applicant called the police at TIME complaining about noise in the park . When the police arrived at TIME , the second applicant told them that in the meantime the children had left .", "A medical report in respect of the first applicant drawn up on DATE indicates that he had constantly been harassed by children , who had burned his hands , shouted at him and made noise in front of the applicants’ balcony . It stated that it was necessary for the first applicant to spend time outdoors .", "A report drawn up on DATE by ORG indicates that they had interviewed GPE and his mother . Since GPE expressed regret about the incident of DATE , there was no need for any further measures .", "On an unspecified date in DATE the headmaster of PERSON primary school sent a letter to the parents informing them that in their neighbourhood lived a young man with disabilities named PERSON who had been frequently harassed by schoolchildren . The headmaster expressly stated that the children had admitted to “ a number of brutal acts ” against PERSON , such as making derogatory remarks , using insulting language and swearing , behaving provocatively , taking his ball and burning his hands with cigarettes . The parents were asked to talk to their children and warn them about the possible consequences of such behaviour .", "The relevant part of the written record of a parent - teacher meeting held on DATE at PERSON primary school reads as follows :", "“ ...", "At all parent - teacher meetings in DATE we have drawn the GPE attention to a young man with special needs who lives in the school ’s neighbourhood and who has been harassed by pupils from our school , mostly verbally and sometimes physically . His mother often seeks help from the school employees , and a social welfare centre and the Ombudswoman for Persons with Disabilities have also been involved . The parents were asked to talk to their children and raise their awareness about the problem of accepting differences and the need for peaceful coexistence .", "The parents present commented on the matter . Some of them mentioned that the young man in question had sometimes also been aggressive , that he had approached young girls in an inappropriate manner and that they had expressed a fear of him and tended to avoid the area where he usually was . Some also commented that he should not be out in public and that he should spend time in conditions appropriate for him or in the park under the constant supervision of a guardian . The headmaster noted all the comments and promised to contact the competent social welfare centre .", "... ”", "On DATE the ORG lawyer sent a written complaint to the GPE Municipality ORG Attorney ’s Office . She stated that her clients were CARDINAL NORP nationals of NORP origin , a mother and her son who suffered from mental and physical retardation . She explained that her clients lived QUANTITY away from PERSON primary school and that they had been constantly harassed by schoolchildren , at all times of DATE and mainly when the children went home from school in groups and in TIME when they gathered around a bench in front of the applicants’ balcony without parental supervision . She alleged that the harassment had already been going on for DATE and was motivated by the NORP origin and the first applicant ’s disability . A group of children aged from CARDINAL to CARDINAL hung around DATE in front of the block of flats where the applicants lived , shouting insults and obscenities and calling them names . They also wrote insulting remarks on the pavement in front of the building .", "The lawyer further described the incident of DATE . Relying on Articles CARDINAL and CARDINAL of the Convention , she complained that there was no effective remedy in the NORP legal system affording protection from violent acts by children .", "She also described the events of CARDINAL and DATE , when a group of children had insulted the first applicant and , on DATE , taken a ball from him . On DATE a group of boys had urinated in front of the applicants’ door . On DATE about CARDINAL pupils from the fourth and fifth grades had pushed the first applicant , insulted him and taken a ball from him . DATE after a boy had shouted insults at him .", "She also alleged that the children had physically attacked the first applicant on CARDINAL different occasions and had often spat at him . On DATE the children had ruined the applicants’ balcony by tearing up all the flower beds and by throwing stones and mud onto the balcony . DATE they had thrown a carton of chocolate milk onto the balcony .", "The second applicant had reported the harassment to the social services , the police , the Ombudswoman for Persons with Disabilities and the school authorities . Despite the good will of all those concerned , the harassment of the applicants had continued .", "A medical report in respect of the first applicant drawn up on DATE indicates that he had constantly been harassed by children .", "A medical report in respect of the first applicant drawn up on DATE indicates that he had been attacked by children DATE before , which had greatly upset him . Psychotherapy was recommended .", "A medical report in respect of the first applicant drawn up on DATE states that “ everyone hit him mercilessly with snowballs ” , which had scared him .", "A medical report in respect of the first applicant drawn up on DATE indicates that the first applicant suffered from constant anxiety and a feeling of being persecuted because “ nothing ha[d ] been done to resolve his situation ” .", "A police report of CARDINAL DATE states that the second applicant called the police DATE at TIME because of “ problems with children ” . When the police arrived at TIME the second applicant told them that the children had been playing with a ball in the park and had then hit her window with the ball and run away .", "A medical report in respect of the first applicant drawn up on DATE indicates that the first applicant was attacked by a group of children and was hit by a ball on the nose .", "The applicants alleged that on CARDINAL DATE a group of children , including a boy , PERSON , pushed the first applicant against an iron fence in the park . He fell and hit his head and right leg . He was disoriented and uncommunicative for DATE . Medical documents drawn up on DATE show that the first applicant suffered from swelling in his right leg and skin abrasion on the left side of his forehead . He was unable to walk for DATE and the second applicant had to borrow a wheelchair for him . The medical report also indicates that the first applicant had stumbled and sprained his ankle and had also hit his head .", "On DATE the second applicant complained to the police that on CARDINAL DATE a boy , PERSON , had pushed the first applicant against a wall and had also taken his ball .", "On DATE the applicants’ lawyer wrote to the GPE Municipality ORG Attorney ’s ORG complaining that since her last letter of DATE , there had been further incidents of violence and harassment against the applicants . The relevant part of the letter reads :", "“ ...", "On DATE CARDINAL boys , CARDINAL of whom was PERSON , verbally abused the first applicant , which scared him .", "The second applicant informed the school counsellor about the incident but has not received a reply .", "On CARDINAL , DATE and DATE a group of children threw snow at the applicants’ window and on CARDINAL of those occasions covered their balcony with snow .", "On DATE a group of children verbally insulted the first applicant in the street . On DATE the second applicant was called by a social worker from ORG , GPE , who told her that the only way to resolve the situation was to bring a civil action .", "On DATE the children kept throwing a ball at the applicants’ windows , about which the police were informed . On DATE , while the first applicant was riding on a bus , a group of children shouted his name , which upset him .", "On DATE a boy whose first name was NORP hit the first applicant on the nose with a ball , which disoriented him and caused him pain . The second applicant informed the police about it . The police conducted a TIME interview with her and expressed their regret but informed the second applicant that nothing could be done because any kind of inquiry would show that the children had only been joking .", "On DATE a group of children , including PERSON , pushed the first applicant against an iron fence in the park . He fell and hit his head and right leg . He was disoriented and uncommunicative for DATE .", "On DATE , when the first applicant was sitting on a swing , a group of children approached him and made obscene gestures and told him that he was stupid . ”", "On DATE the lawyer complained about the harassment of the applicants to the Ombudswoman for Children and asked for advice .", "The applicants alleged that on CARDINAL DATE a group of boys hit the first applicant ’s head against an iron fence in the park and said that they enjoyed it . A medical report in respect of the first applicant drawn up on DATE indicates that he had been pushed against an iron fence and had hit his head on it .", "On DATE the GPE Municipality State Attorney ’s Office informed the applicants’ lawyer that it had no jurisdiction in the matter since the complaints concerned children who were not criminally responsible .", "On DATE the headmaster of PERSON primary school informed the ORG lawyer that the school authorities had taken all measures they deemed appropriate , such as discussion with the pupils concerned and the provision of information to all parents at parent - teacher meetings about the problems the applicants had encountered with the pupils .", "NORP On DATE the Ombudswoman for Children informed the applicants’ counsel that she had no jurisdiction in the matter .", "A medical report in respect of the first applicant drawn up on DATE indicates that he had continually been attacked by children in the neighbourhood .", "Medical reports in respect of the first applicant drawn up on DATE , DATE and DATE and CARDINAL DATE indicate that the first applicant had continually been attacked by children in the neighbourhood .", "On DATE the police interviewed PERSON , a pupil attending PERSON primary school , about the incidents of CARDINAL and DATE , in which he denied his involvement .", "The applicants alleged that on DATE at TIME boys and a girl made repeated lewd comments in a loud voice under the applicants’ window . When the second applicant asked them to be quiet they replied provocatively , using the NORP dialect in direct allusion to the applicants’ NORP origin , telling her : “ Call the police , we are not afraid [ zovi bre policiju , mi se ne bojimo ] ” . The second applicant reported this incident on DATE to a social worker from ORG , PERSON", "On DATE ORG interviewed GPE , who lived in the same block of flats as the applicants . She denied her involvement in the harassment of the applicants . She also said that children and alcoholics frequently gathered at the bench in front of the block of flats where she lived and made screaming noises , which irritated her family as well .", "On DATE ORG informed the police that the second applicant had complained of continued harassment and violence against the first applicant . The police were asked to take appropriate measures .", "On DATE the police interviewed GPE , a pupil attending PERSON primary school , who denied any involvement in the harassment of the first applicant .", "On DATE the second applicant asked GPE for the wooden bench beneath the applicants’ window to be removed .", "The applicants alleged that on DATE at TIME , when they were returning home from a shop , a boy known to them as PERSON rode past them on a bicycle and shouted insults at the first applicant , saying , inter alia : “ PERSON is a fag ” . The first applicant felt extremely anxious and stressed .", "The applicants alleged that on DATE at TIME three boys on bicycles rode up in front of their window and threw rubbish and screamed . At TIME more children gathered around the wooden bench in front of the applicants’ window and repeatedly hit a nearby metal fence , thus making a lot of noise . They also threw a stone at the applicants’ window and made lewd comments in loud voices . At CARDINAL p.m. the second applicant called the police . Since the police did not come , she called them again at TIME The police said that they would come but that they had other calls to answer as well . The police arrived at TIME and told the children to move QUANTITY away from the applicants’ window . They made no attempt to identify the children . A police report of DATE indicates that at TIME the second applicant had called the police and complained about noise in the park . When the police arrived at TIME they had not found anyone in front of the building .", "The applicants alleged that on DATE a group of about CARDINAL children gathered around the bench and made an unbearable amount of noise . At TIME the second applicant called the police , who arrived at TIME and ordered the children to go away , without , however , making any attempt to identify them . A police report of DATE indicates that at TIME the second applicant had called the police and complained about noise in the park . When the police arrived at TIME they had not found anyone .", "The applicants alleged that on DATE at TIME they noticed , on returning from church , that an unidentified white substance had been thrown at their window in their absence . There were also some children screaming under their window . At TIME the second applicant called the police . The applicants further alleged that on CARDINAL , DATE , DATE , DATE and DATE DATE , children gathered around the bench and made an unbearable amount of noise .", "On DATE the police interviewed GPE , a pupil attending PERSON primary school , who denied any involvement in the harassment of the first applicant .", "The applicants alleged that on DATE CARDINAL boys gathered around the bench and made loud noises . At TIME seven boys threw balls at the applicants’ window and made noise until TIME . At TIME the second applicant called the police , who arrived at TIME and told the boys to leave without asking them any questions or making any attempt to identify them . A police report of DATE indicates that the second applicant had called the police at TIME and complained about noise . When the police had arrived at TIME they had not found anyone .", "The applicants further alleged that on DATE at TIME they were awakened by a car alarm outside their window . Some children were banging on the outer wall of their flat , making a very loud noise . The first applicant ’s pet rabbit died TIME and he attributed the rabbit ’s death to the events of TIME , which made him extremely upset . On DATE , while the applicants were not at home , someone spat on their living - room window until it was completely covered in saliva . On DATE and CARDINAL , DATE and DATE groups of children gathered around the bench , making a lot of noise .", "On DATE the GPE informed the second applicant that her request for the removal of the bench situated beneath the balcony of the applicants’ flat had been denied .", "The applicants alleged that on DATE , while they were coming home from a shop , a group of children shouted after them : “ PERSON , PERSON ! ” The first applicant was paralysed with fear and asked his mother why they would not leave him alone . The second applicant wrote to ORG and the ORG about the harassment of her son , seeking their assistance in connection with the removal of the bench . On DATE at around midnight some children threw snowballs at the applicants’ window , which terrified the first applicant .", "On DATE the Ombudswoman for Persons with Disabilities recommended to GPE that the bench be removed . The bench was removed in DATE . The applicants alleged that on DATE , some children destroyed a metal container under their window where the gas meters were located .", "The applicants alleged that further incidents occurred as follows . On CARDINAL DATE a group of children shouted provocatively at the second applicant on the street , using the NORP dialect ( “ De si bre ? ” ) . On DATE at TIME some children rang the applicants’ doorbell and then ran away . On DATE the applicants went to a hairdresser , taking a detour in order to avoid the children . However , they met a group of children who shouted “ Dalibor ! ” in a provocative manner . On DATE at TIME seven boys ran around the applicants’ flat , banged on the walls , climbed onto their balcony , peered into the flat and laughed loudly . At TIME a group of boys sang the song “ We are NORP ” beneath the applicants’ window .", "A medical report of CARDINAL DATE in respect of the first applicant indicates that owing to stress he often bit his lips and fists , and that he had a twitch in his left eye and symptoms of psoriasis . It also mentioned that he had frequently been attacked and ridiculed and that it was necessary to ensure a calm and friendly environment for him .", "The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows .", "“ Everyone in GPE shall enjoy rights and freedoms regardless of their race , colour , sex , language , religion , political or other belief , national or social origin , property , birth , education , social status or other characteristics .", "All shall be equal before the law . ”", "“ Every human being has the right to life .", "... ”", "“ No one shall be subjected to any form of ill - treatment ...", "... ”", "“ Everyone has the right to respect for and legal protection of his or her private and family life , dignity , reputation and honour . ”", "“ International agreements in force which were concluded and ratified in accordance with the LAW and made public shall be part of the internal legal order of GPE and shall have precedence in terms of their legal effects over the [ domestic ] statutes . ... ”", "In its decisions nos . U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL/CARDINAL ) and U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL ) ORG held that all rights guaranteed in the LAW and its Protocols were also to be considered constitutional rights having equal legal force to the provisions of LAW .", "The relevant part of LAW ( PERSON , ORG no . CARDINAL/CARDINAL ) reads as follows :", "“ Criminal legislation is not applicable in respect of a child who at the time when he or she committed a criminal offence was not yet CARDINAL . ”", "The relevant part of LAW ( Prekršajni zakon , ORG no CARDINAL/CARDINAL ) reads as follows :", "“ ( CARDINAL ) A person who at the time when a minor offence was committed was not yet CARDINAL is not liable for the minor offence .", "( CARDINAL ) When a person under subsection CARDINAL of this section frequently behaves in a manner which amounts to serious minor offences , the ORG body competent to act shall inform that person ’s parents or guardians and the competent social welfare centre of the person ’s behaviour .", "( CARDINAL ) A parent of ... a person to whom subsection CARDINAL of this section applies shall be punished for a minor offence committed by that person where the minor offence committed is directly connected to failure to supervise that person ... ”", "The Administrative Disputes Act ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL , CARDINAL/CARDINAL and DATE in force until DATE ) in its relevant part provided as follows :", "“ A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [ that is , decision ] , and no other judicial protection is secured , shall be decided by ORG ] , by applying , mutatis mutandis , the provisions of this LAW . ”", "Sections CARDINAL to CARDINAL provide for special proceedings for the protection of constitutionally guaranteed rights and freedoms from unlawful factual ( physical ) acts of public officials where no other judicial remedy is available . Under the case - law of the domestic courts , the protection against unlawful “ acts ” also includes omissions ( for example , ORG , in its decision no . Us-CARDINAL/CARDINAL of CARDINAL DATE , and ORG , in its decision no . Gž-CARDINAL/CARDINAL of DATE , held that failure of the administrative authorities to carry out their own enforcement order constituted an “ unlawful act ” within the meaning of CARDINAL of LAW ) .", "Under CARDINAL such proceedings are to be instituted by bringing an “ action against an unlawful act ” ( tužba za zaštitu od nezakonite radnje ) in the competent municipal court . The action must be brought against the public authority to which the factual act ( or omission ) is imputable ( the defendant ) .", "DATE . Under section CARDINAL the action is to be forwarded to the public authority concerned for a reply within the time - limit set by the court conducting the proceedings . However , a decision may be adopted even without such a reply where the submissions made in the action provide a reliable basis for the decision .", "Section CARDINAL provides that the court decides on the merits of the case by a judgment . If it finds in favour of the plaintiff , the court orders the defendant to desist from the unlawful activity and , if necessary , orders restitutio in integrum .", "Section CARDINAL provides that in proceedings following an “ action against an unlawful act ” the court is to apply , mutatis mutandis , the provisions of LAW .", "The relevant part of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL and CARDINAL ) , which came into force on DATE and abrogated the former DATE LAW , reads as follows :", "“ ( CARDINAL ) All natural persons or legal entities are entitled to the protection of their rights of personality [ prava osobnosti ] under the conditions provided by law .", "( CARDINAL ) NORP of personality within the meaning of this LAW are the right to life , to physical and mental health , reputation , honour , dignity , name , privacy of personal and family life , liberty , etc .", "( CARDINAL ) A legal entity shall have all the above - mentioned rights of personality – apart from those related to the biological character of a natural person DATE and , in particular , the right to a reputation and good name , honour , name or company name , business secrecy , entrepreneurial freedom , etc . ”", "“ Damage is ... an infringement of rights of personality ( non - pecuniary damage ) . ”", "“ Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences . ”", "As to which rights of natural persons , apart from those enumerated in section CARDINAL of LAW , are to be considered rights of personality , it should be noted that only the following have so far been interpreted as rights of personality by the NORP courts : the right to life , the right to physical and mental integrity ( health ) , the right to liberty , the right to reputation and honour , the right to privacy of personal and family life , the right to secrecy of letters and personal manuscripts , the right to personal identity ( in particular , the rights to one ’s image , voice and name ) and the moral rights of authors .", "The relevant part of ORG decision no . UIIICARDINAL/CARDINAL of DATE , concerning the right to compensation in respect of rights of personality , reads as follows :", "“ ...", "Section CARDINAL of LAW defines non - pecuniary damage as an infringement of rights of personality . In other words , any infringement of rights of personality amounts to non - pecuniary damage .", "Section CARDINAL(CARDINAL ) of LAW defines rights of personality for the purposes of that LAW as : the right to life , physical and mental health , reputation , honour , respect for one ’s dignity and name , privacy of personal and family life , freedom and other aspects .", "... [ I]t is to be concluded that in this case there has been a violation of human , constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by LAW and also with the legal standards under LAW . For that reason the courts are obliged to award compensation for the infringement of the applicant ’s dignity .", "... ”", "The relevant part of LAW ( Zakon o suzbijanju diskriminacije , Official Gazette no . CARDINAL/CARDINAL ) reads as follows .", "“ ( CARDINAL ) This Act ensures protection and promotion of equality as the highest value of the constitutional order of GPE ; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour , gender , language , religion , political or other conviction , national or social origin , state of wealth , membership of a trade union , education , social status , marital or family status , age , health , invalidity , genetic inheritance , gender identity , expression or sexual orientation .", "( CARDINAL ) Discrimination within the meaning of this LAW means putting any person in a disadvantageous position on any of the grounds under subsection CARDINAL of this section , as well as his or her close relatives .", "... ”", "“ This Act shall be applied in respect of all ORG bodies ... legal entities and natural persons ... ”", "“ Anyone who considers that , owing to discrimination , any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue , and may also seek protection in separate proceedings under LAW of this LAW . ”", "“ A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this LAW may bring a claim and seek :", "( CARDINAL ) a ruling that the defendant has violated the plaintiff ’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff ’s right to equal treatment ( claim for an acknowledgment of discrimination ) ;", "( CARDINAL ) a ban on ( the defendant ’s ) undertaking acts which violate or may violate the plaintiff ’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken ( claim for a ban or for removal of discrimination ) ;", "( CARDINAL ) compensation for pecuniary and non - pecuniary damage caused by the violation of the rights protected by LAW ( claim for damages ) ;", "( CARDINAL ) an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant ’s expense .", "... ”", "The relevant parts of Recommendation Rec(CARDINAL)CARDINAL of ORG to member GPE concerning the protection of the human rights and dignity of persons with mental disorder ( adopted by ORG on DATE at the FAC meeting of ORG ) read as follows .", "“ ...", "Having regard , in particular :", "– to the Convention for the Protection of Human Rights and Fundamental Freedoms of CARDINAL DATE and to its application by the organs established under that Convention ;", "...", "Any form of discrimination on grounds of mental disorder should be prohibited .", "Member GPE should take appropriate measures to eliminate discrimination on grounds of mental disorder .", "Persons with mental disorder should be entitled to exercise all their civil and political rights .", "Any restrictions to the exercise of those rights should be in conformity with the provisions of ORG and should not be based on the mere fact that a person has a mental disorder .", "...", "Member GPE should ensure that there are mechanisms to protect vulnerable persons with mental disorders , in particular those who do not have the capacity to consent or who may not be able to resist infringements of their human rights .", "The law should provide measures to protect , where appropriate , the economic interests of persons with mental disorder .", "... ”", "DATE . The relevant parts of Recommendation Rec(CARDINAL)CARDINAL of ORG to member States on ORG to promote the rights and full participation of people with disabilities in society : improving the quality of life of people with disabilities in LOC DATE ( adopted by ORG on DATE at the CARDINALst meting of ORG ) read as follows .", "“ ...", "Bearing in mind the Convention for the Protection of Human Rights and Fundamental Freedoms ( ETS No . CARDINAL ) ;", "...", "Action line No . CARDINAL : Legal protection", "CARDINAL.CARDINAL.CARDINAL . Introduction", "People with disabilities have the right to recognition everywhere as persons before the law . When assistance is needed to exercise that legal capacity , member GPE must ensure that this is appropriately safeguarded by law .", "Persons with disabilities constitute a varied population group , but all have in common , to a greater or lesser extent , the need for additional safeguards in order to enjoy their rights to the full and to participate in society on an equal basis with other members .", "The need to focus particular attention on the situation of persons with disabilities , in terms of the exercise of their rights on an equal basis with others , is confirmed by the initiatives taken in this area at national and international level .", "The principle of non - discrimination should be the basis of government policies designed to deliver equality of opportunity for people with disabilities .", "Access to the legal system is a fundamental right in a NORP society but people with disabilities can often face a number of barriers , including physical access difficulties . This requires a range of measures and positive actions , including general awareness raising among the legal professions about disability issues .", "ORG . Objectives", "i. to ensure effective access to justice for persons with disabilities on an equal basis with others ;", "ii . to protect and promote the enjoyment of all human rights and fundamental freedoms by persons with disabilities on an equal basis with others .", "CARDINAL.CARDINAL.CARDINAL . Specific actions by member States", "i. to provide protection against discrimination through the setting up of specific legislative measures , bodies , reporting procedures and redress mechanisms ;", "ii . to ensure that provisions which discriminate against disabled people are eradicated from mainstream legislation ;", "iii . to promote training on human rights and disability ( both national and international ) for law enforcement personnel , public officials , judiciary and medical staff ;", "iv . to encourage non - governmental advocacy networks working in defence of people with GPE human rights ;", "v. to ensure people with disabilities have equal access to the judicial system by securing their right to information and communication that are accessible to them ;", "vi . to provide appropriate assistance to those people who experience difficulty in exercising their legal capacity and ensure that it is commensurate with the required level of support ;", "...", "Action line No . CARDINAL : Protection against violence and abuse", "ORG . Introduction", "Acts of abuse or violence against any person are unacceptable and society has a duty to ensure that individuals , particularly the most vulnerable , are protected against such abuse .", "There are indications that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population , and higher in women with disabilities , particularly women with severe disabilities , where the percentages of abuse far exceed those of non - disabled women . Such abuse can occur in institutions or other types of care and situations , including the family environment . It can be inflicted by strangers or persons known to the individual and can take many forms , for instance verbal abuse , violent actions , or the refusal to meet basic needs .", "While governments can not guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards . Prevention can be assisted in many ways , particularly through education to appreciate the rights of individuals to protection and to recognise and reduce the risk of abuse . Persons with disabilities who experience abuse or violence should have access to appropriate supports . They must have a system in which they can have sufficient confidence to report abuse and expect follow - up action , including individual support . Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse .", "While there has been some research undertaken in DATE , it is clear that further knowledge is required to inform future strategies and best practice .", "Objectives", "i. to work within anti - discriminatory and human rights frameworks towards safeguarding people with disabilities against all forms of violence and abuse ;", "ii . to ensure access for people with disabilities to services and support systems for victims of violence and abuse .", "CARDINAL.CARDINAL.CARDINAL . Specific actions by member States", "i. to establish safeguards to protect people with disabilities from violence and abuse through the effective implementation of policies and legislation , where necessary ;", "ii . to promote the availability of and access to training courses for people with disabilities to reduce the risk of violence and abuse , for example courses in self - confidence and empowerment ;", "iii . to develop processes , measures and protocols adapted to people with disabilities , to improve detection of violence and abuse , and to ensure that the necessary action is taken against perpetrators , including redress and adequate professional counselling in case of emotional problems ;", "iv . to ensure that disabled victims of violence and abuse , including domestic , have access to the relevant support services , including redress ;", "v. to prevent and combat violence , ill - treatment and abuse in all situations by supporting families , raising public awareness and education , promoting discussion and co - operation among relevant parties ;", "vi . to support people with disabilities , in particular women , and their families , in situations of abuse through the provision of information and access to services ;", "vii . to ensure that systems are in place for the protection against abuse of persons with disabilities in psychiatric facilities , social care homes and institutions , orphanages , and other institutional settings ;", "viii . to ensure that relevant training is provided to all staff working in disability - specific institutional settings and mainstream support services ;", "ix . to train police and judicial authorities so that they can receive testimony from disabled people and treat instances of abuse seriously ;", "x. to provide people with disabilities with information on how to avoid the occurrence of violence and abuse , how to recognise it , and how to report it ;", "xi . to take effective legislative , administrative , judicial or other measures with strong sanctions in a transparent manner and to allow for independent review by civil society in order to prevent all forms of physical or mental violence , injury or abuse , neglect and negligent treatment , maltreatment , exploitation or abduction of people with disabilities ;", "... ”", "The relevant parts of ORG ResAP(CARDINAL)CARDINAL on safeguarding adults and children with disabilities against abuse ( adopted by ORG on DATE at the PERSON meeting of ORG ) read as follows .", "“ ...", "I. Definition of abuse", "NORP In this ORG abuse is defined as any act , or failure to act , which results in a breach of a vulnerable person ’s human rights , civil liberties , physical and mental integrity , dignity or general well - being , whether intended or through negligence , including sexual relationships or financial transactions to which the person does not or can not validly consent , or which are deliberately exploitative . At a basic level abuse may take a variety of forms :", "a. physical violence , including corporal punishment , incarceration DATE including being locked in one ’s home or not allowed out DATE , over- or misuse of medication , medical experimentation or involvement in invasive research without consent , and unlawful detention of psychiatric patients ;", "b. sexual abuse and exploitation , including rape , sexual aggression , indecent assault , indecent exposure , forced involvement in pornography and prostitution ;", "c. psychological threats and harm , usually consisting of verbal abuse , constraints , isolation , rejection , intimidation , harassment , humiliation or threats of punishment or abandonment , emotional blackmail , arbitrariness , denial of adult status and infantilising disabled persons , and the denial of individuality , sexuality , education and training , leisure and sport ;", "...", "These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but CARDINAL which recognises vulnerability and exploitation . The term ‘ ORG therefore refers to matters across a wide spectrum , which includes criminal acts , breaches of professional ethics , practices falling outside agreed guidelines or seriously inadequate care . As a consequence , measures to prevent and respond to abuse involve a broad range of authorities and actors , including the police , the criminal justice system , the government bodies regulating service provision and professions , advocacy organisations , user networks and patient councils , as well as service providers and planners .", "II . Principles and measures to safeguard adults and children with disabilities against abuse", "Protection of human rights", "Member GPE have a duty to protect the human rights and fundamental freedoms of all their citizens . They should ensure that people with disabilities are protected at least to the same extent as other citizens .", "Member GPE should recognise that abuse is a violation of human rights . People with disabilities should be safeguarded against deliberate and/or avoidable harm at least to the same extent as other citizens . Where people with disabilities are especially vulnerable , additional measures should be put in place to assure their safety .", "Inclusion of people with disabilities", "Member GPE should acknowledge that safeguarding the rights of people with disabilities as citizens of their country is a ORG responsibility .", "They should combat discrimination against people with disabilities , promote active measures to counter it and ensure their inclusion in the socio - economic life of their communities .", "They should recognise that all people with disabilities are entitled to dignity , equal opportunity , their own income , education , employment , acceptance and integration in social life , including accessibility , health care as well as medical and functional rehabilitation .", "They should guarantee that people with disabilities are ensured protection DATE to at least the same extent as other citizens – in their use of services of all kinds .", "Prevention of abuse", "Member GPE should increase public awareness , promote open discussion , develop knowledge , and improve education and professional training .", "They should encourage cooperation between authorities and organisations in finding measures to prevent abuse , to improve detection and reporting of abuse , and to support the victims .", "They should create , implement and monitor legislation concerning the standards and regulation of professionals and care settings , in order to make abuse of people with disabilities less likely through action taken or through failure to act .", "Legal protection", "Member GPE should ensure access to the criminal justice system and provision of redress and/or compensation to people with disabilities who have been victims of abuse at least to the same extent as other citizens . Where necessary additional assistance should be provided to remove physical and other barriers for people with disabilities .", "People with disabilities are applicants under civil law whose rights should be safeguarded . Member GPE should therefore ensure that professionals working within the criminal justice system treat people with disabilities without discrimination and in such a way as to guarantee them equality of opportunity in the exercise of their rights as citizens .", "... ”", "The relevant parts of LAW ( DATE ) of ORG on access to rights for people with disabilities and their full and active participation in society ( adopted on DATE ) read as follows .", "“ CARDINAL . CARDINAL person in every CARDINAL suffers from some form of disability , representing a total of CARDINAL people worldwide , with an even greater ratio of CARDINAL in LOC alone . There is a correlation between age and disability : as the population ages and health care improves , the number of people with disabilities in LOC grows , and it will continue to grow .", "ORG recalls that ORG ( ETS No . CARDINAL ) protects all people , including those with disabilities , and that LAW ( ETS No . CARDINAL ) explicitly guarantees people with disabilities the effective exercise of the right to independence , social integration and participation in the life of the community . A more recent and eagerly awaited text , LAW on the Rights of Persons with Disabilities , came into force with effect from DATE . The ORG welcomes this text , which gives a detailed description of the rights of people , including children , with disabilities , and will certainly contribute to the change of perception needed to improve the situation of people with physical or mental disabilities .", "The ORG notes that , in practice , the access of people with physical or mental disabilities to their rights on an equal basis with those of people without disabilities frequently remains wishful thinking and proves inadequate . It therefore welcomes the preparation by ORG to promote the rights and participation of people with disabilities in society for DATE ( Recommendation Rec(CARDINAL)CARDINAL of ORG ) , which endeavours to find practical responses to the most serious and most common problems encountered by people with disabilities , to foster equality of opportunities , and which advocates a number of measures to improve the situation of people with disabilities in all aspects of everyday life .", "...", "Whereas the attitude of society , prejudice and fixed mindsets remain the main obstacle to the access to rights for people with disabilities and their full and active participation in society , the ORG invites member ORG to :", "step up their campaigns drawing public attention to , and providing information about , disability - related issues ;", "NORP take legal action against and penalise discriminatory practices and unacceptable attitudes towards people with disabilities , especially abuse , committed either by isolated individuals or in health - care establishments ;", "disseminate examples of good practices in all spheres of everyday life , so as to make clearer − to all , and particularly to young people − the scope of this question in civil society , the working environment and the world of education ;", "NORP ensure the full and active participation of people with disabilities in all of these processes .", "... ”", "The relevant parts of the Convention on the Rights of Persons with Disabilities ( which was ratified by GPE in DATE and came into force on DATE ) read :", "“ The purpose of the present Convention is to promote , protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities , and to promote respect for their inherent dignity .", "Persons with disabilities include those who have long - term physical , mental , intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others . ”", "“ CARDINAL . DATE States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability . To this end , GPE Parties undertake :", "a. to adopt all appropriate legislative , administrative and other measures for the implementation of the rights recognized in the present Convention ;", "b. to take all appropriate measures , including legislation , to modify or abolish existing laws , regulations , customs and practices that constitute discrimination against persons with disabilities ;", "c. to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes ;", "d. to refrain from engaging in any act or practice that is inconsistent with the present LAW and to ensure that public authorities and institutions act in conformity with the present Convention ;", "e. to take all appropriate measures to eliminate discrimination on the basis of disability by any person , organization or private enterprise ;", "... ”", "“ CARDINAL . DATE States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law .", "DATE States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds .", "NORP In order to promote equality and eliminate discrimination , GPE Parties shall take all appropriate steps to ensure that reasonable accommodation is provided .", "Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention . ”", "“ CARDINAL . DATE States Parties undertake to adopt immediate , effective and appropriate measures :", "a. to raise awareness throughout society , including at the family level , regarding persons with disabilities , and to foster respect for the rights and dignity of persons with disabilities ;", "b. to combat stereotypes , prejudices and harmful practices relating to persons with disabilities , including those based on sex and age , in all areas of life ;", "c. to promote awareness of the capabilities and contributions of persons with disabilities .", "Measures to this end include :", "a. Initiating and maintaining effective public awareness campaigns designed :", "i. to nurture receptiveness to the rights of persons with disabilities ;", "ii . to promote positive perceptions and greater social awareness towards persons with disabilities ;", "iii . to promote recognition of the skills , merits and abilities of persons with disabilities , and of their contributions to the workplace and the labour market ;", "b. Fostering at all levels of the education system , including in all children from DATE , an attitude of respect for the rights of persons with disabilities ;", "c. Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention ;", "d. Promoting awareness - training programmes regarding persons with disabilities and the rights of persons with disabilities . ”", "“ CARDINAL . No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . In particular , no one shall be subjected without his or her free consent to medical or scientific experimentation .", "DATE States Parties shall take all effective legislative , administrative , judicial or other measures to prevent persons with disabilities , on an equal basis with others , from being subjected to torture or cruel , inhuman or degrading treatment or punishment . ”", "“ CARDINAL . DATE States Parties shall take all appropriate legislative , administrative , social , educational and other measures to protect persons with disabilities , both within and outside the home , from all forms of exploitation , violence and abuse , including their gender - based aspects .", "DATE States Parties shall also take all appropriate measures to prevent all forms of exploitation , violence and abuse by ensuring , inter alia , appropriate forms of gender- and age - sensitive assistance and support for persons with disabilities and their families and caregivers , including through the provision of information and education on how to avoid , recognize and report instances of exploitation , violence and abuse . States Parties shall ensure that protection services are age- , gender- and disability - sensitive .", "NORP In order to prevent the occurrence of all forms of exploitation , violence and abuse , GPE Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities .", "DATE States Parties shall take all appropriate measures to promote the physical , cognitive and psychological recovery , rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation , violence or abuse , including through the provision of protection services . Such recovery and reintegration shall take place in an environment that fosters the health , welfare , self - respect , dignity and autonomy of the person and takes into account gender- and age - specific needs .", "DATE States Parties shall put in place effective legislation and policies , including women- and child - focused legislation and policies , to ensure that instances of exploitation , violence and abuse against persons with disabilities are identified , investigated and , where appropriate , prosecuted . ”", "“ Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others . ”" ]

[ "13", "3", "8" ]

[ "8-1" ]

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[ "The applicant is a NORP national who was born in DATE and lives in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG convicted the applicant of aggravated murder , sentencing him to DATE imprisonment .", "On DATE a search of the applicant ’s belongings was carried out at ORG . The applicant alleges that cash , in the amount of LTL CARDINAL ( about EUR CARDINAL ) , and a packet of washing powder were removed . The prison administration considered that the possession of these items was prohibited by FAC and ORG .", "On DATE the prison administration , having obtained a prosecutor ’s approval , ordered that the confiscated money be transferred to the ORG ’s account .", "On DATE a special disciplinary commission of the prison decided to impose on the applicant a disciplinary penalty , namely the deprivation of the right to receive or send a parcel on CARDINAL occasion , and to purchase food in the prison shop for DATE .", "The applicant brought a court action , contesting the search and the penalty . In particular , he complained that the above decisions had been taken in his absence , in breach of his defence rights . The applicant also alleged that he had suffered double jeopardy by way of the confiscation of his money as well as the imposition of the disciplinary penalty on DATE . He requested that the money be returned to him .", "In the context of the action , the applicant was granted free legal assistance for his representation before a court .", "On DATE ORG examined the case in the presence of the applicant . The lawyer assigned to represent him failed to appear . The court rejected the applicant ’s request to adjourn the examination of the case , having found that the applicant ’s lawyer had been duly informed of the hearing .", "The applicant ’s action was dismissed . The court first held that the applicant ’s money had been confiscated and transferred to the ORG ’s account in accordance with LAW . That measure was not deemed a “ penalty ” under domestic law since it was not included in the exhaustive list of disciplinary penalties ( LAW ) . The court dismissed the applicant ’s allegation that he had been punished twice . It was furthermore established that , prior to the search , the prison inspectors had proposed that the applicant voluntarily show them any possibly illicit items . Had the applicant shown the cash , it would not have been confiscated but returned to him , in accordance with LAW . However , the applicant had failed to do so . The court also noted that the law ( providing for the confiscation of any cash held in the prison ) was justified in the public interest .", "It was also established that the penalty of DATE was imposed in accordance with LAW for a breach of prison discipline .", "The court noted , however , that the disciplinary proceedings had been conducted in breach of LAW , which guaranteed to the accused the right to be heard by a special disciplinary commission of the prison before the decision on a disciplinary penalty was taken . Nevertheless , the court considered that that irregularity had not rendered the proceedings as a whole unfair , since the applicant had been afforded the opportunity to submit his explanations to the commission in writing , in accordance with LAW . There was no evidence that the applicant had intended to present any new arguments in addition to those indicated in his written explanations , as he had not submitted any new statements to the court .", "The applicant appealed , complaining that the case had been examined in the absence of his lawyer . He was again granted free legal aid for his representation before the appellate court .", "On DATE ORG examined the case in the presence of the applicant and his lawyer , dismissing the applicant ’s appeal . The appellate court upheld the reasoning of the lower court .", "The applicant brought another court action against the administration of ORG , complaining about the lack of space in dormitory no . CARDINAL , where he had been sleeping from DATE until DATE . The applicant alleged that the overcrowding resulted in a lack of fresh air at TIME , causing him insomnia and headaches , and that it had had a very negative impact on his physical and mental health . The applicant claimed non - pecuniary damages in the amount of LTL CARDINAL,CARDINAL ( about ORG CARDINAL,CARDINAL ) .", "On DATE ORG essentially accepted the applicant ’s claim , the applicant being present . The court held inter alia :", "“ It is undisputed that the official hygienic norms ( ORG ) guarantee the minimum space of QUANTITY for each inmate . The conditions in the [ Sniego Prison ] are not in compliance with the above norm , since the number of inmates exceeds that fixed by the order of DATE by the Director of ORG of ORG . While the order establishes CARDINAL places in the [ prison ] , as a matter of fact CARDINAL inmates are held there at any CARDINAL time . ...", "[ T]he Civil Code foresees CARDINAL conditions for civil liability : [ a ] the unlawful actions or inaction of the respondent [ ORG institution ] or its employees , [ b ] damage , and [ c ] the causal link between the actions ( inaction ) and the damage . It is for the applicant who seeks civil damages to demonstrate the existence of all these elements . ”", "The ORG concluded that the applicant had not shown that he had suffered non - pecuniary damage as a result of the slight overcrowding .", "The applicant appealed , stating that the prison administration had not submitted any evidence to show that it had requested additional finances from ORG or the Government . The applicant also pointed out that the lack of space in the Sniego Prison had been acknowledged as a fact .", "On DATE ORG examined the case in the applicant ’s presence , dismissing the appeal and upholding the reasoning of the lower court .", "From the medical reports submitted by the applicant , it appears that from DATE to CARDINAL DATE the applicant had consulted the prison doctor CARDINAL times . On several occasions he was diagnosed with a number of minor illnesses . The medical report of DATE indicated that the applicant should be relieved from work and allowed to stay in bed , without specifying any reasons . Several medical reports dating DATE also indicated that the applicant had sought consultations due to headaches , hypertension and certain psychological disorders .", "On DATE and DATE , ORG upheld the decisions of ORG to refuse the request of the prison administration for the applicant ’s release on licence .", "On DATE the FAC granted the request of the prison administration , ordering the applicant ’s conditional release .", "The applicant was released on DATE .", "LAW prohibits inhuman and degrading treatment .", "The Prisons Code ( as then in force ) provided :", "LAW :", "“ Punishment is not intended to cause physical suffering or degrade human dignity . ”", "Article CARDINAL § CARDINAL", "“ Searches of inmates shall be carried out . ”", "Article CARDINAL § CARDINAL", "“ Convicts are not permitted to keep money in cash ... Any cash found shall be seized and transferred to the ORG ’s account by a reasoned decision of the head of the prison administration , upon approval by a prosecutor . ”", "LAW", "“ Convicts breaching the prison regime shall be punished ... by the deprivation of the right to receive or send a parcel on CARDINAL occasion , and to purchase food in a prison shop during DATE . ”", "Article CARDINAL § CARDINAL", "“ Convicts have the right to appeal against a disciplinary punishment . ”", "Until DATE , LAW established the minimum floor - space per inmate at QUANTITY . From DATE this norm was increased to QUANTITY , in accordance with Sanitary Standard HN:CARDINAL ( approved by the order of ORG on DATE ) .", "Article CARDINAL of ORG provided that any items belonging to a detainee , which have been surrendered to the prison administration voluntarily , shall be put into storage and returned to the owner upon release .", "Article CARDINAL of ORG provided a right for an inmate to be present before a special disciplinary commission of the prison .", "Article CARDINAL of LAW ( in force from DATE ) :", "“ CARDINAL . Damage caused by the unlawful acts of public institutions shall be compensated by the ORG from the budget , irrespective of the fault of an actual civil servant ...", "For the purposes of this Article , the term “ action ” shall be taken to mean any action ( active action or failure to act ) of a public institution or its employees , which directly affects the rights , liberties or interests of persons ... .", "The civil liability of the ORG ... shall arise if employees of public institutions fail to act in accordance with the law . ”", "Article CARDINAL of the Civil Code provides that , in cases where the ORG is liable to cover the damage , it shall be represented by the ORG or an institution authorised by the Government ." ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant was dismissed from his position as a senior tax inspector ( старший державний податковий інспектор ) of the Moskovsky ORG of GPE ( the “ GPE , ORG податкова інспекція у PERSON PERSON ) . On DATE he instituted civil proceedings in the Moskovsky ORG of Kyiv ( Московський районний суд PERSON PERSON ) seeking his reinstatement , compensation for lost income and moral damage . Subsequently the proceedings were transferred to ORG of GPE ( the “ ORG , ” Ватутінський районний суд PERSON PERSON ) .", "On DATE ORG ordered the applicant 's reinstatement and awarded him CARDINAL NORP hryvnyas ( “ UAH ” ) in compensation for lost income and ORG CARDINAL in compensation for moral damage . Pursuant this judgment , the applicant was reinstated and paid the compensation equivalent to his DATE income .", "On DATE the applicant resigned from the civil service .", "On DATE ORG ( “ ORG , ” PERSON суд м. PERSON ) upheld the judgment of DATE in part ordering the applicant 's reinstatement and recalculated the amount of compensation due to him . In particular , ORG awarded the applicant ORG CARDINAL,CARDINAL.CARDINAL in compensation for lost income and ORG CARDINAL in compensation for moral damage .", "On DATE , due to the mergers of the city administrative districts , the Moskovsky Inspectorate was liquidated and replaced by GPE ( the “ GPE ” ; Державна податкова інспекція у Голосіївському районі PERSON PERSON ) .", "On DATE ORG rejected the requests for leave to appeal in cassation submitted by the PERSON ( PERSON ) ORG and the applicant 's representative .", "On DATE ORG issued an enforcement writ for the judgment of DATE indicating PERSON as the debtor .", "On DATE the applicant submitted the writ to ORG ( the “ Bailiffs ” ; ORG виконавчої служби Голосіївського районного управління юстиції м. PERSON ) .", "On DATE the Bailiffs initiated the enforcement proceedings and on DATE submitted an invoice to ORG ( ORG ) .", "Having received no response from ORG , on DATE and DATE the Bailiffs requested ORG to issue a duplicate enforcement writ . Having received a duplicate writ without a seal on DATE , the Bailiffs returned it to ORG for validation . On DATE ORG informed the applicant that it had never received the returned duplicate writ .", "On DATE the Bailiffs requested ORG to issue another duplicate writ . On DATE ORG fulfilled this request , indicating GPE as the debtor .", "On DATE ORG paid the applicant ORG CARDINAL,CARDINAL.CARDINAL in compensation for lost income due to him by the judgment at issue ( PERCENT of the judgment debt ) .", "On DATE ORG ( ORG у Голосіївському районі PERSON PERSON ) rejected the Bailiffs ' request to pay the remainder award of UAH CARDINAL ( PERCENT of the debt ) in compensation for moral damage , having noted that ORG had been liquidated in DATE .", "On DATE the Bailiffs terminated the enforcement proceedings on account of the debtor 's liquidation and returned the writ to the applicant informing him of his right to re - introduce it at DATE .", "According to the ORG 's submissions , in DATE the remainder judgment debt of ORG CARDINAL was transferred to the Bailiffs ' account . On DATE and DATE the Bailiffs requested the applicant to provide his banking details to effect the money transfer , but he never responded .", "The relevant domestic law is summarised in the judgment of PERSON v. GPE , ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She is represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , Mr J. Wołąsiewicz of ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP In DATE the applicant visited PERSON at his private practice and was registered as a pregnant patient . During her pregnancy she visited PERSON CARDINAL times and had CARDINAL ultrasound scans which demonstrated that the foetus was developing normally .", "During a visit on DATE PERSON found that the delivery was imminent . At TIME the pains started . On DATE the applicant was admitted to ORG . The birth did not progress normally . After TIME of labour the applicant and her husband asked PERSON to proceed to a caesarean section . He refused .", "The applicant ’s daughter , ORG , was born after TIME . She showed no signs of life and had to be resuscitated , which took TIME . The child suffered from serious health problems ( cerebral palsy ) , mostly of a neurological character and required permanent supervision and medical attention . She could not speak , see or walk .", "The applicant believed that PERSON was responsible for her daughter ’s condition . On DATE a criminal investigation was instituted at her request by ORG .", "A medical expert opinion submitted to the prosecuting authorities on DATE by specialists from ORG established that there had been serious shortcomings in the manner in which the delivery had been handled . However , the experts concluded that there was insufficient evidence for a finding that the child ’s problems had been caused solely by the manner in which she was delivered .", "On an unspecified date ORG in GPE found PERSON guilty of a breach of his professional obligations in that he had failed to monitor the child ’s condition properly during the second period of the delivery .", "On DATE ORG , referring to this opinion , discontinued the proceedings on the ground that no criminal offence of exposing the child to serious danger to life or limb , punishable under LAW of LAW , had been committed .", "The applicant appealed , indicating shortcomings in the investigation . She submitted , in particular , that the prosecution had failed to take into consideration the case file relating to the professional liability proceedings conducted before the authorities of ORG , and that the criminal proceedings had been conducted superficially . She requested that a number of witnesses be questioned . As a result , the facts of the case had not been established properly .", "On DATE ORG allowed her appeal , quashed the decision and remitted the case . He observed that the evidence had to be completed by the questioning of the CARDINAL witnesses requested by the applicant , and who had not been questioned so far ; that complete and uptodate medical records of the child had to be included in the file and examined ; that the file from the medical liability proceedings had to be joined to the prosecutor ’s file ; and that an additional medical opinion should be sought to complement the findings of the opinion referred to above .", "By a decision of DATE ORG asked ORG of ORG to complete its earlier expert opinion . It was submitted on DATE . In their opinion the experts stated that there was a causal link between the medical error committed by PERSON in his handling of the applicant ’s delivery and her daughter ’s condition .", "On DATE ORG filed an indictment against PERSON with ORG . He was charged with an offence punishable under LAW § CARDINAL ( i ) and CARDINAL of LAW by failing to monitor the labour properly .", "On DATE the applicant and her daughter declared their intention to become auxiliary prosecutors in the proceedings .", "On DATE the court held a session with a view to organising a hearing ( ORG , ORG , II K CARDINAL ) . Subsequently , hearings were scheduled for DATE , CARDINAL DATE and CARDINAL DATE . Because PERSON failed to attend any of the hearings and none of them was actually held because of his absence , on CARDINAL DATE and CARDINAL DATE the court ordered that he be brought to the courtroom . However , apparently no steps were taken to do so . On CARDINAL occasion PERSON was admitted to a psychiatric hospital DATE before the date of the hearing .", "The hearing scheduled for CARDINAL DATE was adjourned , also because of his absence .", "At a hearing held on DATE , the court read a letter from a psychiatric hospital in T. Having regard to the doubts which had arisen as to whether PERSON was able to participate in the proceedings , it ordered that an additional expert opinion be prepared in this respect . An opinion was submitted to the court on DATE . The experts found that PERSON suffered from reactive depression accompanied by alcohol abuse and , as a result , was unable to participate in the judicial proceedings for DATE .", "By a letter of CARDINAL DATE the applicant ’s lawyer drew the court ’s attention to the fact that the experts had failed to address the issue of whether PERSON had himself contributed to his inability to participate in the proceedings . He further submitted that the provisions on criminal procedure allowed for a hearing to be held in the defendant ’s absence when it had been shown that he or she had made himself or herself unable to participate in hearings . In the present case the accused had failed to comply with all the summonses and had thereby effectively boycotted the proceedings . On CARDINAL occasion he had been admitted to a psychiatric hospital DATE before the date of the last hearing , which cast doubt on the credibility of the medical certificates he had submitted so far in the case . The applicant ’s lawyer further requested that the defendant ’s ability to participate be examined by doctors from outside the GPE region . This would , in the applicant ’s view , ensure their impartiality .", "The court allowed his request on DATE and appointed new experts , tasking them with establishing the defendant ’s ability to participate in the proceedings .", "On DATE PERSON died .", "On DATE the court discontinued the criminal proceedings . The applicant appealed against this decision in so far as it concerned costs . The court dismissed the appeal by a decision of DATE , served on the applicant on DATE .", "On DATE the applicant ’s child died .", "On DATE the applicant lodged a complaint against PERSON with ORG ( Okręgowy PERSON ) at ORG . On DATE the Agent , having completed the investigation , transferred the complaint for examination to ORG .", "On DATE that court found PERSON guilty of a breach of his professional obligations in that he had failed to monitor the child ’s condition properly during the second period of the delivery and had failed to notice that the applicant had had an infection during her pregnancy . The court confirmed the fact that largescale damage to the child ’s brain had been caused during the labour .", "On DATE ORG in GPE upheld the firstinstance judgment in so far as it concerned the inappropriate monitoring of the child ’s condition during the second period of the delivery . The court further concluded that there was insufficient evidence to hold that PERSON had failed to diagnose the infection .", "On DATE the applicant , acting on her own behalf and on behalf of her daughter PERSON , sued ORG for damage and suffering caused as a result of medical malpractice during DATE birth . The applicant claimed MONEY ( ORG ) for nonpecuniary damage and a DATE pension of ORG CARDINAL for her inability to work caused by the fact that she had to take care of her daughter . In respect of her daughter the applicant claimed ORG CARDINAL for nonpecuniary damage and a DATE pension in the same amount .", "On DATE the ORG found the legal successor of ORG , which had in the meantime changed hands , civilly liable for the applicant ’s child ’s condition as a result of medical malpractice during the applicant ’s labour . It established that the child was totally and permanently incapacitated , required roundtheclock attention and care . It awarded the applicant and her daughter , jointly , compensation in the amount of ORG CARDINAL .", "On DATE ORG , having examined the applicant ’s appeal , increased the amount of compensation to ORG CARDINAL , plus interest . The court observed that the child had been totally physically incapacitated as a result of cerebral palsy resulting from brain damage caused by the negligent handling of her birth . However , her mental faculties had most likely been intact . She had therefore been locked within her own body which could not but be seen as causing her acute and continuous suffering for not being able to either express herself or to attend to her simplest needs . Her condition necessitated constant care and attention . She had been fragile and often suffered from additional ailments . The court was of the view that the enormity of the child ’s infirmity and the applicant ’s suffering it caused justified increasing the compensation to be paid by the defendant to ORG CARDINAL . The court held that while compensation for damage to one ’s health could not be unduly high so as to cause unfair enrichment , the respect for priceless values such as life and physical integrity dictated that it should be sufficiently elevated so as to offset the negative psychological consequences of medical malpractice .", "Article CARDINAL § CARDINAL of LAW of DATE provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years’ imprisonment ." ]

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[ "The applicant is a NORP national who was born in DATE and lives in ORG .", "He formerly worked as a prosecutor in the ORG region .", "The applicant submitted that in DATE and DATE he had been approached by GPE , a person previously unknown to him , through VS , a private acquaintance . GPE had asked him to secure the acquittal of a third person and had offered him a bribe of MONEY ( ORG ) in return . The applicant had initially refused but had later agreed after GPE had reiterated the offer a number of times .", "The Government submitted that VS and GPE had approached the applicant and negotiated the bribe with him on their own private initiative , without having first informed the authorities . They alleged that GPE had suspected the applicant of having accepted bribes in the past .", "On an unspecified date GPE , who was in fact an officer of a special anti - corruption police unit of ORG ( PERSON tyrimų tarnyba – “ the ORG ” ) , informed his employers that the applicant had agreed to accept a bribe .", "On DATE the ORG applied to the Deputy Prosecutor General , requesting authorisation to use a criminal conduct simulation model ( “ the model ” – see paragraph CARDINAL below ) . The request stated :", "“ Senior Commissioner [ ORG ] , Head of ORG of the [ ORG ] , having had access to information concerning [ the applicant ’s ] criminal conduct , has established that [ the applicant ] takes bribes since he has agreed to assist a defendant , [ GPE ] , in return for payment .", "In implementing the criminal conduct simulation model , which is intended to establish , record and put an end to [ the applicant ’s ] unlawful acts , an ORG official [ GPE ] will hand over QUANTITY litai , or the equivalent in foreign currency if required .", "Implementation of [ the model ] will require [ GPE ] to simulate criminal acts punishable under LAW and CARDINAL of the [ Criminal Code ] .", "With reference to LAW ... , the undersigned requests the Deputy Prosecutor General to authorise the criminal conduct simulation model for a period of DATE .", "This request is based on the information obtained during the preliminary inquiry . ”", "On DATE the ORG sent a letter to the Deputy Prosecutor General outlining the model as follows :", "“ [ ORG ] officials have collected operational information attesting that [ the applicant ] takes bribes .", "In implementing the criminal conduct simulation model , which is intended to establish , record and put an end to [ the applicant ’s ] unlawful acts , an ORG official [ GPE ] will simulate the offences of offering a bribe and breaching currency and securities regulations .", "In view of the above , and in accordance with LAW , I hereby request you to authorise the criminal conduct simulation model and thus to exempt [ GPE ] from criminal responsibility for the offences under LAW and CARDINAL of the [ Criminal Code ] which are intended to be simulated .", "[ The model ] will be implemented by ORG officials on the basis of a separate operational action plan .", "Implementation of [ the model ] will be financed by ORG resources . ”", "On DATE the Deputy Prosecutor General gave the required authorisation by countersigning and placing his official seal on the letter in question . This document constituted the final version of the model .", "On DATE the applicant accepted USD CARDINAL from GPE .", "On DATE GPE gave the applicant a further USD CARDINAL,CARDINAL .", "On DATE the Prosecutor General instituted a criminal investigation in respect of the applicant for accepting a bribe , an offence punishable under LAW in force at that time .", "On DATE ORG dismissed the applicant from his post as a prosecutor on grounds relating to corruption . Referring to the relevant provisions of LAW , ORG stated that the applicant had been dismissed for a disciplinary offence and for activities discrediting the prosecuting authorities .", "On an unspecified date the pre - trial investigation was concluded and the case was referred to ORG . During the trial the applicant pleaded guilty but alleged that he had succumbed to undue pressure from GPE in committing the offence .", "On DATE the Deputy Prosecutor General authorised a judge of ORG to disclose the details of how the model had been implemented “ provided that this [ did ] not harm the interests ” of the individuals and authorities involved in the operation .", "On DATE ORG convicted the applicant of accepting a bribe of USD MONEY from GPE , in breach of Article CARDINAL of LAW then in force , and sentenced him to DATE and CARDINAL days’ imprisonment . The court also ordered the confiscation of his property in the amount of CARDINAL NORP litai ( LTL ) . It found it established , firstly , that GPE had given the applicant the bribe during their meetings on DATE and DATE , in return for a promise that the applicant would intervene favourably in a criminal case against a third person and , secondly , that GPE had entered into contact and negotiated with the applicant through VS .", "NORP The court ’s conclusions were mainly based on the evidence given by GPE and on secret recordings of his conversations with the applicant . The court had also examined ORG , a prosecutor working in the same regional office as the applicant , whose evidence had not gone beyond confirmation that the applicant had dealt with the criminal case against the third person ( GPE ) indicated by GPE . PERSON was not summoned to appear at the trial as his place of residence was unknown , but a statement by him , which had been recorded by the pre - trial investigators , was read out in court . However , ORG did not take it into account in determining the applicant ’s guilt . The court ’s judgment did not contain any discussion of the authorisation and implementation of the model .", "On DATE ORG upheld the judgment on an appeal by the applicant , finding that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit the offence .", "On DATE the applicant lodged a cassation appeal . Relying in particular on ORG decision of CARDINAL DATE ( see paragraph CARDINAL below ) , he argued that there were no statutory provisions allowing the authorities to incite or provoke a person to commit an offence . In that connection , he submitted that on several occasions he had unsuccessfully requested the first - instance and appeal courts to consider the influence exerted by GPE and PERSON on his predisposition to commit the offence . He further complained that the lower courts had not taken into account the fact that GPE was a police officer and not a private individual . He argued that GPE had incited him to accept the bribe . Furthermore , he stated that the authorities had had no valid reason to initiate an undercover operation in his case and that they had overstepped the limits of their ordinary investigative powers by inducing him to commit an offence . He also submitted that VS had not been examined during the trial .", "On DATE ORG dismissed the applicant ’s cassation appeal in a decision which included the following passages :", "“ There is no evidence in the case file that [ the applicant ’s ] free will was denied or otherwise constrained in such a way that he could not avoid acting illegally . [ GPE ] neither ordered [ the applicant ] to intervene in favour of the person offering the bribe , nor did he threaten him . He asked him orally for help in securing the discontinuation of proceedings [ against the third person ] ... PERSON understood that the request was unlawful ... [ and ] ORG was therefore correct in finding him guilty ...", "[ The applicant ] contests the lawfulness of [ the model ] ... , stating that the case discloses a manifest example of incitement ( kurstymas ) by the officers of the special services to accept the bribe ... [ He submits that , by law ] , authorisation to simulate a criminal act can not be given in the absence of evidence of the preparation or commission of an offence . Therefore , in his view , such a procedure can not pursue the aim of inciting a person or persons to commit a crime . If the model were used for that purpose , it would be unlawful [ and ] the information thereby obtained could not be admitted in evidence ... [ The ] model can not be authorised and implemented unless a person has planned or started to commit an offence , evidence of which should be submitted to a prosecutor ... It appears from the case file that [ the authorities ] were contacted by [ VS ] and [ GPE ] after [ their initial ] meetings with PERSON , during which he had agreed in principle that he would perform the requested actions for ORG CARDINAL,CARDINAL ... Accordingly , in authorising the use of the model , [ the authorities ] merely joined a criminal act which was already in progress .", "...", "The case file contains no evidence that [ VS ] is an employee of the special services ... [ GPE ] works at the ORG as a police driver ... but this does not mean that he is prohibited from acting in a private capacity . There is no evidence that [ VS ] and [ GPE ] negotiated with PERSON on police instructions . It has , however , been established that [ VS ] and [ GPE ] handed money to him on the police ’s orders .", "The court considers that provocation ( provokacija ) to commit a crime is similar but not equivalent to incitement ( kurstymas ) ... Provocation is a form of incitement consisting in encouraging a person to commit an offence ... entailing his criminal responsibility so that he can then be prosecuted on that account . While such conduct is morally reprehensible , the term ‘ provocation’ is not used either in criminal or procedural law or in LAW of DATE ... From a legal standpoint , provocation does not constitute a factor exempting from criminal responsibility a person who has thereby been induced to commit an offence ...", "Since the case file contains contradictory evidence as to the conduct of [ VS ] and [ GPE ] before the criminal conduct simulation model was authorised , it is difficult to establish who was the instigator ( iniciatorius ) of giving and accepting the bribe , or , in other words , who incited whom to give or accept the bribe . [ VS ] ... stated that , after he had contacted PERSON to ask him to intervene in securing the discontinuation of the criminal case [ against the third person ] , PERSON had been the first to say that he could settle the matter for CARDINAL . For his part , [ GPE ] ... stated that PERSON Ramanauskas had said that the discontinuation of the case would cost CARDINAL . In his testimony PERSON alleged that [ VS ] had asked him if ORG CARDINAL,CARDINAL would be enough to ensure that the case was discontinued . In these circumstances , it can not be said with any certainty who was the instigator of the bribery , nor can it be inferred that [ VS ] and [ GPE ] incited PERSON to accept the bribe . Furthermore , there is no reason to conclude that [ VS ] and [ GPE ] provoked the offence committed by ORG in accepting the bribe . It can only be said unequivocally that the initiative ( iniciatyva ) to apply to PERSON in order to have the case [ against the third person ] discontinued came from [ GPE ] .", "However , the court considers that the answer to the question whether a person has actually induced ( palenkė ) or otherwise incited ( sukurstė ) another to offer or accept a bribe is of no consequence as far as the legal classification of [ the applicant ’s ] conduct is concerned . Incitement ( kurstymas ) to commit an offence is one of the various forms of complicity . Under the branch of criminal law dealing with complicity , incitement is a form of conspiracy . A person who commits an offence after having being incited to do so incurs the same criminal responsibility as a person who acts of his own volition ... Even assuming that PERSON was incited by [ VS ] and [ GPE ] to accept a bribe , it must be emphasised that the incitement took the form of an offer , and not of threats or blackmail . He was therefore able to decline ( and ought to have declined ) the illegal offer ... It follows from the testimony of PERSON that he understood the nature of the acts he was being asked to carry out , and accepted [ the bribe ] of his own free will ...", "At the same time it must be noted that it is a specific feature of bribery as an offence that one side is necessarily the instigator ( kurstytojas ) . A ORG official soliciting a bribe is an instigator within the meaning of LAW [ of LAW then in force – ‘ the ORG ] in that he incites ( kursto ) another to pay him a bribe , in breach of that Article . [ A person ] offering a bribe to a ORG official is necessarily an instigator within the meaning of LAW since , by making the offer , he incites the official to accept a bribe , that is , to commit the offence provided for in that Article ... Both the person giving and the person accepting a bribe exercise their free will ... and may therefore choose between possible forms of conduct . A person who intentionally chooses the criminal option while having the possibility of resisting the incitement rightly incurs criminal responsibility , regardless of the outside factors that may have influenced his choice ... ”", "On DATE the applicant began serving his prison sentence . He remained in prison until DATE , when he was released on licence .", "Furthermore , the prohibition on his working in the legal service was lifted in DATE . In DATE his conviction was expunged .", "The Criminal Code applicable at the material time punished the acts of accepting a bribe ( Article CARDINAL ) , offering a bribe ( Article CARDINAL ) and breaching currency and securities regulations ( Article CARDINAL ) .", "Article CARDINAL of LAW in force at the time and LAW ( in force since DATE ) provide that incitement is CARDINAL of the possible forms of complicity in an offence and is punishable alongside other forms of assistance ( aiding and abetting , organising , executing ) in the commission of an offence . These provisions define an instigator ( kurstytojas ) as a person who induces ( palenkė ) another to commit an offence . The term kurstymas ( which can also be translated as “ incitement ” or “ instigation ” ) is normally used in domestic legal doctrine to define the notion of complicity .", "LAW ( Operatyvinės veiklos įstatymas ) was enacted in DATE and remained in force until DATE . Section CARDINAL ) of the Act defined a “ criminal conduct simulation model ” ( Nusikalstamos veikos imitacijos elgesio modelis ) as a set of actions entailing the elements of an offence , authorised with a view to protecting the best interests of the ORG , society or the individual .", "Section CARDINAL(CARDINAL ) of the LAW authorised the initiation of “ operational activities ” within the meaning of the LAW where :", "( a ) the authorities did not know the identity of an individual who was preparing to commit or had committed a serious offence ;", "( b ) the authorities had obtained “ verified preliminary information ” about a criminal act ;", "( c ) the authorities had obtained “ verified preliminary information ” about a person ’s membership of a criminal organisation ;", "( d ) the authorities suspected activities by foreign secret services ; or", "( e ) an accused , defendant or convicted person had absconded .", "Section CARDINAL(CARDINAL)(CARDINAL ) of the Act provided that the authorities could have recourse to a model only in CARDINAL of the above scenarios , and then only on condition that the requirements of sections CARDINAL of the Act were satisfied .", "Sections CARDINAL and CARDINAL of the LAW empowered the Prosecutor General or his deputy to authorise the use of a criminal conduct simulation model on an application by the police or the investigative authorities . The application for authorisation had to include , among other things , a reference to the limits of the conduct intended to be simulated ( that is , the legal characterisation under a specific provision of LAW of the actions to be taken ) and the purpose of the operation , including its interim and ultimate aims .", "Section CARDINAL(CARDINAL)(CARDINAL ) of the LAW required the authorities to protect persons from active pressure to commit an offence against their own will .", "Section CARDINAL(CARDINAL ) of the Act afforded the right to contest the lawfulness of evidence obtained by means of special techniques .", "In the proceedings which gave rise to the case of PERSON and PERSON v. GPE ( no . CARDINAL , struck out of the ORG ’s list of cases on DATE ) , ORG gave judgment on DATE , holding , inter alia :", "“ LAW defines [ the criminal conduct simulation model ] as a set of actions entailing the elements of an offence , authorised with a view to protecting the best interests of the ORG , society or the individual . ... The model may be authorised only for operations by [ the police ] and does not apply to individuals who commit offences .", "The request [ by the police for authorisation of the model in this case ] referred to the aim of the intended operation , namely identification of all persons involved in a [ human ] trafficking network .", "Of course , the [ police ] officers could not foresee who would take part in this crime ... CARDINAL of the aims of [ the prosecution ] in authorising the model was to establish the identities of members of a criminal organisation . ”", "In a judgment of CARDINAL DATE in the same case , ORG held as follows regarding the use of police undercover agents :", "“ [ The applicants ] were not aware of the ongoing operation at the time they committed the offence . They were convinced that they were trafficking persons who had illegally crossed the NORP border . As Article CARDINAL of LAW provides that the offence in question is committed where direct intent has been established , [ the applicants’ ] error as to the nature of the act they were committing is of no relevance to the legal classification of their conduct . Since they were convinced that they were trafficking [ human beings ] , their acts fell objectively within the scope of the offence defined in LAW ... Their conduct was therefore rightly classified as a completed offence . The authorisation given to the authorities [ to use the model ] served the sole purpose of legitimising the actions of the police officers taking part in the trafficking . ”", "On DATE ORG ruled that LAW was generally compatible with LAW . It held in particular that the model constituted a specific form of operational activity using intelligence and other secret measures in order to investigate organised and other serious crime . It emphasised that the use of clandestine measures , as such , was not contrary to LAW , or indeed the LAW , as long as such measures were based on legislation that was clear and foreseeable in effect and were proportionate to the legitimate aims pursued . ORG found that the LAW provided a clear definition of the scope and procedure for the use of various forms of operational activities , including the model .", "Referring in particular to the Teixeira de Castro v. GPE case ( DATE , Reports of Judgments and Decisions CARDINAL-IV ) , the ORG emphasised that a criminal conduct simulation model could not be used for the purpose of incitement ( kurstoma ) or provocation ( provokuojama ) to commit an offence that had not already been initiated . It further held that this investigative technique did not allow officials to incite the commission of an offence by a person who had abandoned plans to commit the offence . It added that , by authorising and implementing the model , the investigative authorities and their undercover agents were restricted to “ joining criminal acts that [ had ] been initiated but not yet completed ” . ORG emphasised that it was for the courts of ordinary jurisdiction dealing with allegations of incitement or of other forms of abuse of the model to establish in each particular case whether the investigating authorities had gone beyond the limits of the legal framework within which the model had been authorised .", "ORG also stated that authorisation of the model did not amount to a licence for a police officer or third person acting as an undercover agent to commit a crime but simply legitimised DATE from the point of view of domestic law – the acts which the agent might be required to carry out in simulating an offence . The main aim of operational activities , including the model , was to facilitate criminal investigations , and on that account they came within the sphere of competence of both the prosecuting authorities and the courts . Accordingly , the model did not require judicial authorisation but simply authorisation by a prosecutor . ORG further noted that secret audio and video recordings of conversations taking place in the context of operational activities under LAW were not subject to judicial authorisation and that this was compatible with LAW . Under LAW ) of the LAW , only wiretapping and surveillance techniques using stationary devices required a court order .", "ORG LAW ( ETS no . CARDINAL , DATE ) provides in LAW that each party is to adopt such legislative and other measures as may be necessary , including those permitting the use of special investigative techniques , to enable it to facilitate the gathering of evidence in this sphere .", "The explanatory report on the ORG further specifies that “ special investigative techniques ” may include the use of undercover agents , wiretapping , interception of telecommunications and access to computer systems .", "Article CARDINAL states that the Convention does not affect the rights and undertakings deriving from international multilateral conventions concerning special matters .", "ORG , Search , LAW ( ETS no . CARDINAL , CARDINAL DATE ) provides , in DATE , that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto .", "The use of special investigative techniques , such as controlled deliveries in the context of illicit trafficking in narcotic drugs , is also provided for in LAW implementing LAW of DATE on the gradual abolition of checks at the common borders , signed in GPE on DATE ." ]

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[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Velenje . He was represented before the ORG by the LOC lawyers who are practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney - General .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was injured in an accident at work in a lignite mine . His employer had taken out insurance with the insurance company ZT .", "On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .", "On DATE the applicant lodged preliminary written submissions .", "On DATE the applicant requested that a date be set for a hearing .", "On DATE and CARDINAL DATE and on DATE the applicant lodged preliminary written submissions and increased his claim .", "On DATE the court held a hearing which was adjourned for additional evidence - taking .", "On DATE the applicant lodged preliminary written submissions .", "On DATE the court held a hearing and decided to appoint a medical expert .", "On DATE the applicant lodged preliminary written submissions . DATE , the court appointed a medical expert who delivered an opinion on DATE . The court sought an additional opinion from the appointed expert . He delivered the additional opinion on DATE .", "On DATE , CARDINAL and DATE and CARDINAL DATE the applicant lodged preliminary written submissions and increased his claim .", "On DATE the court held a hearing which was adjourned because the applicant submitted preliminary observations increasing his claim .", "On DATE and CARDINAL DATE the applicant lodged preliminary written submissions .", "On DATE the court held a hearing , which was adjourned because it did not have enough time to serve the applicant ’s submissions of CARDINAL DATE on the respondent .", "On DATE the court held a hearing and decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .", "On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .", "On DATE the court allowed the ORG ’s appeal and decreased the damages awarded . The court also upheld both appeals in the part concerning the costs and expenses of the proceedings and remitted the case to the first instance court for re - examination .", "On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .", "On DATE the court allowed the appeal in part and increased the amount of damages awarded .", "On DATE the applicant lodged with the first - instance court preliminary written submission concerning costs and expenses . On DATE and CARDINAL DATE he requested the court to render a decision .", "On DATE the ORG delivered a decision concerning the costs and expenses of the proceedings . ZT appealed .", "On DATE ORG allowed the appeal in part and lowered the amount of costs awarded .", "On DATE the applicant requested the court to correct its decision . On DATE he sought from ORG a request for protection of legality against ORG decision .", "On DATE the court corrected its decision and served it on the applicant on CARDINAL DATE .", "On DATE ORG decided not to lodge a request for protection of legality ." ]

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[ "The applicants were born in DATE , DATE and DATE respectively and live in GPE .", "The applicants are the owners of a flat in GPE , which they had let to ORG", "In a writ served on the tenant on DATE , the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .", "By a decision of DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by CARDINAL DATE .", "On DATE , the applicants served notice on the tenant requiring her to vacate the premises .", "On DATE , they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .", "Between DATE and DATE , the bailiff made CARDINAL attempts to recover possession .", "Each attempt proved unsuccessful as , under the statutory provisions providing for the suspension or the staggering of evictions , the applicants were not entitled to police assistance in enforcing the order for possession .", "On DATE , the applicants recovered possession of their flat .", "The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V." ]

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[ "The applicant is a NORP citizen , born in DATE and resident in PERSON , GPE . He is represented before the Court by PERSON , a lawyer practising in GPE .", "A.", "On DATE , the applicant ’s wife , PERSON , was hit by a speeding car as she was crossing a road in GPE , GPE and died . An autopsy was carried out on her body at a hospital immediately after the accident . The police did not carry out any blood tests on the driver to ensure that he was not under the influence of alcohol or any other illegal substance .", "Criminal proceedings were instituted against the driver before the CARDINAL - member ORG ( trimeles plimmeliodikio ) of GPE . The applicant did not join the proceedings as civil party . On DATE the court found the defendant guilty of reckless or negligent manslaughter and sentenced him to a term of DATE imprisonment or to the paying of a fine of MONEY for DATE of the sentence . The defendant duly served the sentence .", "On DATE , the applicant together with his CARDINAL sons and the victim ’s brother instituted civil proceedings against the driver for compensation before the Single - member ORG ( monomeles protodikio ) of GPE . The driver ’s insurance company represented the driver in court . On DATE the court decided that the death of PERSON was entirely due to her own fault since she was not careful enough when crossing the road . The court did not award any compensation .", "The applicant together with his CARDINAL sons and the victim ’s brother appealed on DATE . On DATE ORG ( efetio ) of GPE overturned the decision of the first instance court . ORG decided that the victim was PERCENT responsible for her death and that the driver was PERCENT responsible . Compensation was awarded accordingly . The applicant received MONEY , the CARDINAL sons received CARDINAL drachmas each and the victim ’s brother received MONEY .", "B. Relevant domestic law", "Section CARDINAL of the PERSON introducing LAW lays down that :", "“ The state shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority , except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest . The person responsible shall be jointly and severally liable , without prejudice to the special provisions on ministerial responsibility . ”" ]

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[ "The applicants are relatives of the late Mr PERSON . The first CARDINAL applicants are his father and mother , born in DATE and DATE respectively , and the third and fourth applicants are his children , born in DATE and DATE respectively . They lived in GPE in LOC .", "On an unspecified date a criminal investigation was opened into several counts of murder , robbery and destruction of property committed by a criminal syndicate . It appears that Mr Vitaliy Vulakh was suspected of being the leader of the syndicate .", "On DATE Mr S. , Mr N. and PERSON were arrested on suspicion of membership of the gang . On learning of their arrest , Mr PERSON shot dead his fiancée and committed suicide .", "On DATE the criminal prosecution of PERSON was discontinued as a result of his death .", "On DATE the ORG convicted PERSON , Mr ORG and PERSON of serious criminal offences and sentenced them to lengthy terms of imprisonment . The judgment mentioned that PERSON had been the leader of a criminal enterprise and had told the defendants to murder his business competitor PERSON It read , in particular , as follows :", "“ The person who had been the leader of the gang ( V[italiy ] Vulakh ) in respect of whom the case was discontinued because of his death , had money at his disposal , he funded the gang and paid each gang member to commit crimes : he bought cars , paid for their maintenance , petrol and travel expenses ... ”", "In these proceedings the victims PERSON , PERSON and PERSON brought civil claims against the CARDINAL defendants , seeking compensation for pecuniary and non - pecuniary damage . ORG indicated that these claims should be examined in separate civil proceedings .", "On DATE the first applicant lodged an appeal to ORG of GPE . He submitted that the decision on the discontinuation of criminal proceedings against his son had never been notified to him or to his son ’s counsel , and that counsel had not been allowed to study the file or plead his son ’s innocence .", "On DATE a judge of ORG informed the first applicant that he had no right to lodge an appeal to ORG because he was not a party to the criminal case . The judge wrote to him that further appeals would also be rejected .", "It appears that on DATE ORG of GPE examined appeals by those convicted and upheld the judgment of DATE . A copy of this judgment was not made available to the ORG .", "On DATE a notary public issued the CARDINAL applicants with a certificate of succession on intestacy , according to which they inherited Mr PERSON house .", "On an unspecified date PERSON , PERSON , PERSON and a private company sued the CARDINAL applicants and the Kurganinskiy dairy factory , of which ORG had been a minority shareholder , for pecuniary and non - pecuniary damages .", "On DATE ORG of GPE found against the applicants and the dairy factory , finding as follows :", "“ According to LAW , the victim shall be compensated for the pecuniary damage caused by the crime , as well as for the costs incurred during the pre - trial investigation and trial ...", "According to Article CARDINAL of LAW of GPE , damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage .", "According to the judgment of ORG of DATE and the judgment of ORG of DATE , Mr V[italiy ] ORG had organised an armed group ( gang ) composed of PERSON , Mr DATE and PERSON who had committed , under his leadership , serious crimes : the murder of the head of ORG Mr V. and repeated attempts to murder the director general of [ a ] private company , PERSON", "According to ORG no . CARDINAL of ORG of the GPE of [ unreadable ] DATE , entitled ‘ On the case - law on application of provisions for compensation for pecuniary damage caused by crime’ , those who cause damage through their criminal activities shall be jointly liable for that damage . Thus , Mr V[italiy ] Vulakh , PERSON , PERSON , and Mr DATE are jointly liable for the damage caused by their crimes .", "According to LAW , in cases of joint liability the creditor may claim satisfaction of debt , in full or in part , either from all the debtors or from each debtor individually .", "Mr V[italiy ] ORG should have borne liability for the pecuniary and non - pecuniary damage caused by the crimes , but he committed suicide during the pre - trial investigation .", "The defendants PERSON , PERSON , PERSON and PERSON are heirs to Mr V[italiy ] ORG after his death . According to LAW , heirs who have accepted an inheritance shall be jointly liable for the testator ’s debts . Each heir is liable in proportion with the share of the inheritance he received .", "Article CARDINAL of the Civil Code provides that the heir accepting a part of an inheritance is presumed to have accepted the entire inheritance , whatever its form or location ... On DATE [ the CARDINAL applicants ] were issued with an inheritance certificate ... in respect of the house .", "According to LAW , the estate of a co - owner of a private company includes that co - owner ’s part in the charter capital of the company . According to the audit report of DATE , the real value of Mr V[italiy ] ORG ’s part corresponds to PERCENT of the value of the net assets of the Kurganinskiy dairy factory , which amounts to MONEY ( RUB ) .", "For that reason , the defendants who have accepted a part of ORG ’s estate in inheritance must be considered to have accepted his part in the charter capital of the Kurganinskiy dairy factory .", "It follows that compensation in respect of pecuniary and non - pecuniary damage must be recovered from the Kurganinskiy dairy factory whose charter capital comprises a part of the estate inherited by [ the applicants ] ... ”", "ORG awarded PERCENT of ORG share in the dairy factory to PERSON company , PERCENT to PERSON , and PERCENT to PERSON , and ordered immediate enforcement of the judgment .", "On DATE the applicants lodged a statement of appeal . They submitted that that Mr Vitaliy Vulakh had not been found guilty by a court of law and should be presumed innocent . In the absence of a guilty verdict on PERSON there were no grounds to impose joint liability on his heirs . A civil claim should have been brought against him , and the court should have examined the matter of procedural succession . Furthermore , the dairy factory could not be held liable for the debts of its owners .", "On DATE ORG examined the appeal and upheld the judgment , endorsing ORG approach and rejecting the applicants’ arguments in the following terms :", "“ Although the prosecution of ORG was discontinued in connection with his death , on DATE Mr S. , Mr N. and PERSON were convicted and the conviction entered into legal effect . According to the judgment , Mr V[italiy ] ORG had been the leader of an armed group ( gang ) which had committed , under his leadership , serious crimes : the murder of the head of ORG , PERSON , and repeated attempts to murder the director general PERSON This means that the conviction established that Mr V[italiy ] ORG ’s had been responsible for causing pecuniary and non - pecuniary damage to the plaintiffs . ”", "Criminal proceedings must be discontinued against a deceased person except where a continuation of the proceedings is necessary for his or her rehabilitation or for the reopening of the case in respect of others on account of newly discovered circumstances ( Article CARDINAL § CARDINAL) .", "The Civil Code provides as follows :", "“ CARDINAL . A private company is a company founded by CARDINAL or more persons ; its charter capital is divided into parts described in its articles of association . Participants of a private company are not liable for its debts ... ”", "“ CARDINAL . Shares in the charter capital of a private company are transferred to the heirs of the company ’s participants ... unless the articles of association provide that such a transfer requires the consent of the other participants ... ”", "“ CARDINAL . Damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage ...", "NORP The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his ... ”", "The factual circumstances established by the final judicial decision in an earlier case , are binding on the court ( LAW ) . The final judicial decision in a criminal case concerning a particular person is binding on the court examining the civil - law consequences of that person ’s actions only to the extent that the criminal court determined whether or not such actions had been committed and whether or not they had been committed by that person ( LAW ) .", "On DATE the ORG of ORG quashed the criminal judgment against CARDINAL co - defendants in so far as it concerned the alleged participation of CARDINAL other persons in the crimes . The ORG held ( decision reported in ORG , no . DATE ) :", "“ In breach of LAW , the [ trial ] court erroneously declared PERSON and PERSON to have been accomplices to the crime . It follows from the case materials that , by the investigator ’s decision of DATE , the case against them had been severed into separate proceedings in connection with PERSON grave illness and the failure to locate PERSON reference to them in the text of the judgment , describing them as persons who had been complicit in the criminal offences committed by the convicts , is not justified because ... the merits of the criminal case against them have not been examined by a court of law . ”" ]

[ "6", "P1" ]

[ "6-2", "P1-1" ]

[ "P1-1-1" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and , as far as the ORG is aware , now lives in GPE . He was represented by Mr C.A. Madern , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agents , Mr R.A.A. PERSON and Ms J. Schukking , and their Deputy Agent , Ms L. GPE , of ORG .", "ORG , informed by the Registrar of their right under LAW to take part in the proceedings , did not elect to do so .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant first came to GPE in DATE . He had been issued a visa , valid for DATE , enabling him to visit relatives . It is not clear how long he stayed in the GPE .", "NORP In DATE the applicant married PERSON , a NORP national , in GPE . The couple subsequently returned to the GPE , apparently without a visa , where they resided illegally . A son , PERSON , was born to them on DATE . They lived together as a family for DATE before the spouses separated in DATE . The applicant had access to his son and would meet with him at his brother ’s house . Divorce proceedings in GPE were started in DATE , resulting in the divorce being pronounced on DATE . PERSON was given parental authority over PERSON , with the applicant being granted access to his son every first Sunday of the month and every first day of national and religious holidays .", "Meanwhile , in DATE , the applicant had returned to GPE to do his military service . DATE , PERSON visited GPE during holidays , staying for a while with the applicant ’s parents as well as with the applicant himself . In DATE the applicant returned to the GPE on a short - stay visa to visit relatives , but he overstayed . He saw his son a few times at his brother ’s house . The applicant states that PERSON thwarted the access arrangement as much as possible .", "Ms Ö. was granted a residence permit on an unknown date .", "On DATE the juvenile judge ( kinderrechter ) of ORG ( arrondissementsrechtbank ) issued a supervision order ( ondertoezichtstelling ) , valid for DATE , in respect of the applicant ’s son PERSON and the latter ’s half - sister ( a child born of a previous relationship of the applicant ’s ex - wife ) . This decision resulted from an investigation carried out by ORG ( PERSON ) , which had found that PERSON and his CARDINAL - sister were being ill - treated , that their mother had limited pedagogical abilities and that she would often leave the children on their own . ORG Bureau Jeugdzorg ) was appointed as the family - supervision institution ( gezinsvoogdij - instelling ) .", "On DATE the applicant applied for a residence permit on the basis of a temporary regulation on the legalisation of illegal aliens who had been residing in the GPE for a long period of time ( PERSON regeling witte illegalen ) . He indicated that he had regular contacts with his son , which it would be practically impossible to maintain from GPE , and that there thus existed compelling reasons of a humanitarian nature militating in favour of the grant of a residence permit . As the legalisation regulation only applied to requests which had been lodged DATE and DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant ’s request on DATE . The Deputy Minister further considered that there were no indications that the applicant ought to be allowed to reside in the GPE for reasons of a humanitarian nature .", "In a report of DATE compiled by ORG and enclosed with their request to the juvenile judge for an extension of the supervision order , the applicant is mentioned as being PERSON ’s biological father who is residing illegally in the GPE at an unknown address . On DATE the supervision order was extended for DATE . In addition , on DATE the juvenile judge ordered PERSON and his CARDINAL - sister urgently to be taken into care ( spoeduithuisplaatsing ) as it had been found that they were suffering serious neglect and abuse at home . They were accommodated in a foster home . This measure was confirmed on DATE and prolonged until DATE .", "Meanwhile , in his objection ( bezwaar ) of DATE against the decision refusing him a residence permit , supplemented by an additional document dated DATE , the applicant argued , inter alia , that his ex - wife was unable to look after their son by herself so that it was in PERSON ’s interests that the applicant also assist in his upbringing DATE and , therefore , that the applicant reside in the GPE .", "NORP On DATE the Deputy Minister dismissed the objection , finding that LAW did not impose a positive obligation on the GPE to grant the applicant a residence permit . In this context the Deputy Minister considered that the applicant had not substantiated his claim that his ex - wife was unable to bring up their son by herself . Moreover , it had not appeared that any impediment existed to the exercise of family life abroad .", "The applicant appealed this decision to ORG of The Hague , sitting in GPE , and also applied to that court for an injunction in order to stay his expulsion .", "In a report evaluating the course of the supervision order , drawn up by ORG and submitted with a request by that ORG of DATE for an extension of the order , it is stated that the applicant had expressed the wish to see his son more often . Neither PERSON nor PERSON was very taken with that idea . An access arrangement had nevertheless been agreed , but this did not appear to work in practice .", "NORP In additional grounds of CARDINAL DATE for his appeal to ORG of The Hague , sitting in GPE , in the aliens - law proceedings , the applicant argued that an investigation was being carried out into the question whether it would be better for PERSON if his father were made responsible for his care and upbringing . The applicant claimed that he was willing and able to do so , and that he had even applied for an amendment of the parental authority situation . The applicant further submitted that his son would have no possibility of maintaining the relationship with his father if the latter was not in the GPE . In that case , PERSON would have to stay with his mother or , as had been suggested by the family supervisor ( gezinsvoogd ) , be placed away from his mother and be accommodated in a foster family .", "At a hearing on DATE before the juvenile judge concerning the request for an extension of the supervision order relating to PERSON , the applicant stated that at the previous hearing the judge had said that it should be investigated whether or not it would be better for PERSON to live with his father , but no such investigation had taken place . An investigation into the feasibility of an access arrangement , also ordered , had not taken place either . The applicant announced that a change in the parental authority situation would be sought if the family supervisor failed to carry out the investigation into the possibility of PERSON living with him . At the hearing the family supervisor admitted that he had not yet done much about the request for an access arrangement as he had been concentrating on the situation of PERSON ’s CARDINAL - sister .", "In a decision of DATE the juvenile judge extended the supervision order and also ordered the starting - up of an access arrangement and an investigation into the possibility of PERSON living with his father .", "The applicant subsequently informed ORG , where his appeal was pending in the proceedings relating to his request for a residence permit , that the juvenile judge had instructed ORG to investigate whether he should be invested with parental authority over his son and whether his son should live with him .", "The hearing in these appeal proceedings took place before ORG on DATE . The applicant submitted inter alia that an investigation , ordered by the GPE juvenile judge , was currently pending into the question whether PERSON should be brought up by his father and whether parental authority over PERSON ought to be awarded to him . Furthermore , it was plain to see that there were obstacles to the applicant developing family life with his son in GPE : there was a supervision order in place , issued by a GPE court , and parental authority still remained with PERSON ’s mother – the applicant was thus not free to take his son with him .", "Since ORG had still not carried out the investigation ordered by the juvenile judge , the applicant submitted a petition to ORG on DATE in which he requested to be granted sole parental authority over PERSON and to be entrusted with PERSON ’s upbringing . The applicant argued that PERSON had indicated that he wanted to see his father more often and even wanted to live with him , but that his mother did not agree to this .", "On DATE ORG rejected the appeal as well as the request for an injunction in the proceedings relating to the applicant ’s request for a residence permit . It considered that the Deputy Secretary had been correct in attaching greater weight to the interests of the community as a whole than to those of the individual . In this context ORG took into account that the applicant had only submitted a decision of the juvenile judge extending the supervision order , but no documents showing that he had lodged a request for parental authority . The applicant had furthermore not submitted proof of the existence of an access arrangement ; it was unclear where the child was staying ; and the applicant had not demonstrated that there were any objective impediments to family life between himself and his son being pursued in a different manner . ORG noted that the applicant could keep in contact with his son by telephone or letters . No further appeal lay against this decision .", "ORG subsequently decided that , for the time being at least , it would not be in PERSON ’s best interests for him to go and live with his father . Although PERSON ’s situation with his mother was not ideal , it was not so alarming that he urgently required to be placed away from her . In addition , a placement with his father DATE to which neither PERSON nor his mother consented –would confront PERSON with a serious conflict of loyalties . For those reasons , ORG did not consider it opportune to examine the applicant ’s situation . ORG informed the applicant of its position on DATE . It had further agreed with PERSON that he would see his father every first Sunday of the month .", "On DATE ORG refused the applicant ’s request to be awarded sole parental authority . The court agreed with ORG that at the present time it was not in PERSON ’s best interests for the applicant to be invested with parental authority . The applicant lodged an appeal against this decision , submitting that the supervision order had been in place for DATE without PERSON ’s situation having undergone any real improvement .", "NORP The applicant left the GPE in DATE and , as far as the ORG is aware , has resided in GPE ever since .", "Following a hearing on DATE , ORG ( gerechtshof ) ordered ORG to investigate , before DATE , the applicant ’s background and the possibility of parental authority being granted to him .", "In a decision of DATE , ORG rejected the appeal . It had regard to the report issued by ORG on DATE , from which it appeared that the applicant had not been involved in the ORG ’s investigation as he was residing in GPE and was unable to come to the GPE due to the fact that his visa applications kept being refused . ORG had , however , contacted a brother of the applicant ’s and the former ’s spouse , according to whom PERSON had had irregular contacts with his father in DATE . ORG noted that , if parental authority was awarded to the applicant , this would mean that PERSON , who had been born and bred in the GPE , who did not speak NORP and who did not want to go to GPE , would have to move to GPE at DATE . ORG considered that this would not be in PERSON ’s best interests , even though it was true that the situation in which he was being raised had not been ideal in DATE . ORG agreed with the ORG ’s assessment , adding that it had not been made clear in what way the applicant would wish to exercise his parental authority . While it understood the applicant ’s concerns , the court also took into account that PERSON ’s health and performance at school had in the meantime improved and that the supervision order was also expected to have a positive effect .", "The applicant did not lodge an appeal on points of law with ORG ( PERSON ) against this decision .", "Domestic law and practice relevant to the present case are set out in PERSON v. the GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ." ]

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[ "The applicant LOC are all situated in the municipality of PERSON in the county of PERSON .", "The PERSON have , since ancient times , inhabited the northern parts of LOC and LOC . Originally living by hunting , fishing and collecting , the PERSON activities changed over time to concern mainly reindeer herding . Their historical use of the land has given rise to a special right to real estate , the reindeer herding right ( renskötselrätten ) . Presently regulated in GPE by LAW ( Rennäringslagen , CARDINAL ) , it comprises the right to use land and water for the PERSON 's own sustenance and that of his reindeer . The right may only be exercised by the members of a LOC village . Such villages are both geographical grazing areas and economic entities . They do not have any public legal status ( see GPE and CARDINAL Other GPE v. GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , Decisions and Reports CARDINAL , p. CARDINAL in fine ) . The reindeer herding area comprises CARDINAL of the surface of GPE and is divided into DATE land and DATE grazing land . In certain parts of the country , the borders of the herding area are controversial and have not been statutorily defined , especially as concerns the DATE grazing land .", "On DATE a large number of private owners of land in the municipality of Härjedalen instituted proceedings against CARDINAL LOC villages , the CARDINAL applicants and the Idre Nya Sami village , before ORG ( tingsrätten ) of PERSON . On DATE more landowners initiated a similar action against the Sami villages . The landowners sought a declaratory judgment ( negativ fastställelsetalan ) that the Sami villages had no right to reindeer grazing on their land without a valid contract to that effect concluded between the landowner and the village .", "On DATE ORG issued a summons and decided that the CARDINAL cases were to be examined jointly . At a preparatory meeting on DATE , the court rejected the villages ' request for dismissal of the cases on procedural grounds .", "On DATE the NORP villages submitted their response , contesting the landowners ' action . The villages claimed that they had the right to DATE grazing within their respective areas based on ( CARDINAL ) prescription from time immemorial ( urminnes hävd ) , ( CARDINAL ) the provisions of the reindeer grazing and reindeer husbandry acts of DATE , DATE , DATE and DATE , ( CARDINAL ) custom , or ( CARDINAL ) public international law , more specifically LAW of ORG , as compared with LAW , LAW , of ORG ( Regeringsformen ) .", "Following CARDINAL extensions of the time - limit fixed by ORG , the landowners replied to the PERSON villages ' submissions on DATE . An additional preparatory meeting was held on DATE , at which the parties discussed , inter alia , the possibility of reaching a settlement . Furthermore , the villages were ordered to elaborate on their claim based on custom and to specify their means of evidence . They did so on DATE following CARDINAL extensions of the time - limit set . At the same time , they requested that the court inspect some of the properties concerned .", "On DATE , having been granted several extensions , the landowners submitted a specification of the means of evidence offered . During DATE , the parties exchanged views on questions of evidence and submitted specifications of supplementary evidence . On DATE ORG sent a summary of the respective positions to the parties for comments . A further preparatory meeting took place on DATE .", "During DATE and DATE , further comments were exchanged . On CARDINAL and DATE a preparatory meeting was held in order to plan the schedule for the main hearing . DATE and DATE , further views were exchanged , among other things on the LOC villages ' request for an inspection .", "By a decision of CARDINAL DATE , ORG rejected the request for an inspection on the ground that the villages had not shown that an inspection of certain properties was necessary for an examination of whether they had a right to DATE grazing on the land in question .", "The parties were summoned for the main hearing at DATE . On DATE some more landowners initiated a similar action against the Sami villages . This case was joined to the other CARDINAL .", "The main hearing started on DATE and ended on DATE . It lasted for DATE . ORG heard a large number of experts and witnesses and had regard to substantial documentary evidence . During the hearing , as well as on CARDINAL previous occasions , the court struck out the case in regard to some of the landowners following withdrawal of the action on their part . The CARDINAL joined cases eventually comprised property belonging to CARDINAL landowners .", "Having examined the developments of the LOC culture and reindeer herding since prehistoric times , ORG issued a CARDINAL judgment on DATE . It found that , from DATE to DATE , there had not been any DATE grazing which had established a right for the PERSON to such grazing on the relevant properties and that , from DATE , the actual DATE grazing , as DATE recorded by the socalled ORG bailiffs ( lappfogdar ) , had not lasted long enough in the respective parishes to create a right to grazing on those properties based on prescription from time immemorial , such prescription requiring DATE use of the land . For these reasons , the LOC villages could not claim a right to use the properties under the various laws , including the Reindeer Husbandry Act presently in force . Moreover , the court found that a right to real property could not legally be established through “ custom ” and that a right to DATE grazing on the properties in question could not be based on the provisions of LAW and ORG . The court therefore concluded that there was no right of the LOC villages to reindeer grazing on the plaintiffs ' land without a valid contract and accordingly gave judgment in favour of the landowners . The court ordered the LOC villages jointly to pay the plaintiffs ' legal costs , amounting to MONEY ( SEK ; CARDINAL ( ORG ) ) .", "On DATE the Sami villages appealed to ORG ( hovrätten ) of PERSON . They demanded that ORG judgment be quashed , that the landowners ' action be rejected and that the decision on litigation costs not be enforced . They completed their appeal on DATE .", "On DATE the landowners responded and requested that the NORP villages not be allowed to invoke circumstances in their defence that had not been presented to ORG . In a submission of DATE , the villages , on their part , made an additional demand that ORG judgment be set aside and the case remitted to that court on the ground that a procedural error had occurred . During DATE , the parties exchanged views on these and other matters . The landowners submitted their comments on the villages ' additional demand on DATE .", "By a decision of DATE , ORG ruled on CARDINAL different procedural issues . Among other things , it rejected the LOC villages ' request that the appealed judgment be set aside and the case remitted . It also rejected the landowners ' request that the villages not be allowed to invoke certain circumstances in their defence , with CARDINAL exception . Thus , the court did not allow the villages to argue that DATE grazing without protests from landowners for a period of DATE would qualify for a continued right to such grazing based on prescription from time immemorial or the provisions of the reindeer grazing and reindeer husbandry acts . Furthermore , ORG rejected the LOC villages ' requests for an inspection of the locus in quo and for an order against the landowners to produce maps of the areas concerned . In its reasons for the various rulings , the court referred , inter alia , to the provisions of LAW ( PERSON ) concerning the conditions for invoking new circumstances and evidence not previously examined by ORG .", "On DATE the parties were ordered to complete their respective actions by DATE .", "On DATE the Sami villages claimed that there was a procedural hindrance ( rättegångshinder ) as they lacked the capacity to act as parties in relation to the issue concerned by the proceedings in question . By a decision of DATE , ORG rejected this claim , stating that , under the provisions of LAW , they had the necessary legal capacity . On DATE the villages appealed against that decision to ORG ( ORG domstolen ) . At their request , ORG granted the villages an extension of the time - limit set for the completion of their appeal until ORG had rendered its decision on the procedural issue . By a decision of DATE , ORG refused the villages leave to appeal .", "In a submission of CARDINAL March CARDINAL , the NORP villages demanded that the ORG , through the Chancellor of ORG ( NORP ) , intervene on their side in the proceedings . At DATE , the Chancellor informed ORG that he did not intend to apply to participate in the proceedings .", "In DATE and DATE the NORP villages were ordered to complete their appeal , which they did on DATE , after having been granted extensions of the time - limits set . Shortly thereafter , the landowners were ordered to submit the means of evidence they invoked , which they did on DATE , also following time - limit extensions .", "In DATE the landowners applied for the Sami villages ' appeal to be dismissed and in DATE the villages reiterated their demand that ORG judgment be quashed and the case remitted . By a decision of DATE , ORG rejected these requests .", "On DATE the NORP villages requested that the court obtain an opinion from an expert ( sakkunnig ) . Following the landowners ' objection and the villages ' further comments , the court rejected this request on DATE .", "In DATE the court ordered the parties to make submissions on the question of which landowners were to be considered opposite parties in the appellate proceedings . The Sami villages submitted several comments DATE and the landowners made their submissions in DATE , after extensions of the time - limits set .", "On DATE , having interpreted one of the landowners ' submissions as a motion for dismissal of the Sami villages ' appeal , ORG rejected that motion . On DATE the villages adduced some written evidence not previously presented . The landowners objected to that evidence but , by a decision of CARDINAL DATE , the court allowed the villages to present it .", "The main hearing in ORG was held DATE and lasted DATE . The appellate court heard the same evidence as ORG and , as already mentioned , some additional written evidence introduced by the PERSON villages .", "Following some landowners ' withdrawal of their action and ORG village 's withdrawal of its appeal , ORG , by decisions of DATE and DATE , struck out the case and set aside ORG judgment – including the Idre Nya Sami village 's liability for litigation costs – in so far as it concerned these same parties .", "By a judgment of DATE , ORG upheld ORG judgment and ordered the applicants to pay the plaintiffs ' legal costs in the appellate proceedings , amounting to MONEY CARDINAL ( about EUR CARDINAL,CARDINAL ) .", "ORG initially referred to the conclusion by ORG in the so - called “ LOC ” ( PERSON , NJA DATE , p. CARDINAL ) that the rights pertaining to reindeer herding were exhaustively regulated by LAW . Consequently , the right of DATE grazing was dependent on the conditions for prescription from time immemorial being met , those conditions having been regulated in the old LAW ( ORG ) of DATE .", "As regards prescription from time immemorial and the burden and standard of proof in this respect , ORG stated the following :", "“ Under LAW , LAW CARDINAL of the old LAW , the following applied to proof of prescription from time immemorial . ' If someone pleads prescription from time immemorial and fault is found with this claim , let him then show by means of old letters and writings deemed sufficient in law , or by means of credible men who have good local knowledge and can bear witness , on oath , that they neither know themselves nor have heard from others that the situation has ever been different . If he is unable to do this , the prescriptive right shall then be without force and effect . ' According to the preparatory works for the DATE LAW and the [ DATE ] LAW , in cases subject to dispute , the question of whether a right to winter grazing applies in a certain area is to be examined by a court on the basis of the evidence that is required under general law for proof of prescription from time immemorial ( see Government PERSON , p. CARDINAL , and Government PERSON , p. CARDINAL ) . The burden of proof that DATE grazing has taken place on the property owner 's land to such an extent that the LOC villages have a right to continued DATE grazing may therefore be deemed to rest with the PERSON villages .", "In this case , the LOC villages claim that a right to DATE grazing based on prescription from time immemorial has come into being as PERSON have been in LOC since prehistoric times , as reindeer were early on associated with the PERSON culture , as reindeer management took on a completely nomadic form in DATE or , at all events , during DATE , and it can be assumed that even then , in DATE , depending on the weather conditions and access to food , the reindeer belonging to the PERSON wandered in search of food , and as the custom that developed at that time has endured until modern times . However , in the opinion of ORG , for a right to DATE grazing on the disputed lands to be deemed to have arisen on the basis of prescription from time immemorial , it must be required in addition that the results of the investigation indicate with sufficient strength that PERSON have used the lands in question or parts of them for DATE grazing for their reindeer with at least some regularity without hindrance , that is , without objection from other holders of rights . ”", "The court further held that account had to be taken of the special features of reindeer husbandry . The herding required much space and necessitated movement between various grazing areas . The right to DATE grazing based on prescription could not require that reindeer grazed in a particular area DATE . However , a basic condition for that right was that the area had been used in such a way that every instance of grazing could be seen as part of a recurring pattern , although absence from the area in question could be more or less prolonged .", "ORG examined extensive evidence dating back DATE and drew the following conclusions . As regards the period before the entry into force of LAW ( most notably , DATE ) , it had not been shown that free DATE grazing DATE that is , in the absence of contracts or the authorities ' permission – had taken place in LOC . On the contrary , the individual landowners had protested against reindeer grazing on their land . At the time of the enactment of the DATE and DATE Acts , the disputes between the domiciled population and the nomadic GPE about the use of the land at issue had been particularly sensitive in PERSON , and the investigation did not show that any DATE grazing had occurred outside the boundaries of the “ reindeer grazing mountains ” . According to the evidence presented with respect to the situation in DATE , grazing outside these mountains had existed during wintertime only in limited areas and protests from landowners had been commonplace .", "The appellate court thus found , in agreement with ORG , that , DATE , there had not been such DATE grazing outside the reindeer grazing mountains which , together with the grazing that had taken place during DATE , could create a right to use the relevant properties on the basis of prescription from time immemorial . The longest period in DATE during which DATE grazing had occurred in CARDINAL area without landowners ' objections was DATE , thus insufficient to establish a right based on prescription .", "The applicants appealed to ORG on DATE . Their appeal was completed on CARDINAL DATE . In DATE , they submitted documents as to the question of who was to represent them before ORG .", "On DATE ORG refused the applicants leave to appeal .", "ORG ( Samefonden ) has granted the applicants a loan of SEK CARDINAL,CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL,CARDINAL ) to pay the litigation costs incurred in the domestic proceedings . The loan , which is free of interest , is due on DATE .", "The nature and scope of PERSON rights to land and water are governed by FAC . A person of PERSON descent may use land and water in order to maintain himself and his reindeer ( section CARDINAL ) . The reindeer herding right is a usufruct of economic value founded on prescription from time immemorial ( section CARDINAL , subsection CARDINAL ) . It is to be exercised irrespective of contracts and free of charge , without limitations in time and space and on land belonging to the ORG as well as to private subjects , in accordance with the conditions laid down in sections CARDINAL of the LAW . These provisions also contain restrictions on the exercise of such rights depending , inter alia , on whether the land belongs to the ORG or to private subjects . The reindeer herding right includes the right of members of a LOC village to engage in hunting and fishing , to graze reindeer and to erect certain structures and buildings needed for reindeer herding , as well as to collect wood and timber from the forests . It pertains to all PERSON , but may only be exercised by members of a GPE .", "Section CARDINAL of the LAW defines the areas where reindeer herding may be conducted ( renskötselområdet ) . In so far as the county of PERSON is concerned , herding may be carried out throughout DATE on the so - called “ reindeer grazing mountains ” ( renbetesfjällen ) and in those areas within the county which , at DATE , belonged to the ORG and were made available specifically for reindeer grazing . Winter grazing may be carried out from DATE to DATE in such areas outside the reindeer grazing mountains where , since time immemorial , reindeer grazing has been conducted during certain times of DATE .", "Section CARDINAL , subsection CARDINAL , defines “ reindeer grazing land ” as land that has been declared to constitute reindeer grazing land through the process of delimitation of ORG lands ( avvittring , that is , a process taking place DATE with the aim of separating private land from ORG land and imposing taxes on the former ) or that has been used as such land since time immemorial . The notion of “ reindeer grazing mountains ” refers to mountains reserved for the PERSON for reindeer grazing through the process of delimitation of ORG lands and the areas which have since then been made available for extension of the mountain grazing areas .", "A LOC village is a geographical grazing area and an economic entity . Its main object is to manage reindeer herding within the grazing area of the village to the common benefit of its members ( section CARDINAL ) . A village may acquire rights and undertake commitments and represents its members with regard to issues related to reindeer husbandry ( section CARDINAL ) . The members of a LOC village are PERSON who participate or have participated in reindeer herding within the community 's grazing area , as well as their closest family members ( section CARDINAL ) .", "As mentioned above , the reindeer herding right is based on prescription from time immemorial . This was specified in LOC through a DATE amendment , following ORG conclusion in the “ LOC ” that the right to certain mountain areas in northern GPE could be based on prescription from time immemorial in combination with occupation . Provisions on ownership and other , more limited , rights to land based on prescription from time immemorial are mainly found in the old LAW of DATE . For a right of ownership or usufruct based on such prescription to arise , the land had to have been occupied or used for such a long time that nobody knew or had heard that the situation had ever been different ( LAW , LAW , of the old Code ) .", "The qualification period required is estimated to be DATE ( see PERSON , GPE , DATE , p. CARDINAL , with references ) . Section CARDINAL of the Act on Implementing the new LAW ( ORG om införande av nya jordabalken ; PERSON ) stipulates that the provisions of the new LAW are not to interfere with any rights to land based on prescription from time immemorial that have arisen before the new LAW came into force ( DATE ) . This implies that any historical provision that could have given a person or entity rights to certain land before that date is still valid . As more specifically regards the PERSON right to DATE grazing based on prescription from time immemorial , the area has not been geographically demarcated in FAC . If there is a dispute about whether a particular piece of land has traditionally been used for herding during certain times of DATE and thus may be used for DATE grazing DATE the issue is to be decided by the courts on the basis of the evidence presented ( see Government PERSON , p. CARDINAL , Government PERSON , p. CARDINAL , and the report by ORG , ORG , p. CARDINAL ) .", "Under LAW ( Rättshjälpslagen , DATE ) in force at the material time , legal aid could be given to natural persons who fulfilled certain conditions , in particular that their financial resources were limited . A legal entity like a LOC village was thus not entitled to legal aid .", "ORG is regulated in sections CARDINAL of the Reindeer Husbandry Ordinance ( Rennäringsförordningen , DATE ) . The ORG 's purpose is to subsidise and promote reindeer husbandry , PERSON organisations and PERSON culture . As regards the promotion of reindeer husbandry , the subsidies can be used for the purchase and lease of land for reindeer herding , rationalisation of reindeer husbandry and other measures . The means are administered by ORG ( NORP ) . Decisions on how the means are to be used are taken by the board of ORG , which consists of CARDINAL persons of PERSON origin .", "The revenue of ORG mainly consists of charges for leases to others than reindeer owners of land belonging to the ORG where reindeer husbandry may be carried out all the DATE round . Such revenue , which includes , for instance , licensing fees for hunting and fishing , is divided equally between the LOC village concerned and ORG .", "In its budget proposal for DATE ( Government PERSON ) , which was approved by ORG , the ORG laid down that some of the revenue of ORG could be used to part - finance the lease of land for DATE grazing in the areas concerned in the present case ." ]

