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jonathanli

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[ "The applicant was born in DATE and lives in Radom .", "On DATE the applicant was charged with acting as a procurer of prostitution .", "On DATE ORG filed a bill of indictment against the applicant with ORG .", "The hearing set for DATE was cancelled due to the applicant ’s absence . Subsequently several hearings were cancelled . In particular , hearings scheduled for CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE were cancelled due to the absence of CARDINAL of the coaccused . CARDINAL hearings scheduled DATE and DATE were cancelled for various procedural reasons . On DATE the court held a hearing .", "DATE and DATE the court held QUANTITY hearings at regular intervals of DATE .", "On DATE , CARDINAL DATE and DATE the court held further hearings .", "On DATE the ORG gave judgment and convicted the applicant as charged . The court also sentenced the applicant to DATE imprisonment stayed for DATE .", "On TIME the applicant appealed against this judgment .", "On DATE ORG held a hearing and gave judgment . The court upheld the firstinstance sentence and dismissed the applicant ’s appeal .", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL ( dec . ) , § § DATE , ORG ORG and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINALVIII and its judgment in the case of ORG v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINAL-V." ]

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[ "The applicants were born in DATE and DATE respectively . The second applicant lives in GPE . The CARDINAL applicants were spouses .", "NORP In DATE they bought from the GPE municipality an apartment of QUANTITY , located in the centre of the city , which had become State property by virtue of the nationalisations carried out by the communist regime in GPE in DATE and DATE .", "At DATE the heir of the former pre - nationalisation owners of the property brought proceedings against the applicants under section CARDINAL of LAW .", "By judgments of DATE and DATE the ORG and ORG allowed the claim . They found the applicants’ title to be null and void on CARDINAL grounds : CARDINAL ) no decision of the mayor to initiate the sale procedure had been found in the case file ; nor had the applicants established that such a decision had existed but had been lost or destroyed ; CARDINAL ) the sale had not been approved by ORG , as required by law , but by CARDINAL of his deputies .", "The applicants did not submit a petition for review ( cassation ) .", "On an unspecified date in DATE they vacated the apartment . In DATE they were granted the tenancy of a municipal apartment of QUANTITY .", "Following the judgment of DATE the applicants applied to receive compensation bonds , which could be used in privatisation tenders or sold to brokers . In DATE they obtained bonds with a total face value of CARDINAL NORP levs ( ORG ) , in accordance with a valuation of the apartment prepared by an expert .", "On DATE the second applicant sold her CARDINAL of the bonds for BGN CARDINAL,CARDINAL.CARDINAL , the equivalent of CARDINAL ( ORG ) .", "On DATE the first applicant sold his CARDINAL of the bonds for ORG CARDINAL,CARDINAL.CARDINAL , the equivalent of LAW .", "The relevant background facts , domestic law and practice have been summarised in the ORG s judgment in the case of ORG and Others v. GPE , nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG , and CARDINAL , DATE ." ]

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[ "The applicant was born in DATE and lives in GPE . He is a gay rights activist .", "In DATE the applicant , together with other individuals , organised a march to draw public attention to discrimination against the gay and lesbian minority in GPE , to promote respect for human rights and freedoms and to call for tolerance on the part of the NORP authorities and the public at large towards this minority . The march was entitled “ Pride March ” DATE , and “ Gay Pride ” in subsequent DATE , to replicate similar events held by homosexual communities in big cities worldwide . The date chosen for the march , CARDINAL DATE , was also meant to celebrate the anniversary of the abolition of criminal liability in GPE for homosexual acts .", "On DATE the NORP news agency published a statement by PERSON , the press secretary of the mayor of GPE , to the effect that “ the government of GPE [ would ] not even consider allowing the gay parade to be held ” . PERSON further quoted Mr Tsoy as saying : “ The mayor of GPE , Mr PERSON , has firmly declared : the government of the capital city will not allow a gay parade to be held in any form , whether openly or disguised [ as a human rights demonstration ] , and any attempt to hold any unauthorised action will be severely repressed ” .", "On DATE PERSON quoted the mayor of GPE as having said , on a different occasion , that if he received a request to hold a gay parade in GPE he would impose a ban on it because he did not want “ to stir up society , which is ill - disposed to such occurrences of life ” and continuing that he himself considered homosexuality “ unnatural ” , though he “ tried to treat everything that happens in human society with tolerance ” .", "On DATE the first deputy to the mayor of GPE wrote to the mayor about the imminent campaign to hold a gay parade in GPE in DATE . She considered that allowing the event would be contrary to health and morals , as well as against the will of numerous petitioners who had protested against the idea of promoting homosexuality . Having noted that LAW , Marches and Picketing ( “ the LAW ” ) did not provide for the possibility of banning the event , she stated that the authorities could suggest changing the venue or time or that , if the event turned out to be a real public threat , it could be interrupted . She requested the mayor 's agreement on developing an effective action plan for the prevention of any actions – public or otherwise – aimed at promoting or holding a gay parade or festival .", "On DATE the mayor of GPE instructed his first deputy , CARDINAL other officials of his office and all prefects of GPE “ to take effective measures for the prevention and deterrence of any gay - oriented public or mass actions in the capital city ” . He called for action proposals based on the legislative and regulatory framework and demanded an “ active mass - media campaign and social commercials with the use of petitions brought by individuals and religious organisations ” .", "On CARDINAL DATE the organisers submitted a notice to the mayor of GPE stating the date , time and route of the intended march . It was to take place TIME on DATE , with an estimated number of CARDINAL participants , who would march from ORG along FAC to FAC . The organisers undertook to cooperate with the law - enforcement authorities in ensuring safety and respect for public order by the participants and to comply with regulations on restriction of noise levels when using loudspeakers and sound equipment .", "On DATE ORG of ORG informed the applicant of the mayor 's decision to refuse permission to hold the march on grounds of public order , for the prevention of riots and the protection of health , morals and the rights and freedoms of others . It stated , in particular , that numerous petitions had been brought against the march by representatives of legislative and executive ORG bodies , religious denominations , PERSON elders and other individuals ; the march was therefore likely to cause a negative reaction and protests against the participants , which could turn into civil disorder and mass riots .", "Having received the above reply , the organisers submitted a notice with a view to holding another event on the same date and time as the march for which permission had been refused . They informed the prefect of their intention to hold a picket in the park at FAC .", "On DATE the applicant challenged before a court the mayor 's decision of CARDINAL DATE refusing permission to hold the march .", "On DATE the deputy prefect of ORG refused permission to hold the picket on the same grounds as those given for the refusal to hold the march .", "On DATE PERSON quoted the mayor of GPE as saying in an interview to the radio station ORG that no gay parade would be allowed in GPE under any circumstances , “ as long as he was the city mayor ” . He stated that all CARDINAL “ major ” religious faiths – “ the ORG , the ORG and the ORG ” DATE were against it and that it was absolutely unacceptable in GPE and in GPE , unlike “ in some LOC country more progressive in that sphere ” . He went on to say : “ That 's the way morals work . If somebody deviates from the normal principles [ in accordance with which ] sexual and gender life is organised , this should not be demonstrated in public and anyone potentially unstable should not be invited . ” He stated that PERCENT of the population of GPE supported the ban .", "On DATE the Tverskoy District Court of GPE dismissed the applicant 's complaint . It referred to provisions of LAW concerning the authorities responsible for ensuring the safety of events ( sections CARDINAL and DATE ) , who were entitled to suggest changing the time or venue , or both , of a proposed event on safety grounds ( section CARDINAL ) . It also noted that a public event could be held at any suitable venue unless it threatened to cause the collapse of buildings or constructions or entailed safety risks for its participants ( section CARDINAL) . It then noted the organisers ' right to hold the event at the venue and time indicated in the notice to the authorities , or at the venue and time agreed with the authorities if they had suggested a change , and stated that it was prohibited to hold the event if the notice had not been submitted on time or if the organisers had failed to agree to a change of venue or time proposed by the authorities ( section CARDINAL ) . Finally , the court noted that the organisers , officials or other individuals were prohibited from interfering with the expression of opinion by the participants in the public event unless they breached public order or contravened the format of the event ( section CARDINAL ) . It concluded on the basis of these provisions that the authorities could ban a public event on safety grounds and that it was for the organisers to submit a notice suggesting a change of venue and time for consideration by the authorities . It considered that the refusal to hold the event in the present case had legitimate grounds and that the applicant 's right to hold assemblies and other public events had not been breached .", "The applicant lodged an appeal , relying on CARDINAL of LAW , which imposed an obligation on the authorities , and not the organisers , to make a reasoned proposal to change the venue or the time of the event as indicated in the notice . He also challenged the finding that the ban was justified on safety grounds , claiming that concerns for safety could have been addressed by providing protection to those taking part in the event .", "On DATE the applicant and several other persons participated in a conference celebrating the International Day Against Homophobia , at which they announced their intention to gather in LOC to lay flowers at the war memorial , the Tomb of the Unknown Soldier , allegedly to commemorate the victims of fascism , including gay and lesbian victims , and to hold a TIME picket at the GPE mayor 's office to protest against the ban on the march and the picketing .", "DATE the applicant and CARDINAL other persons arrived at FAC to find the gates closed , with police patrolling the access . According to the applicant , there were CARDINAL policemen from the special riot squad ( ORG ) , and also CARDINAL individuals protesting against the flower - laying event planned by the applicant and his fellow participants .", "NORP The applicant was arrested and taken to the police station to be charged with the administrative offence of breaching the conditions for holding a demonstration .", "In the meantime , other participants in the flower - laying event proceeded towards the GPE mayor 's office , with protesters pursuing and attacking them . Several persons reportedly sustained slight injuries . According to the applicant , the PERSON arrested CARDINAL persons involved in attacking those taking part in the event .", "The applicant submitted CARDINAL reports by NGOs on the events of CARDINAL DATE , one prepared by ORG and another one by ORG . These reports corroborated the applicant 's account of events .", "NORP On DATE PERSON quoted the mayor of GPE as saying in a television interview : “ Those gays trying to lay flowers at FAC ... it is a provocation . It was a desecration of a holy place ” and reiterating the condemnation of the action on behalf of the public at large .", "On DATE the applicant challenged before a court the prefect 's decision of CARDINAL DATE refusing to allow the picketing . On DATE ORG of GPE dismissed the complaint , finding that the ban had been justified on safety grounds . The applicant appealed .", "On DATE ORG examined the appeal against the judgment of CARDINAL DATE . It upheld the first - instance judgment as lawful and justified in the circumstances .", "On DATE ORG examined the appeal against the judgment of CARDINAL DATE and dismissed it on essentially the same grounds .", "NORP In DATE the applicant , together with other individuals , decided to organise a march similar to the CARDINAL attempted in DATE .", "On CARDINAL DATE the organisers submitted a notice to the mayor of GPE , stating the date , time and route of the intended march and its purpose , all of which were identical to the march proposed DATE , except that the estimated number of participants was CARDINAL .", "On DATE ORG of ORG informed the applicant that permission to hold the march had been refused on the grounds of potential breaches of public order and violence against the participants , with reference to the events of DATE . The organisers were warned that holding the event without permission would render them liable .", "Having received the above reply , the organisers submitted a notice with a view to holding other events on the same date and time as the march for which permission had been refused . They informed the prefect of ORG of their intention to hold a picket in front of the GPE mayor 's office at FAC and another one in FAC .", "On DATE the organisers were informed that the prefect had refused permission to hold the picket at both venues on the grounds of public order , prevention of riots and protection of health , morals and the rights and freedoms of others . They were warned that they would be held liable for holding any unauthorised picketing .", "On CARDINAL DATE the applicant and several other persons announced at the DATE “ ORG Human Rights ” conference that they would meet DATE in front of the GPE mayor 's office to file a petition together in protest against the ban on the march and the picketing .", "On DATE the applicant and CARDINAL other individuals were stopped by the police as they attempted to approach the mayor 's office . The applicant and CARDINAL other men were detained at the police station for TIME on charges of having committed the administrative offence of disobeying a lawful order from the police . On DATE the applicant was found guilty of the administrative offence and had to pay a fine of MONEY . That decision was upheld by ORG on DATE .", "On CARDINAL DATE the applicant challenged before a court the decision of CARDINAL DATE by the mayor of GPE refusing permission to hold the march . In particular , he alleged that under LAW , the authorities were not entitled to ban public events , but could only propose changing their time and location , which in the present case they had not . He also argued that official disapproval of the purpose of a public event was not by itself a sufficient ground , in a democratic society , for a ban .", "On DATE the applicant challenged before a court the prefect 's decision of CARDINAL DATE refusing permission for the picketing .", "On DATE ORG of GPE dismissed the complaint concerning the ban on the picketing , finding that the ban had been justified on safety grounds . That judgment was upheld on DATE by ORG .", "On DATE ORG dismissed the applicant 's claim , upholding the grounds for the ban on the march and confirming the lawfulness of the authorities ' acts . That judgment was upheld on DATE by ORG .", "In DATE the applicant , together with other individuals , decided to organise several marches similar to the ones attempted DATE .", "On DATE the organisers submitted a notice to the mayor of GPE stating the date , time and route of CARDINAL intended marches to be held on CARDINAL and DATE in central GPE .", "On DATE ORG of ORG informed the applicant that permission to hold all the marches had been refused on the grounds of potential breaches of public order and violence against the participants .", "Having received the above reply , on DATE the organisers submitted a notice with a view to holding a further CARDINAL marches from DATE .", "On DATE ORG of ORG informed the applicant that permission to hold the CARDINAL marches had also been refused on the same grounds .", "The applicant submitted a number of alternative proposals for holding marches on different dates in DATE and in various locations . These proposals were refused , on the same grounds , as follows :", "( i ) applications of CARDINAL and DATE ( CARDINAL marches in total ) , refused on CARDINAL DATE ;", "( ii ) application of DATE ( CARDINAL marches ) , refused on DATE ;", "( iii ) application of DATE ( CARDINAL marches ) , refused on DATE ;", "( iv ) application of DATE ( CARDINAL marches ) , refused on CARDINAL DATE ;", "( v ) application of DATE ( CARDINAL marches ) , refused on DATE ;", "( vi ) application of DATE ( CARDINAL marches ) , refused on DATE ;", "( vii ) application of DATE ( CARDINAL marches ) , refused on DATE .", "On DATE the applicant gave notice to the President of GPE of his intention to hold a march in LOC on DATE . He received no reply to the notice .", "From DATE to DATE the applicant brought several court actions challenging the decisions by the mayor of GPE refusing permission to hold the marches . ORG joined these applications and on DATE it dismissed the applicant 's claim , upholding the grounds for the bans on the marches and confirming the lawfulness of the authorities ' acts . That judgment was upheld on DATE by ORG .", "In the meantime , the applicant also attempted to organise picketing to call for criminal charges to be brought against the mayor of GPE for hindering the holding of public events . The picket intended to be held on DATE was prohibited on CARDINAL DATE on the same grounds as those given for the previous events . This decision was reviewed and upheld by ORG on DATE and , on appeal , by ORG on DATE .", "On DATE the applicant , in a group of CARDINAL individuals , held a picket on FAC for TIME .", "DATE the Russian Federation provides that everyone has the right to freedom of association . LAW provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles , public morals , health and the rights and lawful interests of others , and to ensure the defence and security of the ORG .", "The Federal Law on Assemblies , Meetings , Demonstrations , Marches and Picketing ( no . CARDINAL-FZ of CARDINAL DATE “ the LAW ” ) provides in so far as relevant as follows :", "“ ...", "NORP The organiser of a public event shall have the right :", "( i ) to hold meetings , demonstrations , marches and pickets at the venues and time specified in the notice on holding the public event or as altered by agreement with the executive authority of the subject of GPE or the municipal body ; to hold assemblies at a venue that has been specially allocated or adapted to ensure the safety of citizens while such assemblies are held ;", "...", "( v ) in holding assemblies , meetings , demonstrations and marches , to use sound - amplifying technical devices ( audio , video and other equipment ) with a level of sound corresponding to the standards and norms established in GPE .", "NORP The organiser of the public event must :", "( i ) submit to the executive authority of the subject of GPE or the municipal body a notice on holding the public event in accordance with the procedure prescribed by section CARDINAL of LAW ;", "( ii ) DATE prior to the holding of the public event ( except in the case of an assembly or picket held by a single participant ) , notify in writing the executive authority of the subject of GPE or the municipal body of the acceptance ( or non - acceptance ) of its proposal to alter the venue and/or time of the public event as specified in the notice of the event ;", "( iii ) ensure compliance with the conditions for holding the public event as specified in the notice of the event or with any conditions that have been altered as a result of an agreement reached with the executive authority of the subject of GPE or the municipal body ;", "( iv ) require the participants in the public event to observe public order and comply with the conditions for holding the public event . Persons who fail to comply with the lawful requirements of the organiser of the public event may be expelled from the venue of the public event ;", "( v ) NORP ensure , within their competence , public order and the safety of citizens when holding the public event and , in instances specified by LAW , perform this obligation jointly with the authorised representative of the executive authority of the subject of GPE or the municipal body and the authorised representative of ORG and comply with all their lawful requirements ;", "...", "NORP The organiser of the public event shall have no right to hold it if the notice on holding the public event has not been submitted in due time or no agreement has been reached with the executive authority of the subject of GPE or the municipal body on their reasoned proposal as to the alteration of the venue and/or time of the public event . ”", "“ A public event may be held at any venue suitable for holding the event if its conduct does not create a threat of the collapse of buildings or structures or other threats to the safety of the participants in the public event . Conditions governing bans or restrictions on holding a public event at particular venues may be specified by federal laws .", "... ”", "“ CARDINAL . NORP The executive authority of the subject of GPE or the municipal body , upon receiving notice of the public event , must :", "...", "( ii ) inform the organiser of the public event , within DATE of receipt of the notice on holding the event ( or , if a notice on holding a picket by a group of individuals is submitted within DATE before its intended date , on DATE of its receipt ) , of a reasoned proposal to alter the venue and/or time of the public event , as well as of any proposal for the organiser of the event to bring the aims , form or other conditions for holding the event as indicated in the notice into line with the requirements of this Federal Law ;", "( iii ) designate , depending on the form of the public event and the number of participants , an authorised representative to assist the event organisers in conducting the event in accordance with LAW . The authorised representative shall be formally appointed by a written order which must be forwarded to the organiser of the public event in advance [ of the event ] ;", "...", "( v ) NORP ensure , within its competence and jointly with the organiser of the public event and the authorised representative of ORG , public order and safety of citizens while holding the event and , if necessary , provide them with urgent medical aid ;", "... ”", "“ ...", "The authorised representative of ORG must :", "( i ) facilitate the conduct of the public event ;", "( ii ) NORP ensure , jointly with the organiser of the public event and the executive authority of the subject of GPE or the municipal body , public order and safety of citizens and compliance with the law while holding the public event . ”", "“ CARDINAL . The organiser of the public event , officials or other individuals may not prevent the participants in the event from expressing their opinion in a manner that does not breach public order or the conditions for holding the public event .", "... ”", "The following are extracts from Recommendation CM / Rec(CARDINAL)CARDINAL of the Committee of Ministers of the Council of Europe to member GPE on measures to combat discrimination on grounds of sexual orientation or gender identity :", "“ ...", "III . Freedom of expression and peaceful assembly", "Member states should take appropriate measures to ensure , in accordance with LAW , that the right to freedom of expression can be effectively enjoyed , without discrimination on grounds of sexual orientation or gender identity , including with respect to the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity .", "Member states should take appropriate measures at national , regional and local levels to ensure that the right to freedom of peaceful assembly , as enshrined in LAW , can be effectively enjoyed , without discrimination on grounds of sexual orientation or gender identity .", "Member states should ensure that law enforcement authorities take appropriate measures to protect participants in peaceful demonstrations in favour of the human rights of lesbian , gay , bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the effective enjoyment of their right to freedom of expression and peaceful assembly .", "Member states should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions , for example on grounds of public health , public morality and public order ... ”", "On DATE ORG for Human Rights issued the following press release :", "“ In a statement given in GPE DATE , Commissioner PERSON stressed that the rights to freedom of expression and peaceful assembly belong to all people and that the authorities have a duty to protect peaceful demonstrators . The Commissioner regrets that his statement has been misrepresented by the news agency ORG by ORG dated DATE at CARDINAL ) . ”" ]

[ "11", "13", "14" ]

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[ "On DATE ORG ( Pozemkový úrad ) delivered CARDINAL decisions granting the ORG claims for restitution of real property under LAW . The defendants appealed .", "On DATE the ORG branch office of ORG ( PERSON súd GPE , pobočka v Nitre ) quashed these decisions on the ground that at the moment of the expropriation the land in question had been formally owned by a private company established by the members of the PERSON family . However , LAW provided exclusively for restitution of property taken away from individuals . ORG therefore sent the case back to the administrative authority . Prior to deciding on the case ORG held a hearing with reference to LAW of LAW .", "In the meantime , on CARDINAL DATE , the applicants and another member of their family concluded an agreement with ORG . Under the agreement ORG undertook to restore , in accordance with LAW , different real property expropriated from the applicants’ family . On DATE ORG approved the agreement pursuant to LAW . Its decision became final on DATE .", "On DATE ORG decided to reopen the proceedings leading to its decision of CARDINAL DATE pursuant to LAW a ) and ( b ) of LAW of DATE . The decision referred to the above finding of the ORG branch office of ORG of DATE according to which the land taken away from the applicants’ relatives could not be restored under LAW as it had been formally owned by a legal person .", "On DATE the applicants appealed through the intermediary of their lawyer . They argued that no relevant new facts had been established and that the decision to reopen the proceedings was not justified by the public interest . The applicants concluded that there existed no legal entitlement for having the proceedings reopened .", "On CARDINAL DATE ORG upheld ORG decision of DATE . The decision stated that no reasons for quashing or modifying ORG decision had been found .", "The applicants sought a judicial review of the decision of ORG . On DATE ORG ( Najvyšší súd ) discontinued the proceedings for lack of jurisdiction to review administrative decisions of a procedural nature . Reference was made to LAW .", "By a decision of CARDINAL DATE ORG disapproved the agreement concluded on CARDINAL DATE on the ground that the property in question had been taken away from a legal person and that under LAW only property originally owned by individuals could be restored .", "The applicants appealed and argued that there existed no reason for reopening the proceedings and that the land had been taken away from the members of their family .", "On DATE ORG upheld ORG decision of DATE . The judgment stated that the only point to be determined was a question of law , namely whether the plaintiffs were entitled , within the meaning of LAW , to acquire the property . The court noted that in the judgment of DATE it had found that the property had been taken away from a private company of which the ORG predecessors had been members and which had been a legal person . ORG concluded that the applicants lacked standing to claim restitution under LAW .", "ORG further noted that a decision on reopening of proceedings before an administrative authority could not be reviewed by a court . It decided on the case without a hearing with reference to Article CARDINALf of the Code of Civil Procedure .", "Section CARDINAL of Act No . CARDINAL on ORG And Other ORG ( “ LAW ” ) provides for restitution of real property to individuals from whom it was transferred to ORG ownership DATE and DATE by means specified in LAW . Where such persons are no longer alive , their successors are entitled to restitution under conditions specified in paragraph CARDINAL of LAW .", "Section CARDINAL ( CARDINAL ) provides that a person entitled to restitution must lodge his or her claim with the appropriate land office and , at the same time , must request restitution from the person or entity possessing the real property at issue . The latter is required to conclude , within DATE , an agreement on transfer of the property with the claimant .", "Under LAW ( CARDINAL ) , such agreements are subject to approval by the competent land office .", "The proceedings before land offices are governed by Act No . ORG .", "Under LAW ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) , administrative authorities are required to proceed in accordance with the law and they are obliged to protect the interests of the ORG as well as the rights and interests of the citizens . Administrative authorities are further obliged to thoroughly examine each case and to use all means available with a view to resolving it in the correct manner . Facts on which their decisions are based must be reliably established .", "Section CARDINAL provides that administrative proceedings can be brought either upon a request of a party or upon the initiative of the administrative authority .", "Pursuant to LAW ( CARDINAL ) and ( CARDINAL ) , administrative authorities are obliged to establish the relevant facts in an exact and comprehensive manner ; in doing so they are not bound by the submissions of the parties . The scope and manner in which the facts are to be established are to be determined by the administrative authority .", "Section CARDINAL provides , inter alia , that an administrative authority ’s decision has to be in accordance with the law and it has to be based on facts which are reliably established .", "Under LAW ( CARDINAL ) , an appellate administrative authority is required to review the administrative decision appealed against as a whole . If need be , the appellate authority shall take further action and eliminate shortcomings in the earlier procedure which it has established .", "Section CARDINAL ( CARDINAL ) ( a ) provides that administrative proceedings in which a final decision has been taken may be reopened at a party ’s request when there are new facts or evidence which could substantially affect the decision and which could not be considered in the original proceedings for reasons that can not be imputed to the party concerned .", "Under LAW ( CARDINAL ) ( b ) , administrative proceedings in which a final decision has been taken may also be reopened when the decision depended on the examination of a preliminary issue on which the competent authority decided differently .", "Section CARDINAL ( CARDINAL ) entitles administrative authorities to reopen proceedings for reasons set out in paragraph CARDINAL provided that the review of a final decision is in the general interest .", "Pursuant to LAW ( CARDINAL ) , administrative proceedings can not be reopened when the effect of the decision in question was to entitle a party , inter alia , to exercise civil rights , provided that the party concerned acquired the rights in question in good faith .", "Under LAW ( CARDINAL ) and ( CARDINAL ) , re - opening of administrative proceedings can be initiated by a party or ordered by an administrative authority not DATE from the final effect of a decision . After expiry of that DATE period proceedings can only be re - opened where a decision was obtained as a result of a criminal offence .", "The lawfulness of certain decisions of administrative bodies can be reviewed by courts in accordance with Part CARDINAL of LAW which governs proceedings before the administrative courts .", "Under LAW ) , administrative authorities’ decisions of , inter alia , a preliminary and procedural nature can not be reviewed by courts .", "Article CARDINAL ( CARDINAL ) provides that a plaintiff must indicate which part of the administrative decision he or she challenges , state the reasons for which he or she considers such a decision to be unlawful and specify the decision he or she seeks to obtain .", "Section CARDINALf entitled the courts to deliver a judgment without prior oral hearing in simple cases , in particular when there was no doubt as to whether the administrative authority established the facts correctly , and the point at issue was a question of law . In its finding No . PL.ÚS CARDINAL of DATE ORG found that LAW of LAW was contrary to LAW and also to LAW . As a result , this provision ceased to be effective .", "Pursuant to ORG CARDINALq and ORG , a court examining an administrative decision can either uphold or quash it . When the decision was not taken pursuant to ORG CARDINALf or when the administrative authority did not take a new decision satisfying the plaintiff ’s claim , the court may take such evidence as it deems necessary . When the court quashes a decision , the case is sent back to the administrative authority . The latter is bound by the legal opinion expressed by the court .", "As a general rule , administrative courts acting under Part CARDINAL of LAW are not obliged to examine of their own initiative whether or not an administrative decision conforms to the law . They are rather required to review administrative decisions in the light of the plaintiff ’s arguments . In its judgment No . CARDINAL Sž CARDINAL delivered on DATE ORG held that the situation is different and that the administrative court is entitled to quash an administrative decision even in the absence of the plaintiff ’s submissions to that effect when the decision in question is absolutely void , e.g. when the administrative authority proceeded with a person who lacked standing in the case .", "In accordance with academic opinion , the effect of an administrative decision approving an agreement on restitution of property pursuant to LAW is to entitle the party concerned to exercise civil rights within the meaning of LAW ( CARDINAL ) of LAW . The proceedings leading to such a decision can not , therefore , be reopened provided that the party concerned acquired the rights in question in good faith ( see PERSON pozemkového práva , PERSON a vykonávacie predpisy , JUDr . PERSON , JUDr . PERSON and Others , ORG , DATE , p. CARDINAL ) ." ]

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[ "6-1" ]

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[ "The applicant 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 the applicant was charged with the offence of membership of ORG , a proscribed organisation in GPE .", "While the criminal proceedings against the applicant were continuing before ORG , PERSON no . DATE entered into force on DATE . Law no . DATE provides for the suspension of criminal proceedings in respect of certain offences committed before DATE , without reaching a definitive finding as to guilt .", "On DATE ORG considered that there was no evidence to show that the applicant had been a member of the illegal organisation or that she had carried out “ any activities on behalf of the illegal organisation in an active and continuous manner ” . According to ORG , the applicant 's activities “ had remained within the scope of the offence of aiding and abetting the illegal organisation ” , which was CARDINAL of the offences in respect of which Law No . DATE was applicable . ORG thus suspended the criminal proceedings against the applicant .", "In the meantime , on DATE , that is before the criminal proceedings were suspended , the applicant was dismissed from her post as a primary school teacher because ORG considered that the evidence in the possession of the prosecuting authorities showed that she was a member of the illegal organisation .", "The applicant challenged her dismissal by bringing a case against ORG before ORG on DATE .", "On DATE ORG rejected the applicant 's request for the ORG 's decision dismissing her from her post to be quashed . In its decision ORG referred to ORG above - mentioned decision of DATE , and held that the dismissal of the applicant “ whose criminal activities were deemed in the criminal proceedings to constitute the offence of aiding and abetting ” had been lawful .", "The appeal lodged by the applicant against the ORG decision was dismissed by ORG on DATE . The ORG decision was notified to the applicant on DATE .", "On various subsequent dates the applicant made job applications to the education authorities . CARDINAL of the applications she made , on DATE , was rejected by the local education authority in GPE on the basis of ORG decision of DATE .", "According to an official document dated DATE , the applicant has no criminal record .", "Law No . DATE , in so far as relevant , provides as follows :", "“ CARDINAL . In respect of offences committed before DATE which are punishable by a maximum prison sentence of DATE :", "- where no criminal investigation has been commenced or no indictment has been filed , institution of prosecution shall be suspended ;", "- where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final , adoption of a definitive finding on the merits shall be suspended .", "If the person concerned is detained on remand , he or she shall be released . Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached .", "In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached , a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed . If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached , no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated .", "... ”" ]

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[ "6-2" ]

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[ "The CARDINAL applicants PERSON , PERSON , ORG and PERSON are all NORP nationals . They were born in DATE , DATE , DATE and DATE , respectively , and now live in GPE . The first and second applicants are a couple , and the third and fourth applicants are their children . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their agent Ambassador PERSON , former Head of ORG at ORG .", "The facts of the case may be summarised as follows .", "On DATE the applicants arrived at FAC on a flight from GPE ( GPE ) . They were in possession of passports , flight tickets and tourist visas for GPE .", "On DATE they presented themselves to the airport and border police . They requested asylum , claiming that they had fled GPE because of political persecution and that in GPE they risked deportation to GPE . They further submitted that they were no longer in possession of passports .", "Noting that the applicants had no passports and had not arrived directly from the ORG where they feared persecution , the airport and border police refused them leave to enter NORP territory .", "The applicants were offered lodging in a special transit zone ( “ LOC ” ) in a locked container near the airport which was equipped with beds and where food was provided . They refused and continued to stay in the main transit zone of the airport .", "On DATE the applicants made statements to officers of ORG ( Bundesasylamt ) .", "They said that they had left GPE in DATE as the first applicant had been persecuted by ORG ( ORG ) . Since DATE they had been living in GPE with tourist visas which they renewed DATE by travelling to GPE and subsequently re - entering GPE . The first applicant had obtained refugee status from the ORG in GPE . They had not filed an asylum request in GPE as they feared that once the NORP authorities became aware of their presence they would be deported . They added that they had destroyed their passports upon their arrival at FAC in order to avoid deportation .", "DATE ORG dismissed the ORG request for asylum . It noted that the applicants had come from GPE where they were safe from persecution .", "Subsequently , at a hearing before ORG on DATE , the applicants explained that it was in fact only after that decision that they had destroyed their passports .", "Meanwhile , on DATE the Schwechat ORG ) ordered the applicants’ deportation to GPE , stipulating that if the deportation could not be effected , the applicants were to remain in the transit zone of the airport .", "Flights from GPE to GPE left DATE , on DATE .", "On CARDINAL and CARDINAL DATE the applicants’ deportation to GPE had to be postponed as they could not be found in the transit zone . Another attempt was made to deport them on DATE , but proved to no avail as the applicants did not comply with the order to board the flight and the authorities refused to employ force .", "Meanwhile ORG UNCHR in GPE was informed about the applicants’ situation . It gave a favourable opinion on the applicants’ deportation .", "In TIME of CARDINAL DATE the applicants were placed under police surveillance in order to ensure their deportation on a flight to GPE TIME . Their deportation was however postponed indefinitely after information was received from the NORP authorities that they would not accept the applicants without passports . The police surveillance was stopped at TIME that day .", "Meanwhile , the applicants’ case attracted the attention of the media , and several articles about their situation appeared in NORP newspapers .", "On DATE ORG UNCHR in GPE stated that in GPE the applicants would risk deportation to GPE . It stated in that connection that on DATE it had been informed by the first applicant for the first time that he was a member of ORG .", "On DATE the first applicant was again interviewed by an officer of ORG .", "On DATE the NORP authorities allowed the applicants to enter GPE on humanitarian grounds .", "On DATE ORG for the ORG ( ORG ) dismissed the ORG appeal against ORG decision of DATE . It noted that there was nothing to show that GPE would disregard its obligations under LAW on LAW and deport them to GPE .", "On DATE ORG rejected the ORG complaints . It noted that the ORG ’s decision was void as it was based on the DATE LAW which , in the meantime , had been replaced by DATE Asylum Act . It therefore directed that the proceedings should resume at the stage of ORG decision . However , the applicants did not pursue the proceedings any further .", "In the meantime , on DATE , the applicants lodged complaints with ORG ( Unabhängiger Verwaltungssenat ) . They complained that their stay in the transit zone and the authorities’ attempts to deport them to GPE had been unlawful as they should have been allowed to enter GPE as asylum seekers who had come from a country where they feared persecution . They further complained that their stay in the transit zone was contrary to Articles CARDINAL § § CARDINAL and CARDINAL of the Convention . They submitted that they had been left to their own devices without appropriate sleeping or sanitary facilities . Furthermore , there was no statutory right to bring proceedings by which the lawfulness of their detention could be reviewed speedily by a court and their release ordered if their detention was unlawful .", "On DATE , after a hearing on DATE , ORG ( ORG ) dismissed the complaint concerning the NORP authorities’ refusal to let the applicants enter GPE and rejected the complaint concerning their stay in the transit zone . It found that the refusal to let the applicants enter GPE and the subsequent attempts to enforce their departure had been lawful , as they did not possess valid passports and had no right to enter under the relevant provisions of LAW , since they had come from GPE where they were safe from persecution .", "The ORG further found that the stay in the transit zone had not been ordered by , and was therefore not attributable to , the NORP authorities . The applicants , who had been free to leave GPE , had remained of their own free will . It further noted that the situation in the case before it differed from the PERSON case ( PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL ) in that the applicants were free to move about the transit zone and had not been placed under surveillance . They had also been in contact with the media and a humanitarian organisation , ORG , in GPE , which provided , inter alia , legal assistance . It found that their stay in the transit zone did not amount to a deprivation of liberty .", "On DATE ORG ( Verfassungs- gerichtshof ) declined to deal with the applicants’ complaints and subsequently referred the case to ORG .", "On DATE ORG noted that the applicants’ complaints did not concern the authorities’ refusal to grant them leave to enter GPE or their attempts to deport them to GPE , but were restricted to the ORG ’s rejection of their complaint about the alleged unlawful stay in the transit zone . It confirmed the ORG ’s findings in this regard . This decision was served on the applicants’ counsel on DATE .", "Meanwhile , in DATE , the applicants had left GPE for GPE .", "Section CARDINAL(CARDINAL ) of LAW ( PERSON ) DATE stipulates that aliens who do not satisfy relevant passport or visa obligations shall be prevented ( GPE ) from entering the NORP territory . An alien shall not be prevented from entering GPE when he is entitled to do so under other legislation .", "Section PERSON ) lays down that the decision whether or not to admit an alien into NORP territory will be taken by the border police after questioning the alien and on the basis of plausible evidence submitted by the alien or other known facts .", "Section CARDINAL provides that the border police may order an alien who has been refused entry into GPE but is present on NORP territory to leave immediately . If departure is not immediately possible the officer may order the alien to stay in a designated place in the border control area until he or she leaves the territory .", "Section CARDINAL forbids the expulsion of an alien to a State where there is good reason to believe that he or she will be exposed to the risk of inhuman treatment or punishment or the death penalty or will be persecuted , within the meaning of LAW relating to LAW .", "Section CARDINAL of LAW ) DATE defines a refugee as a person who has left his or her home country because of a well - founded fear of persecution on account of his or her race , religion , nationality or adherence to a particular social group or political opinion .", "Section CARDINAL(CARDINAL ) states that asylum is not to be granted to a refugee who has already found a safe haven from persecution in another country .", "Section CARDINAL ) provides that an asylum seeker who has come directly from the ORG where he allegedly suffered persecution shall be allowed to enter GPE without any formalities .", "By virtue of section CARDINAL(CARDINAL ) , an asylum seeker who has entered GPE in accordance with section CARDINAL(CARDINAL ) ( that is to say , who has come directly from the ORG where he allegedly suffered persecution ) and who files his request for asylum within DATE , has a temporary right of residence .", "Both LAW DATE and LAW DATE have now been amended .", "ORG zum PERSON der persönlichen PERSON ) provides protection against the intentional deprivation of liberty . In particular , it provides for compensation for unlawful detention and a procedure by which the lawfulness of detention is decided by a body , ORG , within DATE after the complaint is lodged . If the detention is unlawful , an order must be made for the release of the person detained .", "However , according to ORG settled case - law ( see its judgment of CARDINAL DATE ; PERSON . [ Collection of Judgments and Decisions of ORG ] CARDINAL ) a mere order to stay in the main transit zone of an airport after leave to enter GPE has been refused does not amount to an arbitrary deprivation of liberty . The above mentioned LAW is therefore inapplicable . On the other hand , an order requiring foreigners to stay in the special transit zone at FAC may , in certain circumstances , constitute a deprivation of liberty .", "By virtue of Section CARDINALa ( CARDINAL ) of ORG have jurisdiction , inter alia , to examine complaints from persons who allege a violation of their rights as a result of the exercise of direct administrative authority and coercion ( ORG unmittelbarer verwaltungsbehördlicher Befehls- PERSON ) .", "A refusal by the border police to admit foreigners arriving at FAC into GPE is deemed to be an exercise of direct administrative authority and coercion .", "Section CARDINAL of ORG deals with the administrative authorities’ duty to give a decision . It provides that , in the absence of any contrary provision in the administrative regulations , the authorities must decide applications by parties without unnecessary delay and at DATE after the application or appeal has been lodged ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the Bakirköy District Governorship granted the applicant a licence to serve alcohol in his restaurant .", "On an unspecified date , DATE of Güngören , where the applicant ’s restaurant was located , became a separate district . On DATE , LOC Governorship revoked the applicant ’s licence on the ground that the applicant ’s restaurant was outside the designated area for restaurants serving alcohol .", "On DATE the applicant was notified of this decision and was barred from running the restaurant .", "On DATE the applicant brought an action before ORG for the annulment of LOC decision of DATE . He also requested that the decision be stayed .", "On DATE ORG rejected the applicant ’s request for a stay of proceedings . The applicant objected to this decision . On DATE ORG rejected the applicant ’s challenge .", "On DATE ORG delivered its judgment on the merits of the case . The court decided that the revocation order of LOC was in conformity with the law . The applicant appealed against this judgment to ORG , and as a preliminary step , he once again requested ORG to stay the execution of the Governorship ’s decision . On DATE ORG decided on the request for a stay and rejected it .", "On DATE ORG dismissed the applicant ’s appeal on points of law , and upheld the judgment of the first - instance court .", "The applicant requested rectification of this decision . On DATE ORG dismissed the applicant ’s request .", "On DATE the applicant was notified of ORG final decision ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant married PERSON in DATE . Their daughter PERSON was born on CARDINAL DATE . In DATE PERSON moved out of the matrimonial home together with PERSON who has been living with her mother since then .", "On DATE the applicant had his last contact with F. The mother subsequently denied the applicant any further contact .", "Three sets of court proceedings concerning the custody of PERSON , the applicant ’s right of access and the spouses’ divorce opened before ORG ( later GPE - Kreuzberg District Court ) , namely", "On DATE , in the context of proceedings before the ORG concerning custody of F. during the period of separation ( PERSON ) of the spouses , the question of the applicant ’s right of access ( ORG ) to PERSON was settled . According to the spouses’ agreement , the applicant was entitled to see his daughter once per week on a weekday and from DATE until DATE TIME DATE .", "Subsequently F. ’s mother denied the applicant any contact with PERSON and the applicant asked ORG for assistance in this matter .", "On DATE Judge S. of ORG , having heard F. and her mother , informed the applicant that contacts between him and his daughter should take place regularly DATE . He noted that PERSON was on very good terms with her father . However , further contacts would worsen the very strained relations between the parents and were presently not in the child ’s best interest . On CARDINAL DATE PERSON declared that she no longer wished to comply with the settlement of CARDINAL DATE , as she had been terrorised by the applicant .", "On DATE ORG noted that PERSON had not complied with the terms of the friendly settlement of DATE . It observed that PERSON had failed to furnish evidence for her allegations that the applicant had threatened or sexually harassed PERSON or PERSON in several letters .", "On DATE ORG decided that during the period of separation of the spouses PERSON shall have custody of F.", "On DATE ORG , having regard to the GPE statements made in court and a report of ORG , dismissed the applicant ’s appeal against this decision .", "On DATE the applicant filed a petition for divorce with ORG and requested to be granted custody of F. In the subsequent proceedings , both parties , that is , PERSON and the applicant , were assisted by counsel .", "On DATE ORG , granting the applicant ’s motion , issued an interim injunction . Judge S. , sitting alone , ordered that the applicant had a right of access to F. once a week on a DATE and that PERSON should stay TIME from DATE until DATE TIME DATE . This order replaced the regulation of the applicant ’s right of access by the friendly settlement agreement concluded on DATE . The court considered that contacts between the applicant and PERSON , as provided for in the said agreement , were in the child ’s best interest . For DATE , PERSON had , however , advanced factual or personal pretexts to prevent contacts . The court noted that it had heard the parties on the question of access on DATE .", "PERSON objected to the interim injunction .", "On DATE , at a hearing before ORG , the parties arrived at a new settlement on the applicant ’s access to F. which replaced the court order of CARDINAL DATE . According to this agreement , the applicant was entitled to spend every second DATE and certain fixed holidays with F. This arrangement was subsequently only partly observed by PERSON , and the applicant asked for the enforcement of his right of access under the terms of the settlement .", "On DATE ORG dismissed CARDINAL of the applicant ’s motions to order PERSON to pay a coercive penalty , as PERSON had not deliberately failed to comply with the terms of the settlement dated CARDINAL DATE on the relevant occasion . The applicant ’s appeal was to no avail . On CARDINAL DATE PERSON asked for the suspension of the applicant ’s access to F. Apparently no decision has been rendered upon this motion .", "On DATE ORG , following a hearing in the presence of PERSON and the applicant , adjourned the proceedings concerning the parties’ divorce and related family matters , as the parties failed to reach an agreement concerning the custody of and the access to F.", "In DATE and DATE the applicant asked for the preparation of an psychological expert opinion concerning custody of and access to F. , to which PERSON objected .", "The applicant ’s first motion dated DATE to challenge the single ORG Judge S. for bias , inter alia because the judge refused to order a psychologiacal expert opinion about the question of access , was dismissed by ORG on DATE . The applicant ’s second motion dated DATE to challenge Judge S. for similar reasons was rejected on DATE .", "On DATE ORG dismissed the applicant ’s request for an interim injunction granting him access to his child during the GPE holidays .", "On DATE ORG , following a hearing in which the parties persistently cursed at each other and at the judge , ordered the preparation of a psychological expert opinion regarding the child . The expert notably was to address the question whether the applicant ’s access to F. should be broadened in order to secure permanent contacts between them .", "The court - appointed psychological expert ORG rendered her report on DATE . According to the expert , it was in the child ’s best interest to limit contacts with the applicant to TIME every fortnight or even to exclude the applicant ’s access to F. for a year . She argued in particular that the applicant failed to realise his daughter ’s increasing objections against close physical contacts with him . In her view , the applicant was out of touch with reality and showed signs of querulance and delusion ; however , PERSON also tried to influence PERSON in her favour .", "On DATE PERSON announced that she retracted her consent to the settlement on access dated CARDINAL DATE and that she would no longer allow contacts between PERSON and the applicant , because F. no longer wished to meet the applicant .", "Meanwhile , in a letter dated DATE , Judge S. , referring to all CARDINAL sets of proceedings , informed the GPE representatives that the files were out of control and that it was intended to deal with the parties’ numerous motions soon . Judge S. also announced that the enforcement of previous agreements and decisions would be secured .", "On DATE ORG , with Judge S. sitting alone , held a further hearing on divorce , custody and related family matters . It notably heard the applicant and PERSON , assisted by their respective counsel , on the question of the applicant ’s contacts with PERSON refused to accept the court ’s proposal of a friendly settlement regulating , inter alia , the applicant ’s access to his daughter .", "On DATE the applicant lodged a motion for an interim injunction granting him access to F. on DATE every second DATE .", "Subsequently , the case , which had until then been processed by single Judge S. , was assigned to Judge H. , when PERSON fell ill and retired . H. subsequently explained that it was not necessary to render a decision upon the applicant ’s motion for an interim injunction granting access , as the case was altogether ready for decision .", "On DATE the applicant objected to the expert GPE on grounds of bias . He argued that the expert had accused him of having sexually abused F.", "On DATE ORG dismissed the applicant ’s motion objecting to the expert for bias as inadmissible . On DATE ORG dismissed the applicant ’s appeal , finding that it had been lodged out of time .", "The hearing on DATE was preceded by a questioning of the child in which F. had indicated that she did not want to meet her father . At the hearing , which was attended by the applicant , PERSON and their respective counsels , the applicant challenged Judge H. on grounds of bias . The hearing was adjourned because of this motion . The applicant withdrew his motion on DATE . His repeated further motions of CARDINAL DATE , because of which another hearing before ORG had to be adjourned , and of CARDINAL , DATE , DATE and DATE were to no avail . In its respective decisions , ORG found in particular that the delays in the proceedings had been caused by the applicant ’s various motions challenging ORG judge and the expert for bias . This had necessitated the adjournment of the proceedings before ORG until the decision of ORG .", "After ORG had fixed another date for a hearing on DATE , the applicant filed further motions for bias against Judge H. on DATE and on DATE and CARDINAL DATE . He argued , inter alia , that PERSON wanted to cover up PERSON ’s ill - treatment of her son , had refused to consult another expert and that her treatment of the case was comparable to offences committed by a former official of the GPE , from which ORG originated . On CARDINAL DATE ORG , having regard to Judge H. ’s official statement in which she had disqualified herself following the applicant ’s persistent allegations , decided that she was disqualified .", "In a hearing in camera before Judge NORP of the Berlin Tempelhof - GPE ORG on DATE , F. indicated that she no longer wanted to visit her father . Confronted with her former positive statements about her father , she replied that she did not love him anymore and that she would not care if he died . She expressed the fear that her father might commit suicide and might kill her as well . She stated that she wanted to live together with her mother and that she felt happy with her mother , her mother ’s new partner and her brothers . She emphasised that she would refuse to see her father even if the ORG ordered her to do so . CARDINAL of her lifetime had been dominated by her GPE quarrel , and she was sick of constantly having to appear in court because of this .", "NORP In letters dated CARDINAL , DATE and CARDINAL DATE the applicant challenged Judge NORP for bias , inter alia because she had refused to order another expert report , and requested to adjourn the hearing . On DATE ORG , with Judge NORP sitting alone , dismissed the applicant ’s motions for bias against her as inadmissible , arguing that they had merely been lodged to protract the proceedings .", "At the hearing on DATE , at which the applicant and PERSON were present , Judge NORP gave a copy of the minutes of F. ’s hearing on DATE to the applicant . The hearing then had to be adjourned following the applicant ’s appeal against the decision on his motion for bias . In a statement of CARDINAL DATE , Judge NORP declared that she was not biased but that she was convinced that a settlement with the applicant was impossible . The applicant then lodged CARDINAL further motions challenging Judge NORP for bias .", "On DATE ORG dismissed the applicant ’s appeal against ORG decision of DATE and his further motions challenging NORP On DATE ORG dismissed the applicant ’s appeals against the decisions of ORG DATE and CARDINAL DATE as inadmissible , as no appeal lay against these decisions . In several further submissions to ORG , the applicant again requested the court to order another expert report , arguing that his daughter had been indoctrinated by PERSON , and again challenged Judge NORP for bias .", "On DATE the Berlin GPE - ORG , with Judge NORP sitting alone , held a further hearing attended by the applicant , PERSON and their respective counsel . The court dismissed the applicant ’s CARDINAL motions challenging NORP for bias as inadmissible , as they were merely aimed at preventing a decision . It noted that the applicant , who was awarded the opportunity to lodge motions and comment on PERSON ’s motions , refused to make any statements at the hearing , but had set out his views in numerous detailed written submissions to the court . The applicant then requested to grant him custody of PERSON or at least an ample right of access .", "ORG granted the divorce and awarded PERSON custody of PERSON and her CARDINAL - brother , born in wedlock but stemming from the relationship between PERSON and her new partner . The applicant ’s access to PERSON was suspended . In reaching its decision , the court had regard to the statements made by both parties at their hearings on CARDINAL DATE and on DATE before Judge S. , as well as to the hearing of PERSON on DATE .", "As regards custody of PERSON , ORG noted that the applicant had not objected to PERSON ’s motion to be granted custody . It considered that PERSON , then aged DATE , had shown close links to her mother and her new family . There was no indication of any danger to her further development if she remained with her mother . It was , therefore , not necessary to take into account outdated expert reports or to hear witnesses .", "As to the applicant ’s right of access , the court deemed it necessary , in the interest of the child ’s well - being , to prohibit any contacts with F. It noted that the persistent quarrel between her parents constituted a heavy burden on F. The child now attempted to cope with this conflict by suppressing her memory of meetings with her father and by seeking as much distance as possible from him . The court found that it could not ignore the determined wish of the child as expressed at the hearing of CARDINAL DATE . It was therefore obliged to suspend the applicant ’s access to F. It argued that a child ’s welfare was more important than a father ’s right of access .", "The applicant ’s further CARDINAL motions challenging Judge NORP for bias were to no avail .", "On DATE the applicant lodged an appeal against ORG judgment delivered on CARDINAL DATE with ORG . His requests on DATE and CARDINAL DATE for an interim injunction ordering access were , following hearings , dismissed on CARDINAL DATE and CARDINAL DATE respectively by ORG . That court found that , given PERSON ’s express resistance against meeting the applicant and the time which had elapsed since their last contact , a decision on the applicant ’s access to F. necessitated further findings of fact , notably the report of a psychological expert .", "DATE . On DATE ORG ordered an expert report on the question if and to what extent contacts between the applicant and his daughter were in PERSON ’s best interest . It appointed as expert PERSON , a certified psychologist acting as expert for different family courts since DATE .", "On DATE ( decision served on DATE ) ORG , following an oral hearing on DATE in the presence of the applicant , his counsel , PERSON ’s counsel and the expert PERSON , dismissed the applicant ’s appeal .", "ORG notably found that it was in PERSON ’s best interest to exclude the applicant ’s right of access pursuant to Section CARDINAL § CARDINAL , second sentence , of LAW ( see paragraph CARDINAL below ) . In reaching this conclusion , the court relied on the report dated DATE , comprising CARDINAL pages , and the oral hearing on DATE of the psychological expert PERSON The expert had questioned and examined F. on CARDINAL occasions and each of her parents on CARDINAL occasions respectively . Given the refusal of both PERSON and PERSON to meet the applicant in the presence of the expert , the latter had questioned them all separately . Having regard to the findings of this expert , the court noted that PERSON , then aged twelve , had a negative attitude towards her father . The court , like the expert , considered that the negative attitude of the child towards the applicant might have partly been caused by the mother ’s influence , though not to the extent believed by the applicant . The court noted that according to the expert , the GPE ongoing quarrels had placed a great strain on the child . The court acceded to the findings of the expert that , in view of PERSON ’s intensive resistance against any contact with her father , enforcing such contacts might cause her serious psychological harm . The court further found that the expert opinion on the question whether it was in PERSON ’s best interest to have contacts with her father was exhaustive and conclusive . Accordingly , it had not been necessary to appoint a second expert or a psychiatric expert as requested by the applicant .", "ORG further explained that it did not consider it suitable to limit in time the prohibition on access , as it could not be foreseen whether , if at all , PERSON might give up her resistance . Both parents were under an obligation to contribute to a change in her attitude . The main responsibility lay with PERSON ’s mother , who would have to overcome her own negative feelings towards the applicant in order to influence PERSON and to improve her father ’s image . If the applicant respected his daughter ’s wish to keep distance for a longer period of time , there would be a possibility to resume contacts carefully at a later stage . ORG , referring to Sections CARDINAL a § CARDINAL , first sentence , and CARDINAL b § CARDINAL , first sentence , of GPE ( see paragraphs CARDINAL below ) considered that it had not been required to hear F. and her mother personally .", "In a letter to the applicant dated DATE , the presiding judge of ORG explained , inter alia , that PERSON ’s allegations that PERSON had been sexually abused by the applicant had not been addressed in the court ’s judgment as they had been irrelevant . Moreover , he informed the applicant that the court had refrained from hearing PERSON again pursuant to LAW b § CARDINAL , first sentence , of GPE . Given the lengthy and embittered dispute , the court had not considered it justifiable to subject PERSON to the strains caused by yet another hearing , as she had repeatedly expressed her will in an unequivocal manner .", "On DATE ORG dismissed the applicant ’s objection against the decision that the costs of the proceedings before ORG of CARDINAL ORG , which notably comprised the expenses of the expert PERSON , be borne by him . On DATE ORG dismissed the applicant ’s objection against the decision that CARDINAL of the costs for the expert report rendered by ORG be borne by him . Several further objections and appeals concerning the costs of the proceedings , including a motion to challenge a judge of ORG for bias , were to no avail .", "In the context of separate proceedings concerning the applicant ’s request of CARDINAL DATE for the enforcement of his right of access under the terms of the agreement of CARDINAL DATE , ORG held a hearing on DATE , with Judge S. sitting alone . Following the hearing , ORG stated that the parties had agreed that the applicant should have contact with F. on her birthday and on DATE for TIME respectively , and on DATE during DATE .", "On DATE ORG , with Judge PERSON sitting alone , granted the applicant access to PERSON for TIME on her birthday by way of an interim injunction . PERSON subsequently withdrew her appeal against this injunction .", "On DATE ORG informed the parties that the request for enforcement of access had been settled at the hearing on DATE .", "The applicant repeated requests for enforcement measures and for an amendment of the decision on access . The mother suggested to join the proceedings no . CARDINAL F CARDINAL/CARDINAL and no . CARDINAL F CARDINAL/CARDINAL . On DATE ORG informed the parties that all motions concerning access be processed in the context of the proceedings no . CARDINAL F CARDINAL/CARDINAL .", "On DATE the applicant , represented by counsel , lodged a complaint with ORG . Referring to ORG decision of DATE in the proceedings no . CARDINAL F CARDINAL/CARDINAL , he complained in his CARDINAL - page submissions that the suspension of access to his child violated his parental rights and was contrary to the child ’s well - being . He complained that the expert appointed in the appeal proceedings had been misled by PERSON and that further expertise had been necessary . He also noted that PERSON had not appeared at the court hearing . In his view , he was blamed for his lengthy struggle to secure his right of access . Subsequently , upon query , the applicant filed a further document . On DATE the applicant filed further submissions in support of his lawyer ’s observations .", "On DATE ORG refused to admit the applicant ’s constitutional complaint .", "On DATE ORG refused to admit the applicant ’s constitutional complaint concerning his request for further information about his daughter , notably her current address . The said proceedings are the subject matter of the application no . FAC before the Court . Moreover , on DATE ORG refused to admit the applicant ’s constitutional complaint concerning the rejection of his renewed request for access to F. In the course of these proceedings , the applicant met his daughter once in DATE . The latter proceedings are the subject matter of the application no . CARDINAL before the ORG .", "On DATE F. attained the age of majority . The applicant had not been granted a right of access to her until then .", "At the relevant time , i.e. before the entry into force of the amended Law on Family Matters ( Reform zum Kindschaftsrecht ) on DATE , the relevant provision of the Civil Code concerning access to a child born in wedlock was worded as follows :", "Section CARDINAL", "“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child ’s relationship with others or seriously interfere with the child ’s upbringing .", "The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under section CARDINAL § CARDINAL , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child ’s welfare . ”", "Proceedings in family matters are governed by LAW ( PERSON über die ORG der freiwilligen PERSON ) . Pursuant to Section CARDINAL a § CARDINAL of that Act , in its version in force at the relevant time , in proceedings concerning parental custody the family court shall , as a rule , hear a child ’s parents in person . Section CARDINAL a § CARDINAL provides that the family courts may dispense with such a hearing only for sound reasons .", "Pursuant to Section CARDINAL b § CARDINAL of the said LAW , in proceedings concerning parental custody the family court hears the child concerned in person if the child ’s affinities , ties or will are relevant for the decision . It also does so if it is necessary to obtain a direct impression of the child in order to establish the facts of the case . Pursuant to LAW b § CARDINAL , in proceedings concerning parental custody the family court always hears in person a child who has attained the age of CARDINAL and is not legally incapacitated . The family courts may dispense with such a hearing only for sound reasons ( Section CARDINAL b § CARDINAL ) ." ]

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[ "6", "8" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "She is employed as a cleaning lady at ORG of GPE “ NORP ” .", "On DATE she lodged a civil action with ORG asking for a sum of MONEY ( GRD ) ( i.e. MONEY ) in respect of unpaid salaries .", "On DATE her action was accepted . This decision was certified ( θεώρηση ) on DATE ( judgment no . CARDINAL/CARDINAL ) .", "On DATE the hospital lodged an appeal .", "On DATE ORG accepted the appeal and rejected the applicant ’s action as unfounded ( judgment no . CARDINAL/CARDINAL ) .", "On DATE the applicant lodged an appeal on points of law with ORG .", "On DATE ORG accepted the appeal and remitted the case to a different division of ORG ( judgment no . CARDINAL ) .", "On DATE the applicant filed an application before ORG asking for a hearing date to be set . The hearing was held on DATE .", "By judgment dated DATE ORG quashed judgment no . CARDINAL/CARDINAL of ORG and partially allowed the applicant ’s appeal ( judgment no . CARDINAL/CARDINAL ) .", "On DATE the applicant lodged an appeal on points of law .", "On DATE ORG partially accepted the appeal and remitted the case to a different division of ORG ( judgment no . CARDINAL/CARDINAL ) . This judgment was finalised on DATE . It does not transpire from the case file that these proceedings have been concluded ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP housing co - operative , located in GPE .", "On DATE ORG ordered the applicant housing co - operative to pay ORG MONEY to ORG and PERSON The applicant co - operative appealed . On DATE ORG dismissed the appeal . On DATE the applicant co - operative brought an appeal on points of law before ORG .", "By an order of CARDINAL DATE ORG refused to entertain the appeal . When doing so , the court relied on provisions of LAW as amended in DATE allowing it not to examine manifestly ill - founded appeals or appeals in cases where no serious legal issue arose , even if these appeals had been brought DATE , the date on which the amendments of DATE entered into force .", "Subsequently , on DATE , ORG examined a constitutional complaint in which the complainant ( not the applicant cooperative ) submitted that the DATE amendments to LAW providing for the possibility to leave an appeal on points of law unexamined had come into force after her appeal had been lodged with ORG . She argued that , as a result , the DATE amendments to the LAW breached the LAW insofar as it guaranteed the rule of law , which encompassed , inter alia , the principle that law should not apply retrospectively . It was also argued that these provisions breached the complainant 's right to a fair hearing in that she was deprived of her right to have an appeal on points of law examined in full by ORG .", "ORG held , in its judgment of DATE ( ORG CARDINAL/CARDINAL ) that the DATE amendments were in breach of LAW , referring to the rule of law as a fundamental constitutional principle . It further held that it was not necessary to determine whether they were compatible with LAW , guaranteeing a right to a fair hearing ( see Relevant domestic law ) .", "On DATE the applicant co - operative lodged a request for the re - opening of the proceedings before ORG , relying on this judgment of ORG . It was argued that ORG interlocutory order given in its case on DATE had been issued on the basis of the DATE amendments , subsequently declared unconstitutional by ORG . Therefore the judgment of ORG provided grounds on which , in conformity with LAW , the proceedings in which a decision based on these provisions had been given should be re - opened and the order quashed .", "On DATE ORG dismissed the request for the re - opening of the proceedings . The ORG stated that it was aware of the judgment of ORG of DATE . However , it observed that LAW provided that proceedings could only be re - opened following a judgment of ORG , if the unconstitutional provision had served as a basis for a decision on the merits . In the present case the unconstitutional provisions had served as a basis for an interlocutory order , i.e. for ORG refusal to entertain the appeal on points of law . Therefore the proceedings could not be re - opened , Article CARDINAL of the Code of Civil Procedure not providing a legal basis for doing so .", "A party to civil proceedings can lodge a cassation appeal with ORG against a final judicial decision of a second - instance court which has terminated the proceedings .", "LAW provides :", "“ The cassation appeal may be based on the following grounds :", "CARDINAL ) a breach of substantive law by its erroneous interpretation or wrongful application ,", "CARDINAL ) a breach of procedural provisions , if that shortcoming could significantly affect the outcome of the case . ”", "Pursuant to LAW , having allowed a cassation appeal , may quash the challenged judgment in its entirety or in part and remit the case for re - examination .", "On DATE a law was enacted amending LAW . It introduced , inter alia , the following provision :", "“ CARDINAL . ORG may refuse to entertain the cassation appeal , if :", "i ) there is no appearance of any significant legal issue in the case ,", "ii ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case - law ,", "iii ) that appeal is manifestly ill - founded .", "Paragraph CARDINAL shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law ( zachodzi niewaznosc postepowania ) . ”", "This provision entered into force on DATE . However , LAW provided , in so far as relevant :", "“ CARDINAL . The provisions being in force so far shall apply to the lodging and examination of appeals against judicial decisions given before DATE of entry into force of [ this ] law . ”", "A controversy arose over the latter provision , which led to ORG resolution of DATE ( no . III CZP CARDINAL/CARDINAL ) . ORG answered in the affirmative the question whether it may refuse to entertain a cassation appeal against a judicial decision given by the second instance court DATE . The court relied on the principle of the “ immediate application ” of procedural provisions , which it considered operative under NORP law since DATE . Pursuant to that principle , procedural provisions enter into force immediately and are applicable to proceedings regardless of the moment of their initiation . It found that LAW DATE provided for CARDINAL exceptions to the application of that principle . CARDINAL such exception concerned the examination of appeals against judicial decisions given before DATE . However , that provision related to the “ examination ” of an appeal whereas , pursuant to the amended Code of Civil Procedure , the court could refuse the examination of certain cassation appeals . It further noted that mere assessment of whether an appeal is manifestly ill - founded or whether a serious legal issue arises can not be regarded as an examination . Therefore , ORG considered that the exception to the principle of “ immediate application ” , in so far as it relates to the examination of appeals , does not cover cassation appeals .", "The court further pointed out that the amendments to LAW made it possible for that court to carry out properly its tasks relating to the cassation procedure , which at that time were significantly hindered by the enormous backlog of trivial and manifestly ill - founded appeals . It stated :", "“ In addition , it must be noted that the backlog in ORG leads in concrete cases to a violation of LAW ( ... ) , which , especially after the most recent judgments of ORG in cases against GPE concerning the unreasonable length of proceedings , can not be discounted . ”", "Finally , the court found the amendment at issue compatible with LAW , in particular with the principle of a CARDINAL instance judicial system , and LAW , relying in this connection on the PERSON v. GPE judgment of this Court .", "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 . ”", "At the material time , the complaint had to be lodged within DATE from the date on which the individual decision was served ( Article CARDINAL § CARDINAL of ORG ) . This time - limit was extended to DATE with effect from DATE .", "LAW provides that a civil case terminated by a final judgment on the merits can be reopened if applicable requirements set out in the Code are met .", "LAW of DATE reads :", "“ GPE shall be a democratic state ruled by law and implementing the principles of social justice . ”", "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 . Exceptions to the public nature of hearings may be made for reasons of morality , State security , public order or protection of the private life of a party , or other important private interest . Judgments shall be announced publicly . ”", "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 . Where a judgment has financial consequences not provided for in the ORG , the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned , after seeking the opinion of ORG .", "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 judicial decision , a final administrative decision or settlement of other matters was issued , shall be a basis for re - opening proceedings , or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings ” .", "Article CARDINAL of LAW provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which this judgment was given was incompatible with LAW . Such a request can be lodged with the competent court within DATE from the judgment of ORG .", "On DATE ORG ruled on the compatibility with LAW DATE amendments to LAW . ORG held that these provisions , taken together with their interpretation given by the resolution of ORG ( referred to above at CARDINAL ) were unconstitutional . This was so as the transitory provisions concerning the procedure to be followed in the examination of appeals on points of law lodged with ORG DATE , the date on which these amendments entered into force , lacked clarity . As a result , their interpretation could legitimately lead to opposite conclusions as to whether appeals lodged before DATE were to be examined under the procedural provisions in force before , or after that date . On the ordinary meaning of the text , a reasonable interpretation was that the appeals lodged before DATE should be examined under the provisions in force at the time when they were lodged with ORG . This , in the opinion of ORG , was indeed the intention of the legislator . However , the interpretation given to these provisions by ORG led to a contrary conclusion . The failure of the legislator to formulate these transitional provisions in a clear and precise manner so as to allow the appellants to know which procedure would be followed by ORG when examining their appeals was in breach of LAW which provides that the rule of law is a fundamental constitutional principle . The rule of law not only requires that legal provisions be clear and precise , but it also imposes on the state an obligation not to enact laws which arbitrarily change the procedure to be applied in the examination of a case after that case had been launched .", "On DATE the ORG gave a judgment in CARDINAL joined cases , in which the complainants had essentially submitted that Article CARDINAL of LAW was unconstitutional . The complainants relied on the fact that their cases the courts had refused to re - open civil proceedings given on the basis of a provision which had subsequently been declared unconstitutional . The courts considered that they could not re - open the proceedings , as the cases had been terminated by interlocutory decisions , not by judgments on the merits .", "ORG held that LAW was compatible with LAW . However , it criticised the legislator for the manner in which this provision had been inserted into the context of provisions concerning the re - opening of proceedings . While this provision was clearly designed to rescind decisions given on the basis of laws subsequently declared unconstitutional , it was so formulated as to allow the erroneous conclusion that such re - opening could only be effected in respect of proceedings terminated by a final decision on the merits . Such interpretation inevitably led to a conclusion that interlocutory decisions based on provisions subsequently declared unconstitutional could be left intact . This , in ORG conclusion , was manifestly unreasonable . However , there were no grounds on which to find this provision as such unconstitutional . It was not so much the provision itself which failed to meet the constitutional standards . It was rather the failure of the courts to interpret it correctly in such a way as to allow for the re - opening of all proceedings based on unconstitutional provisions , regardless of whether the final decision given in such proceedings was an interlocutory order or a judgment on the merits . The courts had at their disposal an array of such measures . It was not for ORG to indicate which measures should be applied in this respect , and in what manner .", "A case ORG CARDINAL/CARDINAL is currently pending before ORG in which that court was invited to review whether LAW is compatible with LAW . The complainant submitted that ORG interpretation of Article CARDINAL has not changed despite the suggestions contained in ORG judgment of DATE . Since it led to consistent refusals to re - open civil proceedings terminated by interlocutory decisions given on the basis of a provision subsequently found unconstitutional , the provisions of LAW have thereby been rendered ineffective ." ]

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[ "Mr PERSON , a NORP national born in DATE , lives at LOC ) .", "On DATE the investigating judge at ORG ( GPE ) began a preliminary investigation and issued a warrant for the arrest of the applicant and CARDINAL other persons suspected of having made fraudulent use of another person ’s credit card when making purchases in various shops in GPE to the value of CARDINAL NORP schillings ( ORG ) .", "On DATE the police arrested the applicant at the border between GPE and GPE as he was preparing to enter GPE .", "On CARDINAL DATE the investigating judge at ORG interviewed Mr PERSON and detained him pending trial .", "On DATE he again interviewed the applicant .", "On DATE , at the request of the public prosecutor ’s office , the investigating judge decided to discontinue the proceedings in the light of a graphologist ’s finding that it was unlikely that the signatures on the payment slips for the purchases made with the stolen credit card were in the applicant ’s hand .", "NORP The applicant was released on DATE .", "On DATE the applicant sought compensation from the ORG for the pecuniary damage sustained on account of his detention .", "On DATE ORG ( Ratskammer ) of ORG refused his compensation claim on the ground that , contrary to the requirements of section CARDINAL ( CARDINAL ) ( b ) of ORG DATE ( ORG , “ the DATE Act ” – see paragraph CARDINAL below ) , the suspicion concerning him had not been dispelled .", "On DATE the applicant appealed against that decision to ORG ( Oberlandesgericht ) .", "On DATE ORG , sitting in private , dismissed the appeal . It ruled as follows :", "“ The ORG accepts the appellant ’s submission that in its decision ORG of the Wiener Neustadt Regional Court confined itself essentially to mentioning the applicable provisions and setting out the facts and did not make use of certain concrete information apparent from the file . The appellant , who has in the meantime been convicted in GPE of handling under LAW CARDINAL ( CARDINAL ) and CARDINAL of LAW and imprisoned , is in fact suspected of having participated in obtaining goods fraudulently by using an unlawfully obtained credit card made out in the name of another person . It can not be ruled out that he signed payment slips using a card made out in the name of a woman by wearing a wig . This attempt to investigate was necessary as it had not been possible to bring the other offenders before the court below . Against the conjecture that the signatures were written by the appellant there stands only his assertion that he did not sign any payment slips and that he does not look like a girl either . In so far as he sought to have admitted as genuine proof of his innocence the expert ’s statement that the signatures on the payment slips were probably not written by the appellant , regard must be had to the scale of probability drawn up by the expert , which does not at all exclude that the appellant wrote the signatures , and it must be observed that this submission by the appellant does not refute the argument that he took part in the fraudulent acts by providing the necessary transport to the various places where the offences were committed and conveying the proceeds from them , knowing that the other persons involved were committing offences . On the contrary , the large number of fraudulent purchases made both in GPE and in GPE supports the view that the appellant was fully aware of the criminal nature of the operations and that it was in full knowledge of this that he assisted the offenders in their criminal acts by continuing to provide transport ( LAW ) .", "Contrary to what the appellant maintained , compensation under section CARDINAL ( CARDINAL ) ( b ) of ORG is payable only on condition that the innocence of the detained person can be regarded as proved ; that is to say , it must be proved that the detained person is not punishable , and can not be prosecuted , on account of the act in respect of which his detention was ordered . Where that remains only doubtful , suspicion is not dispelled and the condition on which compensation may be paid is not satisfied ( see PERSON , second ed . , E.CARDINALa and DATE , on section CARDINAL of the Compensation ( Criminal Proceedings ) Act ) . In the instant case it can not be said that suspicion has been dispelled , and the appeal , being unfounded , must therefore fail . ”", "In his pleadings of CARDINAL DATE ( see paragraph CARDINAL above ) Mr PERSON also complained of the excessive length of the detention pending trial and sought compensation for unlawful detention under section CARDINAL ( CARDINAL ) ( a ) of DATE Act ( see paragraph CARDINAL below ) .", "On DATE , in a separate decision , ORG , sitting in private as a court of first instance , dismissed the applicant ’s claim on the ground that neither his arrest nor the order for his detention pending trial or the continuation of that detention had been unlawful .", "ORG also referred to the reasoning in its other judgment of DATE ( see paragraph CARDINAL above ) .", "Article CARDINAL § CARDINAL of LAW provides :", "“ Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . ”", "The relevant provisions of the DATE Act read as follows :", "“ ( CARDINAL ) A right to compensation arises :", "( a ) where the detention of the injured party has been unlawfully ordered or extended by a national court ... ;", "( b ) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in GPE ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds , in so far as these grounds existed when he was arrested ;", "... ”", "“ ( CARDINAL ) ...", "( CARDINAL ) A court which acquits a person or otherwise frees him from prosecution ... ( section CARDINAL ( CARDINAL ) ( b ) or ( c ) ) must decide either of its own motion or at the request of the individual in question or the public prosecutor ’s office whether the conditions of compensation under section CARDINAL ( CARDINAL ) ( b ) or ( c ) , ( CARDINAL ) and ( CARDINAL ) have been satisfied or whether there is a ground for refusal under section CARDINAL ... If the investigating judge decides to discontinue the proceedings , ORG concerned shall rule .", "( CARDINAL ) Before ruling , the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ...", "( CARDINAL ) Once the judgment rendered in the criminal proceedings has become final , the decision , which need not be made public , must , as part of the proceedings provided for in paragraph CARDINAL , be served on the detained or convicted person personally and on the public prosecutor ...", "( CARDINAL ) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within DATE .", "( CARDINAL ) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision . If the court which has to rule is the court of first instance , the investigations shall be carried out by the investigating judge .", "( CARDINAL ) Once the decision has become final , it is binding on the courts in subsequent proceedings . ”", "If the courts consider that the conditions in sections CARDINAL have been satisfied , the applicant must apply to ORG ( GPE ) for his claim to be allowed . If no decision has been taken on his claim within DATE or if it has been refused in whole or in part , the claimant may bring a civil action against GPE ( sections CARDINAL and CARDINAL of the Act ) .", "As a general rule , there is no public hearing before ORG of ORG or in ORG in appeal proceedings ( Beschwerden ) against a decision of ORG . The CARDINAL courts rule after sitting in private and after hearing the representative of the public prosecutor ’s office and the principal public prosecutor ’s office respectively ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Code of Criminal Procedure – GPE ) .", "Article CARDINAL of LAW provides :", "“ The courts shall have discretion to decide whether a party or his duly appointed representative may , in cases other than those expressly provided for in LAW , be given leave to inspect documents in the file or whether copies may be given to them , provided that the persons concerned can convincingly show that they need such copies in order to be able to claim compensation or to support an application for a retrial or for some other reason . ”", "It is the practice of the registries of ORG to make their respective court ’s judgments available on request . The courts also publish a selection of their decisions DATE . Since an amendment to LAW in DATE , the judgments of ORG ( Oberster Gerichtshof ) have likewise been available to the public on request . ORG also publishes a selection of its judgments DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national born in DATE who lives in GPE ( GPE ) .", "The applicant was married from DATE until DATE , when he divorced . On DATE the applicant applied for custody of CARDINAL of his CARDINAL children , born in DATE and DATE , maintaining that since DATE he and his wife had not lived together and that he cared for the CARDINAL minor children himself .", "In a judgment of DATE the ORG awarded the applicant custody of the CARDINAL children .", "On DATE ORG ( Česká správa sociálního zabezpečení ) dismissed an application by the applicant for a retirement pension as he had not attained the pensionable age required by section CARDINAL of LAW , which was , in his case , DATE and DATE .", "The applicant challenged the administrative decision before the ORG Králové ORG ( PERSON ) , arguing that given the fact that he had cared for CARDINAL children , he was entitled to retire at DATE CARDINAL and had therefore reached the pensionable age .", "On DATE ORG stayed the proceedings in the applicant 's case pending the outcome of the proceedings before ORG ( Ústavní soud ) , which was called upon to review the constitutionality of section CARDINAL of LAW in another case ( no . Pl . ÚS CARDINAL/CARDINAL ) brought before it by ORG ( GPE správní soud ) . The ORG Králové ORG joined the proceedings in that case as an intervening party .", "In judgment no . Pl . ÚS CARDINAL of DATE ORG dismissed ORG petition to repeal section CARDINAL of LAW , finding that it was not discriminatory and was therefore compatible with LAW , in conjunction with LAW , of LAW .", "On DATE ORG dismissed the applicant 's action , referring to ORG judgment no . PERSON . ÚS CARDINAL/CARDINAL .", "By a judgment of DATE ORG dismissed a cassation appeal by the applicant , relying on the aforesaid judgment of ORG .", "Subsequently , the applicant lodged a constitutional appeal in which he alleged , inter alia , a violation of LAW No . CARDINAL .", "On DATE ORG rejected the constitutional appeal as manifestly ill - founded , emphasising , in particular , the discretion afforded to the legislature to implement preferential treatment , the objective and reasonable aim pursued by this preferential treatment of women and the relationship of proportionality between the means employed and the aim pursued .", "Article CARDINAL provides that all people are free with equal dignity and equal rights . Their fundamental rights and freedoms are inherent , inalienable , imprescriptible , and not subject to repeal .", "Under LAW everyone is guaranteed the enjoyment of his or her fundamental rights and basic freedoms without regard to gender , race , colour of skin , language , faith and religion , political or other conviction , national or social origin , membership of a national or ethnic minority , property , birth , or other status .", "DATE provides that citizens have the right to adequate material security in old age and during periods of incapacity to work , as well as in the case of the loss of their household provider .", "Differentiated age limits for men and women for entitlement to ORG retirement pensions were first introduced by LAW ( no . CARDINAL/CARDINAL ) , which became effective on DATE . In general , the pensionable age for men was set at DATE , while for women it was set at DATE .", "LAW ( no . PERSON ) , effective from DATE , specified differentials in female pensionable age based on the number of children women raised . The explanatory report on the bill noted the following :", "“ This differentiated age limit for acquiring the right to retire reflects the different situation in the lives of mothers who , when they took care of children , also carried out duties in the family in addition to their employment duties . ”", "The State Pension Insurance Act ( no . CARDINAL ) , effective since DATE , provides for the basic ORG pension insurance coverage , laying down the conditions for eligibility for pensions , including retirement pensions , and the methods for calculating and paying out pensions . The pension scheme works on the pay - as - you - earn principle , whereby employees pay contributions from their income , which serve the purpose of financing pensions for DATE 's pensioners from the national budget . Male and female earners are obliged to pay the same social - security contributions in accordance with their status as employed earners or self - employed earners .", "At the relevant time , section CARDINAL ) of ORG provided as follows :", "“ ( CARDINAL ) The pensionable age is", "( a ) for men , DATE ,", "( b ) for women :", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised one child , or", "DATE ,", "if the insured persons had attained that age by DATE . ”", "Section CARDINAL(CARDINAL ) provided that for insured persons who reached the abovementioned age limits DATE and DATE the pensionable age was to be gradually raised by DATE for men and DATE for women for DATE , even incomplete , DATE and the date of reaching the above - mentioned age limits .", "Section CARDINAL ) provided at the relevant time :", "“ ( CARDINAL ) The requirement for a woman to raise children in order to become entitled to an [ earlier ] ORG retirement pension has been satisfied if the woman personally takes care , or has taken care , of children for DATE before the children reach the age of majority . However , if a woman starts to raise a child after the child has reached DATE , the requirement of raising children has been met if the woman personally takes care , or has taken care , of the child for DATE before the child reaches the age of majority ; however , the foregoing shall not apply if the woman stopped taking care of the child before the child reached the age of majority . ”", "According to the ORG 's submissions , women are called upon to prove that they have raised children for the statutory period by completing a statutory declaration appended to their application for the retirement pension .", "Owing to complex demographic changes , the ORG pensionable age for all persons has thus been gradually rising . Since DATE the ORG have made efforts to push through CARDINAL amendments of ORG envisaging a gradual equalisation of men 's and women 's retirement age regardless of the number of children raised . However , owing to difficult political negotiations with certain political parties and trade unions , the only possible solution was to reach a compromise .", "As a result , the amended Act no . CARDINAL , effective from DATE , provides in section CARDINAL as follows :", "“ ( CARDINAL ) The pensionable age is", "( a ) for men , DATE ,", "( b ) for women :", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised one child , or", "DATE ,", "in the case of insured persons born before DATE .", "( CARDINAL ) For insured persons born after DATE and before DATE the pensionable age is determined according to the table annexed to this LAW , which calculates the increased pensionable ages by adding extra DATE .", "( CARDINAL ) For insured persons born after DATE the pensionable age is", "( a ) for men , DATE ,", "( b ) for women :", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised CARDINAL children ,", "DATE provided they have raised CARDINAL children , or", "DATE . ”", "By this judgment , the Plenary of ORG rejected ORG petition for the repeal of section CARDINAL of LAW . It held that a particular legal framework which gave an advantage to CARDINAL group or category of persons compared to another could not in itself be said to violate the principle of equality , and that the legislature had discretion to implement preferential treatment . The approach at stake was based on objective and reasonable grounds and pursued a legitimate aim . The court came to the conclusion that the proposed repeal would be contrary to the principles of legal certainty and minimal restrictions on human rights as women would lose preferential treatment whereas men would not receive the same benefits . Therefore , the solution to the unequal treatment of men and women required a complex and prudent adjustment of the whole pension scheme .", "In its observations to ORG submitted that among ORG Member States a similar provision was effective for a temporary period only in GPE and to a limited extent in GPE ." ]

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[ "14", "P1" ]

[ "P1-1" ]

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[ "The first applicant , a limited liability company , was incorporated on DATE by a decision of the ORG of GPE , GPE . The second applicant was born in DATE and lives in GPE .", "NORP In DATE ORG and the second applicant founded a limited liability company called ORG , the applicant company , in GPE . The second applicant was appointed general manager of that company .", "Amat - G imported fish products from NORP countries to GPE . In DATE , the company paid PERCENT CARDINAL,CARDINAL,CARDINAL United States dollars ( ORG ) ( MONEY ( ORG ) ) to the ORG budget in taxes and was considered by ORG to be a “ large tax payer ” .", "In DATE - CARDINAL ORG supplied ORG with various types of fish products at different prices .", "NORP However , ORG paid only part of the amount due to ORG", "On DATE the applicants brought civil proceedings against ORG in the NORP ORG for breach of contract and consequential damage , claiming a total of CARDINAL NORP laris ( GEL ) ( EUR CARDINAL,CARDINAL ) .", "In a judgment of DATE , ORG of ORG partly allowed the action of the applicant company , ordering ORG to pay the company compensation of GEL MONEY ( EUR CARDINAL ) .", "The judgment was never challenged and became binding on DATE .", "On DATE the applicants appealed to the execution department of ORG , requesting the immediate enforcement of the judgment .", "On DATE the enforcement officer of the execution department ordered ORG to pay the applicant company , voluntarily , within DATE .", "Upon the expiry of that period , the enforcement officer initiated the forcible execution procedure against ORG . He sent the centre of expertise of ORG a list of non - military buildings that could be put up for sale by tender in order to discharge the debt . However , that was the only step taken and the judgment of DATE remained unexecuted .", "On DATE ORG appealed to ORG , seeking a stay of execution of the judgment of DATE , in accordance with the provisions of LAW . However , ORG dismissed the ministry 's request on DATE , concluding that “ postponement of the enforcement would negatively affect the applicant company 's interests and violate the principle of an equitable and adversarial hearing ” . The ministry was consequently obliged to enforce the judgment without delay , yet it still failed to pay the debt .", "During the same period , ORG signed a contract with ORG on DATE for the lease of a ship at a DATE rate of USD CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) .", "On DATE ORG contacted ORG , explaining that the money owed to it by the ministry was the only means which the applicant company had to pay for the lease of the ship . The applicant company waited DATE in vain to obtain payment of the debt from ORG . Meanwhile , the bill for the lease of the ship had risen to USD CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) . ORG also claimed that it had lost CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) in business profits as a result of the ministry 's failure to pay the debt on time . In addition , the applicant company faced a tax bill of GEL CARDINAL ( EUR CARDINAL ) .", "For these reasons , in DATE ORG brought an action before ORG of ORG against ORG , ORG and ORG , in order to hold them collectively responsible for the harm caused by the non - execution of the judgment of DATE , in accordance with LAW of LAW . The company claimed damages of ORG CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) and GEL CARDINAL ( EUR CARDINAL ) .", "ORG dismissed the claim on DATE on the basis of the provisions of LAW .", "On DATE ORG of GPE dismissed the applicant company 's appeal against ORG decision of DATE .", "The judgment debt of DATE has still not been paid , CARDINAL DATE .", "Article QUANTITY § CARDINAL and CARDINAL ( “ Stay of execution or order for partial execution of a judicial decision ” ) provides as follows :", "“ CARDINAL . A court of law , after giving a decision , may order a stay of its execution or its partial execution at the parties ' request , taking into account their financial situation and other circumstances ...", "...", "NORP The stay of execution or order for partial execution ... may be challenged in a court of law ... ”", "NORP The relevant provisions of LAW are as follows :", "“ Damage shall be compensated not only in respect of actual financial loss , but also in respect of loss of income . Loss of income represents the amount which could have been obtained had the contractual obligations been properly fulfilled . ”", "“ Compensation shall be paid only when the damage could have been foreseen by the party in default and when there exists a causal link between its harmful action and the outcome in issue . ”", "“ The non - execution of a binding judgment or other judicial decision , or the obstruction of its execution by the ORG , government or local - government officials or by executives of a corporation or other organisation [ shall be punished ] ... ”", "The relevant provisions of LAW are as follows :", "“ Enforcement officers at executive bureaux [ of ORG ] shall be responsible for the execution of the decisions provided for hereunder . ”", "“ Requests by enforcement officers in the course of their duties shall be equally binding on any natural or legal person , irrespective of their hierarchical or juridical and structural status .", "Enforcement officers shall take all lawful measures available in order to secure the speedy and effective enforcement of decisions , to explain to parties their rights and responsibilities , and to assist in the protection of their rights and legal interests . ”", "“ ... DATE after the proposal to comply voluntarily with a judicial decision obliging budget - funded organisations to disburse money , forcible measures may be undertaken against them ... ”", "By adopting this ordinance , the government introduced a mechanism for the staggered payment of outstanding debts . Under paragraph CARDINAL , ORG was ordered to give priority to the enforcement of court decisions concerning : ( i ) the payment of compensation for damage caused by injury or death ; ( ii ) the payment of not DATE salary to workers ; and ( iii ) the payment of compensation to rehabilitated people . At the same time , ORG was instructed to ensure the proportionate payment of other creditors , but only after the enforcement of the above - mentioned decisions .", "Under paragraph CARDINAL of the ordinance , the debtor budget - funded organisations and institutions , in agreement with ORG , have either to secure friendly settlements with their creditors , or to stagger , in accordance with NORP legislation , the enforcement of judgments over a period of time , since , due to the scarcity of funds , the simultaneous payment of judgment debts is not feasible .", "The relevant provisions of the PERSON on the structure , authority and functioning of the NORP government are as follows :", "“ The government of GPE ( hereinafter ' the government ' ) , shall exercise executive power ... in accordance with the laws of the country . ”", "“ The government shall adopt decrees and ordinances under and for the implementation of the laws of GPE and presidential normative acts .", "A governmental decree is a normative act . The procedures for its preparation , adoption , issue and entry into force are defined by the LAW on normative acts . ”", "Pursuant to sections ORG ) and CARDINAL ) , as amended on DATE , while a legal act can be either “ normative ” or “ individual ” , a governmental ordinance ( mtavrobis gankarguleba ) is an “ individual ” legal act . A “ normative ” act prescribes a general rule of conduct for permanent or temporary and recurrent applications ( section CARDINAL(CARDINAL ) ) . Pursuant to section CARDINAL ) , an individual legal act is valid for CARDINAL specific purpose and must conform to a normative act . The individual legal act can only be issued on the grounds envisaged by a normative act and within the limits prescribed by the latter . Its scope and force are comparable to an administrative directive .", "According to section CARDINAL , as amended on DATE and DATE , the legislative acts of GPE are as follows : the LAW of GPE , the constitutional law , the organic law , statutes , rules of parliament and presidential decrees . CARDINAL categories of legal act constitute NORP secondary legislation : decrees ( dadgenileba ) and orders ( brzaneba , brzanebuleba ) issued by various authorities . Governmental ordinances are thereby excluded .", "Under section CARDINAL - CARDINAL , incorporated into the PERSON on normative acts on DATE , decrees are the only normative acts of the government of GPE . They are adopted under LAW , statutes or normative acts of the President of GPE , for the purpose of implementing legislation .", "“ ... [ In a limited liability company ] ... directors represent the company in its relations with third parties ... ”" ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON GPE , a lawyer practising in Gdańsk . 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 .", "On DATE the applicant was arrested by the police and on DATE he was charged with homicide . On DATE ORG ( Sąd Rejonowy ) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question , the grave nature of that offence and the need to obtain and secure evidence . Furthermore , ORG considered that there was a risk that the applicant could induce witnesses to give false testimonies . That decision was upheld on appeal on DATE .", "On DATE ORG ( PERSON ) prolonged the applicant ’s detention until DATE . It invoked the same grounds as originally given for his detention . In addition , ORG referred to the necessity to hear witnesses and obtain various expert opinions in the investigation .", "On DATE ORG ( Sąd Apelacyjny ) ordered that the applicant be kept in custody until DATE . It relied on the reasonable suspicion that the applicant had committed the offence in question and the need to take further evidence .", "On DATE the applicant was indicted on the charge of homicide before the ORG . The bill of indictment comprised several charges of homicide brought against CARDINAL accused .", "On DATE the ORG ordered that the applicant be held in custody until the first - instance judgment had been given , but not longer than DATE . It relied on the grounds previously given for the applicant ’s detention and added that , given the severity of the anticipated sentence , that measure was also justified by the need to secure the proper course of the trial . That decision was upheld on appeal on DATE .", "On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The applicant and the prosecutor appealed .", "On DATE ORG ordered that the applicant ’s detention be continued pending his appeal against the conviction until DATE . It considered that the severity of the imposed sentence fully justified the continuation of that measure .", "On DATE ORG quashed the first - instance judgment and remitted the case .", "On DATE ORG prolonged the applicant ’s detention until DATE . It relied on the reasonable suspicion that the applicant had committed the offence in question and the severity of the anticipated penalty . That decision was upheld on appeal on DATE .", "On DATE ORG ordered that the applicant be kept in custody until DATE . It reiterated the grounds given for its earlier decision of CARDINAL DATE .", "On DATE ORG ordered further prolongation of the applicant ’s detention until DATE .", "ORG opened the retrial on DATE . On the same date it prolonged the applicant ’s detention until DATE . On DATE it ordered that the applicant be held in custody until DATE .", "On DATE ORG prolonged the applicant ’s detention until DATE . It reiterated the grounds given previously for his detention . It also observed that there was a risk of pressure being brought to bear on witnesses if the applicant was released . That decision was upheld on appeal on DATE .", "On DATE ORG ordered that the applicant be held in custody until DATE , considering that it was the only measure capable of securing the proper conduct of the trial . On DATE that decision was upheld on appeal . The applicant ’s detention was subsequently prolonged on an unspecified later date .", "Since the beginning of the proceedings the applicant had made numerous , unsuccessful applications for release . He appealed , likewise unsuccessfully , against the refusals to release him and the decisions prolonging his detention .", "On DATE the ORG convicted the applicant of homicide and sentenced him to DATE imprisonment . Following the applicant ’s appeal , the conviction was upheld by ORG on DATE . On DATE ORG dismissed the applicant ’s cassation appeal against the judgment of ORG ." ]

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[ "The applicant was born in DATE and lives in GPE . He worked as an official for the NORP customs office .", "NORP Apparently in DATE , suspicions of smuggling , bribery and abuse of authority arose against the applicant and CARDINAL other person , PERSON On DATE ORG ( Ratskammer ) of ORG authorized the applicant ’s telephones to be intercepted and the data on and content of the calls to be recorded .", "On DATE the investigating judge at ORG decided to open preliminary investigations on suspicion of abuse of authority ( PERSON ) and a number of offences under LAW against the applicant and , apparently , also against his co - accused . On DATE ORG of the Linz ORG again authorized an interception of the applicant ’s telephone lines .", "On DATE , ORG introduced a bill of indictment against the applicant ’s co - accused PERSON On an unknown date , the proceedings against the applicant were separated from the ones against PERSON The applicant ’s case was transferred to ORG .", "On DATE the investigating judge at ORG extended the preliminary investigations against the applicant to include suspicions of aggravated tax evasion and a number of further offences under LAW . On DATE the investigating judge ordered ORG for GPE ( PERSON ) to conduct investigations in respect of these offences . It appears that ORG for GPE ( PERSON ) was also involved in these investigations .", "On DATE the investigating judge at ORG issued decisions to inspect the applicant ’s bank accounts in GPE . By letters rogatory , the judge also requested to inspect bank accounts in GPE .", "On an unknown date , a search had been carried out at the applicant ’s work place , and on DATE ORG decided to seize the evidence discovered during that search .", "On DATE the applicant was suspended from his office .", "From DATE to DATE the applicant was in pre - trial detention as he allegedly tried to influence witnesses . On DATE and DATE , further decisions to inspect bank accounts were taken . On DATE the investigating judge extended the preliminary investigations against the applicant to include the suspicion of inciting a witness to give false testimony .", "On CARDINAL DATE an expert was appointed to give an opinion about the money flows on the applicant ’s accounts . The expert asked twice for an extension of the deadline for submission of the opinion , and the extensions were granted . The court urged the expert CARDINAL times for delivery of the opinion ( on DATE , CARDINAL DATE and DATE ) . The opinion was eventually delivered on DATE .", "A questioning of the applicant by the investigating judge scheduled for CARDINAL DATE had to be postponed to DATE as the applicant , despite having received the expert ’s opinion at some time in DATE , had requested an adjournment on DATE .", "A report drawn up by ORG for GPE reached the court on DATE .", "On DATE the investigating judge urged ORG for GPE to submit its final report on the case . On DATE the file including the final report was submitted to ORG .", "On DATE the public prosecutor issued the bill of indictment , charging the applicant with abuse of authority , accepting bribes ( PERSON ) , smuggling , interference with the tobacco monopoly , having received goods for which no import duties had been paid ( PERSON ) , breaking of official seals ( GPE der GPE ) and infliction of bodily harm , all in conjunction with LAW , a provision which provides for higher penalties when offences have been committed by a civil servant abusing this position .", "The applicant lodged objections against the bill of indictment on DATE . The objections were rejected on an unknown date .", "ORG amended the bill of indictment on DATE . ORG ( PERSON ) confirmed the bill of indictment on DATE .", "The case was tried before ORG sitting as a panel of CARDINAL professional and CARDINAL lay judges ( PERSON ) . Hearings were held on DATE , CARDINAL , DATE and DATE , DATE , DATE and DATE , CARDINAL DATE , DATE and CARDINAL DATE . The court heard the applicant , an expert on accountancy , and a number of witnesses , namely colleagues of the applicant .", "At the hearing on DATE , the hearing was adjourned for an indefinite period in order to review the summonses of the witnesses living abroad . The summons that had been issued to those witnesses for the hearing on DATE , had been sent to ORG on DATE , and returned to the court on DATE , as the ORG could not forward them to the respective authorities without a certified translation . The reply from the ORG had been put into the file without having been shown to the presiding judge , who had assumed that the summonses had been forwarded . Only in the preparation of the hearing did the judge discover the error . Subsequently , the judge addressed a new request , via ORG , to the NORP and NORP authorities requesting them to summon the witnesses concerned . On DATE the judge scheduled a hearing for DATE , which was cancelled because none of the witnesses had appeared : It follows from the file that in some cases the NORP and NORP authorities had , despite their investigations , not been able to establish their addresses . In the other cases the authorities had not provided any reply despite repeated requests from ORG .", "At the hearing on DATE the applicant ’s counsel lodged objections to the expert ’s opinion being read out . The opinion was discussed at the hearing of DATE , and ORG moved that the expert ’s opinion be supplemented . Further decisions to inspect savings and bank accounts were issued on DATE , and the court received the supplementary opinion of the expert on DATE .", "The statements of the witnesses , whom the court had not been able to summon ( see paragraph CARDINAL above ) , were read out in the trial during the hearing on DATE . Those statements had been made by the witnesses during the pre - trial investigations in the presence of the defence counsel . During the trial , the defence counsel objected to having those statements read out .", "By judgment of CARDINAL DATE ORG found the applicant guilty of abuse of authority and accepting bribes . The court relied on the NORP statements . In the judgment it gave reasons why it found these statement which had been read out credible and noted that they had been partly corroborated by the statements of the witnesses heard . Moreover , it had regard to certain pieces of documentary evidence . The applicant , who was acquitted of all the other charges , including some charges of accepting bribes , was sentenced to CARDINAL months’ imprisonment suspended for a DATE probationary period . When fixing the sentence , the court noted that the law provided for a prison term DATE . It went on to say :", "“ In fixing the sentence , the long period over which the offences were committed and the repetition of the offences were considered as aggravating circumstances . The fact that the offences were committed quite some time ago , that the accused has shown proof of good conduct in the meantime and that he previously led a lawabiding life were seen as mitigating factors ... as was the fact that the proceedings lasted a disproportionately long time , through no fault of the accused or his defence counsel .", "Given the above - mentioned mitigating and aggravating factors , a sentence of CARDINAL months’ imprisonment would appear to be proportionate to the nature and seriousness of the offence . The sentence is CARDINAL of the maximum DATE sentence ; however , in view of the aggravating circumstances , the court considered that a sentence in excess of DATE should be imposed . “", "The applicant lodged a plea of nullity and an appeal against the sentence and asked for a hearing to be held . ORG lodged an appeal against the sentence .", "On DATE ORG rejected the applicant ’s plea of nullity pursuant to LAW , without having held a hearing . It found that the conditions laid down in Article CARDINAL ) subparagraph ( CARDINAL ) of LAW for reading out the statements of the witnesses living abroad had been met , as it had not been possible to summon these witnesses and the statements had been made in an adversarial manner at the pre - trial stage . Moreover , ORG noted that the applicant ’s further submissions amounted to an inadmissible attempt to challenge the first instance court ’s assessment of evidence . The case was transferred to ORG to decide on the appeals .", "By judgment of CARDINAL DATE ORG , after having held a hearing in presence of the applicant and his counsel , dismissed the applicant ’s appeal and partly granted ORG appeal , sentencing the applicant to CARDINAL months’ imprisonment of which DATE were suspended for a DATE probationary period . Its reasoning reads as follows :", "“ On the basis of the comprehensive sentencing guidelines the decision by the panel of judges ( ORG ) to impose a term of CARDINAL of the possible sentence , within the range of DATE , takes into account above all the numerous and significant mitigating factors . There is therefore no scope for further reduction ; by the same token , however , the sentence should not be increased .", "Nevertheless , the prosecuting authorities rightly point out that there are no grounds for suspending the sentence in full , not least on account of the nature of the offences , which also constitute a serious breach of official duty . Contrary to the view of the firstinstance court , it is therefore deemed necessary , if only on general crime prevention grounds ... for a portion of the sentence to be served in prison ... ”", "The judgment was served on the applicant ’s counsel on DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "ORG Mr PERSON , an NORP national , resides at PERSON in GPE .", "ORG In TIME CARDINAL to DATE a dispute broke out between him and the woman he lived with , PERSON She left the house and took refuge at her mother ’s home .", "The following morning she consulted a doctor . He sent her DATE to the PERSON hospital then transmitted to that establishment a certificate dated DATE attesting that she was suffering from multiple bruising and headaches . A report drawn up by the hospital , dated DATE , stated that she claimed to have been struck with a belt and that she had several bruises on her body and one on her head .", "ORG In TIME of CARDINAL July PERSON reported the incident to the Brand - Laaben police ( ORG ) . She alleged that the applicant had threatened to use violence on her if she did not get out immediately . As she had refused to obey , he had hit her with a belt on her back , on her arms and on her legs . Seeing him seize a rifle , she had tried to reason with him and then taken advantage of a moment of calm to escape .", "ORG The police officer who had taken down this statement , Officer PERSON , informed the public prosecutor ’s office of PERSON by telephone TIME ; he was instructed by that office to file a report ( anzeigen ) concerning PERSON , but not to arrest him .", "ORG On TIME CARDINAL July PERSON went back to the Brand - Laaben police station to inform the relevant officers that she and the applicant had been reconciled and that she had returned to live with him on DATE . She expressed her wish to withdraw her complaint .", "ORG Questioned at the police station in TIME , the applicant denied that he had ill - treated PERSON or threatened her with a rifle . She had , he claimed , only a scratch on her back ; in addition , she had explained to him that she had lodged a complaint because she had been furious with him .", "ORG On DATE the Brand - Laaben police sent a report on PERSON to ORG . They substantially repeated the allegations made by PERSON and produced the medical certificate of DATE , the hospital report of DATE and the records of the statements of the applicant and his woman friend , of CARDINAL and DATE ( see paragraphs CARDINAL and CARDINAL above ) .", "ORG On DATE the PERSON public prosecutor ’s office committed the applicant for trial before ORG ( GPE ) of that town on charges of intimidation ( GPE , Article CARDINAL of LAW ) and causing actual bodily harm ( GPE , Article CARDINAL ) . At the hearing on DATE Mr PERSON protested his innocence ; according to him , PERSON had hurt herself in TIME CARDINAL to DATE when she struck the end of the bed . However , he admitted having attacked her and having pushed her away from him .", "ORG When questioned by the court , PERSON availed herself of her right to refuse to give evidence ( see paragraph CARDINAL below ) . Subsequently Officer PERSON testified ; he recounted the statements that she had made before him on DATE and told the court that she had appeared to him to have been scared . She had shown to him the bruises on her arm and the bandage which covered a part of her back . No further applications being made by the parties , the judge ordered the report of DATE , the interview record of DATE ( see paragraphs CARDINAL and CARDINAL above ) and an extract from Mr PERSON ’s criminal record to be read out .", "ORG On DATE the court convicted PERSON of intimidation and causing actual bodily harm and sentenced him to a fine of QUANTITY per day for DATE . On the basis of the statements made at the hearing by the accused and by Officer PERSON , the police investigation and the other evidence before it , the court found the facts to be established as described by PERSON on DATE . According to the judgment , they were corroborated by the doctor ’s diagnosis . Moreover the evidence revealed PERSON irascible and unpredictable personality and thus made the version given by PERSON plausible . The court did not find credible the accused ’s claims that she had deliberately falsely accused him .", "ORG The applicant appealed . He complained inter alia that the first - instance court had had the record of PERSON statements ( see paragraphs CARDINAL above ) read out at the hearing , without having asked him to comment on this document or having questioned him or PERSON He also asked the appeal court to order an expert medical opinion and to effect a search of the LOC , as , he contended , the first - instance court ought to have done . In his view , the fact that PERSON had withdrawn her complaint had deprived the prosecution brought against him of its legal basis .", "ORG On DATE ORG ( Oberlandesgericht ) of GPE upheld the contested judgment . It ruled inter alia that , according to well - established case - law , Article CARDINAL par . CARDINAL of LAW ( see paragraph CARDINAL below ) required the court before which the proceedings were pending to have the statements made outside court by witnesses who had refused to appear in court read out at the hearing , when such statements related to important points . ORG also held that PERSON had failed to give sufficient reasons for his request for an expert opinion , since he had provided no evidence casting doubt on the cause of the victim ’s injuries .", "ORG Under LAW . CARDINAL , sub - paragraph CARDINAL , of LAW , the members of the accused ’s family as referred to in LAW are exempted from giving evidence ; they include cohabitees .", "Paragraphs CARDINAL and CARDINAL of Article CARDINAL of the Code of Criminal Procedure are worded as follows :", "\" CARDINAL . The records of on - the - spot inspections and police reports , as well as the accused ’s criminal record and any other material documents or written evidence , shall be read out at the hearing , unless both parties agree to dispense with this proceeding .", "After each such document has been read out , the accused shall be asked if he wishes to make any comments thereon . \"" ]