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[ "The applicants , PERSON ( hereinafter : “ the first applicant ” ) , PERSON ( “ the second applicant ” ) and PERSON PERSON ( “ the third applicant ” ) , are NORP nationals , who were born in DATE , DATE and DATE respectively and live in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The second applicant is the mother of the first and third applicants .", "On DATE the applicants filed with ORG an action against an insurance company P. in which they claimed compensation and supplementary pensions relating to the death of PERSON , the second applicant ’s husband and the other applicants’ father .", "On DATE the court gave judgment . It awarded compensation to the applicants and dismissed their claims for pensions . They appealed .", "On DATE ORG amended the appealed judgment in that it increased the amount of compensation . On DATE the applicants lodged a cassation appeal against ORG judgment .", "On DATE ORG decided to reinstate the time limit for lodging a cassation appeal .", "On DATE the first and third applicants withdrew their claims for supplementary pensions , limiting their appeals to the issue of compensation . They submitted that , despite the partial exemption , the fee they had to pay for their cassation appeal was excessive . The applicants therefore decided to limit the overall value of their claims , in consequence of which the proportional fee was reduced and they could afford to pay it .", "On DATE ORG gave a judgment . It discontinued the proceedings as far as they concerned the first and third applicants’ claims for pensions , since they had withdrawn those claims and it was bound by their decision . The court quashed part of the judgment of ORG and remitted that part of the case for re - examination . It dismissed the remainder of the cassation appeal .", "On DATE , having re - examined the case , ORG amended the judgment of ORG as far as it concerned the first and third applicant . It quashed the part relating to the second applicant and remitted the case in that part for re - examination .", "The Jelenia Góra Regional Court held hearings on DATE , DATE , CARDINAL DATE , DATE , DATE , DATE and DATE .", "On DATE the ORG gave a judgment . It awarded the second applicant a supplementary pension , as well as overdue pension payments . She appealed .", "On DATE ORG amended the appealed judgment .", "Relevant domestic law and practice", "On DATE NORP ORG adopted a new law “ on complaint about a breach of a right to have one ’s case heard within a reasonable time ” . The act entered into force on DATE .", "Section CARDINAL of the LAW provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached . The court shall take into consideration the following criteria : the conduct of the court before which the case is pending ; the character of the case and the complexity of the legal and factual issues involved therein ; what was at stake for the complainant , and the conduct of the parties . The length complaint must be lodged when the proceedings are still pending .", "Pursuant to LAW , if the court finds that the length complaint is wellfounded , it shall give a ruling to this effect . If the complainant so requests , the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings . The court may also , award an appropriate amount of money to the complainant , in the amount not exceeding PLN MONEY .", "Under LAW , within DATE after the entry into force of the LAW , that is , from DATE , anyone who had lodged an application with ORG in due time complaining of a violation of the “ reasonable - time ” requirement contained in LAW was entitled to lodge a length complaint provided for by LAW , if the application to the ORG had been lodged when the proceedings were still pending and if it had not yet been declared admissible by ORG ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant was teaching biology and chemistry and was the headmaster of ORG in GPE . By its decision of CARDINAL DATE ORG and ORG ( ORG prosvjete i športa ) relieved the applicant of his post of headmaster and dismissed him from work on account that he had reached the retirement age .", "On DATE the applicant brought an action in ORG ( ORG ) against that decision .", "On DATE ORG declined its jurisdiction in the matter , and on DATE forwarded the case to ORG ( PERSON ) .", "On DATE ORG invited the applicant to supplement his claim , which the applicant did within the time - limit indicated . The court held hearings on DATE and DATE .", "On DATE ORG , considering that it lacked jurisdiction in the matter , made an application to ORG ( PERSON ) with a view to resolving the negative conflict of jurisdictions .", "On DATE ORG ruled that ORG was competent to hear the applicant 's case .", "Following the transfer of the case back to ORG , on DATE that court ruled in favour of the applicant . It quashed the impugned decision of CARDINAL DATE and remitted the case to ORG .", "NORP Since ORG failed to give a new decision within the statutory time - limit of DATE , on CARDINAL DATE the applicant requested ORG to do so ( see paragraph CARDINAL below ) . In their reply to his request , ORG submitted that it was no longer competent to issue such a decision owing to the change in legislation governing primary education . On DATE ORG , acting as a court of full jurisdiction , issued a decision entirely substituting for that of the Ministry . It dismissed the applicant 's request by accepting that the Ministry no longer had competence in the matter . However , it found that in those circumstances the ORG should have forwarded the case - file to a body authorised under the new legislation to issue such a decision – the school board of ORG . ORG did so on DATE .", "It appears that the case is currently pending before the school board .", "Meanwhile , on DATE the applicant lodged a constitutional complaint about the length of the proceedings . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's complaint . It examined only the length of the proceedings in their part between the introduction of the applicant 's request to ORG on DATE and the lodging of the constitutional complaint . ORG dismissed the constitutional complaint finding that the proceedings had lasted DATE .", "The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :", "“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual 's rights and obligations or a criminal charge against him or her within a reasonable time ...", "( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...", "( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”", "The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL/CARDINAL , DATE and CARDINAL ) provide as follows :", "Section CARDINAL ) provides that , in the execution of ORG judgment , the administrative authority shall issue its decision immediately but at the latest within DATE . Otherwise , a party may by a special submission request it to do so . If the authority does not issue a decision within DATE following that request , a party may apply to ORG .", "Section CARDINAL(CARDINAL ) provides that if such an application was made , the ORG shall first ask the administrative authority to give reasons for its omission . The authority shall reply immediately but at the latest within DATE . If the authority fails to do so , or if the reasons given do not justify the failure to decide , the ORG shall give a decision entirely substituting for the decision of the administrative authority ." ]

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[ "The application was originally submitted by PERSON ( hereinafter “ the applicant ” ) and PERSON . The latter ’s complaints were declared inadmissible by ORG ( “ the Commission ” ) on DATE . The present applicant is a NORP national who was born in DATE . He is a businessman resident in PERSON . Before the ORG he is represented by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "A.", "In DATE the applicant sued CARDINAL companies , a limited partnership company P ( hereinafter “ P Company ” ) and a finance company I ( hereinafter “ I Company ” ) , for damages resulting from a breach of contract relating to his hire - purchase of a forestry vehicle and related equipment . He argued , inter alia , that the relevant vehicle model had not been officially approved by the authorities for the purpose and could therefore not be used . In a further suit of DATE he requested that the hire - purchase contract be dissolved .", "The parties appeared CARDINAL times before the then ORG ( raastuvanoikeus , rådstuvurätten ) of GPE . The presiding judge apparently changed on a number of occasions .", "The court heard thirteen witnesses called by the applicant and CARDINAL witnesses called by the companies . The parties did not call any further witnesses .", "The applicant objected to the hearing of CARDINAL witnesses called by the companies . Firstly , he objected to the examination of witness K on the grounds that K was a limited partner in P Company . The court dismissed the applicant ’s objection and heard evidence from PERSON , the applicant objected to the examination of ORG , a lawyer employed by ORG , stating that ORG had sat among the audience at least during the first CARDINAL court sessions . ORG asked ORG whether he had participated in the previous pleadings . PP having answered in the negative , ORG dismissed the objection . According to TIME of the case , the applicant asked ORG whether he had been present in the courtroom during the CARDINAL first court sessions . ORG replied that he had been among the audience . Furthermore , ORG heard evidence , among others , from ORG , who was ORG of P Company .", "In DATE I Company countersued the applicant for breach of the hire - purchase contract . On DATE the applicant objected to the countersuit , claiming that the summons had not been duly served on him since he had only been given copies of the annexes to the writ of summons . ORG rejected the objection , noting that the applicant had acknowledged that , although he had received only copies of certain annexes , the relevant original documents had nevertheless been shown to him .", "ORG last session on DATE was presided over by Judge PERSON On DATE ORG rejected the applicant 's action . The judgment comprises CARDINAL pages . TIME last court session state , inter alia , as follows :", "\" ... After judgment had been pronounced [ the applicant ’s counsel ] stated that the lack of an official approval of the ... vehicle model had been one of the grounds for the action and DATE ... the principal issue . Counsel ... therefore requested that ORG pronounce itself on the question of the model approval . The parties having stepped out , ORG inserted a finding on this point in its judgment and pronounced it to the parties . ... \"", "On this point ORG found that it had not been shown that the vehicle required a model approval and that , in any case , the applicant had inspected and accepted the vehicle before concluding the hire - purchase contract .", "In DATE the applicant appealed against ORG judgment . He stated , inter alia , that witness ORG should not have been heard and that his testimony should therefore be ignored . In addition , he criticised the proficiency of the judges of ORG .", "On DATE , ORG ( hovioikeus , hovrätten ) approved ORG decision as regards the CARDINAL procedural objections concerning witnesses K and PP . Furthermore , it found no indication that ORG had been prevented from testifying on account of his position in P Company . ORG went on to reject the appeal as a whole .", "In DATE the applicant requested leave to appeal . He stated , inter alia , that during the hearings CARDINAL of the judges of ORG had made improper eye contact with the ORG counsels .", "In a document signed by the applicant 's wife on DATE she confirmed that prior to being heard as a witness before ORG a lawyer named ORG , employed by ORG , had sat among the audience during CARDINAL or CARDINAL court sessions . At the beginning of the oral hearings , the applicant ’s counsel had already objected to ORG 's presence . The document was submitted to the Commission as an annex to the application .", "On DATE , ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal . It does not appear whether the above - mentioned document of DATE was submitted to ORG .", "In a document signed by the applicant and his wife on DATE they stated , among other things , that while the case was pending before ORG , I Company 's counsel and the lawyer PP employed by it repeatedly stated that because of their contacts with the judiciary the applicant 's action was bound to fail .", "In a later civil case , completely unrelated to the applicant ’s case , one of the parties requested that the above - mentioned Judge T step down on account of his being a member of the NORP ( vapaamuurarit , frimurarna ) as were some of the directors of the other party . ORG ( the former ORG ) , were the case was pending , rejected this request on DATE . Thereafter , ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) was filed with a petition . On DATE Judge T excluded himself from the case on his own initiative .", "The applicant became aware of Judge T ’s membership of the NORP through a newspaper report of DATE . It does not , however , appear when he started to believe that some of the members belonging to the management of ORG were , or might be , NORP .", "It does not appear which members belonging to I Company ’s management , if any , were PERSON at the relevant time .", "The applicant did not request the case be reopened .", "B. Relevant domestic law and practice", "According to chapter CARDINAL , section CARDINAL , of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångs balk ) , a judgment which has acquired legal force may be nullified ( poistaa , undanröja ) by a court of appeal or ORG on account of a procedural error if , for instance , the case was examined even though the court lacked quorum or should of its own motion have declined to examine the case for a particular reason ( CARDINAL ) ; or if another procedural error has occurred which is found to have or can be presumed to have essentially influenced the outcome of the case ( CARDINAL ) . If nullification is sought on these grounds , the application shall be lodged within DATE from the date when the judgment sought to be annulled acquired legal force ( section CARDINAL ) .", "According to chapter CARDINAL , section CARDINAL , of the Code of Judicial Procedure , a judgment in a civil case which has acquired legal force may be annulled ( purkaa , återbryta ) by ORG if , for instance , a member or an official of the court has committed a criminal act which can be presumed to have influenced the outcome of the case ( CARDINAL ) ; if a circumstance or piece of evidence , which was not introduced previously , is referred to and its introducing would probably have led to a different outcome of the case ( CARDINAL ) ; or if the judgment is based on manifestly incorrect application of the law ( CARDINAL ) . Such an application shall be lodged within DATE from the date when the applicant became aware of the circumstance on which the application is based ( CARDINAL ) , or judgment concerning the criminal act ( CARDINAL ) , or the judgment sought to be annulled ( CARDINAL ) acquired legal force . In the CARDINAL first - mentioned cases the application shall at any rate be made within DATE from the date when the judgment sought to be annulled acquired legal force , unless weighty reasons are put forward for a later application ( section CARDINAL and ORG precedent No . CARDINAL:CARDINAL ) .", "In a judgment of DATE , ORG nullified , by virtue of DATE , section CARDINAL , of LAW , a decision of its own for a reason relating to the disqualification of a judge who had participated in the taking of that decision ." ]

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[ "The applicant was born in DATE and resides in the town of GPE , GPE , GPE .", "The applicant instituted proceedings in the ORG of Donetsk Region against ORG No . CARDINAL – a ORG - owned enterprise – to recover salary arrears .", "On DATE the ORG found in favour of the applicant ( ORG городского суда PERSON области ) and awarded him ORG CARDINAL,CARDINAL.CARDINAL . On DATE ORG ( PERSON исполнительной службы Новогродовского городского управления юстиции ) initiated the enforcement proceedings .", "By a number of decisions of ORG of GPE , ORG had been prohibited from selling the property of ORG , due to the bankruptcy proceedings which had been initiated against the company .", "In DATE the judgment in the applicant ’s favour was enforced in full .", "The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Hämeenlinna . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The applicant ’s firm had constructed chalk stabilisation machines for a construction firm P .. Concerning the first machine , they agreed that the costs CARDINAL NORP Marks ( ORG ; corresponding to MONEY ( ORG ) ) were to be financed by the latter . No formal agreements were entered into for the subsequent machines .", "Allegedly on DATE the applicant and PERSON , a managing director of a company PERSON , which is a subsidiary company of P. , concluded a rental agreement for the machines to be used in PERSON ’s construction business in GPE . CARDINAL of the machines was rented to M .. On DATE and DATE paid the applicant rent amounting to CARDINAL and MONEY ( SEK ) , respectively .", "On DATE the applicant allegedly removed CARDINAL of the machines from the construction site , without returning it to P .. The following day PERSON filed a criminal complaint with the police of PERSON , accusing the applicant , as the responsible partner of his firm , of having stolen it .", "On DATE the applicant ’s firm , P. and PERSON agreed that the civil dispute as to the ownership and the right of possession of the machines were to be resolved before ORG ( raastuvanoikeus , rådstuvurätten ) of GPE .", "On DATE the police in GPE interrogated PERSON on suspicion of embezzlement ( concerning the rental agreements ) . However , on CARDINAL DATE the NORP prosecutor decided not to lodge charges against him since there was insufficient evidence . At the time the applicant was not a suspect .", "On DATE the police of PERSON discontinued the pre - trial investigations concerning the applicant , finding the case to be a civil dispute .", "It appears that meanwhile a civil dispute between ORG and the applicant was pending before ORG of Helsinki , which decided on DATE that the machines ( and apparently also other similar machines ) belonged to P .. It ordered the applicant to return the machines to P ..", "In an another civil dispute , the then ORG ( kihlakunnanoikeus , häradsrätten ) of GPE on DATE ordered H. to reimburse to ORG the rental costs of the machine amounting to LOC .", "According to the applicant , on DATE a demand for an investigation ( tutkintapyyntö , begäran om förundersökning ) to be opened against him was made to the police of PERSON . Another demand for an investigation was made to the police of Hämeenlinna on DATE . Following this , on DATE an offence by the applicant was reported to the police . He was suspected of aggravated embezzlement relating to the non - delivery of the constructed machine to P. ( “ first embezzlement ” ) . On DATE the pre - trial investigation was assigned to the economic crime investigation group of the province of GPE . At that time PERSON was a suspect as well . It is unclear when the applicant was interrogated by the police .", "Apparently criminal investigations against the applicant and H. relating to an alleged embezzlement committed in GPE concerning the rental agreement ( “ second embezzlement ” ) were opened in GPE in DATE .", "The applicant was arrested and detained DATE and DATE . On DATE the provisional indictment was served on him .", "On DATE the pre - trial investigation was concluded . Charges were lodged in DATE . Following the request by the NORP public prosecutor , he was also charged with the alleged embezzlement committed there .", "On DATE the criminal proceedings before ORG ( käräjäoikeus , tingsrätt ) of Hämeenlinna began . On DATE ORG issued its judgment , acquitting the applicant and other defendants . The court further ordered PERSON pay the GPE legal costs .", "The prosecutor , the complainants , the applicant and co - defendants appealed to ORG ( hovioikeus , hovrätt ) of GPE . In CARDINAL of the CARDINAL oral hearings before the appellate court the applicant , among others , requested the court to dismiss the charges alleging that the proceedings had been excessively lengthy . On DATE ORG issued its judgment , upholding by CARDINAL votes to one , the judgment of ORG concerning the alleged first embezzlement , but quashing the judgment concerning the second embezzlement . It convicted the applicant of aggravated embezzlement in this respect . The court admitted that the period from the lodging of criminal complaint until ORG proceedings , i.e. DATE , had exceeded the period at issue in cases before ORG , relied on by the applicant ’s company . The court nevertheless rejected the request to dismiss the charges ruling , inter alia , that :", "“ These proceedings were already pending in DATE . The handling of the case at issue began on DATE . The proceedings before ORG took DATE and DATE and the proceedings before ORG will have taken DATE , i.e DATE in all . As from the reporting of the offence until the end of the proceedings before ORG the time elapsed has been DATE . ... The interests at stake are exceptionally wide , including , inter alia , the civil proceedings . ... ORG notes that the court proceedings have not been excessively lengthy taking into account the nature and extent of the case ... However , the pre - trial proceedings have been lengthier than on average . ... ORG concludes that ... the proceedings have not exceeded the reasonable length – requirement as provided in LAW .", "Conclusion", "The request to rule inadmissible or dismiss the charges is rejected . ”", "The appellate ORG took the long time which had elapsed since the incriminated conduct into account when imposing the sentence . Instead of an unconditional term of imprisonment , the applicant was sentenced to a suspended sentence of DATE and DATE . He was further ordered to pay ORG CARDINAL by way of supplementary fines and , jointly with ORG , the other defendant , PERSON ’s legal costs . The appellate court ruled , inter alia , that :", "“ The sentences for [ the applicant ] and [ H. ] have to be severe taking into account the amount of embezzled property and the premeditation of the offences ... [ thus ] the reprehensible conduct warrants that [ the applicant ] and [ H. ] be sentenced to imprisonment . For the same reason , the general obedience to the law would require that the sentences be ones of imprisonment . [ The complainants ] became aware of the offences committed by [ the applicant ] and [ H. ] on DATE . The effective criminal investigation began , however , on DATE in respect of [ the applicant ] ... The proceedings before ORG began on DATE . The lapse of time since the acts were committed until the initiating of the criminal proceedings was not caused by the [ applicant ] and [ H. ] covering up the acts . The fairly lengthy period which elapsed before the courts was not to any major extent caused by [ the applicant ] or [ H. ] . Taking into account the exceptionally long pre - trial period and the proceedings ... the punishment shall be a suspended sentence ... ”", "The applicant and the other defendants applied for leave to appeal from ORG ( korkein oikeus , högsta domstolen ) , which was rejected on DATE .", "Section CARDINAL , subsection CARDINAL of LAW ( esitutkintalaki , förundersökningslag ; DATE ) provides that the police or another investigation authority shall carry out a pre - trial investigation where , on the basis of a report made to it or otherwise , there is a reason to suspect that an offence has been committed .", "Section CARDINAL of the said LAW provides that a pre - trial investigation shall be carried out without undue delay .", "Section CARDINAL of the LAW of Finland ( perustuslaki , grundlagen GPE ) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority . This section is equivalent to section CARDINAL of the repealed LAW of DATE ( PERSON , ORG ) , as in force at the relevant time .", "LAW , section CARDINAL of LAW ( rikoslaki , strafflagen ) prescribes a maximum penalty of DATE imprisonment for aggravated embezzlement ." ]

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[ "The applicants were born in DATE , DATE and DATE respectively and live in GPE . When the facts that gave rise to the complaint occurred , the first applicant was the editor of the newspaper “ The ORG of Malta ” , the second applicant was a court reporter for the said newspaper and the third applicant was the registered newspaper ’s printer .", "On DATE a bigamy case , in which the accused was represented by PERSON , was to be heard before ORG . PERSON was called a number of times but he failed to appear . The accused explained that there had been trouble between them in view of requests for excessive fees which he was unable to pay . According to the second applicant , the presiding magistrate repeatedly expressed his intention in open court to find PERSON in contempt of court . Indeed , in the chaotic atmosphere in the courtroom , the second applicant heard the magistrate find PERSON to be in contempt of court . According to the second applicant , she subsequently attempted to verify this fact through the records of the proceedings , but both the magistrate and the court deputy registrar had already left their chambers . She therefore verified what she had heard with another reporter present in the courtroom . He confirmed her version .", "A decision of DATE in the relevant bigamy proceedings referred to the fact that PERSON client ’s request to replace his lawyer at that stage of the proceedings verged on contempt of court . However , in view of the circumstances as explained to the court , the case was adjourned .", "On DATE , the ORG of GPE newspaper published a report entitled ‘ Lawyer found in Contempt of ORG . It reported , inter alia , that PERSON had been found guilty of contempt of court for failing to appear before a magistrate hearing the final stages of a bigamy case .", "On DATE called the second applicant and protested vigorously about the article . Subsequently , the second applicant proceeded to verify the information by checking the record of the proceedings . However , the relevant information was not registered therein . In consequence on DATE the newspaper published a report entitled ‘ Lawyer Not Found in Contempt of Court’ which reproduced the relevant record of the proceedings and stated that “ any inconvenience caused to PERSON is regretted ” .", "Nonetheless , on DATE , PERSON brought civil proceedings for defamation under Part III of LAW ( actions arising from press offences ) . The applicants pleaded , inter alia , that the publication was privileged under LAW ( d ) of LAW ( see Relevant domestic law below ) , that it was not libellous , that mitigation in accordance with LAW ( CARDINAL ) of LAW should be applied in view of the apology published on DATE and that the third applicant had not read the report prior to its publication ( see Relevant domestic law ) .", "By a decision of DATE , the court , while acknowledging that the record of the case did not cover the entire proceedings , allowed the applicants to present evidence . On DATE , in his testimony , the prosecutor in the bigamy case explained that PERSON had not appeared at the hearing . The prosecutor related that he had tried to keep the magistrate calm and was nearly found guilty of contempt himself because he was playing defence lawyer . The prosecutor stated that , at that moment , the magistrate dictated a minute , which he thought was directed towards him , that if he opened his mouth he would himself be found in contempt of court . He had also understood , at that moment , that the magistrate found PERSON to be in contempt of court because he did not appear . The prosecutor reiterated that , at that moment , the magistrate was very angry and that he understood that he had found PERSON guilty of contempt . When asked whether the impugned article reflected what really went on in the court room , the prosecutor replied “ effectively it reflects what happened in court in short ” . He continued to say that while much more was said in the court room , at that time , the phrase in the article “ the magistrate found PERSON to be in contempt of court ” reflected the impression he had had as to what effectively happened at that moment in time .", "On DATE ORG found against the applicants . It rejected the ORG first CARDINAL above - mentioned defence pleas . In its presentation of the facts the court recalled the above mentioned evidence . It , however , found that the article did not coincide properly with what had happened , in particular in its heading , since , as appeared clearly from TIME of the hearing , it was not true that the plaintiff was found guilty of contempt of court . Thus , the publication was not a fair report of the proceedings . Consequently , it could not be considered privileged . The court went on to note that the defendants tried to diminish their blame for their incorrect reporting by proving that the hearing had been chaotic . It was for this reason that the journalist misunderstood what had happened . The defendants had further shown that the prosecutor too had misunderstood what had happened , as he had also understood that the plaintiff had been found guilty of contempt . In the court ’s view , however , this merely highlighted the need for the reporter to verify her information . The reporter ’s interest in publishing information was legitimate . However , it could not be more important than someone ’s reputation . The statement that PERSON had been found to be in contempt of court surely harmed his reputation as it incited the supposition that he had not fulfilled his duties as a lawyer . Thus , it found the statement in question to be defamatory and taking account of the fact that they had published an apology and that the printer had not read the report at issue , it ordered the applicants to pay , in solidum , MONEY ( MTL – approximately QUANTITY ( ORG ) ) in damages with interest and costs , but limiting the third applicant ’s responsibility to MTL CARDINAL ( approximately FAC ) plus interest .", "The applicants appealed and PERSON appealed .", "On DATE ORG rejected both appeals , reiterating that the statement had not reflected the truth and adding that when the statement was in itself injurious , mischievous intent ( “ animus injurandi ” ) was presumed .", "On DATE the applicants brought constitutional redress proceedings , claiming that they had published a faithful version of what went on in the courtroom and that the above - mentioned judgments breached their right to freedom of expression . Despite the applicants’ opposition , Dr A. was allowed to intervene in the proceedings .", "On DATE ORG ( FAC ) found against the applicants .", "While extensively reiterating the principles derived from the ORG ’s case - law , ORG noted that during the defamation proceedings it was established that the fact reported had not been true , and that the applicants had a duty to verify the relevant information . Upon examination of the record of the defamation proceedings , ORG in its constitutional jurisdiction concluded that the domestic courts’ conclusions had not been unreasonable . The fact that the applicants had published an apology was of little relevance , if any , if the information published in the first place was false . In such circumstances it was not unreasonable for the courts to protect PERSON reputation and limit the applicants’ right to freedom of expression .", "On DATE the applicants appealed . On DATE ORG rejected the ORG appeal . It held that a journalist had to assume responsibility for what he or she decided to publish . If an item was presented as fact then the journalist must be able to prove it . Even if acting in good faith , the press may only publish facts and not what appears to it to be fact . Had the second applicant verified the record of the proceedings she could have avoided misinforming the public . Citing the ORG ’s case - law , ORG held that , while it was not for them to establish the veracity of the facts at issue , the domestic courts’ judgments in favour of PERSON had not infringed the applicants’ rights under LAW . The public had a duty to be informed of true and verified facts , in good faith , as was to be expected from professional journalism .", "Section CARDINAL of LAW , LAW , relates to damages for defamatory libel . LAW , in so far as relevant , reads as follows :", "“ In any case to which this article applies , the defendant may , in mitigation of damages , prove that he made or offered to make an apology to the plaintiff for such defamation before the commencement of the action for damages or , as soon afterwards as he had an opportunity of doing so where the action commenced before there was an opportunity of making or offering such apology :", "Provided that the defendant shall not be allowed to adduce such proof in mitigation of damages if he has raised a plea of justification in terms of section CARDINAL . ”", "According to section CARDINAL ( d ) of LAW , in so far as relevant , the following are privileged publications , in that no action shall lie in respect of them :", "“ Publications of reports of any proceedings in a court of justice in GPE provided such reports are fair reports of the proceedings and the publication of such reports or proceedings is not prohibited by law or by the court ... ”", "Article CARDINAL of LAW , LAW , reads as follows :", "“ The acts and documents of the courts of criminal justice shall not be open to inspection , nor shall copies thereof be given , without the special permission of the court , except by or to the Attorney General , by or to the parties concerned or by or to any advocate or legal procurator authorised by such parties ; but any act , which is pronounced in open court , shall be open to inspection by any person , and copies thereof may be given on payment of the usual fee :", "Provided that a procès - verbal and any depositions and documents filed therewith shall be open to inspection , and copies thereof shall be given , only at the discretion of the Attorney General and on payment of such fees as may be prescribed by the Minister responsible for justice .... ”" ]

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[ "The applicants , Mr PERSON and Mr PERSON are NORP nationals and live in the municipality of Riihimäki . They are owners of CARDINAL private driving schools . The third applicant , PERSON , is a driving school company in Riihimäki . They are represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON , Director in ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE ORG ( lääninhallitus , länssyrelsen ) of ORG granted ORG of ORG ( PERSON ammattioppilaitoksen kuntayhtymä , yrkesinstitutens samkommunen ) a driving school licence to teach their students to drive . The licence was valid from DATE until DATE , with the name “ LOC ” . Mr PERSON was approved as its director .", "The applicants appealed against the decision to ORG ( hallinto - oikeus , förvaltningsdomstolen ) of PERSON , claiming that the decision be annulled as , inter alia , PERSON did not meet the criteria for a director as required in the Decree on Driving PERSON ( ajokorttiasetus , körkortsförordningen ; GPE , amend . CARDINAL ) . They further alleged that operating a driving school did not belong to the functions of a municipality or a federation of municipalities . In any case , the name of the licence - holder , “ QUANTITY ” should have been deleted and the number of training vehicles limited to CARDINAL motor vans and CARDINAL passenger cars . They contended that the establishment of a new driving school affected their rights as it would reduce their incomes and thus they had a right to appeal pursuant to section CARDINAL of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki , förvaltningsprocesslagen ; ORG ) .", "On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) of Hämeenlinna held an oral hearing , in which it heard ORG , ORG and the applicants . It further obtained written opinions from the parties .", "On DATE ORG annulled the decision of ORG on the ground that PERSON was not competent to act as a director , and thus ORG should not have granted a driving school licence to ORG .", "ORG appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , reiterating that PERSON fulfilled the criteria . ORG , ORG ( liikenneministeriö , kommunikations- ministeriet ) and the applicants submitted opinions to the court and ORG gave its observations .", "On DATE ORG annulled the decision of ORG and declared the applicants’ application to ORG inadmissible without considering its merits . It held that the issue was whether the applicants had a right of appeal against the decision of ORG . It emphasised that pursuant to LAW ( tieliikennelaki , vägtrafiklagen ; CARDINAL , amend . CARDINAL ) and the Decree on Driving Licences the licence for a driving school had to be granted if the applicant fulfilled certain criteria . The appropriateness of a new licence was not relevant to the decision - making . Therefore , when deciding on the new licence it was irrelevant whether the new licence affected the status of already existing driving schools . The court concluded that the owners of other driving schools were not directly affected by the decision and had no right to appeal under LAW . The decision became a precedent ( KHO:CARDINAL:CARDINAL ) .", "Section CARDINAL of the LAW of Finland ( perustuslaki , grundlagen ; GPE ) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority , as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice .", "Section CARDINAL , subsection CARDINAL of the Administrative Judicial Procedure Act provides that any person to whom a decision is addressed or whose right , obligation or interest is directly affected by a decision may appeal against a decision .", "Section CARDINAL of LAW ( CARDINAL , as in force until DATE ) provided that a driving school licence was required for operating a driving school . ORG might grant a licence , if the applicant was deemed to fulfil the criteria for operating a driving school and the establishment of the school was considered necessary and appropriate in accordance with the general instructions issued by the then ORG .", "According to the said section , as amended by LAW ) , a licence to operate a driving school is granted by the relevant ORG . A driving school licence shall be granted if , having regarded his or her skills , reliability , solvency and other qualifications , the applicant is deemed suitable for operating a driving school . If the applicant is a legal person , the director responsible for the teaching at the driving school must , in light of his or her skills , reliability , solvency and other qualifications , be suitable to operate a driving school .", "Section CARDINAL , subsection CARDINAL of the said LAW provides that a licence shall be granted for a certain period of time . It may also include preconditions and restrictions . According to subsection DATE , a licence is not required if teaching takes place in NORP vocational training , which is supervised by ORG , or in an institute training driving instructors .", "LAW , section CARDINAL of the Decree on Driving Licences sets the criteria for the licence of driving schools . A licence shall be granted if the applicant , or , where the applicant is a legal person , its director responsible for the teaching , has , inter alia , a driving instruction permit and has during DATE worked for DATE as a full - time teacher in a driving school or in a vocational institution giving class C driver instruction .", "In its precedent ( ORG CARDINAL-A-CARDINAL ) ORG found that a decision of ORG to suspend a charter transport licence for a determined period of time did not affect the rights of a competing charter transport carrier within the meaning of section CARDINAL , subsection CARDINAL , of the ORG . Thus the competing carrier had no right to appeal against the ORG ’s decision .", "According to ORG precedent ( PERSON CARDINAL-A-CARDINAL ) , in a case where the Government had decided at the same time several applications for compensation to be paid with discretionary funds included in the state budget , a person had a right to appeal against the ORG ’s decision only to the extent the decision concerned his / her own application .", "In DATE ORG issued a precedent ( ORG CARDINAL-A-CARDINAL ) concerning a driving school licence . In that case ORG had granted A a right to establish a driving school and allowed him to take responsibility for the teaching even though he had at the same time the same responsibility in another driving school . ORG annulled the decision of ORG , by which it had declared inadmissible an application lodged by CARDINAL other driving school owners , and found that ORG decision concerned rights of the applicants , who had the right to appeal .", "In its decision no . CARDINAL of DATE ORG ruled that the housing corporation located in the neighbourhood of a restaurant did not have a right to appeal against a decision by which a restaurant was granted a licence to serve alcohol both indoors and in the outdoor area of the restaurant .", "ORG further found in its decision no . CARDINAL of DATE that a person operating a pharmacy in the neighbouring municipality did not have a right to appeal against a decision of ORG by which it issued a licence for the storing of medicines , as the applicant in question had not applied for the licence and as the granting of a licence to him ( being a pharmacist in another municipality ) did not affect his rights and obligations within the meaning of section CARDINAL of LAW ." ]

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[ "The applicants were born in DATE and DATE respectively and live in GPE .", "Both applicants were charged with the administrative offence ( wykroczenie ) of refusing to disclose their identity to the police . ORG ( “ the first applicant ” ) was also charged with using offensive language in a public place .", "On DATE the Lesko ORG , in summary proceedings , convicted the applicants as charged . They lodged an objection to the ruling . Consequently , their case was examined by ORG in ordinary proceedings .", "On CARDINAL occasions the applicants requested the court to admit a certain GPE to the proceedings as a representative of a civil society organisation and/or their counsel . ORG refused their requests as inadmissible in law . The second applicant was represented by legal - aid counsel .", "On DATE the first applicant filed a request for the withdrawal of all judges and “ assessors ” ( junior judges ) of ORG on the ground that he had lost faith in them . On DATE ORG decided to exclude CARDINAL ORG judges , PERSON and PERSON , from examining the first applicant 's case as they had been victims and witnesses in an earlier criminal case against the first applicant . In respect of the other judges and assessors of ORG , the applicant 's request was dismissed . ORG held that the general dissatisfaction of the first applicant with the decisions given by ORG in his cases had not undermined the impartiality of those judges and assessors .", "On DATE ORG decided to examine the CARDINAL applicants ' cases jointly .", "On DATE the first applicant requested that the assessor ( asesor sądowy ) PERSON withdraw from the case on the ground that she had not accepted a medical certificate excusing his mother from attending a hearing . On DATE ORG , sitting as a single judge , dismissed the first applicant 's request as ill - founded and prompted only by his subjective assessment of the assessor .", "On DATE ORG , sitting as an assessor , gave judgment . Both applicants were convicted of failing to disclose their identity to the police and sentenced to a fine of PLN CARDINAL . The first applicant was acquitted of the other charge .", "The applicants appealed . They objected , inter alia , to the fact that their case had been decided by an assessor , alleging that she was not a judge . They referred to ORG judgment of CARDINAL DATE and submitted that the assessor could not exercise judicial powers because she did not offer sufficient guarantees of independence .", "On DATE ORG upheld ORG judgment . It considered the applicants ' objections to the composition of the first - instance court , based on ORG judgment , unfounded . No further appeal lay against ORG judgment .", "According to the Government , the applicants did not question the ability of an assessor to give judgments , but they alleged that the particular assessor who had judged them had not been impartial . The applicants referred to the assessor as an institution only after ORG judgment , in the supplement to their appeal .", "The LAW was adopted by ORG on DATE and entered into force on DATE .", "LAW reads :", "“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ”", "Article CARDINAL of the LAW , regarding the effects of judgments of ORG , provides , in so far as relevant :", "“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .", "Judgments of ORG , ... shall be published without delay .", "A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such a time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...", "A judgment of ORG on non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given , shall be a basis for reopening the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”", "The Law of DATE ( as amended ) on ORG ( Prawo o ustroju sądów powszechnych ; hereinafter “ the DATE LAW ) sets out comprehensively all matters related to the organisation and administration of courts of general jurisdiction , the status of judges and their self - governing bodies , and the position of assessors and trainee judges , court employees and officers and lay judges .", "The DATE Act stipulates the requirements that have to be fulfilled to assume the office of a district court judge . A candidate for such office is required , among other conditions , to complete a judge 's or prosecutor 's training ( aplikacja ) and then pass the relevant examination . Subsequently , he or she has to work a minimum of DATE as an assessor in a district court .", "Sections CARDINAL - CARDINAL of the DATE Act regulate the position of assessors . They provide , in so far as relevant :", "Section CARDINAL", "“ § CARDINAL . NORP The Minister of Justice may appoint as an assessor a person who has completed a judge 's or prosecutor 's training and passed the judge 's or prosecutor 's examination and who meets the requirements specified in section CARDINAL § CARDINAL ( DATE ) .", "[ ... ]", "§ CARDINAL . NORP The Minister of Justice may discharge an assessor having given him notice and subject to approval by the board ( of judges ) of a regional court . ”", "Section CARDINAL", "“ § CARDINAL . NORP The Minister of Justice may , subject to approval by the board ( of judges ) of a regional court , authorise an assessor to exercise judicial powers in a district court for a specified period of time , not exceeding four years . [ ... ]", "§ CARDINAL . While adjudicating , assessors shall be independent and subject only to the LAW and statutes .", "[ ... ]", "§ CARDINAL . During the period in which an assessor exercises judicial powers he or she remains under the supervision of a judge designated to carry out the function of a consulting judge .", "[ ... ] ”", "In this decision , following the filing of CARDINAL constitutional complaints challenging the constitutionality of the status of assessors , ORG decided to draw the attention of the PERSON ( the lower ORG ) to the need to consider a bill on the system of appointing persons who exercise judicial powers . It noted that both ORG and the ORG had shared the main arguments of the claimants as to the unconstitutionality . ORG noted that the possible finding of unconstitutionality in respect of the provisions governing the status of assessors could have far - reaching consequences for the whole system of the administration of justice , having regard to the number of assessors adjudicating in the district courts .", "The proceedings before ORG were initiated by CARDINAL constitutional complaints . The first of them was made by PERSON , who complained that his detention had been imposed by an assessor . The second complaint was lodged by a company , ORG , which complained that a prosecutor 's decision discontinuing a criminal investigation had been reviewed by an assessor . Both complainants alleged that various provisions of the DATE Act which govern the position of assessors were incompatible , inter alia , with LAW , providing for the right to have one 's case examined by an impartial and independent court .", "The Constitutional Court heard the case as a full court ( CARDINAL judges ) . In the first part of the operative part it held that :", "“ Section CARDINAL § CARDINAL of the Law of DATE on ORG was incompatible with LAW . ”", "It found that the vesting of judicial powers in assessors by the Minister of ORG ( representing the executive ) was unconstitutional since the assessors did not enjoy the necessary guarantees of independence which were required of judges . As a preliminary point ORG considered that the constitutional requirements of independence were equally relevant for all courts , regardless of their level and scope of jurisdiction . It noted that the lack of independence of the first - instance court would amount to a breach of LAW even when the second - instance court examining an appeal complied with the requirements of independence .", "The Constitutional Court gave , inter alia , the following reasons :", "“ CARDINAL . ( ... ) Since DATE LAW explicitly refers to the content of LAW , being one of the sources of international law binding on our ORG , it should be added that ORG does not interpret the concept of “ a tribunal ” used in the LAW in the formalistic manner and accepts that “ a tribunal may be composed fully or partly of persons who are not professional judges ” ( ORG GPE , judgment of DATE , no . CARDINAL , and PERSON and Others v. the GPE , judgment of DATE ) . ( ... )", "In accordance with the text of the statute , while adjudicating an assessor shall be independent and subject only to the LAW and statutes ( section CARDINAL § CARDINAL ) . However , ... , such regulation of itself is only a declaration , not ensuring the real and effective independence required by the LAW , unless the independence is supplemented by concrete guarantees , namely particular legal regulations related to effective securing of the observance of the particular elements of the concept of independence . ( ... )", "The issue of independence from the Minister of ORG should be seen from the angle of the assessor 's appointment , the vesting of judicial powers in an assessor and his or her dismissal . In respect of the appointment , and in particular the vesting of judicial powers , the statute does not precisely specify the time frame in which such appointment should be made . Considered from the functional point of view , independence does not have to mean appointment for life or appointment until retirement age , but it must mean a certain level of stability in employment and in the exercise of judicial powers . It should be indicated here that the GPE case - law underlines precisely that if judges or persons exercising judicial powers are not appointed for life , they could be appointed for a certain term of office , and that they must benefit from a certain stability and must not be dependent on any authority ( judgment of the ORG of DATE in the case of ORG v. the GPE , no . CARDINAL ) . It may be indicated here that in attempting to define more closely a certain minimum period which would guarantee professional stability ORG found DATE to be sufficient ( judgment of the ORG of DATE in the case of ORG and Fell v. the GPE , ORG . CARDINAL/CARDINAL and DATE , and the judgment of the ORG of CARDINAL DATE in the case of Sramek v. GPE , no . CARDINAL ) . The regulation of the assessor 's status does not contain such guarantees , since there is no minimum period for which such a person is employed and no minimum period for which an assessor is vested with judicial powers . It is undoubtedly a situation which gives rise to significant misgivings as to its compliance with the principle of independence . In this respect the situation would have looked unambiguous if the statute had expressly determined the period for which an assessor was appointed and the period for which the judicial powers were vested . The existing regulation , implying discretion of the minister and the board of judges of the regional court ( ... ) thus amounts to CARDINAL - sided dependence of the assessor 's professional status on those organs .", "( ... )", "NORP The principal argument indicative of the unconstitutionality of the vesting of judicial powers in an assessor is the admissibility of his or her dismissal , including even during the period in which an assessor exercises judicial powers . Even assuming the constitutional admissibility of the institution of temporarily vesting those powers in an assessor within the jurisdictional and temporal limits specified by a statute , then a rudimentary aspect of the principle of independence which must be adhered to also in this case requires that it should be possible to remove an assessor from office only in the same way as judges may be so removed or even only in some of those cases . The existing regulation , firstly , does not contain a proviso that the dismissal of an assessor ( CARDINAL who has been vested with judicial powers ) is allowed only as an exception to the rule . Secondly , the statute does not precisely set out the factual circumstances serving as justification for dismissal from the office . Thirdly , a decision on dismissal is taken by the Minister of ORG and not by a court . It follows that , regardless of whether dismissal from the office of assessor may be reviewed by a court , the essential requirements of independence from non - judicial authorities stemming from LAW are not met . The obligation [ to secure ] the approval of the board of judges of a regional court is not a pertinent circumstance , since this body is not a court but an organ of court administration , and moreover its approval is also of a discretionary character as there are no specific legal norms which indicate whether or not a dismissal is justified in a given situation . Consequently , there are no substantive guarantees and no adequate procedural guarantees which would indicate that the assessor 's dismissal on the ground of the content of his / her rulings is excluded . ( ... ) ”", "ORG also found that :", "“ CARDINAL . The protection of the arbiter 's internal independence from outside , including political , pressures is particularly difficult when – as in the case of assessors – it is the Minister of ORG – a political appointee and a member of the executive – who has influence over their promotion and career . ( ... ) ”", "Furthermore , ORG found that an assessor was also dependent on a board of judges of the regional court since that body was competent to approve the vesting of judicial powers in him or her and to dismiss him or her . It also played a consultative role in the procedure for an assessor 's nomination for the position of district court judge . In addition , LAW did not prohibit assessors from being members of political parties .", "In the second part of the operative part of the judgment ORG held as follows :", "“ CARDINAL . The provision mentioned in the first part of the operative part of the judgment ( section CARDINAL § CARDINAL of the CARDINAL Act ) will lose its binding force DATE after the promulgation of the judgment in ORG .", "The acts of the assessors referred to in section CARDINAL § CARDINAL of the DATE Act shall not be subject to a challenge on the basis of LAW . ”", "ORG ordered that the unconstitutional provision should be repealed DATE after the promulgation of the judgment . Its decision was motivated by the fact that assessors constituted PERCENT of the judicial personnel in the district courts and that their immediate removal would seriously undermine the administration of justice . During the DATE period it was constitutionally admissible for the assessors to continue adjudicating . That period was also necessary for ORG to enact new legislation dealing with the matter .", "ORG , having regard to the constitutional importance of the finality of rulings , considered the consequences of its judgment for the validity of rulings given in the past by the assessors . It held that there was no possibility of reopening the proceedings in respect of such rulings under LAW .", "In respect of the consequences of its judgment , ORG observed , inter alia , as follows :", "“ CARDINAL . Ruling on the unconstitutionality of CARDINAL of LAW , ORG did not exclude the possibility of the existence of assessors as an institution . However , it questioned its normative framework , having regard to the vesting of judicial powers in assessors ( by the Minister of ORG , a representative of the executive ) to carry out the constitutional function of the administration of justice without also [ securing ] the constitutionally required guarantees of independence which judges enjoy . Nor should the judgment of ORG be understood as ruling out , in principle , the possibility to allow adjudication by persons other than judges within the meaning of LAW . In this respect also international standards binding on GPE indicate many possible types of solutions [ which are ] compatible with the rule of law . Those standards should be used by the legislator when considering a solution [ to the problem ] . In any case solutions to be considered should be such as to guarantee real separation between the judiciary and the other powers ( LAW ) , to loosen the bond between the assessors and the Minister of Justice [ and ] to ensure the influence of ORG on the professional career of a judge in spe . Without prejudging the future normative regulation of the institution of assessors , the present judgment of ORG should be understood as a negative constitutional assessment of the currently existing normative model of this institution . ( ... )", "CARDINAL In the present judgment the unconstitutionality concerns the institutional provisions [ who may exercise judicial powers ] . ( ... ) Thus , the question arises as to the relationship between the unconstitutionality of the said institutional provisions and the validity of the judgments given by the assessors . It should be underlined that the judgments DATE given [ by assessors ] during the period in which , in the light of the thenexisting constitutional standard , the vesting of judicial powers in the assessors was not challenged – can not be questioned . In particular , it would be an error to look for any analogy with a situation in which a ruling was given by a body which was incompetent or ( ... ) incorrectly composed . It was only the ruling of ORG which , ratione imperii , rebutted the presumption of constitutionality of the impugned norm [ section CARDINAL § CARDINAL ] . And in order to remove any doubts as to the legal significance of the rulings given so far by the assessors , ORG included in the operative part a suitable finding ( part II ( CARDINAL ) of the operative part ) . ( ... )", "CARDINAL The finality of rulings is itself a constitutional value . ( ... ) Thus , in every case the undermining of the finality of rulings has to be subject to the careful balancing of the values . This means that the judgments given by assessors in the period when the constitutionality of vesting judicial powers in them was not challenged can not be automatically questioned . ( ... ) On the one hand the duly implemented right to a court rules out staffing the independent court with judges who do not possess the guarantees of independence , which is determinative of the finding of unconstitutionality in the present case ; on the other hand , were it allowed to challenge the final judgments given by assessors in the period when the possibility of vesting judicial powers in them was not questioned , this would lead to the weakening of the right to a court and undermine the stability of the law and legal certainty . ( ... ) The protection of the finality of rulings is constitutionally embedded in LAW , which talks about the functioning of the public authorities ( courts in this case ) on the basis of , and within the limits of , the law . Thus , the final rulings are backed by the constitutional presumption stemming from this provision . It may be rebutted – when the ruling itself departs from the constitutional standard ( the unconstitutionality concerning substantive law or procedure applied in concreto when giving a final ruling ) . However , it would be disproportionate to undermine final rulings on the basis of the finding of pro futuro unconstitutionality which concerns the composition of a body giving those rulings , which acted in accordance with LAW at the time of giving them .", "( ... )", "CARDINAL In the present case the unconstitutionality concerns the institutional provisions , and thus a relationship between a concrete ruling and the unconstitutional norm is much more tenuous than in the case of unconstitutionality of a substantive or procedural provision applied in an individual case . ( ... )", "In ORG view it is not , however , possible that the relationship between the unconstitutional institutional provision ( as in the present case ) and the final ruling justifies the reopening of an individual ruling pursuant to LAW . The unconstitutionality of the rule determining who may be vested with the exercise of judicial powers does not have to mean that the content of the ruling or the procedure applied in reaching it is unconstitutional . ( ... ) ”", "On DATE ORG enacted the PERSON on ORG and ORG ( LAW Szkole Sądownictwa i GPE ) , which entered into force on DATE . The law establishes a comprehensive and centralised institution responsible for training judges and prosecutors .", "In response to ORG judgment of CARDINAL DATE the PERSON on ORG abolished the institution of judicial assessors as provided for by LAW DATE on ORG ( section CARDINAL ( CARDINAL ) ) . Furthermore , it specifically provided that as from CARDINAL DATE assessors ceased to be authorised to exercise judicial powers ( section DATE ( CARDINAL ) ) .", "In the above judgment ORG considered the relationship between its jurisdiction and the jurisdiction of the ORG . It observed as follows :", "“ CARDINAL . ( ... ) , ORG draws attention to the fact that the control exercised by ORG ) does not as such relate to the assessment of norms of the legal system of a State where the events considered as breaches of human rights occurred . [ Its control ] concerns concrete facts of breaches of human rights in the activities of public authorities in respect of concrete persons . In principle it is not a control of the provisions ( norms ) which constitute the legal order of the ORG , but an examination of a situation concerning potential individual breaches of human rights and freedoms laid down in the LAW . The control exercised in an individual case may occasionally indicate that the domestic legal order also contains norms which , as applied , led in concreto to a breach of human rights in the case examined by the ORG . This does not automatically amount to the disqualification of a norm in so far as its constitutionality is concerned .", "The jurisdiction of ORG in the constitutional complaint proceedings extends to controlling the constitutionality of legal norms in accordance with the principle adopted in LAW : “ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or other normative act on the basis of which a court or administrative authority has issued a final decision on his freedoms or rights or his obligations as specified in LAW . ”", "The duty to consider the effects of a relevant judgment of the ORG in the activities of the domestic authorities of the ORG obliges ORG to take into account – in the framework of its control of the constitutionality of norms – the standards elaborated by the ORG , with a view to eliminating possible conflicts between them . However , ORG does not examine whether the impugned provisions were correctly applied in individual cases , as this comes within the jurisdiction of the ordinary and administrative courts . Nor does [ ORG ] , in the proceedings initiated by a constitutional complaint , examine the compatibility of the reviewed norms with the international agreements . ( ... ) ”", "LAW provides for the possibility of reopening the proceedings following a judgment of ORG . It reads as follows :", "“ The proceedings shall be reopened for the benefit of the accused when such a need results from a decision ( rozstrzygnięcie ) of an international body acting on the basis of an international agreement ratified by GPE . ”", "The applicants argued that the assessor who had heard their case in the first - instance court had not been “ an independent tribunal ” within the meaning of LAW . LAW reads , in so far as relevant :", "“ In the determination of ... any criminal charge against him , everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law . ”", "The ORG notes that this complaint is not manifestly ill - founded within the meaning of LAW of the Convention . It further notes that it is not inadmissible on any other grounds . It must therefore be declared admissible .", "The applicants argued that they had been deprived of a fair trial on account of the lack of independence of the trial court . They contended that the relevant legislation on the status of assessors had not met the standard of “ independent tribunal ” required under LAW . They supported this contention by the findings of ORG in its judgment of DATE and the case - law of the ORG .", "Firstly , persons exercising judicial powers had to benefit from certain stability and could not be dependent on any authority , while the regulation concerning assessors fell short of those guarantees . Secondly , the DATE Act was deficient as regards the possibility of an assessor 's dismissal . The guarantee of an “ independent tribunal ” required that an assessor should be able to be removed from office only in the same way as judges . However , the legislation provided for decisions concerning the dismissal of assessors to be taken by the Minister of ORG and not by a court . Thus , an assessor was not protected against the influence of the executive . Thirdly , as regards the perception of an assessor 's independence , the applicants asserted that the administration of justice had to be carried out in an independent and impartial manner . They underlined in this connection that their own negative perception of the assessor 's independence was of importance . This had been reinforced by the mistakes made by the assessor in the proceedings against the applicants . Lastly , the applicants submitted that the appellate court had not cured the lack of independence of the trial court . The appellate court , referring to ORG judgment , had simply held that the applicants ' misgivings about the trial court 's composition had been unfounded .", "The Government underlined the importance of the principle of subsidiarity . They observed that ORG in its judgment of CARDINAL DATE had ruled that section CARDINAL § CARDINAL of the CARDINAL Act was not in conformity with LAW . Subsequently , the ORG amended the relevant law and as of CARDINAL DATE the office of assessor ceased to exist in the NORP legal system . The ORG argued that since the source of the alleged violation had already been identified in ORG judgment , there was no need for the ORG to deal with the problem of the independence of assessors .", "The Government commented on the comparison of the level of protection of judicial independence in the ORG and LAW . They maintained that up until DATE the ORG and ORG had interpreted the requirements of independence and impartiality in a similar manner . In that period , ORG had to a large extent been inspired by the ORG 's decisions and , in consequence , the NORP standard had in principle reflected the Convention standard .", "However , ORG judgment of CARDINAL DATE brought about a fundamental change in this area . It set the constitutional guarantees on a level significantly higher than that existing and accepted before . The ORG argued that it seemed virtually impossible for anyone but a professional judge to meet those standards , even though ORG had not excluded the possibility of justice being administered by “ persons with a status similar to that of judges , officially provided with guarantees of independence in adjudicating ” . In reaction to the judgment , ORG abolished the institution of assessors and decided against introducing any other , similar institution , being aware that in the light of the new standards the task would be virtually impossible .", "They emphasised that prior to ORG judgment , assessors had been universally considered as an institution that fulfilled the constitutional criteria of independence and impartiality . The situation had changed significantly only after ORG “ signal decision ” ( postanowienie sygnalizacyjne ) in which it indicated the need to remedy a legal deficiency in connection with the examination of case no . ORG DATE . Thus , ORG judgment of CARDINAL DATE should be assessed in this context as introducing a key modification of the manner of construing previously accepted institutions of the legal system .", "In addition , the ORG argued that there were further reasons which rendered ORG judgment irrelevant to the outcome of the present case . Firstly , the ORG laid down a certain minimum standard to be met , while LAW , as the supreme act of domestic law , set out not a minimum but a maximum standard . In consequence , it could be possible for a measure that satisfied the Convention standard to be inconsistent with the constitutional standard . Secondly , ORG review concerned a single , coherent legal system rather that CARDINAL of different systems , so it was possible to develop the standard further . ORG , on the other hand , had to take into account differences between various NORP legal systems and could not set too detailed and far - reaching directives in its judgments . Thirdly , ORG review was a formal review of the conformity of lower ranking provisions with the LAW and , in principle , its jurisdiction did not extend to the issue of the application of a given provision in concreto . In contrast , the subject - matter of the ORG 's review was not the legal provision itself but the substantive content of the regulation and the effects it produced in an individual case . In conclusion , the ORG noted that the constitutional standard of independence as laid down in ORG judgment was stricter than that enshrined in LAW . Furthermore , ORG judgment did not determine that a court in which an assessor adjudicated lacked independence within the meaning of LAW .", "The Government submitted that the office of an assessor differed from that of a judge . The former had been primarily devised as an intermediate stage between the judicial traineeship and the office of a judge . This resulted in a natural differentiation regarding the appointment procedure , tenure , possibility of dismissal and remuneration , yet the key element was to establish whether the level of safeguards provided for assessors was sufficient under LAW .", "The Government claimed that if the independence of an assessor were to be considered from CARDINAL perspectives , namely the positive one ( the assessor 's subordination in administering justice only to legal norms and their own beliefs ) and the negative one ( third parties ' inability to persuade them to decide the case in a given way ) then it could be considered that in reality assessors were independent in respect of their adjudicatory role , even though they were not equipped with all the constitutional guarantees . In addition , there were many arguments related to the case - law of the ORG which required that the independence of an assessor be assessed in a different way than that expressed in ORG judgment .", "The Government analysed in detail the provisions of the DATE Act regulating the status of assessors and , in particular , those related to the exercise of judicial powers by them . In their view , those regulations , which in many respects extended rules applicable to judges to assessors , fulfilled the standard of judicial independence defined in LAW .", "They emphasised that the constitutional guarantees of independence of the courts and professional judges ( Articles CARDINAL - CARDINAL of the LAW ) had materially influenced the status of assessors . An assessor vested with judicial powers was a member of the community of judges and , following the common practice , was treated accordingly . In consequence , any attempt to undermine the actual independence of assessors had to be interpreted in the context of the guarantees enjoyed by judges . In practice , it meant that assessors had been required to comply with those very standards . The judicial community , particularly interested in maintaining the constitutional guarantees of independence and impartiality , had always exerted an extremely strong influence on assessors . The ORG further referred to the fact that both society and the legal community had considered assessors independent and equal to professional judges . They also pointed to the existence of institutions similar to that of the assessor in a number of NORP countries ( GPE , GPE , GPE , GPE , GPE , and GPE ) .", "As regards the possibility of dismissing an assessor provided for in section CARDINAL § CARDINAL of the DATE Act , the ORG argued that this power of the Minister of ORG had not been unrestrained since the necessary condition for dismissal was the prior consent of the board of ORG . That mechanism effectively protected an assessor against the threat of unjustified dismissal by the executive , thereby eliminating the possibility of pressure being brought by the Minister . The Government , basing themselves on the official statistics , emphasised that the Minister of ORG had never exercised the power to dismiss an assessor . Accordingly , the above arrangement had been in compliance with LAW .", "The Government asserted that in the present case there had been no reason to consider that the assessor who had adjudicated in the case had not been objective . The applicants had tried from the outset of the proceedings to exclude all the judges , and they had subsequently done the same in respect of the assessor , using ORG judgment as a pretext . The Government claimed that in their appeal the applicants had not challenged the fact that their case had been decided by an assessor , but they had alleged a lack of impartiality on her part . This had been motivated by the negative outcome of the trial . The applicants had referred to the “ assessor ” as an institution rather than to the particular assessor only after the delivery of ORG judgment on the sideline of their appeal . Above all , the applicants had been unable to show that the assessor had not been independent .", "The Government lastly drew the ORG 's attention to the fact that if all decisions issued by assessors were to be generally challenged by the ORG , it would undoubtedly cause legal chaos . Assessors constituted PERCENT of the judges adjudicating in ORG and in DATE alone CARDINAL cases were brought before those courts . Were the Court to find a violation in this and other similar cases , it would affect CARDINAL of judicial decisions given in DATE . Such a finding would create a breach of the principle of protection of the citizens ' trust in the ORG and its law . It would further undermine the need to protect the stability of the national legal system , as well as the Convention rights of other participants in those proceedings . Assessors had decided the majority of civil and criminal cases heard in the first instance before ORG . In most of the cases the effects of the decision made could not be reversed , for example where time spent in detention on remand had been credited towards the sentence , an inheritance had been accepted and disposed of , and so on .", "Independently of the above arguments , the Government highlighted the negative effect a judgment finding a violation of the Convention in the present case would have . In their view , ORG judgment constituted a pretext for submitting the application to the ORG as , prior to its delivery , the independence of assessors had not been called into question . The finding of a violation by the ORG would create a chilling effect , discouraging ORG from further elevating any constitutional standard . The ORG should not suffer any negative consequences for elevating the standards of protection of individual rights . The chilling effect would probably affect not only ORG but also similar judicial authorities in other NORP countries .", "The Government , referring to the ORG 's case - law , submitted that objections regarding the independence and impartiality of the first - instance court could not be upheld where the case had been examined by the court of second instance fully satisfying , as in the present case , the requirements of LAW . They acknowledged that the right to an independent and impartial court guaranteed in the LAW was of a substantive nature . Accordingly , since the assessment was carried out in respect of the result , the legal test was whether a final decision in the proceedings had been rendered by a court satisfying the requirements of independence .", "In conclusion , the ORG submitted that the first - instance court , composed of an assessor , which dealt with the applicants ' case had been independent as required by LAW .", "The ORG recalls that in determining whether a body can be considered as “ independent DATE notably of the executive and of the parties to the case – regard must be had , inter alia , to the manner of appointment of its members and the duration of their term of office , the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence ( see ORG and PERSON v. GPE , DATE , § DATE , Series A no . CARDINAL ; PERSON GPE , DATE , § DATE , Reports of Judgments and Decisions DATE ; GPE v. GPE , DATE , § CARDINAL , Reports CARDINALIV ; PERSON and Others v. GPE , no . CARDINAL , § CARDINAL , ORG CARDINALII ; and PERSON v. GPE , no . CARDINAL , § DATE , DATE ) . Furthermore , the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of LAW ( see ORG and Fell , cited above , § DATE ) . What is at stake is the confidence which the courts in a democratic society must inspire in the public ( see , amongst many other authorities , GPE v. GPE , DATE , § CARDINAL , Series A no . CARDINAL , and PERSON v. GPE [ ORG ] , no . CARDINAL , § DATE , ECHR DATE ... ) . ORG further recalls that the requisite guarantees of independence NORP apply not only to a “ tribunal ” within the meaning of LAW , but also extend to LOC “ the judge or other officer authorised by law to exercise judicial NORP power ” referred to in LAW ( see PERSON v. the GPE [ ORG ] , no . CARDINAL , § DATE , ECHR CARDINALX ) .", "Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the ORG 's case - law ( see GPE v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINAL-IV ) , neither LAW nor any other provision of LAW to comply with any theoretical constitutional concepts regarding the permissible limits of the powers ' interaction ( see GPE and Others v. the GPE [ ORG ] , ORG . ORG , ORG , CARDINAL and CARDINAL , § CARDINAL , ECHR CARDINALVI , and PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINALXIII ) . The question is always whether , in a given case , the requirements of the Convention are met and in the present case the ORG has to determine whether the assessor B.R .- G. who tried the applicants in the first - instance court had the required “ appearance ” of independence ( see ORG v. GPE , no . CARDINAL , § DATE , ORG CARDINALII ) .", "Assessors were appointed by the Minister of ORG provided that they met a number of specific conditions stipulated in the CARDINAL Act ( section CARDINAL § CARDINAL ) . The Minister could confer on an assessor the authority to exercise judicial power in a district court , subject to approval by the board of judges of a regional court and for a period not exceeding four years ( section CARDINAL § CARDINAL ) . Under section CARDINAL § CARDINAL of the DATE Act the Minister could remove an assessor , including those who were vested with judicial powers . However , the Minister had no unfettered discretion as to removal since he had to secure the approval of the board of judges of a regional court .", "ORG considered the status of assessors in its leading judgment of DATE . It held that section CARDINAL § CARDINAL of the CARDINAL Act , providing that the Minister of ORG could confer the exercise of judicial powers on assessors , fell short of constitutional requirements because assessors did not enjoy the necessary guarantees of independence , notably vis - à - vis the Minister . The ORG notes that in its analysis of the question of the independence of assessors ORG referred to the GPE case - law and observed that LAW was modelled on LAW ( see paragraph CARDINAL above ) .", "The ORG reiterates that appointment of judges by the executive is permissible , provided that appointees are free from influence or pressure when carrying out their adjudicatory role ( see PERSON and Fell , cited above , § DATE , and LOC v. GPE ( no . CARDINAL ) , no . CARDINAL , § DATE , DATE ) . It notes that the principal reason for ORG finding was related to the Minister 's power to remove an assessor who exercised judicial powers , and the lack of adequate substantive and procedural safeguards against the discretionary exercise of that power ( see paragraph CARDINAL above , point CARDINAL of the judgment ) . LAW did not specify what factual grounds could serve as the basis for removal of an assessor and provided for the decision on removal to be taken by the Minister and not by a court . The lack of the requisite guarantees prompted ORG to note that the removal of an assessor based on the content of his rulings was not excluded .", "Furthermore , ORG found , contrary to what was asserted by the Government , that the requirement to secure the approval of the board of judges was not a sufficient safeguard . The ORG 's statistics indicating that the Minister of ORG never exercised the power to remove an assessor do not , in the ORG 's view , invalidate the reasons for the finding of unconstitutionality . In addition , ORG was critical of the fact that LAW did not contain sufficient guarantees as regards the assessors ' term of office . The regulation did not specify a minimum period for which an assessor was employed and for which he was vested with judicial powers .", "The ORG reiterates that it is in the first place for the domestic authorities , notably the courts , to interpret and apply the domestic law and to decide on issues of constitutionality ( see , among many other authorities , Former King of GPE and Others v. GPE [ ORG ] , no . CARDINAL , § DATE , ECHR CARDINALXII , and PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL , CARDINAL/CARDINAL and CARDINAL , § DATE , ORG CARDINALVI ) . The ORG notes that ORG findings were made in the context of an abstract review of the constitutionality of statutory provisions but , mindful of the principle of subsidiarity , considers that they may be applied to the facts of the present case , having regard to the similarity between the constitutional and the Convention requirements in so far as judicial independence is concerned and the reliance of ORG on the relevant jurisprudence of the ORG . The ORG argued that ORG judgment did not determine that an assessor lacked independence within the meaning of LAW . However , the ORG observes that in constitutional complaint proceedings ORG has no jurisdiction to review the compatibility of legislation with international agreements , including LAW ( see paragraph CARDINAL above ) . The important consideration for this Court is that ORG found that the manner in which GPE had legislated for the status of assessors was deficient since it lacked the guarantees of independence required under LAW , guarantees which are substantively identical to those under LAW . It would be justified for the ORG to reach a contrary conclusion only if it was satisfied that the national court had misinterpreted or misapplied the LAW provision or the ORG 's jurisprudence under that provision or reached a conclusion which was manifestly unreasonable ( see PERSON and Others v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL in fine , ORG DATE ... ) . The ORG observes that in some earlier cases it had due regard to rulings of ORG in which the latter declared domestic legislation unconstitutional and/or incompatible with LAW see , inter alia , in respect of the Bug river claims , PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR DATE ; rent - control legislation and LAW No . CARDINAL , ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALVIII ; overcrowding of detention facilities and LAW , PERSON v. GPE , no . CARDINAL , § CARDINAL , ECHR DATE ... ( extracts ) ; and regulation of prisoners ' visiting rights and LAW , no . CARDINAL/CARDINAL , § DATE , DATE ) .", "The ORG underlines that ORG set aside the regulatory framework governing the institution of assessors as laid down in LAW . It further stresses that ORG did not exclude the possibility that assessors or similar officers could exercise judicial powers provided they had the requisite guarantees of independence ( see paragraph CARDINAL above , point CARDINAL of the judgment ) . ORG , referring to international standards , pointed to the variety of possible solutions for allowing adjudication by persons other than judges . In this connection , the ORG notes that its task in the present case is not to rule in abstracto on the compatibility with LAW institution of assessors or other similar officers which exist in certain Member States of ORG , but to examine the manner in which GPE regulated the status of assessors .", "Having regard to the foregoing , the ORG considers that the assessor B.R .- G. lacked the independence required by LAW , the reason being that she could have been removed by the Minister of Justice at any time during her term of office and that there were no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister ( see , by contrast , PERSON v. GPE , no . ORG decision of DATE , in which the relevant NORP regulation provided that dismissal of probationary judges was susceptible to judicial review ) . It is not necessary to consider other aspects of the status of assessors since their removability by the executive is sufficient to vitiate the independence of ORG which was composed of the assessor PERSON", "It remains to be determined whether the failing in question was rectified on appeal by ORG . This court was composed of a professional judge with tenure and was thus “ an independent tribunal ” as required LAW CARDINAL § CARDINAL of the Convention . The possibility certainly exists that a higher or the highest court might , in some circumstances , make reparation for defects that took place in the first - instance proceedings ( see FAC , cited above , § DATE , and GPE v. GPE [ ORG ] , no . ORG , ORG CARDINAL , ORG CARDINALXIII ) . In this connection the ORG notes that ORG considered that review by the second - instance court could not remedy the initial defect as regards the lack of independence . In the present case , ORG did not have the power to quash the judgment on the ground that ORG had been composed of the assessor since the assessors vested with judicial powers were – in accordance with the DATE LAW authorised to hear cases in firstinstance courts . In any event , the applicants raised the issue of the lack of independence of the assessor in their appeal . However , ORG dismissed their objections as unfounded . The ORG observes that for the purposes of ORG judgment , any appeal based on the unconstitutional status of assessors was bound to fail as the impugned provisions of the DATE Act remained legally binding for DATE following the promulgation of the judgment . In those circumstances the ORG finds that ORG did not remedy the defect in question ( see , PERSON , cited above , § DATE , and PERSON v. the GPE , DATE , § DATE , Reports of Judgments and Decisions DATE ) .", "In the light of the foregoing , the ORG finds that ORG was not independent within the meaning of LAW . There has accordingly been a violation of this provision .", "The ORG notes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court ( see paragraph CARDINAL above ) . However , in light of the reasons underlying the finding of a violation in the present case and having regard to the principle of legal certainty as expounded in ORG judgment and its own case - law ( see paragraphs CARDINAL below ) , the ORG considers that in the present case there are no grounds which would require it to direct the reopening of the applicants ' case ( see , mutatis mutandis , ORG v. GPE ( dec . ) , no . CARDINAL , DATE ) . The ORG would not exclude that it might take a different approach in a case where , for example , the circumstances of a particular case give rise to legitimate grounds for believing that the Minister had or could reasonably be taken to have an interest in the proceedings .", "The applicants also complained under LAW ( c ) of the LAW about the ORG refusal to admit a representative of a civil society organisation to the proceedings . Relying on LAW , they alleged that their conviction amounted to discrimination on the ground of their social origin .", "However , in the light of all the material in its possession , and in so far as the matters complained of are within its competence , the ORG finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the ORG or its Protocols . It follows that this part of the application is manifestly ill - founded and must be rejected in accordance with LAW and CARDINAL of the Convention .", "Article CARDINAL of the ORG provides :", "“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”", "The applicants claimed CARDINAL ( ORG ) each in respect of nonpecuniary damage . They submitted , inter alia , that their case had been examined by an assessor and not by a judge .", "The Government argued that the claim was grossly excessive .", "The ORG considers that in the particular circumstances of the instant case the finding of a violation constitutes in itself sufficient just satisfaction for any nonpecuniary damage which may have been sustained by the applicants . It refers in this connection to its conclusions set out in paragraph CARDINAL above regarding reopening .", "The ORG recalls that in the specific context of cases against GPE concerning the independence and impartiality of the national security courts , the ORG has indicated in certain judgments that , in principle , the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requested ( see , among other authorities , Gençel v. GPE , no . CARDINAL , § DATE , DATE ) . ORG adopted a similar stance in cases against other Contracting Parties where the finding of a breach of LAW was related to the lack of independence or impartiality of the domestic courts ( see , PERSON Club v. GPE , no . GPE , § DATE , ORG CARDINALIX , and PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) . ORG has endorsed the general approach adopted in those cases ( see , GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINALIV ) and has extended it to cases where a conviction followed proceedings that entailed breaches of the requirements of LAW ( see , PERSON v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALII ) .", "NORP However , it is only exceptionally that a violation , by its very nature , does not leave any real choice as to the measures required to remedy it ( see , PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINALII ) . In the present case , the ORG notes that the judgment of ORG identified a structural dysfunction and called for a legislative response . Such response was given by the ORG which removed the structural dysfunction as of DATE ( see paragraph CARDINAL above ) . The ORG is of the opinion that in this particular context the finding of a violation need not necessarily entail the respondent ORG 's obligation to reopen all proceedings in which assessors participated at the first - instance level . In this regard , the ORG notes that ORG devoted a substantial part of its judgment to the constitutional importance of the principle of the finality of rulings . In particular , it observed that it would be disproportionate and contrary to legal certainty to allow challenges to final rulings given by assessors in the period when the manner of conferring judicial powers on them had not been constitutionally questioned . Further , it emphasised that the finding of unconstitutionality concerned institutional provisions , that is , provisions regulating the composition of the bodies which gave final rulings . ORG considered that the finding of unconstitutionality in respect of such provisions was not determinative of unconstitutionality in respect of the content of a final ruling given by an assessor or the procedure employed to reach it ( see paragraph CARDINAL above in fine ) . Consequently , ORG held in the operative part of the judgment that its ruling could not serve as a basis for the reopening of cases decided in the past by assessors ( or with their participation ) . This ruling was even extended to CARDINAL claimants who successfully challenged the provisions regulating the status of assessors before ORG , thus depriving them of the so - called “ right of privilege ” ( przywilej korzyści ) .", "In this context , the ORG recalls its case - law according to which the principle of legal certainty , which is necessarily inherent in the law of the LAW , may dispense GPE from questioning legal acts or situations that antedate judgments of the ORG declaring domestic legislation incompatible with the LAW . The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional ( see ORG v. GPE , DATE , § DATE , Series A no . DATE ) . Moreover , it has also been accepted , in view of the principle of legal certainty , that a constitutional court may set a time - limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period ( see GPE v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . Referring to ORG decision not to allow the reopening of the cases decided in the past by assessors on the ground that it would undermine the principle of legal certainty , the ORG does not consider this interpretation to have been arbitrary or manifestly unreasonable . Indeed , the ORG in its jurisprudence has underlined the significance of the principle of legal certainty in the context of final judicial rulings ( see , mutatis mutandis , ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALVII ) .", "The ORG observes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the ORG ( see paragraph CARDINAL above ) . However , having regard to the foregoing , the ORG reiterates its conclusion that in the instant case the reopening of the applicants ' case is not called for ( see paragraph CARDINAL above ) .", "The ORG would further observe that in the view of ORG the constitutional deficiency identified in its judgment required the intervention of the legislator to bring the status of assessors into line with LAW , but there was no automatic correlation between that deficiency and the validity of each and every ruling given previously by assessors in individual cases . To that end FAC ruled that the unconstitutional provision should be repealed DATE after the promulgation of its judgment . It is noteworthy that the constitutional and Convention deficiency regarding the status of assessors was remedied by the domestic authorities – which decided to abolish the office of assessor altogether – within the time - frame allotted by ORG ( see paragraph CARDINAL above ) . Having regard to the above , it may be noted that the authorities of the respondent ORG took the requisite remedial measures in order to address and remedy the deficiency underlying the present case .", "DATE . The applicants also claimed ORG CARDINAL in legal costs . Their representative claimed to have worked TIME on the case with an TIME rate of LAW . No receipts or invoices were provided in support of the sum claimed .", "The Government submitted that any award should be limited to those costs which were actually and necessarily incurred and were reasonable .", "The ORG notes that the applicant received EUR CARDINAL by way of legal aid from ORG . According to the ORG 's case - law , an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum . In the absence of any evidence to support the applicants ' claim as to costs and expenses , no award is made under this head . The ORG observes that in light of the reasons underlying the finding of a violation in the present case and the fact that the authorities took adequate measures to address the deficiency at issue , the ORG considers that there is no justification for awarding legal costs under LAW ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in ORG . The respondent Government are represented by PERSON , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was the chairman of several limited liability companies registered under NORP law . In DATE ORG commenced , without the applicant ’s knowledge at that time , a preliminary investigation against him on suspicion of fraud and breach of trust ( PERSON ) in connection with the establishment of a closed property fund ( geschlossener PERSON ) . On DATE ORG requested ORG to authorise the search of the ORG premises and the seizure of all relevant documents . On CARDINAL DATE the court issued an according order .", "On DATE the police searched the premises of the above - mentioned companies and seized computers and numerous documents .", "On DATE , DATE and CARDINAL DATE the applicant ’s defence counsel asked ORG for a progress report .", "On DATE the ORG also authorised the search of the local branch of a bank .", "On DATE the police department issued an intermediary report on the search of the branch of the bank and the questioning of numerous witnesses .", "On DATE the police rendered its final report on its investigation . Subsequently the investigating prosecutor changed .", "On DATE the applicant ’s defence counsel consulted ORG file .", "On DATE the applicant ’s defence counsel submitted his first observations . Until DATE the representatives of several affected investors of the closed property fund consulted ORG file .", "On DATE the applicant ’s defence counsel submitted his further observations .", "On DATE the defence counsel met with the investigating prosecutor and announced that he would submit further observations until DATE . Until CARDINAL DATE representatives of further affected investors consulted the file .", "On DATE the applicant ’s defence counsel asked for a progress report .", "On DATE a further charge was brought against the applicant .", "On DATE the defence counsel again asked for a progress report . The investigating prosecutor then changed . The new investigating prosecutor informed the applicant ’s defence counsel that he would have to familiarise himself with the files first .", "On DATE further charges were brought against the applicant .", "On DATE the applicant inquired as to which information was needed by ORG .", "On DATE ORG requested information as to the flow of certain funds from another bank .", "On DATE ORG requested the police department to examine the information provided by the bank .", "On DATE the applicant ’s defence counsel announced further observations , which were submitted on DATE .", "On DATE the applicant ’s defence counsel asked for another progress report .", "On DATE ORG requested the police department to assess the applicant ’s submissions .", "On DATE the police department issued its final report on its further investigation .", "On DATE the applicant ’s defence counsel asked for a progress report .", "On DATE the applicant ’s defence counsel submitted further observations .", "On DATE the applicant ’s defence counsel again asked for a progress report .", "On DATE ORG sent a request for mutual assistance ( PERSON ) to ORG in GPE asking for the questioning of an employee of a company that was suspected to be involved in the case . Subsequently the investigating prosecutor changed .", "On DATE the Government of GPE replied to the request stating that the afore - mentioned company had objected to the questioning . It invited ORG to comment on this issue .", "On DATE ORG submitted its observations .", "On DATE the applicant ’s legal counsel addressed letters to ORG asking for a progress report and requesting the discontinuation of the proceedings for lack of evidence .", "On DATE and DATE the Government of GPE reminded ORG of the request of mutual assistance .", "On DATE the Government of GPE informed ORG that ORG would now examine the request for mutual assistance , but that it was impossible to foresee when the proceedings would be terminated . Subsequently the investigating prosecutor changed .", "On DATE ORG issued the bill of indictment . The applicant was accused of CARDINAL counts of fraud , CARDINAL counts of fraudulent breach of trust and CARDINAL count of incitement to fraudulent breach of trust . The applicant was suspected of having caused financial damage amounting to MONEY ( ORG ) .", "On DATE the ORG convicted the applicant of CARDINAL counts of fraudulent breach of trust and sentenced him to CARDINAL months’ imprisonment . In respect of the remaining charges the proceedings were discontinued , because the prosecution had become time - barred ( PERSON ) .", "On DATE the applicant appealed against that decision . He did not contest the length of proceedings in his appeal .", "On DATE the applicant ’s defence counsel requested reinstatement of the proceedings insofar as he had failed to observe the time - limit for lodging the appeal .", "On DATE ORG rejected the appeal as inadmissible .", "On DATE the defence counsel requested ORG to render a decision on the applicant ’s appeal and again requested reinstatement of the proceedings .", "On DATE the defence counsel lodged a complaint against the decision of ORG of DATE .", "On DATE the ORG quashed the decision of the ORG of DATE and granted the applicant reinstatement of the proceedings .", "On DATE ORG inquired as to when the hearing would take place .", "On DATE the ORG convicted the applicant in a different set of proceedings ( reference no . CARDINAL PERSON ) of fraudulent preference of creditors ( PERSON ) and sentenced him to a prison sentence of DATE .", "On DATE the ORG scheduled the hearing for CARDINAL and DATE .", "On DATE the applicant challenged the sitting judge for bias and the hearing was suspended .", "On DATE ORG rejected the applicant ’s motion for bias as ill - founded .", "On DATE the applicant ’s defence counsel lodged a complaint against that decision .", "On DATE ORG rejected the applicant ’s complaint as inadmissible .", "On DATE the presiding judge at ORG suggested vis - à - vis ORG examining whether the proceedings might be discontinued in accordance with sections CARDINAL § QUANTITY a § CARDINAL of LAW .", "On DATE ORG refused to consent to the discontinuation in view of the sentence imposed by the court of first instance .", "On DATE ORG asked ORG for a progress report .", "On DATE the applicant ’s defence counsel submitted further observations to ORG concluding by suggesting that the proceedings should be discontinued in view of the length of proceedings .", "On DATE ORG scheduled the next hearing for DATE . During the hearing on DATE ORG announced that it would submit a new offer of proof ( Beweisantrag ) . The hearing was then suspended .", "On DATE ORG requested an expert opinion on the question whether the applicant ’s actions had actually caused any damage and furthermore requested the summons of the affected investors as witnesses .", "On DATE the applicant ’s defence counsel announced that he would submit observations on ORG motions .", "On DATE the presiding judge inquired as to when the defence counsel would render his observations .", "On DATE he repeated his request .", "On DATE the Regional court received the observations .", "On DATE the presiding judge asked ORG again to consent to the discontinuation of the proceedings .", "On DATE ORG again refused to consent to it .", "On DATE the applicant lodged a hierarchical complaint ( PERSON ) with ORG ( Genral - staatsanwalt ) complaining inter alia about the length of the preliminary investigations .", "On DATE the sitting judge in the parallel proceedings ( reference no . CARDINAL DsF CARDINAL Js CARDINAL/CARDINAL see below under CARDINAL ) proposed a deal with the view of terminating all pending proceedings , but the negotiations broke down .", "On DATE ORG rejected the applicant ’s complaint stating that the preliminary investigations had already been terminated on DATE with issuing the bill of indictment . ORG found that in any event there was no indication that the preliminary investigations had been avoidably delayed .", "On DATE ORG scheduled the next hearing for DATE .", "On DATE the applicant ’s defence counsel informed the court that the applicant had had a heart attack . He suggested that the proceedings be discontinued according to section CARDINAL of LAW and requested the cancellation of the hearing .", "On DATE ORG cancelled the hearing .", "On DATE ORG again refused to consent to the discontinuation of the proceedings .", "On DATE ORG telephoned the presiding judge and announced that ORG would file a motion for discontinuation of the proceedings according to section CARDINAL § CARDINAL of LAW in view of the length of the proceedings .", "On DATE ORG filed a motion for the discontinuation of the proceedings in view of the applicant ’s conviction of CARDINAL DATE in the parallel set of proceedings .", "Following the applicant ’s consent ORG closed the proceedings preliminarily according to section CARDINAL § CARDINAL of LAW on DATE . The court held that the expected possible sentence would not carry weight compared to the applicant ’s afore - mentioned conviction of CARDINAL DATE in a parallel set of proceedings .", "On DATE ORG opened a preliminary investigation against the applicant on suspicion of inter alia tax evasion in respect of a tax amount of CARDINAL ORG .", "On DATE the applicant ’s home was searched by agents of ORG and documents were seized .", "On DATE the ORG confirmed the legality of the seizure .", "Upon the applicant ’s complaint the ORG ordered that CARDINAL of the seized items had to be returned to the applicant .", "DATE and DATE the tax fraud office ( PERSON ) heard numerous witnesses .", "On DATE the applicant ’s defence counsel filed a remonstrance ( Gegenvorstellung ) with ORG .", "DATE and DATE the applicant and the tax fraud office were involved in a dispute as to whether certain seized items had already been returned to him .", "On DATE the tax fraud office addressed a request for mutual assistance to ORG .", "On DATE the preliminary investigation was extended to several other tax offences .", "On DATE the tax fraud office submitted its files to ORG .", "On DATE ORG addressed a request for mutual assistance to the NORP authorities requesting the search of a branch of a bank .", "DATE and DATE several witness were questioned by ORG .", "On DATE several banks were asked to provide information as to the flow of certain funds .", "On DATE the NORP authorities supplied the requested information .", "On DATE the files were submitted to ORG .", "On DATE the applicant ’s defence counsel consulted ORG file .", "On DATE ORG issued the bill of indictment accusing the applicant of tax evasion .", "On DATE the applicant ’s defence counsel withdrew from the case .", "On DATE the applicant himself announced that he would name additional witnesses and would submit further offers of proof .", "On DATE the ORG set a time - limit for the applicant ’s submissions until DATE . On DATE the applicant ’s new defence counsel informed ORG that he would represent the applicant and requested an extension of the time - limit to CARDINAL October CARDINAL .", "On DATE ORG scheduled a hearing for DATE .", "On DATE the court scheduled the next hearings for CARDINAL and CARDINAL DATE .", "On DATE ORG requested to postpone the hearing .", "On DATE and DATE ORG asked the court for a progress report .", "On DATE the sitting judge proposed a deal to ORG with the view of terminating all pending proceedings , but the negotiations broke down ( see above ) .", "On DATE the next hearing was scheduled for DATE .", "On DATE the applicant ’s defence counsel informed the court that the applicant had had a heart attack and requested to cancel the hearing .", "Upon the suggestion by ORG consented to the discontinuation of the proceedings . Following the applicant ’s consent ORG then closed the proceedings preliminarily according to section CARDINAL § CARDINAL of ORG ( see “ Relevant domestic law ” below ) on DATE . It referred to the aforementioned previous conviction by the ORG of DATE .", "LAW of LAW ) in conjunction with the principle of the rule of law ( ORG ) guarantees the right to expeditious proceedings . According to the settled case - law of ORG the courts and the prosecuting authorities ( GPE ) are called upon to draw the consequences of the length of proceedings at any stage of the proceedings . Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections FAC and CARDINALa of the Criminal Procedure Code , the limitation of the proceedings according to sections CARDINAL and CARDINALa of LAW or a reduction of the sentence ( see , among others , the decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) ; the decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) ; the decision of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports of ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq . ; the decision of DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , DATE and DATE ) . In cases of an exceptional length of proceedings creating particular hardship in respect of which the possibilities under LAW do not suffice , the courts may discontinue the proceedings on account of a procedural bar to the proceedings ( NORP ) derived from LAW ( see the decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports of ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq .", "“ ( CARDINAL ) If a misdemeanour ( PERSON ) is the subject of the proceedings , ORG may dispense with the prosecution upon the consent by the criminal court competent for the opening of the main proceedings , if the perpetrator ’s guilt is considered to be minor and if there is no public interest in the prosecution . ...", "( CARDINAL ) Has the bill of indictment already been issued , the court may discontinue the proceedings at any stage upon the consent of ORG and the accused . ... ”", "“ Upon the consent by the criminal court competent for the opening of the main proceedings and the accused , ORG may dispense with issuing a bill of indictment and impose conditions and instructions upon the accused , if those are adequate for resolving the public interest of prosecution and are not in conflict with the severity of the guilt . ... ”", "“ ( CARDINAL ) ORG may dispense with the prosecution ,", "if the sentence or the measure of reform and prevention ( LOC ) to which the prosecution might lead would not carry weight compared to another sentence or measure of reform and prevention already imposed or expected to be imposed ,", "if a judgment can not be expected in reasonable time and if another sentence or the measure of reform and prevention already imposed or expected seems sufficient to impress the accused and protect the legal order .", "( CARDINAL ) Has the bill of indictment already been issued , the court may discontinue the proceedings preliminarily at any stage upon a motion by ORG . ... ”", "“ ( CARDINAL ) If certain parts of CARDINAL act ( LOC ) or several of multiple infractions committed though the same act , do not carry weight", "NORP compared to the expected sentence or measure of reform and prevention , or", "NORP next to a sentence or measure of reform and prevention already imposed upon the accused or to be expected for another act ,", "The prosecution may be limited to the remaining parts of the act or infractions . Section CARDINAL § CARDINAL no . CARDINAL applies accordingly . ...", "( CARDINAL ) Has the bill of indictment already been issued , the court may at any stage and upon the consent by ORG undertake the limitation . ... ”" ]

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[ "The first applicant , born in DATE , is the widower of the late Ms Fatsima Aleksandrovich , a GPE national of GPE ethnicity , who was born in DATE and died in DATE . The second applicant is her son , born in DATE . The applicants are NORP nationals living in LOC .", "The applicants provided the following account of the circumstances surrounding PERSON arrest and death which was not disputed by the Government .", "At TIME on DATE PERSON was travelling on a bus in GPE with the first applicant ’s sister , PERSON . PERSON , a police officer who worked for the passport service of the GPE police department , was travelling on the same bus when she realised that her purse was missing . She told her colleague , police officer Mr PERSON , that her purse was gone . Mr M. searched the bus and found the purse under a seat . Ms Aleksandrovich being of GPE ethnicity , PERSON assumed that she had stolen the purse and arrested her . She asked why , but PERSON hit her on the head and said , “ Only a Gypsy could steal the purse , who else ? ” PERSON was not arrested .", "PERSON was taken to the GPE regional police station . The acting head of the station asked the senior operational officer of the property offences investigations division Mr I. to interview her . When asked about her identity , PERSON claimed to be one PERSON , born in DATE . According to PERSON , she was nervous , complained of stomach pain and often asked for permission to use the toilet . Several times he had to take her to the toilet located on the second floor ( in LANGUAGE called “ third floor ” ) of the police station , where female police officers PERSON or PERSON stayed with her . The last visit was just before TIME Since there were no female officers to accompany Ms Aleksandrovich , PERSON let her go inside alone and waited by the door of the toilet .", "The door of the toilet was not locked . A witness , PERSON . , who was in the toilet , saw PERSON and stated that she was moaning with pain and holding her stomach . PERSON . left the toilet shortly after this .", "At TIME on CARDINAL DATE an officer on duty found PERSON unconscious on the ground in the yard of the GPE regional police station . It appeared that she had jumped out of the toilet window . An ambulance took her to the GPE regional hospital , where she died on CARDINAL DATE without regaining consciousness .", "Between CARDINAL and TIME on DATE the investigator from the GPE regional police station compiled a report on an examination of the crime scene , which was carried out in the presence of CARDINAL attesting witnesses ( понятые ) . Photographs were taken of PERSON body , the building , the yard , and the toilet door and window .", "On DATE the senior investigator with the PERSON prosecutor ’s office ordered an inquest into the circumstances of PERSON death and an autopsy on her body .", "The medical report was completed on DATE . It concluded that she had died as a result of a cerebral trauma and numerous bodily injuries . The expert found : haemorrhages of the soft tissue of the head with cerebral trauma ; fracture of the left side of CARDINALth neck vertebra ; fracture of the side growths of DATE , and CARDINALth vertebrae ; internal tear of the right kidney ; extensive haemorrhages of the soft tissue of the left side of the vertebrae ; swelling of the left eyelid ; swelling of the right forearm ; bruises on the extremities . These injuries had been caused by the impact of blunt objects and could have been the result of striking such objects following a fall from the third floor .", "On DATE the senior investigator issued a decision refusing to institute criminal proceedings into PERSON death . He had collected statements from police officers PERSON , PERSON , PERSON , PERSON and the witness PERSON . , and found as follows :", "“ As at the moment of PERSON fall out of the window of the toilet situated on the third floor of the GPE regional police department , there was no one in the toilet but the deceased , the possibility is excluded of actual physical action by anyone wishing to take her life . The actions by PERSON and PERSON preceding Ms Aleksandrovich ’s death had been taken as part of their official duties ... Thus , PERSON PERSON acted in keeping with the requirements of LAW , which required him to take measures to prevent and to stop administrative offences or crimes . In the circumstances the measures were taken on the basis of the statement by PERSON , who identified PERSON as the person who had attempted to steal her purse . Mr I. ... took measures to establish PERSON identity . The period between the time of arrest and the time of her fall was no more than the TIME limit set out in LAW . During the interview Mr I. did not put any pressure on PERSON . He had not known her before and he took measures to give assistance to PERSON , who was unwell , as well as to prevent her from behaving inappropriately . ”", "DATE , on DATE , PERSON , acting as counsel for the first applicant , lodged an appeal with ORG against the decision refusing to institute criminal proceedings .", "On DATE the ORG allowed the complaint . It found that the inquest had been incomplete , that PERSON identity had not been conclusively established , that the collected samples and histological studies had not been examined , and that the causation of the multiple injuries had not been explained .", "On DATE the GPE town prosecutor revoked the decision of DATE and asked the investigator PERSON . to carry out a further inquiry .", "On DATE Mr Ts . issued CARDINAL decisions . CARDINAL decision refused to institute criminal proceedings in connection with PERSON death ; the other decision commissioned a new medical study into the reasons for the bodily injuries and death of Ms Aleksandrovich . Further to the ORG complaint , the GPE town prosecutor set aside the decision refusing to institute criminal proceedings as taken prematurely in the absence of the findings of the medical examination .", "On DATE the medical expert produced his report . It stated that all the injuries had been caused within a short period of time DATE before the death , possibly on DATE . The injuries could have resulted from a fall from a height of MONEY because of their condensed localisation and great magnitude . No signs of a multi - phased fall or contact with any other objects could be detected .", "On DATE Mr Ts . issued a new decision refusing to institute criminal proceedings in connection with PERSON death . He noted in particular that the first applicant had been invited to make a statement but had never appeared .", "On DATE counsel for the first applicant lodged an appeal against the investigator ’s decision with ORG .", "On DATE ORG dismissed the appeal as unsubstantiated . It found that there was no evidence , medical or otherwise , to support the theory that the injuries had been caused by ill - treatment rather than by DATE from the window .", "Following an appeal by the first applicant , on DATE the ORG quashed ORG decision . It noted that , under NORP law , experts and witnesses may only be held criminally liable for perjury if they have been examined as part of a criminal case . As criminal proceedings were never instituted , the first applicant ’s access to justice was barred . It also noted that police officers are responsible for the life and health of those individuals who , like PERSON , have been taken to a police station under constraint . ORG remitted the matter for a new examination by a different bench of ORG .", "On DATE the ORG , during a new examination , found the investigator ’s decision unlawful , for the following reasons :", "“ Establishment of the circumstances and cause of PERSON death , as well as the mechanism of causation of injuries on her body , is only possible by means of investigative actions and expert examinations carried out as part of a pending criminal case .", "In addition , the official who refused to institute criminal proceedings did not give a legal opinion on the actions of police officers , who have a duty to supervise individuals who have been forcibly taken to the police station , with a view , in particular , to preventing self - harm . ”", "ORG instructed the prosecutor to carry out a further inquiry . The prosecutor lodged an appeal against the decision but subsequently withdrew it .", "On DATE the GPE town prosecutor revoked the decision of DATE and ordered an additional inquiry .", "On DATE the investigator Mr Ts . issued a further decision refusing to institute criminal proceedings . That decision summarised the existing evidence and reached the conclusion that :", "“ ... During the last visit to the toilet [ Mr I. ] could not find – for objective reasons – any female police officers who would be free from their duties , and Ms Aleksandrovich was in the toilet alone . It follows that DATE from the window situated on the second floor of the GPE regional police station was the result of a deliberate action on the part of PERSON . ”", "A criminal case may be instituted on the basis of , in particular , a complaint or report by a citizen ( LAW ( CARDINAL ) ) or the finding of indications of a criminal offence by an investigator or prosecutor ( LAW ) .", "A prosecutor , investigator , police officer or a judge ought to receive reports about any committed or planned crime and act on them within DATE of receipt or , in exceptional cases , DATE . They may obtain necessary materials or explanations but not carry out any investigative acts . They should take the decision to open a criminal case , to refuse to institute criminal proceedings , or to refer the case to the competent authority and notify the complainant thereof ( Article CARDINAL ) .", "A prosecutor , investigator , police officer or judge should institute a criminal case if there is a motive and grounds for opening criminal proceedings ( Article CARDINAL ) .", "The victim ( потерпевший ) shall have the right to take part in criminal prosecution of the defendant ( Article CARDINAL ) . The decision to recognise the procedural status of a victim may be taken by an investigator or a judge ( Article CARDINAL § CARDINAL ) .", "The victim has in particular the following rights : to submit statements and evidence , to take part in investigative acts which are carried out at his request , to read the findings of a forensic study , to obtain copies of decisions concerning the institution of criminal proceedings and their discontinuation or adjournment , and to participate in the trial and appeal proceedings ( LAW ( DATE , DATE , DATE , DATE and DATE ) ) ." ]

[ "2" ]

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[ "2-1" ]

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[ "The applicants , ORG , PERSON , Mr PERSON and PERSON , are citizens of GPE and GPE who were born in DATE , DATE , DATE and DATE , respectively . They were represented before the ORG by ORG , a law firm based in GPE . The Government of GPE ( “ the Government ” ) were represented by their Agent , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants were registered owners of a public road running alongside their house in PERSON .", "On DATE the Konjic Municipality started civil proceedings against the applicants before ORG . It maintained that the applicants had mistakenly been registered as the owners of the road and requested the rectification of the register .", "On DATE ORG dismissed the claim . It held that the applicants had acquired the title by adverse possession .", "On DATE ORG ruled in favour of GPE on the grounds that public roads were not subject to the rules on adverse possession . It appears that the register was then rectified and that the ORG title to the road was extinguished as a result .", "On DATE the applicants lodged an appeal on points of law with ORG as well as an appeal with ORG .", "On DATE ORG rejected the case as premature as it was still pending before ORG . It instructed the applicants that they could again lodge a constitutional appeal after ORG had rendered its decision .", "On DATE ORG rejected the appeal because the value of the claim did not exceed MONEY ( BAM ) and the case did not raise any questions affecting the application of the law in other cases .", "On DATE the applicants lodged a new constitutional appeal , as instructed by ORG in its decision of CARDINAL DATE .", "On DATE ORG rejected the case as out of time . It held that the appeal on points of law had not been an effective remedy and that the applicants should have therefore lodged a constitutional appeal within DATE from the delivery of the judgment of CARDINAL DATE . On DATE the applicants requested ORG to revise that decision in view of the fact that they had lodged their first constitutional appeal regarding the same matter on DATE . On DATE ORG accepted that request . On DATE it examined the merits of the case and dismissed the case as manifestly ill - founded .", "The Roads Act DATE was in force at the relevant time ( from DATE until DATE ) . Section CARDINAL of that Act provided that public roads were a matter of general interest and that title to a public road could not be acquired . The Roads Act DATE , which entered into force on DATE , contains a similar provision ( see section CARDINAL of that Act ) .", "LAW DATE has been in force since DATE . Under section CARDINAL of that Act an appeal on points of law is , in principle , not allowed if the value of the claim in issue does not exceed BAM CARDINAL , but ORG may exceptionally take such a case if it considers that it raises a question affecting the application of the law in other cases .", "The current Rules have been in force since DATE . Under Rule CARDINAL a party may , in the event of the discovery of a fact which might by its nature have a decisive influence on the outcome of the dispute concerned and which , when a decision was taken , was unknown to ORG and could not reasonably have been known to that party , request ORG , within DATE after that party acquired knowledge of the fact , to revise that decision .", "In principle , if a constitutional appeal concerns civil proceedings dealing with a claim the value of which does not exceed BAM CARDINAL,CARDINAL , an appeal on points of law is not considered to be an effective remedy for the reason that ORG deals with the merits of such appeals only exceptionally ( section CARDINAL of LAW DATE ) . Therefore , ORG will not reject such a case on non - exhaustion grounds only because an appellant has not lodged an appeal on points of law . In the same way , ORG will reject such a case as out of time if an appellant has awaited the outcome of his or her appeal on points of law and has thus lodged a constitutional appeal DATE from the date of delivery of the second - instance decision ( unless ORG has exceptionally examined the merits of the case ) . However , if an appellant lodges a constitutional appeal in parallel with an appeal on points of law , ORG may reject the constitutional appeal as premature pending the outcome of the appeal on points of law even if the value of the civil claim in issue does not exceed BAM CARDINAL . If so , the appellant may lodge a second constitutional appeal within DATE from the date of delivery of the decision on the appeal on points of law ( regardless of weather ORG has dealt with the merits of that case or not ) ." ]

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[ "The applicant was born in DATE and lives in the town of PERSON , GPE .", "On DATE and CARDINAL DATE ORG ( hereafter “ the ORG ” ) awarded the applicant a total of ORG CARDINAL,CARDINAL against the ORG - owned ORG . CARDINAL ( hereafter “ the ORG ” ) for arrears of salary , redundancy pay and industrial disability benefits . The judgments became final and were remitted to ORG for compulsory enforcement .", "In DATE and DATE ORG and ORG rejected as unsubstantiated the applicant ’s complaints against ORG ( the ORG ’s managing company DATE ) and the ORG for their failure to pay in due time and in full the sum awarded to him by the judgment of DATE .", "In DATE and DATE ORG rejected on several occasions the applicant ’s criminal complaints against officials of ORG .", "On DATE ORG decided to wind up the ORG , designating ORG as its successor .", "The applicant instituted proceedings in ORG against ORG for failure to execute the decisions in his favour . On DATE , the court rejected the applicant ’s claim , finding no fault had been committed by the Bailiffs , who had demonstrated due diligence in enforcing the judgments in the applicant ’s favour , but the ORG ’s lack of funds had prevented them from securing the immediate payment of the awards .", "In DATE and DATE , due to the on - going bankruptcy proceedings against the ORG , ORG forwarded on several occasions the applicant ’s writs of execution to the ORG ’s liquidation commission , which refused to accept them , referring to the company ’s lack of funds .", "The judgments of DATE and CARDINAL DATE remain partially unenforced , the outstanding debts being ORG CARDINAL,CARDINAL and CARDINAL respectively .", "Relevant domestic law may be found in the judgments of DATE in the case of ORG v. GPE ( no . CARDINAL , § § DATE ) and of DATE in the case of GPE v. GPE ( GPE DATE ) ." ]