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[ "6" ]

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

[ "6-3-d" ]

[ "The applicants live in the town of GPE of GPE .", "In DATE the applicants took part in the emergency operation at the GPE nuclear plant . As a result they suffered from extensive exposure to radioactive emissions . The applicants underwent medical examinations which established the link between their poor health and their involvement in the GPE events . Each applicant was consequently granted status of a disabled person and awarded a DATE pension and a special “ food allowance ” from the ORG , to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ) .", "At a certain moment in DATE the social security authorities ceased to increase regularly the amounts of the pensions and “ food allowances ” due to the applicants in connection with their disabilities . Instead , they started to receive their pensions in a fixed amount ( MONEY ( RUR ) per person ) , which was less than they expected . Presuming that that practice was illegal , the applicants brought proceedings against the regional social security office ( “ the defendant ” ) claiming the increase of the pensions and the “ food allowances ” in line with the increase of the minimum subsistence amount during the relevant period .", "On DATE ORG of GPE ( “ the Town Court ” ) rendered a judgment ordering the increase of the pension and the “ food allowance ” due to PERSON , CARDINAL of the applicants . In re - calculating the amounts to be paid the court applied the multiplier of CARDINAL reflecting the increase of the minimal subsistence amount in GPE and based on the data provided by the regional committee on statistics . As a result , the amounts to be received by PERSON PERSON on the DATE basis from the social security office increased to ORG CARDINAL,CARDINAL : CARDINAL on account of the disability pension plus RUR CARDINAL on account of the “ food allowance ” . The court ordered the defendant to pay the applicant the recalculated amounts as from DATE , less the sums already paid .", "NORP On DATE ORG rendered a similar judgment ordering the increase of the pensions and “ food allowances ” in respect of other applicants .", "The defendant appealed against the judgments of CARDINAL and DATE challenging , among other things , the multiplier of CARDINAL applied by the first - instance court . They also claimed that the law only provided for the increase of the disability pension in line with the cost of living , but not the “ food allowance ” .", "On DATE ORG ( “ the Regional Court ” ) upheld the judgments of CARDINAL and DATE in full , dismissing the arguments of the defendant . The enforcement proceedings were opened .", "On DATE the President of ORG wrote a letter to ORG Rostov Region requesting statistical information about the cost of living index in GPE at the relevant period of time .", "On DATE , upon the request of the defendant , ORG rectified its own judgment of DATE as regards Mr PERSON , one of the applicants . The court held that since Mr PERSON belonged to the “ third category of disability ” ( the mildest form of disability , according to the NORP classification ) , the amount of his DATE pensions for DATE should be RUR CARDINAL . The court held that in DATE the applicant 's pension should amount to ORG MONEY per month .", "On DATE the defendant appealed to ORG by way of supervisory review seeking to quash the judgments of CARDINAL and DATE , as upheld on CARDINAL Aril DATE .", "On DATE ORG replied to the letter of the President of ORG of DATE . According to the ORG , the cost of living index in GPE was CARDINAL for DATE and CARDINAL for DATE .", "On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the ORG of ORG ( “ the ORG ” ) .", "On DATE the defendant complained to the President of ORG about the judgments of CARDINAL and DATE , as upheld on appeal , and the judge rapporteur 's decision of DATE rejecting their previous application for supervisory review . They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal .", "The defendant argued , in particular , that the multiplier CARDINAL applied by the courts at CARDINAL instances was inappropriate , since it only reflected the growth of the cost of living in CARDINAL of the towns of GPE . The defendant insisted that the right multiplier , reflecting situation in the whole GPE , was CARDINAL . Furthermore , the statistical information referred to by the courts had not been properly examined at the hearing . They also indicated that the law did not provide for a recalculation of the amount of the “ food allowance ” .", "On DATE the judge rapporteur of ORG requested CARDINAL case files ( concerning the judgments of CARDINAL and DATE ) from ORG .", "On DATE Judge PERSON , the President of ORG , initiated the review of the judgment of DATE , as upheld on DATE . The President 's decision of DATE referred to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur 's decision of DATE . The President only indicated that the multiplier CARDINAL applied by the courts at CARDINAL instances had not been supported by references to the appropriate legislation . As a result , the case was transferred to the ORG for an examination on the merits .", "On DATE the judge of ORG initiated the review of the judgment of DATE , as upheld on DATE . The decision of the judge was almost identical to the decision of the President of ORG of DATE .", "On DATE the applicants were informed about the date and venue of the hearing of their cases by the ORG .", "On DATE the ORG quashed the judgment of CARDINAL DATE , as upheld on appeal , stating that the first and second instance courts ' calculation of the minimum subsistence amount based on the multiplier CARDINAL had been insufficiently supported by evidence . The ORG noted that in support of its findings the lower courts referred to a letter of the Deputy Minister of Labour ; however , the original of that letter was missing and the court had only a photocopy of it . The ORG further noted that the lower courts had not verified the authenticity of that letter , and , therefore , their findings had been based on inadmissible evidence . The ORG also held that the law entitled GPE pensioners to the increase of their pensions , but not the “ food allowance ” . The case was remitted to the first instance court for a fresh examination .", "On DATE the ORG , headed by the Judge PERSON , quashed the judgment of CARDINAL DATE , as upheld on appeal , remitting the case to the first instance court for a fresh examination . The grounds for quashing were the same as in the decision of CARDINAL DATE .", "On DATE ORG examined the cases of all the applicants , except for Mr Nuzhdov . In the course of the proceedings the court established that the disability pension should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The applicants maintained that they had to accept that multiplier .", "As a result , the court held that the amount due to the applicants for DATE was ORG CARDINAL per month and per person . Starting from DATE the pension should have amounted to ORG per month , except for Mr PERSON , whose pension was RUR CARDINAL,CARDINAL.CARDINAL . The court ordered the social security authorities to compensate the applicants for previous underpayments and , starting from DATE , pay them ORG CARDINAL ( RUR CARDINAL as regards Mr PERSON ) DATE , with subsequent indexation .", "On DATE ORG examined the case of Mr Nuzhdov . The judgment in his case was identical to the judgment in the case of other applicants of DATE . On DATE ORG rectified its judgment on DATE correcting an arithmetic error in the calculation of the outstanding amounts awarded to the applicants .", "The judgments of DATE and DATE were not appealed against and became final . On DATE the social security authorities transferred to the applicants ' accounts the amounts awarded by the town court for previous underpayments .", "It appears that in DATE some of the applicants were involved in other civil proceedings concerning the recalculation of their pensions and benefits in line with the cost of living .", "On DATE the Code of Civil Procedure of GPE ( “ the CCivP ” ) entered into force introducing , in particular , an amended system of supervisory review .", "CCivP , in the relevant parts , provides as follows :", "The judgment can be quashed by the court of appeal ( v kassatsionnom poryadke ) on the following grounds :", "CARDINAL ) Incorrect establishment of facts relevant for the case ;", "CARDINAL ) Lack of evidentiary support for the facts , established by the first instance court and relevant for the case ;", "CARDINAL ) Inconsistency between the facts , relied by the court , and its conclusions ;", "CARDINAL ) Breach or incorrect application of the material or procedural law . ...", "The material law was breached if :", "The court did not apply the law which had to be applied ;", "The court applied the law which had not to be applied ;", "The court misinterpreted the law .", "Breach or incorrect application of procedural law may lead to the quashing of the judgment if that breach or misapplication led or could have led to incorrect determination of the case .", "The judgment should be quashed irrespectively of the arguments [ of the appellant ] in the following instances :", "CARDINAL ) LOC composition of the court which determined the case ;", "CARDINAL ) NORP The case was examined in absence of a party to the proceedings , which had not been informed about the venue and the time of the hearing ;", "CARDINAL ) The rules concerning the language of the proceedings were breached ;", "CARDINAL ) The court determined rights and obligations of persons which had not been invited to take part in the proceedings ;", "CARDINAL ) The judgment was not signed by the judge ...", "CARDINAL ) The judgment was rendered by judges other than those who had heard the case ;", "CARDINAL ) The hearing record was missing ;", "CARDINAL) The secrecy of judge 's deliberations was breached .", "“ CARDINAL . Judicial decisions that have become legally binding ... may be appealed against ... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions .", "Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”", "“ A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination . ”", "“ CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on –", "( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;", "( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .", "...", "NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . ”", "“ CARDINAL . Having examined the case file obtained by the supervisory review court , the judge issues an interim decision on –", "– refusing to remit the case for examination on the merits by the supervisory review court ;", "– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court . ”", "“ CARDINAL . NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court . ”", "“ The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws . ”", "On DATE ORG of GPE adopted Ruling no . CARDINAL-П , giving constitutional interpretation of the relevant provisions of the CCivP. The position of ORG , in so far as relevant in the context of the facts of the present case , may be summarised as follows .", "Supervisory review of a judicial decision which entered in force is permitted only “ in exceptional circumstances , when , as a result of a judicial error , committed at an earlier stage of the proceedings , which was decisive for the outcome of the case , the rights and judicially protected lawful interests of the participants of the proceedings were significantly affected , and they can not be restored without quashing the judicial decision ” .", "It is primarily for the courts of appeal to oversee the lawfulness and reasonableness of the lower courts ' decisions . The supervisory review may be used only if all “ normal ” legal avenues have been exhausted by the initiator of the review . ORG referred in this respect to the case of PERSON v. GPE , decided by ORG ( no . CARDINAL , DATE ) .", "Under LAW CCivP supervisory review is possible when there are “ serious violations of the substantive and procedural laws ” by the lower courts . The wording used by the CCivP is not very precise , but the notion of “ serious violation ” is not susceptible to any clear definition and can not be reduced to a limited number of instances where the review is possible . The courts should have a certain margin of appreciation in interpreting that provision , to the extent that their case - law is uniform .", "Articles CARDINAL and CARDINAL of the CCivP ( see above ) give certain guidelines for defining what kind of judicial errors may trigger the supervisory review . However , given the role of the supervisory review instance , it should not substitute the review by the court of appeal . Referring to the case - law of ORG , ORG noted that the supervisory review should not be an appeal in disguise and that the mere existence of CARDINAL opposite views on the subject of a civil dispute was not a good reason for reviewing the final judgment .", "NORP The power of the judge to initiate the review without hearing the parties is not contrary to LAW . However , the decision not to proceed with the case may be challenged in an appeal to the President of the court , who can reverse it . ORG held that such a complaint may be lodged with the President only within the DATE time - limits provided by LAW", "In addition , the supervisory review complaint can be brought before a higher instance . In paragraph CARDINAL of ORG noted that the existing provisions of the ORG allowed bringing CARDINAL consecutive supervisory review complaints . Furthermore , the time spent by the supervisory review instances on examining these complaints is not included in the DATE time - limit provided by LAW . As a result , the overall duration of the proceedings may be indefinitely long , up to DATE .", "The Constitutional Court recognised that in certain circumstances the current system of supervisory review could be in breach of the legal certainty principle . However , ORG explicitly refrained from declaring the provisions of the ORG unconstitutional . Instead , ORG recommended the legislator to amend the relevant provision so to exclude possible breaches of the legal certainty principle ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE in ORG ( GPE ) and resides in GPE .", "The facts of the case , as submitted by the applicant , can be summarised as follows .", "The applicant is of the NORP faith and wears the veil . Since DATE , she has been married to a NORP national who lives in GPE .", "She submitted that on DATE she had gone to the Consulate - General of GPE in GPE to request an entry visa to GPE so that she could join her husband , and that she was had not been authorised to enter the consulate premises because she had refused to remove her veil for the purposes of an identity check . The applicant had then submitted a visa application by registered letter , and her application had been refused .", "The applicant ’s husband then lodged an appeal , on behalf of his wife , with ORG against the refusal to grant her an entry visa to GPE .", "On DATE the ORG dismissed his appeal as follows :", "“ In accordance with the provisions of LAW DATE of CARDINAL November CARDINAL relating to ORG for appeals against decisions refusing entry visas to GPE , I regret to inform you that the ORG has dismissed the appeal you lodged on DATE requesting re - examination of the decision by which the Consul - General of GPE in GPE refused an entry visa to GPE to [ the applicant ] .", "It is up to [ the applicant ] to comply with the regulations in force in order to request a visa entry to GPE in accordance with the formal requirements . ”", "The applicant ’s husband then lodged a further appeal , still on behalf of his wife , with the PERSON d’Etat , invoking in particular the right of his wife to respect for her family life and the right to freedom of religion .", "On DATE the ORG d’Etat dismissed the appeal , giving the following reasons :", "“ ...", "The wearing of the veil or headscarf , by which women of the NORP faith can express their religious convictions , may be restricted , particularly in the interests of public order .", "The documents in the file show that [ the applicant ] went to ORG in GPE on DATE in order to request a visa and that as she refused to agree to the identity check , which has been set in place at the entrance to the NORP for reasons of security and public order and required the temporary removal of her veil , she was not allowed access to the ORG ; that she then submitted a visa application by registered letter ; that this written application , which did not , however , enable the person requesting the visa to be identified , can not be regarded as a visa application in accordance with the formal requirements for issuing visas , which require the personal appearance of the applicant ; that in citing this reason for refusing the visa application , ORG , which was not obliged to examine the application as regards right of entry since it was not submitted in accordance with the formal requirements , which can legally impose a temporary restriction on the wearing of the veil as the only means of identifying the applicant , did not err in law or infringe LAW ... .", "Since the [ applicant ] refused to agree to this temporary restriction to allow her identity to be checked , she must be considered as having , on her own initiative , decided not to submit a visa application in accordance with the formal requirements ; that consequently , she is not entitled to rely on the terms of LAW ... . ”" ]

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[ "The political party PERSON ) , founded in DATE , has regularly taken part in elections since DATE . Its declared aims include the defence of the NORP minority living in GPE . The other CARDINAL applicants are members of the party 's political secretariat .", "In DATE the party established its headquarters in the town of GPE . The second and third applicants affixed to the balcony of the LOC a sign indicating the party 's name in the CARDINAL languages spoken in the region : NORP and NORP .", "According to the applicants , the opening of the headquarters and the affixing of the sign triggered a wave of violent protests by the town 's inhabitants , but the police failed to take the appropriate measures to protect them against the various attacks to which they were subjected .", "NORP In particular , the offices were opened in DATE and on DATE priests from the church in PERSON published a statement describing the applicants as “ friends of GPE ” , driven by “ anti - NORP and treacherous sentiments ” . The statement continued as follows : “ we call upon the people to join a demonstration to protest against the enemies of GPE who arbitrarily display signs with anti - NORP slogans , and we will demand their deportation . ”", "On DATE the PERSON town council held an informal meeting and , by a resolution published in the local press , decided to organise protests against the applicants .", "On DATE the public prosecutor at ORG ordered the removal of the sign on the ground that the inclusion of the party 's name in NORP was liable to sow discord ( LAW see paragraph CARDINAL below ) among the local population . Police officers removed the party 's sign without giving any explanation to the applicants , who then put up a new sign . TIME , according to the applicants , while they were inside the party headquarters a crowd of people , among whom they apparently recognised the mayor , the deputy mayor and certain town councillors , gathered in front of the building to shout threats and insults at them , such as “ traitors ” , “ dogs ” , “ death to the dogs of GPE ” , “ you 're going to die ” , and “ we 'll burn everything ” . The crowd also allegedly demanded that the applicants hand over the sign .", "On DATE at TIME a number of people allegedly attacked the party headquarters , and , after breaking down the door , assaulted those inside and demanded that they hand over the sign , which the applicants did . Another group entered the LOC at TIME , threw all the equipment and furniture out of the window and set it on fire . According to the applicants , throughout these events they made a number of telephone calls to the police station located QUANTITY from the party headquarters , but were apparently told that no officers were available to come out . The applicants submitted that the public prosecutor 's office took no action against those involved in the incidents . However , criminal proceedings for inciting discord were brought against CARDINAL members of the party , including the second and third applicants , under LAW . The bill of indictment stated that “ they had affixed to the party headquarters a sign on which , among other things , the word vino - PERSON ( rainbow ) was written in a NORP language , and had thus sowed discord among the local inhabitants ... ” . The applicants were committed for trial .", "The trial took place on DATE before a single judge in ORG , who acquitted the applicants ( judgment no . CARDINAL ) . The court acknowledged that a crowd had gathered in front of the party headquarters and that one of the applicants had been beaten up . It found that there had also been criminal damage , which had culminated in the LOC being set on fire .", "On DATE CARDINAL party members , including the second and third applicants , lodged a criminal complaint and applied to be joined to the proceedings as civil parties , alleging that those responsible for the incidents had committed the following offences : incitement to discord ( LAW ) , breach of the peace ( LAW ) , destruction of property ( LAW , criminal damage ( LAW ) , trespass ( Article CARDINAL ) , threats ( Article CARDINAL ) , insults ( Article CARDINAL ) and arson ( Article CARDINAL ) .", "On DATE ORG of ORG considered that there was insufficient evidence against the individuals named in the applicants ' complaint and decided to discontinue criminal proceedings against them ( order no . CARDINAL/CARDINAL ) .", "On DATE the applicants appealed .", "On DATE ORG of ORG for LOC dismissed the appeal ( order no . CARDINAL/CARDINAL ) .", "On DATE the applicants appealed on points of law .", "On DATE ORG dismissed their appeal as inadmissible ( order no . CARDINAL/CARDINAL ) .", "The relevant provisions of LAW read as follows :", "“ CARDINAL . Anyone who takes part in an unlawful assembly , ... attacks persons or property , or forcibly enters houses , dwellings or other LOC belonging to another , shall be punished by a prison sentence of DATE .", "NORP The perpetrators of such an attack and anyone who has incited another to commit the attack shall be punished by a prison sentence of DATE .", "The above - mentioned sentences shall be imposed unless the offence attracts a harsher sentence under a different provision . ”", "“ Anyone who , publicly or otherwise , provokes others to commit a violent act or sows discord among citizens , or incites citizens to do so , thus causing a breach of the peace , shall be punished by a prison sentence of DATE , unless the offence attracts a harsher sentence under a different provision . ”" ]

[ "11", "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and at present is living in GPE , GPE . The applicant , who was granted legal aid , was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr P. Clerides , Attorney - General of GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant came to GPE on DATE as a visitor . Following an application to the immigration authorities he was granted a temporary residence permit on DATE until DATE for working as a director of an offshore company in GPE . The permit was subject to the condition that it would lapse if the applicant ceased to work for the particular company .", "On DATE the applicant married a NORP national .", "On DATE , following an application to the immigration authorities dated DATE , the applicant was granted a temporary residence permit until DATE , for the purpose of enabling him to remain in GPE with his wife .", "The Government submitted that in the meantime the immigration authorities had been informed that the aforementioned company had ceased to employ any staff and that from DATE it had no longer been allowed by ORG to employ any foreign staff without prior written permission from that bank . The Government submitted a copy of a letter dated DATE sent by ORG to the aforementioned company in this respect . The applicant stated that he had not known about this .", "Following an application to the immigration authorities on DATE , the applicant ’s residence permit was renewed on DATE until DATE for the purpose of enabling him to remain in GPE with his wife and also to work as a labourer with a company in GPE .", "On DATE the applicant applied to ORG ) for naturalisation .", "On DATE the applicant ’s wife made a statement to the immigration authorities stating , inter alia , the following :", "“ From the beginning of our marriage my husband was working as a labourer with a building company in GPE staying there DATE and coming to visit only on DATE . He showed from the beginning that he was only interested in his own good time and how he would arrange his visa each time so as to have no problems with the police , without paying attention to me , as if I did not exist in his life . He was not interested in how I got along or in the problems I had nor did he show any interest about our home and he did not have it in mind that at some moment we would have a family . This , that is , the fact that he lives in GPE and visits me once or twice a week , continues until DATE . Recently and , in particular , after we were notified by Sergeant ... of ORG in GPE that his application for naturalisation was pending in GPE and that we should make an appointment with him , his attitude has changed and he continuously mollifies me so I will sign that I have no problem with our marriage so he can obtain NORP nationality . From the day that Sergeant ... called his attitude towards me changed immediately for the best . I , however , because I understand that he is doing all this to obtain NORP nationality , want that the application we submitted for nationality is not taken into account at the present stage but to be examined at least in DATE , so that after our appointment with Sergeant ... my husband will think that it is all over , and I will see his real attitude towards me and his real intentions for our marriage . I have decided that if my husband does not change attitude towards me , I will file a divorce petition , because I can not bear this situation any longer ” .", "On DATE the applicant applied to the immigration authorities for the renewal of his temporary residence permit for a period of DATE to enable him to remain in GPE with his wife . The applicant submitted that he had made this application with his wife .", "By letter dated DATE ORG turned down the applicant ’s application for naturalisation as he did not fulfil the residence requirements set out in LAW . In particular , the applicant had not resided for a continuous period of DATE in GPE as required by LAW CARDINAL(CARDINAL)/CARDINAL for aliens in his position .", "By letter dated DATE ORG turned down his application of DATE concerning the renewal of his residence permit . The letter stated that the application had been very carefully considered but it could not be approved because the applicant did not live with his NORP - Cypriot wife . The applicant was thereby requested to leave GPE immediately otherwise all necessary measures would be taken for his removal . The applicant , however , submitted that he had not received an answer concerning this application .", "In the meantime , on DATE the applicant ’s wife filed a divorce petition before ORG on the ground that the marriage between her and the applicant had broken down irretrievably ( petition no . DATE ) .", "In the divorce petition it was stated , inter alia , as follows :", "“ The separation between the parties occurred in DATE , when the applicant requested the respondent after some argument that he had caused , to take his things and abandon the marital home . The respondent then told the applicant that he had married her to secure a residence permit for GPE . From then onwards the respondent lives in GPE .", "The respondent was a shirker , he did not work and did not contribute financially to the DATE expenses of the maintenance and up - keep of his family . Nor did he demand that the applicant maintain him .", "...", "As a result of the behaviour of the respondent the parties’ marriage has been irretrievably broken down so that the continuation of marital life has become unbearable for the applicant .", "The applicant has reached the infallible conclusion that she can not and also does not wish to live with the respondent anymore ” .", "On the one hand , the Government noted that the divorce petition had been served on the applicant in person on DATE . In this connection , the ORG submitted a copy of the affidavit concerning the service of the petition and a copy of a letter dated DATE by the Registrar of ORG . In the petition it was specified that it had been fixed before ORG for directions for DATE . On that date the applicant did not appear in court either in person or through counsel and the petition was fixed for proof for DATE . The applicant did not appear before the court on DATE .", "On the other hand , the applicant stated that he had never been served with a divorce petition , at least in a language that he could understand nor had he ever been served with a petition or any other written document indicating in any language he could understand that it was a legal document for which he should seek translation . He had not therefore been aware that he had had to appear in court on the above dates .", "On DATE the applicant went to GPE . The Government stated that the applicant left following their request of DATE . However , the applicant submitted that he had not received the ORG ’s letter and that he had left GPE to visit his sister who permanently resided in GPE .", "On DATE the applicant returned to GPE but was refused entry . The applicant submitted that the immigration authorities at the airport had refused to let him enter into the country despite the fact that he had had a visa from ORG in GPE and that his wife and friends had been at the airport waiting for him . He stated that the immigration authorities had claimed that he had married his wife in order to acquire a visa , that they had detained him and then made him buy a ticket for GPE where he had to return .", "The applicant stated that on DATE he had contacted the NORP embassy in GPE and that they had informed him that they had forwarded his case to the immigration authorities in GPE .", "By letter dated CARDINAL DATE the Government informed the ORG that on DATE the applicant ’s wife had withdrawn the divorce petition before ORG .", "The admission , residence and expulsion of aliens are regulated by the ORG and Immigration PERSON of DATE ( PERSON . CARDINAL , as amended ) .", "Under section CARDINAL ( CARDINAL ) of the above PERSON a person is not permitted to enter the Republic if he is a “ prohibited immigrant ” which includes , inter alia , any person who enters or resides contrary to any prohibition , condition , restriction or limitation contained in this PERSON or in any permit granted or issued under this PERSON ( sections CARDINAL ( CARDINAL ) ( k ) and ( m ) ) . A “ prohibited immigrant ” can be ordered to leave the LOC under LAW of the same PERSON . Furthermore , under LAW ( introduced by ORG ) , if the immigration authorities ascertain that an alien has contracted a sham marriage , then they can , inter alia , prohibit the alien in question to remain in the Republic , annul or refrain from renewing that alien ’s residence permit and order his or her expulsion in accordance with the provisions of the PERSON ( section CARDINAL ) . In order to ascertain whether a particular marriage is a sham , provision is made in section CARDINAL ( CARDINAL ) for the immigration authorities to conduct interviews of the spouses , together or separately , or of any person who is in a position to give them information in this regard . Factors that are considered as indicating that a marriage is sham include the fact that a couple do not live under the same roof , the fact that there is no appropriate contribution to marital obligations and contradictory declarations by the spouses concerning , inter alia , important information of a personal nature ( section CARDINAL ( CARDINAL ) ) .", "A decision by the immigration authorities taken under LAW ( CARDINAL ) is subject to a hierarchical recourse to the Minister of Interior within DATE from the date the decision was issued ( Section CARDINALC ) . In the event such a recourse is filed the alien can remain in the Republic until the Minister ’s decision is issued . The Minister ’s decision can be challenged before ORG by way of administrative recourse under LAW . This provision provides as follows :", "“ ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person . ”", "Under section CARDINALD of the same law any alien or a citizen of the Republic who has performed a sham marriage or taken part in any other way in the celebration of such a marriage , commits an offence which is punishable by a sentence of imprisonment for DATE and/or a pecuniary sentence up to QUANTITY .", "ORG is regulated by LAW ( as amended ) . In particular , section CARDINAL of the third schedule of that PERSON set out the requirements concerning naturalisation of aliens .", "Finally , LAW guarantees the right to private and family life . It provides as follows :", "“ CARDINAL . Every person has the right to respect for his private and family life .", "There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the LOC or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by LAW to any person ” ." ]

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[ "The applicant was born in DATE .", "In DATE ORG instituted investigations concerning suspicion of fraud . On DATE the applicant was charged with fraud committed jointly with other persons . On DATE the Białystok", "The applicant requested that detailed written grounds of the detention order be prepared by the prosecuting authorities . On DATE the applicant 's lawyer and on DATE the applicant himself appealed against the detention order , arguing , inter alia , that his bad health was incompatible with his detention .", "By a decision of DATE ORG preferred charges against the applicant . It was stated that the suspicion against him was rendered credible by evidence gathered in the investigations . The prosecutor referred in particular to documents concerning the circumstances in which the applicant had taken the loan , to the manner in which the funds had been transferred to the applicant 's bank account , and to the links established between the suspects in the case .", "On DATE ORG , at a session held in camera , refused the applicant 's lawyer 's appeal against the detention order and on DATE the applicant 's own appeal was , likewise , dismissed .", "On DATE the applicant requested to be released .", "On DATE the same court refused to allow the applicant 's appeal against the decision of DATE by which the prosecution had preferred charges against the applicant . The court considered that the case was complex , that there were many suspects , and that the offences concerned were of a very serious nature .", "On DATE ORG refused the applicant 's application for release of DATE . On CARDINAL DATE ORG upheld this decision , considering that a medical certificate confirmed that the applicant was suffering from PERSON syndrome which was a connective tissue disorder , so affected many structures , including the skeleton , lungs , eyes , heart and blood vessels . However , the applicant was under the medical supervision of a prison doctor . The grounds on which the applicant had been arrested still obtained , and the offence concerned was of a serious nature .", "On DATE the charges against the applicant were supplemented by CARDINAL further counts of fraud , committed by obtaining another CARDINAL bank loans by false pretences . The prosecuting authorities referred , inter alia , to various NORP and foreign documents , to the testimony of witnesses , interviewed during the investigations , and to other evidence . When questioned by the prosecutor on DATE , the applicant requested that detailed written grounds of these charges , giving factual reasons grounding the suspicions against him , be prepared and served on him and on his lawyer . On DATE the applicant was served with this document .", "On DATE ORG prolonged the applicant 's detention for DATE , until DATE .", "On DATE the applicant requested again to be released . On CARDINAL DATE his request was refused by ORG .", "On DATE the applicant requested to be released in order to undergo a specialised ophthalmologic examination , submitting that he suffered from an ailment , which seriously affected his eyesight , and that his eyesight had severely deteriorated as a result of his detention .", "On DATE ORG dismissed the applicant 's appeal against the decision of ORG of DATE prolonging his detention for a further DATE .", "On DATE ORG upheld the decision of DATE , considering that the evidence against the applicant had rendered the charges against him sufficiently credible .", "On DATE the applicant 's new request for release , submitted on DATE , was refused by ORG . An identical decision was given on DATE in respect of his fresh request for release , the prosecuting authorities considering that the evidence gathered so far in the proceedings supported the charges against the applicant , and that there were genuine grounds for believing that , if released , he would exert pressure on the witnesses .", "On DATE the applicant 's detention was prolonged until CARDINAL DATE , ORG considering that further measures had to be taken in order to complete the evidence gathered so far during the investigations . On DATE ORG dismissed the applicant 's appeal against that decision .", "On DATE , DATE , DATE and CARDINAL DATE the applicant had access to the case file and was informed of his right to submit , within DATE , motions for further evidence to be admitted .", "On DATE ORG again refused to release the applicant . On DATE the applicant requested ORG to set aside this decision .", "On DATE ORG prolonged the applicant 's detention until DATE . On DATE the court 's registry was served with the applicant 's letter in which he requested the court to allow him to be present at the court session concerning the prolongation of his detention . On DATE the court replied that his request had been included in the case file , noting that it had been served on the court after the session had been held in the applicant 's and his lawyer 's absence .", "On DATE ORG upheld the decision of ORG of DATE prolonging the applicant 's detention .", "On DATE , DATE and DATE the applicant examined the case file .", "On DATE ORG dismissed the applicant 's appeal against the decision of DATE prolonging his detention until DATE .", "On DATE the applicant requested that certain pages that had been taken out of the case file and transferred to the file of another case , which had been severed from the applicant 's case in DATE , be re - included into his file so that he could have access to them .", "On DATE ORG closed the investigation , considering that the case - file contained enough evidence for a bill of indictment to be lodged with a court . On the same date the prosecutor ordered that the applicant be given access to documents that he had requested on DATE .", "On DATE ORG refused to allow the applicant 's appeal against the decision to prolong his detention , given on DATE .", "On DATE the applicant requested to be released and on DATE he proposed to pay bail in the amount of PLN CARDINAL .", "On DATE the applicant requested to be granted access to the case - file , submitting that he had not been shown items Nos . CARDINAL , DATE , DATE .", "On DATE ORG dismissed the applicant 's request to be released on bail .", "By a letter of DATE , submitted to the court on DATE , the applicant requested to be allowed to read the case file again .", "The refusal to release the applicant , given on DATE , was upheld by ORG on DATE , which considered that the applicant 's appeal had failed to advance any arguments capable of casting doubt on the lawfulness of the decision under appeal .", "By a letter of CARDINAL DATE the applicant again requested to be given access to the case file . On DATE the case - file was forwarded by the prosecution to the Białystok detention centre and the applicant read it again on DATE .", "On DATE ORG held a session , concerning the applicant 's request for release on bail and the amount of bail to be paid . The applicant 's lawyer attended that session . The court fixed the bail at PLN CARDINAL,CARDINAL . The applicant was released on DATE after bail had been paid .", "On DATE the applicant died of ORG syndrome . On DATE ORG discontinued the criminal proceedings against him .", "At the relevant time , the authorities competent to decide on detention on remand were provided for in ORG CARDINAL and CARDINAL of LAW Code of Criminal Procedure of DATE , which read as follows :", "Article CARDINAL :", "“ CARDINAL . Preventive measures [ i.e. detention on remand , bail and police supervision ] shall be imposed by the court ; before a bill of indictment is lodged with the court , they shall be ordered by the prosecutor ( ... ) . ”", "Article CARDINAL :", "“ CARDINAL . A decision concerning preventive measures may be appealed [ to a higher court ] ...", "A prosecutor 's order on detention on remand may be appealed to the court competent to deal with the merits of the case ... ”", "These provisions were amended on DATE by LAW DATE on LAW to LAW and Other Criminal Statutes , which entered into force on DATE . Pursuant to this amendment , detention on remand could be imposed only by a court order .", "A new Code of Criminal Procedure was enacted by the PERSON ( ORG ) on DATE . Its Article CARDINAL , in its relevant part , reads :", "“ CARDINAL . Detention on remand shall be imposed by a court order .", "NORP In the investigative stage of proceedings , detention on remand shall be imposed , on a prosecutor 's request , by a district court in the jurisdiction of which investigations are being conducted . After a bill of indictment is lodged with a court , a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case .", "NORP The prosecutor , when submitting to a court a request referred to in § CARDINAL , shall at the same time order that the suspect be brought before a court . ”", "At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles CARDINAL and CARDINAL of the Code of Criminal Procedure of DATE , which , insofar as relevant , provided :", "LAW", "“ The ORG pronounces its decisions at a hearing if the law provides for it ; and otherwise , at a court session held in camera . ... ”", "Article CARDINAL :", "“ A court session in camera may be attended by a prosecutor ( ... ) ; other parties may attend if the law provides for it . ”", "Pursuant to LAW , before deciding on the application of the preventive measures , the court shall hear the person charged with offence . The lawyer of the detainee should be allowed to attend in the court session , if he or she is present . It is not mandatory to inform the lawyer of the date and time of the court session , unless the suspect so requests and if it will not hinder the proceedings .", "The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand , or an appeal against a decision to impose or to prolong detention on remand is to be considered .", "At the material time the relations between the organs of the NORP State were set out in interim legislation , i.e. LAW of DATE ( Mała PERSON ) . LAW laid down the principle of the separation of powers in the following terms :", "“ The legislative power of the ORG shall be vested in the PERSON and the ORG of GPE ; the executive power shall be vested in the President of GPE and ORG ; and judicial power shall be vested in the independent courts . ”", "Under LAW , ORG ( PERSON ) shall be composed of the Prime Minister , Deputy Prime Ministers and Ministers .", "In pursuance of LAW of DATE ( Ustawa o sądach powszechnych ) , the courts are entrusted with administration of justice in GPE . The courts are courts of appeal , regional courts and district courts . Under LAW , the ORG exercises supervisory jurisdiction over lower courts .", "Article CARDINAL of the Act of DATE on ORG ( Ustawa o Prokuraturze ) which determines general principles concerning the structure , functions and organisation of prosecuting authorities , at the material time read as follows :", "“ CARDINAL . The prosecuting authorities shall be ORG , prosecutors and military prosecutors . Prosecutors and military prosecutors shall be subordinate to ORG .", "The Prosecutor General shall be the highest prosecuting authority ; his functions shall be carried out by the Minister of ORG . ”", "LAW reads :", "“ The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences . ”", "Under LAW , in carrying out his statutory duties , a prosecutor shall abide by the principles of impartiality and equality of citizens before the law .", "Pursuant to LAW , a prosecutor is independent in carrying out his or her duties , within the limits set out in this LAW . A prosecutor shall abide by the instructions , guidelines and orders of his superiors . However , if an order relates to the substance of any action to be taken in proceedings , a prosecutor may request [ his superior ] to issue the order concerned with reasons in writing , to alter the order , to relieve him from performing an act prescribed by that order , or to remove him from conducting the case in question . The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order .", "Chapter III of LAW of DATE , applicable at the material time , entitled \" Parties to proceedings , defence counsel , representatives of victims and representatives of society \" , described a prosecutor as a party to criminal proceedings . According to all the relevant provisions of the LAW read together , a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings . In particular , after completing the investigation , he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case .", "Under LAW of DATE ” organs conducting criminal proceedings [ including a prosecutor ] shall examine and take into account evidence in favour of as well as against the accused . ”" ]

[ "5" ]

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

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[ "The applicant is an NORP national , born in DATE , and currently residing in ORG ( GPE ) .", "She is represented before the ORG by Mr GPE and ORG , CARDINAL lawyers practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The order , which was served on the applicant on DATE , indicated that no appeal lay against it under domestic law .", "Article CARDINAL § CARDINAL of Presidential Decree no . CARDINAL of DATE indicates the acts which are subject to appeal before the competent ORG ( “ commissione tributaria provinciale ” ) . It mentions , inter alia , “ the role ” ( “ il ruolo ” ) . ORG decision may be appealed first before the competent ORG ( “ commissione tributaria regionale ” ) and then before ORG ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of Presidential Decree no . CARDINAL ) ." ]

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[ "The applicant was born in DATE and is presently serving a prison sentence in FAC .", "Following the institution of criminal proceedings against the applicant , he was apprehended on DATE and placed in pre - trial detention in GPE Prison ( GPE zatvor GPE ) , where he had ORG stayed until DATE . After that date , having being convicted of murder , attempted murder , forgery and robbery , he was sent to serve the remainder of his sentence of DATE and DATE imprisonment in FAC .", "According to medical documentation submitted by the parties , the applicant suffers from kidney stones , varicose veins , liver damage and a number of spinal ailments such as scoliosis ( curvature of the spine ) , lordosis ( inward curve of the lower back ) , discopathy ( cervical disc injury ) and discarthrosis ( structural and functional failure of the discal joint ) .", "The applicant 's medical record , kept in LOC , and additional medical documentation submitted by the parties provides the following information :", "A copy of a medical report drafted at ORG on DATE specifies that the applicant was suffering from CARDINAL stone in his right ureter ( ureters are ducts that carry urine from the kidneys to the urinary bladder ) measuring QUANTITY , and CARDINAL stones in his left kidney , each measuring QUANTITY . It was recommended that the applicant be given painkillers and be seen by a urologist .", "After being incarcerated in LOC the applicant was seen by a prison doctor for his kidney and spinal ailments on CARDINAL occasions during the period from DATE to CARDINAL DATE . The applicant was regularly given urological tea for his kidney ailment and , in addition , on each occasion he was given various spasmolytics to prevent or relieve spasms . For the pain associated with his spinal ailments , the applicant was prescribed painkillers , including CARDINAL different types of soothing gels . On CARDINAL DATE the applicant was seen by a urologist in PERSON , who found a stone in the applicant 's left kidney and recommended his hospitalisation .", "From DATE to CARDINAL DATE the applicant was hospitalised in ORG , where a medical report was drafted , specifying that the applicant was suffering from CARDINAL stones in his left kidney , measuring QUANTITY each . It was recommended that surgery be carried out . The report notes that the applicant had been put on the waiting list of ORG in GPE and that the exact date of the operation was yet to be determined .", "From his return to ORG in DATE until DATE the applicant was seen by the prison doctor on CARDINAL occasions ; on CARDINAL of these he was given spasmolytics for the pain associated with his kidney ailment . He was also regularly given urological tea as well as painkillers for his spinal ailment .", "NORP The applicant was again hospitalised in FAC from DATE . A medical report of DATE specifies that the kidney stones from which the applicant was suffering required surgery , although not urgently , as they could not be treated by ultrasound waves ( lithotripsy ) .", "From his return to the prison until DATE the applicant was seen by the prison doctor on CARDINAL occasions . Within that period he was given spasmolitycs for the pain associated with his kidney ailment on QUANTITY occasions . On DATE the applicant underwent urological tests in the ORG laboratory . On DATE the applicant refused to go to ORG . On DATE a nurse from the prison reported that , during a telephone conversation with a surgeon from ORG , she had been told that the applicant should not be sent there because they were not going to carry out the surgery . On DATE the applicant again underwent urological tests in FAC .", "On DATE the applicant was seen by a urologist in ORG . The diagnosis of kidney stones was confirmed and surgery in this respect was recommended , although not urgently .", "From his return to the prison until DATE the applicant was seen by the prison doctor on CARDINAL occasions . Within that period he was given spasmolytics for his kidney aliment on CARDINAL occasions . On several occasions he asked that the recommended surgery in connection with his kidney ailment be carried out .", "The applicant was again hospitalised in ORG from DATE to CARDINAL DATE . A report drawn on the latter date specifies that the applicant was suffering from kidney stones and that there was no possibility of carrying out the relevant operation in ORG ; it could only be carried out in an ordinary hospital . The applicant had been offered surgery for his varicose veins in FAC , which he had refused , insisting on his return to the prison .", "On his return to the prison the applicant was seen by the prison doctor on CARDINAL occasions , mostly in connection with his spinal ailment . On CARDINAL occasion he was given spasmolytics for his kidney ailment . He was prescribed a supplementary diet ( pojačani obrok ) from DATE until DATE and from DATE to CARDINAL DATE .", "On DATE the applicant petitioned both ORG judge responsible for the execution of sentences and ORG complaining about the lack of adequate medical care for his various health problems , including those mentioned in paragraph CARDINAL above .", "ORG replied to the applicant 's allegations by a letter of DATE , the relevant parts of which read as follows :", "“ ...", "Your medical record shows that since your arrival at FAC on DATE , you have received regular treatment by the prison doctor .", "On DATE it was noted that you suffered from kidney stones and were on that account twice hospitalised in [ GPE ] ORG . It was further noted that you suffered from back - pain and varicose veins on your right shin . During your hospitalisation from DATE to DATE it was recommended that surgery be carried out and you were put on the waiting list of ORG in GPE .", "Owing to frequent pain in the kidney area you were again hospitalised in [ GPE ] ORG from DATE where a specialist established that your kidney stones could be treated by ultrasound .", "You continued to receive regular treatment by the prison doctor and were prescribed adequate medical therapy . On DATE you refused to be hospitalised and said that you would report when you wished to be hospitalised . Since you had refused hospitalisation , on DATE it was communicated from [ GPE ] ORG that you were not going to be operated and it was recommended further that you be seen by a urologist in PERSON . A prescription was issued for consultation with a urologist and prior laboratory tests . Laboratory tests showed the presence of blood in urine and signs of liver damage .", "On DATE you were seen by a urologist who found alterations in your kidneys , but established no need for an urgent surgical intervention . A ORG [ computer tomography ] of your abdomen was planned and carried out on DATE . It showed no pathological alterations . You were twice seen by an internist in GPE [ State ] Prison , who recommended that arrangements be made between the prison authorities and [ GPE ] ORG .", "On DATE you were sent for an X - ray examination in connection with frequent back - pain . PERSON and discarthrosis were diagnosed . Deforming spondylosis was in an advanced stage . On DATE a prescription for your hospitalisation in [ GPE ] ORG was issued , but you refused hospitalisation . Owing to frequent pain in your left kidney and your back you agreed to be hospitalised in [ GPE ] ORG from DATE to DATE , when laboratory tests were carried out as well as an ultrasound examination of your liver , cholecyst , bile ducts , pancreas , spleen and kidneys . An X - ray examination showed that your heart and lungs were healthy . An X - ray examination of your abdomen showed CARDINAL round calcareous shadows in the lower pole of your left kidney , which was an indication of the [ presence of ] stones . Laboratory tests showed further even and sufficient urinary flow in both kidneys . The ureters had adequate flow , lumen width and porosity ; the urinary bladder was normal . The previously recommended surgery , despite having been scheduled for your stay at the hospital , was not carried out .", "Possible surgery on your varicose veins was not carried out since you refused it , and you were returned to the prison at your request .", "A GPE [ computer tomography ] of your spine was recommended and the exact date was to be determined . A prescription in that respect was issued on DATE .", "In our opinion , regular [ medical ] checks are needed in the Lepolgava [ State ] Prison infirmary as well as regular intake of the prescribed therapy , and an arrangement for another hospitalisation in [ GPE ] ORG is soon to take place with a view to carrying out the surgery for your kidney stones .", "In view of the above [ considerations ] it has been established that you received adequate medical care in GPE [ State ] Prison . ”", "The judge responsible for the execution of sentences likewise answered the applicant 's allegation by a letter of DATE , the relevant parts of which read as follows :", "“ As to your complaint lodged on DATE ... concerning your allegations that you had been denied hospital treatment in connection with a number of diseases ... I reply as follows :", "...", "The medical documentation submitted shows that , DATE , you were hospitalised in [ GPE ] ORG in connection with kidney stones , pain in the back and varicose veins on your right shin . It was recommended that surgery be carried out , you were put on the waiting list of ORG [ in GPE ] and that the exact date of the operation was to be communicated . Owing to repeated pain in the kidney area and in order to continue the treatment , in DATE it was established that the stones were to be broken by ultrasound . You then reported to the GPE [ ORG ] Prison infirmary and received regular therapy for pain . On DATE you were offered hospitalisation . However , it was communicated from ORG not to send you there because you were not to be operated . On DATE you were seen by a urologist in PERSON , who established the cause of your kidney ailment and indicated that there was no need for urgent surgery . After that arrangements for your hospitalisation in [ GPE ] ORG took place and you were hospitalised from DATE to CARDINAL DATE . There you were examined and laboratory [ tests ] showed toxic damage to your liver and the presence of stones in your kidneys . An x - ray showed that your heart and lungs were healthy and that you had so - called nephroliths in your kidneys .", "According to [ GPE ] ORG , all treatment available there had been exhausted and in order to continue your treatment in an outside hospital it was necessary for an agreement to be reached between the prison and the hospital . There was a possibility that surgery be carried out in [ GPE ] ORG at the same time as surgery for your varicose veins , which you declined . You were returned to the prison where it was recommended that a GPE [ computer tomography ] of lumbosacral spine be carried out , and a prescription was issued in that connection on DATE . The doctor also recommended regular checks in the prison infirmary and regular intake of prescribed therapy , and that an arrangement be made between the prison and the [ GPE ] ORG for your hospitalisation and eventual surgery for the kidney stones .", "Therefore , your complaints concerning the alleged denial of hospital treatment are unfounded because the medical documentation shows that care was taken of your [ need for ] ambulant and hospital treatment . Your allegations concerning the prison authorities ' hatred towards you are entirely unfounded .", "... ”", "NORP The applicant also submitted a copy of a letter of DATE drafted by the registry of ORG , stating that his application lodged with that court on DATE had not been suitable for examination .", "DATE of LAW ( Ustav PERSON ) provides as follows :", "“ No one shall be subjected to any form of ill - treatment ... ”", "The Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora , Official Gazette no . CARDINAL of DATE , and no . CARDINAL of DATE ( consolidated text ) DATE “ the LAW ” ) came into force on DATE , while 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 against 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 ) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ”", "ORG", "Recommendation No . Rec(CARDINAL)CARDINAL of ORG to member states on ORG ( adopted by ORG on DATE at the PERSON meeting of ORG ) :", "Section CARDINAL of the recommendation provides as follows :", "“ Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals , when such treatment is not available in prison . ”" ]

[ "3" ]

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[ "NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . Her application was lodged on CARDINAL DATE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE , the applicant requested a pension forecast from ORG ( “ DWP ” ) . The forecast , provided on DATE , was calculated on the basis that the applicant would become entitled to receive ORG from DATE .", "In DATE , the applicant requested a further pension forecast . In that forecast , provided on DATE , the applicant ’s pension forecast was similarly calculated on the basis of the applicable State Pension age being DATE . It stated that at DATE the applicant was expected to be entitled to a DATE pension of GBP MONEY .", "Both State Pension forecasts expressly stated that the pension the applicant might receive could be different from the forecast , either because of changes in the applicant ’s circumstances or the law . Both also stated that they were not formal decisions about her pension .", "Under the law of GPE , prior to the enactment of LAW DATE ( “ the DATE LAW ) ORG age was DATE for men and CARDINAL for women . The relevant parts of LAW , which came into force on DATE , put in place a mechanism to equalise the respective pension ages for men and women to CARDINAL . The equalisation was to take place progressively over a period of DATE starting from DATE . Any woman born before DATE would continue to receive ORG from DATE . Women born after DATE would attain pensionable age at DATE . Women born between those CARDINAL dates would become eligible for the Pension at various ages DATE , in accordance with a graduated scale set out in Schedule CARDINAL to the Act .", "Council Directive CARDINAL/CARDINAL/EEC of DATE ( “ the Directive ” ) concerns the progressive implementation of the principle of equal treatment for men and women in matters of social security . Article CARDINAL ) of the Directive prohibits all discrimination on grounds of sex , in particular as concerns the calculation of benefits . Such discrimination can be justified only under LAW , which provides that the Directive is to be without prejudice to the right of Member GPE to exclude from its scope the determination of pensionable age for the purposes of granting old - age and retirement pensions and the possible consequences thereof for other benefits ." ]

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[ "On DATE , ORG ( hereinafter : “ FM department ” ) , relying on the aforementioned medical reports , concluded that the injuries rendered the applicant unfit for work for DATE ." ]

[ "3" ]

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[ "3" ]

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[ "The first applicant , Mr PERSON , is a NORP national who was born in DATE and resides in the village of PERSON in the PERSON region .", "The second applicant , Mr ORG , was a NORP citizen born in DATE who died on CARDINAL DATE . By letter of CARDINAL DATE , the applicant ’s son informed the ORG that he wished to pursue the application .", "The applicants were represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the first applicant brought a car registered in GPE ( a DATE BMW-CARDINAL ) into the customs territory of GPE . When crossing the border he undertook an obligation to re - export the car before DATE . He failed to do so , however .", "On DATE , after several unsuccessful attempts to summon the applicant , ORG , in the applicant ’s absence , drew up a report on an infringement of customs regulations due to the applicant ’s failure to remove the above car from the customs territory of GPE ( LAW ) .", "On DATE the applicant was summoned to ORG of PERSON . Having heard the applicant , who explained that the impugned car had broken down and he had given it to a friend who had taken it away , the court found the first applicant guilty of having failed to re - export the car in violation of LAW . The court ordered the confiscation of the vehicle , but given that the car ’s location was unknown , it replaced the confiscation with payment of CARDINAL NORP hryvnyas ( ORG ) ( MONEY ( ORG ) ) , which corresponded to the value of the car , in accordance with LAW of LAW .", "On DATE the President of ORG refused the applicant ’s request to initiate supervisory review proceedings in the case .", "On DATE the second applicant brought a car registered in GPE ( a DATE ORG Benz-CARDINAL ) into the customs territory of GPE . When crossing the border he undertook an obligation to re - export the car before DATE . He failed to do so , however .", "On DATE , in the applicant ’s absence , ORG drew up a report on an infringement of customs regulations due to the applicant ’s failure to remove the above car from the customs territory of GPE ( LAW ) .", "On DATE the second applicant was summoned to ORG of PERSON . Having heard the applicant , who explained that he had given the car to a certain PERSON in payment for debts , but refused to give her address , the court returned the case to the customs authorities because of a number of procedural mistakes made by the latter in drawing up the report on an infringement of customs regulations . The customs authorities drew up a new report and sent it to the court .", "On DATE the court examined the case and found the second applicant guilty of having failed to re - export the car , in violation of LAW . The court ordered the confiscation of the vehicle but , given that the car ’s location was unknown , replaced the confiscation with payment of ORG ( about EUR CARDINAL,CARDINAL.CARDINAL ) , which corresponded to the value of the car , in accordance with LAW of LAW .", "On DATE the President of ORG refused the applicant ’s request to initiate supervisory review proceedings in the case .", "The relevant domestic law is summarised in the case of ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE . )" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant was arrested by the police on DATE . On DATE ORG charged him with CARDINAL offences ( mostly burglaries ) . On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed a number of burglaries . The court found that there was a reasonable risk that the applicant would obstruct the proper conduct of the proceedings , having regard to the severity of the anticipated penalty . The detention order was subsequently extended by ORG ( PERSON ) on DATE and DATE .", "On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with armed robbery , robbery and burglary ( CARDINAL counts ) . There were CARDINAL defendants in the case , including the applicant . CARDINAL of them were remanded in custody . The prosecution asked the court to hear evidence from CARDINAL witnesses . The case file comprised at that time some CARDINAL volumes . The prosecution obtained voluminous evidence , including various expert reports .", "On DATE ORG ordered the applicant ’s continued detention until DATE . It observed , inter alia , that there existed a risk of collusion and that the nature of the offences with which the applicant had been charged justified the continuation of his detention .", "On DATE ORG ordered that the case be joined to that of a certain GPE", "On DATE the ORG prolonged the applicant ’s detention until DATE . It found that the nature of the offences with which the applicant had been charged , the GPE modus operandi and the severity of the likely penalty justified the prolongation of the detention . It further held that there was a risk that the applicant would obstruct the proceedings , given that he had not confessed . ORG found that prolongation of the applicant ’s detention was necessary in order to secure the proper conduct of the proceedings for the time needed for the examination of the case . It held that no other measures could prevent the applicant from attempting to interfere with the proceedings or even from going into hiding .", "ORG listed a hearing for DATE . However , it had to be cancelled since the applicant and CARDINAL of the co - defendants had been disorderly and were removed from the courtroom . In addition , CARDINAL other co - defendant and his counsel failed to appear .", "On DATE ORG ordered that the applicant be held in custody until DATE , relying on the same grounds as previously . In addition , it observed that the trial court had not yet commenced an examination of the merits due to reasons that were beyond the court ’s control , such as the failure of some of the co - accused or their lawyers to appear before the court or the police ’s failure to bring the detained co - defendants for trial . ORG noted that the continued detention of the applicant and some of his co - defendants was necessary in order to secure the proper conduct of the proceedings in the case . That decision was upheld on appeal on DATE .", "On DATE ORG prolonged the applicant ’s detention until DATE . It reiterated the grounds given in its previous decisions . It also noted that all of the CARDINAL hearings scheduled to date had had to be cancelled for various reasons such as : the illness of the trial judge or CARDINAL of the co - defendants , the unwarranted absence of some of the co - defendants , the absence of the legal - aid lawyer of CARDINAL of the co - defendants , the fact that CARDINAL of the lawyers had left the courtroom when the bill of indictment was being read out and the failure of the police to bring the detained co - defendants from prison for trial . The applicant and CARDINAL other co - defendants appealed against that decision .", "On DATE ORG ( Sąd Apelacyjny ) upheld the decision . ORG stated in the relevant part of the reasons for its decision that :", "“ The appeal is not well - founded . Firstly , it should be stated that , contrary to the defendant ’s claims , they committed the offences with which they are charged ( Na wstępie stwierdzić należy , wbrew zarzutom oskarżonych , że popełnili oni zarzucane i m przestępstwa . ) ” .", "The evidence proving this consists not only of the allegations made by ORG , but also by ORG who in the official record of the hearing of DATE ( ... ) described the persons with whom he had committed burglaries of warehouses in ORG and ORG , but later , on DATE , stated that what he had said was not true ; the [ trial ] court will assess which of these accounts is credible ” .", "ORG further found that there was a real risk that the defendants would obstruct the proceedings by exerting pressure on ORG a co - defendant who had incriminated them ) , given the fact that they had resorted to very aggressive language in their correspondence when referring to LANGUAGE Further , there was a risk of their going into hiding .", "Two hearings had to be cancelled due to the police ’s failure to bring the detained co - defendants from prison ( DATE and DATE ) .", "On DATE the trial began . However , ORG was only able to hear CARDINAL defendants . CARDINAL subsequent hearings had to be cancelled due to the absence of CARDINAL of the defence counsel ( DATE ) and the illness of CARDINAL of the defence counsel ( DATE ) .", "On DATE ORG made an application under LAW of LAW to ORG for prolongation of the applicant ’s detention until DATE , since the statutory DATE time - limit of detention pending trial was soon to be exceeded ( Article CARDINAL § CARDINAL of the ORG ) . It emphasised that the grounds originally given for his detention were still valid and that the court was not able to proceed with the hearing of evidence due to reasons that could not be attributed to the court . It noted that out of CARDINAL hearings scheduled to date CARDINAL had had to be cancelled . In addition to the reasons specified in the decision of DATE , ORG also mentioned the illness of CARDINAL of the defence counsel and the police ’s failure to bring the detained co - defendants from prison ( on CARDINAL occasions ) . It also observed that the continued detention of the applicant was necessary in order to secure the proper conduct of the trial and that no other measures would prevent the applicant and his co - accused from obstructing the proceedings or going into hiding .", "On DATE ORG granted ORG application . In addition to the reasons previously given , it held that the case was particularly complex . It also emphasised that the trial court should take all necessary measures to organise the proceedings in a diligent manner so as to hold hearings at reasonable intervals and terminate the trial by DATE . The applicant appealed against that decision , but to no avail .", "On DATE the applicant requested the trial court to lift his detention on the ground that it entailed a difficult financial situation for his wife and child . On DATE ORG refused that request , having regard , inter alia , to the report prepared by a court officer . The applicant ’s repeated request to that effect was refused on DATE .", "On DATE ORG made another application to ORG , requesting an extension of the applicant ’s detention until DATE . It stressed that , despite some progress in the trial ( all the co - defendants and CARDINAL out of CARDINAL witnesses called by the prosecution had been heard ) , there were still prosecution witnesses ( CARDINAL ) and witnesses called by the co - accused ( CARDINAL ) to be heard . On DATE ORG granted that application .", "The trial court held hearings on the following dates : DATE , CARDINAL and DATE , CARDINAL and DATE , CARDINAL DATE , CARDINAL and DATE , DATE , CARDINAL DATE and DATE . CARDINAL hearings were cancelled for the following reasons : the absence of some of the co - defendants and defence counsel ( DATE ) ; the trial judge ’s illness ( DATE ) ; the failure of CARDINAL of the co - defendants to appear ( DATE ) and the failure of CARDINAL of the defence counsel to appear ( DATE ) .", "On DATE the trial court made yet another application to ORG for an extension of the applicant ’s detention until DATE . It referred to the necessity to hear witnesses called by the co - defendants and to obtain an expert report as to the mental health of CARDINAL of the co - defendants . On DATE ORG granted that application . Another similar application of the trial court of DATE was granted by ORG on DATE . The latter court considered that the proceedings had not been terminated due to reasons beyond the trial court ’s control . The applicant ’s detention was prolonged until DATE .", "In the course of the proceedings the applicant appealed unsuccessfully against several decisions extending his detention .", "On DATE ORG held the last hearing and closed the trial . On DATE it gave judgment . The applicant was convicted of CARDINAL counts of robbery and CARDINAL counts of burglary and sentenced to DATE imprisonment . He was acquitted of CARDINAL counts of burglary .", "NORP The applicant appealed against the first - instance judgment . On DATE ORG upheld the judgment of ORG in respect of the applicant . Throughout the proceedings before the trial court and ORG the applicant was represented by a legal - aid counsel .", "On DATE , relying on Article CARDINAL of the ORG , the applicant requested ORG to appoint a legal - aid counsel for him with a view to lodging a cassation appeal . On DATE the court granted that request and appointed the same counsel who had represented the applicant at the earlier stages of the proceedings to prepare a cassation appeal . By a letter dated DATE the counsel informed ORG that , having analysed the case file , he had not found any grounds on which a cassation appeal could be based .", "On DATE ORG informed the applicant about the legal - aid counsel ’s refusal and that no other legal - aid counsel would be appointed for him . Furthermore , it informed the applicant that he had DATE from DATE following the receipt of that letter to lodge a cassation appeal by a counsel of his own choosing . It appears that the applicant did not lodge a cassation appeal with ORG ( Sąd Najwyższy ) .", "On DATE ORG sent a letter to the applicant acknowledging the receipt of his letter of DATE .", "It appears that that letter was delivered to the applicant after having been controlled by the authorities . The ORG ’s envelope bears CARDINAL stamps that read “ FAC . Received DATE ” and “ FAC . Received DATE ” ( PERSON w PERSON . wpł . CARDINAL DATE and wpł . CARDINAL LIS . DATE ) . There were also CARDINAL hand - written notes “ R[egional ] C[ourt ] K[atowi]ce PERSON ” ( SO K - ce ) and “ return after censorship ” ( zwrot po cenzurze ) .", "The relevant domestic law and practice concerning 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 ) 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 .", "Article CARDINAL CARDINAL of the LAW provides :", "“ Everyone shall be presumed innocent until proved guilty in a final decision of a court of law . ”", "A similar principle is laid down in LAW .", "Pursuant to Article CARDINAL of LAW a defendant who does not have a defence counsel of his own choosing may request the trial court to appoint him a legal aid counsel if he had duly proved that he could not afford legal assistance ( i.e. that the costs of such assistance “ would entail a substantial reduction in his and his family ’s standard of living ” ) ." ]

[ "5", "6" ]

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

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .", "On DATE an officer with ORG of ORG used , in the course of his duties , a computer at a police station in GPE to access a web page which he found on the internet . When he viewed that page he saw people covered in faeces , coprophilia , coprophagia and men involved in fellatio . The page was in the form of a preview for other material that could be viewed on payment of a subscription . Anyone wanting more of that type of material could click on to a link marked “ subscription to our best filthy sites . ” The officer did that and provided his name , address , and credit card details . He was then given access to a second web page which contained similar material to the first . On DATE the officer visited the web site again and viewed a third web page .", "The applicant was subsequently arrested and interviewed by police officers about his involvement in the publication of internet sites . He stated in his interviews with the police that the internet site viewed by the officer was operated and controlled by ORG , a company based in GPE that complied with all the local laws and of which the applicant was a majority shareholder .", "The applicant was charged with CARDINAL counts of publishing an obscene article , contrary to section CARDINAL of LAW CARDINAL ( “ the DATE LAW ) . The CARDINAL counts related to the CARDINAL respective web pages which the officer had viewed .", "The matter came for trial before ORG in DATE . At the start , the applicant entered an admission , through his counsel , that he was legally responsible for the publication of the web pages viewed by the police officer . The issue for the jury was whether those pages were obscene within the meaning of section QUANTITY of LAW . The trial judge directed them as to the definition of “ obscene ” provided by LAW ( see below ) .", "On DATE the applicant was convicted on the first count , which related to the preview page , and acquitted him on the CARDINAL other counts . On DATE he was sentenced to DATE imprisonment .", "The applicant sought leave to appeal to ORG on the ground , inter alia , that his conviction violated LAW . He submitted that it was an interference with his right to freedom of expression which was neither prescribed by law , nor proportionate . His main point was that LAW was not sufficiently foreseeable because the major steps towards publication of the web pages had taken place outside the jurisdiction : he maintained that LANGUAGE courts should only be able to convict when the major steps towards publication took place within their jurisdiction . He further submitted that section QUANTITY of LAW was not sufficiently clear . As to proportionality , he pointed out that similar material was readily available on the internet and that there were better means of inhibiting access , such as industry self - regulation , blockage by service providers and steps taken at home .", "On DATE ORG dismissed his appeal against conviction . It relied on PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL , § DATE ) and PERSON v. GPE ( no . ORG decision of DATE ) in holding that section QUANTITY of LAW was sufficiently precise for the interference in question to be prescribed by law .", "In regard to proportionality , it reviewed the LAW case law and observed that there was a margin of appreciation in relation to judgments about morality . It held that the interference with the applicant ’s freedom of expression was limited in that he was only convicted on the first count . It considered that , even if LAW only provided limited protection to vulnerable people , there is no reason why a responsible government should abandon that protection in favour of the limited remedies advocated by the applicant . Finally , it noted , on the jurisdictional point , that the applicant ’s suggestion , that conviction should only be possible where major steps had been taken towards publication in a place over which the court had jurisdiction , would undermine the aim that the law was intended to protect by encouraging publishers to take the steps towards publication in countries where they were unlikely to be prosecuted . It concluded that the interference in question was justified under LAW .", "His appeal against sentence was also dismissed , ORG finding as follows :", "“ It is pointed out that this was material that had to be sought out . That , of course , is true . As [ counsel for the applicant ] accepts , it was available to the young but they had to seek it . On the other hand , it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected , so far as is possible , by the law . There is , as [ counsel for the applicant ] submits , difficulty with the worldwide web , but it is through the worldwide web that people are able to make very substantial profits ....", "Finally , it is submitted that , if CARDINAL looks at the authorities , sentences passed in relation to other offences were not of this magnitude , at any rate where the offence was not , on the face of it , relating to child pornography . That is true so far as it goes , but again the danger in relation to this type of offence was its accessibility to the young and vulnerable . In those circumstances it seems to us that , bearing in mind the statutory maximum of DATE , the judge adopted the right approach in this case , and we see no reason to interfere with the sentence which he imposed . ”", "On DATE ORG refused the applicant leave to appeal .", "The CARDINAL Act ( as amended by LAW , LAW DATE , LAW DATE , LAW DATE and ORG provides in so far as relevant :", "“ CARDINAL . Test of obscenity", "( CARDINAL ) For the purposes of this LAW an article shall be deemed to be obscene if its effect or ( where the article comprises CARDINAL or more distinct items ) the effect of any CARDINAL of its items is , if taken as a whole , such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances , to read , see or hear the matter contained or embodied in it .", "( CARDINAL ) In this LAW “ article ” means any description of article containing or embodying matter to be read or looked at or both , any sound record , and any film or other record of a picture or pictures .", "( CARDINAL ) For the purposes of this LAW a person publishes an article who –", "( a ) distributes , circulates , sells , lets on hire , gives , or lends it , or who offers it for sale or for letting on hire ; or", "( b ) in the case of an article containing or embodying matter to be looked at or a record , shows , plays or projects it , or , where the matter is data stored electronically , transmits that data ....", "Prohibition of publication of obscene matter", "( CARDINAL ) Subject as hereinafter provided , any person who , whether for gain or not publishes an obscene article or who has an obscene article for publication for gain ( whether gain to himself or to another ) shall be liable –", "( a ) ...", "( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding DATE or both ...", "Defence of public good", "( CARDINAL ) Subject to subsection ( CARDINALA ) of this section [ which is concerned with moving picture films or soundtracks ] a person shall not be convicted of an offence against section two of this LAW , and an order for the forfeiture shall not be made under the foregoing section , if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science , literature , art or learning , or of other objects of general concern . ”" ]

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[ "On DATE the Bratislava I ORG approved an agreement on exchange of CARDINAL flats used by the applicant and her parents respectively for a single flat in which they intended to live together . The decision stated that the right to use the flat was subjected to an agreement on its transfer to be concluded between the owner and the new user pursuant to LAW .", "On DATE a record was drawn about the agreement on the transfer of the flat . It was signed by the applicant ’s father and the applicant ’s parents were mentioned in it as the users of the flat . Another document concerning the fees for the use of the flat established by the owner on DATE mentioned the applicant ’s father as the user of the flat and both the applicant and her mother as persons living in it together with the official user .", "On DATE the Bratislava - Staré mesto municipality restored the block of flats in which the applicant and her parents lived to its original owners pursuant to LAW . Subsequently the house was purchased by other individuals .", "On DATE the applicant , her parents and CARDINAL other persons living in the house lodged an action with the Bratislava I ORG ( Obvodný súd - “ the ORG ” ) pursuant to LAW ) of LAW . The plaintiffs challenged the lawfulness of the restitution and the subsequent sale of the house . They claimed to have a particular legal interest in lodging the action since the unlawful restitution of the house had prevented them “ from having the ownership of the flats transferred to them for the remainder of their value in accordance with the law ” . They further complained that the new owners were attempting to make them move out of the house in that , for example , they had deliberately broken the central heater .", "ORG started proceeding with the case on DATE . On DATE the action was sent to the defendants for observations .", "The first hearing was held on DATE . Another hearing was scheduled for DATE . It was adjourned as the case had been transmitted to another judge .", "On DATE the applicant and several other plaintiffs complained about delays in the proceedings . On DATE the vice - president of ORG explained that the judge who had taken over the case in DATE had needed time to study the file and that a hearing was scheduled for DATE .", "On DATE ORG adjourned the case with a view to obtaining further information .", "On DATE ORG granted , in a different set of proceedings , an action of DATE by which the new owners of the house had requested that the tenancy of the applicant ’s parents be terminated . The applicant ’s parents were ordered to move out of the flat within DATE after they were provided with alternative accommodation .", "On DATE the applicant lodged a petition with ORG ( Ústavný súd ) . She complained about the length of the proceedings concerning the lawfulness of the restitution of the house .", "On DATE ORG found a violation of the applicant ’s right to have her case examined within a reasonable time as guaranteed by LAW ( CARDINAL ) of LAW and LAW . ORG established , inter alia , that ORG had remained inactive DATE and DATE and also between DATE and DATE .", "On DATE the vice - president of ORG informed the applicant that following the finding of ORG the judges who had dealt with the case had been disciplined , and that the case had been transmitted , as from DATE , to another judge .", "On DATE ORG dismissed the applicant ’s request for interim measures to be ordered . On DATE ORG ( PERSON súd ) modified this decision in that it ordered the owners of the house not to alienate it pending the outcome of the proceedings on the merits . ORG found that the plaintiffs had a legal interest in bringing the proceedings within the meaning of LAW ( c ) of LAW since they would be entitled to purchase the flats if the ownership of the house had not been transferred to the original owners .", "On DATE the applicant complained to the president of ORG that ORG had not held a single hearing after the delivery of ORG decision of DATE .", "On DATE the applicant extended the action of CARDINAL DATE claiming that the ownership of the house be restored to ORG municipality .", "On DATE the applicant complained to the president of ORG that there had been no progress in the case since DATE and that the interim measure ordered by ORG on DATE had not yet been notified to the land registry .", "On DATE the applicant extended her action and claimed that the tenancy of the flat be restored to her and her mother . She also claimed compensation for damage which she had suffered in this context .", "On DATE ORG dismissed the action . It found that proceedings under LAW ( c ) of LAW aimed at preventive protection of existing rights . As the alleged interference with the plaintiffs’ rights had been prior to the filing of their action of DATE , ORG held that they had no pressing legal interest for having the lawfulness of the restitution determined .", "ORG noted that the applicant had extended the action in that she claimed also reparation for the alleged violation of her rights . In this respect it found that the applicant had lived in the flat together with her parents as a member of the household . She had not been , however , formally registered as a tenant . ORG concluded that the applicant lacked standing in the case from the very beginning .", "Finally , ORG recalled that the tenants’ right to purchase flats under LAW was subjected to conditions set out in Sections ORG and DATE , and that the restitution had been prior to the entry into force of Act No . CARDINAL on DATE . It held that the restitution had in no way affected the tenants’ rights .", "On DATE the applicant appealed . She argued that she had both standing in the case and a pressing legal interest in having the issue determined . She also submitted that ORG had misinterpreted Act No . CARDINAL/CARDINAL .", "The appellate proceedings are pending .", "Under LAW , the right to use a flat was subjected to an agreement on its transfer concluded between the owner and an individual . A record of the conclusion of the agreement was to be drawn and signed by the owner ’s representative and by the individual acquiring the right to use the flat .", "Section CARDINAL ( CARDINAL ) permitted the exchange of flats between users . The exchange was subjected to a written agreement and to its approval by the authority charged with the administration of the flats . LAW CARDINAL provided that the right to use an exchanged flat could be acquired by means set out in LAW .", "Section CARDINAL ( CARDINAL ) provides that the right to use a flat , either by an individual or jointly by several persons , existing by DATE is automatically transformed into tenancy or , as the case may be , joint tenancy .", "Act No . CARDINAL/CARDINAL on the ownership of flats and other LOC ( PERSON o vlastníctve bytov a nebytových priestorov ) entered into force on DATE . It provides , inter alia , for the transfer of ownership of flats to individuals by means of a contract . LAW reserved the right of municipalities to keep a certain number of flats in their ownership with a view to providing accommodation to persons in need . This provision was deleted as from DATE .", "Section CARDINALa , enacted by an amendment which entered into force on CARDINAL DATE , imposes on municipalities the obligation to transfer the ownership of flats to tenants so wishing within DATE in houses in which such a transfer was requested by PERCENT of tenants . This obligation did not apply , until DATE , in respect of flats falling under LAW .", "Section CARDINAL ( c ) of LAW gives everyone the right to bring civil proceedings with a view to having the existence of a legal relation or of a right determined provided that it is justified by a pressing legal interest .", "Pursuant to ORG case - law , the right to use an exchanged flat was acquired , at the relevant time , upon the conclusion of an agreement on its transfer within the meaning of LAW of LAW . Such a right could also be acquired as a result of an action indicating unequivocal intention of the parties to enter into an agreement , e.g. in that the persons concerned moved into the flat with the owner ’s consent ( opinion published in DATE in the Collected Decisions as No . CARDINAL ) .", "According to academic opinion , an agreement on the transfer of a flat the exchange of which had been approved by the competent authority could be concluded in writing , orally or tacitly . The agreement is considered to be valid even in the absence of a record concerning its conclusion mentioned in LAW ( ORG zákoník , PERSON , PERSON , GPE , ORG , DATE , pp . CARDINAL ; PERSON občianske právo , CARDINAL . zväzok , GPE , Obzor , DATE , p. CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr Oleksiy Andriyanovych Myroshnychenko , is a NORP national who was born in DATE and lives in GPE , GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant retired and started receiving an old age pension .", "On DATE the applicant and his wife immigrated to GPE , where they were granted refugee status . Before their departure , on DATE , they had been paid their pension for DATE in advance ( CARDINAL DATE – CARDINAL DATE ) with consecutive termination of payments in accordance with LAW .", "In DATE the applicant lodged a complaint with ORG claiming that the termination of pension payments to him was unconstitutional . By letter of DATE ORG replied to the applicant that he had no right to lodge a constitutional appeal .", "In DATE the applicant raised the same issue with ORG . By letter of DATE , the ORG ’s ORG replied that the only possible solution to the applicant ’s problem was the introduction of legislative changes since the termination of pension payments in case of emigration was directly foreseen by the law .", "According to the applicant , in DATE he lodged a complaint with the Poltava Kievsky ORG , but received no reply .", "By letter of DATE , ORG of GPE informed the applicant , in reply to his letter , that it had no competence to act as a first instance court in respect of the applicant ’s complaint .", "In DATE the applicant again submitted his complaint to ORG , as well as to ORG and the President of GPE . By letter of DATE , ORG replied to the applicant along the same lines as in its letter of DATE . The applicant ’s complaints to ORG and the President of GPE were redirected to ORG , which in reply to the applicant referred to its previous letters of DATE and DATE .", "On DATE the applicant lodged an administrative complaint with the ORG of GPE against ORG and ORG , the ORG , ORG and the President of GPE for failure to protect elderly people who emigrated from GPE and failure to consider his complaints . On DATE the court rejected this complaint for failure to comply with procedural requirements .", "The relevant provisions read as follows :", "“ ... The norms of LAW are norms of direct effect . Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of LAW are guaranteed . ”", "“ ORG have equal constitutional rights and freedoms and are equal before the law .", "There shall be no privileges or restrictions based on race , colour of skin , political , religious and other beliefs , sex , ethnic and social origin , property status , place of residence , linguistic or other characteristics ... ”", "“ ORG of GPE is the sole body of constitutional jurisdiction in GPE .", "ORG decides on issues of conformity of laws and other legal acts with LAW , and provides the official interpretation of LAW and the laws of GPE . ”", "“ The jurisdiction of ORG encompasses :", "CARDINAL ) NORP deciding on issues of conformity with LAW ( the constitutionality ) of the following :", "- laws and other legal acts of the Verkhovna Rada of GPE ;", "- acts of the President of GPE ;", "- acts of ORG of GPE ;", "- legal acts of the Verkhovna Rada of GPE .", "These issues are considered on the appeals of : the President of GPE ; CARDINAL ORG of GPE ; ORG of GPE ; LAW the Verkhovna Rada of GPE ; the Verkhovna Rada of GPE ;", "CARDINAL ) NORP the official interpretation of LAW and the laws of GPE ;", "On issues envisaged by this LAW , ORG of GPE adopts decisions that are mandatory for execution throughout the territory of GPE , that are final and shall not be appealed . ”", "Article CARDINAL . Payment of pensions to the citizens who left abroad .", "“ Pensions shall not be granted to citizens who left for permanent residence abroad .", "The pensions granted in GPE before the leave for permanent residence abroad shall be paid for DATE in advance before departure for abroad . During the stay of these citizens abroad only pensions granted for professional disability or illness shall be payable .", "The procedure of transferring the pensions granted for professional disability or illness to other countries shall be established by ORG . ”", "Article CARDINAL of the PERSON contains provisions similar to those of second paragraph of LAW , cited above . It further foresees that while abroad the person concerned should be paid pension , if such pension payments are foreseen by the international treaty ratified by the ORG .", "There is no treaty on social welfare between GPE and GPE ." ]

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[ "The facts of the case , particularly concerning events on CARDINAL and CARDINAL DATE when PERSON , the applicant 's husband , was detained by police and subsequently died , were disputed by the parties . The Commission , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .", "The Commission heard witnesses in GPE from DATE and in GPE on DATE and DATE . The witnesses included the applicant ; her son PERSON ; her brother - in - law PERSON ; PERSON and PERSON , police officers who apprehended PERSON ; PERSON , ORG and PERSON , custody officers on duty over the period of PERSON detention ; PERSON , PERSON and PERSON , interrogation team officers who took PERSON to the hospital ; PERSON , the ORG public prosecutor who attended the autopsy ; Dr PERSON , the doctor at ORG who declared that PERSON was dead ; Dr PERSON , who conducted the autopsy ; Dr PERSON , Professor at ORG , a forensic expert called by the applicant , and PERSON , a member of ORG which had reviewed the autopsy carried out by PERSON .", "The ORG also requested an expert opinion on the medical issues in the case from Professor PERSON , Professor of ORG at ORG , GPE ( GPE ) and Director of ORG .", "The ORG 's findings of fact , which are accepted by the applicant , are set out in its report of DATE and summarised below ( Section A ) . The ORG 's submissions concerning the facts and the expert medical reports are also summarised below ( Sections B and C respectively ) .", "PERSON , the applicant 's husband , worked as a taxi driver in GPE . At the time of events in this case he was DATE . He had no history of ill - health or heart problems .", "On DATE PERSON was taken into custody by police officers from the anti - terrorism branch of ORG . PERSON was the officer in charge of interrogating him . PERSON was released at TIME on DATE . He told the applicant and their son PERSON that he had been beaten and immersed in cold water during TIME of his detention . He remained off work for DATE with a chill .", "During an operation conducted to apprehend a number of persons suspected of involvement with the ORG ( ORG of Kurdistan ) , police officers came to the applicant 's house in DATE , looking for PERSON . He was on a wanted list for activities which included attending the PERSON ( Kurdish New Year ) celebrations on DATE and involvement in starting a fire and in an attack on the security forces in which CARDINAL person died and CARDINAL were injured . However , PERSON was out working in his taxi .", "Police officers located PERSON at a taxi rank at ORG at TIME on DATE . Assistant PERSON and officers PERSON and ORG took him into custody . The apprehension report of the officers made no mention of any struggle or the necessity to use force to place PERSON in the police car . There was an inconsistency between their written statements later given to the public prosecutor on CARDINAL DATE when they stated that some pushing and pulling might have occurred and their evidence to ORG . In their oral evidence to the Commission delegates , PERSON and PERSON were adamant that they had to lead PERSON by the arms to the car but this did not involve the use of force and he did not receive any knocks or marks in the process . PERSON heard from the taxi drivers at the taxi rank that his father had not resisted arrest , nor had CARDINAL taxi drivers who were asked to give statements by the public prosecutor heard that PERSON had resisted arrest .", "Agit PERSON was not taken to a doctor before being placed in a cell in the custody area . The Commission found that it was not established that he had suffered any injury on arrest or that he showed any signs of ill - health or respiratory difficulties .", "The custody officer on duty , PERSON , entered PERSON arrival in the custody area as occurring at TIME on DATE . There was no information recorded or evidence accounting for the time which elapsed between his apprehension , which took place according to the arresting officers ' report at TIME , and his registration in the custody area at TIME", "Assistant Superintendent PERSON was the leader of the interrogation team assigned to PERSON . His team included officers PERSON , PERSON and PERSON .", "CARDINAL other suspects are known to have been apprehended in connection with the same operation : PERSON , taken into custody on DATE , and PERSON , detained also on DATE . A third suspect , PERSON , was also detained in the custody area in relation to the offences under investigation . PERSON took a statement from PERSON and PERSON on DATE . PERSON stated that he had been interrogated before the arrival of PERSON , which would have been on or before DATE .", "No records existed of the movements of detainees to and from their cells , for example , noting the times of interrogations . The police officers concerned in the events denied in their statements to the public prosecutor taken CARDINAL DATE that PERSON had been interrogated during his detention , in particular , as no interrogations would take place before the operation was completed . PERSON , PERSON and PERSON gave oral evidence to the same effect to the ORG 's delegates . The ORG found that their assertion that PERSON had not been questioned during TIME following his apprehension to be implausible , inconsistent and lacking in credibility ( see the ORG 's analysis of the evidence , ORG 's report of DATE , § § CARDINAL - CARDINAL ) . Taking into account also the other evidence , it found that PERSON had been questioned by the interrogation team during his period of detention .", "In TIME of DATE PERSON , PERSON , PERSON and PERSON brought PERSON to ORG . Dr PERSON examined him immediately . His heartbeat , breathing and other vital functions had stopped , cyanosis had developed on the face and ears and the pupils were dilated . He declared that PERSON was dead on arrival and concluded that he had died TIME previously .", "According to a statement signed by the police officers who had said they had brought PERSON to hospital at TIME on DATE , the custody officer had informed them at TIME that PERSON was ill . The suspect told them that his heart was giving him trouble and they took him without delay to ORG emergency ward .", "On DATE Dr PERSON , the forensic doctor at ORG , examined the body in the presence of the public prosecutor . The examination record noted that there were CARDINAL dried QUANTITY by QUANTITY graze wounds at the front of the right armpit , a fresh QUANTITY by QUANTITY graze on the front of the left ankle and an old traumatic ecchymosis measuring QUANTITY by QUANTITY on the front of the chest . There were no injuries from a pointed instrument or firearm . He concluded that an autopsy was necessary to discover the cause of death . The documents indicate that the autopsy was carried out DATE . Samples of organs were sent for analysis .", "At TIME on DATE PERSON was brought by the police to ORG , where the public prosecutor informed him that his father had died of a heart attack . PERSON went to the forensic department on DATE to identify the body . The body was released to the family who undertook to bury it DATE . The family washed the body at the cemetery . PERSON saw bruises and visible marks in the armpits . There were marks in the back resembling holes . There were marks on one foot , which was swollen . CARDINAL colour photographs of the body were taken on behalf of the family .", "On DATE Dr PERSON issued the autopsy report . It repeated the physical findings of the examination record , this time describing the ecchymosis on the front of the chest as purple . The internal examination disclosed that the lungs weighed CARDINAL g each and were oedematic and that the heart , weighing QUANTITY , was larger than the norm . The brain was oedematic . There was some indication of arteriosclerosis in certain vessels and the parietal layer of the myocard adhered tightly to the heart . The sternum was fractured and the surrounding soft tissues revealed fresh haemorrhage which could have been caused by attempted resuscitation .", "Reference was made also to the histopathological report of CARDINAL DATE , which found chronic bronchitis in the lungs , arteriosclerotic changes narrowing the lumen in the coronary arteries and chronic constructive pericarditis , chronic myocarditis , myocardial hyperplasy and hypertrophy in the heart . The toxicology report of CARDINAL DATE found no abnormalities . The report concluded that the actual cause of death could not be established and suggested that the case should be referred to ORG .", "On CARDINAL DATE the photographs taken by the family were handed over to the public prosecutor .", "Statements were taken by the public prosecutor from the interrogating team ( PERSON , PERSON , PERSON and PERSON ) on DATE . Statements were taken from the arresting officers PERSON , PERSON and PERSON and the custody officers PERSON , ORG and PERSON on DATE . Statements were also taken from ORG and PERSON on DATE , the applicant on CARDINAL DATE , PERSON ( the father of PERSON ) on CARDINAL DATE , PERSON and ORG , CARDINAL taxi drivers , on CARDINAL and DATE respectively and from Dr PERSON on DATE .", "On DATE ORG issued its opinion , which was signed by CARDINAL members of ORG , including PERSON . This report recalled that PERSON had been pushed and shoved during his arrest , that he had become unwell before his interrogation or , as was claimed , that he had died during interrogation . It deduced from the witness statements that he had been in his cell until he complained that his heart was giving him trouble , at which point he was taken immediately to hospital .", "The report took up the findings of the internal and external examination conducted at the autopsy . It concluded that , apart from small , fresh , traumatic abrasions on the ankle and the old purple ecchymosis on the front of the chest , no other traumatic injuries were identified . The fresh haemorrhage around the sternum could be attributed to a resuscitation attempt . There was no evidence to suggest that he had died from any direct trauma . The superficial traumas on his body could be attributed to his resistance and struggle on arrest or his being put in the police vehicle , although they could have been inflicted directly . They were not independently fatal . The relatively large size of the heart , the sclerosis in the heart arteries and the signs of an old infectious disease on the membrane and muscles of the heart , pointed to a long - standing heart disease . The report concluded that , although the deceased had lived and worked actively prior to his arrest , his death within TIME of being apprehended could have been caused by cardiac arrest connected with neurohumoral changes brought about by the pressure of the incident in addition to his existing heart disease .", "On DATE the ORG public prosecutor issued a decision not to prosecute . He stated that at TIME on DATE PERSON had informed officers that his heart was giving him trouble and he had been taken to ORG , where he died . According to the forensic report , PERSON had had a long - standing heart disease , any superficial injuries could have occurred during his arrest and death was the result of a heart attack brought on by the pressure of the incident and his heart problem . There was no evidence justifying a prosecution .", "On DATE the applicant appealed against the decision not to prosecute , claiming that PERSON had been interrogated and had died under torture .", "On DATE the President of ORG rejected the applicant 's appeal .", "On DATE the Minister of ORG referred the case to ORG under LAW . On DATE ORG quashed the non - prosecution decision and sent the case back to the ORG public prosecutor for the preparation of an indictment .", "In an indictment dated DATE , QUANTITY police officers ( PERSON , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON ) were charged with homicide in case no . CARDINAL/CARDINAL . Hearings took place before ORG on , inter alia , DATE , DATE , DATE and DATE . The defendants pleaded not guilty . Oral statements were given by CARDINAL of the QUANTITY police officers ( PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ) maintaining their written statements and denying any ill - treatment of PERSON . The court also heard PERSON , the father of PERSON , the applicant and Dr PERSON , the doctor on duty in the emergency ward at ORG . A written statement was obtained from ORG .", "In its decision of DATE , ORG found that it could not be established that the defendants had exerted force or used violence on PERSON or threatened him or tortured him in order to force him to confess . The superficial traumas on his body could have derived from other causes , for example , when he was arrested . The forensic reports indicated that PERSON had died from his previous heart condition being compounded by superficial traumas . However , there was no evidence proving that the traumas were caused by the accused . It acquitted the defendants on the ground of inadequate evidence .", "The applicant , who had been a party to the proceedings as a complainant , did not appeal against the acquittal which became final on DATE .", "The ORG found , in light of the written and oral evidence , the photographs and the medical opinions given by Professor PERSON and Professor PERSON , that PERSON had died rapidly , without a prolonged period of breathlessness . There were marks and abrasions on his left ankle for which there was no explanation and there was bruising and swelling on the sole of the left foot , which could not have been caused accidentally . These were consistent with the application of falaka ( see paragraph CARDINAL below ) . The bruise in the centre of the chest had not been dated with any accuracy by histopathological means and had not been shown to be dissociated from the broken sternum . These injuries together could not have been caused by cardiac massage . ORG also disbelieved the oral evidence of officers PERSON , PERSON and PERSON that cardiac massage had been applied , noting that this had first been mentioned as having occurred when evidence was given before its delegates in DATE , DATE after the events . ORG concluded that PERSON had been subjected to torture during interrogation , which had provoked cardiac arrest and thereby caused his death .", "On DATE the applicant was summoned to the anti - terrorism branch of ORG . A statement was taken by officers , on which her thumbprint was placed . It was headed “ Concerning her application for help to ORG [ institutions ] ” and began , “ The witness was asked : You are asked to explain whether you applied to ORG , if you asked for help and whether you filled in the application form . Who mediated in your application ? ” The statement purported to set out her explanations as to how she came to submit her application to the Commission . She confirmed that the legal aid documents had been filled in by her . In her oral evidence , which the ORG found credible and substantiated , the applicant claimed that she had been blindfolded , kicked and struck at the ORG and that the officers had told her to drop the case .", "The applicant was summoned a second time . A report dated DATE , signed by police officers , listed details of the applicant 's income and expenditure and confirmed her declaration of means . On this or another date , she was taken before the public prosecutor and again asked about her statement of means . No threats were made during that interview .", "The Government referred to the evidence given by the police officers , the autopsy report and the report of ORG , and the oral evidence of PERSON before the ORG 's delegates .", "PERSON had suffered from a pre - existing heart disease . When he was arrested , he sustained minor injuries . The bruise on his chest , which was purple and therefore old , predated his arrest . During his detention in the custody area at ORG , he was not interrogated as the operation had not yet been completed . At TIME , he called for assistance and told the custody officer that his heart was giving him trouble . The custody officer sought help from the officers of the interrogating team who were waiting nearby for the next stage of the operation . These officers put PERSON , who was having difficulty breathing , in a police van and drove him to the hospital . On the way , they stopped the van and PERSON briefly applied mouth - to - mouth resuscitation and cardiac massage . They took PERSON to the emergency ward , where they were told that he had died .", "The autopsy and the report of ORG established that PERSON had not suffered any major trauma , that the broken sternum was caused by cardiac massage and that he had died of natural causes , despite all possible assistance being given .", "In her evidence before the Commission delegates , PERSON had expressed the opinion that the bruise on the chest was DATE and unrelated to the broken sternum and that the oedema in the brain was indicative of a prolonged period of breathlessness prior to death . No findings could be drawn from the photographs , which were amateur and of poor quality . She did not consider the lack of proper forensic photographs to be a major deficiency . There had been no findings of ill - treatment in the ORG 's report since there was no evidence of such . Cardiac arrest as in this case could be triggered by hormonal or environmental factors , such as extremes of temperature . If a direct blow had caused the bruise and fractured the sternum , she would have expected to see contusion and ecchymosis on the back surface of the sternum and bruising on the front and back surface of the right ventricle of the heart . While the lungs of an individual who had been breathless for TIME could generally be expected to increase to a weight of QUANTITY , this was not necessarily the case but depended on the individual ( see the summary of PERSON evidence , ORG 's report , § § CARDINAL - CARDINAL ) .", "ORG Professor PERSON was Professor of ORG at ORG , and was , inter alia , a Fellow of ORG Overseas Fellow of ORG Pathologists , a Fellow of ORG and a Fellow of ORG . The report was drafted , inter alia , on the basis of the domestic autopsy documents and statements and testimony of witnesses . It may be summarised as follows .", "The autopsy findings indicated that PERSON suffered from pre - existing natural heart disease , namely , chronic inflammation involving pericardial adhesions , which was old and inactive . In the distant past , he might have suffered from rheumatic heart disease , which would have manifested itself at that time as an acute febrile illness , without necessarily any symptoms of heart involvement . The heart was enlarged , weighing CARDINAL g , showing that the heart muscle had increased to compensate .", "A heart with a weight greater than CARDINAL g might give rise to sudden unexpected death at any time as a consequence of an abnormality of heart rhythm . This might be precipitated by physical or emotional stress or occur apparently spontaneously without any precipitating event .", "In addition to the heart disease , there were CARDINAL injuries .", "At the front of the right armpit , there were CARDINAL abrasions , each QUANTITY by QUANTITY and described as dried and parchmented . It was not apparent whether they had been dissected to discover if there was any associated bruising but , given the description , it was reasonable to accept they were post - mortem changes .", "There were CARDINAL grazes measuring QUANTITY by QUANTITY on the front of the left ankle and described as fresh and bloody . It appeared that these must have been caused during the period of police detention , but their location and size did not point to any specific cause .", "There was a QUANTITY by QUANTITY bruise in the centre of the chest , which was described as old and purple in colour .", "The sternum was fractured , with fresh bleeding in adjacent soft tissues .", "The bruise to the chest directly overlay the fracture to the sternum . The haemorrhage around the fracture suggested that the fracture was produced before and not after death . The production of such a fracture would be sufficient to induce an abnormality in the rhythm of the underlying heart and thus cause a sudden death . Consequently , the fracture of the sternum represented a possible cause of death . While , theoretically , a fracture could be produced by DATE , it would be unusual , requiring impact on a raised object or edge and it would be associated with injuries to other parts of the body . Cardiac massage could also produce a fracture if very considerable force was applied . The fracture could also have been produced by a blow . In that case , bruising of the skin would be expected , even if the death which followed was rapid . Although Dr PERSON characterised the bruise on the chest as old and by implication as resulting from a different event , his own view was that , given that the bruise directly overlay the fracture , it would require compelling medical evidence to conclude that they were unrelated . PERSON opinion on the age of the bruise was based on the subjective , naked - eye assessment of the colour . However , the bruise was described as purple , which was entirely consistent with a fresh bruise . A bruise DATE would have been expected to have developed a yellowish tinge . A simple histopathological test would have clearly established whether it was a fresh bruise or an old bruise . Such a bruise would not have occurred as a result of the hand pressure applied during cardiac massage . His opinion was that , given the contiguity of the bruise and fracture and the absence of any clear evidence that the bruise occurred on a separate occasion , the bruise and fracture occurred at the same time as a result of a blow , which precipitated an abnormality of heart rhythm .", "The autopsy findings , in particular the weight of the lungs ( CARDINAL g each , that is , close to the minimum ) indicated that the death was very rapid rather than prolonged . In individuals dying slowly with gradual heart failure , a lung weight of CARDINAL g was common and CARDINAL g could occur . This was the result of accumulation of fluid in the lungs consequent on the failure of the pumping action of the heart and was expressed clinically by breathlessness and difficulty in breathing . Deaths involving instantaneous collapse were associated with light lung weight as in this case . A relatively slow death would also be associated with a congested liver . Thus , the autopsy findings and histopathological examination weighed heavily against the possibility of a prolonged dying period with symptoms of breathlessness and pointed rather towards a rapid death .", "As regarded the autopsy procedures , these were seriously deficient . Although the CARDINAL theoretical possibilities for the fracture were external heart massage or a blow , no steps were taken to establish conclusively whether or not massage had been performed . The statement in the autopsy report that it could have been caused by massage did not represent a full and frank statement and could be misread to imply that PERSON had knowledge that such resuscitation was attempted whereas he did not . He should have distinguished fact from speculation . There was also a need to include as much descriptive detail as possible concerning the bruise , fracture and heart disease and in this respect the detail was manifestly insufficient .", "In the addendum of CARDINAL DATE , there was an analysis of the CARDINAL photographs , which were described as being of poor quality . However , the photograph of the soles of the feet nonetheless showed a distinctive purple - red discolouration of the sole of the left foot , with mild swelling . The right little toe had a white glistening band at its base . The discolouration of the instep and sole of the left foot was strongly suggestive of bruising with associated minor swelling and was not consistent with post - mortem gravitational pooling of blood . Bruising of this extent could not be produced as a result of post - mortem injury and injury in such a location was unlikely to be caused by a fall sustained while the victim was alive . Therefore the injury was strongly suggestive of CARDINAL or more blows to the foot . The mark to the right little toe was strongly suggestive of a ligature mark , although there was no congestion such as to suggest tight application of a ligature while the victim was alive ; nor was the appearance suggestive of the passage of electricity . Neither possibility could be excluded and the mark was unusual .", "The red injuries to the front of the left ankle , taken with the injuries to the sole of the left foot , suggested that the ankles were restrained by a mechanism across the front of both ankles and that , so restrained , the person was struck on the sole of his left foot .", "The marks in the right armpit were not clearly shown . Their position , alignment and colouration were not what would normally be expected of post - mortem artefactual injury and raised the possibility of an electrical contact mark produced while the victim was alive . Combined with the unusual marking to the right little toe , it raised the suspicion of the use of electricity with CARDINAL terminal tied round the little toe and the other terminal applied to the right armpit . Whether or not the marks were electrical burns could have been established by histopathological examination .", "The photograph of the back showed post - mortem artefactual staining , with white areas of contact pallor . There were distinct marks , including a bright red abrasion at the spine at waist level and above this CARDINAL dark reddish marks . Above these was a horizontal line of pink bruising or abrasion . All these could be post - mortem injuries , caused by the manipulation of the body over a rough or cutting surface . They could also have been caused before death . To distinguish the CARDINAL would have required dissection .", "The photographs indicated that the autopsy dissection was inadequate in that the back was not dissected , nor were the sole of the left foot or the injuries to the ankle . It was not clear whether the injury to the armpit was dissected . They also indicated that the description of the body in the autopsy was incomplete .", "This report was drawn up by Professor PERSON , instructed by the ORG 's delegates ( see paragraph CARDINAL above ) , on the basis of the domestic medical evidence , the witness testimonies , the reports of Professor PERSON and the photographs supplied by the applicant .", "As regarded the photographs , the variation in colour or mottling on the foot represented bruising . He considered that the photograph was too blurred to conclude that the white glistening band on the right little toe was associated with a ligature nor could he reach any conclusion that the marks in the right armpit were the result of the application of electrical devices . On the legs , he noted , in addition to the marks which could correspond to the abrasions on the left ankle , small areas of reddening on the front and inner side of the right ankle . He agreed with Professor PERSON 's findings on the back and noted in addition other areas of redness . Without the benefit of a dissection and/or histology of the dissection , the nature of the marks was uncertain . They could have been caused before death or be a post - mortem phenomenon . Bruising of the soles of the feet was relatively unusual and represented at least moderately severe force . Beating on the sole of the foot could cause such bruising . A person with such an injury would not be able to walk without at least an obvious limp .", "As regarded the ageing of the chest bruise , recent authors in forensic medicine agreed that caution should be exercised . It was not practicable to construct an accurate calendar of colour changes as was done in earlier textbooks as there were too many variables . If the purple colour of the chest bruise was relied on to distinguish its age from the “ fresh ” haemorrhage around the sternal fracture , this was an invalid conclusion . The materials did not permit a distinction in age to be drawn between the CARDINAL . A recent study issued to show the level of disagreement amongst authors concluded that the only point of agreement was that a bruise with identifiable yellowing was TIME . Thus , the purple bruise could be fresh ( that is , TIME ) but could be older .", "Concerning the broken sternum , there had been no complaint of chest pain so one could infer that it occurred shortly before or around the time of death . His view was that there was a coincidence of CARDINAL injuries ( the bruise and the fracture ) which could not be distinguished in age , or there was just one injury . If there was no chest bruise when PERSON was taken into custody , the issue was relatively easily resolved . Most pathologists would tend to regard them , prima facie , as one injury or state that there was a rebuttable presumption that they were one injury . As regarded the possibility of the bruising and fractured sternum being caused by an attempt at resuscitation , significant chest bruising was rare in this context . Sternal fractures caused by cardiopulmonary resuscitation were usually associated with fractured ribs and not with surrounding haemorrhage or overlying bruising . If the chest bruise and fracture with accompanying haemorrhage were the result of CARDINAL trauma , it was not CARDINAL associated with a resuscitation attempt . A fracture from a fall onto a flat surface would be unusual . A heavy direct fall onto a relatively smooth broad protrusion could cause such an injury but he had no recollection of having seen this as an isolated accidental injury ( that is , without injuries to other parts of the body occurring at the same time ) . A blow from a fist , knee or foot could also cause such an injury .", "Lungs with oedema sufficient to be regarded as a sign of heart failure and to cause breathlessness of TIME weighed QUANTITY g. The lung weights in this case fitted with a substantially more rapid death . The oedema found in the brain was not significant , the weight of the victim 's brain being slightly under the average brain weight for a man of his age .", "The finding of underlying heart disease was undisputed . In his view , the best explanation for the death was as follows . Before he died , PERSON sustained significant traumas to the sole of his left foot and to the front of his chest , causing bruising and prima facie fracturing the sternum and causing a surrounding haemorrhage . Fear and pain associated with these events resulted in a surge of adrenalin increasing the heart rate and raising blood pressure . This put a severe strain on an already compromised heart , which caused cardiac arrest and a rapid death . Alternatively , the compression of the chest associated with the fracturing of the sternum fatally disturbed the rhythm of the heart without leaving observable damage . The weakness of this opinion lay in the conclusion that the chest injuries represented CARDINAL trauma rather than CARDINAL , and this depended partly on circumstantial factors and could not be completely resolved . However , even allowing for the possibility that they were separate injuries , the chest bruise could still be regarded as fresh and as having occurred while in custody , in which case the formal cause of death would be the same , namely , cardiac arrest in a man with heart disease following the occurrence of injuries to the left foot and chest . If the fractured sternum was regarded as due to an attempt at resuscitation , the cause of death would only change if it was concluded that the bruise occurred prior to being taken into custody .", "The critical task of an autopsy in this case was to evaluate the circumstances in which it was proposed that this man died , in particular , whether it was a natural death in custody or not . In this evaluation , the age of the chest bruise was critical . Even allowing for PERSON view of the age based on colour , the autopsy should have been conducted in a way which allowed another pathologist at another time to come to his or her own view . Important observations had to be justified objectively . In the absence of photographs , histology was the obvious way for PERSON to establish the truth of his view . The lack of proper photographs had also seriously impeded the investigation and evaluation of this case . Deficiencies also appeared in the insufficient subcutaneous dissection to seek out bruises not visible externally and the absence of a histological examination of the lesions critical to the proper evaluation of the circumstances of the death .", "Professor PERSON had met Professor PERSON professionally . He had not met either PERSON or PERSON .", "The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .", "Under LAW all forms of homicide ( Articles CARDINAL - CARDINAL ) and attempted homicide ( Articles CARDINAL - CARDINAL ) constitute criminal offences . It is also an offence for a ORG employee to subject anyone to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .", "If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( LAW . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .", "A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .", "In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .", "If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .", "An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .", "By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .", "If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .", "The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .", "Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .", "Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :", "“ All acts or decisions of the authorities are subject to judicial review ...", "...", "The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”", "That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .", "DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL ) , provides :", "“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”", "DATE . Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .", "However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .", "ORG for the Prevention of Torture ( CPT ) has carried out seven visits to GPE . The first CARDINAL visits , in DATE and DATE , were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill - treatment of persons deprived of their liberty , in particular , those held in police custody . A third periodic visit took place at DATE , involving a visit to ORG . Further visits took place in DATE , DATE and DATE and DATE ( the latter CARDINAL of which involved a visit to police establishments in GPE ) . The ORG 's reports on these visits , save that of DATE , have not been made public , such publication requiring the consent of the ORG concerned , which has not been forthcoming .", "The ORG has issued CARDINAL public statements .", "In its public statement adopted on DATE , the ORG concluded that torture and other forms of severe ill - treatment were important characteristics of police custody . On its first visit in DATE , the following types of ill - treatment were constantly alleged , namely , NORP hanging , electric shocks , beating of the soles of the feet ( falaka ) , hosing with pressurised cold water and incarceration in very small , dark , unventilated cells . Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill - treatment of both a physical and psychological nature . The on - site observations in police establishments revealed extremely poor material conditions of detention .", "On its second visit in DATE , it found that no progress had been made in eliminating torture and ill - treatment by the police . Many persons complained of similar types of ill - treatment DATE an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon . Once again , a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations . On its third visit , from DATE to DATE , its delegation was inundated with allegations of torture and ill - treatment . Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations . It listed a number of these cases . On this visit , the ORG had visited ORG , where a prisoner at FAC displayed haematomas on the soles of his feet and a series of vertical purple stripes ( QUANTITY long , QUANTITY wide ) across the upper part of his back , consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody . At the headquarters of GPE and ORG , it found equipment that could be used for torture and the presence of which had no other credible explanation . The ORG concluded in its statement that “ the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE ” .", "In its second public statement , issued on DATE , the ORG noted that some progress had been made over DATE . However , its findings after its visit in DATE demonstrated that torture and other forms of ill - treatment were still important characteristics of police custody . In the course of visits in DATE , ORG delegations once again found clear evidence of the practice of torture and other forms of severe ill - treatment by the police . It referred to its most recent visit in DATE to police establishments in GPE , ORG and GPE , when it also went to CARDINAL prisons in order to interview certain persons who had very recently been in police custody in GPE and GPE . A considerable number of persons examined by the delegations ' forensic doctors displayed marks or conditions consistent with their allegations of recent ill - treatment by the police , and in particular of beating of the soles of the feet , blows to the palms of the hands and suspension by the arms . It noted the cases of QUANTITY persons who had been very recently detained at the headquarters of the anti - terrorism branch of ORG and which ranked among the most flagrant examples of torture encountered by ORG delegations in GPE . They showed signs of prolonged suspension by the arms , with impairments in motor function and sensation which , in QUANTITY persons , who had lost the use of both arms , threatened to be irreversible . It concluded that resort to torture and other forms of severe ill - treatment remained a common occurrence in police establishments in GPE .", "The “ Manual on ORG - legal , Arbitrary and LAW ” adopted by ORG in DATE includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel . In its introduction , it noted that an abridged examination or report was never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details :", "“ It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope . The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results . ”", "NORP In part CARDINAL(c ) , it stated that adequate photographs were crucial for thorough documentation of autopsy findings . Photographs should be comprehensive in scope and confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report ." ]