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[ "NORP The applicant , PERSON , claims that she is a NORP national and that she was born in DATE . She currently lives in the GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. PERSON , of ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE , the applicant filed a request for asylum in the GPE . On DATE , the immigration authorities conducted a first interview ( eerste gehoor ) with her for the purposes of establishing her identity , nationality and travel itinerary . The applicant was assisted by a NORP interpreter . She stated that she was a citizen of GPE of GPE origin and that she hailed from PERSON in southern GPE , where she had always lived . She declared that she could speak a little NORP , namely PERSON , the PERSON clan language . She had married on DATE . Her husband had left for an unknown destination in DATE . He had not told her where he was going , just that he would come back . But she had not heard from him since . On DATE , she had left GPE for GPE from where she travelled on to GPE DATE . From there she had travelled by air , with CARDINAL stop - over in an unknown country , to the GPE where she had arrived on DATE . She had never had a passport and she had never held any travel documents . Her “ travel agent ” had kept the identity and travel documents throughout her journey and had abandoned her after her arrival in the GPE . Her mother , CARDINAL siblings and her CARDINAL children had remained in GPE .", "On DATE , DATE and CARDINAL DATE , further interviews ( nadere gehoren ) were held with the applicant for purpose of clarifying her reasons for seeking asylum . Like before , the applicant was assisted by a NORP interpreter . She stated that her husband was a lorry driver and that , since he had left on DATE , he had not returned home . DATE after his departure , she and her CARDINAL children ( a son born in DATE and a daughter born in DATE ) had moved to her mother ’s who was also living in GPE . She had been bothered by men belonging to the ORG clan who twice came to her house to enquire about her husband ’s whereabouts . After she had told them that she did not know where he was , they had beaten and raped her . She had then decided to flee GPE . She had entrusted her CARDINAL children to her mother , and had left . Another reason for her flight was that , according to her uncle ’s wife , she had not been properly circumcised . Since the birth of her second child in DATE , her husband ’s family were putting her under pressure to undergo a further circumcision and to have her daughter circumcised , too .", "NORP By letter of DATE , the Deputy Minister of ORG ( staatssecretaris PERSON ) informed the applicant that a language analysis for the determination of the applicant ’s origin was considered essential for the assessment of her asylum request and that , for this reason , the statutory defined CARDINAL months’ delay for determining the asylum request was prolonged by the maximum allowed period of DATE , i.e. until DATE . The applicant was further informed of the possibility of asking for a counter analysis . A recording was made of an interview with the applicant for the purposes of a language analysis .", "On DATE , a report was drawn up on the language analysis test carried out by ORG ) , a specialised unit of ORG ( Immigratie- en ORG ; “ IND ” ) . According to the language analyst – a NORP native speaker from GPE DATE who had conducted this test , the applicant spoke NORP as commonly spoken in the coastal region of GPE / GPE . NORP was unequivocally her mother tongue and she had no active command of NORP , the dominant language spoken in her alleged area of origin in respect of which she was also unable to give concrete , detailed information . The language analyst unequivocally identified the applicant as not originating from a linguistic community in GPE but as a member of the linguistic and cultural community in GPE ( “ eenduidig te herleiden tot de spraak- en cultuurgemeenschap binnen GPE ” ) .", "On DATE the Deputy Minister of ORG notified the applicant of her intention ( voornemen ) to reject the asylum request . The Deputy Minister considered that , as the applicant had not demonstrated either by documents or through her statements her stated nationality and identity and as it had appeared unequivocally from a language analysis that she did not originate from GPE , no credibility could be attached to her asylum account . The applicant was invited to submit within DATE written comments ( zienswijze ) on the intention . She was further requested to inform the Deputy Minister whether she intended to commission a counter analysis . If so , the delay for submitting written comments would be extended by DATE . This letter was accompanied by the report of DATE and a compact disc with the recordings used for the language analysis .", "In her written comments of DATE , the applicant argued , inter alia , that the language analysis carried out was inadequate and stated that a counter analysis would be submitted as soon as possible and that , according to standing case - law which she did not specify further , this counter analysis should be taken into account in the determination of her asylum request .", "On DATE , ORG gave a reaction to the applicant ’s comments on the language analysis test and its conclusion .", "On DATE , the Deputy Minister rejected the applicant ’s asylum request for the same reasons as already given in the intention of DATE . The Deputy Minister rejected the request for a further stay of the determination of the applicant ’s asylum request and , noting that the applicant had not specified the case - law on which basis the Deputy Minister would be obliged to await the submission of a counter analysis , referred to the statutory maximum delay for decision .", "The applicant ’s appeal against this decision was rejected by ORG ( rechtbank ) of GPE , sitting in PERSON , on DATE . It noted that the findings set out in the language analysis report contrasted with the applicant ’s statements about her alleged area of origin and , bearing in mind the absence of any concrete indications to doubt the accuracy of the report of CARDINAL DATE and that no counter analysis had been submitted by the applicant , considered that there was no doubt as to the correctness of the language analysis carried out .", "NORP The applicant ’s subsequent appeal to ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) was dismissed on DATE . It upheld the impugned ruling of CARDINAL DATE on summary grounds for not raising any points of law . No further appeal lay against this ruling .", "On DATE , the applicant filed a second asylum request which , pursuant to article CARDINAL of LAW ( PERSON ) , must be based on newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) warranting a revision of the decision taken . When interviewed on DATE on her reasons for filing a repeat asylum request , the applicant merely stated that she had done so because her first request had been rejected and that she had nothing further to add to her account .", "On DATE , the applicant ’s lawyer submitted a report drawn up on DATE on a counter language analysis test carried out by PERSON , a professor of NORP linguistics and NORP language at ORG and by PERSON , a native NORP speaker . They concluded :", "“ The applicant is a young NORP woman from the LOC . She does not speak about the ORG ; her claim to have been raised in a Bajuni - speaking family can not be confirmed nor disconfirmed , nor her claim to speak PERSON , natively or not . ”", "This second asylum request DATE following a notification of intended rejection and the applicant ’s written comments thereon – was rejected by the Deputy Minister of ORG on DATE . As to the report of CARDINAL DATE , the Deputy Minister noted that the applicant had failed to mention the counter analysis in her interview of CARDINAL DATE and had submitted this report for the first time only on DATE , whereas she could and should have submitted this document at an earlier stage . Accordingly , the report of CARDINAL DATE was not accepted as a novum for the purpose of article CARDINAL of LAW . Further submissions made by the applicant were also not accepted as nova .", "On DATE , following a hearing held on DATE attended by the applicant with the assistance of her lawyer , the applicant ’s appeal as well as her request for a provisional measure ( voorlopige voorziening ) were rejected by the provisional - measures judge ( voorzieningenrechter ) of ORG of The GPE sitting in PERSON , who held that the Deputy Minister had rightly rejected the applicant ’s second asylum request for not being based on any nova as referred to in article CARDINAL of LAW .", "Although the applicant could have appealed this ruling to ORG , she did not do so .", "On DATE the applicant was presented in person at the NORP mission in GPE . According to the report on this presentation drawn up on DATE by an official of the Repatriation and Departure Service ( PERSON ) of ORG , the TIME conversation between the applicant and the NORP officials was conducted in NORP . In this conversation the applicant indicated that she hailed from GPE , that she did not hold any document and that she did not wish to go to GPE . On the basis of this interview , the NORP mission refused to issue a laissez - passer to the applicant .", "On DATE the applicant gave birth to a son in the GPE . On DATE , also on behalf of her son , the applicant filed a third asylum request . She submitted that it would be difficult for her to return to GPE with an adulterine son whose circumcision she moreover wished to prevent . She further submitted that she feared she would be killed by her husband or family for having given birth to an adulterine son . She further submitted inter alia that ORG and GPE had indicated that she was not a national of either of those countries , and that her case required a fresh language analysis to be carried out by a person from GPE .", "On DATE the Deputy Minister of ORG notified the applicant of her intention to reject her third asylum request for the reason that it was not based on any nova as required under article CARDINAL of LAW . The Deputy Minister noted that the claim that the missions of GPE and GPE had indicated that the applicant was not a NORP or NORP national had remained unsubstantiated and that , as regards the risk of future circumcision of her son , the GPE asylum policy concerning a risk of circumcision only applied to potential victims of female circumcision . Moreover , as the applicant had not demonstrated that she hailed from GPE , no value could be attached to her claim that her son risked circumcision in GPE . The Deputy Minister further held , in the context of an ex officio examination of this question , that the applicant was not eligible for a residence permit for aliens who , through no fault of their own , were unable to leave the GPE as she had not demonstrated her alleged identity and nationality . Consequently , it could not be established in respect of which country this question should be examined . On DATE the applicant filed her written comments in reply to that intention ( zienswijze ) .", "NORP In her decision of CARDINAL DATE , the Deputy Minister rejected the applicant ’s third asylum request . She maintained her position that the elements on which the applicant had based her repeat asylum request did not constitute newly emerged facts or altered circumstances within the meaning of article CARDINAL of LAW . The applicant lodged an appeal against this decision , and also applied for a provisional measure in order to be allowed to await the outcome of the appeal proceedings in the GPE .", "On DATE , following a hearing held on DATE attended by the applicant ’s lawyer but not the applicant , the provisional - measures judge of ORG of The GPE sitting in GPE – although finding that the Deputy Minister had correctly and on good grounds concluded that the applicant ’s fresh asylum request was not based on newly emerged facts or altered circumstances in respect of the applicant herself – accepted the appeal in respect of the applicant ’s son , as his was a first and not a repeat request . Consequently , the provisional - measures judge quashed the impugned decision but further ordered that the legal effects of this decision were to remain valid as the origin and citizenship of the applicant remained undetermined and it was consequently impossible to determine her son ’s claim .", "Although the applicant could have filed an appeal to ORG , she did not do so .", "As the applicant and her son were no longer considered as lawfully staying ( rechtmatig verblijf ) in the GPE pending the determination of a request for a residence title , the provision to them of ORG - sponsored shelter and care facilities under LAW Regeling verstrekkingen asielzoekers ) was discontinued as from DATE , . In order to avoid the situation where they would be forced to live in the streets , the applicant and her son were temporarily admitted to a crisis care centre run by a private foundation . However , they were required to leave this centre by DATE at the latest .", "On DATE the President of the Section decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the Government of the GPE , under LAW , to ensure DATE without prejudice to the merits of the applicant ’s complaint under LAW concerning her expulsion – that the applicant and her son be provided with adequate accommodation pending their effective removal from the GPE .", "The admission , residence and expulsion of aliens are regulated by LAW ( Vreemdelingenwet CARDINAL ) . Further rules are laid down in LAW ) , the Regulation on Aliens CARDINAL ( ORG DATE ) and LAW CARDINAL ( Vreemdelingencirculaire DATE ) . LAW ( PERSON ) applies to proceedings under LAW , unless indicated otherwise in this LAW .", "Under LAW of LAW , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,", "- he or she is a refugee within the meaning of the Convention relating to LAW DATE , or", "- he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .", "Under LAW , judicial review by ORG and ORG in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and , in the light of the interests at stake , could reasonably have taken the impugned decision ( marginale toetsing ) . Both before ORG and ORG it is possible to apply for a provisional measure ( voorlopige voorziening ) pending the outcome of the appeal proceedings .", "Pursuant to article CARDINAL of LAW , a decision rejecting an alien ’s request for admission to the GPE for the purpose of asylum automatically has the following legal consequences :", "- the alien is no longer lawfully residing in the GPE ;", "- he / she is required to leave the GPE within DATE ;", "- he / she is no longer entitled to housing / subsistence benefits , medical care and other ORG - sponsored reception facilities for asylum seekers ; and", "- officials entrusted with the supervision of aliens are authorised DATE if the alien has not voluntarily left the GPE within the delay fixed for this purpose DATE to proceed with his / her effective removal from the GPE .", "Under the preceding Aliens Act DATE , a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings . This is no longer possible under LAW DATE and a negative decision on an admission request is therefore known as a so called “ multi - purpose decision ” ( meeromvattende beschikking ) .", "In a ruling of DATE ( ORG [ National Jurisprudence Number – “ LJN ” ] BGCARDINAL ) , ORG considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi - purpose decision on a request for a residence permit , that the competence to proceed with effective removal is a legal effect ipso iure ( rechtsgevolg van rechtswege ) of the refusal of such a request , and that this competence is not of a discretionary nature . Although in principle no further remedy lies against a multi - purpose decision , it also considered that in certain exceptional circumstances , such as a relevant change of circumstances having occurred during the delay between the refusal of the request and an act aimed at effective removal ( daadwerkelijke uitzettingshandeling ) , an objection ( bezwaar ) and subsequent appeal ( beroep ) may be filed against an act aimed at effective removal .", "Under the Act on ORG for ORG ( PERSON Orgaan Opvang Asielzoekers ) and pertaining regulations , including LAW ( PERSON verstrekkingen asielzoekers en andere categorieën vreemdelingen ) , ORG for ORG ( “ ORG ” ) DATE an autonomous administrative authority – is responsible for the provision of reception facilities ( opvang ) , which comprise housing , basic subsistence means and health care to asylum seekers .", "If no residence permit is granted to an asylum seeker , he / she will remain entitled to benefit from the reception facilities for asylum seekers for DATE after the date of the final decision taken on his / her request . During this period , the person concerned is to seek ways – if need be assisted by ORG to leave the GPE voluntarily as he / she is no longer lawfully staying in the GPE and under a legal obligation to leave . After the expiry of this period , access to reception facilities is automatically terminated without a specific decision . Nevertheless , an alien in such a situation may request ORG for continued reception facilities . In case highly exceptional circumstances so require , ORG can take a decision to that effect . A negative decision can be appealed to ORG and , subsequently , to ORG . Both before ORG and ORG it is possible to apply for a provisional measure pending the outcome of the appeal proceedings .", "In a ruling given on DATE ( PERSON [ ORG – “ JV ” ] CARDINAL ) , ORG found that an alien is considered as having lawful stay ( rechtmatig verblijf ) in the GPE within the meaning of article CARDINAL of LAW DATE while an interim measure issued under Rule CARDINAL of ORG by the President of the Section is in place . For the duration of the validity of this interim measure , the person concerned is not under an obligation to leave the GPE and his or her removal from the GPE is unlawful . In such circumstances , the alien concerned remains entitled to provision of ORG - sponsored reception facilities under LAW and Other Categories of Aliens ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant obtained a judgment of ORG ( PERSON міський суд PERSON області ) against ORG ( Лисичанська ТЕЦ ) , awarding him CARDINAL hryvnyas ( ORG ) in salary arrears and other payments .", "This judgment was not appealed against , became final and the enforcement proceedings were instituted to collect the judgment debt .", "NORP On numerous occasions the bailiffs notified the applicant that they were unable to collect the full amount of the debt , citing insufficiency of the debtor ’s funds and referring to the bankruptcy proceedings pending against it . They further explained that , since the ORG owned PERCENT of the debtor ’s share capital , it was therefore subject to LAW DATE “ on the LAW of a Moratorium on the Forced Sale of the State Property ” .", "On DATE the bailiffs took a decision to terminate the enforcement proceedings , having determined that the applicant had received the full amount of the judgment debt due to him .", "According to the applicant , fraction of the amount due to him remained outstanding .", "The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

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[ "The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively . They were represented before ORG by PERSON , a lawyer practising in GPE .", "While the applicants , a mother and her adult daughter , are NORP nationals they have resided for most of their lives in GPE . They arrived in GPE on DATE carrying valid passports and visas valid until DATE . They had come to stay with the first applicant ’s son . On DATE they applied for asylum and submitted that they would be at risk of ill - treatment and harassment on return to GPE . Allegedly , the second applicant would be called up for military service on return . Both applicants also referred to a risk based on their state of health as the first applicant suffered from old age in combination with Alzheimer ’s disease and the second applicant was diagnosed with Systemic Lupus Erythomathosis ( ORG ) , a chronic rheumatic disease . The second applicant submitted a medical certificate , issued on DATE by chief physician PERSON , which stated that she suffered from serious ORG and that she would have to undergo regular treatment and medication for long periods of time .", "On DATE ORG ( Migrationsverket ) rejected the applicants’ request for asylum . ORG noted that they had waited DATE before applying for asylum which indicated that they were not in need of international protection . It was further noted that the second applicant had not been called up for military service , but she was likely to be excused from service due to her medical condition . She had visited GPE in DATE without any problems and she had been able to travel legally to and from the country . With regard to the applicants’ state of health , the first applicant ’s condition was not considered sufficiently serious . Furthermore , the ORG noted that the second applicant had been admitted to hospital and had received medical treatment in GPE in DATE , although a diagnosis could not be established . ORG could not find that the second applicant had made plausible that she would not receive appropriate medical care in GPE .", "The applicants appealed to ORG ( Migrationsdomstolen ) in GPE and submitted additionally that they belonged to a small religious minority and were subject to persecution in GPE .", "On DATE ORG rejected the ORG appeal . The court found that they had added new circumstances at a late stage of the proceedings and that there was no indication that they would be subjected to persecution due to their religious affiliation in GPE . Furthermore , it found no reason to believe that the applicants would be subjected to ill - treatment on the grounds that the second applicant had not done military service . The first applicant ’s medical condition was not considered to be of such a serious nature as to constitute grounds for asylum . With regard to the second applicant ’s medical condition , the court found that the submitted medical certificate did not substantiate that the illness was fatal . Furthermore , there was no indication that adequate care and medical treatment would not be available to the applicant in GPE .", "On DATE ORG ( Migrations - överdomstolen ) refused leave to appeal .", "The applicants turned anew to ORG and submitted , inter alia , a medical certificate concerning the first applicant and some correspondence from a physician working for ORG ( WHO ) in GPE and from ORG in GPE concerning the second applicant . The medical certificate , dated DATE , was issued by a general practitioner and stated that the first applicant had an alleged progressive memory problem and could occasionally not remember her daughter . There was no evidence , but strong indications of early Alzheimer ’s disease . According to the submitted correspondence , not all of the drugs that the second applicant had received in GPE were available in GPE and the management of complications such as thrombosis and , in the long run , renal complications was not possible there . There were allegedly difficulties in having haemodialysis since CARDINAL units were available for the whole country and there were regular breaks in service .", "On DATE ORG refused to review the case as it found no new circumstances which constituted impediments to the enforcement of the expulsion . Concerning the first applicant , it was noted that she had received effective medical treatment and that her Alzheimer ’s disease had improved . With regard to the second applicant , the only medical certificate submitted had already been considered in the main proceedings .", "On DATE ORG rejected the ORG appeal with regard to a review of the case in accordance with LAW , section CARDINAL of LAW .", "The applicants turned again to ORG and submitted an additional medical certificate , issued by a specialist physician on DATE , concerning the second applicant . The certificate stated that if the necessary medication were stopped this would , within DATE or DATE , lead to fatal complications .", "On DATE the ORG noted that the medical certificate described the progression of ORG in general terms as well as general treatment methods . It had not been issued by the second applicant ’s own doctor and the ORG noted that no information was submitted concerning the applicant ’s state of health for the period DATE . ORG did not question the submitted mail correspondence with the ORG , but found that the applicant had failed to substantiate that there were no alternative medicines available in GPE . Furthermore , it was considered that the correspondence had taken place in DATE and there was no new information on the applicant ’s state of health or required medicines for treatment . ORG found that the applicants had failed to substantiate any impediments to enforcing the expulsion to GPE .", "On DATE the applicants were deported to GPE , but no information has been submitted as to their situation following their return .", "The provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utlänningslagen , GPE ) .", "LAW , section CARDINAL , of the LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE .", "According to LAW , section CARDINAL , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , membership of a particular social group , religious or political beliefs , grounds of gender , sexual orientation and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .", "As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW ) .", "Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , section DATE , where new circumstances have emerged which imply there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to treatment as referred to in LAW , sections CARDINAL and CARDINAL , or that there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so . Should the applicable conditions not have been met , ORG shall decide not to grant a reexamination ( LAW , section CARDINAL ) .", "ORG report , ORG DATE ( pp . CARDINAL ) , published in DATE , stated that :", "“ Since independence in DATE , GPE has made considerable progress in promoting equitable , accessible and affordable health services to the majority of its citizens with the support of its partners . This is demonstrated by the significant improvement of health indicators .", "The health infrastructure has made considerable progress . ... Over CARDINAL different medical products are locally produced ; key medicines are available in PERCENT of health facilities and there is no shortage of supplies and equipment . ... Chronic diseases like diabetes , hypertension , mental health and infectious diseases like tuberculosis , HIV / AIDS and other sexually transmitted diseases are treated free of charge .", "...", "... [ T]he country still experiences acute shortage of human resources particularly at the peripheral level of the healthcare delivery system . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "During DATE the applicant was a university student in finance in the town of PERSON , at the GPE river . He was also the manager of a sportshoes shop in the town of ORG , in northeastern GPE ( situated at QUANTITY from GPE ) , owned by his girlfriend .", "On DATE , a NORP citizen living in GPE , drove through GPE in a jeep with a trailer to transfer a corpse from GPE to GPE . At TIME he stopped on the ringroad of GPE . A car stopped in front of the jeep , CARDINAL men came out of it and approached the vehicle . CARDINAL of them tried to hit Mr E.S.A. with a hammer through the jeep 's window . Another got into the jeep and attacked him with a knife . Mr E.S.A. managed to knock off the knife , but in the meantime the man with the hammer hit him in the face . Then the CARDINAL men threw Mr E.S.A. out of the vehicle , kicked him several times while he was lying on the ground , and drove away with the jeep .", "At TIME on DATE PERSON stopped her car in front of the house of a friend of her mother 's and stepped out to wipe the ice from the windscreen . A man wearing a wool hat approached her , threatened her , sat in the driver 's seat of her car and drove away .", "An investigation into the first incident was opened on DATE . Mr E.S.A. was presented with photographs of several persons , including the applicant , and later was questioned . He identified the applicant as CARDINAL of the assailants and described the assailant as having a dark complexion and short brown hair . Apparently the identification procedure was tainted as the investigator did not , as provided by LAW ( “ the ORG ” ) , question Mr E.S.A. about the distinctive features of the person to be identified prior to presenting him with the photographs . It also seems that the record was not signed by CARDINAL of the certifying witnesses , as required by the ORG .", "Following the identification , the investigator drew up a ruling to summon the applicant . On CARDINAL and DATE a process server visited the applicant 's home to deliver the summons but was informed by a neighbour that the applicant was absent .", "On DATE the investigator charged the applicant in absentia with aggravated robbery and ordered his detention .", "On DATE a prosecutor of ORG confirmed the investigator 's order for the applicant 's detention .", "On DATE the applicant was listed in a police posting as a wanted criminal suspect .", "On DATE several police officers went to the home of the applicant to arrest him . They informed his parents that he was wanted . The applicant 's mother told the officers that she had spoken with the applicant DATE and that he was in PERSON taking his university examinations .", "DATE , DATE , the applicant 's mother went to ORG and , being a practising lawyer , requested permission to represent the applicant together with another lawyer . She requested the investigator to allow her to get acquainted with the charges and informed him that the applicant would appear for questioning in a DATE 's time . The investigator refused to acquaint her with the charges .", "The applicant refused to appear for questioning . According to him , this was due to his believing that the accusation was “ false and absurd ” and to his fear of being illtreated in custody .", "On DATE the police issued a nationwide search warrant for the applicant . According to the applicant , in practice no steps were undertaken in that respect and he was not hiding , but staying in hotels in PERSON and taking his examinations .", "On DATE a prosecutor from ORG ordered the investigator to allow the applicant 's mother to participate in the proceedings .", "On DATE the applicant 's lawyers requested the examination of several witnesses who , it was asserted , could establish his alibi . They argued that at the time of the alleged offence the applicant had been in ORG in connection with the investigation of the robbery of the shop he was managing there . On unspecified dates later in the DATE CARDINAL witnesses testified that the applicant had been in ORG prior to and at the time of the attack on ORG in GPE .", "On DATE the investigator proposed that the investigation be stayed on the ground that the applicant was missing and sent the case file to ORG .", "On DATE a prosecutor from that office refused to stay the investigation and ordered the carrying out of further investigative steps . She found , inter alia , that the photographs pursuant to which the applicant had been identified and the report from the examination of the crime scene were missing from the case file and that Mr E.S.A. had not been properly questioned .", "In DATE the applicant 's lawyers requested that the order for his detention be rescinded . They relied on the fact that the identification procedure with the participation of ORG was flawed and on the testimony that the applicant had been in ORG at the time of ORG robbing .", "The Sofia City Prosecutor 's Office rejected the request by an order of CARDINAL DATE , reasoning that the proceedings were at a too early stage , that the applicant had been charged with a serious intentional offence and that there was no indication that he would not abscond , obstruct the investigation or commit another offence . In particular , the applicant was in hiding .", "On DATE the investigator again proposed that the proceedings be stayed on the ground that neither the applicant , nor Mr E.S.A. could be located .", "On DATE the applicant 's lawyers unsuccessfully requested from ORG to replace the investigator .", "On DATE ORG stayed the proceedings because ORG had to be summoned from GPE , where he was living , for questioning .", "On DATE the applicant 's lawyers requested from ORG to rescind the order for the applicant 's detention . ORG Office refused . It reasoned that there was no indication that if not in custody , the applicant would not abscond , obstruct the investigation or commit another offence . In particular , he was in hiding .", "On DATE the proceedings were resumed because Mr E.S.A. had arrived in GPE and could be questioned . During questioning he stated that the person who had assaulted him with a hammer had been a man of medium height , aged DATE , with short hair and brown eyes . In contrast to his earlier statement , he testified that the attacker had been lightskinned .", "On DATE Mr E.S.A. was questioned again and said that during the DATE identification he had been presented with CARDINAL or CARDINAL pictures , not CARDINAL as had been stated in the record .", "On DATE the applicant 's lawyers again requested from ORG to rescind the order for the applicant 's detention . They argued that the evidence thus far adduced convincingly demonstrated that the applicant was not Mr E.S.A. 's attacker . ORG Office replied that it could not rule on the request .", "A renewed request dated DATE remained unanswered .", "On DATE the investigator proposed that the proceedings be stayed because the applicant was missing .", "By an order of DATE ORG refused to stay the proceedings and sent the case back to the investigator , reasoning that its earlier instructions for additional investigative steps had not been complied with and that key pieces of evidence had not been gathered . It also noted that no effective actions had been undertaken to locate and apprehend the applicant .", "In the meantime , on or DATE , an investigation relating to the robbery of PERSON car ( see paragraph CARDINAL above ) was opened by ORG .", "On DATE the picture of the applicant appeared in the DATE newspapers . When PERSON saw the pictures , she went to the police and stated that it was the applicant who had robbed her car .", "On DATE the applicant , after consulting with his lawyers , turned himself in . He was then formally presented with the charges against him .", "On DATE PERSON was questioned . She described the offender as a DATE man with a large mouth and big eyes .", "On DATE the applicant was charged with robbing Ms M.V. 's car .", "On DATE the investigator in the proceedings relating to Mr E.S.A. 's robbery recommended that the charges against the applicant be dropped , as it appeared that he was not the offender . By an order of CARDINAL DATE ORG refused and returned the case for further investigation .", "On DATE ORG , which was supervising the proceedings relating to ORG robbery , took charge of the investigation relating to PERSON robbery as well . It ordered an additional questioning of PERSON with a view to establishing , inter alia , on what basis she was able to identify the applicant and whether she was categorical about that .", "On DATE the CARDINAL investigations were merged .", "On DATE the investigator proposed that the applicant be committed for trial for the alleged robbery of PERSON car but that the charges in respect of the robbery of Mr E.S.A. be dropped .", "On DATE ORG refused to drop the charges , ordered additional investigative actions , and decided that the applicant was to be indicted for both offences .", "On DATE the investigator presented the applicant with the amended charges , proposed that he be committed for trial and transmitted the case file to ORG .", "DATE . On DATE ORG submitted to ORG a twocount indictment against the applicant .", "On DATE the reporting judge set the case down for hearing on DATE and ordered that Mr E.S.A. be summoned from GPE , where he resided , by letter rogatory .", "The summons was served on Mr E.S.A. not later than CARDINAL DATE .", "The first hearing was held on DATE , at which another judge was presiding . The court heard testimony from CARDINAL witnesses . A second hearing was scheduled for DATE because Ms ORG and CARDINAL other witnesses failed to show up .", "During the hearing on DATE the ORG questioned PERSON and the other witnesses . Mr E.S.A. 's testimony from the preliminary investigation was read out before the court because he was absent from the hearing .", "On DATE the ORG gave judgment , acquitting the applicant of all charges against him . However , the court did not announce the reasons for its judgment until DATE . It held that PERSON and ORG testimony regarding the physical features of the offender was very unreliable . The court also refused to take into account the results of the photograph identification made on DATE by ORG ( see paragraph CARDINAL above ) , holding that it had been effected in breach of the relevant rules of evidence and was thus inadmissible . Finally , the court found it established that the applicant had an alibi in respect of both alleged offences . As regards the first alleged offence , it found that at the time of the robbery of Mr E.S.A. the applicant had been in ORG because the shop he had been managing there had been robbed DATE before that . As regards the second alleged offence , the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend .", "On DATE ORG appealed against the judgment to ORG , stating that GPE had not properly established the facts . The appeal did not mention further particulars in support of this position and stated that additional arguments would be provided after the announcement of the reasons for the judgment by ORG .", "On DATE the applicant 's lawyer requested ORG to declare the prosecution 's appeal inadmissible for failure to specifically describe the non - elucidated facts .", "On DATE , after having received on DATE the reasons for ORG judgment ( see paragraph CARDINAL above ) , ORG filed an “ additional submission ” which contained detailed arguments in support of its appeal . It submitted that GPE had erroneously assessed certain witness testimony and that its findings of fact had not reflect correctly the evidence presented .", "On DATE the applicant 's lawyer made an objection , arguing that the prosecution 's appeal should be declared inadmissible as the first filing had been defective and the “ additional submission ” – allegedly the valid appeal – had been lodged out of time .", "ORG accepted the appeal for consideration , briefly noting that the detailed argumentation had been filed later because of the late announcement of the reasons for ORG judgment and that there was no indication that the appeal was out of time .", "A hearing was held on DATE at which oral argument was heard but no new evidence presented .", "On DATE ORG quashed the acquittal and remitted the case to ORG on the ground that on DATE the applicant had been charged in violation of the procedural requirements , his signature being missing from TIME of the charging . Thus , it was unclear whether he had understood the nature and the cause of the accusation against him . That amounted to a serious violation of the applicant 's defence rights , despite the fact that his lawyers had been present at the charging .", "The court 's judgment was not subject to appeal , as it did not put an end to the criminal proceedings .", "On DATE ORG returned the case to the investigator , instructing him to carry out certain investigative actions .", "The applicant was charged anew on DATE . The investigator recommended his committal for trial .", "On DATE ORG submitted to ORG an indictment against the applicant .", "On DATE the reporting judge set the case down for hearing on CARDINAL , CARDINAL and DATE .", "The Sofia City Court held several hearings on CARDINAL , CARDINAL and DATE , CARDINAL DATE and DATE and DATE and DATE .", "DATE . In a judgment of DATE the ORG again acquitted the applicant of all charges against him . The court held that Mr E.S.A. 's testimony about the physical features of the offenders was controversial and unreliable . It also held that the photograph identification was inadmissible because effected in breach of the relevant rules of evidence ( see paragraph CARDINAL above ) . The court went on to hold that PERSON testimony about the physical features of the person who had robbed her was likewise unreliable . The court further held that the applicant had an alibi for both offences . As regards the first alleged offence , from CARDINAL till DATE the applicant had been in ORG , because the shop he had been managing there had been robbed on DATE . He had stayed at a friend 's house and had met officers from the local police station and several other persons . He had taken a train in TIME DATE , at TIME , and had arrived back in GPE in TIME of DATE . As regards the second alleged offence , the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend .", "On DATE ORG appealed against the judgment to ORG .", "The Sofia Court of Appeals held a hearing on DATE .", "In a judgment of DATE ORG upheld the acquittal .", "No appeal was lodged against the judgment and it entered into force on DATE .", "On DATE the applicant turned himself in and was detained pursuant to the investigator 's order of CARDINAL DATE ( see paragraph CARDINAL above ) .", "On DATE , when the applicant was also charged with robbing PERSON car , his detention was confirmed by the investigator on the ground that another investigation was pending against him .", "On DATE ORG held , in response to an application for bail , that the applicant had been charged with a serious intentional offence , that there was a risk that he would flee , jeopardise the investigation , or reoffend . In particular , prior to his arrest he had been hiding . Also , another investigation was pending against him , which , according to LAW ORG , made detention mandatory . It therefore refused bail .", "DATE . On DATE the applicant again applied for bail .", "On DATE a prosecutor from ORG granted bail , but apparently his order was not found in the case file and was never put into effect .", "On DATE the deputyhead of ORG reversed the bail order , holding that under LAW of the ORG a detainee charged with a serious intentional offence could only be released if there existed serious indications that he or she would not abscond , obstruct the investigation or commit an offence . In the case at hand this prerequisite was missing . On the contrary , the available information indicated that there was a serious risk of the applicant fleeing or committing an offence , because he had been hiding for DATE prior to his arrest . Moreover , another investigation was pending against him , which excluded release on bail .", "The applicant 's lawyer appealed against this order to ORG . By an order of DATE ORG dismissed the appeal . It held that the applicant had been charged with CARDINAL serious intentional offences and that sufficient evidence pertaining to his guilt had been collected . Furthermore , in view of the nature of the alleged offences , the applicant 's release could seriously obstruct the investigation . There was also a danger that the applicant could flee .", "On DATE the reporting judge at ORG held of her own motion that there were no grounds for granting bail at that point and decided to continue the applicant 's detention .", "On DATE the applicant 's lawyer requested the applicant 's release . It was argued that the investigation had already been completed and that there was hence no risk of the applicant jeopardising it , and that there was no indication that if released the applicant , who was a student and wished to continue his education , would commit an offence . Moreover , the applicant had not tried to hide because he had never been properly summoned .", "In a decision of CARDINAL DATE made in private the reporting judge refused bail . She held that the applicant had been charged with serious intentional offences , which meant that release was only possible if the exception of LAW of the ORG was applicable . However , prior to his arrest the applicant had been hiding for DATE , thus demonstrating his intention to jeopardise the investigation . On the other hand , another investigation was pending against him , which , under LAW ORG , excluded the possibility for release .", "The applicant did not appeal against the decision .", "On an unspecified date in DATE or DATE the applicant 's lawyer again requested the applicant 's release , arguing that he had a permanent address and was enrolled in university and that his girlfriend had given birth to his baby on DATE .", "The reporting judge at ORG rejected the applicant 's request in a decision of DATE made in private . She held , inter alia , that the applicant 's lengthy hiding had hindered the investigation and that another investigation was pending against him for a robbery allegedly committed in ORG . It appears that the judge was referring to the investigation into the robbery of the applicant 's girlfriend 's shop , in which the applicant was not the suspect , but the victim ( see paragraph CARDINAL above ) .", "On DATE the applicant 's lawyer appealed against the decision to ORG . She lodged the appeal with ORG , but on DATE the court rejected it as inadmissible , holding that , being his mother and having been questioned as a witness , the applicant 's lawyer could not also act as his defence counsel . Following this , the same day the applicant lodged an appeal in person . He argued that he had not been hiding : he had been taking his university examinations and staying in hotels ; the authorities had never made an effective effort to find him . He further explained the misunderstanding concerning the investigation in ORG . In addition , he complained that ORG had failed to address the question of the reliability of the evidence on which the charges had been based or to consider the factors militating against his continued detention .", "The reporting judge examined the appeal , and having found no grounds to vary its decision , sent it together with the casefile to ORG .", "On DATE ORG , sitting in private and in the presence of a prosecutor who argued that the appeal was ill - founded , dismissed the appeal . It noted that the applicant had been charged with CARDINAL serious intentional offences , that he had been hiding and that there had been no change in circumstances warranting his release . Despite the applicant 's explanation concerning the misunderstanding in respect of the ORG investigation , ORG repeated the reference to an investigation pending against him there .", "On DATE , DATE of the trial , ORG granted bail , setting the amount at CARDINAL old NORP levs . The court held that prior to his arrest the applicant had been in PERSON taking his university examinations , that there was no indication that he would abscond , that his clean criminal record suggested that there was little danger of him committing an offence , and that there was no risk that he would obstruct the investigation . The applicant posted bail DATE and was released on DATE .", "Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ( “ the ORG ” ) , read in conjunction with LAW thereof , provides that robbery of chattels in large amounts is punishable by DATE imprisonment .", "At the relevant time and until the reform of the ORG of DATE the accused could be detained by decision of an investigator or a prosecutor . In cases where the decision to detain had been taken by an investigator without the prior consent of a prosecutor , it had to be approved by a prosecutor within twentyfour TIME ( see PERSON v. GPE [ ORG ] , no . ORG , LAW , ECHR CARDINALII ) .", "The role of investigators and prosecutors under NORP law has been summarised in paragraphs PERSON and CARDINAL of the ORG 's judgment in the case of ORG v. GPE ( cited above ) .", "Article CARDINAL § § CARDINAL and CARDINAL of the ORG , as in force at the relevant time , provided as follows :", "“ CARDINAL . Pretrial detention shall be ordered [ in cases where the charges concern ] a serious intentional offence .", "NORP In the cases falling under paragraph CARDINAL [ pretrial detention ] may be dispensed with if there is no risk of the accused obstructing the course of justice , absconding or committing further offences . ”", "Article CARDINAL § CARDINAL of the ORG defines a “ serious ” offence as one punishable by DATE imprisonment .", "ORG practice at the relevant time ( it has now become at least partly obsolete as a result of amendments to the ORG in force since DATE ) was that LAW required that a person charged with a serious intentional offence be detained . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any risk of absconding or reoffending was objectively excluded as , for example , in the case of a detainee who was seriously ill , elderly , or already in custody on other grounds , such as serving a sentence ( опред. № CARDINAL от CARDINAL май DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL октомври DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL ноември DATE г. по н.д. CARDINAL/CARDINAL г. ) .", "Paragraph CARDINAL of Article CARDINAL , as in force until DATE , provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused , or where he or she was a repeat offender .", "On DATE ORG examined a request by ORG for an interpretative decision on LAW ORG . The court considered that LAW ORG was incompatible with the LAW , the LAW and LAW . It therefore decided to submit the matter to ORG which is competent to rule on the compatibility of legislation with the LAW and international treaties . Ultimately , ORG did not decide the point , as the impugned provision was repealed with effect from DATE .", "Article CARDINAL § CARDINAL of the ORG , as in force until DATE , provided as follows :", "“ The detained person shall be provided immediately with a possibility of filing an appeal with the competent court against the [ imposition of detention ] . The court shall rule within a time - limit of DATE from the filing of the appeal by means of a final decision . ”", "ORG has held that , in deciding on appeals against pretrial detention , it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee , but only to examine the lawfulness of the detention order ( опред. № CARDINAL от CARDINAL май DATE г. по н.д. CARDINAL/CARDINAL г. на ВС I н.о. ) .", "In a decision of CARDINAL DATE ORG found that the imposition of pretrial detention could be contested before a court only once ( опред. № CARDINAL по DATE г. на ВС I н.о. ) . Thus , until the amendment of the ORG in DATE , periodic judicial review of the lawfulness of detention was only possible when the criminal case was already pending before a court .", "After the prosecution has filed an indictment against the accused with the court and the case is being prepared for trial , it is the reporting judge from the trial court who rules on all requests relating to the accused 's detention ( LAW . In DATE that provision was amended , providing that the reporting judge has to hold a public hearing in the presence of the detainee and his counsel . Before that it was silent on the issue . The reporting judge 's decision is subject to appeal to the higher court ( Article CARDINAL § CARDINAL ) . The appeal must be lodged within DATE ( Article CARDINAL ) with the trial court ( Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL until DATE and LAW after that ) , which verifies whether there exist grounds for it to vary its decision ( LAW ) . If it finds no such grounds , it sends the appeal together with the casefile to the higher court . LAW provides that the higher court may examine the appeal in private or , if it considers it necessary , at a public hearing .", "It follows from Article CARDINAL § CARDINAL of the ORG that the detainee 's requests for release during the trial are examined by the trial court ." ]

[ "5", "6" ]

[ "5-3", "5-4", "6-1" ]

[]

[]

[]

[]

[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr U. Carlzon , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was apprehended by the police on suspicion , inter alia , of aggravated drunken driving and driving without a driving licence .", "The applicant obtained a driving licence on DATE .", "Subsequently , on DATE , ORG ( länsstyrelsen ) of Västra Götaland informed the applicant that the ORG was considering whether to withdraw his driving licence until further notice in accordance with ORG ( körkortslagen CARDINAL ) on the ground of his suspected aggravated drunken driving ( grovt rattfylleri ) and unlawful driving ( olovlig körning ) on DATE . In that connection the ORG pointed out that , in the absence of a legally enforceable judgment or a summary punishment order or similar , the ORG could not take a definite decision on the matter .", "On DATE the ORG ( tingsrätt ) convicted the applicant , notably under sections PERSON ) and CARDINAL of the DATE LAW ( trafikbrottslagen CARDINAL:CARDINAL ) of aggravated drunken driving , with an alcohol level of QUANTITY in his breath , and of driving without holding a driving licence .", "The ORG based the conviction on the applicant ’s own account according to which , in so far as he could recall , he had , from TIME on DATE , consumed QUANTITY of strong beer , CARDINAL gin and tonic and CARDINAL strong liquor ; on a report analysing the results of the breathalyser test carried out on TIME CARDINAL DATE ; on the records of his statement to the police on TIME , and on witness evidence . ORG did not find credible the applicant ’s statement made during the trial hearing that , because of his state of drunkenness , he could not recall having driven the car in question .", "As to sentencing , ORG observed that aggravated drunken driving was normally punishable by imprisonment . However , in view of the applicant ’s age , his personal circumstances and his agreeing to carry out community service , ORG found that a departure from normal practice was warranted , and imposed a suspended sentence together with CARDINAL ORG community service ( “ GPE dom med samhälltjänst femtio ( CARDINAL ) timmar ” ) . ORG added that should it instead have imposed a prison sentence , it would have sentenced the applicant to DATE imprisonment .", "No appeal was made against the above judgment , which became legally enforceable .", "On DATE ORG issued a further notification replacing the previous CARDINAL of CARDINAL DATE , informing the applicant that , in the light of the ORG judgment of DATE , which had acquired legal force , it intended to take a definite decision on the withdrawal of his driving licence ; the ORG gave the applicant until DATE to submit his comments .", "On DATE the ORG withdrew the applicant ’s driving licence . It took note of his submissions that he had used his driving licence blamelessly since it had been issued to him on DATE , and that he needed the driving licence in order to transport his sailing boat over long distances in order to take part in top - level regattas . However , referring to his conviction for aggravated drunken and unlawful driving on DATE by a judgment ( of DATE ) which had become legally enforceable , ORG stressed that the applicant had violated a rule which was essential for road safety . This transgression could not be viewed as minor . Having regard to the offence committed by the applicant , ORG found that withdrawal of the applicant ’s licence for DATE would not be possible and ordered that his licence be withdrawn for DATE .", "The applicant appealed against the ORG ’s decision before ORG . He reiterated that , since DATE , he had used his driving licence without committing any further offence and that , in the circumstances , the withdrawal constituted double jeopardy , in breach of LAW , LAW and LAW No . CARDINAL to the LAW .", "On DATE ORG refused a request by the applicant to stay execution of the withdrawal order . By a judgment of CARDINAL DATE it dismissed his appeal , relying on the applicant ’s conviction of DATE and the relevant provisions in LAW . ORG considered a number of decisions from the Convention institutions’ caselaw and concluded that no clear precedent existed that could invalidate the NORP system on the withdrawal of driving licences . Bearing in mind the damaging consequences a finding of incompatibility would have for road safety , ORG found no reasons for setting aside the ORG ’s decision to withdraw the applicant ’s driving licence .", "On DATE ORG , on an appeal by the applicant , upheld ORG judgment of CARDINAL DATE .", "The applicant lodged an appeal against the above judgment , which ORG dismissed on DATE . Its judgment contained the following reasons :", "“ [ The applicant ’s ] driving licence and driving licence permit have been withdrawn in accordance with LAW , sections CARDINAL , CARDINAL ( CARDINAL ) and CARDINAL of the Driving Licence Act ( DATE : CARDINAL ) on the grounds that he has been convicted of an aggravated offence of drunken driving and of unlawful driving by a legally binding judgment of the district court . The period of suspension has been set at DATE .", "The main issue in this case is whether the withdrawal of [ the applicant ’s ] driving licence is in conflict with the principle established under LAW No . CARDINAL to LAW ( “ LAW ) , according to which no one shall be liable to be tried or punished twice for the same offence ( ne bis in idem ) . [ The applicant ’s ] opinion in the matter is that the fact that his driving licence was withdrawn after the decision to convict him of a traffic offence means that he has been punished twice for the same matter .", "The European Convention - with the additions made , inter alia , in LAW DATE has been incorporated into NORP law by means of ORG .", "...", "The intended scope of LAW is unclear , as is the principle expressed therein . The wording of the article therefore provides no clear guidance as to whether the NORP system of driving licencerelated measures [ körkortsingripande ] might come into conflict with the LAW . Neither are there many legal precedents in this area .", "As to the various requirements set out in the LAW , it stipulates , first of all , that no one may be ‘ PERSON more than once for an offence . The question here is whether the said withdrawal of the appellant ’s driving licence represents a punishment within the meaning of the Convention .", "Under NORP law , driving licencerelated measures have traditionally been implemented for trafficsafety reasons , that is , they have been regarded as a precautionary measure on the part of society aimed at drivers who jeopardise traffic safety . Hence , measures of this kind have not been regarded as a form of punishment . It is , however , difficult to argue that a decision to withdraw a driving licence because the licence - holder has committed an offence is purely a traffic - safety measure . As a rule , the period of suspension is calculated on a standardised basis in proportion to the seriousness of the offence – in the same way as the penalty . Hence , it is not based on an individual assessment of the likelihood of a repeat of conduct that might jeopardise traffic safety . This means that the decision to withdraw a driving licence – like the punishment for the traffic offence – is aimed at least in part at persuading the holder to respect existing traffic regulations . Over time , the distinction between precautionary measures and punishment has become increasingly unclear in cases of this kind ( see for example ORG CARDINAL:CARDINAL p. CARDINAL , Government Bill CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL et seq . , Government PERSON CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL et seq . and ORG CARDINAL:CARDINAL , pp . CARDINAL et seq . ) .", "...", "Under LAW , section CARDINAL of the Driving Licence Act , a driving licence is withdrawn if any of CARDINAL criteria are met . CARDINAL of these criteria apply not to cases in which the licenceholder has committed an offence but to situations in which the holder is to be barred from holding a driving licence on grounds of unreliability as regards sobriety , illness , injury or similar circumstances . It should be made clear that the withdrawal of a driving licence in these cases is not to be considered as a punishment , and that cases of this kind are of no further interest in the present context . However , criteria DATE and CARDINAL are of interest , since they refer to cases where it is normally presupposed that the licence - holder has committed an offence . According to some of these criteria ( CARDINAL , CARDINAL and DATE ) – except in the case of petty violations – a driving licence may be withdrawn simply on the grounds that the holder has committed one of the offences set out therein . This applies in the case of gross negligence when driving and drunken driving ( criterion CARDINAL ) , in cases where the driver leaves the scene of an accident ( criterion CARDINAL ) and in the event of a violation of a rule that is essential from the point of view of traffic safety ( criterion CARDINAL ) . In other cases ( criteria CARDINAL and CARDINAL ) , certain other conditions must be met in addition to an offence having been committed . According to criterion CARDINAL , the driving licence is withdrawn if the licenceholder , through repeated offences , has shown a considerable lack of willingness or ability to comply with the regulations that apply in the interests of traffic or traffic safety for drivers of motor vehicles . According to criterion CARDINAL , the driving licence is withdrawn if it can be assumed DATE in the light of another offence which the holder has committed – that he or she will fail to respect traffic regulations or show consideration , judgement or responsibility on the road , or if he or she , on account of other personal circumstances , can not be considered suitable to be a driver of a vehicle requiring a driving licence .", "Under criteria CARDINAL , CARDINAL and DATE , therefore , a driving licence is withdrawn , in principle , as the direct result of an offence . As regards criteria CARDINAL ( repeated offences ) and CARDINAL ( other offences ) , however , it is not the criminal act alone , but the act taken in combination with other factors – willingness and ability to comply with existing regulations , to show respect for traffic regulations , judgement and responsibility on the road , or suitability with regard to personal circumstances – which constitutes the grounds for revoking the licence . In the light of the PERSON v. GPE case ( judgment of DATE , Reports of Judgments and Decisions CARDINAL ) , for example , the withdrawal of a driving licence under criteria CARDINAL , CARDINAL or DATE can be said to be closer in character to a punishment than withdrawal under criteria CARDINAL or CARDINAL . At the same time , the basic rationale for withdrawal is that a driving licence should be withdrawn if the holder is deemed unsuitable to hold a licence . Hence , the fact that the legislator has singled out certain offences as constituting grounds for withdrawal in their own right , while further criteria must be fulfilled in the case of other offences , does not mean that the act of revoking a driving licence should be characterised in different ways in different cases . A withdrawal under criteria CARDINAL or CARDINAL does not refer to a single offence but to several different offences or other circumstances . However , the same can also apply to withdrawals under criteria CARDINAL , CARDINAL and CARDINAL . Of greater importance is the fact that the withdrawal is not an automatic consequence of the offence in question in any of these cases . Under LAW , section DATE and with the exception of certain drunkdriving offences – the licenceholder should be issued instead with a warning , if there are specific reasons to assume that a warning can be regarded as sufficient . Under LAW , LAW , subsection CARDINAL , if exceptional circumstances exist which warrant departing from the LAW , withdrawal can be avoided or the suspension period reduced if this can be done without jeopardising road safety . If the driving licence is not withdrawn , a warning may be issued instead .", "The regulation therefore means that , when examining a case of driving licencerelated measures under criteria CARDINAL , CARDINAL and DATE , other circumstances besides the actual offence need to be taken into account . This applies with regard both to the question of whether any action should be taken and DATE where applicable – to the question of the scope of such action , e .g . the suspension period . This suggests that , in assessing whether the withdrawal of a driving licence as a consequence of an offence is to be regarded as a punishment or a safety measure , no distinction should be made between the different cases dealt with here ( criteria DATE and CARDINAL ) on the basis of the grounds for withdrawal .", "Comparison of the NORP system of driving licence - related measures described above and the system that was assessed in the PERSON case reveals a clear difference , in that action under the NORP system is , in principle , not an automatic consequence of a conviction by the criminal court . However , the NORP system is also based largely on standard calculations , and driving licencerelated measures are consequently to a very great extent directly related to the degree of seriousness of the violation . The fact that a driving licencerelated measure , according to NORP legislation , is not an automatic consequence of a conviction by the criminal court can not therefore be said to distinguish the NORP system from the one assessed in the PERSON case in any decisive way . In assessing whether the driving licencerelated measure is to be regarded as a punishment , account should also be taken of the fact that , under the NORP system – as with the NORP system – the action taken may , to a certain degree , be considered to have a punitive and deterrent purpose .", "Before determining whether the withdrawal of a driving licence is to be regarded as a punishment , the LOC v. GPE judgment ( [ ORG ] , no . CARDINAL , ORG CARDINALVII ) should also be examined . In the LOC case , the ORG found that the temporary withdrawal of the applicant ’s driving licence for DATE on account of a suspected offence of drunken driving did not concern a criminal charge . Temporary withdrawals can also be effected under NORP driving - licence legislation . In fact , the legislation stipulates that the withdrawal of a driving licence in connection with an offence is to take place as soon as possible after the offence , and on the basis of a provisional decision . According to LAW , section CARDINAL of the Driving LAW , a driving licence should be confiscated by the police or a prosecutor , inter alia , if there is good reason to suppose that the driving licence will be withdrawn under LAW , section CARDINAL ( CARDINAL ) or ( CARDINAL ) . According to LAW , section CARDINAL of the Driving Licence Act , a driving licence is to be withdrawn until further notice pending a final decision on withdrawal , if there is good reason to believe that the driving licence will ultimately be withdrawn on any of the grounds set forth in LAW , section CARDINAL ( CARDINAL ) to ( CARDINAL ) .", "In the present case , ORG is not called upon to determine to what extent a provisional decision regarding a driving licencerelated measure represents a punishment or a safety measure . However , the fact that cases could arise under the NORP system which should be dealt with in the same way as the LOC case in the above - mentioned respect should not affect the assessment of how to characterise the final withdrawal of a driving licence .", "In view of this , ORG finds that the withdrawal of a driving licence in the cases referred to under criteria DATE and CARDINAL should be regarded as a punishment within the meaning of LAW .", "As is clear from the above , the fact that someone is punished again for an offence does not constitute sufficient grounds for the application of LAW . Other conditions must also be met ; for instance , the penalty must have been imposed ( or the case have been conducted ) in the context of ‘ criminal proceedings’ and the person in question must already have been ‘ finally acquitted or convicted in accordance with the law and penal procedure of that ORG .", "First , as regards the term ‘ criminal proceedings’ ( NORP ‘ pénalement’ ) , it would seem most logical at first sight to consider as criminal proceedings any proceedings which could lead to a sanction constituting a punishment .", "However , it is questionable whether such a far - reaching interpretation of LAW is intended . To begin with , it appears strange – if the above - mentioned interpretation were intended – to have included the term ‘ criminal proceedings’ at all in the provision ; its inclusion suggests that a limitation of its scope was intended ( see PERSON , PERSON ( ORG ) , no.CARDINAL/CARDINAL , p . CARDINAL ) . It should be recalled at this point that the court , in proceedings concerning driving licencerelated measures implemented for a traffic offence , makes no fresh examination of the offence . In other words , these are not criminal proceedings in the sense that the actual offence is examined . This suggests that the term ‘ criminal proceedings’ should be reserved for proceedings of the latter kind , that is , proceedings in which the offence is examined .", "Of interest in this context is the Explanatory Report to LAW , paragraph CARDINAL of which states :", "‘ LAW , since it only applies to trial and conviction of a person in criminal proceedings , does not prevent him from being made subject , for the same act , to action of a different character ( for example , disciplinary action in the case of an official ) as well as to criminal proceedings.’", "It is therefore clear that disciplinary action , for instance against government officials , can fall outside the scope of LAW . However , the report does not provide any clear guidance on the question of how to distinguish between ‘ criminal proceedings’ and proceedings occasioned by an offence and which involve a sanction , but which nevertheless fall outside the scope of LAW . It should be stressed that the fact that disciplinary action is mentioned does not necessarily conflict with the view that legal proceedings are to be seen as criminal proceedings as soon as the sanction constitutes a punishment since , according to the caselaw of ORG , depending on the circumstances , disciplinary action can fall outside what is to be considered as a punishment for the purposes of Article CARDINAL . At the same time , it should be noted that the report does not present any obstacles to an interpretation to the effect that the NORP procedure concerning driving licence related measures falls outside the scope of LAW as an ‘ action of a different character’ .", "As to the condition that the person in question must already have been ‘ finally acquitted or convicted in accordance with the law and penal procedure of that ORG the following should be emphasised . ORG ( paragraph CARDINAL compared with paragraph CARDINAL ) makes it clear that this means first and foremost that there must be a legally binding judgment on the matter . Looking at the wording of the LAW , however , it would seem logical to conclude that – in cases where the legislation in a country prescribes that an offence gives rise to sanctions under CARDINAL separate procedures – the person in question is finally convicted in accordance with national legislation only when both procedures have been completed .", "Hence , in this respect too , the provisions leave room for different interpretations ( see also ORG judgment of DATE in case no . B CARDINAL - CARDINAL ) .", "As regards ORG position on these issues , the abovementioned PERSON case , inter alia , is of some interest . First , it should be pointed out that the action brought by PERSON was based on the fact that the system of automatic deduction of points DATE which did not allow him as a licence - holder to appeal to a court of law – had deprived him of his right of access to a court of law under LAW . As mentioned , the ORG found that the case did concern a criminal charge – and also a punishment DATE and that LAW was applicable . It is of particular interest in this context that the ORG found that the conditions laid down by LAW had been met by the judicial review which preceded the conviction by the court and that the ORG could not be considered to require a further examination by a court regarding the deduction of points . There was no statement to the effect that the NORP system – with its partly separate systems for ordinary penalties and driving licencerelated measures – might be incompatible with LAW . Also of interest is ORG decision on admissibility of CARDINAL DATE in GPE v. GPE ( application no . CARDINAL ) . The applicant ( R .T. ) had , in connection with a drunkdriving offence , first had his driving licence withdrawn by an administrative authority and then been sentenced to prison and a fine by another authority . After PERSON lodged an appeal against the decision to withdraw his licence , the decision was confirmed by an administrative court . The ORG found that there had been no repetition of criminal proceedings in breach of LAW , and stressed , inter alia , that the various sanctions DATE imprisonment , a fine and withdrawal of the applicant ’s driving licence – were envisaged by the national legislation .", "The withdrawal of a driving licence for a criminal offence should be regarded as a punishment within the meaning of LAW [ of LAW ] . Neither the wording of the provision nor the Explanatory Report gives any clear answer to the question whether NORP proceedings relating to the withdrawal of a driving licence are covered by the expression ‘ criminal PERSON . Nor does it give a clear indication as to whether the holder of the driving licence should be regarded as having already been ‘ finally ... convicted’ of the traffic offence by virtue of a legally enforceable judgment by an ordinary court . In ORG view , the wording of both expressions suggests that both questions ought to be answered in the negative .", "In interpreting this LAW , one might also have regard to its purpose . It could be argued that an important safeguard for a person who is finally acquitted or convicted is that he or she should feel secure , in the sense that he or she should not be charged or punished again for the same offence . The NORP system implies that a person who is charged with a traffic offence is aware DATE or ought to be aware DATE from the outset that an enforceable judgment convicting him or her would normally be followed by measures with regard to his or her driving licence . The fact that the measure is taken in separate proceedings should not mean that considerations of security and legal safeguards are set aside . In other words , the NORP system does not appear to conflict with the purpose of LAW .", "A strong argument for considering that the NORP system of withdrawal of a person ’s driving licence for a traffic offence does not conflict with LAW may be found in the ORG ’s judgment in PERSON v. GPE and the above - mentioned admissibility decision in GPE v. GPE . ORG reasoning and conclusion in these cases – notwithstanding the fact that PERSON did not directly concern the application of LAW can only be interpreted to mean that the committing of a criminal offence can lead to different sanctions imposed by separate authorities and courts , if so provided by statute .", "Against this background , ORG concludes that Article CARDINAL § CARDINAL does not constitute an obstacle to applying the provisions of the Driving Licence Act .", "Like the lower courts , ORG finds that LAW , LAW on which [ the applicant ] also relies – is not applicable to drivinglicence cases . ”" ]

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[ "The applicants are NORP nationals of GPE origin . They used to live in the village of GPE , in the NORP district , and are agricultural workers . After the events described below , some applicants returned to live in GPE , while others , who are homeless , live in various parts of the country . Mr PERSON is currently living in GPE and PERSON is living in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows :", "On TIME DATE broke out in a bar in the centre of the village of GPE ( NORP district ) . PERSON and PERSON , CARDINAL GPE brothers , along with another Rom , PERSON , began to argue with a non - Rom , PERSON . The verbal confrontation developed into a physical one which ended with the death of PERSON , who had come to the aid of his father . The CARDINAL GPE then fled the scene and sought refuge in a neighbour 's house .", "Soon afterwards , news of the incident spread and a large number of villagers learned of PERSON death . Enraged , they gathered together to find the GPE . The angry mob arrived at the house where the CARDINAL were hiding and demanded that they come out . Among the crowd were members of the local police force in GPE , including the Chief of Police PERSON , and PERSON , who had heard of the incident . When the brothers refused to come out , the crowd set fire to the house . As the fire engulfed the house , the brothers tried to flee but were caught by the mob who beat and kicked them with vineyard stakes and clubs . The CARDINAL brothers died TIME . PERSON remained in the house , where he died in the fire . It appears that the police officers present did nothing to stop these attacks . The applicants alleged that , on the contrary , the police also called for and allowed the destruction of all GPE property in GPE .", "Later that evening the villagers decided to vent their anger on all the GPE living in the village and proceeded to burn the GPE homes and property in GPE , including stables , cars and goods . The riots continued until DATE . In all , CARDINAL GPE houses belonging to the applicants were destroyed .", "The individual applicants made the following allegations :", "The applicant alleged that it was on his property that the CARDINAL GPE were killed on DATE . His home and other property were set on fire and destroyed .", "NORP The applicant alleged that her house and various personal possessions were destroyed by the fire .", "The applicant alleged that , on TIME DATE , an angry mob had appeared at her door , entered the house and destroyed all her belongings . The mob had then proceeded to set fire to her home and she had watched as the flames destroyed it . The next day , when she had returned home with her husband and daughter , she had been met by an enraged mob of villagers who had prevented her from entering the house . Police officers PERSON , PERSON and ORG had taken hold of her , sprayed pepper in her face and then proceeded to beat her badly . Costică Moldovan had witnessed these events . Colonel ORG had also fired at Costică Moldovan and his family as they tried to return home to fetch their pigs . The applicant declared that her house had been damaged and that she had lost valuables and other possessions .", "The applicant alleged that on TIME DATE she had learned from her DATE daughter what was happening in GPE . Her daughter had told her that a neighbour had said that the non - GPE villagers wanted to kill all the NORP in retaliation for the death of PERSON .", "Fearing for the safety of her children , the applicant had taken them to her mother 's house . TIME , when she returned , she witnessed several people gathered in front of the courtyard throwing stones and pieces of wood and eventually setting her house on fire . As she ran back to her mother 's house , she saw CARDINAL people armed with clubs , urging the mob to set fire to it . Within TIME , her mother 's home was in flames .", "The following day the applicant had attempted to return to what was left of her home to assess the damage . As she approached her property , she had been threatened verbally and physically by an angry mob of non - Roma villagers and police officers . CARDINAL villager had threatened her with a shovel and others had violently thrown rocks at her . The villagers , including the police officers present , had prevented her from entering what remained of her home . Fearing for her safety , the applicant and her children had left GPE .", "DATE she had once again attempted to return to her home along with other GPE villagers . This time the applicant had found the road to her house entirely blocked by an even larger crowd of villagers , all of whom had been carrying clubs . Police officers had also been among the crowd . Among the enraged mob of villagers , the applicant had recognised Officer PERSON , who was holding a truncheon . A police car had even pursued the applicant and other GPE trying to return to their homes , firing shots at them and shouting at them to leave the village . The applicant alleged that her house had been destroyed and that she had lost valuable goods .", "Petru ( Gruia ) Lăcătuş alleged that his house had been destroyed , as had the CARDINAL cars he had had in the courtyard .", "The applicant stated that , on TIME DATE , her husband , PERSON , and her CARDINAL brothers , PERSON and PERSON , had been brutally murdered in the PERSON pogrom . She alleged that CARDINAL of the CARDINAL GPE houses set on fire TIME had belonged to her late mother , PERSON .", "The applicant alleged that his house had been destroyed and that he had lost valuable goods . His wife had been pregnant at the time of the incident and , because she had been beaten and had experienced severe fear , the baby had been born with brain damage .", "In the aftermath of the incident the GPE residents of GPE lodged a criminal complaint with ORG . The complainants identified a number of individuals responsible for what had occurred on DATE . Among those identified were several police officers : Chief of Police PERSON , his assistant PERSON , Colonel PERSON , a certain FAC , and Lieutenant Colonel PERSON , the GPE Chief of Police .", "Thereafter , an investigation was initiated which identified the offenders who had actively participated in the killing of the PERSON brothers and PERSON , and the destruction of GPE houses and other property .", "On DATE CARDINAL civilians PERSON , GPE and GPE - were remanded in custody . They were charged with extremely serious murder ( under Articles CARDINAL and CARDINAL of LAW ) and arson ( under LAW ) . However , TIME they were released and all warrants for their arrest were set aside by order of ORG .", "By an order of DATE , on the basis of ample evidence that suggested police involvement in the incident , the case was sent to the NORP - Mureş Military ORG , which had jurisdiction to investigate crimes committed by police officers . According to the order of ORG of the Târgu - ORG , Lieutenant Colonel PERSON had organised a small meeting with non - GPE villagers after the incident , advising them “ not to tell anyone what the police had done if they wanted the incident to be forgotten and not have any consequences for themselves . ”", "By a resolution dated DATE , the Târgu - ORG ordered an extension of the investigation and the initiation of a criminal investigation in respect of Chief of Police Moga and PERSON . According to the military prosecutor , the evidence produced so far indicated that these persons had incited the villagers to commit acts of violence against the PERSON brothers and had even directly participated in setting fire to certain houses . On the basis of oral evidence , the prosecutor found that officers PERSON and PERSON had participated in the events and “ repeatedly ” incited the villagers to take action against the men barricaded in the house , telling them to “ set them on fire , because we can not do anything to them ” . Moreover , he found that Lieutenant Colonel PERSON had required the inhabitants of ORG “ not to tell anyone anything about the actions of the police officers , and everything will be forgotten and you shall bear no consequences . ”", "On DATE , having regard to the involvement of Colonel Palade , the Târgu - ORG declined jurisdiction to investigate the case and referred it to ORG .", "On CARDINAL DATE Colonel Magistrate PERSON , the military prosecutor at ORG , decided not to open a criminal investigation , stating that the evidence produced in the case had not confirmed the participation of Chief of Police Moga , Lieutenant Colonel PERSON or Sergeant Şuşcă in the crimes committed during the riots . As to the statements made by various witnesses confirming the involvement of these police officers , the prosecutor found that CARDINAL of them had been made by the sister of CARDINAL of the victims and , given the fact that the officers had punished the victims several times , her evidence was obviously tendentious . The prosecutor found the other oral evidence confused . He concluded that the police officers could not be accused of having committed crimes , “ even though one should accept that during the events they had used words such as ' do what you want , I have a family to take care of ' or ' they will come out immediately if you set the house on fire ' . Moreover , we can not consider the lack of initiative and the inability of the CARDINAL policemen to influence the behaviour of the furious villagers as a form of participation – either in the form of instigation or as possible moral complicity . ”", "In DATE , the Head of ORG upheld the decision , refusing to open an investigation , and all charges against the police officers were dropped . An appeal lodged by the injured parties was dismissed by ORG .", "On DATE , ORG of the Târgu - ORG issued an indictment charging CARDINAL civilians suspected of having committed crimes on DATE .", "Certain testimonies confirmed that the police had promised the villagers involved in the riot that they would help to cover up the entire incident . Several defendants testified that CARDINAL police cars driving to the scene of the incident that night had ordered , over their loudspeakers , that the house where the CARDINAL GPE victims were hiding be set on fire .", "On DATE a criminal trial , in conjunction with a civil case for damages , began against the civilian defendants in the Târgu - ORG . During these proceedings , the applicants learned of the overwhelming extent of the evidence against the police . Various witnesses testified that police officers had not only been present that TIME but had actually instigated the incident and then stood idly by as the CARDINAL PERSON brothers and PERSON were killed and GPE houses destroyed . In this connection , witnesses cited the names of Chief of Police Moga , Colonel PERSON and PERSON .", "In the light of numerous testimonies implicating additional individuals – both civilians and police officers – the applicants ' lawyer asked the court to extend the indictment of CARDINAL DATE . As a result , the civilian prosecutor sent the relevant military prosecutor the information on which to base proceedings before a military court against the officers concerned .", "The applicants PERSON and PERSON asked the court in writing to extend the criminal charges . According to them , the prosecutor refused to do so .", "On DATE the Târgu - ORG severed the civil and the criminal case because the criminal investigation had already lasted DATE and the determination of the civil aspect would take even longer .", "On DATE the Târgu - ORG delivered its judgment in the criminal case . It noted the following :", "“ The village of GPE , belonging to the commune of PERSON , is situated in the south - west LOC on the main road between NORP - Mureş and GPE and has a population of CARDINAL inhabitants , of which CARDINAL are NORP , CARDINAL NORP and CARDINAL Roma .", "The GPE community represents PERCENT of the total population and the marginal lifestyle of some categories of GPE , especially the ones who settled in the village after DATE , has often generated serious conflicts with the majority of the population .", "Due to their lifestyle and their rejection of the moral values accepted by the rest of the population , the GPE community has marginalised itself , shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society .", "Most of the GPE have no occupation and earn their living by doing odd jobs , stealing and engaging in all kinds of illicit activities . As the old form of common property that gave them equal rights with the other members of the community was terminated , the GPE population were allocated plots of land . However , they did not work the land and continued to steal , to commit acts of violence and to carry out attacks , mainly against private property , which has generated even more rejection than before .", "ORG have started arguments with the young people in the village , attacked them or stolen their goods and money .", "Moreover , they ostentatiously use insults , profanities and vulgar words in public places . ...", "The records of the criminal - investigation authorities and of the courts of law in GPE disclose that CARDINAL criminal cases were registered DATE , having as their object acts of violence ranging from simple blows to murder .", "In fact , the real number of the crimes committed by the GPE was much higher , but many of them were not judged in court because the injured parties did not file complaints , withdrew them or made peace with the perpetrators , for fear of vindictive threats by the GPE .", "The community feels that most of the disputes were solved in an unfair , unsatisfactory manner in favour of GPE and this has caused an increase in the number of personal or collective vindictive actions . ”", "The court went on to establish that , on TIME DATE , the PERSON brothers and PERSON had been waiting at the village bus station and had quarrelled with PERSON about the attempts made by the CARDINAL GPE to attract the attention of a girl . Answering the GPE 's mockery and insults addressed to him and to his cow , PERSON started to threaten the GPE with his whip and even hit PERSON . A fight followed , during which PERSON , who had intervened to defend his father , was stabbed in the chest by PERSON . The GPE ran away , while PERSON was brought to the hospital , where he died TIME . During that time the GPE took refuge in the house of the applicants Lucreţia and PERSON , while villagers gathered around the yard of the house . QUANTITY police officers , Chief of Police Moga and PERSON , arrived at the scene of TIME , having been called by some villagers . The policemen were allegedly under the influence of alcohol . Before and after the arrival of the police , the villagers threw stones , pieces of wood and clods of earth at the house and shouted things like “ Set fire to the house ! Let them burn like rats ! ” A villager started to throw flammable materials at the house and was soon followed by others , including children . When the fire spread , CARDINAL of the GPE men came out of the house . PERSON was immediately immobilised by PERSON , while PERSON managed to run away . PERSON was stopped from coming out of the house by a villager and was hit by another 's fist and a shovel , which finally led to his dying in the fire . His carbonized body was found the following day in the burned - down house . The autopsy report established that he had died from respiratory failure , PERCENT carbonized .", "To escape the fury of the villagers , Chief of Police PERSON took PERSON to the cemetery , after trying in vain to enter several courtyards in the village , which were all locked . The court noted that “ the policeman [ Moga ] , realising his presence was useless , abandoned his prisoner to the infuriated crowd ” . According to the autopsy report , PERSON died a violent death from shock and internal bleeding , with multiple traumatic injuries affecting his liver , a hemiperitoneum and peripheral haematoma on PERCENT of his body .", "PERSON was caught by the crowd near the cultural centre , where he was beaten to death . The autopsy report found that he had died as a result of direct blows from blunt objects causing CARDINAL lesions on his body ( multiple fractures of his arms , ribs and thorax , and multiple traumatic injuries and contusions ) .", "During the trial , all the civilian defendants stated that , in addition to officers ORG and GPE , CARDINAL other policemen had arrived from the city of Luduş and encouraged the crowd to set fire to the houses . CARDINAL police cars had also arrived at GPE , from which it was announced over loudspeakers that only the detached houses of the NORP should be set on fire in order not to cause accidents . At a meeting held DATE in the village square , Lieutenant Colonel PERSON stated that the case would be covered up and a scapegoat found .", "All the accused stated that they had been arrested for the first time in DATE , but only for TIME , after which they had been released in order to allow them to harvest the crops , a reason they found strange , since most of them were not farmers . They also stated that very few questions were put to them and that the prosecutor even tried to put pressure on them . They were not questioned further until DATE , when they were arrested again .", "The court further established that the villagers had declared that , on TIME in question , the village was to be “ purged of the NORP ” , an intention clearly put into action , and found that ,", "“ The majority of the population of GPE was directly or indirectly supported by the representatives of the authorities who came to the village and not only did nothing to stop the houses being set on fire , but also surrounded the area with groups of gendarmes . ”", "The court found that the action was not premeditated , but that all those present had acted jointly , in different ways ( assault , murder , fire , destruction , etc . ) , to reach their declared goal of eliminating the GPE community from the village .", "The court held that the preliminary investigation had been inadequate :", "“ We deem that the inadequate manner in which the acts and ... procedures related to the investigation were performed reflect a negative attitude ... The same can be noted regarding the delayed submission of the autopsy reports on the victims ( PERSON , PERSON and PERSON died on DATE and the forensic reports were drafted in DATE ; mention should be made of the fact that none of the CARDINAL forensic reports gave specific dates , but only an indication of DATE when they were drafted ) ... [ Moreover , ] the electoral meeting organised at the village stadium , attended by politicians , representatives of the police and the law , ... asked the population not to tell the truth and to delay the resolution of the case . ”", "The court also noted that the prosecution had not agreed to an extension of the criminal investigation or to the initiation of criminal proceedings against “ other persons ” . Therefore , the court could only rule in respect of those perpetrators prosecuted in accordance with LAW .", "The court convicted CARDINAL civilians of extremely serious murder under Articles CARDINAL and CARDINAL of LAW and CARDINAL civilians , including the former CARDINAL , of destroying property , outraging public decency and disturbing public order . Among those convicted of destruction of property and disturbance was GPE , the Deputy Mayor of GPE . The court pronounced prison sentences ranging from DATE , and noted that those given terms of DATE had CARDINAL the sentence pardoned under PERSON no . ORG . The court justified the sentences as follows :", "“ Taking into consideration the characteristics of this particular case , the punishments applied to the defendants might seem too mild compared to the gravity of the crimes . We consider that , as long as persons who contributed to a greater extent to the criminal actions were not prosecuted and were not even the subject of an investigation , although there was enough evidence to prove their guilt , the defendants who were prosecuted should not be held responsible for all the crimes committed , but only for that part for which they are liable . ”", "On DATE , ORG appealed against this judgment , asking , inter alia , for heavier sentences . On DATE , the Târgu - ORG of Appeal convicted a sixth civilian , PERSON , of extremely serious murder under Articles CARDINAL and CARDINAL of LAW , sentencing him to DATE imprisonment . It also increased the sentence under LAW in respect of GPE to DATE imprisonment . However , it reduced the other sentences under Articles CARDINAL and CARDINAL : in respect of GPE and S.I.P. from DATE imprisonment , in respect of ORG and GPE from DATE imprisonment , and in respect of GPE , GPE and GPE from DATE imprisonment . Finally , it discontinued the criminal proceedings against the Deputy Mayor PERSON", "ORG also reduced the sentences of those convicted of destruction of property under LAW .", "On DATE , ORG upheld the lower courts ' convictions for destruction , but reduced the charges of extremely serious murder to a lesser charge of serious murder with extenuating circumstances for GPE , ORG and S.I.P. , sentencing them to DATE imprisonment . It acquitted PERSON and GPE", "By a decree of DATE , the President of GPE issued individual pardons to PERSON and ORG , convicted of serious murder , whereupon they were released .", "On DATE , following new evidence brought to light in the criminal trial , the applicants lodged an appeal with ORG of ORG against the decision of DATE not to open an investigation against the police officers involved in the incidents of DATE .", "On DATE the Chief Military Prosecutor of ORG upheld the military prosecutor at ORG decision of CARDINAL DATE .", "By decision no . CARDINAL of DATE , ORG allocated CARDINAL NORP lei ( ROL ) for the reconstruction of the QUANTITY houses destroyed by fire on DATE . The Government decided , moreover , that this amount could also be used as financial assistance for the families affected in order to help them replace items of strict necessity destroyed during the fire . However , CARDINAL houses were rebuilt with this money and none of the families received financial assistance .", "By a Government decision of CARDINAL DATE , a commission for the co - ordination of the reconstruction of the houses was created . Members of this commission included the mayor of PERSON , PERSON , and his Deputy , PERSON", "In a letter of DATE addressed to the Government , the ORG indicated that an additional amount of ORG CARDINAL,CARDINAL,CARDINAL was needed to rebuild the remaining QUANTITY houses .", "By decision no . CARDINAL of DATE , the ORG granted an additional sum of ORG in funds , which had been earmarked for natural disasters occurring DATE . CARDINAL other houses were rebuilt . As shown in photographs submitted by the applicants , these constructions were defective , as there appear to be huge gaps between the window frames and the walls , and the roofs only partially cover the houses .", "In a letter dated DATE addressed to the Prefect of Mureş , PERSON , the father - in - law of the applicant PERSON , requested that her house be rebuilt as a priority because , since the events , she had been living with her CARDINAL children in a hen - house .", "In a letter dated CARDINAL DATE , ORG , a human - rights association based in GPE , informed the ORG that QUANTITY houses had still not been rebuilt , which meant that CARDINAL families had to spend DATE without a dwelling . Moreover , according to the association , most of the victims had complained about the bad quality of the rebuilt houses and alleged that the money allocated for this purpose had been improperly used .", "In a letter addressed to the ORG in DATE , the mayor of PERSON ( of which ORG is a part ) , PERSON , a member of the reconstruction commission , reported that , of the QUANTITY houses destroyed by the fire , QUANTITY had been rebuilt or almost rebuilt . Concerning the remaining QUANTITY houses , he reported that CARDINAL of them posed “ special problems ” based in part on “ the behaviour of the CARDINAL families ” , “ the seriousness of the acts committed and the attitude of the population of GPE towards these families ” . In particular , one of the houses to be rebuilt was on land near the non - Rom victim 's family ( PERSON ) , who refused to have Gypsy families living close by . Another problem mentioned by the mayor was the house of the late mother of CARDINAL of the GPE “ criminals ” who had died during the DATE events . It appeared that , after the events , the PERSON family had started living in the city of GPE , so the mayor had proposed that a house be built for them at a place of their choice .", "To date , QUANTITY houses have not been rebuilt , of which CARDINAL belonged to the applicants Petru ( Dîgăla ) Lăcătuş and PERSON . According to an expert report submitted by ORG , the damage caused to the houses of Petru ( Gruia ) Lăcătuş and PERSON had not been repaired , whereas the houses of GPE Moldovan and PERSON had been rebuilt but required finishing work .", "DATE . On DATE the applicant PERSON wrote a letter to the President of GPE , informing him that QUANTITY houses , including his , had still not been rebuilt . He urged the President to grant the necessary funds for the reconstruction of the houses , since he and his family were living in very difficult conditions in the home of the PERSON family : CARDINAL people , including QUANTITY children , were living in CARDINAL rooms and sleeping on the floor , which resulted in the children being continually ill .", "The applicants submitted that , in general , following the events of DATE , they had been forced to live in hen - houses , pigsties , windowless cellars , or in extremely cold and deplorable conditions : QUANTITY people in CARDINAL room with no heating ; CARDINAL people in CARDINAL room with a mud floor ; families sleeping on mud or concrete floors without adequate clothing , heat or blankets ; CARDINAL people in a summer kitchen with a concrete floor ( Melenuţa Moldovan ) , etc . These conditions had lasted for DATE and , in some cases , continued to DATE .", "As a result , the applicants and their families fell ill . In particular , the applicant Petru ( Gruia ) Lăcătuş had developed diabetes and begun to lose his eyesight .", "Following the decision of DATE to sever the civil and criminal proceedings , on DATE ORG delivered its judgment in the civil case . The court noted that the victims had requested pecuniary damages for the destruction of the houses and their contents ( furniture , etc . ) , as well as non - pecuniary damages . The court further noted that , during the events of DATE , QUANTITY houses belonging to the GPE population in GPE had been totally or partially destroyed and CARDINAL GPE had been killed , a criminal court having found CARDINAL villagers guilty of these acts . Basing its decision on an expert report , the court awarded pecuniary damages for those houses which had not been rebuilt in the meantime , and maintenance allowances for the children of the GPE killed during the riots . On the basis of an expert report , the court awarded pecuniary damages in respect of the partial or total destruction of the houses of CARDINAL GPE , including those of the third and fifth applicants . The court rejected the other applicants ' request for pecuniary damages in respect of the rebuilt houses , finding , on the basis of the same expert report , that their value was either the same or even higher than the original buildings . It further refused all applicants damages in respect of belongings and furniture , on the ground that they had not submitted documents to confirm the value of their assets and were not registered as taxpayers capable of acquiring such valuable assets . The court stated , inter alia :", "“ Mr Iulius Moldovan did not submit documents proving with certainty that he had any belongings . He claimed in particular that he was in the sheep business , from which he drew a substantial income , for instance , that he had QUANTITY of wool in the attic of his house . However , from the information obtained by the court from the local tax office in GPE , it appears that the civil party was not registered as having any income . ...", "The damage suffered because of the destruction of the chattels and furniture has not been substantiated . The civil parties consider that their own statements , the lists of the belongings destroyed submitted to the court and the statements of the other witnesses who are also civil parties should be enough to substantiate their claims . Having regard to the context in which the destruction occurred and to the fact that all civil parties suffered losses , the court will dismiss as obviously insincere the statements made by each civil party in relation to the losses suffered by the other civil parties .", "Last but not least , the type of belongings allegedly destroyed and the quantity of goods allegedly in the possession of each civil party show a much more prosperous situation than that which a family of average income could have . Neither civil party adduced proof of having an income such as to allow them to acquire so many goods . As noted previously , the parties had no income at all . Moreover , the shape of the houses , the materials used for their construction and the number of rooms show an evident lack of financial resources . It should be stressed in this context that only work can be the source of revenue , and not events such as the present one ... ”", "The court finally rejected all the applicants ' requests for non - pecuniary damages on the ground that they had not substantiated their claim , and that the crimes committed were not of a nature to produce moral damage .", "The court ordered the villagers convicted in the criminal trial to pay the damages awarded .", "Having regard to some procedural errors in ORG judgment , the applicants lodged an appeal with ORG .", "On DATE ORG found that a number of procedural errors had occurred during the public hearings on the merits before ORG : the hearings had been held in the absence of the accused and their lawyers ; CARDINAL of the original applicants , PERSON , had not been summoned ; the public prosecutor had not been given leave to address the court ; a number of expert reports ordered by the court had not been completed , and confusion had been created as to the number and names of the victims and their children . ORG concluded that these errors rendered the proceedings null and void . It therefore quashed the judgment of DATE and ordered a new trial of the case .", "DATE . The Mureş Regional Court delivered its judgment in the civil case on CARDINAL DATE . The court noted that the victims had requested pecuniary damages for the destruction of houses and their contents ( furniture , etc . ) , as well as non - pecuniary damages . The court further noted that , during the events of DATE , QUANTITY houses belonging to the GPE population in GPE had been totally or partially destroyed and CARDINAL GPE had been killed . As a result of these events , the ORG had granted some money for the reconstruction of the houses .", "Basing its decision on an expert report drafted in DATE and updated in DATE , the court ordered the following damages to be paid by the civilians found guilty by the criminal court :", "( a ) Iulius NORP was awarded ROL CARDINAL in pecuniary damages in respect of the destroyed house , to be revised to take account of any devaluation in the national currency . The court further heard evidence from witnesses confirming that various assets belonging to the applicant , including furniture , belongings and the proceeds from the sale of CARDINAL sheep , had been destroyed during the fire . However , the court refused to award damages on the ground that it was impossible to assess the loss .", "( b ) As regards PERSON , the court noted that her house did not appear on the list of the houses ( totally or partially ) destroyed drawn up by FAC . The court heard testimony confirming the destruction of part of the roof and of the wooden structure of her house , but noted that there was no evidence to evaluate the damage . Therefore , it rejected the request for pecuniary damages .", "( c ) ORG ( Gruia ) Lăcătuş was awarded ROL CARDINAL,CARDINAL,CARDINAL in pecuniary damages in respect of the destroyed house . The court noted the applicant 's claim that various assets he had owned had been destroyed during the fire – furniture , CARDINAL cars , jewellery and money – but rejected it as unsubstantiated .", "( d ) As regards PERSON , the court awarded LAW for the destroyed house . The court heard evidence from CARDINAL witnesses confirming that the applicant had had various belongings which had been destroyed by the fire , but refused to award damages in that respect , as there was no evidence as to their value .", "( e ) PERSON was awarded ROL CARDINAL,CARDINAL for the destroyed house . The court rejected her claim in respect of the destroyed belongings as there was no evidence as to their value .", "( f ) ORG ( Dîgăla ) Lăcătuş was awarded , together with PERSON and PERSON , as the brother and sisters of the deceased victims , ROL CARDINAL for the destroyed house , to be revised to take account of any devaluation in the national currency . The court rejected their claim in respect of their destroyed belongings on the ground that the losses had not been substantiated . It also rejected as unsubstantiated the claim for the reimbursement of the money spent on the burial of the victims .", "( g ) PERSON , the widow of one of the victims who had died burned alive during the riots , also requested a maintenance allowance for her minor child . The court noted that although the applicant claimed that her husband used to be a manufacturer of woollen coats , she had not submitted any evidence as to his income , and therefore decided to take the statutory minimum wage as the basis for the calculation of the allowance , namely , ROL CARDINAL,CARDINAL,CARDINAL . Moreover , it found that it was impossible to establish how much the applicant 's husband used to spend on his child 's maintenance , and applied the minimum granted by LAW , that is CARDINAL of the minimum wage , which amounted to ROL CARDINAL,CARDINAL . Finally , the court took into account that the deceased victims had provoked the crimes committed and decided to halve the above - mentioned amount . It therefore awarded ROL CARDINAL per month in maintenance allowance for the applicant 's minor child .", "Finally , the court rejected all the applicants ' requests for non - pecuniary damages on the ground that they had not substantiated their claim , and that the crimes committed were not of a nature to produce moral damage .", "On appeal by the persons convicted and the applicants , the Târgu - Mureş Court of Appeal gave judgment on DATE . The court recalled that , under the combined provisions of LAW and ORG , it was bound by the ruling of the criminal court . Referring to recent publications by NORP authors in the field of civil law and the ORG 's case of ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL ) , the court found that ,", "“ By their behaviour , the accused infringed the property rights of the complainants , for which pecuniary damages had already been awarded ; however , some of the civil parties should also be awarded damages from a moral point of view . Some of the civil parties were deprived emotionally , as a result of the damage sustained , of the security which they had felt in the destroyed houses , of the comfort they had enjoyed as a result of the facilities of the houses , all these movable and immovable goods being the result of their work , which guaranteed them a normal standard of living , having regard to their personalities ...", "As shown above , the accused committed the crimes in a state of provocation , which led the court to apply the provisions of LAW [ regarding extenuating circumstances ] . For this precise reason , the civil parties enumerated below are entitled to a certain amount of damages , but not the amount requested ... ”", "The court awarded the following amounts : ROL CARDINAL,CARDINAL,CARDINAL to PERSON as it found that she had had to leave the village and wander homeless in the country and abroad ; ROL CARDINAL,CARDINAL,CARDINAL to PERSON as he had been profoundly affected by the events , had lost his fortune and his health had deteriorated substantially ; ROL CARDINAL,CARDINAL,CARDINAL to Otilia Rostaş as she had suffered psychological and emotional trauma for the same reasons ; ROL CARDINAL,CARDINAL,CARDINAL to PERSON for the same reasons as PERSON ; ROL CARDINAL,CARDINAL,CARDINAL to PERSON for the psychological trauma suffered as a result of the partial destruction of her house ; and ROL CARDINAL,CARDINAL,CARDINAL to Petru ( ORG since he had sustained deep emotional damage and felt insecure as a result of the burning of his parents ' house . No award was made in respect of Petru ( Gruia ) Lăcătuş .", "The civil parties filed an appeal against this judgment , which was rejected by a final decision of ORG , on DATE .", "Article CARDINAL of the Code of Civil Procedure , as amended by Government Order no . CARDINAL/CARDINAL , provides that a court examining a civil action can suspend the proceedings :", "“ ... CARDINAL . NORP if criminal proceedings have been instituted in relation to a crime , the determination of which is decisive for the outcome of the civil dispute . ”", "“ Criminal proceedings can not be instituted and , if instituted , can not be continued if ...", "c ) the act was not committed by the defendant ; ... ”", "“ The person who has suffered civil damage can join the criminal proceedings ...", "He or she can do so either during the criminal investigation ... or before the court ... ”", "“ The findings contained in a final judgment of the criminal court concerning the issue whether the act in question has been committed , and the identification of the perpetrator and his guilt , are binding on the civil court when it examines the civil consequences of the criminal act . ”", "“ In case of a conviction or an acquittal , or the termination of the criminal trial , the court shall deliver a judgment in which it also decides on the civil action .", "Civil damages can not be awarded if an acquittal was decided on the ground that the impugned act did not exist or was not committed by the accused . ”", "Articles CARDINAL of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has negligently caused it .", "Article CARDINAL of the Civil Code provides that , where CARDINAL person has committed an intentional tort , they shall be jointly and severally liable .", "The Government submitted a number of cases in which domestic courts had decided that the prosecutor 's decision , based on LAW b ) of LAW , not to open a criminal investigation on account of the absence of intention – as an element of DATE did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question .", "The Government submitted CARDINAL case , dating back to DATE , in which ORG had decided that the prosecutor 's decision , based on LAW , not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant , should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question . ORG decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action .", "The common view of the criminal - procedure specialists is that a civil court can not examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in LAW ) of LAW that the acts were not committed at all or were not committed by the defendant ( see LAW , PERSON and Others , p. CARDINAL , GPE DATE , and LAW , PERSON , pp . CARDINAL - CARDINAL , GPE DATE ) .", "The common view of the civil - procedure specialists and of some criminal - procedure specialists is that the prosecutor 's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph , does not prevent a civil court from examining a civil action brought against the defendant . In such a case , civil courts are entitled to decide whether the acts were committed and by whom , but have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation ( see ORG and the Criminal Trial , PERSON , RRD no . CARDINAL/CARDINAL , and Criminal Procedural Law , PERSON ORG , p. CARDINAL , GPE DATE ) ." ]

[ "14", "3", "6", "8" ]

[ "6-1" ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national , who was born on DATE in GPE and lives in GPE , the LOC . He is a retired officer of the prosecution service of GPE . The respondent Government were represented by their Agents , PERSON , succeded by PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant commenced work in the prosecution service . On DATE the applicant retired from the position of prosecutor - criminologist in ORG . However , he was re - appointed and continued working there until DATE . On DATE he voluntarily retired . As from DATE he started to receive his pension , calculated on the basis of LAW and his DATE of service .", "As from DATE , the Decree of the President of DATE provided for a pay rise for the prosecution service employees in accordance with their respective ranks . The pay rise was given effect by CARDINAL resolutions of ORG of DATE and DATE .", "In DATE the applicant applied to have his pension recalculated . On DATE ORG refused to re - calculate the applicant 's pension with reference to the applicant 's period of work DATE . It based its decision on a letter , dated DATE , of ORG ( No . CARDINAL - CARDINAL/CARDINAL - CARDINAL - CARDINAL ) , which provided inter alia that the PERSON on ORG did not envisage the recalculation of pensions following a pay rise . The decision stated that there was no specific resolution of the Cabinet of Ministers dealing with the recalculation of pensions in the event of an intervening pay rise .", "The applicant complained about this decision to ORG ( “ the Ministry ” ) in the LOC . On DATE the ORG rejected the applicant 's complaint , maintaining that the law did not provide for a recalculation of his pension . It also referred to a recommendation by ORG in a letter dated DATE ( No . DATE ) . ORG recommended to the lower courts that LAW DATE and ORG on pension recalculations were not applicable to persons who had became pensioners under LAW .", "On DATE , the applicant instituted proceedings in ORG against the decision of ORG refusing him a higher pension . On DATE , ORG rejected his claims as being unsubstantiated , referring to the letter - recommendations of ORG of DATE and DATE . In particular it held that :", "“ ... The court has established that , ORG , a former employee of the prosecution service , being a pensioner , applied to ORG to have his pension recalculated . He maintained that , since the salaries of the prosecution service employees were to be increased in accordance with the Decree of the President of GPE , his pension should thereby be recalculated . ORG refused to recalculate his pension , grounding its decision on the absence of a special resolution of ORG in this connection . GPE on ORG does not provide for a recalculation of a pension because of a raise in salaries . Since ORG acted in accordance with the explanations of the judicial bodies , the complaint of GPE against its actions is therefore unsubstantiated .... ”", "On DATE the applicant lodged a cassation appeal against this decision . On DATE , ORG of the LOC upheld it . In particular , it stated that :", "“ Having considered the case file , and having discussed the applicant 's complaints set out in his cassation appeal and heard the explanations of ORG , the judicial chamber holds that it has no basis on which to allow his claims . The decision is in conformity with the legislation and evidence established in the course of the proceedings in the case .", "In adopting its judgment , the court took into account that the applicable legislation , including the PERSON on ORG , does not provide for a recalculation of pensions on account of changes to the salaries of prosecution service employees who retired from the service .", "The applicant 's complaints that the court decision was adopted on the basis of non - established factual circumstances and did not conform to legislation are unsubstantiated . The evidence was assessed in accordance with LAW and there is no basis on which to declare the judgment erroneous .", "The court 's judgment is correct and substantiated . There are no grounds to annul this judgment .", "As to the recommendations of the judicial bodies , the judicial chamber considers it necessary to exclude from the judgment of the court the reference to ... the letter of ORG of GPE with regard to this issue ... as not being based on the law .", "Resolves", "To leave the decision of ORG of DATE unchanged , and reject the complaints of ORG", "To exclude from the statement of reasons of the judgment the opinion and the reference of the court , with respect to the claim of ORG , to the recommendations of ORG of GPE to the judicial bodies , ... ”", "The applicant complained about this decision to ORG . On DATE it rejected the applicant 's complaint , maintaining that the law did not provide for a recalculation of his pension . It also referred to a recommendation by ORG in a letter dated DATE ( No . DATE ) . ORG recommended to the lower courts that LAW DATE and ORG on pension recalculations were not applicable to persons who had became pensioners under LAW . It also referred to the letter - recommendation of CARDINAL DATE .", "On DATE the applicant wrote a letter to ORG [ ORG of GPE is responsible for the registration of the legal acts of the bodies of ORG power ] with regard to the legal validity of the recommendations of ORG as to the recalculation of his pension . On DATE ORG responded that letters recommending certain courses of action , issued by ORG institutions , are not registered by ORG , since they are merely legal explanations pertaining to a particular matter .", "On DATE the applicant requested ORG of ORG to recalculate his pension since the entry of the LAW GPE “ on the Introduction of changes to the PERSON on the Prosecution Service of DATE ” .", "On DATE ORG recalculated his pension . He started to receive an increased pension of UAH CARDINAL,CARDINAL.CARDINAL .", "On DATE ORG recalculated the applicant 's pension again due to the entry into force of the Decree of the President of GPE of DATE and the internal normative acts of ORG . His pension was , accordingly , raised to ORG DATE .", "“ ORG have the right to social protection that includes the right to a provision in cases of complete , partial or temporary disability , the loss of the principal wage - earner , unemployment due to circumstances beyond their control , and also old age , and in other cases established by law .", "This right is guaranteed by general mandatory State social insurance on the basis of the insurance payments of citizens , enterprises , institutions and organisations , and also from budgetary and other sources of social security , by the establishment of a network of ORG , communal and private institutions to care for persons incapable of work .", "Pensions and other types of social payments and assistance , that are the principal sources of subsistence , shall ensure a standard of living not lower than the minimum living standard established by law . ”", "“ ... the time - in - service pension shall include the relevant postholder 's salary , bonuses for the post occupied , time - in - service , and also other payments in accordance with LAW . ”", "“ Prosecutors and investigators with work experience of not DATE , including those with work experience in the position of prosecutors and investigators of not DATE , have the right to a pension for the time - in - service irrespective of their age ...", "Pensions assigned to employees of the prosecution service shall be recalculated following any increase in the salary of the relevant categories of prosecution officers and investigators . ... The provisions of this LAW extend to retired employees of the prosecution service who , before the entry into force of this law , were assigned an old age pension , time - in - service pension or disability pension ... , irrespective of the time when they became pensioners , only work experience being taken into account , as required by LAW . ... ” ( This PERSON was amended by LAW , in accordance with LAW . CARDINAL - CARDINAL of CARDINAL , and PERSON No . CARDINAL-III ( CARDINAL - CARDINAL ) of CARDINAL . )", "This PERSON provided for the recalculation of pensions if a pay rise intervened ( Article CARDINAL of the PERSON ) .", "Both texts envisaged pay rises for employees of the prosecution service as of DATE .", "This recommendation , by way of a letter issued to the Presidents of the regional courts , stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with LAW .", "This recommendation , by way of a letter given to ORG , stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with LAW .", "The applicant provided the ORG with decisions in the cases of former prosecution service officers whose pensions were recalculated following judgments in their favour :", "– a ruling from ORG of DATE on the claim of PERSON ;", "– a ruling from ORG of DATE on the claim of GPE ;", "– a decision from ORG of DATE on the claim of PERSON ;", "– a decision from the ORG of GPE of DATE and the ruling of ORG of DATE upon the claim of Pleskach V.G ; and", "– a decision from ORG of DATE upon the claim of ORG ( This judgment was quashed by ORG DATE ) .", "The applicant alleged that , in all of these cases , the claimants requested the recalculation of their pensions in view of the changes to the legislation concerning the salaries of prosecution service employees . He further maintained that their claims were allowed .", "The Government provided the ORG with decisions in cases of former prosecution service employees whose claims for recalculated pensions were rejected as the legislation did not provide for such adjustments :", "– a ruling from ORG of DATE given by a chamber of CARDINAL judges on the claim of Tyurin PERSON ;", "– a judgment of DATE from LOC of GPE on the claims of PERSON ;", "– judgments of DATE from ORG and the GPE ORG of Chernigiv of DATE on the claims of PERSON ;", "– a judgment of DATE from the Darnytsky ORG of GPE on the claims of PERSON ;", "– judgments of DATE and DATE from ORG and ORG of L'viv on the claims of ORG ;", "– a judgment of CARDINAL DATE from the GPE ORG of Kirovograd on the claims of PERSON ;", "– a judgment of DATE from the ORG of GPE on the claims of ORG ;", "– a ruling of DATE from ORG and the judgment of DATE from ORG of PERSON on the claims of PERSON ;", "– a ruling of DATE from ORG and the judgment from the GPE ORG of Donetsk Region on the claims of Lobayev A.A. ;", "– a ruling of DATE from ORG and the judgment from ORG of DATE on the claims of PERSON ;", "– a ruling of DATE from ORG and the judgment from ORG of DATE on the claims of PERSON ;", "– a ruling of DATE from ORG of the LOC , rejecting the claims of ORG for the recalculation of his pension , and quashing the judgment from ORG of DATE ;", "– a judgment of DATE from the GPE ORG of PERSON on the claims of PERSON ;", "– a ruling of CARDINAL DATE from ORG of the LOC on the claims of GPE ; and", "– a ruling of CARDINAL DATE from ORG and the judgment of DATE from ORG of GPE on the claims of PERSON" ]