[ "13", "2", "3" ]

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[ "The applicants , Mr PERSON and ORG , are NORP nationals , who were born in DATE and DATE respectively and live in ORG . They were represented before the ORG by PERSON , a lawyer practising in GPE .", "s , may be summarised as follows .", "Mr PERSON owns PERCENT and Mr PERSON owns PERCENT of the active shares of a limited company , ORG , which in turn owns a restaurant , PERSON . Both applicants are involved in the DATE running of the restaurant which is open for lunch , dinner and , during DATE , a discotheque .", "During DATE ORG ) in GPE carried out a tax audit of the restaurant covering the period from DATE . It found that the bookkeeping of the restaurant was severely deficient and that it had not kept the necessary evidence of the business ’s expenses and sales . Based on certain calculations and statistics , ORG estimated that the restaurant had omitted to account for and declare all its sales in its bookkeeping and tax returns . Consequently , it found it necessary to make a discretionary assessment of the restaurant ’s unrecorded sales , which it calculated at SEK CARDINAL,CARDINAL,CARDINAL ( approximately ORG CARDINAL ) and to adjust its tax returns accordingly .", "On DATE , on the basis of the results from the tax audit , ORG decided to increase the applicants’ income from business for the tax assessment DATE and DATE and to impose tax surcharges on them amounting , in total , for Mr GPE to SEK CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) and for Mr PERSON to SEK CARDINAL,CARDINAL ( approximately ORG CARDINAL ) . As the applicants , together with a third person , were the main owners of the company which owned the restaurant , and as they were in charge of its DATE running , ORG found that most of the unrecorded sales from the restaurant were to be considered as taxable income , in the form of salary , for the applicants and the third person . Moreover , since the applicants had failed to provide correct and complete information concerning their income , ORG considered it justified to impose tax surcharges on them and found no grounds on which to remit the surcharges .", "In DATE the applicants and the company appealed against the decisions to ORG ( länsrätten ) of GPE , disputing ORG findings and claiming that there were no grounds for changing their tax returns or imposing tax surcharges on them . In both their appeals and their supplementary submissions , the applicants stated that they wished to rely on the same grounds as the company had in its appeal and supplementary submissions to the court . The applicants and the company were represented by the same lawyer .", "On DATE ORG made the obligatory reassessment of its decisions of DATE but decided not to change them . Following this , it forwarded the appeals to ORG .", "On DATE the applicants requested ORG to grant them legal aid to engage a lawyer to represent them . They referred to LAW ) of the LAW , claiming that since their cases concerned tax surcharges they had a right to free legal aid . The applicants stated that they lacked the means to pay for a lawyer since they had been obliged to pay the additional taxes and tax surcharges , as they had not been granted respite from the payment . Furthermore , they alleged that , as immigrants in GPE , they did not have a complete command of NORP or knowledge of the NORP legal system and that their cases were complicated and involved significant amounts of money for them .", "On DATE ORG rejected the applicants’ request . It first noted that , according to LAW Rättshjälpslagen , DATE ) , the possibilities for a businessman to be granted legal aid in tax matters were very limited and it could only be granted if there were special reasons . It further observed that Article CARDINAL § FAC ) of the ORG laid down that a person was entitled to free legal assistance only if he could not afford it himself and the interests of justice so required . It also noted that the domestic case - law indicated that there was no absolute right to legal aid in cases involving tax surcharges but that regard must be had to the amount at stake ( the tax surcharges ) and the complexity and nature of the case . Turning to the particular circumstances of the ORG cases , the court considered that the material invoked by the parties was relatively voluminous but that the legal questions at issue and , in relation to these , the ancillary questions concerning tax surcharges were not of such a character as to warrant a grant of legal aid , under either NORP law or the Convention .", "The applicants appealed against the decisions to ORG ( kammarrätten ) in GPE , repeating their claims and adding that , having regard to their financial situation , the tax surcharges amounted to substantial amounts for them . They added that they needed professional help to show that ORG audit report and decisions were flawed .", "On DATE ORG upheld the lower court ’s decisions in full .", "The applicants lodged a further appeal to ORG ( Regeringsrätten ) , which , on DATE , refused them leave to appeal .", "The tax proceedings are still pending before the national courts .", "The relevant rules concerning legal aid in GPE are to be found in LAW ( Rättshjälpslagen , DATE hereinafter “ the Act ” ) . Section CARDINAL , paragraph CARDINAL , of the LAW provides that legal aid may be granted if the person applying for it is in need of legal assistance and can not obtain it by other means . Moreover , pursuant to LAW CARDINAL of the LAW , legal aid may only be granted if it is reasonable for the ORG to contribute to the costs , having regard to the nature and importance of the matter , the value of the contentious issue and other relevant circumstances . In any event , in matters concerning taxes and various fees for taxes , legal aid may be granted only when there are special reasons ( LAW , paragraph CARDINAL , point CARDINAL ) .", "Furthermore , section CARDINAL , paragraph CARDINAL , of the LAW stipulates that legal aid may not be granted to a person who is , or has been , a businessman where the contentious issue has arisen in connection with the business , unless there are special reasons relating to the nature and limited scope of the business , his or her financial and personal situation and other relevant circumstances . The LAW defines a businessman as a natural person who runs a business of an economic nature that can be described as professional , or who has a deciding influence over a legal entity which runs such a business ( section CARDINAL , paragraph CARDINAL ) .", "From the case - law of the national courts , it appears that when a case involves tax surcharges , Article CARDINAL § CARDINAL(c ) of the LAW is applicable , but that consideration must be given to the amount of the imposed tax surcharges as well as to the nature and character of the case . Moreover , only if there is a risk of particularly serious consequences or if complicated legal questions arise should free legal assistance be granted on the basis of the LAW in cases involving tax surcharges ( PERSON Årsbok DATE ref DATE ) .", "Section CARDINAL of the Administrative Court Procedure Act ( ORG CARDINAL:CARDINAL ) requires the administrative courts to ensure that the circumstances of each case are clarified to the extent that its character demands . Where necessary , the courts must give directions for the case - file to be supplemented with the requisite information ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE her son , Mr PERSON , who was born in DATE and lived in GPE , GPE , was involved in a road traffic accident . On DATE he died from his injuries .", "In DATE Mr PERSON befriended ORG On TIME of CARDINAL DATE the CARDINAL travelled from GPE to GPE . They were travelling by car , a ORG CARDINAL Series belonging to a company owned by ORG ’s family . In TIME they left GPE and headed back to GPE . On their way back , they passed through the town of GPE at TIME , where they met ORG ’s brother and CARDINAL friends of his , GPE and GPE According to later statements of ORG and a friend of his , S.S. ( see paragraphs CARDINAL and CARDINAL below ) , shortly after that on the road to GPE they saw FAC , whose car was stopped at the side of the road because he had a flat tyre . They lent him the ORG ’s spare tyre and continued on their way .", "When , some time after TIME , they were passing through the village of GPE , where the speed limit was QUANTITY , they started overtaking a lorry with a trailer . The lorry , driven by P.P. , reached a crossroad and started turning left . The ORG was moving behind it at QUANTITY . It did not slow down and collided headon with the lorry ’s trailer . Immediately after the crash the ORG caught fire . P.P. , who had not sustained any injuries , got out of the lorry and , with the help of the driver of a Lada Niva with registration plates from the town of GPE , took Mr PERSON and ORG out of the burning ORG .", "At TIME Mr PERSON and ORG were taken to a hospital in GPE . Mr PERSON was in a very bad condition and unconscious . ORG ’s injuries , although serious , were not as critical . Some time later a police officer came to the hospital . He was unable to interview Mr PERSON or ORG , the former being unconscious and the latter apparently being in a state of shock and incapable of making coherent statements . After that the officer visited the scene of the accident and took notes and pictures .", "On DATE Mr PERSON was transferred to a hospital in GPE . He did not regain consciousness and died on DATE .", "On DATE a doctor from the forensic medicine department of ORG performed an autopsy on PERSON PERSON ’s body . He found numerous traumatic injuries to his head , limbs and internal organs . The doctor ’s conclusion was that he had died from his brain injuries . In his opinion , these injuries had been caused by the impact of the collision .", "On TIME the accident the police opened an inquiry into the actions of ORG on suspicion that , by breaching road traffic regulations , he had caused the accident and had thus negligently inflicted bodily injury on PERSON PERSON .", "On DATE the police interviewed P.P. He described the accident and said that he had taken the CARDINAL injured men out of the ORG with the help of other drivers who had stopped nearby . DATE he gave a blood sample . The sample was analysed on DATE and it was determined that his blood had no alcohol content .", "On DATE the officer investigating the case asked an expert to determine whether Mr PERSON ’s death had been a result of the accident .", "On DATE the police sent the case to ORG , proposing to convert the inquiry into a fully fledged homicide investigation . The case was then forwarded to ORG , which on DATE opened a criminal investigation .", "On DATE the investigator to whom the case had been assigned asked an expert to determine whether P.P. had manoeuvred properly . In his report , filed on DATE , the expert said that ORG had carried out the left turn correctly and that the accident had occurred because of the ORG ’s high speed , well above the maximum allowed on that part of the road .", "On DATE the investigator interviewed P.P. again .", "On DATE the investigator asked an expert to determine ( a ) the exact spot where the ORG and the lorry ’s trailer had collided ; ( b ) the ORG ’s and the lorry ’s exact speed before the accident ; ( c ) the distance between the ORG and the lorry at the time the lorry began its left turn ; and ( d ) whether it had been possible for the ORG ’s driver to avoid the accident . In his report , filed on CARDINAL DATE , the expert said that ( a ) the collision had taken place on the road ; ( b ) the lorry had been travelling at QUANTITY and the ORG at QUANTITY ; ( c ) the ORG had been eightythree metres behind the lorry at the time the lorry had started to turn ; and that ( d ) the ORG ’s driver could have stopped before the collision point .", "It seems that no procedural steps were taken during DATE .", "On DATE the investigator sent the file to ORG with a recommendation to discontinue the proceedings . On DATE that ORG referred the case back , noting that , although DATE had passed following the opening of the proceedings , the inquiries had not been comprehensive and thorough . No steps had been carried out with the participation of ORG and various other pieces of evidence had not been gathered .", "In the meantime , on DATE the applicant and her husband , who later passed away , brought a civil party claim against ORG", "On DATE the investigator interviewed ORG He described the events of DATE and asserted that , although the ORG had belonged to his and his brother ’s company , PERSON had been the one driving it at the time of the accident . He also said that he would be able to find witnesses who could confirm that assertion .", "On DATE the investigator interviewed P.P. once again . He mentioned the driver of the Lada Niva ( see paragraph CARDINAL above ) , but said that he did not remember his name or the exact number of his registration plates . He described how the CARDINAL of them had taken the CARDINAL injured men out of the ORG , and said that the CARDINAL behind the wheel had been ORG After that the investigator organised an identity parade at which P.P. identified ORG as the ORG ’s driver .", "On CARDINAL DATE the investigator interviewed ORG He said that he knew ORG well , but had not known Mr PERSON at all . He also said that when ORG and PERSON had stopped to help him with the flat tyre , the CARDINAL driving the ORG had been Mr PERSON .", "On DATE the investigator charged ORG and interviewed him . ORG asserted that the person driving the ORG at the time of the accident had been Mr PERSON . On the way from GPE they had switched several times , but at the time of the accident the CARDINAL behind the wheel had been Mr PERSON . This had been witnessed by several people in GPE . It had also been witnessed by his friend , FAC , on the road between GPE and the place of the accident .", "DATE the investigator interviewed GPE and GPE , who said that they had been having dinner with ORG ’s brother in PERSON when they had met PERSON and PERSON . They also said that they were acquainted with ORG , but had known Mr PERSON only by sight . Both of them stated that the one driving the ORG at the time of their meeting had been Mr PERSON .", "On DATE the investigator sent the case to ORG , recommending that the proceedings be discontinued . He noted that the technical expert report and the inspection of the site of the accident showed that the accident had been the fault of the ORG ’s driver . The only contentious issue was whether this had been ORG or PERSON . P.P. had stated that the one behind the wheel had been ORG However , the latter had disputed this assertion and had provided CARDINAL witnesses – I.M. , GPE and DATE who had all asserted that the one driving the ORG had been Mr PERSON . It could therefore be concluded that the ORG had been driven by PERSON .", "On DATE ORG referred the case back to the investigator for additional investigation .", "On DATE the investigator interviewed the police officer who had started the inquiry . He said that he had first gone to the hospital and then to the scene of the accident , but was unable to say which of the CARDINAL persons in the ORG had been the driver .", "On DATE the investigator asked CARDINAL medical experts to assess the extent of ORG ’s injuries and to express an opinion on whether he had indeed been unable to make coherent statements after the accident . In their report , filed on DATE , the experts said that it was impossible to determine this solely from the materials in the file because shortly before the accident ORG had been involved in another road traffic accident . It was necessary to examine him personally .", "On DATE the investigator asked CARDINAL experts to express their opinion on whether PERSON or ORG had been driving the ORG at the time of the accident . However , the experts were unable to examine ORG , who had gone missing , and the report could not be completed . On DATE the experts sent the file back to the investigator and asked him to order that ORG be compelled to appear .", "On DATE ORG , to which the file had been sent , returned it for further investigation . It ordered that ORG be compelled to submit to an examination by the experts .", "On DATE the investigator requested the police to trace ORG with a view to summoning him . The police supplied information about his address on DATE . On CARDINAL DATE he was summoned for DATE , but failed to appear . Accordingly , on DATE the investigator ordered that he be brought by force . On DATE ORG decided to place him in custody . On DATE instructions were given for him to be found .", "On DATE ORG appeared before the investigator . He was charged , interviewed and allowed to examine the file with his counsel . He said that he stood by his previous statements .", "On DATE the investigator sent the case to ORG , recommending that ORG be brought to trial .", "On DATE ORG sent the case back to the investigator , noting , among other things , that he had not properly worded the charge , that no information had been gathered on any previous road traffic offences committed by ORG , and that the medical expert report ordered on DATE had not been finalised . It instructed the investigator to examine whether ORG had made the left turn in line with road traffic rules and , if he found that this was not the case , to charge him as well .", "NORP On DATE the investigator asked an expert to determine whether P.P. had turned left properly . In his report , filed on DATE , the expert stated that ORG had not breached any road traffic rules .", "On DATE the investigator asked CARDINAL experts to determine , on the basis of the injuries sustained by PERSON and ORG , which of the CARDINAL had been driving the ORG at the time of the accident . The experts studied the documents in the file , including the medical report drawn up when PERSON had been admitted to the hospital in GPE , his autopsy report , and a medical report on ORG ’s condition on DATE after the accident . On DATE they examined ORG and on DATE subjected him to an X - ray and a CAT scan . However , they were not able to inspect the ORG , as it had apparently disappeared .", "On DATE the investigator interviewed ORG in relation to the ORG ’s whereabouts . He said that he had left it on a street in the village of PERSON . Somebody had later removed it from there and he had no idea where it was .", "In their report the experts said that , without inspecting the ORG and on the basis of the medical data alone , they could not reach a definite conclusion as to which of the CARDINAL had been driving it at the time of the accident .", "On DATE the investigator charged ORG anew and interviewed him , and on DATE ordered that the applicant be allowed to participate in the proceedings as a civil claimant .", "On DATE the investigator sent the case to ORG , proposing that ORG be brought to trial .", "However , on DATE ORG decided to discontinue the proceedings , reasoning that it had not been conclusively established who had been driving the ORG at the time of the accident . According to GPE , GPE and FAC , it had been Mr PERSON , whereas P.P. maintained that it had been ORG The experts had been unable to arrive at a categorical conclusion on this point . It was also unclear whether the line in the middle of the carriageway had been continuous or dotted . Therefore , the accusation had not been proved . On DATE the prosecutor ’s office sent the case of its own motion to ORG .", "In a decision of DATE ORG , noting that in accordance with an intervening legislative amendment the decision to discontinue an investigation was no longer subject to automatic review by the courts , but could only be reviewed pursuant to an application by those concerned , referred the case back to the prosecution authorities with instructions to inform the applicant of the discontinuance .", "On DATE a prosecutor of ORG again discontinued the investigation . He described the circumstances of the accident and said that it was clear that the ORG ’s driver had breached road traffic regulations , whereas ORG had properly made a left turn . However , despite taking all the necessary steps , the investigation had been unable to ascertain who had been driving the ORG at the time of the accident . CARDINAL witnesses – I.M. , GPE and DATE were categorical that the ORG had been driven by PERSON . The experts were unable to arrive at a definite conclusion on this point . The police officer who had inspected the scene could not say who had been driving the ORG either . On the other hand , P.P. , when interviewed , had stated that the ORG had been driven by ORG , and had identified him as the driver during an identity parade . It was also unclear whether the line in the middle of the carriageway had been continuous or dotted . Therefore , the accusation had not been proved .", "This decision was sent to the applicant on DATE .", "On DATE the applicant sought judicial review by ORG . She argued that the conclusion that it could not be determined whether ORG had been behind the wheel at the time of the accident was based on incomplete evidence . The authorities’ preference for the testimony of GPE , GPE and FAC , who had not witnessed the accident , over the testimony of P.P. , who had taken the victims out of the burning ORG , was unwarranted . The discrepancy between their versions should have been elucidated through a confrontation . She further pointed out that it would not have been very hard to establish the identity of ORG driver and then interview him , which had not been done .", "On DATE the court , observing that the prosecution authorities had failed to serve a copy of the application on ORG , referred the case back to them with instructions to do so . They apparently complied with these instructions and re - sent the file to the court .", "After holding a hearing on DATE , in a decision of CARDINAL DATE the court upheld the decision to discontinue the proceedings . It held that when hearing a challenge against a decision discontinuing a criminal investigation it could not scrutinise the manner in which the prosecution authorities had assessed the evidence , nor take their place and fill in the gaps in their reasoning . It was not competent to gather fresh evidence either ; its assessment had to be based on the available material . Accordingly , even if it were to find gaps in it , it could not set aside the discontinuance decision on that ground .", "The applicant appealed , but , following a legislative amendment effective from DATE and providing that firstinstance court decisions reviewing prosecutor ’s decisions to discontinue criminal investigations were final , the court terminated the proceedings on DATE .", "NORP Throughout the proceedings the applicant wrote many letters to the prosecuting authorities , urging them to expedite the processing of the case . On some of those occasions ORG sent letters to the lower prosecutor ’s offices , instructing them to finalise the case promptly .", "On DATE the applicant brought a tort claim against ORG in ORG . After holding a hearing on DATE , on DATE the court stayed the proceedings pending the outcome of the criminal investigation . On several occasions DATE it enquired about the investigation ’s progress . On DATE , following the upholding of the investigation ’s discontinuance , it resumed the examination of the claim .", "The court then held CARDINAL hearings , on DATE and DATE . The applicant could not be found and summoned for the first of those at her home , and was regarded as summoned under a rule allowing constructive summoning where a party failed to inform the court of a change of address . The court summoned the applicant for the second hearing through the counsel who represented her before the proceedings were stayed . However , neither the applicant nor the lawyer appeared . The court admitted in evidence the prosecutor ’s decision to discontinue the criminal proceedings and the decision whereby ORG had upheld the discontinuance ( see paragraphs CARDINAL and CARDINAL above ) .", "ORG dismissed the applicant ’s claim on DATE . It held as follows :", "“ [ The ] prosecutor ’s decision [ of DATE – see paragraph CARDINAL above ] and [ the ] PERSON Regional Court ’s decision [ of CARDINAL DATE see paragraph CARDINAL above ] were admitted in evidence without being challenged . The prosecutor ’s decision shows that the criminal proceedings against [ ORG ] under LAW ( c ) , read in conjunction with LAW of LAW [ see paragraph CARDINAL below ] have been discontinued for lack of evidence . The reasons for the discontinuance are that it was not established in a categorical manner who had driven the car at the time of the road traffic accident , and that there was a lack of categorical findings as to whether the line in the middle of the carriageway at the area of the accident had been continuous or dotted .", "In those circumstances , the [ court ] finds that the claims under section CARDINAL(CARDINAL ) of the Obligations and Contracts Act [ see paragraph CARDINAL below ] are unfounded and should not be allowed . ... ”", "Notice of the court ’s judgment was sent to the applicant ’s address in GPE , but could not be delivered because she no longer lived there . Another notice was sent to the abovementioned lawyer ; it was received by a colleague of his on DATE .", "There is no indication that the applicant appealed against the judgment .", "Article CARDINAL § CARDINAL ( c ) , read in conjunction with LAW of LAW DATE , makes it an offence to cause the death of another by driving in reckless disregard of road traffic regulations . The penalty on conviction is up to six years’ imprisonment .", "The civillaw consequences of road traffic accidents are governed by the general law of torts . The relevant provisions are set out in sections CARDINAL of ORG DATE ( ORG за задълженията и договорите ) . LAW ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . In all cases of tortious conduct , fault is presumed unless proved otherwise ( section ORG ) ) . Compensation is due for all damage that is a direct and proximate result of the tortious act ( section CARDINAL(CARDINAL ) ) . The amount of compensation in respect of nonpecuniary damage is to be determined by the court in equity ( section CARDINAL ) .", "The law concerning civilparty claims in criminal proceedings and separate civil claims is set out in the ORG ’s admissibility decision in the case of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) and in DATE and CARDINAL of the ORG ’s judgment in the case of GPE v. GPE ( no . CARDINAL/CARDINAL , DATE ) .", "The provisions governing discontinuance of criminal proceedings before trial are set out in the ORG ’s decision in the case of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .", "The rules governing stays of civil proceedings and the effects of a decision to discontinue a criminal investigation on the examination of a separate civil claim arising out of the same events were at the relevant time contained in Articles CARDINAL , CARDINAL and CARDINAL the Code of Civil Procedure DATE . They provided as follows :", "“ The court shall stay the proceedings :", "...", "( d ) whenever criminal elements , the determination of which is decisive for the outcome of the civil dispute , are discovered in the course of the civil proceedings . ”", "“ Proceedings which have been stayed shall be resumed on the court ’s own motion or upon a party ’s request after the respective obstacles have been removed ... ”", "“ The final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated , whether it was unlawful , and whether the perpetrator was guilty of it . ”", "The former ORG has given a number of rulings as to the effect of the above provisions .", "In a decision of DATE ( тълк. реш. № CARDINAL от CARDINAL декември DATE , ORG ) , ORG of the former ORG , in giving a binding interpretation of Articles CARDINAL § CARDINAL ( e ) and CARDINAL of the Code , held that a prosecutorial decision discontinuing a criminal prosecution on the ground that the accused has not committed the impugned act is , unlike a judgment of conviction or acquittal , not binding on the civil court that rules on the civil consequences of that act .", "In a judgment of CARDINAL DATE ( реш. № DATE от CARDINAL януари DATE г. по гр. д. № DATE г. , ORG , I г. о. ) , ORG of ORG held :", "“ In principle , the fact that a criminal offence [ has been committed ] may be established only in proceedings under LAW . That is why , by LAW [ LAW ] ( d ) of ORG [ DATE ] , where an alleged civil right derives from a fact which amounts to an offence under LAW , the civil court is bound to stay the civil proceedings . That is necessary in order to follow the judgment of the criminal court . This is mandatory for the civil courts in all cases , regardless of the criminal offence to which [ the proceedings ] relate . The binding force of the judgments of criminal courts is set out in LAW [ DATE ] .", "Under [ that provision ] , the final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated , whether it was unlawful , and whether the perpetrator was guilty of it . The law does not allow the [ civil ] court freely to assess the evidence and requires that court , in order to abide by the criminal judgment , to regard as established the facts that that judgment has found to have occurred or otherwise . The criminal court ’s judgment is res judicata in relation to the matters mentioned in LAW . That res judicata effect has to be taken into account by all courts and ORG authorities . It can not be challenged when the criminal court ’s judgment has taken effect . It presupposes that the act that forms the subject matter of the criminal judgment and the act that needs to be established in the civil proceedings coincide . It does not matter whether the act has been perpetrated by the defendant to the civil action or is an act by a third party that has an effect on the defendant ’s liability . [ The court ] must treat as binding not only convictions , but also acquittals , in cases where they have established the lack of elements of the tort [ in question ] : for instance , the lack of an tortious act , [ or ] the lack of a causal link between the act and the damage [ suffered by the claimant ] . However , a criminal court ’s judgment does not need to be treated as binding where it has acquitted the defendant on the ground that his or her act was not criminal – an act , although not amounting to a criminal offence , may still be a tort . The binding effect of the criminal court ’s judgment relates to all elements of the criminal offence . When the amount of the damage is an element of the offence , the criminal court ’s findings as to that amount are binding on the court which rules on the civil claim . When the criminal court has made findings in relation to the amount of the damage caused because it was an element of the criminal offence of which a person has been accused , those findings are binding on the court determining the civil claim . [ For instance , ] in the case of a theft , where the sum of money stolen is an element of the criminal offence , the criminal court ’s findings as to that sum are binding in the civil case . [ Similarly , in ] the case of the offence of wilful mismanagement ... , the amount of damage caused is an element of the offence ; in order for the impugned act to have constituted an offence , it must have caused significant damage . In order to determine whether the damage is significant , the criminal court must make findings as to its amount . That is why the amount of the damage featuring in the criminal court ’s judgment is binding [ on the civil court ] . ”", "DATE . In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ) , concerning a claim for damages arising out of a road traffic accident , ORG of the former ORG held :", "“ In dismissing the claim , the [ lower ] court found that the only party responsible for the accident was the claimant , who , at a distance of QUANTITY , suddenly jumped in front of the car in order to cross the street and that therefore , despite the steps taken by the driver , the collision was not avoided .", "That conclusion was based on the fact that the criminal investigation against the driver had been discontinued on the grounds of lack of evidence , lack of some of the elements rendering the act a criminal offence , and lack of guilt .", "By basing its findings on the discontinuance of the criminal investigation , the [ lower court ] acted in breach of LAW , which provides that only the final judgment of a criminal court is binding on the civil court which deals with the civil consequences of the impugned act ... The prosecutor ’s decision to discontinue the investigation has no evidential value and his or her findings are not binding on the court dealing with the civil consequences of the act . Where there is no judgment of a criminal court finding the accused not guilty of causing the claimant ’s injuries , the civil court must establish whether or not the defendant has committed the alleged act on the basis of all types of evidence admissible under LAW . The prosecutor ’s decision to discontinue the investigation has no evidential value and does not show that the defendant is not responsible for the road traffic accident . ”" ]

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[ "The applicant company , ORG , is a company incorporated in GPE . It was represented before the ORG by PERSON V. ORG , a lawyer practising in GPE .", "The applicant was the proprietor of a NORP patent in the area of chip technology . The patent was contested in an opposition proceeding before ORG ( “ EPO ” ) . At first instance , on DATE ORG of the EPO maintained the patent in an amended ( limited ) form , that is , the proprietor added further features to the granted claims of the patent in order to meet the requirements of LAW . The decision was appealed against by all parties to the proceedings . The applicant requested that the patent be upheld unamended , or , by way of auxiliary request , that it be maintained in accordance with CARDINAL of CARDINAL sets of amended claims filed with the grounds .", "On DATE , ORG of the EPO summoned the parties to oral proceedings to commence on DATE . ORG indicated that it “ may disregard evidence which is not submitted in good time prior to the oral proceedings . ” It added that the same applied to amendments to the patent documents , which “ should be filed as early as possible ( DATE before the date set for the oral proceedings ) . ” On DATE , DATE before the expiry of the time - limit , the applicant filed CARDINAL new auxiliary requests . In the course of the oral proceedings the applicant withdrew its previous main request and all but CARDINAL auxiliary requests . It requested that the decision under appeal be set aside and that the patent be maintained in its amended form on the basis of the CARDINAL remaining auxiliary requests .", "By letter dated DATE one of the opponents filed new prior art documents . The opponents requested that the decision under appeal be set aside and the patent revoked .", "As to the procedural issues , the opponents further argued that those of the CARDINAL requests filed on DATE which opened up new issues were inadmissible , as they had not been lodged in due time . The applicant argued that the requests were admissible since they had been presented within the time - limit set by ORG in the summons to oral proceedings .", "At the end of the oral proceedings , on DATE , ORG quashed the decision under appeal and revoked the patent .", "It rejected CARDINAL of the applicant ’s ( auxiliary ) requests as inadmissible . Referring to CARDINAL previous decisions , not published in ORG EPO ( “ ORG EPO ” ) , and to LAW ( see relevant law below ) , the ORG considered that requests filed at a point in time just before the minimum period set by the board in a summons to oral proceedings were to be regarded as belated if they raised issues which would require a further written phase in order to be properly dealt with . ORG further noted that , regardless of whether the opponents had been familiar with all the technical issues , they had not accepted that the invention according to the auxiliary requests was patentable . Thus , the divergent features would still have required extensive discussions .", "ORG also rejected the applicant ’s CARDINAL remaining requests . In its reasoning it also took into account the documents filed by the opponents on DATE . With regard to the admissibility of these documents the ORG found that their slight lateness had been of no importance and admitted them into the proceedings . It argued that it could always exercise certain discretion to admit documents and that there had been sufficient time left for all parties to study the documents . The written version of the decision was served on the applicant ’s representative on DATE .", "On DATE the ORG refused to admit the applicant ’s constitutional complaint for adjudication . Referring to its caselaw establishing the principle that it would refrain from exercising its jurisdiction as long as the protection received within the framework of ORG fundamental rights was in general equivalent to the standard of LAW , it held that the applicant had failed to sufficiently demonstrate that the fundamental rights protection within LAW did not meet this standard .", "ORG is an intergovernmental organisation that provides for an autonomous protection mechanism for individual inventors and companies seeking uniform patent protection in CARDINAL NORP countries . When the events at issue occurred , LAW DATE was in force . A revised version of LAW entered into force on DATE .", "Article CARDINAL of LAW DATE reads as follows :", "“ ( CARDINAL ) Patents granted by virtue of this Convention shall be called NORP patents .", "( CARDINAL ) NORP patent shall , in each of GPE for which it is granted , have the effect of and be subject to the same conditions as a national patent granted by that ORG , unless otherwise provided in this LAW . ”", "Article CARDINAL of LAW DATE provides :", "“ ( CARDINAL ) A NORP patent shall , subject to the provisions of paragraph CARDINAL , confer on its proprietor from the date of publication of the mention of its grant , in each Contracting State in respect of which it is granted , the same rights as would be conferred by a national patent granted in that ORG .", "( CARDINAL ) ...", "( CARDINAL ) Any infringement of a NORP patent shall be dealt with by national law . ”", "Article DATE of LAW DATE provides :", "“ The NORP patent application and the resulting patent shall be deemed not to have had , as from the outset , the effects specified in GPE CARDINAL and CARDINAL , to the extent that the patent has been revoked in opposition proceedings . ”", "LAW leaves it open to the Member GPE to provide for their own national patent protection system . GPE provides for such a protection mechanism with LAW ( Patentgesetz ) and ORG ( GPE Patent- und Markenamt ) . Neither LAW nor LAW exclude a patentee from applying under the other protection mechanism . Article CARDINAL of LAW DATE provides :", "“ ( CARDINAL ) In any designated Contracting ORG a NORP patent application and a NORP patent shall have with regard to a national patent application and a national patent the same prior right effect as a national patent application and a national patent .", "( CARDINAL ) ORG national patent application and a national patent in a Contracting State shall have with regard to a NORP patent in which that ORG is designated the same prior right effect as they have with regard to a national patent .", "( CARDINAL ) Any Contracting State may prescribe whether and on what terms an invention disclosed in both a NORP patent application or patent and a national application or patent having DATE of filing or , where priority is claimed , the same date of priority , may be protected simultaneously by both applications or patents . ”", "With regard to appeals to ORG , LAW DATE provides as follows :", "“ ( CARDINAL ) NORP In order to ensure uniform application of the law , or if an important point of law arises :", "( a ) ORG shall , during proceedings on a case and either of its own motion or following a request from a party to the appeal , refer any question to ORG if it considers that a decision is required for the above purposes . If ORG rejects the request , it shall give the reasons in its final decision ;", "( b ) the President of ORG may refer a point of law to ORG where CARDINAL ORG have given different decisions on that question . ”", "Article CARDINAL § CARDINAL of the Rules of Procedure of ORG ( ORG EPO DATE , CARDINAL ) in force at the relevant time provides :", "“ ( CARDINAL ) ORG shall ensure that each case is ready for decision at the conclusion of the oral proceedings , unless there are special reasons to the contrary . Before the oral proceedings are closed , the decision may be announced orally by the Chairman . ”" ]

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[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant company dismissed PERSON from his job . On DATE M. initiated court proceedings seeking his re - instatement .", "After numerous postponements of the hearing at PERSON ’s request , ORG found in his favour on DATE .", "The applicant company appealed . On DATE ORG quashed the first - instance judgment and adopted a new one , rejecting all of PERSON ’s claims . The court found that PERSON had not submitted any evidence to support his claim that on DATE , when he was absent from work , he had been at a close relative ’s funeral .", "M. lodged an appeal in cassation . The first hearing before ORG was scheduled for DATE . On DATE the applicant company informed the court that its representative would be away for DATE and asked for a postponement of the hearing .", "According to the applicant company , it did not hear from the court and thus did not submit its written reply to PERSON ’s appeal , as it was waiting for a summons for a new date . On DATE it enquired about the new date of the hearing . In response , it was informed that PERSON ’s appeal had been examined on DATE and fully allowed .", "In its judgment , the court relied , inter alia , on evidence of PERSON ’s presence at a close relative ’s funeral and on the trade union association ’s opposition to the dismissal .", "Having examined the materials in the file , the applicant company found that its request for a postponement had been accepted by the court on DATE and a new date for the hearing had been set for DATE . There was also a summons for that date , which had been signed only by PERSON", "The applicant company lodged a request for revision of the judgment of ORG . It informed the court that it had not received any summons for DATE and drew the court ’s attention to the absence in the file of any evidence regarding the delivery of the summons . It invoked LAW .", "On DATE ORG rejected the request . It found that the court had sent the summons to the applicant company ’s address on DATE and that the applicant company had failed to appear at the hearing on DATE without informing the court . The court did not see any reason to believe that the applicant company had not received the summons since the stub from the summons proved that it had been sent out and since “ there was no evidence that the summons had not been received ” . It added that , under LAW ( ORG , see below ) , the failure of CARDINAL of the parties to appear did not prevent the court from examining the case and that , under LAW , the examination of the case in the absence of a party was not a ground for the revision of the judgment .", "The relevant provisions of LAW read as follows :", "“ Article CARDINAL . Service of the summons ...", "( CARDINAL ) The summons ... shall be sent by registered mail with confirmation of delivery or through a person authorised by the court . The date of service of the summons ... shall be written on the summons , as well as on the receipt , which shall be returned to the court .", "...", "( CARDINAL ) The summons ... addressed to a natural person shall be served on him or her personally and shall be countersigned on the receipt . The summons ... addressed to a legal person shall be served on the authorised employee and shall be countersigned on the receipt ; if such a person is absent , the summons shall be served on another employee in the same conditions ... ”", "“ Article CARDINAL", "... ( CARDINAL ) NORP The President of the Chamber [ of ORG ] shall set , within DATE , the date for hearing the appeal in cassation and inform the parties accordingly . A copy of the appeal in cassation shall be sent to the other parties together with a summons to attend the hearing , indicating that a written reply should be submitted to the court not DATE before the hearing .", "Article CARDINAL", "... ( CARDINAL ) The appeal in cassation shall be examined after the parties have been summoned . However , their failure to appear shall not prevent the examination of the appeal . ”", "On DATE the plenary meeting of ORG adopted a decision “ Regarding the application of the rules of LAW to the examination of cases by the first - instance courts ” . In point CARDINAL of that decision the court noted that examining a case in the absence of a party which had not been properly summoned was contrary to the law . It added that under LAW a person should be considered as lawfully summoned only if he or she had been personally served with the summons and had countersigned the receipt .", "In the following judgments adopted by ORG on DATE ( no . CARDINALra-CARDINAL/CARDINAL ) , DATE ( no . CARDINAL ) and DATE ( no . CARDINAL ) , that court confirmed the requirement of personal service of the summons and the counter - signature by the addressee , failing which the summons was considered as not having been properly served ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and is currently detained in FAC , ORG .", "He was held in police custody from DATE , on suspicion of having sexually assaulted his stepdaughters . He made a full confession and , at the end of the period in police custody , he was charged with rape and aggravated sexual assault . He was detained on remand .", "On DATE , under questioning by the investigating judge , the applicant retracted his confession ; on CARDINAL DATE he denied all the accusations made against him . He said that he had taken valium while in police custody and claimed that this drug could have impaired his mental faculties .", "On DATE the investigating judge extended the detention order . By an order of CARDINAL DATE , he rejected an application by the applicant for release . In a judgment of DATE , ORG of ORG upheld the order . On DATE ORG dismissed an appeal on points of law lodged by the applicant . ORG which ruled in that judgment was composed of ORG , President , a reporting judge and CARDINAL other judges , including PERSON and Mr FAC .", "NORP On DATE the parties were informed that the investigation was complete . By a judgment of DATE ORG committed the applicant to stand trial at ORG .", "The applicant appealed on points of law and put forward CARDINAL grounds in support of his appeal : the first alleged that ORG had failed to comply with the procedural rules necessary for the effective exercise of the rights of the defence , as set out in LAW , concerning the parties ' access to the case file before the hearing ; the second concerned a lack of sufficient reasoning in the order committing him for trial , and noted that it did not set out the facts on which the charges were based or explain why the alleged offences were classified as they were .", "ORG delivered a judgment dismissing the appeal on DATE . The ORG which ruled on the appeal was composed of PERSON , acting as president in the absence of the incumbent president who was unable to attend , Mr FAC as reporting judge , and QUANTITY other judges .", "In a judgment of DATE , ORG convicted the applicant and sentenced him to DATE imprisonment and suspended his civic , civil and family rights for DATE .", "On that same date the applicant lodged an appeal with ORG , in which he raised CARDINAL points of law . The first alleged a violation of LAW , on the ground that ORG had not stated by what majority of votes the sentence had been imposed ; the second concerned a failure to comply with the principle that hearings must be oral and , in particular , with LAW , which in principle prevented the court proper and the jury from deliberating with the case file before them ; in his third point , the applicant complained of a violation of LAW , which prohibited the content of statements being mentioned in the official record , unless the presiding judge decided otherwise ; the fourth and fifth points concerned the wording of the questions put to the jury ; the final point alleged a breach of the rights of the defence , on the ground that the accused had not spoken last on the question of the withdrawal of parental responsibility .", "The applicant was provisionally granted legal aid but , in a decision of DATE , ORG refused his request on the ground that “ no arguable ground ” of appeal on points of law could be made out against the judgment of DATE .", "In a judgment of DATE , ORG dismissed the applicant 's appeal on points of law . The ORG was composed of PERSON , President , PERSON , reporting judge , and Mr FAC , judge .", "On DATE the President of ORG dismissed an appeal on points of law lodged by the applicant against ORG decision .", "The relevant provisions of LAW applicable at the material time are the following :", "“ Where appropriate , after delivering the judgment the president [ of the assize court ] shall , if applicable , inform the accused of his or her right to lodge an appeal on points of law , and inform him or her of the time - limit for such an appeal . ”", "“ In the event of a breach of the law , judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies may be set aside on an appeal on points of law to ORG lodged by the public prosecutor or by the party adversely affected , according to the distinctions made hereafter .", "Such appeals shall be lodged with ORG . ”", "“ Judgments of indictment divisions and judgments of trial and appellate courts against which no ordinary appeal lies and which comply with the formal requirements laid down by statute may be quashed only on grounds of a breach of the law . ”", "“ Such judgments shall be declared null and void if they are not delivered by the prescribed number of judges or have been delivered by judges who have not attended all the hearings in the case . Where several hearings have been held in one and the same case , the judges who have taken part in the decision shall be presumed to have attended all of them .", "Such judgments shall also be declared null and void if they have been delivered without submissions having been heard from the public prosecutor .", "Subject to the exceptions laid down by law , judgments which have not been delivered , or in respect of which the proceedings have not been conducted in open court , shall also be declared null and void . ”", "“ Judgments of indictment divisions and judgments against which no ordinary appeal lies shall be declared null and void if they contain no reasons or if the reasons are insufficient and do not enable ORG to exercise its power of review and to ascertain that the law has been complied with in the operative provisions .", "The same rule shall apply in the event of a failure or refusal to rule either on CARDINAL or more applications by the parties or on CARDINAL or more applications by the public prosecutor . ”", "“ In criminal matters , the judgment by the indictment division committing the accused for trial shall , when it has become final , determine the jurisdiction of the assize court and cover all procedural defects , should any exist , arising from the previous proceedings . ”" ]

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[ "6" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant 's son , who was a NORP national and served in ORG , died because of an accident while on duty . ORG paid his wife and child , who resided in GPE , the insurance settlement to which they were entitled under the NORP law .", "In DATE the applicant lodged several requests with ORG and ORG “ GPE ” ( the “ ORG ” ) , seeking the insurance settlement allegedly due to him under LAW and Their Families and on ORG of the Member States of the Commonwealth of Independent States of DATE ( the “ LAW of CARDINAL DATE ” , see Relevant domestic law ) , which had entered into force in respect of GPE on DATE . By letters of CARDINAL July and CARDINAL DATE respectively , ORG and ORG rejected the applicant 's requests on the ground that his son had served in ORG and , thus , the applicant was not entitled to receive an insurance settlement under NORP law .", "In DATE the applicant sought the insurance settlement by ORG . By letter of DATE , that company refused his request and informed the applicant that the amounts due to him because of the death of his son were to be paid by ORG pursuant to LAW of DATE .", "In DATE the applicant instituted proceedings in ORG of GPE against ORG , seeking the recovery of the insurance settlement which the latter allegedly had to pay him because of his son 's death . He also sought compensation for non - pecuniary damage . The applicant argued that he was entitled to receive the insurance settlement in respect of his son on the ground that he , the applicant , resided on the territory of GPE , which had undertaken , pursuant to LAW of DATE , to make such payments if a military serviceman had died while on duty in ORG .", "On DATE the court ruled against the applicant . This judgment was upheld by ORG on DATE and ORG on DATE .", "The courts found that under NORP law the applicant was not entitled to receive the insurance settlement payable in similar cases to the relatives of NORP military servicemen . The courts held that according to LAW of DATE , read in conjunction with the decision of ORG of the Commonwealth of Independent States ( the “ ORG ” ) of DATE , such a payment should have been made by GPE , in ORG of which his son had served .", "In DATE the applicant instituted proceedings in LOC of GPE against ORG , seeking the recovery of a special pension , which he was allegedly entitled to receive under LAW GPE on ORG and Their Families of CARDINAL DATE ( the “ LAW of DATE ” ) , read in conjunction with the provisions of LAW of DATE , because of his son 's death . He relied on the same reasons as in respect of his claim against ORG .", "On DATE the court ruled against the applicant , finding that he was not entitled to receive the pension under NORP law , since his son had been a NORP national and had served in ORG .", "On DATE the applicant lodged an appeal with the same court .", "On DATE the court invited the applicant to rectify certain shortcomings in his appeal by DATE . In particular , the court noted that the appeal did not contain the correct names of the parties , reasons for challenging the judgment of CARDINAL October CARDINAL , or an exact formulation of the applicant 's request .", "On DATE the applicant lodged with the court the corrected version of his appeal , in which the opposite party was named as ORG . As regards the reasons for his disagreement with the judgment of DATE , the applicant stated that the first - instance court had wrongly interpreted and applied specific provisions of the PERSON of DATE and that it had disregarded the guarantees contained in LAW of DATE . He requested that ORG quash the impugned judgment and adopt a new decision on the merits of his claim .", "On DATE ORG declared the applicant 's appeal inadmissible . Referring to the applicant 's appeal of DATE , the court stated that the applicant had failed to make the necessary corrections to it by the deadline set by the court . The applicant was sent back both versions of his appeal along with a copy of the decision of CARDINAL DATE by the court .", "On DATE the applicant lodged with the same court an appeal against the decision of DATE . The applicant requested its annulment on the ground that ORG , deciding on the admissibility of his appeal against the judgment of DATE , had not taken into account the corrected version of his appeal lodged with that court on DATE .", "In his appeal of DATE the applicant cited the parts of his appeal of DATE that contained the reasoning for and the formulation of his request .", "In a cover letter accompanying his appeal of DATE the applicant stated that he annexed CARDINAL copies of that appeal , copies of his appeals of CARDINAL and DATE , and copies of the judgment of CARDINAL October CARDINAL and the decisions of CARDINAL and DATE .", "On DATE ORG found that the applicant 's appeal of DATE did not comply with the procedural formalities . In particular , it held that the appeal was directed against the decision of DATE and the judgment of CARDINAL October CARDINAL at the same time and that it did not contain sufficient reasoning or a list of annexed documents . The court invited the applicant to rectify the shortcomings of his appeal by DATE .", "On DATE the applicant lodged with ORG an appeal against its decision of DATE . On DATE the ORG held that the latter decision could not to be appealed against and refused to consider the applicant 's appeal .", "On DATE ORG declared the applicant 's appeal against the decision of DATE inadmissible on the ground that the applicant had failed to rectify the shortcomings indicated in its decision of DATE .", "The applicant did not appeal against the decision of CARDINAL DATE .", "Article CARDINAL of the Code of DATE provided that the judge to whom the case had been allocated should not entertain a claim which had not been lodged in compliance with the requirements set out in the Code or in respect of which court fees had not been paid . The judge was to grant a time - limit to rectify the shortcomings in the claim .", "The claim was to be declared inadmissible and sent back to the claimant if the latter had not followed the instructions of the judge .", "According to Article CARDINAL , the parties were entitled to appeal against the judgment ( decision on the merits of the case ) of the first - instance court in full or in part . A ruling ( procedural decision ) of the first - instance court was to be appealed against separately from the judgment in the cases envisaged by the LAW .", "Under Article CARDINAL , a first - instance court 's ruling could be appealed against if it impeded the further progress of the case . The parties could submit their objections against the rulings which were not to be appealed against along with their appeal against a judgment in the case .", "Article CARDINAL envisaged that an appeal should be typewritten . It was to set out", "the name of the court with which the appeal was lodged ;", "the name of the appellant , and his contact details ;", "the full and exact names of other persons participating in the case , their places of residence and contact details ;", "reference to the judgment or ruling against which the appeal was lodged and the scope of that appeal ;", "the on which the appeal was based ; new facts or means of proof important for the case or objections against the evidence , which the first - instance court had allegedly groundlessly refused to admit or which , for good reasons , could not have been submitted before ; the list of evidence admitted by the first - instance court which the appellant sought to have reconsidered by the court of appeal ;", "the petition ( object of the appeal ) ;", "a list of the written materials annexed to the appeal .", "The appeal should be signed by the appellant or his representative . It should be accompanied by a power of attorney , if necessary , and copies of the appeal and written materials . The number of copies should correspond to the number of persons involved in the case .", "According to Article CARDINAL , an appeal should be submitted to the court of first instance that had dealt with the case . The court should apply the rules contained in LAW in respect of an appeal which did not comply with the requirements set out in LAW or in respect of which court fees had not been paid .", "Pursuant to Article CARDINAL , if an appeal was lodged in compliance with the requirements of the Code the court of first instance should send copies of it to the persons participating in the case in order that they could submit any comments they might wish to make .", "Upon the expiry of the time - limit for lodging an appeal the same court should send the appeal together with the case file to the court of appeal .", "Under Articles CARDINAL and CARDINAL , the court of appeal verified whether a judgment or ruling of the first - instance court was lawful and duly reasoned . The court of appeal had the power to examine new evidence , and evidence which allegedly had not been examined in compliance with the LAW . When considering an appeal against a judgment , the court of appeal was entitled", "to reject the appeal ;", "to quash the judgment and to remit the case for a fresh consideration , if a procedural violation prevented the court of appeal from examining new evidence or the evidence which the first - instance court had not examined ;", "to quash the judgment and to discontinue the proceedings ;", "to change the judgment or to adopt a new judgment .", "According to Article CARDINAL , when considering an appeal against a ruling of the first - instance court , the court of appeal was entitled", "to reject the appeal , if the ruling had been delivered in compliance with the law ;", "to change the ruling , if it was a correct decision , though the provisions of the LAW had been wrongfully applied ;", "to quash the ruling and to remit the matter to the first - instance court for a fresh consideration , if it had not been delivered in accordance with the procedure for its consideration ;", "to quash the ruling and to deliver a new ruling on the matter , which had been resolved by the first - instance court in violation of the provisions of the LAW .", "LAW provides that an appeal shall be submitted through the court of first instance that adopted the contested decision . The court shall refer an appeal or appeals together with the case file to the court of appeal within DATE of the expiry of the time - limit for lodging the appeal or if all persons who wish to contest the decision have lodged their appeals . Appeals arriving after the referral of the case file to the court of appeal shall be referred to the same court not later than DATE .", "Pursuant to LAW , a judge of the court of appeal appointed as rapporteur shall decide on the admissibility of an appeal .", "The relevant provisions of LAW of DATE read as follows :", "“ Payment of pensions to and compulsory ORG insurance of military servicemen of ORG [ of ORG ] ... , as well as payment of pensions to the families of those military servicemen shall be arranged on the basis of the conditions , norms and in the manner established or which will be established by the legislation of GPE , on the territory on which the aforementioned military servicemen and their families reside , while before the [ relevant ] laws are adopted by these GPE [ payment of pensions and compulsory ORG insurance shall be arranged ] on the basis of the conditions , norms and in the manner envisaged in the legislation of the former Union [ of NORP Socialist Republics ] ... [ T]he level of pension payments ... shall not be lower than that established by the legislation ... of the former ORG [ of NORP Socialist Republics ] . ”", "“ ...", "The amount of allowance ( salary ) [ necessary ] for calculation of pension payments to be made to military servicemen and their families shall be determined in accordance with the legislation of the Member GPE on whose territory the military servicemen and their families reside . ”", "“ The Member GPE shall bear the expenses [ in respect of ] payment of pensions to military servicemen and their families and compulsory ORG insurance of military servicemen ... without reciprocal payments between the GPE . ”", "“ The questions concerning the application of the present Treaty shall be considered , if necessary , by ORG , as well as by ORG ... of GPE on a bilateral or multilateral basis . ”", "“ The LAW enters into force when signed [ by the Parties ] . ”", "Section CARDINAL of the PERSON of DATE read , as worded at the material time , as follows :", "“ This PERSON applies to :", "[ i ] military servicemen serving on the territory of GPE , and military servicemen , who are nationals of GPE , serving outside GPE ;", "[ ii ] NORP family members of servicemen who perished , died , disappeared , or became disabled in the course of their service ;", "[ iii ] reservists called for training , and their family members . ”", "According to LAW is entitled to give interpretation to treaties and other acts of the ORG . GPE , not having ratified either the Statute of the ORG or the Statute of ORG , does not recognise the latter 's jurisdiction .", "Pursuant to the judgment and the ruling , delivered by ORG on DATE and DATE respectively , on the interpretation of several treaties of the ORG , including LAW of DATE , the payment of an insurance settlement or of a lump sum payment to a member of the family of a deceased military serviceman shall be made by the ORG in which the serviceman was insured , irrespective of his family member 's country of residence . The insurance company or other competent authority of the ORG , in ORG which the military serviceman served , shall be responsible for the fulfilment of the obligations under the insurance contract of that serviceman ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "In DATE the applicant , together with her husband , acquired a specially protected tenancy ( stanarsko pravo ) of a flat in GPE . After her husband ’s death in DATE the applicant became the sole holder of the specially protected tenancy .", "On DATE , ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) , which regulates the sale of publicly - owned flats previously let under specially protected tenancy .", "On DATE the applicant went to visit her daughter who lived in GPE . She intended to stay with her daughter for DATE . She locked the flat in GPE and left all the furniture and personal belongings in it . She asked a neighbour to pay the bills in her absence and to take care of the flat . However , by DATE , the armed conflict escalated in GPE , resulting in severe travel difficulties in that area , including the town of GPE .", "NORP In DATE the NORP authorities stopped paying the applicant ’s pension . The payments were resumed in DATE . The applicant also lost the right to medical insurance . In these circumstances , the applicant decided to remain in GPE .", "From DATE the town of GPE was exposed to constant shelling and the supply of electricity and water was disrupted for DATE .", "In DATE a certain PERSON , with his wife and CARDINAL children , broke into the applicant ’s flat in GPE .", "On DATE GPE ) brought a civil action against the applicant before ORG ( PERSON ) for termination of her specially protected tenancy on the flat in question . GPE claimed that the applicant had been absent from the flat for DATE without justified reason .", "In her submissions to the court , the applicant explained that she had been forced to stay with her daughter in GPE from DATE until DATE . She had not been able to return to ORG since she had no means of subsistence and no medical insurance and was in poor health . Furthermore , during her stay in GPE , she had learned from the neighbour that PERSON had broken into her flat with his family . When she had enquired about her flat and her possessions in the flat , PERSON had threatened her over the telephone .", "On DATE ORG terminated the applicant ’s specially protected tenancy . The court established that the applicant had left GPE on DATE and had not returned until DATE . It stated that in the relevant period no order had been issued to the citizens of GPE to evacuate the town owing to the escalation of the armed conflict but that it had been the personal decision of every citizen whether to leave the town or to stay . On that basis the court found that the applicant ’s absence was not justified by the war in GPE .", "Furthermore , the court did not accept the applicant ’s explanation that she had fallen ill during her stay in GPE and was not able to travel . It was established that the applicant had suffered from spinal arthrosclerosis and diffuse osteoporosis for a long time , which had not affected her ability to travel . Even though her left shoulder had been dislocated on DATE , she had been able to travel following the immobilisation of the injured joint . Furthermore , by DATE she had already been absent from the flat for a period of DATE .", "The applicant ’s further explanation that she had stopped receiving her pension in DATE and thus had been left without any means of subsistence was not accepted by the court as a justified reason for not returning to ORG . It took the view that the applicant ’s daughter could have sent her money . Therefore , the court concluded that the applicant ’s reasons for not having lived in the flat were not justified .", "Following an appeal by the applicant against the judgment , it was quashed by ORG ( Županijski sud u ORG ) on DATE . ORG found that the court of first instance had not taken into careful consideration the applicant ’s personal circumstances , namely her age and poor health , the fact that she had lost her pension and the fact that she had lived alone in GPE without any close relatives . Furthermore , the applicant ’s decision to prolong her stay in GPE should have been carefully assessed against the background of objective circumstances , namely that ORG had been exposed to DATE shelling and had not had a regular supply of water or electricity in the material period , and that third persons had occupied the applicant ’s flat . The case was remitted to the first - instance court .", "In the resumed proceedings , on DATE ORG ruled again in favour of the municipality and terminated the applicant ’s specially protected tenancy . It observed that she had been absent from the flat for DATE without justified reason and repeated in substance the findings of the judgment of CARDINAL DATE .", "NORP The applicant appealed . On DATE ORG reversed the first - instance judgment and dismissed the municipality ’s claim . It found that the escalation of war and the applicant ’s personal circumstances , as described above ( see paragraphs CARDINAL - CARDINAL ) , justified her absence from the flat .", "On DATE the GPE filed a request for revision on points of law ( revizija ) with ORG ( PERSON ) .", "On DATE ORG accepted the request for revision and reversed ORG judgment . It found that the reasons submitted by the applicant for her absence from the flat were not justified .", "NORP The relevant part of ORG judgment reads as follows :", "“ In the period of the aggression against GPE , living conditions were the same for all citizens of GPE and , as rightly submitted by the plaintiff , it is neither possible nor legitimate to separate the defendant ’s case from the context of that aggression . Holding the contrary would mean assessing her case in a manner isolated from all the circumstances which marked that time and determined the conduct of each individual .", "Contrary to the appellate court ’s opinion , this court , assessing in that context the defendant ’s decision not to return to ORG during the aggression but to stay in GPE , considers the non - use of the flat unjustified . The factual findings made in the case reveal that , in view of her health condition and the available travel connections , the defendant was able to come to GPE ; her health would not have deteriorated because of her stay in GPE ; and she could have taken care of herself . The assumption that she would have had to make a considerable mental and physical effort in order to provide for her basic living needs ( all the residents of GPE who remained in the town , from the youngest to the oldest , were exposed to the same living conditions ) does not justify her failure to return to ORG and , accordingly , does not constitute a justified reason for the non - use of the flat . ”", "On DATE the applicant filed a constitutional complaint with ORG ( Ustavni sud PERSON ) . She claimed that her rights to respect for her home and property had been violated and that she had been deprived of a fair trial .", "On DATE ORG dismissed the applicant ’s complaint . It found that ORG had correctly applied the relevant legal provisions to the factual background established by the lower courts when holding that the applicant ’s absence from the flat for DATE had been unjustified . ORG concluded that the applicant ’s constitutional rights had not been violated .", "The relevant provisions of the DATE LAW ( Ustav PERSON , ORG nos . DATE and CARDINAL ) , as in force during the material period , read as follows :", "“ Rights and freedoms may only be restricted by law to protect the rights and freedoms of others , the legal order , public morals or health . ”", "“ The home is inviolable . ”", "“ CARDINAL . The right to property is guaranteed .", "Property implies duties . Holders of the right to property and its users shall have a duty to contribute to the general welfare . ”", "“ International agreements concluded and ratified in accordance with the LAW and made public shall be part of the Republic ’s internal legal order and shall be [ hierarchically ] superior to the [ domestic ] statutes . ”", "DATE of LAW ( which entered into force in respect of GPE by notification of succession on DATE ) provides :", "“ CARDINAL . No one shall be subjected to arbitrary or unlawful interference with his ... home ...", "Everyone has the right to the protection of the law against such interference ... ”", "The relevant provisions of LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , as in force in the material period , provided as follows :", "“ CARDINAL . A specially protected tenancy may be terminated if the tenant [ ... ] ceases to occupy the flat for an uninterrupted period exceeding six months .", "The termination of a specially protected tenancy under the provisions of paragraph CARDINAL of this section may not be effected in respect of a person who does not use the flat on account of undergoing medical treatment , performing military service or for other justified reasons . ”", "In case no . Rev-CARDINAL/CARDINAL ORG interpreted section CARDINAL ) of LAW as follows :", "“ War events per se , without any particular reasons indicating the impossibility of using a flat , do not constitute a justified reason for the non - use of the flat . ”", "In case no . Rev-CARDINAL/CARDINAL - CARDINAL ORG interpreted another aspect of section CARDINAL ) of LAW as follows :", "“ The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not , per se , make the non - use [ of the flat by the tenant ] justified . In other words , if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time - limits set forth in section CARDINAL(CARDINAL ) of LAW ... , then the [ illegal occupation of the flat by a third person ] is not an obstacle to the termination of the specially protected tenancy . ”", "The Specially Protected Tenancies ( Sale to Occupier ) Act ( Official Gazette no . CARDINAL ) regulates the conditions of sale of flats let under specially protected tenancies . The LAW entitles the holder of a specially protected tenancy on a publicly - owned flat to purchase it under favourable conditions ." ]

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[ "8" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant brought a civil action in ORG ( PERSON ) against the company NORP challenging her dismissal from work . She also sought damages and salary arrears .", "At the hearing held on DATE the first - instance court suspended the proceedings ( mirovanje postupka ) as neither party attended the hearing .", "On DATE the applicant asked the court to resume the proceedings . The court did so and scheduled the next hearing for DATE .", "On DATE the applicant asked for transfer of jurisdiction from ORG to ORG but her request was eventually dismissed . That decision was served on her on DATE .", "As neither party attended the hearing held on DATE , ORG issued a decision declaring that the applicant ’s action was considered withdrawn , pursuant to LAW .", "On DATE the applicant lodged a request to restore the proceedings to their previous position ( restitutio in integrum ob terminem elapsum , povrat u prijašnje stanje ) but the first - instance court dismissed her request on DATE .", "Following an appeal by the applicant , on DATE ORG ( PERSON ) reversed the first - instance decision and allowed the applicant ’s request to restore the proceedings to their previous position .", "In the resumed proceedings , ORG held CARDINAL hearings . At the hearing held on DATE the court pronounced the operative part of the judgement . It declared the applicant ’s dismissal from work wrongful , allowed her claim for salary arrears in part and dismissed her claim for damages .", "Following a request of the judge appointed to hear the case , on DATE the President of ORG granted an additional DATE time - limit for the judgement to be prepared in writing and dispatched to the parties .", "According to the Government , the judgement had been prepared on DATE and then , on DATE , dispatched to the parties . It was served on the applicant ’s representative on DATE .", "Following an appeal by the applicant , on CARDINAL DATE ORG ( PERSON ORG ) reversed the first - instance judgment by allowing her claim for damages .", "Meanwhile , on DATE the applicant lodged a request for the protection of the right to a hearing within reasonable time ( zahtjev za zaštitu prava na suđenje u razumnom roku ) with ORG .", "On DATE the ORG found a violation of the applicant ’s right to a hearing within reasonable time , awarded her HRK CARDINAL,CARDINAL in compensation and ordered ORG to give a decision in her case within DATE of the service of its decision . ORG decision was served on ORG on DATE , that is , on DATE .", "The applicant appealed arguing that the compensation she had been awarded was too low . On DATE ORG dismissed her appeal and upheld ORG decision .", "The relevant provisions of LAW ( Zakon o sudovima , ORG nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL ) , governing the request for the protection of the right to a hearing within a reasonable time , as the remedy for the length of judicial proceedings in GPE , are set out in GPE v. GPE , no . CARDINAL , § DATE , DATE ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE ORG and Highways expropriated a plot of land belonging to the applicant in GPE in order to build a motorway . A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place .", "Following the applicant ’s request for increased compensation , on DATE , ORG of First - instance awarded him additional compensation of MONEY ( TRL ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from DATE , the date of the transfer of the title - deeds .", "On DATE ORG upheld the judgment of ORG of First - instance .", "On DATE ORG and Highways paid the applicant GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL ( MONEY ( ORG ) , including interest .", "The relevant domestic law and practice are set out in ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) ." ]

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[ "The applicant was born in DATE and lives in Gdańsk .", "On DATE the applicant was arrested and detained on remand . On DATE the ORG ( Sąd Rejonowy ) released the applicant .", "On DATE the applicant was again arrested by the police in connection with the same criminal investigation . On DATE ORG decided to detain him on remand in view of the reasonable suspicion that he had committed several offences acting in an organised group of criminals .", "The applicant ’s appeal against this decision was dismissed by ORG ( Sąd Wojewódzki ) on DATE . The appeal lodged by his lawyer was dismissed on DATE .", "On DATE ORG prolonged the applicant ’s pretrial detention reiterating the grounds originally given for his detention and adding that the measure was necessary to secure the proper conduct of the investigation .", "On DATE ORG ( Sąd Apelacyjny ) further prolonged his detention on remand . That decision was upheld by ORG ( Sąd Najwyższy ) on DATE .", "Subsequently , the applicant ’s detention was prolonged by ORG on DATE . The court considered that the severity of the anticipated penalty and the risk of collusion justified keeping him in detention .", "On DATE ORG allowed an application made by ORG under LAW ( “ LAW ” ) and further prolonged the applicant ’s detention on remand . ORG considered that the reasonable suspicion of his having committed the offences in question and the risk of collusion justified keeping the applicant in detention to secure the proper conduct of the proceedings . The court also considered that the investigation could not be terminated earlier due to circumstances for which the authorities could not be held responsible , such as the complexity of the case and the seriousness of the offences .", "NORP On DATE the applicant and CARDINAL coaccused were indicted before ORG ( PERSON ) .", "On DATE the ORG prolonged the applicant ’s detention until DATE reiterating the grounds previously given for the applicant ’s detention .", "On DATE ORG decided to prolong until DATE the applicant ’s detention on remand . It considered , for the same reasons as previously given , that keeping the applicant in detention was the only means to secure the proper conduct of the proceedings . The applicant appealed .", "The applicant ’s trial started on DATE and continued for DATE . It appears that the hearing was subsequently adjourned .", "On DATE ORG examined the applicant ’s appeal against its decision of DATE and partly allowed it . The court considered that the pre - trial detention of the applicant should be prolonged only until DATE . It established that in assessing the length of the applicant ’s detention with respect to the present case , and for the purpose of the time - limits provided for by LAW , the period DATE and CARDINAL DATE should have been added . Accordingly , ORG applied to ORG asking for the applicant ’s detention to be prolonged beyond the term of DATE provided for in Article CARDINAL § CARDINAL of the CARDINAL Code .", "On DATE ORG asked ORG whether any decision had been given in the applicant ’s case . On DATE the President of Chamber III of ORG informed ORG by fax that a session on prolongation of the applicant ’s detention had been scheduled for DATE . The President further noted that on the basis of the transitional provisions in DATE , the applicant ’s detention should be ipso jure prolonged until the date of ORG session .", "On DATE the applicant ’s lawyer submitted pleadings to ORG in which he argued that the applicant had been illegally detained as the detention order given on DATE had expired on CARDINAL DATE and therefore he should have been released . In particular , he maintained that the transitional provisions were not applicable in the applicant ’s case and that LAW did not contain a provision which would allow detention on the basis of a fax sent by ORG .", "On DATE ORG held its session and prolonged the applicant ’s detention until DATE relying on the strong suspicion against the applicant , the complexity of the case and the need to continue the process of gathering the evidence .", "On DATE and CARDINAL DATE ORG further prolonged the applicant ’s detention reiterating the grounds previously given . In the first of those decisions ORG added :", "“ ... There is no evidence that could prove [ the applicant ’s ] assertion that his wife and children ‘ would soon have nothing to eat’ .", "Moreover , it should be noted that there is a particular reason why the pre - trial detention of [ the applicant ] should not be lifted . From the information obtained by the Presiding Judge it appears that [ the applicant ] might obstruct the proceedings . ”", "Subsequently , ORG made several applications to ORG asking that the applicant ’s detention be prolonged as , following an amendment to LAW , ORG was no longer competent to prolong the detention beyond the statutory time - limit of DATE , as laid down in Article CARDINAL § CARDINAL of the Code .", "On DATE ORG granted the application and prolonged the applicant ’s detention on remand until DATE . The court relied in particular on the complexity of the case and the conduct of the accused who had contributed to the prolongation of the proceedings . The court found as follows :", "“ Of course , the applicant ’s detention for DATE in this case requires particular attention to be given to the process of gathering evidence , above all , to examine without further delay the defence motions concerning evidence . However , in the light of the proceedings as a whole , the conduct of ORG should be assessed positively ” .", "On DATE as well as on DATE and DATE ORG prolonged the applicant ’s detention . In addition to the strong probability that he had committed the offences , the court found that the proceedings had been conducted diligently and concluded that only the applicant ’s detention would guarantee the proper conduct of the final stage of the proceedings .", "DATE and DATE the applicant served a prison sentence ordered by ORG in another set of criminal proceedings brought against him .", "During his pretrial detention the applicant lodged CARDINAL applications for release . However , these applications and his appeals against the decisions to prolong his detention on remand were to no avail .", "On DATE ORG gave judgment . The trial court convicted the applicant and sentenced him to CARDINAL years’ imprisonment . The applicant and the prosecutor appealed .", "Subsequently , the applicant ’s detention with respect to this set of criminal proceedings was not prolonged . However , the applicant had not been released as he remained in pre - trial detention ordered in the second set of criminal proceedings ( see below ) .", "On DATE ORG allowed the appeals and quashed the impugned judgment . The case was remitted to ORG which , on DATE , stayed the proceedings because the other set of criminal proceedings before the PERSON Regional Court were pending and the applicant could not be transported to FAC .", "On DATE ORG resumed the proceedings . The proceedings are pending before that court .", "On DATE the applicant was arrested by the police in connection with criminal proceedings pending against him . On the same date the Zielona ORG decided to detain him on remand .", "On DATE the ORG acquitted the applicant .", "On DATE the applicant was released from detention .", "On DATE the ORG of Appeal quashed the impugned judgment and remitted the case to ORG .", "DATE the prosecutor stayed the proceedings .", "On DATE the ORG decided to detain the applicant on remand in view of the reasonable suspicion that he had committed , with an accomplice , a robbery and CARDINAL offences of homicide .", "The applicant appealed , but on DATE the ORG dismissed his appeal .", "On DATE , DATE and DATE and DATE , DATE and DATE as well as on DATE the ORG of Appeal further prolonged his detention . The court held that the reasonable suspicion that the applicant had committed the offences with which he had been charged , the severity of the anticipated sentence and the need to secure the proper conduct of the investigation justified keeping the applicant in detention .", "On DATE the applicant was indicted before the PERSON Regional Court .", "On DATE the ORG of Appeal further prolonged the applicant ’s detention . Subsequently , the applicant ’s detention was prolonged on CARDINAL occasions in DATE , and on DATE , DATE , DATE and DATE . The court in all those decisions found that the grounds for keeping him in detention were still valid .", "On DATE the trial court gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment .", "The applicant requested that the written reasons for the judgment be prepared by the trial court so as to allow him to lodge an appeal .", "The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) . Article CARDINAL § CARDINAL provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand .", "A more detailed rendition of the relevant domestic law provisions is set out in the ORG ’s judgment in GPE v. GPE , no . CARDINAL , § § CARDINAL and DATE , CARDINAL DATE .", "Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE . The relevant part of Article CARDINAL § CARDINAL of the LAW provides as follows :", "“ Convicts ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . ”", "For a more detailed rendition of the relevant domestic law provisions see the ORG ’s judgment in GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .", "According to LAW , as amended by LAW DATE , different rules applied in respect of persons whose detention on remand started before CARDINAL DATE . This Article provided :", "“ CARDINAL . In cases where the total period of detention on remand which started before DATE exceeds the time - limits referred to in Article QUANTITY of LAW , the accused shall be kept in detention until ORG gives a decision on a request for prolongation of such detention under Article CARDINAL § CARDINAL of the Code of Criminal Procedure .", "In cases referred to in § CARDINAL , if no [ such ] request has been lodged , detention shall be quashed not later than DATE . ”", "Article CARDINAL § CARDINAL of the Law of DATE , which added certain new grounds for prolonging detention beyond the timelimits , provided :", "“ In cases where a request for prolongation of detention imposed before DATE is lodged on the basis of Article CARDINAL § CARDINAL , as amended by LAW , the detention shall continue until that request has been examined by ORG . ”" ]

[ "5" ]

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

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[ "The applicant is a NORP national , born in DATE . 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 .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is the father of Y. , born in DATE . He is a NORP . On DATE he was arrested and detained , suspected of having killed his wife ( ORG 's mother ) on DATE . On DATE an official of ORG provisionally took ORG into public care in virtue of section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag CARDINAL/CARDINAL ) . Y. was placed in a children 's home . The mother 's CARDINAL - brother and CARDINAL - sister had been heard prior to the decision .", "On DATE the applicant confessed to having killed his wife , referring to his jealousy . He was later found to have been in possession of his full senses at the moment of the crime .", "Officials of ORG ( perusturvalautakunta , grundtrygghetsnämnden ) of PERSON started preparing a proposal for a confirmation of the provisional care order . It did not hear the applicant , although it had been informed of his whereabouts .", "On DATE ORG upheld the public care of Y. pursuant to sections CARDINAL and CARDINAL of LAW . It noted that the mother was dead and that her father had been detained on suspicion of having murdered her . Other support measures to ensure DATE 's welfare would be insufficient . The public care was expected to be of a long duration . The applicant 's access to NORP was prohibited indefinitely and her whereabouts were not disclosed to the applicant . No reasons were given for the prohibition . The ORG 's decision was notified to the applicant on DATE and a social worker briefly explained the contents thereof in LANGUAGE . As the applicant had not been heard prior to the decision , ORG forwarded it ex officio to ORG ( lääninoikeus , länsrätten ) of Häme for its review .", "At a meeting between a representative of the association Pelastakaa lapset r.y.– PERSON barnen r.f . ( “ Save The Children ” ) and the applicant in prison on DATE the latter requested that the authorities consider the possibility of placing Y. in his brother 's family in GPE either for the duration of his sentence or permanently , by adopting her . The brother had allegedly consented to such an arrangement . The social authority 's case notes of DATE included an account of the meeting , as recounted by the representative of ORG . According to the notes , the applicant had been informed at the meeting that ORG 's maternal relatives were opposed to her placement outside GPE and that Save The Children was looking for a foster family for her . When inquiring about Y. 's possibility to visit him in prison , the applicant had been informed that the access prohibition would be reconsidered on his release . It transpires from the case notes that a potential foster family had already been contacted by ORG .", "On DATE the applicant , represented by his current counsel , appealed belatedly to ORG , stating , inter alia , that he had not been properly heard before ORG decision , nor legally notified of its contents .", "In its submissions in reply ORG stated , inter alia , that the care order had taken into account the wishes of Y. 's mother 's relatives , who had wanted to ensure that Y. would continue to receive a NORP education .", "On DATE Y. was placed in a foster family selected by ORG . According to the care plan adopted on DATE , her whereabouts would be concealed from the applicant as long as she remained in public care . At a later stage she could decide for herself whether she wanted to meet him . She would be entitled to meet her maternal half- brother and CARDINAL - sister , but initially only on neutral premises so as to protect her and the foster parents ' privacy and security . The care plan was agreed by regional director ( and social worker ) PERSON , a director and a social worker of ORG as well as the foster parents . The applicant had not been invited to attend .", "In a decision of CARDINAL DATE a leading official of ORG ordered that the access prohibition should be in force up to Y. 's twelfth birthday ( i.e. until DATE ) . Having regard to the child 's age and state of development , access prior to that date would not maintain a child - parent relationship . Accordingly , Y. had no right to see the applicant until she had reached that age , when she could decide for herself whether she wished to see him . The official of ORG furthermore considered that , in order to protect ORG and the foster family 's privacy and security , her whereabouts should not be disclosed to the applicant or her other relatives . The applicant appealed to ORG .", "In its decision of DATE in the care order proceedings ORG noted that the applicant had been detained while the emergency order and the ordinary care order had been issued on DATE and CARDINAL DATE , respectively . The court further noted that the emergency care order would have expired after DATE unless replaced by an ordinary care order . Finally , ORG had , of its own motion , referred its decision for review by ORG , since the applicant had not been heard . In those circumstances the ORG had not proceeded wrongly by not hearing the applicant prior to its order of CARDINAL DATE .", "ORG accepted , however , that the contents of the ordinary care order had not been sufficiently explained to the applicant , and examined his belated appeal . It nonetheless rejected it without having held an oral hearing , thus confirming the care order and Y. 's foster care . The court furthermore agreed that the access prohibition issued on DATE had been incorrect in that it had comprised no reasoning or time - limit . However , in view of the new prohibition issued on DATE , the court found no reason to pronounce itself further in regard to the initial prohibition . The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting an oral hearing .", "On DATE ORG ( käräjäoikeus , tingsrätt ) of GPE convicted the applicant of manslaughter and sentenced him to DATE imprisonment . The conviction and sentence were upheld by ORG ( hovioikeus , hovrätt ) of GPE on DATE . The applicant served his sentence in GPE until DATE , when he was transferred to the Vilppula Low - Security Prison .", "Meanwhile , on DATE , ORG confirmed the access prohibition issued on DATE , stating , inter alia , that domestic law did not allow a father to care for his child in prison . The applicant appealed , arguing that he had not been properly heard prior to the decision . In addition , he stated that it had been made without knowledge of current domestic law which did allow a father to care for his child in prison .", "ORG explained to ORG , inter alia , that it had considered it unnecessary to hear the applicant , since at the time he had been undergoing an examination of his mental state in a mental hospital .", "On DATE ORG quashed ORG decision and referred the matter back for renewed consideration . The applicant 's stay in a mental hospital at the relevant time had not been a valid reason for not hearing him in accordance with section CARDINAL of LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . The court nonetheless rejected his request that the ORG should be ordered to pay his legal costs .", "In a subsequent written submission to ORG the social welfare worker in the applicant 's prison testified to his exemplary conduct and strong attachment to his daughter . Meetings DATE would therefore not be contrary to her best interests . Supporting such meetings had been the practice in many similar cases involving a male prisoner and a child without a mother . The applicant 's ethnic background should not be allowed to influence the decisions concerning the access question .", "On DATE The Children interviewed the applicant in prison in regard to the access question . The applicant was assisted by an interpreter . According to the report which ORG forwarded to ORG , the applicant had requested to see Y. in prison in the area designated for visits by family members . The applicant had accepted Y. 's public care , her foster parents and the fact that she would be accompanied by them during her visits . The applicant had indicated that he would be able to speak some NORP with her . He had denied certain allegations made by PERSON 's mother 's relatives but did not object to meeting them , if they so wished . At the end of the meeting PERSON had informed the applicant that he would receive copies of the relevant documents through his counsel . In her written cover letter to the ORG dated DATE The Children urged it to maintain the access prohibition until meetings became a natural matter of consideration in the course of ORG 's development .", "Meanwhile , on DATE , the applicant had submitted his written views directly to ORG without the assistance of his counsel .", "On DATE ORG upheld the access prohibition issued on DATE . The applicant appealed again , requesting that the prohibition either be quashed or that it be amended so as to end around the time when he was expected to be released on parole , i.e. in DATE .", "In its decision of CARDINAL DATE ORG refused the applicant 's request for an oral hearing in the care order proceedings . It found that he had not been heard prior to ORG order of CARDINAL DATE . As ORG had referred its order to ORG for its review and the applicant had been able to appeal against the order and comment on the ORG 's submissions to that court , and in light of the evidence on file , there was no reason to quash ORG or the lower court 's decision due to the error in the hearing of the applicant . In its submissions ORG had maintained that domestic law did not allow a father to care for his child in prison .", "On DATE ORG quashed ORG decision of CARDINAL DATE and referred the matter back for renewed consideration . It did not object to the access prohibition as such , considering that contacts between ORG and the applicant would obviously endanger Y. 's development . It had therefore also been necessary to conceal Y. 's whereabouts from the applicant . The court considered , however , that sufficient reasons had not been shown to justify that the prohibition should last until Y. would reach the age of twelve . It declined to pronounce itself in the first instance on the appropriate duration of the access prohibition and the secrecy order regarding ORG 's whereabouts . The applicant 's request that the ORG be ordered to pay his legal costs was rejected .", "In an opinion of CARDINAL DATE PERSON , a senior physician specialising in child psychiatry , considered Y. 's best interests to warrant an access prohibition lasting at least until her twelfth birthday . PERSON , who gave his opinion in his capacity as Save The Children 's consulting child psychiatrist , stated in extenso as follows :", "( translation from NORP )", "“ I have studied Save The Children 's case file . On that basis , without having met the child or others involved in the matter , but having discussed it with the employee of ORG , I consider that the biological father 's request [ for meetings to take place ] is founded on various misunderstandings . He is of the view that the ORG 's way of proceeding violates both parties ' right to respect for their family life , and that the starting point in the decision - making should have been to re - establish [ that ] family on [ his ] release from prison . This , however , would be contrary to both law and morality . The morality of child welfare is based on the same principle as LAW , i.e. on the intention to ensure that the best interests of the child are respected , as opposed to the interests of the parents when [ the CARDINAL sets of interests ] are conflicting . It is clearly in the best interests of [ Y. ] that she can establish a normal and happy family [ life ] in [ her ] current foster family and that she may grow up to be a healthy adult . Meetings with her biological father are possible only in so far as they are not contrary to [ her ] best interests . When the law speaks of the child 's right to meet his or her parents , this refers precisely to a right belonging to the child , and not to a right of a parent to meet his or her child irrespective of the damage or danger which such meetings produce to the child .", "ORG has proposed to fix at DATE the age when [ Y. ] and the applicant might begin to meet . ORG appears to base itself on the principle that a DATE child must be heard before a decision in a matter concerning him or her is taken . From the point of view of child psychiatry I consider that [ this ] age - limit should not be applied categorically . [ The age - limit ] does not signify that from then onwards the child will decide on his or her own in matters of this kind , but that the decisions are made after hearing the child . This means that the foster parents or ORG responsible for the child may arrive at a decision which is contrary to the opinion of the child , if they consider that this is in the child 's best interests . This is a very sensible approach , since a DATE can not be presumed to make absolutely sensible decisions . Ideally , [ Y. 's ] foster parents , who have the most evident and strongest emotional tie to [ her ] , should make all decisions concerning her , since they are best equipped to understand what [ she ] really wishes to do and what is in her best interests . [ Y. ] should be allowed to make decisions completely on her own only when has reached the age of majority , i.e. at DATE . This is also sensible from a psychological point of view : it is only when [ she ] will have reached DATE that her development will not be jeopardised by non - preferable relationships . I would also like to stress that the worst damage done to children nowadays stems from removing them from families to whom they have become attached and whose psychological members they are , with a view to arbitrarily placing them back for instance with their biological parents or parent , with whom the child has no relationship .", "In my view [ the authorities ] should urgently proceed to having [ Y. ] adopted by the foster parents , if they consent to this . The fact that the child is not legally a member of the family to whom [ she ] belongs emotionally is damaging to the child .", "From the point of view of child psychiatry it is therefore justified that meetings between [ Y. ] and the applicant are not organised until she turns CARDINAL and thereafter only if she clearly expresses a wish to meet him and provided that the adults who love her consider such meetings useful to her . The father should understand that a child is not an object which he can own , but a living human being , who is entitled to live his or her own life according to his or her own emotions . ”", "PERSON opinion was not served on the applicant prior to the decision of ORG of PERSON of DATE , whereby the access prohibition was again maintained until DATE . The applicant appealed and requested an oral hearing . He objected , inter alia , to not having been heard in respect of Dr PERSON 's opinion and not knowing what precise material it had been based on . The applicant stated his wish to examine Dr PERSON as witness and stated that he might also call a witness of his own choosing .", "On DATE ORG held an oral hearing at which PERSON was heard as witness . The applicant had not called any further witness .", "In his further submissions of DATE to ORG the applicant stressed that he could not afford calling expert witnesses to counter PERSON views . He therefore adduced copies of documents from a case in which neither ORG nor the experts consulted had even suggested an access prohibition in respect of a child , whose NORP father had killed the mother . That child had not been placed in public care , being cared for by her maternal grandmother .", "In its decision of CARDINAL DATE ORG rejected the applicant 's appeal . The court now found that the duration of the access prohibition , as maintained by ORG , was justified . The applicant received the decision on DATE . No further appeal lay open .", "In DATE the Police of the Valkeakoski District proposed that the applicant be expelled to GPE on his release on parole , and banned from returning to GPE . The applicant opposed the proposals on the grounds that such a decision would sever his family ties to Y. , in violation of LAW .", "On DATE ORG ( ulkomaalaisvirasto , utlänningsverket ) refused the applicant 's request for a further residence permit . On DATE it ordered his expulsion to GPE and banned him from re - entering GPE . The ORG noted that his only family tie to GPE consisted of Y. , whom he had been banned from meeting . Given the specific features of their family relationship , the heinous crime which the applicant had committed , thereby displaying his danger to others , the interference with his right to respect for his family life was justified under LAW . The re - entry ban could be reconsidered if , for instance , he later obtained a right to see LAW Under a NORP treaty this ban extends to the other LOC countries .", "At a meeting between PERSON , the applicant and the foster parents on DATE the applicant was told that various experts had advised against enabling him to meet Y. even once before leaving GPE . Even observing her without her knowledge would have been contrary to her best interests . It transpired from the meeting that the foster parents would continue to forward to NORP the applicant 's letters and gifts as well as to keep him informed of her development .", "In DATE the applicant was released on parole and left GPE . On DATE ORG upheld the expulsion order .", "According to various opinions of DATE issued by the prison governor , prison psychologist and other staff , the applicant 's conduct in prison had been exemplary .", "ORG ( oikeusauputoimisto , rättshjälpsbyrån ) of PERSON awarded the applicant legal aid both for the purposes of the domestic court proceedings and for bringing his application under the Convention . This award covered counsel 's fees but not the costs incurred .", "B. Relevant domestic law", "According to section CARDINAL of LAW , ORG shall take a child into care and provide substitute care for him or her if ( a ) the child 's health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by abuse of intoxicants , by committing an illegal act other than a minor offence , or by any other comparable behaviour , ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) foster care is considered to be in the best interests of the child . PERSON care shall be provided without delay where it is needed and is in the best interests of the child ( section CARDINAL , subsection CARDINAL ) .", "If a child is in imminent danger or otherwise in need of an immediate care order and foster care , ORG may take him or her into care without submitting the decision to ORG for prior approval ( section CARDINAL ) . An emergency care order shall expire within DATE of the decision , unless referred for reconsideration under LAW of LAW . An ordinary care order pursuant to section CARDINAL must be issued within DATE , or on special grounds within DATE , of the emergency order . Both ordinary and emergency care orders may be appealed to the administrative courts .", "The child 's custodians , biological parents and de facto carers shall be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home . They shall further be notified of the decision taken ( section CARDINAL , subsection CARDINAL , of LAW , as amended by Act no . GPE ) . The hearing procedure is governed by LAW . Under LAW of the said LAW a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken . LAW does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply . A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary , would jeopardise the purpose of the decision or if the decision can not be postponed . LAW requires that the competent authority duly investigate the matter before it and ensure the equality of the parties .", "If an ordinary care order has been issued pursuant to section CARDINAL of LAW without the prior hearing of a party , the social welfare board shall forward it to ORG within DATE , unless the party in question could not be located with reasonable means or the child has no contact with that party , in which case a hearing would not be justified ( section DATE , subsection CARDINAL ) .", "If a party appeals against an order issued under LAW , ORG shall also review it ( section DATE ) .", "According to section CARDINAL of LAW , a child who is being cared for outside his or her original home shall be ensured those important , continuous and secure human relations which are important for his or her development . The child is entitled to meet his or her parents and other close persons and to keep in touch with them ( subsection CARDINAL ) . ORG shall support and facilitate the child 's contacts with his or her parents and other close persons ( subsection CARDINAL ) .", "According to section CARDINAL of LAW and section CARDINAL of LAW ( lastensuojeluasetus , barnskyddsförordning DATE ) , ORG or the director of a children 's home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child ; or if ( b ) such a restriction is necessary for the safety or security of the parents , or the children or staff in the children 's home . The restriction shall be limited in time . It shall mention the persons whose rights are being restricted , the kind of contacts concerned by the restriction and the extent of the restriction .", "The care plan to be drawn up in respect of a child in public care shall mention ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child 's care and upbringing and for the child 's parents ; ( c ) how the child 's right of access to its parents and other persons close to the child will be organised ; and ( d ) how after - care is going to be organised . According to section CARDINAL of LAW , the care plan shall be elaborated in co - operation with those involved .", "Further provisions governing child welfare measures are outlined in the ORG 's judgment of DATE in the case of PERSON GPE ( no . CARDINAL , CARDINAL , § § DATE ) .", "According to the LAW on the Enforcement of Punishments ( rangaistusten täytäntöönpanosta annettu laki , lag om verkställighet av fängelsestraff CARDINAL ) , a prisoner may be allowed to care for his or her young child in prison , provided such care would be in the best interests of the child and the prisoner wishes to assume the care ( section CARDINAL , subsection CARDINAL , as added by Act no . CARDINAL ) . This provision replaced the former section CARDINAL which had only referred to mothers . Up to CARDINAL DATE section CARDINAL , subsection CARDINAL , of the Act on Pre - Trial Detention ( tutkintavankeudesta annettu laki , lag om rannsaknings - fängelse CARDINAL/CARDINAL ) , likewise applied only to mothers in detention , whereas the new subsection CARDINAL applies equally to detainees of both genders .", "According to LAW ( lääninoikeuslaki , lag om länsrätterna DATE ) , as in force at the relevant time , the costs and economic losses incurred by an expert or other witness shall be reimbursed by the ORG , provided he or she was summoned by the court itself ( section DATE , as in force up to the entry into force of Act no . PERSON ) . According to the LAW on Cost - Free Proceedings ( laki maksuttomasta oikeudenkäynnistä , lag om DATE rättegång CARDINAL ) , the costs and losses incurred to a witness called by a party who has been granted cost - free proceedings shall be covered by the ORG ( section CARDINAL) . The said LAW excludes from its scope proceedings concerning , for instance , an access prohibition issued on the basis of LAW ." ]

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[ "NORP The applicant company is a limited liability company based in GPE .", "The applicant company is the owner of the DATE newspaper ORG . In its issue of DATE , in the economics section , the applicant company published an article dealing with the investigation into losses incurred by ORG . The article reads as follows :", "“ PERSON ’s Hypo now also facing criminal investigation", "After ORG , the prosecution service is now also looking into allegations of embezzlement against ORG . PERSON has accused the judicial authorities of being overzealous and politically motivated .", "GPE – Following the discovery of massive speculative losses from swap deals , the floodgates are threatening to open at LOC . On DATE the GPE public prosecutor ’s office initiated an investigation in respect of Hypo senior managers . Chief public prosecutor PERSON said that the investigation , concerning suspected embezzlement , had been launched by the prosecution service of its own motion and that it would take the findings of ORG audit into account .", "Regional governor PERSON criticised the “ judicial authorities’ overzealousness ” and spoke of a “ politically motivated ploy to deflect attention away from the PERSON scandal ” . His deputy PERSON described the MONEY lost as a result of the speculation as a “ molehill that should not be made into a mountain ” .", "PERSON , of ORG executive board , and PERSON , who represents Hypo ’s shareholders and also ( through ORG ) performs a supervisory function at the bank , had previously blamed the speculative losses of MONEY on an individual member of the bank ’s treasury department , PERSON , the son of a former ORG regional government member with responsibility for finance . In DATE PERSON was not dismissed but merely demoted and transferred , being relieved of his duties only after the incident of the losses had become known .", "PERSON had been in charge of the treasury department , together with PERSON , in DATE . The department was , however , under PERSON ’s personal authority as chairman of the executive board . To relieve PERSON of his responsibilities as regards the treasury department , PERSON was brought in to join PERSON and PERSON on the Hypo board in DATE . At the same time , the PERCENT managing shareholder of ORG , PERSON , was promoted to become chairman of the Hypo supervisory board . PERSON ’s GPE subsidiary , ORG , audited Hypo ’s accounts . The DATE financial statements , in which the massive speculative losses were intended to be adjusted , were signed by the PERSON auditors PERSON and PERSON , the former of whom frequently crops up in circles close to PERSON . As the swap losses were evidently too large - scale for PERSON ’s GPE subsidiary to handle , the audit firm ORG was consulted and promptly informed ORG .", "Meanwhile , Hypo ’s flotation , which surprisingly had recently been brought forward to DATE , is very much up in the air . How matters are to proceed will now probably be on the agenda of Hypo ’s shareholder meeting on DATE .", "Against this background , PERSON interest in ORG also appears in a new light . In DATE Hypo submitted the last and the best bid , but suddenly withdrew its offer . Buying PERSON would have made sense because at the time it had MONEY in losses carried forward in its accounts , which would have allowed Hypo to save on capital - gains tax . It is possible that the acquisition failed to materialise because of the substantial losses from the botched swap transaction . ”", "On DATE Mr Rauscher brought proceedings against the applicant company for disclosure of his identity in breach of section FAC of LAW ( Mediengesetz ) . He submitted that he was not a public figure and that his position in the bank had not been such as to justify the disclosure of his name . He asserted that when authorising the transactions at issue he had acted in accordance with his instructions and under the supervision of his superior ’s and the bank ’s risk management . The publication of his name had had negative repercussions on his professional advancement and had not been justified by any public interest .", "In its submissions in reply , the applicant company contended that the article had not depicted the claimant as the person responsible for the losses but rather as the “ scapegoat ” . The public interest in the disclosure of his name outweighed his private interests since he had held a leading position in the bank and there was also a connection with the political sphere on account of his father ’s position as a former regional government member responsible for finance ( NORP ) . Moreover , the article had reported on the issue in a neutral manner .", "By judgment of DATE ORG ( PERSON für PERSON ) dismissed Mr PERSON ’s action .", "It noted that the claimant had been head of ORG treasury department which had incurred losses of FAC to MONEY ( ORG ) in DATE . It also noted that the article , which reported on the investigation into embezzlement by the public prosecutor ’s office and mentioned the claimant ’s full name as the person who was being blamed for these losses , contained the information that the claimant was suspected of a criminal offence .", "ORG observed that section CARDINALa(CARDINAL ) of LAW required a weighing of the claimant ’s interest in the protection of his identity and the public interest in its disclosure .", "It noted that the claimant , who had lost his job at ORG , was unemployed . The mentioning of his name in the context of the speculation scandal as being suspected of the criminal offence of embezzlement was certainly detrimental to his professional advancement within the meaning of section CARDINAL(CARDINAL)(CARDINAL ) of LAW . However , it had to be assumed that the claimant ’s former position and activity at LOC was known in banking and business circles even without the publication of his name in PERSON .", "It remained to be examined whether there was an overriding public interest in the disclosure of the claimant ’s name . The court noted that it had heard the claimant as a witness and had DATE on the basis of his submissions – found that the following facts were established . MONEY of ORG was owned by ORG . DATE the bank had incurred losses of FAC to MONEY as a result of foreign currency speculations . The claimant had been the head of the bank ’s treasury department from DATE until DATE , when he had terminated his employment on his own initiative . In his capacity as head of the treasury he had had to authorise or refuse foreign currency transactions . The losses had thus been incurred under his responsibility . He had only been answerable to the bank ’s executive board , which consisted of CARDINAL members . The claimant ’s father had been a regional government member responsible for finance until DATE . While the claimant was head of the bank ’s treasury , his father had been on the bank ’s supervisory board .", "ORG accepted that the claimant , although having been a senior employee of the bank , was not a public figure . Thus , he did not have “ a position in society ” within the meaning of section CARDINALa(CARDINAL ) of LAW , which would justify the publication of his name . Nor did the fact that his father had held such a position justify the disclosure of the claimant ’s name .", "Nevertheless , ORG held that there was a connection between the claimant ’s professional activity and public life for the purposes of this provision : as the ORG owned PERCENT of the bank , the Land and consequently the taxpayer had to carry a considerable share of the losses . The claimant had been in a leading position , being responsible for the very department which had caused the losses . The public , or in other words , the taxpayer thus had an overriding interest in receiving information about the identity of those who were responsible for the enormous losses . Consequently , PERSON had been entitled to mention the claimant ’s name .", "On DATE ORG ( Oberlandesgericht ) granted the claimant ’s appeal and ordered the applicant company to pay MONEY ( ORG ) in compensation to the claimant and to reimburse his procedural costs .", "The Court of Appeal agreed with ORG that the claimant had been presented as someone suspected of embezzling a large sum of money . However , it found that ORG had wrongly weighed the conflicting interests at issue :", "“ ORG finding that the public interest in the publication of the claimant ’s name outweighed his interest in the protection of his identity can not , however , be endorsed . The former must be assessed against an objective standard and , in particular , with reference to the identity of the person concerned ; for that reason the mere public interest in the reporting of a crime does not by itself suffice . In accordance with settled case - law , when assessing whether the identity of persons listed in section CARDINAL ) of LAW may be revealed , a strict standard must be applied , especially as the general public has , in principle , no legal right to know the identity of the persons concerned . ...", "At the time the article was published , the investigation into the “ Hypo Alpe - Adria affair ” was still in the early stages . According to the claimant , no proceedings had yet been brought against him , and the subject matter of the article in question was only the rumours of accusations against him by CARDINAL senior bank officials . However , at this time there was no independent value in the disclosure of the claimant ’s name that would have outweighed the legitimate interest in protecting his anonymity . The claimant ’s name was clearly disclosed in order to make a connection with his father , the former regional government member responsible for finance , and by doing so create a “ story ” which would satisfy the public ’s curiosity and appetite for the sensational to a high degree . In practice , the disclosure of the claimant ’s name had no informative value whatsoever and so the weighing of interests must operate in favour of the claimant . ...", "ORG is right in stating that the public has a very substantial interest in finding out who is responsible for these enormous losses . However , this does not justify the disclosure of the claimant ’s identity in a situation where the suspicions are so vague and uncertain . ...", "Since the first - instance court found that the publication of the claimant ’s name had had considerable negative consequences for him , and taking into account the gravity of the accusation and the wide circulation of PERSON , compensation in the amount of ORG CARDINAL,CARDINAL seems to be appropriate . ... ”", "Section CARDINAL of LAW , so far as material , provides as follows :", "“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who", "NORP has been the victim of an offence punishable by the courts or", "NORP is suspected of having committed , or has been convicted of , a punishable offence , and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . .... ”", "( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication", "NORP in the case of subsection ( CARDINAL)CARDINAL is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,", "NORP in the case of subsection ( CARDINAL relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim ’s advancement .", "... ”", "On DATE ORG Recommendation Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . The Appendix to that Recommendation contains the following principles :", "“ Principle CARDINAL - Information of the public via the media", "The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .", "Principle CARDINAL - Presumption of innocence", "Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial . Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .", "...", "Principle CARDINAL - Protection of privacy in the context of on - going criminal proceedings", "The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”" ]