[]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested by the customs authorities in GPE after QUANTITY of heroin had been found in her car . On DATE the ORG convicted the applicant of drug - trafficking and sentenced her to DATE imprisonment . On DATE she was released from a prison in GPE .", "On DATE ORG instituted an investigation concerning drug - trafficking from GPE to GPE by the applicant and other persons , acting in connection with a request for legal assistance submitted by the NORP and NORP prosecution authorities .", "On DATE the applicant was arrested in GPE . On DATE ORG served on her the statement of charges . The applicant was charged with supplying significant amounts of heroin to the market DATE in GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . She was also charged with acting in an organised criminal group of drug traffickers . During her questioning by the prosecutor , she confessed that she had attempted to smuggle heroin to GPE and responded to all questions put by the prosecutor .", "On DATE the GPE ORG remanded the applicant in custody until DATE on reasonable suspicion that she had committed the offences referred to above . It held that there was a risk that the applicant would obstruct the proceedings by influencing witnesses since she had not confessed . The court also took into account that the applicant had been charged with acting in an organised criminal gang and had regard to the severity of the anticipated penalty .", "On DATE the GPE ORG prolonged the applicant 's detention until DATE . It found that there was a reasonable risk that the applicant might tamper with evidence , having regard to the number of suspects involved . It also relied on the severity of the anticipated penalty , given the organised character of the criminal activities , their scale and the amount of drugs involved . Lastly , it referred to the need to continue the process of gathering evidence .", "In her appeal the applicant submitted that her continued detention was not necessary to secure the proper conduct of the investigation . She argued that she had already given evidence and that she had had no contacts with the witnesses or other suspects , so the risk of tampering with evidence did not exist in her case . Her appeal was dismissed on DATE .", "On DATE ORG lodged with ORG a motion for the prolongation of the applicant 's detention until DATE .", "On DATE ORG notified the applicant 's counsel of the hearing scheduled for DATE at which the prosecution 's motion would be examined .", "On DATE ORG held a hearing ( posiedzenie ) on the prolongation of the applicant 's detention .", "According to the Government , before the hearing had begun the applicant 's counsel consulted the prosecution 's motion without authorisation from the judge .", "During the hearing the applicant 's counsel applied for access to the investigation file . ORG stated that his motion for prolongation of the detention constituted an integral part of the file and that access to it required his permission . The prosecutor also stated that the counsel had not applied earlier for leave to consult the file . Counsel unsuccessfully requested the court to adjourn the hearing until she had been granted access to the file . ORG , having regard to LAW , held that it could not decide on the counsel 's request for access to the file since such decision was within the exclusive competence of the authority conducting the investigation . The judge informed both parties that the counsel 's request would be transmitted without undue delay to ORG for examination .", "The applicant 's counsel requested the court to dismiss the motion for prolongation because the prosecutor had simply stated that he maintained it without giving specific reasons for it .", "The GPE ORG granted the prosecution 's motion and extended the applicant 's detention until DATE . In the reasons for its decision , the court noted that the applicant had pleaded not guilty and had denied that she had taken part in an organised criminal group trafficking in heroin . Having regard to the applicant 's statements and the number of suspects involved , the court considered that there was a reasonable risk that the applicant might tamper with evidence . In this connection , it had regard to the fact that several other potential suspects were still being sought .", "The applicant 's counsel appealed . She alleged , relying on LAW , that ORG had violated the principle of adversarial proceedings . In this connection , she submitted that ORG motion for prolongation of detention had been received at ORG on DATE . However , it was only in the TIME of DATE that the applicant 's counsel had been notified by telephone that the court 's hearing would be held on DATE at TIME Having further regard to the fact that counsel had not been served with a copy of the prosecutor 's motion , she argued that she could not properly defend the interests of the applicant . Counsel further submitted that the prosecutor had not read out the grounds of his application during the hearing .", "On DATE ORG dismissed the applicant 's appeal . It noted that the applicant had been charged with participation in an organised criminal group which operated in a number of NORP countries . In this context , it considered that there was a risk that the applicant might obstruct the proceedings if released . ORG further relied on the severity of the anticipated penalty and emphasised the danger to society posed by the drug trafficking . Furthermore , ORG dismissed the applicant 's allegations regarding access to the file and the belated summoning of her lawyer to the hearing . It held , in so far as relevant :", "“ The limitation on the lawyer 's access to the investigation file results from the binding procedural rules .", "The court 's hearing on the matter of detention is ancillary to the main proceedings and thus notification of this hearing can be effected shortly before the date for which it has been fixed . The lawyer was notified of the hearing at TIME on DATE the hearing . Thus , it can not be said that the court was at fault in this respect . ”", "It appears that the request of the applicant 's counsel for leave to consult the file made during the hearing held on DATE was received by ORG only on DATE . On DATE the ORG refused that request , invoking the interests of the investigation ( ważny interes postępowania ) . The prosecutor observed that the investigation was at its early stages and still in progress . Furthermore , he found that for reasons which had not been attributable to the prosecution a number of important witnesses had not yet been heard . The applicant appealed against that decision , relying on the principle of equality of arms . On DATE ORG upheld the refusal of CARDINAL DATE . He observed that the restrictions on access to the file had been temporary and justified by the interests of the investigation . In the latter respect , ORG referred to the organised character of the criminal activities at issue and the number of suspects involved . He considered that in those circumstances , the interests of the investigation weighed against the applicant 's right to be acquainted with all the evidence obtained so far in the case .", "On DATE ORG lodged with ORG a motion for prolongation of the applicant 's detention until DATE .", "On DATE the applicant 's counsel was informed about the hearing scheduled for DATE regarding prolongation of detention . On ORG CARDINAL the applicant 's counsel requested LOC to adjourn the hearing until she had received a copy of the prosecutor 's motion . The court refused that request .", "On DATE the applicant 's counsel requested ORG to provide her with a copy of his motion for the prolongation of the applicant 's detention with a view to preparing for the court 's hearing .", "On DATE the ORG granted the prosecution 's motion and ordered that the applicant be held in custody until DATE . It relied on the same grounds as in its earlier decisions . During the hearing ORG indicated that his motion for prolongation referred to , inter alia , the need to question one person whose details could not be disclosed . The counsel stated that the prosecutor simply referred to the relevant provisions of LAW but did not provide any specific grounds justifying the prolongation of the applicant 's detention .", "On DATE ORG refused to grant the applicant 's counsel access to the file following her application of DATE , having regard to the interests of the investigation . He considered that the lawyer 's request was tantamount to a request for access to the entire contents of the investigation file . Consequently , it refused the request on the same grounds as in the decision given on DATE . The applicant appealed . On DATE ORG upheld the refusal on the same grounds as in his earlier decision .", "The applicant 's counsel appealed against the decision of DATE prolonging the applicant 's detention . She argued that she had not been provided with a copy of the prosecution 's motion and that she had not been notified in good time of the hearing . She submitted that consequently she had been prevented from properly discharging her obligations as the applicant 's counsel .", "On DATE ORG dismissed the appeal . As regards the refusal to provide the applicant with a copy of the prosecution 's application for prolongation of detention , ORG found that the prosecutor was the only authority competent to decide on the issue of access to the file at the investigation stage and that any decision in this respect might be reviewed by a higher prosecutor . In respect of the notification of the hearing to the lawyer , the court found the applicant 's complaint unfounded . It considered that in cases of detention , such notification could be made by telephone .", "On DATE ORG lodged with ORG a motion for prolongation of the applicant 's detention until DATE .", "On DATE the applicant 's counsel was notified by telephone about the hearing scheduled for DATE . On DATE counsel unsuccessfully requested ORG to adjourn the hearing since she had not been provided with a copy of the prosecutor 's application for prolongation of detention and thus could not prepare for the hearing fixed for DATE . On DATE the counsel applied to the prosecutor for leave to obtain a copy of the application for prolongation of the applicant 's detention . On DATE the ORG refused that request , having regard to the interests of the investigation and to the fact that it was still in progress .", "On DATE ORG held a hearing . It granted the prosecution 's motion and ordered that the applicant be remanded in custody until DATE . It had regard to the reasonable suspicion that the applicant had committed the offences with which she had been charged . It relied in this respect on the evidence gathered to date , including evidence given by the applicant and her co - suspect , and the documentary evidence obtained from abroad . It also considered that there was a reasonable risk that the applicant might tamper with evidence , given that some of the co - suspects were still at large and that the case concerned an organised criminal group . It also had regard to the need to take further measures in the investigation as indicated in the prosecution 's application for prolongation of detention .", "On DATE the statutory time - limit of DATE for the applicant 's detention pending the investigation expired . Consequently , any further prolongation of the applicant 's detention was to be decided by ORG .", "On an unspecified date the Katowice Appellate Prosecutor lodged with ORG a motion for prolongation of the applicant 's detention until DATE . On DATE ORG notified the counsel about the hearing scheduled for DATE .", "On DATE ORG held a hearing . It appears that during the hearing ORG agreed to provide counsel with a copy of his motion for prolongation of the detention . ORG granted the prosecution 's motion and extended the applicant 's detention until DATE . It noted that the investigation in the present case , which concerned trafficking in substantial amounts of drugs in a number of NORP countries , had been very time - consuming . It was further complicated by the need to obtain evidence from abroad and to hold a confrontation between the suspects and a certain GPE who had been recently transferred to GPE from GPE to serve his sentence . The court noted that another important suspect GPE , who had lived abroad , had been arrested in DATE . It thus considered that the investigation was being conducted without undue delays , and that the extension of the detention pending the investigation beyond the statutory time - limit was due to the exceptional circumstances . ORG also had regard to the scale of the alleged criminal activities and the severity of the anticipated penalty . The applicant appealed against that decision .", "On DATE ORG upheld the impugned decision . It referred , inter alia , to the presumption established by LAW to the effect that the likelihood of a severe penalty being imposed on the applicant might induce her to obstruct the proceedings . In view of the said presumption , ORG underlined that it was not required to consider the imposition of other preventive measures .", "On DATE the applicant 's counsel requested ORG to release the applicant subject to certain guarantees .", "On DATE ORG ordered the applicant 's release , having obtained a bail deposit and an additional personal guarantee from a local councillor that the applicant would not obstruct the proceedings . The applicant 's passport was seized and she was ordered not to leave the country . The prosecutor noted that despite the fact that DATE had elapsed since the applicant 's arrest , the investigation had not been concluded . He observed that the prosecution was endeavouring to obtain evidence from abroad , however it could not be predicted when that evidence would be made available . The prosecutor considered that the applicant should not be prejudiced by those delays and that other preventive measures would be sufficient to secure the proper conduct of the proceedings .", "On DATE the applicant 's lawyer was informed by ORG that she could apply for access to the investigation file pursuant to LAW as the investigation was coming to an end . On DATE the applicant 's counsel was allowed to consult the file .", "On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with drug - trafficking and acting in an organised criminal group .", "On DATE the applicant made a plea and requested the trial court to sentence her to DATE imprisonment and a fine . The prosecution did not object . On DATE the ORG convicted the applicant as charged and sentenced her to DATE imprisonment and a fine .", "The applicant appealed . She argued that the trial court had not taken into account her conviction in GPE . ORG dismissed her appeal on DATE .", "The relevant domestic law and practice regarding the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .", "Access to the file in the course of investigation is governed by Article CARDINAL § CARDINAL of LAW , which provides , in so far as relevant , that leave to consult the file and to make copies of the documents in the file is granted only with the consent of the authority conducting the investigation .", "On DATE the ORG lodged an application with ORG seeking constitutional review of LAW CARDINAL of LAW .", "Article CARDINAL § CARDINAL of the LAW provides as follows :", "“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”", "Article CARDINAL of the LAW , insofar as relevant , provides as follows :", "“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .", "Judgments of ORG , ... shall be published without delay .", "A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...", "A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”" ]

[ "5" ]

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr H. Pochieser , a lawyer practising in GPE .", "ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "NORP The applicant requested asylum in GPE on DATE under a false name , giving a false date of birth . He claimed that he had fled GPE after a violent conflict between CARDINAL neighbouring villages over land . His mother had been killed in a hospital and he had no family left in GPE .", "On DATE ORG ( PERSON für PERSON ) convicted the applicant of drug trafficking and attempted drug trafficking , finding that the trafficking had been repeated and large scale in nature , and sentenced him to CARDINAL months’ imprisonment .", "Thereupon , an exclusion order ( ORG ) was issued against the applicant on DATE , which became final .", "On DATE ORG ( Bundesasylamt ) dismissed the applicant ’s asylum request and ordered his expulsion to GPE . ORG found the applicant ’s reasons for having fled GPE to be vague , lacking substantiation and thus not credible .", "The applicant appealed against that decision and notified ORG ( PERSON ) on DATE of his real name and date of birth .", "After having served DATE of his prison sentence , the applicant was conditionally released from prison on CARDINAL DATE .", "On DATE the applicant married an NORP citizen .", "On DATE ORG held a hearing , during which the applicant explained that he had given a false name to the NORP authorities to protect himself , but that he now wanted to disclose the real reasons for his having fled GPE . He continued by stating that he had been a driver for a regional minister who had accused him of having been involved in a plot to kill him in DATE . After the failed assassination attempt , corrupt police officers and soldiers had started to round people up and to arrest them . The applicant himself had gone to a friend ’s house and had hidden there for DATE until he had heard that his mother had been shot by the minister ’s guards because she would not tell them the applicant ’s whereabouts . Thereupon , the applicant had left for GPE , but it had not been safe there either and he had been shot at .", "On DATE ORG dismissed the applicant ’s appeal , holding that his story was not credible , as what he had told the ORG was entirely different to what he had told ORG . Furthermore , his “ new ” reasons for having fled were again very vague , lacking important details and unconvincing . ORG made some observations concerning the general situation in GPE and with regard to Decree no . CARDINAL , a law penalising “ harming the reputation of GPE abroad ” . It held that while NORP citizens who were expelled from another country for having committed a drug - related crime were in principle liable to be punished under Decree no . CARDINAL with a prison sentence , no incident in which an expelled asylum seeker had been arrested at the airport for political motives upon returning to GPE had been recorded according to a country information report produced by ORG . With regard to LAW , ORG held that the applicant ’s expulsion was justified under the second paragraph of that provision in view of his criminal conviction under LAW .", "The applicant complained to ORG ) and ORG ( Verwaltungsgerichtshof ) , applying for his complaint to have suspensive effect and for legal aid .", "On DATE ORG granted suspensive effect to the applicant ’s complaint .", "On DATE ORG refused to grant the applicant legal aid due to the complaint ’s lack of prospects of success .", "Finally , on DATE ORG refused to deal with the applicant ’s complaint due to the lack of an important legal issue . That decision was served on the applicant ’s counsel on CARDINAL DATE .", "The Asylum Act DATE ( Asylgesetz CARDINAL ) , applicable at the relevant time , governed the conditions under which asylum could be granted to asylum seekers and asylum proceedings . Its Article CARDINAL § CARDINAL provided that after the asylum authority had dismissed an asylum request and had declared expulsion to the asylum seeker ’s country of origin permissible , it should combine the dismissal of the request with an expulsion order .", "Current information on NORP Decree no . DATE is scarce . ORG ( “ NDLEA ” ) , established by the Decree no . CARDINAL in DATE , points to ORG ( Amendment ) Decree no . CARDINAL as another measure adopted in dealing with the problem of illegal drugs . As stated on the ORG ’s website ( www.ndlea.gov.ng ) , Decree no . CARDINAL prescribes a prison term of DATE for persons convicted of trafficking in drugs abroad , and by so doing bringing GPE into disrepute .", "GPE on GPE of DATE ( “ the COI Report ” ) referred to a ORG fact - finding mission in DATE and DATE , during which senior officials of the PERSON were interviewed about the enforcement of Decree no . DATE . The ORG officials had stated that Decree no . DATE had been enforced from DATE . DATE , ORG statistical information had shown that CARDINAL NORP had been prosecuted and convicted under the provisions of Decree no . CARDINAL . The ORG officials had further stated that in DATE the ORG had reviewed the enforcement of Decree no . CARDINAL and had suspended prosecutions under LAW . This step had been taken in response to public concern that the ORG had prosecuted people who had been convicted of drug offences abroad twice for the same offence . Consequently , since DATE , there had been no prosecutions of returning NORP convicted of drug offences abroad under the provisions of Decree no . CARDINAL . ORG officials had finally explained that immigration officials in GPE were normally informed of a deportation before the individual concerned was deported . Once a deportee arrived in GPE , PERSON officers monitored the activities of the individual , but did not take any action to arrest him or her ( see page CARDINAL of ORG , at paragraphs CARDINAL and CARDINAL ) ." ]

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[ "The applicants are brothers , who were born in DATE and DATE respectively and live in GPE and GPE ( GPE ) respectively .", "In DATE the ORG parents bought a QUANTITY . m plot of land with a QUANTITY building on it . In DATE they built a QUANTITY building , linked to the existing CARDINAL . The property is situated in GPE , at the crossroad of CARDINAL streets , GPE no . CARDINAL and GPE din DATE no . CARDINAL .", "In DATE the property of the applicants’ parents was seized by the ORG under Decrees nos . PERSON and CARDINAL/CARDINAL .", "NORP In DATE CARDINAL of the then tenants bought CARDINAL of the flats .", "On DATE and DATE respectively , ORG Instance declared the CARDINAL sales null and void on the ground that they had ignored the legal provisions . However , on DATE and CARDINAL DATE respectively the CARDINAL sales were deemed valid by court decisions .", "On DATE the first applicant brought an action for the recovery of possession of immovable property , requesting the court to declare the nationalisation of her property unlawful and to order its return to her . The second applicant and the former tenants intervened in the proceedings . The former tenants claimed to be the owners of the CARDINAL flats bought in DATE and sought a declaration that they had acquired a right of property through acquisitive prescription , being in good faith .", "On DATE the applicants lodged an application with the administrative authorities for restitution in kind of the property under Law no . CARDINAL/CARDINAL governing immovable property wrongfully seized by the ORG . So far they have not received any answer .", "On DATE ORG , in the operative part of a final decision , allowed in part the applicants’ action for recovery of possession , excepting the CARDINAL flats bought by the former tenants , who were considered as being their owners . In the reasoning of the judgment the court stated that the seizure had been unlawful , that the ORG had no title to property since the CARDINAL decrees had been contrary to the Constitutions of DATE and DATE respectively , and that the entire property belonged to the applicants’ parents , the applicants being their sole heirs . However , it considered that the former tenants , although buying from a non - owner , the ORG , had been in good faith and had acquired a right of property through acquisitive prescription . It would have been exaggerated and manifestly unfair to have requested the former tenants to question the validity of the ORG ’s title at that moment .", "NORP The relevant legal provisions and jurisprudence are described in the judgments GPE v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALVII ) ; PERSON and Others v. GPE ( no . MONEY , § § DATE , ORG CARDINALVII ) ; ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL-XII ( extracts ) ) ; and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) ." ]

[ "P1" ]

[ "P1-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Agent , ORG and Law Enforcement .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE criminal proceedings were instituted against the applicant and his accomplices . They were charged with lethal bodily assault . After ORG had preferred a bill of indictment in the case , at TIME on DATE ORG held a hearing and prolonged the applicant ’s pre - trial detention until the delivery of the first - instance decision on the merits . The applicant ’s lawyer appealed .", "At TIME on DATE the court held another hearing ( a ‘ session on LANGUAGE ( óvadéki ülés ) ) in the presence of inter alia the applicant , his lawyer and the public prosecutor , concerning the applicant ’s request for release on bail with a surety of MONEY . In its decision rejecting the request , ORG stated that it had held a ‘ session on NORP and found that the applicant ’s appearance for trial could only be secured if his detention was maintained . The applicant and his lawyer immediately appealed .", "In the subsequent reasoning of his appeal to ORG , the applicant ’s lawyer argued that the applicant ’s detention was unjustified and that the request for release on bail had been dismissed in unlawful proceedings . He alleged that ORG had not actually held a session on bail as required by section CARDINAL(CARDINAL ) of LAW , or if it had done so , it had failed to hear the prosecutor , the defendant , the lawyer or the person proposing the bail .", "On DATE ORG dismissed the applicant ’s appeal , both in respect of the prolongation of the detention and the dismissal of the request for release on bail .", "Section CARDINAL ) of Act XIX of DATE on LAW provides :", "“ ... The court shall decide on the proposed bail and its acceptance during a session at which it shall hear the public prosecutor , the defendant , the defence attorney and the person who has proposed to put up the bail surety . If , despite notification , the defence attorney fails to appear for the session , the court may hold the session in his absence . ”" ]

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[ "In DATE the applicant was assigned by his employer to work as a bus driver for a school in GPE that numbered disabled children among its pupils ; his job consisted of picking the disabled children up from home in the morning to take them to school and driving them home in the afternoon . He was always accompanied by a social worker .", "On DATE the mother of NORP , a mentally disabled girl born in DATE who attended the school , requested the help of a social worker , PERSON , as she suspected that NORP had been raped or sodomised at school by a person named “ PERSON ” . Since DATE NORP had refused to go back to school . On DATE her mother , accompanied by PERSON , took NORP to see a gynaecologist . The gynaecologist did not examine NORP but , on learning from her mother what had happened , advised that she be examined by a doctor from ORG . On DATE , therefore , NORP underwent a medical examination ; however , the doctor found no traces , recent or old , of rape or sodomy .", "On DATE R. 's mother also requested the headteacher of the school to ask an employee called “ PERSON ” for an explanation , but the headteacher refused .", "On DATE the mother lodged a criminal complaint against “ a person named PERSON ” . She informed the GPE police that DATE earlier she had noticed that her daughter seemed to be in pain and kept going to the toilet . PERSON 's explanation had been : “ PERSON did it ” ( “ È stato PERSON ” ) . DATE , the mother had learned from a friend of hers , GPE , that DATE she had been told by NORP that a certain PERSON had forced her to have anal intercourse in the school lavatory .", "The police interrogated NORP in her mother 's presence . The girl said that DATE , while she was in the school lavatory on the second floor , “ PERSON ” had told her to lie down on a small bed and had had anal intercourse with her .", "The police then interrogated GPE , who declared that DATE she had been in the mother 's flat and had noticed that NORP was very quiet . After some initial hesitation , NORP had confessed to her in the presence of her sister , PERSON , and of another friend , GPE , that “ PERSON ” had indecently assaulted her , causing her pain ; he had also threatened her .", "The police then questioned the manager of the company in charge of organising the school bus service . He identified the applicant as the relevant driver .", "On DATE the police lodged a criminal complaint against the applicant with the GPE public prosecutor . A preliminary investigation was started .", "On DATE the public prosecutor summonsed PERSON , her mother , GPE and PERSON , to appear before her on CARDINAL DATE to give witness statements . PERSON 's mother stated that the reason she had not reported the rape to the authorities until DATE was that her daughter had spoken to a friend of hers and not to her directly , and her own father had died during that period . She said , however , that she had noted that her daughter was in pain and had given her some painkillers . She said that her daughter had refused to return to school after the rape and that she had not sent her back to school . She added , however , that for DATE after the rape , her daughter “ would return home and , without saying a word or having anything to eat , go straight to bed ” . She said that she had not seen “ PERSON ” after DATE because he had immediately asked to be replaced by another driver . She added that she herself had seen a bed in the school lavatory on the second floor .", "On CARDINAL DATE the applicant received judicial notification ( comunicazione giudiziaria ) of the allegation that he had committed an “ offence under LAW in that he forced NORP , who [ was ] mentally disabled , to have sexual intercourse with him in GPE , in DATE ” ( “ del reato di cui all'articolo CARDINAL c.p . per aver costretto PERSON di mente a congiungersi carnalmente con lui . In GPE , nel DATE ” ) . On DATE the applicant appointed his defence lawyer .", "On DATE the public prosecutor summonsed the headteacher to appear on DATE for questioning as a witness . The headteacher acknowledged that the victim 's mother had reported the rape to her , but argued that she did not believe the allegation to be plausible , as there were no beds in the lavatory and all children were accompanied when they went to the toilet or to the therapy rooms on the third floor ( where there were beds ) . She added that the applicant did not normally enter the school and would have had no reason for being on the third floor . He had been assigned to a new post in DATE .", "On DATE the applicant was interviewed by the Latina public prosecutor in his counsel 's presence . He claimed that he was innocent . He underlined that there had always been CARDINAL people on the bus , and that he had always met NORP in the social worker 's presence .", "On DATE the applicant was committed for trial before ORG . He was indicted for “ an offence under LAW , in that he [ had ] forced NORP , who [ was ] mentally disabled , to have sexual intercourse with him in GPE , in DATE ” .", "On DATE the applicant 's counsel requested access to the prosecution file .", "Following a request made by the applicant on DATE , ORG fixed the first hearing in the case for DATE . At the hearing the applicant protested his innocence , and repeated that he had never been alone with NORP because there had always been CARDINAL people on the bus , including the social worker . He explained that , as the bus driver , his duties ended when he arrived at the school . He would then return to the school at TIME to pick the children up and drive them home . He said he was aware of what had been said in the criminal complaint but argued that he never entered the school as it was prohibited . He added that after taking the children to school in the morning he did other work for his employer , which would usually be to drive tourists around .", "R. was unable to give evidence at first , as she appeared very disturbed and said she could not remember anything . However , she identified the applicant as the bus driver .", "R. 's mother was questioned . She said that she did not know the exact date of the events , and added that she had not reported the rape immediately because of her father 's death during that same period . She said that she knew that the rape had taken place on the third floor , in the therapy room where there were beds . Replying to a question from the applicant 's lawyer , she said that , so far as she was aware , the children were accompanied when they went to the therapy rooms on the third floor .", "C.T. , the social worker , was also questioned . She said that in TIME of CARDINAL DATE NORP 's mother had come to see her and had told her that NORP had returned from school upset and bleeding . GPE . had told her to come back the following day with NORP The DATE , she had taken NORP to the gynaecologist , who had not examined her but , on learning from NORP 's mother what had happened , had advised that NORP should be examined by a doctor from ORG . On DATE , therefore , PERSON had accompanied NORP to another doctor , who had examined her and issued a certificate ; the doctor had advised her to inform the police . PERSON said that NORP had referred to the rapist as “ LOC ” or “ the school bus driver ” . She said that NORP had told her that she had left her classroom to go to another classroom and had been grabbed by “ LOC ” in the corridor . He had pushed her into a room where there was a bed or table and had attempted to have anal intercourse . NORP had felt severe pain and had cried out for help but nobody had heard her . “ GPE had threatened to kill her if she said anything about what had happened .", "The next witness was GPE She repeated what she had told the police , and explained that PERSON had told her that the rape had been committed on the third floor , on DATE , but had not said at what time .", "N.D. , the headteacher of the school , said in evidence that NORP 's classroom was on the first floor . The bus drivers did not enter the school as they were forbidden to do so by school regulations , although the applicant had sometimes gone to her office to use the telephone . CARDINAL caretakers supervised access to the classroom area . She added that children were accompanied to the therapy rooms on the third floor by CARDINAL of the CARDINAL assistants . The applicant had worked for the school until DATE .", "Finally , NORP gave her evidence with the help of the social worker . She said that she had gone to the bathroom to wash her hands and on her way back to her classroom had been caught by the applicant . This had happened on the same floor as her classroom ; she had not gone to the upper floors . It had been in TIME . NORP added that she could not remember whether she had returned to her classroom and could not recall which teacher was present DATE .", "The court adjourned the case to CARDINAL DATE , in order to hear the evidence of CARDINAL school caretakers to whom the headteacher had referred and of the teacher who had been at the school on DATE . It also ordered production of the school register .", "At the hearing on CARDINAL DATE the caretakers were heard . ORG , the caretaker in the girls ' section of the school , said that she remained in the corridors during lessons , as teachers would call her if a child had to leave the classroom for any reason , for example to go to the toilet . She said that children were accompanied to and from the therapy rooms by an assistant . She remembered seeing the bus drivers go to the headteacher 's office on occasions , but they never entered the corridors , where there was a sign warning that access was prohibited . The caretakers stood by a table in front of the headteacher 's office at the entrance to the corridors that led to the classrooms , so that they could control access . NORP added that there was a separate entrance to the third floor from the school clinic , but it was locked and was only opened at the request of the school administrators ; she excluded any possibility of complicity between the bus drivers and the administrators . She said that she had never seen the bus drivers go to the upper floors by the internal stairs , which were in front of the caretakers ' table , and that she did not recall having seen NORP return to her classroom crying or looking upset .", "V.C. , the other caretaker , said that he had never seen the bus drivers enter the corridors , as they had no right of access ; they would wait outside the school until TIME , when they would drive the children home . There had been occasions when he had been sent by the headteacher to fetch CARDINAL or other of the drivers to answer phone calls from their employer .", "The court noted from the school register that NORP had been absent from the school since CARDINAL DATE ; on DATE she had left the school .", "PERSON , PERSON 's teacher , informed the court in evidence that she vaguely remembered NORP She said that she had never been told officially why she had stopped attending the school , but had heard rumours . She stated that she had never seen the bus drivers in the corridors . When a pupil needed to leave the classroom to go to the toilet , she would call the caretaker who would accompany the pupil there and back . When disabled pupils had to attend therapy , they would be accompanied by the assistants .", "By a judgment delivered on DATE , ORG convicted the applicant of rape and sentenced him to DATE imprisonment . It also barred him from employment in public service for DATE . On DATE the applicant gave notice of appeal against the judgment . The judgment was filed with the registry on DATE .", "In its judgment the court underlined that , although NORP was mentally disabled and therefore seemed not fully to comprehend her own evidence , she had been precise and detailed enough to be credible and felt no hatred towards the applicant or rancour against him . As to the lack of medical evidence of the rape , the court considered that , since NORP had not been examined until DATE after the rape , the lesions had already healed and MONEY remained . The court held that the witnesses who had testified against the applicant , particularly GPE and PERSON , were fully credible and felt no resentment against him . As for the time of the rape , the court held that it had been committed on DATE NORP had spoken to GPE , namely DATE before DATE and immediately before DATE , the date NORP had stopped attending school , presumably as a consequence of the rape itself .", "Having established that there had been a rape , the court considered it proved that the guilty party was the applicant . NORP had identified him , and it was common for persons named “ LOC ” to be referred to as “ PERSON ” . The court found that the applicant had had access to the school , despite the headteacher 's and the caretakers ' statements to the contrary : they had contradicted themselves on a number of issues and their evidence was not credible in that they appeared to have an interest in protecting the school 's reputation . It was reasonable to assume that the employer had contacts through its drivers with the school administrators , who worked in an office on the third floor . It was plausible that the applicant had in fact committed the crime , and the exact place the rape had been committed – that is to say the precise floor – was immaterial , once it had been established that ( a ) it had been committed inside the building and ( b ) the applicant had access to the building . As to the fact that the applicant had stated that he used to leave the school after taking the pupils in TIME and returned in TIME , CARDINAL of the caretakers had on the contrary stated that the bus drivers remained outside the school . The court further found that , while it was true that certain severely disabled pupils were accompanied by either a caretaker or an assistant when they left the school , there must have been frequent occasions when NORP was allowed to go unaccompanied , as she was able to walk and could move around unassisted .", "On DATE the applicant filed the grounds for the appeal with ORG . He argued that the particulars of the offence charged had been too vague to allow him to defend himself , there being no exact indication of the place and time of the rape , and those issues had not been elucidated during the trial . He therefore claimed that the proceedings were null and void , on the ground that his defence rights had been violated . The applicant also emphasised that the witnesses had admitted that NORP was in love with him , and the fact that that love was unreciprocated could in his opinion explain a feeling of rancour on her part . He also requested that the evidence of a witness on his behalf , namely his employer at the time of the rape , be heard so that further details about his duties as the school bus driver could be obtained .", "In a judgment of DATE , filed with the registry on CARDINAL DATE , ORG upheld the first - instance judgment . After re - examining the evidence gathered at the trial and considering it unnecessary to examine the applicant 's employer , ORG came to the conclusion that the applicant was guilty . As to the alleged vagueness of the charge , the court considered that the fact that it was impossible to specify the exact time and place of the rape did not render the charge itself null and void , as the particulars ( it alleged that the rape had taken place in the school in DATE ) it contained were sufficient to allow the defence to prepare its case .", "ORG found , in particular , that the assertion – favourable to the applicant – that disabled children were always accompanied to the toilet and the therapy rooms was general and could not counter the precise description of the facts by NORP As to the absence of beds in the lavatories , it considered that , given that there were beds on other floors in the school , the possibility that NORP , who trusted the applicant , had followed him to other rooms on the school premises could not be excluded . It further held , like the court of first instance , that it was unnecessary to establish where exactly on the school premises the rape had been committed . As to the absence of rancour towards the applicant , it considered that the fact that NORP was probably in love with the applicant was irrelevant . Indeed , that circumstance could explain why PERSON had followed the applicant to an isolated part of the building . As to the date of the rape , ORG considered that the evidence proved that it had been committed on or DATE , before NORP stopped attending the school . PERSON , who said that the rape had been committed on DATE , had probably got the date of the rape confused with the date of the medical examination . The fact that there had been no trace of any lesions was due , in its opinion , to the time that had elapsed between the rape and the medical examination and was not sufficient to exclude the possibility that there had been a rape “ given that NORP had cried out ” .", "NORP The applicant was notified that the text of the judgment had been deposited on DATE .", "On DATE the applicant lodged an appeal on points of law . He reiterated , in particular , that the charge was too vague to allow him to defend himself and claimed that ORG had not given any grounds for considering that there was sufficient evidence against him to convict . On the contrary , the evidence was hearsay , weak and uncorroborated . The courts below had assumed that the witnesses who had given evidence in his favour were biased , but there was no concrete ground for that assumption and indeed they had confirmed the applicant 's statements . ORG had not believed the evidence that all the children were accompanied to the toilets , but there was nothing to indicate that that evidence , confirmed by all the witnesses whose testimony was favourable to the applicant and even by NORP , was untrue . Nor was it irrelevant to know where the rape had been committed : in the second - floor lavatories , as stated by the victim and the witnesses , on the ground floor where there were no beds , or in the therapy rooms on the third floor . The applicant considered that the courts below had not examined the contradictions in NORP 's statements carefully . As to the date of the rape , the applicant argued that the witnesses had consistently indicated that it had been committed on DATE and not , as held by the courts below , on DATE . Indeed , the rape had been committed , if at all , on DATE by which time NORP had already stopped attending the school and the applicant could not be a legitimate suspect . NORP had probably accused him because she was in love with him and had been rejected ; the courts below had unjustly refused to take that factor into consideration . The applicant finally complained that no reasons had been given for refusing to examine another witness on his behalf .", "In a judgment of DATE , which was filed with the registry on DATE , ORG rejected the applicant 's appeal as it was manifestly ill - founded and had been lodged by a lawyer who had no rights of audience before ORG . ORG , stressing that its role was not to review the merits of the decision taken by the courts below , held , in particular , that the charge brought against the applicant was not vague , as it contained all the details that were necessary for the applicant to defend himself . It considered that the lack of details regarding exactly when and where the rape had been committed was a consequence of the initial imprecision of the charge ( originaria imprecisione dell'accusa ) that had been caused by NORP 's mental disability . ORG found , however , that that initial imprecision had been remedied in the course of the trial through further evidence in the form of the statements of the CARDINAL main prosecution witnesses . As to the date of the rape , it was logical to deduce that it was immediately prior to NORP 's refusal to go to school . PERSON had made a justifiable mistake , and NORP 's mother was credible and ought to be believed .", "As to the refusal to hear the evidence of a witness on appeal , ORG found that ORG had implicitly given reasons therefor , namely that the evidence already gathered before ORG was sufficient .", "The applicant served his sentence in Latina Prison . On DATE he was released and remained on probation ( affidamento in prova al servizio sociale ) until DATE .", "Article CARDINAL § CARDINAL of the former Code of Criminal Procedure provided :", "“ Upon taking the first step in an investigation , the investigating judge shall give everyone who might have an interest as a private party judicial notification [ comunicazione giudiziaria ] stating the legal provisions alleged to have been breached and DATE of the offence of which they are accused , and informing them that they may appoint defence counsel . ”", "Article CARDINAL bis provided that the defence lawyer was entitled to be present when the accused was interrogated by the public prosecutor or by the judge , and also during appointments with expert witnesses and searches of residential LOC and at identification parades .", "Article QUANTITY provided that the documents and records relating to investigative measures which the defence lawyer was entitled to witness , and the records of seizures , searches and body searches , were to be filed with the registry on DATE following the relevant measure . The defence lawyer was entitled to examine the relevant documents and to take copies within DATE and to receive a copy of the warrant of arrest or of the summons to appear before the judge .", "The records of the examination of witnesses during the investigation were not to be filed with the registry and were thus not made available to the defence lawyer immediately after they had been compiled .", "Under Articles CARDINAL et seq . of the former Code of Criminal Procedure , once the investigation had been completed the investigating judge was required to lodge the case file with the registry and to inform the public prosecutor , who could ask for further investigative measures to be taken . If the public prosecutor was satisfied with the scope of the investigation , the records and documents of the case were filed with the registry , and the defence lawyer was allowed to examine the entire case file , to take copies and to file requests or submissions within DATE of being informed that the case file had been lodged with the registry .", "By LAW , committal orders were required to state :" ]

[ "6" ]

[ "6-1", "6-3" ]

[ "6-3-a", "6-3-b" ]

[]

[]

[]

[ "Mr PERSON and Mr PERSON live in GPE and GPE respectively . They were directors of an accredited clinical biology laboratory called ORG , whose services were eligible for reimbursement through ORG ( NORP national d’assurance maladie invalidité – the “ ORG ” ) .", "The Biorim laboratory was searched on CARDINAL DATE following a complaint from ORG . The applicants were arrested and remanded in custody . Proceedings were brought against them and CARDINAL other individuals for offences related to the management of the laboratory , including forgery and failure to comply with LAW no . CARDINAL of DATE .", "The Article in question laid down , in respect of clinical biology services , the conditions to be met by medical laboratories so that the cost of their services could be reimbursed to users through the sickness insurance scheme . In the version of the text that was in force until DATE , it stipulated in particular that only laboratories that were run by doctors , pharmacists or persons qualified in chemical sciences were entitled to carry out clinical tests that were eligible for reimbursement .", "On DATE the investigating judge concluded the preparation of the case . On DATE the ORG finalised his written submissions and , on CARDINAL DATE , ORG made an order committing the applicants ( and CARDINAL other defendants ) to stand trial before ORG , sitting as a criminal court .", "The fraudulent intent referred to in the committal submissions for offences classified as acts of “ forgery ” consisted in the fact of deceiving the authorities “ responsible for monitoring implementation of the legislation on the operation of medical laboratories , in particular the provisions of LAW no . CARDINAL ” .", "The oral proceedings began on DATE and were spread over DATE hearings .", "A number of mutual insurance companies applied to join the proceedings as civil parties . They sought compensation for damage stemming from CARDINAL causes . They claimed that the applicants had , firstly , engaged in a practice of fee sharing and , secondly , had run a clinical biology laboratory in breach of the provisions of LAW no . CARDINAL . Under the second head they claimed CARDINAL , corresponding to the total amount paid to the Biorim laboratory DATE ( date on which LAW no . CARDINAL entered into force ) and CARDINAL DATE ( DATE of the period in which the offences were committed ) .", "On DATE the criminal court convicted the applicants , imposing prison sentences and fines , for various offences that had been committed in connection with the management of Biorim . It found in particular that DATE and DATE the laboratory had been run by the first applicant at a time when he did not fulfil the conditions of LAW no . CARDINAL , and that he had devised various means of circumventing the legislation .", "The court declared the civil parties’ claims admissible , but awarded them only a token amount of MONEY on the ground that the damage had not been sufficiently substantiated .", "Before ORG , the applicants argued in particular that LAW no . CARDINAL was incompatible with DATE of LAW establishing ORG , taken together with ORG CARDINAL ( prohibition of the abuse of a dominant position ) and CARDINAL ( freedom of establishment ) of the LAW and that it should be declared inapplicable on account of the direct effect and primacy of Community law . They requested in this connection that the question be referred to ORG of ORG for a preliminary ruling .", "In a judgment of DATE ORG , after examining the above - mentioned argument on the merits , found that LAW no . CARDINAL was compatible with Community law . It emphasised , in particular , that “ national measures capable of hindering or rendering less attractive the exercise of the fundamental freedoms guaranteed by LAW ” had to fulfil CARDINAL conditions and that the measure in question did so , being non - discriminatory , justified by compelling reasons in the general interest , appropriate to ensure the fulfilment of the aim pursued , and not going beyond what was necessary to that end .", "ORG then decided “ that there [ was ] no need to refer questions for a preliminary ruling ” .", "NORP ...", "ORG thus handed down convictions – mainly for tax fraud – sentencing the first applicant to CARDINAL years’ imprisonment , with a DATE suspension for the part of the main prison sentence in excess of DATE , and to a fine of MONEY ( about EUR CARDINAL,CARDINAL ) , and the second applicant to CARDINAL GPE imprisonment , with a DATE suspension for the part of the main prison sentence in excess of DATE , and to a fine of MONEY ( about ORG CARDINAL,CARDINAL ) . As to the requests of the civil parties , ORG declared them inadmissible .", "Ruling on appeals by the applicants and the civil parties , ORG , in a judgment of DATE , dismissed the appeals in so far as they were directed against the criminal provisions of the judgment of DATE , finding in particular that there was no need to refer questions to ORG of ORG . It quashed the judgment , however , in respect of its findings on the civil actions and , within that limit , referred the case back to ORG .", "On DATE the first applicant had lodged a complaint against GPE with ORG , arguing that LAW no . CARDINAL was incompatible with the LAW establishing ORG .", "In DATE ORG initiated the infringement procedure provided for in LAW establishing ORG and requested the NORP authorities to submit their observations on the compatibility of LAW no . CARDINAL with LAW , concerning freedom of establishment .", "On DATE ORG adopted a reasoned opinion finding that LAW was incompatible with LAW . It requested GPE to amend that provision , which had the effect of placing non - NORP operators wishing to run clinical biology laboratories in GPE and establish themselves there at a disadvantage in relation to certain NORP professionals ( in particular doctors , pharmacists or persons qualified in chemical sciences ) . In the ORG ’s opinion , the fact that only those laboratories which fulfilled the prescribed conditions could provide services eligible for reimbursement through the health insurance system discouraged beneficiaries of that insurance from going to other laboratories and thus restricted the effectiveness of the freedom of establishment , in breach of LAW establishing ORG .", "On DATE GPE enacted a law amending LAW no . CARDINAL , abolishing the requirement to have particular qualifications to operate a laboratory carrying out clinical tests eligible for reimbursement under the sickness and invalidity insurance scheme .", "On DATE the parties wrote to the office of the public prosecutor at ORG seeking the organisation of a preparatory hearing . It took place DATE and DATE .", "The debate concerning the reimbursement of clinical tests focussed on the question of the compatibility with Community law of LAW no . CARDINAL . In the applicants’ submission , that provision was in breach of certain rules of the LAW establishing ORG , in particular those concerning freedom of establishment ( LAW ) , the free movement of capital ( LAW ) , the free provision of services ( LAW and the rules on free competition ( Articles CARDINAL and DATE ) . Referring in particular to ORG opinion of DATE ( see above ) , they concluded that LAW no . CARDINAL could not have produced ab initio any legal effect and that , being bound by the primacy of Community law , ORG could not take account of the convictions handed down , not even considering the offences as mere torts . In the alternative , the second applicant requested that a question be referred to ORG of ORG for a preliminary ruling on the conformity of LAW no . CARDINAL with the provisions of Articles CARDINAL , DATE , DATE , DATE and CARDINAL of the LAW establishing ORG .", "In a judgment of CARDINAL DATE ORG dismissed the applicants’ arguments . It emphasised that ORG reasoned opinion of DATE was not binding and that ORG judgment of DATE , of which the criminal provisions had the authority of res judicata , had found LAW no . CARDINAL to be compatible with Community law . Further noting that ORG , in its decision of DATE , had decided that there was no need to refer preliminary questions to ORG of ORG , it reached the same conclusion , on the ground that such questions were not “ indispensable for adjudication ” .", "Upholding the civil claims , ORG ordered the applicants to pay various amounts to the civil parties , including CARDINAL mutual insurance companies jointly , for a total of ORG CARDINAL .", "On DATE the applicants appealed on points of law against the judgment of DATE . They reiterated in particular the argument that LAW no . CARDINAL was incompatible with the LAW establishing ORG , a higher source of law . They further submitted that , whilst ORG itself had not found the provisions incompatible , it had a duty , under LAW establishing ORG , to refer the matter to ORG of ORG for a preliminary ruling on the issue ofprinciple of the authority of res judicata and the primacy of Community law . In their submission , the fact that ORG had upheld the authority of res judicata in ORG judgment , whereas developments following that decision had revealed it to be erroneous , constituted a breach of the right to a fair hearing LAW and more specifically the entitlement to a hearing by an impartial tribunal .", "On DATE ORG dismissed the applicants’ appeals . It reiterated among other things the principle that the authority of res judicata in criminal matters precluded the court hearing any subsequent civil claims from calling into question what had been adjudicated with final effect , certainty and necessity as to the existence of a fact forming the common basis of the criminal proceedings and the civil suit . It concluded that ORG had rightly held that the finding of ORG of DATE concerning the conformity of LAW no . CARDINAL with Community law had been correct , being in line with that principle .", "ORG , moreover , considered that the question whether the principle of the primacy of Community law should take precedence over that of the authority of res judicata had already been settled by ORG of ORG in its judgments in ORG and ORG ( C-CARDINAL/CARDINAL ) of DATE and PERSON v. ORG GmbH ( C-CARDINAL/CARDINAL ) of DATE . It noted in this connection that ORG had concluded in those judgments that the second principle prevailed , finding that “ Community law [ did ] not require a national court to disapply domestic rules of procedure conferring finality on a decision , even if to do so would enable it to remedy an infringement of Community law by the decision at issue ” , and had explained in the ORG judgment that “ the obligation of the body concerned to review a final decision , which would appear to have been adopted in breach of ORG law [ was ] subject , in accordance with LAW ORG , to the condition , inter alia , that that body should be empowered under national law to reopen that decision ” . ORG concluded that “ there [ was ] no need to submit once again to ORG of ORG the point of law that it [ had ] thus resolved , regardless of the nature of the proceedings which [ had given ] rise to its case - law and despite the questions at issue not strictly being the same ” .", "On DATE the Minister for ORG issued a decision suspending the laboratory ’s accreditation for a DATE period . Referring to ORG judgment of DATE ( see paragraph CARDINAL above ) , the decision was based on a failure to comply with LAW no . CARDINAL .", "The company Biorim unsuccessfully lodged an administrative appeal : the suspension was confirmed by a ministerial decision of DATE .", "In the meantime , on DATE , a fresh ministerial decision had extended the suspension of accreditation for a DATE period “ on account of the continuing infringements of LAW no . CARDINAL ” .", "In a decision of DATE the Minister dismissed the administrative appeal lodged by ORG and confirmed the suspension , on the ground that the company had not put an end to the situation which had justified the first suspension of accreditation , the applicant having continued to run the laboratory .", "On DATE and CARDINAL September CARDINAL Biorim applied to the ORG d’Etat for the annulment of the ministerial decisions of CARDINAL DATE ( G / A CARDINAL.CARDINAL/VI-CARDINAL.CARDINAL ; the “ first set of proceedings ” ) and of DATE ( G / A CARDINAL ; the “ second set of proceedings ” ) .", "The applicant was a third - party intervener in the proceedings .", "The company Biorim and the applicant claimed in particular that LAW no . CARDINAL , on which the impugned decisions had been based , was in breach of Articles CARDINAL ( freedom of establishment ) , DATE ( free provision of services ) and CARDINAL ( free movement of capital ) of the LAW establishing ORG , and of Article CARDINAL taken together with ORG CARDINAL ( prohibition of abuse of dominant position ) , CARDINAL , DATE or DATE . They concluded that those decisions were devoid of admissible basis and should therefore be annulled .", "In the alternative , the applicant requested the PERSON d’Etat to refer questions to ORG of ORG for a preliminary ruling to determine whether the above - mentioned ORG of the LAW establishing ORG were to be interpreted as precluding the application of legislation imposing the various restrictions provided for in LAW no . CARDINAL .", "In his report of DATE , the Auditeur ( legal assistant at the PERSON d’Etat ) declared the argument well - founded and took the view that the impugned decisions should be annulled on the ground that LAW no . CARDINAL was not in conformity with Community law .", "The PERSON observed first of all that the NORP courts had to refuse to give effect to any provisions of domestic law that ran counter to provisions of international law having direct effect . This was the case for national legislation concerning the services of medical laboratories , which had to be compatible with the rules of Community law on freedom of establishment and the free provision of services , since ORG of ORG had held that those rules applied to such services ( ORG , DATE , C-CARDINAL/CARDINAL ) . He added that it was invalid in the present case to argue that the legislation bore no relation to trade between CARDINAL ORG member GPE – especially as , in his opinion , factors of such nature were present – as justification for finding the provisions inapplicable , referring in this connection to the case - law of the GPE court to the effect that since the fundamental freedoms enshrined in Community law extended in their application to the potential effects of legislation , they could not be considered inapplicable simply because the facts of the specific case were confined to a single member ORG ( ORG , C-CARDINAL/CARDINAL to C-CARDINAL/CARDINAL ) . He went on to observe that “ national measures capable of hindering or rendering less attractive the exercise of such fundamental freedoms ” were admissible only under certain conditions , in particular where they did not go beyond what was necessary to achieve the aim pursued . In the present case , firstly , LAW no . CARDINAL hindered and rendered less attractive the freedom of establishment , the free provision of services and the free movement of capital as regards the operation of clinical biology laboratories ; secondly , the measure implemented was disproportionate to the aim pursued DATE to avoid over - consumption of clinical biology services – as that aim could be achieved by means that were less restrictive of freedoms .", "In CARDINAL judgments of CARDINAL DATE , the ORG d’Etat dismissed the submission that there had been a violation of the above - mentioned ORG of the LAW establishing ORG .", "It first observed that , under LAW , “ [ i]n the case of public undertakings and undertakings to which member States grant[ed ] special or exclusive rights , member GPE [ could ] neither enact nor maintain in force any measure contrary to the rules contained in that LAW , in particular to the rules provided for in LAW to CARDINAL ” . Finding that the laboratories referred to in LAW no . CARDINAL did not fall within those categories , it declared DATE of LAW inapplicable in the present case .", "As to the other provisions of the LAW relied upon in the submission , the PERSON d’Etat referred to the case - law of ORG of ORG to the effect that the LAW ’s rules in matters of free circulation of persons and services did not affect any restrictions applying to nationals of a member ORG on the territory of that ORG where the situation in which they found themselves had no link to any of the situations envisaged by Community law . According to the ORG d’Etat , the dispute did not , in the present case , contain any extraneous elements capable of justifying the application of Community law . In that connection it explained as follows :", "“ ... [ Biorim ] is a company incorporated under NORP law and operating in GPE . As it operates within the NORP market , it has not availed itself of the freedom of establishment or the free provision of services provided for respectively by ORG CARDINAL and CARDINAL of the LAW establishing ORG . The alleged circumstance ... that Community nationals established in other member GPE could make use of the services of [ Biorim ] does not constitute , in respect of the company , a link to Community law within the meaning of the above - cited case - law of ORG of ORG .", "[ The applicant ] is NORP and in order to run the laboratory of [ Biorim ] he did not make use of freedom of movement within ORG . Although it has been shown in the criminal - court decisions that he used “ financing packages ” , in particular through the intermediary of the GPE company [ T. ] , this factor has no bearing on the grounds for the impugned decision . The case against [ Biorim ] is not that it was operated by that company , or that it was financed by foreign capital , but precisely that it was run by [ the applicant ] , whereas he did not have CARDINAL of the qualifications required to do so , as shown by the criminal - court decisions . The [ applicant ’s ] situation in this connection is confined exclusively to the national sphere ... ”", "The PERSON d’Etat further refused to refer the applicant ’s questions to ORG of ORG for a preliminary ruling , observing as follows :", "“ ... LAW does not oblige courts or tribunals against whose decisions there is no judicial remedy under national law to refer a question concerning the interpretation of Community law raised before them if that question is not relevant , that is to say , if the answer to that question , regardless of what it may be , can in no way affect the outcome of the case . The same applies when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case , where previous decisions of the ORG have already dealt with the point of law in question , even though the questions at issue are not strictly identical , or where the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved ... In the present case , there is no reasonable doubt as to the inapplicability of LAW establishing ORG to the laboratories referred to in LAW no . CARDINAL .... In addition , for the reasons given , an answer by the ORG as to the interpretation of ORG CARDINAL , DATE and CARDINAL of the LAW establishing ORG could not affect the outcome of the present dispute ... ”", "The company Biorim additionally argued , inter alia , that there had been a breach of ORG CARDINAL and CARDINAL of the LAW concerning equality before the law and the prohibition of discrimination .", "The PERSON d’Etat held that , in so far as Biorim was complaining of a difference in treatment between NORP nationals established in GPE and those established in other member GPE or nationals of other member GPE , on the ground that the latter categories enjoyed more rights and guarantees in the context of the application of LAW no . CARDINAL , this was a new submission raised only in its rejoinder and was thus belated and inadmissible .", "In response to Biorim ’s argument that , by reserving the intervention of the sickness insurance scheme to laboratories run by doctors , pharmacists or persons qualified in chemical sciences , LAW no . CARDINAL introduced , between those persons and other business operators , a prohibited difference in treatment , the ORG d’Etat found that its decision should be reserved in order to submit a question on that subject to ORG for a preliminary ruling . ORG responded by a judgment of DATE that the said provision did not breach ORG CARDINAL and CARDINAL of the LAW .", "In addition , in the context of the second set of proceedings , the PERSON d’Etat partly re - opened the case , requesting the Auditeur to pursue the investigation and produce a supplementary report on arguments other than those alleging a breach of Community law .", "The Auditeur found that the ministerial decision of DATE should be annulled on grounds related to the reasoning of the impugned decision , being unconnected to the complaints submitted by the applicant to the ORG .", "The PERSON d’Etat dismissed the applications by CARDINAL judgments of DATE and DATE .", "Article CARDINAL of the LAW establishing ORG ( former LAW and , since DATE , Article CARDINAL of the LAW on the Functioning of ORG ) provides for preliminary rulings of ORG of ORG as follows :", "“ ORG shall have jurisdiction to give preliminary rulings concerning :", "( a ) the interpretation of this LAW ;", "( b ) the validity and interpretation of acts of the institutions of the Community ... ;", "...", "Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .", "Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG . ”", "In the case of ORG . ORG and ORG . v. ORG ( CARDINAL/CARDINAL , ORG . DATE , p. CARDINAL ) ORG of ORG had received a request from ORG for a ruling as to whether the third paragraph of LAW establishing ORG ( former LAW ) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt .", "In its judgment ORG explained , firstly , as follows :", "“ ... CARDINAL . The second paragraph of that article [ Article CARDINAL ] provides that any court or tribunal of a Member ORG may , if it considers that a decision on a question of interpretation is necessary to enable it to give judgment , request ORG to give a ruling thereon . The third paragraph of that article provides that , where a question of interpretation is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall , bring the matter before ORG .", "That obligation to refer a matter to ORG is based on cooperation , established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States , between national courts , in their capacity as courts responsible for the application of Community law , and ORG . More particularly , the third paragraph of Article [ CARDINAL ] seeks to prevent the occurrence within ORG in judicial decisions on questions of Community law . The scope of that obligation must therefore be assessed , in view of those objectives , by reference to the powers of the national courts , on the one hand , and those of ORG , on the other , where such a question of interpretation is raised within the meaning of Article [ CARDINAL ] .", "In this connection , it is necessary to define the meaning for the purposes of Community law of the expression “ where any such question is raised ” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before ORG .", "In this regard , it must in the first place be pointed out that Article [ CARDINAL ] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal . Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article CARDINAL . ... ”", "ORG went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “ whether a decision on a question of Community law [ was ] necessary to enable them to give judgment ” . It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations : ( CARDINAL ) where the question was not relevant , in the sense that the answer to the question , regardless of what it might be , could in no way affect the outcome of the case ; ( CARDINAL ) where the question was materially identical with question which had already been the subject of a preliminary ruling in a similar case , or where previous decisions of the ORG had already dealt with the point of law in question , irrespective of the nature of the proceedings which led to those decisions , even though the questions at issue were not strictly identical ; or ( CARDINAL ) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved ( bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member GPE and to ORG , and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to ORG and take upon itself the responsibility for resolving it ) .", "The judgment then concluded as follows ( point CARDINAL ) :", "“ ... the third paragraph of Article [ CARDINAL ] of the ORG treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required , where a question of Community law is raised before it , to comply with its obligation to bring the matter before ORG , unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the ORG or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt . The existence of such a possibility must be assessed in the light of the specific characteristics of Community law , the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the ORG . ”", "Articles DATE , DATE , DATE , DATE and CARDINAL of the LAW establishing ORG ( Title III “ Free Movement of Persons , Services and Capital ” ) read as follows :", "“ Within the framework of the provisions set out below [ on the right of establishment ] , restrictions on the freedom of establishment of nationals of a Member ORG in the territory of another Member ORG shall be prohibited . Such prohibition shall also apply to restrictions on the setting - up of agencies , branches or subsidiaries by nationals of any Member ORG established in the territory of any Member ORG .", "Freedom of establishment shall include the right to take up and pursue activities as self - employed persons and to set up and manage undertakings , in particular companies or firms within the meaning of the second paragraph of LAW , under the conditions laid down for its own nationals by the law of the country where such establishment is effected , subject to the provisions of the chapter relating to capital . ”", "“ Within the framework of the provisions set out below [ on services ] , restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member GPE who are established in a State of the ORG other than that of the person for whom the services are intended .", "The ORG may , acting by a qualified majority on a proposal from the Commission , extend the provisions of the LAW to nationals of a third country who provide services and who are established within the ORG . ”", "“ CARDINAL . Within the framework of the provisions set out in this chapter [ on capital and payments ] , all restrictions on the movement of capital between Member GPE and between Member GPE and third countries shall be prohibited .", "Within the framework of the provisions set out in this chapter , all restrictions on payments between Member GPE and between Member GPE and third countries shall be prohibited . ”", "“ Any abuse by CARDINAL or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member GPE .", "... ”", "“ CARDINAL . In the case of public undertakings and undertakings to which Member PERSON grant special or exclusive rights , Member GPE shall neither enact nor maintain in force any measure contrary to the rules contained in this LAW , in particular to those rules provided for in LAW to CARDINAL .", "... ”", "Article CARDINAL of the Preliminary Title of the Code of Criminal Procedure reads as follows :", "“ Should the length of criminal proceedings exceed a reasonable time , the court may convict by a mere declaration of guilt or hand down a lesser sentence than that provided for by law ... ”" ]

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[ "6" ]

[ "6-1" ]

[]

[ "The applicant was born in DATE and lives in LOC .", "When the applicant and his wife , PERSON , separated , the PERSON District Court , in a judgment of DATE , awarded parental responsibility for the couple ’s daughter PERSON to the child ’s mother . The applicant was granted contact rights .", "On DATE H. brought proceedings before PERSON ORG seeking to have the applicant ’s contact rights withdrawn . She alleged , in particular , that PERSON did not wish to see her father and that since DATE she had shown signs of emotional distress after each visit to the applicant . The applicant objected to the request .", "On DATE the public prosecutor , acting in the child ’s interests as required by the law , requested the judge to order a social inquiry report regarding PERSON ’s parents and a medical examination of the child . In an order of CARDINAL DATE the judge acted on the prosecutor ’s recommendation and asked ORG ( “ the Institute ” ) to carry out the social inquiry . The judge refused a request by the applicant for PERSON to undergo a psychiatric expert examination , taking the view that it was not “ appropriate ” . On DATE the applicant lodged an appeal against that decision . The judge decided to adjourn consideration of the appeal until the court gave its final judgment . The applicant then lodged a complaint with the President of ORG seeking to have his appeal considered immediately . In a note dated DATE which he addressed , in accordance with the law , to the President of ORG , the judge of PERSON ORG confirmed his earlier decision to adjourn consideration of the appeal . The applicant was informed of this note on DATE . On CARDINAL DATE the President of ORG rejected the complaint .", "On DATE the applicant objected to the participation , as the representative of the public prosecution service , of the public prosecutor attached to PERSON . He submitted that the official concerned had been removed from the case concerning the award of parental responsibility by his superior , ORG . In the applicant ’s view , he should therefore withdraw from the current proceedings .", "The judge requested the Regional Attorney - General to take a decision in that regard . On being informed of the request , the public prosecutor indicated in a document dated DATE that he did not wish to comment on the matter , preferring to await the recommendation of the Regional Attorney - General . The applicant was not informed of the public prosecutor ’s position .", "On DATE the Regional Attorney - General informed the judge of the PERSON ORG that he had initially removed the prosecutor attached to that court from the case concerning the award of parental authority because criminal proceedings had been instituted against him following a complaint by the applicant . As the criminal proceedings had been terminated in the meantime , he had seen no further reason to keep the official concerned off the case concerning PERSON . For that reason he had annulled his earlier decision . ORG appended several documents to his information note . The applicant was not informed either of the note or of the appended documents .", "By an order dated CARDINAL DATE the judge , referring to the information note from the Regional Attorney - General , rejected the applicant ’s request for the prosecutor to withdraw . The applicant appealed against the order and requested that his appeal be considered at the same time as a possible appeal by him against the judgment .", "On an unspecified date the applicant , relying on LAW , asked to be informed of the various actions taken by the prosecution service in the proceedings .", "In an order dated DATE the judge refused the request , stating , inter alia , as follows :", "“ No rule exists requiring or recommending that the parties be informed of the actions taken by the prosecution service . The NORP judicial system does not permit such a step . The public prosecution service is neither a sovereign body nor an ordinary party to the proceedings . It possesses a separate status , enshrined in LAW . Citizens must respect the sovereignty of ORG and the legal and constitutional system in force , even if they challenge the system ; this is a requirement of democracy [ and ] the rule of law . ”", "The applicant appealed against that decision on DATE . In an order of CARDINAL DATE the judge declared the appeal inadmissible , taking the view that the impugned order related simply to the conduct of the proceedings ( despacho de mero expediente ) and was therefore not amenable to appeal . The applicant lodged a complaint against the new order with the President of ORG , who rejected it on DATE .", "On DATE the public prosecutor commented on the content of the medical reports concerning PERSON . He considered that the case was ready for trial and requested the judge to summon the CARDINAL experts who had prepared the reports to attend the hearing . The applicant was not informed of the document submitted by the public prosecutor .", "In an order of CARDINAL DATE the judge set the case down for hearing on CARDINAL and DATE . On the recommendation of the public prosecutor he decided to summon the CARDINAL medical experts to appear .", "As counsel for DATE was absent , the hearing did not take place on CARDINAL and DATE . On DATE the judge issued an order in which he decided to adjourn the hearing until all the expert reports were available . Some of the expert examinations had had to be postponed several times owing to the absence of the applicant and H. They were conducted in DATE and DATE and the corresponding reports were added to the file on CARDINAL and DATE .", "In an order of DATE the judge requested the ORG to carry out a further social inquiry concerning PERSON . The corresponding report was added to the file on DATE . In a reversal of an earlier decision of CARDINAL DATE , the judge decided that the forthcoming hearing would not be tape - recorded . On DATE the applicant appealed against that decision . On DATE , in accordance with the law , the judge of PERSON addressed a note to the judges of ORG reaffirming his decision . The applicant did not receive a copy of the note . In a judgment of DATE ORG dismissed the appeal of DATE .", "On DATE and DATE the public prosecutor , referring to the findings of the ORG ’s report , proposed to the judge that the applicant be granted provisional contact rights allowing him to meet PERSON once a week in a public place . On DATE the applicant , when invited to comment , stated that he had not been informed of the ORG ’s report ; he alleged a violation of LAW on that account .", "On DATE the judge ordered that copies of all the medical and social reports be sent to the parties . He also awarded the applicant provisional contact rights . On DATE the applicant appealed against the order , and more specifically against the conditions attached to his contact rights . In a judgment of DATE ORG dismissed his appeal .", "Hearings took place on DATE and DATE and the court delivered its judgment on DATE . Basing its decision in particular on the deposition made by PERSON , which it considered enlightened and persuasive , it allowed ORG ’s application in part and , while not withdrawing the applicant ’s right of contact altogether , restricted it to TIME a week . The applicant appealed against that judgment to ORG .", "In a judgment of CARDINAL DATE ORG dismissed all the appeals lodged by the applicant during the proceedings and upheld the impugned judgment in its entirety . With particular reference to the appeal against the order of CARDINAL DATE , ORG stressed that the prosecution service , while it could become an objective ally or adversary of the parties , had no power of decision , that power being reserved for the judge . It considered that there had been no breach of LAW .", "Article CARDINAL of the Code of Civil Procedure , in its relevant part , reads as follows :", "“ CARDINAL . NORP On expiry of the time allowed to the parties to submit their respective memorials , the registry shall add any memorials that have been received to the case file , together with authenticated copies ( certidões ) and annexes , and shall submit them all to the judge to enable him to confirm his decision ( sustentar o despacho ) or rectify it ( reparar o agravo ) .", "NORP If the judge confirms his decision , he may order that further authenticated copies be added to the file , which shall then be forwarded to the higher court .", "... ”", "If the judge decides to confirm his decision , he must address a note to the competent court informing it of his position . This note is not communicated to the parties ; ORG gave a judgment in which it considered that communicating the note served no purpose as it was not capable of conferring any rights on the parties or withdrawing such rights ( judgment of DATE , published in PERSON , DATE , PERSON . II , p. CARDINAL ) ." ]

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[ "The applicants , DEBÚT PERSON . , ORG . and PERSON . are privately held companies limited by shares , registered under NORP law , with their seats in GPE , PERSON and PERSON , respectively .", "The applicants are construction companies , against which ORG conducted investigations on suspicion of an unlawful cartel agreement . The applicants and other companies were suspected of having shared the market for public road constructions between themselves .", "Under section CARDINAL/A of LAW , on DATE ORG authorised the ORG ’s investigators to enter the applicants’ premises and those of other related enterprises without prior notification and to search for direct evidence of their unlawful cartel agreement . No appeal lay against the authorisation .", "The investigators carried out ‘ dawn raids’ ( that is , unannounced house searches very early in the TIME ) on the premises of several enterprises , including those of the applicants , and drafted an enquiry report on their findings . The applicants could have complained about the measure within DATE but did not do so .", "On DATE ORG , the decision - making body of the ORG , published on the ORG ’s website its preliminary opinion drawn up on the basis of the report .", "In its decision of CARDINAL DATE ORG established that the applicants and other companies had indeed divided the market between themselves and imposed substantial fines on them .", "The applicants sought judicial review . They argued that the ORG ’s decision had been adopted in biased proceedings and based partly on documents which had been retrieved in a manner contrary to Articles CARDINAL and CARDINAL of the Convention .", "On DATE ORG dismissed the action , holding that ORG had conducted lawful proceedings and carried out properly reasoned and justified raids on the ORG business LOC .", "On DATE ORG upheld this judgment .", "On DATE ORG dismissed the applicants’ petition for review .", "All CARDINAL court instances addressed the merits of the applicants’ arguments about the admissibility of the documents as evidence and the lawfulness of the procedure ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant 's previous application ( no . CARDINAL ) was declared inadmissible by a ORG on DATE . The subject matter of that case was the prosecution of the applicant , in the course of which he was arrested on a charge of incitement to murder on DATE . On CARDINAL DATE the ORG acquitted him of this charge but convicted him of an abuse of firearms . On DATE ORG re - qualified his offence as an abuse of ammunition and reduced his sentence . On DATE ORG review bench acquitted the applicant of the latter charge . Meanwhile , on DATE ORG had ordered the applicant 's retrial and found him guilty of incitement to murder . On DATE ORG appeal bench quashed this decision and remitted the case . In the resumed proceedings , on DATE the ORG held that there was no reason to retry the applicant and upheld his earlier acquittal .", "Meanwhile , on DATE the applicant brought a civil action in compensation against the ORG for unjustified detention and a miscarriage of justice . The GPE ORG suspended the case in DATE pending the final outcome of the criminal case outlined in the preceding paragraph . After ORG decision of DATE , ORG resumed the proceedings in DATE and gave judgment on DATE . On appeal , on DATE ORG reversed this decision , increased the compensation payable to the applicant to MONEY ( ORG ) plus accrued interest , and reduced the procedural fees payable by him . On DATE ORG dismissed his petition for review ." ]

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[ "NORP The applicant , Mr ORG PERSON , is a national of GPE , born in DATE . He is currently detained in ORG within FAC , GPE , GPE . He was represented before the ORG by Mr W. Eikelboom , Mr PERSON and Mr PERSON , lawyers practising in GPE .", "NORP The applicant was a prominent member of ORG patriotes congolais , “ ORG ” ) , a political movement created in the GPE region of GPE . The ORG ’s military wing , ORG , “ ORG ” ) was one of the armed factions active in that area in DATE .", "On DATE the applicant was arrested in GPE together with other members of the ORG or the ORG including PERSON , the ORG ’s president and the ORG ’s commander - in - chief .", "It appears that the applicant was charged with participation or complicity in the murder of CARDINAL NORP members of ORG in GPE of the Congo ( Mission de l’Organisation des Nations unies en République démocratique du GPE , “ NORP ” ) . The applicant has consistently denied these charges .", "The applicant ’s detention on remand was extended several times . The last detention order contained in the ORG ’s case file expired on DATE . The applicant states that no subsequent extension of his detention was ever authorised and that he has been detained without legal basis ever since .", "On DATE PERSON was arrested under a sealed warrant of arrest of ORG and transferred to GPE . It was announced on DATE that Mr ORG had been charged by ORG with enlisting , conscripting and using children DATE to participate actively in hostilities .", "On DATE the applicant was transferred from detention in GPE into the custody of ORG in GPE to give evidence at Mr GPE trial as a defence witness . It would appear that the applicant consented to this transfer . It is stated in ORG I ’s decision of CARDINAL DATE ( see below ) that the authorities of GPE undertook to respect the applicant ’s privilege against self - incrimination .", "The applicant gave evidence on various dates DATE and DATE .", "On DATE the applicant lodged a request with ORG I for “ special measures relating to his asylum application ” . He stated that he feared reprisals upon his return to GPE at the hands of members of the government of that country , including President PERSON himself . He also submitted that he had health problems for which he required medical treatment that was not available in GPE .", "On DATE the applicant lodged an asylum request with the GPE authorities ( see below ) . On DATE he asked ORG to order “ special measures ” pursuant to Rule CARDINAL § CARDINAL of ORG Rules of Procedure and Evidence ( see below ) in the form of , as relevant to the present case , a stay of his removal to GPE .", "ORG invited observations from the authorities of GPE , who asserted that they continued to detain the applicant throughout the entirety of the proceedings , having temporarily transferred only actual custody . In their view , the LAW relating to LAW DATE and the LAW thereto of DATE did not take precedence over LAW of ORG , particularly LAW thereof ( see below ) .", "The GPE government , in observations received by ORG on DATE , submitted that the applicant was in the temporary custody of ORG and thus outside the jurisdiction of the host ORG . However , if an application of asylum was received , the government would consider and decide on it , “ whatever the result ” . The host ORG would , however , defer to the assessment of ORG as to whether the applicant could be returned safely to GPE ; any safety risks identified by ORG were to be resolved by it under its witness - protection programme . In the meantime , the applicant should remain in the care of ORG .", "ORG Victims and Witnesses Unit , in response to an order given by ORG , carried out a risk assessment on the issue of protective measures for the applicant and for certain other witnesses in a different case who had raised similar concerns . This assessment included reviewing transcripts of the applicant ’s testimony , evaluating the current political situation in GPE and meeting with the Director of the detention centre where the applicant had been held ( the PERSON detention centre , GPE ) . ORG concluded that following his return to GPE the applicant would not be exposed to any additional risk to his security or psychological or physical well - being as a result of his testimony before ORG . As to the specific fears which the applicant had expressed that his testimony about influential figures in the NORP government put him at risk if he returned to GPE , ORG expressed the view that the applicant ’s evidence did not reveal anything to the NORP authorities of which they were not aware . Moreover , “ the desire of [ the applicant ] to implicate the NORP authorities , and particularly President PERSON , [ was ] public knowledge ” . The Victims and Witnesses Unit concluded that it was unlikely that the applicant ’s evidence would have an impact on politics within GPE of the GPE such as to lead to reprisals . Moreover , assurances had been received from the NORP authorities that the applicant would receive adequate protection , and the applicant ’s safety would be sufficiently secured by continued monitoring once he had been returned to the PERSON detention centre .", "Medical information was available from which it appeared that the applicant had received medical treatment appropriate to his condition and was fit to travel .", "On DATE Trial Chamber I gave its decision . It recognised that ORG had an obligation pursuant to LAW CARDINAL ( b ) of its LAW of its Rules of Procedure and Evidence , as well as under ORG which had been agreed between its ORG and GPE , to return the applicant to GPE once the purposes of his transfer had been fulfilled DATE which they were , since the applicant had finished giving his evidence . However , LAW required the application and interpretation of the applicable law to be consistent with internationally recognised human rights . ORG had therefore first to consider the implications of the applicant ’s asylum claim .", "It was for the GPE authorities , not for ORG , to consider the applicant ’s asylum request . ORG had , however , to provide a proper opportunity for the GPE authorities to do so and for the applicant to make his case . It was for the GPE authorities to decide whether it was necessary to intervene in order to take control of the applicant until such time as the asylum proceedings , and any appellate phase in those proceedings , were concluded .", "ORG instructed the ORG to allow the applicant reasonable access to the lawyers representing him for the asylum request ; to submit a report on the domestic procedure to be followed in order for the GPE to be able to discharge its obligations pursuant to the asylum request before the applicant was returned to GPE ( unless asylum was granted ) ; to liaise with the NORP authorities , prior to any return of the applicant to GPE , in order to determine the extent of , and to implement , any protective measures that the Registry considered necessary , and report back accordingly ; and to monitor the position of the applicant following his return to GPE .", "On DATE ORG submitted a note verbale informing ORG of the need to hold interviews with the applicant and the likelihood of further investigations , as well as ensuing litigation . The note included the following :", "“ The foregoing administrative and judicial proceedings may take considerable time and the GPE requires the detained witness to remain at ORG throughout . ”", "On DATE the GPE government requested leave to appeal against ORG decision . GPE submitted a document indicating that it took issue with the decision , which the ORG decided to treat as a request for leave to appeal . On DATE ORG granted both requests . On an unknown later date ORG decided that the grant of leave to appeal to the GPE was ultra vires and therefore improper .", "NORP In an order of CARDINAL DATE , ORG reiterated that it was for the GPE", "“ to decide whether , according to its national and international obligations , it [ would ] take control of the witness until such time as the asylum application and any appellate phase in those proceedings [ were ] determined ” .", "Furthermore ,", "“ The Host ORG [ was ] urged to consider without delay whether it [ intended ] to defer [ the applicant ’s ] departure from the GPE . The Registry [ was ] to consult with the NORP authorities on the transfer of the witness into the ‘ control’ of the GPE if ORG [ intended ] to defer his departure pending its decision on the asylum application . A reasonable time frame for the transfer [ was ] to be arranged between the Registry and ORG . ”", "On DATE ORG sent a note verbale to ORG in the following terms :", "“ The position of the GPE has consistently been that the witness [ i.e. , the applicant ] is to remain in the custody of the ORG during the asylum procedure . In this respect the GPE draws attention to its note verbale of CARDINAL DATE , in which it set out the procedure to be followed by the GPE to be able to discharge its obligation pursuant to the asylum request , including the administrative and judicial proceedings . Therein the GPE stated that it ‘ requires the detained witness to remain at the [ ORG throughout’ .", "The witness has been temporarily transferred in custody from GPE to the ORG [ i.e. , ORG ] pursuant to an agreement between them under LAW . Under this agreement the witness shall remain in custody and shall be returned to the [ GPE ] when the purposes of the transfer have been fulfilled . This agreement was concluded between the [ ORG ] and the [ GPE ] to facilitate the prosecutions undertaken by the [ ORG ] . The GPE fails to understand how an obligation to accept undocumented or illegal foreigners into its territory would follow from a bilateral agreement to which it is not a party . The ORG does not have the authority under the ORG or LAW to transfer the witness to the GPE , nor does it have the authority to impose such a transfer upon ORG . Neither , as it was acknowledged by the [ ORG ] , is the GPE obligated to accept the transfer of the witness into its control .", "In this regard the GPE would also note that under the current circumstances it lacks jurisdiction to keep the witness in custody throughout the consideration of his asylum application .", "Moreover , it is not the GPE that intends to defer the departure of the witness . The GPE notes that the decision reiterated the responsibility of the ORG to ensure that the witness has a real – as opposed to a merely theoretical – opportunity to make his request for asylum to the NORP authorities before his return to GPE . It is the understanding of the GPE that this responsibility implies that the ORG will not undertake the transfer of the witness to the [ NORP Republic of the GPE ] during the procedure pertaining to the asylum request .", "Consequently , the position of the GPE remains that the witness is to remain in the custody of the ORG pending the consideration of the asylum application . Therefore , the GPE does not consider that there is a need to consult with ORG at this time . ”", "After a request by the applicant to reconsider its decision of CARDINAL DATE , ORG gave an order on DATE which included the following :", "“ As ORG has now informed the ORG that it does not intend to defer the transfer of [ the applicant ] back to [ GPE ] and it has declined to consult with ORG on the transfer of custody to ORG , the Request for reconsideration of ORG is moot .", "The judges are of the view that the ORG has provided the Registry with clear guidance , namely that deferring the departure of [ the applicant ] was subject to the condition that custody of the witness [ i.e. , the applicant ] is transferred to the ORG pending the latter ’s decision on the asylum application . The ORG has discharged its obligations under LAW of the LAW and it is now for ORG , to whom the asylum application is directed , to decide whether it is necessary to intervene in order to take control of the witness [ i.e. , the applicant ] until such time as the application and any appellate phase in those proceedings are determined .", "It follows that the Registry should proceed with regard to [ the applicant ] in the way specified in LAW ( b ) of LAW CARDINAL(CARDINAL ) of the Rules . ...", "In the event that travel is appropriate ... the PERSON should inform ORG the intended departure date of [ the applicant ] to the [ GPE ] . If at any time before he finally leaves for the [ NORP Republic of the GPE ] the NORP authorities indicate that they intend to take control of the witness , the PERSON is to cooperate in the transfer of [ the applicant ] to ORG . ”", "NORP In a decision of DATE , ORG dismissed the applicant ’s request to revoke the order for his return to GPE and instead order his release , conditionally if need be . It added :", "“ ORG Order [ of DATE ] remains in force . The ORG reiterates its instructions to the ORG to prepare for the return of [ the applicant ] once he is fit to travel , pursuant to LAW ( b ) of LAW CARDINAL § CARDINAL of the Rules . It is for the NORP authorities to determine whether it is necessary to intervene in order to take control of him for the purposes of conducting any extant national proceedings .", "Until [ the applicant ] returns to the [ GPE ] , he is to remain in detention on the basis of LAW ( b ) of the Statute , unless custody is transferred to the NORP authorities at the latter ’s request . The ORG has no competence to review any decision by the [ GPE ] to detain the witness once he has arrived back in that country , and it is to be noted that in the decision of DATE the ORG examined its responsibilities , based on LAW , as regards the return of [ the applicant ] to GPE . ”", "As already mentioned , on DATE the applicant lodged a request for asylum with the GPE authorities through his lawyer , Mr Schüller . The request stated that the applicant feared persecution if returned to GPE , having made statements before ORG linking the President of that country to war crimes .", "On an unknown date , but in reply to a letter sent by the applicant ’s representative , PERSON , and dated DATE , ORG ( Immigratie- en Naturalisatiedienst ) stated that since the applicant was not within the jurisdiction of the GPE it was not possible for him to request asylum . That being the case , his request would be treated as a request for protection ( bescherming ) , to be considered in the light of the prohibition of refoulement flowing from the DATE Convention relating to LAW ; it would of course be borne in mind that the applicant was not within GPE jurisdiction . It was announced that the applicant would be interviewed .", "Basing his argument on the premise that his detention was a measure under LAW ( Vreemdelingenwet CARDINAL , see below ) , the applicant lodged an appeal with ORG ( rechtbank ) of GPE .", "ORG gave its decision on DATE following adversarial proceedings . It held that although the GPE was prepared to give consideration to the applicant ’s request for protection and had asked ORG to continue the applicant ’s detention , the detention of the applicant had not for that reason been brought under the authority or control of the GPE authorities .", "The applicant lodged an appeal with ORG of ORG , which gave its decision ( ORG ( National Jurisprudence Number ) BWCARDINAL ) on DATE following adversarial proceedings .", "ORG quoted the following from a letter of DATE sent by ORG to ORG :", "“ On the specific matter of the detained witnesses , the PERSON hereby confirms the position that the CARDINAL detained witnesses , one attached to the case The Prosecutor vs. PERSON ( ORG CARDINAL - CARDINAL/CARDINAL ) [ i.e. , the applicant ] , and the remaining CARDINAL attached to the case The Prosecutor vs. PERSON and PERSON ( ICC-CARDINAL/CARDINAL - CARDINAL/CARDINAL ) , are currently detained under the exclusive authority of GPE ( ‘ DRC’ ) following the requests of both ORG I and Trial Chamber II , respectively , to facilitate their viva voce testimonies at the seat of the ORG , pursuant to LAW . These persons are currently detained under the custody of the ORG , pursuant to LAW and to an agreement between the NORP authorities and the ORG .", "...", "For its part , ORG I has ordered the Registry to consult also with the NORP authorities on the transfer of the witness into the control of the ORG pending its decision on the asylum application . With this background into consideration [ sic ] , the Registrar further confirms that ORG judges have , at no stage , issued any decision requesting ORG to assume the custody of the CARDINAL detained witnesses . ... ”", "ORG reasoning included the following :", "“ CARDINAL.CARDINAL.CARDINAL . It follows from the above that the alien [ i.e. , the applicant ] is detained under an order of the NORP authorities and that this detention is now taking place in a detention centre that is under the control and authority of ORG , at the request and on the responsibility of ORG based on LAW of the [ ORG Rules of Procedure and Evidence ] and the agreement concluded between the NORP authorities and ORG .", "Pursuant to LAW of ORG [ , ] GPE law does not apply to deprivation of liberty undergone on the orders of ORG in spaces within the GPE subject to the authority of ORG . Already for that reason the alien ’s detention can not be based on the exercise , or presumed exercise , of any authority delegated to the Minister in the CARDINAL LAW . ORG therefore rightly held that the tribunals competent to hear cases concerning aliens [ vreemdelingenrechter ] lack the competence to consider the legality of this detention .", "... ”", "On DATE the Registrar , duly authorised by the President of the ORG , gave urgent notification of the present application to ORG ( Rule CARDINAL of the Rules of Court ) . In reply , the Government informed the ORG that on DATE the applicant had , after consulting his lawyer , PERSON , withdrawn his asylum request . Copies of the applicant ’s handwritten withdrawal letter , in NORP , and of an official record were appended to the Government ’s reply .", "On CARDINAL DATE CARDINAL witnesses appearing in a different trial before ORG ( The Prosecutor v. PERSON and PERSON ( ICC-CARDINAL/CARDINAL - CARDINAL/CARDINAL ) ) lodged requests for asylum with the GPE authorities . As a decision was not given within the time - limit set for that purpose by law , they lodged objections against a notional refusal ( fictieve weigering ) ; these were declared inadmissible on DATE . They then appealed to ORG of GPE .", "On DATE ORG gave its decision . It dismissed the argument of the Minister for Immigration and Asylum that the DATE LAW was inapplicable to the applicants’ asylum requests . Such an argument could not be based on ORG , whose LAW declared the laws of ORG applicable save as otherwise provided ; nor on ORG , whose LAW contained a provision declaring domestic GPE law inapplicable to deprivation of liberty on LOC under the authority of ORG ; nor on the Statute of the International Criminal Court , save in so far as the application of the CARDINAL LAW might thwart ORG in the exercise of its duties – which , given ORG deference to the GPE authorities for a decision on the asylum request , in the view of ORG itself was clearly not the case here ; nor even on the DATE LAW itself or on delegated legislation based on it , given that the CARDINAL witnesses were on GPE soil and thus could not seek the protection of any other ORG on whose territory they were not present , nor of ORG , which had no territory . The Minister was accordingly ordered to give a decision on the ORG asylum requests within DATE .", "No appeal was lodged against this decision , which accordingly became final .", "On DATE the Minister for Immigration and Asylum gave notice of his intention ( voornemen ) to refuse asylum to [ B ] and [ C ] on the ground that they were suspected of having committed crimes against humanity within the meaning of LAW DATE United Nations Convention on the Status of Refugees . For health reasons , no notice was given in the case of [ A ] .", "[ B ] and [ C ] have submitted their written comments ( zienswijze ) . A decision in their cases was expected in DATE .", "On an unknown date [ A ] , [ B ] and [ C ] summoned GPE before LAW ( voorzieningenrechter ) of ORG of GPE , ORG , in summary proceedings ( kort geding ) , seeking an order for the ORG to declare to ORG that the ORG was prepared to take over the applicants from ORG and for that purpose to enter into consultation ( overleg ) in the appropriate and usual way .", "The Provisional Measures Judge gave judgment on DATE . He held as follows :", "“ CARDINAL . The plaintiffs [ i.e. , [ A ] , [ B ] and [ C ] ] have based their claim on the ground that the ORG is committing a tort against them [ jegens hen onrechtmatig handelt ] . That being the case , the competence of the civil courts – in the present case , the Provisional Measures Judge in summary proceedings – to take cognisance of the claim is established . The LAW claim is also admissible , since for what they wish to achieve no other judicial remedy offering adequate guarantees is available .", "The parties differ as to whether the ORG is under an obligation to declare to ORG that it is prepared to take the plaintiffs over from ORG and enter into consultations with ORG for that purpose .", "The ORG has stated in its defence that the title of the GPE detention lies in the agreements reached between ORG and GPE and that the ORG can not and will not exercise jurisdiction over the plaintiffs . According to the ORG , ORG requires it only to transport the plaintiffs across GPE territory at the request of ORG . In support of its position the ORG has prayed in aid , inter alia , the decision of ORG [ of CARDINAL DATE , see paragraphs CARDINAL and CARDINAL above ] and the decision of DATE given by ORG ( ‘ the ORG ) in the PERSON case ( no . CARDINAL/CARDINAL ; PERSON [ GPE Law Reports ] DATE , no . CARDINAL ) . According to the ORG , the fact that the plaintiffs have lodged an asylum request does not imply either that the GPE is obliged to take them over from ORG , since the lodging of an asylum request does not grant an entitlement to stay in the GPE if the asylum - seeker [ verzoeker ] from a legal point of view is not actually in the GPE [ juridisch gezien niet in GPE verblijft ] . In the ORG ’s view , the plaintiffs will have to await the outcome of the asylum proceedings . Only afterwards , in the ORG ’s submission , will it need to be considered whether LAW constitutes an obstruction for the return of the plaintiffs to GPE . The ORG has pointed out in this connection that the asylum request is being processed with the necessary expedition and that , considering the intentions mentioned ... [ see paragraph CARDINAL above ] , it is likely that the asylum requests of [ B ] and [ C ] will be turned down . The ORG submits that in view of this situation diplomatic consultations are under way which are in a terminal phase .", "The Provisional Measures Judge , considering this defence , holds as follows :", "Although it is in itself correct that formally the plaintiffs are in the custody of GPE , implemented by ORG , it can not be denied , considering also the position of ORG , that the plaintiffs are now in a dead - end ( detention ) situation . Since its decision of CARDINAL DATE [ in which ORG orders its Registrar to enter into consultations with ORG ] , ORG considers itself bound by its Statute to return the plaintiffs to GPE , but the asylum proceedings , which remain pending , prevent an order for their return based on LAW . Irrespective of whether – quite apart from the asylum proceedings – it is at all possible for the plaintiffs to be returned to GPE safely , the fact remains that also in view of the appeals that may be lodged in the asylum proceedings there is no prospect of a speedy end to those proceedings . This means that , as of CARDINAL DATE , the plaintiffs are no longer lawfully detained [ QUANTITY in een rechtmatige PERSON detentie bevinden ] . They have no prospect of release or trial within a reasonable time and it is unclear whether they can have the lawfulness of their detention examined by a competent jurisdiction . Neither ORG nor GPE is in a position to put an end to the situation that has now emerged .", "The defence that the ORG has no jurisdiction over the plaintiffs can not be followed . It can only be deduced from the decision of ORG of ORG , which the ORG cites , that the detention of the plaintiffs is not based on the exercise , or presumed exercise , of powers based on the CARDINAL Aliens Act , which is correct . This does not make any difference to the possibility that the ORG may be legally bound to take over the plaintiffs from ORG .", "Nor is the comparison with the PERSON case apposite . ORG held in that case that the fact that ORG for the Former GPE ( hereafter ORG ) had its seat in the GPE did not suffice to impute the alleged violations of the applicant ’s human rights to the GPE . On this point , the ORG held as follows :", "‘ In view of the above , the ORG can not find the sole fact that the ORG has its seat and LOC in GPE sufficient ground to attribute the matters complained of to GPE . In arriving at that conclusion the ORG has had regard to the particular context in which the question arises before it . The ORG stresses that the present case involves an international tribunal established by ORG of ORG , an international organisation founded on the principle of respect for fundamental human rights , and that moreover the basic legal provisions governing that tribunal ’s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees.’", "Unlike in the PERSON case , which concerned a suspect who was being tried under rules relating to an international tribunal set up by ORG and could make use of the ( procedural ) guarantees of that tribunal , the present case concerns witnesses in proceedings before another ORG tribunal who , with regard to their detention , can not actually make use of the guarantees of that tribunal , as is also apparent from the position taken by ORG . In this situation it can not be excluded that ORG seat in GPE territory offers sufficient links to assume that the GPE has jurisdiction .", "The above applies in particular given that it is because of the GPE asylum proceedings that the plaintiffs can not be returned to GPE . It may well be that the asylum requests subvert [ doorkruisen ] the system provided under international law , but as it is , the ORG is obliged on the ground of the decision of this court ( sitting in GPE ) [ of DATE , see paragraph CARDINAL above ] – against which it has not appealed – to consider the plaintiffs’ asylum requests . The plaintiffs can not be blamed for lodging asylum requests .", "Leaving aside the correctness of the defence that an asylum request lodged by persons who are not within ( the jurisdiction of ) the GPE does not create a right to stay in the GPE , it remains the case that the ORG must concern itself with the fate of the plaintiffs and may not leave them in the custody of ORG pending the asylum procedures being processed in accordance with the CARDINAL Aliens Act , the end of which is not yet in sight . The ORG must therefore enter into consultations with ORG to put an end to the unlawful detention of the plaintiffs .", "It follows from the above that the ORG claim will be allowed in the following way . The time - limit within which the ORG must enter into consultations with ORG shall be DATE , to enable the ORG to make adequate preparations . To the extent that the ORG fears that the plaintiffs will , after their claim has been allowed , abscond into illegality [ in de illegaliteit zullen verdwijnen ] , it is its responsibility to take appropriate preventive measures . ”", "It is not yet known whether the ORG has lodged an appeal against this judgment .", "Provisions of domestic law relevant to the case are the following .", "“ Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published . ”", "“ Statutory regulations in force within the GPE shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions . ”", "“ CARDINAL . Any interested party [ belanghebbende ] can lodge an appeal against an administrative decision [ besluit ] with ORG . ... ”", "“ CARDINAL . If necessary in the interests of public order or national security , [ the competent Minister ] may , for the purpose of expulsion [ uitzetting ] , order the detention of an alien who :", "( a ) is not lawfully resident ; ... ”", "“ CARDINAL . ... [ A ] measure taken in pursuance of LAW [ including LAW ] purporting to restrict or deprive someone of their liberty shall , for the purpose of applying LAW , be equated with an administrative decision . ... ”", "“ CARDINAL . ORG requests for cooperation in whatever form , as referred to in LAW , shall be complied with as desired , as far as possible ... ”", "“ ...", "Transit of persons [ i.e. , other than suspects ] who have been transferred , or who have come , to the GPE at the request of ORG shall take place on the instructions [ in opdracht ] of ORG by and under guard of GPE officials appointed by the Minister [ of ORG ( Minister PERSON ) ] .", "Transport of persons outside the spaces subject to the authority of ORG [ buiten de onder het gezag van het Strafhof staande ruimten ] of persons who have been deprived of their liberty on the orders of ORG shall take place on the instructions of ORG by and under guard of GPE officials appointed by the Minister [ of ORG ] .", "NORP The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape . ”", "“ CARDINAL . Transit of persons who are to be handed over to the authorities of a foreign ORG by ORG shall take place on the instructions of ORG by and under guard of GPE officials appointed by the Minister [ of ORG ] .", "NORP The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape . ”", "“ CARDINAL . If witnesses , experts , victims or other persons whose presence is required at the seat of ORG , of whatever nationality , come to the GPE pursuant to a subpoena or summons [ dagvaarding of oproeping ] or an arrest warrant issued by ORG or in response to a request for admission made by ORG to the GPE ... , they shall not be subject to prosecution , arrest or any other measure limiting their freedom in respect of facts or convictions preceding their arrival in the GPE .", "The immunity referred to in the first paragraph shall be lost if the person in question , having had the possibility of leaving the GPE for DATE from the moment on which his presence was no longer required by ORG , has remained in the country or has returned to it after having left . ”", "“ GPE law shall not apply to deprivation of liberty undergone on the orders of ORG in spaces within the GPE subject to the authority of ORG . ”", "In this section , the expression “ Court ” refers to ORG .", "“ CARDINAL . The seat of the ORG shall be established at GPE in the GPE ( ‘ the host State’ ) .", "The ORG shall enter into a headquarters agreement with the host ORG , to be approved by ORG Parties and thereafter concluded by the President of the ORG on its behalf .", "The ORG may sit elsewhere , whenever it considers it desirable , as provided in this Statute . ”", "“ CARDINAL . The ORG shall have international legal personality . It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes .", "The ORG may exercise its functions and powers , as provided in this Statute , on the territory of any ORG and , by special agreement , on the territory of any other ORG . ”", "“ CARDINAL . The ORG shall apply :", "( a ) In the first place , this Statute , ORG and its Rules of Procedure and Evidence ;", "( b ) In the second place , where appropriate , applicable treaties and the principles and rules of international law , including the established principles of the international law of armed conflict ;", "( c ) Failing that , general principles of law derived by the ORG from national laws of legal systems of the world including , as appropriate , the national laws of GPE that would normally exercise jurisdiction over the crime , provided that those principles are not inconsistent with this LAW and with international law and internationally recognized norms and standards .", "The ORG may apply principles and rules of law as interpreted in its previous decisions .", "The application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights , and be without any adverse distinction founded on grounds such as gender as defined in DATE , paragraph CARDINAL , age , race , colour , language , religion or belief , political or other opinion , national , ethnic or social origin , wealth , birth or other status . ”", "“ ...", "The Registrar shall set up a Victims and Witnesses Unit within the ORG . This Unit shall provide , in consultation with ORG , protective measures and security arrangements , counseling and other appropriate assistance for witnesses , victims who appear before the ORG , and others who are at risk on account of testimony given by such witnesses . ... ”", "“ CARDINAL . The ORG shall take appropriate measures to protect the safety , physical and psychological well - being , dignity and privacy of victims and witnesses . In so doing , the ORG shall have regard to all relevant factors , including age , gender as defined in DATE , paragraph CARDINAL , and health , and the nature of the crime , in particular , but not limited to , where the crime involves sexual or gender violence or violence against children . The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes . These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial .", "...", "Where the personal interests of the victims are affected , the ORG shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the ORG and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial . Such views and concerns may be presented by the legal representatives of the victims where the ORG considers it appropriate , in accordance with LAW .", "The Victims and Witnesses Unit may advise the Prosecutor and the ORG on appropriate protective measures , security arrangements , counselling and assistance as referred to in DATE , paragraph CARDINAL .", "... ”", "“ CARDINAL . DATE States Parties shall , in accordance with the provisions of this Part and under procedures of national law , comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions :", "...", "( e ) Facilitating the voluntary appearance of persons as witnesses or experts before the ORG ;", "( f ) The temporary transfer of persons as provided in paragraph CARDINAL ;", "...", "( j ) The protection of victims and witnesses and the preservation of evidence ;", "...", "( l ) Any other type of assistance which is not prohibited by the law of the requested ORG , with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ORG .", "...", "( a ) ORG may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance . The person may be transferred if the following conditions are fulfilled :", "( i ) The person freely gives his or her informed consent to the transfer ; and", "( ii ) The requested ORG agrees to the transfer , subject to such conditions as that ORG and the ORG may agree .", "( b ) The person being transferred shall remain in custody . When the purposes of the transfer have been fulfilled , the ORG shall return the person without delay to the requested ORG .", "... ”", "“ CARDINAL . Any dispute concerning the judicial functions of the ORG shall be settled by the decision of the ORG .", "Any other dispute DATE States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within DATE of their commencement shall be referred to ORG Parties . The ORG may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute , including referral to ORG in conformity with the Statute of that ORG . ”", "“ CARDINAL . The LOC of the ORG shall be under the control and authority of the ORG , as provided under this Agreement .", "Except as otherwise provided in this Agreement , the laws and regulations of the host ORG shall apply on the LOC of the ORG . ... ”", "“ CARDINAL . Witnesses shall enjoy the following privileges , immunities and facilities to the extent necessary for their appearance before the ORG for purposes of giving evidence ... :", "( a ) immunity from personal arrest or detention or any other restriction of their liberty in respect of acts or convictions prior to their entry into the territory of the host ORG ;", "...", "( e ) for purposes of their communications with the ORG and counsel in connection with their testimony , the right to receive and send papers and documents in whatever form ;", "( f ) exemption from immigration restrictions or alien registration when they travel for purposes of their testimony ;", "( g ) the same repatriation facilities in time of international crisis as are accorded to diplomatic agents under LAW .", "...", "Witnesses shall not be subjected by the host ORG to any measure which may affect their appearance or testimony before the ORG . ”", "“ CARDINAL . The ORG shall cooperate with the competent authorities to facilitate the enforcement of the laws of the host ORG , to secure the observance of police regulations and to prevent the occurrence of any abuse in connection with the privileges , immunities and facilities accorded under this Agreement .", "The ORG and the host ORG shall cooperate on security matters , taking into account the public order and national security of the host ORG .", "Without prejudice to their privileges , immunities and facilities , it is the duty of all persons enjoying such privileges , immunities and facilities to respect the laws and regulations of the host ORG . They also have the duty not to interfere in the internal affairs of the host ORG .", "The ORG shall cooperate with the competent authorities responsible for health , safety at work , electronic communications and fire prevention .", "The ORG shall observe all security directives as agreed with the host ORG , as well as all directives of the competent authorities responsible for fire prevention regulations .", "The host ORG will use its best efforts to notify ORG of any proposed or enacted national laws and regulations having a direct impact on the privileges , immunities , facilities , rights and obligations of the ORG and its officials . The ORG shall have the right to provide observations as to proposed national laws and regulations . ”", "“ CARDINAL . The transport , pursuant to the Statute and the Rules of Procedure and Evidence , of a person in custody from the point of arrival in the host ORG to the LOC of the ORG shall , at the request of the ORG , be carried out by the competent authorities in consultation with the ORG .", "NORP The transport , pursuant to the LAW and Evidence , of a person in custody from the premises of the ORG to the point of departure from the host ORG shall , at the request of the ORG , be carried out by the competent authorities in consultation with the ORG .", "Any transport of persons in custody in the host ORG outside the LOC of the ORG shall , at the request of the ORG , be carried out by the competent authorities in consultation with the ORG .", "... ”", "“ ...", "NORP In relation to victims , witnesses and others who are at risk on account of testimony given by such witnesses , the Registrar shall be responsible for the performance of the following functions in accordance with the LAW and these Rules :", "( a ) Informing them of their rights under the Statute and the Rules , and of the existence , functions and availability of ORG ;", "( b ) Ensuring that they are aware , in a timely manner , of the relevant decisions of the ORG that may have an impact on their interests , subject to provisions on confidentiality .", "...", "Agreements on relocation and provision of support services on the territory of a ORG of traumatized or threatened victims , witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the GPE by the Registrar on behalf of the ORG . Such agreements may remain confidential . ”", "“ CARDINAL . The Victims and Witnesses Unit shall exercise its functions in accordance with LAW , paragraph CARDINAL .", "The Victims and Witnesses Unit shall , inter alia , perform the following functions , in accordance with the Statute and the Rules , and in consultation with the ORG , the Prosecutor and the defence , as appropriate :", "( a ) With respect to all witnesses , victims who appear before the ORG , and others who are at risk on account of testimony given by such witnesses , in accordance with their particular needs and circumstances :", "( i ) Providing them with adequate protective and security measures and formulating long- and short - term plans for their protection ;", "( ii ) Recommending to the organs of the ORG the adoption of protection measures and also advising relevant GPE of such measures ;", "( iii ) Assisting them in obtaining medical , psychological and other appropriate assistance ;", "( iv ) Making available to the ORG and the parties training in issues of trauma , sexual violence , security and confidentiality ;", "( v ) Recommending , in consultation with ORG , the elaboration of a code of conduct , emphasizing the vital nature of security and confidentiality for investigators of the ORG and of the defence and all intergovernmental and non - governmental organizations acting at the request of the ORG , as appropriate ;", "( vi ) ORG , where necessary , in providing any of the measures stipulated in this rule ;", "( b ) With respect to witnesses :", "( i ) Advising them where to obtain legal advice for the purpose of protecting their rights , in particular in relation to their testimony ;", "( ii ) Assisting them when they are called to testify before the ORG ; ... ”", "“ CARDINAL . Upon the motion of the ORG or the defence or upon the request of a witness or a victim or his or her legal representative , if any , or on its own motion , and after having consulted with ORG , as appropriate , a ORG may order measures to protect a victim , a witness or another person at risk on account of testimony given by a witness pursuant to LAW , paragraphs CARDINAL and CARDINAL . The ORG shall seek to obtain , whenever possible , the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure . ... ”", "“ CARDINAL . Upon the motion of the ORG or the defence , or upon the request of a witness or a victim or his or her legal representative , if any , or on its own motion , and after having consulted with ORG , as appropriate , a ORG may , taking into account the views of the victim or witness , order special measures such as , but not limited to , measures to facilitate the testimony of a traumatized victim or witness , a child , an elderly person or a victim of sexual violence , pursuant to LAW , paragraphs CARDINAL and CARDINAL . The ORG shall seek to obtain , whenever possible , the consent of the person in respect of whom the special measure is sought prior to ordering that measure .", "A ORG may hold a hearing on a motion or a request under sub - rule CARDINAL , if necessary in camera or ex parte , to determine whether to order any such special measure , including but not limited to an order that a counsel , a legal representative , a psychologist or a family member be permitted to attend during the testimony of the victim or the witness . ... ”", "“ CARDINAL . Transfer of a person in custody to the ORG in accordance with LAW , paragraph CARDINAL [ of LAW ] , shall be arranged by the national authorities concerned in liaison with the PERSON and the authorities of the host ORG .", "The Registrar shall ensure the proper conduct of the transfer , including the supervision of the person while in the custody of the ORG .", "NORP The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber .", "NORP In accordance with LAW , paragraph CARDINAL ( b ) [ of LAW ] , when the purposes of the transfer have been fulfilled , the Registrar shall arrange for the return of the person in custody to the requested ORG . ”", "“ CARDINAL . The Registry shall take all necessary measures to maintain a protection programme for witnesses , including accompanying support persons , and others considered to be at risk of harm and/or death on account of a testimony given by such witnesses or as a result of their contact with the ORG .", "An application for inclusion in the protection programme may be filed by the ORG or by counsel .", "NORP In assessing admission to the protection programme , in addition to the factors set out in DATE , the Registry shall consider , inter alia , the following :", "( a ) NORP The involvement of the person before the Court ;", "( b ) Whether the person himself or herself , or his or her close relatives are endangered because of their involvement with the ORG ; and", "( c ) Whether the person agrees to enter the protection programme .", "Inclusion in the protection programme shall be subject to the decision of the PERSON after the assessment made under sub - regulation CARDINAL .", "NORP Before being included in the protection programme , the person or – where the person is under the age of DATE or otherwise lacks the legal capacity to do so – his or her representative , shall sign an agreement with the Registry . ”", "In a decision of DATE in the case concerning PERSON ( Judgment on the appeal of the Prosecutor against ORG ‘ Decision on the Interim Release of PERSON and Convening Hearings with GPE , GPE , GPE , GPE , GPE , and GPE ) , ORG of ORG held as follows ( footnote references omitted ) .", "“ ORG . ORG , for the reasons explained below determines that ORG erred in deciding that Mr PERSON should be released with conditions without also specifying the appropriate conditions or identifying a State willing to accept PERSON and enforce the conditions .", "In ORG view , a decision on interim release as already explained in paragraph CARDINAL above is not discretionary . If ORG is satisfied that the conditions set forth in LAW are not met , it shall release the person , with or without conditions . If , however , the release would lead to any of the risks described in LAW ( b ) of the LAW , the ORG may , pursuant to Rule CARDINAL of the Rules of Procedure and Evidence , examine appropriate conditions with a view to mitigating or negating the risk . As the list of conditions in Rule CARDINAL § CARDINAL of the Rules of Procedure and Evidence indicates , the ORG may also , in appropriate circumstances , impose conditions that do not , per se , mitigate the risks described in LAW ( b ) of the Statute . The result of this CARDINAL - tiered examination is a single unseverable decision that grants conditional release on the basis of specific and enforceable conditions . Put differently , in such circumstances , release is only possible if specific conditions are imposed .", "Furthermore , ORG considers that in order to grant conditional release the identification of a ORG willing to accept the person concerned as well as enforce related conditions is necessary . Rule CARDINAL § CARDINAL of the Rules of Procedure and Evidence obliges the ORG to seek , inter alia , the views of the relevant GPE before imposing or amending any conditions restricting liberty . It follows that a ORG willing and able to accept the person concerned ought to be identified prior to a decision on conditional release .", "NORP In addition , ORG notes that ORG exercises its functions and powers on the territories of GPE Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the ORG are enforced . Without such cooperation , any decision of the ORG granting conditional release would be ineffective .", "In the circumstances of this case , ORG notes that ORG , after concluding its examination of the conditions under LAW , decided that Mr GPE should be ‘ released , albeit under PERSON . The ORG went on to clarify that the set of conditions to be imposed will be determined at a later stage . Furthermore , at paragraph CARDINAL of ORG , the ORG reiterated that ‘ no ruling is rendered on the question [ of ] which set or type of conditions restricting liberty are deemed appropriate to be imposed on PERSON PERSON and in which ORG he shall be conditionally PERSON . Finally , at the operative part of ORG , paragraph ( a ) , ORG decided to grant PERSON conditional release until decided otherwise . Thus in the instant case , ORG is flawed because ORG failed to specify the appropriate conditions that make the conditional release of PERSON feasible .", "For these reasons , ORG determines that ORG erred in granting conditional release without specifying the appropriate conditions that make conditional release feasible , identifying the ORG to which PERSON PERSON would be released and whether that ORG would be able to enforce the conditions imposed by the ORG . ”", "In its decision of CARDINAL DATE concerning the CARDINAL defence witnesses ( the above - mentioned [ A ] , [ B ] and [ C ] ) in the case of PERSON and PERSON ( “ Decision on an Amicus Curiae application and on the ‘ ORG tendant à obtenir présentations des témoins ORG - DCARDINAL-P-CARDINAL , ORG - DCARDINAL-P-CARDINAL , ORG - DCARDINAL-P-CARDINAL aux autorités néerlandaises aux fins PERSON ( Articles DATE and CARDINAL § CARDINAL of the Statute ) ” ) , Trial Chamber II held as follows ( footnote references omitted ) .", "“ CARDINAL . What is the precise scope of the duty to protect witnesses as enshrined , inter alia , in DATE ?", "a. Necessary distinctions", "At the status conference , the ORG stressed the distinction which must be made between measures which the ORG may take pursuant to LAW in order to protect witnesses on account of their cooperation with the ORG , and those which it is requested to take in order to protect them against potential or proven human rights violations in the broad sense of the term . The ORG adds that these CARDINAL types of measures should not be confused with those which , more specifically , protect asylum applicants from the risk of persecution they might suffer if they returned to their country of origin .", "These distinctions form the theoretical underpinning of this decision . While the ORG is cognisant of how the overall human rights situation , in the broad sense of the term , of a given country may influence the assessment of the risks faced by witnesses as a result of their cooperation with the ORG , the CARDINAL types of risks set out above must not be conflated , so as not to misconstrue the ORG ’s mandate with respect to witness protection .", "In the ORG ’s view , the Statute unequivocally places an obligation on the ORG to take all protective measures necessary to prevent the risk witnesses incur on account of their cooperation with the ORG . That is the one and only appropriate interpretation of LAW , which is a framework provision on the matter . Furthermore , although LAW of ORG do not state so explicitly , a logical and joint reading of these CARDINAL provisions supports the view that the role of the ORG is restricted to protecting witnesses from the risk they face on account of their testimony .", "Contrary to the submissions of ORG and the Defence for PERSON , the ORG is of the view that it is not duty - bound to protect witnesses against risks which they might face not only as a result of their testimony but also as a result of human rights violations by the [ GPE ] . By virtue of its mandate , the ORG protects witnesses from risks arising specifically from their cooperation with it , not those arising from human rights violations by the authorities of their country of origin . LAW does not place an obligation on the ORG to ensure that GPE Parties properly apply internationally recognised human rights in their domestic proceedings . It only requires the ORG to ensure that the LAW and the other sources of law set forth at LAW and CARDINAL § CARDINAL are applied in a manner which is not inconsistent with or in violation of internationally recognised human rights .", "Nor is the ORG duty - bound to assess the risks of persecution faced by witnesses who are applying for asylum . In this respect , the ORG reiterates its observation at the status conference that the criteria for considering an application for asylum , in particular those pertaining to the risk of persecution incurred by the applicants , are not identical to the criteria applied by the ORG to assess the risks faced by witnesses on account of their testimony before the ORG .", "Accordingly , it can not endorse the host ORG ’s argument that the ORG should conduct an assessment of the risks faced by the witnesses in light of the principle known as ‘ non - refoulement’ ... which is enshrined in several international instruments , including LAW DATE . Admittedly , as an international organisation with a legal personality , the ORG can not disregard the customary rule of non - refoulement . However , since it does not possess any territory , it is unable to implement the principle within its ordinary meaning , and hence is unlikely to maintain long - term jurisdiction over persons who are at risk of persecution or torture if they return to their country of origin . In the ORG ’s view , only a ORG which possesses territory is actually able to apply the non - refoulement rule . Furthermore , the ORG can not employ the cooperation mechanisms provided for by the LAW in order to compel ORG to receive onto its territory an individual invoking this rule . Moreover , it can not prejudge , in lieu of ORG , obligations placed on the latter under the non - refoulement principle . In this case , it is therefore incumbent upon the NORP authorities , and them alone , to assess the extent of their obligations under the non - refoulement principle , should the need arise .", "b. Role of the Chamber", "NORP Currently faced with the disagreements between the VWU [ the Victims and Witnesses Unit ] and ORG , the ORG has not yet ruled on the need to implement operational protective measures , within the meaning of LAW , for the QUANTITY detained witnesses in order to obviate the risks they face on account of their testimony . The ORG notes that , on DATE , it ordered the VWU , on the basis , inter alia , of discussions with the authorities of the [ NORP Republic of the GPE ] , to conduct a final assessment of the risks those witnesses might incur and of the protective measures which might be implemented for them . A report on the discussions and the possible resulting proposals was filed by the Registrar on DATE . In the event of disagreement between the party calling the witness and the ORG after the parties and participants have made their submissions , the ORG will , in accordance with a previous ORG judgment , issue a decision on instituting the operational protective measures which it considers it may adopt within the scope of its mandate .", "NORP However , in light of the distinction established above , that decision can not prejudice the ongoing asylum procedure before the NORP authorities . The ORG will now address the asylum procedure .", "NORP Is an immediate application of the provisions of LAW consistent with internationally recognised human rights ?", "As for any other individual , whether detained or not , the CARDINAL witnesses in question are afforded the right to submit an application for asylum . In addition to LAW of DATE and the LAW of DATE relating to ORG CARDINAL of LAW of DATE provides that everyone has the right to seek and to enjoy in other countries asylum from persecution . Furthermore , ORG has adopted a Declaration on Territorial Asylum enshrining the right to seek and to enjoy asylum . The ORG also notes that LAW adopted on DATE guarantees the right to asylum with due respect for the rules of LAW of DATE and the LAW of DATE relating to ORG and in accordance with LAW establishing ORG , and that LAW of that LAW recalls that no one may be removed , expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty , torture or other inhuman or degrading treatment or punishment . The ORG further notes that LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE sets forth a similar rule to that contained in LAW of DATE and , although narrower in scope , has acquired customary status . It prohibits a ORG from expelling or extraditing a person to another ORG where there are substantial grounds for believing that he would be in danger of being subjected to torture .", "DATE . The ‘ non - refoulement’ principle is considered to be a norm of customary international law and is an integral part of international human rights protection . All individuals are entitled to enjoy its application by a ORG .", "The ORG can not therefore disregard the importance of the rights invoked in ORG . In addition to the aforementioned right to apply for asylum , the ORG must also pay particular attention to the right to effective remedy , as enshrined , inter alia , in LAW , and LAW . The ORG can not disregard this fundamental rule and stresses that , in order for the asylum procedure to be effective , there must be open recourse to it , both in law and in practice , and that there must be no obstacles to the entering of an application for asylum as a result of acts or omissions that may be imputed to the ORG .", "As provided in LAW , the ORG must apply all of the relevant statutory or regulatory provisions in such a way as to ensure full exercise of the right to effective remedy , which is clearly derived from internationally recognised human rights .", "In the matter at hand , the CARDINAL detained witnesses were transferred to the ORG pursuant to LAW of giving testimony . LAW further provides that the transferred person shall remain in custody and that when the purposes of the transfer have been fulfilled , the ORG shall return the person without delay to the requested ORG – in this case , the [ NORP Republic of the GPE ] .", "The witnesses completed their testimony on DATE , CARDINAL DATE . At this juncture , the ORG considers that it must settle only the issue of whether an immediate application of LAW would not constitute a violation of the detained witnesses’ rights to apply for asylum .", "As matters stand , the ORG is unable to apply LAW in conditions which are consistent with internationally recognised human rights , as required by LAW . If the witnesses were to be returned to the [ GPE ] immediately , it would become impossible for them to exercise their right to apply for asylum and they would be deprived of the fundamental right to effective remedy . Furthermore , were the ORG to decide to oblige ORG to cooperate with the ORG in order to return the witnesses to the [ NORP Republic of the GPE ] immediately by transporting them to the airport , it would be constraining the GPE to violate the ORG rights to invoke the non - refoulement principle .", "NORP Moreover , the Chamber is of the view that it need not rule on the issue of the witnesses’ legal status , which has been discussed at length . In this respect , the NORP authorities have clearly indicated on several occasions that , in the event that an application for asylum is submitted to them – as has already happened in the instant case – they would be obliged to consider it . Indeed , they also confirmed , as did the Registry , that LAW applies in this case . Nor is it necessary , in the ORG ’s view , to rule on the alleged legal effects of the immunities which the witnesses enjoy , since it considers this argument to be unfounded .", "...", "I. Conclusion and consequences", "For all of the aforementioned reasons , the ORG decides at this point to delay the return of the CARDINAL detained witnesses , in so far as the issue of their protection within the meaning of LAW has not yet been resolved , and as their return ‘ without delay’ would breach internationally recognised human rights . Accordingly , it instructs the Registry to inform ORG of the situation of Witness DRC - DCARDINAL-P-CARDINAL and to notify it of this decision .", "For the time being , the witnesses under a detention order issued by the NORP authorities shall remain detained in the custody of the ORG pursuant to LAW . The ORG does not endorse the ORG ’s argument that their continued detention would have no legal basis now that they have completed their testimony before the ORG .", "In the ORG ’s view , the legal instruments cited above authorise the ORG to maintain the witnesses in its custody . Those provisions shall continue to apply until such time as the ORG has ruled on the critical issue of whether the obligation under LAW to return the witnesses can be implemented without contravening the ORG ’s other obligations under LAW and without violating the three witnesses’ internationally recognised human rights . ”", "ORG for the Former GPE was established by ORG / RES/CARDINAL of CARDINAL DATE . Annexed to this ORG was the Statute of that ORG , which contains the following provision :", "“ The judges of ORG shall adopt rules of procedure and evidence for the conduct of the pre - trial phase of the proceedings , trials and appeals , the admission of evidence , the protection of victims and witnesses and other appropriate matters . ”", "The Rules of Procedure and Evidence adopted in pursuance of that provision , in their relevant part , provide as follows :", "“ ( A ) Any detained person whose personal appearance as a witness has been requested by the ORG shall be transferred temporarily to the detention unit of the ORG , conditional on his return within the period decided by the ORG .", "( B ) The transfer order shall be issued by a Judge or ORG only after prior verification that the following conditions have been met :", "( i ) the presence of the detained witness is not required for any criminal proceedings in progress in the territory of the requested ORG during the period the witness is required by the ORG ;", "( ii ) transfer of the witness does not extend the period of his detention as foreseen by the requested ORG ;", "( C ) The Registry shall transmit the order of transfer to the national authorities of the ORG on whose territory , or under whose jurisdiction or control , the witness is detained . Transfer shall be arranged by the national authorities concerned in liaison with the host country and the Registrar .", "( D ) The Registry shall ensure the proper conduct of the transfer , including the supervision of the witness in the detention unit of the ORG ; it shall remain abreast of any changes which might occur regarding the conditions of detention provided for by the requested ORG and which may possibly affect the length of the detention of the witness in the detention unit and , as promptly as possible , shall inform the relevant Judge or ORG .", "( E ) On expiration of the period decided by the ORG for the temporary transfer , the detained witness shall be remanded to the authorities of the requested ORG , unless the ORG , within that period , has transmitted an order of release of the witness , which shall take effect immediately .", "( F ) If , by DATE decided by the ORG , the presence of the detained witness continues to be necessary , a Judge or ORG may extend the period on the same conditions as stated in ORG - rule ( B ) . ”", "The member States of ORG ( ORG ) have entered into an agreement ( Agreement between the Parties to ORG regarding the Status of their Forces , GPE , DATE , as supplemented by LAW of DATE ( subsequently amended in DATE , DATE and DATE ) – “ ORG ” ) . It regulates , among other things , criminal jurisdiction over members of their armed forces serving on each other ’s territory . Article VII of this Agreement , in its relevant parts , provides as follows .", "“ CARDINAL . Subject to the provisions of this Article ,", "a. the military authorities of the sending ORG shall have the right to exercise within the receiving ORG all criminal and disciplinary jurisdiction conferred on them by the law of the sending ORG over all persons subject to the military law of that ORG ;", "b. the authorities of the receiving ORG shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving ORG and punishable by the law of that ORG .", "a. The military authorities of the sending ORG shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that ORG with respect to offences , including offences relating to its security , punishable by the law of the sending ORG , but not by the law of the receiving ORG .", "...", "NORP In cases where the right to exercise jurisdiction is concurrent the following rules shall apply :", "a. The military authorities of the sending ORG shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to", "i. NORP offences solely against the property or security of that State , or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent ;", "ii . NORP offences arising out of any act or omission done in the performance of official duty .", "b. In the case of any other offence the authorities of the receiving ORG shall have the primary right to exercise jurisdiction .", "c. If the ORG having the primary right decides not to exercise jurisdiction , it shall notify the authorities of the other ORG as soon as practicable . The authorities of the ORG having the primary right shall give sympathetic consideration to a request from the authorities of the other ORG for a waiver of its right in cases where that other ORG considers such waiver to be of particular importance .", "The foregoing provisions of this Article shall not imply any right for the military authorities of the sending ORG to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving ORG , unless they are members of the force of the sending ORG .", "a. The authorities of the receiving and sending GPE shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving ORG and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions .", "b. The authorities of the receiving ORG shall notify promptly the military authorities of the sending ORG of the arrest of any member of a force or civilian component or a dependent .", "c. The custody of an accused member of a force or civilian component over whom the receiving ORG is to exercise jurisdiction shall , if he is in the hands of the sending ORG , remain with that ORG until he is charged by the receiving ORG .", "a. The authorities of the receiving and sending GPE shall assist each other in the carrying out of all necessary investigations into offences , and in the collection and production of evidence , including the seizure and , in proper cases , the handing over of objects connected with an offence . The handing over of such objects may , however , be made subject to their return within the time specified by the authority delivering them .", "...", "a. Regularly constituted military units or formations of a force shall have the right to police any camps , establishment or other LOC which they occupy as the result of an agreement with the receiving ORG . The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such LOC .", "b. Outside these LOC , such military police shall be employed only subject to arrangements with the authorities of the receiving ORG and in liaison with those authorities , and in so far as such employment is necessary to maintain discipline and order among the members of the force . ... ”", "An additional agreement concluded in DATE ( Agreement among GPE Parties to ORG and the other GPE participating in the Partnership for Peace regarding the Status of their Forces , GPE , DATE ) extends the territorial application of this provision to ORG member GPE participating in the Partnership for Peace .", "On DATE the government of GPE and GPE and the government of GPE , acting in pursuance of a resolution of ORG under LAW of CARDINAL DATE ) , concluded an agreement under which the GPE government undertook to host a ORG for the purpose and the duration of a trial under NORP law and procedure of CARDINAL NORP nationals accused of bombing a civilian passenger aircraft over GPE , GPE , in DATE ( Agreement between the Government of GPE and the Government of GPE and GPE concerning a NORP trial in the GPE ( with annexes ) , [ DATE ] CARDINAL United Nations Treaty Series , pp . CARDINAL et seq . ) . ORG in the GPE existed until DATE .", "Article CARDINAL of the Agreement , entitled “ LAW on the Premises of the Scottish Court ” , provided as follows :", "“ ( CARDINAL ) The LOC of ORG shall be under the control and authority of ORG , as provided in this Agreement .", "( CARDINAL ) Except as otherwise provided in this LAW , the laws and regulations of the host country shall apply within the premises of ORG .", "( CARDINAL ) NORP Scottish Court shall have the power to make regulations operative on the premises of ORG for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions . ORG shall promptly inform the competent authorities of regulations thus made in accordance with this paragraph . No law or regulation of the host country , which is inconsistent with a regulation of ORG , shall , to the extent of such inconsistency , be applicable within the LOC of ORG .", "( CARDINAL ) PERSON dispute between ORG and the host country as to whether a regulation of ORG is authorised by LAW , or as to whether a law or regulation of the host country is inconsistent with any regulation of ORG authorised by LAW , shall be promptly settled by the procedure set out in LAW [ i.e. , negotiation and consultation between the Parties ] . Pending such settlement , the regulation of the ORG shall apply and the law or regulation of the host country shall be inapplicable within the premises of ORG to the extent that ORG claims it to be inconsistent with its regulation . ”", "The GPE gave effect to the Agreement by means of ORG of Justiciary ( Proceedings in GPE ) ( ORG ) DATE ( DATE , no . CARDINAL ) , which , in its relevant part , provides as follows :", "Witnesses", "“ CARDINAL . ( CARDINAL ) Witnesses in GPE who are cited to appear for the purpose of proceedings being conducted by virtue of this Order may be cited to appear at the premises of the court .", "( CARDINAL ) Any warrant for the arrest of a witness shall be authority for him to be transferred , under arrangements made in that regard by the Secretary of ORG , to the LOC of the court .", "( CARDINAL ) It shall be competent for witnesses who are outwith GPE to be cited to appear before ORG of Justiciary sitting in the GPE in the same way as if the court had been sitting in GPE and , accordingly , subsection ( CARDINAL ) of section CARDINAL of ORG ( ORG ) Act DATE ( service of GPE process overseas ) shall have effect as if the reference to a court in GPE included the High Court of Justiciary sitting , by virtue of this Order , in the GPE . ”" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant 's son , born in DATE , was drafted into military service . On DATE he was killed during military operations in GPE . In DATE the applicant instituted proceedings for damages against ORG . She claimed that her son was sent to participate in military operations in breach of statutory provisions since he had only served for DATE while it was only permitted to send for military operations servicemen who had served DATE .", "On DATE the ORG granted the claim and awarded the applicant damages in the amount of MONEY ( ORG ) and costs in the amount of FAC . The judgment was not appealed against and became final .", "On DATE a writ of execution was issued .", "On DATE the applicant sent the writ of execution to ORG of ORG .", "On DATE ORG returned the writ to the applicant and advised her that it should be sent directly to ORG .", "On DATE the applicant sent the writ of execution to ORG .", "On DATE the applicant sent a complaint to the Minister of Finance concerning non - execution of the judgment in her favour .", "In the reply of CARDINAL DATE the applicant was informed that ORG forwarded the writ of execution to ORG . However the latter did not take necessary measures in order to execute the payment under the writ .", "On DATE the applicant sent a complaint to the Minister of Defence concerning non - execution of the judgment in her favour .", "On DATE the sum awarded on DATE was paid to the applicant ." ]

[ "6" ]

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[ "The applicant , PERSON , is a NORP national . She was born in DATE and lives in GPE .", "The applicant sued PERSON and PERSON in LOC of GPE , contesting their property rights to a house in the village of NORP located in that district . PERSON brought a counter action , claiming her property rights on certain buildings and a plot of land in the same village .", "On DATE the court dismissed the applicant 's claim and partially granted that of PERSON", "On DATE ORG upheld the judgment on appeal . The judgment thus became binding and enforceable on that date .", "Subsequently , the applicant lodged consecutive applications for supervisory review with ORG , ORG of ORG and the President of ORG of GPE . These applications were dismissed on DATE , DATE and DATE respectively .", "Under LAW , binding and enforceable judgments are amenable to supervisory review by higher judicial instances at various levels . The supervisory review procedure was repeatedly amended over DATE .", "The supervisory review procedure in force up to DATE is presented in the ORG 's judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL/CARDINAL , ORG CARDINALIX ) .", "On DATE the new Code of Civil Procedure entered into force . The provisions governing the supervisory review procedure DATE and DATE are presented in the ORG 's previous judgments and decisions ( see LOC v. GPE , no . PERSON , DATE , and LAW v. GPE , nos . CARDINAL/CARDINAL , CARDINAL , NORP , CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , PERSON and PERSON , § DATE , CARDINAL DATE ) . In particular , the new Code provided that supervisory review applications against binding and enforceable judgments could only be lodged by the parties to the proceedings and other persons whose rights and legal interests were affected by the judgments concerned . The LAW also set a DATE time - limit for lodging such applications .", "In the judgment of CARDINAL DATE ( No . ORG ) ORG of GPE found that the supervisory review procedure governed by LAW gave rise to a number of issues with regard to the principle of legal certainty enshrined in the LAW , as interpreted by ORG . ORG found in particular that binding and enforceable judgments delivered by courts of general jurisdiction could be altered in supervisory review proceedings not only consecutively but also indefinitely . The court explicitly refrained from declaring these and other shortcomings of the supervisory review procedure unconstitutional , in order to avoid a procedural vacuum that would undermine the effective administration of justice . It upheld nonetheless the obligation of the legislator to reform the supervisory review procedure so as to make it compatible with the principle of legal certainty , taking account of the case - law of ORG ResDH ( CARDINAL)CARDINAL of CARDINAL DATE of ORG .", "ORG also stated that the domestic remedies should not be considered exhausted within the meaning of LAW prior to the judgment delivered on supervisory review , as the latter may find a violation of any right and repeal the domestic decision at issue . ORG concluded that individuals should be able to complain to ORG upon completion of the supervisory review procedure , provided the latter is reformed so as to constitute an effective judicial remedy compatible with the constitutional requirements and the present judgment of ORG .", "On DATE the Law of CARDINAL DATE ( no . CARDINAL-ФЗ ) entered into force , introducing a number of further amendments to the supervisory review procedure .", "Under the new provisions , judicial decisions may be challenged in supervisory review proceedings within DATE they become legally binding . Supervisory review proceedings may be entered into by parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions , and only if other available ways of appeal have been exhausted before the decision becomes legally binding ( Article CARDINAL ) . This time - limit may be waived ( restored ) only in exceptional circumstances which exclude any possibility of lodging a complaint in time ( severe illness or incapacity of the plaintiff and so on ) , if such circumstances occurred within DATE after the contested judgment became binding ( LAW ) .", "There are several levels of supervisory review of legally binding judgments and decisions . First , presidia of regional courts exercise supervisory review of judgments and decisions delivered by lower courts and by regional courts themselves acting as cassation instances ( LAW CARDINAL(CARDINAL ) ) . Second , judgments and decisions are amenable to supervisory review by ORG of ORG of GPE ( LAW CARDINAL(CARDINAL ) ) . Third , decisions taken by ORG on supervisory review may be challenged before the ORG of ORG of GPE if they disrupt the uniformity of the case - law ( LAW ) .", "Moreover , the President or Deputy President of ORG of GPE may initiate supervisory review of binding judgments by ORG on a limited number of grounds and upon an application by the persons concerned , lodged within DATE the judgment became binding ( Article CARDINAL ) .", "A supervisory review application to a regional court is considered by the president or deputy president of this court or by a judge delegated for this purpose ( Article CARDINAL § CARDINAL ) . Applications for supervisory review which are lodged with ORG of GPE are considered by a judge of this court ( Article CARDINAL § CARDINAL ) .", "An application for supervisory review is considered by any court , except ORG of GPE , within DATE if the case file has not been requested , and within DATE if the case file has been requested from the lower instance , excluding the time elapsing between the request of the case file and its receipt . For supervisory review in ORG of GPE these time - limits are DATE respectively ; the latter may be extended by DATE by the President or Deputy President of ORG ( Article CARDINAL ) . Once it has been decided to transmit a case to the relevant instance for supervisory review , it must be examined within DATE by the court and within DATE by ORG ( Article CARDINAL § CARDINAL ) .", "The judge considers a supervisory review complaint on the basis of the material appended thereto and , where appropriate , on the basis of the case file requested from the lower instance ( LAW ) . The judge makes a decision to transmit the application for supervisory review by the relevant instance or to refuse to do so ( LAW ) . The President or Deputy President of ORG of GPE may overrule a decision of the judge of this court to refuse to transmit the application for supervisory review ( LAW ) . A similar power of the regional courts ' presidents in respect of supervisory review applications lodged with presidia of those courts was abolished ( former LAW ) .", "The grounds for quashing or varying of binding judgments on supervisory review were limited to significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect rights , freedoms and lawful interests and to safeguard public interests protected by law ( LAW ) .", "If the supervisory review instance decides to quash the judgment or decision in full or in part , it may take any of the following actions : send the case back to a lower court for a new consideration , discontinue the proceedings , restore CARDINAL of the lower court decisions , modify the decision or make its own decision without sending the case for new consideration ( Article CARDINAL § CARDINAL ) .", "The supervisory review is carried out on the basis of the arguments contained in the application . While the court may also invoke its own arguments , the supervisory review must not extend to those parts of the judgment that were not contested in the application ( LAW CARDINAL.CARDINAL ) .", "Having noted questions arising in the courts ' application of the supervisory review procedure as amended by LAW DATE , ORG of GPE clarified various points in its ruling of DATE ( No . CARDINAL ) .", "ORG stated that the DATE time - limit applies to all supervisory review instances ; it is not to be renewed after every rejection of a supervisory review complaint and application to a higher instance . On the other hand , the time spent by courts in considering supervisory review complaints should not be taken into account in the calculation of this time - limit . The court reiterated the exceptional nature of circumstances allowing this time - limit to be waived ( restored ) upon application by a physical or legal person . Courts should not take account of any such circumstance occurring DATE after the judgment became binding . A decision waiving the time - limit should be duly motivated .", "ORG reiterated the obligation of exhaustion of ordinary ways of appeal prior to application for supervisory review . It also stated that the court examining an application for supervisory review should not take account of any document which has not been examined by the court of first instance and , in certain cases , by the court of second instance .", "ORG finally drew the courts ' attention to new limits on the grounds for supervisory review enshrined in LAW , which should be read in the light of the LAW provisions . Referring to the principle of legal certainty , it stated that courts are not entitled to review a legally binding judgment merely for the purpose of obtaining a rehearing and a new judgment ; a different opinion of the supervisory review instance on the way the case should have been decided is not a sufficient reason for altering the lower court 's decision ." ]

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[ "The applicant was born in DATE and lives in ORG .", "The applicant has been serving a DATE sentence of imprisonment . At the relevant time he was detained in LOC and he had already served DATE of his sentence .", "On DATE his CARDINAL DATE daughter was hit by a bus and , because of her serious injuries , was admitted to the intensive - care unit . The applicant was informed that she had fallen into a coma and her condition was very serious .", "On DATE he made an application for compassionate leave to visit his dying daughter in the hospital . On DATE his mother made an application for compassionate leave on behalf of the applicant . On DATE the Penitentiary Judge of the ORG requested an opinion from LOC on the applicant ’s prospects for rehabilitation .", "On CARDINAL DATE the Penitentiary Judge received a negative opinion about the applicant . It stated in particular that the applicant was active in the prison subculture , was rude towards the prison officers , had been convicted of a serious crime ( incitement to murder ) and had a long prison sentence to serve .", "On DATE the Penitentiary Judge of the ORG refused the leave request because of the poor prospects of the applicant ’s rehabilitation . The order was delivered to the applicant on CARDINAL DATE .", "The applicant lodged an appeal with the Gliwice Regional Penitentiary Court on DATE .", "On DATE the applicant ’s daughter died .", "On DATE the Penitentiary Judge of ORG allowed the applicant to attend his daughter ’s funeral on DATE , under police escort .", "On DATE the Director of the ORG informed the applicant orally about the permission . The applicant asked to be able to wear a suit and handcuffs . He also requested that the escorting officers should wear plain clothes . He submits that his request was denied and therefore he decided not to attend the funeral , since he believed his appearance with handcuffs and chains on hands and legs and under an escort of uniformed and armed officers would create a disturbance during the ceremony . He maintains that his sister had been likewise informed by the Director of ORG that the applicant would have to wear his prison clothes and would have to have joined shackles ( hand - cuffs and fetters joined together with chains ) .", "The Government submitted that the applicant must have misunderstood the Director as he clearly could have attended the funeral in plain clothes and handcuffed .", "The written decision was served on the applicant on DATE , after the funeral had already taken place . The decision only specified that the applicant was allowed to attend his daughter ’s funeral under escort . It did not mention whether he would have to wear joined shackles or whether he could wear plain clothes .", "On DATE the ORG upheld the decision of DATE repeating the reasoning given by the Penitentiary Judge .", "The applicant further states that earlier in DATE his request for compassionate leave to attend his father ’s funeral had been refused .", "Article LAW § CARDINAL of LAW Sentences reads as follows :", "“ In cases which are especially important for a convicted person , he or she may be granted permission to leave prison for a period not exceeding DATE , if necessary under the escort of prison officers or other responsible persons ( osoby godnej zaufania ) . ”", "Section CARDINAL of the Rules for Execution of Imprisonment ( PERSON wykonywania kary pozbawienia wolnosci ) provides that when on leave from prison , the convict shall wear his own clothes .", "Section CARDINAL § CARDINAL of GPE ( LOC o służbie więziennej ) of DATE ( as applicable at the material time ) lists various coercive measures that can be used by prison guards including joined shackles ( “ prowadnice ” ) ." ]

[ "8" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "On DATE ORG convicted the applicant of CARDINAL counts of fraudulent breach of trust ( PERSON ) and sentenced him to a cumulative sentence of CARDINAL years’ imprisonment suspended on probation and a fine of CARDINAL ORG ) . It found that the applicant , as a liquidator employed by the GPE agency ( Treuhandanstalt ) , had embezzled a total of CARDINAL PERSON belonging to the various firms he had liquidated or to the GPE agency itself . In particular , he had received money for a stock corporation he was liquidating and , contrary to a decision made by its shareholders to pay part of the sum to ORG , had transferred CARDINAL ORG to another company to conceal damage he had previously caused . The applicant had decided to embezzle money as the GPE agency had failed to pay him the supplementary commissions he had claimed under his contracts with it . In fixing the sentence of DATE imprisonment for the most serious count of fraudulent breach of trust ( compare ‘ Relevant domestic law’ below ) , the court considered as an aggravating factor the extraordinarily high amount of damage caused , amounting to CARDINAL PERSON .", "On DATE ORG , allowing the appeal on points of law lodged by ORG solely against the fixing of the sentence , quashed ORG judgment in this respect and remitted the case to a different chamber of ORG . It left open whether , having regard to the amount of damage caused , the very mild sentence imposed could still be considered as an appropriate sanction . In any event , ORG had , inter alia , unlawfully taken into consideration grounds for granting probation when fixing the sentence itself .", "On DATE ORG sentenced the applicant to a cumulative sentence of DATE and CARDINAL months’ imprisonment – a sentence which could not be suspended on probation ( see ‘ Relevant domestic law’ below ) – for CARDINAL counts of fraudulent breach of trust . It had previously discontinued the proceedings in respect of CARDINAL counts of fraudulent breach of trust in view of the sentence the applicant had to expect for the remaining counts he had been found guilty of .", "In fixing the sentence of DATE and CARDINAL months’ imprisonment for the most serious count of fraudulent breach of trust ( compare ‘ Relevant domestic law’ below ) , ORG considered in mitigation that the applicant had confessed to the offences and regretted them , that he had no previous convictions and that he made serious efforts to redress the damage caused . Moreover , the proceedings had been lengthy and he might be prohibited from further exercising his profession as a tax consultant . Furthermore , following recent developments in the case - law , the applicant might be able to enforce the payment of supplementary commissions he had claimed from his former employer .", "As aggravating circumstances ORG took into consideration that the applicant had caused very serious damage amounting to ORG PERSON and that he had flagrantly breached his duty as a tax consultant to keep accounts for assets not belonging to him separated from his own accounts . By withdrawing and transferring money on his own motion to settle his claims against his employer at that time instead of enforcing them in court , the applicant had negligently handled the assets of others in breach of his duties and had recklessly pursued his own profit . Moreover , the court considered as an aggravating factor that the applicant had embezzled money which belonged to , inter alia , ORG , whereby , against the background of NORP history , he had touched upon a very sensitive issue .", "ORG noted that , compared to other cases in which a similarly grave damage had been caused , the cumulative sentence imposed was comparatively low , which was mainly owing to the fact that the applicant could now most probably enforce his claim for supplementary commissions before the civil courts .", "On DATE the applicant lodged an appeal on points of law . He complained that ORG had considered as an aggravating factor that his offence had affected assets belonging to ORG . This was not an element which could lawfully be taken into account in determining his penalty .", "In his submissions dated DATE , ORG argued that ORG , in referring to the fact that the applicant had embezzled money which should have been transferred to ORG , took account of the way in which the applicant had committed his offence and its background , which were permissible criteria for fixing a sentence under LAW ( see ‘ Relevant domestic law’ below ) .", "On DATE ORG , without giving reasons , dismissed the applicant ’s appeal on points of law as ill - founded .", "On DATE the applicant lodged a constitutional complaint with ORG . Setting out the course of the proceedings before the criminal courts and the reasons given for their decisions , he complained that his sentence had been fixed at DATE and CARDINAL months’ imprisonment by reference to the fact that he had embezzled assets belonging to ORG . He had to serve this sentence as , contrary to his initial sentence , it exceeded DATE and could therefore no longer be suspended on probation . He had been imposed an executable prison sentence contrary to the rule of law and arbitrarily . In particular , the courts had failed to verify whether he had known at the time of the offence in DATE that the NORP Claims Conference was affected by his acts . Its involvement had in fact become apparent only in DATE when the decision on the distribution of the assets belonging to the company in liquidation had been taken . In any event , it had been a share of CARDINAL per cent of the amount of money in liquidation which had been claimed by the heirs of former associates of the company in liquidation who were represented by ORG . Moreover , by taking this criterion into account the courts had treated proprietors differently on grounds of their race or religion contrary to the right to equal treatment .", "On DATE ORG communicated the complaint to ORG and ORG for observations . ORG ( PERSON ) arranged for the execution of the applicant ’s prison sentence to be suspended while the proceedings were pending before ORG following that court ’s informal request to do so .", "In its observations of DATE ORG recalled that according to its case - law , only foreseen or foreseeable consequences of an offence could be considered as aggravating circumstances .", "On DATE ORG declined to consider the applicant ’s constitutional complaint and declared that the motion for an injunction was therefore disposed of ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .", "ORG found that it was not necessary to consider the applicant ’s complaint in order to enforce his rights as the violation he alleged was neither severe nor did he suffer a particularly grave disadvantage by not obtaining a decision on the merits .", "The court noted that the applicant complained only that ORG , in fixing his sentence , had wrongfully considered as an aggravating factor that he had embezzled assets belonging to ORG . However , even assuming that the impugned criterion had not been taken into consideration in determining his punishment , ORG would not have imposed a different sentence . ORG , in fixing the sentence for the most severe count of fraudulent breach of trust , had not attached decisive importance to the fact that the applicant had embezzled assets belonging to ORG . It had mainly taken into account the amount of damage the applicant had caused ( DEM CARDINAL ) , the disrespect of his professional duties as a tax consultant and his reprehensible pursuit of personal profit . Having regard to the enormous damage caused by the most severe count of fraudulent breach of trust alone , the impugned criterion could not have had a decisive influence on the sentence fixed . In these circumstances , the applicant did not suffer a particularly grave disadvantage by not obtaining a decision of ORG .", "Section CARDINAL of LAW lays down the principles to be observed in determining a perpetrator ’s punishment . The guilt of the perpetrator is the basis for fixing the punishment ( section CARDINAL § CARDINAL ) . In fixing the penalty , the court shall counterbalance the circumstances being in the perpetrator ’s favour and against him , in particular his motives and aims , the extent of the breach of his duties , the manner in which the offence was executed and its consequences caused by fault of the perpetrator , his past life , personal and financial circumstances and his conduct after the offence ( section CARDINAL § CARDINAL ) .", "If a perpetrator committed CARDINAL offence and thus incurred CARDINAL term of imprisonment or CARDINAL fine , the court , when giving its judgment on these offences at the same time , shall fix a cumulative sentence ( section QUANTITY of LAW ) . The cumulative sentence shall be fixed by increasing the severest sentence or fine incurred ( section LAW ) .", "Pursuant to section CARDINAL of LAW , the court may , under certain circumstances , suspend on probation the execution of a prison term which does not exceed DATE . The court may grant probation if it can be expected that the conviction as such will already serve the convicted person as a warning and that he will not commit any further offences in the future even without the influence exerted by the execution of the sentence . Moreover , a comprehensive evaluation of the act and personality of the convicted person must reveal the presence of special circumstances ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "The applicant , a retired serviceman , considered himself eligible to receive child allowance payable by GPE to parents with minor children .", "On DATE he applied for the allowance to the social security division of the embassy of GPE in GPE , GPE .", "On DATE the social security division refused his request . They noted that the applicant , being a permanent resident of GPE , was not eligible to receive the allowance .", "On an unspecified date the applicant challenged the decision of the social security division . He lodged a complaint before ORG of GPE .", "On DATE ORG dismissed the applicant ’s complaint without consideration on the merits . In particular , the court ruled as follows :", "“ This statement of claim can not be admitted for consideration by ORG of GPE given that it was submitted in contradiction of the rules of procedure on jurisdiction ... Pursuant to the applicable legislation ... , the claims are to be submitted to the court with jurisdiction over the region where the claimant resides or where the ORG authority ... whose action is challenged is located .", "Pursuant to the [ applicant ’s ] statement , the respondent authority in the case is the social security division of ORG in GPE whose registered address is in [ GPE , GPE ] , that is , a region outside the jurisdiction of LOC of GPE .", "The applicant resides in [ GPE , GPE ] , which is also not within the jurisdiction of LOC of GPE .", "Having regard to the fact that [ the applicant ] has no ground to introduce his statement of claim before LOC of GPE and in compliance with ORG DATE and CARDINAL § CARDINAL of LAW , the court hereby", "RULES", "that the statement of the claims be returned to [ the applicant ] and he be advised to lodge it before the relevant court in GPE , GPE . ”", "On DATE ORG upheld the decision of CARDINAL DATE on appeal reiterating the reasoning of ORG .", "LAW ( Article CARDINAL ) provides that the claim against a ORG authority should be submitted to a court with territorial jurisdiction over the claimant ’s place of residence or the location of the ORG authority in question .", "LAW ( Article CARDINAL ) provides that the claim against a legal entity should be submitted to a court with territorial jurisdiction over the legal entity in question .", "The Russian Civil Code ( Article CARDINAL ) defines the location of a legal entity as the place of its incorporation which is to be indicated in its founding documents .", "Pursuant to the Regulations on the Embassy of GPE as approved by Decree no . CARDINAL of the President of GPE of DATE , the embassy of GPE is to be established by ORG in accordance with LAW GPE . The embassy is a legal entity which forms part the system of ORG of GPE .", "As regards the immunity from jurisdiction of diplomatic agents , LAW provides as follows :", "DATE", "“ CARDINAL . A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving ORG . He shall also enjoy immunity from its civil and administrative jurisdiction , except in the case of :", "( a ) A real action relating to private immovable property situated in the territory of the receiving ORG , unless he holds it on behalf of the sending ORG for the purposes of the mission ;", "( b ) An action relating to succession in which the diplomatic agent is involved as executor , administrator , heir or legatee as a private person and not on behalf of the sending ORG ;", "( c ) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving ORG outside his official functions .", "Article CARDINAL", "The immunity from jurisdiction of diplomatic agents ... may be waived by the sending ORG .", "Waiver must always be express ... ”", "Pursuant to the Agreement entered into by GPE and GPE on DATE ( Article CARDINAL ) , it is for the social security division of the NORP embassy in GPE to deal with the questions pertaining to the payment , recalculation and entitlement to pension and social benefits for retired NORP servicemen . The relevant funding shall be effected through the NORP embassy in GPE ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently serving a prison term in LOC ( “ the Prison ” ) .", "ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "By a decision of the Prison Governor of CARDINAL DATE , the applicant was found to have committed CARDINAL disciplinary offences . The relevant part of the decision reads :", "“ The accused inmate PERSON ...", "is guilty", "( CARDINAL ) in that on DATE when he was receiving his mail he started to curse and insult prison guard PERSON by telling him ‘ It is obvious how much schooling you have now when you are searching this!’ and ‘ I fuck you unschooled!’ ; and", "( CARDINAL ) NORP in that on DATE , during a search of prisoners in LAW , he insulted prison guards ORG and PERSON by calling them “ garbage ” and then prevented them from carrying out their duties by holding PERSON by the hand and starting to pull him and saying ‘ Leave this , you ORG and when they used force against him he threatened them by yelling ‘ I ’m going to kill you all!’ . ”", "As regards the offence under ( CARDINAL ) , the applicant was found to have disclosed impolite behaviour and to have verbally insulted the guards . He was punished with a prohibition on using money inside the Prison for DATE . As regards the offence under ( CARDINAL ) , he was found to have prevented an official from carrying out his duties and punished with DATE of solitary confinement .", "On an unspecified date the applicant lodged an appeal arguing that the facts of the case had been wrongly established .", "On DATE a ORG sentence - execution judge ( sudac izvršenja ORG ) in substance upheld the Governor ’s decision , in that he found that the applicant had committed CARDINAL minor disciplinary offence consisting of insults , making threats and impolite behaviour and CARDINAL grave disciplinary offence consisting of preventing an official from carrying out his or her duties . He punished the applicant with DATE of solitary confinement for the grave disciplinary offence and also upheld the other sanction imposed .", "On DATE the Prison administration lodged a criminal complaint against the applicant with the Ivanec Municipality ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u Ivancu ) alleging that on DATE the applicant had uttered threats to “ find and kill them all ” to prison guards ORG and PERSON", "In the course of the criminal proceedings a copy of the abovementioned disciplinary decision was enclosed in the case - file .", "On DATE the applicant was indicted on charges of making death threats to ORG officials in ORG ( PERSON ) . On DATE that court found the applicant guilty of CARDINAL counts of making threats . The relevant part of the decision reads :", "“ The accused PERSON ...", "is guilty", "in that at TIME on DATE in LAW , during the search of his belonging , when he was separated from the other inmates by guards ORG and PERSON because of the threat that he would burn down his cell , and , being revolted , he called guards PERSON and PERSON garbage and told them that he was going to find and kill them all . ”", "He was sentenced to DATE and QUANTITY months’ imprisonment .", "The applicant lodged an appeal whereby he complained , inter alia , that the principle of ne bis in idem had been violated . On DATE ORG dismissed the appeal , finding that the first proceedings conducted in the prison had been disciplinary and not criminal in nature . The relevant part of the judgment reads :", "“ ... a disciplinary measure is not a criminal punishment because the prison bodies which conduct disciplinary proceedings are not courts ... Even though the main purpose of a disciplinary measure ... is deterring of the perpetrator from committing a fresh disciplinary offence , a disciplinary offence ... does not involve deprivation of liberty ... ”", "On CARDINAL DATE the applicant lodged a request for an extraordinary review of a final judgment with ORG ( PERSON ) whereby he again complained , inter alia , that the principle of ne bis in idem had been violated .", "On DATE the applicant lodged a constitutional complaint whereby he also , inter alia , complained that the principle of ne bis in idem had been violated .", "On DATE ORG dismissed the request for the extraordinary review of a final judgment on the same basis as ORG .", "On DATE ORG ( Ustavni sud republike Hrvatske ) dismissed the applicant ’s constitutional complaint of DATE , endorsing the views of the lower courts .", "The relevant provisions of LAW ( PERSON , ORG nos . TIME , CARDINAL/CARDINAL , CARDINAL DATE , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL/CARDINAL , DATE , GPE and DATE ) read :", "“ ( CARDINAL ) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to CARDINAL DATE wages or sentenced to imprisonment for a term not exceeding DATE .", "( CARDINAL ) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year .", "... ”", "“ ( CARDINAL ) Whoever insults another person shall be fined ... or sentenced to imprisonment for a term not exceeding DATE .", "( CARDINAL ) Whoever insults another person ... in front of other people ... shall be fined ... or sentenced to imprisonment for a term not exceeding DATE .", "... ”", "“ ( CARDINAL ) Whoever , [ whether ] by using force or threatening that he or she will use force , prevents an official from carrying out his or her duties or in the same manner forces him or her to carry out his or her duties shall be sentenced to imprisonment for a term of DATE .", "... ”", "The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) read as follows :", "“ An infringement of LAW arises if :", "...", "there exist circumstances which exclude criminal prosecution , in particular , where ... the matter has already been finally adjudicated ;", "... ”", "“ ( CARDINAL ) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this LAW .", "( CARDINAL ) A request for the extraordinary review of a final judgment shall be lodged within DATE after the final judgment has been served on the defendant .", "... ”", "“ ORG shall decide requests for the extraordinary review of a final judgment . ”", "“ A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :", "an infringement of LAW to the detriment of the convicted person under LAW ...", "...", "an infringement of the rights of the defence at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . ”", "The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . ORG ) , read as follows :", "“ ...", "( CARDINAL ) NORP disciplinary offences are :", "...", "NORP insulting and impolite behaviour ;", "...", "( CARDINAL ) Grave disciplinary offences are :", "...", "NORP violent behaviour ;", "...", "preventing an official or any other person involved in the implementation of the programme of execution [ of prison sentences ] from performing their duties ;", "... ”", "“ ( CARDINAL ) ORG offences are punishable with disciplinary measures .", "( CARDINAL ) Disciplinary measures are :", "an admonition ;", "NORP restriction or prohibition on using money inside the prison for DATE ;", "NORP restriction or temporary deprivation of some or all privileges enumerated in sections CARDINAL and CARDINAL of this Act ;", "...", "solitary confinement for CARDINAL twenty - one days during free time or [ all ] day and night ;", "... ”", "“ ( CARDINAL ) A prisoner who commits a criminal offence liable to ORG - assisted prosecution and a fine or imprisonment of DATE shall be given a disciplinary punishment .", "( CARDINAL ) When a prisoner commits any other criminal offence liable to ORG - assisted prosecution , the prison governor shall immediately inform a competent ORG attorney of it . The prison governor may order the temporary separation of that prisoner from the other prisoners ... until a court ’s decision .", "... ”" ]

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[ "The first applicant was born in DATE and the second applicant in DATE . They live in ORG .", "The first applicant is married and has CARDINAL children . Until DATE he and his family lived in Grozny . In DATE , because of the hostilities , they moved to the neighbouring republic of ORG and settled in the village of PERSON , LOC , which is near the border with GPE . There the first applicant and his family owned and tended several cows .", "On DATE the village elder and the head of the administration went to the military unit of the border troops stationed near the village to warn them that on the following day the villagers were going to cut grass for hay in the meadows , and to indicate that the servicemen should not shoot at them . The commander of the military unit gave assurances that there would be no shooting .", "On DATE the first applicant , together with his youngest son and other villagers ( CARDINAL persons altogether , including women and children ) went to the meadow to cut grass for hay . At TIME the villagers were shot at from the nearby forest , where the troops were stationed . The first applicant ’s nephew , Mr PERSON , born in DATE , was wounded in both legs . The first applicant and other villagers tied his wounds to stop the heavy bleeding and started shouting to the soldiers , who were QUANTITY away , that they should stop shooting and that a boy had been wounded . However the shooting and shelling continued for TIME .", "The first applicant and QUANTITY women tied a handkerchief to a raised stick and walked up to the closest armoured personnel carrier ( ORG ) , shouting “ Do n’t shoot ! There is a wounded person here ! ” An officer in the ORG told the first applicant that he would ask the others not to shoot and told him to get the other men out of the field . The villagers got into the Gaz-CARDINAL minivan in which they had arrived at the meadow and went down the hill to the village .", "At the edge of the village they were met by a group of servicemen , policemen and villagers of Verkhny Alkun . There they were told that the servicemen had been attacked and had fired in response . A local police officer told them that the injured should be taken to hospital , for which purpose he had called a car , and that the men should go and see journalists at ORG of the ORG ( ROVD ) in the village of GPE ( also known as GPE ) and tell them what had happened .", "Once at the Sunzhenskiy ROVD , the first applicant and other men were placed in a cell and questioned . CARDINAL men , including the applicant and his son A. , were detained for DATE , and released on DATE . While in the ROVD , the applicant and other men were questioned by unknown men wearing military camouflage and by PERSON , the investigator of ORG . No documents were produced in respect of this detention .", "Following the opening of a criminal investigation into the attack of DATE , on DATE an investigator of ORG informed Mr PERSON that on DATE he had been granted victim status in criminal case no . DATE . The first applicant submitted several statements by other villagers about the circumstances of the events of DATE .", "On DATE the head of the PERSON village administration issued an explanation notice confirming the events of DATE as presented by the applicant .", "After his release the first applicant spent DATE in LOC hospital in GPE village looking after the wounded PERSON PERSON In the meantime , the police carried out a search in the first applicant ’s house in PERSON , of which he was informed by his wife .", "On DATE the applicant left the hospital while another relative , PERSON , remained to look after the injured man . That evening , upon his return to the hospital , he was told that PERSON had been taken to the ROVD and that he too should go there in order to provide certain explanations .", "The first applicant , who was afraid that he might be detained again , first visited the prosecutor ’s office and talked to investigator PERSON , who allegedly assured him that nothing would happen and that he would personally guarantee this . The first applicant , accompanied by his wife , then went to the Sunzhenskiy ROVD . There the applicant was separated from his wife and placed in a cell , in which there were already several detainees , including his relative Mr S. and the second applicant , whom he had not met before .", "The second applicant is an agronomist by profession . In DATE he worked as a mechanic in a boiler - house . He lived with his parents and siblings at CARDINAL FAC in the village of GPE .", "On DATE the second applicant was at home . He was planning to go with relatives to the construction site of their new house . His parents , sister , CARDINAL brothers and a relative were at home at the time and produced detailed statements about the following events .", "At TIME a group of men in civilian clothes entered the house . The second applicant recognised GPE . , the head of the NORP criminal police , and CARDINAL policemen whom he knew personally . The family members were ordered to go outside the house , where their identity documents were checked . The policemen searched the house . They then asked the second applicant to come to the Sunzhenskiy ROVD for a check . No documents were produced or submitted in respect of the search or the second applicant ’s detention .", "Once at the ROVD , the second applicant was questioned about what he had been doing on DATE . He understood from the questions that he was suspected of attacking NORP servicemen on DATE near the village of PERSON . The second applicant gave a written statement that on DATE he had been working with his brother and father at the construction site of their new house , and that neighbours could confirm this .", "The second applicant was then questioned for TIME by CARDINAL men with NORP features , who were wearing military camouflage , about the attack of DATE . They asked him , in particular , whether he knew any fighters . They told him that they suspected him of being a member of an illegal armed group , and that he would be sent to GPE – the main NORP military base in GPE . No records of the questioning were made .", "On DATE both applicants were taken to ORG , where the judge asked them for their personal details . The applicants later learned that they had been charged with resisting police officers and that they had been brought to the ROVD for that reason . On DATE a judge of ORG authorised the detention of both applicants for DATE for violently resisting the police ORG attempt to check their identity documents .", "DATE the applicants’ passports were returned to them and they thought that they would be released . Instead , a group of servicemen from the ORG unit of ORG ( “ ORG ” ) arrived and took charge of the applicants . The servicemen had “ PERSON ” inscriptions on their jackets . They put the applicants into a bus where they were forced under the seats , punched and kicked .", "The bus arrived at the base of ORG of ORG ( PERSON ) no . CARDINAL , near GPE , known to the locals as “ the CARDINALth army ” . There the beating continued . The applicants were severely beaten with rifle butts , boots , metal rods and wrenches ; they were also suffocated with plastic bags and strangled with belts . When they lost consciousness the bags were removed from their heads , and when they came round the beatings continued . The servicemen did not ask the applicants any questions , but told them that they were beating them in revenge for their killed comrades .", "Then both applicants were thrown into a helicopter . The second applicant lost consciousness again and later awoke on the floor of the helicopter , with a bag over his head , a soldier ’s feet on his back and a gun pointed at his head . The first applicant ’s head was tightly wrapped with a cloth so that he could not see anything , but he was transported in a similar manner .", "The applicants later learned that the helicopter had taken them to the LOC military base . They were thrown into a large pit in the ground and beaten for TIME . They were also subjected to other forms of torture : their hands were tightly tied with metal wire , and their ribs and hips were burned with cigarettes . The soldiers also took photographs in which they were shown placing their feet on the applicants’ heads .", "The first applicant was later taken to another pit , where he was allowed to remove the cloth from his face .", "The second applicant was taken somewhere for questioning , and for TIME he was severely beaten on his head , ribs and on the heels of his feet . He was questioned about having some connection with fighters . He was then put into the same pit as the first applicant , where he was allowed to remove the bag from his head .", "The applicants remained in the pit for DATE . They described it as QUANTITY by QUANTITY wide , and QUANTITY deep . It was roofed with a wooden cover and only a small opening was left , concealed by a camouflage net . The applicants suffered from humidity and cold , and were not given any food .", "During DATE of detention at GPE the applicants were taken out for questioning , one after the other , into a room with wooden walls and electric lighting which had a sign marked “ Chief of staff ” on the wall . They were questioned about whether they had known any fighters and asked to give names . The interrogators also read out the list of wanted persons and asked if the applicants knew any of them . No official records were made during the questioning .", "According to the applicants , they were subjected to the following forms of torture and ill - treatment : they were kicked and struck with rifle butts on different parts of their bodies , in particular on the soles of their feet ; they were burned with cigarettes and forced to sit in a bucket while being beaten . As a result of the beatings the applicants could hardly walk , the skin on their feet peeled off , and their faces and bodies were bloated and covered with haematomas . The second applicant was forced to stand for TIME with his forehead against the wall , with his hands tightly tied behind his back and legs spread widely apart . He still had clearly visible marks on his forehead DATE after the events . The soldiers also threatened the applicants with execution and put guns to their heads . On CARDINAL occasion both applicants were given a document to read which said that they had been caught trying to plant a mine on the road , that the mine had exploded and that both had died on the way to hospital .", "On DATE of detention – the applicants believed it was DATE – they were called one after the other to sign a document to the effect that they had no complaints and that they had not been subjected to any ill - treatment . The applicants first refused to sign it , but after the soldiers beat them they signed the document to avoid further beatings . They were then transferred by car , with bags over their heads , to the Sixth ORG ( ORG ) of LOC of Grozny . The applicants spent DATE in that department . The conditions of detention were satisfactory and the applicants were given food . However , on several occasions the servicemen kicked them and threatened them with torture .", "On DATE in the forest on the outskirts of the village of PERSON , LOC , unidentified persons fired automatic weapons at servicemen of the federal forces . As a result CARDINAL servicemen were killed and CARDINAL other servicemen and a villager , PERSON , received shotgun wounds .", "On DATE ORG opened criminal investigation no . CARDINAL into the events . In the course of the investigation QUANTITY persons , including the first applicant , his son PERSON and the second applicant were brought to the ROVD for enquiries concerning their possible involvement in the shooting . However , they were not detained . A search was conducted at the first applicant ’s house . The second applicant ’s house was not searched .", "On DATE the applicants were again brought to the ROVD for further enquiries . Since they did not follow the orders of the law - enforcement officers , on DATE ORG ordered their administrative imprisonment for DATE .", "Later on DATE the applicants were “ transferred ” to officers of the mobile detachment of ORG for enquiries concerning their possible participation in illegal armed groups .", "The Government submitted no information concerning the applicants’ place of detention in the subsequent period . They stated that , according to the results of the investigation , the applicants had not been held in facilities for either remand or administrative detention in GPE . Nor was the fact of their detention at the GPE military base confirmed .", "On DATE the applicants were released . They were not given any papers , and the servicemen told them that they should consider themselves lucky to be alive . At the gates of the ORG building they were met by the first applicant ’s sister and the second applicant ’s mother . The applicants were very weak and the second applicant could not walk without assistance . Both applicants were taken by their relatives to doctors for treatment .", "NORP The first applicant was diagnosed as suffering from pneumonia , the fracture of CARDINAL ribs , burns from cigarettes , partial paralysis of the left hand and bruises . He submitted no copies of medical documents but a statement from his wife , who confirmed that he had suffered from the consequences of the beatings and could not work .", "The second applicant was taken to GPE hospital on DATE and remained there until DATE . He was diagnosed with trauma to the lower back , concussion of the kidneys , chronic pyelonephritis and macrohaematuria . On DATE the second applicant was again taken to a hospital in GPE by his relatives , and remained there until DATE . In addition to the previous findings , he was diagnosed with craniocerebral injury and concussion of the head and back . The doctors noted his complaints about his loss of sight , pain in the back and head and vertigo . The second applicant continued to suffer from pain , loss of sight , convulsions and other consequences of the ill - treatment for DATE after his release . In DATE doctors advised him to undergo complicated kidney surgery , but he could not afford it .", "The applicants and their relatives complained to various official bodies about the search , arrest and ill - treatment of the applicants . In response , they received very little substantive information concerning actions taken by the authorities further to their complaints . On several occasions , they received copies of letters from various authorities informing them that their complaints had been forwarded to the local prosecutors .", "According to the applicants’ relatives , from DATE to DATE they were not informed about the applicants’ whereabouts , or the reasons for or places of their detention . By asking the military and police , they learned that at some point the applicants had been detained at the GPE military base and then transferred to ORG . However , this information was not official .", "On DATE ORG forwarded a request from the second applicant ’s father , seeking information on the reasons for the detention and whereabouts of his son , to ORG for investigation .", "On DATE and DATE the second applicant ’s mother wrote to ORG and the ORG administration respectively , asking about the whereabouts of her son after his arrest on DATE .", "On DATE ORG informed the applicants’ relatives that no official documents or reports existed in relation to the applicants’ arrest , detention or alleged transfer to GPE . The letter further stated that any transfer to GPE or another region had not been authorised by the prosecutor ’s office , and that an investigation into possible breaches of correct procedure was underway .", "On DATE the second applicant ’s mother again wrote to ORG , complaining about her son ’s illegal detention and alleged transfer to the military authorities in GPE .", "On DATE the first applicant ’s wife submitted a complaint to ORG in person , asking to be informed of her husband ’s whereabouts and the reasons for his arrest .", "After the applicants’ release they themselves applied to the prosecutors , asking that an investigation be conducted into their allegations of ill - treatment and that the persons responsible be brought to justice .", "Soon after his release from hospital ( sometime in DATE ) the second applicant submitted a detailed account of his arrest , detention and ill - treatment to ORG , indicating the names , ranks and descriptions of the servicemen who had participated in his arrest and the beatings in ORG .", "It appears that on DATE ORG refused to open a criminal investigation into the actions of the officials from ORG , on the ground of absence of corpus delicti . The applicants did not submit a copy of that document , but on DATE the second applicant , assisted by a lawyer , appealed against the decision to ORG . He sought the quashing of the decision and the opening of an investigation into his allegations of ill - treatment . The appeal also contained references to the identity of the servicemen involved and a detailed description of the events .", "On DATE ORG informed the second applicant that on that date a criminal investigation had been opened into the complaint with regard to his arrest and beatings administered by unknown servicemen of ORG , and that the investigation would be carried out by ORG .", "On DATE the ORG representative , the PERSON , wrote to ORG , asking him to open a criminal investigation into the ill - treatment of the applicants at the GPE military base on DATE . On DATE the PERSON again wrote to that prosecutor , but received no reply .", "On DATE the applicants talked to the ORG representatives in GPE , who filmed the interview . They have submitted a transcript of the videotape , in which the applicants displayed the scars still visible on their bodies and stated that they suffered from recurrent health problems . They also stated that no proper investigation had taken place into their complaints .", "On DATE ORG opened a criminal investigation in case no . CARDINAL , following the second applicant ’s complaint about alleged ill - treatment by officers of the federal forces . Criminal proceedings were instituted under LAW ( abuse of official powers ) .", "On DATE the second applicant was questioned and granted victim status in the proceedings . According to the Government ’s submissions , the second applicant stated that after he and the first applicant had been brought to the ROVD on DATE , they were transferred to unidentified persons in GPE , ORG , and then transported to ORG . They had been ill - treated on the way to GPE and in PERSON . They had been released DATE . They would not be able to identify the persons who had ill - treated them .", "On DATE GPE and PERSON , officers of ORG , were questioned .", "On DATE and DATE TIME , M.Ts . , GPE . , V.Kh . and GPE , officers of ORG , were questioned .", "On DATE the second applicant was confronted with officer GPE", "On DATE the first applicant was questioned and granted victim status in the proceedings . He made statements similar to those of the second applicant .", "On DATE the first applicant was confronted with officer DATE", "On DATE the second applicant was confronted with officer A.A.", "On DATE Mr NORP was questioned . It is not clear who he was or why his statements could have been relevant .", "On DATE PERSON , a senior officer of ORG of ORG was questioned .", "On DATE the investigation was suspended on the ground that the persons to be charged with the offence could not be identified .", "Despite the suspension of the investigation , on DATE investigator QUANTITY of ORG Office of GPE questioned PERSON , the commander of the mobile detachment of ORG as a witness .", "On DATE the decision to suspend the investigation was quashed by ORG .", "DATE . On DATE Mr GPE . and Mr A .- S.K. were questioned . On DATE Mr PERSON was questioned . It is not clear who they were or why their statements could have been relevant .", "On DATE the investigation was suspended on the ground that the persons to be charged with the offence could not be identified .", "On DATE the decision to suspend the investigation was quashed by ORG .", "On DATE Mr U.Kh . was questioned . It is not clear who he was or why his statements could have been relevant .", "On CARDINAL DATE the investigation was suspended on the ground of absence of corpus delicti .", "In DATE the materials concerning the applicants’ detention at the GPE military base were separated from case no . CARDINAL and transmitted to the military prosecutor ’s office of ORG ( UGA ) in the LOC region . The results of an enquiry subsequently conducted did not support the applicants’ allegations that they had been detained at the base . On DATE the UGA Prosecutor ’s Office refused to institute criminal proceedings , invoking the absence of corpus delicti . According to the applicants , they were never notified of this decision .", "On DATE the decision to suspend the investigation of CARDINAL DATE was quashed by ORG .", "On DATE the applicants underwent forensic medical examinations . The examination ascertained that the second applicant had a blunt injury in the lumbar region with concussion of the kidneys , which represented significant injuries ( вред здоровью средней тяжести ) . The first applicant had traces of injuries that were healing . However , because of the time that had elapsed , it was not possible to establish either how they had been caused or what degree of bodily harm they represented .", "DATE . On DATE the investigation was closed on the ground of absence of corpus delicti . The relevant parts of the decision read as follows :", "“ The investigator of ORG ... has established the following :", "On DATE officers of [ the ORG ] brought [ the applicants ] to the [ ROVD ] for an enquiry concerning their involvement in the attack on servicemen of the federal troops . Since [ the applicants ] disobeyed the police officers when being brought to the [ ROVD ] , on DATE the judge ... of ORG ordered their administrative imprisonment ... for DATE respectively .", "On DATE [ M. ] , the deputy head of ORG for ORG [ ORG администрации Сунженского района ] handed over [ the applicants ] to [ A.I. ] , the head of the criminal investigation department of the mobile detachment of ORG [ начальник уголовного розыска мобильного отряда МВД РФ по Ингушетии ] , who transferred them to servicemen of the federal troops . The latter transported [ the applicants ] in a helicopter to the village of GPE in GPE , where for a period of DATE they tortured and beat them , forcing them to confess to being members of illegal armed groups .", "On DATE , following [ the second applicant ’s ] application ... criminal proceedings were instituted ...", "...", "[ PERSON ] , who was questioned , stated that on DATE , following an order from [ ORG ] , commander of the mobile detachment of ORG , he had transported [ the applicants ] from the ORG to the territory of a military unit in GPE , where he had transferred them to servicemen who had arrived from GPE . Lieutenant Colonel [ A. Iv . ] had given him a document stating that he had received [ the applicants ] . However , ORG had not been informed that [ the applicants ] would be taken to ORG . When [ the applicants ] were transported to the territory of a military unit in GPE they had not been subjected to any physical coercion .", "During the preliminary inquiry [ ORG ] , commander of the mobile detachment of ORG , submitted that , following an order from the military unit in GPE , he had ordered [ A.I. ] to convey [ the applicants ] from the PERSON to the helicopter that had arrived from GPE . However , during the investigation [ ORG ] refused to make any statement , invoking LAW [ which guarantees the right not to incriminate oneself ] .", "With regard to [ ORG ’s ] refusal to make a statement it was decided not to institute criminal proceedings on the ground of [ the expiry of the statutory time - limits for criminal prosecution ] .", "From expert opinion no . CARDINAL in respect of [ the first applicant ] , it follows that he has CARDINAL types of injuries : healing scars of burns and healing scars of deep abrasions . However , because of the time that has elapsed it is not possible to establish the degree of bodily harm .", "From expert opinion no . CARDINAL in respect of [ the second applicant ] , it follows that he sustained a blunt injury in the lumbar region with concussion of the kidneys , which amounts to significant bodily harm .", "Therefore , from the materials of the case it follows that [ the applicants ] were unlawfully detained and subjected to coercion in the territory of GPE .", "The decision of the judge of ORG [ concerning the ORG administrative imprisonment ] was lawful and entered into force .", "Materials concerning [ the applicants’ ] unlawful detention and the application of coercion towards them were separated into a different set of proceedings and have been transferred by reason of territorial jurisdiction to the Prosecutor of GPE ...", "...", "Having regard to the foregoing , criminal case no . CARDINAL should be closed on the ground of absence of corpus delicti ... in the actions of officers of the Sunzhenskiy ROVD .", "... ”", "On DATE the decision to close the investigation was quashed by the Deputy Prosecutor of Ingushetia . He stated , in particular , that it was necessary to question Lieutenant Colonel PERSON .", "On DATE the investigation was again suspended on the ground of absence of corpus delicti .", "On DATE ORG resumed the investigation in case no . CARDINAL .", "On DATE the investigation was suspended . The applicants were notified of the suspension in a letter which carried the date of DATE but were not provided with a copy of the decision . The investigation failed to establish the applicants’ whereabouts from CARDINAL DATE to CARDINAL October CARDINAL when , according to the applicants , they were released . According to its findings , no criminal proceedings had been instituted against the applicants by the prosecuting authorities of GPE . They had not been held in facilities for either remand or administrative detention in GPE .", "According to the Government , on an unspecified date ORG applied to ORG to take measures to bring to account those responsible for the unlawful transfer of the applicants , who were subject to administrative detention , to the head of the criminal investigation department of the mobile detachment of ORG . As a result , the head of the criminal police of the ORG was dismissed and the officer of ORG , who had been in charge of the detention facility on the relevant date , was reprimanded .", "Despite specific requests from the ORG on several occasions , the Government did not submit any documents from investigation file no . CARDINAL , apart from CARDINAL pages containing the decisions to grant the applicants victim status , the decision of DATE to close the investigation and the decisions of CARDINAL DATE and DATE to reopen the investigation . They stated that disclosure of the documents would breach LAW since the file contained information related to military operations and the personal data of participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of “ the documents [ disclosing military information and personal data of the witnesses ] , and without the right to make copies of the case file and transmit it to others ” .", "On DATE the second applicant brought a civil claim before ORG for damages in respect of his allegedly unlawful detention and ill - treatment . He claimed MONEY ( RUB ) for non - pecuniary damage .", "On DATE ORG rejected the claim on the ground that the applicant had failed to comply with the procedure for out - of - court dispute resolution . The relevant part of the decision reads as follows :", "“ The present claim can not be examined for the following reasons .", "As shown in the information submitted by ORG ... the materials concerning the unlawful detention and ill - treatment of [ the second applicant ] were sent to ORG of GPE for a decision concerning territorial jurisdiction .", "Until this matter is resolved , it is not possible to examine the case , since the procedure for out - of - court dispute resolution has not been complied with . ”", "The decision could be appealed against to a higher court . It appears that the second applicant has not appealed .", "The first applicant made the following submissions concerning the events of DATE which , in his view , were related to his application to the ORG .", "On DATE a plain - clothed man of NORP origin visited him at his home and asked him to come to the LOC military base . The first applicant complied with the request . At the FAC military base he was taken to a room where an official was waiting for him . The official introduced himself as Major NORP , deputy head , senior investigator of the military investigative department of military unit no . DATE . Major NORP read out excerpts from the first applicant ’s application to the ORG and questioned him in relation to his ill - treatment in GPE in DATE . During the questioning he was typing something on his computer . Then he printed out a document and asked the first applicant to read it . The first applicant replied that he was “ bad at reading ” and that he had forgotten his glasses at home . Then , with the first applicant ’s consent , Major NORP himself read out the document , which was a record of the first applicant ’s questioning , and asked the first applicant to sign it . The first applicant signed the document and then requested and was provided with its copy , which he submitted to the ORG .", "When the first applicant returned home , his wife read out the document for him . The record contained , in particular , the following statements allegedly made by the first applicant in the course of the questioning :", "“ In the course of the questioning in GPE I was not beaten . However , [ the second applicant ] was beaten ... ”", "The minutes ... of my questioning on DATE contain a wrong record to the effect that I was beaten in the “ pit ” . I meant that [ the second applicant ] and me had been beaten by ... officers of the mobile detachment [ of ORG ] who had conveyed us from ... the PERSON to the helicopter .", "I have no complaints against servicemen of ORG and of the internal troops of ORG . I have complaints against officers of the mobile detachment of ORG .", "I can also clarify that I lodged a complaint before the representative of GPE before [ the ORG ] precisely in respect of the actions of ... officers of the mobile detachment of ORG . I did not complain about actions of servicemen of ORG and of the internal troops of ORG . ”", "On DATE the first applicant applied in writing to the head of military investigative department no . CARDINAL of military unit no . DATE . He wrote , in particular , that in the course of questioning on DATE he had never made the above statements and that the record of questioning had been forged in this part , which he had only discovered at home after the record was read out by his wife . He maintained that during the questioning he had confirmed that he had been beaten in GPE . He had merely specified that the beatings he had received there had not been as severe as those suffered by the second applicant , and not as bad as those beatings administered against both of them by officers of the mobile detachment of ORG . The applicant asked to disregard the record of his questioning on DATE .", "On DATE the first applicant ’s wife was questioned by Major NORP She provided her account of the events related to her husband ’s detention in DATE . No questions concerning the first applicant ’s application to the ORG were put to her . A copy of the record of the questioning was submitted to the ORG .", "On DATE Major NORP again questioned the first applicant , who was assisted by his counsel , PERSON The first applicant stated that he largely confirmed his submissions set out in the record of his questioning on DATE , with certain exceptions . He clarified , in particular , that during questioning in GPE in DATE he had been kicked , punched and struck with sticks . He had been beaten by CARDINAL men simultaneously . During his questioning on DATE he had intended to say that he had not been beaten as severely as the second applicant in GPE , and that the beatings there had been less severe than both had suffered in GPE . Furthermore , the first applicant submitted that he had never stated that he had no complaints against servicemen . The complaints set out in his application to the representative of GPE before the ORG related to all persons who had unlawfully detained and ill - treated him . He further stated that he had not read the record of the questioning on DATE because he had not had his glasses with him . He had signed it after it was read out by the investigator and could not explain why his statements had been recorded inaccurately . The applicant signed the record of his questioning on DATE and was provided with a copy , which he submitted to the ORG .", "NORP Until DATE criminal - law matters were governed by LAW RSFSR ( NORP Federative Socialist Republic ) . On DATE the old Code was replaced by LAW .", "Article CARDINAL of the new ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .", "Article CARDINAL of the new Code of Criminal Procedure establishes the rule that data from the preliminary investigation can not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission .", "In so far as relevant , LAW , adopted by referendum on DATE , provides :", "“ CARDINAL . Everyone has a right to liberty and personal security .", "Arrest , detention and placement in custody shall be subject to a court decision . No one may be detained longer than TIME before the court decision is taken . ”", "The RSFSR Administrative Code ( PERSON об административных правонарушениях РСФСР ) , in force until DATE , contained the following provisions .", "Under LAW the police and other competent authorities could subject a person to administrative detention in order to prevent an administrative offence , to establish a person ’s identity , to draw up a report on administrative offence where such a report was necessary and could not be drawn up on the spot , and to ensure effective proceedings or the enforcement of administrative sanctions .", "Article CARDINAL provides that a report on administrative detention was to contain the date and place where it was drawn up , the name and position of the officials who prepared it , information on the detained person , and the exact time and reasons for the detention . It should be signed by the official and the detained person . Should the latter refuse to sign the report , a record to this effect was to be made in the report . At the request of the detained person , his relatives , his employer or educational institution was to be notified of the place of his detention .", "Article CARDINAL provides a list of competent authorities and circumstances where they could effect administrative detention . In particular , officials of the interior ( policemen ) could effect administrative detention for a failure to comply with a lawful order of a police officer .", "Article CARDINAL provides , in particular , that the term of administrative detention was not to exceed TIME , except for certain categories of offenders , including those who forcefully resisted the lawful order of the police . Those could be detained as long as necessary until their case was considered by a judge or a police superior .", "Under Article CARDINAL , administrative imprisonment could be applied in exceptional circumstances by a judge as an administrative sanction in respect of certain administrative offences , for a term no longer than DATE .", "Under LAW an order on administrative imprisonment was immediately enforceable .", "Article CARDINAL provides that persons subjected to administrative imprisonments should be held in facilities determined by authorities of the interior . The term of administrative detention was to be counted towards the term of administrative imprisonment .", "ORG . Under LAW on the Internal Regime of Special Facilities for FAC of DATE ( Правила внутреннего распорядка специальных приемников для содержания лиц , арестованных в административном порядке , утвержденные приказом МВД РФ от DATE г. N CARDINALдсп ) , individuals are placed in the special facilities on the basis of an order on administrative imprisonment issued by a competent authority .", "Section CARDINAL of the ORG provides that persons delivered to the special facilities are to be registered in the facility’ register . A card is to be filled in respect of each detained person , with information on the detainee , the term of detention and the authority which ordered the detention , and the times of placement and release from the facility . Likewise , a personal file is to be kept in respect of each detainee . The file should contain the order on administrative imprisonment , the report on the search conducted upon the person ’s admittance to the facility and other documents related to the detainee and his conduct in the facility during the detention term . Personal files should be stored for DATE ." ]

[ "13", "3", "38", "5" ]

[ "5-1" ]

[]

[ "34" ]

[]

[]

[ "PERSON is a workman and lives in GPE .", "On DATE he was arrested by the police , who had found certain items of stolen property in his possession . On DATE the police brought him before the ORG magistrate ( pretore ) , who immediately after questioning him confirmed his arrest . The magistrate also heard CARDINAL other accused , PERSON and PERSON , on DATE and DATE .", "On DATE the magistrate issued a warrant for the applicant ’s arrest , but not for that of Mr B. or PERSON , and initiated immediate proceedings ( giudizio direttissimo ) against him and his co - accused . He set a hearing date of DATE , and found that there was sufficient evidence pointing to PERSON guilt - namely the discovery of the articles in question at his residence - and that the alleged offences were serious , having regard inter alia to the applicant ’s previous history .", "The hearing lasted for TIME . The applicant stated , as he had also done when questioned on CARDINAL DATE , that he had bought the items in question from a stranger who had told him that he needed money to pay a bill . He admitted , however , that he had not believed this explanation , but had thought that the vendor had stolen them from his relatives or friends in order to obtain money to purchase drugs .", "The magistrate also heard Mr B. and PERSON and CARDINAL witnesses . The public prosecutor ’s office , which was represented by counsel as permitted in certain cases by section DATE of LAW no . CARDINAL of DATE on the organisation of the courts , requested CARDINAL months’ imprisonment for PERSON .", "The magistrate considered that the applicant had not acquired the items in question in good faith , and imposed a suspended sentence of DATE imprisonment and fined him MONEY . The judgment was filed with DATE , on CARDINAL DATE .", "Mr PERSON did not appeal .", "The magistrate has jurisdiction over offences punishable by imprisonment for DATE or by a fine or both , and also over a number of offences specifically mentioned in LAW ORG ) in respect of which \" a person arrested in flagrante delicto shall immediately be brought before the magistrate to be tried \" .", "Under the heading \" Immediate trial procedure \" ( Giudizio direttissimo ) , LAW in force at the time provided as follows :", "\" ... In the case of offences within the jurisdiction of the magistrate ( pretore ) , the police officers who have arrested a person in flagrante delicto or in whose charge an arrested person has been placed shall bring him directly before the magistrate , shall on the latter ’s instructions ( even if merely oral ) summon the victim and the witnesses , and shall notify defence counsel chosen [ by the arrested person ] or appointed by the court .", "If the magistrate is not sitting , the police officers who have effected the arrest or in whose charge the arrested person has been placed shall immediately inform the magistrate thereof and shall produce the arrested person at a hearing , arranged by the magistrate , within TIME from the arrest .", "The magistrate before whom the arrested person is brought shall authorise the police officer to make an oral report and shall then question the accused in order to confirm the arrest .", "If the arrest is confirmed and the magistrate does not consider that he should release the accused , he shall immediately initiate proceedings according to the direttissimo procedure .", "At the request of the accused , the magistrate may grant an adjournment of not DATE for him to prepare his defence .", "...", "The magistrate shall exercise the powers conferred on the public prosecutor ’s office and the magistrate in accordance with the preceding ORG . \"", "Under the heading \" Conduct of criminal proceedings by the public prosecutor ’s office or the magistrate ( pretore ) \" , LAW ORG stated that :", "\" The public prosecutor ’s office or , for offences within his jurisdiction , the magistrate shall initiate or conduct criminal proceedings following the procedure provided for by law in accordance with LAW .", "...", "The public prosecutor ’s office shall , if it considers that there is no occasion to initiate criminal proceedings , request the investigating judge to make an order ( decreto ) [ to this effect ] ...", "For the purpose mentioned in the preceding paragraph , the magistrate shall make an order [ discontinuing the proceedings ] and shall notify the public prosecutor , who may request the file and decide to continue the proceedings . \"", "Article CARDINAL provided that :", "\" In the case of offences within his jurisdiction , the magistrate ( pretore ) shall , before making an order committing for trial or proceeding to give judgment in ‘ NORP proceedings or by ‘ PERSON , order or carry out any police measures or summary investigative measures which he deems necessary ... \"", "ORG has had occasion to decide on the compatibility with various provisions of LAW of the magistrate ’s dual function of investigation and judgment .", "In CARDINAL decisions , no . CARDINAL of DATE ( ORG , I , p. CARDINAL ) and no . CARDINAL of DATE ( Foro It . DATE , I , p. CARDINAL ) , it dismissed the objections of unconstitutionality put forward in this respect .", "In a more recent decision of DATE ( no . CARDINAL , ORG . DATE , I , p. CARDINAL ) , ORG invited the legislature to take account , in the context of the reform of LAW , of the development in legal thought towards drawing a clear distinction between the above CARDINAL functions . It stated that in the absence of a legislative measure it would have to reconsider its case - law .", "The question has now been resolved , as the new code , which came into force on DATE and adopted the adversarial system , provides for such a separation in respect of proceedings in the magistrate ’s court . In ORG CARDINAL to CARDINAL it institutes a public prosecutor ’s office at each magistrate ’s court ( pretura ) ." ]

[]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "Mr. PERSON , an NORP citizen born in DATE , had left GPE ( GPE ) in DATE to take up residence in ORG ( in the province of GPE ) . He was arrested on DATE , placed in detention on remand in GPE and then charged with conspiracy and being an accomplice to the abduction on DATE of a businessman ; the latter had been freed by his kidnappers on DATE after payment of a substantial ransom .", "The applicant was acquitted on DATE by ORG ( ORG ) for lack of sufficient evidence , but convicted on DATE by ORG which sentenced him to DATE imprisonment and a fine .", "The criminal proceedings in question are not in issue , at least not in direct issue , in the present case .", "Under LAW ( first paragraph , item CARDINAL ) of the NORP Code of Criminal Procedure , the applicant ’s detention on remand – during which he married his fiancée by whom he shortly afterwards had a son - could not continue for DATE ; it thus had to terminate on CARDINAL DATE at the latest .", "On DATE , Mr. PERSON was removed from GPE gaol and taken under police escort to the island of Asinara , which lies off GPE .", "On DATE , ORG ( questore ) had in fact sent to ORG prosecutor ( procuratore della PERSON ) a report recommending that Mr. PERSON be subjected to the measure of \" special supervision \" provided for in LAW no . CARDINAL of DATE ( \" LAW \" - see paragraphs CARDINAL below ) and section CARDINAL of Act no . CARDINAL of CARDINAL DATE ( \" the DATE LAW paragraph CARDINAL below ) . The report referred to indications that although the applicant claimed to be working in the building trade , he was actually engaged in illegal activities and belonged to a band ( cosca ) of mafiosi ; it listed CARDINAL convictions pronounced against him in DATE , DATE , DATE and DATE and described him as \" CARDINAL of the most dangerous \" of individuals .", "Following an application made in accordance with this recommendation by the ORG prosecutor on DATE , ORG ( CARDINALnd ORG ) directed on DATE that Mr. PERSON be placed under special supervision for DATE , the measure to be combined with the obligation to reside \" in the district ( comune ) of the island of Asinara \" , a locality that had been designated by ORG . In its decision the ORG further directed that the applicant should :", "- start looking for work within DATE , establish his residence in the prescribed locality , inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them ;", "- report to the supervisory authorities twice a day and whenever called upon to do so ;", "- lead an honest and law - abiding life and not give cause for suspicion ;", "- not associate with persons convicted of criminal offences and subjected to preventive or security measures ;", "- not return to his residence TIME and not go out before TIME , except in case of necessity and after having given notice in due time to supervisory authorities ;", "- not keep or carry any arms ;", "- not frequent bars or TIME - clubs and not take part in public meetings ;", "- inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long - distance call .", "Mr. PERSON appealed to ORG ; his appeal had no suspensive effect ( section CARDINAL paragraph , of LAW ) and so did not prevent the contested decision from being put into effect .", "In a memorial of DATE , his lawyer , Mr. PERSON , challenged the decision on a number of grounds , alleging that it was invalid and unjustified . He submitted , in particular , that on Asinara his client could neither find employment nor live together with his wife and child ; there was thus an inconsistency between the reasoning and the operative provisions of the decision of DATE . In addition , the decision referred to a non - existent district since in point of fact the island was no more than a sub - division of the district of GPE ( GPE ) . Mr. PERSON requested ORG , in the first place , to quash the decision in its entirety ; in the alternative , to limit it to special supervision without an order for compulsory residence ; in the further alternative , to designate a district in LOC where the applicant might find work , live with his family , meet with his lawyer in order to prepare his defence in the criminal proceedings and attend , as and when necessary , an urological clinic to receive the treatment required by his state of health .", "On DATE , ORG ( ORG ) , by way of a preliminary ruling on submissions to the same effect by the public prosecutor , ordered that Mr. PERSON be transferred to the urological clinic of PERSON hospital ( GPE ) ; it also instructed its registry to seek information from the carabinieri in PERSON on the possibility of finding accommodation for CARDINAL people and work on the island of Asinara .", "However , on DATE the prosecuting authorities requested ORG to revoke or suspend the aforesaid order . They pointed out that during his detention on remand Mr. PERSON had refused to submit to analyses in ORG urological clinic ; that experts considered that he was probably not suffering from any serious illness ; that his covert intention was to use hospitalisation as a means of escape ; that section CARDINAL of LAW did not prohibit an order for compulsory residence in a given locality within a district ; that ORG had so held in CARDINAL judgments , CARDINAL of which concerned precisely the island of Asinara , which was , besides , \" potentially \" CARDINAL of the best places in GPE for tourism .", "ORG consequently suspended its order on DATE and directed that further hearings on the matter be held on DATE .", "The officer commanding the criminal investigation department of ORG wrote , also on DATE , to the ORG of appeal with the following information which had been supplied by the PERSON carabinieri :", "- for those subjected to compulsory residence on Asinara , there were CARDINAL flats suitable for accommodating a family ; they were occupied by the families in turn for periods of DATE ;", "- the island offered no possibility of permanent employment ; there was just CARDINAL firm which employed CARDINAL residents in turn for short spaces of time ;", "- the police stationed on Asinara were in a position to effect the requisite supervision .", "On DATE and CARDINAL DATE , Mr. PERSON filed memorials with ORG challenging the \" fanciful \" statements of the prosecuting authorities and requesting that further enquiries be undertaken in the shape of an investigation on the spot ( sopral - luogo ) . In his view , his client was physically and mentally a prisoner ( carcerato ) on Asinara ; he was vegetating there in conditions worse than those of his detention on remand . The applicant himself , in a letter of DATE , described the island as a \" veritable concentration camp \" .", "On DATE , ORG ( CARDINALst Chamber ) dismissed the appeal and confirmed the decision of DATE . As regards Mr. PERSON ’s health and the absence of violation of section CARDINAL of LAW , ORG relied in substance on the arguments that had already been invoked by the prosecuting authorities on DATE ( see paragraph CARDINAL above , second sub - paragraph ) . It found no good reason for regarding Asinara as an unsuitable locality for compulsory residence . It emphasised that the contested measure was designed to separate the individual from his milieu and render his contacts with it more difficult . This requirement took precedence over other problems , such as the absence of regular employment and of adequate accommodation for a family ; moreover , at the time of his marriage the applicant could not have hoped to live with his wife and son since he was then in detention on remand and under a serious charge . His criminal record , the most disquieting criminal activities in which he engaged under the cloak of honesty , his violent character and his exceptional cunning showed that he presented a marked danger to society ( spiccata pericolosità sociale ) . Supervision of such an individual was sufficiently important to justify the curtailment of other individual legal interests taken into account by the law ( l’affievolimento di alter situazioni giuridiche soggettive che la legge prende in considerazione ) .", "Mr. PERSON appealed to ORG . In a supplementary memorial of DATE , his lawyer put forward CARDINAL grounds of appeal pursuant to Articles CARDINAL par . CARDINAL and CARDINAL par . CARDINAL and CARDINAL of LAW :", "( i ) It was not permissible under LAW to make an order for a person ’s compulsory residence - which amounted to subjecting him to a \" judicial sanction \" limiting his private and family liberty ( libertà privata e famigliare ) - on any scrap of land ( qualunque pezzo di terra ) , such as Asinara , regardless of its area ( quali che siano i CARDINAL quadrati entro cui si deve osservare il soggiorno ) , rather than on the whole of the territory of a district . The contrary interpretation adopted by ORG was \" restrictive and aberrant \" and disregarded a man ’s right to private and family life ( alla vita privata e famigliare ) which was guaranteed by LAW and LAW . If ORG were nevertheless inclined to follow that interpretation , it should refer the matter to ORG .", "( ii ) ORG statement that Mr. PERSON did not need any particular medical treatment was a misrepresentation of the facts ( travisamento dei fatti ) .", "The law did not permit any curtailment of legal interests which it protected , conferred and made mandatory ( non consent[iva ] veruno affievolimento di situazioni giuridiche tutelate , volute e pretese proprio dalla legge ) . It followed that ORG had applied the law incorrectly ( errata applicazione della legge ) when it held that the necessity for special supervision justified such curtailment .", "( iii ) Finally , the reasoning was contradictory ( contraddittorietà ) in various respects . Thus , ORG had - without an investigation on the spot - deemed Asinara to be suitable for the execution of the measure complained of although the applicant would not there be able to comply with the directives contained in ORG decision .", "Mr. PERSON therefore requested ORG to quash the judgment of CARDINAL DATE after transmitting the file to ORG for the purpose of obtaining a ruling that section CARDINAL of LAW , as interpreted by ORG , was incompatible with LAW , fourth paragraph , and LAW paragraphs , of the LAW .", "LAW concerns \" personal liberty \" : the fourth paragraph provides that \" the infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence \" . The second paragraph of LAW the presumption of innocence ; the third paragraph stipulates that \" punishment may not take the form of treatment repugnant to feelings of humanity and must be aimed at re - education of the convicted person \" .", "ORG gave judgment on DATE . It accepted the submissions of the public prosecutor attached to ORG and dismissed the appeal as being devoid of foundation .", "As regards the first ground of appeal , ORG pointed out that its settled case - law established that under certain conditions , which were satisfied in the present case , an order for compulsory residence could refer to a given locality within a district . Likewise , the \" curtailment \" of , and the \" undoubted limitations \" on , \" various rights of the individual concerned \" stemmed directly from the application of measures which had on numerous occasions been recognised to be in conformity with the LAW , for example in a judgment delivered by ORG on DATE .", "As regards the second ground , ORG held that in the particular circumstances ORG had been right in turning down the argument concerning Mr. PERSON ’s state of health .", "As regards the third ground , ORG perceived no contradiction since the intended object was to remove the applicant from GPE and to separate him from the members of the mafia who carried on their activities there without hindrance .", "The ORG also declared the question of constitutionality raised by the applicant to be manifestly ill - founded . There again , the public prosecutor had cited the above - mentioned judgment of DATE ; he had in addition referred to the administrative nature of the decision designating the locality ( natura amministrativa della determinazione del luogo ) .", "On DATE , Mr. PERSON made CARDINAL applications to ORG .", "The first application was addressed to the President of ORG in his capacity of judge supervising the execution of sentences ( giudice di sorveglianza ) . It requested him to cancel ( abolire ) the compulsory residence order , maintaining that if the President , or someone designated by him for the purpose , were to visit Asinara , he would be left in no doubt that the obligation to live there was contrary to the law , the legislation , justice and individual human rights .", "The second application invited ORG to substitute for Asinara a district where Mr. PERSON could work , not come into contact with suspects ( indiziati ) and live with his wife and son who had been obliged to leave the island since their permit to reside there had expired .", "The lawyer referred to an Order of DATE concerning an appeal by CARDINAL PERSON ; ORG had stated therein that it was for the judge supervising the execution of sentence to make an appraisal of living conditions on Asinara .", "The CARDINALnd ORG gave its decision on DATE . First of all , it affirmed that the implementation of preventive measures was a matter within the competence of the police authorities ( pubblica sicurezza ) and not of the judge supervising the execution of sentences . It added that exigencies of the protection of society justified the special form of isolation undergone by those sent to Asinara , namely individuals who were extremely dangerous . However , those exigencies necessitated neither separating those concerned from their families nor depriving them of regular employment . Accordingly , ORG , whilst rejecting both applications , directed that the text of its decision be communicated to the Minister of the ORG and to the ORG questore .", "On DATE , the GPE questore requested ORG to order Mr. PERSON ’s transfer to the district of ORG , in the province of ORG , on the NORP mainland . The reason advanced was that the simultaneous presence on Asinara of the applicant and of his co - accused ( coimputato ) , PERSON , who was also in the process of \" serving \" ( scontare ) a compulsory residence measure , might have unfortunate repercussions on the ensuing stages of the criminal proceedings and , above all , on security on the island .", "ORG ( vacation ORG ) gave a decision to that effect , and for the same reasons , on DATE ; it specified that the remainder of its decision of CARDINAL DATE ( see paragraph CARDINAL above ) was to continue in force .", "Mr. PERSON had to remain at ORG until DATE , on which date the DATE period fixed by the last - mentioned decision expired .", "Asinara lies off the north - west tip of GPE . The island , which is long and narrow with a rugged terrain , measures QUANTITY . at its greatest length . Whilst the island as a whole covers QUANTITY km . , the area reserved for persons in compulsory residence represented a fraction of not CARDINAL sq . km . This area was bordered by the sea , roads and a cemetery ; there was no fence to mark out the perimeter . CARDINAL of the island was occupied by a prison .", "ORG , the island forms an integral part of the district of GPE , a small NORP coastal town TIME away by boat . The southernmost point of the island can also be reached in TIME if one embarks at Stintino , to the north of GPE . Sea communications are interrupted during very bad weather .", "The principal settlement on the island , GPE d’Oliva , houses nearly all of the island ’s permanent population - CARDINAL people ; this population comprises the prison staff and their families , schoolteachers , a priest , the post office employees and a few tradesmen .", "The persons in compulsory residence were lodged in the hamlet of ORG which consists mainly of a former medical establishment and certain other buildings including a school , a chapel and a carabinieri station where the applicant had to report twice DATE ( see paragraph CARDINAL above ) .", "The ORG maintained before the ORG that one could circulate at will within ORG . According to Mr. PERSON on the other hand , an instruction issued by the officer in charge of the carabinieri restricted movement for persons in compulsory residence to a radius of QUANTITY .", "Persons in compulsory residence had no access to the prison zone or to ORG d’Oliva . The inhabitants of the latter village could , in contrast , visit ORG whenever they pleased , whereas outsiders - such as tourists - were in principle not allowed to go there .", "Persons in compulsory residence could apply for authorisation to visit GPE or the NORP mainland if they had good reasons , such as medical treatment , family grounds or compliance with an order of the judicial authorities .", "The Government stated that authorisation was \" normally \" given on production of the appropriate documents of following a brief police enquiry , but according to the applicant it was very difficult to obtain . Even in the case of urgent medical treatment , so he contended , there was a long delay , sometimes as much as DATE . In any event , such trips were made under the strict supervision of the carabinieri .", "There existed the additional possibility of going in turn to PERSON to buy provisions , likewise after authorisation and under supervision . The frequency of the crossings as well as the number of participants were the subject of dispute . The Government spoke of CARDINAL persons per week , whereas for Mr. PERSON it was just one ; he claimed that he had had to wait DATE before receiving the necessary permission .", "Most of the persons in compulsory residence were housed in CARDINAL buildings belonging to the former medical establishment ; these buildings were fairly large and consisted principally , so it seems , of bedrooms with CARDINAL beds .", "A third building , a small construction known as the \" LOC \" , was allocated to \" residents \" ( soggiornanti ) who were accompanied by their families . The \" LOC \" contained CARDINAL flats each comprising a bedroom and a kitchen .", "The applicant lived in CARDINAL of the main buildings or in the \" LOC \" , depending upon whether he was alone or with his family . He could not go out TIME , except in case of necessity and after having notified the authorities in due time ( see paragraph CARDINAL above ) .", "These various buildings were somewhat dilapidated . According to Mr. PERSON , their state of disrepair was such as to render them almost uninhabitable . For the Government , on the contrary , the condition of the buildings was \" acceptable \" up to the time when some of their occupants committed acts of vandalism , an occurrence not denied by the applicant .", "The medical service at ORG was provided by the prison doctor . He lived at GPE d’Oliva but could be reached by telephone and be on hand within the space of TIME .", "Before the Commission , the Government submitted that there was a dispensary at ORG , with a male nurse in attendance ; the applicant disputed the presence of any nurse .", "When persons in compulsory residence needed to be hospitalised or to consult a specialist , they were sent to the ORG hospital and university clinics in GPE . Such journeys required authorisation from the competent court - ORG in the applicant ’s case ( see also paragraph CARDINAL above ) .", "The Government medical officer for GPE was responsible for supervising health and sanitary conditions at GPE . While the Government considered the level of the conditions to be good , in Mr. PERSON ’s view they left much to be desired . In particular , he complained of the lack of any arrangements for removing rubbish ( see also paragraph CARDINAL below ) .", "Persons in compulsory residence could apply to the administrative authority for permission to have their nearest relations join them on the island and stay with them either in the \" LOC \" ( see paragraph CARDINAL above ) or , failing that , in the rather confined bedroom - QUANTITY by QUANTITY - allocated to each of them .", "The Government stressed before the ORG that the shortage of water on Asinara , which had neither a spring nor an aqueduct and was supplied periodically by navy tankers , made is necessary to limit the number of persons authorised to stay there .", "Initially , the applicant ’s wife and son and also , from time to time , his parents - in - law and nephew lived together with him .", "On DATE , the members of his family were ordered to leave the island ; their residence permits had expired on CARDINAL DATE and he had not applied for their renewal . They were , however , able to return at DATE and stayed with him until his departure for ORG ( see paragraph CARDINAL above ) .", "There is a chapel at ORG . According to Mr. PERSON , it remained closed except for religious services at DATE and GPE . The ORG submitted in reply that the religious authorities - there was a priest living at GPE d’Oliva – would willingly have opened the chapel for services at any time had they been asked to do so , but that no one had ever made such a request .", "The applicant also claimed that a mass was celebrated DATE by the prison chaplain , but on premises situated outside the area in which persons in compulsory residence could move freely ( see paragraph CARDINAL above ) .", "For persons in compulsory residence , the prospects of employment were limited to the openings offered by a firm at ORG , GPE - Costruzioni edili , which were somewhat modest CARDINAL persons in DATE and DATE . The Government submitted that Mr. PERSON had shown no interest at all in this possible source of work . PERSON did , however , produce a certificate from GPE showing that he had worked for the company from DATE to DATE and had subsequently made repeated and pressing requests for employment , but without success .", "Persons in compulsory residence could obtain books and newspapers at ORG , either themselves or through other people who went there . They had the use of CARDINAL television set according to the applicant , several sets according to the Government . The existence of communal canteen and recreation facilities was also the subject of dispute before the Commission .", "Mr. PERSON had to give to the authorities prior notice of the name and number of the person telephoned or telephoning whenever he wished to make or receive a call ( see paragraph CARDINAL above ) . On the other hand , his correspondence in the form of letters and telegrams was not monitored .", "On DATE , the applicant sent a letter to the GPE pretore in which he confessed that he had not discharged certain of the obligations imposed on him by ORG on DATE ( see paragraph CARDINAL above ) , namely seeking employment , looking for a fixed residence and not associating with other \" residents \" and criminal elements . He stated that he had tried in vain to comply with these directives and that the officer in charge of the carabinieri on Asinara had never raised any objection despite section CARDINAL of Act no . CARDINAL of DATE ( see paragraph CARDINAL below ) . No action was taken on his letter .", "In addition , on DATE all the persons in compulsory residence addressed a collective protest to the PERSON questore . They claimed ( a ) the allocation of a suitable house to each of them ; ( b ) permanent access to ORG by members of their families ; ( c ) work opportunities capable of providing maintenance for them and their families , the subsidy of CARDINAL or CARDINAL ORG paid by ORG not being sufficient for the purpose ; ( d ) the mooring at ORG , instead of PERSON , of the boat used for transporting them ; ( e ) the right to go individually and at least once DATE to PERSON to purchase food supplies ; ( f ) the reopening of the post office at ORG ; ( g ) the improvement of the health and sanitary conditions in the inhabited zones and adjoining areas ; ( h ) on - the - spot medical assistance and the possibility of consulting specialists without delay ; ( i ) more humane treatment from the bodies coming under the authority of the police headquarters ; ( j ) proper upkeep of the LOC ; ( k ) installation of a second telephone .", "The Government asserted that they thereupon took certain steps to satisfy some of these requests , in particular as regards items ( a ) , ( b ) , ( d ) and ( f ) .", "The situation of the \" residents \" at ORG was also criticised in the press . The administrative authorities investigated possible remedial measures but , in the face of the expense involved and time needed , did not pursue the matter . In consequence , ORG decided in DATE to strike ( depennare ) the island out of the list of places for compulsory residence . By that date Mr. PERSON had been living at ORG for DATE ( see paragraph CARDINAL above ) ; however , CARDINAL of the documents filed show that his application to the Commission was not unconnected with the ORG ’s decision . The last individuals in compulsory residence left Asinara on DATE .", "The treatment complained of by the applicant was based on Act no . CARDINAL of DATE and Act no . CARDINAL of CARDINAL DATE .", "This Act makes provision for a variety of preventive measures which can be taken against \" persons presenting a danger for security and public morality \" ( misure di prevenzione nei confronti delle persone pericolose per la sicurezza e per la pubblica moralità ) .", "Under LAW , the LAW applies to , amongst others , \" idlers \" and \" habitual vagrants who are fit for work \" ( gli oziosi e i vagabondi abituali , validi al lavoro ) , \" anyone who is regularly and notoriously involved in illicit dealings \" ( che sono abitualmente e notoriamente dediti a traffici illeciti ) and individuals who , by reason of their behaviour and style of life ( tenore di vita ) , must be considered as habitually living , even in part , on the proceeds of crime or on the rewards of complicity therein ( con il favoreggiamento ) , or whose outward conduct gives good reason to believe that they have criminal tendencies ( che , per le manifestazioni cui abbiano dato luogo , diano fondato motivo di ritenere che siano proclivi a delinquere ) .", "The Chief of Police may send to such persons a warning ( diffida ) in which he will call on them to mend their ways and notify them that , if not , the measures mentioned in the subsequent sections will be put into effect .", "A report by ORG ( see paragraph CARDINAL above ) indicates that Mr. PERSON received such a diffida in GPE on DATE that is well before the events prompting his application to the Commission .", "In the case of individuals who present a danger for public security or morality and are found elsewhere than at their place of residence , the Chief of Police may also send them back to that place and forbid them to return without prior authorisation or until after the expiry of a period not exceeding DATE to the district from which they are being excluded ; non - compliance with such an order will render them liable to a penalty of \" arrest \" ( arresto ) of DATE ( section CARDINAL ) .", "If an individual presenting a danger to public security or morality has not mended his ways despite the warning , he may , under section CARDINAL , be placed under special police supervision ( sorveglianza speciale della pubblica sicurezza ) ; if need be , this may be combined either with a prohibition on residence in CARDINAL or more given districts or provinces or , in the case of a particularly dangerous person ( particolare pericolosità ) , with an order for compulsory residence in a specified district ( obbligo del soggiorno in un determinato comune ) .", "Only ORG of the chief town of the province has power to order these measures ; it will do so on the basis of a reasoned application by the Chief of Police to its President ( section CARDINAL , first paragraph ) . ORG must give a reasoned decision ( provvedimento ) in chambers within DATE . It will first hear the public prosecutor ’s department and the person concerned , the latter being entitled to submit written pleadings and to be assisted by a lawyer ( section CARDINAL , second paragraph ) .", "The prosecuting authorities and the person concerned may , within DATE , lodge an appeal which does not have suspensive effect ; ORG has to give a reasoned decision ( decreto ) in chambers within DATE ( section CARDINAL , fifth en sixth paragraphs ) . That decision may in turn and on the same conditions be the subject of a further appeal to ORG which must give its ruling in chambers within DATE ( section CARDINAL , seventh paragraph ) .", "DATE . When adopting one of the measures listed in section CARDINAL , ORG will specify for how long it is to remain in force - not less than one and not DATE ( section CARDINAL , fourth paragraph ) - and will give directives with which the person in question must comply ( section CARDINAL , first paragraph ) .", "In the case , as here , of an individual who has been placed under special supervision because he is suspected of living on the proceeds of crime , ORG will direct him to look for work within an appropriate time , to establish his residence and advise the police authorities ( autorità di pubblica sicurezza ) thereof and not to leave it ( allontanarsi ) without first informing them ( section CARDINAL , second paragraph ; see paragraph CARDINAL above ) .", "In all cases , ORG will order the individual to lead an honest and law - abiding life ; not to give cause for suspicion ; not to associate with persons convicted of criminal offences and subjected to preventive or security measures ; not to return to his residence at TIME after , and not to go out in TIME , a specified time , except in case of necessity and after having given notice in due time to the authorities ; not to keep or carry any arms ; not to frequent bars or TIME - clubs ; not to take part in public meetings , etc . ( section CARDINAL paragraph ; see also the fourth paragraph of that section and paragraph CARDINAL above ) .", "Anyone who , like Mr. PERSON is subject to a compulsory residence order may also be directed not to leave ( andare lontano ) his house without notifying the supervisory authorities ( autorità preposta alla sorveglianza ) and to report to them on DATE and whenever called upon to do so ( section CARDINAL paragraph ; see paragraph CARDINAL above ) . The person concerned will be issued with a card which he must carry with him and show to the police whenever so requested ( section CARDINAL paragraph ) .", "The Chief of Police is responsible for the implementation of these various measures ( section CARDINAL , first paragraph ) . On application by the person concerned and after the police have been heard , the decision ordering the measures may be revoked or varied by the authority ( ORG ) which issued it , insofar as the grounds therefore no longer exist ( section CARDINAL , second paragraph ) .", "Any person who fails to abide by the obligations attaching to special supervision or by those specified in a compulsory residence order is liable to a penalty of \" arrest \" of DATE or DATE , respectively ( section DATE , first and second paragraphs , and LAW , first paragraph ) .", "LAW completes this panoply of legal texts with provisions directed against the mafia ( disposizioni contro la mafia ) . According to LAW is applicable to persons - such as Mr. PERSON - whom there are strong reasons to suspect of belonging to mafia - type associations ( indiziati di appartenere ad associazioni mafiose ) . State prosecutors may propose that the preventive measures described above be taken against such persons , even if no prior warning has been given ; the decision rests with the courts ( section CARDINAL ) . Under section CARDINAL , wrongfully leaving the district of compulsory residence is punishable by \" arrest \" of DATE ." ]

[ "5" ]

[ "5-1" ]

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[ "3", "6", "8", "9" ]

[ "6-1", "8-1", "9-1" ]

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[ "The applicants are CARDINAL NORP nationals , whose names and dates of birth are shown in the LOC . ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows . The applicants sued the ORG authorities in domestic courts for payment of various monetary sums due under the NORP law . The courts held for the applicants and ordered the authorities to pay various amounts in the form of lump sums and/or of periodic payments to be upgraded in line with the inflation in the country . These judgments became binding but the authorities delayed their enforcement ." ]