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[ "The applicant is a NORP national , born in DATE and living in PERSON .", "A.", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant 's wife , born in DATE , had high blood pressure and suffered from a heart condition . On DATE her physician referred her to a hospital . Apparently on the same date , doctors PERSON hospital examined her , gave her drugs against high blood pressure and refused admission . Allegedly , CARDINAL of the physicians suggested that she should become his private patient .", "On DATE she felt unwell and CARDINAL times called an ambulance from the ORG - run emergency service . In the TIME , during the first visit , she was given a prescription for certain drugs to reduce her high blood pressure . At TIME , during a second visit of the ambulance , a physician gave her an injection of the drug “ Dexaven ” . The applicant alleges that as a result of this injection her general condition worsened abruptly . The Government refute this allegation . The applicant insisted that she should be taken to a hospital , in particular in view of the referral of DATE , but this was refused . She was taken to the hospital in TIME DATE , where at TIME , TIME after her admission , she died of myocardial infarction .", "The applicant requested that criminal proceedings be instituted concerning his wife 's death . On DATE the ORG requested the ORG to prepare an expert report concerning the causes of her death . The report was submitted on DATE .", "On DATE the ORG discontinued the proceedings , finding that no criminal offence had been committed . The Prosecutor had regard to the expert report , prepared by CARDINAL experts : CARDINAL cardiologists and forensic medicine specialist .", "The applicant appealed against this decision . He stated that the decision was ill - founded and that , in view of her serious condition , his wife should have been taken to hospital much earlier . He complained that the investigations had lasted unreasonably long . Lastly , he submitted that it was impossible that his wife could have become mortally ill in a very short period without there being medical negligence in the handling of her case .", "On DATE ORG upheld the decision under appeal . He considered that the contested decision was lawful and that the lower prosecutor had duly taken into consideration the experts ' conclusions . In view of the fact that the applicant had alleged that experts from ORG would have lacked impartiality , ORG had requested that , in order to dispel any doubts as to the experts impartiality , the expert report be prepared by physicians from ORG . It was true that the report had been submitted to the Prosecutor only on DATE , but , having regard to the heavy case - load of forensic medicine experts throughout GPE , this delay could not be considered abnormal . The report had been prepared by CARDINAL experts - CARDINAL cardiologists and CARDINAL specialist in forensic medicine . The prosecutor stressed that there were no indications that there had been any personal relationship between the experts and the physicians who had given the medical treatment to the applicant 's wife .", "The Prosecutor further had regard to the conclusions of the experts . They had established in their report that during the second visit of the emergency services , doctor PERSON had administered to the applicant ’s wife an injection of \" PERSON \" , but they had not found a causal link between this fact and a subsequent rapid deterioration of her general condition . They had emphasised that the applicant 's wife had received adequate medical care . She had died of myocardial infarction , which must have occurred after the second visit of the ambulance . It had been only during the third visit that she had symptoms of a dyspnoea ( difficulty in breathing ) , typical in cases of cardiac insufficiency , and the physician had taken the correct decision to take her to a hospital on that account . Given the sudden nature of myocardial infarction , it could have developed so quickly as to cause her death within a short time , without there being any medical negligence to contribute to it . The experts concluded that it could not be assessed with absolute certainty whether the applicant 's wife could have survived had she been taken to the hospital at the second visit of the ambulance .", "Regard being had to the fact that the experts had found no indications of negligence in the handling of the applicant 's wife case , which involved a rapid myocardial infarction , the prosecutor decided that the lower prosecutor 's office had been correct in finding that the persons who had given the treatment to her had no case to answer .", "B. Relevant domestic law and practice", "The Chambers of Physicians’ Act of CARDINAL DATE established ORG as a professional organisation of physicians . Membership of the ORG is mandatory . Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the ORG , i.e. agents for disciplinary matters and disciplinary courts . Agents and members of the courts for each region are elected by members of a local chamber . The Chief Agent for ORG and ORG are elected by ORG , composed of delegates of local chambers .", "Pursuant to LAW , the following penalties may be imposed in disciplinary proceedings : a warning , a reprimand , suspension of the right to practise medicine for a period from DATE and striking off the register of physicians .", "The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on DATE .", "Under this Order , the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed . While investigating such a complaint , the agent may question a physician charged with professional misconduct , may appoint experts and question witnesses , and take such other evidence as he or she sees fit . A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant .", "If information existing at the time when investigations are instituted , or gathered in the course of an investigation , is sufficient to charge a physician with professional misconduct , an agent shall draw up a motion to the court for a disciplinary penalty to be imposed , containing a detailed description of an alleged offence and written grounds .", "Pursuant to LAW , the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed .", "A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters . A further refusal of the Chief Agent may be appealed against to ORG .", "Under LAW , if the court , having received a motion for a penalty to be imposed , decides that the case is ready for examination at a hearing , it orders that a hearing be held . A physician is summoned to a hearing , whereas his defence counsel and the agent are informed of its date .", "Under LAW , in disciplinary proceedings the complainant is entitled to : submit a request for evidence to be taken , lodge with the disciplinary court an appeal against the agent 's decision to discontinue the proceedings , and lodge an appeal against a decision of a first - instance court on the merits , but only on the question of responsibility . The complainant is entitled to have access to the case - file , but the agent can limit this access to documents , which are not covered by medical secrecy .", "Pursuant to LAW , the proceedings before the court are public for members of ORG .", "Under LAW of LAW Civil Code , the ORG is liable for damage caused by its agents in the exercise of their functions . There is established case - law of the NORP courts to the effect that this liability of the ORG includes also liability for damage caused by medical treatment in a public system of medical care , run either by the ORG or by the municipalities ." ]

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[ "Mr PERSON , a NORP national who was born in GPE in DATE , was unemployed and living at Aulnay - sous- PERSON ( GPE ) at the material time .", "On DATE he was arrested in GPE with CARDINAL other people from GPE , GPE or GPE , Mr PERSON , Mr ORG , Mr PERSON and Mr PERSON . He was at the wheel of a car towards which Mr PERSON and Mr Fu were walking ; they had just emerged from a hotel and were carrying CARDINAL bags containing QUANTITY of heroin base and QUANTITY of almost pure heroin , together with a pair of scales , CARDINAL pan of which bore traces of heroin . CARDINAL other people , Mr PERSON and Mr PERSON , were arrested after weapons and QUANTITY of caffeine were discovered by police while searching a flat visited by the applicant .", "Since DATE officers of ORG had been carrying out surveillance and shadowing operations ; they had got wind of preparations for heroin trafficking in relation to individuals from GPE .", "On DATE an investigating judge charged the applicant with an offence under the drugs legislation and remanded him in custody . The applicant was released under judicial supervision on DATE .", "In an order of CARDINAL DATE the investigating judge committed the applicant and the CARDINAL others mentioned above for trial on the charge that they had \" conspired in GPE during DATE , in particular DATE , to produce , possess and supply drugs , namely heroin \" .", "At the trial on CARDINAL DATE the Director - General of ORG asked the court to", "\" Find PERSON , PERSON , GPE , PERSON , PERSON , PERSON and PERSON guilty of having committed within the NORP customs territory from DATE to CARDINAL DATE as persons in possession or having an interest in customs evasion , the class CARDINAL customs offence of smuggling prohibited goods by means of a self - propelled vehicle and in a group of CARDINAL individuals ;", "Sentence them jointly and severally on this charge to pay the customs authorities :", "( a ) a sum of CARDINAL ( QUANTITY in lieu of forfeiture of the goods , which will be destroyed ( Art . CARDINAL of the ORG [ ORG Code ] ) ;", "( b ) a fine of CARDINAL ( QUANTITY , being the value of the smuggled goods ( Art . CARDINAL of the ORG ) ;", "Pass the maximum sentence of imprisonment provided for in the event of non - payment ;", "Order that the defendants shall be held in custody , within the limit of the term of that imprisonment , until such time as the customs penalties have been paid ( new LAW ) ;", "The above measures being pursuant to ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW , LAW DATE made by the Minister for the ORG ;", "Without prejudice to the sentence of imprisonment provided for in LAW and which the public prosecutor is asked to apply for pursuant to LAW . \"", "ORG submissions included the following details :", "\" The GPE statements and the police surveillance disclosed the following :", "PERSON and ORG left GPE together by air on DATE carrying a suitcase with a false bottom containing the heroin subsequently seized . When they arrived in GPE , PERSON continued his journey by air to GPE and instructed GPE to bring the suitcase by rail in order to avoid the thorough checks made at airports in GPE .", "In GPE PERSON accompanied PERSON to make a number of purchases : the receptacle which would have served to mix the heroin and the caffeine [ and ] the secateurs for cutting open the hidden compartment in the suitcase .", "The heroin subsequently seized was to be transported in PERSON ’s motor vehicle , and PERSON was to drive with it to the home of PERSON and PERSON , where the QUANTITY of caffeine were seized .", "It has therefore been established that the CARDINAL defendants constituted a group of individuals ( whether or not all of them were in possession of the smuggled goods ) formed with a view to importing heroin base , converting it , possessing it , transporting it and mixing it with caffeine in order to produce a commodity whose street value would have been trebled by virtue of this blending .", "...", "AS TO THE LAW", "The goods in question are mentioned by name in the Order of CARDINAL DATE made by the Minister for the ORG , which lists the substances to which LAW is to apply .", "Those who possess or transport goods specially designated in orders made by the Minister for ORG and Finance must , when first asked to do so by customs officers , produce either receipts certifying that the goods have been lawfully imported or invoices , manufacture notes or any other proof of origin from individuals or companies lawfully established within the customs territory .", "In the absence of any proof of origin as indicated above , the goods in question are deemed to have been imported unlawfully ( Art . CARDINAL of the ORG ) .", "This constitutes the offence of unlawfully importing prohibited goods , namely QUANTITY of heroin base or almost pure heroin with a value of CARDINAL F , punishable under ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the ORG Code ; with the following aggravating circumstances :", "Heroin is the most strictly prohibited commodity in customs terms and the most harmful under health legislation ; CARDINAL . ... the offence was committed by a group of CARDINAL or more individuals ( Art . CARDINAL of the ORG ) ;", "... the goods were to be transported by a self- propelled vehicle ( Art . CARDINAL of the ORG ) .", "SPECIAL FEATURES OF CUSTOMS LAW", "Art . CARDINAL of the ORG : in any proceedings concerning a seizure of goods , it shall be for the person whose goods have been seized to prove that he has not committed an offence .", "The defendants can not avoid their criminal liability by relying on their good faith , since the latter is of absolutely no effect in customs law .", "Art . CARDINAL of the ORG : any attempted offence is punishable in the same way as the offence itself . Delivery was going to be taken of the smuggled goods in PERSON ’s vehicle by PERSON , Ngo and PERSON .", "LIABILITY", "The offence described above is imputable to the above - mentioned persons as being in possession - in possession in law - or having an interest in customs evasion .", "A person in possession of smuggled goods is deemed responsible for customs evasion ( Art . CARDINAL para . CARDINAL of the ORG ) .", "By Art . CARDINAL of the ORG ,", "Anyone who as a person having an interest has taken part in any way in a smuggling offence or an offence of undeclared importation or exportation is liable to the same penalties as anyone committing the offence and , furthermore , to the loss of rights provided for in LAW .", "The following are deemed to have an interest :", "( a ) owners and members of business undertakings , insurers , insurance policyholders , moneylenders , owners of goods and in general anyone who has a direct interest in customs evasion ;", "( b ) anyone who has contributed in any way to a series of acts committed by a number of individuals acting in concert , in accordance with a customs - evasion plan drawn up in order to achieve the jointly pursued purpose ;", "( c ) anyone who has knowingly concealed the activities of smugglers or attempted to help them evade punishment or has purchased or possessed , even outside the customs zone , goods obtained by means of a smuggling offence or an offence of undeclared importation .", "An interest in customs evasion can not be imputed to anyone who has acted from necessity or as a result of an unavoidable mistake .", "Where CARDINAL person is found guilty of a single customs - evasion offence , they are jointly and severally liable for the penalties , both as regards pecuniary penalties in lieu of forfeiture and as regards fines and costs ( Art . CARDINAL para . CARDINAL of the ORG ) .", "The owners of smuggled goods , anyone who has undertaken to import or export them , anyone with an interest in the customs evasion , accomplices and adherents are all jointly and severally liable and are subject to imprisonment for non - payment of fines , sums in lieu of forfeiture and costs ( Art . CARDINAL of the ORG ) .", "... \"", "On DATE the GPE tribunal de grande instance ( CARDINALth ORG ) acquitted the applicant , PERSON and PERSON on all the charges against them for lack of sufficient evidence .", "As regards the proceedings in respect of the ordinary criminal offence ( see paragraph CARDINAL above ) , it held :", "\" ... there is no evidence that PERSON , who was involved only on an ad hoc basis , knowingly agreed to transport the goods and those in possession of them in his car .", "... \"", "As regards the proceedings in respect of the customs offence ( see paragraph CARDINAL above ) , it said :", "\" ...", "As far as the customs offence is concerned , no physical act of aiding and abetting or of having an interest in the customs evasion can be proved against PERSON , PERSON and PERSON .", "It should be noted that the police intervened before they had been able to do anything to take possession of the prohibited goods . Accordingly , the question of any good faith on their part does not even arise .", "... \"", "The other defendants , however , were sentenced to imprisonment for terms ranging from DATE .", "The Director - General of ORG appealed against the decision to acquit the applicant , PERSON and PERSON of the customs offence . For the hearing on DATE he made the following submissions :", "\" As regards PERSON , it should be stated that he has always claimed that he ‘ knew nothing about the operation in which he took ORG . He can not be acquitted on this account , since intention does not have to be taken into consideration by the court for the customs offence to be made out ( Art . CARDINAL of the ORG ) .", "It was PERSON who drove the motor vehicle in which PERSON and then GPE had travelled . On several occasions the police saw them going to shops to buy hydrochloric acid - which is used to turn heroin base into soluble heroin .", "Again driven by PERSON , the CARDINAL men went to PERSON ’s hotel . PERSON and PERSON were arrested as they were about to put the heroin base into PERSON ’s vehicle .", "It is thus established that PERSON was going to be in possession of QUANTITY grams of heroin base . For a reason beyond his control , the drug did not in the end come into his possession .", "Furthermore , the fact that PERSON drove in his own vehicle CARDINAL traffickers who firstly went to buy an ingredient of the smuggled goods , the hydrochloric acid , and secondly were about to take delivery of a strictly prohibited commodity , the heroin base , warrants the assertion that he had an interest in the customs evasion .", "In short , it has clearly been established that PERSON , PERSON and PERSON had indeed formed a group of individuals together with the CARDINAL others with a view to possessing , transporting or attempting to transport consumable heroin and to convert it by attempting to add hydrochloric acid to heroin base and thereafter adding caffeine to the heroin hydrochloride in order to increase both the weight of the goods to be supplied on the illicit market and , above all , the profit to be derived from the trafficking .", "In respect of the CARDINAL defendants , the court below thus disregarded Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Customs Code .", "Extenuating circumstances :", "Pursuant to LAW , the court below was , however , entitled to find that there were extenuating circumstances in respect of PERSON , PERSON and PERSON and accordingly to reduce the sum to be paid in lieu of forfeiture and the fine to CARDINAL of the value of the smuggled goods ( CARDINAL * CARDINAL = CARDINAL F ) and not make an order for the forfeiture of PERSON ’s vehicle .", "Special features of customs law", "Offences under the drugs legislation are inseparable from smuggling offences .", "ORG offences , however , are strict - liability offences provided for and punishable under a body of law separate from the ordinary law , and in particular under : CARDINAL para . CARDINAL : good faith is of absolutely no effect CARDINAL : where goods have been seized , the burden of proving that no offence has been committed is on the person whose goods have been seized CARDINAL : possession CARDINAL : interest in customs evasion", "... \"", "In their written submissions made for the hearing on DATE the CARDINAL counsel for the applicant - Mr Lestourneaud and Mr Pugliesi - Conti - argued in particular that Articles CARDINAL para . CARDINAL , CARDINAL , CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of LAW were \" incompatible with the concepts of a fair trial and of presumption of innocence contained in LAW paras . CARDINAL and CARDINAL ( article DATE , article DATE ) of LAW \" .", "On DATE ORG found the applicant \" guilty of having , in GPE and within the customs territory , from DATE to CARDINAL DATE , committed as a person in possession or having an interest in customs evasion , the class CARDINAL customs offence of unlawfully importing prohibited goods by means of a self - propelled vehicle and in a group of CARDINAL individuals \" .", "He was sentenced to \" pay the customs authorities , jointly and severally with PERSON , ORG , PERSON and PERSON :", "( a ) a sum of MONEY in lieu of forfeiture of the goods , which [ were to ] be destroyed , and", "( b ) a fine of MONEY , being the value of the smuggled goods ,", "his personal liability being limited in both cases to the sum of MONEY \" .", "The judgment contained the following reasons :", "\" A. As to the defence submissions concerning PERSON", "In submissions filed with the ORG , counsel for PERSON sought to have upheld the defendant ’s acquittal and to have dismissed the case put forward by the customs authorities as sole appellant against the defendant , on the ground that Articles CARDINAL - CARDINAL , CARDINAL , CARDINAL and DATE , and CARDINAL of the Customs Code were incompatible with the provisions of Article CARDINAL ( article CARDINAL ) of LAW and LAW signed in GPE on DATE , both of which have been ratified by GPE and embody the principles of a ‘ fair ORG and ‘ the presumption of innocence in criminal PERSON .", "This ground does not amount to a preliminary objection , seeing that the conventions prayed in aid do not provide for applications for preliminary rulings to the supervisory bodies set up to implement them .", "As it relates to the lawfulness of the prosecution , it must be considered , although it was not raised before any defence on the merits .", "The defence submissions do not allege any breach of the rules governing the procedure followed during the judicial investigation or at the trial , but it is argued in them that under the provisions of LAW relied on by the prosecution a person in possession of the goods is deemed responsible for customs evasion , and all those who come within specified categories are deemed to have an interest in customs evasion , in both cases regardless of their good faith or their intention , such that these provisions provide for a presumption of guilt which makes them incompatible with the provisions of LAW and of LAW , which provide that ‘ everyone is entitled to a fair ... hearing’ and that ‘ everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’ .", "It was pointed out that ORG in GPE has held that the presumption of innocence is CARDINAL of the ingredients of a fair trial and that applying provisions which remove the burden of proof from the prosecution puts the defendant at a disadvantage , negates the equality of arms to his detriment , and , ultimately , deprives him of a fair trial .", "But while it is true that the customs authorities do not have to prove bad faith on the part of the person in possession of the smuggled goods or of the person having an interest in customs evasion , they must establish the physical fact of possession and show that the defendant in some way took part , as a person having an interest , in an offence of smuggling or of undeclared importation or that he belongs to CARDINAL of the categories of those who are deemed to have a direct interest in customs evasion .", "It is the special nature of customs offences , which are complete as soon as the smuggled goods cross the border , that compels the legislature to define them as offences which are made out as soon as the physical acts which disclose their existence have been evidenced on NORP territory .", "The special nature of these offences does not , however , deprive the offender of any possibility of raising a defence , seeing that the law provides that a person in possession can exonerate himself by proving force majeure and that an interest in customs evasion can not be imputed to anyone who has acted from necessity or as a result of an unavoidable mistake .", "It appears from the evidence in the file that PERSON , who was remanded in custody on DATE and released under judicial supervision on DATE and was acquitted by the court below , was consistently presumed innocent and had every possibility of putting forward the grounds allowed him by the law in order to exonerate himself .", "That being so , there is no incompatibility in this case between the impugned provisions and the principles laid down in the conventions relied on , seeing that the customs authorities are prosecuting PERSON for an offence of unlawfully importing strictly prohibited goods , namely QUANTITY of heroin base or almost pure heroin , a commodity whose importation is strictly prohibited on account of its harmfulness to public health and of the damage its consumption causes both to the users’ physical health and to the social order .", "In the face of a scourge affecting young people more particularly and which is spreading alarmingly , the impugned provisions of LAW , which were applied in conformity with the rules laid down in LAW , can be seen as the response made within the constitutional framework and the limits of a NORP State ’s sovereignty to offences that are particularly serious and call for appropriate special punishment .", "There is accordingly no ground for holding that these provisions are inapplicable .", "B. As to PERSON ’s guilt", "It is established that on TIME CARDINAL January CARDINAL Ngo , who played an important part in the importation of the heroin , was driven by PERSON in his ORG car to buy hydrochloric acid in various shops to blend the pure heroin brought into GPE by PERSON and PERSON .", "PERSON was present in the flat at CARDINAL boulevard de la Chapelle at TIME when the QUANTITY of caffeine were delivered there by an NORP who was said by the other defendants to be the head of the trafficking network .", "He agreed to drive PERSON and GPE to their rendezvous with PERSON and PERSON .", "At the time he was arrested , he was waiting for PERSON to get into his car so that he could drive him to PERSON ’s flat in the boulevard de la Chapelle .", "He was therefore on the point of being in possession of the smuggled goods , which only the intervention of the police prevented from being placed in his vehicle .", "The customs authorities therefore rightly argued that the attempt is regarded in the same way as the offence itself , that it was for reasons beyond his control that PERSON did not physically come into possession of the heroin that was going to be placed in his car and that the fact of his having driven in his own vehicle CARDINAL traffickers who were on the point of taking delivery of the prohibited goods warranted the assertion that he had an interest in customs evasion .", "He did not claim to have acted from necessity , and the circumstances in which he was implicated in the operation and arrested do not allow him to maintain that he acted as a result of an unavoidable mistake . \"", "On DATE that ORG gave its judgment , Mr PERSON appealed to ORG . PERSON wrote to the Chairman of the PERSON d’État and ORG on DATE applying for counsel to be officially assigned as his client was not in a position to meet further costs . The principles which the applicant intended to assert before ORG were , he said , complex and the advice of a member of ORG was essential for following the proceedings . He reiterated this request in a letter of CARDINAL DATE .", "On DATE the Chairman of the Bar replied as follows :", "\" Legal aid is not available to convicted persons , who are infinitely numerous , in criminal cases which come before ORG .", "In certain exceptional cases , where the heaviest sentences are at stake , I assign CARDINAL of my colleagues free of charge for the purposes of studying the file .", "But Mr PERSON does not come into this category and I can not grant his request . \"", "On DATE the applicant sent a registered letter to the registry of ORG ; he indicated that he was filing , as pleadings , a copy of the appeal submissions lodged on DATE by his CARDINAL counsel ( see paragraph CARDINAL above ) .", "ORG ) dismissed the appeal on CARDINAL DATE for the following reasons :", "\" Having regard to the personal application , which was properly produced , and to the pleadings in support ;", "The personal application does not in itself raise any point of law for determination and does not allege a breach of any provision . Accordingly , since it does not comply with the requirements of LAW [ of Criminal Procedure ] , it is not admissible .", "ORG judgment , moreover , contains no formal defect . \"", "In GPE customs offences are criminal offences with various special features .", "The Customs Code essentially prohibits smuggling ( Articles CARDINAL and CARDINAL ) and undeclared importation or exportation ( Articles CARDINAL - CARDINAL ) . This case is concerned solely with smuggling . Smuggling is defined as \" any importation or exportation effected outside official customs premises and any infringement of the statutory provisions or regulations concerning the possession and transport of goods within the customs territory \" ( Article CARDINAL para . CARDINAL ) , for example - but not exclusively - if importation of the goods is prohibited ( Article CARDINAL para . CARDINAL , to be read in conjunction with LAW ) .", "The following are the main provisions of LAW that are referred to in the instant case :", "\" The courts shall not acquit offenders for lack of intent . \"", "This paragraph was repealed by Law no . CARDINAL - CARDINAL of DATE , which changed tax and customs procedure , but the PERSON did not apply to the instant case .", "\" In any proceedings concerning a seizure of goods , the burden of proving that no offence has been committed shall be on the person whose goods have been seized . \"", "\" A person in possession of smuggled goods shall be deemed responsible for customs evasion . \"", "Taken literally , this provision appears to create an irrebuttable presumption . The courts have , however , mitigated its strictness . Thus ORG now upholds the unfettered power of courts of trial and of appeal to assess the \" evidence adduced by the parties before them \" ( see , for example , the PERSON judgment of DATE , ORG . crim . ) no . CARDINAL , p. CARDINAL ) and recognises that an accused may exonerate himself by establishing \" a case of force majeure \" resulting \" from an event responsibility for which is not attributable \" to him and which \" it was absolutely impossible [ for him ] to avoid \" , such as \" the absolute impossibility ... of knowing the contents of [ a ] package \" ( see , for example , ORG and PERSON judgment of DATE , ORG , DATE , jurisprudence , pp . CARDINAL - CARDINAL , and the Salabiaku judgment of CARDINAL DATE , extracts from which are reproduced in the Series A volume no . ORG , p. CARDINAL , para . CARDINAL ) .", "\" CARDINAL . Anyone who as a person having an interest has taken part in any way in a smuggling offence or an offence of undeclared importation or exportation shall be liable to the same penalties as anyone committing the offence and , furthermore , to the loss of rights provided for in Article CARDINAL hereinafter .", "The following shall be deemed to have an interest :", "( a ) owners and members of business undertakings , insurers , insurance policyholders , moneylenders , owners of goods and in general anyone who has a direct interest in customs evasion ;", "( b ) anyone who has contributed in any way to a series of acts committed by a number of individuals acting in concert , in accordance with a customs - evasion plan drawn up in order to achieve the jointly pursued purpose ;", "( c ) anyone who has knowingly concealed the activities of smugglers or attempted to help them evade punishment or has purchased or possessed , even outside the customs zone , goods obtained by means of a smuggling offence or an offence of undeclared importation .", "An interest in customs evasion can not be imputed to anyone who has acted from necessity or as a result of unavoidable mistake . \"", "Under NORP case - law , having an interest is distinct from the criminal offence of aiding and abetting as defined by Articles DATE and CARDINAL of LAW , to which LAW refers ( DATE , ORG . crim . no . CARDINAL ) .", "\" Unavoidable mistake \" is to be understood as a mistake as to some physical fact , made in circumstances precluding any fault or negligence on the part of the person making it , such that the mistake could not be avoided , even after checks had been made ; it is not a simple matter of good faith ( DATE , ORG . crim . no . CARDINAL ) . In a judgment of CARDINAL DATE ORG held : \" Article CARDINAL para . CARDINAL of LAW requires , in order for a person to be found guilty of having an interest in customs evasion committed by third parties , that the court should find that the defendant knowingly contributed to an unlawful operation which might result in customs evasion , even if he was ignorant of the actual arrangements \" ( Bull . crim . no . CARDINAL ) .", "\" Any attempted customs offence shall be regarded in the same way as the offence itself . \"", "Legal representation is not compulsory for applications to ORG in criminal cases . A convicted defendant can lodge an appeal on points of law himself and set out his grounds of appeal in writing ( Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ) . Only members of the ORG d’État and ORG , however , have the right of audience .", "For DATE there were no provisions to deal with the problem of legal aid for persons whose means were insufficient to ensure the exercise of their rights in the criminal courts .", "Section CARDINAL of Law no . CARDINAL of DATE on legal aid and payment of officially assigned or appointed counsel provided merely :", "\" Legal aid shall be granted for both contentious and non - contentious proceedings .", "It shall be available for :", "Any proceedings brought either before an ordinary court other than a criminal court or before the ORG d’État , the administrative courts of appeal , the administrative courts or ORG ;", "Any action in courts of trial or of appeal concerning a person ’s civil liability ;", "Any action brought by a civil party to criminal proceedings before investigating judges or courts and trial or appeal courts ;", "Any protective measure ;", "Any procedure for enforcement of either a judicial decision or any other legal transaction . \"", "According to the ORG d’État and ORG , the situation before the DATE reform ( see paragraph CARDINAL below ) was as follows :", "\" ...", "In the absence of any provisions , it has always been the tradition of the NORP bars ... to ensure that persons unable to meet the costs of their defence are defended by counsel assigned officially by the Chairman of the Bar . Lack of means is a matter of presumption for these purposes and there is no kind of means test .", "If it becomes apparent that a person to whom counsel has been assigned officially for proceedings in courts of trial or of appeal , generally at his own request but sometimes , to ensure the proper conduct of the proceedings , at the request of an investigating judge or of the presiding judge of the court ( at the ORG , for example ) , has means of his own , the official assignment ( free of charge ) may , at his request , be converted into an official appointment , the lawyer initially assigned then having the right to charge fees , under the supervision of the chairman of the bar .", "Counsel at the ORG d’État and ORG have similarly always contributed to the provision of free representation in criminal cases ; but , given the small size of the ORG d’État and ORG and the ‘ extraordinary’ nature of an appeal to ORG , it was necessary to adapt the procedure .", "This adaptation was twofold in nature .", "Firstly , the Chairman of the ORG d’État and ORG never officially assigned a colleague directly . Where it was possible for an official assignment to be made , he would appoint a member of the Bar to study the file ; the latter would report to the Chairman , and if he had identified a ground of appeal , the appointment to study the file would be informally converted into an official assignment .", "This preliminary study corresponded to the preliminary study made by ORG , and the same resources were available .", "Where a ground of appeal could be set out at length , the appointed member of the Bar would produce pleadings on a voluntary basis .", "Secondly , counsel was not automatically appointed following an application .", "A study of the file was ordered as of right where there had been a conviction by an assize court and in the event of a case being remitted to an assize court or of a prison sentence being passed by a criminal court where the applicant was in custody pending trial . Study of the file was also ordered in the cases of those convicted by a criminal court of first instance or appeal who were not in custody but whose sentence was above a certain level , the level apparently having varied over time .", "In all cases , if the Chairman indicated that he was unable to appoint a colleague , he qualified this by saying that he would have the file studied by CARDINAL of his colleagues if his attention was drawn to a point of law that could be submitted for review by ORG . Study of the file was in fact ordered fairly generously once counsel before a court of trial or of appeal had drawn the attention of the Chairman of the Bar to a specific point .", "It is to be noted that such precautions were necessary , not only because of the small size of the ORG d’État and ORG but also because appeals to ORG in criminal cases ( except in respect of judgments in associated civil - party proceedings ) have a suspensive effect . It was important that the hearing of appeals that could not be sustained should not be systematically delayed on the ground that the file was being officially studied ( or that counsel had been officially assigned to it ) .", "It must not be overlooked that when a file is allocated to counsel , he is given a deadline . Moreover , when pleadings are produced , ORG is obliged to give a reasoned judgment , after the case has been examined by a reporting judge ; whereas when an appeal is not supported in that way , the case is automatically entered in a list known as the ‘ formal list’ because ORG essentially considers only whether the impugned judgment is free from any formal defect ; in actual fact , it also satisfies itself that the statutory maximum sentence has not been exceeded .", "In DATE the Chairman of the ORG d’État and ORG who had then been elected became concerned about the increasing number of applications made to him for official assignment of counsel and the number of official appointments he had to make for study of files in accordance with the foregoing criteria ; the number of such appointments had indeed increased from CARDINAL in DATE to CARDINAL in DATE .", "He felt it his duty , on his own initiative , to make a slight alteration if not to the actual criteria , at least to the letter previously sent to those applying for an official assignment of counsel or to lawyers applying for it on their behalf . In these replies he ceased to mention automatically that counsel would be officially instructed to study the file if a point of law was brought to his attention ; and he also changed the criterion for an official appointment , in respect of applicants who were not in custody , to a DATE prison sentence ( instead , apparently , of DATE previously ) .", "When a point of law was notified to him , he did in fact order an official study of the file , as in the past ; the same applied when it was justified by the applicant ’s psychological state .", "These measures reduced the number of appointments made for study of files from CARDINAL in DATE to CARDINAL in DATE .", "The Chairman who was elected in DATE took a decision to order study of all files without any distinction when an application for official assignment of counsel was made to him ; the number of files studied rose from CARDINAL in DATE to CARDINAL in DATE , and reached CARDINAL in DATE , falling back to CARDINAL in DATE .", "... \"", "It is now provided , in PERSON no . CARDINAL of DATE on legal aid :", "\" Legal aid shall be granted to plaintiffs or defendants in contentious or non - contentious proceedings before any court .", "It may be granted for all or part of the proceedings .", "It may also be granted in respect of the execution of a judicial decision or of any other authority to execute . \"", "Following an agreement between ORG and the ORG d’État and ORG , a system of legal aid in criminal cases has been set up ." ]

[ "6" ]

[ "6-3" ]

[ "6-3-c" ]

[ "6" ]

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

[]

[ "The applicant was born in DATE and at the material time lived in LOC . He now lives in GPE .", "In DATE the applicant started working for a construction and design agency , “ Raduga ” ( ORG “ PERSON ) , a ORG corporation that developed rocket and space devices . He signed an undertaking not to disclose classified information .", "On DATE the applicant signed a new undertaking , the relevant part of which reads as follows :", "“ I , [ the applicant ] , undertake :", "( a ) not to disclose information containing ORG and professional secrets that are entrusted to me or that I learn by virtue of my service ( work ) duties ...", "...", "( c ) not to visit embassies , missions , consulates or other representative offices of foreign GPE , and not to contact DATE directly or through others – foreigners without the consent of the management of the agency I work for or the relevant NORP authorities ...", "I have been informed of the prohibition on travel abroad , except as permitted by relevant laws and regulations ... ”", "On DATE the applicant signed a new undertaking which read as follows :", "“ I , [ the applicant ] , on assuming my work duties at the GPE design agency , undertake :", "( a ) not to disclose information containing ORG and professional secrets entrusted to me or coming to my attention by virtue of my service ( work ) duties ;", "( b ) to abide by the applicable requirements laid down in the orders , instructions and regulations concerning the secrecy of the studies conducted , of which I have taken cognisance ;", "( c ) to notify the department of the enterprise responsible for secrecy arrangements or the competent authorities of any attempts by outsiders to obtain secret information from me ;", "( d ) to inform the human resources department in a comprehensive and timely fashion of any change in my personal circumstances ; and to inform the department responsible for secrecy arrangements of any contacts with my relatives permanently living abroad or planning to take up permanent residence abroad , or of any non - professional contacts with foreigners .", "In the event of my dismissal I undertake to abide strictly by requirements ( a ) and ( c ) above ... ”", "On DATE the applicant resigned .", "NORP In DATE the applicant ’s father , who lived in GPE , fell ill . Wishing to visit his father , the applicant applied to ORG of PERSON for a travel passport , the identity document which entitles NORP citizens to leave the country and travel abroad .", "On DATE the Head of ORG refused the applicant ’s request . The entire text of the decision reads as follows :", "“ As there exist grounds for a temporary restriction on your right to leave GPE as set out in section CARDINAL of the PERSON on the procedure for entering and leaving GPE , your application for a travel passport has been declined until DATE further to a recommendation by the ORG design agency of DATE ( registration number CARDINAL ) . ”", "The applicant contested the refusal before ORG for the examination of NORP ORG complaints in connection with restrictions on their right to leave GPE ( “ the Commission ” ) . On DATE the Commission informed the applicant that it had unanimously upheld the imposition of a DATE restriction . The letter did not indicate the reasons for the decision .", "The applicant appealed against the decision of the Commission to ORG .", "On DATE ORG gave judgment . It found that on DATE , CARDINAL DATE and DATE the applicant had signed undertakings not to disclose ORG secrets ; the DATE undertaking also contained a clause restricting the applicant ’s right to leave the country . Having examined a report on the applicant ’s knowledge of ORG secrets of DATE , drawn up by the applicant ’s former employer and confirmed by ORG and ORG of ORG at the request of ORG , the court found as follows :", "“ According to the report ... [ the applicant ] in his work used workbooks bearing inventory nos . DATE that contained extracts from top secret documents ( nos . ... ) . In respect of some inventory numbers , requests were sent to the design enterprises [ in order ] to verify whether the information contained therein was still sensitive . However , no response was received . Moreover , the ORG questioned a witness , PERSON , the Deputy General Director responsible for the regime and for security at the ORG agency , who confirmed that the information contained in the documents that had been drawn up in the ORG agency had retained its top secret classification and was still sensitive ... As the witness PERSON clarified to the ORG , there are no grounds for changing the secrecy classification of this information ... ”", "On these grounds the court determined that the restriction on the applicant ’s right to leave GPE until DATE was lawful and justified .", "On DATE ORG of GPE upheld ORG judgment , finding that it had been properly justified and reasoned .", "The restriction on the applicant ’s right to leave the country expired on DATE .", "On DATE the applicant was issued with a travel passport and subsequently took up residence in GPE .", "LAW provided that GPE citizens could only leave the country with a travel passport issued by a competent body ( section CARDINAL ) . A travel passport could be refused , in particular , if the person had knowledge of ORG secrets or was subject to other contractual obligations prohibiting his departure from the GPE ( section CARDINAL(CARDINAL ) ) . An appeal lay against a refusal to a special commission of ORG and from there to a court ( section CARDINAL) .", "Pursuant to section CARDINAL , “ restrictions [ concerning international travel ] [ were to be ] brought to ORG attention by the management of enterprises , institutions , organisations ... on their enrolment for work or study ... that entailed access to ORG secrets . Before such access [ could be ] authorised , a written employment contract [ had to ] be signed on a voluntary basis ... ”", "LAW remained in force until DATE when it was replaced by the NORP Act described below .", "Section CARDINAL provides that the right of a NORP citizen to leave GPE may only be restricted on the grounds of , and in accordance with , the procedure set out in LAW . LAW ) provides that the right of a NORP national to leave GPE may be temporarily restricted if he or she has had access to especially important or top secret information classified as a ORG secret and has signed an employment contract providing for a temporary restriction on his or her right to leave GPE . In such cases the restriction is valid until the date set out in the contract , but for no longer than DATE from the date the person last had access to especially important or top secret information . ORG for the protection of ORG secrets can extend this period up to a maximum of DATE .", "The granting of access to ORG secrets presupposes the consent of the person concerned to partial and temporary restrictions on his or her rights in accordance with LAW ( section CARDINAL ) .", "NORP The rights of persons who have been granted access to State secrets may be restricted . The restrictions may affect their right to travel abroad during the period stipulated in the work contract , their right to disseminate information about the State secrets and their right to respect for their private life ( section CARDINAL ) .", "The relevant part of Opinion no . CARDINAL ( DATE ) on GPE ’s request for membership of ORG , adopted by ORG on DATE ( CARDINALth Sitting ) , reads as follows :", "“ CARDINAL . ORG notes that the ORG shares fully its understanding and interpretation of commitments entered into ... and intends :", "...", "xv . to cease to restrict DATE with immediate effect – international travel of persons aware of ORG secrets , with the exception of those restrictions which are generally accepted in ORG member GPE ... ”", "The Explanatory Report on Protocol No . CARDINAL to the Convention ( ETS no . CARDINAL ) indicates that ORG set up by ORG endorsed the changes bringing the text of LAW No . CARDINAL in conformity with that of LAW , cited below ( see , in particular , points CARDINAL and CARDINAL of the Report ) .", "The laws of the founding members of ORG have not restricted the right of their nationals to go abroad for private purposes since the inception of the organisation . ORG , which was originally signed on DATE by CARDINAL States and has to date been implemented by DATE , has removed border posts and checks in much of the western part of LOC and abolished any outstanding restrictions on international travel .", "Many other ORG , including , in particular , the former NORP countries , repealed restrictions on international travel by persons having knowledge of “ State secrets ” , a common legacy of the ORG regime , during the process of democratic transition ( for example , GPE , GPE , GPE , GPE , GPE and GPE ) . At present certain restrictions on persons who were aware of “ ORG secrets ” but wished to go abroad have endured in only a few GPE that were once part of GPE . Of those , CARDINAL member GPE ( GPE and GPE ) provide for temporary restrictions on permanent emigration – but not on international travel for private purposes – by persons who had access to “ ORG secrets ” , and CARDINAL member ORG ( GPE ) also restricts private international travel by such individuals .", "Article CARDINAL of LAW ( “ NORP ” ) , to which GPE is a party , defines the right to freedom of movement in the following terms :", "“ CARDINAL . Everyone lawfully within the territory of a ORG shall , within that territory , have the right to liberty of movement and freedom to choose his residence .", "Everyone shall be free to leave any country , including his own .", "The above - mentioned rights shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order ( ordre public ) , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognized in the present LAW .", "... ”", "General Comment no . CARDINAL : Freedom of movement ( LAW ) , adopted by ORG under LAW of the ORG on DATE ( CCPR / C/CARDINAL/Rev.CARDINAL/Add.CARDINAL ) , reads as follows :", "“ CARDINAL . Liberty of movement is an indispensable condition for the free development of a person ...", "The permissible limitations which may be imposed on the rights protected under LAW must not nullify the principle of liberty of movement , and are governed by the requirement of necessity provided for in LAW , paragraph CARDINAL , and by the need for consistency with the other rights recognized in the LAW .", "...", "Freedom to leave the territory of a ORG may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country . Thus travelling abroad is covered , as well as departure for permanent emigration ...", "...", "NORP ... Since international travel usually requires appropriate documents , in particular a passport , the right to leave a country must include the right to obtain the necessary travel documents . The issuing of passports is normally incumbent on the State of nationality of the individual . The refusal by a ORG to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere ...", "...", "Article CARDINAL , paragraph CARDINAL , provides for exceptional circumstances in which rights under paragraphs CARDINAL and CARDINAL may be restricted ...", "...", "Article CARDINAL , paragraph CARDINAL , clearly indicates that it is not sufficient that the restrictions serve the permissible purposes ; they must also be necessary to protect them . Restrictive measures must conform to the principle of proportionality ; they must be appropriate to achieve their protective function ; they must be the least intrusive instrument amongst those which might achieve the desired result ; and they must be proportionate to the interest to be protected .", "...", "States have often failed to show that the application of their laws restricting the rights enshrined in LAW , paragraphs CARDINAL and CARDINAL , are in conformity with all requirements referred to in LAW , paragraph CARDINAL . The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality . These conditions would not be met , for example , if an individual were prevented from leaving a country merely on the ground that he or she is the holder of ‘ State secrets’ ... ”" ]

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[ "The applicant was born in GPE in DATE and lives at present in GPE and GPE .", "The applicant stayed with his parents , who are both citizens of GPE and GPE and lawfully residing in GPE , for DATE after his birth in GPE . He then lived with his grandparents in the former GPE , now GPE and GPE . There he completed primary school , though he spent the DATE with his parents in GPE .", "In DATE , at DATE , he came back to live with his parents and his sister in GPE , where he finished secondary school and completed a DATE vocational training as a butcher . During this time , he resided lawfully in GPE and , on CARDINAL DATE , he received an unlimited residence permit ( unbefristeter PERSON ) .", "On DATE ORG ( GPE ) convicted the applicant of aggravated robbery and burglary and sentenced him to CARDINAL months’ imprisonment , out of which DATE were suspended with a probationary period of DATE . It found that the applicant , on DATE , together with his co - accused born in DATE , had knocked down the victim with a perfume bottle and had stolen cash in the amount of CARDINAL NORP schillings ( ORG ) . On CARDINAL and DATE they had attempted to steal another victim ’s DATE cash receipt by using a wheel nut tool . Still on DATE , they had broken into that victim ’s car and had taken away his DATE cash receipt and a cheque , totalling almost ATS CARDINAL . When fixing the sentence , the court considered as mitigating circumstances that the applicant had so far no criminal record , that he had admitted the offences and had partly made amends ( Schadensgutmachung ) , and that in CARDINAL instances the offences remained attempts . As aggravating circumstances the court considered the concurrence of CARDINAL different offences , the amount of damage , the injury of the victim and the qualification of the burglary . The judgment became final in the absence of an appeal by the applicant .", "On DATE ORG Bundespolizeidirektion Wien ) issued a residence prohibition of unlimited duration against the applicant . It referred to LAW CARDINAL and CARDINAL ( CARDINAL ) of the DATE LAW ( PERSON ) according to which a residence prohibition is to be issued against an alien , if he has been sentenced to CARDINAL months’ imprisonment by final judgment of a domestic court .", "The applicant served his prison sentence until DATE . Subsequently he was transferred to a detention centre with a view to his expulsion .", "On DATE ORG ) dismissed the applicant ’s appeal . Noting that the applicant had lived for DATE after his birth in GPE and that , after his return from former GPE in DATE , he had continuously lived with his family in GPE for DATE , it found that the residence prohibition at issue constituted an interference with his right to private and family life . However , it was necessary to achieve the aims set out in LAW , namely the prevention of disorder and crime and the protection of the rights of others . In particular , the applicant had committed aggravated robbery by using a weapon . Given the seriousness of the offences and the implied disrespect for physical safety and the property of others , no positive prognosis was possible . Therefore , the interest in issuing a residence prohibition of unlimited duration against the applicant prevailed over the applicant ’s interest in staying in GPE .", "On DATE the applicant lodged a complaint with ORG ) . He argued that the lower authorities had incorrectly established the facts and had failed to give sufficient reasons for their decisions . He stressed in particular that his family had already been residing lawfully in GPE for DATE and that he had completed secondary school and vocational training , upon which he had legally worked as a butcher . Before his conviction by ORG , the applicant had had no criminal record and the offences had been committed within a very short period of DATE . Since his grandparents had died in the meantime , he had no other relatives in GPE . The centre of his private and family life was exclusively in GPE . Referring to the NORP and NORP judgments of ORG , the applicant argued that the authorities had failed to comply with the Convention standards . In particular they had failed to balance correctly his interests in respect for his private and family life against public interests . There was no pressing need to issue an unlimited residence prohibition against him .", "On DATE ORG declined to deal with the matter and remitted the complaint to ORG ( Verwaltungsgerichtshof ) .", "On DATE ORG dismissed the complaint . It found that ORG had duly considered the applicant ’s private and family situation and had correctly assessed the interests involved when issuing the residence prohibition . Furthermore ORG found that in the cases of GPE and NORP the persons concerned had had stronger family ties in the host country than the applicant . The decision was served on the applicant ’s counsel on DATE .", "On DATE the applicant was expelled to the former GPE , now GPE and GPE .", "On DATE the applicant requested ORG to revoke the residence prohibition issued against him in view of LAW § CARDINAL ( CARDINAL ) of the DATE LAW , which was to enter into force on DATE . Pursuant to that provision , a residence prohibition may not be issued “ where a foreigner has grown up in GPE from an early age on and has been lawfully residing there for many years ” . Section CARDINAL § DATE Aliens Act establishes that if a residence prohibition has not expired at the date of the entry into force of the DATE LAW , the residence prohibition has to be regarded as a residence prohibition issued under LAW . However , the residence prohibition has to be revoked if it was not lawful to issue it under the CARDINAL Aliens Act .", "On DATE ORG dismissed this request . It noted in particular that the applicant did not comply with the requirements of the above provision , since he had not grown up in GPE within the meaning of LAW § CARDINAL ( CARDINAL ) . Therefore , the imposition of the residence prohibition was also lawful under LAW .", "In his appeal of CARDINAL DATE the applicant complained that ORG had incorrectly applied the provision at issue .", "On DATE ORG dismissed his appeal . It noted that the provision at issue required that a foreigner had commenced growing up in GPE at DATE or even younger , whereas the applicant had only been in GPE during DATE of his life and had come back when he was already CARDINAL . Therefore , he clearly did not comply with that provision .", "NORP The applicant did not appeal to ORG and ORG ." ]

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[ "Mr PERSON has dual NORP and NORP nationality . He was honorary consul of the GPE in GPE from DATE to DATE and also looked after that country ’s consulate in GPE .", "ORG On DATE and DATE customs officers seized CARDINAL documents at the applicant ’s GPE residence , on premises housing the head offices of companies he managed and the consulate of GPE . This operation was part of an investigation to determine , among other things , whether the applicant and his mother were to be regarded as being resident in GPE .", "The judicial investigation that had been commenced on a complaint lodged by the director of customs investigations alleging unlawful accumulation and holding of assets abroad ended in a judgment of ORG of DATE in which the court ruled that the public prosecution and the proceedings for imposition of customs penalties in respect of PERSON and PERSON were barred as a result of changes in the criminal law and ordered the return of the seized documents . These were returned in DATE .", "Mr PERSON challenged before the GPE institutions the lawfulness of the customs seizures made pursuant to ORG CARDINAL and CARDINAL of the Customs Code . Those proceedings led to CARDINAL judgments of ORG . In the first of these it was held that there had been a breach of LAW ( article CARDINAL) , on the ground that the house searches and seizures made by customs officers without a judicial warrant had interfered with the private life of the applicant , his mother and his wife ; and in the second , GPE was ordered to pay Mr Miailhe CARDINAL,CARDINAL French francs ( ORG ) in respect of non - pecuniary damage and ORG CARDINAL,CARDINAL for costs and expenses ( see the GPE v. GPE ( no . CARDINAL ) judgments of DATE , Series A no . CARDINAL-C , and DATE , Series A no . CARDINAL-C ) .", "ORG On DATE ORG sent the applicant notice of a full audit of his overall tax position in respect of his income for DATE .", "Since PERSON regarded himself as being resident for tax purposes in the GPE , and accordingly not under an obligation to pay tax to ORG , the Revenue asked him to produce copies of his tax assessment notices in the GPE and documents giving details of all bank accounts in his name both in GPE and abroad .", "On DATE Mr PERSON replied that it was impossible for him to forward some of the documents that had been kept by the customs and which he had asked to have returned to him .", "ORG During DATE the tax inspector exercised the right of inspection provided in ORG et seq . of LAW and LAW .", "At the offices of his customs colleagues he examined the CARDINAL documents that had been kept and classified by the customs authorities and made copies of CARDINAL of them .", "ORG On DATE the tax inspector asked the NORP authorities for administrative assistance as provided for in LAW of DATE \" for the avoidance of double taxation and prevention of fiscal evasion in relation to income tax \" ( see paragraph CARDINAL below ) .", "On DATE he inspected CARDINAL sheets concerning returns and annexes of the applicant and his mother for DATE , CARDINAL sheets concerning returns , appended financial statements and certificates from the accountant of the ORG company managed by the applicant in respect of DATE , and CARDINAL sheets relating to a provisional accounting statement and a bank reconciliation as at DATE .", "These documents reached the Revenue ’s administrative headquarters in GPE on DATE .", "ORG At the end of the tax audit CARDINAL supplementary assessments were served on PERSON : on DATE for DATE , on DATE for DATE , on DATE for DATE and on DATE for DATE . The Revenue subsequently amended the notices in respect of DATE , once on DATE , in the light of comments by the applicant , and again on DATE , to correct erroneous reasons .", "ORG The relevant documents to be studied for each category of proceedings - administrative , tax and criminal - were not all the same , since different tax years and bases of assessment were involved , as were failures to make returns and real - property and agricultural taxes distinct from the general income tax to which the dispute over tax residence related more particularly .", "Mr PERSON challenged the supplementary tax assessments for DATE in the administrative courts , which have jurisdiction in tax matters , by lodging an appeal founded partly on the non - adversarial nature of the Revenue ’s preparation of the case against him .", "In a judgment of CARDINAL DATE ORG held that the applicant had not proved that he had expressly asked the Revenue to produce the documents on which it had allegedly based the assessments for DATE , DATE and DATE and ordered further inquiries on this point . As to the assessment raised for DATE , on the other hand , the court found that the Revenue had failed to accede to an application for production made by the applicant ’s lawyer and accordingly remitted the additional tax sought from the applicant in the category of income from movable assets and in respect of income from undetermined sources for DATE . An appeal by the Minister for the ORG regarding the remission of tax granted for DATE was dismissed by ORG .", "An appeal on points of law against ORG judgment is pending before the PERSON d’Etat . ORG has not yet ruled on the merits as regards the supplementary tax assessments for DATE , DATE and DATE .", "ORG In other proceedings brought against the Revenue by the ORG company , managed by the applicant , ORG found that the tax assessment challenged by the company was based in part on documents seized by the customs in circumstances that had been held to be contrary to LAW ( article CARDINAL) . In a judgment of DATE it allowed the company ’s application for remission of tax as follows :", "\" While the unlawfulness of the seizure , in proceedings brought under different legislation , of documents on the basis of which the Revenue , exercising its right of inspection , assessed the taxes has no effect on the lawfulness of the tax proceedings , it is such as to deprive those documents of any probative value , including inasmuch as they revealed to the Revenue that the taxpayer was in a position to have his tax assessed by the Revenue of its own motion . Where an international judicial body set up by an international treaty or agreement that has been lawfully ratified or approved has ruled that the seizure of documents did not comply with the said treaty or agreement , the court having jurisdiction in tax matters must regard the seized documents as having no probative value ... \"", "ORG On DATE ORG ( \" the ORG \" ) gave approval for a complaint to be lodged seeking the imposition of criminal tax penalties , pursuant to LAW see paragraph CARDINAL below ) .", "In consequence , ORG lodged a complaint , together with an application to join the proceedings as a civil party , against the applicant for tax evasion in respect of DATE and DATE . It accused him of not having made any general tax return for DATE and of having understated his agricultural income for DATE .", "ORG The Revenue annexed to its complaint some of the documents given to it by the customs authorities . It did not at that juncture append any of the documents forwarded by the NORP authorities , although the tax inspector ’s summary report that had been placed in the file of the judicial investigation mentioned the correspondence between the NORP and the NORP authorities .", "The investigating judge raised this point with the tax inspector , who referred back to his central authorities and subsequently told the judge that his authorities had hesitated to produce in criminal proceedings documents which the ordinary judicial authorities could not have procured for themselves . At the judge ’s request , the inspector added to the file the documents from the GPE provided by his authorities , that is to say the only documents concerning PERSON in respect of the offences charged . The documents not placed in the file related either to PERSON and the ORG company - and neither of these was implicated - or , in respect of the defendant , to the DATE and DATE , which the proceedings for failure to make a tax return were not concerned with .", "ORG On DATE the investigating judge committed the applicant for trial at ORG on a charge of having fraudulently evaded , in part , assessment and payment of income tax for DATE and DATE \" by having failed to make certain category - specific returns ( in respect of income from movable assets , ‘ ORG , and industrial and commercial profits , ‘ BIC’ , LAW ) within the prescribed time - limits ( in respect of DATE ) and by having omitted from his returns ( for DATE and DATE ) part of his income from farming and real property , thus deliberately concealing in his overall returns part of the sums liable to tax \" .", "ORG Before any defence on the merits Mr PERSON filed submissions in which he sought to have the Revenue ’s complaint and the judicial investigation proceedings declared null and void . He argued that the customs seizures were null and void , that the adversarial principle had not been respected by the Revenue and that the latter , in particular during the judicial investigation , had withheld documents from the judicial authorities and made false statements .", "He himself filed certain documents that he had been able to obtain from the NORP authorities : the NORP tax authorities’ request to their NORP opposite numbers , the NORP authorities’ reply indicating that PERSON and PERSON had been resident for tax purposes in the GPE for DATE and DATE , information concerning the ORG company , untranslated bank documents , a certificate by a registered accountant to the effect that PERSON tax return for DATE had been made in good faith , a statement of his income and expenditure for DATE , an amortisation table for DATE , a statement of his income for DATE , the tax return he made in the GPE for DATE and a tax return for DATE .", "ORG On DATE ORG gave its judgment .", "It began by dismissing all Mr PERSON ’s preliminary objections .", "As regards the first of those , it pointed out that on an appeal by the applicant concerning the lawfulness of the seizures , ORG had upheld a judgment of ORG in which that court had said that \" the customs officials did not exceed their powers and that there was no manifest , deliberate violation of a personal freedom \" ; the customs seizures were covered by paragraph CARDINAL of Article CARDINAL of the Convention ( article CARDINAL - CARDINAL ) and the seized documents had been lawfully made available to the Revenue .", "It dealt with the second objection as follows :", "\" ... on account of the principle that tax and criminal proceedings are independent , the [ criminal ] courts can not rule on the nullity of tax proceedings . The only exception to this principle is provided in LAW This Article provides that proceedings shall be null and void where a notice of audit does not mention that the taxpayer has the right to be assisted by an adviser of his own choosing . As the defendant does not dispute that this information was given to him , he can not rely on any other argument in order to obtain from the criminal courts a declaration that the tax proceedings are null and void . \"", "As to the last objection , the court found , in the light of the documents produced by the applicant at the hearing , that the letters and documents exchanged by the NORP and NORP authorities were not in the file and it held :", "\" ... The failure to place in the file some documents of importance to the accused ’s defence , which had been sought in their entirety by the investigating judge , amounts to a breach of his rights .", "That breach of the rights of the defence can not , however , have the consequence that the earlier proceedings were a nullity .", "By producing these documents at the hearing , the accused was able to explain their content and have them submitted to adversarial argument . The breach of his rights did not therefore have the effect of prejudicing his interests . \"", "ORG Ruling on the question whether PERSON was under an obligation to make a return in GPE of his category - specific income and whether he had with fraudulent intent evaded paying that tax for DATE , the court held that the applicant was resident for tax purposes in GPE at the time , both under NORP law and under ORG . In order to determine whether there had been fraudulent intent , it relied among other things on a manuscript document written by PERSON that was reproduced in the tax - audit report and on the applicant ’s conduct in producing only at the hearing his full return for DATE , which had been submitted to the tax inspector with the figures whited out .", "As to the undeclared income from farming and real property for DATE and DATE , the court found that the applicant had lent money to himself through the bank accounts of his companies and subsequently deducted from his agricultural income the interest charges and exchange losses . He thus realised a tax loss for DATE and legally exported his capital by means of the repayments .", "The court concluded that PERSON had personally put in place fraudulent arrangements designed to evade liability to and payment of tax in GPE . It sentenced him to CARDINAL GPE imprisonment , of which DATE were to be served immediately , and a fine of FRF CARDINAL . Extracts from the judgment were ordered to be published in the NORP ORG and in the DATE newspapers ORG , ORG and ORG .", "ORG The defendant appealed and in ORG reiterated the CARDINAL objections of nullity already raised , stating as to the last of them that :", "\" ... although he ha[d ] been able to obtain a number of withheld documents by seeking them from the NORP authorities , he ha[d ] been unable to inspect most of the documents attached to the correspondence , he still [ did ] not know what they contained and ha[d ] been unable to give explanations concerning them ; in particular , he ha[d ] not been able to refer to the withheld documents before ORG ; ... \"", "ORG gave judgment on DATE .", "It joined the objections to the merits and dismissed them , referring \" in the case of the first CARDINAL applications for a declaration of nullity that were reiterated but not strongly argued \" to the reasoning of ORG . The last objection , concerning the withholding of documents and the false statements , it dismissed as follows :", "\" These documents should have been handed over but provide no information that could have any bearing on the decision of the court below or of this court : for the most part they did not concern PERSON or the period in question , DATE ; ... the documents not filed were of no relevance to the case and , at all events , were produced at the hearing in the court below and examined adversarially on that occasion ; the same reasoning , except for the adversarial examination of the documents , applies to ORG ; moreover , at first instance no application was made for a declaration that the proceedings before ORG were null and void .", "As regards the very large number of other documents handed over but not placed in the file , their existence , alleged by [ the applicant ] , has not been proved and they can not be taken into account in any way . \"", "ORG On the merits the court held , as to the first offence of failure to declare income for DATE , that the applicant was a NORP resident for tax purposes under NORP law alone , as ORG did not operate in the instant case since there was no conflict between the CARDINAL sets of national legislation . The court pointed out that the Revenue ’s calculations had been based on documents signed in GPE by PERSON , which it listed . The court held that he had had fraudulent intent from a scrutiny of notes by him that had been seized and were in the file and documents that he had placed in it himself , which showed that notwithstanding his alleged status as NORP resident and citizen , he had not discharged his obligation to declare his world income in the GPE either .", "ORG , which upheld ORG judgment in its entirety , sentenced the defendant to CARDINAL GPE imprisonment , of which DATE were to be served immediately , and a fine of FRF CARDINAL .", "Mr PERSON lodged an appeal on points of law , which was dismissed by ORG ) on DATE .", "The judgment read as follows :", "\" As to the second ground of appeal , based on the breach of LAW article CARDINAL) of LAW ...", "...", "The ground must therefore fail ;", "As to the third ground of appeal , based on a breach of ... LAW ...", "...", "Firstly , the accused merely raised , in the court of trial before any defence on the merits , an objection of nullity going to the lawfulness of the supplementary tax assessment proceedings , which , as they are purely administrative , are irrelevant to the criminal proceedings .", "That being so , the first limb of the ground of appeal , which raises for the first time before ORG the objection based on the alleged nullity of the proceedings before ORG gave its opinion , is inadmissible LAW .", "Secondly , as a ground for refusing to allow the objection that the ordinary criminal proceedings were a nullity on account of the Revenue ’s withholding of documents useful to the defence , ORG noted that under ORG of DATE , the NORP authorities sought administrative assistance from the NORP authorities . The accused maintained that CARDINAL documents were sent to the NORP authorities in this way .", "The accused , who had been able to obtain some of these documents , produced them at the hearing in ORG .", "After studying these documents , ORG found that they were of no relevance to the case , most of them not concerning [ PERSON or the period referred to in the charge . At all events , they were produced at the hearing in ORG and examined adversarially on that occasion . ORG added that the existence of the other documents allegedly sent and not placed in the file had not been proved .", "In ruling as it did , ORG , which based its judgment only on the documents produced at the hearing , provided a legal basis for its decision .", "The second limb of the ground of appeal must likewise fail . \"", "ORG The applicant was committed to prison on DATE and was released on licence on DATE of DATE . He was placed under judicial supervision until DATE .", "ORG At GPE on DATE the NORP and ORG signed a convention \" for the avoidance of double taxation and prevention of fiscal evasion in relation to income tax \" . LAW \" ) provides :", "\" CARDINAL . The competent authorities of the Contracting States shall exchange such information ( being information which is at their disposal under their respective tax administrative practices and those which may be procured by special inquiry ) as is necessary for the carrying out of this Convention and of the domestic laws of GPE concerning taxes covered by this LAW , in particular , for the prevention of fraud or evasion of such taxes . Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those ( including a court or administrative body ) concerned with the assessment , collection , or enforcement in respect of taxes which are the subject of the LAW or with the prosecution , claims and appeals relating thereto .", "In no case shall the provisions of paragraph CARDINAL be construed so as to impose on CARDINAL of GPE the obligation :", "( a ) to carry out administrative measures at variance with the laws or the administrative practices of that or of the other ORG ;", "( b ) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other ORG ;", "( c ) ... \"", "ORG Administrative tax - inspection proceedings are governed by LAW . By LAW ,", "\" A full audit of the overall tax position of a natural person in regard to income tax or an audit of accounts can not be undertaken unless the taxpayer has been informed of it by the sending or handing over of a notice of audit .", "Such a notice must specify the DATE in respect of which the audit is to be made and expressly mention , failing which the proceedings will be null and void , that the taxpayer has the right to be assisted by an adviser of his own choosing .", "In the event of an unannounced inspection for the purpose of identifying physical features of the business or establishing the existence and state of the books , the notice of an audit of the accounts shall be handed over at the beginning of the search operation . A thorough scrutiny of the books may only begin after the taxpayer has been given a reasonable time to seek the assistance of an adviser . \"", "The courts with jurisdiction in tax matters , which in the case of direct taxes are the administrative courts , are competent in principle to deal with irregularities in administrative tax - inspection proceedings . They ensure that the safeguards afforded to taxpayers are complied with . Thus \" a final decision by a criminal court can not prevent a taxpayer from arguing before a court with jurisdiction in tax matters that the audit which gave rise to the impugned tax assessments was irregular \" ( ORG d’Etat , CARDINAL DATE , no . DATE , Revue de jurisprudence fiscale , DATE , no . CARDINAL ) .", "ORG Article L.CARDINAL of LAW provides :", "\" To be admissible , complaints seeking the imposition of criminal penalties in respect of direct taxes , value - added tax and other turnover taxes , registration fees , land registry fees and stamp duty must be lodged by the administrative authorities after approval from ORG .", "The ORG shall consider the cases submitted to it by ORG . The taxpayer shall be given notice of the application to ORG , which shall invite him to send it , within DATE , any information it considers necessary .", "The Minister shall be bound by the ORG ’s opinions . \"", "The Revenue is not required by any provision of statute or of regulations to institute criminal proceedings in respect of the offences referred to in LAW ( ORG d’Etat , CARDINAL DATE , ORG DATE , p. CARDINAL ) .", "The ORG was set up under LAW of DATE in order to afford taxpayers fresh safeguards and it is made up of CARDINAL senior members of the ORG d’Etat ( judges of the administrative courts ) and CARDINAL senior members of ORG ( judges of the financial courts ) . ORG absolutely excluded the possibility of the ORG being a court of first instance . It refused to allow the ORG ’s opinions to contain reasons , in order to avoid influencing the ordinary courts . As long as there is no breach of due process , a taxpayer accused of tax evasion may not challenge in the criminal courts the lawfulness of the administrative proceedings which took place prior to the ORG ’s favourable opinion ; the criminal court must only establish the existence and date of that opinion ( Court of Cassation , ORG , DATE , PERSON ( \" DS \" ) DATE , p. CARDINAL ) .", "The only function of the criminal courts that hear tax - evasion cases is to punish the offence . ORG has held :", "\" ... Criminal proceedings instituted under LAW and the administrative proceedings for establishing the tax base and the scope of tax are in their nature and purpose different and independent from each other ... the function of courts which try criminal cases under LAW limited to determining whether the defendant evaded or attempted to evade tax by reprehensible subterfuges in respect of sums exceeding the statutory allowance . \"", "ORG , DATE , ORG , p. CARDINAL )", "Article PERSON provides that any breach of its provisions shall entail a nullity of the proceedings \" without any distinction being made between administrative proceedings and criminal proceedings ... Since the latter proceedings may be based on findings made by the inspectors in the books and documents held by a taxpayer , compliance with the requirements of [ LAW L.CARDINAL ] is an essential safeguard of the rights of the defence , which it is for the criminal courts to ensure are respected \" ( Court of Cassation , Criminal Division , DATE , ORG , ORG DATE , p. CARDINAL ) . However , \" it is not within the jurisdiction of the criminal courts to assess the lawfulness of the tax proceedings ... The criminal courts’ response to failure to comply with the provisions of LAW in that it departs from the general principle of the separation of administrative and ordinary courts , must be based on a strict construction and accordingly can not be extended beyond the cases to which the statute expressly meant to limit it \" ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG , p. CARDINAL ) ." ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE ( GPE ) .", "By a decision of DATE under LAW , the trade union branch at the Melitopol State Teacher ORG ( “ the Institute ” ) , which was the applicant 's employer at the time , granted the applicant indefinite authorisation ( ордер ) to occupy and use a CARDINAL - room , QUANTITY . m flat in a building in PERSON on the ORG 's books .", "In DATE the applicant resigned from the ORG and went to live in PERSON ( GPE ) to prepare his doctoral thesis . Before leaving , he took his wife to GPE ( GPE ) , where she was due to receive medical treatment .", "On DATE the ORG annulled its decision of DATE and granted authorisation to occupy and use the flat to ORG , another of its employees .", "On DATE T. , accompanied by CARDINAL witnesses , entered the flat . They noted that the flat was empty and made a statement to that effect . According to the applicant , his possessions were removed or stolen from the flat .", "NORP In DATE the applicant 's wife returned to PERSON . Unable to move back into the flat , which was now occupied by ORG 's family , she had to return to GPE and move in with relatives . In DATE the applicant returned to PERSON , before joining his wife in GPE .", "In DATE the applicant filed a civil claim against ORG with ORG , claiming compensation for pecuniary and non - pecuniary damage and seeking to assert his right to free use of the flat in question . ORG in turn lodged an application to have that right withdrawn from the applicant .", "On DATE , following an intervention by the procurator at the applicant 's request , the ORG annulled its decision of DATE , finding that it had been unlawful , and restored the applicant 's rights to the flat .", "In a judgment of DATE , ORG dismissed the applicant 's claim and granted the ORG 's application . It found in particular that , in accordance with the legislation in force and the employment contract concluded between the ORG and the applicant , the latter had forfeited his right to use of the flat concerned after taking up permanent residence elsewhere . The court also noted that , according to the statement made on DATE , the flat in question had been empty when it was entered .", "Following an objection under the supervisory review procedure from the PERSON deputy regional procurator , ORG , in a judgment of DATE , quashed the judgment of DATE and remitted the case to ORG for further consideration .", "By a judgment of DATE , ORG rejected the applicant 's claim , reiterating in substance the findings of the judgment of DATE .", "Following an appeal by the applicant on points of law ORG , in a judgment of CARDINAL DATE , quashed the judgment of DATE and remitted the case once more to the court of first instance . In particular , ORG noted that the issue of the lawfulness of the ORG 's decision of CARDINAL DATE , granting T. the rights to the flat in question , had not been addressed , despite the fact that the decision had subsequently been annulled following an objection from the procurator . The court further noted that the applicant 's wife , who was also authorised to occupy the flat , had been absent from the flat only temporarily , and on medical grounds . The court noted , inter alia , that CARDINAL of the CARDINAL witnesses had signed the statement of CARDINAL DATE at ORG 's request and had not been present when he had entered the flat .", "By an order of DATE giving effect to the ORG 's decision , the executive committee of PERSON municipal council transferred ownership of the flat in question to ORG , a private individual .", "In a judgment of DATE , ORG allowed the applicant 's claim in part . That judgment was upheld by ORG in a judgment of DATE . The court noted in particular that the applicant 's move to PERSON had been only temporary , and that PERSON had remained his permanent place of residence . Accordingly , it found that the applicant had the right to free use of the flat in question in PERSON . However , the court rejected the applicant 's claim for damages , observing that the criminal investigation into the disappearance of his possessions had been closed by an order of DATE ( see paragraph CARDINAL below ) . In that connection , the court took the view that neither the amount of the claim nor the existence of the pecuniary damage allegedly caused by ORG had been borne out by the evidence provided . It also noted that the law made no provision for compensation in respect of non - pecuniary damage in landlord - tenant disputes .", "On DATE ORG forwarded the writ of execution in respect of the judgment of DATE to the NORP department of ORG .", "On DATE the court bailiff noted that the flat in question was occupied by T. 's family . Accordingly , he lodged a request with ORG for an interpretation of the judgment of DATE .", "In a decision of DATE , ORG dismissed the request on the ground that it was aimed at having the judgment in question varied rather than interpreted . Furthermore , it noted :", "“ In examining the aforementioned civil case , the court was not aware that ownership of the flat in question ... had been transferred to a private individual , as ORG had not informed the court of this fact when he gave evidence as a witness at the hearing . Only after the judgment had been delivered did this come to light . That being the case , neither the court nor the applicant PERSON was aware that the flat had passed into private ownership . It was for that reason that Mr PERSON lodged an application simply to be allowed to occupy the flat in question rather than to have [ T. ] evicted . ”", "ORG upheld that decision in a judgment of DATE .", "In DATE the PERSON procurator applied to ORG on the applicant 's behalf , seeking to have the transfer of ownership of the flat to T. on DATE declared unlawful , and to have ORG evicted from the flat .", "At the hearing , the executive committee of Melitopol municipal council argued that the construction of the flats belonging to the ORG had been funded by ORG , and that any decision concerning the flat in issue would have been taken entirely by the ORG management .", "In a judgment of CARDINAL DATE , ORG granted the procurator 's application , ordering ORG to vacate the flat and the ORG to provide ORG 's family with alternative accommodation . In addition , the court concluded that ORG had acted unlawfully in relation to the disputed flat , in particular in approving the transfer of ownership to ORG , a private individual , in DATE , while the applicant 's civil claim was still pending before the court . This judgment became final on DATE .", "In a decision of DATE , ORG granted ORG and his family a stay of execution of the judgment of CARDINAL DATE until DATE , owing to the chronic illness of CARDINAL of the family members . The applicant alleges that he was not informed of the court hearing on that issue .", "In DATE and DATE , the court bailiff imposed a fine on the director of ORG delays in complying with the judgment in question .", "By orders of CARDINAL DATE and DATE , the court bailiff discontinued the execution proceedings in respect of the judgments of ORG of DATE and CARDINAL DATE , after certifying that the flat in question was unfit for human habitation . On DATE , in a measure designed to secure possession of the flat by the applicant , a committee made up of the applicant and CARDINAL witnesses , in the presence of the court bailiff , certified that the flat in question was empty and unfit for human habitation and needed substantial repairs before it could be used . Among many other things , the committee noted that the sanitary fittings and electrical wiring had been seriously damaged , that the sink and surrounding pipes had been removed , making it impossible to use any running water , and that the contents of the sewage pipes emptied into the flat , creating a powerful stench . They also recorded the refusal of T. and an official of the ORG to hand over the keys to the flat to the court bailiff .", "On DATE CARDINAL witnesses , of whom CARDINAL were engineers , accompanied by the applicant , inspected the flat and noted that , as a result of the damage recorded on DATE , the sewage pipes emptied into the kitchen and toilets , as had been the case at their inspections in DATE and DATE , and that the applicant was unable to use the sanitary facilities or running water . A statement to that effect was drawn up for the attention of ORG .", "According to a statement of CARDINAL DATE addressed to ORG and the procurator 's office by the applicant and CARDINAL engineers who had acted as witnesses , the sewage pipes were blocked and the water pipes and sanitary fittings were out of order . The statement referred to similar findings that had been made by ORG . The signatories contended that the situation had not changed since DATE , when the applicant had taken possession of the flat .", "In his letter of DATE to the ORG , the applicant complained that since DATE he had been unable to live in the flat owing to its deplorable state ; however , he had visited the flat regularly in order to monitor the situation .", "On DATE the applicant lodged a complaint with the PERSON department of ORG , alleging that his belongings had been removed from the flat . He requested that criminal proceedings be brought against the management of ORG and against T. for unlawful entry into his flat . In support of his complaint , the applicant submitted CARDINAL statements , CARDINAL from his sister , G.G.S. , and the other from his niece , ORG , to the effect that they had seen in the flat in question several pieces of furniture , a large number of books , a television , a radio , household appliances , CARDINAL mammoth tusks and gold and silver jewellery , together with MONEY hidden in the stove and in the basement . The applicant also submitted a statement from ORG , a police officer , confirming that he had assisted the applicant in DATE in moving his personal effects from the hall of residence where he had lived previously to the flat in question .", "According to the ORG , the investigating authorities had responded to this complaint by conducting a detailed investigation into the alleged theft . The investigation established that , after being informed of the applicant 's resignation and his departure for GPE , the director of ORG had instructed ORG to enter the flat and check that the heating was in order for DATE . In an order dated DATE , the NORP department of ORG closed the criminal proceedings , finding that no offence had been committed ( за відсутністю події злочину ) . The order made reference to the statement of CARDINAL DATE , drawn up by ORG and signed by CARDINAL witnesses , to the effect that the flat had been empty when it was opened up .", "DATE , the applicant lodged several complaints with the PERSON procurator 's office and the PERSON regional procurator 's office seeking to have the order of CARDINAL DATE quashed .", "In a letter of DATE , the PERSON regional procurator 's office informed the applicant that the PERSON procurator 's office had issued an order on DATE quashing the order of CARDINAL DATE , and had reopened the criminal proceedings in response to his complaints concerning the disappearance of his possessions from the flat .", "By a letter of CARDINAL DATE , the PERSON regional procurator 's office informed the applicant that the investigation set up in response to his complaints had still not been completed .", "On DATE the Zaporijya regional procurator 's office wrote to the applicant informing him that , by an order of CARDINAL DATE , the PERSON department of ORG had closed the criminal proceedings relating to the disappearance of his possessions on the ground that no offence had been committed , but that the proceedings to establish the lawfulness of that order were still in progress .", "In CARDINAL letters dated DATE and DATE , the PERSON procurator 's office informed the applicant that the criminal proceedings relating to the disappearance of his possessions were still pending .", "On DATE the Zaporijya regional procurator 's office examined the file relating to the investigation , quashed all the earlier decisions and ordered further investigations to be carried out .", "By a decision of CARDINAL DATE , the PERSON department of ORG closed the criminal proceedings , finding that no offence had been committed . On DATE the PERSON deputy procurator quashed that decision and reopened the investigation .", "In an order of CARDINAL DATE , the PERSON department of ORG , after summarising the main findings of the investigation , closed the criminal proceedings on the ground that no offence had been committed .", "NORP In particular , it was observed that G.G.S. and GPE , on whose statements the applicant had relied , had declined to attend in person in order to provide further information to the investigating officer . In that connection it was also pointed out that ORG had refused to take ORG 's statement into account because she was related to the applicant .", "T.G.M. was questioned several times on the subject of his statement , on DATE , DATE and CARDINAL DATE . In his submissions , ORG said that he had moved the following items into the flat in question : a washing machine , a refrigerator , some chairs , a guitar , some spare parts for cars and some home - made jams . However , the investigation noted that these items had not been mentioned by the applicant in his complaints . ORG also maintained that he had seen a piece of mammoth tusk in the applicant 's room in the hall of residence where he had lived previously .", "It was established that , prior to his move into the disputed flat , the applicant had rented fully furnished accommodation with a surface area of QUANTITY m in a hall of residence . However , neither T.G.M. , during an attempted reconstruction , nor the applicant , was able to say precisely where so many bulky items of furniture , of the kind described in the applicant 's complaints , might have been fitted into a furnished dwelling with a surface area of QUANTITY m.", "In addition , statements were taken in the course of the investigation from CARDINAL persons , including ORG , who lived in the same building or adjoining buildings . They all asserted that they had seen no heavy or bulky items of furniture being moved into the flat in question DATE . Taking the view that items of that nature could not have been moved in without being noticed , and on the basis of the preceding statements , the investigating officer concluded that the applicant had never moved the items into the flat , and that the alleged theft had not taken place .", "Furthermore , the order of CARDINAL DATE accused the applicant of taking insufficient interest in the investigation , having failed to attend his appointments with the investigating officer .", "Lastly , having observed some inconsistencies in the applicant 's statements concerning the date of his return to PERSON , the investigation concluded that the applicant had lodged his complaint concerning the alleged theft on fictitious grounds and with a view to material gain . In support of this argument , the order cited some criticisms made of the applicant by previous employers .", "DATE of LAW ( ORG кодекс DATE the Code ” ) of CARDINAL DATE ( as amended ) stipulates that the ORG 's housing stock comprises ORG - owned houses and dwellings in other buildings .", "Section CARDINAL of Law no . CARDINAL of DATE on the privatisation of the ORG housing stock ( ORG “ Про приватизацію державного житлового фонду ” ) defines the ORG housing stock as the housing stock of the municipal councils , together with the housing managed by ORG - owned companies , institutions and establishments ( “ the institutional housing stock ” ) .", "Under LAW , the housing stock is managed by the owner or by an establishment , to the extent that powers have been delegated to it by the owner .", "Under the terms of the second paragraph of LAW , work carried out on buildings that form part of the institutional housing stock ( відомчий житловий фонд ) is funded by the budget of the companies , institutions and establishments concerned .", "Article CARDINAL of the Code governs the allocation of flats from the institutional housing stock . In particular , flats are allocated by a joint decision of the authorities and the trade union branches of the companies , institutions and establishments concerned , which either submit their decision to the relevant municipal council for approval or , in some cases , simply inform the council . On the basis of that decision , the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat ( ордер ) , which constitutes the sole legal basis for taking possession of the allocated dwelling ( see Article CARDINAL of the Code ) .", "DATE of the LAW provides that the housing stock is subject to ORG supervision . This consists in ensuring that all the organisations and persons concerned observe the rules on the use and maintenance of the housing stock and that the distribution of living space and allocation of flats occur in the correct order .", "NORP The list of functions of the executive committees of the municipal councils set out in LAW includes ORG supervision of the use and maintenance of the housing stock , monitoring of the state of repair and use of the institutional housing stock , and monitoring of the waiting list of persons in need of better housing kept by the companies , institutions and establishments concerned ." ]

[ "8" ]

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[ "The applicants , Mr PERSON Mawajedi Shikpokht and PERSON GPE , are NORP nationals who were born in DATE and DATE respectively and currently live in GPE ) . They are husband and wife . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by Mr R.A.A. PERSON and PERSON , both of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The facts regarding Ms Mahkamat Sholeh are stated by the applicants as follows :", "Ms Mahkamat Sholeh was born into a family that opposed the NORP revolution in GPE from the outset . Her father was put to death when she was DATE . Her mother then married an activist of the NORP political organisation PERSON ( “ Path of GPE ) , a Mr PERSON ( or PERSON ) , referred to hereinafter as Ms Mahkamat Sholeh 's stepfather .", "In DATE Ms Mahkamat Sholeh 's stepfather received a DATE prison sentence . Her mother too was imprisoned ; she and her mother were forced to spend a year in prison .", "Ms Mahkamat Sholeh 's stepfather was granted conditional release in DATE . He resumed his covert political activities .", "In DATE Ms Mahkamat Sholeh 's stepfather went into hiding after learning that his name appeared on a hit list . She then took over his political activities . These included distributing written materials ( books and pamphlets ) and organising political meetings . She also wrote such materials herself .", "At this time Ms Mahkamat Sholeh was living in her parents ' house , her husband Mr Mawajedi Shikpokht having been conscripted for military service .", "DATE before she eventually left GPE she was beaten unconscious by a group of students .", "Ms Mahkamat Sholeh started receiving threats by telephone . On DATE she received an anonymous threat , written on a yellow sticky note left on the front door , warning her to cease her activities . She went into hiding .", "On DATE Ms Mahkamat Sholeh 's parents ' house was searched . Ms Mahkamat Sholeh , who had been out of the house at the time , was informed of this by her mother who by then had also gone into hiding and who had been informed by a neighbour .", "DATE Ms Mahkamat Sholeh left GPE with a “ travel agent ” .", "Ms Mahkamat Sholeh entered the GPE on DATE . On DATE she lodged a request for asylum .", "On DATE the Deputy Minister of Justice ( ORG ) rejected this request .", "On DATE Ms Mahkamat Sholeh lodged an objection ( bezwaarschrift ) against this decision to the Deputy Minister .", "A hearing before a board of officials took place on DATE . On DATE the Deputy Minister dismissed the objection . It is stated in the decision that Ms Mahkamat Sholeh had not been able to provide consistent information on the written threat which she had received or the raid on her parents ' house . It was also considered inconsistent that students had themselves set a date for an illegal meeting and asked Ms Mahkamat Sholeh whether it was convenient for them to visit her ; that she was unable to provide details on most of the books and other written materials which she had kept hidden ; and that she was trusted to undertake covert activities for PERSON despite not actually being a member of that movement ; and the fact , as stated , that she had had access to the hit list with her stepfather 's name on it .", "The facts regarding Mr Mawajedi Shikpokht are stated by the applicants as follows :", "During his military service Mr ORG worked as a prison officer .", "CARDINAL of the prisoners , PERSON , was an important member of ORG party , a movement seeking territorial independence for the NORP province of GPE . PERSON persuaded PERSON ORG to smuggle letters out of prison for him . This Mr ORG Shikpokht did until DATE , when he learned from another prisoner that PERSON had been placed in solitary confinement .", "On DATE Mr ORG learned that PERSON had revealed certain names under torture . Mr PERSON then deserted .", "Mr ORG Shikpokht entered the GPE on DATE . On DATE he lodged a request for asylum .", "On DATE the Deputy Minister of ORG rejected this request .", "On DATE Mr ORG lodged an objection against this decision to the Deputy Minister .", "A hearing before a board of officials took place on DATE . On DATE the Deputy Minister dismissed the objection . It is stated in the decision that Mr ORG story was not worthy of credence , the less so since he apparently knew very little of PERSON or his activities for ORG party , could not even be certain that PERSON had divulged his name to the authorities and knew very little of his wife 's covert activities . Moreover , he had apparently left GPE by air from GPE airport , where checks on departing passengers were particularly stringent .", "The applicants both lodged appeals with ORG of GPE on DATE , at the same time lodging an application for a provisional order restraining the respondent ORG from deporting them to GPE .", "A hearing was held on DATE .", "On DATE the Provisional Measures Judge ( PERSON ) of ORG of GPE , sitting in GPE , dismissed both the application for a provisional measure and the appeals in a single decision . Its reasoning echoed that of the Deputy Minister in each of the CARDINAL cases , which was found not to be arbitrary or unreasonable .", "In the domestic proceedings Ms Mahkamat Sholeh submitted the following documents , copies of which are contained in the ORG 's file :", "“ List of the CARDINAL people who became the subject of ' investigation ' ” ( stated to be a hit list ) . The name of Ms GPE stepfather appears on this list as number CARDINAL .", "“ Statement concerning Atefeh GPE ” by PERSON , dated DATE . This document describes Ms GPE stepfather as a PERSON activist and PERSON GPE herself as a sympathiser . It asks the GPE authorities to take her asylum request seriously .", "“ Letter of GPE ” dated DATE . This is a very short letter in NORP , on commercial notepaper bearing an address in GPE , stating that the signatory knew Ms GPE stepfather and was aware of his political activities .", "“ About PERSON by PERSON and PERSON , dated DATE . The signatories of this document state that they are members resident in GPE of PERSON and NORP 's PERSON ( Minority ) , respectively . They express support for Ms Mahkamat Sholeh 's asylum request based on her relationship with her stepfather and her own , unspecified , political activities “ both at home and abroad ” .", "“ Statement concerning Atefeh PERSON ( sic ) ” by Mr M. PERSON , dated DATE . PERSON is a GPE national of NORP origin and himself a former member of the NORP left - wing opposition who knew PERSON GPE and her family in prison in DATE . The statement , in NORP , expresses fears for Ms Mahkamat Sholeh 's life based on her belonging to that particular family .", "Letter “ regarding the asylum case of PERSON ” from Ms PERSON , representative of Workers Left Unity – GPE , dated DATE . The letter was sent by fax apparently from the mechanical engineering department of ORG ( the sender 's imprint reads “ ORG Uni ” ) . The letterhead of the organisation gives an an address in “ Gutenberg ” ( presumably GPE ) , GPE . It is stated that the applicant 's stepfather was a PERSON activist and was imprisoned both by the former regime and by the NORP regime . Ms Mahkamat Sholeh herself spent her early childhood in prison with her mother in DATE . She is stated to have been active against the NORP regime , distributing leaflets and pamphlets , and to have been under surveillance and forced to flee GPE on account of her family connections . The letter expresses concern about Ms Mahkamat Sholeh 's possible fate if she returns to GPE and supports her asylum request .", "Copies of correspondence between Ms Mahkamat Sholeh and her stepfather exchanged when the latter was still in prison .", "A letter from ORG ( ORG ) – a private organisation that funds political refugees who wish to pursue higher education DATE agreeing to give Ms Mahkamat Sholeh financial support for study purposes ." ]

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[ "The applicant was born in DATE and lives in GPE . She was married to a NORP national , Mr PERSON , who died in DATE . In DATE they had a son , Mr PERSON , who died on DATE after being shot by the police on DATE .", "CARDINAL sets of criminal proceedings were opened against Mr Karandja on unspecified dates in DATE . In the first set he was charged , together with CARDINAL others , with breaking into a car on DATE and stealing CARDINAL pairs of stockings with a total value of MONEY ( equivalent at the material time to MONEY ) . In the second set he was charged with driving a car without a valid licence on DATE . He has not been convicted of other offences and there is no indication that other charges have ever been lodged against him .", "On DATE the ORG revoked Mr PERSON 's earlier release on bail and ordered his pretrial detention . As a result , he was put on the list of persons wanted by the police .", "Mr PERSON was arrested on DATE . He was placed in a cell in the Third FAC in GPE . After TIME the police tried to transfer him to FAC . However , the escort brigade refused to take him in their custody because it was late and at TIME he was returned to the police station . The onduty officers – Chief PERSON and Captain V.S. – placed Mr PERSON in a cell on the third floor of the station . The Chief Sergeant searched him , but did not handcuff him because he looked “ calm and was not boisterous ” . Mr PERSON 's shoe laces were removed and the door of the cell was closed .", "At TIME to open the door of the cell , apparently by forcing CARDINAL the chains which was keeping it closed , rammed Chief PERSON with it , and ran down the stairs and out of the building . Once outside , he continued to run down the streets adjacent to the police station . The Chief Sergeant chased after him .", "The escape from the police station was witnessed by ORG and Captain PERSON However , neither they nor any other officers assisted Chief PERSON in the chase .", "The chase continued down FAC . When Mr PERSON reached the intersection with FAC , where he attempted to cross , Chief PERSON , according to his later statement , drew out his handgun and fired a warning shot in the air . Mr Karandja did not stop , dodged the traffic , crossed the boulevard and continued to run towards the city centre . Chief PERSON continued the chase and ran down FAC . According to his later statement , he carried on shouting at Mr Karandja to stop and fired CARDINAL more warning shots in the air . Mr PERSON then turned down FAC , followed by Chief PERSON who ran after him in the middle of the street .", "NORP Before turning into FAC , Mr Karandja was spotted by QUANTITY officers , Chief PERSON and GPE , who were in a patrol car travelling from the opposite direction . The officers later stated that they had seen Mr PERSON running towards them and then turning into FAC . They also stated that they had seen Chief PERSON running after him , shouting at him to stop , and firing CARDINAL or CARDINAL times in the air . The patrol car followed the CARDINAL of them down FAC .", "Somewhere around that time , the chase was witnessed by Chief Sergeant A.V. who was going to the police station to take up his night patrol duty and by Lieutenant PERSON who was on his way to take up TIME duty in another police department . Neither of them joined in the chase and the CARDINAL men instead headed to police station to report the event .", "NORP The chase continued down FAC with Mr Karandja being pursued by Chief PERSON and the patrol car . It is unclear whether Chief PERSON was aware that a patrol car was behind him because it had apparently not switched on its siren and flashing light .", "When Mr Karandja reached the intersection with PERSON Street , where excavation works for the city 's future underground had begun , Chief PERSON fired in his direction . The bullet hit the back of Mr PERSON 's head and he fell to the ground . Chief PERSON went over to him , closely followed by Captain PERSON and Chief PERSON , who then returned to the patrol car to report the event , before going back to preserve the scene . Several passersby also gathered around Mr PERSON 's body .", "Within TIME of the shooting a police car arrived and Mr PERSON was taken to the emergency ward of ORG . He arrived there , unconscious , at TIME Despite an emergency brain operation , he died DATE at TIME on DATE .", "Having been notified about the incident , TIME and TIME on DATE an onduty investigator from ORG inspected the scene of the shooting and the cell in which Mr PERSON had been kept . He drew a sketch and took photographs , but did not try to identify the distance between Mr PERSON and Chief PERSON at the time of the shooting . He seized : ( a ) a spent cartridge found at an unspecified location in FAC by Captain PERSON who had been sitting with his son in a café close to the scene ; ( b ) acetonedrenched swabs of Chief PERSON 's hands ; ( c ) handcuffs from the cell ; and ( d ) the broken chain of the cell door . He then interviewed Captain PERSON and ordered an expert examination of Chief PERSON 's handgun . The Sergeant made a written statement in which he said that he had been aiming for Mr PERSON 's legs .", "On DATE a blood sample was taken from Chief PERSON A subsequent test found no presence of alcohol or other intoxicating substances in his blood .", "On DATE a forensic expert performed an autopsy on Mr PERSON 's body . He found that the cause of death was “ a gunshot wound to the head and damage to the brain ” . The report also noted that there were bruises on his face and knees , which were attributed to his fall , face first , after being shot .", "On DATE ORG refused to open a preliminary investigation into the incident , finding that Chief PERSON had acted in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL below ) . He had used his firearm after giving a warning in order to prevent a detainee from escaping . His act was therefore not criminal .", "On an appeal by the applicant , on DATE the Chief Military Prosecutor 's Office set that decision aside , finding that the opening of a preliminary investigation in such circumstances was mandatory . Accordingly , on DATE the ORG opened an investigation and on DATE sent the case file to a military investigator .", "On DATE , CARDINAL , DATE and DATE , CARDINAL May and CARDINAL DATE the investigator interviewed PERSON and GPE , ORG , CARDINAL other officers from the police station , Chief PERSON , GPE , and GPE , CARDINAL civilians who lived on FAC who had not witnessed the chase or the shooting , Lieutenant PERSON , and Chief PERSON who said that when he had fired the fatal shot his intention had been to aim low and possibly hit PERSON PERSON 's knees .", "In the meantime , on CARDINAL DATE the investigator asked a forensic expert to determine the cause of Mr PERSON 's death , the presence of any injuries on his body , the distance from which the shot had been fired and the presence of any handcuff marks . In his report the expert said that PERSON PERSON had died from a gunshot wound in the back of his head which had fatally injured his brain . The rest of his injuries were bruises which could have occurred when he had fallen to the ground . It was impossible to determine the distance from which the shot had been fired because the surgical operation had obliterated any marks on his head . However , the fact that the medical doctors had not noted any gunpowder residue near the wound could be interpreted as meaning that the shot had not been fired from a close distance . There were no clear handcuff marks .", "On DATE the investigator asked experts to say whether the swabs of Chief PERSON 's palms contained gunpowder residue , and whether the spent cartridge submitted by Captain PERSON had come from the Chief PERSON 's handgun . The swab test , conducted on DATE , found no gunpowder residue in the swabs . The handgun test , conducted on CARDINAL DATE , found that the cartridge had come from the Chief Sergeant 's handgun .", "Having finished his work on the case , on DATE the investigator proposed discontinuing the investigation . In his view , Chief PERSON , by using his firearm , had strictly complied with his duties . His decision to do so had been in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL below ) , as he had simply had no other means of stopping Mr Karandja from fleeing . The Sergeant 's earlier decision not to handcuff Mr PERSON had also been in line with the relevant instructions .", "On DATE the Sofia Regional Military Prosecutor 's Office found that the investigator had not sought to identify Mr PERSON 's nextofkin with a view to allowing them to acquaint themselves with the case file and to bring , if they so wished , civil claims . It referred the case back to the investigator , instructing him to rectify that omission .", "Although the investigator did not comply with those instructions , on DATE the ORG decided to discontinue the investigation , repeating the reasons given by the investigator on DATE almost verbatim .", "On DATE the applicant appealed to ORG . She said that the investigation had failed to gather evidence about the breaking of the chain of the cell door and the way in which that door had been opened . She complained that the only witnesses interviewed were police officers and that no medical expert report had been obtained to assess the various injuries sustained by Mr Karandja . She also claimed that there were inconsistencies in the investigation 's findings because it had concluded that Mr PERSON had escaped from the cell without the assistance of any tools . Lastly , she complained that she had not been allowed to consult the case file .", "On DATE ORG upheld the discontinuance . It noted that the investigator had carried out a reconstruction of Mr PERSON 's escape and had found that it was possible to loosen the chain and open the door in the way he had specified . The expert medical report had clarified the injuries which had led to Mr PERSON 's death and the distance from which the shot had been fired . The applicant did not specify which other eyewitness she wished to have interviewed . It was true that she was not given an opportunity to consult the case file , but in the event that was not problematic because she was informed of the discontinuance and was able to appeal against it .", "On DATE the applicant appealed to ORG , reiterating the arguments raised in her previous appeal .", "On DATE ORG set the discontinuance aside , citing the investigator 's failure to comply with the instructions to identify Mr PERSON 's nextofkin – the applicant – and give her the opportunity to acquaint herself with the case file and to bring , if she so wished , a civil claim .", "On DATE the case was assigned to another investigator . On DATE he interviewed the applicant in her home and allowed her to acquaint herself with the case file .", "On DATE the investigator proposed discontinuing the investigation , giving the same reasons as those given by the previous investigator on CARDINAL DATE ( see paragraph CARDINAL above ) .", "On DATE the Sofia Regional Military Prosecutor 's Office referred the case back to the investigator . It noted that he had interviewed the applicant in the absence of her counsel .", "On DATE the investigator interviewed the applicant in her home , in the presence of her newly - retained counsel , and allowed the CARDINAL of them to acquaint themselves with the case file .", "On DATE the investigator proposed discontinuing the investigation , giving the exact same reasons as previously ( see paragraph CARDINAL above ) .", "On DATE the ORG referred the case back to the investigator . It noted that he had not given the applicant and her counsel a proper opportunity to acquaint themselves with the case file and make any objections .", "The applicant 's counsel was allowed to consult the case file on DATE . On DATE he filed an objection , pointing out that vital investigative steps – such as witness interviews and the commissioning of an expert medical report DATE had been taken DATE after the incident . It was also striking that despite the small area in which the chase had taken place and the number of shots fired , CARDINAL cartridge had been found . The positions of other officers present near the scene were not elucidated , which made it impossible to determine whether it had been possible to apprehend Mr Karandja without using firearms . Since under the applicable law , firearms could be used only “ as a means of last resort ” , it was essential to clarify those facts . There were also discrepancies in the investigation 's findings , the chief CARDINAL being the assumption that Chief PERSON had fired several warning shots and the fatal shot , and the fact that the swab test had come out negative .", "On DATE the investigator overruled the objection , saying that the delay had not been the fault of the investigating authorities ; they had started to work on the case shortly after the prosecuting authorities had instituted the proceedings , had accepted all previous investigative actions , had conducted interviews , and had taken further investigative steps to elucidate the facts . Firearms had been used as a means of last resort to arrest Mr Karandja .", "On DATE the investigator again proposed discontinuing the investigation , giving the exact same reasons as previously ( see paragraph CARDINAL above ) .", "On DATE the Sofia Regional Military Prosecutor 's Office decided to discontinue the investigation , repeating the reasons given by the investigator almost verbatim and adding that the situation fell within the ambit of Article CARDINALa of LAW ( see paragraph CARDINAL below ) .", "On DATE ORG confirmed the discontinuance , repeating almost verbatim the reasons given by GPE .", "In a final decision of CARDINAL DATE ORG also confirmed the discontinuance . It fully agreed with the prosecuting authorities ' conclusion that Chief PERSON 's actions had been in line with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and fell within the ambit of LAW ( see paragraphs CARDINAL and DATE below ) . It also noted that the Sergeant had aimed at Mr PERSON 's legs and had shot him in the back of the head only because of the increasing distance between them and speed of the chase .", "Section CARDINAL of the DATE LAW , as in force at the material time , provided , in so far as relevant :", "“ ( CARDINAL ) The police may use firearms as a means of last resort :", "...", "after giving a warning , to prevent the escape of a person duly detained for having committed a publicly prosecutable offence .", "( CARDINAL ) When using firearms the police are under a duty to protect , as far as possible , the life of the person against whom they use force ... ”", "The wording of section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of the DATE ORG , which superseded the above provision in DATE , was identical . The wording of section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of the DATE Ministry of Internal Affairs Act , currently in force , repeats verbatim that of section CARDINAL(CARDINAL)(CARDINAL ) and ( QUANTITY ) of LAW .", "Article DATE § CARDINAL of the DATE LAW , added in DATE , provides that causing harm to a person while arresting him or her for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful . According to LAW , the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary .", "Under LAW , as in force until DATE , the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor .", "On DATE that Article was amended to provide for a system of automatic control of the discontinuance : after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor 's office , which could confirm , modify or quash it . If it confirmed the decision , it had to forward the file to the appropriate court , which had to review the matter in private . The court 's decision was final . No provision was made for those concerned to be notified of the discontinuance .", "Following a further amendment of that Article in DATE , the discontinuance of preliminary investigations became subject to judicial review . DATE Code of Criminal Procedure maintained that position in Article CARDINAL § § DATE ." ]

[ "2" ]