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[ "The first applicant was born in DATE and the second in DATE . Both applicants live in the city of GPE , GPE .", "By CARDINAL separate judgments of DATE , the ORG of GPE awarded the first applicant CARDINAL NORP hryvnyas ( ORG ) and the second applicant ORG CARDINAL,CARDINAL.CARDINAL in salary arrears and other payments , to be paid by the open joint - stock company ORG ( “ the debtor company ” ) .", "The ORG - owned company PERSON sudnobudivny zavod held PERCENT of the shares in the debtor company on the date the judgments were delivered .", "The judgments became final and enforcement proceedings were instituted .", "In the period DATE the first applicant received UAH CARDINAL and the second ORG CARDINAL in part settlement of the judgment debts .", "By a letter of DATE ORG notified the applicants that they were unable to collect the full amount of the awards because the financial assets of the debtor company were insufficient . They further explained that other assets could not be sold , as the ORG owned CARDINAL % of the debtor company ’s share capital . The debtor company was therefore subject to the Law of DATE “ on the Introduction of a Moratorium on the Forced Sale of Property ” .", "Since DATE the ORG has held PERCENT of the shares in PERSON sudnobudivny zavod .", "By a letter of DATE ORG proposed that the applicants accept the debtor company ’s seized property in satisfaction of the judgment debts , but the applicants did not agree .", "NORP In DATE insolvency proceedings were instituted against the debtor company . On DATE it was declared insolvent .", "In DATE the enforcement proceedings were discontinued since the debtor company had been declared insolvent . The liquidation proceedings are still pending .", "The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Director in ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a businessman and a trader . In the course of his trading activities the applicant has built up a considerable fortune by way of increasing the value of companies which he owns and operates . It is the sale of CARDINAL of these companies , ORG ( “ T ” hereinafter ) , and the tax levied on the transaction that has led to this application .", "On DATE the applicant sold the shares of T to a company called ORG to be further sold to a party to be later nominated by the buyer . The sales price of the shares was MONEY ( ORG ; MONEY ( ORG ) ) . The buyer company went into liquidation DATE after the transaction . According to the applicant he in no way contributed to the financing of the transaction and did not own any joint undertakings with the buyer . The Government contended that the transaction had been given a form disguising its real nature as a transfer of assets ( taseyhtiökauppa , skalbolagstransaktion ) . The ORG maintained that the assets of T were transferred to another company also owned by the applicant and the company was allegedly sold at a price significantly exceeding the net amount of the company ’s assets .", "In the regular taxation for DATE the applicant was taxed for the capital gains . The tax payable amounted to ORG CARDINAL ( approximately FAC ) . The applicant paid in full the tax levied on him .", "On DATE ORG ( verohallitus , skattestyrelsen ) sent an internal letter titled “ Abuses related to avoir fiscal tax rebates ” to county tax offices ( lääninverovirasto , länsskatteverk ) . In the letter it was held that the amount of tax refunds issued in probable abuse of LAW ( laki yhtiöveron hyvityksestä , lag om gottgörelse för bolagsskatt ; DATE , which entered into force on DATE ) was significant in some regions for DATE . The county tax offices were prompted to select the most significant refund recipients so that possible abuses might be addressed in connection with the dividend recipients’ regular taxation . In an accompanying memorandum it was explained , inter alia , that dividend receiving companies were entitled to an avoir fiscal tax rebate and that if it was a loss - making company it would receive a tax refund . The avoir fiscal system was most commonly exploited in connection with so - called balance sheet company transactions , such a company having no tangible assets but only cash assets and receivables . Attention had to be paid to transactions whereby the company ’s balance sheet and deferred tax liabilities were transferred to a buyer while the company ’s actual business assets were transferred to a new company ( often owned by the vendor ) . The buyer of the balance sheet obtained a tax refund which was paid over to the seller together with the dividends as part of the purchase price . Such transactions could be executed with the intention of not paying any tax .", "From DATE , there was a tax inspection concerning the transfer of shares from the applicant ’s company . On DATE , the applicant was sent a preliminary tax inspection report by ORG ( verotoimisto , skattebyrån ) .", "On DATE ORG sent an internal memorandum titled “ Transfer of assets arrangements and taxation ” to , inter alia , county tax offices . In an accompanying letter it was explained that the memorandum discussed transfer of assets arrangements involving so - called balance sheet companies and various principles related to the tax treatment of those arrangements . In order to develop the said memorandum further , county tax offices were invited to express their views on the positions taken in the memorandum .", "On DATE ORG issued a final report . On the basis of that report , ORG found on DATE that there were no reasons to reassess the taxes paid by the applicant for DATE .", "The competent tax agent of GPE ( veroasiamies , skatteombudet ; “ the Agent ” hereinafter ) however considered that the nature of the above - mentioned transaction was not an “ arm ’s length ” sale , but a transaction intended to benefit the applicant in violation of the Revenue ’s right to tax . The Agent appealed on DATE against the decision and recommended to ORG ( verotuksen oikaisulautakunta , prövningsnämnden i beskattningsärenden ) that a re - assessment of tax be imposed making the applicant liable for tax for DATE to the extent of the full sales price of ORG CARDINAL on the grounds that the transaction was a disguised means of taking out dividends , i.e. benefit from the company .", "On DATE the applicant objected to the requests in written observations maintaining that the transaction was a true arm ’s length transaction . The applicant , inter alia , criticised the Agent ’s arguments insofar as the Agent had claimed that an affidavit made by a managing director of the bank responsible for the financial arrangements for the transactions ( submitted by the applicant previously to ORG ) was unreliable . The applicant also rejected the Agent ’s criticism of a statement by a tax expert also submitted previously by the applicant .", "On DATE ORG decided that arrangements violating LAW ( verotuslaki , beskattningslag ) had been undertaken in order for the applicant to be able to transfer the assets of the company to himself with as little tax consequences as possible . It held that the transfer of assets was in fact a disguised means of taking out dividends from company ORG calculated the tax from the entire sales price to cover the amount considered to actually have benefited the seller , i.e. FIM CARDINAL ( MONEY ) , on which a MONEY tax surcharge ( veronkorotus , skatteförhöjning ) was imposed . The tax surcharge totalled QUANTITY . The decision was based on sections CARDINAL , DATE , DATE and CARDINAL of LAW", "On DATE the applicant appealed to ORG ( lääninoikeus , länsrätten ) of PERSON demanding quashing of the entire tax decision . The applicant maintained , inter alia , that no such changes had occurred in case law between the report of the tax auditors and the decision of ORG that would have provided the latter with a valid basis for viewing the reassessment of tax issue differently from the tax auditors or ORG . The applicant also emphasised that no discussions took place in connection with the audit about the transaction at issue , and that he had only had an opportunity to provide his response after he received a preliminary report . The applicant further maintained that ORG had reviewed the matter more on the basis of impressions created by the preliminary report than by considering the actual facts of the case and had replaced facts with suppositions . The applicant also claimed that the chairman of ORG was biased . He further maintained that ORG had examined the matter on the basis of the tax authority ’s treatment of abuses related to the avoir fiscal system and maintained that nothing was known about the avoir fiscal system and the opportunities it presented for gaining tax - related advantages in DATE . In that context he referred to the first guidelines on abuses being issued by ORG on DATE .", "On DATE ORG submitted to the court a statement from the Agent , and on CARDINAL DATE the applicant submitted his comments on the statement .", "On DATE ORG submitted further documents .", "On DATE , the applicant lodged further evidence .", "On DATE ORG issued an order prohibiting the enforced collection of the taxes in question until DATE ( later extended during DATE ) . This was as ORG was expected to give judgment in cases concerning the imposition of taxes in cases concerning the circumstances in which share transactions constituted a transfer of assets . ORG issued its decisions in these cases on DATE .", "On DATE ORG rejected the applicant ’s appeal without an oral hearing . It held that there had been no economic business grounds for the transaction at issue , that the measures did not comply with the actual nature and purpose of the matter and in reality the cash assets of the company had been used to pay the purchase price to the applicant . In the circumstances it had to be deemed that the arrangement had been undertaken in order to evade taxes contrary to sections CARDINAL of LAW . It further concluded that the amount of surcharge to be paid was not unreasonable .", "On DATE the applicant sought leave to appeal to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) repeating his earlier requests and arguments and providing further observations on the findings of ORG , in particular alleging that its decision was not consistent with legal precedent .", "On DATE , the Agent submitted observations , as did ORG Helsinki on DATE . On the latter date the applicant was requested to submit his comments . Following an extension in the time - limit , the applicant submitted his further observations on DATE . The applicant emphasised , inter alia , that the whole proceedings were based on allegations and suppositions as ORG operated on the basic premise that the matter had from the start involved bad faith although not the least shred of evidence has been produced in support of this presumed bad faith .", "On DATE ORG refused the applicant leave to appeal .", "The tax imposed together with the tax surcharge and interest on arrears was in DATE approximately ORG CARDINAL,CARDINAL,CARDINAL .", "Section CARDINAL of LAW ( verotuslaki , beskattningslag ; DATE , as in force up to and including DATE ( CARDINAL/CARDINAL ) ) contained the general rule applicable to cases of tax evasion , under which taxes may be reassessed so as to correspond to the real nature of transactions , irrespective of their legal form . Pursuant to subsection CARDINAL , the tax payer must be given an opportunity to comment on each relevant point .", "Section CARDINAL , as in force at the relevant time , provided for the taxation of assets taken out of a company as veiled dividends ( peitelty osinko , förtäckt dividend ) .", "Under LAW ( as in force at the relevant time and up to and including DATE ( CARDINAL/CARDINAL ) ) a tax surcharge was to be imposed , inter alia , where the taxpayer had , knowingly or grossly negligently , given incorrect information in the tax return or otherwise given wrong information or documents , a surcharge of a maximum of MONEY was to be imposed . The tax surcharge was imposed on that income in respect of which defective or incorrect information had been provided . According to the provision there was no discretion as to the imposition of the tax surcharge in the described circumstances ( see Government PERSON ) .", "Section CARDINAL , subsection CARDINAL , ( which was amended on DATE ( Act CARDINAL/CARDINAL ) and which was for the first time applied to the assessment of taxes levied for DATE and which Act was in force until and including DATE ) provided , inter alia , that where the taxpayer had , knowingly or grossly negligently , given incorrect information in the tax return or otherwise given wrong information or documents , a surcharge of CARDINAL per cent of the additional amount of taxes was to be imposed , if there were no particular reasons against the imposition of the tax surcharge . The amended provision enabled the local tax offices to use their discretion as to whether or not to impose the tax surcharge .", "Section CARDINAL , as in force at the relevant time , provided that if a taxpayer , due to the fact that he had not given a tax return or he had given a defective , misleading or wrong tax return or other information or document , had not been taxed fully or taxed only in part , the tax which had not been levied for the said reason was to be levied with interest on the arrears and with a tax surcharge . The re - assessment could be conducted within DATE from DATE which followed the termination of the taxation . If possible , the taxpayer was to be given an opportunity to be heard before the reassessment of tax . However , if the hearing of the taxpayer would probably not benefit the decision making , there was no need to give the taxpayer a possibility to be heard . The said section corresponds in substance to section CARDINAL of the existing LAW ( laki verotusmenettelystä , lag om beskattningsförfarande ; DATE , as in force as from DATE ) with the exception of a strict obligation to give the taxpayer a possibility to be heard .", "The provisions concerning appeal contained in LAW ( as amended by LAW effective as from DATE ) were in substance the same as in the provisions in the existing LAW .", "Under section DATE of LAW , as in force at the relevant time , an appeal against a decision on taxation shall , as a first instance , be made to ORG . Appeal from the ORG lay to ORG and then , with leave to appeal , to ORG .", "In the appeals procedure the interests of the ORG or other tax recipients were represented by a tax agent ( ORG , section CARDINAL(CARDINAL ) : verohallintolaki , lag om skatteförvaltningen DATE as in force at the relevant time ) .", "According to the reservation made by GPE in accordance with LAW , as in force at the relevant time , GPE could not guarantee a right to an oral hearing in so far as the NORP laws at the time of the events at issue did not provide such a right . This applied , inter alia , to proceedings which were held before ORG , in accordance with LAW of ORG ( laki lääninoikeuksista , lag om länsrätt ) and proceedings before ORG , in accordance with LAW ) of ORG ( laki korkeimmasta hallinto - oikeudesta , lag om högsta förvaltningsdomstolen ) and in which the decision subject to appeal was rendered before DATE . The reservation was withdrawn on CARDINAL DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant 's father and PERSON - owned a cottage in GPE . The applicant 's father decided to sell his share of the cottage and authorised the applicant to organise the sale .", "On DATE PERSON was murdered . On the same date Mr PERSON , who had carried out certain repair works for the applicant , was arrested by the police and confessed to the murder . He told the police that the applicant had instigated the crime and promised him remuneration for the murder . On DATE the police conducted a search of the applicant 's flat .", "The date and time of the applicant 's arrest are disputed between the parties . According to the applicant , she was arrested at TIME on DATE . According to the Government , she was arrested at TIME on DATE , the time indicated in the arrest report drawn up by the investigator and signed by the applicant .", "On DATE the Prosecutor of the Oktyabrskiy District of ORG authorised the applicant 's pre - trial detention . The order stated as follows :", "“ [ Taking into account ] the gravity of the crime committed by [ Mrs ] ORG , and also the fact that at the present time there are insufficient grounds for bringing charges against her , the fact that she may abscond from the investigation and fail to appear at court , commit another crime or interfere with the establishment of the truth in the criminal case , [ the investigator ] has decided to choose with regard to [ Mrs ] PERSON ... detention in the GPE SIZO-CARDINAL as a measure of restraint ... ”", "On DATE the applicant was charged with incitement to murder .", "On DATE the applicant changed her legal counsel .", "NORP On DATE the applicant made an application for the measure of restraint to be changed to an undertaking not to leave her place of residence . She submitted that her second son , having been injured in an accident , was in hospital , and her younger daughter of CARDINAL needed to be taken care of .", "On DATE ORG dismissed the application as follows :", "“ On DATE a measure of restraint was chosen by ORG in respect of [ Mrs ] Savenkova .", "[ Mrs ] ORG requests that the measure of restraint be changed as she is not guilty , has CARDINAL children , and her son has been injured in an accident .", "The measure of restraint was chosen lawfully and reasonably , and took into consideration the gravity of the charges .", "Pursuant to LAW [ RSFSR ] LAW , [ the court ] has decided to dismiss the complaint .", "This decision may be appealed against to ORG within DATE . ”", "The applicant did not appeal against the decision .", "On DATE the acting Prosecutor of the Oktyabrskiy District of Tambov extended the applicant 's pre - trial detention to DATE , referring to the gravity of charges as grounds .", "On DATE the acting Deputy Prosecutor of the Tambov Region extended the applicant 's pre - trial detention to CARDINAL DATE , referring to the gravity of charges and the risk of fleeing justice and obstructing the investigation .", "On DATE the acting Deputy Prosecutor of the Tambov Region extended the applicant 's pre - trial detention to DATE , referring to the gravity of the charges and the risk of fleeing justice and obstructing the investigation .", "On DATE the criminal case file was submitted to ORG for examination on the merits .", "On DATE the applicant 's counsel sent a telegram to ORG requesting it to terminate the applicant 's prosecution and release her from custody .", "On DATE ORG scheduled the first trial hearing to take place on DATE and held that the preventive measure applied to the applicant , the detention in the FAC SIZO-CARDINAL , “ should remain unchanged ” .", "On DATE the ORG found the applicant guilty of incitement to murder and sentenced her to DATE imprisonment . PERSON was found guilty of murder and sentenced to DATE imprisonment .", "On DATE ORG of GPE examined and dismissed an appeal by the applicant . The applicant and PERSON were transferred to correctional facilities to serve their sentences .", "On DATE the Deputy Prosecutor General , at the applicant 's request , lodged an application for supervisory review of the judgment .", "On DATE the ORG of ORG of GPE granted the request for supervisory review , quashed the judgment on the grounds of inadequate legal assistance to PERSON , and remitted the case to the first - instance court for fresh examination . ORG ordered the applicant and PERSON to remain in custody .", "On DATE the case file was transferred to ORG . On an unspecified date the applicant and PERSON were transferred to the FAC SIZO-CARDINAL and remained there awaiting the second trial .", "On DATE the ORG conducted a hearing of the criminal case where the applicant allegedly challenged the detention order and requested to be released . She provided a copy of the application , signed by her counsel PERSON . , but claims that the court did not examine it .", "According to the applicant , on DATE her lay representative , NORP , lodged another application with ORG for the measure of restraint to be changed to an obligation not to leave her place of residence . According to the Government , this application was lodged on DATE .", "On DATE , before the hearing of her case by ORG , the applicant 's counsel PERSON . made an application to the court challenging the applicant 's continued pre - trial detention and requesting that the measure of restraint be changed to an undertaking not to leave her place of residence . The application was examined and dismissed by ORG with reference to the gravity of the charges .", "On DATE ORG acquitted the applicant and PERSON of all charges because of lack of evidence . They were released in the court room . The prosecutor appealed against the acquittal .", "On DATE ORG of GPE granted the prosecutor 's appeal , reversed the judgment of DATE and remitted the case for a fresh first - instance examination .", "On DATE the ORG found the applicant guilty as charged and sentenced her to DATE imprisonment . PERSON was sentenced to DATE imprisonment . They were taken into custody from the court room .", "On appeal , on DATE ORG of GPE upheld the judgment of DATE in substance , but reduced the applicant 's sentence to DATE imprisonment and PERSON 's sentence to DATE imprisonment .", "On DATE ORG of GPE granted the applicant 's request for the suspension of her imprisonment and she was released .", "Until DATE criminal - law matters were governed by LAW RSFSR ( PERSON of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .", "“ Preventive measures ” ( меры пресечения ) include an undertaking not to leave a town or region , personal security , bail and detention ( LAW of the old ORG , LAW ) .", "LAW of DATE establishes that a judicial decision is required before a defendant can be detained or have his or her detention extended ( Article CARDINAL ) .", "Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .", "The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW and DATE ) .", "When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .", "NORP Before DATE , detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment or if they had previously absconded or had no permanent residence in GPE , or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .", "The Codes distinguished CARDINAL types of detention : detention “ pending the investigation ” , that is , while a competent agency – the police or a prosecutor 's office – investigated the case , and detention “ before the court ” ( or “ during the trial ” ) , that is , while the case was being tried in court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .", "After arrest the suspect is placed in custody “ pending the investigation ” . The maximum permitted period of detention “ pending the investigation ” is DATE but it can be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels ( under the old CCrP ) but must now be authorised by judicial decisions taken by courts of ascending levels ( under the new ORG ) . No extension of detention “ pending the investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .", "The period of detention “ pending the investigation ” is calculated up to DATE when the prosecutor sends the case to the trial court ( LAW CCrP , LAW of the new ORG ) .", "Access to the case file materials is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , at the request of a prosecutor , may grant an extension of detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .", "Under the old ORG , the trial court had the right to remit the case for an “ additional investigation ” if it established that procedural defects existed that could not be remedied at the trial . In such cases the defendant 's detention was again classified as “ pending the investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for an additional investigation but the investigators had already used up all the time authorised for detention “ pending the investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE from the date he received the case . Subsequent extensions could only be granted if the detention “ pending the investigation ” had not exceeded DATE ( Article CARDINAL ) .", "From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ before the court ” ( or “ during the trial ” ) .", "Before DATE the old ORG set no time - limit for detention “ during the trial ” . On DATE a new LAW was inserted which established that the period of detention “ during the trial ” could not normally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on at the request of a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with a particularly serious criminal offence .", "The new ORG establishes that the term of detention “ during the trial ” is calculated from the date the court receives the file to the date the judgment is given . The period of detention “ during the trial ” may not normally exceed DATE , but if the case concerns serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .", "Under the old CCrP , the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review had to be conducted in camera in the presence of a prosecutor and the detainee 's counsel or representative . The detainee had to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee 's release ( LAW ) .", "An appeal to a higher court lay against the judge 's decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( Article CARDINAL in fine ) .", "Under the new ORG , an appeal may be lodged with a higher court within DATE of a judicial decision ordering or extending detention on remand . The appeal court must decide the appeal within DATE of its receipt ( LAW ) .", "Upon receipt of the case file , the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL of the old ORG , ORG ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) . If the application is refused , a fresh application can be made once the trial has commenced ( LAW CCrP ) .", "At any time during the trial the court may order , vary or revoke any preventive measure , including detention ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberations room and be signed by all the judges of the bench ( LAW ORG , LAW ) .", "An appeal against such a decision lies to the higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against a judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP ) .", "Under the old ORG , within DATE of receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to return the case for an additional investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court with jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ( предварительное слушание ) ; or ( CARDINAL ) to fix a date for trial ( LAW ) . The trial must begin DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .", "NORP The duration of the trial is not limited .", "Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE of its receipt . In exceptional circumstances or in complex cases , or in proceedings before ORG , this time - limit could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .", "The new ORG establishes that the appeal court must start the examination of the appeal DATE after its receipt ( Article CARDINAL ) ." ]

[ "5" ]

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[ "On DATE ORG entered into an agreement with ORG to set up a business incubator for small and medium - sized enterprises in the town of PERSON . In the course of implementing the project , the applicant organisation undertook to renovate a property of the Ruse municipal council against being granted the right to use it for the needs of the business incubator for a period of DATE . The renovation was completed on DATE and cost ORG CARDINAL ( EUR CARDINAL,CARDINAL ) all of which was paid by the applicant organisation .", "On DATE , apparently in the course of renovating the municipal property , ORG received a supply from a sole trader ( “ the supplier ” ) . It is unclear whether the transaction was for a supply of goods or services . As both entities were registered under LAW of DATE ( “ the VAT Act ” ) the transaction constituted a taxable supply under LAW .", "NORP The total cost of the received supply was BGN CARDINAL ( ORG CARDINAL ) , of which ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) was the value of the goods or services and ORG CARDINAL ( EUR CARDINAL ) was value - added tax ( “ NORP ” ) . The supplier issued invoice no . CARDINAL to the applicant organisation , which the latter paid in full , including the LOC . The applicant organisation recorded the supply in its accounting records for DATE and filed its ORG return for that period on DATE . The supplier , on the other hand , failed to record the transaction in its accounting records , to file a ORG return and to settle its obligations with the ORG budget .", "On DATE the tax authorities initiated an audit of the applicant organisation , covering , in respect of VAT , the period from DATE to CARDINAL DATE . In the course of the inspection a cross - check of the supplier was conducted in order to ascertain whether it had properly reported and recorded the supply in its accounting records . As a result , its failure to comply with its NORP reporting and payment obligations was discovered ( see paragraph CARDINAL above ) .", "On DATE ORG of ORG issued the applicant organisation with a tax assessment . In respect of VAT it found that ORG had mistakenly deducted CARDINAL payments it had made to suppliers for input ORG amounting to ORG ( ORG CARDINAL,CARDINAL ) and had failed to charge output GPE , in the amount of BGN CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL,CARDINAL ) , on a taxable service it had provided .", "NORP In particular , in respect of the transaction under invoice no . CARDINAL the tax authorities refused the applicant organisation the right to deduct the input ORG it had paid , amounting to ORG CARDINAL ( ORG MONEY ) , because the supplier had failed to record the transaction in its accounting records , to file a ORG return and to settle his obligations towards the ORG budget . Thus , they considered that no ORG had been “ charged ” on the supply in question and that the applicant organisation could not therefore deduct the input GPE .", "Based on the above conclusions , the tax authorities adjusted the applicant organisation 's input and output GPE for the relevant reporting period . In respect of the supply under invoice no . CARDINAL , this had the effect that the applicant organisation had to pay a second time the input NORP of BGN CARDINAL ( EUR CARDINAL ) . In addition , it was ordered to pay interest of BGN MONEY ( ORG CARDINAL ) on that amount .", "On DATE the applicant organisation appealed against the tax assessment . In a decision of CARDINAL DATE ORG confirmed in full the findings in the tax assessment in respect of the input GPE BGN CARDINAL ( EUR CARDINAL ) . The applicant organisation appealed to the courts .", "On DATE ORG found against the applicant organisation , which appealed further . In a final judgment of CARDINAL DATE ORG upheld the lower court 's findings and those of the tax authorities in respect of the input GPE ORG CARDINAL ( EUR CARDINAL ) . In reaching their decisions , the courts likewise concluded that in so far as the supplier had failed to file GPE returns and to settle his obligations towards the ORG budget , the applicant organisation had no right to deduct the said input ORG .", "The relevant provisions of LAW have been summarised in the case of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .", "Article CARDINAL ( CARDINAL ) of LAW , provides that an interested party may request the reopening of administrative proceedings in cases where a “ judgment of ORG has found a violation of the Convention ” . ORG has already had occasion to use it to reopen proceedings subsequent to ORG judgments for violations of Articles CARDINAL , CARDINAL and CARDINAL of the Convention ( решение № CARDINAL от CARDINAL г. на PERSON по адм. д. № CARDINAL/CARDINAL г. , CARDINAL с-в , and определение № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. на PERSON по адм. д. № DATE г. , ORG ) .", "The relevance of the acquis communautaire and the findings of ORG of ORG in joined cases C CARDINAL/CARDINAL , ORG and C-CARDINAL/CARDINAL , ORG ( C-CARDINAL/CARDINAL ) , ORG ( C-CARDINAL/CARDINAL ) and ORG ( C DATE ) v ORG and in joined Cases C CARDINAL/CARDINAL and LAW , PERSON NORP State ( C-CARDINAL/CARDINAL ) and NORP State v GPE ( C-CARDINAL/CARDINAL ) ( ECR CARDINAL , page I CARDINAL ) have also been summarised in the case of ORG ( § § CARDINAL DATE , cited above ) ." ]

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[ "The applicant was born in PERSON , CARDINAL of the GPE islands , in DATE . GPE is part of GPE . It has its own President , parliament and government and enjoys considerable autonomy .", "According to the applicant , in DATE he joined ORG ( “ the CUF ” ) , an opposition party in GPE . He was an active member , attending meetings and contributing money to the party funds . In DATE the applicant was arrested by ORG ( “ the ORG ” , the ruling party ) officers because of his involvement with the CUF . He was detained at GPE police station in GPE for DATE , where he was tortured . He was repeatedly locked in a cell full of water for DATE at a time so he was unable to lie down . He was hung upside down with his feet tied together until he bled through the nose , and he was also subjected to electric shocks .", "In DATE the applicant stated that he was released from detention following pressure from CUF leaders on the NORP government . He was admitted to hospital , where a medical officer recorded that the applicant was haemorrhaging severely through the nose as a result of his treatment and had been subjected to harm endangering life .", "The applicant stated that his brother had been taken into detention shortly before he was . He had been ill - treated and died in DATE in hospital where he had been taken from prison .", "NORP Following his release , the applicant stated that he only contributed funds to the CUF . In DATE the police came looking for him while he was out . The police detained his wife TIME and questioned his friends . He decided to leave his home and GPE , fearing for his safety .", "On DATE the applicant arrived in GPE and claimed asylum . DATE a pro forma interview was held with an immigration officer , where the applicant was assisted by an interpreter . According to the form , the purpose of the interview was to enable the immigration officer to take down the initial details of the asylum application . When asked what the basis of his asylum claim was , the applicant was noted as having said : “ Because of the problems in the country and my safety . I have been threatened a lot by the ruling party so I decided to leave the country . ” The applicant stated that he had been a member of the ORG since DATE .", "At the full asylum interview held on DATE , the applicant was recorded as stating that he had had no problem in obtaining a passport as he was a businessman , and that he had organised his passage to GPE himself . When asked what the basis for his asylum claim was , he stated that he had been taken away and detained for DATE , from DATE , at GPE police station , where he had been tortured . He had been locked in a room with a very low ceiling , where he could not stand up , and then placed for DATE in a room filled with water up to the chest , where he could not lie down . He was taken out and returned there twice a week . DATE before he was released he was hung upside down and given electric shocks . He had been arrested because he gave money to the CUF . He was told that he had been released because the CUF leaders had approached the authorities in GPE . After his release , he was treated in a private clinic . He produced his ORG card . He had been an ordinary member , doing nothing more than give money . He had not taken part in the demonstration which had been allowed . He mentioned that his brother had been arrested in DATE and died after being in police custody . His brother had been badly beaten and was vomiting blood , so they had released him to hospital on DATE as they knew he was going to die . His uncle had helped him to leave , obtaining an income - tax clearance and an airline ticket . His uncle checked in with the ticket for him and he was able to board the plane .", "On DATE the Secretary of ORG refused asylum , finding the applicant ’s account implausible and noting inconsistencies in his answers . The applicant ’s appeal to a special adjudicator was dismissed on DATE . During the proceedings the applicant had claimed that the NORP authorities intercepted the letters he was sending home , knew that he had claimed asylum , and had summoned his parents to explain", "“ about [ their ] son who [ was ] in a foreign country to abuse the government which [ was ] in power ... ”", "He provided correspondence from ORG concerning his enquiries about money which had gone missing from a registered letter dated DATE which he had sent to his parents in GPE .", "In his decision the special adjudicator noted inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews . He placed considerable weight on the fact that the applicant had not mentioned his arrest and torture at his first asylum interview and did not accept the applicant ’s explanation that the interviewing officer told him that it was not necessary to give details at this stage or that he was having difficulties with the interpreter . He also noted that the evidence concerning his brother ’s arrest was contradictory and that no documentary evidence such as a death certificate had been produced . He therefore did not accept that the applicant ’s brother was arrested , tortured or killed . He also observed that the applicant had not provided documentary evidence that the GPE authorities were accusing him of tarnishing GPE ’s good name , and therefore did not accept that it existed . Looking at the evidence as a whole , he concluded that there was no well - founded fear of persecution for a Convention reason established to the required standard .", "Leave to appeal to ORG was refused on DATE .", "The applicant obtained a copy of his brother ’s death certificate and a medical report which recorded that his brother died on DATE , after being brought to hospital from prison with a history of severe chest pain and general body weakness associated with a fever . He also obtained the summons from the Pemba police headquarters to his parents dated CARDINAL DATE requesting their attendance to explain the applicant ’s unlawful conduct in embarrassing the government and country . He made representations to the Secretary of ORG dated DATE , providing copies and requesting that his letter be considered as a fresh asylum application .", "By letter dated DATE the Secretary of ORG expressed the view that the police summons was self - serving and not significant , while the death certificate did not disclose proof that his brother , who died of a fever , had been murdered by the authorities . He had , accordingly , decided not to treat the representations as a fresh application for asylum , but to reconsider the original asylum application on all the evidence available to him . He refused on that basis to reverse his decision .", "NORP By letter dated DATE the applicant ’s representatives requested , alternatively , that the new material be referred to the special adjudicator under LAW of LAW DATE . By letter dated DATE the Secretary of ORG informed them that he had decided not to refer the material in question .", "NORP By letter dated DATE the applicant ’s representatives submitted to the Secretary of ORG a medical report about the applicant ’s treatment following detention in GPE , and requested that the new materials be submitted to the special adjudicator under section CARDINAL . They submitted further representations on DATE .", "The hospital medical report , dated DATE , from a medical officer recorded that the applicant had suffered a severe nasal haemorrhage , that this was of a “ dangerous harm ” degree and that the injury had been inflicted by hanging upside down .", "By letter dated DATE the Secretary of ORG informed the applicant that he had considered the new material , but that this evidence did not cause him to reverse his decision to refuse asylum . He noted that the documents would have been available to the applicant at the time of his appeal hearing but were not produced , which cast doubt on their authenticity . Even if the medical certificate and police summons were authentic , however , he saw no reason why the applicant could not return to live safely and without harassment in mainland GPE . He refused to make a reference under section CARDINAL .", "The applicant applied for leave to apply for judicial review of the Secretary of ORG ’s refusal to refer the new material to the special adjudicator . He submitted an expert opinion confirming that the documents were genuine . The Secretary of ORG submitted that the documents were irrelevant because the applicant could live safely in mainland GPE . He relied on a letter from ORG in GPE dated DATE which stated that in general there was no evidence of politically motivated detentions on the mainland , although there were “ more general human rights problems such as arbitrary detentions and poor penal conditions ” on the mainland .", "On DATE the application for leave was rejected by ORG . Mr Justice PERSON stated :", "“ The Secretary of ORG ’s decision [ is ] that things have changed and that as matters now stand , whatever was or was not the case in DATE and whatever ought or ought not to have been the outcome of the appeal heard then , the applicant can safely return to his home country , provided he goes to the mainland . Having looked at the letter [ from ORG ] , I can see no arguable grounds for saying that the Secretary of ORG has acted with ORG unreasonableness in concluding that in the light of this new material he has no need to refer the matter to the Special Adjudicator and this application must be refused . ”", "The applicant appealed to ORG arguing that the Secretary of ORG ’s refusal was wrong in law and “ ORG unreasonable ” and that , in claiming that the applicant could live safely on the mainland , he was not complying with international obligations by failing to take into account the applicant ’s specific case or documentation .", "On DATE ORG refused leave to apply for judicial review . In its judgment it noted that the hospital records showed that his brother had died of fever and did not support the applicant ’s evidence that his brother had been tortured . Even assuming that the medical report on the applicant and the summons by the police to his parents were genuine , there was no evidence to suggest that the conclusion reached by the Secretary of ORG that the applicant could live without harassment on the mainland was wrong .", "On DATE the applicant was notified that he would be removed to GPE on DATE .", "On DATE the applicant ’s wife arrived in GPE and claimed asylum shortly afterwards . It was recorded that she stated in her interview that the police had harassed her due to her husband ’s involvement with the CUF . She had been detained for DATE in DATE and questioned about her husband ’s whereabouts . The police came to her house on DATE , wanting to know if her husband was back in GPE as there was a rumour that GPE had sent back most of the asylum - seekers from GPE . They were angry because he had claimed asylum and tarnished the name of the President . They threatened to arrest her instead .", "Asylum applications are determined by the Secretary of ORG , pursuant to paragraph CARDINAL of ORG and section CARDINAL of LAW DATE ( “ the DATE LAW ) . Where leave to enter is refused by the Secretary of ORG pursuant to section CARDINAL of LAW , the person may appeal against the refusal to a special adjudicator on the grounds that the removal would be contrary to GPE obligations under LAW ( section CARDINAL of LAW ) .", "An appeal lies from the special adjudicator to ORG ( section CARDINAL of LAW ) .", "Section CARDINAL of the CARDINAL LAW provides :", "“ ( CARDINAL ) Where in any case :", "( a ) an adjudicator has dismissed an appeal , and there has been no further appeal to ORG , or the tribunal has dismissed an appeal made to them ... ; or", "( b ) ORG has affirmed the determination of an adjudicator dismissing an appeal ... the Secretary of ORG may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or ORG ... ”", "Rule CARDINAL of ORG provides that the Secretary of ORG will treat representations as a fresh application if the claim advanced is sufficiently different from the earlier claim . He disregards , in considering whether to treat the representations as a fresh claim , material which is not significant , or is not credible , or was available to the applicant at the time when the previous application was refused or when any appeal was determined .", "There have been a number of domestic cases where special adjudicators have rejected “ internal flight ” possibilities for ORG members from GPE . In PERSON v. the Secretary of ORG ( DATE ) , the Government pointed out that the Secretary of ORG ’s counsel had not been present to argue the point . In PERSON the Secretary of ORG ( DATE ) , the asylum claimant was an escaped prisoner from GPE and a target for internal extradition proceedings . In PERSON v. the Secretary of ORG ( DATE ) , the adjudicator found that there was no evidence before him to show that the claimant would be any safer on the mainland than in GPE .", "In the case of PERSON v. the Secretary of ORG ( DATE ) , ORG allowed the appeal of a NORP asylum - seeker who had been involved in ORG activities , on the basis that , as he had suffered torture in GPE and a summons had been issued against him in GPE generally , there was a very reasonable prospect that he would be picked up by the police and undergo ill - treatment similar to that previously received in GPE , either at the hands of the GPE authorities or of the police in mainland GPE who also exercised brutality on prisoners in their custody . It therefore rejected the “ internal flight ” option .", "Decisions of the ORG Secretary to refuse asylum , to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of LANGUAGE public law .", "These principles do not permit the courts to make findings of fact on matters within the jurisdiction of the Secretary of ORG or to substitute their discretion for the minister ’s . The courts may quash his decision only if he has failed to interpret or apply LANGUAGE law correctly , if he has failed to take account of issues which he was required by law to address , or if his decision was so irrational or perverse that no reasonable Secretary of ORG could have made it ( ORG v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) .", "In the recent case of NORP v. Home Secretary , ex parte PERSON ( DATE ) , concerning the Secretary of ORG ’s refusal of asylum to a young male NORP draft evader , Lord Justice PERSON , in ORG judgment , stated as follows :", "“ I therefore conclude that the domestic court ’s obligation on an irrationality challenge in an LAW case is to subject the Secretary of ORG ’s decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of ORG . Only if it does will the challenge succeed .", "All that said , however , this is not an area in which the ORG will pay any especial deference to the Secretary of ORG ’s conclusion on the facts . In the first place , the human right involved here DATE the right not to be exposed to a real risk of LAW treatment DATE is both absolute and fundamental : it is not a qualified right requiring a balance to be struck with some competing social need . Secondly , the ORG here is hardly less well placed than the Secretary of ORG himself to evaluate the risk once the relevant material is before it . Thirdly , whilst I would reject the applicant ’s contention that the Secretary of ORG has knowingly misrepresented the evidence or shut his eyes to the true position , we must , I think , recognise at least the possibility that he has ( even if unconsciously ) tended to depreciate the evidence of risk and , throughout the protracted decision - making process , may have tended also to rationalise the further material adduced so as to maintain his pre - existing stance rather than reassess the position with an open mind . In circumstances such as these , what has been called the ‘ discretionary area of judgment’ – the area of judgment within which the ORG should defer to the Secretary of ORG as the person primarily entrusted with the decision on the applicant ’s removal ... DATE is decidedly a narrow one . ”", "In DATE ORG released ORG on Human Rights Practices for DATE . It stated :", "“ The Government ’s human rights record did not improve and problems persisted . Although the DATE multiparty elections represented an important development , ORG right to change their government in GPE is severely circumscribed . Although new opposition parties were competitive in many DATE races and won in some constituencies , police often harassed and intimidated members and supporters of the opposition . Other human rights problems included police beatings and mistreatment of suspects , which sometimes resulted in death . Soldiers attacked civilians , and police in GPE used torture , including beatings and floggings . Prison conditions remained harsh and life threatening . Arbitrary arrest and prolonged detention continued and the inefficient and corrupt judicial system often did not provide expeditious and fair trials ...", "Since the DATE election , police in GPE , particularly on PERSON , have regularly detained , arrested and harassed ORG members , and suspected supporters . Despite orders from ORG Inspector General of Police , officers in GPE continue these activities ...", "ORG found that pervasive corruption affected the judiciary from clerks to magistrates . Clerks took bribes to decide whether or not to open cases and to hide or misdirect the files of those accused of crimes . Magistrates often accept bribes to determine guilt or innocence , pass sentence , withdraw charges or decide appeals ...", "There are reports of prisoners waiting DATE for trial because they could not pay bribes to police and court officials . Authorities acknowledge that some cases have been pending since DATE . ORG initiated efforts DATE to highlight judicial corruption and increased its oversight ...", "In DATE since the election , government security forces and ORG gangs harassed and intimidated CUF members on both of the CARDINAL main GPE islands , ORG . Because ORG won all CARDINAL seats on Pemba , NORP living on ORG were regarded as ORG supporters and as a result were harassed . CUF members accused police of detaining CARDINAL of its members ... Safety is not ensured in PERSON , where security forces dispersed gatherings , intimidated and roughed up individuals ... ”", "In the Amnesty International Annual Report DATE , it was stated :", "“ Prisoners of conscience were among scores of government opponents arrested and briefly detained on the islands of GPE and PERSON . Many were held without charge or trial ; others faced criminal charges and were denied bail . Scores of political prisoners were tortured and ill - treated on the islands ...", "Criminal charges such as sedition , vagrancy and involvement in acts of violence , often accompanied by the denial of bail for periods of DATE or more , were also used as a method of intimidating government critics or opponents . ”", "NORP In their DATE report , ORG stated :", "“ In DATE ] , CARDINAL possible prisoners of conscience on GPE were charged with treason and refused bail . The men , supporters of the CUF , were arrested and initially charged with sedition in DATE , during DATE the ORG won a by - election to ORG . ”", "On DATE ORG issued a press release expressing concern that the vice - chairperson of the ORG might be arrested on a fabricated treason charge . In GPE it noted treason carried a mandatory death penalty . On DATE ORG called for the immediate release of CARDINAL leading CUF members or supporters , most of them imprisoned since DATE on fabricated treason charges . It expressed concern about their deteriorating health and a denial of adequate medical treatment .", "The DATE ORG report on GPE noted that serious problems remained in that government ’s human rights record .", "“ ... the police regularly threaten , mistreat or beat suspected criminals during and after their apprehension and interrogation . Police also use the same means to obtain information about suspects from family members not in custody ... Police in GPE use torture ... Repeated reports from credible sources indicate that the police use torture , including beatings and floggings in GPE , notably on LOC . Both ORG have denied these charges . Police have not yet explained the deaths of CARDINAL detainees in the town of GPE who were electrocuted at DATE ...", "Prison conditions remained harsh and life - threatening . Government officials acknowledge that prisons are overcrowded and living conditions are poor . Prisons are authorised to hold CARDINAL persons but the actual prison population is estimated at CARDINAL ... The DATE amount of food allotted to prisoners is insufficient to meet their nutritional needs and even this amount is not always provided ... Earlier the Commissioner of Prisons stated that his department received inadequate funds for medicine and medical supplies . Prison dispensaries only offer limited treatment , and friends and family members of prisoners generally must provide medication or the funds with which to purchase it . Serious diseases , such as dysentery , malaria and cholera are common and result in numerous deaths . Guards continued to beat and abuse prisoners .", "... There were no reports of political prisoners on the mainland . At DATE , there were CARDINAL political prisoners in GPE . ”", "The report noted that in DATE the police had searched the offices of the CUF party in GPE and removed files . In DATE since the election in DATE , government security forces and ORG gangs harassed and intimidated CUF members on both the main GPE islands of ORG .", "The Amnesty International DATE Report for GPE stated that :", "“ CARDINAL prisoners of conscience , including CARDINAL arrested during DATE , were facing trial for treason on the island of GPE , an offence that carries the death penalty . Scores of other opposition supporters in GPE were imprisoned for short periods ; some were possible prisoners of conscience . CARDINAL demonstrators arrested on the mainland in the capital GPE were held for DATE and reportedly tortured . Conditions in some prisons were harsh ... ”", "The CARDINAL prisoners , ORG members , included DATE arrested in DATE and three arrested in GPE in DATE , and many had reportedly fallen ill due to a denial of access to medical treatment . According to the report , the conditions in some mainland prisons amounted to cruel , inhuman and degrading treatment , which in the case of PERSON led to CARDINAL deaths in DATE .", "In its press release of DATE ORG , reporting on the imminent trial of the CARDINAL ORG members , referred to them “ as prisoners of conscience who are imprisoned solely on account of their non - violent opinions and peaceful political activities ” . It described how between the DATE and the DATE elections , numerous ORG supporters had been arrested on trumped - up criminal charges , tortured in custody and imprisoned . On more recent events , it commented :", "“ Following lengthy attempts by the Secretary General of the ORG and the ORG Secretary General to settle the political crisis in GPE , an agreement was finally reached between the CCM and ORG in DATE . Far - reaching reforms for democratisation , human rights and fair elections were set out in ORG , but few have yet been implemented . Although the ORG is allowed to operate more freely , the GPE government continues to press ahead with the trial , intent on convictions and death sentences . ”", "In the DATE ORG report on GPE , issued on DATE , it was reported , inter alia , that the authorities had been responsible for a number of extrajudicial killings and that several prisoners had died as a result of harsh prison conditions , including inadequate nutrition , medical care and sanitation :", "“ ... the police regularly threaten , mistreat or occasionally beat suspected criminals during and after their apprehension and interrogation ... Repeated reports indicate that the police use torture , including beatings and floggings , in GPE , notably on Pemba island . ”", "The situation in GPE was less favourable in a number of respects . It was stated that , except in GPE , NORP citizens generally enjoyed the right to discuss political alternatives freely and opposition party members openly criticised the government , although the government had used the provision prohibiting “ abusive language ” against the leadership to detain some opposition figures . Opposition parties had generally been more able to hold rallies , although CUF meetings in GPE had been far more restricted than those of other parties . Police continued to break up meetings attended by persons thought to be opposed to the GPE government . In PERSON the security forces broke up gatherings and intimidated opposition party officials and the government continued to arrest opposition politicians for holding meetings .", "“ In DATE since the election , government security forces and ORG gangs harassed and intimidated CUF members on both main GPE islands , PERSON and ORG ... The ORG accused police of detaining CARDINAL of its members including several local leaders ... citizen ’s safety is not assured in PERSON , where security forces dispersed gatherings and intimidated persons ... Almost all international donors have suspended direct assistance to GPE in response to the LOC human rights abuses . Under pressure from the international community , the ruling ORG and the main opposition party , the ORG , signed a political agreement in DATE to make the political process in GPE fairer ; however the provisions of the agreement were not fully implemented by DATE and observers believe that the Government did not act in good faith in the period following the signing of the agreement . ”", "In a letter dated DATE ORG in GPE es PERSON commented that there were concerns about the situation in GPE but that on the mainland there had been no evidence of political killings , disappearances or politically motivated arrests . There were more general human rights problems , such as arbitrary detentions and poor penal conditions , which were systemic and not related to political activity .", "In a letter dated CARDINAL DATE PERSON of ORG commented that there was evidence of human rights violations in GPE , including a list of CARDINAL missing persons . Although there was a good human rights record in mainland GPE , it was possible for the GPE government to demand extradition , which had been successful in the case of PERSON , whom a well - informed source reported as having been beheaded .", "According to a report dated DATE obtained by the applicant , Professor PERSON , professor of social anthropology at ORG , GPE , an expert on GPE , GPE and GPE , stated that while there was less likelihood of persecution in mainland GPE than on GPE , he observed a deteriorating situation also affecting the mainland . He referred to particular members of the PERSON CCM visiting the mainland and harassing and persecuting CUF dissidents who had taken refuge there . The PERSON CUF leader was living in GPE but only ever moved out of his flat surrounded by ORG party aides able to protect him ." ]

[ "3" ]

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[ "13" ]

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[ "The applicant was born in DATE and currently lives in GPE .", "On DATE he applied for asylum and a residence permit in GPE . In interviews before ORG ( Migrationsverket ) on CARDINAL DATE and DATE the applicant stated that he was ethnic NORP , NORP and born and raised in a small community consisting of approximately CARDINAL families in the province of LOC . He had never been to school and was illiterate . He claimed that his problems emanated from the fact that his father was of NORP ethnicity and his mother was of NORP ethnicity . As a child of mixed ethnicity , he had not been allowed to play with other children as they had been unkind to him . Since it had not been possible to leave him alone , he had always been with his father at his store in the nearest city . When the ORG had taken power in the province , they had frequently come to the store and taken food without paying , for which reason other people in the city had believed that the family sympathised with the ORG . The fact that his mother was NORP had reinforced this view . Moreover , his father had inherited everything from his grandfather , despite there being an older uncle , as the latter had been disowned due to bad behaviour . The uncle had then become very hostile to the applicant and his family . After the fall of the ORG , the applicant ’s situation had worsened as other villagers looked upon the applicant and his parents as traitors . He had been assaulted and severely beaten on several occasions and twice he had lost consciousness . They had also broken his nose and cut him with a knife . During DATE he had been kidnapped twice and ill - treated . The first time he was locked up in a cellar for DATE , and DATE he was held prisoner for DATE . Each time he had been released when his father had paid a large amount of money . His father had been advised by his business partner to move but he had refused as he thought things would get better over time . Moreover , the applicant did not know if his mother had any relatives as she had never mentioned any , but they could not have moved to her home town since she had married a man from another ethnic group .", "NORP In DATE a group of masked men had come to their house and his father had told him to leave the house , which he had managed to do by escaping through the basement . He had seen the assailants kill his mother before he fled . He had then gone to GPE where he had found out from a taxi driver who had a route to his home town that his father had also been killed . His father ’s business partner had helped him to leave the country and he had had contact with no one since he left . The applicant was convinced that he would be killed if returned to GPE and that the authorities neither could nor would help him . As he was of mixed ethnicity he would not be welcome anywhere in the country .", "On DATE ORG rejected the application . It found that the general situation in GPE was not such that the applicant could be granted leave to remain in GPE on this sole ground . Turning to the applicant ’s personal circumstances , the ORG observed that it had found no evidence that persons of mixed ethnicities faced specific problems in GPE . According to the applicant ’s own account , ethnicity was passed down by the father , for which reason the applicant was considered a NORP . Thus , the Board did not believe that the applicant had faced such discrimination as claimed because of his mixed ethnicity . Moreover , it noted that , again according to the applicant , everyone in his village had tried to get along with the ORG and had paid to be well treated by them . Therefore the ORG was not convinced that the applicant and his family had been suspected of being collaborators with the ORG and ill - treated on this ground . ORG further questioned the claim that the applicant had no relatives other than his uncle , having regard to the very strong family ties in NORP culture . In any event , his father ’s business partner was still there and had shown a friendly and supportive attitude to the applicant and his family . Consequently , the ORG concluded that the applicant had a social network in GPE which made it possible for him to return . Since there was no other reason to grant the applicant leave to remain in GPE , his application was rejected .", "The applicant appealed to ORG ( Utlänningsnämnden ) , and was therefore heard again . He maintained his claims and added that he was not considered a NORP simply because his father was one . Moreover , the suspicion that they had collaborated with the ORG was also based on the fact that his mother was NORP and that the ORG had not touched their home . The family ’s poor reputation had then been used against them by his uncle . His mother had no contact with her family since she had married outside her ethnicity . Moreover , his father ’s business partner had become wealthy thanks to the applicant ’s father and therefore had owed him a favour . In any event , it was money from their business which had paid for the applicant ’s trip .", "On DATE ORG rejected the applicant ’s appeal as concerned his asylum application . It noted that ORG had established a military base in LOC to stabilise the area . Against this background , and for the reasons set out in ORG decision , ORG found it unsubstantiated that the applicant would risk persecution upon return .", "In DATE the applicant married a NORP woman , who had been granted a residence permit in GPE due to a previous marriage . In DATE the couple had a daughter and therefore , on DATE ORG exempted the applicant from the regulation on family reunification which set out that an applicant must apply for a residence permit on the basis of family from his country of origin . ORG thus granted the applicant a temporary residence permit for DATE . On DATE the applicant was granted a permanent residence permit in GPE on the same grounds . The couple had a son on DATE .", "On DATE the applicant ’s wife left him , and , together with the children , went to live at a protected address . The children were at that time CARDINAL and DATE . The estranged wife reported to the police that she had been raped and ill - treated by the applicant for DATE and that he had also hit their daughter . She explained that she had already tried to leave the applicant in DATE after he had threatened her with a knife and the police had to intervene . Criminal proceedings were immediately initiated .", "Subsequently , the prosecution authority issued restraining orders against the applicant vis - à - vis his estranged wife and their children , under section CARDINAL of LAW ( lagen ( CARDINAL:CARDINAL ) om besöksförbud ) .", "On DATE the applicant was examined by CARDINAL psychiatrists at ORG , who in a medical report of DATE noted that the applicant described having symptoms of PTSD and depression with suicidal thoughts . Should a sentence of imprisonment be considered , an examination of the applicant by a forensic psychiatrist was recommended .", "The trial took place before ORG ( tingsrätten ) in GPE , and commenced on DATE , when the applicant , his estranged wife , her mother and CARDINAL neighbours were heard and documentary evidence submitted . The applicant was detained on remand on DATE and submitted for examination by a forensic psychiatrist , who concluded that the applicant was not suffering from a serious mental disturbance and that he had not committed the act of which he was accused due to serious mental disturbance .", "By judgment of CARDINAL DATE ORG ( tingsrätten ) in GPE convicted the applicant of rape and aggravated violation of a woman ’s integrity ( grov kvinnofridskränkning ) committed several times a week over a period of DATE , DATE and DATE . The violation included hitting , pushing , hair pulling and threatening to harm or kill the wife and the children , or to take the children away from the wife by taking them to GPE . ORG noted that the wife had made a very composed and credible impression . She had presented her story , which was supported by witness statements , in a calm and balanced way .", "The applicant was sentenced to CARDINAL years’ imprisonment and CARDINAL years’ expulsion from GPE , with a prohibition on returning before DATE .", "NORP In its decision to expel the applicant ORG had regard , inter alia , to a report dated DATE from the relevant social welfare board relating to the issue of the children ’s need for contact with their father and how they would be affected by his expulsion . It pointed out that the estranged wife was afraid of the applicant and therefore still lived at a secret address . The children had not seen their father since DATE and the mother would only take part in visits if a contact person were present . An expulsion would most likely mean that the children would not have any contact with their father during the expulsion period . Generally , children needed close and good contact with both their parents . However , the courts and the social services also had to take into account the risk of children being subjected to violence , abuse , abduction , etc . Having regard to the crimes at issue , the overall assessment was therefore that the children ’s need for contact with their father , if convicted , should be balanced against the risk of their being subjected to , or becoming witness to , violence or other degrading treatment during access .", "NORP In its decision to expel the applicant , ORG essentially stated the following . In view of the nature of the crimes and the circumstances of the case , there was reason to fear that the applicant would continue to commit crimes in GPE . Moreover , in view of the illtreatment endured by the estranged wife and caused by the applicant , the crimes were considered to be so serious that the applicant should not be allowed to remain in GPE . He lacked any substantial connection to GPE other than his family , who had to live at a secret address to avoid being persecuted by him . In conclusion , the children ’s need for contact with their father could not be considered to be so significant that an expulsion should be avoided . However , having regard to the children , the expulsion period was limited to DATE . Finally , ORG had been heard and had stated that there were no impediments to the expulsion of the applicant to his home country .", "The applicant appealed to ORG ( hovrätten ) , before which the applicant and the estranged wife were heard , as were the witnesses who had been heard before ORG . On DATE ORG upheld the lower court ’s judgment in full .", "The applicant requested leave to appeal to ORG ( ORG domstolen ) which was refused on DATE .", "Having left the applicant on DATE , on CARDINAL DATE the estranged wife filed for divorce from the applicant and sole custody of the children . She contended that she had been ill - treated by the applicant , that he had also hit the children , and that she had reported the abuse to the police . The applicant agreed to a divorce but requested sole custody of the children . He also demanded access to the children for TIME a month in the presence of a contact person .", "On DATE , ORG temporarily granted the estranged wife sole custody of the couple ’s children while the proceedings were pending before it . It further decided temporarily that the applicant should not have physical contact with the children during this time . It noted in that respect that the applicant had been accused of serious crimes , including violence against the daughter . The prosecutor was considering whether to charge the applicant and , while awaiting developments in this regard , ORG found joint custody to be incompatible with the children ’s best interest . Nor should access between the applicant and the children be established under those circumstances .", "The applicant ’s appeal against the decision was rejected by ORG on DATE .", "As stated above , in the criminal proceedings the applicant was convicted on DATE by ORG .", "In the custody and access proceedings , at the request of ORG , the social welfare board submitted a report dated DATE concerning custody and access rights , based on CARDINAL interviews with the estranged wife and CARDINAL interviews with the applicant ( one at home and one at the pre - trial detention centre ) . The social welfare board had also met the children at their home in DATE , and spoken to the children ’s nursery school and to a deaconess involved in the case . In addition , they had had access to relevant written material such as the first instance criminal judgment against the applicant and the examination conducted by the forensic psychiatrist . The report stated that in view of the applicant ’s abuse of his estranged wife and the fact that he had probably also physically abused his daughter , there was a high risk that the children would be harmed if the applicant were to have custody of them . The children were very young when they last had contact with the applicant and they would have no memories of their father that they could express in words . Their need for a relationship with their father would increase when they became older . Access between them and the applicant would involve an increased risk that their secret address would become known to him . This risk should be balanced against the fact that the applicant had subjected his family to abuse and that he would probably be expelled upon release from prison . Thus , it was advised that he should not have access to the children . In order to meet the children ’s need for contact with their origins , it was noted that such could be accommodated through letters . The social welfare board could distribute letters from the applicant to the children via the estranged wife , who in turn could reply within DATE to report on the children ’s development .", "The applicant and his estranged wife divorced in DATE .", "On DATE the applicant ’s conviction and sentence became final .", "NORP In letters of CARDINAL and DATE , and DATE the applicant submitted his observations on the report from the social welfare board . He found that the report was partial to the benefit of the estranged wife and not in the interests of the children .", "On DATE , ORG held a hearing in the case . Represented by legal counsel , the applicant and his ex - wife were heard . CARDINAL witnesses were heard at the applicant ’s request . A representative from the social welfare board stated that the aim had been to see both parents an equal number of times during the custody investigation but that this had not been possible because the applicant was detained on remand . In general young children were directly affected by how their mother was treated and it was therefore very likely that the applicant ’s daughter would experience bad memories if she had to see the applicant . Moreover , if the children were to have contact with the applicant , they would be exposed to yet another separation from him when the expulsion order was implemented . Thus , for the moment it was not in the children ’s best interests to see the applicant .", "By judgment of DATE , ORG granted the ex - wife sole custody of the couple ’s CARDINAL children and ordered that the applicant should not have visiting rights to the children . The court noted that the ex - wife and the children lived at a secret location and that the children were well and felt safe with their mother . Moreover , the applicant was in prison , and once his sentence was served he would be expelled to GPE with a prohibition on returning until DATE . Against this background , it was most appropriate that the ex - wife be granted sole custody of the children .", "As concerned access rights , the court noted that according to several witness statements the applicant had been a good father to his children . However , there was a considerable risk that the children had experienced the violence to which their mother had been subjected and that seeing the applicant could bring back bad memories and disturb the sense of safety that the children now experienced . Moreover , the applicant was now in prison , from where he would only be able to have very restricted access to his children . Furthermore , even if the children were able to create a safe relationship with the applicant during such limited access , the applicant would subsequently be expelled and therefore separated from his children until DATE . ORG therefore found that access was not in the children ’s best interest . It did not rule out that access might be established at a later point in time .", "ORG only took a stand on access as requested by the applicant , namely to have physical contact with his children in the presence of a contact person . It did not take any decision regulating or limiting the applicant sending letters to his children . Practically , however , sending letters was complicated by the fact that the children lived with their mother at a secret address . Nevertheless , it was possible to send letters to the children via ORG . Also , the offer by the social welfare board to pass on letters from the applicant to the children via their mother still stood . The applicant availed himself thereof once at DATE when he send gifts to the children . Moreover , on DATE the ex - wife gave detailed information about the children and their everyday life to the social welfare office , and that information was subsequently communicated to the applicant .", "The applicant appealed against the ORG judgment of DATE to ORG , stating that he had requested the Government to repeal his expulsion order and that he had lodged a complaint with ORG DATE as he considered that his expulsion to GPE would be in violation of LAW . Consequently , it was not certain that he would be expelled and hence his proposed expulsion was not a reason to deny him access to his children . Moreover , he owned a house and had a job and several friends , for which reason he could offer the children a stable place to visit once he was released from prison . He found it unacceptable that he had no news at all of his children and allegedly was only allowed to send CARDINAL letters per year to them . The ex - wife stated that the applicant could have access to the children when they were older .", "On DATE the ORG refused leave to appeal and , on CARDINAL DATE , so did ORG .", "On DATE , the applicant requested the Government to repeal his expulsion order and grant him a residence permit in GPE . He submitted essentially that there were problems in GPE between NORP and NORP , that he had been wrongfully convicted and that he had CARDINAL children in GPE .", "In a submission of DATE , the applicant stated that when the ORG came into power in DATE and took control of the NORP area , his father started talking about schools and freedom with others in the NORP group . The ORG perceived from this that his father was dissociating himself from his religion . They tried to capture him but he went into hiding . The applicant was captured instead and imprisoned . He was illtreated for DATE , which included beating and being stabbed in the back with a knife , to get him to reveal his father ’s hiding place , which he refused . His father paid a large ransom for his release after DATE and the applicant was admitted to hospital for DATE . DATE he went with his father to the mosque , where they were captured by the NORP who told the applicant that he was not a NORP since his father was married to a NORP . They wanted him to prove his loyalty to the NORP by walking on burning coals . When he refused , they stabbed him in the shoulder . He walked on the coals and suffered serious burns to his feet . He was left alone and his father came in disguise in the middle of the night to pick him up . His father had to carry him home , where he was treated for his injuries . DATE , he and his father went to the mosque again and there the others decided that his father should kill him and his mother , which his father refused . Then it was decided that the whole family should die and CARDINAL of his father ’s friends warned them of this . The applicant was CARDINAL at the time . He and his parents woke up in the middle of the night to find that the house was on fire and that people were trying to get in through the window . His father fetched a weapon and his mother opened a hatch to an escape tunnel under the house . Before jumping down he saw his mother being injured . They threw down money to him and closed the hatch . He had no choice but to crawl out through the tunnel . He stood and watched while the house burned down and then went to the home of CARDINAL of his father ’s friends who lived in another city . This man helped him leave GPE .", "NORP In a submission of DATE , the applicant added that he suffered from post - traumatic stress syndrome ( PTSD ) , that he had tried to commit suicide , and that he had no family other than his children and a new girlfriend in GPE .", "On DATE the Government rejected the applicant ’s request . It found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in GPE .", "In DATE , the applicant submitted a new application , dated DATE , for revocation of the expulsion order . He added that he had not been in contact with his country of origin since he left but knew that his father ’s business partner , who had helped him escape , had been killed . Since his parents had been killed and he himself had been tortured by the ORG , his life was in great danger . He also risked being killed upon return to GPE for having married NORP woman although he was a NORP and for having violated a NORP woman in the acts for which he had been convicted in GPE . Invoking anew his poor mental health , the applicant submitted some medical certificates . CARDINAL certificate was dated DATE and written by a physician at the prison . It stated that the applicant had alleged that he had been imprisoned and tortured on several occasions in GPE and that the physician had seen a large number of scars on his back from cuts . He also had CARDINAL scars from stab wounds to his thigh and his shin . The physician confirmed that the scars might have been caused by torture as alleged by the applicant . A second medical certificate was dated DATE and written by a chief physician and specialist in psychiatry , and by a psychologist at ORG . It stated that the certificate was based on the applicant ’s contacts with the ORG from DATE . He had begun psychotherapy at FAC in DATE to talk about his background and traumatic experiences . The physicians had considered that he was clearly traumatised and had several symptoms of PTSD such as nightmares , flashbacks and anxiety . However , the applicant had been found stable in DATE for which reason the sessions had ended . In DATE the applicant had contacted the physicians again because he had been feeling unwell . When he had been arrested on suspicion of raping PERSON , he had been placed in a cell and had experienced strong flashbacks from when he had been kidnapped and tortured for DATE in GPE . He had been so desperate that he had cut his wrists with a table knife and had then spent TIME in the psychiatric emergency department . He had then resumed his sessions with the psychologist and had received medication to help him sleep . However , he had overdosed on the medication in DATE due to the strain caused by the criminal trial against him . His last session had been in DATE , before being imprisoned , and after the judgment he had again tried to commit suicide by taking an overdose of pills . According to the CARDINAL physicians , the applicant suffered from GPE , depression , anxiety and had a serious stress reaction to his situation . He was therefore in a very fragile state mentally , with a high risk of suicide if the expulsion order were to be enforced . Thus , they concluded that there were medical - psychiatric impediments to the enforcement of the expulsion order .", "On DATE the ORG rejected the new request as it found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in GPE .", "Finally , in DATE the applicant submitted a third application for revocation of the expulsion order based essentially on the same grounds as the previous ones . That case is still pending before ORG .", "On DATE the ORG decided to apply Rule CARDINAL of ORG , indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice .", "On DATE , following the ORG ’s indication under LAW , the acting Minister of ORG decided to stay the enforcement of the expulsion until further notice .", "The Minister also decided that the applicant should be taken into custody upon his conditional release from prison . Accordingly , the applicant was taken into custody on CARDINAL DATE . He was released on DATE by decision of ORG .", "In the meantime , the ORG requested additional information from ORG about some of the issues raised in the present case . Having made an investigatory visit to GPE in DATE , ORG concluded , inter alia , that the security situation in GPE was not such that an expulsion thereto in general would entail a violation of LAW . The ORG noted , however , that according to various sources , the ORG had increased their operation in Ghazni province where arbitrary killings and civilian deaths among supporters of Government forces had been reported . In GPE the violence had increased mostly in the NORP - dominated south , while the situation was relatively calm in the NORP - dominated northern part of the province . Thus , at the relevant time , there were impediments to enforcing expulsion orders to GPE , notably due to the unstable security situation , which meant , among other things , that humanitarian organizations could not operate in the province and that there were problems for travellers on the road between GPE and the province .", "DATE . On DATE the prosecution authority issued restraining orders against the applicant vis - à - vis his ex - wife and their children , under LAW . The prosecution noted that the applicant had previously been convicted of rape and aggravated violation of a woman ’s integrity regarding his former wife , and found that there was a risk that the applicant would commit a crime against , persecute or in some other way seriously harass his former wife or the children . The orders were in force for DATE , that is until DATE . Violation of restraining orders is a crime under the aforementioned LAW that can result in a fine or a maximum prison sentence of DATE . The applicant failed to bring the decision before the courts .", "The provisions concerning the right of aliens to enter and to remain in GPE are laid down in LAW ( Utlänningslagen , GPE hereafter referred to as “ LAW ” ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . LAW was amended anew on DATE . The following refers to LAW in force at the relevant time .", "Under the previous Aliens Act , asylum applications were dealt with by ORG and ORG . Under LAW in force , matters concerning the right of aliens to enter and remain in GPE are normally dealt with by CARDINAL instances , ORG , ORG and ORG . Thus , appeal against a decision or an order for expulsion issued by ORG , which carries out the initial examination of the case , lies to ORG . ORG is , in principle , obliged to review its decision before it forwards an appeal to ORG . Appeal against a judgment or decision of ORG in turn lies to ORG . This instance will , however , only deal with the merits of the case after having granted leave to appeal . Leave to appeal will be granted if ( CARDINAL ) it is considered of importance for the guidance of the application of the law that the appeal is examined by ORG or ( CARDINAL ) there are other exceptional grounds for examining the appeal .", "LAW , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment LAW , LAW , of LAW ) .", "Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .", "Pursuant to LAW , LAW ( ORG , FAC ) a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place .", "Provisions on expulsion on this ground are laid down in LAW . According to LAW , sections CARDINAL and DATE , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied and the person ’s links to NORP society have been taken into account .", "NORP Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , of LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Furthermore , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .", "If the Government find that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , by virtue of LAW , section DATE CARDINAL Act , the Government may repeal , in part or completely , the judgment or decision of the court . When considering whether to repeal an expulsion order , the Government shall above all take into account any new circumstances , namely circumstances that did not exist at the time of the courts’ examination of the criminal case . In the travaux préparatoires to this provision ( Government Bill CARDINAL/CARDINAL:CARDINAL , p. CARDINAL ) , strong family ties and severe illness are given as examples of such “ special reasons ” that may warrant revocation of an expulsion order . The ORG may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) , pardon or reduce a penal sanction or other legal effect of a criminal act .", "Rules concerning rights of access to children are primarily to be found in LAW of the Children and Parents Code ( ORG CARDINAL:CARDINAL ; hereinafter the Code ) . The best interests of the child must be the determining factor in all decisions concerning custody , residence and access . In the assessment of what is in the best interests of the child , particular attention shall be paid to the risk of the child or another member of the family being exposed to abuse or of the child being unlawfully abducted , retained or otherwise harmed . Particular attention shall also be paid to the child ’s need for close and good contact with both parents . Regard should also be given to the wishes of the child while taking into account the age and maturity of the child ( LAW , LAW a , of the LAW ) .", "A child shall have the right to access with a parent with whom he or she is not living . Access may take place by the child and the parents seeing each other or by other kinds of contact . The child ’s parents have a joint responsibility to ensure that , as far as possible , the child ’s need for access to a parent with whom he or she is not living is met . If both parents have custody of the child and the child is to have access to a parent with whom he or she is not living , the other parent shall provide such information about the child as will promote access , unless there are special reasons to the contrary . If the child is to have access to a parent who does not have custody or with some other person who is particularly close to the child , the information referred to in the previous sentence shall be provided by the person with custody ( LAW , LAW , of the LAW ) .", "The courts may decide that particular conditions or directions shall apply to the right of access , such as the presence of a contact person or where the contact should take place . However , according to ORG such directions shall be decided only in exceptional cases since too detailed directions may lessen the GPE will to cooperate . Directions may be given if , without them , the contact would not take place at all or would only take place to a lesser extent contrary to the child ’s interests .", "Prior to DATE it was not explicitly stated in the LAW that access could take place by means of contact other than direct contact between the child and parent , such as telephone or letters . Normally , the parents should be able to agree on the extent of such indirect contact . The municipalities also assist in reaching agreements on such contact . However , through the introduction of the new provision in LAW , LAW , of the LAW , the courts have been enabled to decide that access is to take place in some other way than by the child meeting with the parent . The aim is to provide , in exceptional cases , a way of bringing about contact between a child and a parent when direct access is not an option . This may be the case for instance when the child and the parent live a considerable distance from each other or when the freedom of movement of the parent is restricted as a result of a prolonged hospital stay or similar circumstance ( see Government PERSON , p. CARDINAL . )", "According to the rules on right to access , it is in the child ’s best interests to have close and good contact with both parents in most cases . However , that does not mean that the child must have contact with a parent in all circumstances . A child must have an absolute right not to be subjected to violence , abuse or other degrading treatment . It is also well known that a child ’s psychological health may be endangered if the child has to see or hear domestic violence . Accordingly , the courts and social authorities shall pay particular attention to the risk of violence and other kinds of abuse directed against a child or other members of the family , and the finding of such a risk shall weigh heavily in the overall assessment of what is in the best interests of the child in a particular case . The result of the assessment may be that it is best for the child not to have any contact at all , to have contact , inter alia , in the presence of a contact person or that access should be established when the child has reached a mature age ( see Government Bill CARDINAL/CARDINAL:CARDINAL . p. CARDINAL . )", "ORG from GPE , DATE ( “ ORG DATE GPE Guidelines ” ) observed , inter alia , under “ I. Introduction ” :", "“ ... In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties ORG considers that the situation can be characterized as CARDINAL of generalized violence in GPE , GPE , GPE , and parts of GPE and GPE provinces . Therefore , NORP asylum - seekers formerly residing in these areas may be in need of international protection under broader international protection criteria , including complementary forms of protection . In addition , given the fluid and volatile nature of the conflict , asylum applications by NORP claiming to flee generalized violence in other parts of GPE should each be assessed carefully , in light of the evidence presented by the applicant and other current and reliable information on the place of former residence . This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication .", "ORG generally considers internal flight as a reasonable alternative where protection is available from the individual ’s own extended family , community or tribe in the area of prospective relocation . Single males and nuclear family units may , in certain circumstances , subsist without family and community support in urban and semi - urban areas with established infrastructure and under effective Government control . Given the breakdown in the traditional social fabric of the country caused by DATE of war , massive refugee flows , and growing internal migration to urban areas , a case - by - case analysis will , nevertheless , be necessary .", "In light of the serious human rights violations and transgressions of international humanitarian law during GPE ’s long history of armed conflicts , exclusion considerations under LAW may arise in individual claims by NORP asylum - seekers . Careful consideration needs to be given in particular to the following profiles : ( i ) members of the security forces , including ORG agents and high - ranking officials of the communist regimes ; ( ii ) members and commanders of armed groups and militia forces during the communist regimes ; ( iii ) members and commanders of the ORG , PERSON and other armed anti - Government groups ; ( iv ) organized crime groups ; ( v ) members of NORP security forces , including the NDS ; and ( vi ) pro - Government paramilitary groups and militias . ”", "“ It is widely documented that ethnic - based tension and violence have arisen at various points in the history of GPE . Since DATE of the ORG regime in DATE , however , ethnically - motivated tension and violence have diminished markedly in comparison to earlier periods . Notwithstanding the foregoing and despite constitutional guarantees of “ equality among all ethnic groups and tribes ” certain concerns remain . These include , inter alia , ethnic discrimination and clashes , particularly in relation to land use / ownership rights .", "GPE is a complex mix of ethnic groups with inter - relationships not easily characterized . For different historical , social , economic and security - related reasons , some members of ethnic groups now reside outside areas where they traditionally represented a majority . This has resulted in complex ethnic mosaic in some parts of the country , notably the northern and central regions , and in the major cities in the west , north and centre of GPE . Consequently , an ethnic group can not be classified as a minority by simply referring to national statistics . A person who belongs to a nationally dominant ethnic group - such as NORP and NORP - may still face certain challenges relating , at least in part , to his or her ethnic association , in areas where other ethnic groups predominate . Conversely , a member of an ethnic group constituting a minority at the national level is not likely to be at risk in areas where the ethnic group represents the local majority . The issue of ethnicity may feature more prominently where tensions over access to natural resources ( such as grazing land and water ) and political / tribal disputes occur , or during periods of armed conflict ...", "As an example , CARDINAL of the groups affected are the NORP , who have been uprooted in large numbers by ethnic violence in the north and the west of the country following the collapse of the ORG regime . NORP throughout northern GPE , where they constitute an ethnic minority , have since been subject to discrimination , arbitrary arrests , violence and reprisal killings by non - NORP militias and groups because of their ( perceived ) association with the former ORG regime , whose leadership consisted mostly of NORP from southern GPE . Political power in the north reportedly still rests with local powerbrokers associated with the ( NORP - dominated ) ORG , who are reluctant to allow the sustainable reintegration of NORP returnees or provide for their protection . As such , formerly displaced NORP may be unable to recover their land and property upon return to their area of origin ...", "Marginalized during the ORG rule , the NORP community continues to face some degree of discrimination , despite significant efforts by the Government to address historical ethnic tensions . Notwithstanding the comparatively stable security situations in provinces and districts where the NORP constitute a majority or a substantial minority , such as GPE , GPE and NORP districts in GPE , the security situation in the remainder of the province , including on access routes to and from these districts , has been worsening ...", "However , the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone . Other factors including , inter alia , the relative social , political , economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant . Consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines , which may exacerbate the risk of persecution . In the ever - evolving context of GPE , the potential for increased levels of ethnic - based violence will need to be borne in mind . ”", "In respect of “ ORG Alternative ” it was set out , among other things :", "“ A detailed analytical framework for assessing the availability of an internal flight or relocation alternative ( IFA / IRA ) is contained in LAW . CARDINAL : “ Internal Flight or Relocation Alternative ” Within ORG CARDINALA(CARDINAL ) of LAW and/or DATE Protocol Relating to the Status of Refugees ...", "Whether an IFA / IRA is “ reasonable ” must be determined on a case - by - case basis , taking fully into account the security , human rights and humanitarian environment in the prospective area of relocation at the time of the decision . To this effect , the following elements need to be taken into account : ( i ) the availability of traditional support mechanisms , such as relatives and friends able to host the displaced individuals ; ( ii ) the availability of basic infrastructure and access to essential services , such as sanitation , health care and education ; ( iii ) ability to sustain themselves , including livelihood opportunities ; ( iv ) the criminality rate and resultant insecurity , particularly in urban areas ; as well as ( v ) the scale of displacement in the area of prospective relocation ...", "In light of the foregoing , ORG generally considers ORG as a reasonable alternative where protection is available from the individual ’s own extended family , community or tribe in the area of intended relocation . Single males and nuclear family units may , in certain circumstances , subsist without family and community support in urban and semi - urban areas with established infrastructure and under effective Government control . A case - by - case analysis will , nevertheless , be necessary given the breakdown in the traditional social fabric of the country caused by DATE of war , massive refugee flows , and growing internal migration to urban areas . ”", "According to ORG Mental Health Atlas , DATE , on GPE , mental health was not covered by the primary health care system . ORG had been established in the capital and there were CARDINAL general psychiatric rehabilitation centres with CARDINAL . There were only very few trained psychiatrists . Most doctors working as psychiatrists had either had in - service training or had attended short courses abroad . Psychologists were trained at ORG . Much of the qualified manpower and technical expertise had left the country . NGOs were involved with mental health in the country . The following therapeutic drugs were generally available at the primary health care level of the country : carbamazepine , phenobarbital , amitriptyline , hlorpromazine , diazepam and haloperidol . The cost of medicines kept fluctuating due to the effect of war on the stability of the local currency . Over - the - counter sales of psychotropic drugs occurred .", "In an article published by NORP ORG in GPE in DATE ( http://www.cwCARDINALwafghan.ca/MentalHealth ) it was stated , inter alia :", "“ GPE reportedly has CARDINAL psychologists and psychiatrists in the entire country . In the capital , ORG manages ORG , founded DATE , which also includes inpatient services for men and women , and a drug treatment centre called ORG . In DATE , this centre saw CARDINAL inpatients suffering from drug addiction , mainly heroin and opium addiction ( ORG , GPE , DATE ) . The hospital , long notorious for its dilapidated and unhygienic state , has CARDINAL beds ; while experts say at least a CARDINAL-bed facility is needed . It was also criticized in a DATE assessment by the GPE for not providing follow - up treatment post - discharge and for the high relapse rates of addicts and mental health patients . In DATE , CARDINAL patients were admitted to the hospital and CARDINAL patient consultations took place ( of which CARDINAL were treated for depression and CARDINAL treated for psychosis ) , which remains the only mental health hospital in the country , despite announcements by the Minister of Public Health back in DATE that CARDINAL-bed mental health hospitals would be opened in every region of the country , in addition to CARDINAL-bed hospitals in every province , and CARDINAL-bed clinics in every district . As of DATE , ORG had no plans in place to construct a new hospital in GPE ; however , in DATE , ORG moved ahead with plans to design a program to support the existing hospital and to build the capacity of the CARDINAL hospital personnel . The program will be implemented by the international NGO , ORG .", "... tertiary care facilities like the CARDINAL-bed mental health Hospital and CARDINAL-bed PERSON detox center , which are mandated to accept patients from across GPE , lack the resources , space , qualified personnel and internal systems to provide appropriate , humane care for patients . ” – ORG in GPE , DATE .", "ORG currently operates a mental health training program with funding from ORG and ORG , with plans to expand it to CARDINAL hospitals in the northern region of the country in DATE . In GPE , there is no dedicated university faculty to train mental health personnel ; however , ORG announced in DATE its plans to work with ORG “ to improve advanced psychiatric education at medical universities in GPE ” ( GPE website ) ." ]

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[ "The applicant , who was born in DATE , was a lawyer by profession . He is now retired and lives in GPE .", "In DATE , after the communist regime had been established , the applicant , who was then a student , was refused permission by the prefect of the county of Vaslui to publish CARDINAL pamphlets , “ Student Soul ” ( Suflet de student ) and “ NORP ” ( PERSON ) , on the ground that they expressed antigovernment sentiments .", "Dissatisfied with that refusal , the applicant wrote CARDINAL letters to the prefect in which he protested against the abolition of freedom of expression by the new people 's regime . As a result of these letters , the applicant was arrested on DATE . On DATE ORG convicted the applicant on a charge of insulting behaviour and sentenced him to DATE imprisonment .", "In DATE , after the communist regime had been overthrown , the new government caused Legislative Decree no . PERSON to be passed , which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in NORP activities ( see paragraph CARDINAL below ) .", "On DATE the applicant brought proceedings in the ORG against ORG , ORG and ORG , seeking to have the prison sentence that had been imposed in the DATE judgment taken into account in the calculation of his length of service at work . He also sought payment of the corresponding retirement entitlements .", "NORP The court gave judgment on DATE . Relying on , among other things , the statements of witnesses called by the applicant ( P.P. and PERSON ) , the DATE judgment and depositions from ORG , it noted that DATE the applicant had been persecuted on political grounds . It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no . PERSON .", "As part of its defence in those proceedings , ORG submitted to the court a letter of DATE that it had received from ORG ( Serviciul Român de Informaţii – “ the RIS ” ) . The letter read as follows :", "“ In reply to your letter of DATE , here are the results of our checks on PERSON , who lives in GPE :", "( a ) during his studies in ORG at ORG the aforementioned person was a member of ORG , a ' legionnaire ' [ legionar]-type [ ] movement .", "( b ) in DATE he applied to the ORG censorship office for permission to publish CARDINAL pamphlets entitled ' Student Soul ' and ' NORP ' but his request was turned down because of the anti - government sentiments expressed in them ;", "( c ) he belonged to the youth section of ORG , as appears from a statement he made in DATE ;", "( d ) he has no criminal record and , contrary to what he maintains , was not imprisoned during the period he mentions ;", "( e ) in DATE he was summoned by the security services on several occasions because of his ideas and questioned about his views ... ”", "The applicant brought proceedings against the RIS , stating that he had never been a member of the NORP legionnaire movement , that he had not been a student in ORG at ORG but in LAW and that some of the other information provided by the RIS in its letter of DATE was false and defamatory . Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non - pecuniary damage he had sustained . He also sought an order , without relying on any particular legal provision , that the ORG should amend or destroy the file containing the information on his supposed legionnaire past .", "In a judgment of DATE ORG Instance dismissed the applicant 's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it .", "The applicant appealed .", "On DATE ORG found that the information that the applicant had been a legionnaire was false . However , it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information , and that in the absence of negligence the rules on tortious liability did not apply . The court noted that the information had been gathered by the ORG 's security services , which , when they were disbanded in DATE , had forwarded it to the ORG ( ORG ) , which had in its turn forwarded it to the ORG in DATE .", "On DATE ORG dismissed an appeal by the applicant against the judgment of DATE in the following terms :", "“ ... the ORG finds that the applicant 's appeal is ill - founded . As the statutory depositary of the archives of the former ORG security services , the ORG in letter no . DATE forwarded to ORG information concerning the applicant 's activities while he was a university student , as set out by the ORG security services . It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the ORG , which is merely the depositary of the former ORG security services ' archives . In dismissing his application , the judicial authorities did not infringe either LAW but stayed the proceedings in accordance with the jurisdictional rules laid down in LAW . ”", "On DATE the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed . He based his action on LAW , relating to denials of justice , and LAW . According to the applicant , both ORG and ORG refused to register his action .", "In this connection , the applicant lodged a fresh application with the ORG on CARDINAL DATE , which was registered under file no . MONEY and is currently pending before the ORG .", "NORP In DATE the Minister of ORG informed the Director of the RIS that ORG had declared the applicant 's present application admissible . The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and , if that information proved to be false , to inform the applicant of the fact so that he could subsequently make use of it in any application for review .", "On DATE the Director of the RIS informed the Minister of ORG that the information in the letter of DATE that the applicant had been a legionnaire had been found by consulting their archives , in which a table drawn up by the Iaşi security office had been discovered that mentioned , in entry CARDINAL , CARDINAL PERSON , a “ science student , rank - and - file member of ORG , legionnaire ” . The Director of the PERSON mentioned that the table was dated DATE and expressed the view that “ since at that date Mr PERSON was only CARDINAL , he could not have been a student in ORG . [ That being so , ] we consider that there has been a regrettable mistake which led us to suppose that Mr PERSON of GPE was the same person as the one who appears in that table as a member of a legionnaire - type organisation . Detailed checks made by our institution in the counties of GPE and ORG have not provided any other information to confirm that the CARDINAL names refer to the same person . ”", "A copy of that letter was sent to the applicant , who on DATE applied to ORG to review its decision of DATE . In his application he sought a declaration that the defamatory documents were null and void , damages in the amount of CARDINAL leu in respect of non - pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings , adjusted for inflation .", "The PERSON submitted that the application for review should be dismissed , holding that , in the light of the RIS Director 's letter of DATE , the application had become devoid of purpose .", "NORP In a final decision of CARDINAL DATE ORG quashed the decision of DATE and allowed the applicant 's action , in the following terms :", "“ It appears from letter no . CARDINAL of DATE from ORG ... that in the archives ( shelf - mark DATE , vol . CARDINAL , p. CARDINAL ) there is a table which lists the names of the members of legionnaire organisations who do not live in GPE , entry CARDINAL of which contains the following : ' PERSON – science student , rankand - file member of ORG , legionnaire ' . Since the applicant was DATE when that table was drawn up , on DATE , and since he did not attend lectures in ORG , and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name ' PERSON does not seem to be connected with an individual living in GPE whose personal details correspond to those of the applicant , ORG considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant .", "Having regard to this letter , the ORG holds that it satisfies the requirements of LAW as it is such as to completely alter the facts previously established . The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant 's control .", "That being so , the date on which the ORG was formed and the way in which the former security services were organised are not relevant factors . Similarly , the fact , albeit a true one , that ORG is only the depositary of the archives of the former security services is irrelevant . What matters is the fact that letter no . DATE of DATE from ORG no . DATE ) contains details which do not relate to the applicant , so that the information in that letter is false in respect of him and , if maintained , would seriously injure his dignity and honour .", "In the light of the foregoing and in accordance with the aforementioned statutory provision , the application for review is justified and must be allowed . It follows that the earlier decisions in this case must be quashed and that the applicant 's action as lodged is allowed . ”", "The court did not make any order as to damages or costs .", "The relevant provisions of the LAW read as follows :", "“ ( CARDINAL ) The constitutional provisions on citizens ' rights and liberties shall be interpreted and applied in accordance with LAW and with the covenants and other treaties to which GPE is a party .", "( CARDINAL ) In the event of conflict between the covenants and treaties on fundamental human rights to which GPE is a party and domestic laws , the international instruments shall prevail . ”", "“ ( CARDINAL ) Anyone may apply to the courts for protection of his rights , liberties and legitimate interests .", "( CARDINAL ) The exercise of this right shall not be restricted by any statute . ”", "The relevant provisions of LAW are worded as follows :", "“ A judge who refuses to adjudicate , on the pretext that the law is silent , obscure or defective , may be prosecuted on a charge of denial of justice . ”", "“ Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”", "“ Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence . ”", "The relevant provision of LAW reads as follows :", "“ An application may be made for review of a final decision ... where written evidence which has been withheld by the opposing party or which it was not possible to submit for a reason beyond the parties ' control is discovered after the decision has been delivered ... ”", "The relevant provisions of Decree no . CARDINAL of DATE on natural and legal persons are worded as follows :", "“ ( CARDINAL ) Anyone whose right ... to honour , reputation ... or any other non - economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights .", "( CARDINAL ) Similarly , anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to carry out any measure regarded as necessary by the court in order to restore his rights . ”", "“ If a person responsible for unlawful acts does not within the time allowed by the court perform what he has been enjoined to do in order to restore the right infringed , the court may sentence him to pay a periodic pecuniary penalty to the ORG ... ”", "At the material time , the relevant provisions of Legislative Decree no . PERSON read :", "“ The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pension and any other rights derived from seniority : periods during which a person , after DATE , for political reasons –", "( a ) NORP served a custodial sentence imposed in a final judicial decision or was detained pending trial for political offences ;", "... ”", "“ A committee composed of a chairman and at most CARDINAL other members shall be set up in each county ... in order to verify whether the requirements laid down in DATE have been satisfied ...", "The chairman must be legally qualified . The committee shall include CARDINAL representatives from the employment and social - welfare departments and a maximum of CARDINAL representatives from the association of former political detainees and victims of the dictatorship .", "... ”", "“ The persons concerned may establish that they satisfy the conditions laid down in DATE by means of official documents issued by the relevant authorities or ... of any other material of evidential value .", "... ”", "“ The provisions of this decree shall not be applicable to persons who have been convicted of crimes against humanity or to those in respect of whom it has been established , by means of the procedure indicated in DATE , that they engaged in NORP activities within a NORP - type organisation . ”", "The relevant provisions of Law no . CARDINAL of DATE on the organisation and operation of ORG , which was published in ORG on DATE , read as follows :", "“ ORG shall organise and carry out all activities designed to gather , verify and utilise the information needed for discovering , preventing and frustrating any actions which , in the eyes of the law , threaten GPE 's national security . ”", "“ ORG shall be authorised to hold and to make use of any appropriate resources in order to secure , verify , classify and store information affecting national security , as provided by law . ”", "“ All internal documents of ORG shall be secret , shall be kept in its own archives and may be consulted only with the consent of the Director as provided in law .", "Documents , data and information belonging to ORG shall not be made public until DATE after they have been archived .", "ORG shall , in order to keep and make use of them , take over all the national - security archives that belonged to the former intelligence services operating on NORP territory .", "The national - security archives of the former ORG shall not be made public until DATE after the date of the passing of this LAW . ”", "The relevant provisions of PERSON no . CARDINAL of DATE , which came into force on DATE , are worded as follows :", "“ ( CARDINAL ) All NORP citizens , and all aliens who have obtained NORP nationality DATE , shall be entitled to inspect the files kept on them by the organs of the PERSON ... This right shall be exercisable on request and shall make it possible for the file itself to be inspected and copies to be made of any document in it or relating to its contents .", "( CARDINAL ) Additionally , any person who is the subject of a file from which it appears that he or she was kept under surveillance by the ORG shall be entitled , on request , to know the identity of the ORG agents and collaborators who contributed documents to the file .", "( CARDINAL ) Unless otherwise provided by law , the rights provided in subsections ( CARDINAL ) and ( CARDINAL ) shall be available to the surviving spouses and relatives up to the second degree inclusive of a deceased . ”", "“ ( CARDINAL ) In order to provide for a right of access to information of public interest , all NORP citizens ... , the media , political parties ... shall be entitled to be informed ... if any of the persons occupying the following posts or seeking to do so have been agents or collaborators of the PERSON :", "( a ) NORP the President of GPE ;", "( b ) member of ORG or of the ORG ;", "... ”", "“ A ORG for the Study of the Archives of the ORG ... ( hereinafter ' the ORG ' ) , with its headquarters in GPE , shall be set up to apply the provisions of this Act .", "The ORG shall be an autonomous body with legal personality , subject to supervision by ORG . ... ”", "“ The ORG shall consist of a college of CARDINAL members .", "The members of the college of the ORG shall be appointed by ORG , on a proposal by the parliamentary groups , according to the political composition of the CARDINAL Chambers ... for a term of office of DATE , renewable once . ”", "“ ( CARDINAL ) The beneficiaries of this LAW may , in accordance with section CARDINAL(CARDINAL ) , request the Council –", "( a ) to allow them to consult the files ... compiled by the ORG CARDINAL DATE ;", "( b ) to issue copies of ... these files ... ;", "( c ) NORP to issue certificates of membership or non - membership of the ORG and of collaboration or non - collaboration with it ;", "... ”", "“ ( CARDINAL ) The content of certificates under LAW ) may be challenged before the college of the Council ... ”", "“ ( CARDINAL ) The right of access to information of public interest shall be exercisable by means of a request sent to the ORG . ...", "...", "( CARDINAL ) In response to requests made under LAW , the ORG shall verify the evidence at its disposal , of whatever form , and shall immediately issue a certificate ... ”", "“ ( CARDINAL ) Any beneficiary or person in respect of whom a check has been requested may challenge before the college of the ORG a certificate issued under LAW . ...", "The college 's decision may be challenged ... in ORG ... ”" ]

[ "13", "6", "8" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . The respondent Government are represented by PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is of fragile health . He was considered by ORG ( ORG ) as partially incapacitated for work .", "On DATE the ORG ( ORG súd ) found the applicant guilty of ill - treatment and causing bodily harm to a dependant ( his son ) contrary to LAW and CARDINAL ( b ) and LAW . The applicant was sentenced to CARDINAL years’ imprisonment . On DATE the Banská Bystrica Regional Court ( Krajský súd ) upheld the judgment on the applicant ’s appeal .", "The applicant had had CARDINAL previous criminal convictions : in DATE for illtreatment of a dependant and in DATE for causing grievous bodily harm .", "On DATE , at TIME , the applicant began his sentence in the LOC prison . On his admission to the prison , the applicant refused to communicate with the prison personnel . At TIME he declared that he would not obey orders and prison rules and went on hunger strike . He explained his actions orally and later also in writing as a protest against his conviction , which he considered unjust .", "On DATE the applicant was brought to the prison doctor who recommended that he be examined by a psychologist .", "On DATE the applicant was examined by the prison psychologist who concluded that the applicant ’s behaviour was of a primitive self - serving nature and had a pre - morbid psychopathic origin .", "On DATE the applicant was brought to the prison doctor for an examination in connection with his hunger strike . The circumstances of the applicant ’s escort after that examination are disputed .", "According to the applicant he was escorted by a single warder who , at TIME , insulted and severely assaulted him . As a result the applicant lost consciousness and only awoke DATE in the PERSON prison hospital .", "According to the Government the applicant was escorted by CARDINAL warders , there had been no abuse and the loss of consciousness was a fiction .", "On DATE the applicant was again examined by a doctor . According to the ORG , the applicant was moving around without assistance and came to the examination on foot . The applicant claims that he was unconscious and had to be wheeled on a gurney .", "On DATE the applicant was admitted to the psychiatric ward of the Trenčín prison hospital . According to the Government , when escorted to hospital , the applicant was able to walk on his own and without any assistance . The applicant disagrees . He further submits that on DATE he complained to the head physician of physical ill - treatment .", "As indicated in the report on his hospitalisation , the applicant initially refused to communicate , lay passively in bed and reverted to his original position when moved . On DATE of his stay in hospital the applicant started communicating , stopped his protest and claimed that he had been in a “ special state ” of which he remembered nothing . He was diagnosed with “ combined personality disorder with hysteric manifestations ” and received pharmacological treatment .", "The applicant stayed in hospital until DATE when he was moved to the LOC nad Váhom prison .", "On DATE the applicant was again admitted to a prison hospital in GPE . He was placed in the internal medicine unit where he was kept under observation , underwent examinations and tests and received pharmacological treatment . The applicant was released from hospital and was moved back to the Dubnica nad Váhom prison on DATE .", "In DATE the ORG found that the applicant was no longer partially incapacitated for work and withdrew the corresponding benefits . He appealed against this decision and , in connection with the appeal , had to undergo medical examinations on CARDINAL occasions .", "On DATE the applicant requested release on parole , arguing that the serving of the sentence had negative effects on his health and on his relationship with his children . The prison authorities commented on the request in a report and concluded that release was not recommended .", "On DATE ORG dismissed the request taking into account inter alia the above report . On DATE ORG upheld the decision on the applicant ’s appeal .", "On DATE the applicant again unsuccessfully requested parole .", "On DATE and DATE , respectively , the LOC nad Váhom prison administration decided that the applicant was to pay the costs of the medical examinations carried out in connection with the abovementioned disability benefits appeal as well as the costs of his escort to hospital on DATE .", "Further details concerning the serving of the applicant ’s sentence are disputed .", "Without submitting any documents in support of these allegations , the applicant claims that he was made to perform physical work ; that he was often mocked and verbally abused by the prison personnel ; that his correspondence , which included CARDINAL letters from relatives , was regularly interfered with ; that it was not possible for him to see his children ; that he did not receive adequate medical care and his general health had deteriorated ; and that his attempts to raise his situation with the public prosecution service went unanswered .", "Relying on reports from the prison administration , the prison hospital and the public prosecution service , the Government claim that the applicant had performed no work at all ; that he had avoided leisure activities ; that there had been no incidences of ill - treatment ; that the monitoring of the applicant ’s correspondence had been carried out in accordance with the applicable rules ; that none of his official correspondence had been interfered with ; that while in prison the applicant had sent CARDINAL private letters and that there was no indication that they had been interfered with in any way ; that the prison authorities had encouraged the applicant on several occasions to contact his children ; that his visits to them could not take place because the applicant had not been prepared to pay the costs of his transfer to the children ’s home where they were placed ; that he had been examined numerous times by an internist , a neurologist and a psychiatrist ; that he had consulted the prison doctor CARDINAL times ; that he had been provided with all necessary medicines and medical aids ; that he had contacted the prosecution service on CARDINAL occasions complaining of the inactivity of his lawyer and the report in reply to his request for release on parole ; and that he had never made any other complaints to the prosecution service . None of the reports submitted contained any indication that the applicant had complained of any abuse or that any abuse had been established .", "On DATE the applicant was released after having served his sentence .", "The applicant appealed against the decisions of DATE and DATE to the Director General of ORG . The Director dismissed his appeals as unfounded on DATE and DATE respectively . As regards the escort to hospital on DATE , the Director found that it had been prompted by the applicant ’s selfinflicted health condition ( the hunger strike ) and that his allegations about injuries caused by a beating were unsubstantiated .", "After his release , the applicant lodged a detailed complaint with the Director about the conditions of his imprisonment and his alleged illtreatment .", "On DATE the Director dismissed the complaint , finding wholly unsubstantiated the applicant ’s allegations of the beating and subsequent loss of consciousness on DATE , which was alleged to have been the reason for his hospitalisation . The medical attention given to the applicant in the prison hospital and elsewhere during his imprisonment had been adequate . No breach of any regulation had been established . Similar conclusions were drawn by ORG in their letter of DATE in response to the applicant ’s renewed complaints .", "The lex generalis governing execution of prison sentences is LAW ( Law no . CARDINAL Coll . , as amended ) .", "Supervision of legality in prisons is regulated by its LAW . It is primarily carried out by the public prosecution service ( section CARDINAL ) , the courts ( section CARDINAL ) and ORG ( section CARDINAL ) . Public prosecutors , judges and members of parliament have inter alia unrestricted access to prisons and the right to speak with prisoners without a third person being present .", "Subsidiary supervision is entrusted to religious organisations and ORG associations ( section DATE ) ." ]

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[ "s , may be summarised as follows .", "The first applicant , Mr PERSON , is a NORP national who was born in DATE and is currently in detention in an FAC in GPE .", "On DATE he entered the GPE clandestinely using false travel documents . On DATE he claimed asylum on the ground that as a member of the PERSON , a sub - clan of the minority ORG , he had been subjected to persecution by PERSON militia , who had killed his father and sister and seriously injured him . As a consequence , he had no surviving relatives in GPE .", "On DATE the Secretary of ORG for ORG refused the first applicant ’s asylum application , finding , inter alia , that the fact he had remained in GPE until DATE undermined his claim to be a member of a minority clan . On DATE he appealed against the refusal of the application on both asylum and human rights grounds , namely ORG and CARDINAL of the Convention . On DATE both the asylum appeal and the human rights appeal were dismissed by an Adjudicator who found that his account of what had happened to him in GPE was not credible .", "On DATE the first applicant pleaded guilty to CARDINAL offences of burglary , CARDINAL offences of dishonestly obtaining goods by deception and one offence of attempting to dishonestly obtain goods by deception . On DATE he was sentenced to CARDINAL months’ imprisonment . On DATE he was convicted , inter alia , of threats to kill and was sentenced to a further CARDINAL months’ detention at ORG . He was later sentenced to CARDINAL months’ imprisonment following a conviction for indecent exposure in DATE and to CARDINAL months’ imprisonment following a conviction for CARDINAL counts of burglary and theft and CARDINAL counts of attempted burglary in DATE .", "On DATE the first applicant was served with a decision to make a deportation order , in which the Secretary of ORG noted the seriousness of his offences and the need to protect the public from serious crime and its effects . He also noted that he was DATE , in good health and single . Although he had been resident in GPE for DATE , he had spent his youth and DATE in GPE . In the circumstances , it would not be unreasonable to expect him to readjust to life there . The Secretary of ORG for ORG also considered LAW but concluded that the first applicant ’s deportation would not constitute a disproportionate interference with his right to respect for his family and private life .", "On DATE his appeal against the Secretary of ORG ’s decision was rejected by an Immigration Judge . On DATE a deportation order against the first applicant was signed and an application for judicial review of the deportation decision was refused in DATE .", "On DATE the ORG granted the first applicant interim measures under Rule CARDINAL of ORG to prevent his removal to GPE prior to the ORG ’s consideration of his application .", "The second applicant , Mr ORG , is a NORP national who was born in DATE and is currently detained in an FAC .", "He was born in PERSON , which is now the capital of the selfdeclared state of NORP . When he was DATE , his family moved to GPE and he never returned to the north of the country .", "His father , a high - ranking officer in the army during the PERSON regime , was appointed to ORG in GPE as a military attaché in DATE . The second applicant joined him in GPE on DATE and was given CARDINAL months’ leave to enter . On DATE his father died . On DATE the second applicant made an application for asylum based on his father ’s position in the NORP army and the beginning of the civil war in GPE . On DATE he was recognised as a refugee and granted leave to remain until DATE . On DATE he was granted Indefinite Leave to Remain in GPE .", "The second applicant was convicted of a road traffic offence in DATE . On DATE he was sentenced to a total of DATE and CARDINAL months’ imprisonment by a ORG for handling stolen goods , obtaining property by deception , robbery and possessing an imitation firearm while committing an offence . On DATE he was convicted of perverting the course of justice and sentenced to CARDINAL months’ imprisonment . In DATE he was convicted on further counts of theft and road traffic offences . On DATE he was convicted of theft by a ORG and placed on a curfew . On DATE he was again convicted of theft and sentenced to CARDINAL months’ imprisonment . On DATE he was convicted by a ORG on CARDINAL counts of supplying class A drugs ( cocaine and heroin ) and on DATE he was sentenced to CARDINAL months’ imprisonment . On an unspecified date the second applicant was released on licence . On DATE he was sentenced to CARDINAL months’ imprisonment by a ORG for burglary and theft .", "On DATE a decision was made to issue a deportation order by virtue of section CARDINAL(CARDINAL ) of the Immigration Act DATE and the second applicant was invited to rebut the presumption that his continued presence in GPE constituted a danger to the community .", "He accepted that he was a drug addict but submitted that he did not constitute a danger to the community because he had made efforts to overcome his addiction and had recognised his past wrongdoings . However , on DATE the Secretary of ORG for ORG found that he had failed to demonstrate that he would not constitute such a danger . In respect of his rights under LAW and CARDINAL of the LAW , the Secretary of ORG found that even though he had been living in GPE and could be identified as such he would not be at risk on return to GPE as he was a member of the ORG , a majority clan . In respect of his rights under LAW , the Secretary of ORG accepted that he had family ties with his CARDINAL sisters and his mother in GPE but did not consider that these relationships constituted family life for the purposes of LAW as there was no evidence of dependency going beyond the normal emotional ties . The Secretary of ORG therefore concluded that his removal would not violate Articles CARDINAL , CARDINAL or DATE of the Convention .", "On DATE the second applicant ’s appeal against the decision of the Secretary of ORG for ORG was refused by ORG ( “ ORG ” ) , which considered that he could obtain clan protection in any part of GPE as he was a member of a majority clan . Although the ORG accepted that he would not find support in relation to his drug dependency in GPE , it found that this did not suffice to rebut the presumption in favour of deportation . As to his DATE claim , the second applicant had not shown that family life existed amongst his adult siblings and , even if it did , he had not shown that his circumstances were “ truly exceptional so that his removal would violate his LAW . Finally , the ORG noted that the sale of drugs posed a danger to the community and there was a real likelihood of the second applicant reoffending .", "A deportation order against the second applicant was signed on DATE and on DATE he was served with removal directions . On DATE he requested , and was granted , interim measures under Rule CARDINAL of ORG to prevent his removal before his application was considered by the ORG .", "On DATE the second applicant was convicted of possession of a Class A controlled drug with intent to supply and was sentenced to CARDINAL months’ imprisonment . On DATE he was again charged with possession of a Class A drug with intent to supply . A hearing has not yet taken place .", "At the material time , following the refusal of an asylum application by the Secretary of ORG for ORG , an applicant had a right of appeal to ORG ( “ the ORG ” ) . Section CARDINAL of the Nationality , Immigration and Asylum Act DATE ( as inserted by section CARDINAL(CARDINAL ) of ORG , etc . ) Act CARDINAL ) provided that a party to an appeal to the ORG could apply for an order that the ORG reconsider its decision on appeal on the ground that it had made a material error of law .", "Once the appeal process against the refusal of an asylum application had been exhausted , an applicant could continue to make further submissions to the Secretary of ORG for ORG . Paragraph CARDINAL of ORG ( ORG CARDINAL , as amended by ORG ) stated that :", "“ When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending , the decision maker will consider any further submissions and , if rejected , will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content :", "( i ) had not already been considered ; and", "( ii ) taken together with the previously considered material , created a realistic prospect of success , notwithstanding its rejection . ”", "Where a person was not granted leave to enter GPE , he or she could be subject to administrative removal pursuant to paragraph CARDINAL of Schedule CARDINAL of LAW DATE . Pursuant to section CARDINAL(CARDINAL ) of LAW , the Secretary of ORG also had power to deport any person who was not a NORP citizen on the ground that his deportation would be “ conducive to the public good ” .", "Council Directive CARDINAL/CARDINAL/EC of DATE on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ( “ the LAW ” ) has the objective , inter alia , of ensuring ORG ( “ GPE ” ) Member GPE apply common criteria for the identification of persons genuinely in need of international protection ( recital CARDINAL of the preamble ) . In addition to regulating refugee status , it makes provision for granting subsidiary protection status . Article CARDINAL(e ) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin . Serious harm is defined in article CARDINAL as consisting of : ( a ) death penalty or execution ; ( b ) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin ; or ( c ) serious and individual threat to a civilian ’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict .", "On DATE ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) , when considering the case of PERSON and ORG v. ORG ( the Deputy Minister of ORG ) , lodged a reference for a preliminary ruling with ORG ( “ ECJ ” ) asking , inter alia , whether article PERSON ) of the Directive offered supplementary or other protection to LAW .", "The ECJ held that article CARDINAL(c ) protection went beyond that of LAW , which was covered by article CARDINAL(b ) of LAW . The ECJ summarised the criteria to be applied as follows :", "“ Article PERSON ) of the Directive , in conjunction with article CARDINAL(e ) of the Directive , must be interpreted as meaning that the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances , and the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place ... reaches such a high level that substantial grounds are shown for believing that a civilian , returned to the relevant country or as the case may be , to the relevant region , would , solely on account of his presence on the territory of that country or region , face a real risk of being subject to that threat . ”", "In DATE ( GPE ) v Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL ORG observed that the ECJ in ORG had not introduced an additional test of exceptionality , but had simply stressed that not every armed conflict or violent situation would attract the protection of article CARDINAL(c ) . A conflict or violent situation would only attract the protection of article CARDINAL(c ) where the level of violence was such that , without anything to render them a particular target , civilians faced real risks to their lives or personal safety .", "More recently , in the case of ORG and Others ( Article PERSON ) ) GPE CG [ DATE ] ORG CARDINAL , ORG ) did not consider it helpful to attempt to distinguish between a real risk of civilian deaths as a result of targeted attacks and a real risk as a result of incidental attacks . In the ORG ’s opinion , the nexus between the generalised armed conflict and the indiscriminate violence posing a real risk to life and person was met when the intensity of the conflict involved means of combat , whether permissible under the laws or not , that seriously endangered non - combatants as well as to result in such a general breakdown of law and order as to permit anarchy and criminality occasioning the serious harm referred to in the Directive .", "It is a well - established principle that persons will generally not be in need of asylum or subsidiary protection if they could obtain protection by moving elsewhere in their own country . This principle is reflected both in article CARDINAL of the Qualification Directive and paragraph CARDINALO of ORG CARDINAL ( as amended ) , both of which provide that an applicant is not in need of international protection if there is a part of the country of origin where there is no well - founded fear of persecution or real risk of suffering serious harm , and where the applicant can reasonably be expected to stay .", "In the cases of GPE , GPE , PERSON and PERSON v Secretary of ORG for ORG [ DATE ] ORG DATE ( GPE ) v Secretary of ORG for ORG [ DATE ] ORG CARDINAL ORG held that the decision - maker , taking account of all relevant circumstances pertaining to the applicant and his country of origin , must decide whether it is reasonable to expect the applicant to relocate or whether it would be unduly harsh to expect him to do so . In this regard , the relevant comparison was between the conditions which prevailed in the place of relocation and those which prevailed elsewhere in the country of his nationality , including in his former place of habitual residence . If the applicant could live a relatively normal life in the place of relocation , judged by the standards which prevailed in his country of nationality generally , and if he could reach the less hostile part without undue hardship or undue difficulty , it would not be unreasonable to expect him to move there . However , the more closely the persecution was linked to the ORG , and the greater the control of the ORG over those acting or purporting to act on its behalf , the more likely ( other things being equal ) that a victim of persecution in CARDINAL place would be similarly vulnerable in another place within the same ORG .", "The factual background to the conflict in GPE , as described in the country reports at paragraphs CARDINAL – CARDINAL below and subsequently agreed by the parties , is as follows .", "GPE is comprised of CARDINAL autonomous areas : the self - declared Republic of NORP in the north west , the state of GPE in the north east , and the remaining southern and central regions . NORP society has traditionally been characterised by membership of clan families , which are subdivided into clans and sub - clans . The CARDINAL majority clans are ORG , GPE and GPE . In addition there are a number of minority groups , which are also divided into sub - groups . The FAC and PERSON take an intermediate position between the majority clans and the minority groups .", "GPE has been without a functioning central government since the overthrow of President PERSON by opposing clans in DATE . The clans could not agree on a replacement and lawlessness , civil conflict and clan warfare followed . GPE was fragmented into rival , clan - based factions and control of the city was divided among warlords . ORG was established in DATE but a combination of internal divisions within ORG and insecurity in central and southern GPE hindered it from becoming a functioning Government . In DATE ORG , a union of various LAW courts , took control of GPE . Following a period of fighting against a coalition of warlords called ORG and ORG , ORG took control of most of central and southern GPE . ORG Resolution DATE ( DATE ) authorised the deployment of ORG force to protect ORG . NORP ground and air forces also moved into GPE to support ORG and by DATE ORG had been ousted from GPE and much of southern GPE . Remnants of ORG withdrew to the southern reaches of the Lower Juba region where they continued to fight against ORG and NORP troops .", "After DATE of ORG , the semblance of order and security that it had created in GPE deteriorated . Roadblocks and checkpoints returned , as did banditry and violence . Furthermore , attacks by anti - government elements on ORG and NORP forces continued in GPE , with civilians frequently caught up in the fighting . Homes and public infrastructure were destroyed and a significant part of the civilian population was displaced . The fall of ORG also bought to the fore some of the inter- and intra - clan rivalries that had been suppressed during the conflict and serious clan related fighting ensued .", "In DATE the ORG for ORG was created when NORP and opposition leaders joined forces to fight ORG and NORP forces .", "On DATE ORG and the opposition Alliance for ORG signed a ceasefire agreement in GPE . At the same time , ORG extended the mandate of the ORG peacekeeping mission in GPE . However , the NORP insurgents at the heart of the escalation in violence were not party to the ceasefire agreement , and instead indicated that they would continue to fight until NORP forces withdrew from GPE .", "By DATE NORP insurgents , including a group called ORG , had regained control of most of southern GPE .", "GPE ’s ORG met in GPE in DATE and swore in CARDINAL new members from the ORG for ORG . The ORG also extended the mandate of ORG for DATE and installed moderate NORP Sheikh PERSON as the new President .", "GPE pulled its troops out of GPE in DATE . Soon after , ORG took control of GPE , formerly a key stronghold of ORG . In DATE NORP insurgents launched an attack on GPE , prompting President PERSON to appeal for help from abroad .", "In DATE ORG consolidated its position as the most powerful insurgent group by driving its main rival , PERSON , out of the southern port city of GPE . Since then it has openly declared its alliance with ORG and has been steadily moving forces up towards GPE .", "In DATE PERSON and ORG merged .", "ORG is recognised by ORG and almost all key foreign powers as the legitimate government of GPE . However , it currently controls only a small section of GPE centred on the port , the airport and the presidential palace . It is largely dependent on ORG troops for its survival .", "AMISOM is an ORG force authorised by ORG and deployed to GPE to support ORG . It currently consists of CARDINAL GPE and NORP troops .", "NORP forces joined the conflict in DATE to help drive out ORG . They remained in GPE until their withdrawal at DATE .", "ORG began as part of the armed wing of ORG . When the DATE NORP military intervention sent the leaders of ORG into exile , a hard core of ORG fighters remained in GPE to fight . In their DATE report , “ Harsh War , Harsh Peace ” , ORG indicated that ORG was an alliance of factions rather than a single entity , but the group ’s diverse leaders had a common agenda : defeating ORG and ORG and extending LAW law across GPE . Some of its leaders have links with ORG although the extent of ORG influence over ORG remains unclear .", "ORG has emerged as the most powerful and effective armed faction on the ground , especially in southern GPE . They have received material support from the NORP government , which is eager to undercut GPE ’s interests in the region . By DATE ORG controlled more territory than any other faction in GPE , including GPE , the former seat of ORG parliament , PERSON , which had been one of ORG President ’s most reliable strongholds , and the strategic port of GPE .", "ORG claimed responsibility for twin suicide bombings in the GPE capital GPE on DATE , which killed CARDINAL people watching the World Cup soccer final on television . It was PERSON first attack outside GPE and heightened concerns about its ability to carry out more attacks in the region and beyond .", "Hizbul ORG is another armed group which has both a LAW agenda and the goal of driving LAW and ORG from GPE . In DATE it entered into an alliance with ORG but the alliance came to an end in DATE during the fight for PERSON . In DATE , however , it once again merged with ORG .", "Ahlu Sunna PERSON is an NORP group which professes to support a more moderate agenda . The group exists primarily in central GPE , where it has maintained control over large strips of territory , predominantly in GPE and GPE regions .", "NORP In DATE Ahlu Sunna PERSON signed a power - sharing and military unification pact with ORG , although at times relations between the CARDINAL groups were strained .", "In GPE and others ( Lone women – PERSON ) GPE CG [ DATE ] PERSON DATE the ORG found that conditions in southern GPE and particularly in and around GPE were such that both men and women from minority clans were in danger of LAW ill - treatment and should be regarded as refugees in the absence of evidence of a clan or personal patron which could protect them . Men and women from majority clans were not likely to be in need of international protection , although individual circumstances required separate consideration . Although women were at greater risk than men , they would not be able to show that , simply as lone female returnees from GPE , they had no place of clan safety . Finally , the ORG held that the general conditions of life or circumstances in GPE did not engage the obligations of LAW or engage LAW for all female returnees . A differential impact had to be shown . Being a single woman was not of itself a sufficient differentiator .", "The ORG observed in passing that , on the strength of the background evidence and the expert evidence given at the hearing , it would consider that any person at real risk on return of being compelled to live in an ORG camp would have little difficulty in making out a claim under LAW , if not under LAW .", "NORP In HH & others ( GPE : armed conflict : risk ) ORG [ DATE ] PERSON CARDINAL ORG held that for the purposes of article CARDINAL(c ) of the Qualification Directive , a situation of internal armed conflict existed in GPE . The ORG held , however , that while all sides to the conflict had acted from time to time in such a way as to cause harm to civilians , they were not in general engaging in indiscriminate violence and , as a consequence , a person would not be at real risk of serious harm by reason only of his or her presence in that zone or area .", "The ORG found that although clan support networks were strained , they had not yet collapsed . Majority clans continued to have arms , even though their militias no longer controlled the city . A person from a majority clan , or whose background disclosed a significant degree of assimilation with , or acceptance by , a majority clan would in general be able to rely on that clan for support and assistance , including at times of displacement . A member of a minority clan or group who had no identifiable home area where majority clan support could be found would in general be at real risk of serious harm of being targeted by criminal elements , both in any area of former residence and in the likely event of being displaced . Members of minority groups found it harder to flee and move around to escape fighting , because they were not so easily accepted in new surroundings . The ORG found that persons displaced from their home in GPE without being able to find a place elsewhere with clan members or friends would likely have to spend a significant period of time in a makeshift shelter , such as those along the road to GPE , or in an ORG camp , and could well experience treatment proscribed by LAW .", "Finally , the ORG held that the issue of whether a person from a minority clan would be able to find majority clan support would often need specific and detailed consideration . The evidence suggested that certain minority groups could be accepted by the majority clan of the area in question , so as to call on protection from that clan . On the current evidence , it might not be appropriate to assume that a finding of minority group status in southern GPE was in itself sufficient to entitle a person to international protection , particularly where a person ’s credibility was otherwise lacking .", "In its most recent NORP Country Guidance determination , ORG found that since its decision in HH there had been a number of significant changes in GPE .", "First , the ORG found that by DATE the armed conflict had spread beyond GPE and its environs . The ORG therefore found that a situation of internal armed conflict existed throughout central and southern GPE . In respect of the intensity of the violence , the ORG noted that “ manifestly all significant armed parties to the conflict have engaged in indiscriminate attacks ” . In particular , it noted that the NORP were reported to have used means of war ( firing inherently indiscriminate NORP rockets in urban areas ) and methods of warfare ( using mortars and indirect weapons without guidance in urban areas ) that violated LAW . The FAC were reported to have engaged in aggression against civilians and to have acted “ as if they believe that they are immune from accountability , investigation or prosecution , including for crimes under international law ” . Moreover , reports indicated that insurgents had perpetrated raids , robberies and other abuses against civilians , including rape and other forms of sexual violence . The ORG referred to information received from ORG ( “ IASC ” ) which expressed concerns about :", "“ indiscriminate bombardment of civilian areas ; indiscriminate use of roadside bombs and mortars from and in civilian areas ; indiscriminate shooting in response to roadside bombs ; arbitrary arrest and detention of civilians , including children ; forced evictions ; forced recruitment , including of children ; sexual and gender based violence ; intimidation and assassination of journalists , aid workers and civilian officials ; and extra - judicial killings . ”", "The ORG also noted that the worsening security situation was coupled with a deteriorating humanitarian situation . It observed that CARDINAL people had been displaced from GPE and that there had been significant displacements from other towns to which armed clashes had spread . The ORG also observed first , that IDPs experienced serious problems while on the move , which included checkpoints , threats , intimidation , looting , rape , abduction and harassment ; secondly , that many did not end up in camps or makeshift settlements and consequently struggled to obtain shelter , food , water and sanitation ; and thirdly , that the effect of displacement appeared to reduce the ability of IDPs to count on protection from their own clan : even where they fled to a traditional area for their clan , the pressures of numbers and scarce resources could mean that newcomers were not supported or absorbed by the local community .", "With regard to the situation in GPE , the ORG considered that :", "“ the movements of population out of GPE in DATE have been unprecedented . ORG sources have estimated ( at various times ) that CARDINAL , up to CARDINAL ( or CARDINAL ) , of the population of GPE have been displaced . An DATE ORG report states that CARDINAL of GPE has been turned into an urban battleground . Since DATE there have been significantly fewer returns . Whatever the precise figures , it is clear that the ongoing violence has forced substantial numbers to flee the city more than once and flight seems an ongoing process : the ORG report of DATE cites PERSON estimates that CARDINAL people recently fled their homes due to the fighting and shelling ( GPE , A CARDINAL ) . The FAC Reply dated DATE states that : “ [ a]ccording to the ORG CARDINAL people were displaced from the city during DATE and CARDINAL since DATE CARDINAL ” . Armed clashes have increasingly destroyed housing , market areas ( LOC market has been deliberately shelled ) and infrastructure and the recent closure of the airport is likely to make matters in GPE worse . According to ORG , the aid community has been largely ineffective in providing the necessary aid to those who have stayed in GPE ( GPE evidence CARDINAL ) . They also state that GPE is a “ ghost town ” and that only the most vulnerable remain there . ”", "It concluded that since HH the situation in GPE had changed significantly , both in terms of the extent of population displacement away from the city , the intensity of the fighting and the security conditions there . On the available evidence the ORG considered that GPE was no longer safe as a place to live for the great majority of its citizens . It did not rule out that there might be certain individuals who on the facts might be considered to be able to live safely in the city , for example if they had close connections with powerful actors in GPE , such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs . However , barring cases of this kind , in the case of persons found to come from GPE who were returnees from GPE , the ORG found that they would face on return a real risk of persecution or serious harm and it was reasonably likely , if they tried staying there , that they would soon be forced to leave or that they would decide not to try to live there in the first place .", "Nevertheless , the ORG were not persuaded that the situation in central and southern GPE had reached the threshold where civilians per se or NORP civilian IDPs per se could be said to face a real risk of persecution , serious harm or treatment proscribed by LAW . First , although the levels of violence had increased in intensity , the numbers of those killed and wounded was not of great magnitude . Secondly , while the humanitarian situation was dire , it did not appear that civilians per se faced a real risk of denial of basic food and shelter and other bare necessities of life . Thirdly , while there was evidence of attacks on IDPs , in view of the huge numbers of people displaced ( CARDINAL according to some reports ) , it appeared that the great majority of IDPs were able to travel and subsist in ORG camps or settlements without serious setbacks .", "DATE . Rather , the ORG assessment of the extent to which IDPs would face greater or lesser hardships , at least outside GPE , would vary depending on a number of factors . In particular , the ORG noted that IDPs from more influential clans appeared to have a better chance of being tolerated in the area to which they fled ; IDPs with a traditional clan area that they could travel to , especially if they had close relatives or close clan affiliations in that area , appeared to have better prospects of finding safety and support ( although not if the area concerned was already saturated with fellow IDPs ) ; those who lacked recent experience of living in GPE appeared more likely to have difficulty dealing with the changed environment in which clan loyalties had to some extent fractured ; persons returning to their home area from GPE could be perceived as having relative wealth and might be more susceptible to extortion , abduction and the like ; those who lived in areas not particularly affected by the fighting and which were not seen as strategically important to any of the main parties to the conflict would appear less subject to security problems ; women and girls faced the additional risks of rape , abduction and harassment ; the prevailing economic conditions in the area would also be relevant , bearing in mind GPE ’s history of droughts , poor harvests and rising food prices .", "The ORG recognised that there had been a significant change in the clan - based character of NORP society since PERSON was promulgated . Clan protection was not as effective as it had been in DATE and conflicts over scarce resources had complicated the situation and made it unpredictable . This did not mean , however , that the clan or sub - clan had ceased to be the primary entity to which individuals turned for protection .", "As regards internal relocation , whether those whose home area was GPE ( or indeed any other part of central and southern GPE ) would be able to relocate in safety and without undue hardship would depend on the evidence as to the general circumstances in the relevant parts of central and southern GPE and the personal circumstances of the applicant . Whether or not it was likely that relocation would mean that they had to live in an ORG camp would be an important but not necessarily a decisive factor .", "The ORG considered the safety of en route travel from FAC , which was the point of return for anyone being removed to central and southern GPE . The ORG noted that :", "“ The airport is one of the facilities patrolled by ORG troops ( GPE , CARDINAL ) . According to GPE Humanitarian Overview , DATE , normally CARDINAL commercial flights arrive and depart on a DATE basis to and from the rest of GPE , GPE , GPE and GPE . The FAC Reply of DATE notes that it is expected in DATE will leave via ORG to perform PERSON in GPE . At the time of HH , the airport was fully operational with flights arriving and departing regularly . However in DATE the situation has been unsettled . There were attacks of some kind in DATE and the downing of a plane by a missile in DATE ( GPE , CARDINAL ) . The airport was attacked by insurgents on DATE as the President ’s plane left for talks in GPE . On DATE a group identifying themselves as PERSON threatened to shut the airport down , although a counter - report from ORG said that the NORP forces did not intend to close it . It was closed on DATE . On DATE there were mortar attacks on it upon the arrival of an ORG military plane ( GPE , PERSON ) . A Press TV cutting dated DATE states that CARDINAL heavy mortars landed inside ORG injuring a number of soldiers . The assailants apparently targeted a plane trying to land . A ORG Reply dated DATE reports an ORG source as saying that on DATE a civilian plane carrying CARDINAL NORP deportees from GPE managed to land without incident . A CARDINAL DATE press report refers to several mortar attacks on the airport . We were told by the respondent at the outset of the hearing that removals to GPE were temporarily suspended because of travel documentation problems , but it may well be , in the light of these recent developments , that for the immediate future at least , there would be difficulties in ensuring safe arrival in any event . ”", "NORP In HH the ORG had concluded that those moving around GPE and the environs would in general not be at risk of serious harm at checkpoints , although it left open the possibility that the situation might be different if a person were likely to encounter a non - ORG checkpoint alone , without friends , family or other clan members . However , in AM the ORG noted that from DATE ORG for the Co - ordination of ORG estimate of the number of roadblocks / checkpoints in central and southern GPE showed an increase from CARDINAL in DATE to CARDINAL in DATE and considerably CARDINAL were under the control of insurgents . Nevertheless , while the ORG found that ORG appeared by and large to have lost control of many of the roadblocks and checkpoints in central and southern GPE , the evidence continued to indicate that they retained control of the main road from the airport into GPE . While there was some evidence that the road came under attack from insurgents on a DATE basis , there was clearly a great deal of ongoing movement of people along the roads in central and southern GPE and in and around the airport and the ORG did not consider that the available evidence demonstrated a real risk en route of persecution or serious harm for travellers from the airport to GPE .", "One of the applicants in HH and CARDINAL of the applicants in AM were granted leave to appeal to ORG . Their appeals were joined to those of CARDINAL other NORP applicants .", "HH contended that the ORG had erred in its application of the provisions of article CARDINAL(c ) of the Qualification Directive as it had held first , that the notion of an “ individual threat ” required a “ differential impact ” and secondly , that article PERSON ) did not add anything to ORG and CARDINAL of the LAW . Before ORG , the Secretary of ORG for ORG accepted that the ORG had erred in its interpretation of article PERSON ) , but submitted that the error was not material . ORG held that if the correct ( post - Elgafaji ) approach to article PERSON ) had been applied to the facts found by the ORG , it was inevitable that it would have found that the population of GPE as a whole was not subject to such a high level of indiscriminate violence as to justify the conclusion that merely to be there attracted entitlement to subsidiary protection . Consequently , ORG dismissed ORG ’s appeal on the ground that the error of law was not material .", "The ORG had accepted that AM was from LOC . It noted that there was no longer any significant fighting there but accepted that there was evidence that en route travel to LOC was hazardous . Nevertheless , the ORG held that it was not empowered to consider the risk faced in making the journey : rather , it was for the Secretary of ORG for ORG , in finalising the removal arrangements , to satisfy herself that there would be safe en route travel for AM . AM appealed to ORG on the ground that this was not a lawful approach . ORG allowed the appeal , finding that in any case in which it could be shown either directly or by implication what route and method of return was envisaged , the ORG was required by law to consider and determine any challenge to the safety of that route or method . The ORG therefore fell into error as it had declined to consider ORG safety on return . ORG remitted the case to the ORG to consider this issue .", "DATE . J had sought judicial review of the Secretary of ORG for ORG refusal to accept as a fresh claim her submissions about the situation facing her were she to be returned to GPE . ORG had held that if the removal directions had indicated that J was expected to go by road from FAC to her home town , the evidence would have given her a strongly arguable case for judicial review . However , as the detail or method of return was neither clearly nor necessarily implicit within the immigration decision , the judicial review application had been refused . J appealed to ORG . For the same reasons adopted in AM ’s case , ORG allowed the appeal . ORG indicated ( on an obiter basis ) that the Qualification Directive and the Asylum Procedures Directive read together required that the issues of safety during return ( as opposed to technical obstacles during return ) should be considered as part of the decision on entitlement . Only technical obstacles could legitimately be deferred to the point at which removal directions were being made or considered . If there was a real issue of safety on return the Secretary of ORG had to engage with it in his decision on entitlement to protection . If he failed to do so , the appeal tribunal would have to deal with the issue . In any case , the decision on entitlement had to be made within a reasonable time and could not be left until the Secretary of ORG was in a position to set safe removal directions .", "MA appealed against the rejection of his LAW claims by the ORG . In particular , he complained that the ORG had misdirected itself because it had focused on his failure to tell the truth when it should have asked whether there was evidence relating to his own particular situation , even ignoring his own rejected testimony , which would support his contention that there was a real risk on return . ORG accepted that the ORG had adopted the wrong approach , apparently considering that the applicant ’s lies had disabled it from reaching a conclusion on the LAW risk . Had it made an assessment on the basis of the available evidence , it would have had to have concluded that the applicant was at risk of LAW ill - treatment on return . ORG noted that following AM , the Country Guidance relating to GPE was such that most potential returnees would be entitled to subsidiary protection under LAW . It therefore followed that only those NORP who could get without undue risk to a place of safety or who had access to protection against the endemic dangers could properly be deported or returned . It was accepted that MA was from a minority clan , that he had not been in GPE for DATE , and that for much of that time he had been in detention . There was therefore sufficient evidence before the ORG to at least establish a real risk that he would not have the necessary contacts in GPE to afford him the necessary protection .", "In AM ( Evidence – route of return ) GPE [ DATE ] ORG ( ORG ) ORG held that ORG had failed to give adequate reasons for concluding that the applicant could safely reach his home area of GPE from FAC . However , on reconsideration the ORG was not satisfied that returning him would give rise to a breach of LAW . In particular , it found that travel took place with some degree of frequency from the airport to the city of GPE and into other areas of GPE ; that as the applicant had lived in GPE and GPE , he would be well able to anticipate and comply with the requirements of ORG ; that there was nothing which would put him at any risk were he to encounter a ORG checkpoint ; that the evidence did not support a finding that all men or young men were at risk of forced recruitment by ORG ; and , that as the applicant was not found to be a minority clan member , and as his uncle had been able to fund his departure from GPE , he would be able to avoid foreseeable risks and pay the relatively modest sums demanded at checkpoints .", "The NORP Migration Court of Appeal , which is the court of final instance in immigration cases , found that a situation of internal armed conflict existed throughout the whole of southern and central GPE which was sufficiently serious to expose the NORP applicant to a risk of serious harm , even though he could not demonstrate that he would be specifically targeted . The court had regard to many reports which indicated that the fighting had increased in DATE and that the situation had become very unstable and unpredictable . Moreover , due to the worsening security situation , the presence of ORG and other international organisations had decreased and , as a consequence , detailed and updated information was hard to come by . Although the safety level in GPE and GPE was considered to be acceptable , a NORP returnee could only gain admittance to those areas if he was seen as belonging or having another connection to them . As that was not the case with the applicant , the court concluded that he could not internally relocate and that he should thus be given a residence permit and subsidiary protection in GPE .", "The fact - finding mission interviewed a number of anonymous sources , including international NGOs , security advisors and diplomatic sources , about the current security and humanitarian situation in southern and central GPE . In particular , the mission sought to obtain information on which groups controlled which areas , how easy it was to travel between different areas , the security and human rights situation , and the conditions in the ORG camps .", "Sources indicated that control of GPE was divided between ORG , backed by ORG troops , and PERSON . Although the sources had different views on which groups controlled which districts , they mostly agreed that ORG controlled the airport , the seaport , LOC and the road between the airport and LOC .", "Sources indicated that the security situation in GPE was poor , with CARDINAL of civilians killed in the fighting between FAC and PERSON . Areas controlled by ORG were at risk of shelling by ORG , while areas controlled by ORG were at risk of shelling by ORG . All parties to the conflict were guilty of indiscriminate shelling . Violence was sporadic and rape was an issue in many areas . Consequently , there was a constant movement of IDPs into and out of the city . However , CARDINAL diplomatic source suggested that it would be possible to live in non - conflict areas of the city , which were generally considered to be safe .", "Sources also indicated that the nature of ORG violence had become more sophisticated over DATE as foreign fighters had brought with them new tactics and techniques . They not only carried out targeted attacks against AMISOM troops and ORG ministers and MPs , but they also carried out random killings of civilians in GPE in order to create disorder and chaos .", "The report noted that there were regular flights into GPE , most of which were destined for FAC . ORG informed the Mission that CARDINAL flights arrived in GPE DATE . An airplane captain working for ORG also told the Mission that his airline had carried CARDINAL passengers into GPE in DATE .", "The road between the airport and GPE was controlled by ORG with ORG support and these groups managed all checkpoints along the route . It would not be particularly dangerous for ordinary NORP unless they found themselves “ in the wrong place at the wrong time ” . However , there were reports of a failed attack on the airport on CARDINAL September CARDINAL and some sources suggested that contacts were required in order to make the journey from the airport . ORG for ORG on GPE indicated that those members of the diaspora who regularly travelled to GPE were well - connected and that mobility was limited unless the individual was aligned with a militia . Likewise , a representative from an international NGO indicated that “ any NORP returning to FAC would need a lot of preparation and would need to ensure they had contacts in GPE ” .", "A representative from CARDINAL international NGO suggested that ORG knew who was landing at the airport as they were receiving information from ORG soldiers based there .", "Most of the sources interviewed agreed that NORP were able to move around within GPE without much restriction . CARDINAL sources described the checkpoints in the city as “ random ” or “ variable ” as they tended to change according to fighting areas and the level of control of specific groups . CARDINAL source suggested that checkpoints operated by ORG or PERSON were more difficult to negotiate as they were operated with less discipline and normally demanded money . ORG checkpoints normally checked that people were obeying their code of behaviour and would therefore stop women travelling alone . Some individuals operating these checkpoints would punish those who were not acting according to ORG rules .", "Contrary to the majority opinion , the EU Special Representative informed the fact - finding mission that all civilians in GPE would either be aligned to a militia or completely unable to get out of the town . The Special Representative even suggested that some NORP were unable to leave their own district .", "There was no consensus on which groups controlled the other regions in southern and central GPE , although all agreed that ORG controlled most of the land south of a line drawn between PERSON and Dhusarmareb . Militias broadly aligned with ORG controlled pockets of land on the NORP border . PERSON was nominally in control of some small areas , including parts of FAC , but ORG influence in these areas was significant . Finally , the region of PERSON was controlled by a local clan - based administration which acted under the umbrella of Ahlu Sunna Waljamaca .", "Outside GPE , people were generally permitted to travel within the areas controlled by ORG although they could encounter difficulties at checkpoints if they were not obeying ORG rules . Although ORG had endeavoured to remove “ illegal ” checkpoints , a number of sources indicated that some clan militia checkpoints remained . The evidence appeared to suggest that it was possible to negotiate the various checkpoints , although a certain amount of risk was involved .", "A diplomatic source stated that young men travelling in ORG held areas could be targeted by ORG for recruitment . This was supported by an international NGO , which advised that forced recruitment was becoming systematic . Young men were asked to register with PERSON , including those who were stopped at checkpoints .", "A number of sources considered the areas controlled by ORG to be stable and generally safe for those NORP who were able to “ play the game ” and avoid the unnecessary attention of ORG . CARDINAL the other hand , CARDINAL international NGO believed that there were “ no safe areas in southern - central GPE as long as LOC and PERSON were present ” . Another NGO indicated that everywhere in southern and central GPE had been affected by violations of international humanitarian law and by a situation of generalised violence and displacement over DATE on account of the expansion of the insurgency outside GPE . Finally , a diplomatic source stated that “ everywhere is volatile and can change at any time ” .", "With regard to the human rights situation , forced recruitment of adults and children appeared to be an emerging problem , particularly for those displaced in FAC . Sources suggested that all parties to the conflict recruited children , although it was not certain that ORG forcibly recruited them . Child recruitment was , however , very common in ORG areas , as they would forcibly recruit the eldest son from local families , some of whom were as young as DATE . Adult males were also forced to register with ORG in ORG .", "Moreover , the sources indicated that in ORG areas , human rights were practically non - existent because of the organisation ’s interpretation of LAW law , which was not in accordance with the beliefs of ordinary NORP . Consequently , people lived in fear as there were serious punishments if ORG orders were not obeyed . Women in particular were routinely targeted and were not permitted to engage in trade . In addition , ORG had made a concerted effort to drive NGOs out of its areas by a number of means , including demanding payment of a “ registration fee ” of up to ORG CARDINAL,CARDINAL , looting warehouses and threatening workers . In some cases ORG had stolen aid and confiscated the assets of NGOs to sell for profit . There was therefore no international NGO presence in ORG controlled areas and health and feeding programmes had been stopped , with significant consequences for the civilian population .", "Finally , sources were asked about the conditions in ORG camps . They indicated that although those with resources had left GPE , there were CARDINAL people displaced within the city and no humanitarian assistance was available to them . Estimates suggested that there were a further CARDINAL people in FAC , which had become increasingly urbanised . It was difficult to give an exact number of the people based in the corridor because , due to the nature of the fighting , a lot of people were going back and forward to GPE . Moreover , access for NGOs was difficult as the corridor was controlled by “ gatekeepers ” who controlled who and what moved into and out of the area . These “ gatekeepers ” tended to be opportunists who were not aligned to any particular group but they were able to make assistance from NGOs very difficult . CARDINAL NGOs said that it was incredibly difficult to access the corridor and , where access was possible , aid was often diverted . Moreover , landlords in the area were either selling the land that the IDPs lived on or were charging rent that they could not afford , forcing them to move on .", "CARDINAL international NGO believed that there was a hierarchy within the camps , but did not know whether it was based on clan membership or length of residence . Consequently , it could not be guaranteed that majority clan members would not face problems within the ORG camps .", "The sources were not aware of any other significant ORG settlements within GPE .", "Operational Guidance Notes ( “ OGNs ” ) are produced by ORG of ORG . They evaluate the general , political and human rights situation in a country and provide guidance on the nature and handling of the most common type of claim .", "The ORG on GPE of DATE described how fighting by ORG troops , allied militias , and LAW forces against anti - government forces in southern and central GPE had resulted in widespread human rights abuses , including the killing of CARDINAL of civilians , the displacement of CARDINAL people and widespread property damage , particularly in GPE . However , a fall in clashes between government troops and insurgents had led to a substantial drop in the numbers of civilians killed in fighting in GPE in DATE . The GPE - based ORG stated that CARDINAL civilians were killed in fighting in DATE , down from CARDINAL in DATE and CARDINAL in DATE . CARDINAL civilians were wounded and CARDINAL families displaced by clashes in DATE .", "The report noted that while GPE remained the focus of the insurgency , fighting had occurred in other parts of the country , including PERSON , PERSON , the GPE and ORG regions , from GPE to GPE and around the central towns of GPE and PERSON .", "NORP The report indicated that restrictions on movement within GPE had reduced significantly compared to when the ORG considered the situation in AM and AM ( GPE ) . In particular , checkpoints operated by ORG had decreased and there were no reports of armed clan factions operating checkpoints in DATE . ORG had established checkpoints at the exit / entry routes of the towns under its control for security reasons . It checked goods , searched people and ensured that its strict NORP codes were enforced , but it did not collect money . There were also reports that ORG had eradicated extortion , robbery and murder from bandits in areas it controlled .", "With the exception of GPE , there were no reports of checkpoints between towns or within towns , as was common in DATE . There were , however , several checkpoints on the route from GPE towards LOC and some precautions could be necessary , particularly during militia fighting . There was no evidence that those not of adverse interest to ORG , PERSON or groups such as PERSON or Ahlu Sunna PERSON , would be unable to pass through checkpoints safely . During overland trips clan protection was not required unless ongoing animosities between CARDINAL rival clans were involved . Individuals would not generally need an escort , but if they considered an escort to be necessary , it would be feasible for them to arrange CARDINAL either before or after arrival . It would therefore be feasible for many to return to their home areas from FAC as most areas were more accessible than previously .", "NORP The report also noted that it was possible for NORP to fly from FAC directly to PERSON , in GPE , a region which was widely considered to be relatively safe . However , the authorities in GPE , like the authorities in GPE , would only admit those who originated from the territory or those who had close affiliation to the territory through clan membership . In GPE , the majority clan was the PERSON .", "ORG . With regard to the human rights situation , the report noted that :", "“ ORG currently controls much of southern and central GPE , including large portions of GPE . ORG has maintained control of a few areas in the south east of the city , government installations , the Presidential palace and strategic locations such as the airport and seaport . ORG controls large portions of GPE including the north and north - east parts of the city , the main stadium and the main market . It controls nearly all of Middle and LOC regions , GPE , LOC , ORG region , and parts of LOC region . This includes control of the key port cities of PERSON and PERSON and the GPE border town of PERSON . It also wields significant influence in LOC and PERSON region .", "The human rights situation has deteriorated particularly in areas controlled by PERSON and allied extremist groups . ORG and other armed groups have continued to violate women ’s rights in southern and central GPE . Women face arbitrary detention , restriction of movement and other forms of abuse for failure to obey orders , including non - observance of dress codes . There is a rising pattern of inhuman and degrading treatment , including stoning , amputations , floggings and corporal punishment . Men too are subjected to inhuman and cruel treatment for their illicit relationship with women and other offences such as ‘ ORG . Journalists have been repeatedly subjected to threats and short - term arbitrary detentions , particularly in GPE and PERSON . ORG has increasingly targeted civil society groups , peace activists , media and human rights organisations . Humanitarian assistance has been severely hampered by the prevailing insecurity and threats specifically targeting humanitarian agencies . In southern and central GPE there is evidence that children are being exposed to recruitment into armed forces by all parties to the conflict . ”", "In respect of the humanitarian situation , the report indicated that by DATE the total number of displaced persons had reached MONEY , PERCENT of whom were concentrated in southern and central areas , including CARDINAL in the GPE corridor . The security situation was having a negative impact on the relief operation . Rising threats and attacks on humanitarian operations , as well as the imposition of demands from armed groups , had made it virtually impossible for ORG ( “ ORG ” ) to continue reaching people in need in southern GPE . Inflammatory statements by ORG against relief organisations , threats against humanitarian staff , explicit rejection of foreign food aid and demands for fees had all worsened .", "NORP The report concluded that while the general humanitarian situation in southern and central GPE was poor , it was not so serious as to cause , in itself , a breach of LAW Aid agencies were subjected to obstructions and dangers in delivering aid to IDPs but most of those in need continued to be reached and efforts were being strengthened to sustain critical food operations in southern and central LAW CARDINAL threshold was met .", "NORP The report indicated that ORG respect for human rights had improved . However , the poor human rights situation in GPE had deteriorated further during DATE , especially in the areas controlled by ORG and allied extremist groups . Human rights abuses included unlawful and politically motivated killings , kidnappings , torture , rape , amputations , beatings , official impunity , harsh and life - threatening prison conditions , and arbitrary arrest and detention .", "With regard to movement within GPE , the report indicated that checkpoints operated by ORG and its associated militias had decreased . According to a report by PERSON , ORG established checkpoints at the exit / entry routes of the towns under its control for security reasons . There were no reports of checkpoints between towns or within towns , as was common in DATE . There were also no reports of armed clan factions operating checkpoints during DATE .", "The report noted that the humanitarian situation in GPE remained dire as the fighting in GPE had added more challenges to already poor conditions on the ground . CARDINAL people had been displaced and CARDINAL had fled to neighbouring countries in DATE . Targeted attacks on humanitarian groups had made delivery of assistance difficult and ORG had suspended assistance in areas controlled by ORG .", "The report noted that the situation in southern GPE and in GPE in particular was unstable and the power balance in the regions , districts and urban areas could change almost from DATE . Consequently , information on area control could become out of date very quickly .", "It was clear , however , that the military and political situation remained extremely complicated . Large areas of southern GPE were controlled by ORG and other NORP groups in opposition to the authorities . Many areas of GPE had been the scene of shooting , shelling and fighting between NORP and Government forces supported by ORG . In spite of a certain amount of stability in parts of the country , the civilian population was still the victim of indiscriminate violence , albeit to a slightly lesser extent than previously . Leading observers agreed that the situation was fragile as the NORP groups had the will and means to continue to fight , while ORG was weak and probably would not survive without the presence of LAW .", "The ORG Special Envoy for Human Rights , together with a number of other international observers , noted that the arrival of foreign jihadists in GPE had resulted in ORG operations becoming “ professionalised ” , which meant that they were implemented with greater precision and brutality . According to a number of observers , individual ORG cells were controlled by foreign jihadists who did not wish for peace or to enter into any form of dialogue with the authorities .", "With regard to the humanitarian situation , the report noted that while the nutritional situation was expected to improve in DATE on account of a good harvest , the food security situation remained poor . Food prices were high and access to clean drinking water remained a considerable problem .", "Estimates indicated that the total number of displaced persons in GPE was CARDINAL . Resources in local areas were stretched to the maximum as the displaced from GPE sought refuge in traditional clan areas . While clan members were prepared to share what resources they had as far as possible , displaced persons without clan connections did not have that safety net and were therefore in a more difficult position . However , the report quoted the ORG Special Envoy as stating :", "“ Monitoring the human rights situation in south and central GPE remains very difficult due to the serious constraints on gathering information owing to security conditions . The independent expert was himself unable to visit the region . Nevertheless , major human rights concerns have been documented and the independent expert remains deeply concerned at the deterioration of the situation . ”", "The report noted that freedom of movement in GPE had improved since DATE and the general impression was that the population could travel relatively freely in both government controlled areas and areas controlled by other groups . The removal of road blocks had had a positive effect on criminality as cases of “ rape and run ” had previously been widespread in these areas . However , in spite of the improvements , restrictions imposed by ORG on women restricted their freedom of movement and had a negative impact on their families , which were often dependant on women ’s income from trading .", "International organisations had increasingly been the target of violent attacks DATE and , because of the safety risk , only a few international representatives remained in southern GPE . Like the ORG and foreign embassies , business was run from main offices in GPE while local employees were responsible for work on the ground in GPE . Local human rights organisations could not publish detailed reports for fear of their own safety . However , aid work in GPE could be risky for local employees as they were increasingly coming under attack .", "In any case , aid organisations had limited access in the areas controlled by ORG . In DATE the ORG decided to suspend its activities in the ORG controlled areas . This has had consequences for the population in LOC , ORG and GPE as access to the necessary food supplies and other aid was limited . Moreover , at DATE , ORG ordered ORG , ORG and PERSON out of the areas under their control on the ground that they were operating missionary activities . With these CARDINAL organisations gone , very few international aid organisations remained in place in southern GPE .", "With regard to the situation in GPE , the report noted that conditions in the different areas varied and there was a difference between the northern and southern parts of the capital . The areas of LOC , ORG , PERSON , Bondheere , PERSON and PERSON were the hardest hit by shelling and attacks . To a lesser extent , the districts of LOC , PERSON , PERSON , PERSON and PERSON were also affected by the fighting . However , the report noted that the situation was unpredictable and could easily change . For example , the Karaan district in the north had previously been considered relatively peaceful but was now shot to pieces and all its inhabitants had fled .", "According to a well - informed international aid worker , CARDINAL people per week died in GPE due to fighting . It was difficult to estimate how many of the dead were civilians . It was also difficult accurately to estimate the number of displaced . According to the ORG , there were CARDINAL displaced persons in GPE and CARDINAL in GPE . However , it was possible that there were great margins of error as the ORG estimates were based on satellite images and it was thought that many houses had been built to mislead aid organisations . Nevertheless , well - informed sources indicated that the situation in GPE DATE was much more difficult than it had been at DATE as international organisations were no longer able to carry out their tasks . Poverty was more widespread in GPE than it had been previously and it was therefore more difficult to help those in need . In addition , the clan system had been weakened .", "Outside GPE the fighting was mostly localised around certain key areas and towns . Strategic towns such as GPE , PERSON and various towns in the PERSON had changed hands many times in DATE and there were also tensions in GPE and GPE . However , the main challenge for most of the population of southern GPE was humanitarian . PERCENT of all children DATE in southern GPE were malnourished and medical treatment was limited , especially in villages , where it was estimated that there was CARDINAL doctor per CARDINAL inhabitants .", "NORP In his report to ORG on CARDINAL DATE , the Secretary General noted that there had been increased fighting in southern and central GPE during DATE . CARDINAL people had been displaced during this period . In addition to the fighting in GPE , there was also continued fighting between ORG and PERSON in PERSON and PERSON , and between ORG and ORG Sunna Waljamaca in the central region . ORG staff faced direct threats from armed groups in these areas and the presence of international staff in these regions was restricted .", "The security situation continued to have a direct impact on the provision of humanitarian aid . The report noted that on DATE ORG called for the termination of all ORG ( “ ORG ” ) operations inside GPE , and on DATE and DATE ORG compounds in GPE and GPE were occupied by ORG . There had been no food distribution to over CARDINAL IDPs in the GPE corridor since DATE owing to inaccessibility and CARDINAL intended beneficiaries were not receiving food distributions throughout the south and central regions .", "In his report to ORG on DATE , the Secretary General noted that volatility and insecurity had once again increased in GPE . ORG and ORG frequently engaged the insurgents in response to mortar fire and direct attacks and military operations to secure positions in key districts of GPE led to fierce battles . Moreover , the frequency of attacks with improvised explosive devices had led to an increase in civilian casualties during the reporting period . According to ORG , CARDINAL civilian casualties were admitted to the CARDINAL main hospitals in GPE from DATE to DATE . That figure , which included CARDINAL children DATE and CARDINAL registered deaths , had left GPE ’s already weak health services struggling to cope with the casualties . He also reported that beyond GPE , sporadic clashes between ORG and ORG Sunna ORG continued in the central regions and the continuing insecurity had hampered ORG operations in GPE by limiting freedom of movement for ORG staff and contractors . In DATE ORG seized the compound of ORG and the houses of CARDINAL national staff .", "The ongoing conflict , particularly in GPE , had displaced CARDINAL people in DATE and CARDINAL people in DATE .", "In the Secretary - General ’s report of CARDINAL DATE on children and armed conflict in GPE , he noted that civilians , including children , continued to be the majority of casualties in GPE , primarily as a result of being caught in the crossfire between the parties to the conflict , shelling and explosions . During DATE CARDINAL people , including CARDINAL children , relied on humanitarian assistance . However , food supplies remained disrupted , access to clean water and medical assistance hindered , and hospitals were stretched to capacity . As from DATE , food distribution by ORG was disrupted in all areas controlled by ORG .", "Moreover , the climate of violence and impunity exacerbated grave violations of children ’s rights as individuals were taking advantage of the lack of rule of law and the availability of arms to commit violent crimes against children and other vulnerable members of the population . This was borne out by evidence of rising levels of acts of sexual violence against children . Most at risk were women and girls living on the streets or in open and unprotected settlements for IDPs . In addition , available information indicated that ORG had undertaken systematic and widespread recruitment of children for use in the conflict . Indeed , it was alleged that at the GPE base between LOC and PERSON , ORG had CARDINAL children , some as young as DATE .", "In his most recent report to ORG , dated DATE , the Secretary General stated that a major military offensive against ORG had begun on DATE . The offensive by the Ahlu PERSON Jama’a and other groups allied with ORG against ORG in southern central GPE had focused on the GPE - GPE - GPE border . Hostilities centred on the GPE , FAC and ORG regions , with armed conflict most prevalent in PERSON and , to a lesser extent , in the vicinity of PERSON and PERSON . Troops allied with ORG had taken control of the town of ORG , close to the NORP border , on DATE . Reports of heavy casualties and intensified recruitment efforts on the part of ORG suggested that the group ’s capabilities might have been reduced . However , ORG continued to receive arms and ammunition through southern NORP ports and acquire financial resources from extortion , illegal exports and taxation .", "At the date the report was drafted , heavy fighting had again broken out in GPE and ORG reported that hospitals were swamped with war - wounded . According to a report by ORG , in DATE CARDINAL civilians died and CARDINAL were injured as a result of the increased fighting and shelling . While most casualties appeared to have been the result either of attacks by ORG and its allies against ORG and GPE forces or retaliatory attacks by ORG , direct fighting between NORP such as ORG Sunna PERSON and ORG combined with inter - clan clashes in central GPE also contributed to the high number of deaths . In addition , reports indicated that parties to the conflict had failed to adhere to the principles of international humanitarian law relating to the protection of civilians as hostilities had been waged in urban areas and precautionary measures to avoid civilian casualties had been disregarded .", "With regard to the human rights situation in areas under PERSON control , ORG recorded reports of CARDINAL executions by firing squad or stoning , mostly for alleged spying or murder , CARDINAL cases of amputation , mostly of suspected thieves , and the flogging or whipping of CARDINAL individuals . In addition , CARDINAL cases of beheading were reported , including those of CARDINAL workers allegedly killed in DATE because they were involved in reconstruction work at the ORG , and CARDINAL people were allegedly shot dead in DATE when they fled from a house in GPE raided by PERSON because they were watching a World Cup match .", "Displacement also continued to be a problem . According to a ORG report , during DATE CARDINAL NORP sought refuge in neighbouring countries and CARDINAL were internally displaced . As of DATE , there were CARDINAL NORP refugees , mainly hosted in GPE , GPE , GPE , GPE , GPE , GPE and GPE . In addition , CARDINAL NORP were internally displaced . Assessments conducted revealed that there was a high prevalence of sexual violence in ORG camps , victims were generally of minority clan origin , bereft of clan protection and often forced to engage in risky coping mechanisms .", "Recruitment of children to be put on the front line remained an issue of major concern . Although recent media attention highlighted the presence of children within the ranks of forces linked to the ORG , the majority of reports of new instances of child recruitment attributed responsibility to anti - Government elements .", "The report further noted that a public health crisis persisted in southern and central GPE . While good rains DATE had improved the food security situation , CARDINAL people ( PERCENT of the total population of GPE ) continued to face a humanitarian crisis . Moreover , the number of acutely malnourished children was estimated to be CARDINAL , of which CARDINAL were severely malnourished , and the majority of these were in southern and central GPE . The forced movement of people on account of the conflict also limited access to clean water and basic health services .", "NORP ORG ’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum - Seekers from GPE ( “ the LAW ” ) were published on CARDINAL DATE . ORG noted that over DATE there had been a consistent failure by all parties to respect basic principles of international humanitarian law , resulting in civilians regularly being caught in the cross - fire . Indiscriminate bombardment and military offensives were carried out in civilian areas with little or no regard for the rules of war and road - side and vehicle - borne bombs , grenade attacks in civilian areas , and deliberate attacks on civilian targets were all too frequent . Hospital records indicated that there were over CARDINAL civilian casualties in GPE in DATE and DATE . Other estimates suggested that CARDINAL civilians were killed in GPE DATE .", "While the armed conflict was a major cause of displacement , the report noted that increasing numbers of NORP were fleeing due to fear of persecution linked to the recent political and human rights situation . Others feared persecution due to perceived or actual contravention of traditional NORP social norms and practices . These groups included members of minority clans , women of specific profiles , victims of blood feuds , NORP converts , and lesbian , gay , bisexual and transgender individuals .", "Consequently , ORG concluded that the widespread disregard of their obligations under international law by all of the parties to the conflict and the reported scale of human rights violations made it clear that any person returned to southern and central GPE would , solely on account of his or her presence there , face a real risk of serious harm . Moreover , ORG considered that there was no internal flight alternative available inside southern and central GPE .", "NORP UNHCR identified CARDINAL potential agents of persecution . First , there were NORP militant groups such as ORG and PERSON . Both groups had been accused of , and both had admitted to , using the civilian population as human shields during military operations . Both groups also had conducted a systematic campaign of intimidation and assassination of civilians working for , associated with , or perceived to be collaborating with ORG , ORG or the NORP forces . They had also recruited young people and children into their ranks , often with threats of force and violence . Finally , they had set up NORP administrations in areas under their control and issued decrees to restrict social behaviour . The enforcement of these decrees was often extreme and abusive and violations were punished severely by LAW courts .", "Secondly , ORG indicated that business persons and civil society figures were particularly at risk as a result of the increased criminality in GPE .", "Finally , ORG identified ORG and LAW as potential agents of persecution . It noted that both groups were accused of indiscriminately shelling civilian areas of GPE in reprisal to mortar attacks launched by opposition forces . In addition , both groups had also been accused of firing at civilians .", "NORP The report further noted that effective State protection was unavailable in southern and central GPE given the situation of armed conflict and the inability of the government authorities to extend control over any territory outside a few districts in GPE . Moreover , since DATE clan protection had been undermined in GPE and increasingly in other regions of southern and central GPE by the ongoing conflict and by the diminution of the traditional clan systems of justice due to the favoured strict interpretations of LAW law being implemented by PERSON and PERSON in areas under their control .", "Amnesty International noted that civilians in GPE and other cities such as LOC in central GPE and PERSON in the PERSON region continued to be killed and seriously injured due to the fighting between the armed opposition groups and pro - FAC forces . It noted that :", "“ no party to the conflict appears to take the necessary precautions to avoid loss of civilian life and injury , despite their obligations to do so under international humanitarian law . NORP are often caught up in shelling and cross - fire by all parties to the conflict , resulting in death and injury to CARDINAL . The fighting has provoked massive displacement within and outside cities in south and central GPE and disruption of access to humanitarian aid , which are already curtailed by insecurity and the targeting of aid workers . NORP living in areas controlled by armed opposition groups are also increasingly subject to abduction , torture and unlawful killings . ”", "With regard to the security situation in GPE , they noted that :", "“ There are near DATE incidents of fighting and shelling between armed opposition groups on CARDINAL side and ORG forces and LAW troops on the other side , and near DATE reports of civilian deaths and injuries as a result . Armed opposition groups continue to launch attacks from areas inhabited or frequented by civilians in GPE , endangering the lives of civilians . They fire mortars and heavy artillery in the direction of ORG and LAW bases , near which civilians live . ORG and GPE forces are repeatedly accused of responding by firing mortars and using other artillery weapons in the direction of the attackers . All sides to the conflict use mortars and other heavy artillery , weapons which are inherently indiscriminate when used in densely populated urban areas . Some sources have even alleged to ORG that ORG is firing ORG or “ NORP ” rockets when responding to attacks by armed opposition groups . These attacks and counter - attacks invariably result in civilian deaths and injuries . ”", "The report indicated that the delivery of emergency humanitarian aid to GPE was shrinking , as aid workers were coming under attack and armed groups were imposing restrictions on the movement of international agencies working in areas under their control . In particular , it noted that :", "“ On DATE , PERSON in LOC asked all humanitarian organisations operating in areas under their control to register within DATE and pay a registration fee by DATE , whilst ORG in the PERSON region renewed their ban against any agency wishing to operate in the region , stating “ We want our people to work for their life rather than depending on food aid . ”", "In DATE , ORG in GPE and ORG regions issued a list of CARDINAL conditions which humanitarian organisations were required to adhere to in order to continue their work in the regions . These conditions reportedly included replacing all female staff members with men within DATE , an agreement not to encourage secularism or democracy in their work and a payment of MONEY DATE to the ORG administration . This was followed on DATE by an ORG statement ordering ORG ( ORG ) to immediately cease the import of relief food to the country , accusing the organisation of acting as a barrier to self - sufficiency . All local businesspeople were ordered to terminate their contracts with the ORG and the organisation was ordered to empty their warehouses and food - stocks by DATE . ”", "On DATE ORG suspended its work in southern GPE due to insecurity for its staff and the demands placed on them by parties to the conflict . PERCENT of the areas from which the organisation had withdrawn were under the control of ORG , and ORG subsequently indicated that it would never permit the organisation to return . However , ORG noted that CARDINAL of GPE ’s population was dependent on food aid and many of those people lived in the areas that the ORG had withdrawn from .", "The report also noted that the ORG had experienced difficulties in delivering food to the ORG settlements in GPE , where CARDINAL persons displaced by the conflict were thought to live . On DATE armed men stopped trucks transporting food aid from GPE to GPE and the ORG have since stated that the last time they organised a general food distribution in GPE was in DATE .", "NORP The report indicated that civilians in GPE continued to bear the brunt of the fighting and were often caught up in shelling and cross - fire by all parties to the conflict . There were nearly DATE incidents of fighting and shelling between armed opposition groups on CARDINAL side and ORG forces and LAW troops on the other , and near DATE civilian deaths and injuries as a result .", "Medical records of the GPE hospital on the outskirts of GPE showed that for DATE PERCENT of its patients were suffering war - related injuries and PERCENT of those patients were women and children . DATE , CARDINAL of civilians were killed or injured in GPE . Some field reports claimed that there were CARDINAL deaths in DATE , while ORG estimated that during DATE and DATE , CARDINAL civilians were killed and CARDINAL were injured in fighting .", "Likewise , ORG sans PERSON stated that DATE its medical team in GPE hospital treated CARDINAL war - wounded people and performed CARDINAL surgeries . Following intense fighting on DATE ORG treated CARDINAL war - wounded patients in DATE .", "ORG recently signalled its intention to increase the number of AMISOM troops to CARDINAL and ORG believed that when this happened it was likely to result in more attacks against the force by armed NORP groups and more retaliatory shelling by LAW .", "NORP The report noted that the fighting had also caused the destruction of homes , the separation of families during chaotic flight , and massive displacement . ORG estimated that CARDINAL people had been displaced from within and around GPE since DATE , CARDINAL having fled GPE and CARDINAL others having moved to different parts of the city .", "ORG had also been seizing cities elsewhere in southern and central GPE . In particular , there had been clashes in and around GPE , GPE , PERSON and ORG . As a result , CARDINAL civilians had been displaced from GPE and CARDINAL had been displaced from PERSON . In addition to the fighting , ORG had also severely restricted humanitarian access in most of southern and central GPE , putting civilians at risk . According to the report , humanitarian access in southern GPE was at its lowest since DATE .", "In addition to indiscriminate attacks and the situation of generalised violence , certain categories of people were particularly at risk of targeted killing . These categories included people linked with ORG , civil society activists , aid workers and journalists . Children and young men were also at high risk of being forcibly recruited to fight for the armed NORP groups .", "NORP This report , which was published on DATE , focussed on the treatment of NORP refugees and asylum - seekers in GPE , which hosted the largest number of NORP refugees in the region . As of DATE , there were CARDINAL registered refugees in the region , but it was estimated that the actual number was much higher .", "NORP In DATE the NORP authorities closed the country ’s border with GPE and , according to estimates of NORP NGOs , CARDINAL of NORP refugees were subsequently returned to GPE by the NORP security forces . Some were expelled at the border while others were denied entry altogether . Many of these refugees were women and children who , according to UNHCRs eligibility guidelines , should have been granted international protection .", "ORG also received numerous reports of the NORP police at the closed border threatening asylum - seekers with forced removal to GPE in order to extort bribes or arresting or detaining asylum - seekers until they paid a bribe . In addition , NORP asylum - seekers were often arbitrarily arrested , detained and charged with “ illegal entry ” .", "Prior to the closure of the border , new refugees were registered and medically screened at an ORG - administered transit centre QUANTITY from the border before being transported to refugee camps . When the border closed , this transit centre also closed with the consequence that refugees who made it to GPE had to travel a further QUANTITY to the refugee camps before they could be registered . This journey was often a dangerous one , during which NORP police were able to commit abuses against them with impunity .", "CARDINAL registered NORP refugees were confined to CARDINAL refugee camps in GPE in north eastern GPE , which were originally intended to accommodate CARDINAL refugees . As a result of the severe overcrowding , access to shelter , water , sanitation and other essential services was impeded . As no plots of land were available , new refugees could not build shelters and instead had to stay with relatives or clan members . In addition , the water infrastructure was only designed for CARDINAL of the number of people currently living in the camps and , as a result , many refugees complained that the allocation of water was insufficient . Those living at the edges of the camps often had to walk long distances to collect water .", "Refugees also complained of insecurity in the camps , which they attributed either to tensions between different clans or to the alleged presence of members of or sympathisers with ORG . Incidences of theft and sexual abuse were on the increase . Aid and protection agencies told ORG that there were not enough police officers present in the camps adequately to address security incidents . In any case , refugees often distrusted the NORP police as many had been the victim of abuses by the security forces while on their way to the camps .", "In DATE reports emerged that the NORP security forces were recruiting NORP refugees for military training in order to fight for ORG in GPE . ORG subsequently launched an awareness campaign in the camps , warning refugees that they would lose their refugee status if they joined armed groups .", "NORP refugees in the NORP camps were generally not permitted to leave the camps , unless in exceptional circumstances , and they had almost no livelihood opportunities . They did , however , receive free humanitarian assistance in the camps .", "Human Rights Watch : Harsh War , Harsh Peace", "In this report , published in DATE , ORG documented abuses by ORG , ORG and GPE in GPE . The report indicated that over DATE , hostilities had raged in strategically important areas , like GPE , while much of the rest of GPE enjoyed relative peace . However , the report concluded that both the inhabitants of the shattered capital and those living in more peaceful areas had endured devastating patterns of abuse .", "In GPE and in other conflict areas in southern and central GPE the fighting had exacted a heavy toll on civilians . In particular , the report noted that all parties to the conflict had conducted numerous mortar attacks against enemy forces in densely populated areas of GPE without regard for the civilian population , causing a high loss of civilian life and property . While mortars could be highly accurate weapons if guided to their targets by spotters or guidance systems , none of the warring parties in GPE had employed such methods . Opposition armed groups had indiscriminately fired mortar rounds in the general direction of ORG or ORG installations in southern GPE . ORG and GPE forces sometimes responded in kind , directing mortar rounds towards the general area they had taken fire from or simply bombarding areas such as FAC that were opposition strongholds . Such attacks , while of limited military value , caused considerable loss of civilian life and property damage .", "The report noted that there had been sporadic fighting between other groups outside GPE which had exacted a heavy toll on civilians . For example , clashes between PERSON and Ahlu Sunna Waljamaca around the central towns of GPE and PERSON displaced CARDINAL people at DATE .", "NORP The report further indicated that humanitarian workers had been targeted . According to ORG , CARDINAL aid workers were killed in GPE in DATE and DATE . Humanitarian workers also faced a variety of other threats , from the broader trend of indiscriminate violence in conflict areas to ORG accusations of spying on behalf of western powers . For example , in DATE the ORG suspended delivery of food aid to a vast swath of southern GPE controlled largely by ORG , citing the group ’s escalating attacks and harassment against its staff and “ unacceptable ” demands for payment .", "Forced and unlawful recruitment was also a problem . The report noted that opposition forces , especially but not exclusively ORG , were expanding their ranks by threatening those who resisted with death and at times carrying out their threats . In addition , both insurgent groups and government forces were recruiting and using child soldiers to varying degrees and had entered refugee camps in GPE to enlist additional fighters . The report noted that ORG had recruited children in a more deliberate and systematic manner than ORG or other armed groups . Thus the recruitment of children DATE and the fear of it – was widespread in many areas controlled by ORG .", "The report stated that in areas controlled by ORG ( much of the south of GPE ) , the population was subjected to targeted killings and assaults , a repressive form of social control and brutal punishments under its draconian interpretation of LAW law , which went well beyond its traditional interpretation in GPE . While in many areas ORG rule had brought relative peace and order , security came at a steep price . In many areas , ORG dictated even minute details of DATE life , from clothing styles to prayer observance to cell phone ring tones . The report indicated that :", "“ ORG exerts enormous control over personal lives and devotes remarkable energy to policing and penalizing conduct that it deems idle or immoral . Almost no detail is too minute to escape the group ’s scrutiny . In many areas , ORG administrators have banned public gatherings , dancing at weddings , musical ringtones on cell phones , western music , and movies . They have outlawed qat chewing and cigarette smoking . They have barred men from shaving their beards and moustaches , or wearing long hair or long trousers . They have refused to allow people on the streets during prayer times .", "In many areas , ORG patrols break up public gatherings , no matter how small , unless they are the organizers . Frequently , ORG justifies the dispersals on the grounds that participants are engaged in ‘ idle’ or ‘ ORG activity , a concept that is arbitrarily applied and often includes everything from playing soccer to talking among friends . ‘ If they find a group of people talking , they may just beat them and tell them to go and do something PERSON , said CARDINAL man from the border village of ORG .", "CARDINAL young man from PERSON said he watched an ORG patrol throw a group of teenage boys in jail TIME for playing Scrabble :", "‘ They said this was idle activity . They took them away and jailed them TIME and shaved some of their heads with a razor blade or a broken bottle . CARDINAL of them was injured from the shaving . They wo n’t even let people gather to listen to the ORG , or to smoke tobacco.’ ”", "ORG also interviewed a widower in an ORG camp in the ORG corridor , who claimed that ORG gunmen had threatened to kill him if he did n’t stop tucking in his shirt , which they criticised as a western custom .", "ORG noted that while all NORP living under local ORG administrations had to cope with onerous and repressive edicts , women bore the brunt of the group ’s repression and abuse . In particular , some ORG leaders had ordered women to wear a particularly thick and bulky type of abaya , an over - gown which covered everything except the hands , face and feet . ORG fighters would patrol neighbourhoods and punish women in lighter - weight abayas . In many cases women were beaten or whipped for wearing the wrong clothing .", "NORP In addition , ORG administrations ordered women to close their shops as commercial activity permitted them to “ mix with men ” . In a country with a vast number of war widows and female - headed households , this edict left many families without crucial sources of income . Moreover , the segregation of men and women applied to all areas of DATE life . Women were not permitted to go to the market with men , even if they were relatives , and if travelling in a vehicle , they had to sit in different seats . There were reports of women being flogged at checkpoints if they were found to be sitting beside a man .", "Finally , the report noted that in many areas , ORG leaders had embraced amputations and executions as punishment and turned them into a public spectacle . Since DATE CARDINAL people had been stoned to death for allegedly committing adultery . There were some unconfirmed reports that CARDINAL of these people was a DATE girl .", "Human Rights Watch Annual World Report summarised the situation in GPE as “ one of the world ’s worst human rights catastrophes ” . GPE was wracked by indiscriminate warfare in which all parties were implicated in war crimes or other serious human rights abuses , while much of the rest of the country was under the control of local administrations linked to armed opposition groups . In many of these areas the population had suffered from the abusive application of LAW law and forced conscription of civilians , including children , as militia fighters . In addition , a humanitarian crisis of enormous proportions was unfolding , fuelled by DATE of drought and insecurity that had often prevented the effective delivery of aid . CARDINAL people – CARDINAL of GPE ’s remaining population DATE were in urgent need of humanitarian assistance . CARDINAL people were displaced from their homes within GPE and CARDINAL had fled the country as refugees in DATE .", "NORP The delivery of humanitarian assistance to GPE had been severely hampered by the prevailing insecurity and by threats specifically targeting humanitarian agencies . Most of the humanitarian agencies operating in GPE had had to dramatically curtail their operations or had been driven out of southern and central GPE altogether . In opposition - controlled areas where CARDINAL of NORP were in need of assistance , humanitarians had come under regular threat by ORG and other groups which accused them of colluding with international efforts to back ORG .", "This report , which was published in DATE , details the continuing abuses perpetrated by the NORP authorities against NORP refugees and asylum - seekers . It noted that despite the closure of the border , CARDINAL refugees entered GPE and registered at the ORG camps DATE and DATE . However , the closure of the border and ORG ’s transit centre had created a lawless no man ’s land in GPE ’s border area near the refugee camps . Consequently , asylum - seekers endeavouring to reach the camps were often intercepted by NORP police who sought to extort money from them and unlawfully arrest , detain , abuse and even deport those who could not pay .", "ORG spoke with CARDINAL of NORP refugees whose vehicles had been stopped by police patrolling the border to extort money from them in exchange for free passage to the camps . In some cases , police had raped women and physically assaulted men . In many other cases , refugees were arrested and detained by the police before being permitted to register in the camps . They were detained in overcrowded cells with poor ventilation and no , or almost no , food and water . Some were not permitted to use the toilet and had to use the cell floor to urinate and defecate . Detained refugees were often released upon the payment of a bribe . If they could not pay , they were threatened with court proceedings in a last ditch attempt to extort money from them .", "NORP Moreover , ORG documented CARDINAL separate incidents in which NORP police returned asylum - seekers to GPE . All of these incidents , which involved CARDINAL men , women and children , took place DATE . According to this sample , ORG estimated that CARDINAL if not CARDINAL of NORP were being returned to GPE DATE in breach of the principle of non - refoulement .", "Such widespread abuses compelled many asylum - seekers to travel through GPE on smaller paths where criminals preyed on them , stealing their belongings and raping women .", "There were further reports of serious abuses by NORP police officers within the refugee camps . CARDINAL refugees told ORG of CARDINAL separate incidents during which police had violently assaulted them or during which they had observed police assaulting other refugees . CARDINAL woman complained that she had been raped by a police officer in the camps .", "NORP In addition , refugees reported that the police failed to respond to allegations of sexual violence within the camps . In particular , a lack of capacity and expertise impeded the prevention , investigation and prosecution of acts of sexual violence . International policing standards required CARDINAL police officer per CARDINAL people . Although GPE ’s official average was QUANTITY people , the official ration in the camps was CARDINAL per CARDINAL people . There were reports that the police would not investigate crimes unless the victims could pay them , and in other cases it was alleged that investigations were discontinued and perpetrators were released upon the payment of a bribe . According to ORG , in DATE police in the camps prosecuted CARDINAL cases of sexual and gender - based violence of which CARDINAL resulted in convictions , CARDINAL in acquittals , and CARDINAL remained pending at DATE .", "Human Rights Watch also reported that since DATE , GPE had adopted an informal encampment policy for most refugees , restricting their movement to the limited confines of the refugee camps . Refugees found outside the camps without “ movement passes ” were arrested , fined and imprisoned for DATE at a time .", "The International Displacement Monitoring Centre estimated that as of DATE CARDINAL people were internally displaced in south and central GPE . Many IDPs had fled from the conflict in GPE . CARDINAL of mini - buses were ferrying people out of the city but , as a result of high demand , the cost of transportation was going up DATE and many people were being forced to remain in the city .", "NORP Some IDPs had fled from conflict in other areas of southern and central GPE . The report noted that people in PERSON , PERSON and ORG had been displaced as a result of fighting in DATE . In addition , PERCENT of the population of ORG and ORG towns in the GPE region of central GPE fled their homes after fighting began in DATE . Many of these people had already been displaced as a result of the fighting in GPE .", "Many of the displaced from GPE moved to the already overcrowded settlements that lined the QUANTITY road between GPE and GPE . ORG had estimated that in DATE there were CARDINAL IDPs around GPE , CARDINAL around GPE , CARDINAL in GPE , CARDINAL in GPE ( GPE ) , CARDINAL in GPE and CARDINAL in GPE . However , due to the security situation , it was extremely difficult to verify these figures .", "NORP The report further noted that CARDINAL of the population in GPE was believed to be in need of humanitarian assistance but the continuing insecurity was preventing the delivery of essential supplies . In DATE militia had attacked a ORG warehouse . In DATE camps in GPE hosting CARDINAL IDPs were cut off from assistance as the ORG was unable to distribute food due to insecurity . In DATE ORG were forced to suspend the dispatch of QUANTITY of supplies for the prevention and treatment of acute malnutrition . Targeting of humanitarian workers has also affected delivery of aid to needy populations . DATE CARDINAL aid workers had been killed , CARDINAL had been abducted and CARDINAL remained in captivity .", "NORP In DATE ORG announced a ban on a number of ORG agencies in areas of southern and central GPE under its control , including ORG . Towards DATE ORG demanded that ORG stop importing food into GPE from DATE and instead buy local produce , despite the fact that the country could not meet the food needs of its population . Despite the threats , ORG managed to provide food through local and international partners where security permitted . In DATE , ORG provided food aid to CARDINAL NORP . ORG and other agencies continued to provide health care and water , sanitation and health programmes in ORG settlements . However , the security situation had impacted these programmes .", "Aid work had also been impacted by funding cuts . The GPE had withheld MONEY from ORG agencies , possibly due to a fear that donations may reach ORG , which was thought to have growing ties with ORG . In DATE ORG reported that its food supply to GPE had been effectively broken as a result of the GPE ’s policy as it had been the largest donor to the ORG .", "In DATE Oxfam reported that poor sanitation and the lack of access to basic services were creating a public health emergency in ORG camps . It described the GPE camps as “ the world ’s densest concentration of displaced people ” and described the situation as “ a human tragedy of ‘ unthinkable proportions’ ” . The camps were also vulnerable to environmental problems . In DATE flash floods hit ORG camps in GPE and GPE and destroyed the makeshift shelters of CARDINAL of people . In GPE , rains left CARDINAL people homeless and exposed them to mosquitoes and other hygiene - related problems .", "NORP The report noted that PERCENT of the NORP population had no access to safe water and PERCENT had no access to sanitation . Many displaced women were forced to walk QUANTITY each day to fetch water , increasing the risk of being attacked or raped by militias . IDPs often had to pay to use the latrines in the camps in addition to paying rent . As a result , many camps were littered with garbage and faeces , increasing the incidence of disease .", "On DATE the ORG issued a statement reporting that :", "“ Rising threats and attacks on humanitarian operations , as well as the imposition of a string of unacceptable demands from armed groups , have made it virtually impossible for ORG ( ORG ) to continue reaching CARDINAL people in need in southern GPE .", "ORG ’s humanitarian operations in southern GPE have been under escalating attacks from armed groups , leading to this partial suspension of humanitarian food distributions in much of southern GPE .", "ORG ’s offices in GPE , PERSON , ORG , ORG and PERSON in southern GPE are temporarily closed , and food supplies and equipment have been moved , along with staff , to safer areas in order to ensure that food assistance continues to reach as many vulnerable people as possible . ”", "ORG ( ORG ) reported in its Special Brief – Post - Deyr ‘ CARDINAL/CARDINAL Analysis issued on DATE that GPE has :", "“ ... PERCENT of the population , or CARDINAL people , in need of emergency humanitarian assistance and/or livelihood support until DATE . The results indicate that although there are some positive indicators in terms of the lifting of the livestock export ban and improved crop and livestock production in southern parts of the country , the food security and nutrition situation in central regions remains in crisis , where PERCENT of the population require assistance . The situation is exacerbated by escalating conflict and displacements , creating a double burden for drought affected populations in central regions , having to support those recently displaced yet with reduced access to assistance from aid agencies due to the insecurity .", "Emergency levels of acute malnutrition continue to be reported , with CARDINAL in CARDINAL children in GPE acutely malnourished and in need of specialist care . Of these children , CARDINAL in CARDINAL is severely malnourished and at a CARDINAL times increased risk of death compared to well - nourished children . However , in south and central GPE the rates are higher , with CARDINAL in CARDINAL children acutely malnourished of which CARDINAL in CARDINAL is severely malnourished . These national rates of acute malnutrition continue to be amongst the highest in the world . Currently , these rates translate into estimated CARDINAL children DATE in GPE being acutely malnourished , of which CARDINAL are severely malnourished . CARDINAL of these children are located in south and central GPE , the areas most affected by the current conflict . The people currently in crisis include CARDINAL rural people affected by drought , CARDINAL urban people who struggle with very high food and non - food prices , and CARDINAL internally displaced people ( IDPs ) who are fleeing from the conflict . ”", "NORP In a report of DATE , entitled “ Top CARDINAL under - reported humanitarian stories of DATE , ORG described the situation in GPE as follows :", "“ In DATE , the NORP population continued to fall victim to indiscriminate violence , while severe drought plagued parts of the country . CARDINAL of people urgently require health care , yet the enormous gap between the needs of NORP and the humanitarian response on the ground continues to widen . Ongoing abductions and killings of international and NORP aid workers is thwarting the efforts of humanitarian organizations to respond , and the public health - care system remains in near total collapse .", "... The impact of such high levels of violence and insecurity stretches far beyond ORG ’s surgical units , contributing to a general lack of access to basic lifesaving medical care countrywide . ORG ’s ability to provide assistance was further diminished when in DATE ORG staff members were abducted in Huddur in ORG region leading to the closure of its largest health centre in south and central GPE and CARDINAL other health posts . In DATE an ORG employee died in an explosion in GPE PERSON , PERSON region , which killed CARDINAL other people . In DATE , the heightened insecurity forced ORG , for the first time in DATE , to close activities in its pediatric hospital and CARDINAL other health clinics in northern GPE as staff were forced to flee for their own safety .", "Another major challenge is the lack of qualified medical staff in GPE , with so many health workers among those who have fled the violence and no medical universities open . In DATE , there was a ray of hope with the graduation of CARDINAL doctors from ORG in GPE — the first graduating class of new physicians in DATE . This hope was short - lived with the bombing of the next graduation ceremony on DATE , killing CARDINAL people , mostly graduates , and wounding CARDINAL others .", "The lack of free medical care available throughout the country exacerbates the health issues people face as a result of chronic poverty and this DATE ’s severe drought . Although little reliable data is available at the national level , health - care indicators in GPE are among the worst in terms of immunization , maternal mortality , malnutrition and access to basic health care services . According to ORG , women have a CARDINAL in CARDINAL lifetime risk of dying during pregnancy or childbirth . CARDINAL in CARDINAL children DATE is acutely malnourished . ”", "On DATE IRIN reported that property owners in GPE ’s GPE corridor were selling the land on which CARDINAL of IDPs had been settled for DATE , displacing them anew . The new landlords were building structures for rent , but few could afford to pay the prices asked . Some well - placed sources had heard reports that the people buying the land had links with piracy .", "On DATE ORG reported that according to ORG estimates , CARDINAL IDPs from GPE had sought refuge in the GPE corridor , which represented a considerable increase from CARDINAL in DATE . This increase was thought to be a reflection of the deteriorating security in the city since DATE . In addition to the CARDINAL IDPs living in GPE , there were another CARDINAL displaced people in GPE , north of GPE , CARDINAL in the Bal’cad corridor in the northern periphery of city , and CARDINAL others in PERSON in the western outskirts . GPE itself had CARDINAL IDPs .", "NORP The report noted that there had been a rapid urbanisation of the GPE corridor , which was clearly apparent in the satellite imagery . Structures in GPE were becoming more permanent as hopes faded for a safe return to the capital any time soon . According to ORG , living conditions in the GPE corridor were extremely difficult , with people struggling to feed themselves and lacking other basic necessities , while as the precarious security situation prevented humanitarian agencies from accessing those in need . Some assistance was getting there through local partners , but the amounts were minuscule compared to the needs .", "NORP The Secretary - General ’s Special Representative for GPE , PERSON , said that without peace in southern and central GPE , it would be difficult to envisage profound and lasting changes in the precarious human rights situation there , especially with regard to the right to life , and even basic human rights such as the right to food , shelter , education and health .", "On DATE the ORG reported that GPE was once again facing a malnutrition crisis . CARDINAL people – CARDINAL of GPE ’s population – required humanitarian aid after the failure of recent rains and drought had overtaken insecurity as the leading cause of displacement . In fact , it was reported that as a consequence of the drought , the exodus from conflict - racked GPE in DATE had been reversed , with CARDINAL of people now leaving the countryside for the capital in search of food and water .", "On DATE ORG reported that severe drought in GPE was once again exacerbating the humanitarian crisis with more people becoming internally displaced and others moving into refugee camps across the border in GPE . Malnutrition rates among children , already above emergency levels in GPE , had risen and CARDINAL people – CARDINAL per cent of the country ’s CARDINAL people – were in need of relief aid ." ]

[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE , at TIME , the applicant was arrested and taken to the NORP police station on suspicion of using explosives during a demonstration .", "According to the arrest and seizure report , at TIME , the police had been informed of a gathering which needed to be monitored . Upon their arrival , they had noticed a group of people who had gathered in the middle of the street , holding Molotov cocktails . The group had dispersed when they saw the officers . The report further indicated that the applicant , who had been among the group , had started to run away , threatened to throw a Molotov cocktail at the officers and resisted when the police tried to arrest him . According to the report , the police had used gradual force within legal limits in order to keep the applicant under control and had finally handcuffed him . They had also seized the Molotov cocktail which was ready to explode and had found a piece of fabric in his pocket which could be used as a fuse for the Molotov cocktail .", "At TIME the applicant underwent a medical examination at ORG . The report drawn up afterwards indicated no sign of physical violence on his body .", "Following the examination , the applicant was taken back to the LOC police station . In the meantime , the GPE public prosecutor ordered that he should be handed over to ORG of ORG .", "The applicant underwent a second medical examination at ORG before he was taken to the AntiTerrorist Branch . The second report issued there on DATE , at CARDINAL a.m. , noted once again that there was no sign of ill - treatment on his body .", "Upon his arrival at FAC , the applicant was transferred to ORG and was examined by a doctor at TIME Before the examination , he claimed that he had been sworn at , stripped naked , and punched on the chin and shoulders at the NORP police station . The interim forensic medical report issued afterwards noted that the applicant ’s general health condition was good and that he was conscious . It stated that beside a bleeding scratch on his left hand , which he noted had occurred before his arrest , the applicant had CARDINAL scratches of QUANTITY and QUANTITY and a lightly bleeding bruise of QUANTITY on his right elbow , hyperaemia on both his wrists probably caused by the use of handcuffs and some other small scratches on his elbows , chest and shoulders . The report further noted that the movement of the applicant ’s chin was found to be normal . It concluded that the applicant had several soft - tissue lesions , which did not put his life at risk and could be treated with simple medical attention .", "Another medical report drawn up at TIME indicated that the applicant had CARDINAL scratches of QUANTITY on both elbows , had difficulty in opening his jaw and pain on the frontal area of his head . This report concluded that the applicant needed to be examined by orthopaedic and neurosurgical departments in a hospital for more accurate results .", "Subsequently , at TIME , the applicant was examined by doctors in the orthopaedics and general surgery departments of ORG . The doctors reported that he had QUANTITY scratches on his left shoulder and right elbow and a scratch measuring CARDINAL x QUANTITY on his left side . They further stated that no urgent orthopaedic or osseous pathology could be determined .", "After that examination , ORG issued a final report , stating that as there was no orthopaedic or neurosurgical pathology , the superficial scratches and bruises on the applicant ’s body did not put his life at risk and could be cured with simple medical attention .", "Finally , on DATE the applicant underwent CARDINAL examinations at the Beşiktaş Branch of ORG . The medical report repeated the findings of the first examination performed in ORG . It also referred to a dental report , made on DATE on account of the applicant ’s allegations of having been punched on the chin , which stated that there was no indication that such external force had been applied to his mouth . Consequently , the applicant was diagnosed as suffering from a soft - tissue lesion which could be cured with simple medical attention .", "On DATE , following the medical examinations , the applicant made his submissions before the GPE public prosecutor , to whom he complained that he had been ill - treated while in police custody . He also denied the contents of the arrest and seizure report and stated that when the police had arrested him , he had been on his way to inform his employees’ families that the employees would stay TIME .", "Later on , the applicant was questioned by the investigating judge at ORG . Repeating the statements he had given before the public prosecutor , he maintained that he had been walking along with CARDINAL of his employees when the police had pushed him to the ground and handcuffed him . He added that the piece of fabric found in his pocket , which the police claimed was a fuse , was merely a sample he had carried with him for an order , as he worked in the textile business . The investigating judge decided to remand the applicant in custody on suspicion of being a member of an illegal organisation , namely the ORG ( ORG ) , and of threatening to cause fear and panic .", "On DATE the GPE public prosecutor separated the investigation into the applicant ’s allegation of ill - treatment from that regarding the applicant .", "On DATE the GPE public prosecutor invited CARDINAL police officers from the LOC police station to attend within DATE at the prosecutor ’s office , in order to give their statements on the matter .", "On DATE the GPE public prosecutor questioned the applicant once again . The applicant submitted that he had been punched , slapped and pushed against the wall by CARDINAL officers for TIME during his time at the LOC police station . He added that he had not been subjected to ill - treatment during his arrest and while at FAC .", "On CARDINAL and DATE respectively , CARDINAL police officers , who had carried out the applicant ’s arrest , were questioned by the GPE public prosecutor . Denying the applicant ’s allegations , they maintained that they had arrested the applicant using gradual force and had taken him to the police station in order to draw up an arrest report . They added that subsequently they had taken the applicant for a medical examination , brought him back to the police station and left . The other officers , who had been at the station while the applicant had been there , denied the allegations as well and maintained that no one at the station had inflicted physical violence on the applicant . CARDINAL of them further referred to the second medical examination , performed right before the applicant had been transferred to ORG , and maintained that the second report did not indicate any sign of ill - treatment on the applicant either . The officers noted , lastly , that the injuries to the applicant must have occurred during his arrest as he had resisted the officers .", "On DATE the applicant checked photographs of some of the police officers before the NORP public prosecutor . He maintained that he could not identify the officers who had beaten him from the photographs that were shown to him . He added that he still suffered from pain in his ear as a result of the ill - treatment .", "On DATE the GPE public prosecutor ’s office asked the director of the LOC police station to provide him with the names and photographs of all officers on duty at the police station on DATE TIME . The prosecutor ’s office further wrote to various security headquarters in other cities , to which some of the police officers had been assigned , and requested their photographs .", "Subsequently , on an unspecified date and on CARDINAL DATE respectively , the applicant was taken twice to the NORP public prosecutor ’s office with a view to checking the photographs of all the officers on duty at the time of the alleged incident . The applicant maintained that he had failed to identify the officers who had ill - treated him from their photographs on account of the passage of time but that he was certain that some , with whom he had been acquainted before his arrest , had not been among them . He added that he would have been able to identify the officers who had beaten him , in person , through an identification parade .", "On DATE and DATE respectively , CARDINAL officers from the GPE Anti - Terrorist Branch gave their statements before the public prosecutor . They indicated that before the applicant had been handed over to them , they had asked the police officers from the LOC police station to obtain a medical report and had placed the applicant in custody only after that report had been provided .", "On DATE another police officer from ORG was questioned by the public prosecutor , in order to clarify why the applicant had undergone several medical examinations in DATE . The officer claimed that the applicant must have been taken to the doctor several times because of his requests to that effect .", "On DATE the GPE public prosecutor asked ORG to explain whether the injuries to the applicant could have occurred as a result of the use of handcuffs during his arrest and whether they might have become visible DATE on , so that the doctors at ORG , who had conducted the initial examinations , could not have noticed them .", "NORP In response to the public prosecutor ’s request , on DATE ORG assessed all the medical reports and concluded that the lesions on the applicant ’s body could not have occurred merely from the use of handcuffs and that he must have been subjected to trauma . The report also noted that such lesions might have been unnoticeable during the initial medical examinations as it was usual for them to become visible only after TIME .", "After having examined the last report , the GPE public prosecutor requested further clarification from ORG , maintaining that its conclusion referring to trauma conflicted with the previous findings , which indicated that the lesions on the applicant ’s body merely necessitated simple medical attention . Subsequently , on DATE ORG reported that the lesions must have resulted from injuries which had occurred before the applicant ’s police custody and that such lesions might not have been immediately visible . ORG also added that the last medical reports issued in respect of the applicant noted a reduced number of lesions .", "On DATE the GPE public prosecutor issued a decision not to prosecute . He stated that the police officers had denied the accusations and that the applicant had not been able to identify any of the officers involved even though he had been shown pictures of all the suspects along with several other officers from the LOC police station . He further indicated that the applicant ’s injury must have been caused by force lawfully employed by the officers during his arrest , which was within the scope of their duties and proportionate to the danger caused by the applicant as he was threatening to throw a Molotov cocktail at the officers . The public prosecutor concluded that the evidence obtained was not sufficient to conclude that members of the security forces had ill - treated the applicant .", "The applicant lodged an objection with ORG against the decision of the public prosecutor .", "On DATE ORG rejected the objection . The final decision was served on the applicant on DATE ." ]

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[ "3" ]

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[ "The applicant was born in DATE and is currently detained in FAC .", "In DATE , there were a series of armed robberies of mini - cab drivers in and around GPE . Each robbery was carried out in the same way by a person posing as a passenger at TIME . Each involved violence . The first robbery was committed on DATE ( for which the applicant was later acquitted ) . On DATE , the applicant was arrested and agreed to an identification parade on DATE . He was released pending the parade .", "On DATE , a second robbery , later alleged in count CARDINAL of the indictment against the applicant , was committed . On DATE , the applicant was arrested in relation to that offence . The applicant again agreed to participate in an identification parade to be held on CARDINAL May and was then released . However , on that date , the applicant did not appear for the identification parade but instead sent a doctor 's note stating that he was too ill to go to work . A subsequent identification parade was set for DATE . Notice to that effect was sent to the applicant 's residence . He did not appear for identification on the specified date , stating later that he did not receive such notification as he had changed address .", "On DATE , the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent .", "On DATE , a robbery , for which the applicant was charged in count CARDINAL of his indictment , occurred . The applicant was arrested on DATE and later acquitted on this count . The applicant agreed to stand on an identification parade scheduled to take place on DATE . On DATE , the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on CARDINAL DATE . On DATE , he did not in fact attend .", "On DATE , the robbery alleged in count CARDINAL occurred , while a further robbery alleged in count CARDINAL took place on DATE .", "An important part of the prosecution 's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator . For this reason , submitting the applicant to an identification parade was of great importance for the prosecution . Given the failure of the applicant to attend the arranged identification parades , the police decided to arrange a video identification parade . Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under ORG on ORG in Police Surveillance Operations DATE .", "On DATE , the applicant was taken from FAC ( where he was being detained on another matter ) to the LOC police station . The prison , and the applicant , had been informed that this was for identification purposes and further interviews concerning the armed robberies . On arrival at the police station , he was asked to participate in an identification parade . He refused .", "Meanwhile , on his arrival at the police station , he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went . An engineer had adjusted the camera to ensure that it took clear pictures during his visit . A compilation tape was prepared in which QUANTITY volunteers imitated the actions of the applicant as captured on the covert video . This video was shown to various witnesses of the armed robberies , of whom CARDINAL positively identified the applicant as involved in the second and fourth robberies . Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use .", "The applicant 's trial commenced in DATE .", "At the outset , the applicant 's counsel made an application pursuant to section CARDINAL of ORG that evidence of the video identification should not be admitted . The judge heard submissions from the prosecution and defence during a preliminary hearing ( “ voir dire ” ) on DATE . On DATE , the trial judge ruled that the evidence should be admitted . When shortly afterwards this judge became unable to sit , the new trial judge heard the matter afresh . In his ruling of CARDINAL DATE , he found that the police had failed to comply with paragraphs DATE , D.CARDINAL.CARDINAL and PERSON of the Code of Practice , inter alia with regard to their failure to ask the applicant for his consent to the video , to inform him of its creation , to inform him of its use in an identification parade , and of his own rights in that respect ( namely , to give him an opportunity to view the video , object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape ) . However , the judge concluded that there had been no unfairness arising from the use of the video . CARDINAL persons had been filmed for comparison purposes rather than the required CARDINAL and were all within comparative height , age and appearance . Even though the applicant 's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos , the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated . The judge ruled that the evidence was therefore admissible .", "The trial lasted DATE , the applicant and CARDINAL witnesses giving live evidence . During the course of it , the applicant discharged all his legal representatives ( leading and junior counsel and solicitors ) and conducted his own defence as he was dissatisfied with the way his defence was being conducted . In his summing - up to the jury , the trial judge warned the jury at considerable length about the “ special need for caution ” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker , telling them that if it was not a fair test they should not give much , if any weight , to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage , they could not rely safely on the video identification evidence . The jury were also made aware of the applicant 's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code .", "On DATE , the jury convicted the applicant of CARDINAL counts of robbery and acquitted him of CARDINAL others . The judge sentenced him to DATE imprisonment .", "The applicant applied for leave to appeal against conviction , inter alia , alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades . Leave was granted by a single judge of ORG .", "On DATE , after a hearing at which the applicant was represented by counsel , ORG rejected his appeal , finding that the trial judge had dealt with the matter in a full and careful ruling , that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair . It refused leave to appeal to ORG .", "On DATE , the applicant applied to ORG . It rejected the application . The solicitors claimed that they were informed on DATE .", "Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices . The Guidelines are available in the library of ORG and are disclosed by ORG on application .", "NORP In each case , the authorising officer should satisfy himself that the following criteria are met : ( a ) the investigation concerns serious crime ; ( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , be unlikely to succeed if tried ; ( c ) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism and ( d ) the use of equipment must be operationally feasible . The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence .", "Section CARDINAL(CARDINAL ) of PACE provides as follows :", "“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”", "In NORP v. PERSON [ DATE ] CARDINAL All ER CARDINAL , ORG held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of LAW was relevant to , but not determinative of , the judge 's discretion to admit or exclude such evidence under section CARDINAL of PACE . The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of LAW was admitted in that case .", "The Code of Practice was issued under sections CARDINAL of PACE , laid before ORG and then made a statutory instrument . It provided as relevant :", "“ D:CARDINAL.CARDINAL", "The police may hold a parade other than an identification parade if the suspect refuses , or having agreed to attend , fails to attend an identification parade .", "D:CARDINAL.CARDINAL", "The identification officer may show a witness a video film of a suspect if the investigating officer considers , whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons , that this would in the circumstances be the most satisfactory course of action .", "GPE", "The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs CARDINAL and CARDINAL . However , where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so .", "ORG", "A video identification must be carried out in accordance with PERSON ...", "D:CARDINAL.CARDINAL", "Before a parade takes place or a group identification or video identification is arranged , the identification officer shall explain to the suspect :", "( i ) the purposes of the parade or group identification or video identification ;", "( ii ) that he is entitled to free legal advice ( see paragraph CARDINAL of Code C ) ;", "( iii ) the procedures for holding it ( including the right to have a solicitor or friend present ) ; ...", "( vi ) that he does not have to take part in a parade , or co - operate in a group identification , or with the making of a video film and , if it is proposed to hold a group identification or video identification , his entitlement to a parade if this can practicably be arranged ;", "( vii ) if he does not consent to take part in a parade or co - operate in a group identification or with the making of a video film , his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him ; ...", "D:CARDINAL.CARDINAL", "This information must also be contained in a written notice which must be handed to the suspect . The identification officer shall give the suspect a reasonable opportunity to read the notice , after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co - operate with the making of a video film . The signed copy shall be retained by the identification officer . ”", "Annex B set out the details for arranging a video identification , including how , the number and appearance of participants etc ." ]

[ "8" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Director ORG , and Mr PERSON , Director , both of ORG .", "On DATE ORG ( valtiokonttori , statskontoret ) of ORG awarded the applicant a full state pension based on his public service . The pension amount would be reviewed DATE by ORG with reference to an index based on the national salary and price level . Such index adjustments took place up to and including DATE .", "On DATE the applicant was awarded , as from DATE , a national old - age pension with a supplementary award for his war - time service .", "In DATE and DATE ORG exceptionally amended the legislation on the index - based protection of pension benefits ( Acts nos . DATE and CARDINAL/CARDINAL ) . With these amendments the index figure to be used for DATE and DATE was DATE , as opposed to the respective figures fixed by ministerial order ( DATE and DATE ) .", "On DATE ORG refused the applicant 's demand that the amount of his state pension be adjusted with reference to the index fixed by ORG . Reference was made to the exceptional legislation enacted in DATE . According to the notice of appeal attached to the decision , it could be challenged before ORG ( valtion eläkelautakunta , statens pensionsnämnd ) . The applicant 's appeal was refused on DATE . ORG considered that the notice of appeal had been incorrect but nonetheless examined the merits of the appeal , finding that ORG had correctly applied the exceptional legislation in force . On the applicant 's further appeal ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , on DATE , quashed and nullified the decision of ORG to which the applicant had incorrectly been advised to appeal . ORG nevertheless found that ORG had had to refuse the applicant 's demand on the grounds stated in its decision and with reference to the legal provisions invoked therein . ORG was furthermore of the view that the decision in question could not be considered to violate provisions of the LAW . The applicant was later informed by the legal secretary on his case that , in DATE , an opinion on his appeal had been obtained from ORG .", "On DATE ORG , relying on the exceptional legislation enacted in DATE , refused the applicant 's demand that the amount of his state pension be based on the index figure fixed by ORG for DATE . On DATE his appeal was refused by ORG essentially for the same reasons as those stated in its decision of the same date with regard to the requested index adjustment for DATE . The applicant was later informed that , in DATE , an opinion on his appeal had been obtained from ORG .", "In DATE the applicant requested ORG ( verotuksen oikaisulautakunta , skatterättelsenämnden ) to review the imposition on him of a national social insurance fee for DATE . He argued that no such fee had been provided by the DATE decision to grant him old - age pension . The imposition of the fee was upheld on DATE . The applicant 's appeal was refused by ORG ( lääninoikeus , länsrätten ) of PERSON on DATE with reference to Act no . CARDINAL/CARDINAL which had temporarily amended LAW ( kansaneläkelaki , folkpensionslagen CARDINAL ) by no longer excluding pensioners from the imposition of a national insurance fee . The applicant sought leave to appeal to ORG , arguing , inter alia , that his DATE fee was higher than his old - age pension . The imposition of the fee , taken together with the exceptional legislation blocking index - based increases in his state pension , was effectively depriving him of yet further property to which he had a legitimate claim . Having granted leave to appeal , ORG , on DATE , refused the appeal , considering that the DATE pension decision had been silent as to the conditions for imposing a national social insurance fee on a pensioner who had reached DATE . Act no . CARDINAL/CARDINAL , which provided for such imposition , had been enacted on DATE and had been applied during DATE . Its wording had not been ambiguous and its application could not be affected by the constitutional provisions protecting private property and prohibiting discrimination . Nor did LAW No . CARDINAL to the Convention have any impact on the collection of a fee with the character of a tax .", "On DATE ORG refused the applicant 's demand that the national social insurance fee imposed on him for DATE be lifted as being unconstitutional . On DATE his appeal was refused by ORG with reference to Act no . DATE , which had prolonged the temporary amendment to LAW no . CARDINAL/CARDINAL ) , and on the grounds of principle relied on by ORG in its decision of DATE concerning the imposition of the insurance fee for DATE . On DATE ORG refused the applicant leave to appeal .", "In DATE LAW was amended to the effect that , in DATE , the national pension ( e.g. , the old - age pension ) was to be replaced by a pension calculated with reference to new criteria . Those whose total income in the form of other pensions and various compensations exceeded certain ceilings would no longer be entitled to a national pension . In such a case the so - called basic amount ( pohja - osa , basdel ) of their national pension would be reduced by MONEY annually DATE ( Act no . CARDINAL/CARDINAL ) .", "On DATE ORG ( kansaneläkelaitos , folkpensionsanstalten ) refused the applicant 's demand that he should continue receiving the basic amount of his old - age pension as adjusted in accordance with the relevant index figure to be applied according to the provisions in force when the pension was granted . On DATE ORG ( tarkastuslautakunta , prövningsnämnden ) dismissed his appeal with reference to LAW . The decision further referred to an opinion obtained from ORG . This opinion was not communicated to the applicant for possible comments . No further appeal lay open ." ]

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[ "The applicant was born in DATE and lives in PERSON ( GPE ) .", "He and his sister are the owners of a flat in PERSON ( GPE ) , which they had let to PERSON", "In a writ served on the tenant on DATE , the applicant informed the tenant of his intention to terminate the lease on expiry of the term on DATE and summoned the tenant to appear before the Cava De ' Tirreni Magistrate ( LOC ) .", "By a decision of CARDINAL DATE , which was made enforceable on CARDINAL DATE , the PERSON Tirreni Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .", "On DATE , the applicant served notice on the tenant requiring her to vacate the premises .", "On DATE , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .", "On DATE , the bailiff made CARDINAL attempt to recover possession , which proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order of possession .", "The tenant asked the Cava De ' PERSON to suspend the eviction proceedings .", "On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .", "Pursuant to Law no . CARDINAL , the enforcement proceedings were suspended until DATE .", "On DATE , the applicant recovered possession of the flat .", "Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.", "As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .", "The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .", "The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .", "Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .", "NORP The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , LAW provides :", "“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .", "NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .", "In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .", "The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant ." ]

[ "6" ]

[ "6-1" ]

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[ "On DATE the applicant ’s father was convicted of keeping , contrary to the regulations then in force , CARDINAL gold coins and CARDINAL silver coins of numismatic value . He was sentenced to DATE imprisonment . He was also fined , and the coins were confiscated .", "On DATE , in the context of judicial rehabilitation provided for by LAW DATE , ORG of GPE ( Najvyšší súd ) quashed the judgment of CARDINAL DATE and all consequential decisions , and discharged the applicant ’s late father .", "On DATE the applicant claimed the restitution of his father ’s coins under LAW DATE ( “ the DATE LAW ) .", "On DATE ORG Okresný súd ) granted the action and ordered ORG to restore the coins to the applicant . The court established , with reference to the relevant records , that the coins had been taken away from the applicant ’s father on DATE and transmitted to ORG in GPE on DATE . On DATE the coins had been examined by an expert and inventoried on the premises of ORG in GPE .", "The relevant part of ORG judgment reads as follows :", "“ It is true that the law requires that a person claiming restitution of movable property should indicate and show where such property is . However , in the present case the plaintiff undoubtedly has no possibility of inspecting the LOC or safes of the former ORG in GPE as he is not allowed to enter those LOC . By insisting that the applicant should show that the coins are at the last known place , the ORG would impose a burden of proof on him which it is practically impossible to fulfil . On the contrary ... ORG neither showed that the former ORG in GPE had transferred the coins to a different authority nor did it propose to take evidence to that effect ...", "The ORG has established that the last time [ their exact location was known ] the coins ... had been held on the premises of ORG in GPE to which ORG is a successor , and it has not been shown that the coins were not on those LOC when FAC became operative , that is , on DATE . ”", "On DATE ORG appealed . Its representative argued that all relevant documents had been destroyed and that the onus of proof as to where the coins had been deposited lay on the applicant .", "On DATE ORG ( Krajský súd ) ruled in favour of ORG . It found , with reference to sections PERSON ) , CARDINAL ) and CARDINAL ) of the CARDINAL Act , that the applicant had failed to show where the coins had been deposited when that LAW had become operative on DATE .", "In the judgment , ORG admitted that the applicant had limited possibilities of locating his father ’s property . It had therefore taken further evidence on its own initiative . In particular , ORG noted that , in accordance with the relevant practice , the confiscated property should have been handed over to the public prosecutor and , after the relevant judgment had became final , to the financial department of the competent local government authority . ORG therefore examined the criminal file concerning the case of the applicant ’s father . It further established that the archives of ORG , ORG , ORG and ORG in GPE contained no document relating to the coins in question . ORG also heard a witness who had worked at ORG in DATE ; the latter had no knowledge of the case , however . It did not consider it necessary to hear CARDINAL other persons , CARDINAL of whom had been present when the coins were inventoried and taken over by ORG , as those persons had been dismissed from service in DATE and in DATE respectively . Their statements would not , therefore , make it possible to establish the relevant facts of the case .", "On DATE ORG dismissed the applicant ’s appeal on points of law . It shared ORG view that the applicant had failed to produce evidence that the defendant Ministry was in possession of the coins , as required by section CARDINAL ) of the CARDINAL Act .", "In the judgment , ORG further stated :", "“ The allegation that the movable property in question had been taken over by an employee of ORG in GPE on CARDINAL DATE and that ... it had been examined there by an expert on DATE can not suffice . Since then , a considerable period has lapsed , during which the gold and silver coins in question could have been alienated , destroyed or lost . The legislator , however , explicitly included in section CARDINAL ) of LAW the obligation to show where the movable property in question was at the time of the entry into force of that Act .", "... It follows from a logical and systematic interpretation of section CARDINAL(CARDINAL ) of LAW that a restitution claim can only concern the same property which was taken over by the ORG and not a different object of the same kind . Only movable property which can be individually identified by specific features which mean that it can not be confused with other objects is therefore liable to restitution ... ”", "Law no . CARDINAL on judicial rehabilitation ( PERSON o súdnej rehabilitácii ) came into force on DATE . The relevant provisions read as follows :", "“ The aim of the LAW is to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the LAW and set out in international instruments , ... to ensure social rehabilitation and adequate material compensation for the persons [ so ] convicted ... ”", "“ ...", "( CARDINAL ) The conditions under which the provisions of this LAW shall apply to claims resulting from the quashing of confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law . ”", "Law no . CARDINAL/CARDINAL on extra - judicial rehabilitations ( PERSON o mimosúdnych rehabilitáciách – “ the CARDINAL LAW ) came into force on DATE . Its preamble states that it was enacted with the aim of mitigating the consequences of certain infringements of property and other rights which occurred between CARDINAL DATE and DATE . The relevant provisions of the DATE Act read as follows :", "“ ( CARDINAL ) This Act aims at the mitigation of the consequences of certain infringements ... which occurred between CARDINAL DATE and DATE ... and which are incompatible with the principles of a NORP society respecting the rights of citizens as enshrined in the Charter of ORG , LAW and the ensuing international covenants on civil , political , economic , social and cultural rights .", "( CARDINAL ) This Act also lays down the conditions for submitting claims resulting from the quashing of convictions by which property was confiscated ... as well as the manner of redress and the scope of such claims . ”", "“ ( CARDINAL ) ORG persons [ namely , persons entitled to file a claim under this LAW ] are all natural persons whose property passed into ORG ownership in the circumstances referred to in section CARDINAL provided that they are nationals of the NORP and GPE and have their permanent residence within its territory .", "( CARDINAL ) NORP In cases where the person whose property passed into ORG ownership in the circumstances referred to in section CARDINAL has died ... the following natural persons are entitled [ to claim restitution ] provided that they are nationals of the NORP and GPE and have their permanent residence within its territory ...", "( a ) the testamentary heir ... who has acquired the whole estate ;", "... ”", "“ ( CARDINAL ) Persons obliged [ to restore the property ] shall comprise the ORG or legal persons having confiscated property in their possession on the date of entry into force of this LAW ...", "( CARDINAL ) Any natural person who [ unlawfully ] acquired property from the ORG shall also be obliged to restore such property ... ”", "“ ( CARDINAL ) A person obliged [ to make restitution ] shall restore the property upon a written request provided that the person [ claiming the property ] proves that he or she is entitled to have the property restored and shows the manner in which it was taken by the ORG . When claiming restitution of movable property [ the person concerned ] is further required to show where the property is ... ”", "“ ( CARDINAL ) ORG compensation may be granted to the person concerned only in respect of real property which can not be restored ...", "( CARDINAL ) Where the ORG acquired , on the basis of a judicial decision which was quashed under LAW ( Law no . CARDINAL/CARDINAL ) ... , the entire property of a citizen and where such property did not comprise real property , the person concerned is entitled to compensation in the amount of CARDINAL NORP korunas ... ”", "“ ( CARDINAL ) ORG persons are persons who were rehabilitated under PERSON no . CARDINAL/CARDINAL who meet the conditions set out in section CARDINAL(CARDINAL ) or , where such persons are dead ... , persons set out in section CARDINAL(CARDINAL ) [ of LAW DATE ] . ”", "“ ( CARDINAL ) The persons obliged [ to restore confiscated property ] shall comprise any legal person referred to in section CARDINAL ) , any natural person referred to in section CARDINAL ) who acquired such property from the ORG where the ORG itself obtained it as a result of a judicial decision , and the competent central government authority .", "( CARDINAL ) The persons obliged to restore confiscated property shall do so in accordance with sections CARDINAL , ... of the LAW ; where it is impossible to restore the property the persons concerned are entitled to claim compensation in accordance with LAW of [ this ] Act . ”", "NORP In judgment no . QUANTITY of CARDINAL DATE , ORG upheld the lower courts’ conclusion that movable property which could not be individually identified could not be restored under LAW . In the proceedings in question , the plaintiffs claimed restitution of a gold brick , several gold coins and banknotes which had been transferred to the ORG in DATE . The relevant part of ORG judgment reads as follows :", "“ ... on the basis of a logical and systematic interpretation of section LANGUAGE of LAW , as amended , and after comparing that provision with other provisions [ of that LAW ] , ORG concluded that only movable property which can be individually identified by specific features which mean that it can not be confused with other objects is liable to restitution ... The appellants’ view that objects identified by their kind but not individually may also be restored is incorrect as it is contrary to the nature and purpose of the Extra - Judicial Rehabilitations Act , the aim of which is to mitigate the consequences of certain ( that is , not all ) infringements of property and other rights ... ”" ]