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[ "The applicant was born in DATE and lives in Szekszárd .", "The applicant , a retired senior police officer , was at the material time the chairperson of ORG . DATE and DATE she published a number of writings on ORG website , which was effectively under her editorial control , concerning outstanding remunerations due to police staff , alleged nepotism and undue political influence in the force , as well as dubious qualifications of senior police staff .", "The applicant was indicted for instigation to insubordination . On CARDINAL DATE LAW of ORG found her guilty as charged and sentenced her to a fine and demotion . The court did not sustain the applicant ’s defence according to which the publication of such allegations belonged to the core of a trade union ’s activities . It held that those allegations were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity .", "ORG based its judgment inter alia on the following statements published by the applicant on the Internet :", "( CARDINAL ) “ The staff are regularly required to work overtime without remuneration ... ” “ For DATE , clearly due allowances have not been paid to low - ranking staff ... ” “ Currently it is almost a prerequisite of becoming a senior police officer to have a political background or to be a relative or a descendant of other senior police officers . ” “ The senior police ORG obvious violations of the law set a bad example for the force . ” “ This is typical of senior police officers : they commit violations and infringements , and then , if we point this out , their reaction is striking back without any principles , suing and accusing of incitement in order to counter our suggestions to renew and clean up the force . ” “ Why are we wondering at the infringements of police officers if law - breaking and tyrannising senior police officers go unpunished ? ”", "( CARDINAL ) “ The uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished , and what is more , they are even decorated when , on order of the political authority in power , CARDINAL , CARDINAL of discontented and underprivileged people are beaten by jaded police officers on the streets . ” “ The ‘ Tettrekész’ ORG commiserates with those NORP citizens whose human dignity and human rights were violated and affronted by acts of a prostituted leadership and of our criminal ‘ colleagues’ and apologises for that . ”", "( CARDINAL ) “ Police staff are getting more and more underprivileged and humiliated by their own leaders . ” “ Some senior police officers are active in trying to obtain that average citizens be punished rather than ‘ served and ORG by the police officers on the streets . ” “ Some well - paid senior police officers unprofessionally incite ordinary citizens and police officers against each other . ” “ We constantly request the review of the often unprofessional selection procedure of senior police officers , but to no avail , because there is apparently no need for a citizen - friendly police . ”", "( CARDINAL ) “ The senior police officers again demonstrated that they were incapable of upholding the public order in a party - neutral and politically neutral way ... It is proven again that the NORP Police ’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led GPE into economic and moral distress . ” “ The reputation of the Police has reached previously unseen depths because of the acts of the unprofessional and anti - national senior police officers non - complying with the spirit of the police oath . ” “ It is obvious that the ORG ’s core leadership is , in an unacceptable way , politically committed to the government of the country and that of the capital . ”", "( CARDINAL ) “ The Head of the National Police Department is demonstrating DATE that he is much more able to write obscene poems than to lead the Police ; moreover , he is considerably much better in being an obstacle to the work of ‘ Tettrekész’ ORG and in managing a police pop band than in cooperating with a representative trade union of the Police with the highest number of police officer members . ” “ A chaotic and highly unprofessional leadership is ruining the rest of the Police ’s reputation from DATE . ”", "On DATE the Military Bench of ORG upheld the applicant ’s conviction under section CARDINAL of LAW . It held that the publication of the documents by the applicant had gone beyond her freedom of expression , given the particularities of the armed body to which she belonged . In the court ’s opinion , the views contained in the documents constituted CARDINAL - sided criticism whose truthfulness could and should not be proven .", "Act No . XX of DATE on LAW ( as in force at the material time ) provides as follows :", "“ ( CARDINAL ) In GPE everyone shall have the right to good reputation , the inviolability of his home , and the protection of privacy and personal data . ”", "“ ( CARDINAL ) In GPE everyone shall have the right to freedom of expression and to receive and impart information of public interest . ”", "Act no . ORG of DATE on the ORG of Members of ORG provides as follows :", "“ ( CARDINAL ) Members of professional staff of the police force and of the civilian national security services shall not be members of a political party and shall not engage in political activities .", "( CARDINAL ) Members of professional staff shall not hold a position in a political party and shall not undertake public appearance in the name or interest of a political party , apart from standing as a candidate in parliamentary , NORP or municipal elections .", "( CARDINAL ) Members of professional staff shall not engage in political activities at the place of service or while performing service tasks .", "( CARDINAL ) Except for the case regulated under LAW , members of professional staff shall not criticise , or express an opinion about , a measure or order received unless they do so within the scope of their activities securing rights and interests ; moreover , they shall not make statements injurious to the order and discipline of the service and shall not express a private opinion in official proceedings by using media publicity .", "( CARDINAL ) Members of professional staff shall not produce or disseminate publications harmful to the order and discipline of the service and shall not place such posters , announcements or emblems anywhere .", "( CARDINAL ) Announcements of the professional members’ representation organisations falling within their scope of activities may be published in the locally customary manner . ... ”", "“ ( CARDINAL ) For the purposes of this LAW , “ trade union ” shall mean any representation organisation DATE irrespective of its actual designation – of members of professional staff , whose aim is the representation and protection of the service - related interests of members of professional staff .", "( CARDINAL ) The trade union shall be entitled to", "a ) operate within the armed forces and to involve its members in its activity ;", "b ) provide information for the members of professional staff about their rights and duties affecting their financial , social , cultural , living and service conditions ;", "c ) represent its members vis - à - vis the organisational unit or before state organs in respect of issues affecting their service relationship or – upon authorisation – before a court or other authority or body in respect of issues affecting their living- and service conditions .", "( CARDINAL ) The trade union shall have the right to exercise the following rights vis - à - vis the organisational unit :", "a ) may request information on any issues related to members of professional staff ’s service - related financial , social and cultural interests ;", "b ) may communicate its position and opinion on the commander ’s ( head ’s ) measure ( decision ) concerning an issue falling under point a ) to the commander in charge of the unit and may initiate consultations in such matters ;", "c ) may , during official working TIME or DATE in justified cases – in service TIME check observance of the rules governing service and working conditions DATE including healthy and safe service performance DATE and may request information and data on the implementation of those rules , which information and data shall be provided for the trade union . Such checks may not endanger or hinder the performance of the service tasks .", "( CARDINAL ) The trade union may draw the attention of the head of the organ in charge of the implementation of the rules to the shortcomings and omissions perceived in the course of the check . If the head fails to take the necessary action in due time , the trade union may institute appropriate proceedings . The body having conducted the proceedings shall be obliged to inform the trade union of the findings of the proceedings .", "( CARDINAL ) The rights specified under subsections ( CARDINAL)-(CARDINAL ) shall , in respect of issues falling into the supervisory bodies’ scope of direction , be vested in the representative trade union within the given organisation . ... ”", "“ ( CARDINAL ) While performing their service , members of professional staff shall be obliged to execute the orders of a supervisor or the instructions of a superior officer , unless they would commit a criminal offence thereby .", "( CARDINAL ) Except for the case specified in subsection ( CARDINAL ) , members of professional staff may not refuse the execution of an unlawful order . Where , however , the unlawful nature of the order was recognised , it shall immediately be drawn to the superior officer ’s attention . If the supervisor upholds his order or the superior officer upholds his instruction , it must – upon request – be given in writing . Liability for the execution of an unlawful order or provision shall be borne solely by the issuer of the order or the instruction . ... ”", "“ ( CARDINAL ) Members of professional staff or – upon their authorisation and on their behalf– a representation organisation or an attorney at law may file a service complaint if they find prejudicial a service - related decision , measure or their omission , not regulated under LAW of this LAW .", "( CARDINAL ) A service complaint against an employer ’s measure in connection with the termination of the service relationship , establishment of conflict of interest , or the unilateral modification of the service relationship by the armed forces affecting the member ’s position , shall be filed by the member of professional staff within DATE from the communication of the employer ’s measure . In other cases service complaints shall be filed within the period of limitation applicable to the enforcement of the claim at issue .", "( CARDINAL ) The complaint shall be filed with the supervisor who took ( omitted to take ) the decision and who shall – in case he fails to grant it – transfer the case , together with the case files , to the supervisor - commander without delay . Unless specified otherwise under the law , the supervisor - commander shall decide on the complaint within DATE and shall communicate his decision to the complainant . This time limit may be extended on CARDINAL occasion for DATE .", "( CARDINAL ) No person shall be restricted in exercising his right to file a complaint . No complainant shall suffer any detriment in case his complaint is found ill - founded , except where intentional infringement of discipline , regulatory offence , or a criminal offence has been committed .", "( CARDINAL ) The exercise of the right of complaint specified in another law shall not be affected by LAW . ”", "“ ( CARDINAL ) A first instance decision related to the service relationship and taken in proceedings conducted within the armed forces may – unless this LAW provides otherwise – be challenged by a member of professional staff by filing a complaint ... or an appeal ... against the decision within DATE from its service .", "( CARDINAL ) Appeal against a decision brought in relation with the service obligations of a deceased member of professional staff may be lodged by a close relative .", "( CARDINAL ) The complaint or appeal shall – unless this LAW provides otherwise – be determined within DATE by the service supervisor or the organ designated by the minister . This time - limit may be extended on CARDINAL occasion for DATE . ”", "Act No . IV of DATE on LAW provides as follows :", "“ ( CARDINAL ) Anyone who incites discontent among soldiers towards a", "superior , a command or in general towards the order of service or discipline , is guilty of a misdemeanour punishable by imprisonment of DATE .", "( CARDINAL ) The punishment shall be imprisonment for DATE if :", "a ) the incitement is committed in the course of the performance of service ;", "b ) the incitement entails considerable disadvantage for the service or discipline . ”" ]

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[ "10" ]

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[ "The tragic and lasting crisis in GPE lies at the root of the present case . In order to combat what the respondent Government describe as \" the longest and most violent terrorist campaign witnessed in either part of the island of GPE \" , the authorities in GPE exercised from DATE until DATE a series of extrajudicial powers of arrest , detention and internment . The proceedings in this case concern the scope and the operation in practice of those measures as well as the alleged ill - treatment of persons thereby deprived of their liberty .", "Up to DATE , on the figures cited before the Commission by the respondent Government , CARDINAL people had been killed , CARDINAL injured and CARDINAL worth of property destroyed during the recent troubles in GPE . This violence found its expression in part in civil disorders , in part in terrorism , that is organised violence for political ends .", "Prior to DATE the whole of the island of GPE formed part of GPE . In DATE , following a treaty of DATE , legislation was passed which endorsed the setting - up , with self - governing status within GPE , of ORG comprising initially all of the island ’s CARDINAL counties . Provision was made for CARDINAL of the CARDINAL counties of the province of GPE in the north to opt out and remain within GPE and they did this in DATE . Thereafter , ORG became responsible for the government of the remaining CARDINAL counties and , in DATE , a new LAW was introduced proclaiming the independence and sovereignty of the ORG of what is now known as GPE . After the Second World War it left the ORG and declared itself a republic .", "From the DATE ’s onwards , GPE , that is the above - mentioned CARDINAL counties , had a separate Government and ORG of its own . In addition , the electorate of the province ( meaning in this judgment the CARDINAL counties ) returned CARDINAL members to ORG . With certain defined matters excepted , ORG were the legislative and executive authorities for the CARDINAL counties until DATE when the GPE authorities resumed \" direct rule \" of the province ( see paragraph DATE below ) .", "GPE is not a homogeneous society . It consists of CARDINAL communities divided by deep and long - standing antagonisms . CARDINAL community is variously termed NORP , ORG or ORG , the other is generally labelled as NORP , NORP or NORP . CARDINAL of the population of CARDINAL belong to the NORP community , the remaining third to the NORP community . The majority group is descended from NORP settlers who emigrated in large numbers from GPE to GPE during DATE . The now traditional antagonism between the CARDINAL groups is based both on religion and on social , economic and political differences . In particular , the NORP community has consistently opposed the idea of a united GPE independent of GPE , whereas the NORP community has traditionally supported it .", "ORG ( IRA ) is a clandestine organisation with quasi - military dispositions . Formed during the troubles prior to the partition of the island and illegal in GPE as well as in GPE , the IRA neither accepts the existence of GPE as part of GPE nor recognises the democratic order of GPE . It has periodically mounted campaigns of terrorism in both parts of the island of GPE and in GPE . After DATE , the ORG was not overtly active for DATE .", "During the time covered by the complaints of the applicant Government that is from DATE to DATE virtually all those members of the IRA living and operating in GPE were recruited from among the NORP community .", "Legislation designed to deal with matters affecting law and order and the security of the ORG was first enacted by ORG in DATE in the form of ORG ( GPE ) . This legislation ( hereinafter referred to as \" GPE \" ) was an enabling LAW were from time to time made and brought into operation . Thus , for instance , a LAW dating from before DATE declared illegal certain organisations , including the IRA . In DATE , following raids carried out by the IRA in GPE and GPE , Regulations were introduced granting powers of entry and search . In DATE and DATE , in order to combat an IRA campaign then being launched , further Regulations were made dealing with internment , curfew , special trial procedures , firearms and explosives control , and restriction on movement . An account of the particular Regulations at issue in the present case , namely LAW , DATE ( CARDINAL ) , CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) , appears below at DATE .", "The differing aspirations of the CARDINAL communities resulted in the division between the main political parties in GPE being based primarily on their attitude to the status of the province as part of GPE rather than on political differences of the type commonly found in the rest of GPE and elsewhere . The NORP community in general voted for ORG , which wished GPE to remain within GPE , whilst the NORP community in general supported candidates favouring a united , independent GPE . Given the relative sizes of the CARDINAL communities , the inevitable result of this polarisation was that ORG , supported almost exclusively by NORP , had a permanent majority in ORG and formed the Government of the province throughout DATE leading up to direct rule in DATE . The abolition of proportional representation in DATE and the geographical arrangement of constituencies affected a great increase in the size of the Parliamentary majority . This situation understandably disenchanted the NORP community .", "Thus , whilst only a small minority of the latter community has ever actively supported the ORG , a very much greater proportion had always been discontented with NORP government and the effects of its in - built majority . The NORP in the population regarded themselves as discriminated against on various counts . ORG , a body appointed by ORG in DATE to report , inter alia , on the causes of disturbances in the CARDINAL counties in DATE ( see paragraph CARDINAL below ) , considered justified many of the grievances then felt by the NORP , in particular those concerned with the allocation of houses , local authority appointments , limitations on local electoral franchise and deliberate manipulation of ward boundaries and electoral areas . ORG itself came to the conclusion that there certainly was an element of inherent bias in the whole political system in GPE in favour of CARDINAL community .", "From the time of partition onwards there has always been a greater or lesser degree of tension between the CARDINAL communities , although since DATE there have been no disturbances comparable in scale to those of DATE .", "In DATE the first moves towards a campaign for \" civil rights \" for the NORP community began to be made . The objectives of this campaign were , broadly speaking , the removal of the discrimination referred to above .", "At the same time , though , manifestations of NORP violence began to emerge . In DATE there was serious rioting in GPE following a NORP march . In DATE , several petrol bombs were thrown at NORP schools and property . In DATE , a body calling itself ORG ( ORG ) , previously unknown to the police , issued a statement declaring war on the ORG and warning of its intention to execute all IRA men . Shortly thereafter , CARDINAL NORP were murdered and CARDINAL others seriously wounded in GPE . CARDINAL NORP , members of the ORG , were subsequently charged and convicted for these attacks . The ORG , believed by the police to have consisted of CARDINAL persons , was declared illegal in DATE and seems to have remained inactive from then until DATE .", "During this period , there was no violent activity of significance by the ORG , who , after DATE , appear to have concentrated on political activity .", "Throughout DATE , the movement for \" civil rights \" for the NORP community gathered momentum . The first civil rights march took place in DATE without incident , but in DATE a clash with the police and CARDINAL days’ rioting ensued after a march in GPE .", "On DATE , ORG announced a reform programme to deal with the NORP grievances . Nevertheless , the civil rights movement continued its campaign and marches . The marches again led to clashes with the police and to violent confrontation with NORP counter - demonstrators , often armed with cudgels , stones and the like .", "The demonstrations , disturbances and rioting continued in various places into DATE . In paragraph CARDINAL of its report , presented to ORG in DATE , ORG expressed the view that certain NORP extremist organisations \" must ... bear a heavy share of direct responsibility for [ certain of ] the disorders ... and also for inflaming passions and engineering opposition to lawful , and what would in all probability otherwise have been peaceful , demonstrations or at least have attracted only modified and easily controlled opposition \" . Police conduct in handling certain disturbances was also criticised by ORG .", "In DATE and DATE , CARDINAL major explosions thought to have been caused by the ORG occurred at water and electricity installations in CARDINAL counties . Units of NORP troops were flown into the province .", "The GPE Prime Minister , whose reform policies were unpopular with many NORP , resigned at DATE . DATE , his successor declared a general amnesty for persons charged with or convicted of offences connected with the recent political protests and demonstrations .", "Tension remained high ; sectarian disturbances continued periodically up to DATE . On CARDINAL DATE , a traditional NORP anniversary parade sparked off DATE of large - scale rioting , first of all in GPE and thereafter spreading to GPE and other places . After CARDINAL civilians had been killed and QUANTITY civilians and CARDINAL policemen wounded , it was found necessary to call in aid units of the NORP army .", "The riots in DATE greatly exceeded in severity any that had occurred in DATE . Casualties and damage to property were extensive . In GPE , for instance , a large number of houses and licensed LOC , mostly NORP owned or occupied , were burnt down , destroyed or damaged .", "The GPE Prime Minister called a peace conference on DATE which was attended by representatives of the CARDINAL communities . On DATE , GPE and ORG issued a joint declaration re - affirming , inter alia , their commitment to reforms in the CARDINAL counties .", "In DATE , a programme of reform was announced ; it included the reorganisation of the police force and local government , measures to prohibit discrimination in public employment , and the establishment of ORG and a central housing authority .", "However , the publication of a government report into the functions and organisation of the province ’s police force had produced a violent reaction in NORP circles . On DATE , a policeman was shot dead by a bullet fired from a crowd of NORP rioters in GPE . He became the first member of the security forces to be killed during the disorders of DATE .", "The IRA carried out no major acts of violence in DATE . However , at GPE DATE they had reactivated their forces , placing all volunteers on full alert . At the same time , the IRA are thought to have gained much more support as a result of the riots and of an accompanying loss of confidence by NORP in the police .", "Towards DATE , the IRA split into CARDINAL wings . For some time there had been dissension in the movement between those who hoped to bring about a form of socialist people ’s republic for all GPE and those who considered that such involvement deflected the ORG from its traditional aims . The traditionalists formed themselves into the Provisional IRA whilst the followers of the new political doctrines became ORG . Both factions remained organised along military lines .", "The situation worsened in DATE . The number of explosions recorded by the police jumped dramatically from a total of CARDINAL in DATE to CARDINAL in DATE . Some explosions were caused by ORG - CARDINAL according to statistics cited by the ORG - but there is no dispute that the majority were the work of the ORG . In total , CARDINAL civilians and QUANTITY policemen were killed during the course of DATE . None of these deaths was attributed by the police to NORP activity .", "The terrorist campaign by the ORG appears to have begun in earnest in DATE and to have been CARDINAL primarily of bombing buildings and attacking the security forces . There was also undoubtedly some terrorist activity on the part of ORG , directed largely against politicians seen as hostile to Unionism and against NORP owned or occupied property , particularly licensed LOC . Responsibility for certain explosions was in fact claimed by the ORG .", "The sharp increase in what may be termed terrorist - type activity was not accompanied by the cessation of inter - communal street disturbances which continued sporadically during DATE and accounted for the deaths of a number of people .", "DATE , the violence intensified , being marked by a dramatic upsurge in terrorist activity by the IRA . Police statistics record a total of CARDINAL explosions , including CARDINAL for DATE . Shooting at the security forces’ patrols built up and for the first time soldiers numbered amongst those killed . By DATE , CARDINAL soldiers , QUANTITY policemen and QUANTITY civilians had died since DATE . In addition , serious and prolonged rioting occurred in both NORP and NORP areas .", "Apart from CARDINAL explosion in which a civilian was killed , there is no evidence of any deaths or even injuries having been caused by NORP terrorists . On the applicant ORG ’s own approximate estimate , NORP explosions accounted for CARDINAL out of the overall total of CARDINAL . Furthermore , as in DATE , NORP terrorists used mainly pipe bombs which were not very powerful in comparison with the devices employed by the IRA .", "The ORG stated in its report that the IRA were indisputably responsible for the very great majority of the acts of violence during this period . NORP terrorist activity had declined ; there is no evidence that such NORP terrorism as did exist formed part of a highly organised campaign in the sense that IRA activity did . The ORG ’s conclusion was that the threat and reality of serious terrorism came almost exclusively from the IRA .", "On the political front during DATE and DATE , progress was made in implementing the reforms announced in DATE ( see paragraph CARDINAL above ) . The Prime Minister of GPE , however , resigned in DATE . In DATE , his successor proposed a number of further steps designed to provide a positive role for representatives of the minority community in the actual process of government .", "It was against the background outlined above that on CARDINAL DATE ORG brought into operation extrajudicial measures of detention and internment of suspected terrorists . From CARDINAL DATE until DATE , when certain of GPE were replaced , the authorities in GPE in fact exercised CARDINAL such extrajudicial powers : ( i ) arrest for interrogation purposes during TIME ( under LAW ) ; ( ii ) arrest and remand in custody ( under LAW ( CARDINAL ) ) ; ( iii ) detention of an arrested person ( under LAW ( CARDINAL ) ) ; and ( iv ) internment ( under LAW ( CARDINAL ) ) . An account of the operation of these powers and the procedures there under is given below at CARDINAL .", "For some time , the possibility of internment had been extensively canvassed in the press and amongst politicians . Pressure had also been mounting within the NORP community for its introduction ; in DATE there had been demonstrations against the then Prime Minister because of his ORG ’s alleged failure to deal with the IRA threat .", "The decision to introduce a policy of detention and internment was taken on CARDINAL DATE by ORG , following a meeting in GPE between LOC and ORG . Prior to this , the question had been considered at the highest level in GPE and frequent consultations had taken place between the two Governments .", "In DATE , as an apparent last resort to avoid introducing internment , the security forces had intensified operations against suspected terrorists , mounting searches and detaining for questioning what were believed to be key figures in the ORG . CARDINAL persons were arrested but no significant results were yielded . Prior to DATE , the intelligence obtained by the police had failed to provide anything but a very general picture of the IRA organisation .", "The campaign of violence carried out by the IRA had attained unprecedented proportions by DATE . This was clearly the dominant factor behind the decision to exercise the extrajudicial powers .", "CARDINAL principal reasons for the decision have been cited by the respondent Government . Firstly , the authorities took the view that the normal procedures of investigation and criminal prosecution had become inadequate to deal with IRA terrorists ; it was considered that the ordinary criminal courts could no longer be relied on as the sole process of law for restoring peace and order . The second reason given , which was closely related to the first , was the widespread intimidation of the population . Such intimidation often made it impossible to obtain sufficient evidence to secure a criminal conviction against a known IRA terrorist in the absence of an admissible confession or of police or army testimony . Furthermore , the conduct of police enquiries was seriously hampered by the grip the IRA had on certain so - called \" no - go \" areas , that is NORP strongholds where terrorists , unlike the police , could operate in comparative safety . Thirdly , the ease of escape across the territorial border between GPE and GPE presented difficulties of control .", "In addition to the CARDINAL \" security \" reasons , there was , in the judgment of both ORG and ORG , no hope of winning over the terrorists by political means , the reform programme initiated in DATE having failed to prevent continuing violence .", "The authorities therefore came to the conclusion that it was necessary to introduce a policy of detention and internment of persons suspected of serious terrorist activities but against whom sufficient evidence could not be laid in court . This policy was regarded as a temporary measure primarily aimed at breaking the influence of the IRA . It was intended that a respite would be provided so as to enable the political and social reforms already undertaken to achieve their full effects .", "The possibility of interning ORG was discussed in the preparatory stages . The security forces were aware of some NORP terrorist activity in DATE and also of certain NORP extremists , described by those forces as \" rabble rousers \" and suspected by them of acts of violence or intimidation , if not of terrorism strictly speaking . However , the security forces did not judge at this stage that there was any serious threat coming from DATE . There was said to be no army or police intelligence then available which indicated that any organisation other than the IRA had been actively engaged in bombing and killing in DATE .", "On account of the unprecedented level it had reached , and because of its nature as a highly organised , politically motivated campaign designed to overthrow the ORG , IRA terrorism was regarded as the real menace to law and order . NORP terrorist activity , which was in the main directed against the NORP community and not the ORG or the security forces , was seen by the authorities more as sporadic and as being on a minute scale in comparison and on a much less organised basis .", "In DATE preceding the introduction of internment , the police , in consultation with the army , were preparing lists of persons to be arrested . The lists included not only suspected IRA terrorists but also persons suspected of being involved or associated with the ORG or even , in a few cases , of possessing information about others so involved or associated . It was generally understood that the target of the planned exercise was the ORG .", "DATE . Starting at TIME on DATE , QUANTITY DATE , the army , with police officers occasionally acting as guides , mounted an operation to arrest the CARDINAL persons whose names appeared on the final list . In the event , CARDINAL persons were arrested in accordance with LAW . The arrested persons were taken to CARDINAL of the CARDINAL regional holding centres ( ORG in GPE , ORG in GPE and ORG in GPE ) that had been set up to receive the prisoners during TIME . All those arrested were subjected to interrogation by police officers of ORG ( ORG ) . ORG persons were released within TIME . Those who were to be detained were sent on to the prison ship \" FAC \" or to FAC , both in GPE . Prior to being lodged in detention , CARDINAL individuals were moved to CARDINAL or more unidentified centres for \" interrogation in depth \" extending over DATE .", "Operation Demetrius , as the ORG points out , was not a selective manoeuvre aimed at individuals but a \" sweeping - up \" exercise directed against the IRA organisation as a whole . It is generally accepted that because of the scale and speed of the operation , some persons were arrested or even detained on the basis of inadequate or inaccurate information .", "At TIME on CARDINAL DATE , the Prime Minister of GPE announced to the public the introduction of internment . He stated , inter alia :", "\" The main target of the present operation is ORG ... They are the present threat ; but we will not hesitate to take strong action against any other individuals or organisations who may present such a threat in the future . \"", "Arrests continued to be made during the rest of DATE , partly of persons on the above - mentioned list and partly of persons who came under suspicion thereafter .", "The CARDINAL regional holding centres were closed down in DATE shortly after PERSON was completed , and in DATE police centres were established at FAC ( GPE , County Down ) , GPE ( GPE ) , GPE ) and PERSON ( GPE ) for the purpose of holding and interrogating persons arrested under LAW .", "The introduction of internment provoked a violent reaction from the NORP community and the IRA . Serious rioting broke out in GPE and elsewhere , there was a considerable increase in shootings and bombings , and the security situation in general deteriorated rapidly . Within the minority community there occurred a further alienation from the authorities and the security forces , together with a rise in support for the IRA .", "Although surprised by the extent of this reaction , both LOC and ORG continued their efforts to secure political progress . In GPE , the ORG Secretary announced in DATE his ORG ’s determination to ensure that the NORP population in the province should have an active , permanent and guaranteed role in the conduct of public business . In DATE , a meeting took place in GPE between the Prime Ministers of GPE , GPE and GPE . In DATE , ORG published proposals for involving the opposition in government . However , these proposals were considered unacceptable by the political representatives of the NORP community and nothing came of them .", "Neither internment nor the political initiatives ended the violence . On the contrary , the numbers of deaths , explosions and shootings recorded by the police for DATE throughout DATE were higher than those recorded in any of DATE . There was a total of CARDINAL persons killed , including CARDINAL members of the security forces and CARDINAL civilians , CARDINAL explosions and CARDINAL shooting incidents .", "Apart from rioting and a small - scale bombing campaign of licensed LOC , there was apparently little serious violence by NORP in DATE . CARDINAL death occurring DATE , an assassination of a NORP in DATE , was attributed by the police to NORP . On the other hand , intimidation of members of the opposite community to move from their homes seems to have become more prevalent on both sides , although the official figures indicate that NORP were principally affected .", "On the NORP side , the increased violence at this time led to the formation of defence associations or vigilante groups which ultimately amalgamated in or DATE to become ORG ( ORG ) . The ORG did not appear openly on the streets until DATE . There was also seen the start of a development later to become significant , that is the holding of large , carefully prepared parades by NORP organisations ( see paragraph CARDINAL below ) . The latter and in particular the ORG were looked on by the police as primarily political organisations not engaged in violence as such .", "At DATE , despite a small drop , the level of violence remained higher than at any time before CARDINAL DATE . On DATE , CARDINAL people were killed by army gunfire in the course of disorders taking place in the predominantly NORP town of GPE . This incident led to a new upsurge in support for the IRA amongst the NORP community .", "In DATE , CARDINAL people were killed , including CARDINAL members of the security forces . CARDINAL assassinations carried out in DATE , CARDINAL of a NORP and the other of a NORP , were the only deaths attributed to NORP activity . CARDINAL explosions , the vast majority attributed to the IRA , were caused during the same period .", "From DATE until DATE there had been in GPE CARDINAL bomb explosions and CARDINAL shooting incidents . CARDINAL civilians , CARDINAL soldiers and CARDINAL policemen had been killed , and CARDINAL civilians , CARDINAL soldiers and CARDINAL ORG members injured .", "Throughout DATE the numbers held under detention or internment orders proceeded to rise until a total of over CARDINAL persons , all suspected of involvement with the ORG , were held at DATE . At the same time , the ordinary processes of the criminal law continued to be used , against NORP as well as NORP , whenever there was thought to be sufficient evidence to ground a criminal conviction . Thus , between CARDINAL DATE and DATE , CARDINAL people were charged with \" terrorist - type \" offences .", "DATE . In DATE , in view of the deteriorating circumstances , the ORG in GPE decided that they should assume direct responsibility for the administration of law and order in GPE if there was to be any hope of political progress . This decision was unacceptable to the Government of the province and accordingly it was announced on DATE that direct rule from GPE not only on law and order but on all matters was to be introduced .", "Under LOC ( LAW DATE ( hereinafter referred to as LAW ) , which was passed by ORG and came into force on DATE , temporary provision was made for the exercise of the executive and legislative powers of ORG by GPE authorities . ORG was prorogued and the Queen empowered to legislate in its stead by ORG . The executive powers of ORG were transferred to the Secretary of ORG for GPE . This was a new office created for the purpose ; its holder was a member of ORG and answerable to ORG . The legislation was enacted for DATE but was subsequently extended .", "On assuming direct rule , ORG stated that CARDINAL of their most important objectives was to bring internment under LAW to an end and to consider how far the powers under LAW could be dispensed with . On DATE , the Secretary of ORG for GPE announced the immediate release of CARDINAL internees and CARDINAL detainees . By DATE persons had been released . The decision to phase out internment was not dictated by any fall in the level of violence . Rather it was intended to open the way for political progress by reducing tension as the first step in the process of reconciliation .", "On the political level , GPE was seeking the establishment of an equitable form of government for GPE , acceptable to both communities .", "The introduction of direct rule , together with the release of detainees , caused resentment and dismay amongst the NORP community . A DATE strike , which proved largely effective , was immediately called by the leader of CARDINAL of the extremist movements on the NORP side .", "Street demonstrations and marches called by the ORG appear to have begun shortly after DATE . The ORG was organised on pseudo - military lines , its members , estimated at CARDINAL persons , giving themselves military ranks . The ORG used its forces to erect barricades , set up road blocks and disrupt civil life generally . They paraded in large numbers through the centre of GPE and elsewhere , many of them masked and dressed in para - military uniforms and on occasions openly carrying weapons such as sticks or cudgels . Such demonstrations , however , seem rarely to have led to physical violence . Whilst it was illegal to block roads , wear uniforms or carry offensive weapons , the security forces did not attempt to arrest those taking part in ORG demonstrations since they feared that major riots would result . Neither were the extrajudicial powers of detention and internment ever used , against either NORP or NORP , to combat this kind of illegal activity .", "According to the respondent Government , consideration was given to the possibility of proscribing the ORG , but it was decided that on balance no good purpose would be served by doing so , not least because most of its members were not engaged in violence . It is generally accepted , however , that ORG membership overlapped , to some extent at least , with the smaller and more militant extremist bodies which were illegal , such as the ORG ( see paragraph CARDINAL above ) .", "Other aspects of NORP activity during this stage of the crisis included the erection of barricades and the continuing intimidation of NORP , a problem that became particularly grave in DATE . There were serious disturbances in NORP areas in DATE and DATE , with NORP terrorists exchanging fire with the security forces . The rioting in DATE ceased after the ORG had ordered the confrontation with the security forces to stop .", "After the introduction of direct rule , there occurred a marked upward turn in NORP terrorism , evidenced by a few bombing attacks , a large - scale build - up of arms and ammunitions , and above all sectarian assassinations .", "Sectarian assassinations , which the respondent Government term the outstanding feature of NORP violence since DATE , first reached serious proportions in DATE . Victims seem largely to have been chosen at random on no other ground than their membership of , or links with , the other community . Kidnapping and torturing sometimes accompanied this kind of indiscriminate killing . While both sides committed sectarian murders , it is generally accepted that NORP were responsible for more than NORP . The police had difficulty in detecting those responsible for sectarian assassinations . In particular , witnesses were reluctant to come forward and were subjected to intimidation . Accordingly , a confidential telephone system was installed in DATE , whereby information could be given anonymously to the security forces .", "Although NORP terrorist activity had grown significantly , it nonetheless remained that the great bulk of serious violence in this period was attributed to the IRA ( see paragraph CARDINAL below ) . The high level of IRA terrorism did not at all abate despite the phasing - out of internment . In fact , there was a steady rise in explosions , shooting incidents and casualties amongst the security forces over the period from DATE until DATE However , on CARDINAL DATE ORG , who had been responsible for a lesser amount of violence than the Provisionals , declared a truce which they have on the whole respected ever since . On DATE the Provisional IRA in their turn announced a truce , becoming effective on DATE . The Provisionals’ truce was , however , called off on DATE following an incident arising out of a communal argument between the ORG and NORP about the allocation of accommodation on a GPE housing estate .", "After the breakdown of the ceasefire , Provisional IRA violence was resumed at an increased level . In DATE alone , CARDINAL members of the security forces and CARDINAL civilians were killed ; in addition , there were nearly CARDINAL explosions and CARDINAL shooting incidents . These figures were the highest for DATE in the entire emergency up to DATE . Responsibility was attributed to ORG for CARDINAL deaths and CARDINAL explosions .", "Faced with the mounting tide of violence , ORG decided to restore the presence of the security forces in the \" no - go \" areas . After due warning had been given to the civilian population , a large - scale manoeuvre , known as PERSON , was mounted on DATE beginning at TIME", "Even after PERSON the police were still not able to function properly in NORP areas . Access to NORP areas remained easier for the police and they were not subject there to the same risk of attack . The army operated principally , and was employed to carry out police duties , in those areas where the minority community predominated .", "Nevertheless , the level of violence , although still high , immediately fell . In DATE , DATE and DATE , there was an overall total of CARDINAL shooting incidents as opposed to CARDINAL for DATE alone . The DATE average of deaths was CARDINAL the DATE total , and the number of explosions became progressively less .", "According to the respondent Government , a development contributing to the maintenance of this gradual reduction was the institution in DATE of a revised system for the detention of terrorists .", "In DATE following the introduction of direct rule – including DATE , the worst of DATE for violence - no new internment orders were made and fresh detentions virtually ceased . From DATE , after the breakdown of the attempted ceasefire , the number of detention orders - as before , against IRA suspects only - increased , while the rate of releases fell . There was , however , no large - scale operation to re - detain and re - intern people .", "The political gesture of phasing out internment had not , as hoped , elicited a positive response from the ORG ; on the contrary , violence had mounted to fresh heights . Furthermore , the authorities judged that the capability of the ordinary processes of law to counter IRA terrorism continued to be impeded by a number of circumstances such as the intimidation of potential witnesses and the difficulty of bringing to trial those responsible for directing terrorist operations .", "ORG therefore became convinced that it was necessary to find fresh means of separating known terrorists from the population at large . On DATE , the Government announced that it was to set up a Commission , subsequently appointed in DATE under the chairmanship of Lord PERSON ,", "- to consider \" what arrangements for the administration of justice in GPE could be made in order to deal more effectively with terrorist organisations by bringing to book , otherwise than by internment by the Executive , individuals involved in terrorist activities , particularly those who plan and direct , but do not necessarily take part in , terrorist acts \" ; and", "- \" to make recommendations \" .", "Without waiting for the report of ORG , the Government brought into effect on DATE ORG ( GPE ) Order DATE ( abbreviated hereafter to LAW ) , an Order made in exercise of the powers conferred by LAW ( see paragraph DATE above ) . This Order , which was of a temporary nature , revoked LAW ( CARDINAL ) ( detention ) and CARDINAL ( CARDINAL ) ( internment ) ; in replacement it instituted , with further procedural guarantees for the protection of the individual concerned , a new system of \" interim custody \" and \" detention \" for persons suspected of participation in terrorist activities . Regulations DATE ( CARDINAL ) ( arrest ) remained . Further details on the Order are given below at DATE .", "The report of ORG was presented to ORG in DATE . This report analysed the minimum requirements of a judicial process , the effects of intimidation , possible changes in the rules of evidence and the need for detention without trial . It stated , inter alia :", "\" The fear of intimidation is widespread and well - founded . Until it can be removed and the personal safety of witnesses and their families guaranteed , the use by the Executive of some extrajudicial process for the detention of terrorists can not be dispensed with . \"", "ORG , on the basis of the evidence it had itself obtained , accepted that the findings of the PERSON report as to the level of intimidation were generally warranted .", "Another contributory factor invoked by the respondent Government in connection with the fall in violence ( see paragraph CARDINAL above ) was the intensive programme of consultations which they undertook with the political parties in GPE on the question of the future government of the province . These consultations , first commenced in DATE and DATE , continued throughout DATE and DATE . Apart from the steps taken on the security front , ORG thus maintained the new emphasis placed , since the introduction of direct rule , on attempting to find a solution to the crisis through political means ( see paragraph CARDINAL above ) .", "The gradual reduction in the level of violence was maintained until DATE . The figures for deaths and explosions for DATE were , with one slight exception , lower than for DATE since the introduction of internment . Despite this general reduction , though , the development of NORP militancy and terrorist activity continued .", "From DATE until DATE , CARDINAL persons were killed , CARDINAL of these deaths being attributed to ORG . The overall total included CARDINAL members of the security forces , the vast majority of whom were considered to have been killed by the ORG , and an equal number of victims of \" factional or sectarian \" assassinations . Of these assassinations , CARDINAL were ascribed to ORG , DATE to the IRA , with no attribution being possible in the remaining CARDINAL cases .", "For their part , explosions totalled CARDINAL ; no more than a small percentage - for example , CARDINAL out of CARDINAL explosions recorded DATE and DATE - were regarded as being the work of ORG .", "The increasing NORP militancy was further evidenced by the statistics on intimidation , arms and ammunitions recovered , and charges brought for \" terrorist - type offences \" . Thus , DATE , charges of the kind just referred to were laid against CARDINAL persons , namely CARDINAL NORP and CARDINAL NORP ; within this total , CARDINAL individuals - CARDINAL NORP , including CARDINAL in DATE of DATE , and CARDINAL NORP DATE were charged with murder or attempted murder .", "NORP terrorism was linked by the police with NORP extremist organisations , notably the ORG . The police considered that the ORG ’s membership and acts of terrorism had increased from DATE following a period of relative inactivity after its DATE bombing campaign ( see paragraphs CARDINAL and CARDINAL above ) . It was looked on as a well - armed and organised body . In general , by about DATE the police had reasonably good intelligence as to the identity of the violent elements on the NORP side , but there were cases in DATE in which it was impossible to procure sufficient evidence to bring such persons before the ordinary criminal courts . Nevertheless , none of the extrajudicial orders made between the introduction of direct rule and CARDINAL DATE ( see paragraph CARDINAL below ) applied to ORG .", "NORP violence , however , remained on a far smaller scale than that of the Provisional IRA who , as the above - cited figures show , were still responsible for the great bulk of the terrorist deeds recorded .", "In the view of the respondent Government and of the ORG , NORP and IRA violence were to be distinguished in further respects in addition to volume . NORP terrorism consisted largely of intimidation and sectarian assassinations , whereas the ORG campaign also included attacks on members of the security forces and the bombing of public places . As indicated earlier ( paragraph CARDINAL above ) , the character , aims and background of the various organisations engaged in terrorism on the CARDINAL sides differed . The evidence suggests that the NORP terrorist groups were at the time more amorphous than the IRA . Within the security forces there was a tendency , which the ORG regarded as justified in many ways , to look on NORP terrorists as \" criminals \" or \" hooligans \" and on the IRA as the organised \" terrorist \" enemy . The prospects of obtaining sufficient admissible evidence for a criminal prosecution were , it seems , judged by the security forces as being better in relation to NORP than to IRA suspects . Given the continued inability of the police to operate normally in NORP areas and the greater extent and organisation of the ORG campaign , the ORG found such an attitude \" not surprising \" .", "Finally , the statistics referred to above at paragraph CARDINAL indicate that action , in the form of searches , recovery of arms and the bringing of criminal charges , was being taken by the authorities against both sides .", "From DATE until DATE no new internment orders were made , although it was considered necessary to make CARDINAL detention orders under LAW ( CARDINAL ) . By the latter date CARDINAL men had been released from internment and CARDINAL from detention , leaving CARDINAL still interned and CARDINAL still detained . Between the entry into force of ORG and DATE , CARDINAL interim custody orders and CARDINAL detention orders were made while CARDINAL persons were released .", "In the context of the period from DATE to CARDINAL DATE , the ORG noted in its report that subsequent to the introduction of direct rule the extrajudicial powers appear to have been exercised on a more selective basis and , broadly speaking , in accordance with the following criteria :", "( i ) extrajudicial orders were served only on persons suspected of involvement in serious and organised terrorism ;", "( ii ) they were used solely as a \" last resort \" , that is only in cases where sufficient evidence was not available to justify prosecution before the ordinary courts ;", "( iii ) as a general practice , they were not made against a person in respect of matters for which he had been tried and acquitted by an ordinary court , provided that it had been possible to put before the court all the relevant evidence .", "At DATE , a NORP soldier was shot dead in a NORP part of GPE . Shortly afterwards , on DATE , CARDINAL interim custody orders were made in respect of ORG . These CARDINAL men were the first ORG against whom the extrajudicial powers were exercised . According to the applicant Government , the specific act of which one of these men was suspected - the bombing of a bus , responsibility for which had been claimed immediately after the event by the ORG - had caused a public outcry and had actually forced a decision to \" intern \" the first suspected NORP terrorist . The decision itself had been the subject of discussions between the Secretary of ORG for GPE , the General Officer Commanding the NORP forces in the province and high ranking civil servants . The relevant higher authorities are noted in the GPE ’s report as recognising that the detention of ORG would lead to repercussions in the security situation . The ORG accepts that the risk of a severe outbreak of NORP violence in response was clearly a very real one .", "Prior to DATE , it seems , no recommendations had been made to the Secretary of ORG for the detention or internment of ORG .", "According to the applicant Government , the exercise of the extrajudicial powers against ORG brought in its wake widespread threats from the ORG . In general , however , the pattern of violence from DATE can be said to have followed the previous pattern , although at a somewhat lower level than in DATE . The bulk of the terrorist acts that is most of the bombing and shooting attacks on members of the security forces were still perpetrated by ORG , with the ORG committing the majority of the sectarian assassinations .", "From DATE until DATE , the police registered CARDINAL deaths , of which CARDINAL were considered to be the responsibility of NORP . Of the CARDINAL \" factional or sectarian \" murders recorded , CARDINAL were ascribed to ORG and DATE to the IRA and in CARDINAL cases no attribution was possible . In DATE , the number of explosions dropped to CARDINAL - CARDINAL being attributed to ORG - as compared with CARDINAL in DATE . For their part , shootings fell from CARDINAL to CARDINAL , although an increase occurred in punishment shootings such as \" executions \" and \" knee - capping \" .", "DATE . On DATE , GPE ( Emergency LAW Act DATE ( hereafter abbreviated to LAW ) came into force . This Act , which was based mainly on the recommendations of ORG ( see paragraphs CARDINAL and CARDINAL above ) , repealed the DATE LAW CARDINAL and DATE ( CARDINAL ) and the DATE Terrorists Order , while retaining in substance the procedure laid down in the latter Order . Briefly , the extrajudicial powers introduced under LAW were : ( i ) arrest and detention for TIME ; ( ii ) interim custody for DATE ; and ( iii ) detention ( see paragraphs CARDINAL and CARDINAL below for a fuller explanation ) . These emergency powers remained in force for a period of DATE unless renewed . The LAW also dealt with the trial and punishment by the ordinary courts of certain scheduled offences , for the most part offences concerned with violence . CARDINAL provision , section CARDINAL , is referred to below at paragraph CARDINAL .", "DATE and DATE , interim custody orders were served on CARDINAL NORP and CARDINAL NORP ; at all times many more NORP than NORP were actually held . Shortly before DATE , CARDINAL detainees , CARDINAL of whom were NORP , were released .", "During the same period , CARDINAL persons were charged with \" terrorist - type offences \" , the total being made up as follows : CARDINAL NORP , CARDINAL NORP and CARDINAL soldiers . These figures included CARDINAL NORP and CARDINAL NORP charged with murder . In addition , searches were being conducted and arms recovered in relation to both sides .", "While the level of violence was reduced in DATE and DATE , progress on the political front was somewhat erratic . In DATE , ORG published a ORG setting out proposals for the constitutional future of the CARDINAL counties . These proposals envisaged a new regional government with participation at \" cabinet \" level by representatives of both communities . A DATE Act provided for the election of a ORG before the main constitutional legislation was enacted . Elections , based on the principle of proportional representation in order to ensure a fair representation for the NORP minority , were held on DATE . Of the CARDINAL members elected to the ORG , CARDINAL were in favour of the proposed constitutional changes , even though the extreme NORP parties had conducted a campaign of opposition .", "The White Paper proposals were enacted in DATE in the form of GPE DATE . This Act empowered the ORG to legislate within certain limits and established an Executive . ORG on Human Rights was instituted to advise the Secretary of ORG . The LAW also specifically provided that legislation passed by the ORG would be void if it discriminated on the ground of religious belief or political opinion ; in addition , discrimination by public authorities on such grounds was expressly rendered unlawful .", "The provisions of the LAW relating to legislative and executive powers required the passing by ORG of a Devolution Order . The LAW was made on DATE and the devolution became effective on DATE . This devolution , which was based on the principle of \" power - sharing \" between the CARDINAL communities , marked for a certain time the end of direct rule .", "The Northern Ireland Executive came into office on DATE . For the first time , a ORG contained representatives of both the majority and minority communities , but its life proved to be very brief . In DATE , NORP extremist groups combined to organise a politically motivated strike which brought about the downfall of the Executive and a return to direct rule from GPE . On DATE , Her Majesty , acting under LAW referred to in the preceding paragraph , by ORG directed that ORG should stand prorogued for DATE .", "On DATE , GPE DATE was passed by ORG in order to make temporary provision for the government of the CARDINAL counties . This Act suspended the functions of the above - mentioned ORG and enabled laws to be made by ORG , enacted that no appointments to the Executive were to be made , and made the province ’s departments subject to the direction and control of the Secretary of ORG for GPE .", "In DATE , ORG appointed ORG whose terms of reference were to consider what provisions and powers , consistent to the maximum extent practicable in the circumstances with the preservation of civil liberties and human rights , were required to deal with terrorism and subversion in GPE , including provisions for the administration of justice ; to examine the working of the DATE LAW ; and to make recommendations .", "The report of ORG was presented to ORG in DATE . This report critically examined trial procedures before the ordinary courts , existing and proposed offences connected with terrorism , the powers of the security forces , prison accommodation , special category prisoners and detention . When dealing with the question of detention , ORG noted at paragraph CARDINAL :", "\" ... We have detailed evidence of CARDINAL cases of intimidation of witnesses DATE : and there must be many more . Civilian witnesses to murder and other terrorist offences are either too afraid to make any statement at all , or , having made a statement identifying the criminal , refuse in any circumstances to give evidence in court . The prevalence of murder and knee - capping make this only too easy to understand . \"", "ORG , while making certain recommendations about detention and existing detention procedures , concluded at paragraphs CARDINAL and CARDINAL :", "\" After long and anxious consideration , we are of the opinion that detention can not remain as a long - term policy . In the short term , it may be an effective means of containing violence , but the prolonged effects of the use of detention are ultimately inimical to community life , fan a widespread sense of grievance and injustice , and obstruct those elements in GPE society which could lead to reconciliation . Detention can only be tolerated in a NORP society in the most extreme circumstances ; it must be used with the utmost restraint and retained only as long as it is strictly necessary . We would like to be able to recommend that the time has come to abolish detention ; but the present level of violence , the risks of increased violence , and the difficulty of predicting events even DATE make it impossible for us to put forward a precise recommendation on the timing .", "We think that this grave decision can only be made by the Government ... \"", "LAW of DATE , the main subject of the examination by ORG , was extended by Orders of CARDINAL DATE , CARDINAL DATE and DATE . On DATE , ORG , acting on the recommendations of the PERSON report , passed GPE ( Emergency Provisions ) LAW DATE ( hereafter abbreviated to LAW ) . This Act , which came into effect on CARDINAL DATE , amended the law relating to detention without trial ( see paragraph CARDINAL below ) , as well as containing further provisions concerned with criminal proceedings , the maintenance of order and the detection of crime in GPE . LAW is still in force , having twice been continued by ORG .", "DATE . No detailed statistics for DATE are before the ORG , although a few figures as to murder charges appear in the ORG ’s report . By DATE , the police had been able to bring criminal charges against a total of CARDINAL NORP and CARDINAL NORP in respect of CARDINAL sectarian murders .", "On DATE , the Secretary of ORG for GPE signed orders for the release from detention of the last CARDINAL individuals held under the emergency legislation . Since DATE , according to the data before the ORG , no person has been held in detention under the extrajudicial measures in GPE .", "The terrorism and violence in the province have persisted through DATE until DATE , accounting , for instance , for the murders of CARDINAL persons and injuries to CARDINAL others DATE and DATE .", "The respondent Government have drawn attention , before both the ORG and the ORG , to the continuous programme of reform implemented in GPE since DATE in order to tackle the problems of unfair discrimination which had prompted the civil rights movement . Radical changes have been made in the structure of local government in the province : universal suffrage was introduced in DATE , proportional representation in DATE , local government boundaries were revised in DATE , and many important functions such as education and housing were transferred to special area boards or to central government bodies in the hope of ending or reducing the fear of discrimination in the social field . In DATE , ORG established a Parliamentary Commissioner ( i.e. Ombudsman ) for ORG and a Commissioner for ORG . The provisions of LAW of DATE directed against discrimination have already been referred to ( paragraph DATE above ) . ORG on Human Rights , set up under the last - mentioned LAW , began in DATE a detailed study of the extent to which the existing legislation provides a sufficient protection for human rights in the CARDINAL counties . Legislation making discrimination unlawful in the private sector was introduced in DATE .", "DATE . During the period under consideration , in addition to the ordinary criminal law which remained in force and in use , the authorities had various special powers to combat terrorism in GPE . These were all discretionary and underwent modification from time to time , as is described below ; they enabled the authorities to effect extrajudicial deprivation of liberty falling into the following CARDINAL basic categories :", "- initial arrest for interrogation ;", "- detention for further interrogation ( originally called \" detention \" and subsequently \" interim custody \" ) ;", "- preventive detention ( originally called \" internment \" and subsequently \" detention \" ) .", "In accordance with LAW para . CARDINAL ( article CARDINAL ) of the LAW , ORG sent to the Secretary - General of ORG , both before and after the original application to the Commission , CARDINAL notices of derogation in respect of these powers . Such notices , of which the first CARDINAL are not pertinent in the present case , were dated DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE and DATE and drew attention to the relevant legislation and modifications thereof .", "LAW empowered the Minister of ORG for GPE , until DATE , or , thereafter and until DATE , the Secretary of ORG for GPE to take all such steps and issue all such orders as might be necessary for preserving peace and maintaining order . It was an enabling Act whose substantive provisions were contained in Regulations made there under . Before direct rule , either ORG of ORG of GPE could , at the time Regulations were made , request the Governor to annul them ; subsequently , new Regulations were subject to approval by ORG .", "The number and scope of the ORG in force varied over DATE ; they could be brought into use without any legislative act or proclamation . Those relevant to the present case were made in DATE ( LAW and DATE ) and DATE ( LAW ) . They were utilised to implement the policy of internment introduced on CARDINAL DATE and advice of their use was given to the Secretary - General by ORG notice of derogation of CARDINAL DATE ( Yearbook of the Convention , volume CARDINAL , page CARDINAL ) . They conferred the CARDINAL powers described below .", "Under this Regulation", "- any individual could be arrested without warrant and detained for the purpose of interrogation ;", "- the arrest could be authorised by any officer of the ORG ;", "- the officer had to be of the opinion that the arrest should be realised \" for the preservation of the peace and maintenance of order \" ;", "- the detention could not exceed TIME .", "Exercise of the power was not conditional on suspicion of an offence and , following a practice originating in instructions issued to the military police in DATE , the individual was not normally informed of the reason for his arrest . Although looked upon in principle as a preliminary to detention and internment ( see paragraphs CARDINAL and CARDINAL below ) , arrest sometimes had the object of interrogating a person about the activities of others . Some arrests , and some subsequent detention orders , seem to have been made on the basis of inadequate or inaccurate information .", "The individual could not apply for bail ( see the judgment of CARDINAL DATE delivered by ORG in GPE in the case of In LOC ) . Moreover , arrests under this ORG could not as a general rule be questioned in the courts but it was held in the judgment of CARDINAL DATE delivered by ORG in the case of PERSON v. PERSON and ORG that failure to comply with the proper procedure , including certain fundamental principles of the common law , invalidated exercise of the power .", "On DATE LAW ( see paragraph CARDINAL below ) repealed LAW . CARDINAL persons had been arrested there under prior to DATE , of whom CARDINAL had been released within TIME and CARDINAL had had their detention prolonged under other Regulations .", "Under this Regulation", "- any individual could be arrested without warrant ;", "- the arrest could be effected by any police constable , member of the forces or person authorised by ORG \" ( i.e. the Minister of ORG or his delegates ) ;", "- the person making the arrest had to suspect the individual of acting , having acted or being about to act in a manner prejudicial to the preservation of the peace or maintenance of order or of having committed an offence against the ORG ;", "- the duration of the arrest was unlimited in law but limited in practice to TIME .", "Arrest under this Regulation could follow arrest under LAW , giving a total of at CARDINAL . The individual was not normally informed of the reason for his arrest .", "Judicial decisions show that review by the courts of the exercise of this power was limited . They could intervene if there had been bad faith , absence of a genuine suspicion , improper motive or failure to comply either with the statutory procedures or with such principles of the common law as were held not to be excluded by the language of the Regulation ; however , they could not in general enquire into the reasonableness or fairness of the suspicion or of the decision to exercise the power ( see the PERSON case and the judgment of DATE delivered by ORG in GPE in the case of PERSON and others ) .", "Under LAW ( CARDINAL ) , the individual could apply to ORG for release on bail and , if that ORG so directed , might be conditionally discharged from custody by a magistrate ; however , this right was abolished on DATE with the revocation of LAW ( CARDINAL ) by ORG ( see paragraph CARDINAL below ) .", "Regulation CARDINAL ( CARDINAL ) was repealed on DATE by LAW ( see paragraph CARDINAL below ) .", "Under this Regulation", "- any individual arrested under LAW ( CARDINAL ) could be detained in prison or elsewhere on the conditions directed by ORG ;", "- the power to make detention orders was vested in ORG and the initiative for them came from the police . The respondent Government said that they were always made on the personal decision , before direct rule , of the Prime Minister of GPE or , thereafter , of the Secretary of ORG for GPE or CARDINAL other Ministers ;", "- detention continued until the individual was discharged by the Attorney - General or brought before a court . Its duration was unlimited in law but limited in practice , generally , to DATE .", "The respondent Government said that detention orders were made to enable the police to complete enquiries . If they had sufficient evidence to secure a conviction , the individual would be brought before an ordinary court in which event he was entitled to CARDINAL hours’ notice of the charge . Alternatively , he might be released after a limited period or be the subject of an internment order ( see paragraph CARDINAL below ) .", "The detainee had the limited right to apply for bail afforded by LAW ( CARDINAL ) ( see paragraph CARDINAL above ) . The position concerning supervision by the courts was the same as under LAW ( CARDINAL ) ( see the PERSON and the PERSON cases ) and there was no other procedure for review of the detention .", "CARDINAL detention orders were made under LAW ( CARDINAL ) , the vast majority before DATE . CARDINAL orders were still in force on DATE when the ORG was revoked by ORG ( see paragraph CARDINAL below ) .", "Under this Regulation", "- any individual could by order be subjected to restrictions on movement or interned ;", "- the power to make such orders was vested before direct rule in the Minister of ORG for GPE on the recommendation of a senior police officer or of an advisory committee . The respondent Government said that they were always made on the personal decision of the Prime Minister of GPE ;", "- the Minister had to be satisfied that for securing the preservation of the peace and the maintenance of order it was expedient that a person suspected of acting , having acted or being about to act in a manner prejudicial te peace and order be subjected to such restrictions or interned ;", "- the duration of internment was unlimited . In many cases , after prolongation under later legislation ( see paragraphs CARDINAL and CARDINAL below ) , it lasted for DATE .", "Every order had to provide for the consideration by and advisory committee of representations made by the individual . In fact it reviewed the position of all internees whether they made representations or not . The committee composed of a judge and CARDINAL laymen , could recommend , but not order , release .", "The individual had no right in law to appear or be legally represented before the committee , to test the grounds for internment , to examine witnesses against him or to call his own witnesses . In fact , he was allowed to appear and be interviewed and every effort was made to trace witnesses he proposed . The committee required the security forces to produce the information in their possession but statements of evidence against the internee so obtained remained anonymous , apparently to avoid retaliation . According to the ORG , the committee probably relied on evidence not admissible in a court of law .", "The position concerning the review of internment orders by the courts was the same as under LAW , DATE ( CARDINAL ) and CARDINAL ( CARDINAL ) ( see the PERSON case ) .", "CARDINAL orders were made under LAW ( CARDINAL ) , all before the introduction of direct rule . CARDINAL orders were still in force on DATE when the ORG was revoked by ORG ( see paragraph CARDINAL below ) .", "By DATE , CARDINAL of the CARDINAL cases had been reviewed by the advisory committee ( although CARDINAL internees refused to appear ) and CARDINAL releases recommended . Of the CARDINAL individuals all were released except CARDINAL who refused to give an undertaking as to future good behaviour .", "ORG , a temporary measure made under LAW ( see paragraph DATE above ) , introduced an independent review of decisions on detention for further interrogation and on preventive detention whereas , previously , such decisions had been taken by the administrative authority alone . The Order revoked with effect from DATE LAW ( CARDINAL ) and ( CARDINAL ) and CARDINAL ( CARDINAL ) - but not CARDINAL and CARDINAL ( CARDINAL ) - and converted existing detention or internment orders into interim custody orders ( see paragraph CARDINAL below ) . The Order defined \" terrorism \" as \" the use of violence for political ends [ including ] any use of violence for the purpose of putting the public or any section of the public in fear \" .", "The Secretary - General of ORG was advised of the making of this Order by ORG notice of derogation of DATE ( ORG , volume CARDINAL , pages CARDINAL and CARDINAL ) . The Order conferred the powers described below and was repealed by LAW on DATE ( see paragraph CARDINAL below ) .", "Under this Article", "- any individual could by an interim custody order be temporarily detained ;", "- the power to make such orders was vested in the Secretary of ORG for GPE ;", "- the power was exercisable where it appeared to the Secretary of ORG that the individual was suspected of having been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism ;", "- detention was limited to DATE unless the case was referred by the Chief Constable - or , as regards persons originally held under LAW , by the Secretary of ORG - to a commissioner for determination , in which event it could continue only until such determination .", "The individual had to be released after DATE if his case had not by then been referred to a commissioner but , in fact , all cases , including those of persons originally detained or interned under LAW , were so referred . During the order ’s initial DATE and during its extension pending the commissioner ’s adjudication , which could take DATE , the individual had no means under the Terrorists Order of challenging the lawfulness of his detention .", "Figures for interim custody orders appear in paragraph CARDINAL below .", "Under this Article", "- where the case of an individual subject to an interim custody order under LAW was referred to a commissioner , he could make a detention order for that individual ’s detention ;", "- the commissioner had first to satisfy himself by enquiry that the individual had been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism and that his detention was necessary for the protection of the public . If so satisfied , he had to make an order ; if not , he had to direct the individual ’s discharge ;", "- the duration of detention was unlimited . In many cases , after prolongation under later legislation ( see paragraph CARDINAL below ) , it lasted for DATE .", "Unlike the recommendation of the advisory committee under LAW ( CARDINAL ) , a commissioner ’s decision to release was binding . The Secretary of ORG retained independent powers to release detainees with or without conditions and to recall to detention an individual conditionally released by him . He could also at any time refer a detention order case to a commissioner for review ; in that event discharge was obligatory unless the commissioner considered continued detention necessary for public protection .", "Proceedings before a commissioner took place in private . DATE before the hearing the individual had to be notified in writing of the nature of the terrorist activities to be enquired into . He had the right to legal aid and to be legally represented and had to be present unless removed on grounds of disorderly conduct or of security . He could be required to answer questions ; he had no right to examine or have examined witnesses against him but the respondent Government said that , in practice , cross - examination took place . The individual had to be informed , as far as possible , of matters dealt with in his absence for security reasons but had no right to test evidence given at that time . The commissioner might receive evidence however obtained and irrespective of whether it would be admissible in a court of law . This procedure applied , mutatis mutandis , both to initial references to a commissioner and to later references for review .", "Article CARDINAL of the Terrorists Order introduced a right for the individual to appeal within DATE against a detention order to a detention appeal tribunal of CARDINAL members . Procedurally the individual ’s position before the tribunal was similar to his position before a commissioner ; however , he was entitled to be present only when fresh evidence was produced , which was rare as the tribunal generally relied on the evidence furnished to the commissioner .", "Both commissioners and members of the tribunal had to have experience of judicial office or CARDINAL years’ experience as a barrister , advocate or solicitor .", "Figures for detention orders appear in paragraph CARDINAL below .", "LAW , based on the recommendations of ORG ( see paragraph CARDINAL above ) , repealed with effect from CARDINAL DATE LAW ( CARDINAL ) and the Terrorists Order but maintained in effect - under its own provisions - the existing interim custody and detention orders . The emergency powers contained in the new LAW were to remain in force for DATE unless renewed for a period not exceeding one year by an Order of the Secretary of ORG approved by both ORG ; they were in fact renewed for DATE periods commencing on DATE , CARDINAL DATE and DATE and then amended on CARDINAL DATE by LAW ( see paragraph CARDINAL below ) . The Secretary - General of ORG was advised of the new legislation , and of the subsequent renewal and amendment of the emergency powers , by ORG notices of derogation of CARDINAL DATE ( Yearbook of the Convention , volume CARDINAL , pages CARDINAL and DATE ) and DATE ( document ORG ( CARDINAL ) CARDINAL , page CARDINAL ) .", "The new LAW ( CARDINAL ) and Schedule CARDINAL ) re - enacted , in substance , the powers contained in the Terrorists Order , retaining its definition of terrorism . Accordingly , the powers to make interim custody and detention orders , and the review thereof by a commissioner and the appeal tribunal , continued in the manner , on the conditions and subject to the procedure described in paragraph CARDINAL and CARDINAL above , with the significant differences that :", "- the individual had to receive a written statement concerning the terrorist activities to be investigated by the commissioner CARDINAL ( rather than DATE before the hearing ;", "- in addition to his optional power to refer , the Secretary of ORG had to refer to a commissioner the case of anyone held under a detention order for DATE since the making of the order or for DATE since the last review .", "Section CARDINAL of the Act also provided that any constable might arrest without warrant a person whom he suspected of being a terrorist ; detention after arrest was limited to TIME . The Act conferred certain other powers of arrest ( sections CARDINAL and DATE ) which are not in issue in the present case .", "Figures for interim custody and detention orders ( under the Terrorists Order and LAW ) are :", "- DATE to CARDINAL DATE : CARDINAL interim custody orders ( under the Terrorists Order ) ;", "- DATE : CARDINAL individuals detained under the Terrorists Order and CARDINAL released ;", "- DATE to CARDINAL DATE : the commissioners reviewed CARDINAL cases ( CARDINAL interim custody orders made under LAW ; CARDINAL former internments and CARDINAL former detentions under LAW ) ; they made CARDINAL detention orders and directed release in the remaining CARDINAL cases ;", "- DATE to PERCENT : CARDINAL appeals were lodged with the detention appeal tribunal ; CARDINAL had been heard and CARDINAL releases directed .", "With effect from DATE , LAW , based on the recommendations of ORG ( see paragraph CARDINAL above ) , made , inter alia , new provisions for the detention of terrorists which have not been the subject of the present case . The LAW reverted to the principle of detention by order of the Secretary of ORG , rather than of a commissioner , such order to be preceded by a report from a legally qualified Adviser .", "As indicated in ORG communication of DATE to the Secretary - General of ORG , volume CARDINAL , page CARDINAL ) , on CARDINAL DATE the Secretary of ORG signed orders for the release of the last CARDINAL persons detained under the emergency legislation ; all were released forthwith except those remanded in custody on criminal charges or serving sentences of imprisonment . Since then , according to the data before the ORG , the power to make detention orders under LAW has not been exercised .", "As recounted above at DATE and CARDINAL , on CARDINAL DATE and thereafter numerous persons in GPE were arrested and taken into custody by the security forces acting in pursuance of the emergency powers . The persons arrested were interrogated , usually by members of the ORG , in order to determine whether they should be interned and/or to compile information about the IRA . In all , CARDINAL persons were processed by the police at various holding centres from DATE until DATE . The holding centres were replaced in DATE by police offices in GPE and at FAC .", "Allegations of ill - treatment have been made by the applicant Government in relation both to the initial arrests and to the subsequent interrogations . The applicant Government submitted written evidence to the Commission in respect of CARDINAL cases concerning incidents DATE .", "The procedure followed for the purposes of ascertaining the facts ( LAW , sub - paragraph ( a ) , of the Convention ) ( article CARDINAL-a ) was one decided upon by the ORG and accepted by the Parties . The ORG examined in detail with medical reports and oral evidence CARDINAL \" illustrative \" cases selected at its request by the applicant Government . The Commission considered a further CARDINAL cases ( the so - called \" CARDINAL cases \" ) on which it had received medical reports and invited written comments ; it referred to the remaining cases .", "The nature of the evidence submitted by ORG and the procedure followed by ORG in its investigation of such evidence are set out in some detail in the ORG ’s report . The ORG came to view that neither the witnesses from the security forces nor the case - witnesses put forward by the applicant Government had given accurate and complete accounts of what had happened . Consequently , where the allegations of ill - treatment were in dispute , the ORG treated as \" the most important objective evidence \" the medical findings which were not contested as such .", "The following account of events is based on the information set out in the ORG ’s report and in the other documents before the ORG .", "In order to protect the identity of certain persons , notably witnesses , the published version of the ORG ’s report ( see paragraph CARDINAL above ) incorporated changes to the original text ; these changes mainly took the form of designating such persons by letters and/or figures .", "The Commission grouped the cases into CARDINAL categories , according to the place where the ill - treatment was said to have been inflicted , namely :", "( CARDINAL ) the unidentified interrogation centre or centres ;", "( CARDINAL ) Palace Barracks , GPE ;", "( CARDINAL ) FAC ;", "( CARDINAL ) Ballykinler Regional Holding Centre ; and", "( CARDINAL ) various other miscellaneous places .", "CARDINAL persons arrested on DATE and CARDINAL persons arrested in DATE were singled out and taken to CARDINAL or more unidentified centres . There , CARDINAL and DATE respectively , they were submitted to a form of \" interrogation in depth \" which involved the combined application of CARDINAL particular techniques .", "These methods , sometimes termed \" disorientation \" or \" sensory deprivation \" techniques , were not used in any cases other than the CARDINAL so indicated above . It emerges from the ORG ’s establishment of the facts that the techniques consisted of :", "( a ) wall - standing : forcing the detainees to remain for periods of TIME in a \" stress position \" , described by those who underwent it as being \" spread eagled against the wall , with their fingers put high above the head against the wall , the legs spread apart and the feet back , causing them to stand on their toes with the weight of the body mainly on the fingers \" ;", "( b ) hooding : putting a black or navy coloured bag over the detainees’ heads and , at least initially , keeping it there all the time except during interrogation ;", "( c ) subjection to noise : pending their interrogations , holding the detainees in a room where there was a continuous loud and hissing noise ;", "( d ) deprivation of sleep : pending their interrogations , depriving the detainees of sleep ;", "( e ) deprivation of food and drink : subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations .", "The Commission ’s findings as to the manner and effects of the application of these techniques on CARDINAL particular case - witnesses are referred to below at paragraph ORG .", "From the start , it has been conceded by the respondent Government that the use of the CARDINAL techniques was authorised at \" high level \" . Although never committed to writing or authorised in any official document , the techniques had been orally taught to members of the ORG by ORG at a seminar held in DATE .", "The CARDINAL operations of interrogation in depth by means of the CARDINAL techniques led to the obtaining of a considerable quantity of intelligence information , including the identification of QUANTITY members of both IRA factions and the discovery of individual responsibility for CARDINAL previously unexplained criminal incidents .", "Reports alleging physical brutality and ill - treatment by the security forces were made public within DATE of Operation Demetrius ( described above at paragraph CARDINAL ) . A committee of enquiry under the chairmanship of Sir PERSON was appointed by ORG on DATE to investigate such allegations . Among the CARDINAL cases this ORG examined were CARDINAL cases of persons subjected to the CARDINAL techniques in DATE ; its findings were that interrogation in depth by means of the techniques constituted physical ill - treatment but not physical brutality as it understood that term . The ORG ’s report , adopted on DATE , was made public , as was a supplemental report of DATE by Sir PERSON in relation to CARDINAL further cases occurring in DATE and DATE , CARDINAL of which involved the techniques .", "The ORG reports came under considerable criticism in GPE . On DATE , the NORP Home Secretary announced that a further ORG had been set up under the chairmanship of Lord PERSON of GPE to consider \" whether , and if so in what respects , the procedures currently authorised for interrogation of persons suspected of terrorism and for their custody while subject to interrogation require amendment \" .", "The PERSON report , which was adopted on DATE , contained a majority and a minority opinion . The majority report concluded that the application of the techniques , subject to recommended safeguards against excessive use , need not be ruled out on moral grounds . On the other hand , the minority report by Lord PERSON disagreed that such interrogation procedures were morally justifiable , even in emergency terrorist conditions . Both the majority and the minority considered the methods to be illegal under domestic law , although the majority confined their view to LANGUAGE law and to \" some if not all the techniques \" .", "The PERSON report was published on DATE . On DATE , the GPE Prime Minister stated in ORG :", "\" [ The ] Government , having reviewed the whole matter with great care and with reference to any future operations , have decided that the techniques ... will not be used in future as an aid to interrogation . \"", "He further declared :", "\" The statement that I have made covers all future circumstances . If a Government did decide ... that additional techniques were required for interrogation , then I think that ... they would probably have to come to the ORG and ask for the powers to do it . \"", "As foreshadowed in the Prime Minister ’s statement , directives expressly prohibiting the use of the techniques , whether singly or in combination were then issued to the security forces by the Government ( see paragraph CARDINAL below ) .", "At the hearing before the ORG on DATE , the GPE Attorney - General made the following declaration :", "\" The Government of GPE have considered the question of the use of the ‘ CARDINAL techniques’ with very great care and with particular regard to LAW . They now give this unqualified undertaking , that the ‘ CARDINAL techniques’ will not in any circumstances be reintroduced as an aid to interrogation . \"", "ORG referred to the Commission CARDINAL cases of persons submitted to the CARDINAL techniques during interrogation at the unidentified centre or centres DATE . A further case , that of T CARDINAL , considered in the ORG ’s report in the context of FAC , concerned the use of the CARDINAL techniques in DATE . ORG examined as illustrative the cases of T CARDINAL and T CARDINAL , which were among the CARDINAL cases investigated by ORG .", "ORG . T CARDINAL and T CARDINAL were arrested on CARDINAL DATE during Operation Demetrius . DATE they were transferred from ORG to an unidentified interrogation centre where they were medically examined on arrival . Thereafter , with intermittent periods of respite , they were subjected to the CARDINAL techniques during CARDINAL or possibly DATE ; neither the PERSON or ORG nor ORG were able to establish the exact length of the periods of respite .", "The Commission was satisfied that T CARDINAL and T CARDINAL were kept at the wall for different periods totalling TIME , but it did not consider it proved that the enforced stress position had lasted all the time they were at the wall . It stated in addition that the required posture caused physical pain and exhaustion . The Commission noted that , later on during his stay at the interrogation centre , T CARDINAL was allowed to take his hood off when he was alone in the room , provided that he turned his face to the wall . It was not found possible by the Commission to establish for what periods T CARDINAL and T CARDINAL had been without sleep , or to what extent they were deprived of nourishment and whether or not they were offered food but refused to take it .", "The ORG found no physical injury to have resulted from the application of the CARDINAL techniques as such , but loss of weight by the CARDINAL case - witnesses and acute psychiatric symptoms developed by them during interrogation were recorded in the medical and other evidence . ORG , on the material before it , was unable to establish the exact degree of any psychiatric after - effects produced on T CARDINAL and T CARDINAL , but on the general level it was satisfied that some psychiatric after - effects in certain of the QUANTITY persons subjected to the techniques could not be excluded .", "T CARDINAL claimed in addition to have been beaten and otherwise physically ill - treated , but the medical evidence before the Commission , as the delegates explained at the hearing before the ORG on DATE , gave reason to doubt that he had been assaulted to any severe degree , if at all . Accordingly , the Commission treated the allegations in regard to T CARDINAL as concerning the CARDINAL techniques only .", "T CARDINAL similarly alleged that he was also assaulted in various ways at , or during transport to and from , the centre . On DATE he was medically examined on leaving the centre and also on his subsequent arrival at FAC where he was then detained until DATE . The medical reports of these examinations and photographs taken on DATE revealed on T CARDINAL ’s body bruising and contusions that had not been present on DATE . While not accepting all T CARDINAL ’s allegations , the Commission was \" satisfied beyond a reasonable doubt that certain of these injuries ... [ were ] the result of assaults committed on him by the security forces at the centre \" . As a general inference from the facts established in T CARDINAL ’s case , the ORG also found it \" probable that physical violence was sometimes used in the forcible application of the CARDINAL techniques \" .", "Although several other cases were referred to before the ORG by the applicant Government in connection with the unidentified interrogation centre or centres , no detailed allegations or findings are set out in the ORG ’s report except in the case of T CARDINAL which was CARDINAL of the \" CARDINAL cases \" . The medical evidence established that when leaving the centre and on entering FAC , T CARDINAL had suffered superficial bruising . The Commission ’s short assessment of this case , which it described as comparable to the case of T CARDINAL , was that \" there exists a strong indication that the course of events was similar to that found in the illustrative [ case ] \" .", "T CARDINAL and T CARDINAL instituted civil proceedings in DATE to recover damages for wrongful imprisonment and assault ; their claims were settled in DATE and DATE respectively for £ MONEY and £ MONEY . The CARDINAL other individuals against whom the CARDINAL techniques were used have all received in settlement of their civil claims compensation ranging MONEY .", "ORG , a military camp in GPE , County Down , on the outskirts of GPE , was used as a holding centre for DATE in DATE and then from DATE until DATE . During this period , when it was the main interrogation centre in GPE , CARDINAL persons from all over the province passed through FAC . The centre was operated jointly by the army and the ORG . Persons held there were photographed immediately after arriving and , from DATE ( see paragraph CARDINAL below ) , examined by a doctor on entry as well as departure .", "The interrogations - records of which were kept for filing – were conducted solely by police , usually CARDINAL in number , from the Special Branch of the ORG . These men , who were independent of the uniformed ORG , came under the responsibility of an officer in charge with the rank of inspector . Many of them interrogated prisoners both at FAC and at FAC on a rotating system .", "A total of CARDINAL cases concerned with ORG were submitted to the ORG by the applicant ORG . The ORG examined in detail CARDINAL illustrative cases , all relating to the period DATE . It also considered a further QUANTITY cases , included in the \" CARDINAL cases \" ; of these CARDINAL cases , CARDINAL covered DATE while CARDINAL concerned events occurring in DATE and DATE .", "These CARDINAL men were all arrested early on DATE at their homes in GPE and taken to ORG for interrogation . They were photographed and examined by an army doctor immediately after their arrest ; apart from CARDINAL small scar , no injuries were apparently found . DATE they were transferred together from ORG to FAC . They all alleged that at various times they had been made to stand spread eagled against a wall and had been severely beaten or otherwise physically ill - treated , particularly during interrogations . On their arrival at FAC , a prison doctor found contusions and bruising on CARDINAL of the men ; on DATE , another doctor found similar injuries on the fourth man . In the ORG ’s view , this medical evidence made \" it highly probable that all the CARDINAL received their injuries while at FAC \" .", "Despite the absolute denials given in evidence by witnesses from the security forces at FAC , the Commission held the following facts , amongst others , to be established beyond reasonable doubt :", "\" The CARDINAL men ... were severely beaten by members of the security forces ... The beating was not occasional but it was applied in a sort of scheme in order to make them speak ... \"", "Each man instituted civil proceedings for damages and rejected the offer of £ MONEY made in settlement of his claim .", "T CARDINAL and T CARDINAL were arrested together by an army patrol in a GPE street on TIME DATE . They were brought to ORG for interrogation and held there until TIME of DATE when they were transferred to FAC . On arrival at the latter institution , they were examined by a prison doctor . T CARDINAL was immediately transported to the prison hospital wing where he spent DATE . Both men soon made statements alleging ill - treatment at FAC . T CARDINAL , for instance , claimed that he had been made to stand spread eagled against a wall while being questioned by a Special Branch man who was kicking him continuously on the insides of the legs . They obtained legal assistance and were further medically examined .", "The medical evidence disclosed injuries described as \" substantial \" in T CARDINAL ’s case and \" massive \" in T CARDINAL ’s case . ORG concluded that \" the proved injuries must have been caused while the CARDINAL men were at FAC \" . CARDINAL members of the security forces at the centre gave evidence completely denying any knowledge of the injuries or their causes , but these denials were not believed by the Commission . While viewing certain of the CARDINAL men ’s assertions as exaggerated , invented or improbable , the ORG made the following finding :", "\" T CARDINAL and T CARDINAL ... were subjected to physical violence , especially kicking and beating , during or between a series of ‘ interviews’ conducted by GPE . \"", "Civil proceedings seeking damages were instituted by T CARDINAL and T CARDINAL ; their claims were settled for £ MONEY and £ CARDINAL respectively . They also , it seems , complained to the police , but no evidence was produced to the Commission of a police enquiry into their complaints .", "These CARDINAL cases , although not directly connected , have certain similarities and were grouped together by the Commission .", "T CARDINAL was arrested at his home in TIME of DATE and taken by soldiers to FAC . He was questioned several times that day . At TIME he was released without being charged . TIME , he was examined by a general practitioner who found what he considered to be rather superficial injuries .", "T CARDINAL alleged that he had been kicked and punched while being made to stand against the wall with his weight on his fingertips . These allegations were completely denied by witnesses from the police . No corroborated evidence was produced by either side to confirm or rebut the suggestion made by police witnesses that T CARDINAL might have received his injuries after his release while being \" questioned \" by the IRA . T CARDINAL did concede having had some previous contacts , albeit superficial and undesired , with IRA members . The ORG found inter alia :", "\" It can not ... be concluded beyond a reasonable doubt that [ T CARDINAL ] ... received these injuries in the way alleged by him . \"", "Although T CARDINAL said that he had brought a civil action for damages , there is no information as to the outcome of those proceedings . He further stated that after complaint to the ORG , he was told that his allegations had been investigated but found to be unsubstantiated .", "T CARDINAL was arrested by an army patrol in the street near his home in the afternoon of QUANTITY DATE . He was taken by army vehicle first to a police station , where he stayed for TIME , and then on to FAC for questioning . He was released DATE . He alleged that he had been kicked and beaten by soldiers when lying on the floor of the army vehicle and thereafter beaten during interrogation by the police at FAC . Both the army and the police witnesses denied these allegations .", "DATE after his release , T CARDINAL saw his family doctor who found extensive bruising to his body . On DATE , he was admitted to hospital where he remained under observation for DATE .", "The Commission considered that the medical evidence was difficult to reconcile with the account given by T CARDINAL of his alleged ill - treatment . The findings of the Commission included the following :", "\" Bearing in mind that TIME elapsed from his release until his medical examination , the statements of the soldiers and some doubt about T CARDINAL ’s reliability , it can not be concluded , solely on T CARDINAL ’s own statements , that he received these injuries at the hands of the army or the police . \"", "There is no evidence of any civil action brought by T CARDINAL or of any army investigation into complaints he apparently made ; the results of a police enquiry are not known .", "T CARDINAL was arrested at his house TIME of CARDINAL DATE and subsequently taken to ORG for interrogation . DATE a detention order was served on him and he was transferred to FAC . T CARDINAL alleged that while at the interrogation centre he was subjected to what the Commission terms \" comparatively trivial beatings \" .", "He was medically examined on arrival at FAC , when entering FAC and on DATE by his family doctor who saw him in prison . The latter CARDINAL examinations revealed that T CARDINAL had suffered a perforation to the right eardrum and some minor bruising . Despite absolute denials on the part of the CARDINAL witnesses from the security forces , the ORG found it proved beyond reasonable doubt that T CARDINAL ’s injuries could not have been caused in any way materially different from that described in his evidence . In the ORG ’s view , it was to be taken as established that the acts complained of occurred at FAC .", "T CARDINAL did not , it seems , institute civil proceedings for damages . On the other hand , he complained through his lawyer against a number of police officers , but no evidence was produced by the respondent Government of any real police investigation .", "Within this group , there are CARDINAL cases ( T CARDINAL , T CARDINAL , T CARDINAL , T CARDINAL , T CARDINAL , T CARDINAL , T CARDINAL and CARDINAL other ) raising allegations of ill - treatment by the army during transport to ORG and by the police during interrogation there . The case of T CARDINAL had already been mentioned in connection with the unidentified centre or centres ( see paragraph CARDINAL above ) .", "The medical reports show that the persons concerned had sustained injuries in varying degrees . No evidence , though , was obtained from the respondent Government . ORG , while therefore feeling it unsafe to make any findings on the basis of the medical reports alone , stated in its short assessment :", "\" Nevertheless , in those cases in which the victims were detained following their interrogation and were medically examined shortly after their committal to detention ( the cases of T CARDINAL , T CARDINAL , T CARDINAL , T CARDINAL , T CARDINAL and T CARDINAL ) , there exists a strong indication that the course of events was similar to that found in the illustrative cases . \"", "T CARDINAL , T CARDINAL and T CARDINAL accepted sums of £ CARDINAL , £ CARDINAL and £ CARDINAL respectively in settlement of civil claims brought . At the time of the ORG ’s report , actions for damages were still pending in the cases of T CARDINAL and T CARDINAL ; a substantial sum was ultimately received by the former person as a victim of the CARDINAL techniques ( see paragraph CARDINAL above ) .", "In the absence of corroborative , including medical , evidence , the Commission did not find it possible to examine further another CARDINAL cases concerning FAC . It merely confirmed that allegations of ill - treatment had been made and that , in some cases , compensation had been paid .", "The ORG considered on a number of grounds that the police officers in command at FAC at the relevant time could not have been ignorant of the acts of ill - treatment found to have been committed . Yet , on their own evidence , these officers took no action to prevent the occurrence or repetition of such ill - treatment .", "Knowledge on the part of the higher authorities of allegations regarding this centre was inferred by the ORG from various facts . Nevertheless , no evidence of police investigations into these allegations was produced to the ORG and , apart from Sir PERSON \" supplemental \" report into CARDINAL ORG cases ( see paragraph CARDINAL above ) , no general enquiry took place . Furthermore , no disciplinary or criminal proceedings seem to have been instituted against any of the police officers who either committed or failed to react against the acts established . No special instructions relating to the proper treatment of persons in custody were issued to the ORG until DATE ( see paragraph CARDINAL below ) . Through their inaction , the authorities in GPE were held by the Commission to have shown indifference towards the treatment of prisoners at FAC in DATE .", "This army camp on the outskirts of GPE , adjacent to FAC , was used as a regional centre for holding and interrogating suspects , CARDINAL of whom passed through it in DATE . It was temporarily closed in DATE and re - opened in DATE as a police holding centre . The arrangements at PERSON for receiving , detaining , interrogating and releasing suspects were essentially the same as at FAC ( see paragraph CARDINAL above ) .", "Of CARDINAL cases involving allegations of ill - treatment at PERSON , the Commission examined in detail as illustrative that of T CARDINAL . It found that this NORP , aged over DATE and arrested in connection with the possession of arms and a radio aerial , had been severely injured on CARDINAL DATE by army personnel during transport to PERSON and following his arrival there . He had been insulted , kicked , beaten and dragged by the hair and his evidence had been corroborated by that of T CARDINAL who had been arrested at the same time . T CARDINAL ’s ill - treatment was not connected with his formal interrogation which was correctly conducted by the Special Branch . Although the army doctor at PERSON treated T CARDINAL for a diabetic condition , the Commission considered the medical examination inadequate since no notice was taken of the injuries which were observed later by other doctors .", "T CARDINAL instituted civil proceedings for damages and the respondent Government indicated to the Commission that his action would certainly be settled . He had also complained immediately to the ORG but , according to the applicant Government , DATE before he was told that no action was going to be taken against the army ; ORG attributed the impossibility of initiating a prosecution to T CARDINAL ’s inability to identify his assailants .", "ORG also considered , from the \" CARDINAL cases \" , the cases of T CARDINAL , T CARDINAL , T CARDINAL , T CARDINAL and T CARDINAL , CARDINAL of which dated from DATE , CARDINAL from DATE and CARDINAL from DATE . All these persons had been released after questioning , except T DATE who had been charged and presumably detained thereafter . They alleged that they had been assaulted by army personnel on arrest and during transport to PERSON ; T CARDINAL also complained of ill - treatment by the Special Branch during interrogation . Each case was submitted by ORG by means of a medical report and also , except for T CARDINAL , the complainant ’s own statement ; no evidence was obtained from the respondent Government . A medical examination , made within TIME of release or detention , revealed injuries to each individual .", "In the ORG ’s view :", "( a ) it was fairly safe to conclude that certain of T CARDINAL ’s and T CARDINAL ’s injuries had been caused as alleged , particularly in the case of T CARDINAL , where the circumstances had been examined in connection with T CARDINAL ’s case ( see paragraph CARDINAL above ) . A strong probability also existed for T CARDINAL whose claim for damages was later settled for £ MONEY ;", "( b ) although injuries had been found on T CARDINAL , it would be difficult to consider the facts established ;", "( c ) the allegations and injuries in the case of T CARDINAL were comparable to those in the Palace Barracks cases ; reference was made to the ORG ’s assessment of some of the \" CARDINAL cases \" relating to that place ( see paragraph CARDINAL above ) .", "In the absence of corroborative , including medical , evidence , the Commission did not find it possible to examine further CARDINAL cases concerning PERSON . It merely confirmed that allegations of ill - treatment had been made and that , in some cases , compensation had been paid .", "PERSON was an army camp in GPE used in DATE for holding and interrogating some of those arrested during Operation Demetrius ( see paragraph CARDINAL above ) . It was under the overall authority of the ORG , the army being responsible for security and the Special Branch conducting the interrogations . On CARDINAL and DATE , CARDINAL persons were brought to PERSON of whom , by DATE , DATE had been removed to a place of detention and the remainder released .", "The applicant Government requested the ORG to make findings on all the CARDINAL cases in respect of which they had filed statements alleging ill - treatment at the camp .", "Prior to the ORG ’s enquiry , conditions at PERSON in DATE had been examined by ORG ( see paragraph CARDINAL above ) and by ORG in the PERSON case . ORG considered that certain exercises which detainees had been made to do \" under some degree of compulsion \" must have caused hardship but were the result of lack of judgment rather than an intention to hurt or degrade ; it accordingly made no findings of deliberate ill - treatment . In the PERSON case , on the other hand , the judge rejected defence evidence , in particular as to the origin of the exercises , and concluded that the treatment of persons held at PERSON was \" deliberate , unlawful and harsh \" ; he awarded the plaintiff £ MONEY , the maximum amount within his jurisdiction .", "The ORG examined , as illustrative , the case of T CARDINAL and found that :", "( a ) he and other persons arrested were made ( in some cases before medical examination ) to do exercises which caused considerable strain and hardship , especially to the elderly and those in poor physical condition ;", "( b ) the exercises consisted partly of sitting on the floor with the legs outstretched and the hands raised high above , or clasped behind , the head , and partly of kneeling on the floor with the forehead touching the ground and the hands clasped behind the back ;", "( c ) it was not possible to ascertain the exact length of time during which , or the degree of compulsion with which , the exercises were enforced ;", "( d ) allegations , concerning both T CARDINAL and others , of specific incidents of violence and of the use of considerable force had not been established ;", "( e ) the camp had been swept out , and beds removed for security reasons , before persons arrested arrived ; for a purpose not sufficiently explained , bedding was provided only for those who had been interrogated .", "None of the \" CARDINAL cases \" concerned PERSON . There is no separate section in the ORG ’s report on the remaining CARDINAL cases relating to that centre but findings on the general conditions there were made within the context of T CARDINAL ’s case .", "CARDINAL cases involving allegations of ill - treatment at miscellaneous places were referred to the Commission by the applicant Government . The allegations included beating and assaults by the army or the police at army posts , police stations , a prison , in the street , at home or during transport at dates falling DATE . CARDINAL of these cases were in connection with interrogation . The Commission examined in detail as illustrative the cases of T CARDINAL , T CARDINAL and T CARDINAL .", "The ORG found that on DATE , without provocation or resistance , this civilian had been severely assaulted and injured in a street in GPE by a corporal effecting his arrest . When it was realised that his arrest had been a mistake , he was discharged with apologies , having been given medical treatment . Neither his evidence nor the medical evidence was disputed and the respondent Government called no witnesses .", "The soldier in question was detained for DATE and then admonished . T CARDINAL ’s claim for damages was settled for £ MONEY .", "The ORG found that , after his arrest on DATE , this civilian had been severely assaulted and injured by a number of soldiers during interrogation at FAC , GPE . Neither the main facts nor medical evidence of physical injuries were disputed , although medical opinion differed concerning mental after - effects . The respondent Government called no witnesses to rebut the charges of physical ill - treatment . Additional allegations of harassment by soldiers after the event were found by the Commission to be neither proved nor disproved .", "T CARDINAL ’s claim for damages was settled for £ MONEY . He also lodged a complaint with the ORG which was still under investigation when the Commission heard evidence on his case ; the respondent Government stated that they did not know the reason for the delay .", "T CARDINAL alleged that he was kicked , punched and hooded by the army at ORG , GPE , on CARDINAL DATE . He was too young to be detained but , after arrest and questioning , he was taken , allegedly for identification purposes , to various army posts .", "A claim by T CARDINAL for damages was settled in the sum of £ CARDINAL . His complaint to the ORG was unsuccessful .", "In the light of its review of the medical evidence and the evidence of the security force witnesses and of T CARDINAL , the Commission concluded that T CARDINAL ’s allegations were not sufficiently established .", "From these cases , the ORG considered CARDINAL on which the Parties had commented . It took the view that the evidence , in the shape of medical reports accompanied in some cases by a statement from the complainant , did not make it possible to establish beyond reasonable doubt the cause of the injuries .", "In the absence of corroborative , including medical , evidence , the Commission did not find it possible to examine further the remaining CARDINAL cases . It merely confirmed that allegations of ill - treatment had been made and that , in some cases , compensation had been paid .", "From DATE , the army rule was that the person arrested and the arresting soldier were to be photographed together . With regard to the practice followed during LOC , ORG noted that a photograph was taken of each person admitted to a regional holding centre and that on entry to PERSON and PERSON , though not to GPE , a medical examination was carried out and its result recorded .", "As from DATE , every individual brought to a holding centre was medically examined on arrival and departure . Medical staff was instructed to submit reports whenever there was evidence of a complaint of ill - treatment . Furthermore , after a certain time , records were kept of the prisoner ’s condition during his progress through interrogation .", "It would appear that at the beginning of the internment operation reliance was simply placed on the normal regulations requiring humane treatment and forbidding the use of violence .", "Following the PERSON report and the Prime Minister ’s statement to ORG ( see paragraph CARDINAL above ) , a directive on interrogation was issued prohibiting the use of coercion and , in particular , of the CARDINAL techniques . In addition , it made mandatory medical examinations , the keeping of comprehensive records and the immediate reporting of any complaints of ill - treatment . In DATE , army instructions and the RUC Force Order CARDINAL/CARDINAL , concerning respectively arrests under LAW and the treatment of prisoners , directed that excessive force should never be used . Shortly after the introduction of direct rule , the GPE Attorney - General gave a ministerial directive on the proper treatment of persons in custody , making it clear that where any form of ill - treatment was reported DATE Prosecutions would prosecute . Further army and ORG instructions of DATE in respect of arrest and interrogation enjoined the proper and humane treatment of prisoners ; they strictly forbade resort to violence , the CARDINAL techniques , threats or insults and concluded with a prohibition similar to LAW . In DATE new instructions with regard to arrests by the army re - emphasised the need for correct behaviour .", "The respondent Government submitted that steps had been taken for the diffusion and enforcement at all levels of these orders and directives . However , both the ORG and the applicant Government considered that there was a lack of satisfactory evidence as to how the regulations were implemented and obeyed in practice .", "Section CARDINAL of LAW ( see paragraph DATE above ) contained provisions designed to exclude as evidence before an ordinary criminal court statements by an accused obtained by torture or inhuman or degrading treatment ; the section did not apply to the extrajudicial procedures or to statements by third parties .", "Under LAW ( GPE ) DATE , an investigation department within the ORG had been set up to report to the Chief Constable on all complaints against the police whatever their source . An official committee of CARDINAL members of ORG , including CARDINAL NORP and CARDINAL NORP , examined DATE the records of complaints kept by the Chief Constable .", "Where a serious criminal offence was disclosed , reports were submitted to the Attorney - General for GPE or , after the introduction of direct rule , to ORG in GPE , a newly - created office , for decision whether to prosecute . On DATE , the GPE Attorney - General instructed ORG to direct the ORG to investigate and report on any circumstances which might involve the commission of a criminal offence by a member of the security forces . From DATE , all completed investigations of both police officers and army personnel had to be sent to ORG .", "In DATE , new disciplinary regulations brought the arrangements for the investigation of complaints against the ORG into line with the arrangements existing elsewhere in GPE . In DATE , a fresh unit was established within the ORG under the direct control of the Deputy Chief Constable to be responsible for the investigation of complaints .", "ORG in its report of DATE ( see paragraph CARDINAL above ) , while expressing itself satisfied that full investigations were made , nevertheless found a widespread belief in GPE that complaints against members of the security forces were not taken seriously . It therefore recommended the setting up of an independent means of investigating complaints .", "The Police ( GPE ) Order DATE established a completely independent ORG for GPE with supervisory functions in the matter .", "The policy of the General Officer Commanding , as stated in the evidence before the ORG , was that every complaint should be investigated . An investigator was automatically appointed as soon as an incident was reported , even before a formal complaint had been made . As with the ORG , notice was also taken of allegations in the press or from third parties .", "It would seem that in the early stages of the emergency complaints against soldiers were handled by the army authorities themselves ; later on , CARDINAL ORG officers were appointed to oversee army enquiries and subsequently investigations were actually carried out by the ORG , at least where there appeared to be a serious criminal offence . In addition , complainants were encouraged to channel their complaints through the police . On DATE a joint army / ORG investigation team was created .", "Complaints against the army were referred to an outside authority - ORG as from DATE for directions whether to prosecute .", "DATE and DATE , CARDINAL complaints against the police were made , CARDINAL alleging ill - treatment or assault ; the CARDINAL prosecutions for assault resulted in CARDINAL convictions leading to fines and , in CARDINAL case , a conditional discharge .", "As regards the army , from DATE to CARDINAL DATE , CARDINAL complaints in respect of assaults or shootings had been received and CARDINAL cases of alleged assault were submitted to ORG . By DATE , directions to prosecute had been given in CARDINAL out of the CARDINAL cases then dealt with .", "Overall , DATE and DATE , CARDINAL members of the security forces were prosecuted for assault at the direction of ORG and CARDINAL were convicted .", "Soon after complaints relating to the arrests carried out on CARDINAL DATE became known , CARDINAL soldiers , including CARDINAL who had left GPE , were interviewed in order to determine their role in the arrest operation . The ORG ’s report also mentions a few other specific examples of members of the security forces being investigated or disciplined , but these examples are not connected with the cases submitted by the applicant Government . No information of any investigation into the submitted cases was vouchsafed to the ORG by the respondent Government except in relation to the illustrative cases . Even as regards the illustrative cases , the ORG had before it just CARDINAL item of direct evidence - the LOC reports , filed by the applicant Government - and it noted that in none of them had the authorities carried out a thorough investigation of the allegations of ill - treatment ; evidence as to disciplinary action or prosecution was furnished to the ORG in CARDINAL case alone , that of T CARDINAL ( see paragraph CARDINAL above ) .", "Procedures to obtain compensation were available before the domestic courts to all persons who considered themselves to have been ill - treated by the security forces . There is no suggestion that the domestic courts were or are anything other than independent , fair and impartial . The respondent Government have emphasised the difference between domestic civil and criminal law . Under the former the authorities are liable for any wrongful act , established on the balance of probabilities , committed in the course of their duty by soldiers or policemen , whether individually identified or not . The criminal law , in contrast , requires proof beyond reasonable doubt of the guilt of an identified individual . Like any plaintiff in a civil action , a plaintiff alleging ill - treatment by the security forces was entitled to obtain disclosure of relevant documents , for example medical reports , in the possession of the defendant authorities .", "DATE and DATE , compensation totalling £ MONEY had been paid in settlement of CARDINAL civil claims for wrongful arrest , false imprisonment , assault and battery , leaving CARDINAL actions still outstanding . At the time of the ORG ’s report , compensation , ranging from MONEY , had been paid in settlement of CARDINAL of the CARDINAL cases submitted by the applicant Government . In the only case of alleged physical ill - treatment which seems to have been fought , namely the case of PERSON ( see paragraph CARDINAL above ) , the judge disbelieved the evidence of the security forces ." ]

[ "3" ]

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[ "14", "5" ]

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[ "ORG Born in DATE , Mr PERSON is a NORP citizen who lives in GPE . At the material time he was a lieutenant - colonel in the NORP army .", "ORG On DATE he was arrested and held in pre - trial detention on a charge of founding and leading a terrorist organisation , which is an offence under LAW ; he was suspected of being one of the founders and leaders of the \" FP CARDINAL de Abril \" ( Popular Forces DATE ) , a group that had claimed responsibility for several bomb outrages , armed attacks and murders .", "ORG On DATE the judge of ORG ( tribunal de instrução criminal ) to whom the case had been assigned closed the adversarial investigation and sent the file to the public prosecutor ’s office .", "On DATE the prosecutor delivered his charges ( acusação ) . He accused the applicant and several of his co- defendants of having drawn up a comprehensive plan under which , by means of the \" FP CARDINAL de Abril \" , they would seize power by force and overthrow the ORG ’s institutions . He emphasised that Mr PERSON was one of the instigators of the scheme .", "ORG In accordance with LAW no . CARDINAL of DATE on the administration of justice , section CARDINAL of Legislative Decree no . CARDINAL of DATE and LAW ( see paragraph CARDINAL below ) , the file was sent , together with the prosecution ’s submissions , to ORG ( tribunal criminal ) so that the judge responsible for the case , Mr PERSON , could issue the despacho de pronúncia or de não pronúncia .", "ORG On DATE Mr PERSON issued a despacho de pronúncia . After noting that there had been no irregularities during the judicial investigation or any other impediment to a trial of the merits , he rejected the prosecution ’s charges in respect of CARDINAL of the co - defendants on the ground that the evidence gathered was not sufficient to enable a reliable assessment to be made of the probability of guilt ( \" a prova indiciária recolhida ... é insuficiente para ... permitir a formulação de um sério juizo de probabilidade sobre a sua culpabilidade \" ) . On the other hand , he accepted the charges relating to Mr PERSON and CARDINAL other defendants and decided to keep all but CARDINAL of them in pre - trial detention .", "The applicant did not appeal against the despacho under LAW procedure ( see paragraph CARDINAL below ) .", "ORG The trial began on DATE before ORG of ORG , which was composed of CARDINAL judges and was presided over by PERSON . The proceedings took up CARDINAL sittings of the court .", "ORG At the hearing on DATE the applicant lodged an appeal with ORG challenging the compatibility of the provisions cited earlier ( see paragraph CARDINAL above ) which empowered one and the same judge both to issue the despacho de pronúncia and to try the case with Article CARDINAL para . CARDINAL of LAW and Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .", "He argued that in making such an order , the judge formed a view of an accused ’s guilt in advance that was likely to influence him when giving judgment on the merits .", "On DATE , ORG held the appeal to be admissible and decided to refer it to the higher court together with any appeal against the judgment it would itself be delivering .", "ORG On DATE ORG held that the applicant was a leading member of the \" FP CARDINAL de Abril \" but not one of their founders and sentenced him to CARDINAL years’ military imprisonment ( presídio militar ) , of which DATE , DATE and DATE were immediately remitted under an amnesty . It acquitted QUANTITY of his co - defendants and sentenced the others and Mr PERSON jointly and severally to pay the ORG MONEY escudos .", "ORG On DATE ORG ( tribunal de relação ) dismissed appeals by the prosecution and CARDINAL of the defendants , including Mr PERSON .", "Unlike ORG , it held that the applicant was also one of the founders of the \" FP CARDINAL de Abril \" . It consequently increased the sentence to CARDINAL years’ military imprisonment , DATE and DATE of which were immediately remitted under the amnesty . The court upheld the sum to be paid .", "ORG As regards the complaint based on LAW CARDINAL ( article CARDINAL ) of the Convention ( see paragraph CARDINAL above ) , the court pointed out that the drafting history showed that the purpose of section CARDINAL of the aforementioned Law no . CARDINAL was precisely to ensure that investigating judges did not give rulings on the offences into which they had to inquire ; that was why the legislature had vested in the trial judge and not the investigating judge the power to issue the despacho de pronúncia , which entailed assessing and classifying the offences charged .", "ORG An appeal by Mr PERSON to ORG ( Supremo Tribunal de Justiça ) was dismissed on DATE . Referring to its case - law , the court held that the provisions complained of by the applicant were not incompatible with Article CARDINAL para . CARDINAL of the LAW ; a judge issuing a despacho de pronúncia was not bound by the view taken at that stage of the proceedings and had complete freedom when giving judgment on the merits , so that his impartiality was in no way jeopardised .", "On the other hand the court held that the applicant was only a leader of the \" FP CARDINAL de Abril \" and accordingly reduced the sentence to DATE imprisonment .", "ORG Finally , the applicant applied to ORG constitucional ) . Reiterating the submissions he had made in the other courts , he argued in particular that the despacho de pronúncia was the key decision in the prosecution . The fact that it was taken by a judge who subsequently sat on the trial court violated Article CARDINAL para . CARDINAL of the LAW , which established an absolute separation between judicial investigation , prosecution and trial ; it also , he submitted , undermined the court ’s impartiality , as the judge in question would be prejudiced against the defendant when he came to consider the merits .", "ORG In its judgment of CARDINAL DATE the ORG emphasised the need to distinguish between the indictment , which was the responsibility of the public prosecutor ’s office , and the despacho de pronúncia . The latter was designed solely to verify the probability of guilt in order to avoid a trial where there was no prima facie evidence . It was thus a decision on the viability of the indictment and did not entail any prejudice on the part of the judge when the merits were being considered . It consequently served as a filter and a safeguard . Even if his legal classification of the facts was different , a judge did not act as a prosecutor . In the instant case PERSON could not be accused of partiality merely because he had issued the despacho de pronúncia . It would have been different if in his decision he had gone beyond the scope of the prosecution ’s charges and had made substantial alterations to them . In that case , which was not the one before it , the distinction between the indictment and the despacho de pronúncia would have been lost as the judge would have encroached on the prerogatives of the public prosecutor .", "ORG did , however , allow the appeal on another ground , not adduced before ORG ( see paragraphs CARDINAL below ) , which related to a lack of reasons in the judgment at first instance . It accordingly remitted the case to ORG for the appropriate steps to be taken .", "ORG On DATE the prosecution sought clarification of certain passages in the judgment and applied for rectification of clerical errors in it . On DATE ORG ordered the rectifications , allowed CARDINAL item in the application for clarification and provided the particulars sought .", "ORG On its rehearing of the case on CARDINAL DATE ORG quashed ORG judgment of CARDINAL DATE and remitted the case to that court for a fresh assessment of the facts .", "The applicant was provisionally released that DATE .", "ORG On DATE ORG delivered a new judgment ; the prosecution and several defendants , including the applicant , appealed against it on points of law to ORG .", "On DATE ORG allowed the appeals in part and varied the impugned decision accordingly .", "Mr PERSON and CARDINAL of the co - defendants appealed to ORG against ORG judgment . The outcome of the proceedings is still awaited .", "ORG Under LAW para . CARDINAL of the LAW ,", "\" Criminal proceedings shall be accusatorial , the trial and investigative measures laid down by law being governed by the adversarial principle . \"", "ORG Under LAW ,", "\" CARDINAL . ORG Anyone promoting or founding a terrorist group , organisation or association shall be punishable by DATE imprisonment .", "ORG ‘ A terrorist group , organisation or association’ shall be understood to include any group of CARDINAL or more persons , who , acting in concert , set out to undermine national integrity and independence or prevent , change or impair the functioning of ORG institutions as established by the LAW ; or to force the authorities to do something , refrain from doing something or tolerate something being done ; or to intimidate certain persons or groups or the entire population by committing offences", "...", "( e ) ORG which entail the use of bombs , grenades , firearms , explosive substances or devices , incendiary material of any kind or parcel or letter bombs .", "...", "ORG Where [ the members of ] a group , organisation or association ... are found in possession of CARDINAL of the items mentioned in sub - paragraph ( e ) of paragraph CARDINAL with a view to achieving its criminal ends , the sentence within the minimum and maximum limits shall be increased by CARDINAL . \"", "ORG The relevant provisions of LAW in force at the time - a new code took effect on DATE - were the following :", "\" Where the judicial investigation discloses prima facie evidence of the commission of a punishable offence , of the identity of the person who committed it and of his liability , the public prosecutor ’s office , if it has the standing ( legitimidade ) to do so , shall deliver its charges . \"", "\" Where the prosecution is brought by the public prosecutor ’s office or , as the case may be , by the assistente , the file shall immediately be submitted to the judge in order that he may issue his despacho de pronúncia or de não pronúncia within DATE . \"", "\" The despacho de pronúncia shall contain", "ORG the name , occupation and address , if known , of the defendants or the necessary information to identify them ;", "ORG an exact description of the offences which they are considered to have committed and the capacity in which they acted ;", "ORG any special or general aggravating or extenuating circumstances ;", "ORG an indication of the statute creating the offence and providing for penalties ;", "ORG any decision relating to the accused ’s provisional release which , in accordance with the law , prolongs or alters the previously existing situation ;", "ORG the information prescribed in LAW , CARDINAL and CARDINAL , where necessary , and the order to communicate information concerning the accused to the criminal records office ;", "ORG the date and the judge ’s signature .", "... \"", "\" The public prosecutor ’s office , a private prosecutor and the accused may appeal against a despacho de pronúncia . The public prosecutor ’s office and a private prosecutor may appeal against a despacho de não pronúncia ... \"", "Section CARDINAL of Law no . CARDINAL of DATE on the administration of justice provides :", "\" The Criminal Court shall be competent for the pronúncia , the trial and the subsequent phases in respect of criminal cases , subject to sections DATE , CARDINAL and DATE . \"", "LAW Legislative Decree No . CARDINAL/CARDINAL of DATE implementing the aforementioned PERSON provides :", "\" The judges of the Criminal Court shall be competent for the pronúncia or its equivalent , the trial and the subsequent phases in respect of cases to be tried under the ‘ de querela’ procedure or which are reserved to the court sitting as a bench . \"" ]