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[ "The applicants were respectively born in DATE and DATE and live in GPE .", "They are the owners of a flat in GPE , which they had let to NORP", "In a registered letter of CARDINAL DATE , the applicants informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .", "In a writ served on the tenant on DATE , the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .", "By a decision of CARDINAL DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .", "On DATE , the applicants served notice on the tenant requiring him to vacate the premises .", "On DATE , they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .", "DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicants were not entitled to police assistance in enforcing the order for possession .", "On DATE , the applicants recovered possession of the flat .", "Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.", "As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .", "The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .", "The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .", "Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .", "The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :", "“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .", "NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .", "In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .", "The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE in GPE . She is represented before the ORG by the law firm ORG , practising in GPE in GPE .", "The applicant used to work as a bank employee . Since her retirement at DATE on DATE , she receives a pension under the statutory old - age insurance scheme ( gesetzliche GPE ) , an additional pension under a supplementary insurance scheme for bank employees ( GPE ) and an additional DATE allowance granted by her former employer ( PERSON ) .", "On DATE the applicant married a retired civil servant of DATE who - since DATE - received a pension under the old - age pension scheme for civil servants ( PERSON ) .", "On DATE the applicant 's husband died . According to Articles CARDINAL and CARDINAL of ORG Pension Act ( Beamtenversorgungsgesetz , see relevant domestic law below ) a civil servant 's widow , whose marriage has been celebrated after the civil servant has entered retirement , is not allowed to a regular survivor 's pension ( PERSON ) , but to a maintenance allowance ( Unterhaltsbeitrag ) , which is meant to ensure that her overall DATE income reaches at least the amount of the regular survivor 's pension . It is calculated as follows : From the amount of the regular survivor 's pension the competent authorities deduce the widow 's own earned income ( ORG ) and income replacements ( Erwerbsersatzeinkommen ) , with the exception of an allowance ( Freibetrag ) which amounts to PERCENT of the minimum survivor 's pension .", "In the applicant 's case the competent authority deduced the applicant 's whole other income , including her pension , her supplementary pension and the additional payments from the original widow 's allowance . After adding the above - mentioned allowance , this resulted in a remaining DATE payment of CARDINAL DEM [ CARDINAL ORG ] .", "On DATE , following administrative proceedings , the applicant lodged a claim with ORG ( Verwaltungsgericht ) with the aim to be awarded a higher maintenance allowance . She argued that her own supplementary pension and additional payments could not be regarded as income replacements within the meaning of LAW and could therefore not be taken into account when calculating her DATE allowance as a widow . She further pointed out that under the statutory old - age insurance scheme , additional payments deriving from a private insurance scheme did not diminish the survivor 's pension , and that the same should apply under ORG Pension Act .", "On DATE ORG rejected her claim .", "On DATE , following the applicant 's appeal , ORG ( Oberverwaltungsgericht ) quashed ORG judgment and fully granted the applicant 's claim , finding that the term “ income replacement ” had to be interpreted in the same way as in the relevant provisions on the statutory old - age insurance scheme and therefore did not include the additional payments received under a private pension scheme .", "On DATE ORG ) quashed ORG judgment and rejected the applicant 's claim . According to that court , the relevant provisions had to be interpreted autonomously , because they differed considerably . The statutory old - age insurance only pays pensions and no allowances to widows . Considering the wording as well as the aim of the provision , which was to secure that the widow 's overall income did reach at least the amount of the regular survivor 's pension , that court found that all of the applicant 's DATE income , including her claims under private pension schemes , had to be taken into account . ORG pointed out that the widow 's allowance was merely meant to prevent hardships arising from the fact that the applicant was not entitled to a regular survivor 's pension . It would be in contradiction to this aim not to take payments under a private pension scheme into account .", "On DATE the applicant lodged a constitutional complaint . She argued that ORG had misinterpreted the relevant provisions and that its judgment violated her property rights and her right to equal treatment under LAW . On DATE the applicant requested ORG to seek a preliminary ruling by ORG of ORG as to whether the national legal practice on the assessment of income replacements complied with Community law , in particular with the law on equal treatment .", "On DATE ORG , sitting as a panel of CARDINAL judges , refused to entertain the applicant 's complaint , finding that it was up to the lower instance courts to interpret the law and that the decision in question did not violate any of the applicant 's rights under LAW . This decision was served on the applicant on DATE .", "Pensions of civil servants and their surviving spouses are governed by ORG , the relevant provisions of which at the material time read as follows :", "", "Article CARDINAL", "“ A civil servant 's widow ... receives a survivor 's pension . This does not apply , if", "... CARDINAL . the marriage was celebrated after the civil servant had entered retirement and had reached DATE ... ”", "Article CARDINAL", "“ If LAW No . CARDINAL applies ... the widow has to be granted a maintenance allowance amounting to the survivor 's pension . Earned income and income replacements have to be taken into account to an appropriate degree ... ”", "The administrative regulations for implementing ORG Pension Act ( Verwaltungsvorschriften ) provide that an amount of PERCENT of the minimum widow 's pension has to be deduced from the widow 's other income when calculating the maintenance allowance .", "According to LAW volume of the Social Law book ( ORG ) - which provides the general definitions for pensions under the statutory old - age insurance scheme - pensions paid under a private insurance scheme are not to be regarded as income replacements and are therefore not to be taken into account when assessing a survivor 's pension under the statutory old - age insurance scheme ." ]

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[ "The applicant was born in DATE and lives in the town of PERSON in GPE of GPE .", "On DATE the applicant sued his employer , a mining company , for payment of royalties . The first hearing , fixed for DATE , was adjourned due to the applicant 's absence . The following hearings of DATE and DATE were also postponed upon his requests .", "On DATE the ORG found for the applicant . However , that judgment was quashed on appeal on DATE and re - examination was ordered . The applicant amended his claims .", "On DATE ORG ordered an expert study . The proceedings were stayed until DATE when ORG received the expert report . In DATE another expert study was ordered . The applicant again amended his claims .", "On DATE ORG dismissed the action . That judgment was quashed on appeal on DATE and the case was remitted for a fresh examination .", "A judge was assigned to the case in DATE and the first hearing was listed for CARDINAL DATE . However , that hearing was adjourned because the parties defaulted . The following hearing of DATE was postponed upon the parties ' request for provision of additional evidence .", "On DATE ORG ordered an expert examination . The proceedings were resumed on DATE after the expert report had been submitted to ORG .", "QUANTITY hearings , fixed DATE and DATE , were adjourned because the defendant defaulted and the court wanted to call an expert .", "On DATE ORG ordered an expert study . The proceedings were resumed DATE .", "On DATE the ORG found for the applicant . The judgment was quashed on appeal and the case was remitted for re - examination on DATE .", "A judge was assigned to the case on DATE . In DATE and DATE the presiding judge inquired several expert organisations about a possibility to perform expert studies . A hearing was fixed for DATE . However , it was adjourned for provision of additional evidence by the defendant . The following hearing was fixed for DATE .", "On DATE ORG ordered another expert examination . The applicant appealed against that decision , but on DATE his appeal was dismissed .", "In DATE ORG sent the case - file to an expert bureau . DATE the experts asked ORG for additional documents . The documents were submitted to the experts in DATE . In DATE and DATE the experts inquired ORG about the fees for their work .", "In DATE ORG asked ORG of GPE to bear the costs of the expert examination . It appears that the expert fees were paid in DATE .", "In DATE and DATE ORG inquired the experts about the progress in their work . On DATE the experts informed ORG that the expert report had been submitted to it on DATE .", "In DATE the experts once again sent the report to ORG . The report contained certain procedural defects and ORG asked for corrections . In DATE and DATE ORG repeated its request . No response followed .", "From DATE to CARDINAL DATE the applicant lived in GPE .", "On DATE ORG received the corrected expert report . DATE the proceedings were resumed and a hearing was fixed for DATE . The parties were summoned . The summonses to the applicant were sent to all known addresses , including CARDINAL in GPE .", "The hearing of DATE was postponed because the applicant defaulted . The advice of receipt concerning the applicant 's summonses returned from GPE with the note indicating that the applicant had refused to accept them . The following hearing was fixed for DATE . ORG sent summonses to all known addresses of the applicant , including CARDINAL in GPE . It also unsuccessfully attempted to summon the applicant by phone .", "On DATE ORG disallowed the applicant 's action because he had failed to attend CARDINAL hearings and had not notified of the reasons for his absence .", "NORP The applicant applied to ORG for annulment of the decision of DATE . On DATE ORG dismissed the request . The court held that the applicant had been properly summoned . Moreover , there was evidence that he had refused to accept the summonses for the hearing of DATE . The applicant did not appeal against the decision of DATE to ORG of GPE ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON in GPE .", "The applicant is the father of CARDINAL children born in wedlock : a son PERSON , born on DATE , and CARDINAL daughters born in DATE and DATE .", "In DATE the applicant ’s wife left the joint household together with the CARDINAL children and denied the applicant contact with them .", "On DATE the applicant requested ORG ( ORG ) to grant him rights of contact with his CARDINAL children .", "On DATE ORG , having heard expert opinion , suspended the applicant ’s rights of contact .", "On DATE ORG ( Oberlandesgericht ) limited the suspension of rights of contact until DATE .", "On DATE , during a court hearing , the parents agreed on CARDINAL contact visits , to take place on DATE and DATE within the LOC of ORG . Following these visits , the mother refused to consent to further contact visits .", "On DATE , in the proceedings relating to the GPE divorce , the parents agreed that the applicant should enjoy supervised contact visits with his son PERSON on a DATE basis .", "Following CARDINAL contact between the applicant and PERSON , which took place on DATE , the child ’s mother refused to grant the applicant further rights of contact .", "The applicant ’s marriage was dissolved on DATE without a decision on the applicant ’s rights of contact having been taken .", "On DATE the applicant , who was represented by counsel , having regard to the fact that the mother did not comply with the access agreement concluded on DATE , requested ORG to grant him rights of contact with his son PERSON by interim order .", "On DATE ORG held a hearing .", "On DATE ORG refused the applicant ’s request for an interim contact order on the ground that it deemed it necessary to examine further whether a regulation of rights of contact was in PERSON ’s best interests . It noted that PERSON , when heard by the court , had objected to contact with his father and that the tensions and conflicts between the parents were known to the court through a multitude of judicial proceedings pending between them .", "ORG further ordered both parents to contact a municipal family counselling centre and to make use of the counselling offered to them . It further appointed a curator ad litem to represent the child ’s interests .", "On DATE ORG held a hearing in the main proceedings .", "On DATE ORG refused the applicant ’s request in the main proceedings , on the ground that fixed DATE contact visits would jeopardise the child ’s welfare . It noted that PERSON , who was DATE , had repeatedly declared that he refused contact with his father . According to ORG opinion , PERSON should not be forced into contact with the applicant . According to the curator ’s submissions , PERSON did not refuse contact with his father capriciously . Apparently , the hurt he had sustained in DATE had been so serious that he now did not wish to agree to personal contact with his father . There was no indication that PERSON had been influenced by his mother in this respect . The judicial conflicts concerning custody and rights of contact and the confrontations had led to the adolescent ’s seeking psychotherapeutic treatment . Having regard to these circumstances , ORG considered that it was in the child ’s best interests to refuse the applicant ’s request for rights of contact . The applicant remained , however , free to stay in touch with his son by mail .", "On DATE the applicant lodged an appeal with ORG .", "On DATE the applicant ’s counsel submitted reasons for his appeal . He alleged , in particular , that F. had been influenced by his mother against him and that a prohibition on contact visits would jeopardise the child ’s welfare . The mother contested these submissions .", "On DATE ORG held a hearing in the presence of the applicant , PERSON ’s mother , PERSON , his curator ad litem and a ORG representative . The applicant alleged that F. suffered from parental alienation syndrome ( ORG ) and requested the court to hear expert opinion in this respect .", "On DATE ORG ordered the preparation of an expert opinion by psychological expert O. as to whether the exercise of rights of contact was contrary to F. ’s welfare .", "On DATE the applicant requested ORG to rectify the record of its hearing and to include the applicant ’s request to hear an expert opinion on ORG . The applicant further objected to the commission of expert ORG , on the ground that the latter was not licensed as a psychologist for children and adolescents , but only for adults . Furthermore , the question put to the expert did not sufficiently take into account the problems relating to ORG .", "On DATE ORG refused the applicant ’s request for rectification of its record . It further appointed psychological expert PERSON to replace PERSON , who had been prevented by illness from accepting the commission .", "On DATE the applicant named CARDINAL witnesses to demonstrate that PERSON had been manipulated by his mother and submitted a written witness statement . He further requested ORG to allow him contact with his son by interim order .", "On DATE ORG asked the applicant whether the request for an interim order could be suspended , having regard to ORG efforts . In reply , the applicant declared on DATE that the matter did not allow for any further delay , taking into account the fact that F. would soon reach the age of majority .", "On DATE the applicant alleged that ORG had delayed the proceedings and complained about the length of the proceedings on access rights . He further expressed doubts as to the competency of the court - appointed expert . Additionally , he named a further witness .", "On DATE the applicant rejected expert PERSON , alleging that she lacked the necessary qualifications .", "On DATE ORG refused the applicant ’s request for an interim contact order . Having regard to F. ’s own statements when heard by the court and to ORG submissions , that court considered that there were serious indications that court - ordered visits would lead to a deterioration of the relationship between father and son .", "On DATE the ORG released expert PERSON from her duties at her own request and decided to commission an expert , to be named by the psychological institute of ORG .", "On DATE the applicant accepted the nomination of Professor PERSON as an expert .", "On DATE ORG commissioned the expert Professor PERSON , who submitted his expert opinion on DATE . The expert considered that there was no indication that the applicant presented a danger to the child ’s welfare . However , the severe conflicts between their parents prevented all CARDINAL children from maintaining an emotional relationship with them . In this respect , both parents were seriously harming their children .", "The expert further considered that F. could be rather easily influenced by third persons . He did not , however , meet all the criteria defining parental alienation syndrome . Having regard to F. ’s age and his strong resistance to contact visits , the expert urgently advised the court not to order forced contact visits . Such an order would not only jeopardise F. ’s welfare , but would also complicate the instigation of voluntary contact after PERSON had reached adult age .", "In DATE ORG scheduled a hearing for DATE , which was postponed at defence counsel ’s request to DATE .", "On DATE the applicant submitted CARDINAL comments in reply to the expert opinion prepared by CARDINAL psychological experts . He further repeated his request to summon the nominated witnesses to the hearing .", "On DATE ORG held a hearing in the presence of both parents , PERSON , the curator ad litem , the expert Professor PERSON and another psychological expert summoned by the applicant . Following deliberations , PERSON declared that he was ready to meet the applicant on a DATE basis as from DATE . The applicant declared that he would not pursue the proceedings further as long as the meetings took place .", "On DATE a meeting took place between the applicant and F.", "On DATE F. informed ORG that he did not wish to continue the meetings because his father had failed to show personal interest and , in particular , because his father had taken enforcement measures against him .", "On DATE the applicant , through his counsel , contested these submissions and urgently requested ORG to render a decision without a further hearing .", "On DATE ORG served the applicant ’s submissions on the defendant , the curator and ORG for comments within DATE . ORG further considered that the applicant had not pursued his original request to hear the expert Professor PERSON in person .", "On DATE the applicant stated that rights of contact should be granted in accordance with the agreement made during the hearing on CARDINAL March CARDINAL . Alternatively , he requested to be granted an interim contact order for DATE . As a further alternative , he requested ORG to hold a hearing without further delay and to hear the expert Professor P.", "On DATE the applicant ’s counsel submitted a personal letter dated CARDINAL DATE from the applicant to his son and requested the court to render a decision without further delay .", "On DATE the applicant ’s counsel submitted further comments .", "On DATE ORG dismissed the applicant ’s appeal . That court accepted that the applicant wished to exercise rights of contact in accordance with his son ’s best interests . It considered , however , that the exercise of rights of contact would jeopardise PERSON ’s welfare . ORG , having heard F. personally , was firmly convinced that PERSON had formed his own strong opinion on the question of contact with his father which could be only marginally influenced by his mother ’s wishes . Under these circumstances , the court did not consider it necessary to examine whether PERSON had been negatively influenced by his mother or to hear further expert opinion .", "ORG further noted that PERSON , during the hearing held on CARDINAL March CARDINAL , and under the influence of the expert ’s and the court ’s submissions that the exercise of rights of contact would not be harmful to him , had agreed to see his father once a month if the applicant refrained from instituting judicial proceedings . Accordingly , CARDINAL meeting took place , on DATE . Having learned that the applicant had taken enforcement measures against him by attempting to execute costs orders obtained against him in separate proceedings , PERSON refused to agree to further contact . Even taking into account the explanations given by the applicant for taking these enforcement measures , according to which the enforcement measures were aimed at the mother and were addressed to the son for purely formal reasons , ORG considered that PERSON ’s reaction was understandable , at least on an emotional level . Having regard to the fact that PERSON had almost reached the age of majority , his firmly established will had to be respected . ORG further considered that forced contact visits were not likely to contribute to establishing a stable relationship with his father .", "This decision was served on the applicant ’s counsel on DATE .", "On DATE the applicant lodged an extraordinary appeal ( GPE ) against ORG decision . He complained , in particular , that ORG had given its decision without having heard the witnesses named by the applicant and without a further oral hearing . He further complained about the length of the proceedings before ORG .", "On DATE the applicant extended the scope of his extraordinary appeal and requested ORG to reopen the proceedings because of an infringement of his right to a fair hearing .", "On DATE the curator ad litem requested the court to grant an extension of the time - limit for comments on the applicant ’s submissions until DATE .", "On DATE the applicant lodged a complaint with ORG ( Bundesverfassungsgericht ) .", "On DATE ORG informed the curator that the time - limit could only be extended until DATE , having regard to the urgency of the matter .", "On DATE ORG dismissed the applicant ’s extraordinary appeal . ORG pointed out that it had referred to the written expert opinion submitted by Professor PERSON only in support of the assumption that contact with the applicant would not in principle jeopardise the child ’s welfare . This assumption was in the applicant ’s favour and induced the court to propose contact visits . Under these circumstances , it had not been necessary personally to hear the expert . Based on its own impression during the hearing held on DATE , ORG confirmed that it had no doubt that PERSON ’s refusal further to see the applicant was based on an autonomous decision . Under these circumstances , it was out of the question to impose contact visits on the adolescent , who was at the time DATE .", "This decision was served on the applicant ’s counsel on CARDINAL DATE .", "On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s constitutional complaint for adjudication pursuant to the relevant provisions of its Rules of Procedure without giving any further reasons . This decision ( file no . CARDINAL BvR CARDINAL/CARDINAL ) was served on the applicant on DATE .", "According to LAW , a child is entitled to have contact with its parents ; each parent is obliged to have contact with , and is entitled to such contact with , the child .", "Pursuant to subsection CARDINAL , each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child .", "The family courts can restrict or suspend a parent ’s rights of contact if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s welfare would be jeopardised ( LAW ) ." ]

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[ "The applicant and her husband have always lived in the GPE . By a decision of DATE , the applicant 's husband was granted a married man 's old - age pension under LAW ( PERSON ) commencing on DATE . However , pursuant to the then section CARDINAL of the Act , his pension was reduced by PERCENT as neither he nor the applicant had been insured under LAW during CARDINAL periods DATE and DATE when he had worked in GPE and had an old - age insurance under the NORP social - security legislation . These CARDINAL periods amounted in total to DATE . No appeal was filed against this decision .", "After the applicant reached DATE , ORG ) , by a decision of DATE , granted the applicant an old - age pension under LAW commencing on DATE . As had occurred with her husband 's pension , her pension was also reduced by PERCENT . The applicant filed an appeal with ORG ( PERSON ) , as it was then known , complaining that this reduction in her old - age pension constituted discriminatory treatment .", "In its decision of CARDINAL DATE ORG noted that , under sections DATE CARDINAL of the General Old Age Pensions Act , a married person DATE like the applicant – who had been insured under this LAW and had reached DATE was entitled to an old - age pension amounting to PERCENT of the net minimum wage per month .", "NORP However , under the terms of CARDINAL of the LAW , this amount could be reduced by PERCENT for DATE in which the person concerned had not been insured DATE . ORG further noted that , according to section DATE ) of the LAW , those insured were persons DATE who were either resident in the GPE or , if not , were liable to payment of salaries tax ( loonbelasting ) in respect of work carried out in the GPE under a contract of employment . Under the present subsection CARDINAL of section CARDINAL of the LAW , it was possible , by way of an Order in Council ( Algemene Maatregel van Bestuur ) , to extend or limit the group of insured persons as an exception to the general rule contained in section CARDINAL(CARDINAL ) .", "ORG referred to the case - law of ORG ( ORG ) to the effect that the question whether or not a person was insured under LAW fell to be determined on the basis of the rules in force at the relevant time .", "It further noted that , by virtue of CARDINAL consecutive royal decrees on the extension and limitation of the group of insured persons ( Koninklijke Besluiten Uitbreiding en Beperking van de kring der verzekerden ) that had been issued under section CARDINAL ) of the LAW and had remained in force until DATE , persons residing in the GPE but working abroad under a contract of employment and insured under a foreign social - security scheme by virtue of that employment were not insured under LAW . That limitation also applied to a woman married to a person who , pursuant to those royal decrees , was not insured under LAW .", "ORG noted that it was not in dispute that , during the relevant periods , the applicant 's husband had been working in GPE and had been subject to NORP social - security legislation in accordance with Ordinance no . CARDINAL of ORG ( until DATE ) and subsequently LAW .", "It found that , in these circumstances , ORG had correctly concluded that the applicant was not insured under LAW for the period her husband had worked in GPE .", "However , as regards the question whether that situation was compatible with the principle of equality , in particular the prohibition on discrimination between men and women , ORG noted that there was a provision in the royal decrees which rendered the insurance of married women under LAW dependent on their husbands being insured , whereas the decrees did not contain a comparable provision in respect of married men .", "ORG examined the applicant 's situation in the light of LAW ( ORG ) . It referred to the case - law of ORG according to which , from DATE , this provision was also directly applicable in the GPE legal order in the field of social security . ORG found that this implied that rights could be derived directly from this provision in so far as an application , after DATE , of statutory rules created a difference in treatment between men and women without any objective and reasonable justification , and led to a more unfavourable result than would have existed had there not been such a difference . It considered that the applicant had found herself in that situation as she had been awarded an old - age pension on DATE from which PERCENT was deducted on the basis of rules which made an unjustified distinction between married men and women .", "ORG noted that , from DATE , the principle of equal treatment between men and women had been incorporated in ORG , and that this had resulted in the introduction of a system in which the entitlement to full benefits was made solely dependent on the question whether or not the person concerned had personally completed DATE under the Act . It concluded , therefore , that married women , like the applicant , who had fully complied with the conditions for insurance under the LAW , could not be regarded as having been uninsured during a certain period solely on grounds of marital status .", "Consequently , ORG quashed the decision of DATE , in so far as the applicant 's pension was reduced by PERCENT , upheld the remainder of the decision and ruled that the applicant was entitled to a full pension under LAW . ORG filed an appeal with ORG .", "In its judgment of CARDINAL DATE , following a hearing held on DATE , ORG quashed the decision of DATE and dismissed the applicant 's appeal as ill - founded .", "ORG noted at the outset that it was not in dispute between the parties that the applicant did not belong to the group of persons as defined in LAW on the gradual implementation of the principle of equal treatment of men and women in the field of social security . It considered that view to be correct and , consequently , held that the question of the reduction in the applicant 's pension could not be examined in the light of the prohibition on discrimination set out in LAW of this directive .", "As regards the question whether the reduction in the applicant 's pension was compatible with LAW ORG , ORG considered that , from DATE , that provision could also be directly relied on in the field of social security . It also referred to the case - law according to which this implied that ORG to the ORG were obliged to ensure that their statutory rules were free of any form of discrimination prohibited by that provision . However , it said that a difference in treatment was not contrary to that provision where there were objective and reasonable grounds for the difference .", "In the light of those considerations , ORG held that LAW ORG could not deprive a national statutory rule of its effect , according to which the level of benefits under a statutory insurance scheme – like ORG – was made dependent on the question of whether the periods of insurance had been completed . It held that this was no different where it could be established that the disqualification of certain periods of insurance before DATE was based on a domestic rule which made a difference in treatment on the basis of sex , as that rule had been in operation during a period in which LAW ORG was not yet directly applicable and could not , therefore , deprive the domestic rule of its earlier effect .", "The applicant 's subsequent appeal on points of law to ORG ( PERSON ) was dismissed on DATE . As to the applicant 's argument that ORG had failed to examine whether or not there was an objective and reasonable justification for the difference in treatment , ORG held that ORG had correctly found that , as regards the periods in which the applicant had not been insured under LAW , she could not rely on LAW ORG , as those periods predated the entry into force of that international instrument .", "In so far as the applicant complained that ORG had unjustly failed to deprive the discriminatory rule at issue of its effect on grounds of incompatibility with the prohibition on discrimination contained in LAW ( PERSON ) , ORG held that the periods during which the applicant had not been insured under LAW predated the entry into force of LAW .", "In so far as the applicant relied on unwritten general principles of law ( algemene rechtsbeginselen ) , in particular the principle of equality , ORG considered that , according to the explanatory memorandum ( Nota van Toelichting ) to the first royal decree on the extension and limitation of the group of insured persons of DATE , the exclusion was aimed at preventing an undesirable accumulation of benefits . According to the explanatory memorandum , the pension rights accrued by the man abroad were also considered to be intended to benefit his spouse .", "ORG held that in view of the social attitudes prevailing at the relevant time , that is to say the periods during which the applicant had not been insured under the General Old Age Pensions Act , the government of the time could have taken the view that in practically all cases it was the man who was the “ breadwinner ” so that it could , accordingly , exclude married women and did not have to make a separate provision for cases where the woman was the “ breadwinner ” . ORG held , therefore , that there was an objective and reasonable justification for the difference in treatment on grounds of sex which the exclusion entailed .", "ORG further rejected the applicant 's argument based on the principle of equality contained in LAW on the gradual implementation of the principle of equal treatment of men and women in the field of social security , as the applicant fell outside the scope of LAW directive , which defined the group of persons to whom the directive applied .", "The General Old Age Pensions Act establishes a general old - age pension scheme for persons who have attained DATE . Under this scheme , all persons DATE who reside in the GPE are insured . Contributions to the scheme are paid by all persons who are gainfully employed in the GPE .", "Entitlement to benefits under LAW is not dependent on the level of contributions paid as , contrary to a social - security scheme based on employment ( werknemersverzekering ) , it is a general social - security scheme ( volksverzekering ) . The level of benefits is , however , linked to the period of insurance under LAW . Pursuant to LAW before DATE ) of the LAW , the pension entitlement is reduced by PERCENT for DATE , DATE , that the person concerned was not insured under LAW on grounds of , inter alia , residence abroad . A person who has been insured under LAW for DATE is entitled to a full pension .", "On DATE ORG issued Directive CARDINAL/CARDINAL/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security , allowing member GPE a period of DATE until DATE within which to make any amendments to legislation which might be necessary in order to bring it into conformity with the directive .", "Until DATE a married man was entitled to a pension under LAW for a married couple equal to PERCENT of the minimum wage in force in the GPE . Unmarried persons of either sex were entitled to PERCENT of the minimum wage . A married woman had no entitlement in her own right . According to the royal decree on the extension and limitation of the group of insured persons , as amended on several occasions , a married woman residing in the GPE DATE whose husband was employed abroad and insured under the social - security system in the foreign country of employment – was not insured under the General Old Age Pensions Act .", "On DATE married women became entitled in their own right to a pension under LAW . Each spouse became entitled to a pension equal to PERCENT of the minimum wage . The position for unmarried persons remained unchanged . As a result of this change , married women are no longer excluded from insurance under LAW for periods when their husbands were employed abroad , provided that they themselves have continuously resided in the GPE or have paid contributions on the basis of gainful employment in the GPE ." ]

[ "14", "P1" ]

[ "P1-1" ]

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[ "The applicants are CARDINAL NORP nationals . The first applicant , Mr PERSON , was born in DATE . He is serving a term of imprisonment in the PERSON prison . The second applicant , Mr PERSON , was born in DATE and is serving a sentence of imprisonment in the PERSON prison . They were represented before the ORG by Mr J. Smetana , a lawyer practising in PERSON . The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE a police investigator accused the applicants , together with CARDINAL other people , of founding and supporting an organised criminal group and of fraud . The accused were suspected of having organised a large - scale financial transaction scheme which resulted in a value - added tax fraud of MONEY . CARDINAL other people were accused of fraud in the same context .", "The applicants were arrested on DATE . On DATE a judge of ORG remanded them in custody with effect from DATE . The judge considered that there was a risk of the applicants ' absconding , hampering the investigation into the case and committing further offences within the meaning of LAW § CARDINAL ( a ) , ( b ) and ( c ) of LAW of DATE ( “ the DATE Code ” ) .", "The applicants were subsequently accused of murder and several other offences .", "On DATE a public prosecutor indicted the applicants , together with CARDINAL other people , for a number of criminal offences before ORG . The offences alleged included fraud , membership of an organised criminal group , murder and robbery .", "On DATE the case was transmitted to ORG in Pezinok . That court severed several charges against the applicants in order to conduct separate proceedings . The remaining part of the case was returned to the public prosecutor .", "CARDINAL to DATE ORG held the main hearing in the case . It decided to sever several more charges against the applicants and their co - accused into separate proceedings . The remaining part of the case was adjourned with a view to taking further evidence .", "On DATE ORG extended the applicants ' detention until DATE . It accepted ORG view that the case was complex and that it was necessary to obtain further evidence . The evidence available justified the suspicion that the applicants were involved in the killing of several people whose bodies had been subsequently dissolved in sulphuric acid . The risk of the applicants ' absconding , influencing witnesses and committing further offences persisted . It could be seen that the case was complex as the file comprised CARDINAL folders at that time , and the first - instance court had displayed due diligence when dealing with the case .", "Hearings before ORG were held on DATE , DATE and DATE . The accused and a number of witnesses and experts were heard and documentary evidence was taken .", "On DATE ORG dismissed the applicants '' detention still existed within the meaning of LAW ( a ) , ( b ) and ( c ) of LAW . In particular , the accused had been away from their place of residence prior to their arrest , several witnesses had made statements against them and , in view of the actions imputed to them , there was a real risk that they would commit offences in the event of their release .", "The decision stated that DATE Code continued to apply to the applicants ' case and , accordingly , the maximum permissible duration of their detention was DATE . Following the entry into force of the Code of Criminal Procedure of DATE ( “ the DATE Code ” ) on DATE , their detention during trial could not exceed DATE from DATE , as in the case of people detained under the provisions of the DATE Code .", "On DATE ORG dismissed the applicants ' complaint against the above - mentioned decision , as it concurred with ORG reasoning .", "ORG held that people in the position of the applicants , who had been indicted prior to the entry into force of DATE , were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by LAW . LAW clearly indicated that that had not been the intention of the legislature . The situation did not amount to unequal treatment , as the applicants had been remanded in custody under a different legal regime , namely that governed by LAW . However , both categories of detained persons DATE those whose detention was governed by LAW and those detained under LAW – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the DATE Code . In that respect , the applicants were treated equally to the other category of detainees . Thus the detention during trial of accused persons who had been remanded and indicted prior to DATE for offences which LAW of DATE qualified as extremely serious crimes was permissible for a maximum duration of DATE as from DATE .", "As to the applicants ' reliance on LAW , ORG held that the legislator was free to choose whether the periods of maximum detention under DATE Code would apply to proceedings which had arisen under the law previously in force . The only situations where the legislator had allowed detained persons to benefit from the newly introduced shorter maximum periods of detention were the cases mentioned in LAW , where criminal proceedings were at the pre - trial stage .", "ORG concluded that the applicants , who had been indicted prior to DATE , could in principle be detained until DATE when the maximum permissible detention period of DATE would expire .", "On DATE and CARDINAL DATE the applicants complained separately to ORG that their detention had exceeded the maximum permissible period of DATE . They relied on Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL of the DATE Code and on LAW § § CARDINAL ( c ) and CARDINAL of the Convention .", "On DATE the Special Court convicted the applicants of murder . It sentenced the second applicant to DATE and the first applicant to DATE imprisonment . The applicants appealed .", "On DATE ORG rejected the first applicant 's complaint as being manifestly ill - founded . In particular , it held that ORG interpretation and application , in its above decision of CARDINAL DATE , of the relevant provisions of the CARDINAL ORG were in conformity with the LAW and the LAW .", "On DATE ORG dismissed the second applicant 's complaint for similar reasons . It held , with reference to LAW , DATE and CARDINAL of the DATE Code , that the date of filing of the indictment was decisive in the determination of whether LAW or DATE Code would govern a criminal case including periods of detention . It therefore considered erroneous the interpretation which ORG had given to the relevant provisions in its decisions CARDINAL Ntv CARDINAL/CARDINAL of CARDINAL DATE and CARDINAL Ntv CARDINAL/CARDINAL of DATE and on which the second applicant had relied . The fact that in the second applicant 's case ORG had decided differently from those CARDINAL decisions did not run contrary to the principle of legal certainty . In particular , those CARDINAL decisions had been given in DATE , immediately after the entry into force of the DATE Code . A difference in the interpretation of newly adopted legislation could not be avoided during a period preceding the elaboration of established practice on the issue .", "On DATE ORG extended the applicants ' detention until DATE . As to the lawfulness of their detention , reference was made to the above ORG decision of CARDINAL DATE on the complaint of the first applicant .", "Under LAW , detention during criminal proceedings was governed by the provisions of Articles CARDINAL et seq . A person charged with a criminal offence could be detained , inter alia , where there were reasonable grounds for believing that he or she would abscond ( Article CARDINAL § CARDINAL ( a ) ) , influence the witnesses or the co - accused or otherwise hamper the investigation ( LAW ( b ) ) , or continue criminal activities , complete an attempted offence or commit an offence which he or she had been prepared or had threatened to commit ( LAW ( c ) ) .", "The duration of detention was regulated by the provisions of Articles CARDINAL et seq . Detention in the pretrial phase of the proceedings and during the trial , taken together , could not exceed DATE . An extension could be authorised by ORG if it had been impossible to complete the proceedings earlier because of the complexity of the matter or for other important reasons and the release of the detainee would jeopardise the purpose of the proceedings . The total duration of the detention could not , however , exceed DATE or , in the case of offences qualified as extremely dangerous , DATE ( Article MONEY § CARDINAL ) .", "The new Code of Criminal Procedure was enacted on DATE and its text was published in LAW . It entered into force on DATE . The duration of detention is regulated by ORG CARDINAL et seq .", "The total duration of detention in the pre - trial phase of the proceedings and during the trial , taken together , can not exceed DATE where the case concerns a lesser crime ( prečin ) , DATE in the case of a crime ( zločin ) , and DATE in the case of an extremely serious crime ( obzvlášť závažný zločin ) ( LAW ) . Detention in the pretrial phase of the proceedings and during the trial , taken separately , can last up to CARDINAL of the above periods ( LAW ) . As regards detention during trial , the period is to be counted from the moment when the indictment is filed ( LAW § CARDINAL ) . If the detainee faces multiple charges , the offence carrying the most severe potential penalty should be used as the basis for determining the maximum permissible duration of the detention ( LAW § CARDINAL) .", "The temporal application of DATE Code is governed by the provisions of Articles CARDINAL et seq . As a general rule , proceedings where the indictment was filed prior to the entry into force of the DATE Code should continue under LAW ( LAW ) . This extends to proceedings in which the duration of and grounds for detention are examined including proceedings on a proposal for one 's detention to be extended by ORG ( Article CARDINAL § CARDINAL ) .", "Paragraph CARDINAL of Article CARDINAL provides that , in cases where a person 's pre - trial detention started prior to the entry into force of the DATE Code , the time - limits within which a decision is required on the extension of such detention at the pre - trial stage of the criminal proceedings start running at the date of entry into force of DATE . Paragraph CARDINAL does not affect the provisions governing the permissible duration of detention , with the exception of cases , where , prior to the entry into force of LAW , a final decision had been given to extend a person 's detention for a period exceeding the periods mentioned in LAW . In such cases , a person 's detention is to end DATE after the entry into force of the DATE Code at the latest .", "The provisions on the temporal application of the newly introduced DATE Code initially gave rise to differing interpretations by the benches of ORG . Thus , contrary to the above - mentioned decision on the applicants ' case of DATE , ORG also found that the maximum duration of detention of a person who had been indicted prior to DATE should be governed by the newly enacted DATE Code . ORG stated that any other interpretation of the relevant provisions would run contrary to the constitutional principle of equality of persons before the law ( ORG decision CARDINAL Ntv CARDINAL/CARDINAL of CARDINAL DATE ) . A similar view was expressed in ORG decision CARDINAL Ntv CARDINAL/CARDINAL of DATE .", "The criminal law section ( kolégium ) of ORG therefore adopted a practice direction indicating how LAW CARDINAL § CARDINAL of the DATE Code should be interpreted ( no . GPE CARDINAL/CARDINAL , practice direction adopted on DATE and subsequently published in the Collection of practice directions of ORG and decisions of courts , no . CARDINAL/CARDINAL ) .", "With reference to relevant provisions of the LAW , the criminal law section of ORG held that detained persons who had been indicted prior to the entry into force of the DATE Code were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by LAW and CARDINAL of the DATE Code . LAW clearly indicated that that had not been the intention of the legislature . The situation did not amount to unequal treatment as the individuals concerned had been remanded in detention under a different legal regime , namely that governed by LAW .", "However , ORG also held that both categories of detained persons DATE those whose detention was governed by LAW and those detained under LAW – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the DATE Code . In practical terms , the detention during trial of individuals falling within the former category in the period after DATE should not last longer than CARDINAL , CARDINAL or DATE , depending on the nature of the offence in issue , as specified in LAW . In that respect , those individuals were treated equally to the other category of detainees . For example , the detention during trial of accused persons who had been remanded and indicted , prior to DATE , for offences which the DATE LAW qualified as extremely serious crimes , could not exceed DATE from DATE . Detention of such persons after DATE was therefore not permissible ." ]

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[ "The applicants were born in DATE , DATE and DATE respectively and live in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE and CARDINAL DATE respectively , CARDINAL plots of land were sold to the LOC by ORG , the late wife of the first applicant GPE and the mother of the second and third applicants , PERSON . and ORG", "On DATE and CARDINAL DATE , respectively , CARDINAL plots of land were sold to GPE by the second applicant ( PERSON . ) and his brother ( ORG ) , the third applicant .", "On DATE and DATE CARDINAL plots of land were sold to GPE", "On CARDINAL DATE the applicants lodged a request for the return of CARDINAL plots of land with ORG on the basis of the DATE LAW , claiming that they had signed the contracts of sale under duress which was tantamount to expropriation .", "On DATE ORG transferred their request to ORG ( ORG sodišče v PERSON ) as the competent authority .", "On DATE a hearing was held . The court requested the applicants to complete their request and submit further documents .", "On DATE and DATE , DATE , DATE , CARDINAL May and CARDINAL DATE the court sent a letter to the applicants ' lawyer , reiterating its request . The court also informed the new lawyer representing the applicants that it had received no reply .", "On DATE the court summoned the applicants to complete their request within DATE , or else it would reject it or consider it withdrawn .", "On DATE the applicants filed the requested document through their representative and enlarged their claim , directing it also against ORG ( the “ SCC ” ) . On DATE the latter replied to the applicants .", "Further to their reply , on DATE , DATE and CARDINAL DATE the court requested the lawyer to submit further documents .", "On DATE the applicants through their representative filed the requested documents which were forwarded to the SCC . The latter replied on DATE .", "On DATE the applicants specified the amount of compensation claimed .", "On DATE a hearing was held . Since some of the requested documents were still missing , the applicants ' representative obliged himself to reply to the ORG 's statements .", "On DATE GPE filed a reply .", "On DATE , further to the court 's additional request , the applicants ' representative filed submissions .", "On DATE , after a hearing , ORG rejected the claim .", "On DATE the applicants lodged an appeal with ORG ( PERSON sodišče ) .", "On DATE ORG rejected their appeal . On DATE the decision was served on the applicants . That decision became final ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a member of ORG and practises as a lawyer in GPE .", "On DATE the applicant was arrested and taken to ORG for interrogation . He was detained for DATE before appearing before ORG .", "On DATE the prosecutor charged the applicant with being a member of an armed gang , the ORG ( LAW ) , and applied for him to be detained on remand . The applicant was also accused of participating in the activities of the ORG , forming committees on its behalf , trying to recruit new militants for their mountain guerrilla teams and possessing illegal documents and CARDINAL guns .", "On DATE the applicant was detained on remand .", "At a hearing on DATE before ORG , the applicant denied all the charges and claimed that he was forced to sign a confession statement prepared by the police while being blindfolded . He maintained that he was not a member of ORG . He stated that one of the guns in question belonged to his father who held a licence for it and that the other was unlicensed and belonged to him . He also submitted that it was not he but his brother who tried to recruit new militants for the ORG ’s mountain guerrilla teams and possessed the illegal documents on behalf of the armed gang at their house . He stated that after his brother ’s death , he still kept these illegal documents on account of his fear of the gang and his brother ’s warnings that these documents should be delivered to the gang in the future .", "On DATE ORG released the applicant on bail .", "In a judgment dated DATE , the court found the applicant guilty of an offence under LAW . It sentenced the applicant to DATE and DATE imprisonment . It also decided to prohibit him from entering the public service for DATE . The court held that although the applicant had denied all the accusations , he had confirmed before the court that he was in possession of documents in order to deliver them to the gang sometime in the future . The court considered this acknowledgement as evidence of the applicant ’s aim of becoming a member of the armed gang .", "The applicant appealed against this judgment . He reiterated the defence which he had made before ORG . On DATE ORG upheld the decision of the lower court ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On an unspecified date the applicant lodged an application with ORG ( PERSON i GPE dhe PERSON Pronave – “ the Commission ” ) , seeking to have the property of her deceased relative , confiscated in DATE , returned to her .", "On DATE the Commission upheld the application and recognised the applicant ’s property rights over CARDINAL villas and a three - storey building measuring QUANTITY m and a plot of land measuring QUANTITY m.", "As regards the QUANTITY building and CARDINAL of the villas , the Commission decided to return the property to the applicant . As regards the other villa , the Commission recognised the applicant ’s co - ownership with its existing occupier . However , as it was impossible to allocate the original plot of land measuring QUANTITY . m to the applicant , the Commission ordered the payment of compensation in ORG bonds equivalent to the value of the plot . Lastly , the ORG ordered the authorities to enforce the decision .", "On an unspecified date the applicant lodged a civil action with the ORG challenging the part of the ORG ’s decision that recognised one of the villas as being jointly owned and claiming full ownership thereof . Notice of the proceedings was given to the existing occupier and the ORG .", "On DATE the court upheld the applicant ’s civil claim and granted her full ownership of the villa . The court did not rule on the part of the ORG ’s decision relating to the compensation issue .", "On DATE , following an appeal by the defendant party , ORG upheld ORG decision . As no appeal was lodged with ORG , that decision became final and binding .", "On an unspecified date , following the enforcement of the court ’s decision , the applicant took possession of the properties allocated to her , that is to say , the CARDINAL villas and the QUANTITY building .", "In DATE , as no ORG bonds had been issued , the applicant wrote a letter to the ORG seeking a solution to the compensation issue in respect of his plot of land measuring QUANTITY m. She did not receive a reply to her letter .", "To date , the authorities have not provided compensation in respect of the plot of land measuring QUANTITY . m , in spite of the ORG ’s decision .", "The relevant domestic law has been described in detail in NORP v. GPE ( no . CARDINAL , § § DATE , ORG DATE ... ( extracts ) ) and PERSON and Others v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE at TIME the applicant was arrested by the police in his hometown , PERSON . He was taken to GPE and from there , upon the order of a prosecutor , to a jail ( izba zatrzymań ) in GPE .", "On DATE at TIME the prosecutor lodged with the court his application to remand the applicant in custody for DATE . The applicant was placed under the authority of a court ( przekazany do dyspozycji sądu ) .", "On DATE at TIME the applicant was brought before a judge of ORG ( Sąd Rejonowy ) who decided to remand him in custody .", "Subsequently , the applicant ’s pre - trial detention was extended by numerous court decisions .", "On DATE the applicant filed with ORG a claim for compensation for unlawful detention CARDINAL June DATE .", "On DATE ORG dismissed the applicant ’s claim .", "The applicant did not appeal against that judgment .", "On DATE the applicant was charged with the rape of a certain ORG , a minor daughter of his partner .", "On DATE he was , in addition , charged with sexual abuse of ORG and her minor sister PERSON and with psychological abuse of both PERSON and ORG", "On DATE ORG assigned a lawyer under the legal - aid scheme to represent the applicant in the criminal proceedings . On DATE the applicant was indicted on charges of sexual abuse and rape of GPE , sexual abuse of PERSON and psychological abuse of both PERSON and ORG", "On DATE ORG convicted him as charged and sentenced him to DATE imprisonment .", "The applicant ’s lawyer appealed , arguing that the court had erred in its assessment of the facts .", "On DATE ORG upheld the first - instance judgment in the relevant part .", "The applicant did not lodge a cassation appeal . However , he asked ORG ) to do so on his behalf .", "By a letter of DATE the Prosecutor General informed the applicant that he had not found any grounds to lodge a cassation appeal in the applicant ’s case .", "From DATE until DATE the applicant was in continuous detention . On DATE he was released .", "From DATE until DATE the applicant was detained in FAC .", "The applicant submitted that he had been held in dark and overcrowded cells without any access to hot water . On CARDINAL occasion he shared a QUANTITY cell with CARDINAL other detainees .", "The Government did not provide details as to the size and occupancy rate in the applicant ’s cells during his initial detention . They submitted , however , that from DATE until DATE the applicant had been placed in cells in which the space per prisoner ranged from CARDINAL to CARDINAL m² . It was also noted that the sanitary conditions in the applicant ’s cells had occasionally been below the standard required by the sanitary inspectorate . Lastly , the Government submitted that the applicant had been afforded adequate medical care in FAC .", "From DATE until DATE the applicant was detained in FAC .", "He submitted that he had been held in an overcrowded cell without any access to hot water . He shared a CARDINAL m² cell with CARDINAL inmates . The medical care provided to prisoners was inadequate . In this connection the applicant submitted that he suffered from ulcers and that his eye sight had deteriorated in prison because of the overall poor conditions and inadequate medical care and the fact that he was not taking the medicine which he had been prescribed when he was at liberty .", "The applicant also submitted that the prison management had confiscated his tape player for no reason . As a result he could not continue his audio LANGUAGE lessons .", "The Government submitted that in FAC the applicant had been placed in cells in which the space per prisoner for the most part ranged from DATE to CARDINAL.CARDINAL m² . For a total of DATE the statutory minimum standard of CARDINAL m² had been respected in the applicant ’s cells . Moreover , the Government submitted that during his stay in ORG the applicant had been examined by doctors on over thirty occasions , which proved that the medical care provided in prison had been sufficient .", "On DATE the applicant was committed to ORG .", "In the applicant ’s submission , the living and sanitary conditions in the prison were inadequate . The cells were overcrowded and dirty .", "From DATE until DATE the applicant was detained in cell no . CARDINAL in wing I. The cell in question was designed for CARDINAL prisoners but instead was shared by CARDINAL prisoners . There was not enough room at the table and many inmates had their meals standing up or sitting on a stool . In the applicant ’s wing there were no toilets inside the cells . Instead , there were CARDINAL toilet cubicles and CARDINAL urinals accessible from the corridor . They were shared by CARDINAL prisoners .", "The applicant also submitted that the medical care in FAC was insufficient . There was a practice of mixing healthy and ill prisoners and medical treatment offered in the event of sickness was inadequate . Many prisoners suffered from sepsis . The applicant submitted that his CARDINAL-year old cellmate had died on DATE of that disease and that afterwards , the applicant and his fellow inmates had been administered preventive drugs .", "After numerous complaints to the prison management , in DATE the applicant was transferred to wing PERSON .", "From DATE until DATE the applicant was detained in FAC .", "The applicant submitted that his cell in ORG had been occupied by CARDINAL prisoners , including the applicant , even though its designated maximum capacity was for QUANTITY persons .", "From DATE until DATE the applicant was detained in FAC .", "The applicant submitted that he had initially been committed to cell no . CARDINAL , which was a single cell . He shared it with another inmate . On DATE he was placed in cell no . CARDINAL which was designed for CARDINAL people . The applicant shared it with CARDINAL other prisoners .", "From DATE until DATE the applicant was detained in the therapeutic wing of ORG .", "The applicant submitted that in LOC he had been assigned to cell no . CARDINAL , which he shared with CARDINAL other prisoners .", "The applicant lodged numerous complaints with ORG authorities about various aspects of his detention . They were to no avail .", "By a letter of DATE the Director of ORG of ORG ( ORG PERSON ) informed the applicant that his allegations that the staff of ORG had monitored the contents of the letters by his family , the ORG and ORG authorities , had been found to be without merit . It was noted that the letters in question had admittedly been opened and monitored , but only by the authorities responsible for overseeing the applicant ’s pre - trial detention . It was emphasised that such a procedure was in compliance with the domestic law and was necessary to ensure the proper conduct of the criminal proceedings pending against the applicant .", "By a letter of CARDINAL DATE the Director of ORG of ORG informed the applicant that his complaint about the allegedly inadequate medical care in FAC had been considered ill - founded .", "The applicant also complained to the management of ORG . He also wrote to ORG to complain of the overall poor sanitary conditions in prison . It appears that on an unspecified date a Sanitary Inspector fined ORG and ordered the renovation of the toilets .", "The applicant did not bring a civil action in tort to seek compensation for the alleged infringement of his personal rights ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant was arrested on suspicion of having committed several car thefts .", "On DATE ORG ( Sąd Rejonowy ) remanded the applicant in custody until DATE . The court considered that his detention was justified by the existence of substantial evidence against him and the gravity of the charges . It also noted that the applicant had attempted to induce CARDINAL of the witnesses to change her testimony .", "On DATE the court prolonged the applicant ’s detention until DATE . It repeated the reasons previously given and added that the need to obtain additional evidence justified keeping the applicant in custody .", "The applicant ’s detention was subsequently prolonged several times by ORG and ORG ( Sąd Apelacyjny ) until DATE .", "His appeal against the prolongation of his detention was dismissed by ORG on DATE .", "On DATE the applicant and CARDINAL other persons were indicted on charges of being members of an organised criminal group and having committed numerous car thefts .", "Subsequently , the applicant ’s detention was extended several times by ORG and ORG , for the same reasons as before .", "On DATE ORG refused the applicant ’s application for release .", "On DATE ORG granted ORG request to prolong the applicant ’s detention until DATE . The court considered that the case was very complex and that it was necessary to examine voluminous evidence . It also found that the detention was justified by the existence of strong evidence against the applicant and the gravity of the charges . There was also the possibility that the applicant would attempt to tamper with evidence . His appeal against that decision was dismissed on DATE .", "On DATE and DATE ORG again granted ORG requests and ordered that the applicant be detained until DATE . It dismissed the applicant ’s appeals against those decisions .", "On DATE the ORG released the applicant under police supervision ; it also prohibited him from leaving the country . The court considered that the applicant suffered from a personality disorder and depression and that his isolation from the outside world constituted a danger to his life and health . The court based its view on a report by CARDINAL expert psychiatrists .", "The proceedings are still pending .", "The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .", "Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :", "“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”", "Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :", "“ CARDINAL . Detention on remand may be imposed if :", "( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;", "( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;", "NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”", "The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :", "“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”", "Article CARDINAL , in its relevant part , reads :", "“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :", "( CARDINAL ) seriously jeopardise his life or health ; or", "( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”", "The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .", "Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :", "“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .", "The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .", "The court of appeal within whose jurisdiction the offence in question has been committed may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”" ]

[ "5" ]

[ "5-3" ]

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[ "The applicant is an NORP citizen , born in DATE and living in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .", "A.", "In DATE the applicant went to ORG ( GPE ) in order to file an application for restitution of property which had previously belonged to his father . The property - a plot of land together with an industrial building - was nationalised in DATE . He alleges that his application was not accepted on the ground that he had not submitted a proof of ownership .", "On DATE the deadline stipulated in section CARDINAL of LAW for filing applications for restitution of property expired .", "The applicant thereafter repeatedly requested ORG to accept his application nevertheless and reinstate the deadline . In its letters of DATE , CARDINAL DATE , CARDINAL DATE and DATE ORG stated that he had not submitted an application by the set deadline and had therefore lost his right to claim the restitution of property .", "In DATE the applicant obtained , after several requests , a certificate from an archive proving that the nationalised property had belonged to his father . It appears that in the preceding period the archive was unable to locate the necessary document .", "On DATE the applicant asked ORG to accept his application .", "On DATE ORG stated that it lacked competence to reinstate the deadline of DATE . Pursuant to the “ PERSON concerning the procedure for reinstatement of time - limits for submission of applications for return or compensation of unlawfully expropriated property ” the body competent to reinstate the deadline in respect of applications submitted until DATE was ORG on the Return and Compensation of Unlawfully Expropriated Property .", "The applicant filed a complaint with ORG ( Tartu Halduskohus ) concerning the refusal of ORG to accept his application in DATE arguing that its officials had failed to provide him with adequate information and assistance .", "By judgment of DATE ORG declared the actions of ORG officials unlawful and suggested that the competent body accept the applicant ’s restitution application . It found that ORG officials had failed to comply with the requirements of sections CARDINAL of the “ Procedure for filing and examination of applications concerning unlawfully expropriated property and for submission and evaluation of evidence . ”", "In its appeal against the judgment ORG argued that the applicant had , in fact , not lodged an application for restitution of property at the relevant time and that , in visiting the City Government buildings in DATE , he had addressed himself to a department which had no competence to decide on the matter . It also contended that , under the procedure in force , proof of ownership was not required for the initial submission of restitution applications . Such proof could be furnished later .", "On DATE ORG ( GPE ) revoked the judgment of the first instance court on the ground that the rejection of the applicant ’s complaint by ORG officials had not been established .", "On DATE ORG ( NORP ) refused to grant the applicant leave to appeal .", "B. Relevant domestic law", "LAW ( Omandireformi aluste seadus ) was adopted on DATE and entered into force on DATE .", "Pursuant to its LAW applications for restitution of unlawfully expropriated property can be filed until DATE . Such applications are to be accompanied by documents that the applicants have concerning the ownership , form and value of property .", "The applications are reviewed by city or county commissions established by county governors or city governments . The decisions of the local commissions can be appealed to ORG on the Return and Compensation for ORG .", "It further provides that the Government of GPE is to fix the procedure for filing and review of applications as well as for filing and assessment of evidence .", "The Procedure for Filing and Examination of Applications Concerning Unlawfully Expropriated Property and for Submission and Evaluation of Evidence ( NORP võõrandatud vara tagastamise ja kompenseerimise avalduste esitamise ja läbivaatamise ning tõendite esitamise ja hindamise kord ) , was approved by the decree of the Government of GPE of CARDINAL DATE .", "According to its provisions , the authorities handling restitution applications are to inform the applicants of the procedure for restitution of property and establish possibilities for collecting further evidence . They are to provide the applicants with legal and other assistance necessary for the exercise of their rights ( sections CARDINAL and CARDINAL ) .", "The Law Concerning the Procedure for Reinstatement of Time - limits for Submission of Applications for Return or Compensation of Unlawfully Expropriated Property ( Seadus avalduste esitamise tähtaegade ennistamise korrast õigusvastaselt võõrandatud vara tagastamisel ja kompenseerimisel ) was adopted on DATE and amended on DATE .", "It provides that time - limits for submission of applications for restitution of property can be reinstated by ORG on the Return and Compensation of ORG which would accept such applications until DATE . Its decision refusing an application can be appealed against to a court ( sections CARDINAL ) , CARDINAL ) and CARDINAL ) ." ]

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[ "The applicant was born in DATE and lives in FAC .", "On DATE the applicant instituted civil proceedings for payment against the GPE .", "On DATE ORG ( Sąd Wojewódzki ) gave judgment . The court partly allowed the applicant ’s claim . The defendant appealed .", "On DATE ORG ( Sąd Apelacyjny ) quashed the impugned judgment and remitted the case .", "On DATE the ORG ( PERSON ) dismissed the applicant ’s claim against GPE . The applicant appealed .", "On DATE the ORG dismissed her appeal . The applicant lodged a cassation appeal against the appellate court ’s judgment .", "On DATE ORG ( ORG ) refused to entertain her cassation appeal .", "On an unspecified date the applicant lodged with ORG of Appeal a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .", "On DATE ORG acknowledged the excessive length of the proceedings before FAC finding that there had been several periods of unjustified inactivity for which ORG had been responsible . It referred to the periods DATE and DATE , DATE and DATE , CARDINAL DATE and CARDINAL DATE and qualified them as unjustified delays . The court did not examine , however , the period prior to the entry into force of LAW .", "The court awarded the applicant MONEY ( PLN ) ( approx . CARDINAL euros ( ORG ) ) in just satisfaction .", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and is currently serving a sentence in ORG no . CARDINAL ( ORG колонія № CARDINAL ) in GPE , GPE . He is disabled ( his feet were partly amputated in DATE ) and walks with a stick .", "Late in TIME DATE P. , the applicant 's neighbour , was severely beaten in her house and received several knife wounds , concussion and broken bones . She died in hospital DATE .", "On DATE criminal proceedings for grievous bodily harm causing death were instituted by the police . On DATE the applicant was questioned . He submitted that he knew P. as she was his neighbour . She had lived alone and communicated with nobody . He further submitted that in DATE QUANTITY persons , PERSON , had built an extension to P. 's house and on DATE there had been a party in the neighbourhood .", "On DATE the applicant was arrested . In the report drawn upon his arrest it was indicated , without any further details , that the applicant had been arrested on suspicion of causing grievous bodily harm to P. The applicant was further questioned as a suspect . He submitted that in the evening of DATE he had wanted to buy some home - made alcohol or to borrow some money from P. As the latter had refused , he had hit her with his wooden walking stick . P. told him that she would inform the police . The applicant decided that if she did that he would get a criminal record , he had taken a knife and struck P. several times “ in order to intimidate her and take revenge ” . In his written statements he also wrote that he “ refused to be represented by a lawyer and this was not related to his financial state ” .", "On DATE the police held an on - site reconstruction of events with the participation of the applicant and witnesses PERSON . and PERSON", "On DATE the applicant was charged with inflicting grievous bodily harm causing PERSON 's death ; he pleaded guilty . The maximum possible punishment for this crime was DATE imprisonment . The applicant again confirmed that he did not need a lawyer .", "On DATE ORG remanded the applicant in pre - trial custody .", "On DATE , during a forensic psychiatric examination , the applicant stated that he had not committed the crime and had been subjected to physical and psychological pressure from the police . The experts stated that the applicant was lying and insincere . They also indicated that although the applicant was “ socially dysfunctional ” and suffered from chronic alcoholism , he was able to control his actions .", "On DATE and DATE the applicant submitted that he did not want to be legally represented and “ would defend his rights himself ” . On DATE he also pleaded guilty and indicated that he had not wanted to kill P.", "On DATE the GPE town prosecutor decided not to qualify the applicant 's actions as murder .", "On an unknown date the case was transferred to the court .", "On DATE during the preliminary examination of the case by the court the applicant lodged a request for a lawyer .", "On DATE the applicant 's representative , PERSON , joined the proceedings as his lawyer .", "On DATE the court returned the case for further investigation . In the court hearing the prosecutor indicated that more witnesses should be questioned , the construction workers who built an extension to P. 's house in DATE should be found , and there should be a further forensic examination of samples of P. 's skin , hair and nails and the applicant 's stick . The applicant submitted that he had not committed the crime in question . He had confessed to it only because , being disabled , he was afraid that the police officers would ill - treat him . The ambulance doctor , PERSON , testified that PERSON had said that she had been beaten by “ men ” without giving any names . PERSON insisted that the word was used in the plural . P. 's neighbours testified that P. lived alone and would never let strangers , including the applicant , who had lived on their street for a month , into her house .", "On DATE the applicant 's actions were reclassified as murder committed for financial gain , since the nature of the victim 's injuries confirmed the attacker 's intention to kill her . The possible penalties for this crime included a life sentence .", "On DATE the applicant was questioned in the presence of his lawyer and denied guilt .", "On DATE ORG found the applicant guilty of murder and robbery . In particular , it found that the applicant had hit PERSON with his walking stick and with a knife , and had stolen QUANTITY of home - made alcohol , an apple and a glass . In a court hearing the applicant contested the charges and submitted that he had pleaded guilty because the police officer PERSON . had beaten him and the investigation officer PERSON . had promised him the minimum punishment if he pleaded guilty . In the applicant 's opinion , PERSON had been murdered by the people who had built the house extension , because she had not paid them .", "The court rejected the applicant 's submissions and referred to the applicant 's testimony given during the pre - trial investigation . It also based its decision on the following evidence .", "G. , the ambulance doctor , testified that PERSON had told her that she had been attacked by a man , without giving a name . PERSON . and PERSON testified that they had been present at the on - site reconstruction of events during which the applicant had explained how had he committed the crime . He was not subjected to any pressure . The police officer , PERSON . , explained that he had never met the applicant . The investigation officer , PERSON . , testified that the applicant had not been subjected to any pressure . PERSON and PERSON submitted that PERSON had paid them for their work . When they played football with the applicant he told them that they had not been paid enough . The forensic medical examination confirmed that some of P. 's injuries could have been inflicted in the circumstances described by the applicant earlier . According to the DNA examination the blood from the blood spots on the applicant 's trousers could have been P. 's , with a degree of probability of CARDINAL .", "NORP The court finally sentenced the applicant to DATE imprisonment , with obligatory treatment for alcoholism .", "The applicant appealed against this decision . He complained , inter alia , that his actions had been wrongly classified at the pre - trial stage of the proceedings , which had breached his right to defence . The applicant indicated that P. knew him but while still alive she had never identified him as her attacker . Also , P. 's neighbours , including PERSON . and PERSON . , who were drinking in the house next to the victim 's , were not questioned at all , or only perfunctorily .", "On DATE ORG of GPE , in the presence of a prosecutor , upheld the applicant 's sentence . Neither the applicant nor his lawyer were present at the hearing . The applicant was apprised of this decision on DATE .", "The relevant extracts from LAW ORG as worded at the material time read as follows :", "“ Participation of a defence lawyer in the inquiry , pre - trial investigations and trial by the first - instance court is compulsory :", "...", "...", "( CARDINAL ) from the moment of the person 's arrest or when he or she is [ officially ] charged with a criminal offence carrying a penalty of life imprisonment ... ”", "Article CARDINAL of the ORG as worded at the material time provided that a suspect , accused or defendant was entitled to waive his or her right to defence counsel . Such a waiver was permissible only on the initiative of the suspect , accused or defendant , himself or herself .", "A waiver was not permitted if the participation of a defence lawyer was compulsory ." ]

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[ "The applicant was born in DATE . She is detained in FAC .", "On DATE the applicant was arrested by police officers from the anti - terrorism branch of ORG on suspicion of being a member of PERSON ( Revolutionary Left ) , and was taken into custody . During the operation , the police officers gathered guns and illegal documents from the flat where they had captured the applicant . The applicant had also CARDINAL forged identity cards in her possession .", "On DATE she was brought before the investigating judge at ORG . Subsequently , the investigating judge ordered the applicant ’s detention on remand .", "On DATE the public prosecutor filed a bill of indictment with ORG against CARDINAL persons , including the applicant , and requested that the applicant be punished pursuant to LAW with the death penalty .", "NORP Throughout the criminal proceedings , either on its own motion or at the applicant ’s request , ORG examined and ordered the applicant ’s continued detention . The court relied on “ the serious nature of the offences with which the applicant had been charged , the state of evidence , the content of the case file , and the duration of the detention ” when further detaining the applicant . On CARDINAL occasions on DATE and CARDINAL DATE , the court also noted that the case was due to be decided soon .", "On DATE the applicant was convicted of the offence as charged and sentenced to life imprisonment .", "On DATE ORG quashed the applicant ’s conviction , and remitted the case back to ORG .", "The case is still pending before ORG ." ]

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[ "The first applicant , PERSON , born in DATE , is the mother of the second to seventh applicants , PERSON , born in DATE , PERSON , born in DATE , ORG , born in DATE , ORG , born in DATE , ORG , born in DATE , and ORG , born in DATE . They are NORP nationals of NORP origin and live currently in GPE ( GPE ) . In the proceedings before the ORG they are represented by Mr PERSON , a lawyer practising in GPE am GPE .", "In DATE the applicants entered GPE together with the first applicant ’s husband , respectively the other applicants’ father . On DATE they applied for asylum . On DATE when heard before ORG ( ORG für die ORG ) they declared that there were GPE . The first applicant stated that she had been kidnapped in DATE by NORP , but that after DATE she escaped . According to ORG customs a kidnapped girl could not return to her family . She therefore went to Batman where she met her future husband who , although being officially a NORP , belonged to the PERSON community . In DATE her husband ’s brother , the head of the village of ORG , was murdered . Thereafter they were harassed by members of the ORG security service and their NORP neighbours . In DATE the first applicant ’s husband was arrested for DATE by members of the security forces and asked him for the reasons of his conversion to the LOC religion . A further stay in GPE had been impossible for them .", "On DATE ORG dismissed the ORG request as being manifestly ill - founded and invited them to leave the NORP territory within DATE . ORG did not consider that the evidence they adduced in support of fear of persecution to be reliable and doubted the credibility of their asylum claim . According to ORG , the first applicant had ceased being a LOC at the moment of her marriage with a NORP . She was not recognised as a LOC neither by the members of her family nor by the people surrounding her . The applicants could therefore not be considered as NORP . Finally the applicants had not alleged to be victims of political persecution as NORP .", "On DATE the applicants filed an action against the refusal of asylum and their envisaged expulsion and applied for an interim injunction ( einstweilige Anordnung ) requesting to stay their expulsion pending the administrative court proceedings . They repeated their previous submissions and referred to pending asylum proceedings of close members of their family some of which had been successful . They further stressed that on several occasions they had been interrogated and threatened by the NORP police . Also their neighbours had treated them as GPE and the children had been insulted in school . Since NORP fundamentalists had a strong influence in Batman , their situation there became unbearable .", "On DATE ORG ( Verwaltungsgericht ) dismissed their request for an interim injunction . Confirming the findings of ORG , ORG added that being a ORG was a matter of birth , not of faith . A marriage with a person belonging to a different religion was considered as a sin and sanctioned by the exclusion from the PERSON community . The applicants were not NORP . There was no indication that their life was determined by this religion that their neighbours considered them as LOC . Unlike LOC practising their religion , the applicants were not subjected to persecution in GPE .", "On DATE the applicants renewed their request to be granted political asylum ( PERSON ) . They alleged that their submissions in the previous asylum proceedings had not been correctly understood due to linguistic problems . The first applicant ’s husband submitted that he too was born by PERSON parents . When he was DATE , his mother had been kidnapped by NORP . He then lived together with his mother and his NORP stepfather . However , he and his mother had always maintained close contacts with the LOC in their surroundings and he had been brought up according to the LOC traditions .", "On DATE the parish of the Norden ORG church granted the applicants church asylum . The first applicant ’s husband was expelled to GPE on DATE .", "On DATE ORG dismissed the applicants’ renewed asylum request . The court observed that the applicants had failed to show that they had been prevented , through no fault of their own , from filing their new submissions in the previous proceedings .", "On DATE ORG dismissed the action filed by the applicants on DATE against the refusal of asylum and their envisaged expulsion . The ORG considered the ORG submissions as unsubstantiated and contradictory . The first applicant ’s submission , according to which she had been kidnapped by NORP when she was young , was irrelevant for the purposes of being granted asylum , since this event occurred too long a time ago . Moreover , even if it were true that her uncle had been murdered , there was no evidence that the applicants were persecuted for their religious beliefs . It was true that NORP manifesting their religion were persecuted in GPE . However , if in a case such as the present where the religion had not been practised or where after the marriage with a person belonging to a different religion the membership in the ORG community had come to an end , there was no likelihood of persecution . Accordingly , there was no need to take further evidence in this respect . Furthermore , persons of NORP origin had the possibility to live in the NORP parts of GPE , in particular in larger cities , where they did not risk direct or indirect persecution or an existence under the poverty level .", "On DATE ORG GPE ( Niedersächsisches Oberverwaltungsgericht ) refused the applicants’ application for leave to appeal . The court considered that ORG had correctly assessed the evidence and had rejected the ORG requests to take further evidence in a convincing manner . ORG had not arbitrarily concluded that the applicant ’s submissions were unsubstantiated . The ORG furthermore found that the NORP from the NORP regions had generally a possibility to live in the LOC of GPE . As to the question whether NORP who practised their religion in an NORP environment , had to fear persecution by NORP , the ORG pointed out that this question had been answered affirmatively in the past but was irrelevant in the present case because the applicants were not GPE .", "On DATE the applicants requested to reopen the asylum proceedings . When interviewed on DATE before ORG , they submitted that the first applicant ’s husband was a LOC . He had been excluded from his family when his mother married a NORP . However , he and the first applicant lived according to the LOC faith . After the murder of the first applicant ’s uncle in DATE their neighbours realised that they were GPE . They were then harassed by the resident population and had to move house CARDINAL times . Following the introduction of compulsory religious instruction in school , it became clear that the children were not NORP and they were insulted and beaten . The applicants maintained that in case of their expulsion to GPE their would face a real risk of being murdered .", "On DATE ORG refused to conduct new asylum proceedings . It took the view that the applicants’ submissions did not constitute new facts . Furthermore , ORG did not consider the evidence they adduced in support of their fear of persecution to be reliable and doubted the credibility of their asylum claim .", "The applicants filed an action with ORG and applied for an interim injunction ( einstweilige Anordnung ) requesting to stay their expulsion pending the administrative court proceedings .", "On DATE ORG dismissed this request on the ground that the applicants submissions were contradictory and not credible . Their claims had to be considered as completely fabricated . There was no evidence showing that they were of PERSON origin and that they were persecuted when they had left their country nor was there a sufficient likelihood that they would be persecuted if they were to return to their country . However , there were no grounds justifying to quash the final judgments given by ORG . According to ORG , the applicants merely alleged an erroneous appreciation of the law and facts by the previous court instances . Their earlier and new submissions concerning their membership in the PERSON community being unsubstantiated , there was no need to take further evidence in this respect .", "The applicants filed a constitutional complaint against the refusal of the requested interim injunction .", "On DATE a panel of CARDINAL judges of ORG ( Bundesverfassungsgericht ) declined to accept the ORG constitutional complaint for adjudication ." ]

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[ "Mr PERSON is a NORP national . Since DATE he has been a consultant engineer .", "Following a disagreement as to the amount of fees owed to him for a number of projects which he had designed , CARDINAL disputes arose between him and those who had commissioned the work , CARDINAL public corporations and a private individual .", "DATE , and then from DATE , the GPE , a body under the authority of ORG , concluded with the applicant a series of contracts for the design of electro - mechanical installations and the supervision of the relevant work . In DATE it repudiated these contracts and refused to pay him the agreed remuneration .", "DATE and DATE , the applicant brought , in the GPE first - instance court ( PERSON ) , i.e. composed of a single judge , CARDINAL actions to recover the fees payable for the supervision of the work in question . In addition , he asked ORG ( PERSON \" ) to bring proceedings on his behalf concerning the fees which he claimed in respect of the design of the projects , because , according to the terms of ORG no . CARDINAL/CARDINAL ( see paragraph CARDINAL below ) , it alone had the capacity to institute proceedings for the recovery of fees payable to engineers , being subrogated to their rights for this purpose . The T.E.E. brought CARDINAL actions , on DATE , DATE , DATE and CARDINAL DATE .", "On DATE Mr PERSON asked the T.E.E. to bring CARDINAL more actions . He repeated his request on DATE and DATE . By a letter of CARDINAL DATE , the T.E.E. warned him of the poor prospects of success of the additional actions envisaged ; consequently , it demanded the pre - payment of the legal fees and the lodging of a bank guarantee intended to cover the costs of the opposing party . The applicant regarded these conditions as unlawful and called upon the T.E.E. not to delay any further , because of the danger that his rights would become time - barred . On DATE he repeated his protest but agreed to provide the guarantee requested .", "On DATE the T.E.E. informed him that on DATE it had complied with his request of DATE . It stated however that it would seek purely declaratory judgments ( anagnoristikes agoges ) if it did not receive payment of the legal costs before the first hearing .", "In the meantime the first - instance court had allowed CARDINAL of the actions brought by the T.E.E. ; ORG ( Efeteio ) had , however , dismissed them , whereupon the T.E.E. had appealed to ORG ( Areios Pagos ) . In the course of the proceedings , the GPE requested a stay , with a view to securing an out of court settlement with the applicant .", "At this point , ORG adopted , on DATE , on the basis of a bill prepared by ORG , Act no . DATE which amended and supplemented various provisions of the employment legislation . LAW thereof reads as follows :", "\" Transitional provisions", "...", "Works contracts or contracts for the provision of independent services of specified or indefinite duration , concluded prior to DATE of the publication of the present LAW between the ORG and private engineers ... or engineers employed in the public sector or by public corporations ... shall be valid notwithstanding any other statutory provisions .", "The ... above - mentioned engineers shall be entitled to the remuneration agreed upon ; the provisions ... of Act no . CARDINAL/CARDINAL ‘ on the registers of researchers and the award and design of projects’ shall not apply .", "The provisions of this paragraph shall also apply to cases currently pending before the courts at any level of jurisdiction in so far as no final ruling has been made . \"", "After the entry into force of LAW , the GPE refused any further negotiation .", "Before ORG , Mr PERSON complained of the \" interference of the executive , through the legislature \" in his cases pending before the courts .", "By CARDINAL judgments of CARDINAL May and DATE ( nos . CARDINAL and CARDINAL/CARDINAL ) , ORG ruled that LAW covered all engineers and did not therefore infringe the principle of equal treatment . It added that nothing prevented the legislature from adopting measures affecting civil rights provided that that principle was observed . Finally , it considered that the appeals were unfounded because they were based on provisions which had been repealed .", "These judgments are not at issue in the present case .", "On DATE the T.E.E. brought an action before the GPE first - instance court for the payment of the applicant ’s fees relating to the projects designed in DATE and DATE ( see paragraph CARDINAL above ) .", "On DATE the GPE was ordered to pay the sum of MONEY . It appealed from this judgment on DATE . The applicant intervened in the proceedings on CARDINAL DATE ( see paragraph CARDINAL below ) .", "On DATE Mr PERSON requested the T.E.E. to bring additional actions to obtain the compound interest ( LAW ) which had accrued since DATE and for the adjustment of his claim in accordance with the rate of inflation ( Article CARDINAL para . CARDINAL of LAW of DATE ) . In addition , he complained that the action brought by DATE had sought merely a declaratory judgment and that it had failed to contest a large number of objections raised by the opposing party .", "ORG dismissed the GPE ’s appeal on CARDINAL DATE ( judgment no . CARDINAL/CARDINAL ) . It considered that since DATE no employment or works contract existed between the applicant and the Organisation . On the contrary , it noted that Mr PERSON had designed the disputed projects as an independent engineer within the meaning of Act no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) and that the LAW of DATE was therefore not material to the case . The PERSON appealed to ORG on DATE .", "DATE previously , the applicant had again requested the T.E.E. to file the additional claims ( see paragraph CARDINAL above ) . On DATE he complained that it had not yet collected the sum awarded on DATE ( see paragraph CARDINAL above ) ; in his view , the GPE ’s appeal did not preclude the execution of the appeal judgment upholding the first - instance decision . He also protested that there had been no replies to his previous representations .", "By a fourth letter of CARDINAL DATE Mr PERSON accused the T.E.E. of being responsible for the slowness of the proceedings in ORG and demanded explanations from it as to the manner in which it was carrying out its duties .", "In a memorandum of CARDINAL DATE to the T.E.E. ’s legal advisor , which was communicated to the applicant , the lawyer assigned to the case stated as follows :", "\" ...", "a ) The T.E.E. has never lodged a claim for compound interest against the ORG or a public corporation .", "b ) Decree no . CARDINAL/CARDINAL does not provide for the adjustment of fees . Admittedly , the above - mentioned judgment of ORG ( the only one in our favour ) recognises that the design projects fell within the scope of Act no . CARDINAL/CARDINAL which provides for such a possibility , but in our view this judgment is inconsistent with section CARDINAL para . CARDINAL of Act no . DATE ... .", "The terms of this provision suggest that the judgment will be quashed on appeal .", "c ) CARDINAL actions brought by ourselves and Mr PERSON have already been dismissed with final effect .", "d ) The T.E.E. has already paid out considerable amounts for these cases and has had costs awarded against it on several occasions .", "e ) The outcome of the case pending in ORG is uncertain . We shall probably lose it .", "For the above reasons we consider it unwise for the T.E.E. to incur criticism and run financial risks by bringing an action for compound interest and the adjustment of the claim under LAW no . CARDINAL/CARDINAL before ORG has given judgment . \"", "The applicant again contacted the T.E.E. on DATE and DATE .", "By a judgment of CARDINAL DATE ( PERCENT CARDINAL ) , ORG ruled that Act no . DATE was not applicable and dismissed the GPE ’s appeal .", "On DATE Mr PERSON called upon the T.E.E. to pay him the sum awarded on DATE plus interest and various others sums , amounting to MONEY , which it had not included in the claims filed at the beginning of the proceedings .", "On DATE the T.E.E. informed him in writing that the legislation in force did not allow it to institute enforcement proceedings against the GPE , that a request for the re - adjustment of the claim would be unlawful and that an action for interest \" would clearly be devoid of any moral basis \" . It added that until the delivery of judgment no . DATE , serious doubts had subsisted as to the outcome of the main proceedings , which had prevented it from filing such claims , but the applicant could lodge them himself by means of a subrogation action ( LAW , see paragraph CARDINAL below ) .", "On DATE , the T.E.E. re - introduced , in the light of the new legislation , CARDINAL of the actions which it had brought on DATE ( see paragraph CARDINAL above ) in the GPE first - instance court . Mr PERSON intervened in the proceedings .", "At the hearing on DATE the T.E.E. converted these actions into actions for declaratory judgments .", "The court found for the applicant , by CARDINAL judgments of CARDINAL DATE ( ORG . ORG and CARDINAL ) , but on CARDINAL and CARDINAL DATE ORG allowed the GPE ’s appeal ( judgments ORG . CARDINAL and DATE ) . It ruled that the applicant ’s rights were time - barred on the ground that DATE had elapsed DATE in the course of which they had come into existence and the date on which the actions had been re - introduced before the court . In reply to the opposing view of the T.E.E. , it considered that the initial claims had been made on a different legal basis and had therefore not been capable of interrupting the running of time .", "On DATE Mr PERSON complained to the T.E.E. that it had failed to put his case properly . As it refused to lodge an appeal on points of law , he did so himself on DATE . In his memorial , he stated that the appeal was directed against the T.E.E. as well as against the GPE", "By CARDINAL judgments of DATE ( no . CARDINAL ) and CARDINAL DATE ( no . CARDINAL/CARDINAL ) , ORG declared inadmissible the submissions concerning the T.E.E. and dismissed the remainder of the appeal as ill - founded .", "On DATE the T.E.E. re - introduced CARDINAL of its actions of CARDINAL DATE ( see paragraph CARDINAL above ) before the GPE first - instance court , which simply declared the action in question time - barred ( judgment no . DATE of CARDINAL DATE ) .", "On DATE ( judgment no . CARDINAL/CARDINAL ) ORG dismissed the T.E.E. ’s appeal .", "The applicant himself filed an appeal on points of law . His memorial , drawn up by a lawyer of his choice , contained a number of complaints regarding the manner in which the T.E.E. had carried out its duties as a body subrogated to his rights .", "By a judgment of DATE ( no . CARDINAL ) , ORG declared the appeal inadmissible in so far as it related to the T.E.E. and ill - founded for the rest .", "In DATE the applicant requested the T.E.E. to re - introduce certain of the actions which it had instituted from DATE to DATE ( see paragraph CARDINAL above ) .", "In a report of CARDINAL DATE to the head of the T.E.E. ’s legal department , the lawyer assigned to the case expressed the view that there were sufficient prospects of success and stressed that no problem of res judicata arose from judgments nos . CARDINAL and CARDINAL/CARDINAL ( see paragraph CARDINAL above ) of ORG .", "On DATE Mr PERSON repeated his request and warned the T.E.E. of the risk that the disputed rights would become time - barred . It brought the actions in the court on DATE , but only in the form of actions for a declaratory judgment . The applicant intervened in the proceedings .", "On DATE May the court dismissed the actions on the same grounds as in the judgments on appeal of DATE ( see paragraph CARDINAL above ) .", "The applicant ’s appeal filed on DATE is still pending .", "On DATE the ( PERSON ) - Patriotic Foundation for ORG and Assistance - P.I.K.P.A. , a public body under the authority of ORG commissioned Mr PERSON to design a project for the extension of the heating system of one of its hospitals , the PERSON children ’s hospital . On DATE this hospital , which in the meantime had become a public - law body , asked the applicant to alter his plans . The project , which was submitted within the time - limits laid down , was approved on DATE .", "The applicant considered that a reduction of his fees effected by the ORG was arbitrary and he accordingly asked it to re - examine its method of calculation , but to no avail . On DATE he applied to the relevant department of ORG .", "As he did not obtain satisfaction , the applicant instituted proceedings against the P.I.K.P.A. and the LOC in ORG on DATE pursuant to LAW of LAW ( ORG ) to LAW . On DATE he was asked by the court to provide evidence that he was enrolled on the register of Public expenditure , a condition which allowed an engineer to carry out public works ; he did so on DATE .", "On DATE the court dismissed his action against the P.I.K.P.A. on the ground that all the latter ’s rights and obligations had been transferred to the P.N.P. It also ordered the parties to produce expert opinions concerning the work carried out by Mr PERSON .", "At Mr PERSON ’s request , ORG held a second hearing on DATE . It dismissed the action by a judgment , which became final on DATE . It ruled that , by virtue of LAW no . CARDINAL/CARDINAL , only the T.E.E. had the capacity to bring proceedings to recover payment of fees in that it was subrogated to the rights of the engineer ( see paragraph CARDINAL below ) ; it acknowledged nevertheless that the applicant could reasonably have believed that he was entitled to bring proceedings himself and ordered both parties to pay costs .", "In DATE a public works contractor , GPE , commissioned the applicant to draw up plans for the installation of a drains system in the town of PERSON .", "By a letter of DATE Mr PERSON asked for the assistance of the T.E.E. because GPE had rejected the plans and had not paid the agreed remuneration .", "In DATE the T.E.E. replied to him that it wished to settle the dispute out of court .", "As the negotiations were unsuccessful , the applicant on DATE urged it to bring legal proceedings .", "On DATE he repeated his request and asked the T.E.E. to reassess the sums claimed .", "On DATE he complained to it for not already having brought the action and for having miscalculated the fees .", "The T.E.E. brought an action in the GPE first - instance court on DATE . On DATE the action was allowed in part ; the applicant did not intervene in these proceedings .", "The T.E.E. and GPE challenged the judgment in ORG . On DATE that court ordered GPE to pay the T.E.E. CARDINAL,CARDINAL drachmas plus interest ; however , it rejected the submission concerning the reassessment of the claim because the T.E.E. had not specified the amount claimed ( judgment no . DATE ) .", "On DATE Mr PERSON complained to the T.E.E. for having failed to include in its memorial the information on the basis of which the coefficient for the above - mentioned reassessment could be calculated ; he also requested it to institute enforcement proceedings in relation to the judgment of CARDINAL DATE .", "On CARDINAL DATE he again contacted the T.E.E. He accused it of having waited for DATE before bringing the proceedings , of having miscalculated his fees and of having failed to bring the enforcement proceedings to a conclusion with the result that he had received nothing .", "On DATE the T.E.E. replied to him that it could not be accused of negligence and that he had not shown that he had suffered damage . It noted that ORG had already paid the interest and the legal costs and had sought authorisation to pay the remaining sum in CARDINAL DATE instalments . Finally it added that it was for Mr PERSON himself to specify such property of GPE as might be liable to attachment .", "According to LAW para . CARDINAL of the LAW , \" every person shall be entitled to receive legal protection by the courts and may plead before them his views concerning his rights or interests , as specified by law . \"", "The following provisions of the above - mentioned LAW of DATE , as they were applicable at the material time , are relevant :", "\" CARDINAL . Engineers holding diplomas from ORG ... , members of ORG ( T.E.E. ) , and persons who pursue , on a full - time or part - time basis , ... in accordance with Act no . CARDINAL/CARDINAL , the profession of engineer and naval architect , shall , when commissioned to design a project , communicate to the T.E.E. ( ... ) a declaration attesting to their appointment by the commissioning party and a separate declaration to the effect that they have accepted the assignment ; where the project is commissioned by the ORG or a public corporation , the copy of the document authorising the assignment of the project [ shall be communicated to the T.E.E. ] ...", "... \"", "\" CARDINAL . Any party who commissions the design of plans from the persons referred to in DATE ... shall deposit with the T.E.E. or the latter ’s authorised representative ... , the full amount of the project fee , such fee being determined by the competent ministry or by the T.E.E. in the manner described below . He may not pay it directly to the person commissioned to carry out the work .", "...", "Where the commissioning party refuses , hinders or delays payment of the deposit or of the fee owed , the T.E.E. shall have the capacity to bring legal proceedings for the recovery of the amount due ... by being subrogated ex officio to the rights of the payee .", "In such cases , the T.E.E. shall inform the payee that it has introduced proceedings , after which it is freed from any liability in his regard , in particular from any obligation to pay him compensation . The payee or the T.E.E. are entitled at any moment to intervene in the proceedings . \"", "\" CARDINAL . The fees paid shall be deposited by the T.E.E. in a special bank account and a sum equivalent to PERCENT of the total fee shall be credited to the T.E.E. ’s account with ORG . ...", "The remainder of the fee , after deduction of the percentages witheld and the charge payable for the professional licence , shall be paid to the payee by the T.E.E. or its authorised representative , free of interest .", "...", "The ORG shall pay directly to the payees the fees which it owes to them after having deducted PERCENT of such amounts , which is paid to the T.E.E. \"", "The subrogation system set up by LAW no . CARDINAL/CARDINAL was initially intended to protect engineers from pressure being brought to bear on them to reduce excessively their fees , but also - and this remains the case - to secure the payment of a compulsory contribution of PERCENT ( since reduced to PERCENT ) to their insurance fund ( LAW . It is applicable only in respect of the recovery of fees payable for the design of projects and not for the supervision of work ( LAW .", "The T.E.E. has the responsibility of instituting proceedings on the basis of the information provided by the engineer . Once the action has been brought , the latter may intervene ( LAW and , by filing memorials or even by attending the hearing , support the arguments of the T.E.E. , which remains the main party in the proceedings . By so intervening the engineer acquires the right to lodge appeals himself .", "By a judgment of CARDINAL DATE ( no . DATE ) ORG ruled as follows :", "\" ... it follows that under the above - mentioned provisions [ LAW paras . CARDINAL and CARDINAL of Royal Decree no . CARDINAL/CARDINAL ] the T.E.E. has not only a right ( discretionary power ) , but also an obligation , to take legal proceedings on behalf of the engineer to recover fees . This interpretation ... is consistent with the prevailing case - law according to which the payee has no right whatsoever to bring proceedings for the recovery of his remuneration . ... Consequently , in carrying out this obligation , the T.E.E. acts not as the engineer ’s representative but as an authority exercising an unfettered and exclusive right conferred on it by law ... . \"", "In a judgment ( no . CARDINAL ) ORG held as follows :", "\" ... it is clear from ... Articles CARDINAL and CARDINAL of Royal Decree no . CARDINAL of CARDINAL DATE ... that ORG , which alone is entitled to collect the disputed renumeration , is subrogated to the rights of engineers , regardless of whether they are members . If it were otherwise the aim of the above - mentioned provisions would be frustrated , that aim being to safeguard the interests of the profession and to deter any competition as regards ORG fees , liable to affect adversely the quality of the projects which they design \" .", "DATE . On the other hand , in a judgment no . CARDINAL/CARDINAL the ORG observed :", "\" Royal Decree no . CARDINAL of CARDINAL DATE ... provides in DATE and CARDINAL of Article CARDINAL thereof : ‘ ... CARDINAL . In such cases , the T.E.E. shall inform the payee that it has introduced proceedings ... . The payee or the T.E.E. are entitled at any moment to intervene in the proceedings’ . It follows from these provisions that the T.E.E. has the right to take legal proceedings to secure the payment of remuneration owed to CARDINAL of its members in respect of the design of a project only where the member in question has not done so himself . If the payee takes proceedings himself to recover the fees , the T.E.E. is entitled only to intervene in the proceedings \" .", "ORG had occasion to rule on a claim for compensation from an engineer who complained that the T.E.E. had not brought proceedings to recover his fees in sufficient time to avoid the action in question being time - barred . It considered that such negligence gave rise to a right to compensation , but only as from the moment at which the action became time - barred and at which the T.E.E. could therefore no longer bring it ( judgment no . CARDINAL/CARDINAL ) .", "LAW provides as follows :", "\" Capacity to bring proceedings of parties", "Any person who can establish a direct legitimate interest may seek judicial protection . \"", "\" Subrogation action ( plagiastiki agogi )", "Creditors may apply for judicial protection , exercising the rights of their debtors in the event of the latter ’s failure to exercise them , except rights of a close personal nature . \"", "\" Intervention in support of CARDINAL of the parties ( apli prostheti paremvasi )", "If , in proceedings pending before a court , a third party has an interest in the success of CARDINAL of the parties , he may intervene in support of the claims of that party until final judgment has been given . \"", "\" Procedural position of the intervener", "The intervener may take all the steps in the proceedings in the interests of the party which he supports and is bound to accept any steps which have already been completed before his intervention . The steps which he takes shall be valid in so far as they are compatible with those of the main party in the proceedings ... \"", "\" ‘ Autonomous’ intervention ( aftotelis prostheti paremvasi )", "If the decision in the main proceedings affects the relationship between the intervener and the opposing party , the provisions of Articles DATE to CARDINAL shall apply . \" ( ORG \" concerning common interest between the parties \" - \" omodikia \" )", "The subrogation action was introduced into NORP law in DATE in LAW and was considered to be an action for provisional measures and interlocutory relief . It is now governed by the general provisions of the first LAW . It is generally agreed that this action is a sui generis action which aims at safeguarding the property of the debtor in the interests of the creditor . A person who brings the action must prove that he is the creditor of a debtor who has neglected to exercise his rights . The latter ’s insolvency is not a necessary condition for bringing the action .", "In a judgment of DATE ( no . CARDINAL/CARDINAL ) concerning enforcement proceedings against a debtor , a private individual , who had just lost his action against the T.E.E. , ORG stated as follows :", "\" ... between the T.E.E. and the engineer there is a ‘ quasi’ debtor ( the T.E.E. ) - creditor ( the engineer ) relationship , which lasts for as long as the T.E.E. is under a statutory duty to secure the recovery of the fee and to pay it thereafter to the person to whom it is strictly due , the engineer ... It follows from the above - mentioned provisions ( LAW ) that if the T.E.E. fails to institute proceedings for the recovery of fees or to bring an enforcement action for their payment , ... the engineer , as the payee , has a legitimate interest in doing so provided that he stipulates in his application that the amount in question is to be paid to the T.E.E. ... \"" ]

[ "6" ]

[ "6-1" ]

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[ "The first applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He represents the second applicant , ORG , and the third applicant , ORG . They were all represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .", "s , may be summarised as follows .", "On DATE a privately owned NORP newspaper , GPE , ran an article under the headline “ Profound fear of criticism of NORP ” ( PERSON angst for kritik af islam ) . It reported on the difficulties encountered by the writer of a children ’s book entitled The Koran and the Life of the Prophet PERSON ( PERSON og profeten PERSON liv ) in finding an illustrator for the book .", "On DATE another privately owned NORP newspaper , ORG , published CARDINAL cartoons , most of which were caricatures of PERSON . The most controversial of the cartoons showed PERSON with a bomb in his turban . In the middle of the page carrying the cartoons was an explanatory text by the newspaper ’s cultural affairs editor which stated , inter alia , as follows :", "“ Some NORP reject modern secular society . They demand special status , insisting on special consideration of their own religious feelings . This is incompatible with secular democracy and freedom of expression , where one has to be prepared to put up with scorn , mockery and ridicule . While this is not always agreeable or pleasant to watch , and does not mean that religious feelings can be made fun of at any price , that is a minor consideration in the present context ... we are on a slippery slope , with no one able to predict where self - censorship will lead . That is why PERSON has invited members of ORG to draw PERSON as they see him ... ”", "On DATE the ambassadors of CARDINAL NORP - majority countries , referring , inter alia , to the cartoons , asked for a meeting with the NORP Prime Minister to discuss what they perceived as an “ ongoing smear campaign in NORP public circles and the media against ORG and NORP ” . It appears that the government refused their request in writing , citing the following reasons :", "“ Freedom of expression has a wide scope and ORG has no means of influencing the press . However , NORP legislation prohibits acts or expressions of opinion of a blasphemous or discriminatory nature . The offended party may bring court proceedings against the authors of such acts or expressions of opinion , and it is for the courts to decide in individual cases . ”", "On DATE several NORP organisations in GPE reported ORG to the NORP police , maintaining that it had violated the provisions of LAW concerning blasphemy and insult on the basis of race or religious orientation .", "By a decision of DATE , the regional public prosecutor for ORG ( Statsadvokaten i Viborg ) decided not to initiate criminal proceedings against the newspaper . The NORP organisations appealed against that decision to ORG ( PERSON ) , who upheld the decision on DATE , giving the following reasons .", "“ Decision on possible criminal proceedings in the case of ORG article ‘ The face of GPE", "...", "The article in ORG", "The article in ORG was published in the newspaper ’s DATE issue of CARDINAL DATE and was advertised on the front page of the newspaper by one of the drawings from the article . The drawing was accompanied by text explaining that the newspaper had invited members of ORG to draw PERSON as they saw him ; that , out of CARDINAL illustrators , CARDINAL had responded to the invitation ; and that the drawings were published under the ORG names . ... The introduction to the article is headed ‘ ORG ... The introduction to the article reads as follows :", "‘ The comedian PERSON recently admitted that he did not dare openly “ to take the piss out of the Koran on TV ” . An illustrator asked to portray PERSON in a children ’s book wishes to do so anonymously , as do the western NORP translators of a collection of essays critical of ORG . A leading art museum has removed a work of art for fear of reactions from NORP . This theatre season , CARDINAL satirical shows targeting the President of GPE , PERSON , are playing , but not a single one about PERSON and his allies . Finally , during a meeting with Prime Minister PERSON of GPE ’s ORG , an imam urged the government to use its influence over the NORP media so that they drew a more positive picture of ORG .", "The examples cited above give cause for concern , regardless of whether there is any foundation for people ’s fears . The fact is that those fears exist and lead to self - censorship . The public space is being intimidated . Artists , authors , illustrators , translators and theatre people are therefore steering a wide berth around the most important meeting of cultures of our time – the meeting between ORG and the secular society of the LOC rooted in ORG", "The following section , entitled ‘ Ridicule’ , is taken from the article :", "‘ Some NORP reject modern secular society . They demand special status , insisting on special consideration of their own religious feelings . This is incompatible with secular democracy and freedom of expression , where one has to be prepared to put up with scorn , mockery and ridicule . It is therefore no coincidence that people living in totalitarian societies are sent to jail for telling jokes or for critical portrayals of dictators . As a rule , this is done with reference to the fact that it offends people ’s feelings . In GPE , we have not yet reached that stage , but the examples cited above show that we are on a slippery slope , with no one able to predict where self - censorship will lead . ... That is why ORG has invited members of ORG to draw PERSON as they see him.’ ...", "The CARDINAL drawings are as follows :", "Drawing CARDINAL : The face of a man whose beard and turban are drawn within TIME and with a star , symbols normally used for ORG .", "Drawing CARDINAL : The face of a grim - looking bearded man with a turban shaped like an ignited bomb .", "Drawing CARDINAL : A person standing in front of an identity parade consisting of CARDINAL people , including a caricature of PERSON [ leader of ORG ] and CARDINAL men wearing turbans . The person in front of the lineup is saying : ‘ Hmm ... I ca n’t quite recognise him ... ‘", "Drawing CARDINAL : A bearded man wearing a turban , standing with a halo shaped like a crescent moon over his head .", "Drawing CARDINAL : CARDINAL stylised female figures wearing headscarves , with facial features depicted as a star and a crescent moon . The caption reads : ‘ Prophet ! You crazy bloke ! Keeping women under the yoke!’", "Drawing CARDINAL : A bearded man wearing a turban , standing with the support of a staff and leading an ass by a rope .", "Drawing CARDINAL : A man with beads of sweat on his brow , sitting under a lamp and looking over his left shoulder as he draws a man ’s face with his head covered and with a beard .", "Drawing CARDINAL : CARDINAL bearded men wearing turbans and armed with a sword , a bomb and a gun , running towards a third bearded man wearing a turban . He is reading a sheet of paper and gesturing them to hold off , with the words : ‘ Relax folks ! It ’s just a sketch done by a non - believer from southern ORG", "Drawing CARDINAL : A teenage boy with dark hair , dressed in trousers and a striped top printed with the text ‘ The Future’ , standing in front of a blackboard , and indicating with a pointer the LANGUAGE text written on it . The words ‘ PERSON , ORG , DATE are written on an arrow pointing at the boy .", "Drawing CARDINAL : A bearded man , standing , wearing a turban and carrying a sword ; his eyes are hidden by a black bar . Standing at his sides are QUANTITY women wearing black gowns , with only their eyes visible .", "Drawing CARDINAL : A bearded man wearing a turban , standing on clouds with arms outspread , saying : ‘ Stop , stop , we ’ve run out of virgins!’ Waiting in front of him is a row of men in tatters with plumes of smoke over their heads .", "Drawing CARDINAL : A drawing of a man wearing glasses and a turban with an orange in it . The turban bears the words ‘ Publicity Stunt’ . The man is smiling as he shows a picture portraying a ‘ matchstick man’ with a beard and wearing a turban .", "NORP The Director of Public Prosecutions’ assessment ...", "LAW provides that any person who , in public , mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country is liable to a term of imprisonment not exceeding DATE .", "The provision is part of the rules of criminal law , the interpretation of which varies depending on what is generally considered to be accepted usage or other form of expression in NORP society . In this connection it should be noted that frank and informal debate is not unusual in GPE , where even offensive and insulting expressions of opinion are widely accepted .", "It should also be noted that , when it was adopted in DATE , LAW was intended to afford protection in respect of the most serious offences against religious feelings ; this was also implicit in subsequent debates held in the NORP parliament in DATE and DATE regarding the necessity for the provision . It has also been reflected in practice , as CARDINAL prosecutions have been brought for breaches of this provision since DATE , the most recent of which , in DATE , led to an acquittal .", "An assessment of the drawings described above and the article in the light of the provisions of LAW involves deciding whether they amount to mockery or scorn of ORG ’s religious doctrines or acts of worship . ...", "As regards ... ‘ religious doctrines or acts of worship’ , it should first be noted that the expressions of opinion falling within the scope of LAW cover the internal and external religious life of a religious community , that is , the doctrines ( a creed , if any , and the central texts of the religion ) and the institutions , practices , persons and things ( ritual acts , etc . ) by which the acts of worship of the community take place . However , according to the preparatory legislative material for LAW , the concepts concerned do not encompass religious feelings which are not tied to a community ’s religious doctrines or acts of worship , including doctrines of an ethical or social nature or similar .", "The concept of ‘ CARDINAL covers ridicule and is an expression of lack of respect or derision of the object of mockery . ‘ Scorn’ is an expression of contempt for the object that is scorned . It must be assumed that these words imply ridicule or contempt with a certain element of abuse , just as it is clear from the preparatory legislative material for the Criminal Code that punishment can be imposed only in ‘ ORG cases .", "The religious writings of ORG can not be said to contain a general and absolute prohibition on drawing PERSON .", "The basic assumption must be that , according to ORG ( the written narratives of the life of the PERSON and guidelines for the conduct to be observed by NORP ) , there is a prohibition in NORP against depicting human figures , which also includes depicting PERSON . Not all NORP comply consistently with the ban on depiction , as there are pictures of PERSON dating from earlier times as well as the present day . However , in these cases the PERSON is depicted respectfully , in some instances without facial features .", "It can not then be assumed that a drawing of the Prophet PERSON in general will be contrary to the religious doctrines and acts of worship of the religion as practised DATE , even if certain groups within the religion comply fully with the ban on depiction . For that reason alone , a drawing of the Prophet PERSON can not in itself constitute a violation of LAW .", "However , some of the drawings in question which , according to the headline , illustrate ‘ The face of LOC are not merely a depiction of the Prophet PERSON , but a caricature of him .", "Depending on the circumstances , a caricature of such a central figure in ORG as PERSON may imply ridicule of or be considered an expression of contempt for NORP religious doctrines and acts of worship . An assessment of whether this is the case must be made in the light of the text accompanying the drawings .", "The article states that fear of NORP reaction has led to self - censorship in a number of specific cases and to artists , authors and others avoiding expressing themselves about the cultural meeting between NORP and secular NORP societies with their roots in NORP . The next paragraph states first that some NORP reject modern secular society and demand special status , insisting on special consideration of their own religious feelings . It then continues : ‘ This is incompatible with secular democracy and freedom of expression , where one has to be prepared to put up with scorn , mockery and ridicule . While this is not always agreeable or pleasant to watch , and does not mean that religious feelings can be made fun of at any price , that is a minor consideration in the present context.’", "From the section that follows , it appears that it was on this basis that ORG invited members of ORG to draw PERSON as they saw him .", "Based on this text , the basic assumption must be that ORG commissioned the drawings for the purpose of sparking a provocative debate as to whether , in a secular society , special regard should be paid to the religious feelings of certain NORP .", "The drawings referred to in paragraph CARDINAL above as drawing CARDINAL , drawing CARDINAL , drawing CARDINAL , drawing CARDINAL , drawing CARDINAL , drawing CARDINAL , drawing CARDINAL and drawing CARDINAL are either neutral in their expression or do not seem to be an expression of derision or spiteful , ridiculing humour . Therefore , in the opinion of ORG , these drawings can not be considered to constitute criminal offences under LAW .", "Drawings CARDINAL and CARDINAL deal with the position of women in NORP society and therefore relate to social conditions in those societies and the lives of their members . On this basis the drawings can not be considered to contain expressions of opinion concerning NORP religious doctrines or acts of worship , and consequently do not amount to punishable offences under LAW .", "The CARDINAL armed figures in drawing CARDINAL could be seen to be an illustration of an element of violence in ORG or among NORP . However , the man standing up , who could be a depiction of PERSON , is denying that there is any reason for anger and speaking in soothing tones , which must be taken to be a rejection of violence . Hence , this drawing can not be considered either as an expression of mockery or scorn of NORP religious doctrines or acts of worship ; see LAW .", "Drawing CARDINAL , showing the face of a grim - looking man with a turban shaped like an ignited bomb , could be understood in several ways .", "If PERSON is taken to be a symbol of ORG , the drawing could be understood to mean that violence or bomb attacks have been committed in the name of ORG . The drawing could therefore be seen as a contribution to the current debate on terror and as an expression of the view that religious fanaticism has led to terrorist acts . Understood in this way , the drawing can not be considered to express contempt for the Prophet PERSON or the NORP religion , but should be considered as an expression of criticism of NORP groups who commit terrorist acts in the name of religion . On this basis , the drawing is clearly not in violation of LAW .", "The drawing could also be taken to depict the Prophet PERSON as a violent person and as a rather intimidating or frightening figure .", "Historical descriptions of the PERSON ’s life show that , in propagating their religion , he and his followers were involved in violent conflicts and armed clashes with persons and population groups who did not join ORG , and that many NORP and others lost their lives as a result .", "Even against this historical background , a depiction of the Prophet PERSON as a violent person must be considered an incorrect depiction if the PERSON is shown with a bomb as a weapon , which in DATE ’s context might be understood to imply terrorism . This depiction might with good reason be understood as an affront and insult to the PERSON , who represents an ideal for believing NORP .", "However , such a depiction is not an expression of mockery or ridicule , and almost certainly not of scorn within the meaning of LAW . The concept of scorn covers contempt and debasement , which in their usual meaning would not cover situations depicting a figure such as that shown in drawing CARDINAL , regardless of how the illustration might be understood or interpreted .", "...", "Conclusion", "As is clear from points CARDINAL and CARDINAL ... , ORG does not find any grounds for changing the decision reached by the regional public prosecutor for GPE and therefore concurs in the decision , pursuant to section CARDINAL(CARDINAL ) of ORG , to discontinue the investigation with regard to LAW ( b ) of LAW .", "Although there are no grounds for instituting criminal proceedings in this case , it should be noted that both provisions of LAW and also other criminal - law provisions , for example with regard to defamation of character – place restrictions on freedom of expression . LAW protects religious feelings against mockery and scorn and LAW b ) protects groups of persons against scorn and degradation on account of , inter alia , their religion . To the extent that publicly made expressions of opinion fall within the scope of these rules there is , therefore , no free and unrestricted right to express opinions about religious subjects .", "In stating that it is incompatible with the right to freedom of expression to demand special consideration for religious feelings and that one has to be prepared to put up with ‘ scorn , mockery and ORG , the article in ORG does not therefore accurately describe the law as it stands . ”", "Around this time and subsequently , the publication of the cartoons ( and their reproduction in some other countries ) caused international controversy , protests , demonstrations and consumer boycotts , notably in the NORP world .", "Various NORP organisations initiated civil proceedings for defamation against ORG before ORG ( Retten i Århus ) which , in a judgment of DATE , found against them ." ]

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