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[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE . He was detained in a penal colony in GPE , GPE , and he is currently detained in GPE in connection with another criminal case pending against him .", "NORP Before his arrest in DATE the applicant was a businessmen and CARDINAL of the richest persons in GPE . Thus , he was a board member and the major shareholder of GPE , a large oil company ( hereinafter “ the company ” , liquidated in DATE ) . He also controlled several other mining , industrial and financial companies affiliated with ORG hereinafter referred to as “ the GPE group ” ) . Most of those companies were created as a result of the privatisation of ORG - controlled enterprises in DATE .", "In DATE the GPE group was pursuing a number of large - scale business projects . Thus , PERSON was engaged in merger talks with GPE , another large NORP oil company , and with the GPE - based company ORG . PERSON was also planning to build a pipeline to LOC in order to export natural gas to the western part of LOC . Lastly , PERSON and the ORG company ORG were involved in a public struggle for control of certain oilfields .", "At the same time the applicant became involved in politics . At DATE he announced that he would allocate significant funds to support the opposition parties GPE and ORG ( PERSON ) He also made certain public declarations criticising alleged anti - democratic trends in NORP internal policy . The applicant funded a non - profit NGO , “ Open GPE Foundation ” in order to promote certain political values in NORP society .", "One of the companies affiliated with ORG , a large mining enterprise , producing apatite concentrate . PERSON controlled a CARDINAL % shareholding in ORG .", "Apatit was privatised in DATE . In DATE the authorities made several attempts to return ORG to ORG control , claiming that the money due under the privatisation contract had not been paid by the buyers . In DATE Mr GPE , CARDINAL of the top managers in the GPE group and the applicant ’s personal friend , proposed a friendly settlement of the dispute on behalf of the buyers . The ORG privatisation authority having accepted that offer , on DATE a friendly settlement was reached . It was approved by a commercial court .", "NORP In DATE the governors of GPE , GPE and LOC wrote a letter to the then ORG of GPE , PERSON ORG . In that letter they complained that ORG was abusing its dominant position on the apatite concentrate market and boosting prices of phosphate fertilisers , which , in turn , increased food prices . They also alleged that ORG was using various schemes to evade or minimise taxes . They urged General Prosecutor PERSON to return PERSON to ORG control and to apply anti - trust measures in order to make ORG reduce prices .", "NORP In DATE the governor of GPE wrote to the then President of GPE , PERSON . He drew the President ’s attention to the friendly settlement in respect of the ORG shares and claimed that its terms were contrary to the interests of the ORG , since the amount received by the ORG in pursuance to that settlement was significantly lower than the market price of the shares .", "On DATE the then President PERSON issued Directive No . NORP requiring reports to be obtained in relation to the acquisition of the ORG shares . In particular , he inquired whether there had been “ violations of the existing legislation committed during the sale of shares in ORG plc ” and whether the ORG had suffered any loss as a consequence of the friendly settlement that had been approved by ORG of GPE in DATE .", "A wide ranging investigation then took place involving the Prime Minister , ORG , ORG , ORG , ORG , and ORG . In DATE ORG wrote to the President that the privatisation of ORG and its business activities had been suspicious , and that further inquiry was needed .", "On DATE ORG wrote to the President informing him that ORG ( ORG ) had concluded that there was no need to take further action . The inquiry had not established that ORG had been abusing its position on the market or that the amount of the friendly settlement reached with the ORG privatisation agency had been unfair . The terms of the friendly settlement had been approved by the Prime Minister , PERSON . PERSON ’s tax payments had been constantly monitored by ORG ; although ORG and its affiliates had been subjected to various penalties and financial sanctions in the past , and a new audit was underway , ORG did not see any reason to start criminal proceedings in this respect .", "Nonetheless , on DATE a criminal case was opened against ORG ; the situation concerning the acquisition of the ORG shares later formed CARDINAL of the main charges against the applicant . In DATE the scope of the investigation was broadened : the investigative team discovered evidence of tax evasion and business fraud in the business activities of the companies affiliated with GPE .", "On DATE Mr PERSON was arrested in connection with the PERSON case .", "On DATE the applicant was summoned to ORG and interviewed as a witness in the PERSON case .", "In DATE the prosecution carried out several searches of the premises of GPE and the offices of the applicant ’s lawyer , PERSON , and also searched the headquarters of the political party GPE . Further , several leading executives of ORG and affiliated companies were arrested ; several others left GPE . Some of those who had left then settled in GPE . The prosecution authorities sought their extradition to GPE , but the NORP courts refused on the grounds that their prosecution was politically motivated and they would not receive a fair trial in GPE . The applicant produced copies of the decisions of the NORP courts in those extradition proceedings .", "At the same time senior officials in ORG publicly declared that charges might be brought against other senior managers of ORG and affiliated companies . The applicant did not leave the country and continued his activities , including business trips in GPE and abroad .", "On DATE , whilst the applicant was away from GPE on a business trip to eastern GPE , an investigator summoned him to appear in GPE as a witness on DATE at TIME . The summons was delivered to the applicant ’s office on DATE at TIME by investigators Mr F. and Mr Sh . The applicant ’s staff told them that the applicant was away from GPE until DATE . Yukos staff also sent ORG a telegram explaining the reasons for the applicant ’s absence from GPE .", "On DATE Mr F. and Mr Sh . wrote a report to the leading investigator , Mr PERSON , in which they informed Mr PERSON about the applicant ’s absence . On DATE , the applicant having missed the appointment , the investigator PERSON ordered his enforced attendance for questioning and instructed the police to implement that order .", "NORP In TIME of DATE a group of armed law - enforcement officers approached the applicant ’s aeroplane on an airstrip in GPE , apprehended him , and flew him to GPE .", "The applicant ’s lawyer complained about the enforced attendance order to ORG of GPE . He asserted that the applicant had had a good reason for missing the interview : he had been out of town on a business trip and had not personally received the summons . As a witness he had been free to travel . On DATE the court dismissed the complaint . The court stated that it had been impossible to hand over the summons of CARDINAL DATE directly into the applicant ’s hands , so the applicant had been notified about the questioning through the GPE headquarters . The court concluded that the decision of CARDINAL DATE to bring the applicant to GPE for questioning had been issued in compliance with LAW and LAW .", "Once in GPE the applicant was brought before the investigator at CARDINAL a.m. on DATE . The investigator explained to the applicant why he had been apprehended and interviewed him as a witness in connection with the applicant ’s personal income tax payments for DATE . Thereafter the applicant was informed that he was being charged in connection with a number of crimes , namely the fraudulent acquisition of the ORG shares in DATE , misappropriation of the ORG proceeds , misappropriation of ORG assets and corporate tax evasion and personal tax evasion schemes allegedly used by GPE and the applicant personally in DATE . The investigator drew up a charge sheet describing the essence of the charges against the applicant . It was CARDINAL pages long and was read out to the applicant at TIME The applicant was then interviewed as a defendant in that case but refused to testify since one of his lawyers was absent . Following the interview , at TIME on DATE the investigator requested ORG to detain the applicant pending investigation . The request was CARDINAL pages long and , according to the applicant , had been prepared in advance .", "The court heard this request at CARDINAL p.m. The applicant was assisted by CARDINAL of his lawyers , PERSON . The prosecution requested the proceedings to be held in camera , referring to the materials of the case file which should not be disclosed . The defence requested a public hearing , but the court , on an application by the prosecutor , decided to hold the hearing in camera , referring to a need to guarantee the defendant ’s rights . The court heard the public prosecutor , the applicant and the applicant ’s counsel and examined certain documents from the case file produced by the prosecution . The defence submitted that the applicant had attended promptly for questioning when he had first been requested to do so , in DATE , and that he had been unable to attend the second questioning for legitimate reasons , as he had had no personal knowledge of the summons . The defence pleaded in favour of the applicant ’s release on bail . However , as the Government indicated , the defence did not indicate the amount of the proposed bail .", "At the end of the hearing , which lasted TIME , the court issued a detention order , referring to Articles CARDINAL of LAW ( see the “ Relevant domestic law ” part below ) . The court summarised the charges against the applicant , the arguments put forward by the parties and the procedural history of the case . The main reasons for the detention were as follows :", "“ [ The applicant ] is accused of serious crimes punishable by over DATE imprisonment , committed in concert with others and over a long period . The circumstances of the crimes , [ the applicant ’s ] personality , and his position as head of GPE suggest that , if he remained at large , the applicant may influence witnesses and other participants in the trial , hide or destroy evidence ... , or commit further crimes .", "[ The applicant ’s ] accomplices have fled from the prosecution . [ The applicant ] might also flee because he has a travel passport and money in foreign banks ” .", "The court referred to the applicant ’s family situation , his residence in GPE and his health condition , and found that there was no reason for choosing a milder measure of restraint . As to the applicant ’s assertion that the prosecution had produced no evidence of his implication in the impugned crimes , the court noted as follows :", "“ This argument ... shall not be examined on the merits , since the criminal case is still at the stage of the pre - trial investigation , and the court can not express its opinion as to the guilt [ of the applicant ] , proof of his guilt or the correctness of the legal qualification of PERSON acts ” .", "The court order did not establish the duration of the applicant ’s pre - trial detention .", "On DATE the applicant resigned from his position as Chief Executive of GPE .", "On DATE the applicant ’s lawyer handed over the applicant ’s foreign travel passports to the prosecution .", "On DATE the applicant ’s lawyers appealed against the detention order . They asserted , among other things , that the reasons for the detention were insufficient , that the hearing in camera had been unlawful and that the applicant had not committed any criminal offences .", "On DATE ORG upheld the detention order . The hearing took place in camera , without the applicant but in the presence of his lawyers . The city court expanded on the district court ’s reasons :", "“ [ The applicant ] owns a large stake in ORG , a company registered in GPE ... , has financial influence , [ and ] enjoys prestige with public bodies and companies . Employees of companies controlled by [ the applicant ] depend on him financially and otherwise .... ”", "ORG also found that the materials of the case file contained sufficient evidence to suspect the applicant of having committed the impugned offences . It established , further , that the domestic law allowed the detention hearing to be held in camera , in order to keep the materials of the pre - trial investigation secret and protect the interests of the defendant . ORG also failed to fix the duration of the period of detention .", "On DATE the applicant was charged with a number of additional crimes , including abuse of trust , misappropriation of property , tax evasion , large - scale fraud and forgery of official documents .", "On DATE Ms Artyukhova , CARDINAL of the applicant ’s lawyers , visited him in prison . As she was leaving , guards searched her and seized a handwritten note with ideas about the case she had prepared TIME and a typed draft of the legal position in Mr PERSON ’s case .", "According to the Government , Ms Artyukhova had received a note from the applicant entitled “ Written directions to the defence ” . These “ directions ” contained the following instructions ( it appears that the Government quoted from this note ) : “ to ensure that Mr GPE gives negative or vague answers about the participation in the RTT , to speak to the witnesses about their testimony of CARDINAL DATE , to check the testimonies of the defence witnesses to ensure that they do not contain any indication as to intent ” . It also contained directions as to investment activities and tax payments . The prison officials also seized from Ms PERSON a CARDINAL-page typewritten memo entitled “ Preliminary criminal - law analysis of the charges in the case of PERSON Lebedev P.P. ” .", "The Government produced a report dated CARDINAL DATE by a prison officer who had participated in the search . According to the report , the search had been ordered by inspector B. In the report inspector B. indicated that he had ordered the search because he had sufficient grounds to believe that PERSON was carrying prohibited goods . The Government also produced a report by inspector PERSON , who informed his superiors that he saw that the applicant and PERSON “ exchanged a notebook with some notes , and also made notes in it ” during their meeting .", "According to the applicant , the handwritten note was drafted by PERSON It stated as follows :", "“ - PERSON [ the applicant ’s cell - mate ] : expects a second visit by the lawyer PERSON ;", "- to work on the question of sanctions concerning violation of rules on keeping in custody GPE ( active < - > passive forms of behaviour ( ex . hunger strike ) ;", "- to work on the question of receiving money for consultancy fees on the purchase of shares by various companies involved in investment activities ;", "- expert analysis of signatures , to work on this question because the documents submitted are not the originals but photocopies ( expert analysis of photocopies of signatures of PERSON ) ;", "- to work through questions with witnesses PERSON , PERSON , PERSON ( questioning on CARDINAL.CARDINAL.CARDINAL - according to circumstances ) ;", "- concerning participation in RTT GPE must give negative ( indecisive ) answer ;", "- prerogatives of executives of ORG and PERSON - to show the scope of their prerogatives , how promotions are made ;", "- check witnesses of the defence ( former managers and administration of ORG , PERSON position CARDINAL , the essence of testimonies", "CARDINAL ) NORP absence of intention ;", "CARDINAL ) NORP absence of instructions , advise on methods of investment and tax activity ;", "It is necessary to work on testimonies of witnesses PERSON , GPE , PERSON , tax people ;", "Other - to conduct , by Western audit and law firms , audit of personal fortune , in the following context ‘ I have right to receive income in accordance with decision of meeting of shareholders ‘ counsel . ... in the case ... ” .", "On DATE the applicant ’s lawyers were informed that the pre - trial investigation had finished . The defence was given access to the materials of the investigation file for examination and preparation for the trial .", "The Government produced a copy of a report by investigator Mr. K. to Mr B. , the Head of ORG of ORG , concerning the episode of DATE . Mr PERSON informed Mr B. about the content of the note seized from Ms PERSON According to Mr PERSON , that note contained the applicant ’s instructions to the defence team as to the tactics of the defence and , in particular , was aimed at ensuring coordination with Mr GPE , the applicant ’s co - accused . According to Mr PERSON , the applicant “ dictated ” the note to PERSON . Mr PERSON concluded that this note had evidentiary value in the applicant ’s criminal case .", "On DATE the defence made an application to ORG for the measure of restraint to be changed , arguing that as the pre - trial investigation had finished and all the witnesses had been questioned there was no longer even a theoretical possibility that the applicant might interfere with the proceedings . They also argued that there was no reason to believe that the applicant would resume his alleged criminal activities or that he would flee jurisdiction . Sureties and bail were also offered . On DATE the prosecution dismissed the application for release .", "On DATE the prosecution requested ORG to extend the applicant ’s detention until DATE . The prosecution referred to the “ note seized from CARDINAL of the lawyers [ of the applicant ] containing instructions from FAC to exert pressure on witnesses for the prosecution ” . The prosecutor was apparently referring to the note seized from PERSON . The prosecution ’s application for an extension was lengthy and carefully reasoned ; it ran to CARDINAL pages .", "In TIME of DATE the applicant ’s lawyers learned that the court would hear the request at TIME on DATE , DATE . The lawyers did not receive a copy of the request before the hearing .", "The hearing began at CARDINAL p.m. on DATE . The defence sought an adjournment of the hearing to DATE , but the court instead allowed the lawyers a TIME break to prepare their pleadings . During TIME the lawyers stayed in the courtroom and took instructions from the encaged applicant in the presence of guards and court staff .", "The court decided to hold the hearing in camera . The applicant ’s lawyers objected , referring , in particular , to the fact that ORG had previously publicly stated that there was nothing in the applicant ’s case that would lead to the necessity for any hearings in camera . The court refused the applicant ’s request that the hearing be in public , without giving any reasons .", "In the course of the hearing the defence produced documents in support of their view that the applicant was no longer a board member of GPE , that he had no shares in GPE or other companies which , according to the prosecution , had been involved in the impugned scam operations , and that before his arrest he had permanently resided in LOC . On that basis , the defence asserted that the applicant would not abscond . However , the court refused to examine the documents provided by the defence .", "In TIME of DATE the hearing was adjourned . It was resumed on DATE . On DATE the defence obtained a copy of the prosecution ’s request for an extension of the detention . At the same time the prosecution filed with the court new pieces of evidence , including the note seized from Ms Artyukhova . The court admitted Ms A ’s note in evidence . The defence sought an adjournment for DATE to examine those documents . They also contested their admissibility , claiming that the documents had been obtained in breach of the privilege pertaining to lawyer - client communications . They claimed , further , that they had not enough information about the origin of this document . However , the court ruled that a TIME adjournment would suffice .", "DATE the applicant ’s representative , PERSON , requested the court to adjourn the hearing for one day in order to allow the defence to study new materials submitted by the prosecution . The court ordered a CARDINAL - and - a - half hour break but refused to adjourn the hearing to DATE .", "On DATE the court extended the detention until DATE , essentially for the same reasons it had relied on before . ORG examined the applicant ’s family situation , and the “ personal sureties ” proposed by several individuals who guaranteed the applicant ’s appearance at the trial . However , those elements did not persuade ORG that the applicant could be released . ORG referred to the fact that the applicant ’s presumed accomplices had fled from trial , and that the applicant controlled business structures which were implicated in the alleged crimes and could therefore use them to continue his criminal activities or influence witnesses who worked in those structures . The court noted that the applicant had a foreign passport and personally owned shares in a foreign company and through a trust company . In addition , the court stated that the applicant had tried to intimidate witnesses . It did not refer directly to Ms A ’s note in its analysis , although it mentioned it when summarising the submissions by the prosecution . The court also had regard to the necessity of carrying out further investigative actions . It concluded that , if released , the applicant might flee from justice , influence witnesses and continue his activities .", "On DATE the applicant ’s lawyers appealed against this decision . The appeal was received by ORG from the first - instance court on DATE .", "On DATE ORG upheld it . The hearing in ORG took place in public in the presence of the applicant ’s lawyers . The applicant was absent from that hearing . From that moment on the detention hearings in the applicant ’s case were held in public . In the decision of DATE ORG held , inter alia , that the lower court had had evidence that the applicant had tried to exert pressure on witnesses .", "On an unspecified date the prosecution requested ORG to extend the applicant ’s detention again because the applicant needed more time to study the prosecution files . In support of his request the prosecutor mentioned in his submissions the “ seizure from one of the defendants of the written notes containing the instruction of GPE to put pressure on the witnesses for the prosecution ” .", "On DATE the court held a hearing . The defence lawyers complained that they had been unable to see the applicant in private to take instructions as the applicant had only been informed DATE of the hearing and had had insufficient time to review the new case materials submitted by the prosecutor . They themselves had only been informed of the hearing on DATE . They asked for an adjournment of DATE . They also submitted to the court an expert handwriting analysis report showing that the document seized from ORG had been written by her and not by the applicant . The defence claimed , further , that the applicant would not abscond . In support of that claim , the defence referred to one of the co - accused , Mr PERSON , who had signed a written undertaking not to leave his city of residence and had not absconded . The defence indicated that the applicant ’s passports had been handed over to the prosecution and that his family were once again offering to put up bail for him . In the opinion of the defence it was absurd to suggest that the applicant would continue with criminal activity , since he was not charged with crimes of violence but with economic crimes : it would be impossible for him to commit such crimes if bailed on condition of house arrest . The prosecution objected to the applicant being granted bail on the condition of house arrest .", "After having examined the materials of the case file and having heard the parties , the court extended the detention until DATE essentially for the same reasons as before . In support of its conclusions , the court referred to the fact that some of the applicant ’s co - defendants had fled from GPE , that the applicant had several foreign passports , that he owned a considerable amount of shares in a foreign company , and that he had tried to exert pressure on the prosecution witnesses . The court also referred to the fact that some of the witnesses were dependent on the applicant . In the detention order the court did not , however , refer to the risk that , if released , the applicant would engage in criminal activities . ORG also held that the detention could not be replaced by personal sureties because the court was not entitled to take such a decision under LAW of the CCrP.", "The Government maintained that the applicant ’s appeals against the detention order of DATE were received by ORG on DATE ( appeal by Mr GPE ) and DATE ( appeal by PERSON ) . On DATE the materials of the case were forwarded by ORG to ORG . The parties were informed of the date and venue of the appeal court hearing . On DATE ORG upheld the decision of DATE .", "On DATE the prosecution submitted the case to ORG for trial .", "On DATE the ORG decided to hold a preliminary hearing on QUANTITY May and ordered that the applicant should stay in prison . The decision was taken in camera and without the attendance of either the applicant or his lawyers or the prosecution . No reasons for the continued detention of the applicant were given and the period of detention was not specified .", "On DATE one of the applicant ’s lawyers , PERSON , lodged an appeal against the decision of CARDINAL DATE . She complained , inter alia , that the detention hearing had been held without the applicant or his lawyer , and that the decision extending the detention did not contain any reasons . After having obtained a reply from the prosecution , ORG forwarded the appeal to ORG . The applicant ’s appeal against the decision of DATE was dismissed by ORG on DATE . It appears that neither the applicant nor his lawyers were present at the hearing of DATE . According to the Government , the summons was sent to CARDINAL lawyers representing the applicant ; however , the summons was not sent to PERSON , as her power of attorney did not entitle her to represent the applicant before the appeal court . The Government did not produce copies of the summons . ORG found that the decision of DATE had been taken by a competent court in compliance with the relevant legislation . It did not specify the reasons for extending the applicant ’s detention .", "Preliminary hearings in the trial court took place on CARDINAL May and DATE . On the latter date the court decided to open the trial on DATE and to join the cases of the applicant and Mr GPE . It also ordered that the applicant should stay in prison pending trial . No reason for that decision was given and the court did not specify the period of detention . PERSON appealed against that decision , claiming , inter alia , that the decision of DATE to detain the applicant had not been reasoned . On DATE the detention order of DATE was upheld by ORG . ORG in its decision indicated that it had reviewed the materials of the case file , examined the submissions of the parties , and concluded that the detention order by the first - instance had not violated the criminal procedure law . ORG also indicated that , taking into consideration the materials available in the case file , the first - instance court had not found any grounds to reverse or modify the measure of restraint in the form of detention pending trial . According to the applicant PERSON was unable to participate in the hearing on medical grounds . However , the applicant , several of his lawyers and the lawyers representing PERSON PERSON were present at that hearing .", "On DATE , when the trial started , the applicant ’s lawyer requested the trial court to release the applicant because he was detained unlawfully . The court dismissed that request . In its ruling the court established that during the investigation the detention had been ordered and extended by ORG . ORG declared itself incompetent to reassess those detention orders . ORG further noted that on DATE , following receipt of the case file from the prosecution , it had maintained the measure of restraint imposed earlier . That decision was later confirmed on DATE . Those decisions were not quashed , and only an appeal court could examine the lawfulness of previously imposed detention orders . The court concluded that it did not detect any “ breaches of the existing legislation that would prevent the applicant ’s detention ” .", "PERSON appealed against that ruling , but on DATE ORG upheld both the above decision and the earlier decision of the same court of DATE ( cf . above ) .", "On an unspecified date the prosecution requested the court to extend the applicant ’s detention because the trial was continuing .", "On DATE ORG held a public hearing , in the presence of the applicant and his lawyers . During the hearing the applicant ’s lawyers asked the court to consider alternative measures of restraint . Having examined the parties’ submissions ORG extended the applicant ’s detention until DATE , essentially for the same reasons that ORG had given earlier , at the pre - trial stage ( without , however , mentioning the applicant ’s property abroad ) . The detention order indicated that there was a risk that the applicant would try to put pressure on witnesses , and that the detention was the only appropriate option .", "On DATE the applicant appealed against the extension order . The appeal was rejected by ORG on DATE .", "On DATE ORG extended the applicant ’s detention until DATE , repeating the reasons given in the earlier decisions in that regard . The court repeated in particular that the applicant had tried to influence witnesses in the case , that many witnesses worked in companies affiliated with him , that the applicant had international connections , and that other suspects had fled GPE . The applicant ’s lawyers during the hearing asked the court to consider alternative preventive measures . The applicant ’s appeal against that decision was rejected by ORG on DATE .", "DATE . On DATE the court extended the applicant ’s pre - trial detention until DATE , again with essentially the same reasoning . In the detention order ORG noted that by that time both parties had completed presenting their evidence and the proceedings were reaching the stage of oral pleadings ( preniya ) , which would then be followed by the closing address of the accused persons and the court ’s deliberations . However , it was still possible for the court to re - open the judicial examination of evidence , if need be . Further , the court assumed that the pleadings , addresses and deliberations could take a long time , given the complexity of the case and the number of parties involved . The appeal by the applicant against this decision was also unsuccessful , as ORG rejected it on DATE .", "On DATE the applicant was found guilty of the charges brought against him and sentenced to CARDINAL years’ imprisonment . On DATE ORG upheld the judgment in the main , excluded several charges and reduced the sentence to DATE . Some time afterwards the applicant was transferred to a correctional colony in GPE , where he is currently serving his sentence .", "From CARDINAL until DATE the applicant was detained at remand prison no . CARDINAL in GPE , known as “ PERSON ” . From CARDINAL DATE until DATE the applicant was detained at remand prison no . CARDINAL in GPE , which is a special - purpose block of the “ PERSON ” . Thereafter , and until his transferral to the penal colony the applicant was again detained at remand centre DATE . On DATE the applicant was sent to serve his sentence at penal colony ORG IK-CARDINAL in the town of GPE , GPE .", "The applicant indicated that from CARDINAL DATE to DATE he had been held in cells CARDINAL , CARDINAL and CARDINAL . In those cells the partition dividing the toilet from the rest of the cell was CARDINAL cm high . The applicant insisted that the partition was not high enough to ensure his privacy when using the toilet . He insisted that the toilet had not been separated or soundproofed and allowed inmates to see and hear everything happening in the toilet . The smell from the toilet pervaded the cell . The applicant had to eat his meals in the cell in such conditions . The prison authorities did not supply curtains to separate the toilet from the rest of the cell . He noted that no such curtain ( or curtain mark ) was visible in the photographs of cells CARDINAL , CARDINAL and CARDINAL provided by the ORG . The applicant ’s bed was very close to the lavatory . It was only on DATE , after the end of the trial and the applicant ’s conviction , that he was transferred to the refurbished cell no . CARDINAL , where the partition was QUANTITY high .", "According to the applicant , his cell in remand centre no . CARDINAL housed CARDINAL persons . Thus , each detainee had at QUANTITY of space in the cell , which contained beds , a worktable that also served as a dining table and the toilet bowl and washbasin . The applicant was incarcerated in such a cell for TIME a day for DATE . At remand centre CARDINAL the applicant shared a cell with CARDINAL people .", "In DATE the unventilated cells of the remand centres became too hot – QUANTITY and in DATE too cold DATE QUANTITY . The effect of the lack of ventilation was particularly acute on the applicant because he was a non - smoker and was constantly forced to inhale tobacco smoke . On DATE the applicant was unable to have his TIME walk as he had to attend court . Moreover the walking areas were totally enclosed roofed yards at the top of the remand centre . The applicant therefore never had any access to fresh air on these walks . The dimensions of some of the walking areas were very small : TIME . Additionally , the applicant was only permitted DATE washing facilities .", "The applicant further submitted that the authorities had consistently denied independent observers the opportunity to inspect the conditions of his detention . Thus , the authorities had refused to grant permission to the PACE Special Rapporteur to visit the applicant ; the head of the remand centre had refused a NORP member of ORG access to visit the applicant and inspect the conditions of his detention . On DATE a NORP Member of ORG , PERSON , sent a request to the then Head of IZ-CARDINAL/CARDINAL asking to inspect the “ incarceration conditions of PERSON . Under NORP law members of parliament have an unfettered right to visit remand prisons and penal GPE . However , when Mr PERSON visited the remand centre on DATE the head of the remand prison unlawfully refused him access to the applicant . Further , the applicant was denied access to his doctors in connection with his gastric problems .", "On DATE and DATE , in his appeals to ORG against the decisions of DATE and CARDINAL DATE extending his detention pending trial , the applicant described the poor conditions in which he was detained . On DATE and CARDINAL DATE ORG dismissed the applicant ’s complaints . Those decisions did not contain any analysis of the applicant ’s allegations about the conditions of his detention . The applicant also described the conditions of his detention in his cassation appeal against the judgment of ORG of DATE .", "DATE . According to the Government , in remand centre IZ-CARDINAL/CARDINAL the applicant was detained in cells nos . CARDINAL and CARDINAL . Cell no . CARDINAL , where the applicant was placed for DATE after his arrival , measured QUANTITY . The applicant was detained there with CARDINAL other people . Cell no . CARDINAL measured QUANTITY . The applicant was detained there DATE and DATE with CARDINAL other people .", "The cells in remand centre no . CARDINAL were also not overcrowded . In remand centre no . MONEY the applicant had an individual sleeping place and QUANTITY of personal space in each cell where he was detained . They produced a report indicating the surface area and number of sleeping places in each cell in which the applicant was detained . According to the information provided by the Government , an average cell measured QUANTITY by QUANTITY . The applicant was detained in cells CARDINAL . CARDINAL , CARDINAL and CARDINAL . On DATE the applicant was transferred to newly refurbished cell no . CARDINAL .", "Each cell had windows , electric lighting , hot and cold water , a lavatory and a toilet pan . Although the electric light was on during TIME , it was of a lesser intensity than the daytime lighting . The toilet pan was separated from the rest of the cell by a partition measuring CARDINAL cm ( cell no . CARDINAL ) and QUANTITY ( cells nos . CARDINAL , CARDINAL , CARDINAL ) , so that the person using the toilet pan was not seen by his cellmates or from the spy - hole in the door . The ORG submitted photos of the cells in which the applicant had been detained and of the toilet cubicles . In their post - admissibility submissions the Government indicated that in all cells the partition was QUANTITY high .", "All the cells were equipped with a TV - set , a fridge , an electric kettle and a ventilator , in addition to the standard furniture ( bunk beds , stools , table , food locker , coat - hanger , garbage bin , and washing bowls ) . The cells were properly heated , and ventilated through open windows and through a forced ventilation system , which was always in order . The cells were inspected on the DATE basis by the prison staff , who checked that all systems functioned properly . The applicant did not make any complaints about temperature or ventilation in the cell where he was detained .", "The applicant was given bed linen and cutlery and was allowed to have his own bed linen .", "The applicant could have a TIME DATE walk in CARDINAL of the CARDINAL courtyards equipped with a metal shelter and benches . When he had arrived at the remand prison late after the court hearings , he had been unable to take exercise . According to the information provided by the Government , remand centre no . CARDINAL had QUANTITY walking yards ( the smallest measured QUANTITY , the largest QUANTITY ; the average area was QUANTITY ) . Each walking yard was equipped with a roof and benches . The Government also produced several reports showing the number of people from each cell who could have a walk outside ; these reports concerned CARDINAL cells and were dated DATE , DATE , and DATE , CARDINAL DATE and DATE . The Government also produced documents on the quality and quantity of food distributed to detainees . They submitted , further , a copy of the applicant ’s medical history showing that the applicant , while in detention , had not had major health problems , although there had been some medical incidents and the applicant had on many occasions been examined by doctors .", "The applicant could also take a shower for TIME once a week , and , for additional payment , take a shower more often , go to a fitness room , wash his underwear and bed linen , and receive other extra services . Thus , he visited the fitness room of the prison CARDINAL times . In the fitness room he was also able to take a shower . The last visit to the fitness centre was dated DATE .", "CARDINAL times a day he was given hot food of an appropriate standard . On court days the applicant received dry food or , alternatively , was allowed to take food sent to him by his relatives .", "The Government indicated that while in the remand centres the applicant had been examined by a doctor with the use of special medical equipment . In particular , doctors examined him in order to define whether further examination of the internal organs was necessary .", "In support of their submissions the ORG also submitted reports from prison officials , dated DATE , which certified the above information on the sanitary conditions in the cells where the applicant had been detained . The Government also submitted a copy of the applicant ’s personal cash account , which showed that he had been receiving money from his relatives and was able to spend it on , among other things , food , extra visits to the shower room or the sports room or renting additional equipment .", "During the trial the applicant sat on a wooden bench in a small cage in the courtroom . He had to instruct his lawyers through the bars , while a convoy officer was always present next to him . Whenever the applicant left the cage , he was handcuffed to convoy officers . According to the applicant , on court DATE he received little food , no exercise , and no fresh air . The Government submitted that on court DATE the applicant had been unable to have a walk because he had regularly arrived at the remand centre late , when all the walking yards had been closed . The applicant was always provided with hot food , and , depending on the time of his departure from the remand centre , with a travel ration .", "The applicant ’s case attracted considerable public attention in GPE and abroad . In the course of the trial and afterwards many prominent public figures and influential organisations expressed their doubts as to the fairness of the criminal proceedings against the applicant and his colleagues . The applicant submitted documents to that effect .", "Thus , according to the applicant , his allegations were endorsed by the comments of leading NORP politicians and foreign governments ; the findings of the Special Rapporteur of ORG of ORG ; ORG , which concluded that the circumstances of the applicant ’s case went “ beyond the mere pursuit of criminal justice , and include elements such as the weakening of an outspoken political opponent , the intimidation of other wealthy individuals and the regaining of control of strategic economic assets ” ( Resolution CARDINAL ( DATE ) , adopted on DATE ) ; the judgment of ORG in the case of GPE and PERSON v. ORG , in which the judge concluded that “ it is more likely than not that the prosecution of PERSON is politically motivated ” and that “ President PERSON had directed that ... Mr PERSON should be prosecuted ” ; the granting on DATE by GPE authorities of political asylum to other individuals closely linked to the applicant who had also been granted refugee status . The applicant also referred to the decisions of ORG ( GPE ) of DATE in an extradition case concerning former GPE managers , and to some other NORP jurisdictions . The applicant considered that in those proceedings the courts had established that his prosecution and that of his colleagues was politically motivated .", "The Code of Criminal Procedure of DATE provides :", "“ CARDINAL . Having chosen a measure of restraint ... the court ... renders a ruling which should specify the charges against the suspect or accused persons , and the grounds for applying the measure of restraint . ”", "“ CARDINAL . Pre - trial detention shall be applied as a measure of restraint by a court only where it is impossible to apply a different , less severe precautionary measure ... When the court decides to apply pre - trial detention as a measure of restraint it should specify in its ruling the specific facts which lead the court to reach such a decision . ...", "Where it is necessary to apply detention as a measure of restraint ... the investigating officer shall apply to the court accordingly ...", "[ The request ] shall be examined by a single judge of a district court ... with the participation of the suspect or the accused , the public prosecutor and defence counsel , if one has been appointed to act in the proceedings . [ The request shall be examined ] at the place of the preliminary investigation , or of the detention , within TIME of receipt of the [ request ] by the court .... The non - justified absence of parties who were notified about the time of the hearing in good time shall not prevent [ the court ] from considering the request [ for detention ] , other than in cases of absence of the accused person . ...", "Having examined the request [ for detention ] , the judge shall take CARDINAL of the following decisions :", "( CARDINAL ) apply pre - trial detention as a measure of restraint in respect of the accused ;", "( CARDINAL ) ORG dismiss the request [ for detention ] ;", "( CARDINAL ) adjourn the examination of the request for TIME so that the requesting party can produce additional evidence in support of the request . ...", "Repeated requests to extend detention of the same person in the same criminal case after the judge has given a decision refusing to apply this measure of restraint shall be possible only if new circumstances arise which constitute grounds for taking the person into custody . ”", "“ CARDINAL . A period of detention during the investigation of criminal offence shall not last longer than DATE .", "NORP If it is impossible to complete the preliminary investigation within DATE and there are no grounds for modifying or lifting the preventive measure , this time - limit may be extended by DATE by a judge of a district or military garrison court of the relevant level in accordance with the procedure provided for in LAW of the present Code . This period may be further extended DATE in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case , and provided that there are grounds for application of this preventive measure , by a judge of the same court upon an application by the investigator , filed with the consent of a prosecutor ...", "NORP The period of detention may be extended beyond DATE and up to DATE only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [ a judge ] on an application by an investigator filed with the consent of ORG or his deputy .", "Further extension of the time - limit shall not be allowed . ...", "Examination of [ the prosecution ’s ] request for extension of the detention is not allowed , except where the suspect or accused is undergoing in - hospital psychiatric examination or in other circumstances which exclude his participation in the court hearing , which should be supported by appropriate documents . In any event the participation of the defendant ’s lawyer is mandatory . ”", "“ CARDINAL . A preventive measure shall be lifted when it ceases to be necessary or replaced by a stricter or a more lenient CARDINAL if the grounds for application of a preventive measure ... change .", "A preventive measure shall be lifted or modified by an order of the person carrying out the inquiry , the investigator , the prosecutor or the judge or by a court decision .", "A preventive measure applied at the pre - trial stage by the prosecutor , the investigator or the person carrying out the inquiry , on his written instructions , may be lifted or modified only with the prosecutor ’s approval . ”", "“ CARDINAL . If a witness fails , without reasonable excuse , to attend court when summoned ... he or she may be brought forcibly .", "Enforced attendance ... shall consist of the person being brought by force before the inquirer , the investigator or the public prosecutor , or the court .", "NORP If there are reasons preventing their appearance in response to the summons at the designated time , the persons mentioned in paragraph CARDINAL of this Article shall immediately notify the authority by which they have been summoned accordingly .", "A person who is to be forcibly brought before the relevant authority shall be notified accordingly by an order of the person carrying out the inquiry , the investigator , the public prosecutor or the judge , or a ruling of the court , and this notification shall be confirmed by his signature on the order or ruling .", "Enforced attendance can not be carried out at TIME - time , except in circumstances when the matter can not wait .", "Underage persons who have not reached DATE , pregnant women and sick persons who can not leave their place of residence on account of poor health , which shall be certified by a doctor , shall not be forced to attend . ... ”", "“ Actions ( omissions ) and decisions of the agency conducting the inquiry , the person conducting the inquiry , the investigator , the prosecutor or the court may be appealed against in accordance with the procedure set forth in the present Code by participants in the criminal proceedings or other persons , to the extent that the procedural actions carried out and procedural decisions taken affect their interests . ”", "“ ... CARDINAL . NORP A person who is summoned for questioning shall attend at the appointed time or notify the investigator in advance of any reason preventing him from attending . If a person summoned for questioning fails to appear without any valid reasons he may be brought forcibly ... ”", "“ CARDINAL . When a criminal case is submitted [ to the court ] , the judge shall decide either", "( i ) to forward the case to an [ appropriate ] jurisdiction ; or", "( ii ) to hold a preliminary hearing ; or", "( iii ) to hold a hearing .", "The judge ’s decision shall take the form of an order ...", "NORP The decision shall be taken within DATE of submission of the case to the court . If the accused is detained , the judge shall take the decision within DATE of submission of the case to the court ... ”", "“ Where a criminal case is submitted for trial , the judge must ascertain the following points in respect of each accused :", "( i ) whether the court has jurisdiction to deal with the case ;", "( ii ) NORP whether copies of the indictment have been served ;", "( iii ) whether the measure of restraint should be lifted or modified ;", "( iv ) whether any applications filed should be granted ... ”", "“ CARDINAL . When there are no grounds to take CARDINAL of the decisions described in sub - paragraphs ( i ) or ( ii ) of the first paragraph of LAW , the judge shall set the case down for trial ... In the order ... the judge shall decide on the following matters : ...", "( vi ) The measure of restraint , except for cases where pre - trial detention or house arrest are applied ... ”", "“ CARDINAL . During the trial the court may order , modify , or lift a precautionary measure in respect of the accused .", "NORP If the defendant has been detained before the trial , his detention may not exceed DATE from the time the court receives the case for trial to the time when the court delivers the sentence , subject to the exceptions set forth in § CARDINAL of this Article .", "NORP The court ... may extend the accused ’s detention during trial . It is possible to extend detention only in respect of a defendant charged with a serious crime or an especially serious crime , and each time for a period of DATE ... ”", "“ CARDINAL . Having received the criminal case with the notice of appeal ... the judge shall fix the date , time and venue of the [ appeal ] hearing .", "NORP The parties shall be notified of the date , time and venue [ of the appeal hearing ] no later than DATE beforehand . The court shall decide whether the convicted detainee should be summoned to the hearing .", "A convicted detainee who has expressed a wish to be present [ at the appeal hearing ] shall have the right to be present personally or to submit his arguments by video link . The court shall decide in what form the participation of the convicted person in the hearing is to be secured . ... ”", "“ CARDINAL . Trials of criminal cases in all courts shall be public , with the exception of the cases indicated in the present Article .", "Judicial proceedings in camera are admissible on the basis of a determination or a ruling of the court in the event that :", "( i ) NORP proceedings in the criminal case in open court may lead to disclosure of a ORG or any other secret protected by the federal law ;", "( ii ) the criminal case being tried relates to a crime committed by a person who has not reached DATE ;", "( iii ) the trial of criminal cases involving a crime against sexual inviolability or individual sexual freedom , or another crime where the trial may lead to disclosure of information about the intimate aspects of the life of the participants in the criminal proceedings or of humiliating information .", "( iv ) this is required in the interest of guaranteeing the safety of those taking part in the trial proceedings and that of their immediate family , relatives or persons close to them ;", "Where a court decides to hold a hearing in camera , it shall indicate the specific circumstances in support of that decision in its ruling on this point . ... ”", "On DATE ORG of the Russian Federation delivered decision no . CARDINAL-O in which it held that Articles CARDINAL and CARDINAL of the ORG should be interpreted as guaranteeing to the accused the right to participate in any detention hearing , in particular when the judge sets down the case for the trial under LAW .", "On DATE ORG of GPE adopted Ruling no . CARDINAL In particular , ORG held :", "“ Since deprivation of liberty ... is permissible only pursuant to a court decision , taken at a hearing ... on condition that the detainee has been provided with an opportunity to submit his arguments to the court , the prohibition on issuing a detention order ... without a hearing shall apply to all court decisions , whether they concern the initial imposition of this measure of restraint or its confirmation . ”", "On DATE the ORG delivered decision no . CARDINAL on a complaint about ORG refusal to permit a detainee to attend the appeal hearings on the issue of detention . It held :", "“ LAW , which regulates the presence of a defendant remanded in custody before the appeal court ... can not be interpreted as depriving the defendant held in custody ... of the right to express his opinion to the appeal court , by way of his personal attendance at the hearing or by other lawful means , on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms ... ”", "The Pre - trial GPE of DATE ( Federal PERSON on ORG and Defendants , no . CARDINAL of DATE ) , as in force at the material time , provides in section CARDINAL that a detainee has a right to confidential meetings with his lawyers . That section does not define whether the lawyer and the client are entitled to make notes during such meetings and to exchange any documents . The meeting should be conducted out of the hearing of prison staff , but the prison staff should be able to see what is happening in the hearing room . Section CARDINAL establishes that a meeting can be interrupted if the person meeting the detainee tries to hand him “ prohibited objects , substance , or food stuff ” or to give him “ information which may obstruct the establishment of truth in the criminal case or facilitate criminal acts ” .", "Section CARDINAL establishes that all correspondence by detainees goes through the prison administration , which may open and inspect the mail . Correspondence addressed to the courts , to the ombudsman , to the prosecuting authorities , to ORG , etc . , is free from perusal but lawyers are not mentioned in this list ( for more details see PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ) . It appears ( see the paragraphs immediately below ) that the Pre - trial LAW was routinely interpreted by the prison authorities as allowing the former to seize and inspect correspondence between a detainee and his lawyer .", "Section CARDINAL of the Pre - trial LAW establishes as follows :", "“ Where there are sufficient reasons to suspect that a person entering or leaving the prison carries prohibited objects , substances [ or ] food stuff , the prison officials may search their clothes and belongings ... and seize the objects , substances and food stuff ... which [ detainees ] are not allowed to have or to use . ”", "The Internal Regulations for Remand Prisons , introduced by Decree no . CARDINAL of ORG of DATE , contained section CARDINAL , which established that lawyers can not use computers , audio- and video - recording equipment , copying machines , etc . , during meetings with their clients in remand prisons unless authorised by the prison administration . On CARDINAL October CARDINAL ORG of GPE struck down that provision as unlawful ( decision confirmed on DATE ) .", "On DATE ORG of GPE interpreted the above provisions of the Pre - trial LAW in their constitutional meaning . ORG held that the law may legitimately introduce certain limitations on the lawyer - client confidentiality , including perusal of their correspondence . However , such limitations should not be arbitrary , should pursue a legitimate aim and be proportionate to it . Legitimate aims may include preventing further criminal activity by the accused , and preventing him from putting pressure on witnesses or otherwise obstructing justice . The general rule is that the lawyer - client correspondence is privileged and can not be perused . Any departure from this rule is permissible only in exceptional circumstances where the authorities have valid reasons to believe that the lawyer and/or his client are abusing the confidentiality rule . Further , ORG specified that the prison authorities should have “ sufficient and reasonable grounds to believe ” that the correspondence contains unlawful content and that they may peruse such correspondence only in presence of the persons concerned and on the basis of a written motivated decision . The results of the inspection of the mail should also be recorded . At the same time ORG ruled that any correspondence addressed by a detainee to his lawyer but not submitted “ through the prison administration ” , as provided by the federal law , can be checked by the prison administration ." ]

[ "3", "5" ]

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

[ "5-1-b" ]

[ "18", "3", "5" ]

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

[ "5-1-c" ]

[ "NORP B.L.H. , a holding company , ORG ( together with CARDINAL further companies ) had their business address at FAC , GPE ( GPE ) , at LOC owned by GPE . The companies used a common server and e - mail server ( hereinafter referred to as “ the server ” ) for their respective information technology systems . The server was owned by ORG . It contained the applicant ORG electronic archives and private information ( including private e - mail correspondence ) of employees and other persons working for the companies , which did not have their own administration . They received administrative support from a small number of persons working in ORG operating at the same address .", "B.L.H. ’s data were stored on the server in the user areas dedicated to QUANTITY persons : Mr S. , who was B.L.H. ’s Managing Director , and QUANTITY other persons . They were employed by ORG AS – a subsidiary company of B.L.H. – which carried out management services for several companies , including B.L.H. The data in question were accessed by entering those ORG user areas , through their respective user names and passwords .", "NORP In DATE the GPE tax office ( ligningskontor ) warned B.L.H. that the company ’s accounts for DATE would be audited . On DATE a meeting was held between representatives of B.L.H. , on the one hand , and the GPE tax office and GPE tax office ( fylkesskattekontor ) , on the other . The meeting took place at B.L.H. ’s offices in GPE . During the meeting the tax authorities presented B.L.H. with a list of questions and demanded that B.L.H. allow the auditors to make a copy of all the data on the server , which contained , inter alia , information on B.L.H. ’s accounts .", "NORP The representatives of B.L.H. complied with the request to grant access to the server , including offering the tax authorities the necessary passwords . They refused , however , to comply with the tax authorities’ further demand to supply a mirror copy of the ( entire ) server .", "The Managing Director , PERSON , argued , inter alia , that B.L.H. did not own the server but only rented server capacity and that also other companies made use of the server . The Managing Director of Kver , the company owning the server , was called but he too refused to allow the tax authorities to take a mirror copy of the server .", "Information and documents stored on the server were in part linked to other companies ( with the necessary access control ) , in part to employees working for the different companies . Access to the home directorates and e - mails ( including the map \" private files and pictures \" ) belonging to the different employees were protected by passwords .", "Thus the server contained information belonging to the applicant companies and also information belonging to other companies and persons .", "Following the refusal by B.L.H. and Kver to supply a mirror copy of the server , alternatives to a complete copy of the server were discussed . The discussion related first and foremost to whether the tax authorities would have to limit themselves to demanding copies of the part of the server administered by B.L.H. or persons working for B.L.H. The Managing Director of B.L.H. , PERSON , explained to the tax authorities how they could obtain ( all and only ) the documents belonging to B.L.H.", "When Kver , as a co - user and the owner of the server , opposed the tax authorities’ demand to seize the entire server , the tax authorities responded by issuing a notice that Kver would also be subject to a tax audit . They further ordered Kver to “ hand over all electronically stored information ” .", "After further discussions , the parties compromised and agreed that the previous months’ backup tape would be handed over to the tax authorities and sealed pending a decision on their complaint . The backup tape contained CARDINAL files in CARDINAL folders , totalling QUANTITY . In the applicant ORG submission , which the Government did not dispute , only a minor part of that information was relevant for the tax audit of B.L.H.", "Both Kver and B.L.H. immediately lodged a complaint with ORG , a central tax authority under ORG , and requested the speedy return of the backup tape .", "On DATE Kver informed the GPE tax office that CARDINAL other companies , including ORG ( the third applicant company ) , also used the server and had therefore been affected by the seizure of DATE . On DATE the tax office notified those companies that they would also be audited .", "On DATE lodged a complaint with ORG .", "The ORG gave a decision on each of the applicant ORG complaints on DATE .", "As regards Kver and I.O.R. , the ORG withdrew the tax office ’s notice that an audit would be carried out and its demand that those companies hand over data . The ORG observed that the tax audit concerned B.L.H. and that section CARDINAL of LAW ( ligningsloven ) did not authorise the measures at issue where the purpose of the audit was to collect information about third parties .", "The ORG confirmed the tax office ’s demand that B.L.H. hand over or give access to the server . Its decision further stated that a representative of this company would have the opportunity to be present during the review of the server by the tax office . The tax office ’s access to each area of the server was to be limited to those areas that were ( also ) used by B.L.H.", "NORP In reaching the above conclusion , the ORG noted that ORG had observed , in its letter to ORG , that the term “ document ” in sections CARDINAL - CARDINAL and CARDINAL of LAW was not limited to information appearing on paper , plastic cards and so on , but also covered texts and figures stored electronically on a computer . Furthermore , the duty to hand over documents also applied to electronically stored documents . The tax authorities could choose whether to ask for paper printouts , electronically readable media , or for the documents to be forwarded to their own computers .", "In the ORG ’s view , the question at issue concerned the delimitation of the tax authorities’ access to the “ company ’s archives ” under section CARDINAL ( CARDINAL ) ( b ) of the LAW ( see paragraph DATE below ) . In instances where the documents were stored on a server , the server was to be considered as an archive for the purposes of that provision . In the present instance , the tax office had “ seized ” ( “ tatt beslag i ” ) the server and the question was to what extent the tax office could inspect it . Whether an obligation could be imposed under section CARDINAL to hand over each document in the archive required consideration in the specific circumstances .", "The ORG moreover noted that a tax subject was not under a duty to produce documents which exclusively concerned the rights and business relationships of other tax subjects . A further limitation was that the documents in question should be relevant to the tax subject ’s tax assessment . Accordingly , documents of exclusively private character fell outside that definition . That distinction was important in ascertaining the extent to which the tax authorities could themselves go through the server ( the archive ) or whether it was for the tax subject to decide which areas of the server should be handed over .", "Section CARDINAL - CARDINAL ( CARDINAL ) ( b ) had been added to give the tax authorities an opportunity to act with assertiveness ( “ gå offensivt til verks ” ) when inspecting archives in order to find documents of importance to the activity concerned . It was thus clear that the authority to audit did not just amount to the passive reception of information handed out by the person subjected to the audit .", "NORP Moreover , the ORG noted , section CARDINAL of the Act applied to the tax audit of a specific tax subject . The handing over of documents relating to other tax subjects ought to be based on LAW . In instances where the archives were physically separated ( into different parts of the server ) , section CARDINAL did not authorise the imposition of access to the archives of other companies . In the present instance , LAW did not apply .", "To the extent that a joint archive was not physically divided but was mixed , the tax subject could not refuse the tax authorities access to the archive . In discussions on the draft legislation , it had been emphasised that the purpose of an audit should not be undermined by the tax subject withholding documents . In the ORG ’s view , this ought also to apply in relation to access to the tax subject ’s archives . The tax subject could thus not refuse the tax authorities access to its archives on the ground that they contained documents concerning other tax subjects . The duty to hand over all documents contained in the archives should , however , be limited to documents of importance to the tax subject ’s tax assessment , see section CARDINAL ( CARDINAL ) and ( CARDINAL ) .", "In practice , in order to solve the problem of the tax subject avoiding the inspection of documents in the archives ( the server ) that were insignificant for its tax assessment , the tax subject would be allowed to be present during the review of the archive ( see section CARDINAL ( CARDINAL ) ) . Accordingly , the ORG stated , a representative of B.L.H. was to be present during the tax authorities’ review .", "Under LAW , the applicant companies instituted proceedings before ORG , asking it to quash ORG decision of DATE in respect of B.L.H. and to order the return of the backup tape to GPE . On DATE ORG found in favour of the ORG and rejected the applicant ORG appeal .", "In its judgment , ORG found that the measure imposed by the tax authorities could comprise the copying of data for subsequent inspection at the tax office to the same extent as on - site access to data on the server could be imposed . It also found that the server in the present instance should be considered in the same way as mixed paper archives .", "The applicant companies appealed to ORG , which by a judgment of DATE upheld ORG decision on essentially the same grounds . ORG noted inter alia that the case concerned an inspection by the tax authorities of a taxpayer in connection with a notified tax audit , an area in which the principle of legality ( legalitetsprinsippet ) applied , as did other legal safeguards , including the prohibition of self - incrimination derived from LAW .", "On DATE the applicant companies appealed to ORG , disputing in the main the High Court ’s application of the law . It had failed to appreciate that the relevant provisions of section CARDINAL ( CARDINAL ) laid down clear limits for the manner of conduct of a tax inspection , which could be carried out only of the archives of the tax - subject in question , and a demand to hand over documents should be limited to pertinent material contained therein . These limits had been transgressed in the present case .", "The threshold for accepting access beyond the relevant company ’s own archives ought to be high , not least because , by reviewing the server , the right to inspect B.L.H. had been extended to other tax subjects that were not being audited , and to any private and confidential information stored on the server . They referred to LAW , according to which interference with “ home ” and “ correspondence ” was not permitted unless it was “ in accordance with the law ” and “ necessary in a NORP society ” . They submitted that , according to ORG judgment in Société Colas Est and Others v. GPE ( no . CARDINAL/CARDINAL , ECHR CARDINALIII ) , DATE also protected companies .", "By empowering the authorities to demand copies of the server this would also give them full access to personal data belonging to employees working for different companies as well as any private correspondence that they might have stored on the server or received on their respective e - mail addresses . This aspect of the case also appeared to breach LAW , as well as laws and regulations on the processing of personal data .", "ORG Since the imposition of an inspection of the archives of entities others than B.L.H. lacked a basis in section CARDINAL ( CARDINAL ) ( b ) of LAW and LAW , the tax authorities had acted contrary to the national legal provisions relied on .", "The application of the mixed - archive doctrine to their case had no legal basis , nor did it follow from clear and established practice . The tax authorities had not documented that there was a mixed archive in the instant case or made any attempt to carry out a prior on - site review in order to determine whether it would be possible to separate B.L.H. ’s archives from those of the other companies . It ought to be a condition for a company accepting the seizure of its archives that adequate attempts be made to restrict the seizure to those areas that concerned the activity at issue . Where a partial inspection on the spot revealed that CARDINAL or more documents had no corroborative significance , the tax authorities could not , according to ORG case - law , seize the archives for further investigation . The same would also follow from LAW .", "There had been no legal basis for the authorities to take a full backup copy of the server . LAW had come into force at a time when archives had been paper based . In the absence of the tax subject ’s consent and any prior review , the tax authorities were not entitled to take away an entire paper archive in order to go through all the material at the tax office . The same ought to apply in relation to electronically stored documents , the only difference being that they had to be printed out rather than being photocopied . In this manner the intents and purposes of the LAW would be fully taken into account . The copying of the server in order to subsequently review the entire archives constituted an interference that could not be justified as proportionate and necessary for the purposes of LAW .", "In additional written pleadings to ORG dated DATE , the applicant companies stated , inter alia :", "“ In this context , it is noted that the references to LAW in the notice of appeal do not constitute a new submission . As the Attorney General also indicates , reference to the LAW was made during the oral proceedings in the lower courts . In ORG the respondent made reference to a decision of ORG which considered the relationship between LAW and the country ’s competition law . The decision is enclosed in the joint case documents before ORG , on page CARDINAL et seq . ”", "In its judgment of CARDINAL DATE ( PERSON DATE p. DATE ) ORG upheld the High Court ’s judgment by CARDINAL votes to CARDINAL and held that no award should be made for costs .", "Mrs Justice Stabel , whose opinion was endorsed in the main by the other members of the majority , observed that the case raised CARDINAL questions , all related to section CARDINAL ( CARDINAL ) ( b ) of LAW concerning the inspection of records located on a computer server : First , whether the tax authorities could demand access to all the records , regardless of content ; secondly , whether this also applied in cases where the records included material belonging to other taxpayers ; and , thirdly , whether the tax authorities could demand access in order to copy material for subsequent inspection at the tax office .", "LAW ( CARDINAL ) ( a ) of LAW empowered the tax authorities to order a tax subject to hand over specific documents of significance for a tax assessment . ORG - paragraph ( b ) provided , in addition to the on - site visit and review of the taxpayer ’s assets , a legal basis for the imposition of a review of the company ’s archives . With the exception of the rule on review of archives ( “ arkivgjennomsyn ” ) in sub - paragraph ( b ) , those provisions were essentially a continuation of the earlier ones of LAW on the duty to provide information and allow special inspections . Since the rule on review of archives had been added during the consideration of the LAW by ORG , the preparatory work had been rather sparse . On the other hand , ORG had pointed out that an order to produce a document pursuant to subparagraph ( a ) presupposed knowledge about the existence of the document , and that the refusal to allow access to review archives constituted a hindrance to effective inspection .", "From the context , it transpired that the purpose of the provision in CARDINAL ( CARDINAL ) ( b ) was to provide a basis for the tax authorities to assess whether a tax subject possessed documents which he or she could be ordered to produce under sub - paragraph ( a ) . The duty to produce documents was not limited to accountancy documents . What was decisive was whether the documents were significant for the taxpayer ’s tax assessment and the authorities’ review of the latter . It was clear that also electronic documents were covered by sub - paragraph ( a ) .", "ORG - paragraph ( b ) should naturally be interpreted in the light of its purpose . The aim of an inspection was to find out whether an archive contained documents that could be significant for tax assessment purposes . Access should therefore comprise all archives which the tax authorities had reason to assume contained information of significance for the tax assessment , not just those archives or parts of archives that included accountancy material . In the interests of efficiency of the tax audit , access at that stage should be relatively wide . Therefore , the ORG argument that it should be up to each tax subject to give binding indications as to which parts of the archive contained documents of significance for the tax assessment or the audit had to be rejected .", "Access to archives could not be compared to search and seizure , as argued by the applicant companies . Measures taken under LAW formed part of ordinary administrative procedures with a view to ensuring that a correct tax assessment was made . An accountancy audit could be initiated independently of any suspicion of the commission of a criminal offence . An order imposed pursuant to section CARDINAL also involved compulsion of a different character than enforcement measures ( “ tvangsmidler ” ) in the context of criminal proceedings , where the prosecution executed the measure by way of enforcement ( “ tvangsgjennomføring ” ) . The principle of the duty to submit tax returns , supplemented by the tax subject ’s duty to provide information under section CARDINAL - CARDINAL , presupposed that it should be possible to verify and depart from the information provided by the tax subject . The consequences of a tax subject ’s refusal to cooperate were exclusively administrative ( discretionary tax assessment ) .", "As to the applicants’ argument that the server contained archives belonging to several companies , PERSON observed that where several companies shared an archive and the areas belonging to the different users were clearly separated , the authorisation to access the archives was limited to the tax subject concerned . The problem arose where it was not possible , at least in advance , to ascertain whether the respective parts were clearly separated , typically where the data were stored electronically on a common server . On this point she agreed with and cited ORG distinction between separate and common ( mixed ) archives in its decision of DATE :", "\" When several tax subjects share an archive , one must , in the opinion of the ORG , distinguish between cases in which the archives are clearly physically separated and cases in which there is a common ( mixed ) archive . Whether or not an area will be considered as clearly separate must be assessed in the specific case . The ORG emphasises that , at present , there is insufficient information in this case to make that assessment . \"", "Mrs Justice Stabel further agreed with ORG that , as a starting point , where full access was not given to the tax authorities , it should be possible to impose full access if the archive was organised in a manner making the tax authorities dependent on indications by the tax subject in order to identify relevant information . It would be up to the companies whether they wished to organise clearly separate archives or to maintain mixed archives which , in practice , would lead to an extension of the tax authorities’ powers .", "In the present case , the companies had disputed that there had been a mixed archive of the type described . They had argued that ORG ’s representative should be able to identify which users had been working on matters pertaining to them and which files had been relevant to their activities . However , it followed from the facts established by ORG that B.L.H. did not have its own administration but was serviced by a small number of persons in ORG AS located at the same address , as was the situation of the other companies using the server in question which was owned and run by GPE . B.L.H. did not have its own user area , but the persons who provided services to the company stored the company ’s documents under their own user names and passwords .", "It would have been impossible for the tax authorities to identify immediately the areas of the server where the relevant information was stored . The archive was not organised with clear separations between the different companies , and the distinction between each service person ’s user area was not such as to enable the tax authorities to identify information of significance for the tax assessment . In this situation , ORG had correctly considered that the tax authorities could not depend on B.L.H. indicating the files that might be relevant for the tax assessment of the company . Therefore , the authorities ought to be vested with powers to review all the data on the server . Like ORG , she also attached some weight to the fact that it had been fully possible to organise the cooperation regarding the use of the server differently , for example by applying consistently own user names .", "As to the third question , the manner in which the review of the relevant data should take place , PERSON took note of the fact that the backup tape containing all the information on the server had been prepared , sealed and taken to the tax office , pending a final judgment in the case . A backup tape contained all the files stored in the archive but , unlike a mirror copy , not the computer programmes and deleted material , as the tax authorities had initially wanted .", "The question was whether the imposition of a duty to allow access with a view to take copies for subsequent inspection at the tax office could be deduced from the right to demand access to the company ’s archives . The answer did not follow directly from section CARDINAL ( CARDINAL ) ( b ) of LAW . Unlike sub - paragraph ( a ) , which expressly stated different alternatives for access to documents , sub - paragraph ( b ) made no mention of how the review should take place . That provision was supplemented by section CARDINAL ( CARDINAL ) , which authorised the tax authorities to demand the presence of a representative of the tax subject in order to provide the necessary guidance , assistance and access to the company ’s LOC .", "The question of copying was twofold : did the tax authorities have a right to require a copy and , if so , could the tape then be inspected at the tax office ?", "Very little preparatory work had been carried out on that provision and that particular point had not been dealt with . Since archives had been almost exclusively paper based at the time when the provision had been enacted , the question of copying a whole archive had been unlikely to arise . In view of its purpose , there was no reason to interpret the provision to the effect that it hindered the imposition of a requirement to take a copy where the review of a copy was desirable . The central question was whether the measure imposed by the tax authorities could also include the taking of material to the tax office .", "The rationale behind sub - paragraph ( b ) DATE namely to remove obstacles to an effective audit occasioned by the requirement on the tax authorities to show that the archives contained documents that were significant for tax assessment purposes – militated strongly in favour of an interpretation adapted to the current situation . According to ORG , an on - site inspection would be particularly time - consuming , and if the authorities were unable to take copies for inspection at the tax office , they would face difficulties in implementing the audit .", "It could be questioned whether access would entail such an additional burden for the tax subject that the above interpretation would be incompatible with the principle of legality ( legalitetsprinsippet ) . In the view of PERSON , it was difficult to see that this could be the case . Indeed , the inspection as such would be less burdensome in that the tax subject would at no time be deprived of access to the archive . The requisite safeguards were preserved as the tax subject had a right , under section CARDINAL ( CARDINAL ) of LAW , to be notified about and to be present during the authorities’ review of the tape . If the measure was the subject of a complaint , the material had to be sealed pending examination of the complaint ( section CARDINAL ( CARDINAL ) ) . In most instances , there was reason to believe that it would also be in the tax subject ’s interest that the review took place at the tax office . In any event , there was little reason to oppose that .", "Mrs ORG Stabel agreed , however , that the protection of privacy ( “ personvernhensyn ” ) had to be taken into consideration , because the review of the archive was not limited to accountancy documents but included other documents in the archives which the tax authorities had reason to believe might be of relevance for the tax assessment . However , the tax authorities could also access such sensitive information even if the review were carried out on the tax subject ’s premises . Even though , theoretically , there would always be a danger of abuse , which might be somewhat greater if the copied material were taken to the tax office , that risk was hardly so great as to be decisive .", "It had not been alleged that the backup copy contained more data than what would have been accessible had the review been carried out on - site . The legal safeguards described above would be observed during the review . It was further understood that once the review had been completed , the copy would be destroyed and all traces of the contents would be deleted from the tax authorities’ computers and storage devices . In addition , the review was to provide a basis for orders pursuant to section CARDINAL ( CARDINAL ) ( a ) . The tax authorities would not be authorised to withhold documents from among the material that had been taken away unless the tax subject accepted the measure .", "The dissenting member of ORG , Mr Justice PERSON , agreed with the view held by the majority that the tax authorities could require B.L.H. to give access in order to enable them to carry out an inspection of the server used jointly by the applicant companies .", "As to the further issue of whether the tax authorities could demand a copy of the server on which the archive was stored with a view to subsequent review at the tax office , Mr Justice PERSON observed as follows . In his view , section CARDINAL ( CARDINAL ) ( b ) could not reasonably be understood to mean that it authorised the tax authorities to demand a copy of the archive . The provision was limited to “ review ” . To demand a copy was something else and much more far - reaching .", "The reason why the majority in ORG in DATE had been in favour of conferring on the tax authorities a power to search and seize material was that they had believed that the authorities should be able to ensure that important documents had not been “ hidden or destroyed ( notably burned ) ” . If the tax authorities were allowed to demand a copy of the archive , they would in reality be empowered to seize , a power which the majority in ORG in DATE had not wished to give them when removing a provision to that effect before the entry into force of the relevant part of LAW .", "He agreed with the majority that the right to review archives under section CARDINAL ( CARDINAL ) ( b ) comprised not only archives containing accountancy material but all archives that potentially contained documents of significance for the tax assessment . This meant that the archived material which the tax authorities could demand to review included a great quantity of sensitive personal data . If the tax authorities were to be empowered to demand the copying of archives , the risk of dissemination and abuse of sensitive personal data would increase considerably beyond what followed from a review on the taxpayer ’s LOC . This applied especially to the copying of electronic archives . The search facilities for an electronic archive were different from those used for a traditional paper - based archive . Even if electronically stored data were deleted , they could be reconstructed . Also , electronically stored data might be disseminated far more easily and effectively than information on paper . The right of the tax subject to be present when the tax authorities opened and reviewed the archive did not constitute a guarantee against abuse . There was no way of ensuring that that right had been respected . Therefore , weighty considerations of legal security and protection of privacy militated against conferring on the tax authorities a right to demand a copy of the archive . As the majority in ORG had pointed out in the context of the legislative amendment in DATE , the requirements of legal security and protection of privacy were an overriding political aim in a democratic society . In particular , since the parliamentary majority had voted strongly against search and seizure , and since copying for subsequent review at the tax office was in reality a form of seizure , Mr Justice PERSON found that the tax authorities clearly should not be empowered to require a copy without the question being first considered by the legislator and a clear statutory power given for copying .", "On that ground , Mr Justice PERSON voted for quashing ORG decision of DATE in respect of B.L.H. authorising the copying of the server .", "On DATE ORG ( skatteetaten , PERSON ) notified the applicant companies of their intention to open the tape with a view to ordering the production of documents . It notified them of the dates , time and place of the review , its object , certain preparatory processing not involving searching or opening of documents , and the identity of the companies concerned . It also invited them to appoint a common representative to attend the said preparations , and the opening and review of the tape .", "In a letter to the applicant companies dated DATE , ORG responded , inter alia , to certain complaints made by the applicant companies in their letter of DATE .", "In response to the applicant ORG complaint that the backup tape had been secretly copied , ORG reiterated that they had already informed the applicant companies in a letter of DATE that after their meeting on DATE , the contents of the tape had been copied to hard disk . This had been necessary in order to be able to open and read the files , and the data would be carefully secured pending further proceedings . Except for in the limited context of the criminal investigation described in paragraph CARDINAL below , the files had not been opened and read .", "As regards the applicant companies’ demand that either the CARDINAL hard disks in question be handed over to B.L.H. , or the copied material be deleted , ORG replied that they could not see that ORG judgment of CARDINAL DATE would prevent them from copying the contents of the backup tape to hard disk , or that the actual review could be carried out on this instead of the backup tape . They referred to ORG reasoning summarised in paragraph CARDINAL above . The copying of the data onto an independent , free and unused hard disk was necessary in order to be able to carry out an appropriate review of the contents of the backup tape . In that connection , the tax office took note of ORG understanding that , once it had been reviewed , the copy would either be returned or destroyed , and all traces of the contents would be deleted from the tax authorities’ computers and storage devices . ORG reasoning thus appeared to be based on the presumption that the contents of the server could be copied temporarily as described . The tax office would not hand over the hard disks or delete information from the backup tape stored on them until completion of the review .", "In reply to a request by the applicant companies for the names of personnel who had dealt with the case , including those who had viewed documents on the backup tape , the tax office stated that the correspondence , faxes and e - mails that the tax authorities had produced in connection with the case indicated sender ’s identity . Moreover , representatives of the tax office had presented themselves by name during meetings and telephone conversations that had taken place . Furthermore , in the context of a separate tax investigation of the applicant companies and other companies within the same ownership sphere that were linked to a certain PERSON and criminal proceedings against the latter , the regional tax office had filed a complaint against him to the police alleging that he had committed aggravated tax fraud . During the criminal investigations the police had obtained a judicial order authorising the seizure of the backup tape . The tax office accepted to assist the police , in accordance with relevant agreements and instructions . The assistance had consisted of the reviewing of the backup tape , during the period DATE , by certain named expert accountants and a tax lawyer . After completion of the work , the police had demanded that the ORG delete all documents stored electronically and shred all paper copies taken . That had been done immediately . In the proceedings before ORG in the present case , the parties agreed to distinguish these from the afore - mentioned criminal proceedings .", "ORG agreed with the applicant companies that it would be problematic with respect to the duty of confidentiality if the representative(s ) of all taxpayers present were to be given the opportunity to view the computer screen during the review of documents . For that reason DATE and because it would have made working conditions difficult if the officer had the said representative(s ) just behind his back while working on the backup tape DATE it had been decided that the representative(s ) would not have access to the screen or to read printed documents continuously during the inspection ( section CARDINAL ( CARDINAL ) , first sentence , and section CARDINAL ( CARDINAL ) , second sentence , of LAW ) . The representative(s ) would therefore be directed to another part of the LOC where they could observe the processing but not the documents being reviewed .", "As the officers identified documents that the taxpayer would be ordered to produce , the documents would be printed out and listed . After completion of the review , the printed and listed documents would be sorted for each taxpayer in the case complex . The representative of the individual taxpayer would then be given access to the document which concerned him and would , in so far as desirable , be able to comment .", "Pursuant to section CARDINAL of LAW ( ligningsloven ) of DATE the tax subject had a general duty to provide relevant information to the tax authorities carefully and loyally and ought to contribute to his or her tax liability being clarified in due time and being complied with . He or she ought to draw the attention of the authority concerned of errors in the assessment and payment of the taxes .", "DATE . The disputed measures in the present case had been taken pursuant to section CARDINAL ( CARDINAL ) , which DATE supplementing the duty of information above – authorised the tax authorities to order a taxpayer :", "\" ( a ) To present , hand out or dispatch its books of account , vouchers , contracts , correspondence , governing board TIME , accountancy minutes and other documents of significance with respect to the tax assessment of the taxpayer and the audit thereof . ...", "( b ) To grant access for on - site inspection , survey , review of the ORG archives , estimation etc . of property , constructions , devices with accessories , counting of livestock , stock of goods and raw materials , etc . \"", "Under section CARDINAL ( CARDINAL ) , when required by the tax authorities , the taxpayer had a duty to attend an investigation as described in LAW CARDINAL ( CARDINAL ) , to provide necessary guidance and assistance and to give access to office and business LOC .", "Section CARDINAL ( CARDINAL ) of LAW gave the taxpayer the right to be present during the review of the archive :", "\" The taxpayer or the party who has an obligation to disclose information shall be given reasonable notification and have the right to be present and express views during the investigation that takes place pursuant to section CARDINAL ( CARDINAL ) ( b ) , or section CARDINAL . This applies only in so far as it may be implemented without risking the objective of the investigation . \"", "Pursuant to section CARDINAL ( CARDINAL ) , when an investigation had been carried out according inter alia to section CARDINAL , a report or protocol was to be drawn up describing the factual information collected , in so far as it pertained to the relevant tax subject .", "A duty of confidentiality of tax information was set out in section CARDINAL ( CARDINAL ) :", "“ Everyone who assumes or has assumed a task , post or commission linked to the tax administration shall prevent that persons who are not concerned obtain access to or knowledge of what he in the performance of his work has learned about a person ’s assets or income or other financial- , business- or personal matters . Upon taking up such task , post or commission he shall give a written declaration on whether he is aware of and will comply with the duty of confidentiality . ”", "Section CARDINAL - CARDINAL laid down a right to complain in cases where the taxpayer had been ordered to give access to archives pursuant to section CARDINAL ( CARDINAL ) ( b ) :", "\" A person ordered to provide information or to cooperate with an inspection pursuant to LAW , may lodge a complaint if he considers that he has no duty to comply , or is prohibited by law from doing so . ... \"", "\" The order shall be complied with even if the complaint has not been decided , unless the person who has issued the instruction grants a stay of implementation of the measure . Such a stay shall be granted where the person who has given the order finds that the complaint raises reasonable doubt as to the legality of the order . A stay shall be granted where the order concerns the presentation of documents which are sealed and deposited according to regulations issued by ORG . \"", "Various provisions supplementing LAW may be found in ORG of DATE no . DATE . Pursuant to LAW , the tax subject ought to be informed about his or her duty to provide information and his right to complain about an order to assist in the audit .", "DATE Regulations provided that in the event of a complaint about an order to produce documents the documents in question ought to be placed in a sealed envelope . The person conducting the review could , where appropriate , decide that the envelope should be deposited with him or her until the complaint has been decided . If the complaint was upheld , the envelope ought to be returned . If not , the complainant ought to be informed accordingly . Unless it would lead to considerable delay , the tax subject ought to be given an opportunity to be present when the seal is broken .", "DATE in conformity with section CARDINAL - CARDINAL(CARDINAL ) of the LAW the person conducting the review to draw up a report setting out in detail the information that should be included in the report . Under LAW a copy was to be sent to the tax subject .", "According to LAW , documents provided to the tax authorities pursuant to section CARDINAL of the Act ought to be returned as soon as possible , possibly after copies had been taken of specific documents deemed to be of significance for the tax assessment or the tax audit .", "DATE . ORG of DATE for the protection of individuals with regard to automatic processing of personal data ( “ the LAW ” ) , which entered into force for GPE on DATE , defines “ personal data ” as any information relating to an identified or identifiable individual ( “ data subject ” ) . Article CARDINAL , which deals with quality of data , provides :", "“ Personal data undergoing automatic processing shall be :", "a. obtained and processed fairly and lawfully ;", "b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes ;", "c. adequate , relevant and not excessive in relation to the purposes for which they are stored ;", "...", "e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored . ”", "Article CARDINAL on “ Data security ” states :", "“ Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access , alteration or dissemination . ”", "DATE , providing for “ Additional safeguards for the data subject ” , reads :", "“ Any person shall be enabled :", "a. to establish the existence of an automated personal data file , its main purposes , as well as the identity and habitual residence or principal place of business of the controller of the file ;", "b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form ;", "c. to obtain , as the case may be , rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in DATE and CARDINAL of this convention ;", "d. to have a remedy if a request for confirmation or , as the case may be , communication , rectification or erasure as referred to in paragraphs b and c of this article is not complied with . ”", "Article CARDINAL , setting out the conditions for “ Exceptions and restrictions ” , provides :", "“ CARDINAL . No exception to the provisions of Articles CARDINAL , CARDINAL and CARDINAL of this convention shall be allowed except within the limits defined in this article .", "Derogation from the provisions of ORG CARDINAL , CARDINAL and CARDINAL of this convention shall be allowed when such derogation is provided for by the law of the ORG and constitutes a necessary measure in a NORP society in the interests of :", "a. protecting ORG security , public safety , the monetary interests of the ORG or the suppression of criminal offences ;", "b. protecting the data subject or the rights and freedoms of others .", "Restrictions on the exercise of the rights specified in DATE , paragraphs b , c and d , may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects . ”" ]

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[ "8" ]

[ "8-1" ]

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[ "The applicant was born in DATE . He is currently detained in FAC .", "The applicant was suspected of being involved in an armed robbery . On DATE police officers from the organised crime unit of ORG conducted an operation and the applicant was arrested . At the time of his arrest , the applicant was at a real estate office , owned by CARDINAL of his relatives . Many of his relatives , including his children , were in this office at the relevant time . The applicant was allegedly beaten severely on his neck and back during his arrest . He was subsequently taken to ORG in GPE , without having a medical examination .", "The applicant was allegedly blindfolded and interrogated in the security directorate building . During his interrogation , it is alleged that the applicant was stripped naked , punched , beaten with a truncheon , and had his testicles squeezed . However , the ORG maintained that the applicant 's statement was taken in the presence of his lawyer , PERSON .", "On DATE the applicant was taken to ORG where he was examined by a doctor . According to his report , the doctor found no signs of injury on the applicant 's body . The same day , he was placed in detention on remand .", "In DATE , complaining of a stiff neck and facial paralysis , the applicant went to see the prison doctor . The doctor transferred him to ORG .", "On DATE the applicant filed a complaint with the public prosecutor and maintained that he had been severely beaten during his arrest .", "Following certain medical tests , on DATE the ORG delivered its report , in which it was stated that the applicant was suffering from post - traumatic vertebral disorders and that he had an old fracture on his CCARDINAL vertebrae .", "On DATE the applicant gave a statement to the public prosecutor , and repeated his allegations . He maintained that he had been severely beaten on his neck during his arrest .", "NORP The public prosecutor took statements from the eye - witnesses to the applicant 's arrest and the QUANTITY police officers involved . In their statements taken on DATE , the applicant 's son GPE , his daughter ORG , his brother - in - law GPE and sister - in - law GPE explained to the prosecutor that they had seen the police officers beat the applicant heavily on the neck . On DATE the prosecutor took statements from CARDINAL officers , PERSON and GPE , who had been involved in the applicant 's arrest . The officers denied the accusations . Subsequently , on DATE and CARDINAL DATE , respectively , PERSON and GPE , the CARDINAL other police officers involved in the applicant 's arrest , gave identical statements to the public prosecutor and denied the allegations .", "Upon the request of the public prosecutor , ORG prepared a final report concerning the applicant 's injuries . In its report dated DATE , ORG concluded that , although the applicant 's injuries did not constitute a danger to his life , he was unfit to work for DATE . The fracture on the applicant 's CCARDINAL vertebrae and the disorders on his vertebras were estimated to be DATE on DATE . It was also indicated that it had not been medically possible to determine the exact date of the incident . While drafting this report , ORG based itself solely on the report of ORG , dated DATE .", "On DATE the public prosecutor filed an indictment with ORG and initiated criminal proceedings against the QUANTITY police officers for ill - treatment .", "In a hearing held before ORG on DATE , the accused police officers PERSON and PERSON appeared before the court and denied the accusations . Neither the applicant nor his witnesses were present at this hearing .", "On DATE the applicant 's children GPE and GPE appeared before the court . They explained that they had seen the police officers beat their father on the back and particularly on his neck . They told the court that they could identify the police officers who had beaten him if they met them face to face . The accused police officers were not present at this hearing .", "On DATE the applicant 's statement was taken by ORG . He repeated his allegations of ill - treatment .", "On DATE the accused police officer PERSON 's statement was taken on commission before ORG . He denied the accusations .", "On DATE ORG decided that it lacked jurisdiction and transferred the case file to ORG .", "On DATE the proceedings against the CARDINAL accused police officers were resumed before ORG .", "On DATE the applicant 's statement was taken once again before ORG .", "On DATE ORG took the statement of PERSON on commission .", "On DATE ORG heard the statements of the CARDINAL accused officers , PERSON and PERSON", "On DATE the applicant 's children GPE and GPE testified once again that that they had seen their father being beaten during his arrest . However , they explained that , as a long time had passed , they would no longer be able to recognise the police officers .", "On DATE ORG took a statement from GPE , the fourth accused police officer . Before the court , PERSON denied the allegations . On DATE , the court delivered its judgment and acquitted the police officers of the charges against them on account of a lack of evidence .", "On DATE ORG rejected the applicant 's appeal request ." ]

[ "3" ]

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[ "Mr ORG was born in DATE and lives in PERSON . Since DATE he has worked as a bus driver .", "The applicant met PERSON in DATE . They were friends but did not have a steady relationship . On DATE PERSON gave birth to a daughter , PERSON , of whom the applicant was the father . The applicant visited PERSON and the child at the maternity ward on CARDINAL occasion . In DATE he met PERSON twice at K.W. ’s home . He also attended PERSON ’s christening . During DATE , he once looked after PERSON for TIME . No further contacts took place between the applicant and his daughter that year .", "As appears from a report by ORG ( socialnämnden ) of PERSON ( see paragraph CARDINAL below ) , PERSON claimed that the applicant had a problem with alcohol and considered it inappropriate that he met the daughter unless he was sober . The applicant maintained that he gave up his attempts to see PERSON , in part because he felt obstructed by PERSON , in part because his continued commitment to the daughter had been undermined by difficulties in his job . He had also had problems with alcohol .", "According to the applicant , these problems ceased when he met PERSON in DATE . She had a DATE son . They started cohabiting in DATE .", "In DATE PERSON met PERSON They began to live together in DATE . PERSON and PERSON married in DATE .", "The applicant met his daughter once in DATE . He wished to see her more often but PERSON allegedly opposed further contacts . However , the applicant saw the daughter from time to time DATE when he and PERSON took her son to his childminder , who lived close to PERSON ’s childminder . The applicant met PERSON again in DATE when she attended PERSON ’s son ’s birthday party .", "Since PERSON allegedly refused the applicant access to PERSON , he contacted the social authorities in GPE in DATE and asked for help in arranging for access to M. In DATE the applicant and PERSON met once at the social welfare office to discuss the matter . PERSON expressed the wish that the applicant should not have access to his daughter yet . The PERSON responsible social worker had some further contacts with the applicant and PERSON separately in DATE , but no meetings took place between the applicant and PERSON As appears from the relevant diary entries , he contacted the authority concerned once DATE , at the most .", "NORP In DATE , PERSON applied to ORG ( tingsrätten ) of PERSON for permission to adopt PERSON In DATE the applicant , who objected , requested ORG to grant him access . The court decided to obtain an opinion from ORG , section DATE ) and to adjourn its examination of the question of access pending the outcome of the adoption proceedings .", "The Council carried out an investigation during which it heard the applicant ( Chapter CARDINAL , section CARDINAL , of LAW ) , PERSON and PERSON In an opinion of DATE , the ORG concluded that adoption of PERSON by ORG would not be in the child ’s best interests and , accordingly , recommended ORG to reject PERSON ’s application . In reaching this conclusion , the ORG had regard to the following considerations .", "In the first place , it was observed that PERSON and PERSON had been living together for DATE and had been married since DATE . It appeared that their marriage was stable and harmonious . PERSON had become PERSON ’s psychological father and had feelings for her as though she was his own child . PERSON considered it appropriate to confirm this by adopting her and thereby secure her position within the family .", "The report further noted that the applicant seemed to have a stable relationship with ORG and her son . He had affirmed that he had always had an interest in his daughter but that , for DATE , he had not had the energy to have contact with her because of his difficult situation . He was opposed to adoption and considered that his daughter had a right to know her natural father . The applicant was aware of the fact that the contact had to be developed cautiously over a certain period .", "In addition , the report observed :", "“ The investigators are of the opinion that [ M. ] , like all other children , has a right to know her descent . It is also important that she be informed as early as possible . Thus , we disagree with [ K.W. ’s ] and [ ORG ’s ] opinion that it is better for [ M. ] to wait . On the contrary , we believe that , in all probability , it will be a traumatic experience for [ M. ] to be told , in her teens or as an adult , that [ M.W. ] is not her natural father . We also consider that [ M. ] has a right to get to know her father and his family . We do not share [ K.W. ’s ] and [ PERSON ’s ] fears that [ M. ] would become distant from [ PERSON ] , although it would be natural for her to react in CARDINAL way or another . However , we are of the opinion that it could be beneficial for [ M. ] to get to know her father and his family . Her feeling of belonging to [ M.W. ] does not , for that reason , have to be changed and [ M.W. ] will probably always be [ M. ’s ] psychological father .", "", "The investigators do not consider that there is question of making an assessment of who is the ‘ best’ father but rather a matter related to the right to know , and to enjoy access to one ’s descent . Therefore we do not find it appropriate to support ORG ’s request to adopt M. ”", "ORG held a hearing on DATE during which it heard the applicant ( Chapter CARDINAL , section CARDINAL , of LAW ) and PERSON By decision of CARDINAL DATE , the court granted PERSON permission to adopt PERSON under LAW , section CARDINAL , of LAW . The court gave the following reasons :", "“ The investigation in the case shows that [ M. ] since birth has lived with [ K.W. ] and that [ M.W. ] has taken part in the care of [ M. ] since she was DATE . According to the information received , [ M. ] sees [ PERSON ] as her father . [ The applicant ] appears to have met [ M. ] occasionally in the beginning , but access has thereafter practically ceased . In these circumstances , PERSON can not be considered to have such a need of contact with [ the applicant ] as to constitute an impediment to adoption .", "For these reasons , and since adoption must otherwise be considered to be in her interest , the application shall be granted . ”", "On DATE ORG ( PERSON hovrätt ) upheld ORG decision . On DATE ORG ( ORG domstolen ) refused leave to appeal .", "General provisions on custody and access are to be found in LAW of LAW . Section CARDINAL provides that , from birth , the custody of a child rests with the child ’s parents , if they are married , or its mother , if the parents are not married . According to section CARDINAL , unmarried parents may obtain joint custody on application .", "Under LAW , section CARDINAL , the child ’s custodian shall see to it that the child ’s need of access to , inter alia , a parent who does not have custody is satisfied to the largest possible extent . If the custodian objects to the access requested by a parent who does not have custody , the courts shall , on an action brought by the latter parent , determine the question of access in keeping with the child ’s best interests .", "Chapter CARDINAL of the Parental Code contains provisions on adoption . Section CARDINAL provides that a spouse may , with the consent of the other spouse , adopt the other spouse ’s child . According to section MONEY ) , a child who has not attained the age of DATE may not be adopted without the consent of its parents . Such consent is however not required from a parent who does not have custody of the child .", "Under LAW , section CARDINAL , the competent court is to examine whether adoption is appropriate and may grant permission only if it is to the CARDINAL advantage of the child and if the prospective adopter has brought up the child or intends to do so or if there are special reasons for the adoption in view of the special relationship between the adopter and the child .", "According to LAW , section CARDINAL , an adopted child is for legal purposes regarded as the adopter ’s child and not that of the natural parent , except where the natural parent is the adopter ’s spouse . Where this exception does not apply , the rights of access enjoyed by the natural parents to the child cease by virtue of the adoption ." ]

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[ "8" ]

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[ "The applicant was born in DATE and lives in ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was a public servant working for ORG ( “ FAC ) . He was laid off following disciplinary proceedings . On DATE he instituted proceedings before ORG against ORG and ORG ( “ The Ministry ” ) and the ORG seeking the annulment of the decision on termination of his employment contract together with all the rights and benefits stemming from the termination of the contract .", "On DATE the first hearing was held .", "On DATE the court issued a decision after the applicant withdrew his claim against ORG .", "DATE and DATE the first - instance court held CARDINAL hearings . In addition , in DATE and DATE CARDINAL hearings were postponed on the request of the defendant party . A hearing was held on DATE .", "On DATE the first - instance court rendered a judgment rejecting the applicant ’s request . He appealed .", "On DATE ORG upheld the appeal in part and remitted the case for re - examination . The court remitted part of the case because a preliminary submission of the defendant had not been sent to the applicant and he could therefore not submit his comments on the matter .", "On DATE the first - instance court held a hearing and rendered a judgment . The court found the first - instance disciplinary decision ( see paragraph CARDINAL above ) to be lawful and the second - instance decision to be unlawful . Accordingly the court concluded that the applicant ’s employment contract had been terminated lawfully , however the decision on termination became final only when the judgment became final . The court therefore found that the applicant was entitled to the employment rights and benefits for the relevant period . The applicant appealed .", "On DATE ORG issued a corrigendum of the judgment .", "On DATE ORG delivered a judgment . As the applicant kept lodging new requests concerning his rights and benefits throughout the proceedings the appeal court considered one such request in the appeal as a request for a supplementary judgment . The court rejected the remainder of the appeal and in this part the judgment became final . The applicant lodged an appeal on points of law .", "On DATE ORG rejected the appeal on points of law on procedural grounds . The applicant appealed .", "On DATE ORG upheld the appeal . The appeal on points of law was sent to ORG .", "On DATE ORG rejected the appeal on points of law . The applicant lodged a constitutional appeal .", "On DATE the first - instance court issued a judgment ( see paragraph CARDINAL above ) . The applicant appealed .", "On DATE the appeal was rejected . The appeal court found inter alia that the applicant had been requesting rights and benefits after the appeal judgment became final without any grounds .", "On DATE ORG rejected the constitutional appeal .", "On DATE the applicant ’s former employer instituted proceedings against him before ORG seeking the restitution of work - related material following the dismissal .", "On DATE ORG issued a decision ordering the applicant to return the disputed material . The applicant appealed .", "On DATE the court held a hearing and annulled the decision . The plaintiff appealed .", "On DATE ORG rejected the appeal .", "On DATE a decision was issued , whereby due to lack of jurisdiction the case was transferred to ORG .", "On DATE the applicant lodged a counter claim seeking payment for the updates he made to a computer and car expenses .", "On DATE the proceedings were stayed . The proceedings resumed on DATE .", "On DATE ORG issued a decision on termination of proceedings following the withdrawal of the claim by the plaintiff . The applicant , however , decided to pursue his counter claim .", "On DATE the ORG issued a decision on lack of jurisdiction . The case was transferred to ORG .", "DATE and DATE ORG held CARDINAL hearings .", "After the last hearing the court rendered a judgment upholding the applicant ’s request in part . Both parties appealed .", "On DATE the Higher Labour and ORG upheld the appeals and remitted the case for re - examination .", "On DATE ORG held a hearing and rendered a judgment upholding the applicant ’s request in part . An appeal was lodged .", "On DATE the Higher Labour and ORG rendered a judgment .", "For relevant domestic law see PERSON v. GPE ( no . CARDINAL ,", "DATE ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national born in DATE . She is unemployed and resides in PERSON .", "A.", "The applicant and her husband agreed to transfer the tenancy of an apartment situated at FAC DATE in PERSON to an individual . The latter orally promised to the applicant that her family could move to a smaller apartment situated at FAC in LOC .", "On DATE the applicant and her husband signed a formal agreement according to which the right to use the apartment situated at GPE street DATE would be transferred to the aforesaid individual as from DATE . Section III § CARDINAL of the agreement stated that the applicant and her husband were liable to pay the rent until the agreement became operative , and that after the transfer their address would be GPE street CARDINAL . The agreement was signed in the presence of a representative of the co - operative which owns the apartment situated at GPE street DATE . ORG", "Subsequently the applicant found out that her family could not move into the apartment situated at GPE street CARDINAL as it was occupied by another person . She therefore challenged the agreement of DATE before ORG súd - “ the ORG ” ) on the ground that the individual concerned had made her sign the agreement under false pretences .", "On DATE ORG dismissed the applicant ’s action . At the hearing a representative of the co - operative concerned stated that the applicant and her husband had signed the agreement of their own free will and without any reservations . Neither this witness nor the CARDINAL other witnesses heard by the court were in a position to confirm the applicant ’s allegation that she had been promised the right to live in the apartment situated at GPE street CARDINAL . Since there was no evidence which supported the LOC allegation , the court concluded that the applicant had failed to show that she and her husband had concluded the agreement under circumstances which could affect its validity within the meaning of Sections CARDINAL § CARDINAL and CARDINAL of LAW ( see “ Relevant domestic law “ below ) .", "The applicant appealed . She alleged that the individual who had offered them the deal had acted in a fraudulent way and invoked Sections CARDINAL , CARDINAL § CARDINAL and CARDINAL of LAW .", "On DATE the ORG ( Krajský súd - “ ORG “ ) upheld ORG judgment of DATE . ORG found that ORG had established all relevant facts of the applicant ’s case with sufficient certainty , and that it had assessed them correctly from the legal point of view . In particular , ORG noted that CARDINAL witnesses had confirmed that the applicant and her husband had signed the agreement of their own free will . It found no evidence indicating that the agreement was void for any of the reasons set out in Sections CARDINAL and CARDINAL of LAW .", "In ORG view , Section III § CARDINAL of the agreement of DATE referred to GPE street CARDINAL as the applicant ’s future address solely in the context of arrangements regarding the advance payments of the rent for the apartment situated at GPE street DATE until the applicant ’s departure from that apartment . ORG held it therefore for irrelevant that the applicant could not actually move into the apartment situated at GPE street CARDINAL .", "On DATE ORG ordered the applicant to vacate the apartment situated at GPE street DATE . On DATE ORG upheld this decision . Both courts established , with reference to the reasons set out in their judgments of DATE and DATE respectively , that the applicant and her husband had transferred the right to use the apartment in question to another individual and concluded that they lived in it without any legal ground .", "B. Relevant domestic law", "The following provisions of LAW are relevant in the present case :", "Section CARDINAL § CARDINAL provides that the exercise of civil rights and obligations must not , unless there is a relevant legal ground for it , interfere with justified rights and interests of others and that it must not be contrary to boni mores .", "Under LAW , public authorities shall ensure that civil rights and obligations are not infringed .", "Pursuant to LAW , for a legal act to be valid , it has to be carried out freely , with serious intention , certainly and clearly .", "Under LAW § CARDINAL , any legal act the subject of which can not be attained is to be considered as being void .", "Section CARDINAL provides that a legal act is void if , by its nature or contents , it is contrary to or circumvents the law , or if it is contrary to boni mores ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE region .", "The applicant receives an old - age pension . The Law on Calculating and Upgrading State Pensions of DATE ( the “ Pensions Law ” ) introduced , since DATE , a new method of calculating pensions . This method , “ Individual Pensioner Coefficient ” ( “ ORG ” ) , was meant to link a person ’s pension to his previous earnings .", "On DATE the applicant brought proceedings against the PERSON labour and social development authority ( Департамент труда и социального развития ) before ORG . He argued that his ORG should be fixed at TIME , which would result in an increase in his pension .", "ORG found for the applicant and ordered the defendant authority to re - calculate the applicant ’s pension from DATE based on the ORG equal to PERCENT and pay the arrears of MONEY . According to the applicant and the documents submitted by him , the judgment was dated DATE and came into force on DATE . According to the ORG , the judgment was dated DATE and came into force on DATE .", "On DATE ORG issued a writ of execution . On DATE the PERSON bailiff ’s service instituted enforcement proceedings . As the payments in enforcement of the judgment had not been made the applicant complained to various authorities . In letters of DATE and DATE the enforcement proceedings supervision department of the GPE region division of ORG informed him that the judgment debt would be paid to him upon receipt of funds from the ORG budget .", "According to the ORG , the PERSON labour and social development authority lodged an application with ORG for reconsideration of the judgment given in the applicant ’s case due to discovery of new circumstances . The authority argued that such a circumstance was an instruction of ORG DATE , which interpreted LAW in a way different from that in the judgment . On DATE ORG granted the authority ’s application and quashed the judgment due to discovery of new circumstances , notably the above ministerial instruction .", "According to the applicant , he was never informed of the court decision of DATE .", "On DATE the PERSON bailiff ’s service terminated the enforcement proceedings . It stated in its decision as follows :", "“ The proceedings [ instituted on the basis of the writ of execution in favour of A. K. Sukhobokov ] should be considered as terminated in connection with remitting the writ of execution , without enforcement , at the request of the court .", "On the basis of the foregoing , being governed by LAW ) of LAW , decided that :", "NORP The enforcement proceedings no . ... should be considered as terminated .", "NORP The present decision may be appealed against to a relevant court within a DATE term .", "NORP The enforcement proceedings [ file ] should be transferred to the archive .", "The writ of execution no . ... issued by the Volgodonsk ORG should be remitted to ORG ... ”", "According to the applicant , he received a copy of that decision on DATE .", "According to the applicant , the amount of his DATE pension was MONEY as of DATE .", "Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .", "Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of execution by the bailiff .", "Section CARDINAL of the PERSON reads :", "“ CARDINAL . The enforcement proceedings are terminated :", "...", "CARDINAL ) NORP by remitting the writ of execution , without enforcement , to the court or other body , by which it was issued , or a creditor at their request ; ”", "...", "NORP The bailiff ’s decision on the termination of the enforcement proceedings is subject to appeal to a relevant court within a DATE term . ”" ]

[ "6" ]

[ "6-1" ]

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[ "On DATE four armed robbers wearing masks entered the premises of a transport company which employed a number of inmates from ORG who were in semi - detention or on external work assignments . After locking the entire staff in the lavatories , they forced the company manager , whom they had taken hostage , to open the safe , from which they stole MONEY ( ORG ) in cash before making off .", "The investigators concentrated their inquiries on some of the prison inmates . CARDINAL of them , ORG , had witnessed the offences and been threatened by the robbers .", "On DATE the managing director of the company had a cheque stolen . The home of CARDINAL of the company ’s employees , ORG , was searched and a forged identity card bearing the applicant ’s photo was discovered , together with a sawn - off shotgun . The employee admitted that he had provided the applicant with information to help him commit the armed robbery in return for the sum of FRF CARDINAL,CARDINAL . He also stated that he had recognised the applicant while the offence was being committed despite the mask he had been wearing and that the applicant was the robber who had been carrying the sawn - off shotgun .", "On DATE the investigating judge at the GPE tribunal de grande instance decided to have the applicant detained pending trial and issued a warrant of commitment for armed robbery , false imprisonment , and wounding with intent and wilful violence resulting in total unfitness for work for DATE .", "On DATE the investigating judge made an order extending detention for DATE from DATE .", "NORP The applicant ’s detention was twice extended for a further DATE , on DATE from DATE and on DATE from DATE .", "On DATE the investigating judge substituted for the charge of false imprisonment with voluntary release ( an intermediate offence ( délit ) ) the more serious CARDINAL of false imprisonment ( crime ) and made a partial discharge order . In accordance with LAW , he ordered that the file be transferred to the public prosecutor ’s office at ORG with a view to ORG indicting the applicant and committing him for trial at ORG . That order was served on the applicant on DATE .", "In a judgment of CARDINAL DATE ORG of ORG ordered further investigations to be made and appointed for that purpose the investigating judge at the GPE tribunal de grande instance who had previously been in charge of the investigation .", "On DATE the applicant requested that a bailiff be called on to record officially that his detention had become unlawful as the last order extending it , dated DATE and effective from TIME on DATE for a period of DATE , had expired at TIME on DATE .", "In a formal demand for information ( sommation interpellative ) addressed to the governor of ORG the bailiff asked to be sent the detention order by virtue of which the applicant was still being held in his prison . In reply he was told that the applicant was being detained under the transfer order of CARDINAL DATE and ORG judgment of DATE .", "The applicant stated that he had lodged a complaint with the NORP public prosecutor alleging arbitrary detention but had received no reply .", "On DATE the applicant made an application to ORG for his immediate release on the ground that he was being detained arbitrarily as the judge ’s initial warrant of commitment had ceased to have any effect on DATE .", "In a judgment of DATE ORG dismissed that application for the following reason :", "“ It is not disputed that the judgment of DATE was delivered within the time laid down by the last paragraph of LAW . Consequently , since ORG did not rule on the facts being investigated , the warrant of commitment issued by the investigating judge continued to have effect .", "… ”", "In the same judgment ORG ordered that the applicant should be kept in custody to avoid all risk of pressure being brought to bear on witnesses or collusion and because he could not provide sufficient sureties that he would appear for trial .", "NORP The applicant appealed on points of law , relying on grounds of appeal based , firstly , on an infringement of LAW and , secondly , on a breach of ORG and CARDINAL of LAW and LAW .", "In a judgment of CARDINAL DATE ORG dismissed the appeal on the following grounds :", "“ It appears from the impugned judgment and the documents on the file that on DATE a warrant of commitment was issued in respect of [ the applicant ] , who was under investigation for offences including armed robbery . On expiry of its validity DATE , the investigating judge extended the detention CARDINAL times for DATE , the final extension taking effect on DATE .", "On DATE , following the investigating judge ’s transfer order of CARDINAL DATE , ORG ordered further investigations .", "[ The applicant ] made an application to ORG for his release , alleging that the detention order had ceased to be valid on DATE and that he had been unlawfully detained since that date ; that application was refused in the judgment now appealed against .", "In so ruling , the investigating court did not lay itself open to the objections raised . Since the judges ordered further investigations within the time allowed by LAW , third paragraph , of the Code of Criminal Procedure , the initial warrant of commitment remained effective , in accordance with LAW , second paragraph , of the LAW , after the transfer order was issued and so remains until a decision on indictment is taken … ”", "On DATE , after completion of the further investigations , ORG directed that the applicant be committed for trial at ORG charged with armed robbery , false imprisonment and other connected lesser offences . The judgment committing the applicant for trial at ORG also contained an order for him to be remanded in custody . An appeal on points of law by the applicant against that judgment was dismissed by ORG on DATE .", "On DATE the applicant was tried at ORG , which sentenced him to CARDINAL years’ imprisonment . In a judgment delivered on DATE on the civil claims the applicant was ordered to pay the civil party FRF CARDINAL in damages .", "In a judgment of CARDINAL March CARDINAL ORG dismissed appeals on points of law by the applicant against ORG judgments .", "The relevant provisions of LAW , as worded before the passing of LAW of DATE reinforcing the presumption of innocence and the rights of victims , provide as follows :", "“ The investigating judge may issue … a … warrant of commitment ...", "The warrant of commitment is the order given by an investigating judge to a prison governor to admit the person and take him into custody … ”", "“ The investigating judge may issue a warrant of commitment only after examining the person concerned and if the penalty is imprisonment for an intermediate offence [ peine d’emprisonnement correctionnelle ] or for a more serious offence .", "In cases involving serious offences [ matière criminelle ] or intermediate offences [ matière correctionnelle ] , warrants of commitment may only be issued pursuant to the order provided for in Article CARDINAL … ”", "“ Whatever the classification of the offence , any decision to detain pending trial must be embodied in an order setting out the legal and factual reasons for the decision with reference solely to the provisions of LAW .", "The person concerned shall be informed orally of the order and be given a complete copy of it …", "However , the investigating judge may not order the immediate detention of the accused if he or his lawyer requests time for the preparation of his defence .", "In that case the investigating judge may , in an order that is reasoned with reference to the provisions of the preceding paragraph and against which no appeal shall lie , direct that the person be taken into custody for a fixed period , which may in no case exceed DATE .", "Within that period he shall again have the person brought before him … If he does not order detention of the person pending trial , the latter shall automatically be released … ”", "“ In cases involving serious offences [ matière criminelle ] an accused can not be held in detention for DATE . However , subject to the provisions of LAW , the investigating judge may , at the end of that period , decide to prolong detention for a period not exceeding DATE by means of a decision made in accordance with the provisions of the first and fourth paragraphs of Article CARDINAL , his lawyer having been summoned in accordance with the provisions of the second paragraph of LAW . That decision shall be renewable by means of the same procedure .", "The provisions of this Article shall apply until the disposal order is made . ”", "“ An application for release may … be made by any accused for any reason and at any stage in the proceedings .", "Where application is made to a court of trial or appeal , it shall be for the latter to grant conditional release ; before committal for trial at ORG , and in between ORG sessions , that power belongs to ORG … ”", "“ If the investigating judge considers that the facts amount to an offence classified in law as a serious offence [ crime ] , he shall order that the case file and a list of the exhibits be sent immediately by the public prosecutor to ORG at ORG with a view to proceeding as set out in the chapter on ORG .", "Warrants for the arrest or commitment of an accused shall remain in force until ORG has given its ruling . ”", "“ ORG may in all cases , at the request of ORG , of CARDINAL of the parties or even of its own motion , order any additional investigative measure which it considers useful .", "It may also in all cases order the release of the accused of its own motion after hearing the prosecutor . ”", "“ If the offences with which the accused are charged are classified in law as a serious offence [ crime ] , ORG shall commit the accused for trial at ORG .", "It may also refer connected offences to that court .", "ORG shall give its ruling within DATE of the date of the transfer order , failing which the accused shall automatically be released . ”", "“ Persons ordered to be detained pending trial or sentenced to imprisonment shall be admitted to a prison .", "A memorandum of imprisonment shall be drawn up for any person who is taken to a prison or reports to a prison of his own accord . ”", "“ Members of the prison service shall not , on pain of prosecution and punishment for arbitrary detention , admit or detain any person except in pursuance of a judgment imposing a prison sentence , an arrest and detention order made by ORG [ ordonnnance de prise de corps ] , a warrant of commitment or arrest [ mandat de dépôt ou d’arrêt ] , a warrant for the suspect to be brought before the investigating judge [ mandat d’amener ] wherever such a warrant is to be followed immediately by a period of interim detention , or an arrest order drawn up in accordance with the law , or without issuing the memorandum of imprisonment required by LAW . ”", "The relevant case - law on some of the aforementioned ORG is as follows :", "“ Since the second paragraph of LAW entitles ORG to order the release of the accused of its own motion regardless of the circumstances in which the matter was referred to it , the accused must be released if he is being held by virtue of a non - existent order . Such is the case when an order extending a period of pre - trial detention , although not appealed against , was issued out of time . ”", "( PERSON . PERSON . , DATE , ORG , p. CARDINAL , note by PERSON ; ORG . II . DATE , note by PERSON ; PERSON . crim . no . CARDINAL [ ; and ] PERSON . PERSON . , CARDINAL DATE : Bull . crim . no . CARDINAL )", "“ By DATE paragraph , ORG must give its ruling within DATE of the date of the transfer order , failing which the accused must automatically be released . The requirements of that provision are satisfied by a judgment in which further investigations are ordered within that time - limit . ”", "( PERSON . PERSON . , DATE : Bull . crim . no . CARDINAL )", "“ In that case , it is not necessary to give any decision on pre - trial detention . ”", "( PERSON . PERSON . , DATE : ORG . crim . no . CARDINAL ; PERSON . PERSON . , DATE : ORG . crim . no . CARDINAL )", "“ By DATE , the initial detention order automatically remains in force from the point at which the order to transfer the case is made until ORG gives its decision … ”", "( PERSON . PERSON . , DATE : Bull . crim . no . CARDINAL )", "“ Whenever ORG has ruled within the time laid down by LAW , third paragraph , even if only for the purpose of ordering further investigations , the initial warrant of commitment remains in force until the accused is indicted as prescribed by LAW , second paragraph . ”", "( PERSON . PERSON . , DATE : Bull . crim . no . CARDINAL )" ]

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[ "5" ]

[ "5-1" ]

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[ "Mr PERSON ( the first applicant ) joined ORG as a radio operator and in DATE commenced a career in ORG . On DATE he became a midshipman in the executive branch of the navy . His evaluation of DATE noted that he was an officer with “ great potential ” and the “ sort of person that ORG needs to attract and retain ” . His evaluation of DATE concluded that the applicant “ is a balanced , enlightened and knowledgeable man who enjoys my complete trust in all matters . He is an outstanding prospect for early promotion to commander . ” In DATE the applicant attained the rank of lieutenant - commander .", "For DATE prior to DATE the applicant had been involved in a steady relationship with a civilian partner . In DATE the applicant was informed that ORG ( “ the service police ” ) had been given his name anonymously in connection with an allegation of homosexuality and was investigating the matter . The applicant admitted to his commanding officer that he was homosexual .", "The applicant was interviewed on DATE by personnel from the service police about his sexual orientation for TIME . At the beginning of the interview , the applicant was cautioned that he did not have to answer questions and that any responses could be used in evidence later . He was also informed that he could obtain legal advice . The applicant confirmed his awareness of those rights and agreed to be interviewed without legal advice . He then confirmed that he was homosexual , acknowledging that he had been a practising homosexual since his teenage years .", "He was then asked , inter alia , whether he had had homosexual contact with service personnel ( CARDINAL questions on this subject ) , what type of sexual relations he had had with a particular person , when and where this had occurred , about his current relationship and whether his parents knew of his homosexuality . The applicant was asked repeatedly about who had tipped him off that he was the subject of an investigation by the service police and he was told that the question was put because the service police had “ a lot of background knowledge about certain things ” and there was somebody “ providing information to us ” . The applicant indicated that he was anxious to assist the service police to make sure that the issue was kept as “ private and discreet as possible ” . He was then informed that a search was normally completed but the search did not take place since , in anticipation , the applicant had already cleared his cabin of any incriminating evidence .", "The applicant was again interviewed on DATE for TIME . It was explained to the applicant that the purpose of the interview was to ask him about an allegation , contained in an anonymous letter sent to the applicant ’s commanding officer some time previously , that the applicant had had a relationship with a serviceman . The interviewer then explained that he was “ attempting to keep the need to visit GPE and to investigate this matter to a minimum ” , as the applicant wished . The applicant was then asked whether he had had the relationship as alleged in the letter . The anonymous letter was read . The writer claimed that he had recently had a relationship with the applicant , that the writer was HIV - positive and that he believed that the applicant was involved with a member of the armed forces . The applicant ’s comments were requested , in particular , as to who would have written the letter . The interviewer also enquired of the applicant “ purely as a matter of interest , although it ’s a personal thing ” whether the applicant was HIV - positive . In this context , it was indicated a number of times to the applicant that the purpose of the second interview was to avoid further investigations . He was also told that it would “ come back ” on the applicant ’s interviewer if the latter did not properly follow up on the anonymous letter .", "In a final evaluation dated DATE the applicant ’s commander noted that the applicant left the ship “ with a well - deserved reputation for outstanding professional ability and admirable personal qualities ” . He concluded that the applicant ’s “ loyal , dependable and always dignified service ” would be “ sorely missed ” .", "On DATE ORG informed the applicant that it had decided to terminate his commission and to discharge him , administratively , from the navy with effect from DATE . The ground for his discharge was his sexual orientation . The applicant ’s commission was removed and most of the bonus which he had received with that promotion was recouped by the naval authorities ( £ MONEY out of £ MONEY ) . His term of service would otherwise have terminated in DATE , with the possibility of renewal .", "On DATE Mr PERSON ( the second applicant ) joined ORG , enlisting for DATE service . In DATE he became a substantive weapons engineering mechanic . The applicant ’s report dated CARDINAL DATE noted that he displayed potential in a number of areas essential to good leadership , that he had the ability to become an above - average leading hand and that if he applied his new skills wisely he could , with experience , be considered as a potential officer candidate .", "In DATE the applicant had been refused time off to deal with a personal matter ( he wished to collect his Aids test results ) and consequently he spoke with the chaplain , to whom he admitted his sexual orientation . On DATE the applicant was asked by his lieutenant - commander to repeat what he had told the chaplain and he again admitted his homosexuality to that officer . He was then called for interview by the service police . He was cautioned in the same terms as the first applicant and told that he would not be questioned on the above admissions prior to a search of his locker . His consent to the search was requested and given . The interview , which had lasted TIME , was suspended pending the search . During the search , slides ( of himself , his partner and some of his service friends ) and personal postcards were seized .", "The applicant ’s interview with the service police then resumed and lasted TIME . The applicant immediately confirmed his homosexuality , later clarifying that he first had “ niggling doubts ” about his sexual orientation DATE previously . He was then questioned about a previous relationship with a woman ; he was asked the woman ’s name and where she was from , when he had that relationship , why it ended , whether they had a sexual relationship , whether he enjoyed their relationship and whether “ she was enough for you ” . Details were sought as to how and what he did when he realised he was homosexual and , in this respect , he was asked what sort of feelings he had for a man , whether he had been “ touched up ” or “ abused ” as a child and whether he had bought pornographic magazines .", "The applicant was then questioned about his first and current homosexual relationship which began in DATE and , in this regard , he was asked TIME with his partner , who was “ butch ” and who was “ bitch ” in the relationship and what being “ butch ” meant in sexual terms . Detailed questions were put as to how they had sex and whether they used condoms , lubrication and other sex aids , whether they ever had sex in a public place and how they intended to develop the relationship . He was also asked about gay bars he frequented , whether he had ever joined contact magazines , whether his parents knew about his homosexuality and whether he agreed that his secret life could be used as a basis to blackmail him and render him a weak link in the service . The personal slides and postcards which had been taken from his locker were examined and the applicant was questioned in detail about their contents .", "The service police report completed after the applicant ’s interview included several internal documents where it was noted that the applicant , in openly declaring his homosexuality and his relationship with a civilian , had effectively disposed “ of any immediate potential security concern ” . For that reason , it was considered in the report that “ no cause was identified for conducting a security interview with ORG ” . That report also accepted that a case for fraudulent entry into the armed forces would be inappropriate given the date when the applicant had discovered his homosexuality . An officer , who advised ORG on the applicant ’s discharge , noted that the applicant ’s reporting officers had commented on his “ affability , intelligence , dedication and ambition ” and pointed out that , had it not been for the applicant ’s homosexuality , “ his ORG career would have blossomed ” .", "Prior to his discharge , the applicant completed his duties and remained in communal sleeping accommodation with no reported difficulties . On DATE the applicant ’s administrative discharge was approved on the basis of his homosexuality . The applicant then complained about the decision to discharge him to ORG and on DATE ORG dismissed the applicant ’s complaint .", "Along with PERSON and Mr PERSON ( see paragraph CARDINAL above ) , the applicants obtained leave to apply for judicial review of the decisions to discharge them from the armed forces . The applicants argued that the policy of ORG against homosexuals in the armed forces was “ irrational ” , that it was in breach of the LAW and that it was contrary to LAW . ORG maintained that the policy was necessary mainly to maintain morale and unit effectiveness , in view of the loco parentis role of the services as regards minor recruits and in light of the requirement of communal living in the armed forces .", "On DATE ORG dismissed the application for judicial review , Lord Justice PERSON giving the main judgment of the court . He noted that the cases illustrated the hardships resulting from the absolute policy against homosexuals in the armed forces and that all CARDINAL of the applicants had exemplary service records , some with reports written in glowing terms . Moreover , he found that in none of the cases before him was it suggested that the applicants’ sexual orientation had in any way affected their ability to carry out their work or had any ill - effect on discipline . There was no reason to doubt that , but for their discharge on the sole ground of sexual orientation , they would have continued to perform their service duties entirely efficiently and with the continued support of their colleagues . All were devastated by their discharge .", "PERSON reviewed the background to the “ age old ” policy , the relevance of ORG report of DATE , the position in other armed forces around the world , the arguments of ORG ( noting that the security argument was no longer of substantial concern to the Government ) together with the applicants’ arguments against the policy . He considered that the balance of argument clearly lay with the applicants , describing the applicants’ submissions in favour of a conduct - based code as “ powerful ” . In his view , the tide of history was against ORG . He further observed that it was improbable , whatever ORG would say , that the policy could survive for much longer and added , “ I doubt whether most of those present in court throughout the proceedings now believe otherwise . ”", "NORP However , having considered arguments as to the test to be applied in the context of these judicial review proceedings , PERSON concluded that the conventional ORG principles , adapted to a human rights context , should be applied .", "Accordingly , where fundamental human rights were being restricted , the Minister of Defence needed to show that there was an important competing interest to justify the restriction . The primary decision was for him and the secondary judgment of the court amounted to asking whether a reasonable Minister , on the material before him , could have reasonably made that primary judgment . He later clarified that it was only if the purported justification “ outrageously defies logic or accepted moral standards ” that the court could strike down the Minister ’s decision . He noted that within the limited scope of that review , the court had to be scrupulous to ensure that no recognised ground of challenge was in truth available to an applicant before rejecting the application . When the most fundamental human rights are threatened , the court would not , for example , be inclined to overlook some minor flaw in the decision - making process , or to adopt a particularly benevolent view of the Minister ’s evidence , or to exercise its discretion to withhold relief . However , he emphasised that , even where the most fundamental human rights were being restricted , “ the threshold of unreasonableness is not lowered ” .", "It was clear that the Secretary of ORG had cited an important competing public interest . But the central question was whether it was reasonable for the Secretary of ORG to take the view that allowing homosexuals into the forces would imperil that interest . He pointed out that , although he might have considered the Minister wrong ,", "“ … [ the courts ] owe a duty ... to remain within their constitutional bounds and not trespass beyond them . Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this ORG now to remove the issue entirely from the hands of both the military and of the government . If the Convention … were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to the benefits then clearly the primary judgment … would be for us and not others : the constitutional balance would shift . But that is not the position . In exercising merely a secondary judgment , this ORG is bound to act with some reticence . Our approach must reflect , not overlook , where responsibility ultimately lies for the defence of the realm and recognise too that ORG is exercising a continuing supervision over this area of prerogative power . ”", "Accordingly , while the Minister ’s suggested justification for the ban may have seemed “ unconvincing ” , the Minister ’s stand could not properly be said to be unlawful . It followed that the applications had to be rejected “ albeit with hesitation and regret ” . A brief analysis of the ORG ’s case - law led the judge to comment that he strongly suspected that , as far as GPE obligations were concerned , DATE of the policy were numbered .", "Simon Brown LJ also found that LAW was not applicable to discrimination on grounds of sexual orientation and that the domestic courts could not rule on Convention matters . He also observed that GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and the GPE permitted homosexuals to serve in their armed forces and that the evidence indicated that the only countries operating a blanket ban were GPE and GPE ( and , possibly , GPE and GPE ) .", "In DATE a consultation paper was circulated by ORG to “ management ” levels in the armed forces relating to ORG policy against homosexuals in those forces . The covering letter circulating this paper pointed out that the “ Minister for ORG has decided that evidence is to be gathered within ORG in support of the current policy on homosexuality ” . It was indicated that the case was likely to progress to the NORP courts and that the applicants in the judicial review proceedings had argued that ORG position was “ bereft of factual evidence ” but that this was not surprising since evidence was difficult to amass given that homosexuals were not permitted to serve . Since “ this should not be allowed to weaken the arguments for maintaining the policy ” , the addressees of the letter were invited to comment on the consultation paper and “ to provide any additional evidence in support of the current policy by DATE ” . The consultation paper attached referred , inter alia , to CARDINAL incidents which were considered damaging to unit cohesion . The first involved a homosexual who had had a relationship with a sergeant ’s mess waiter and the other involved an NORP on secondment whose behaviour was described as “ so disruptive ” that his attachment was terminated .", "On DATE ORG dismissed the ORG appeal . The Master of the Rolls , Sir PERSON , delivered the main judgment ( with which the CARDINAL other judges of ORG agreed ) .", "As to the court ’s approach to the issue of “ irrationality ” , he considered that the following submission was an accurate distillation of the relevant jurisprudence on the subject :", "“ the court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision- maker . But in judging whether the decision - maker has exceeded this margin of appreciation the human rights context is important . The more substantial the interference with human rights , the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above . ”", "He went on to quote from , inter alia , the judgment of FAC in NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL Appeal Cases CARDINAL , where it was pointed out that :", "“ the primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of ORG to whom ORG has entrusted the discretion . But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of ORG , on the material before him , could reasonably make that primary judgment . ”", "Moreover , he considered that the greater the policy content of the decision and the more remote the subject matter of a decision from ordinary judicial experience , the more hesitant the court had to be in holding a decision to be irrational .", "Prior to applying this test of irrationality , the Master of the Rolls noted that the case concerned innate qualities of a very personal kind , that the decisions of which the applicants complained had had a profound effect on their careers and prospects and that the applicants’ rights as human beings were very much in issue . While the domestic court was not the primary decision - maker and while it was not the role of the courts to regulate the conditions of service in the armed forces , “ it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power . While the court must properly defer to the expertise of responsible decision - makers , it must not shrink from its fundamental duty to ‘ do right to all manner of people’ … ” .", "He then reviewed , by reference to the test of irrationality outlined above , the submissions of the parties in favour of and against the policy , commenting that the applicants’ arguments were “ of very considerable cogency ” which called to be considered in depth with particular reference to past experience in GPE , to the developing experience of other countries and to the potential effectiveness of a detailed prescriptive code in place of the present blanket ban . However , he concluded that the policy could not be considered “ irrational ” at the time the applicants were discharged from the armed forces , finding that the threshold of irrationality was “ a high one ” and that it had not been crossed in this case .", "On the Convention , the Master of the Rolls noted as follows :", "“ It is , inevitably , common ground that GPE obligation , binding in international law , to respect and ensure compliance with [ LAW ] is not one that is enforceable by domestic courts . The relevance of the LAW in the present context is as background to the complaint of irrationality . The fact that a decision - maker failed to take account of LAW when exercising an administrative discretion is not of itself a ground for impugning the exercise of that discretion . ”", "He observed that to dismiss a person from his or her employment on the grounds of a private sexual preference , and to interrogate him or her about private sexual behaviour , would not appear to show respect for that person ’s private and family life and that there might be room for argument as to whether the policy answered a “ pressing social need ” and , in particular , was proportionate to the legitimate aim pursued . However , he held that these were not questions to which answers could be properly or usefully proffered by ORG , but rather were questions for ORG to which court the applicants might have to pursue their claim . He further accepted that ORG did not apply to complaints in relation to sexual orientation .", "PERSON of ORG agreed with the judgment of the Master of the Rolls and , in particular , with the latter ’s approach to the irrationality test and with his view on the inability of the court to resolve Convention issues . He questioned the utility of a debate as to the likely fate of the “ longstanding ” policy of ORG before ORG with which the primary adjudicating role on the Convention lay . ORG did not entertain “ hypothetical questions ” . In PERSON view , the only relevance of the ORG was as “ background to the complaint of irrationality ” , which point had been already made by the Master of the Rolls . It was important to highlight this point since ORG had not given the domestic courts primary jurisdiction over human rights issues contained in the ORG and because the evidence and submissions before ORG related to that court ’s secondary jurisdiction and not to its primary jurisdiction .", "PERSON of ORG agreed with both preceding judgments and , in particular , with the views expressed on the rationality test to be applied and on its application in the particular case . The applicants’ arguments that their rights under LAW had been breached were “ persuasive ” but the evidence and arguments that would ultimately determine that issue were not before ORG . He also found that the ORG challenge to the arguments in support of the policy was “ completely persuasive ” and added that what impressed him most in relation to the merits was the complete absence of illustration and substantiation by specific examples , not only in the Secretary of ORG ’s evidence filed in ORG , but also in the case presented to ORG in DATE . The policy was , in his view , “ ripe for review and for consideration of its replacement by a strict conduct code ” . However , the applicants’ attack on the Secretary of ORG ’s rationality fell “ a long way short of success ” .", "On DATE ORG of ORG refused leave to appeal to ORG .", "NORP In DATE Mr PERSON issued proceedings in the ORG claiming unfair dismissal and sexual discrimination contrary to LAW DATE . Those proceedings were adjourned pending the above - described application for leave to appeal to ORG . Further to the rejection of the application , he requested the withdrawal of his ORG proceedings and those proceedings were dismissed by ORG on DATE .", "In DATE PERSON also issued proceedings in ORG claiming sexual discrimination contrary to LAW . In the light of subsequent decisions of the ECJ and of the domestic courts , the second applicant subsequently requested the withdrawal of those proceedings which were , on DATE , dismissed by ORG .", "By virtue of section CARDINAL(CARDINAL ) of LAW , homosexual acts in private between CARDINAL consenting adults ( at the time meaning DATE or over ) ceased to be criminal offences . However , such acts continued to constitute offences under the ORG and ORG Acts DATE and LAW DATE ( Section CARDINAL(CARDINAL ) of LAW ) . Section CARDINAL(CARDINAL ) of LAW was repealed by ORG which LAW also reduced the age of consent to DATE ) . However , section CARDINAL ) of the DATE Act provided that nothing in that section prevented a homosexual act ( with or without other acts or circumstances ) from constituting a ground for discharging a member of the armed forces .", "On DATE the ECJ decided that transsexuals were protected from discrimination on grounds of their transsexuality under ORG law ( PERSON and ORG [ DATE ] ORG CARDINAL ) .", "On DATE ORG referred to the ECJ pursuant to LAW the question of the applicability of LAW to differences of treatment based on sexual orientation ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) . PERSON had been discharged from ORG on grounds of his homosexuality .", "On DATE the ECJ found that the Equal Pay Directive CARDINAL/CARDINAL/EEC did not apply to discrimination on grounds of sexual orientation ( Grant v. ORG [ DATE ] ORG CARDINAL ) .", "Consequently , on DATE the ECJ enquired of ORG in the GPE case whether it wished to maintain the Article CARDINAL reference . After a hearing between the parties , ORG decided to withdraw the question from the ECJ ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) . Leave to appeal was refused .", "As a consequence of the changes made by ORG , updated Armed Forces’ Policy and Guidelines on Homosexuality ( “ the LAW ) were distributed to the respective service directorates of personnel in DATE . The Guidelines provided , inter alia , as follows :", "“ Homosexuality , whether male or female , is considered incompatible with service in the armed forces . This is not only because of the close physical conditions in which personnel often have to live and work , but also because homosexual behaviour can cause offence , polarise relationships , induce ill - discipline and , as a consequence , damage morale and unit effectiveness . If individuals admit to being homosexual whilst serving and their Commanding Officer judges that this admission is well - founded they will be required to leave the services . ...", "The armed forces’ policy on homosexuality is made clear to all those considering enlistment . If a potential recruit admits to being homosexual , he / she will not be enlisted . Even if a potential recruit admits to being homosexual but states that he / she does not at present nor in the future intend to engage in homosexual activity , he / she will not be enlisted . ...", "In dealing with cases of suspected homosexuality , a Commanding Officer must make a balanced judgment taking into account all the relevant factors . ... In most circumstances , however , the interests of the individual and the armed forces will be best served by formal investigation of the allegations or suspicion . Depending on the circumstances , the Commanding Officer will either conduct an internal inquiry , using his own staff , or he will seek assistance from ORG . When conducting an internal inquiry he will normally discuss the matter with his welfare support staff . Homosexuality is not a medical matter , but there may be circumstances in which the Commanding Officer should seek the advice of ORG on the individual concerned and may then , if the individual agrees , refer him / her to the ORG . ...", "A written warning in respect of an individual ’s conduct or behaviour may be given in circumstances where there is some evidence of homosexuality but insufficient ... to apply for administrative discharge ... . If the Commanding Officer is satisfied on a high standard of proof of an individual ’s homosexuality , administrative action to terminate service ... is to be initiated , ... . \"", "CARDINAL of the purposes of the Guidelines was the reduction of the involvement of the service police whose investigatory methods , based on criminal procedures , had been strongly resented and widely publicised in the past ( confirmed at paragraph CARDINAL of the Homosexual Policy Assessment Team ’s report of DATE which is summarised at paragraphs DATE below . However , paragraph CARDINAL of this report indicated that investigation into homosexuality is part of “ normal service police duties ” . )", "The affidavit of Air Chief Marshal Sir PERSON , ORG , Vice Chief of ORG , ORG dated DATE , which was submitted to ORG in the case of NORP v. Secretary of ORG , ex parte Perkins ( DATE ) , read , in so far as relevant , as follows :", "“ The policy of ORG is that the special nature of homosexual life precludes the acceptance of homosexuals and homosexuality in the armed forces . The primary concern of the armed forces is the maintenance of an operationally effective and efficient force and the consequent need for strict maintenance of discipline . [ ORG ] believes that the presence of homosexual personnel has the potential to undermine this .", "The conditions of military life , both on operations and within the service environment , are very different from those experienced in civilian life . … The [ ORG ] believes that these conditions , and the need for absolute trust and confidence between personnel of all ranks , must dictate its policy towards homosexuality in the armed forces . It is not a question of a moral judgement , nor is there any suggestion that homosexuals are any less courageous than heterosexual personnel ; the policy derives from a practical assessment of the implications of homosexuality for fighting power . ”", "Following the decision in the case of NORP v. ORG , ex parte ORG , ORG ( “ HPAT ” ) was established by ORG in order to undertake an internal assessment of the armed forces’ policy on homosexuality . The ORG was composed of ORG civil servants and representatives of the CARDINAL services . The ORG ’s assessment was to form the basis of the ORG ’s evidence to the next ORG ( as confirmed in the affidavit of ORG Marshal Sir PERSON referred to at paragraph CARDINAL above ) . The ORG was to consult ORG , the armed forces’ personnel of all ranks , service and civilian staff responsible for carrying out the policy together with members of the legal adviser ’s staff . It was also to examine the policies of other nations ( Annex D to the ORG report ) .", "The report of the ORG was published in DATE and ran to CARDINAL pages , together with voluminous annexes . The starting - point of the assessment was an assumption that homosexual men and women were in themselves no less physically capable , brave , dependable and skilled than heterosexuals . It was considered that any problems to be identified would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals . The ORG considered that the best predictors of the “ reality and severity ” of the problems of the integration of homosexuals would be the service personnel themselves ( paragraph CARDINAL of the report ) .", "There were CARDINAL main areas of investigation ( paragraph CARDINAL of the report ) :", "( a ) The ORG consulted with policy - makers in ORG . The latter emphasised the uniqueness of the military environment and the distinctly NORP approach to service life and the ORG found little disagreement with this general perspective from the service people it interviewed ( paragraph CARDINAL ) ;", "( b ) A signal was sent to all members of the services , including the reserve forces , requesting any written views on the issues . By DATE the ORG had received CARDINAL letters . CARDINAL of these letters were against any change in the policy , CARDINAL of which were multiply signed . CARDINAL of those letters were anonymous ( paragraphs CARDINAL ) ;", "( c ) The ORG attitude survey consisted of a questionnaire administered to a total of CARDINAL service personnel chosen as representative of the services . The questionnaires were administered in examination - type conditions and were to be completed anonymously . The results indicated that there was “ overwhelming support across the services ” for the policy excluding homosexuals from the armed forces . Service personnel viewed homosexuality as clearly more acceptable in civilian than in service life ( paragraphs CARDINAL and ORG ) ;", "( d ) During the ORG ’s visit to CARDINAL military bases in DATE in order to administer the above questionnaire , individual one - to - CARDINAL interviews were conducted with personnel who had completed the attitude questionnaire . CARDINAL interviewees randomly selected from certain ranks and occupational areas were selected from each of the CARDINAL units visited . Given the small number of interviewees , the responses were analysed qualitatively rather than quantitatively ( Annex G ) ;", "( e ) A number of single - service focus group discussions were held with randomly selected personnel from representative ranks and functions ( ORG refers to CARDINAL such discussions whereas paragraph CARDINAL of the report refers to CARDINAL ) . The purpose of the group discussions was to examine the breadth and depth of military views and to provide insights that would complement the survey results . The ORG commented that the nature of the discussions showed little reticence in honestly and fully putting forward views ; there was an “ overwhelming view that homosexuality was not ‘ normal’ or ‘ natural’ whereas women and ethnic minorities were ‘ normal’ ” . The vast majority of participants believed that the present ban on homosexuals should remain ( paragraphs CARDINAL - CARDINAL and ORG ) ;", "( f ) CARDINAL sub - team of the ORG went to GPE , GPE and GPE and the other visited GPE , GPE and GPE . The HPAT interviewed an eminent NORP military psychologist since the NORP military would not accept the ORG visit ( paragraphs CARDINAL and ORG ) . It is also apparent that the ORG spoke to representatives of the police , the fire service and the merchant navy ( paragraphs CARDINAL - CARDINAL ) ;", "( g ) Tri - service regional focus discussion groups were also held to examine the breadth and depth of the personnel ’s views . The groups were drawn from the CARDINAL services and from different units . CARDINAL such discussion groups were held and overall the results were the same as those from the single - service focus groups ( paragraphs CARDINAL - CARDINAL and ORG ) ;", "( h ) Postal single - service attitude surveys were also completed by a randomly selected sample of personnel stratified by rank , age and gender . The surveys were distributed to CARDINAL ( PERCENT ) of ORG and ORG personnel , to CARDINAL ( PERCENT ) of the ORG personnel and to CARDINAL ( PERCENT ) of the ORG personnel . On CARDINAL of the surveys were returned ( paragraphs CARDINAL and ORG ) .", "The ORG report defined “ fighting power ” ( often used interchangeably with combat effectiveness , operational efficiency or operational effectiveness ) as the “ ability to fight ” which is in turn made up of CARDINAL components . These are the “ conceptual ” and “ physical ” components together with the “ moral component ” , the latter being defined as “ the ability to get people to fight including morale , comradeship , motivation , leadership and management ” .", "The focus throughout the assessment was upon the anticipated effects on fighting power and this was found to be the “ key problem ” in integrating homosexuals into the armed forces . It was considered well established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioural and emotional responses and problems which would affect morale and , in turn , significantly and negatively affect the fighting power of the armed forces .", "These anticipated problems included controlling homosexual behaviour and heterosexual animosity , assaults on homosexuals , bullying and harassment of homosexuals , ostracism and avoidance , “ cliquishness ” and pairing , leadership and decision - making problems including allegations of favouritism , discrimination and ineffectiveness ( but excluding the question of homosexual officers taking tactical decisions swayed by sexual preference ) , sub - cultural friction , privacy / decency issues , increased dislike and suspicions ( polarised relationships ) , and resentment over imposed change especially if controls on heterosexual expression also had to be tightened ( see Section F.II of the report ) .", "The ORG also assessed other matters it described as “ subsidiary ” ( Section G and paragraph CARDINAL of the report ) . It found that , while cost implications of changing the policy were not quantifiable , it was not considered that separate accommodation for homosexuals would be warranted or wise and , accordingly , major expenditures on accommodation were considered unlikely ( paragraphs CARDINAL - CARDINAL ) . Wasted training as regards discharged homosexuals was not considered to be a significant argument against maintaining the policy ( paragraphs CARDINAL - CARDINAL ) . Should the wider social and legal position change in relation to civilian homosexual couples , then entitlements for homosexual partners would have to be accepted ( paragraph CARDINAL ) . Large amounts of money or time were unlikely to be devoted to homosexual awareness training , given that it was unlikely to be effective in changing attitudes . It was remarked that , if required , tolerance training would probably be best addressed as “ part of an integrated programme for equal opportunities training in the military ” ( paragraph CARDINAL ) . There were strong indications that recruitment and retention rates would go down if there was a change in policy ( paragraphs CARDINAL - CARDINAL ) .", "Concerns expressed about the fulfilment of the forces’ loco parentis responsibilities for young recruits were found not to stand up to close examination ( paragraph CARDINAL ) .", "Medical and security concerns were considered separately ( Sections H and I , respectively , and paragraph CARDINAL of the report ) . While it was noted that medical concerns of personnel ( in relation to , inter alia , Aids ) were disproportionate to the clinical risks involved , it was considered that these concerns would probably need to be met with education packages and compulsory Aids testing . Otherwise , real acceptance and integration of homosexuals would be seriously prejudiced by emotional reactions and resentments and by concerns about the threat of Aids . The security issues ( including the possibility of blackmail of those suspected of being homosexual ) raised in defence of the policy were found not to stand up to close examination .", "The ORG observed that there were a wide variety of official positions and legal arrangements evolving from local legal and political circumstances and ranging from a formal prohibition of all homosexual activity ( GPE ) , to administrative arrangements falling short of real equality ( GPE and GPE ) , to a deliberate policy to create an armed force friendly to homosexuals ( the GPE ) . According to the ORG , those countries which had no legal ban on homosexuals were more tolerant , had written constitutions and therefore a greater tradition of respect for human rights . The report continued :", "“ But nowhere did ORG learn that there were significant numbers of open homosexuals serving in ORG . Whatever the degree of official toleration or encouragement , informal pressures or threats within the military social system appeared to prevent the vast majority of homosexuals from choosing to exercise their varying legal rights to open expression of their active sexual identity in a professional setting . … It goes without saying that the continuing reticence of military homosexuals in these armed forces means that there has been little practical experience of protecting them against ostracism , harassment or physical attack .", "Since this common pattern of a near absence of openly homosexual personnel occurs irrespective of the formal legal frameworks , it is reasonable to assume that it is the informal functioning of actual military systems which is largely incompatible with homosexual self - expression . This is entirely consistent with the pattern of NORP service personnel ’s attitudes confirmed by the ORG . ”", "In DATE there were over CARDINAL NORP service personnel ( PERCENT approximately of the NORP armed forces ) deployed overseas on operations , more than any other ORG country in LOC ( paragraph CARDINAL ) .", "The ORG concluded , nevertheless , that the policy had not presented significant problems when working with the armed forces of allied nations . The ORG remarked that NORP service personnel had shown a “ robust indifference ” to arrangements in foreign forces and no concern over what degree of acceptance closely integrated allies give to homosexuals . This is because the average service person considers that those others “ are not NORP , have different standards , and are thus only to be expected to do things differently ” and because personnel from different nations are accommodated apart . It was also due to the fact that homosexuals in foreign forces , where they were not formally banned , were not open about their sexual orientation . Consequently , the chances were small of the few open homosexuals happening to be in a situation where their sexual orientation would become a problem with NORP service personnel ( paragraph CARDINAL ) .", "Important differences were considered by the ORG to exist between the armed forces and civilian disciplined services in GPE including the police , the fire brigade and the merchant navy which did not operate the same policy against homosexuals . It considered that :", "“ None of these occupations involves the same unremittingly demanding and long - term working environment as ORG , or requires the same emphasis on building rapidly interchangeable , but fiercely committed and self - supporting teams , capable of retaining their cohesion after DATE of stress , casualties and discomfort … ” ( paragraph CARDINAL )", "Alternative options were considered by the ORG including a code of conduct applicable to all , a policy based on the individual qualities of homosexual personnel , lifting the ban and relying on service personnel reticence , the “ do n’t ask , do n’t tell ” solution offered by the GPE and a “ no open homosexuality ” code . It concluded that no policy alternative could be identified which avoided risks for fighting power with the same certainty as the present policy and which , in consequence , would not be strongly opposed by the service population ( paragraphs CARDINAL ) .", "The ORG found that :", "“ the key problem remains and its intractability has indeed been re - confirmed . The evidence for an anticipated loss in fighting power has been set out in section F and forms the centrepiece of this assessment . The various steps in the argument and the overall conclusion have been shown not only by the ORG authorities but by the great majority of Service personnel in all ranks ” .", "Current service attitudes were considered unlikely to change in the near future . While clearly hardship and invasion of privacy were involved , the risk to fighting power demonstrated why the policy was , nevertheless , justified . It considered that it was not possible to draw any meaningful comparison between the integration of homosexuals and of women and ethnic minorities into the armed forces since homosexuality raised problems of a type and intensity that gender and race did not .", "The ORG considered that , in the longer term , evolving social attitudes towards homosexuality might reduce the risks to fighting power inherent in change but that their assessment could “ only deal with present attitudes and risks ” . It went on :", "“ … certainly , if service people believed that they could work and live alongside homosexuals without loss of cohesion , far fewer of the anticipated problems would emerge . But the ORG must deal with the world as it is . Service attitudes , in as far as they differ from those of the general population , emerge from the unique conditions of military life , and represent the current social and psychological realities . They indicate military risk from a policy change …", "… after collecting the most exhaustive evidence available , it is also evident that in the GPE homosexuality remains in practice incompatible with service life if the armed services , in their present form , are to be maintained at their full potential fighting power . ... Furthermore , the justification for the present policy has been overwhelmingly endorsed by a demonstrated consensus of the profession best able to judge it . It must follow that a major change to the ORG ’s current GPE - service Guidelines on homosexuality should be contemplated only for clearly stated non - defence reasons , and with a full acknowledgement of the impact on Service effectiveness and service people ’s feelings . ”", "ORG “ Code of Practice on Race Relations ” issued in DATE declared the armed forces to be equal opportunity employers . It stated that no form of racial discrimination , harassment or abuse would be tolerated , that allegations would be investigated and , if proved , disciplinary action would be taken . It provided for a complaints procedure in relation to discrimination or harassment and it warned against the victimisation of service personnel who made use of their right of complaint and redress .", "In DATE the army published an Equal Opportunities Directive dealing with racial and sexual harassment and bullying . The policy document contained , as a preamble , a statement of ORG which reads as follows :", "“ The reality of conflict requires high levels of teamwork in which individual soldiers can rely absolutely on their comrades and their leaders . There can , therefore , be no place in the ORG for harassment , bullying and discrimination which will affect morale and break down the trust and cohesion of the group .", "It is the duty of every soldier to ensure that the ORG is kept free of such behaviour which would affect cohesion and efficiency . ORG policy is clear : all soldiers must be treated equally on the basis of their ability to perform their duty .", "I look to each one of you to uphold this policy and to ensure that we retain our acknowledged reputation as a highly professional ORG . ”", "The Directive provided definitions of racial and sexual harassment , indicated that the army wanted to prevent all forms of offensive and unfair behaviour in these respects and pointed out that it was the duty of each soldier not to behave in a way that could be offensive to others or to allow others to behave in that way . It also defined bullying and indicated that , although the army fosters an aggressive spirit in soldiers who will have to go to war , controlled aggression , self - sufficiency and strong leadership must not be confused with thoughtless and meaningless use of intimidation and violence which characterise bullying . Bullying undermines morale and creates fear and stress both in the individual and the group being bullied and in the organisation . The army was noted to be a close - knit community where team work , cohesion and trust are paramount . Thus , high standards of personal conduct and respect for others were demanded from all .", "The Directive endorsed the use of military law by commanders . Supplementary leaflets promoting the Directive were issued to every individual soldier . In addition , specific equal opportunities posts were created in personnel centres and a substantial training programme in LAW DATE was initiated .", "Every DATE PERSON Forces’ Bill goes through ORG and a ORG conducts a review in connection with that bill .", "The report of ORG dated DATE noted , under the heading “ Homosexuality ” :", "“ That the present policy causes very real distress and the loss to the services of some men and women of undoubted competence and good character is beyond dispute . Society outside the armed forces is now much more tolerant of differences in sexual orientation than it was , and this may also possibly be true of the armed forces . Nevertheless , there is considerable force to the [ ORG ] argument that the presence of people known to be homosexual can cause tension in a group of people required to live and work sometimes under great stress and physically DATE , and thus damage its cohesion and fighting effectiveness . It may be that this will change particularly with the integration of women into hitherto all - male units . We are not yet persuaded that the time has come to require the armed forces to accept homosexuals or homosexual activity . ”", "The DATE ORG report ( produced after that committee ’s review of LAW ) referred to evidence taken from members of ORG and from homosexual support groups and to ORG . Once again , the committee did not recommend any change in the ORG ’s policy . It noted that , since its last report , a total of CARDINAL officers and CARDINAL persons of other rank had been discharged or dismissed on grounds of homosexuality . The committee was satisfied that no reliable lessons could as yet be drawn from the experience of other countries . It acknowledged the strength of the human rights arguments put forward , but noted that there had to be a balance struck between individual rights and the needs of the whole . It was persuaded by the ORG summary of the strength of opposition throughout the armed services to any relaxation of the policy . It accepted that the presence of openly homosexual servicemen and women would have a significant adverse impact on morale and , ultimately , on operational effectiveness . The matter was then debated in ORG and members , by CARDINAL votes to CARDINAL , rejected any change to the existing policy .", "Prior to DATE , applicants to the armed forces were informed about the armed forces’ policy as regards homosexuals in the armed forces by means of a leaflet entitled “ Your Rights and Responsibilities ” . To avoid any misunderstanding and so that each recruit to each of the armed services received identical information , on DATE the armed forces introduced a Service Statement to be read and signed before enlistment . Paragraph CARDINAL of that statement is headed “ Homosexuality ” and states that homosexuality is not considered compatible with service life and “ can lead to administrative discharge ” ." ]

[ "8" ]

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[ "The applicant , PERSON , is an NORP national who lives in GPE . She was represented before the ORG by Mr. PERSON , a lawyer practising in GPE", "The applicant is a school traffic warden . She took part in a prison visiting project for which she provided her personal details to the prison authorities for security purposes . During the project she became acquainted with N ( in prison for the murder of CARDINAL persons and charged with the murder of CARDINAL others ) and they began a personal relationship .", "At CARDINAL on DATE ( DATE ) the applicant was visited at home by a journalist from ORG newspaper . The journalist sought information on the applicant ’s relationship with ORG from confirming that she knew N , the applicant refused to comment further . TIME the journalist returned and the applicant did not make any comment . At CARDINAL that day a letter from the journalist was delivered to the applicant ’s home : the journalist was writing an article about the applicant ’s relationship with N , she was sure of its validity based as it was on information from prison sources and she wanted to give the applicant the opportunity to tell her side of the story . The article would be published the following DATE ( DATE ) .", "On DATE the applicant went to visit N. As she entered the prison , she was approached by the journalist and photographed . As she left , the journalist requested the applicant to tell her side of the story . The applicant made no comment and contacted her solicitor who sent a letter by facsimile to the newspaper on DATE . The letter underlined that the proposed article concerned the applicant ’s private affairs and was devoid of any real public interest so that its publication would breach the code of practice of ORG as well as the applicant ’s constitutional and Convention rights . Since her vital personal interests would be irreparably damaged , the letter called on the newspaper not to publish the story . A response was requested by CARDINAL the following day , failing which the applicant would apply to ORG for protection . The newspaper did not respond .", "On CARDINAL DATE the applicant ’s solicitors contacted ORG duty judge ( it was a DATE ) . They applied to that judge , on an ex parte basis and grounded upon a draft ORG and the applicant ’s affidavit , for an interim injunction restraining publication of any material disclosing her relationship with N ; for a declaration that any such publication would infringe her right to privacy contrary to the Convention and the LAW ; and for damages for breach of her LAW and constitutional right to privacy . The applicant ’s grounding affidavit underlined that she was a private person of modest means and pointed to the prejudicial impact of the inevitable media scrutiny on her , her CARDINAL young sons and her ongoing employment . Since the story was not a matter of any real public interest , the devastating consequences for her and her family ’s personal dignity and private life would be disproportionate .", "In an ex tempore judgment dated DATE ORG refused to grant the injunction . She was a private citizen with a right to respect for her private life and there was no public interest in revealing that she was in a relationship with ORG which invaded private life in the threatened manner was meretricious and worthless . However , in ORG ( [ DATE ] IEHC CARDINAL ) , ORG had found that the common law rule enunciated in PERSON ( [ DATE ] CARDINAL Ch CARDINAL ) had survived LAW DATE in GPE and applied in GPE . The rule provides that , in all but exceptional cases , the court should refuse injunctions . It can only grant such injunctions where it is shown that there is no prospect of successfully defending the substantive action . ORG judge considered this was a limited protection as it seemed to allow even worthless publication the same level of protection as is accorded to journalism that has redeeming characteristics . He noted ORG recent confirmation that the ORG does not have direct applicability in NORP law and only arises when that law falls to be interpreted in some fashion . He queried whether the rule in GPE would survive a LAW challenge but acknowledged that this was a matter for DATE and another court . Applying the rule in the applicant ’s case , ORG judge concluded that he could not make an order restraining the publication .", "On DATE ORG published on its front page a story entitled “ Lady and PERSON . It contained a series of photographs of the applicant and the associated article read , in so far as relevant , as follows :", "“ Meet the lollipop lady who has struck up an unlikely bond with double murderer TIME [ the applicant ] helps primary school kids across the road at a plush south GPE school . But once her work is done , the mum - of - CARDINAL regularly cycles into town to visit high - profile convicted double killer N. ... Prison sources have revealed the pair have been seen being openly affectionate in the visitors’ centre at the jail . For DATE , [ the applicant ] , from ORG , has been visiting psycho PERSON twice DATE in [ prison ] . Jail sources have told Star Sunday that killer DATE who has admitted that he is mentally ill – is “ besotted ” with the attractive woman .", "... “ [ the applicant ] always sits up on the table between her and PERSON in order to be closer to him , ” said a source . “ She often snuggles in to his chest and they embrace a lot , which can often be a bit embarrassing for the other visitors . ” However , when [ the applicant ] was confronted by Star Sunday at her home on DATE TIME , she denied she was romantically involved with N.", ".... Sources at the jail said [ the applicant ] visits the killer twice a week , usually DATE between TIME . ”", "On DATE the applicant formally filed ORG on which she had relied when she applied for the interim injunction and in which she claims damages for a breach of privacy . It would appear that this substantive action has not been pursued further .", "On DATE the applicant ’s Counsel advised that , since the application for an injunction had been refused and the article published the following day , there were no further steps open to the applicant through which she could have prevented the publication . In so concluding , Counsel noted that it had not been open to her to appeal to ORG on DATE because that court was not sitting on either of DATE .", "In this case ORG outlined the criteria for deciding interlocutory injunction requests . It recalled the judgment of ORG in Campus Oil v. Minister for ORG ( No . CARDINAL ) ( [ DATE ] I.R. CARDINAL ) and noted the guidelines for the granting of an interlocutory prohibitory injunction . A plaintiff had to demonstrate :", "( a ) the existence of a serious question to be tried ;", "( b ) the inadequacy of damages ; and", "( c ) that the balance of convenience lies in favour of the grant of the injunction .", "While resolving these issues in favour of an applicant would , in many cases , result in an injunction being granted , it was not always so . In addition to these CARDINAL questions , there might be many other special factors to be taken into consideration in the particular circumstances of individual cases . Over DATE , a number of cases had been identified where the guidelines , even if satisfied , do not result in an interlocutory injunction being granted . A good example of this was the rule in PERSON ( [ DATE ] CARDINAL Ch CARDINAL ) which ORG in GPE deemed to be of ‘ some ORG to an application for an injunction restraining publication . Although the courts undoubtedly possessed the requisite jurisdiction to grant interlocutory injunctive relief , the rule in PERSON provides that in all but exceptional circumstances they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that the defence would fail . The rule was based on the need not to restrict the right of free speech by interfering before the final determination of the matter save in a clear case of an untrue libel . ORG in PERSON noted that the right to freedom of expression as provided for in the LAW and in the LAW is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceedings . While refusing to restrict the defendant ’s right between the making of the application for an injunction and the trial of the action , it did , however , direct an early trial and heard submissions on the delivery of accelerated pleadings .", "The rule in PERSON was approved and followed by ORG in PERSON v. PERSON ( [ DATE ] I.R. CARDINAL ) .", "This rule reads as follows :", "“ CARDINAL . Where an ex parte application has been refused in whole or in part by ORG an application for a similar purpose may be made to ORG ex parte within DATE from the date of such refusal , or within such enlarged time as ORG may allow . ”" ]

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[ "The applicant , PERSON Samoylovich , is a NORP national who was born in DATE and lives in PERSON .", "On DATE the GPE district prosecutor ’s office at ORG opened criminal proceedings against the applicant , who was serving as a police officer at that time , on suspicion that he had abused his authority .", "On DATE the ORG convicted the applicant of abusing his authority and sentenced him to DATE imprisonment .", "On DATE that decision was quashed and the case was sent back for a retrial and further investigation .", "On DATE the prosecutor ’s office discontinued the proceedings on exonerative grounds as it could find no reason to believe that a crime had been committed .", "According to the Government , on DATE that decision was served on the applicant in PERSON no . CARDINAL pre - trial detention facility ( GPE ) , where he was being detained at that time in connection with another set of criminal proceedings .", "NORP On DATE the applicant was arrested and detained on suspicion of robbery of the NORP family .", "On DATE the prosecutor ’s office of GPE ( “ ARC ” ) authorised the applicant ’s detention on remand for DATE pending an investigation , on account of the gravity of the charges laid against him and the need to carry out certain procedural steps . Subsequently ( on DATE , DATE and DATE ) the prosecutor ’s office extended the applicant ’s detention for further terms of CARDINAL , DATE , respectively , on the same grounds as those referred to in the order of CARDINAL DATE .", "In DATE the applicant challenged his detention before ORG of Simferopol , maintaining that it was in breach of a number of applicable provisions of the procedural law in force at the material time .", "On DATE the court refused to examine the applicant ’s complaint on the merits , finding that he had been lawfully detained following his conviction on DATE for abusing his authority and that there was no prosecutor ’s order of CARDINAL DATE for his detention on remand in the file on his case .", "In DATE the criminal case against the applicant was joined with another case , which concerned the activity of a gang led by P. , another police officer from PERSON , who was also charged with participating in the robbery of the PERSON family .", "During the pre - trial investigation , the authorities questioned CARDINAL witnesses concerning CARDINAL criminal acts attributed to the gang members , carried out CARDINAL reconstructions of the crime scenes and ordered numerous expert assessments .", "On DATE the pre - trial investigation was completed and the applicant , along with CARDINAL other individuals suspected of having committed various crimes as members of the aforementioned gang , was committed for trial before ORG of the ARC ( subsequently renamed ORG of the ARC , and hereinafter “ ORG ) .", "On DATE , following the familiarisation of the defendants with the material in the case file and the completion of other procedural formalities , ORG held a preliminary hearing in the case and scheduled the trial for DATE . The court also decided that there were no grounds for releasing the applicant pending trial .", "Having held DATE hearings DATE , ORG adjourned the proceedings following a request by CARDINAL of the defendants that the hearings be recorded , no recording devices being available at the time .", "On CARDINAL DATE ORG resumed its consideration of the case .", "On various dates the applicant made requests to ORG to release him from custody . He contended that he had no reason to abscond , as he was innocent , had a permanent address in PERSON and a family ( wife , daughter of minor age and elderly mother ) , and that he was suffering from duodenal ulcers , aggravated as a result of his being in the GPE . In his submissions the applicant also pointed to various procedural irregularities in the documents on which his detention was based . In particular , he noted that , according to the court decision of DATE , there was no record of any order of CARDINAL DATE , serving as the basis for his detention .", "Those requests were rejected by ORG on the basis of the gravity of the charges laid against the applicant .", "On DATE ORG stated that there was no arbitrariness in the order for the applicant ’s detention and that the order of CARDINAL DATE had been lawful .", "On several occasions the applicant unsuccessfully attempted to institute criminal proceedings against the police officers and the prosecutor ’s office , citing various procedural irregularities in his placement in custody .", "On DATE ORG of PERSON overturned the refusal by the prosecutor ’s office to institute criminal proceedings concerning the lawfulness of the applicant ’s detention , referring to a number of procedural irregularities in the drafting of the documents concerning the applicant ’s detention . It noted , in particular , that there were CARDINAL different copies of the above - mentioned order of CARDINAL DATE . According to that presented by the prosecutor ’s office , the applicant had been shown a copy of the order for his detention on DATE and had refused to sign it . Nevertheless , a copy held in the GPE records bore the signature of the applicant dated DATE . The court next instructed the prosecutor ’s office to investigate this and other procedural irregularities in the applicant ’s case file .", "On DATE the prosecutor ’s office again refused to institute criminal proceedings . It found , in particular , that it was unclear why there were CARDINAL different copies of the detention order . However , neither this nor any other procedural irregularity in the case file was such as to warrant the opening of criminal proceedings .", "On DATE and DATE ORG of PERSON and ORG respectively upheld the prosecutor ’s office ’s refusal to institute criminal proceedings concerning the lawfulness of the applicant ’s detention .", "DATE and DATE ORG held CARDINAL hearings in the case .", "On DATE ORG ARC delivered a judgment , CARDINAL pages long , which stated that the applicant was convicted of being a member of ORG ’s gang and taking part in the robbery of the PERSON family . The applicant was further sentenced to CARDINAL years’ imprisonment , to run from the date of his arrest ( DATE ) .", "On DATE ORG held a hearing in the applicant ’s presence and dismissed a cassation appeal he had lodged .", "In DATE the applicant was released , having served the term of his prison sentence in full .", "From DATE until DATE the applicant was detained in the PERSON .", "According to the applicant , the physical conditions of his detention in the ORG had been intolerable . He emphasised , in particular , that the size of the cells had allowed for CARDINAL space per detainee . Cell no . DATE , officially designated for CARDINAL inmates , had in fact , contained CARDINAL beds and at times had been occupied by CARDINAL persons , who had needed to take turns to sleep . The detainees had not been given bedding or toiletries and towels , and had had no access to laundry facilities so had to wash and dry their laundry in the cell , which became very humid .", "Food , especially during the period DATE , had been insufficient and of poor quality . The bread had been made of such low - grade flour that it rather resembled dark brown gum . The detainees had been given hot cereal ( каша ) without salt , sugar or fat , CARDINAL times per day . For lunch they had also been given a bowl of soup , which had , in fact , consisted of the same cereal or dumplings made from poor quality flour floating in water . The portions had been meagre .", "The applicant had been confined to his cell for most of DATE . He was able to take a DATE walk outside for TIME although sometimes , particularly in bad weather , there had been no outdoor exercise at all . The situation had been particularly difficult during the period DATE , when the walks had taken place on a highly irregular basis . The exercise yard had measured QUANTITY . It had been bare concrete with no benches or exercise facilities and had smelled of human excrement .", "In DATE the applicant had been placed in a disciplinary cell for DATE , where the conditions had been even more severe than in the ordinary cells .", "On numerous occasions the applicant had complained about the physical conditions of his detention and the quality of nutrition in his diet to various authorities , including to ORG during the hearings . However , his complaints had been to no avail .", "On several occasions the authorities had acknowledged some breaches of the applicant ’s and other inmates’ rights . In particular , according to some correspondence from the PERSON administration , it had not been provided with a sufficient quantity of meat or fresh produce to ensure a varied diet for the inmates and had been obliged to make dietary substitutions . However , notwithstanding its acknowledgment of the problems complained of , the situation had not been remedied .", "According to the Government , the conditions of the applicant ’s detention had been adequate and sufficient for meeting his basic needs .", "As regards the living conditions , from DATE until DATE the applicant had been held in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds . From DATE until DATE the applicant had been held in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds ; from DATE until DATE the applicant had been detained in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds . During the remaining period of his detention the applicant had been held in cell no . DATE , which measured QUANTITY and had CARDINAL beds . According to the records , the number of detainees held in those cells during the periods in question , had not exceeded the number of beds available and each detainee had had his own sleeping place .", "Each cell had been equipped with both natural and artificial ventilation , a centralised CARDINAL heating system , water supply and a sanitation system . All cells had been provided with windows , letting in daylight . At night electric light of a sufficient strength had been available to enable the detainees to read or write . The cells had been equipped with the necessary amenities , including toilets , wash basins , tables , benches and storage boxes . The applicant had been provided with dishes and bed linen ( which had been changed DATE ) .", "DATE the detainees had been afforded a TIME walk in the outdoor courtyard , which measured QUANTITY . A light canopy above the courtyard had offered protection from rain and snow and had enabled the detainees to take outdoor exercise in any weather . The courtyard had been cleaned on a DATE basis .", "The GPE diet had been prepared in compliance with applicable domestic standards and had been sufficient to meet their nutritional needs . For example , in their DATE diet the detainees had received QUANTITY of fish or meat , QUANTITY of vegetable oil , QUANTITY of fat and a sufficient quantity of fresh vegetables from which to obtain the necessary vitamins .", "According to the applicant ’s submissions , during routine searches the prison authorities had thrown the GPE food , shoes and other belongings out of the cell into a dirty corridor . Often the authorities had confiscated objects which could not have presented any threat to prison security , such as plastic water bottles , newspapers or spoons .", "The applicant also submitted that in detention he had never received a visit from a pastor and had had no opportunity to pray in private , as he had never been left alone . His relatives had only been able to see him through a glass partition during their visits . As a result of that lack of family contact the applicant ’s wife had divorced him in DATE . The applicant had been expelled from the university on account of the impossibility of pursuing regular studies while in detention . The administration had regularly interfered with his correspondence and communication with the outside world and had not provided him with adequate medical and dental assistance . According to the case file , the applicant had n’t raised any of the complaints listed in this and the preceding paragraph at domestic level .", "The applicant further submitted that on DATE when he had attended the court hearings , in DATE , he and his co - accused would often spend DATE in the courtroom without being provided with lunch or dinner . As the applicant had continually protested against this situation , in DATE the judge had ordered him to be removed from the courtroom until the end of the trial , for contempt of court .", "At various times the applicant had unsuccessfully attempted to lodge civil actions against the police of the ARC ( his former employer ) , alleging various violations of his labour rights . On several occasions the courts had refused to consider the merits of his application because he had not complied with the applicable procedural formalities .", "Relevant provisions of domestic law concerning arrest and detention pending criminal investigation and trial can be found in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) .", "Relevant international materials concerning the conditions of detention can be found in the judgment in the case of GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

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

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

[ "5-1-c" ]

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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 ORG , solicitors 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 .", "The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On an unspecified date the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged .", "The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .", "The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant applied to ORG , requesting to be registered on the electoral roll in order to exercise his voting rights in the parliamentary election of DATE .", "On DATE ORG refused to enrol the applicant . ORG specified that , by virtue of LAW , members of the NORP - Cypriot community could not be registered on the NORP - Cypriot electoral roll . Furthermore , the ORG informed the applicant that the matter was under consideration by the Attorney - General of the Republic and that he would be informed of any developments .", "On DATE the applicant lodged an application with ORG against the decision of ORG . He relied on LAW and submitted that , following the dissolution of ORG , the NORP government had failed to set up CARDINAL electoral lists in order to protect the electoral rights of members of both communities .", "On DATE ORG dismissed the application on the following grounds :", "“ ... The right to vote is directly linked to the communal checks and balances which provide for the compilation of separate electoral lists and for separate elections of the representatives of each community . The ideal of democracy – CARDINAL person , CARDINAL vote in the person 's place of residence DATE does not provide any grounds for the ORG to assume the power to reform the LAW . Such competence is not vested in us , nor can the judicial authorities claim such power . This would be against the principle of the separation of powers on which the LAW is based ...", "Article CARDINAL is contained in Part IV of the LAW , which governs the matters pertaining to ORG and provides for the compilation of separate electoral lists in which the members of each community are included . The applicant belongs to the NORP community and is one of the small number of NORP residing in the part of the territory of GPE under the control of GPE . The denunciation by the applicant of the NORP invasion and his loyalty to the law do not alter what the LAW provides with respect to the election of the members of the legislative body .", "LAW of ORG ] PERSON makes the right to vote conditional on the provisions of LAW . The applicant admits , as it transpires from his counsel 's address , that the proviso to which the right to vote is subject under LAW , if construed literally , excludes the inclusion in the electoral list of any person other than members of the NORP community in GPE . Nevertheless , he suggested that this reservation must be interpreted in the light of the current situation in GPE , which renders the compilation of an electoral list of the members of the NORP community impossible . Given this fact , it had to be surmised that when ORG enacted LAW it had this situation in mind and the impossibility of compiling an electoral list of the members of the NORP community . Hence , this justified the interpretation of the reservation contained in DATE as referring only to those provisions of LAW which were rendered inactive .", "Adopting the interpretation of LAW proposed by the applicant would amount to it being reworded . The fact that the legislator was apprised of all the facts relating to the situation in GPE and chose to place the right safeguarded by LAW under the reservation of LAW , supports the opposite of what the applicant is suggesting ; it indicates an intention by the legislature to subject the compilation of the electoral list to the statutory provisions of LAW . From the wording of LAW we conclude that the legislature 's intention was to place the right to vote under the reservation of all provisions of LAW . This conclusion refutes the allegation of the illegality of the administrative decision under appeal .", "The second ground on which the applicant 's appeal is based is the law of necessity . The necessity of his inclusion in the electoral list ... is derived from the impossibility of compiling an electoral list of the members of the NORP community . Given this state of affairs , PERSON submitted that the inclusion of the applicant in the electoral list of electors of the NORP community was justified and gave him the right to participate as an elector in the forthcoming parliamentary election . This was justified by the fact that the applicant resided in the areas controlled by GPE where he operates , having the same rights and obligations as every other citizen . ...", "Assessment of the necessity relied on by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislature . The competence of the judiciary is limited , provided the matter is submitted to it or arises in a case brought before it , to determining the constitutionality of the law ... It is not for the judiciary to assess the need to fill in gaps in the function of the constitutional statutes nor to establish measures to tackle them , which is basically what the applicant pursues with his application . ”", "Articles DATE , CARDINAL and DATE of LAW provide as follows :", "“ Every citizen has , subject to the provisions of this LAW and any electoral law of the Republic or of the relevant ORG made thereunder , the right to vote in any election held under this LAW or any such law . ”", "“ CARDINAL . The number of representatives shall be CARDINAL :", "Provided that such number may be altered by a resolution of ORG carried by a majority comprising CARDINAL of the Representatives elected by the NORP community and CARDINAL of the representatives elected by the NORP community .", "NORP Out of the number of representatives provided in paragraph CARDINAL of this LAW shall be elected by the NORP community and MONEY by the NORP community separately from amongst their members respectively , and in the case of a contested election , by universal suffrage and by direct and secret ballot held on DATE . ... ”", "“ CARDINAL . Subject to paragraph CARDINAL of this Article every citizen of the Republic who has attained DATE , and has such residential qualifications as may be prescribed by LAW , shall have the right to be registered as an elector in either the NORP or the NORP electoral list :", "Provided that the members of the NORP community shall only be registered in the NORP electoral list and the members of the NORP community shall only be registered in the NORP electoral list .", "No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of LAW . ”", "LAW of ORG ( Law CARDINAL/CARDINAL ) provides as follows :", "“ The right to elect belongs to those who have the qualifications provided for under LAW , that is to say citizens of the Republic who have attained the age of CARDINAL and have had their ordinary residence in GPE for a period of DATE immediately before the date fixed by the Minister , by publication in ORG , as the date of acquisition of the electoral qualifications . ”", "Article CARDINAL of the NORP Constitution grants the ORG exclusive jurisdiction to adjudicate finally on applications made to it complaining , inter alia , that a decision , act or omission of any organ , authority or person exercising any executive or administrative authority is contrary to any of the provisions of the LAW or any law , or is made in excess or in abuse of powers vested in such organ , authority or person ." ]

[ "14", "P1" ]

[ "P1-3" ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG Attorney - General .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant instituted civil proceedings against ORG ( GPE za državne caste ) and GPE in ORG ( PERSON sodišče v PERSON ) seeking restoration of a wall on his property which had allegedly been damaged during road building works .", "On DATE the applicant urged the court to proceed with his case .", "On DATE and CARDINAL DATE the applicant made written submissions .", "Hearings were held on DATE , CARDINAL DATE and DATE .", "During the proceedings the court obtained an expert opinion .", "On DATE the court adopted a judgment rejecting the applicant ’s claim , which was served on the applicant on DATE .", "On DATE the applicant appealed to ORG ( PERSON ) .", "On DATE the court dismissed the applicant ’s appeal .", "It would appear that this judgment was served on the applicant on DATE .", "NORP On DATE the respondent Government were given notice of the present application .", "On DATE the State Attorney ’s ORG sent a settlement proposal to the applicant under LAW of the LAW on the Protection of the Right to a Trial without undue Delay ( “ the CARDINAL Act ” ) . In its proposal , the ORG Attorney ’s ORG acknowledged the violation of the right to a trial within a reasonable time and , taking into account the fact that the applicant had not stated a claim as to the amount of just satisfaction sought in his application to the ORG , offered the applicant a written statement in accordance with section CARDINAL of LAW . He was requested to reply or state his counter - proposal .", "On DATE the applicant informed the State Attorney ’s Office that he disagreed with the proposal and that he wanted this Court to rule on the matter .", "On DATE the ORG Attorney ’s ORG sent a new letter to the applicant , explaining its proposal and proposing the applicant to specify the amount of compensation claimed in respect of non - pecuniary damage . The State Attorney ’s ORG assured the applicant it would immediately examine his claim and respond to it . He was requested to reply in DATE .", "The applicant did not reply to the State Attorney ’s ORG ’s proposal , but instead , on DATE , he informed ORG that he insisted that the case be decided by ORG . The applicant also explained that he had not responded to ORG ’s letter of DATE because it was in substance the same as the initial one .", "ORG adopted on DATE a ORG on ORG , the “ FAC ” . Its goal is the elimination of backlogs in NORP courts and ORG offices by DATE , by providing for structural and managerial reform of the judiciary . As a part of the “ FAC ” the ORG adopted LAW ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) which has been implemented since DATE .", "Section CARDINAL of LAW lays down the following transitional rules in relation to applications already pending before the ORG :", "“ ( CARDINAL ) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE of the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney ’s ORG within DATE of receipt of the proposal of the ORG Attorney ’s ORG . The State Attorney ’s Office shall decide on the proposal as soon as possible and within DATE at the latest .....", "( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE of the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE of receiving the ORG Attorney ’s ORG reply that the party ’s proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”", "The following parts of LAW are relevant as regards the “ claim for just satisfaction ” and other means aimed at providing redress :", "“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”", "“ ....", "( CARDINAL ) Just satisfaction shall be provided by :", "i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay ;", "ii . a written statement from ORG that the party ’s right to a trial without undue delay has been infringed ;", "iii . the publication of a judgment that the party ’s right to a trial without undue delay has been infringed . ”", "“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by an infringement of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .", "( CARDINAL ) Monetary compensation for individual finally decided cases shall be granted in amounts from MONEY .", "( CARDINAL ) Given the circumstances of the case , the State Attorney ’s ORG may , by agreement with the party under LAW and taking account of criteria referred to in LAW , paragraph CARDINAL of this Act , make a written statement without monetary compensation to the party as a compensation for non - pecuniary damage caused by the violation of the right to a trial without undue delay . If the right to a trial without undue delay has been seriously violated and at the request of the party , ORG may in addition to the monetary compensation also make a written statement .", "( CARDINAL ) The written statement shall include data referred to in LAW CARDINAL , paragraph CARDINAL , subparagraphs CARDINAL , CARDINAL , DATE and CARDINAL of this Act , an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay .", "( CARDINAL ) A written statement shall be made by ORG within the concluded settlement referred to in LAW . At the party ’s request , the written statement shall be published on the website of ORG which shall cover the costs thereof . The written statement shall be made public for DATE and thereupon archived within the website or deleted within DATE of receipt of a request from the party or the majority of parties concerning the written statement .", "“ ...", "( CARDINAL ) Territorial jurisdiction for decision - making on an action for damages under LAW shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office .", "...", "( CARDINAL ) Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court .", "( CARDINAL ) Appeal on points of law shall be excluded for disputes on damage under LAW . ”", "“ ...", "( CARDINAL ) The ORG Attorney ’s Office shall pay monetary compensation and the party ’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings , under LAW of the present LAW . ”", "... ”", "“ Funds ... shall be earmarked in LAW within the framework of the financial plan of ORG . ”" ]

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[ "The applicants were born in born in DATE , DATE , DATE , DATE and DATE and live in PERSON , PERSON and GPE , respectively .", "Under the rules of Act no . DATE , the shareholders of agricultural co - operatives became entitled to claim from the local “ land distribution committees”– which consisted of lay members elected by the shareholders – the reallocation of plots of arable land to them , at a value corresponding to that of the land which had been surrendered by the original owners to the co - operatives under the socialist legislation .", "The applicants , all in this legal position , filed their respective claims with regard to the “ PERSON CARDINAL ” plot , situated in the PERSON historical wine region , within the statutory DATE time - limit counted from the entry into force of the LAW on DATE . The distribution committee had an obligation under the procedural law to proceed with such claims within a deadline of DATE running from the expiry of that time - limit . However , it was not until DATE that it organised a meeting of the claimants of plot no . DATE .", "The decisions adopted at the meeting were susceptible to administrative remedies . On appeal , on DATE ORG , a ORG authority , quashed the decisions and instructed the committee to resume the proceedings . The complainants ' procedural appeals against the remittal were dismissed by ORG and ORG on DATE and DATE , respectively .", "NORP However , at that point neither the distribution committee nor its legal successor – ORG itself DATE resumed the administrative proceedings .", "Meanwhile , in DATE ORG challenged the legality of the decision of DATE . On DATE ORG finally discontinued these proceedings , since the prosecution 's motion was incompatible ratione materiae with the relevant provisions of LAW .", "Once the legality proceedings had been terminated , ORG was appointed , at some time in DATE , to process the PERSON land distribution . The applicants filed an administrative appeal against the decisions of this body , arguing that the individuals who had in the meantime been granted land belonging to plot no . CARDINAL had not been so entitled .", "Although the applicants ' administrative appeal was largely unsuccessful , the actual owners nevertheless sought judicial review .", "On DATE the ORG quashed the administrative decisions adopted in the case hitherto and ordered ORG to resume its proceedings . It held that the case had been unlawfully assigned to ORG .", "On DATE ORG adopted certain decisions in the case . The administrative appeals against these decisions were to no avail . According to the information provided by the parties and the elements available in the case file to date , the judicial review of these decisions before ORG has not yet ended .", "Criminal proceedings which the applicants had sought against various officials involved in the case were to no avail ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in LANGUAGE .", "In DATE the applicant began working as a boiler engine operator at Rivneteplokomunenergo , a municipal enterprise responsible for maintaining central heating in NORP . In DATE a number of employees of GPE , including the applicant , were transferred to GPE , a new municipal heating provider founded by ORG . Subsequently , PERSON ceased its activities , was declared bankrupt and liquidated .", "Before DATE the applicant 's work performance was generally positive . On DATE she successfully passed tests on work safety when operating boilers .", "According to the applicant , she and many of her colleagues had not received the salary due to them for the period of DATE during which they had worked at GPE . In DATE a number of the GPE employees met to discuss possible solutions to that problem . They agreed to form a trade union at GPE and to organise a picket . Subsequently , the applicant discontinued her membership of a trade union which had existed at GPE since DATE and informed the management of the company that a new trade union had been established by CARDINAL employees of GPE .", "According to the ORG , the employees of GPE did not form a new trade union .", "On DATE the applicant and CARDINAL other persons , allegedly acting on behalf of the GPE staff , gave a written notice to the Mayor of NORP which read as follows :", "“ We , employees of GPE , inform you that at TIME on DATE [ we ] will picket the management of GPE , which is located at ... [ for the reason of ] non - payment of salary from DATE . ”", "On an unspecified date ORG included the information about the picket in its register .", "On DATE an inspection party comprising several colleagues of the applicant , including her direct supervisor and the deputy director of GPE , visited various boiler rooms , CARDINAL of which the applicant worked in , in order to check compliance with safety instructions . In relation to the applicant 's room , the inspectors noted that certain pieces of the boiler equipment were broken or otherwise not functioning , that such malfunctioning had not been recorded in a special log kept by boiler operators , that certain parts of boiler equipment were not in place , and that there were unauthorised objects on the boiler and in the room . They concluded that the applicant did not comply with the relevant safety instructions . On those grounds , the management issued a reprimand to the applicant on DATE .", "On DATE the applicant and CARDINAL other persons took part in a picket in front of GPE 's main office . They expressed concerns that the management of GPE did not ensure timely payment of salaries and that the director had misappropriated company funds .", "On DATE , the applicant was required to be at work at TIME but came to work at TIME The applicant 's direct supervisor drew up a report concerning the applicant 's TIME absence from work , noting that because of her absence the applicant 's colleague had had to work for TIME after the latter 's TIME shift .", "On DATE GPE lodged a claim against the applicant and PERSON with ORG , asking the court to rule that the picket on DATE , which the company termed a strike , had been unlawful . GPE submitted that the strike had lasted for TIME , that CARDINAL persons had taken part in it , and that CARDINAL persons , including the applicant , had informed it of their participation in the strike by way of a written notice dated DATE . It alleged that the persons taking part in the strike had not been authorised to represent the interests of staff and that the demands of the strikers had not been approved by the staff or provided to the management in advance . A copy of the notice of CARDINAL DATE was joined to the claim .", "The parties did not provide information concerning the outcome of GPE 's claim .", "On DATE the applicant was dismissed from work for systematic breach of her duties of employment ( LAW of LAW ) .", "On DATE the applicant instituted proceedings in ORG seeking reinstatement in her position at GPE and recovery of salary arrears . She argued that her dismissal had been unlawful and unfounded , and that the real reason for it had been the labour dispute between GPE 's management and staff concerning non - payment of salary arrears .", "In the course of the court hearings concerning her case , the applicant stated that she had not been responsible for the issues discovered at her workplace on DATE , that she had been absent from work on DATE because she had participated in the picket , of which the local authorities had been duly informed , and that prior to the picket she had arranged with her colleague PERSON that he would replace her on DATE . The applicant acknowledged that she had not informed her direct supervisor of her absence in advance .", "NORP The representatives of GPE denied that there had been a dispute between the applicant and the company 's management and reiterated that the applicant had been dismissed for systematic breach of her duties of employment , in particular because of her failure to ensure the safe working conditions in the boiler room on DATE and because of her unauthorised absence from work on DATE .", "On DATE the court rejected the applicant 's claim , finding that she had committed serious violations of work regulations during the short period of time she had worked at GPE . In particular , it noted that , according to the statements of the applicant 's colleagues obtained during the court hearings and the documents submitted by GPE , the applicant had been responsible for the safety - related issues discovered on DATE and that she had been absent from work for TIME on DATE without informing management and her direct supervisor in advance . On these grounds , the court concluded that the applicant had been lawfully dismissed pursuant to LAW .", "NORP The court also held that the applicant 's submissions concerning a labour dispute between the management and staff were unsubstantiated , as GPE was not responsible for the non - payment of salary arrears due to the applicant for the period before she left PERSON in DATE .", "The applicant appealed against the judgment of the first - instance court and contested its findings of fact . She also stated that the management had been informed in advance of her participation in the picket on DATE , as on CARDINAL DATE she had submitted a written notice to the local authorities .", "On DATE ORG quashed the judgment of DATE and remitted the case for fresh consideration . ORG disagreed that the applicant 's case concerned systematic breaches of her employment duties .", "On DATE ORG dismissed the applicant 's claim on the same grounds as those given in its judgment of CARDINAL JuneCARDINAL .", "By decisions of DATE and CARDINAL DATE , ORG and ORG of GPE , respectively , dismissed the applicant 's appeals as unsubstantiated and upheld the findings of the firstinstance court .", "In its decision of DATE , ORG noted that the applicant 's allegation that she had been dismissed as a result of her participation in the picket on DATE was unsubstantiated .", "The relevant provisions of the LAW read as follows :", "“ Employees have the right to strike in order to protect their economic and social interests .", "The procedure for exercising the right to strike shall be established by law , taking into account the need to ensure national security , the protection of health , and the rights and freedoms of other persons .", "No one shall be forced to participate or to not participate in a strike .", "A strike may only be prohibited on the basis of law . ”", "The relevant extracts from LOC read as follows :", "“ A labour contract of indefinite duration ... may be discontinued by [ an employer ] in the following cases :", "...", "( CARDINAL ) NORP systematic and unjustified failure by an employee to fulfil his duties under the labour contract or staff regulations , if there were earlier disciplinary or public sanctions imposed on him ... ”", "“ If no new disciplinary sanction is imposed on an employee within DATE of the imposition of a [ previous ] disciplinary sanction , he is considered to have not been subjected to a disciplinary sanction ... ”", "The relevant extracts from the LAW read as follows :", "“ Parties to a collective labour dispute are :", "at an occupational level – employees ( certain categories of employees ) ... or a trade union , or another organisation authorised by employees [ to represent their interests ] and the owner of an enterprise ... or [ the employer 's ] representative .", "...", "A body authorised by employees to represent [ their interests ] shall be the only authorised representative of employees during the time such a dispute exists . ”", "“ A strike is a temporary , collective and voluntary cessation of work by employees ( non - appearance at work , breach of labour duties ) ... with the aim of resolution of a collective labour dispute .", "Striking shall be an extreme means of resolution of a collective labour dispute ( when all other possibilities [ of such resolution ] have been exhausted ) if [ the employer ] refuses to allow the claims of employees or of a body authorised by them , or of a trade union , or of an association of trade unions or of a body authorised by them . ”", "“ Pursuant to Article CARDINAL of the LAW of GPE employees have the right to strike in order to protect their economic and social interests .", "The procedure for exercising the right to strike is established by this LAW .", "A strike may be commenced if conciliatory procedures have not led to the settlement of a collective labour dispute or if [ the employer ] avoids conciliatory procedures or does not comply with an agreement reached in the course of the resolution of a collective labour dispute . ”", "“ A decision to announce a strike at an enterprise shall be taken by the majority of employees at a general assembly ( conference ) of employees or by CARDINAL of delegates to the conference ... upon a request of a trade union or another association of employees , authorised , in accordance with section QUANTITY , to represent the interests of employees . Minutes must be drawn up reflecting such a decision .", "...", "No one shall be forced to participate or to not participate in a strike .", "A body ( person ) leading a strike shall inform [ the employer ] DATE before the commencement of a strike , or DATE if the decision to strike concerns a non - stop work process .", "The owner or his representative shall inform , as soon as possible , suppliers , consumers , transport organisations , and other interested enterprises ... about the employees ' decision to announce a strike .", "A body ( person ) leading a strike shall determine [ the place of the strike ] in agreement with the owner or his representative .", "If an assembly , meeting , or a picket takes place outside the enterprise , the body ( person ) leading the strike shall inform the local authority DATE before it takes place . ”", "“ An application by [ the employer ] seeking to have a strike declared unlawful shall be considered by a court .", "[ It ] must be considered by a court ... within DATE .", "A court 's judgment declaring a strike unlawful obliges persons taking part in the strike to adopt a decision discontinuing or cancelling the announced strike , and [ it obliges ] employees [ to return to work ] no later than DATE after the body ( person ) leading the strike is served with a copy of the court 's judgment .", "“ Employees ' participation in a strike , with the exception of strikes declared unlawful by a court , shall not be considered as a violation of work discipline and may not serve as a ground for disciplinary action ... ”", "“ Organisation of , or participation in , a strike declared unlawful by a court shall constitute a violation of work discipline .", "Employees shall not be remunerated for the time during which they take part in a strike .", "The time during which an employee takes part in a strike declared unlawful by a court shall not be included in the [ period of his ] general and uninterrupted length of service . ”", "The relevant extracts from ORG read as follows :", "“ CARDINAL . An employee may be dismissed pursuant to LAW [ of LAW ] for an offence committed at work only after disciplinary or public sanctions for unjustified breach of his duties under the labour contract or staff regulations have been imposed on him .", "In such cases , only the disciplinary sanctions which are envisaged by law and are still in force ... ( Article CARDINAL [ of LAW ] ) shall be taken into account ... ”" ]

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[ "11" ]

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[ "The applicant was born in DATE and lives in PERSON parish in GPE .", "On DATE the applicant was placed in cell no . CARDINAL in a remand wing of FAC .", "On DATE ORG ( Valmieras rajona tiesa ) convicted the applicant of resistance to a public official and sentenced him to CARDINAL years’ imprisonment but suspended the sentence . It appears that no appeal was lodged against this judgment .", "On DATE , the court ordered the applicant ’s release .", "According to the applicant , the cell where he was placed together with other detainees had been very poorly lit and poorly ventilated . The toilets had not been separated from the living area and had emitted a foul smell that had lingered in the air . Detainees had thus been forced to eat their meals in close proximity to the toilets . The applicant also alleged that the cell had been overpopulated , each detainee having had less than the domestic standard of QUANTITY m of living space per male adult detainee .", "The Government disagreed with the applicant ’s version of facts . They noted that cell no . CARDINAL had had artificial and natural light and a ventilation system and they submitted that the toilet area in the cell had been separated off with a screen . The Government submitted that cell no . CARDINAL had measured QUANTITY m. and had accommodated CARDINAL detainees at a time , including the applicant .", "In addition , the applicant contended that he had not received any personal hygiene products , save for CARDINAL of a bar of laundry soap . He had not been provided with toilet soap , a toothbrush , toothpaste and toilet paper , in violation of domestic law ( see paragraph CARDINAL below ) .", "The Government did not deny that the applicant had not been provided with these products .", "On an unspecified date in DATE the applicant had received CARDINAL g of laundry soap , CARDINAL toothbrush , QUANTITY of toothpaste and QUANTITY roll of toilet paper .", "On DATE , upon the applicant ’s complaint addressed to the prosecutor ’s office , ORG ( PERSON vietu pārvalde ) informed him that the prison lacked the financial resources to provide him with the personal hygiene products as laid down in ORG no . CARDINAL ( DATE ) .", "On DATE the ORG administration confirmed that there were no financial resources to provide the relevant personal hygiene products , save for CARDINAL g bar of laundry soap per month .", "On DATE ORG replied to the applicant in general terms that they had found during their onsite visits that penal institutions did not comply with many legal requirements . They noted , among other things , that they had drawn the attention of the relevant domestic authorities in DATE to insufficient financial resources having been allocated to the purchase of personal hygiene products . Finally , the applicant was informed of his right to submit an individual petition to the ORG .", "Prior to DATE , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) had not visited FAC , where the applicant was placed during his pre - trial detention .", "However , during its ad hoc visit from CARDINAL to CARDINAL DATE to several police headquarters ( in GPE , PERSON and GPE ) and prisons ( in Rīga and PERSON ) it noted that detainees and prisoners were not provided with basic personal hygiene products and recommended that immediate steps be taken to ensure that all detainees and prisoners be provided with adequate quantities of essential personal hygiene products ( see paragraphs CARDINAL of the relevant report : ORG ( DATE ) CARDINAL ) . The ORG also found that toilets were not adequately partitioned off in a number of cells .", "In its response , ORG ( see the relevant document : ORG ( DATE ) CARDINAL ) noted that due to a lack of funding it was not possible to fully comply with the ORG ’s recommendations . The Government noted that prisoners could purchase the necessary products in a prison shop . At the same time , they noted that prison authorities used humanitarian aid to help prisoners who did not have sufficient financial means .", "ORG , adopted on DATE , are recommendations of ORG to member ORG as to the minimum standards to be applied in prisons . States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates . The relevant parts read as follows :", "“ CARDINAL The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation .", "CARDINAL In all buildings where prisoners are required to live , work or congregate :", "a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;", "b. artificial light shall satisfy recognised technical standards ; and", "c. there shall be an alarm system that enables prisoners to contact the staff without delay .", "CARDINAL Specific minimum requirements in respect of the matters referred to in CARDINAL and CARDINAL shall be set in national law .", "...", "CARDINAL Prisoners shall keep their persons , clothing and sleeping accommodation clean and tidy .", "CARDINAL The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials . ”", "Cabinet Regulation no . CARDINAL ( DATE ) , in force at the material time and effective until DATE , laid down the standards governing the basic personal hygiene products to be provided to detainees . A healthy adult male detainee was to receive CARDINAL g of laundry soap , CARDINAL g of toothpaste and QUANTITY roll of toilet paper DATE and CARDINAL toothbrush DATE . No toilet soap was to be provided .", "Cabinet Regulation no . CARDINAL ( DATE ) , in force at the material time and effective until DATE , laid down the standards governing detention conditions in remand wings of prisons . It contained no provision on the partitioning off of toilets in cells .", "Subsequently , the requirement to separate the toilet from the rest of the cell was laid down , initially , in cabinet regulations and , later , in law .", "The Law of Administrative Procedure ( Administratīvā procesa likums ) took effect on DATE . It provides for the right to challenge administrative acts ( administratīvais akts ) and actions of a public authority ( faktiskā rīcība ) before the administrative courts .", "At the material time , LAW of ORG defined an action of a public authority as “ an action within the sphere of public law which is not aimed at issuing an administrative act , provided that its results have or might infringe the rights or legal interests of an individual concerned ” . An action of a public authority also included “ an omission on the part of a public authority provided that such authority has an obligation under the law to take a specific action ” . The DATE amendments to the PERSON , which took effect on DATE , further clarified this definition .", "Under section CARDINAL of the Law of Administrative Procedure everyone has the right to receive appropriate compensation for pecuniary and non - pecuniary damage caused by an administrative act or action of a public authority . Under section CARDINAL of the same PERSON , a claim for compensation can be submitted either together with an application to the administrative courts to have an administrative act or action of a public authority declared unlawful or to the public authority concerned following a judgment adopted in such proceedings .", "In its DATE report dedicated to human rights issues in GPE for DATE , ORG ( VCB ) , noted that prisoners most commonly complained about the conditions of their detention and , in particular , about the lack of separation of toilets from other cell areas . Although they had paid a visit to FAC , the report did not describe the results of that visit in full . It was merely stated that :", "“ The ORG has concluded that improvement in conditions of detention is connected to the lack of funding and that in many prisons , for example in ... FAC , it will be impossible to ensure normal conditions of detention without construction works .", "Therefore , in DATE the ORG sent a letter to the Prime Minister , pointing out the possible problems [ that might occur ] if detainees were to lodge applications under LAW with the Court . Regrettably , the competent authorities did not always follow the ORG ’s recommendations and the ORG [ was left with no other possibility than to ] advise detainees to lodge applications with the ORG . [ If ] any improvements had been made , the ORG had not been informed of them ” .", "On DATE ORG issued a compilation and analysis of the domestic case - law on definition and interpretation of the administrative law concept of an action of a public authority ( PERSON prakses apkopojums par faktiskās rīcības jēdzienu un interpretāciju ) . It was noted that PERCENT of cases before the administrative courts had concerned actions of a public authority ." ]

[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE , Apartment CARDINAL situated in GPE at CARDINAL Aleea Hortensiei , the property of the applicant and of her husband , was seized by the ORG under Decree no . CARDINAL/CARDINAL , following their decision to leave the country . No compensation was paid and no copy of the decision to seize the property was sent to them . The applicant 's husband later died in DATE , the applicant being his only heir .", "On DATE and CARDINAL DATE the applicant and her husband informed ORG that they intended to recover their property , requesting the eviction of the tenants .", "On DATE the ORG sold that apartment to the then tenants under PERSON no . LANGUAGE .", "On DATE the applicant and her husband sought to have the seizure declared null and void , to recover ownership of Apartment CARDINAL and to have the former tenants evicted ; they also sought damages in respect of the furniture which had been in the apartment and which had allegedly been destroyed .", "On DATE ORG allowed the action in part and annulled the seizure as unlawful , but dismissed the claim for restitutio in integrum on the grounds that the apartment was in the possession of third parties who were not party to those proceedings . It also dismissed the claim for damages in respect to the furniture for lack of payment of stamp duty .", "Eventually , on DATE , ORG upheld that ruling in a final decision .", "On DATE ORG , by a final decision , dismissed an action by the applicant for recovery of possession of immovable property lodged against those who had bought the apartment . The court considered that when proceedings are brought by a former owner against those who have acquired ownership under PERSON no . DATE , preference is given to the protection of the good faith principle . Thus , the former tenants had made the purchase in good faith and had complied with the provisions of PERSON no . DATE .", "On DATE the ORG attached to ORG informed the applicant that there were no reasons to lodge an application for review ( recurs PERSON anulare ) against that final decision .", "On DATE the applicant sought to recover Apartment CARDINAL under PERSON no . CARDINAL/CARDINAL governing immovable property wrongfully seized by the ORG .", "On DATE ORG dismissed her request , since that apartment had been sold in accordance with LAW no . DATE , but proposed compensation in the equivalent of MONEY ( ORG ) . Then the file was sent to ORG and subsequently to the Secretariat of ORG .", "On DATE ORG decided to award the applicant MONEY , the equivalent of EUR CARDINAL,CARDINAL according to the rate of exchange displayed on DATE by ORG .", "According to the documents in the file , the applicant has neither contested that decision nor has she followed the administrative procedure provided under LAW , as amended by Government Emergency Ordinance no . CARDINAL/CARDINAL , for opting between cash compensation or shares in the fund NORP .", "On DATE ORG , by a final decision , dismissed a request by the applicant to have the sale declared null and void , considering that the former tenants had made the purchase in good faith .", "The relevant legal provisions and jurisprudence are described in the following judgments : PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINALVII ) ; PERSON and Others v. GPE ( no . MONEY , § § DATE , ORG CARDINALVII ) ; ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) ; PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) ; and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant was arrested on suspicion of extorting protection money from an escort agency . Subsequently , CARDINAL other persons were charged and remanded in custody in connection with the investigation against the applicant .", "In the course of the investigation the applicant ’s detention was several times prolonged by ORG ) and ORG ( Sąd Wojewódzki ) . The prosecution authorities also obtained CARDINAL expert reports concerning the applicant ’s mental health .", "On DATE the ORG ( Prokurator Wojewódzki ) lodged a bill of indictment with ORG ( Sąd Wojewódzki ) . The applicant was indicted together with CARDINAL other persons on charges of robbery and extortion . The prosecution asked the court to hear evidence from CARDINAL witnesses .", "On DATE the applicant lodged an application for release . He submitted that his wife had been placed in a mental hospital and that their daughter had been left without care . On DATE the ORG upheld the detention order . The court held that , given the number of suspects involved in the case and the serious nature of the offence in question , keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course . On DATE the ORG ( Sąd Apelacyjny ) dismissed the applicant ’s further appeal .", "On DATE the applicant made an application for release . It was rejected by ORG on DATE . The court held that keeping the applicant in custody had been necessary to ensure the proper conduct of the proceedings . On DATE , on an appeal by the applicant , ORG upheld this decision . The court found that the applicant ’s family situation did not militate against his continuing detention and that there were no grounds on which to release the applicant , as defined in LAW . Furthermore , it also underlined the gravity of charges brought against the applicant .", "On DATE the applicant made yet another application for release . It was rejected by ORG on DATE as the applicant failed to submit any new arguments which would justify his release .", "On DATE the ORG asked ORG ( PERSON ) to prolong the applicant ’s detention . On DATE ORG granted the application and prolonged his and CARDINAL other co - accused’ detention until DATE .", "On DATE the applicant made yet another unsuccessful application for release from detention .", "On DATE the ORG lodged a request under LAW of LAW with ORG , asking it to prolong the applicant ’s detention for a further period of DATE . On CARDINAL DATE ORG extended the applicant ’s detention until DATE , considering that it was necessary to ensure the proper conduct of the proceedings . The court stressed that the case was particularly complex as it concerned several co - accused . Furthermore , it observed that the trial court still had to hear evidence from CARDINAL witnesses .", "On DATE the composition of the trial court had to be changed due to the presiding judge ’s illness .", "DATE the trial court on four occasions allowed the applicant ’s family to visit him in prison .", "On DATE the ORG again asked ORG to prolong the applicant ’s detention . On DATE ORG decided to extend the applicant ’s detention until DATE . It considered that even though the proceedings had been lengthy , the trial court could not be held responsible for the delay . The composition of the trial court had to be changed due to the presiding judge ’s illness . Moreover , some of the accused contributed to the length of the proceedings by lodging numerous motions with the court . ORG also referred to the complexity of the case , the fact that it involved several accused and the large number of witnesses .", "NORP In DATE , DATE the applicant ’s family was allowed , on QUANTITY occasions , to visit him in prison .", "On DATE the ORG released the applicant under police supervision . The court held that the detention had already been prolonged CARDINAL times by ORG but to no avail , as the proceedings had still not been terminated . In the court ’s opinion , any prolongation of his further detention on remand would be tantamount to serving a prison sentence .", "Before DATE the trial court listed CARDINAL hearings , of which CARDINAL were cancelled or adjourned .", "On DATE ORG gave judgment . It sentenced the applicant to CARDINAL years’ imprisonment .", "At the material time the rules governing detention on remand were contained in LAW of the Law of DATE “ Code of Criminal Procedure ” ( ORG postępowania karnego ) ( “ the Code ” ) entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE . The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .", "Article CARDINAL set out the general grounds justifying imposition of the preventive measures . That provision read :", "“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”", "Article CARDINAL § CARDINAL defined grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , provided :", "“ 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 he has no fixed residence [ in GPE ] or his identity can not be established ; or", "( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or", "( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or", "( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .... ”", "On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :", "“ ( 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 he has no permanent abode [ in GPE ] ; or", "( CARDINAL ) [ as it stood before DATE ] . ”", "Paragraph CARDINAL of Article CARDINAL provided :", "“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”", "The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate ." ]

[ "5" ]

[ "5-3" ]

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[ "The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The second applicant , Mr ORG Wenger , is a NORP national who was born in DATE and lives in GPE .", "s , may be summarised as follows .", "The second applicant is Professor of Economics at ORG . He is a founding member of ORG Verein zur Förderung der PERSON ) which is committed to protecting the rights of minority shareholders in joint stock companies . The first applicant worked as a student assistant for his department .", "On DATE the first applicant , represented by ORG , a scientific assistant to the second applicant , bought CARDINAL shares in the M. company . DATE and DATE the second applicant bought CARDINAL shares in that same company . They paid MONEY ( ORG ) per share .", "On DATE the management of the B. company , which was to take over the M. company , offered to pay ordinary shareholders of the M. company an indemnity of DEM CARDINAL per share in order to avoid actions instituted by them . The first applicant accepted that offer and made a profit amounting to CARDINAL . The second applicant accepted the offer for part of his shares .", "On DATE ORG issued a warrant under LAW and LAW ( see Relevant domestic law below ) to search the first applicant ’s home in GPE ( her principal residence ) , her parent ’s home in GPE ( her secondary residence ) and herself . It further issued another warrant to search the second applicant ’s home in GPE , his office at ORG and himself . Both applicants were suspected of prohibited insider trading .", "ORG ordered the search and seizure of all documents and electronic storage media concerning the purchase of shares in the PERSON company DATE and DATE . In the second applicant ’s case , it further ordered the search and seizure of documents concerning telephone conversations with members of the B. company , and in the first applicant ’s case documents concerning information given to her either by the second applicant or by his scientific assistant A. in respect of the purchase of the shares .", "ORG observed that in a ORG meeting on ORG CARDINAL DATE the M. company decided to merge with a company affiliated to the B. company . ORG , which was founded by the second applicant and was represented during the meeting by his scientific assistant PERSON , objected to the decision and threatened to institute proceedings in court to set it aside , as no offer for a takeover of ordinary shares ( as opposed to preference shares ) was to be made to the shareholders of the M. company . Following negotiations with the holding company B. , the latter publicly announced on CARDINAL DATE a takeover offer of DEM CARDINAL per share also to those holding ordinary shares in the M. company .", "ORG found that both the fact that negotiations were being conducted concerning a takeover offer and the content of those negotiations were insider information which was likely to lead to a higher stock rate when made public . The first applicant , who had not previously held any stocks in the PERSON company , had bought CARDINAL shares in that company on CARDINAL DATE . As she had been a scientific assistant to the second applicant , there was a suspicion that this insider information had been disclosed to her either by the second applicant or by A. , with whom she had been working in another company , and that she had used that information when buying the shares in the PERSON company . The second applicant , who had not previously held any shares in the PERSON company , had bought a total of CARDINAL shares DATE and DATE . As he had spoken to the managing directors of the B. company on the telephone during that period , there was a suspicion that he had obtained knowledge of the planned offer to shareholders and had used that information when buying shares in the M. company .", "The search warrants were subsequently executed . The first applicant ’s home in GPE was searched in her presence , and her GPE home was broken into and searched in their absence and a number of objects and documents seized . The police also searched the second applicant ’s office and his home , the latter in the presence of his then DATE father with whom he was living , and seized several documents and his laptop .", "On DATE the second and the first applicant respectively lodged an appeal against the search warrant and the seizures with ORG . They claimed that these measures had been unlawful . They had not had knowledge of the takeover offer made to ordinary shareholders in the LOC company before that offer had been made public . This had already been confirmed by the B. company on the request of ORG for ORG ( ORG für den ORG ) prior to the issuing of the search warrants .", "On DATE ORG dismissed the first and second ORG appeal against the search and seizure orders as ill - founded . It found that ORG had rightly considered that there had been a suspicion of prohibited insider trading and had sufficiently specified the persons and rooms to be searched and the evidence to be searched for . The orders had not been disproportionate . Search and seizure had been appropriate and necessary measures . Awaiting the collection of further evidence , such as witness testimonies , would have entailed the risk that the evidence searched for could no longer be secured ; nor had issuing a search warrant against the first applicant been disproportionate , as the criminal investigations concerned a wider serious offence and had been instituted against several suspects who could have colluded , which made it necessary to coordinate the investigation measures taken . ORG further found that the seizure of the objects and documents in question had been lawful as they were possibly relevant for the criminal proceedings .", "On DATE the first and the second applicant each lodged a complaint with ORG against the decisions taken by LOC and ORG . Relying notably on LAW ( see Relevant domestic law below ) , they complained about the searches and seizures , which they considered to breach their right to respect for their home and to be arbitrary .", "In CARDINAL decisions adopted on DATE ORG declined to consider the first applicant ’s ( file no . CARDINAL BvR CARDINAL/CARDINAL ) and the second applicant ’s ( file no . CARDINAL BvR CARDINAL/CARDINAL ) constitutional complaints as they were ill - founded .", "ORG found that the criminal courts had not breached the applicants’ right to respect for their home as protected by LAW . The criminal courts’ finding that there had been a suspicion of prohibited insider trading had not been arbitrary . After the ORG meeting on DATE it had not been certain whether or not a takeover offer would be made to ordinary shareholders . Nonetheless , the applicants had bought shares in the LOC company after this meeting and shortly before the public announcement of the takeover offer . The first applicant had bought the shares in cooperation with an assistant of the second applicant . In his capacity as a member of ORG , the second applicant had voiced his support for a takeover offer to be made to the ordinary shareholders as well and had been in contact by telephone with the management of the companies concerned .", "ORG further found that it had not been arbitrary for the criminal courts to consider the searches as proportionate . The evidence to be searched for in accordance with the warrants was suitable to establish the circumstances in which the shares had been bought . The possibility that evidence proving knowledge of insider information would be found could not be excluded . Having regard to comparable cases , it had also not been arbitrary to consider the search ordered against the first applicant as proportionate despite the fact that she had CARDINAL shares . The possible damage caused amounted to CARDINAL and there had been a suspicion against several persons who could have colluded .", "The decisions were served on the applicants on DATE . They are at issue in application no . CARDINAL/CARDINAL lodged with this ORG by the first applicant and application no . DATE brought by the second applicant .", "On DATE ORG discontinued the investigation proceedings against the applicants . It found that the evidence collected was insufficient to secure their conviction of insider trading .", "On DATE ORG issued a warrant under LAW and LAW for the search of the second applicant ’s home and cars in GPE , of his office at ORG and of himself on suspicion of prohibited insider trading . It ordered the search and seizure of all documents and electronic storage media concerning the purchase and sale of shares in the A. company by the second applicant and further co - defendants in DATE .", "ORG found that the A. company had informed its shareholders on DATE that the PERSON limited liability company wanted to take over the shares of the minority shareholders of the A. company and was offering them an indemnity of some ORG CARDINAL per share . On DATE an increased offer of an indemnity of ORG CARDINAL per share was made public . The second applicant had purchased CARDINAL shares of the A. company for some ORG CARDINAL on DATE . He was suspected of having obtained knowledge of the A.B. company ’s intention to offer an indemnity in the higher amount from a third person ( S. ) , who had negotiated with him with a view to obtaining his agreement to sell the shares he already had , and to have used that knowledge when purchasing the shares on CARDINAL DATE . His profit amounted to some ORG CARDINAL .", "The search warrant was executed on DATE , at the same time as warrants that had been issued against several other persons . No suspicious objects or documents were found or seized .", "On DATE the second applicant appealed against the search warrant . He claimed that there had not been a reasonable suspicion of insider trading against him at the time the warrant had been issued , as PERSON had already told the investigation authorities that he had not informed him of the planned increased offer of an indemnity . He had bought the shares as he had previously received the public report of the A. company concerning the planned takeover of the shares of the minority shareholders and thus considered the purchase of shares to yield profits .", "On DATE ORG dismissed the second applicant ’s appeal against the search warrant as ill - founded . Referring to the exhaustive report and the documents submitted by ORG for ORG ( Bundesanstalt für Finanzdienst - leistungsaufsicht ) to ORG , it found that there had been a sufficient factual basis for a suspicion of insider trading when ORG issued the search warrant . In particular , the fact that PERSON had proposed to others to persuade the second applicant to accept an offer of indemnity and that the latter had bought further shares DATE before the higher offer of indemnity was made public was sufficient to ground the suspicion of insider trading . Moreover , the documents to be seized had been described in sufficient detail in the search warrant . In view of the gravity of the offence the second applicant was suspected of , the search order had also not been disproportionate . The decision was served on the second applicant on DATE .", "On DATE the second applicant lodged a constitutional complaint with ORG . He complained about the renewed search and argued that this measure had violated his right to respect for his home and had been arbitrary .", "On DATE ORG declined to consider the second applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found that the second applicant had failed sufficiently to substantiate his complaint , which was therefore inadmissible . It argued that the second applicant had not informed the court of the contents of the report drawn up by ORG for ORG to which the criminal courts had referred in their decisions ordering the search . He should have done so as he had contested that there had been a sufficient suspicion of insider trading . Apart from this , the second applicant had also informed the court only selectively about the evidence on which the criminal courts had founded their suspicion against him . ORG was thus not in a position to review the criminal courts’ assessment . Moreover , the second applicant had failed to explain why it should have been obvious to the criminal courts that he could have had knowledge of the facts relevant for the trend in the share price from other sources . He does not appear to have informed the criminal courts that he had received the report of the A. company . In view of this , it could be left open whether the decisions of the criminal courts had violated the second applicant ’s fundamental rights .", "The decision was served on the second applicant on DATE . It is at issue in application no . CARDINAL/CARDINAL lodged by him with this ORG .", "On DATE ORG discontinued the investigation proceedings against the second applicant . It found that , even though it was likely that the second applicant had been informed of the increased takeover offer which was to be made either by PERSON or by one of his co - defendants and had bought the shares by using that knowledge , the investigations , including the search of the second applicant ’s home , had not yielded any evidence to prove that he was guilty of insider trading .", "On DATE ORG issued a further warrant to search the home , cars and person of the first applicant and of PERSON , both qualified as witnesses , on suspicion of prohibited insider trading by the second applicant and others in respect of shares in the A. company .", "The search order was executed on DATE without any evidence being found .", "On DATE ORG granted an appeal by PERSON against the search warrant issued against him . It found that the warrant had been unlawful as the searches conducted on DATE of , inter alia , the second applicant ’s and PERSON ’s homes had not produced any results confirming the suspicion against them . Moreover , PERSON , heard as a witness on DATE , had denied having informed the second applicant of the intention to offer minority shareholders a higher indemnity . It was therefore unclear which relevant evidence should have been found when searching PERSON ’s home after that date . On the contrary , on DATE ORG dismissed as ill - founded the appeal lodged by the first applicant against the search warrant issued against her .", "On DATE ORG , allowing the first applicant ’s constitutional complaint , quashed the decisions of LOC . It found that these decisions violated the first applicant ’s right to respect for her home . The search warrant issued by ORG was not sufficiently reasoned in that it did not explain why evidence against the suspects could be found in her home . Moreover , the search warrant against the first applicant , who was not suspected of an offence , was disproportionate as , at the time the warrant was issued , there was no longer a strong suspicion against the suspects and it was not likely that evidence would be found in the first applicant ’s home .", "LAW stipulates that the home is inviolable . In accordance with paragraph CARDINAL of that Article , searches may be authorized only by a judge or , when time is of the essence , by other authorities designated by law , and may be carried out only in the manner prescribed therein .", "LAW , on searches in respect of the suspect , provides that a search of the home and other LOC and of the person and the belongings of the suspect of a criminal offence may be made for the purpose of his apprehension or if it may be presumed that the search will lead to the discovery of evidence .", "Pursuant to LAW , searches may only be ordered by a judge or , in case of urgency ( Gefahr i m Verzug ) , also by the public prosecutor ’s office and the officials assisting it .", "Pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( Wertpapierhandelsgesetz ) insiders shall be prohibited from taking advantage of their knowledge of insider information to acquire or dispose of insider securities for their own account or for the account or on behalf of a third party . Likewise , a third party who has knowledge of inside information shall be prohibited from taking advantage of that knowledge to acquire or dispose of insider securities for his own account or for the account or on behalf of others ( section QUANTITY ) of LAW ) . Pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of LAW , any person who acquires or disposes of an insider security in contravention of a prohibition under section CARDINAL(CARDINAL)(CARDINAL ) or CARDINAL ) shall be liable to up to CARDINAL years’ imprisonment or to a fine ." ]

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[ "Mr PERSON was born in DATE , PERSON and Mr PERSON were born in DATE , and Mr Gorbal was born in DATE . All the applicants live in GPE .", "On DATE the applicants and CARDINAL other persons founded an association named “ ORG for ORG in GPE ( “ PERSON за збереження дикої ( корінної ) природи PERSON ” , the “ ORG ” ) . Mr PERSON was elected as the Civic Committee ’s head .", "On DATE the applicants filed an application for the State registration of the ORG together with a copy of its articles of association with ORG ( the “ ORG ” ) .", "The Civic Committee ’s articles read , in so far as relevant , as follows :", "“ CARDINAL . ORG ... ( hereafter – ORG ) is a voluntary association of citizens , non - governmental organisations , and other legal entities , which unite their efforts in joint activities [ aiming at the ] preservation of wild ( indigenous ) natural systems in cities and towns .", "PERCENT ORG is a non - governmental , non - profit organisation .", "...", "The activities of ORG are to be carried out on the territory of GPE . The ORG may have representative offices in other cities and towns of GPE .", "... ”", "“ CARDINAL . The ORG ’s activities shall be based on the principles of :", "a ) democracy ;", "b ) legality ;", "c ) self - government ;", "d ) equality of members ;", "e ) openness ;", "f ) combination of local actions with global thinking ;", "g ) active creative initiative of the broader community . ”", "“ CARDINAL . ORG was founded with the aim of protecting natural systems from their complete destruction in the process of urbanisation and from their replacement by artificial biomes in the process of urban development and growth .", "The aim of the ORG is to preserve the remaining indigenous natural areas on the territory of the contemporary residential area of ORG . ”", "“ CARDINAL . The ORG ... shall have the task of taking concrete action to raise awareness among urban planners , members of bodies of local self - government , and the general public about ... the difference between indigenous natural systems and artificial natural systems in cities and towns , of the possible consequences of the loss of samples of natural ecosystems , as well as [ the task of ] coordinating joint activities of public authorities , non - governmental organisations , and the general public [ aimed at ] the prevention of such consequences , the result of which should be the preservation of indigenous biomes as natural samples .", "According to [ its ] aim and tasks the ORG shall perform its activities in the following areas :", "a ) collection of information concerning the indigenous nature of ORG ;", "b ) collection and study of world experience of coexistence of cities and natural systems ;", "c ) creation and development of a publicly accessible electronic database ;", "d ) cultural , educational , publishing , and informational activities ;", "e ) lobbying of issues connected with the preservation of natural ecosystems with the national and local authorities ;", "... ”", "“ CARDINAL . ... the ORG shall have the right :", "a ) to take part in civil law relations , to acquire pecuniary and non - pecuniary rights ;", "...", "d ) to [ disseminate ] propaganda , and [ carry out]cultural and educational activities ;", "...", "h ) to set up entities and organisations , to set up media , and to perform publishing activities ;", "i ) to carry out non - governmental ecological expert examinations ;", "...", "In order to fulfil its tasks the ORG shall have the right to carry out the necessary economic ( “ господарську ” ) and other commercial activities by means of establishing legal entities . ”", "“ CARDINAL . Membership in the ORG may be individual , collective , honorary , as well as [ through ] voluntary participation ( “ в якості волонтерів ” ) ;", "...", "ORG and other GPE who share the ideology and participate in certain projects and actions [ of the ORG ] for free , may become volunteers of the ORG ;", "... ”", "“ ...", "ORG of the Committee shall be responsible for the financial administration of projects , the accounting of ORG , and manage everyday administrative ( “ господарчу ” ) and financial activities to ensure the implementation of projects .", "... ”", "On an unspecified date the application and articles of association were returned to the applicants and they were advised to make changes to the text , which were noted down by ORG in the same documents . In particular , several sentences and paragraphs were crossed out , including paragraphs CARDINAL , CARDINAL ( d ) , and CARDINAL . Some other parts of the articles were rephrased or amended , like , for instance , the word “ lobbying ” in paragraph CARDINAL ( e ) was replaced by “ submission of propositions ” and the phrase “ to carry out non - governmental ecological expert examinations ” in paragraph CARDINAL ( i ) was reformulated to the effect that ORG could carry out ecological expert examination on a “ voluntary basis ” .", "According to the applicants , on DATE they submitted the redrafted version of the articles of association , in which the ORG ’s corrections were only partially accepted . The Government denied this .", "By letter of DATE , ORG informed the applicants of its refusal to register ORG on the ground that its articles had not been drafted in accordance with the domestic law . In particular , ORG status was not indicated ; the provision that ORG could have representative offices in other cities and towns of GPE did not correspond to the provision that its activities were to be carried out on the territory of GPE ; the articles listed CARDINAL aims of the organisation instead of CARDINAL aim and tasks ; ORG of ORG was entrusted with economic ( “ господарські ” ) functions while section CARDINAL of ORG envisaged that the economic activities of an association could only be carried through separate legal entities which it could establish for that specific purpose ; and the provisions that ORG could carry out publishing activities on its own and involve volunteers in its activities as members were contrary to the same law . Finally , the applicants had not taken into account all the corrections made to the text of the articles of association and they had submitted a copy of the document showing that they had paid registration fees , while the original was required .", "In a letter of DATE , received by ORG on DATE , Mr GPE , acting on behalf of ORG as its head , stated that ORG had not taken into account the amended version of ORG articles lodged with it on DATE . He asked the ORG to reconsider its decision in the light of the amended version of the articles of association , the additional copies of which he could submit if the ORG wished .", "NORP By letter of CARDINAL October CARDINAL , ORG acknowledged receipt of the ORG letter of DATE and , referring to its letter of DATE , informed them that the articles of association could not be examined if they had not been re - drafted in compliance with the law . ORG also informed them that its refusal to register ORG could be challenged before the courts .", "The applicants continued to carry out certain activities of ORG , in particular , publishing articles on its behalf in various newspapers .", "On DATE the applicants lodged a complaint with ORG of GPE , seeking the annulment of ORG decision not to register ORG . They alleged a violation of their right to form an association and the right to freely choose its aims and areas of activities . They also argued that the reasons for the refusal to register their association had been based on an incorrect interpretation and application of the relevant law by ORG . Furthermore , according to them , ORG had failed to take into account the amended version of the articles of association , which they annexed to their complaint to the court .", "On DATE the court rejected the ORG complaint as unsubstantiated . On DATE ORG upheld the first - instance court ’s decision .", "The courts held that the refusal to register ORG had been lawful , since the articles of association contained textual discrepancies with the relevant provisions of the domestic legislation . In particular , the aim of ORG was not defined correctly and did not correspond to the requirements of sections CARDINAL and CARDINAL of ORG . The provisions of paragraphs CARDINAL , CARDINAL , and CARDINAL of the articles of association authorising ORG of ORG to carry out “ everyday administrative and financial ” activities and envisaging that ORG could perform publishing activities were not in compliance with sections CARDINAL and CARDINAL of that law . The wording of paragraphs CARDINAL and CARDINAL of the articles of association as regards the participation of volunteers in ORG activities contravened the principle of equality of members of an association embodied in section CARDINAL of the law .", "The courts also noted that the applicants had failed to submit a corrected version of the articles of association , while the versions they had filed with the courts had not been drafted in compliance with the law .", "On DATE a panel of CARDINAL judges of ORG rejected the ORG request for leave to appeal in cassation , finding no grounds for examination of the case by ORG of ORG .", "On DATE the applicants decided to liquidate ORG and discontinued its activities .", "The relevant provisions of LAW read as follows :", "“ The legal order in GPE is based on the principles according to which no one shall be forced to do what is not envisaged by legislation .", "ORG and local self - government bodies and their officials are obliged to act only on the grounds , within the limits of authority , and in the manner envisaged by the LAW and the laws of GPE . ”", "“ ORG have the right to freedom of association in political parties and non - governmental organisations for the exercise and protection of their rights and freedoms and for the satisfaction of their political , economic , social , cultural and other interests , with the exception of restrictions established by law in the interests of national security and public order , the protection of the health of the population or the protection of rights and freedoms of other persons .", "... ”", "“ The founding and activities of political parties and non - governmental organisations are prohibited if their programme goals or actions are aimed at the liquidation of the independence of GPE , the change of the constitutional order by violent means , the violation of the sovereignty and territorial indivisibility of the ORG , the undermining of its security , the unlawful seizure of ORG power , the propaganda of war , violence , the incitement of inter - ethnic , racial , [ or ] religious enmity , and encroachments on human rights and freedoms and the health of the population .", "Political parties and non - governmental organisations shall not have paramilitary formations .", "...", "The prohibition of the activities of associations of citizens shall be exercised only through judicial procedure . ”", "Article CARDINAL of the Code provides :", "“ Leadership of an association of citizens which was not legalised in the order envisaged by law , or the legalisation of which was refused , or which was dissolved by a court decision , but which continues to act , as well as participation in the activities of such associations within DATE following the application of the administrative sanction for the same offence , -", "shall be punishable by the deprivation of liberty for a term of DATE . ”", "With the entry into force of the new Criminal Code on DATE , the above offence was decriminalised .", "Article CARDINAL of the Code reads :", "“ Leadership of an association of citizens which was not legalised in the order envisaged by law , or the legalisation of which was refused , or which was dissolved by a court decision , but which continues to act , as well as participation in the activities of such associations -", "shall be punishable by a fine [ in the amount ] of CARDINAL times the statutory non - taxable DATE income . ”", "NORP The relevant provisions of the LAW read as follows :", "“ A non - governmental organisation is an association of citizens for the satisfaction and protection of their lawful social , economic , creative , age - related , national and cultural , sporting and other mutual interests . ”", "“ Associations shall not be legalised , or the activities of legalised associations shall be prohibited through judicial procedure if their aim is :", "to change the constitutional order by violent means and the territorial integrity of the ORG by any illegal means ;", "to undermine State security by means of activities in favour of foreign States ;", "to propagate war , violence or brutality , fascism and neo - fascism ;", "to incite national and religious enmity ;", "to restrict generally recognised human rights .", "... ”", "“ Associations shall be established and shall act on a voluntary basis and on the principles of equality of their members ( participants ) , self - government , legality and openness . They shall be free to choose the direction of their activities .", "Restrictions on the activities of associations may be introduced only by the LAW and the laws of GPE . ”", "“ Associations shall have pan - NORP , local or international status .", "ORG associations include associations the activities of which cover the entire territory of GPE and which have local branches in the majority of the regions [ of GPE ] .", "Local associations include associations the activities of which cover the territory of the respective administrative - territorial unit or region . Associations shall designate the territory of their activities independently .", "A non - governmental organisation shall be international if its activities cover the territory of GPE and of CARDINAL other ORG .", "... ”", "“ An association shall act on the basis of its articles of association .", "The articles of association shall include :", "CARDINAL ) the name of the association ( which shall differ from the names of existing associations ) , its status and address ;", "CARDINAL ) the aim and tasks of the association ;", "CARDINAL ) the conditions of and rules governing the granting of membership of the association , [ and of ] termination of membership ;", "CARDINAL ) the rights and duties of the members ( participants ) of the association ;", "CARDINAL ) the rules governing the founding and activities of the bodies of the association , local branches and their powers ;", "CARDINAL ) the sources of , and rules governing the use of , funds and other assets of the association , rules governing reporting , control , and conducting economic and other commercial activities necessary to fulfil the tasks [ of the association ] ;", "CARDINAL ) the procedure for changing and amending the articles of association ;", "CARDINAL) the procedure for the liquidation of the association and settlement of property related issues connected with its liquidation .", "The articles of association may contain other provisions concerning the peculiarities of the founding and activities of the association .", "The articles of association shall not contradict the legislation of GPE . ”", "“ Legalisation ( official recognition ) of an association shall be compulsory and may be effected through the ( association ’s ) registration or the notification of [ its ] foundation . The activities of an association which has not been legalised or which has been dissolved by a court decision shall be illegal .", "In the event of its registration the association shall become a legal entity .", "Political parties and international non - governmental organisations shall be registered by ORG .", "Legalisation of a non - governmental organisation shall be carried out by ORG , local bodies of ORG executive power , [ or ] executive committees of village and town councils .", "If the activities of a local non - governmental organisation cover the territory of CARDINAL or more administrative territorial units , its legalisation shall be carried out by the relevant higher authority .", "The local bodies of ORG executive power and the executive committees of village and town councils shall register the local branches of registered pan - NORP and international associations , provided such registration is envisaged by the articles of association of these associations .", "The body [ of ORG power ] responsible for the legalisation [ of associations ] shall make an act of legalisation ( official recognition ) of an association public through the media . ”", "“ The founders of associations shall submit an application for their registration ...", "The application for registration shall be accompanied by the articles of association , TIME of the constituent meeting ( conference ) or general meeting of founders , information about the composition of the central [ managing ] bodies , information about local branches , documents confirming the payment of registration fees , save for cases when a non - governmental organisation is exempted from the payment of registration fees in accordance with the laws of GPE .", "...", "The application for the registration shall be dealt with within DATE following the receipt of the documents . If necessary , the body performing the registration shall verify the data contained in the submitted documents . The applicant shall be informed in writing about a decision to register or about a refusal to register within DATE .", "... ”", "“ The registration of an association may be refused if its articles of association or other documents submitted for the registration contravene the legislation of GPE .", "A decision refusing the registration shall contain reasons for the refusal . This decision may be challenged before the courts .", "The body [ of ORG power ] responsible for the registration shall make public the refusal to register an association through the media . ”", "“ Non - governmental organisations and their unions may be legalised by giving written notice to ORG , local bodies of ORG executive power , [ or ] executive committees of village and town councils . ”", "“ To accomplish the goals and tasks set out in the articles of association , registered associations shall enjoy the [ following ] rights :", "to take part in civil law relations , to acquire pecuniary and non - pecuniary rights ;", "to represent and protect their lawful interests and the lawful interests of their members ( participants ) before public and non - governmental bodies ;", "to take part in political activities , hold public events ( meetings , demonstrations etc . ) ;", "to provide ideological , organisational , and financial support to other associations , to assist in their founding ;", "to found entities and organisations ;", "to receive information necessary for the fulfilment of their tasks from ORG and local self - government bodies ;", "to disseminate information and to propagate their ideas and aims ;", "to found media .", "Non - governmental organisations shall have the right to found enterprises necessary for the fulfilment of their tasks .", "... ”", "“ To accomplish the goals and tasks set out in the articles of association , registered associations may carry out the necessary economic and other commercial activities by means of establishing separate legal entities , founding enterprises in accordance with the procedure envisaged by the legislation .", "... ”", "“ Leadership of the association which was not legalised in the order envisaged by law , or the legalisation of which was refused , or which was dissolved by a court decision , but which continues to act , as well as participation in the activities of such associations shall be punishable by administrative or criminal law . ”" ]

[ "11" ]

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[ "The applicant was born in DATE and lives in PERSON .", "In DATE the Krems a.d . ORG ( ORG a.d . GPE ) conducted criminal proceedings against the applicant , who was accused of both attempted and actual sexual abuse of minors and juveniles , and of offences under LAW .", "During the proceedings , ORG appointed a neurological and psychiatric expert to examine the applicant , to establish , inter alia , whether the applicant fulfilled the conditions for referral to an institution for mentally ill offenders ( GPE für geistig abnorme PERSON ) pursuant to LAW ) . The applicant does not appear to have objected to the choice of expert or to the subject matter on which the report was to be obtained . On DATE the expert submitted his written opinion , establishing that the applicant was fully criminally responsible and diagnosing a disorder of sexual preferences , paedophilia and narcissistic personality disorder . The opinion was based on an examination of the applicant , the criminal files and the results of an ORG personality test . The expert found that the applicant ’s disordered conduct had progressed , in view of the decreasing age of his victims . The opinion concluded that there was a very high risk that the applicant would relapse , with severe consequences . Subsequently , the opinion was served on the applicant ’s counsel for comments .", "On DATE the applicant ’s counsel commented on the expert ’s opinion , submitted the opinion of a private expert , a psychiatrist and neurologist , and requested the court to have it read out to the court - appointed expert at the oral hearing and to appoint another expert in the event that the court - appointed expert did not concur with the private expert ’s opinion .", "The opinion of the private expert , dated CARDINAL DATE , also found that the applicant suffered from homosexual paedophilia , a disorder of his sexual preferences and a sexual maturity crisis . He found , however , that there was no indication of a narcissistic disorder . As regards the prognosis , the expert concluded that there was a low to moderate risk of the applicant reoffending as regards non - violent sexual abuse of children . The private expert commented on the court - appointed expert ’s opinion and criticised his methods , considering in particular that the factual statements he had made were unclear and were not accompanied by sufficient explanation . Finally , he also questioned the court - appointed expert ’s interpretation of those factual statements .", "On DATE the court - appointed expert supplemented his opinion in writing and commented on every observation made by the private expert .", "On DATE ORG held an oral hearing in which the court - appointed expert summarised and supplemented his opinion . During the hearing , the applicant ’s counsel questioned the court - appointed expert at length . The court did not , however , allow questions to be put by counsel which referred to the private expert opinion , or general questions regarding the court - appointed expert ’s education and competencies . Counsel also made applications for the admission of the private expert opinion to the proceedings and for the private expert to be allowed to testify as a witness . According to the record of the hearing , counsel requested , in particular ,", "“ ... that evidence be heard from PERSON , a psychiatric specialist at ORG , on the subject of the requirements of LAW of LAW in the context of a psychiatric assessment and case history carried out after the assessment by the court - appointed expert and at a time when the accused ’s detention for DATE in an individual cell , a situation which was new to him and to which he was wholly unaccustomed , had come to an end ...", "He requested that a further expert opinion be sought on the basis of the provisions of Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ( “ ORG ” ) , which made express reference to the need to seek the opinion of CARDINAL psychiatric expert , and on the basis of LAW of the ORG , according to which CARDINAL expert had to be called in the proceedings , failing which they would be declared null and void . Even after the additional questioning of the court - appointed expert there were grounds to assert that the conditions laid down in CARDINAL and CARDINAL of the ORG had not been met , with the result that no reliable prognosis could be made as to the dangerousness of the accused without a further expert report .", "He reiterated his request for PERSON expert report and additional observations , contained in the file , to be read out and for GPE , GPE and GPE to be called as witnesses to testify that the accused had no difficulty forming relationships , had sufficient empathy and had no pathological need to control others . The appearance of those witnesses was also sought in order to testify that the facts on which the court - appointed expert based his opinion were partly inaccurate and incomplete , and thus defective overall .", "The public prosecutor objected to the request . As far as the taking of evidence from PERSON was concerned , this was a means of introducing a private expert opinion into the proceedings and served no other apparent purpose . The other witnesses were to be asked to testify on medical matters that should be assessed by an expert , and were therefore unsuited to that purpose . Matters relating to the psychiatric assessment should also be determined by the expert ; an expert opinion was available which , even after several ORG questioning , still appeared consistent . The public prosecutor was therefore also opposed to a second expert opinion being sought . He repeatedly expressed his opposition to having the private expert opinion of PERSON read out in court . ”", "ORG dismissed counsel ’s requests at the hearing and reasoned the dismissal as follows :", "“ Decision refusing the requests", "( CARDINAL ) As regards the taking of evidence from PERSON concerning the requirements of LAW of LAW : it is not clear , first , in what capacity PERSON might be examined . The requirements of LAW of LAW are a legal issue , to be determined solely by the court with the assistance of a court - appointed psychiatric expert . Witnesses are individuals who have to give their own observations regarding facts relevant to the taking of evidence : their role is in no sense to make statements concerning legal or empirical evidence or to speculate , express opinions , make value judgments or draw conclusions . As to the possibility of examining PERSON as a witness on the subject of his psychiatric assessment , it must be pointed out that such assessments are not a matter for witnesses . Since PERSON has prepared a private expert opinion in the present case , he can not also be regarded as an expert for the purpose of the proceedings , and any statements he might make as a witness concerning the psychiatric assessment would not constitute valid evidence .", "( CARDINAL ) As far as obtaining a further expert opinion is concerned : neither provision can be interpreted as imposing a requirement to call a further expert in the proceedings concerning the accused ’s compulsory psychiatric admission . Here again , then , reference must be made to the provisions of LAW and LAW and CARDINAL of the ORG , according to which the calling of a further expert is required only if the existing findings and opinion are incomplete and inconclusive . This may arise in the event of difficulties in observing the patient and making an assessment ; this in turn will arise only if the court - appointed expert is unable to reply with certainty , or at all , to the questions put to him , in which case the possibility of the questions being answered by another expert can not be ruled out . In the instant case PERSON answered the questions put to him with certainty from the outset . During DATE ’s hearing , and especially during questioning by the defence , no important points were left unanswered . It can not therefore be argued that the expert did not answer the questions conclusively and with certainty . As a result , the criteria laid down in LAW , in particular read together with LAW and CARDINAL of the ORG , certainly do not apply and the request must be refused .", "( CARDINAL ) As regards PERSON private expert opinion and additional observations : the public prosecutor opposed the reading - out of the report . Hence , the conditions laid down in LAW ORG do not apply , nor , in any sense , do those of LAW ( CARDINAL ) .", "( CARDINAL ) As to the taking of evidence from witnesses GPE , GPE and GPE : the request does not explain why the witnesses in question might possess this knowledge . Furthermore , the assessment of whether an individual has difficulty forming relationships , is lacking in empathy and has a pathological need to control others can only be carried out by an expert , especially since witnesses may not draw conclusions from what they observe . It is not clear why these witnesses should know that the facts were inaccurately or incompletely conveyed by the expert in his opinion , nor has it been explained why they should have anything to contribute on the subject ; hence , their evidence is not valid in this regard . “", "Upon a repeated request by counsel to allow the private expert to testify as a witness , ORG decided", "“ ... to refuse the request for PERSON to testify as a witness on the subject of the psychiatric assessment conducted by him , since this was carried out after the assessment by the courtsworn expert . According to LAW ORG , where there are doubts as to an individual ’s mental incapacity or a mental disorder is suspected , an assessment of his mental or psychological state by CARDINAL or , if need be , CARDINAL doctors must be ordered . This clearly refers to court - appointed experts . This provision and , of course , the remaining provisions concerning the establishment of findings unambiguously provide that the examination or assessment is a matter exclusively for a court - appointed expert . It follows that PERSON , as a private expert , can not have made any findings within the meaning of the law or , more specifically , of the provisions concerning expert evidence , with the result that his observations as a witness concerning such findings do not constitute valid evidence . ”", "On DATE , ORG . ORG , sitting as a panel composed of CARDINAL professional and CARDINAL lay judges ( ORG ) , convicted the applicant of both attempted and actual sexual abuse of minors and juveniles and of offences under LAW , and sentenced him to DATE imprisonment . He was also admitted to an institution for mentally ill offenders pursuant to LAW .", "The applicant was found to have sexually abused a minor born in DATE by sustained touching of his sexual organs on CARDINAL occasions DATE , and to have enticed CARDINAL juveniles born in DATE to carry out sexual acts on CARDINAL occasions DATE by offering them money . He was further found to have provided CARDINAL juveniles with hashish CARDINAL times DATE .", "As regards the psychological expert opinions , ORG found in its reasoning concerning the assessment of the evidence that", "“ ... at the hearing and even beforehand the accused gave the court and PERSON , an experienced expert in neurology and psychiatry , a relatively full account of his life ...", "On the basis of these extensive materials , PERSON first produced his written opinion , which he presented during the hearing and added to at length and in detail ...", "... at the hearing PERSON gave reasons for his opinion in comprehensible , logical and consistent fashion . It is clear even to a lay person that the accused ’s problems , which have been well established , are of such severity as to constitute a serious personality disorder , even though some of his problems ( such as masochistic masturbation ) do not necessarily result in criminal behaviour ...", "... The expert also confirmed that the accused does not have violent tendencies in the sense of using physical violence . However , it must be borne in mind that , particularly in the sphere of psychology and psychiatry , psychological violence plays an important role . The accused repeatedly abused young people as a result of his disposition , whether by giving them alcohol , showing them pornographic films , offering them money or using his position in society . The expert and , accordingly , the court therefore concluded that it was likely that the accused , on account of his mental disorder and in particular his paedophile tendencies , would commit further offences of the kind with which he has been charged .", "The accused and his counsel attempted at first to call the expert ’s qualifications into question . However , in view of his training and professional experience , these were beyond doubt .", "A request was then made for the private expert opinion of PERSON to be read out in court . This request was refused by the court because the parties did not agree on that point and none of the grounds provided for by ORG CARDINAL and CARDINAL of the ORG applied . The defence then had the terms “ abnormal sexual preferences ” and “ perversion ” explained to them and the expert reiterated in this context too that the accused showed no signs of sadistic tendencies . The defence subsequently tried to undermine PERSON opinion by claiming that he had not used all the available methods , which had apparently been used by the private expert . After PERSON had answered all the questions asked by the defence in consistent , comprehensible and , above all , comprehensive terms , the request for the private expert ’s opinion to be read out was repeated . This request was rejected on the same grounds and also , in particular , on the grounds that it was for experts themselves to decide which methods they used to substantiate their opinion , based on the present state of scientific knowledge . Only shortcomings in the procedure described in LAW and CARDINAL of the ORG or circumstances indicating particular difficulties in making a diagnosis or preparing the opinion could justify calling in a further court - sworn expert .", "The request to circumvent these provisions by the taking of witness evidence from a private expert also had to be refused , since the latter did not and could not make observations concerning the alleged facts , and the findings are to be established exclusively by the courtappointed expert . For the same reason , the request for ORG , GPE and GPE to testify was also superfluous , especially since no specific subjects were even mentioned and , in particular , it was not made clear which of the facts ( findings ) presented by the expert had supposedly been incomplete or defective ...", "In sum , it was thus demonstrated that there was no call to question the statements of the expert PERSON regarding the severity of the accused ’s disorder and his dangerousness , with the result that the court was justified in basing its decision on those statements . ”", "On DATE the applicant lodged a plea of nullity ( GPE ) and an appeal ( GPE ) against the judgment .", "On DATE ORG ( Oberster Gerichtshof ) rejected the plea of nullity and referred the appeal to ORG ( Oberlandesgericht Wien ) . As regards the expert opinions , that court found as follows :", "“ The refusal of the request for a ‘ a further expert opinion [ to ] be sought on the basis of the provisions of LAW ( CARDINAL ) of LAW ( “ ORG ” ) , which made express reference to the need to seek the opinion of CARDINAL psychiatric expert , and on the basis of LAW of the ORG , according to which CARDINAL expert had to be called in the proceedings , failing which they would be declared null and DATE which was further based on the assertion that ‘ [ e]ven after the additional questioning of the court - appointed expert there were grounds to assert that the conditions laid down in LAW and CARDINAL of the ORG had not been met , with the result that no reliable prognosis could be made as to the dangerousness of the accused without a further expert report’ – did not adversely affect the rights of the defence . The panel of professional and lay judges correctly pointed out in its decision based on LAW ORG that there were no grounds for calling in a second expert either on account of difficulty in observing the patient or making an assessment , as referred to in LAW ORG ( which was also applicable to the committal proceedings ) , or on account of shortcomings in the findings or the opinion of the courtappointed expert ( Articles CARDINAL and CARDINAL of the ORG ) , as the latter had answered all the questions ‘ conclusively and with ORG .", "For the same reason DATE and also because it was patently concerned only with an examination that was inadmissible during the hearing – the request for the private expert PERSON to testify as a witness ‘ on the subject of the requirements of LAW of LAW in the context of a psychiatric assessment and case history carried out after the assessment by the court - appointed expert and at a time when the accused ’s detention for DATE in an individual cell , a situation which was new to him and to which he was wholly unaccustomed , had come to an end’ and ‘ on the subject of factual observations in connection with the psychiatric assessment of the accused , carried out after the assessment by the court - appointed PERSON was correctly rejected , with reference to the settled case - law concerning the content of witness statements and the inadmissibility of statements made by private individuals concerning the legal subject - matter of the proceedings .", "The same applies to the refusal of the request for the reading out of the private expert opinion of PERSON , which is of no significance in terms of the criminal proceedings .", "Lastly , the accused has not been adversely affected by the refusal of the request to hear evidence from witnesses ORG , GPE and GPE The request did not specify the “ facts ” on which these persons were supposed to give evidence ; hence , the subject to which it related could not be clearly identified . Furthermore , the request did not explain why the persons concerned should be expected to provide information concerning circumstances relevant to the accused ’s guilt or the legal characterisation ; this request therefore ( also ) related to inadmissible evidence . ”", "On DATE ORG dismissed the applicant ’s appeal as unfounded . It stated that the expert ’s prognosis that there was a risk of the applicant relapsing was convincing and stated further :", "“ As regards the criticism and the repeated request for the private expert opinion of PERSON , obtained by the accused , to be admitted in the proceedings and for a further expert opinion to be sought , these must be rejected first of all on the basis of the findings of ORG in its decision on the plea of nullity . Even after an in - depth study of the opinion of PERSON , the expert appointed by the first - instance court DATE whose opinion , incidentally , addressed all the criticisms raised in PERSON opinion and countered convincingly and in detail all the defence ’s criticisms based on the private expert opinion – ORG could find no grounds for the appointment of another expert in accordance with the provisions of LAW ORG . Accordingly , the request for a further expert opinion must be rejected in the first place for lack of legal basis . ”", "NORP That appeal judgment was served on the applicant ’s counsel on DATE .", "Article CARDINAL of LAW ) provides as follows :", "\" CARDINAL . If a person commits an offence punishable by a term of imprisonment exceeding one year , and if he can not be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility ( LAW ) resulting from a serious mental or emotional abnormality , the court shall order him to be placed in an institution for mentally ill offenders if , in view of his personality , his condition and the nature of the offence it is to be feared that he will otherwise , under the influence of his mental or emotional abnormality , commit a criminal offence with serious consequences .", "NORP If such a fear exists , an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who , while not lacking criminal responsibility , commits an offence punishable by a term of imprisonment exceeding one year under the influence of severe mental or emotional abnormality . In such a case the placement is to be ordered at the same time as the sentence is passed . \"", "The Code of Criminal Procedure ( GPE ) , as in force at the relevant time , provided that a court , during the proceedings and if the subject matter warranted it , should appoint an expert . The court had to appoint CARDINAL experts only if the subject matter to be examined was particularly difficult ( see LAW ) . Domestic case - law determined that an allegation that an expert opinion had reached the wrong conclusion was not to be considered to render the subject matter “ particularly difficult ” within the meaning of the provision ( EvBl CARDINAL/CARDINAL ) . Such difficulty could arise where an appointed expert was unable to answer a question put before him , if another expert would in all probability be able to answer it .", "At the relevant time , an expert was appointed at the investigative stage by the investigative judge , or by the court . There was no right for the parties to formally object to the appointment of an expert . However , LAW provided that the parties should be informed of the planned appointment of an expert . If the parties brought forward objections regarding the appointment of the expert in a timely manner , the court could appoint another expert .", "NORP In its FAC and CARDINAL , LAW provided for procedural steps to be taken in the event of a deficient expert opinion in criminal proceedings : the main principles deriving from those provisions were that in the event of an expert opinion being contradictory or inconclusive , or in the event that CARDINAL expert opinions clearly differed from each other and another oral examination of the experts could not eliminate the doubts with regard to the conclusions of their opinions , a new expert was to be appointed by the court .", "A citation from the domestic jurisprudence summarises the general view of NORP domestic law on criminal procedure as regards private experts’ opinions : in a judgment of CARDINAL DATE ( CARDINALOsCARDINAL/CARDINAL ) , ORG , deciding on a plea of nullity , stated :", "“ As regards the procedural objection , it should be made clear from the outset that private expert opinions related to the case , of the kind commissioned by the applicant and submitted with a request for the taking of evidence , can properly serve only to provide the accused and his or her defence counsel with expert clarification on important aspects of the case and thereby enable them to put pertinent questions to the court - appointed experts ; where applicable , they may also serve as grounds for obtaining an additional expert opinion ( ordered by the court ) ... As evidence , however , they have ... by law no procedural significance , since they lack in particular the guarantees of impartiality and judicial supervision of their preparation . Accordingly , they are not to be read out during the trial either . ”", "At the material time LAW did not yet include an explicit provision allowing privately commissioned experts to be present at the oral hearing and to thereby assist defendants and their counsel in questioning the court - appointed experts during the hearing . Such a provision was introduced into LAW in DATE with its new LAW . However , also before the reform of LAW , ORG had stated in its case - law , with reference to a defendant ’s rights under LAW ( d ) of the LAW , that to ensure that the defendant could question an expert effectively during the hearing , he or she could make use of the professional support of a privately commissioned expert , and that expert could not be refused permission to sit next to counsel in the hearing room , albeit without having the right to question the court - appointed expert directly ( see judgment CARDINAL of ORG of DATE , and judgment ORG of ORG of DATE ) .", "According to LAW at the material time , a witness testified before the court on his or her perception of the subject matter at issue ( see LAW ) . Again , the amended LAW codified the principles deriving from ORG jurisprudence in the matter and stated in its LAW that a witness was a person having directly or indirectly perceived relevant facts regarding the subject matter of the investigation or the proceedings and who should thus testify on those perceptions .", "The referral of a defendant to an institution for mentally ill offenders under LAW of LAW had in principle to be ordered at the same time as the sentence was imposed ( see LAW ) . However , such a referral was null and void if the defendant had not been represented by counsel throughout the proceedings and if the order had been made without hearing CARDINAL psychiatric expert on the matter ( see Article CARDINAL in conjunction with Article CARDINAL § CARDINAL no . CARDINAL of the Code of Criminal Procedure ) .", "Finally , Article CARDINAL of the Code of Criminal Procedure provided at the material time , inter alia , that witness statements or expert opinions were only permitted to be read out in the criminal proceedings if – among other things – both the defendant and the public prosecutor agreed ." ]

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[ "6" ]

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

[ "6-3-d" ]

[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant filed for divorce before ORG .", "On DATE the court dissolved the marriage and placed the couple 's minor child with the respondent . It regulated the child maintenance and the use of the family home . On CARDINAL DATE ORG upheld the first - instance decision .", "In the ensuing proceedings concerning the matrimonial property , on DATE the court gave the ownership of the commonly used flat and a DATE - house to the applicant while granting the possession of their shop to her ex - husband . It also ordered the applicant to pay the difference in value of the different properties .", "On appeal , on DATE ORG reversed the first - instance decision . The applicant lodged a petition for review with ORG . On DATE ORG , finding that ORG decision had been in compliance with the law , upheld it . This decision was served on the applicant on DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "The first and the second applicants , PERSON and Mr PERSON , were born in DATE . The third applicant , PERSON , was born in DATE . The applicants are NORP nationals and live in the town of GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicants lodged with ORG of PERSON ( hereinafter “ ORG ) civil claims against the President of GPE , ORG ( hereinafter “ the ORG ” ) , and ORG seeking recovery of their indexed deposits in the ORG and compensation for non - pecuniary damage . On DATE and DATE the court found in part for the applicants and ordered the Dnipropetrovs’k ORG to pay them , respectively , ORG CARDINAL , ORG CARDINAL,CARDINAL and ORG CARDINAL,CARDINAL in reimbursement of the indexed bank deposits .", "According to the ORG , the ORG appealed on DATE . In the third applicant ’s case , on DATE ORG rejected the appeal of the ORG for failure to lodge it within the statutory time - limit ; however , on DATE the Dnipropetrovs’k ORG ( hereinafter “ the ORG ” ) allowed the appeal of the ORG and granted an extension of the time - limit for lodging its appeal against the judgment of DATE .", "On DATE and DATE ORG quashed the judgments of CARDINAL June and DATE and remitted the cases for a fresh consideration . The applicants did not appeal in cassation .", "On DATE ORG left the first and the second applicants’ claim without consideration for failure to appear before the court . On CARDINAL DATE the court left the ORG appeal without consideration and allowed them time to rectify the shortcomings . On DATE the ORG appeal was returned without consideration for failure to comply with the ruling of CARDINAL DATE . The applicants did not appeal against this procedural decision .", "On DATE ORG left the third applicant ’s claim without consideration for failure to appear before the court . The applicant did not appeal against this ruling .", "Enforcement proceedings in respect of the judgments in the applicant ’s favour", "On DATE and CARDINAL DATE ORG ( hereinafter “ the Bailiffs ” ) instituted the enforcement proceedings in respect of the judgments of ORG in the ORG favour . On DATE the Bailiffs discontinued the enforcement proceedings on the grounds that the debtor was not a separate legal entity and that the order of reimbursement of the indexed deposits should be established by ORG under LAW GPE on ORG . The applicants did not challenge these decisions before the domestic courts ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . He is a police officer .", "According to ORG , the local public administration is obliged to provide police officers with social housing ( see the Domestic Law part below ) .", "On an unspecified date the applicant instituted civil proceedings against ORG and on DATE ORG ordered the defendant to provide the applicant with accommodation . The judgment became final and enforceable ; however , it has not been enforced to date .", "The applicants , PERSON , PERSON and PERSON are a family of NORP nationals who were born in DATE and DATE respectively and live in GPE .", "DATE the first applicant was a judge . By a final judgment of DATE of ORG , ORG was ordered to provide the applicants with housing in accordance with the provisions of the PERSON on the Status of Judges .", "Since the judgment was not enforced , on DATE , the applicants applied for a change in the manner of enforcement of the judgment .", "On DATE ORG ordered ORG to pay the applicants the value of the apartment , namely MONEY ( ORG ) .", "The judgment of DATE has not been enforced to date .", "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .", "Together with her CARDINAL children and a nephew , the applicant lived in an apartment measuring QUANTITY , which was part of a bigger house .", "On an unspecified date , a third party instituted proceedings against ORG for the restitution of the house in which the applicant ’s apartment was located , in accordance with PERSON No . CARDINAL “ on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime ” .", "On DATE ORG found in favour of the third party and ordered the eviction of the applicant from her apartment . At the same time , in accordance with the provisions of the same law , the court ordered ORG to provide the applicant with alternative accommodation in accordance with the provisions of LAW . According to the latter provisions , each member of the applicant ’s family had the right to accommodation of QUANTITY .", "The judgment of CARDINAL DATE has not been enforced to date .", "The applicant , Mr Simion Racu , is a NORP national who was born in DATE and lives in PERSON .", "The applicant is an internally displaced person . After the DATE war he fled GPE and settled in PERSON .", "On DATE the Government of GPE Decision no . CARDINAL “ on housing for persons forced to quit their houses in the eastern region of GPE ” .", "On an unspecified date the applicant instituted proceedings against the Government and the PERSON local authorities seeking housing .", "By a final judgment of DATE ORG ordered the Government and ORG to provide the applicant with an apartment .", "It appears that enforcement proceedings were conducted against ORG only ; however , the judgment has not been enforced to date .", "NORP The relevant provisions of Law no . CARDINAL on administrative decentralisation read as follows :", "( CARDINAL ) The public local authorities enjoy , within the limits of the law , financial autonomy . They shall adopt their own budgets which shall be independent and separate from the budget of the ORG .", "( CARDINAL ) The public local authorities shall have their own distinct patrimony , which shall include movable and immovable goods . They shall dispose freely of it under the conditions provided for by law .", "( CARDINAL ) The patrimony of the territorial - administrative units shall be delimited and separated from that of the ORG , according to the law .", "( CARDINAL ) The delimitation presupposes ... exclusive decisional competence of the territorial - administrative units in respect of the administration of the patrimony ... ”", "Law no . CARDINAL on ORG , in so far as relevant , provides as follows :", "Police officers must be provided with housing by the local administrative authorities after DATE of employment ... ”", "The relevant part of PERSON no . Nr . CARDINAL on the status of judges provides :", "( CARDINAL ) If a judge has no accommodation or if he needs an improvement to be made to his accommodation , or if he has not been provided with QUANTITY , the local administrative authority is obliged to provide the judge with housing within DATE from the moment when the above circumstances arise ...", "( CARDINAL ) After DATE of service the accommodation provided to a judge shall be transferred into his ownership . ”", "The relevant part of PERSON no . CARDINAL on the rehabilitation of victims of political repression provides :", "Any citizen of GPE who has been the subject of political repression and subsequently rehabilitated , shall have returned to him , at his request or at the request of his heirs , any property which was confiscated , nationalised or taken away from him in some other way .", "...", "The persons who have to be evicted from the houses restored to their owners shall be provided with accommodation by the local administration authorities ... at the time of eviction , in accordance with the legislation in force . ”", "The relevant provisions of the ORG ’s decision no . CARDINAL concerning housing for citizens forced to leave their houses in the eastern region of GPE read as follows :", "The families of citizens forced to leave their houses in the eastern region of GPE [ GPE ] as a result of the military actions for the safeguarding of the independence and integrity of GPE or as a result of their political activity directed against separatism ... shall be provided with housing in accordance with the housing legislation in force .", "The relevant parts of PERSON no . CARDINAL , LAW , read as follows :", "( CARDINAL ) If a prosecutor has no accommodation or if he needs an improvement in his accommodation , the local administrative authority shall be obliged to provide him or her with housing within DATE of the date of his or her appointment ... ”", "According to section CARDINAL ( CARDINAL ) of ORG military personnel are entitled to free housing provided by ORG . However , it appears from a judgment of ORG of DATE in the case of ORG v. ORG that it was the PERSON local authorities which were obliged to provide the plaintiff with a CARDINAL - roomed apartment .", "After the communication of the present cases to the respondent Government , ORG prepared a draft law amending CARDINAL acts providing for social housing privileges to QUANTITY categories of persons . It appears that the proposed amendments provided for the total annulment of social housing privileges in GPE . The draft law was sent to different branches of the Government for approval on DATE . The ORG has no information as to what happened to the proposed draft law after DATE .", "LAW reads , in so far as relevant :", "Local authorities shall be entitled , within national economic policy , to adequate financial resources of their own , of which they may dispose freely within the framework of their powers .", "Local authorities’ financial resources shall be commensurate with the responsibilities provided for by the constitution and the law . ”", "On DATE and DATE ORG organised a Round Table on “ Non - enforcement of domestic courts decisions in member states : general measures to comply with ORG judgments ” . In a document containing the conclusions of the round table , the participants expressed the following views :", "“ As regards the legal and regulatory framework preventing non - execution :", "ensuring a coherent legal framework and/or coherent practices for the control and restitution of property respecting the requirements of the ORG ;", "improving budgetary planning , notably by ensuring the compatibility between the budgetary laws and the ORG ’s payment obligations ;", "proper control over the use of the budgetary funds by the authorities responsible for payments ;", "providing for specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations ;", "setting up , where appropriate , a special fund or special reserve budgetary lines , to ensure timely compliance with judicial decisions , with a subsequent possibility of recovering from the debtor the relevant sums together with default interest ;", "ensuring the ORG effective access to execution proceedings by clearly identifying the authority responsible for execution and simplifying the requirements to be fulfilled by the execution documents ;", "As regards domestic remedies in case of non - execution :", "introducing , either in budgetary laws and in other laws , a general obligation to automatically compensate for delays in execution of judicial decisions through appropriate default interest at a reasonable rate ( e.g. in line with ORG marginal lending rate ) ;", "ensuring effective civil liability of the ORG for damages arising from the non - execution of domestic judicial decisions , which are not compensated by the default interest and providing , in appropriate cases , for the possibility of recovering awards made from the state agents responsible ;", "guaranteeing the existence of effective procedures capable of accelerating the execution process leading to full compliance with the judicial decision ;", "providing for increased recourse to money penalties , where appropriate , the automatic increase of those money penalties as the authority concerned continues to delay execution ;", "improving the personal responsibility of state agents in case of deliberate non - execution through efficient penalties or fines ;", "further developing central procedures for the freezing of accounts held by debtor authorities in order to secure the honouring of payment obligations , including the possibility of freezing also the accounts of authorities subordinate to the debtor ’s authority ;", "setting up or improving procedures and regulations allowing the seizure of state assets which are manifestly not necessary for the fulfilment of the missions of the authorities concerned and , where appropriate , drawing up necessary inventories ;", "providing the bailiffs with sufficient means and powers so as to allow them to properly ensure , where appropriate , the enforcement of judicial decisions ;", "strengthening the individual responsibility ( disciplinary , administrative and criminal where appropriate ) of decision makers in case of abusive non - execution and providing the responsible state authorities with the necessary powers to that effect ... ”", "Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on the improvement of domestic remedies ( adopted by ORG on DATE at its CARDINALth Session ) , in so far as relevant , reads as follows :", "“ Remedies following a “ pilot ” judgment", "When a judgment which points to structural or general deficiencies in national law or practice ( “ pilot case ” ) has been delivered and a large number of applications to the ORG concerning the same problem ( “ repetitive cases ” ) are pending or likely to be lodged , the respondent state should ensure that potential applicants have , where appropriate , an effective remedy allowing them to apply to a competent national authority , which may also apply to current applicants . Such a rapid and effective remedy would enable them to obtain redress at national level , in line with the principle of subsidiarity of the Convention system .", "The introduction of such a domestic remedy could also significantly reduce the ORG ’s workload . While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter , there may exist a category of people who have already been affected by this problem prior to its resolution . The existence of a remedy aimed at providing redress at national level for this category of people might allow the ORG to invite them to have recourse to the new remedy and , if appropriate , declare their applications inadmissible .", "Several options with this objective are possible , depending , among other things , on the nature of the structural problem in question and on whether the person affected by this problem has applied to the ORG or not .", "In particular , further to a pilot judgment in which a specific structural problem has been found , CARDINAL alternative might be to adopt an ad hoc approach , whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation .", "Within the framework of this case - by - case examination , states might envisage , if this is deemed advisable , the possibility of reopening proceedings similar to those of a pilot case which has established a violation of the Convention , with a view to saving the ORG from dealing with these cases and where appropriate to providing speedier redress for the person concerned . The criteria laid out in Recommendation Rec(CARDINAL)CARDINAL of ORG might serve as a source of inspiration in this regard .", "When specific remedies are set up following a pilot case , governments should speedily inform the ORG so that it can take them into account in its treatment of subsequent repetitive cases .", "However , it would not be necessary or appropriate to create new remedies , or give existing remedies a certain retroactive effect , following every case in which a ORG judgment has identified a structural problem . In certain circumstances , it may be preferable to leave the cases to the examination of the ORG , particularly to avoid compelling the applicant to bear the further burden of having once again to exhaust domestic remedies , which , moreover , would not be in place until the adoption of legislative changes . ”" ]

[ "6", "P1" ]

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

[ "P1-1-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She was represented before the ORG by Mr PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant brought civil proceedings against ORG of GPE seeking indexation of her unemployment allowance .", "On DATE ORG found for the applicant and awarded her MONEY ( ORG ) for indexation of allowance , RUR CARDINAL.CARDINAL for damages and RUR CARDINAL for legal costs . The judgment was upheld on appeal by ORG on DATE .", "On DATE ORG issued a writ of execution . On DATE the applicant forwarded the writ of execution to ORG , but the judgment has not been enforced .", "On an unspecified date the applicant complained to ORG of GPE about the defendant ’s failure to enforce the judgment in her favour . By a decision of DATE ORG of GPE terminated the proceedings for the lack of subject matter jurisdiction . The court held that the applicant ’s claim could not be examined in the framework of civil proceedings and that the applicant had to apply for enforcement proceedings in order to oblige the defendant to enforce the judgment . On DATE ORG upheld the decision .", "On DATE the judgment of CARDINAL DATE was fully enforced .", "By a decision of CARDINAL DATE ORG granted the applicant ’s action for compensation of inflation losses sustained as a result of the delayed enforcement of the judgment of CARDINAL DATE . The court acknowledged that the judgment of CARDINAL DATE had been enforced with a substantial delay and awarded the applicant ORG for indexation and ORG for legal costs . No appeal was lodged against the decision and it acquired legal force on DATE .", "On DATE the applicant received the amounts awarded by the decision of CARDINAL DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant notified the GPE Mayor on behalf of a local human - rights NGO , “ Vartovi zakonu ” , of its intention to hold a demonstration DATE from TIME near the building of ORG during the period DATE and DATE . The aim of the demonstration was to draw attention to the issue of corruption in the prosecution service . The number of possible participants was declared as CARDINAL persons . There is no information as to whether any such demonstration was held prior to DATE ( see below ) .", "On DATE ORG of ORG lodged a claim with ORG seeking to restrict the demonstration announced by the applicant . On DATE the court left the above claim without consideration as being submitted too late . ORG resubmitted its claim on DATE with a request for renewal of the time - limit for lodging the claim . DATE the court allowed the request and accepted the claim for examination .", "On DATE , further to his previous announcement of CARDINAL DATE , the applicant informed ORG about the demonstration to be held on DATE . He thus organised a peaceful demonstration near ORG DATE between TIME and TIME About CARDINAL persons took part . They were standing on the pavement in front of the building of ORG when the police told them that they should remain at a distance of QUANTITY from the building . That would have forced the demonstrators to stand in the road and obstruct the traffic . After some discussion with the police , they crossed the road and stood on a lawn on the opposite side . The police , however , told the demonstrators that they could not stand on the lawn and should move away , which meant standing in the road again and obstructing the traffic , causing temporary traffic - jams .", "NORP Immediately afterwards , the applicant was called aside by QUANTITY police officers . They grabbed his arms and took him in the direction of the nearby police station . Some of the demonstrators requested the officers to show them their identification and started filming the incident ; the officers then let the applicant go .", "On DATE ORG granted a request by ORG of ORG to prohibit the holding of the pre - announced demonstrations by the applicant ’s NGO as from DATE . The decision was appealed against .", "According to the applicant , on DATE he was invited to the police station on the pretext that he had failed to appear at a court hearing to which he had been summoned . Upon his arrival at FAC at TIME , the police accused the applicant of having committed the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration on DATE . TIME the police drew up reports on those administrative offences . The applicant telephoned his lawyer , but the latter was not allowed onto the LOC of the police station . At TIME the applicant was placed in a cell , where he remained without food until TIME on DATE , DATE .", "On DATE , before taking him to the court , the police drew up anew the reports on the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration . In their reports they referred to provisions of ORG and to the procedure for organising and holding meetings , rallies , street marches and demonstrations in the city of GPE ( see paragraphs CARDINAL and DATE to CARDINAL below ) . The reports were signed by the applicant .", "At TIME the applicant was taken to ORG . He had no opportunity to study the case - file materials before the court hearing . During the hearing , the court rejected the applicant ’s request to be represented by the lawyer of his choosing on the ground that the applicant was a human - rights defender and could defend himself . The applicant ’s request to summon and question witnesses and examine a video made during the events of CARDINAL DATE was also rejected by the court .", "By a decision of DATE , the court found the applicant guilty of committing the administrative offences of malicious disobedience to a lawful order by the police , and of breaching the procedure for organising and holding a demonstration . The court noted that the applicant had held a street march without the permission of ORG and had ignored the lawful demands of the police to stop breaching the peace . He also refused to follow the police to their station but instead called the participants in the demonstration , who shouted and threatened the officers . The applicant denied all accusations . Having heard the applicant and examined the case - file materials , the court concluded that the applicant ’s testimony was refuted by the written reports of the police officers and the traffic police officers . The court noted that the said reports had been drawn up correctly and therefore had to be taken into account . It sentenced the applicant to DATE of administrative detention starting from TIME on DATE with reference to the relevant provisions of LAW .", "At TIME on DATE the applicant was released .", "On DATE the applicant appealed against the court ’s decision of CARDINAL DATE . In his appeal , he complained that he had been found guilty even though he had not committed the alleged offences . He noted that under LAW a demonstration could be held subject to notifying the authorities and any restrictions on holding one could be imposed only by a court ; no permission had therefore been required . He also noted that he had notified ORG twice about the gathering in question and at the time it was held there had been no court decision prohibiting it . Therefore , he considered that he had organised the gathering of DATE lawfully and the conclusions of the first - instance court that he had “ held a meeting without permission of the ORG ” had not been based on law as no such permission was required by domestic law . He further challenged the conclusion of the police that he had notified the authorities about the event TIME in advance , claiming that he had already done so on DATE . Furthermore , in his opinion , even the requirement of notification DATE in advance , which had been established by the procedure for organising and holding meetings , rallies , street marches and demonstrations in the city of GPE and to which the police referred in their reports on administrative offences , was not based on law , as ORG in its decision of DATE had decided that the procedure for such notification had to be a matter for legislative regulation .", "The applicant further maintained in his appeal that , in the absence of any lawful restrictions on holding a demonstration , demands by the police to stop such an event could not be considered lawful and the law did not provide for liability for disobeying unlawful demands of police officers . He finally complained that the first - instance court had violated his right to defend himself as it had refused to allow his lawyer to appear in the case on the ground that the applicant was a human - rights defender and therefore able to defend his rights himself .", "In a supplement to his appeal of DATE , the applicant complained that his punishment violated LAW . Referring to provisions of LAW and CARDINAL ( b - d ) of the LAW , he further complained that his right to defend himself had been violated , and that the first - instance court had refused to question the witnesses and to examine a video record of the peaceful demonstration .", "On DATE ORG examined the applicant ’s appeal in the presence of the applicant and his lawyer and rejected it . It summarised the findings of the first - instance court and the arguments of the applicant ’s appeal . The court noted that the findings of the first - instance court as to the applicant’ ’s opinion , were confirmed by the police reports and other explanations and evidence . In reply to the applicant ’s arguments to the effect that there had been no corpus delicti in his actions , ORG noted that they should be disregarded , because they were refuted by the body of evidence in the case , without elaborating further on that point . The court referred in its decision to the relevant provisions of LAW .", "The relevant provisions of the LAW read , in so far as relevant , as follows :", "“ Human and ORG rights and freedoms affirmed by LAW are not exhaustive .", "Constitutional rights and freedoms are guaranteed and shall not be abolished .", "The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force . ”", "“ ORG have the right to assemble peacefully without arms and to hold meetings , rallies , marches and demonstrations , after notifying the executive authorities and bodies of local self - government beforehand .", "Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes , protecting the health of the population , or protecting the rights and freedoms of other persons .", "“ The following are determined exclusively by the laws of GPE :", "( CARDINAL ) NORP human and ORG rights and freedoms ; the guarantees of these rights and freedoms ; the main duties of the citizen ... ”", "“ CARDINAL . Laws and other normative acts enacted prior to the entry into force of this LAW shall apply in so far as they do not conflict with LAW ... ”", "NORP The relevant provisions of the Code read , in so far as relevant , as follows :", "“ Malicious disobedience to a lawful order or demand by a police officer who is carrying out his official duties ... shall be punishable by a fine of DATE the minimum DATE wage , or by correctional labour of between one and ’s character these measures are found to be insufficient , by administrative detention of DATE . ”", "“ A breach of the procedure for organising and holding meetings , rallies , street marches and demonstrations shall be punishable by a reprimand or by a fine of DATE times the minimum DATE wage .", "The same actions committed within DATE of the application of administrative penalties or by the organiser of the meeting , rally , street procession or demonstration shall be punishable by a fine of QUANTITY times the minimum DATE wage , or by correctional labour of DATE , with a deduction of PERCENT of earnings ; or by administrative detention of DATE . ”", "“ The provision by officials of LOC , transport , or technical means , or the creating of other conditions for the organisation and holding of meetings , rallies , street marches and demonstrations , in violation of the established procedure , shall be punishable by a fine of QUANTITY times the minimum DATE wage . ”", "Paragraph CARDINAL of Article CARDINAL of the LAW provides , inter alia , for the following rights in respect of a person whose administrative liability is engaged :", "“ A person whose administrative liability is engaged shall be entitled to study the case materials , to give explanations , to present evidence , to make requests , and to have the assistance of a lawyer ... during the examination of the case ... ”", "The right to a lawyer in administrative offence proceedings is further guaranteed by LAW .", "According to LAW , a court resolution concerning an administrative offence could be appealed against . The relevant part of the LAW provides as to the appellate court ’s competence as follows :", "“ A court of appeal shall review the case within the scope of the appeal . The court of appeal is not limited to arguments of the appeal if incorrect application of substantive law or violation of procedural norms has been established during the hearing . The court of appeal can examine new pieces of evidence which have not been examined before , if it finds that the failure to present them to the local court was justified or that the local court rejected them without good reason . ”", "The Decree lays down the procedure for seeking and granting permission to organise and hold meetings , rallies , street marches and demonstrations . The PERSON provides inter alia as follows :", "“ The LAW of the GPE , according to the interests of the people and for the strengthening and development of the socialist system , guarantees to the citizens of the GPE the freedom to hold meetings , rallies , street marches and demonstrations . Exercise of these political freedoms shall be ensured to the working people and their organisations by providing them with public buildings , streets , squares and other places ...", "An application to hold a meeting , rally , street procession or demonstration shall be submitted to the executive committee of the appropriate local NORP of people ’s deputies ...", "An application to hold a meeting , rally , street procession or demonstration shall be submitted in writing no later than DATE before the planned date of the event in question ...", "NORP The executive committee of the NORP of people ’s deputies shall examine the application and notify the representatives ( organisers ) of its decision DATE prior to the date of the event mentioned in the application ...", "...", "NORP The executive committee of the NORP of people ’s deputies shall ban a meeting , rally , street procession or demonstration if the goal of the event in question is contrary to LAW GPE , ORG or of the autonomous republics or poses a threat to the public order and safety of citizens . ”", "By enacting this PERSON , ORG of the GPE approved a number of Decrees of the ORG , including the above - mentioned LAW DATE .", "The ORG provides in particular :", "“ ... before the relevant legislation of GPE is enacted , the legislation of the GPE shall be applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of GPE and in so far as they do not contravene the LAW and legislation of GPE . ”", "NORP This decision introduced the procedure for organising peaceful gatherings in the city of GPE . According to that decision , the freedom of assembly was guaranteed , but could be restricted by a court for considerations of public health , prevention of crime and disorder and protection of the rights of others . To restrict such a gathering , ORG could apply to a court . Item CARDINAL of the procedure provided that notification about a planned gathering had to be given DATE prior to the date on which it was to be held .", "Item CARDINAL of the procedure specified that gatherings could not be held in the road ( except street marches and demonstrations ) , on lawns and flower beds , or in front of the central entrance ( not closer than QUANTITY ) and other entrances of administrative buildings . Nor could they be held in case of non - compliance with sanitary norms . Item QUANTITY of the procedure specified that holding a gathering in breach of any of the restrictions imposed by item CARDINAL should be considered a breach of the peace and should engage liability under the law . Item CARDINAL further provided that the organisers should be responsible for ensuring public order during a gathering . Item CARDINAL further provided that the authorities could apply to a court for the purpose of establishing the liability of persons responsible for breaching the procedure .", "On DATE ORG annulled the decision of DATE of its ORG and ordered a new procedure on the holding of such gatherings to be drawn up .", "In its decision ORG held inter alia :", "“ CARDINAL . ... ORG of GPE applied to ORG for an official interpretation of the provisions of LAW regarding timely notification to executive authorities or bodies of local self - government of planned meetings , rallies , marches or demonstrations .", "In this constitutional application it is noted that , under LAW , citizens have the right to assemble peacefully without arms and to hold meetings , rallies , marches or demonstrations following prior notification to the executive authorities or bodies of local self - government . However , it is stressed that the current legislation of GPE does not provide for a specific time - limit within which the executive authorities or bodies of local self - government are to be notified about such actions ...", "... ORG holds as follows :", "The provisions of the first part of DATE GPE on the timely notification to the executive authorities or bodies of local self - government about planned meetings , rallies , marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above - mentioned authorities in advance , that is , within a reasonable time prior to the date of the planned event . These time - limits should not restrict the right of citizens under LAW , but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self - government with an opportunity to take measures to ensure that citizens may freely hold meetings , rallies , marches and demonstrations and to protect public order and the rights and freedoms of others .", "Specifying the exact deadlines for timely notification with regard to the particularities of [ different ] forms of peaceful assembly , the number of participants , the venue , at what time the event is to be held , and so on , is a matter for legislative regulation ... ”", "In its review ORG noted inter alia as follows :", "“ ... No legislation has been enacted in GPE establishing a mechanism for fulfilling the right to freedom of peaceful assembly . According to ORG no . CARDINAL on temporary application of certain legislative acts of GPE , the normative acts of the GPE remain in force , applying in order of legal rank , for example , LAW of the GPE of DATE on the procedure for organising and holding meetings , rallies , street marches and demonstrations in the GPE ... ”", "The note mentioned , inter alia , as follows :", "“ ... The legislation of GPE does not currently have a special law regulating public relations in the sphere of peaceful assembly . CARDINAL of the urgent problems to be settled by such a law is the time - limits for notifying the authorities of a planned peaceful gathering in order to ensure that it is held in safe conditions . LAW , while providing that the executive authorities or bodies of local self - government must be notified in a timely manner that a peaceful gathering is to be held , does not establish specific deadlines for such notification . The uncertainty of this matter results in the relevant constitutional norm being applied inconsistently and thus requires legal regulation ...", "... The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings , rallies , street marches and demonstrations laid down by LAW of the GPE of DATE No . CARDINAL-XI on the procedure for organisation and holding of meetings , rallies , street marches and demonstrations in the GPE . This approach is incorrect .", "Since the norms of this Decree establish the procedure for authorising ( registering ) peaceful assembly and empower the authorities and bodies of local self - governments to ban such events , whereas the norms of the LAW of GPE provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering , the above - mentioned legal act should not be applied by courts when deciding such cases ... ”", "In the judgment of LOC of DATE in the case of PERSON ORG of ORG concerning the adoption of regulations on holding mass events in the city of GPE , the court held , inter alia , that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by NORP legislation and therefore the ORG had no grounds for adopting the impugned regulation , which would interfere with the rights of citizens .", "In another case ORG , in a judgment of CARDINAL DATE , restricted the right of several NGOs and private persons to hold a demonstration on account , in particular , of their failure to notify ORG of their intention DATE in advance . The court referred to LAW . The participants appealed against that judgment . On DATE ORG quashed the judgment of the first - instance court . In its decision ORG noted that the CARDINAL Decree conflicted with the LAW as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event , whereas Article CARDINAL of the LAW provided that the authorities should be notified that a demonstration was being planned , and empowered only the judicial authorities to place restrictions on the organisation thereof . It also noted that in its decision of DATE ( see paragraph CARDINAL above ) ORG had not referred to LAW as a normative act which should apply in GPE to the legal relations under consideration . The court also noted that the file contained no documents proving that notification about the demonstration DATE in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others . It concluded that the judgment of the first - instance court was incompatible with Article CARDINAL of the LAW .", "In another case ORG , in a decision of DATE , quashed the judgment of ORG , which had restricted the freedom of peaceful assembly in respect of a number of political and non - governmental organisations upon an application by ORG . In its decision ORG noted that , in deciding the case , the first - instance court had had regard to the provisions of the CARDINAL Decree , whereas since DATE the question of holding peaceful gatherings had been regulated by LAW . The court further stated that LAW conflicted with the LAW as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non - existent country ( “ the GPE ” ) , regulated relations between the citizens of the GPE and the executive committees of the NORP of ORG , and considered demonstrations on the basis of their compatibility with LAW GPE , the constitutions of the union and the autonomous GPE , that is , non - existent constitutions of non - existent subjects . The court also noted that under the NORP LAW human rights and freedoms , and the relevant safeguards , could be defined only by the laws of GPE .", "According to the NORP ORG in DATE the NORP authorities sought to restrict peaceful gatherings in CARDINAL cases and in PERCENT of the cases they succeeded .", "At the request of a NORP MP , ORG sent an information letter to an NGO in GPE . The text of this letter can be found on the official website of ORG .", "The relevant parts of the letter read as follows :", "“ ... It should be noted that the current legislation on the organisation and holding of peaceful demonstrations is not perfect . For example , DATE the organisation and conduct of peaceful demonstrations is regulated by LAW of the GPE of DATE N CARDINAL on the organisation and holding of meetings , rallies , street marches and demonstrations in the GPE ( hereinafter DATE “ the Decree ” ) which , in accordance with paragraph CARDINAL of LAW of NORP − is effective in so far as it does not contradict LAW . The above Decree defined , in particular , which persons were authorised to contact the executive bodies of village , settlement and town councils to notify them of proposed peaceful demonstrations ; requirements for the content of such notifications ; requirements for the executive bodies of village , settlement and town councils in ensuring conditions for the holding of a peaceful demonstration ; etc .", "Thus , the requirements as to the organisation and holding of peaceful demonstrations , the time - limit for notification to be given to executive or local government bodies , the documents to be attached to the application for holding the event , etc . are currently not regulated by law ...", "... Given the inadequacy of the current state of the legal regulation of the procedure for the organisation and conduct of peaceful demonstrations , which results in problems in the application of law , since the legal norms are not formulated with sufficient clarity and are subject to ambiguous interpretation by those wishing to have recourse to them ( including bodies of local government ) , only legislative regulation of the procedure for organising and holding such demonstrations will eliminate the negative practices that have arisen .", "Because of the need for legislative support for the practical application of the aforesaid right defined by LAW - to assemble peacefully without arms and to hold meetings , rallies , demonstrations , pickets and marches - ORG has drafted the PERSON of GPE on the organisation and conduct of peaceful demonstrations , which was submitted by ORG of GPE to PERSON of GPE ( registration N CARDINAL from DATE ) and was approved by the ORG on its first reading on DATE ... ”", "NORP The draft law mentioned in the letter is currently awaiting its second reading in ORG .", "The Guidelines provide in so far as relevant as follows :", "“ CARDINAL . Advance notice . The legal provisions concerning advance notice should require a notice of intent rather than a request for permission . The notification process should not be onerous or bureaucratic . The period of notice should not be unnecessarily lengthy , but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event , and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged . If the authorities do not promptly present any objections to a notification , the organizers of a public assembly should be able to proceed with the planned activity in accordance with the terms notified and without restriction . ”", "“ ...", "The legal framework", "Regulating freedom of assembly in domestic law . Freedom of peaceful assembly should be accorded constitutional protection that ought to contain , at a minimum , a positive statement of both the right and the obligation to safeguard it . There should also be a constitutional provision that guarantees fair procedures in the determination of the rights contained therein . Constitutional provisions , however , can not provide for specific details or procedures . As such , general constitutional provisions can be abused and , of themselves , afford unduly wide discretion to the authorities .", "...", "Domestic laws regulating freedom of assembly must be consistent with the international instruments ratified by that state , and the legitimacy of domestic laws will be judged accordingly . Domestic laws must also be interpreted and implemented in conformity with the relevant international and regional jurisprudence .", "“ ...", "Legality", "Any restrictions imposed must have a formal basis in primary law . The law itself must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law , and to foresee what the consequences of such breaches would likely be . The incorporation of clear definitions in domestic legislation is vital to ensuring that the law remains easy to understand and to apply , and that regulation does not encroach upon activities that ought not to be regulated . Definitions should therefore be neither too elaborate nor too broad . ”", "“ ...", "Advance notification", "It is common for the regulatory authority to require advance written notice of public assemblies . Such a requirement is justified by the state ’s positive duty to put in place any necessary arrangements to facilitate freedom of assembly and protect public order , public safety , and the rights and freedom of others . ORG has held that a requirement to give notice , while a de facto restriction on freedom of assembly , is compatible with the permitted limitations laid down in DATE the ORG . Similarly , ORG , in PERSON ( DATE ) , stated that : “ Such a procedure is in keeping with the requirements of LAW , if only in order that the authorities may be in a position to ensure the peaceful nature of the meeting , and accordingly does not as such constitute interference with the exercise of the right . ”", "The notification process should not be onerous or bureaucratic , as this would undermine the freedom of assembly by discouraging those who might wish to hold an assembly . Furthermore , individual demonstrators should not be required to provide advance notification to the authorities of their intention to demonstrate . Where a lone demonstrator is joined by another or others , then the event should be treated as a spontaneous assembly ...", "The period of notice should not be unnecessarily lengthy ( normally no more than a few days ) , but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event ( deploy police officers , equipment , etc . ) , for the regulatory body to give a prompt official response to the initial notification , and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged .", "The official receiving the notice should issue a receipt explicitly confirming that the organizers of the assembly are in compliance with the applicable notice requirements . The notice should also be communicated immediately to all state organs involved in the regulatory process , including the relevant police authorities .", "Notification , not authorization", "Legal provisions concerning advance notice should require a notice of intent rather than a request for permission . Although lawful in several jurisdictions , a permit requirement accords insufficient value to both the fundamental freedom to assemble and to the corresponding principle that everything not regulated by law should be presumed to be lawful . Those countries where a permit is required are encouraged to amend domestic legislation so as to require notification only . It is significant that , in a number of jurisdictions , permit procedures have been declared unconstitutional . Any permit system must clearly prescribe in law the criteria for issuance of a permit . In addition , the criteria should be confined to considerations of time , place , and manner , and should not provide a basis for content - based regulation .", "If the authorities do not respond promptly to a notification , the organizers of a public assembly may proceed with the activities according to the terms notified without restriction . Even in countries where authorization rather than notification is still required , authorization should be presumed granted if a response is not given within a reasonable time . ”", "At its CARDINALth plenary session ( DATE ) ORG ) adopted an opinion interpreting the ORG guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings , including the requirement of advance notice of demonstrations in public places :", "“ CARDINAL . Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right . In fact , in several NORP countries such regimes do exist . The need for advance notice generally arises in respect of certain meetings or assemblies – for instance , when a procession is planned to take place on the highway , or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have ( for instance , of regulating traffic ) to obstruct the event . ”", "ORG also emphasised that the regime of prior notification must not be such as to frustrate the intention of the organisers to hold a peaceful demonstration , and thus indirectly restrict their rights ." ]

[ "11", "6", "7" ]

[ "11-1", "6-1", "6-3", "7-1" ]

[ "6-3-b", "6-3-c", "6-3-d" ]

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[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a NORP citizen , born in DATE . It appears that he resides in ORG , GPE . Before the ORG the applicant is represented by Mr PERSON , a lawyer practising in GPE , GPE .", "A.", "On DATE an indictment was served on the applicant by the Chief of Police in Helsingør ( Politimesteren i Helsingør ) charging him with having illegally possessed a knife , with a blade whose size exceeded the maximum length permitted under NORP law , and with having assaulted and uttered threats of violence against a social worker on duty .", "On DATE ORG ( retten i Hørsholm ) held a hearing in which the applicant , assisted by counsel , and CARDINAL witnesses were heard . On the basis of an evaluation of the available evidence ORG convicted the applicant and sentenced him to CARDINAL days’ imprisonment . The applicant appealed immediately against the judgment to ORG of Eastern GPE ( PERSON ) claiming acquittal .", "On DATE the indictment for the proceedings in ORG was accordingly served on the applicant by ORG Statsadvokaten for Sjælland ) . The indictment also informed the applicant that he would receive further notice about the date of the hearing .", "On DATE ORG issued a writ of summons to be served on the applicant , announcing that the hearing would take place on DATE in ORG . The writ granted the applicant CARDINAL days’ notice and warned him that failure to appear in court could , inter alia , result in his appeal being dismissed . The writ was forwarded to the Chief of Police of Gladsaxe . It appears , however , that problems arose in that the police were unable to find the applicant in order to serve the writ on him .", "Thus , on DATE the Chief of Police informed ORG that CARDINAL unsuccessful attempts had been made to serve the writ on the applicant at his registered address and that , by mail , he had been requested to contact the police , which , however , he had not done .", "The same day the police succeeded in reaching the applicant through his brother who managed to establish a telephone contact by which the applicant informed the police that he was at present working in GPE ( in GPE ) and could not , therefore , come to the hearing in ORG DATE .", "On DATE the applicant failed to appear in ORG for which reason ORG requested that the applicant ’s appeal be dismissed pursuant to section CARDINAL c § CARDINAL , second sentence , of ORG ( retsplejeloven ) . The applicant ’s counsel , who was present in court , objected to the claim for dismissal but did not request leave to plead the case in the applicant ’s absence . ORG allowed the parties to present their arguments on the question of dismissal following which the ORG decided as follows : ( Translation )", "“ According to the information available , during the period from DATE until DATE ORG has CARDINAL times attempted in vain to serve a summons for the hearing on the applicant , who has not been at home at the civil register address indicated and who has not reacted to the invitations of the police to contact the police .", "The applicant , who was aware that the appeal had been brought before ORG , has omitted to give notice to the effect that he does not stay at the address notified to the civil register , but is staying in GPE at present . Since it is then due to the applicant ’s circumstances that it has been impossible to serve a summons on him in the usual manner , the High Court finds for ORG claim of dismissal pursuant to section CARDINAL c § CARDINAL , second sentence , of ORG . ”", "On DATE the applicant applied to ORG for leave to appeal against the dismissal to ORG ( Højesteret ) . Having obtained written observations from the prosecution and from the applicant , ORG refused , on DATE , to grant leave to appeal .", "B. Relevant domestic law", "A person convicted in a criminal case tried by a city court is free , in principle , to appeal the judgment to ORG , to whose district the court in question belongs , cf . section CARDINAL § CARDINAL first sentence , of ORG . Immediately upon pronouncement of the judgment , a defendant can give notice orally to the court records that he wants to appeal the judgment , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL , second sentence , of ORG .", "As soon as possible after receipt of the notice of appeal , ORG sees to it that attempts are made to serve a notification ( notice of appeal and indictment ) on the defendant in the usual manner , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL of ORG . The notification must include information to the effect that the defendant or his counsel will later be notified of the time of the hearing , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL of ORG .", "When an appeal also comprises assessment of the evidence , ORG arranges for a summons containing information on the time and place of the hearing to be served on the defendant with CARDINAL days’ notice , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL of ORG . If a summons is not served pursuant to section CARDINAL a § CARDINAL , cf . section CARDINAL § CARDINAL , of ORG , or if a summons is served on the defendant at CARDINAL days’ notice , the effect is that the defendant is not lawfully summoned to the hearing , and therefore , as a point of departure , the hearing can not be held if the defendant fails to appear at the hearing .", "However , pursuant to section CARDINAL c § CARDINAL , second sentence , of ORG , the defendant ’s appeal may be dismissed if it has been impossible to serve the indictment or the summons on him in the usual manner because he has changed his address or place of residence without giving due notice thereof .", "The provision must be seen in the light of section QUANTITY , first sentence , of ORG . Under this provision , if a defendant fails to appear without stating a lawful cause of absence in proceedings where the appeal was raised by him and comprises the assessment of evidence , the ORG can dismiss his appeal by order if it finds that the hearing can not usefully be proceeded with in his absence ." ]

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[ "Dr PERSON , the applicant 's brother , practised medicine in south - east GPE . From DATE to DATE , he had worked in PERSON . He had treated demonstrators injured in clashes with the security forces during the PERSON ( Kurdish New Year ) celebrations . Following this , he was transferred from ORG . He had told PERSON Can , the wife of his friend PERSON , that he had been threatened in Şırnak and put under considerable pressure .", "In GPE , PERSON worked in a health centre . He met often with his friend PERSON Can , who was a lawyer and President of ORG ( ORG ) . ORG Can had been representing persons suspected of being members of the ORG ( ORG of Kurdistan ) . He had told his wife PERSON Can that he had received threats and that an official had warned him that steps had been planned against him . According to PERSON , who worked at the ORG , ORG had also been subjected to threats because of the attempts he had made to improve conditions in FAC . The police had carried out a search at the ORG , as they had at other ORG offices in the south - east .", "In DATE PERSON , who had lived in ORG until DATE , was taken into detention by police officers in GPE and transferred to ORG , where he was interrogated to find out what he knew about the ORG . He was asked whether CARDINAL doctors in ORG , CARDINAL of whom was PERSON , had been treating wounded members of the ORG . A threat was made that PERSON would be punished . He was also asked about lawyers , particularly ORG . On his release , Bira Zordağ visited the ORG and told PERSON and ORG what had occurred .", "At DATE PERSON told the applicant that he felt that his life was in danger . He believed that the police were making reports on him and keeping him under surveillance . At around the same time , ORG told the applicant that his flat had been searched while he was out and that he thought he was under surveillance .", "NORP On or about CARDINAL February CARDINAL , CARDINAL men came to the block of flats where ORG lived . They rang the doorbells of PERSON PERSON and PERSON , asking for ORG . When PERSON and PERSON Can got home TIME , they received a telephone call . The callers said that they had been to the flat earlier and wanted to come and see ORG Can immediately . ORG told them to come to his office DATE .", "On DATE , after receiving a phone call at his office , ORG met CARDINAL men in a coffee house . PERSON was also present . The men said that there was a wounded member of the ORG hidden outside town . ORG took the men back to his flat and called ORG on the telephone . PERSON arrived at the flat . It was arranged that the CARDINAL men would take the wounded man to GPE , a village outside ORG , and that they would call when they were ready . The CARDINAL men left . At TIME , there was a phone call . ORG left with PERSON , who was carrying his medical bag . ORG told his wife that they would not be long . They drove off in the car of ORG brother .", "Metin Can and PERSON did not return that night . At TIME or TIME on DATE , PERSON Can received a phone call . The speaker sounded like one of the men who had come to the flat . He said that ORG and his friend had been killed . PERSON Can and PERSON went to ORG to report that ORG and PERSON were missing . Neither told the police about the meeting of ORG with the CARDINAL men or the details of events preceding the disappearance . Nor did PERSON Can mention those details when she made a statement to the public prosecutor that day .", "By notification of CARDINAL DATE the ORG governor informed all the other governors in the state of emergency region of the disappearance of ORG Can and PERSON , requesting that they and their car be located .", "At TIME on DATE PERSON noticed a car parked suspiciously opposite his office in GPE and reported it to the police . It was the car belonging to ORG brother . The police searched the car , fingerprinted and photographed it .", "That TIME , police officers took statements from the neighbours in ORG block of flats .", "Further strange calls were made to the ORG Can flat . On DATE ORG nephew answered the phone . A person claimed that ORG and PERSON were still alive and that they would release the former . He said that ORG would not go to LOC and would continue the struggle .", "On DATE at TIME , a bag was found outside the ORG ( ORG ) building in ORG . It contained CARDINAL pairs of old shoes . On DATE CARDINAL pair of shoes was recognised by ORG as belonging to his brother ORG . ORG stated that the other pair did not belong to his brother , PERSON .", "On DATE the public prosecutor obtained an order from ORG for the telephone at ORG flat to be monitored in order to identify the persons making threatening calls .", "PERSON lodged a petition with the ORG governor DATE requesting that steps be taken to find his son PERSON .", "On DATE Fatma Can and PERSON travelled to GPE , where they appealed to the Minister of the Interior for ORG to be found . PERSON Can returned to ORG on DATE .", "At TIME on DATE it was reported that CARDINAL bodies had been found under the ORG bridge , QUANTITY outside GPE . The bodies were identified as being those of PERSON and ORG . CARDINAL cartridges were found at the scene . The bodies did not have shoes on and there was not much blood on the ground . The applicant and other members of the family arrived at the location and saw the bodies .", "An autopsy was carried out at TIME on DATE at ORG morgue . The autopsy report noted that both men had been shot in the head and had their hands tied . No trace of violence or blow was observed on PERSON body . As for ORG , it was noted that his nose had haemorrhaged , there was a wound in his lip and some teeth were missing , there were bruises around his neck , on the knees and on the torso and abdomen . Maceration was observed on the feet . It was noted that there was no trace of violence or blow . An addendum was attached by the doctors who had carried out the examination to the effect that a bruise on the right eyebrow might have been caused by a blow . It was estimated that death had occurred TIME previously .", "A second autopsy was carried out on DATE at CARDINAL a.m.", "The applicant identified the body of his brother , PERSON . The report described the bullet entry and exit holes to the head . It stated that the right ear and adjacent area were marked with ecchymoses which could be explained by pressure on the body . There were ecchymoses around the nail bases on the left hand ; circular marks around both wrists , which might have been caused by the hands being bound by wire ; a CARDINAL by QUANTITY ecchymosis on the right knee ; a CARDINAL by QUANTITY light yellow ecchymosis on the inner lower frontal region of the right knee ; a QUANTITY wide ecchymosis on the left ankle ; QUANTITY wide epidermal scratches on the left ankle ; cyanosis in the toe bases on both feet and athlete 's foot on both feet , especially on the soles and the left sides of the feet , probably caused by remaining in water and snow for lengthy periods . The torso of the body was free from any blow , wound , burn or firearm injury save those noted above . The cause of death was brain damage and haemorrhage of the brain tissues due to the bullet wound . A classical autopsy was not necessary .", "ORG Can identified the body of his nephew ORG . The report described MONEY and injuries to the body . These included bruises and scratches on the face and head , a tear in the lip , bruising around the neck , bone damage to the jaw and missing teeth , marks on the wrists indicative of being bound , bruises on the knees and cyanosis on both feet and toes . The bruises and scratches on the forehead , nose and under the right eye were thought to have been caused by blunt instruments ( for example , a stone or a stick ) and the lesions on the neck by string , rope or cable . This might have occurred immediately before death and from the application of force for short periods . These wounds would not have caused death . Death resulted from brain damage and brain haemorrhage .", "Death was estimated as having occurred within DATE TIME .", "On DATE the NORP province central gendarmerie commander sent the NORP public prosecutor an incident report dated DATE and a sketch map of the location of the bodies .", "On DATE the NORP public prosecutor sent the CARDINAL cartridges found at the scene for ballistics examination .", "On DATE the ORG public prosecutor took a further statement from PERSON Can concerning the disappearance of her husband . She mentioned that her husband had told her that he thought the police were following him and that their flat had been searched when they were out . She said that her husband had been invited to go to GPE . She had asked him to resign as President of the ORG many times and he had said that he would .", "On DATE the ORG public prosecutor issued a decision of non - jurisdiction , transferring the file to GPE where the bodies had been found .", "On DATE PERSON sent a petition to the public prosecutor giving information which he had heard about the events . This stated that his son had been seen being taken into custody at GPE by police officers in civilian clothes carrying walkie - talkies . The car in which they travelled had stopped at a petrol station , where the officers had mentioned that they were taking the lawyer and doctor for interrogation . Further , during a conversation at Hozat involving a judge and a lawyer called PERSON , a police officer had said that Can and Kaya had been taken to ORG .", "In a petition dated DATE to the Pertek public prosecutor , PERSON recounted an incident which he had heard had occurred in a Pertek beer house on DATE . At TIME , during a television programme on contra - guerrillas , a man called PERSON , nicknamed PERSON , had announced : “ ... We killed PERSON and the lawyer ORG . ” When the people in the beer house attacked him , he had pulled out a gun . He had called for help on his walkie - talkie and gendarmes had come to take him away .", "On DATE the NORP public prosecutor issued a decision of non - jurisdiction concerning the killing of PERSON and ORG by unknown perpetrators . As he considered that the crime fell within the scope of the legislation on the state of emergency , he transferred the file to ORG prosecutor .", "On DATE , following a request by the Pertek public prosecutor summoning PERSON , the Pertek chief of police informed the prosecutor that there was no such person in their district .", "On DATE a statement was taken by the NORP public prosecutor from the lawyer PERSON , who denied that he had heard any police officer give information about the murders of GPE and Can .", "On DATE PERSON submitted a further petition to the NORP public prosecutor . He stated that Can and ORG had been seen taken by police officers at GPE and that the car had stopped at a petrol station where the petrol attendant had recognised and spoken to Can , who had said they were being taken somewhere by the officers . The petition pointed out that the CARDINAL men had been taken QUANTITY through CARDINAL official checkpoints and the circumstances indicated that the ORG authorities were involved . It stated that a complaint was being lodged against the governor , the chief of police and the Minister of the ORG .", "A report dated DATE by the NORP police informed the NORP public prosecutor that ORG allegation had been investigated . The investigation disclosed that no NORP police officer had made a statement alleging that Can and Kaya had been held at ORG .", "On DATE the Pertek public prosecutor instructed the Pertek chief of police to summon the managers of the beer house and requested information from the Pertek district gendarmerie command concerning the allegation that a non - commissioned officer ( ORG ) had taken PERSON from the beer house .", "On DATE the Pertek chief of police informed the public prosecutor that , while it was reported that PERSON had been seen in the area and had stayed at the district gendarmerie headquarters , his whereabouts were unknown .", "In a statement taken by the public prosecutor on CARDINAL DATE PERSON , who ran the Pertek beer house , stated that on DATE a man he knew as PERSON claimed that he and others had killed Can and Kaya . He had talked on the radio and a ORG had come to pick him up . He had not seen the other people in the beer house attacking PERSON or PERSON drawing a gun . In a statement , also of CARDINAL DATE , PERSON , a waiter at the beer house , agreed with the statement made by ORG .", "By letter dated DATE , the Pertek district gendarmerie commander informed the public prosecutor that he was not aware of the incident at the beer house and that no assistance had been requested from a beer house . No ORG had been involved .", "On DATE ORG prosecutor issued a decision of non - jurisdiction , transferring the file to ORG prosecutor .", "On DATE PERSON , President of the NORP ORG , and PERSON , a lawyer , sent the ORG public prosecutor a copy of an article in the CARDINAL DATE issue of the newspaper Aydınlık which stated that a special - operations officer had identified the killers , inter alia , of PERSON and ORG as being PERSON , known as “ PERSON ( “ the PERSON ” ) , and PERSON , who were contra - guerrillas paid by the ORG and responsible for most of the killings in the area .", "When summoned to give further explanations , PERSON , in a statement to the public prosecutor of CARDINAL DATE , said that he did not personally know “ PERSON ” but DATE when he was Chairman of the ORG in GPE he had received complaints that “ the Beard ” was carrying out attacks and was associating with the security forces .", "On DATE the NORP public prosecutor , inter alia , instructed the police to locate and summon PERSON . The police replied on DATE that they could not find him .", "Following an instruction by ORG prosecutor of CARDINAL DATE , the Pertek public prosecutor took a further statement from PERSON on DATE which confirmed that he had heard a man calling himself PERSON claim to have killed Can and GPE . PERSON had spoken into a radio asking for the regiment commander , and CARDINAL men had taken him away . He explained that ORG had moved to GPE .", "On DATE the ORG public prosecutor took a statement from ORG which confirmed his earlier statement . It stated that PERSON had tried to contact the regiment commander on his radio and when he could not get through he had called the Pertek district gendarmerie headquarters asking for them to come and get him . He said CARDINAL NCOs , PERSON and PERSON , had arrived with another ORG in civilian clothes , whose name he did not know .", "On DATE the NORP public prosecutor issued another instruction to the NORP police to bring GPE and PERSON to his office . On DATE the police reported that they had not found their addresses and that they were not known in their jurisdiction .", "On DATE PERSON , the editor of PERSON , lodged a petition with the GPE public prosecutor , which was forwarded to the NORP public prosecutor . This identified PERSON as CARDINAL of the perpetrators of the murder of PERSON and ORG as well as other killings . It was based on information received from a Major PERSON , which had been the basis of a series of articles in the newspaper from DATE .", "On DATE ORG prosecutor informed the Pertek public prosecutor that there were discrepancies in the information provided by the Pertek police and the Pertek gendarmerie and that since the gendarmes might be implicated , the public prosecutor should conduct an inquiry into the discrepancies himself .", "On DATE ORG prosecutor requested that the tape and transcript of a television programme be obtained , during which an Aydınlık correspondent had talked about Major PERSON Ersever .", "In a petition dated DATE to the ORG public prosecutor , PERSON referred to PERSON , the television programme and PERSON book The Confessions of Major PERSON Ersever as disclosing that PERSON was the planner and perpetrator of the Can and Kaya murders . He stated that Yıldırım had been a ORG employee for DATE and came from ORG . In his statement to the public prosecutor that day , he said that he did not know ORG personally but in the district he was talked about as having been involved in such incidents .", "On DATE the ORG public prosecutor requested the ORG police to investigate the allegations made concerning PERSON Yıldırım .", "By letter dated CARDINAL DATE , the Pertek public prosecutor informed the NORP public prosecutor that PERSON was known to have been a member of a NORP - Leninist organisation and had been identified as being involved in an armed attack on a van and a robbery . An arrest warrant had been issued against him on DATE , but withdrawn by ORG on DATE .", "By a petition dated DATE to the ORG public prosecutor , PERSON Can , the father of ORG , filed a complaint against NORP Yıldırım , who was said in the press and in books to have killed his son . He stated that ORG 's home address was No . CARDINAL PERSON and that he worked at ORG .", "The police reported on DATE that ORG had left his address DATE previously and that his present whereabouts were unknown . In a further report dated DATE , the police stated that he was still not to be found at his address . The public prosecutor was so informed .", "On DATE ORG prosecutor received the tape and transcript of the television programme which recounted PERSON interviews with Major PERSON Ersever and included that journalist 's claim that PERSON , known as “ LOC ” , who was well known to the police and gendarmes , had killed ORG and ORG .", "On DATE ORG prosecutor issued a decision of non - jurisdiction , transferring the file to ORG following the reorganisation of jurisdiction for ORG and GPE .", "On DATE the ORG prosecutor sent instructions to the ORG , ORG , ORG and GPE prosecutors for the location and arrest of ORG , the location of PERSON , PERSON and PERSON , who had been named in newspaper articles as having been involved with “ NORP ” in contra - guerrilla murders , including those of Can and Kaya , and the location of PERSON and PERSON .", "DATE . On DATE the director of ORG provided information about PERSON , PERSON and PERSON , who had been members of the ORG , had become confessors and had been detained at the prison for various periods . PERSON had been released on DATE and PERSON on DATE . PERSON had been released on DATE but redetained at the prison on DATE on a charge of homicide related to an incident where PERSON had allegedly been taken from his shop by a group of men purporting to take him into custody , and later found shot dead .", "On DATE a statement was taken from PERSON , in which he denied that he had been involved in the killings of ORG and PERSON and that he did not know PERSON , PERSON , PERSON or PERSON .", "On DATE PERSON made a statement in prison to a public prosecutor . He complained that the press which supported the ORG were targeting him and publishing biased articles against him . DATE he had been in GPE and , on hearing that his grandfather had died , he had gone to ORG for DATE .", "On DATE the gendarmes reported that PERSON was not to be found in his home village of PERSON . He had left DATE previously .", "In a report dated DATE the police informed the ORG public prosecutor , in response to a request to apprehend PERSON , that the address given for him , No . CARDINAL PERSON , did not exist and the business address was not in their jurisdiction . In a report dated DATE , the gendarmes reported that they had investigated his address in their jurisdiction but that they had been unable to discover his whereabouts .", "The contents of the investigation file were supplied to ORG .", "The applicant provided the ORG with a copy of the so - called “ GPE report ” , produced at the request of the Prime Minister by PERSON Kutlu Savaş , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , although CARDINAL pages and certain annexes were withheld .", "NORP The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .", "NORP The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG , and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result , particularly in the drug - trafficking sphere . The report made reference to a certain PERSON , also known as PERSON or “ LOC ” , detailing his involvement in unlawful acts in the south - east and his links with the MİT ( the NORP intelligence service ) :", "“ ... Whilst the character of PERSON , and the fact that he along with the group of confessors he gathered around himself , is the perpetrator of offences such as extortion , seizure by force , assault on homes , rape , robbery , murder , torture , kidnapping , etc . , were known , it is more difficult to explain the collaboration of the public authorities with this individual . It is possible that a respected organisation such as ORG may use a lowly individual ... it is not an acceptable practice that ORG should have used LOC several times ... LOC , who carried out activities in GPE under the name of ORG , in GPE under the name of ORG and used the name PERSON PERSON , is an individual whose activities and presence were known both by the police and MİT ... As a result of the ORG 's silence the field is left open to the gangs ... [ p. CARDINAL ] .", "... PERSON was also associated with GPE , an organisation within the gendarmerie , which used large numbers of protectors and confessors [ p. CARDINAL ] .", "In his confession to ORG , ... PERSON ... had stated that PERSON [ p. CARDINAL ] would say from time to time that he had planned and procured the murder of PERSON [ ] and other partisans from the mafia and the ORG who had been killed in the same way ... The murder of ... PERSON [ ] had also been planned and carried out by PERSON [ p. CARDINAL ] .", "...", "All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms . These factors also operated in the murder of PERSON , a smuggler and pro - ORG activist . They equally applied to PERSON , ORG and ORG . The sole disagreement we have with what was done relates to the form of the procedure and its results . It has been established that there was regret at the murder of PERSON , even among those who approved of all the incidents . It is said that PERSON was not involved in any armed action , that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake . ( Information about these people is to be found in DATE [ ] ) . Other journalists have also been murdered [ page CARDINAL ] [ ] . ”", "The report concludes with numerous recommendations , such as improving co - ordination and communication between the different branches of the security , police and intelligence departments ; identifying and dismissing security force personnel implicated in illegal activities ; limiting the use of confessors ; reducing the number of village guards ; terminating the use of ORG outside the south - east region and incorporating it into the police outside that area ; opening investigations into various incidents ; taking steps to suppress gang and drug - smuggling activities ; and recommending that the results of ORG inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .", "The applicant provided this DATE report into extra - judicial or “ unknown perpetrator ” killings by ORG of ORG . The report referred to CARDINAL unsolved killings , of which CARDINAL involved journalists . It commented on the public lack of confidence in the authorities in the south - east region and referred to information that ORG had a camp in the Batman region where they received political and military training and assistance from the security forces . It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings .", "The applicant provided the ORG with a copy of Soner PERSON 's book The Confessions of Major Cem Ersever ( summarised in the Commission report , LAW ) as well as articles from PERSON and other newspapers concerning contra - guerrillas ( see paragraphs CARDINAL - CARDINAL of the ORG 's report ) .", "Evidence was heard from CARDINAL witnesses by Commission delegates in CARDINAL hearings held in GPE and GPE . These included the applicant , PERSON Can , the wife of ORG , NORP , PERSON , PERSON , a journalist , PERSON , the public prosecutor from ORG , PERSON , the public prosecutor from GPE , Judge PERSON , prosecutor at ORG , PERSON , the ORG chief of police , PERSON , the Pertek district gendarmerie commander and PERSON , an ex - member of the ORG turned confessor .", "The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .", "Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .", "If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .", "A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .", "In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .", "If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .", "An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .", "By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .", "If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .", "The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .", "DATE . Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .", "Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :", "“ All acts or decisions of the authorities are subject to judicial review ...", "...", "The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”", "That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .", "DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL ) , provides :", "“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”", "Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .", "However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) ." ]

[ "13", "2", "3" ]

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[ "The applicant , a NORP national residing at PERSON in GPE , is a pensioner .", "DATE he rented a room in GPE in GPE from a PERSON . During this period he told her that his wife was very ill and was undergoing treatment in an FAC hospital . He also claimed that he was expecting to receive payments under a pension scheme in GPE . As a result PERSON handed over to him MONEY and waived the rent of QUANTITY .", "Purportedly in the expectation of receiving the above - mentioned payments , the applicant opened an account at a bank in GPE on DATE and , on DATE , PERSON gave him a further QUANTITY .", "On DATE , PERSON reported the matter to the police . ORG ) asked , on DATE , the investigating judge of ORG ( PERSON ) to institute a preliminary investigation concerning the applicant on suspicion of fraud as a recidivist offender . In addition , the prosecutor requested the judge to order his detention on remand on the ground that there was a risk of his absconding .", "The judge granted these requests on DATE . Prior to this , the applicant had been detained since DATE , pending extradition to GPE . On DATE he was questioned by the investigating judge .", "The latter sent , on CARDINAL DATE , a rogatory letter ( PERSON ) to the PERSON am GPE ORG ( Bezirksgericht ) asking it to put some specific questions to PERSON as a witness . ORG Judge , PERSON , did so on DATE .", "On DATE , ORG dropped CARDINAL of the fraud charges against the applicant . As a result , ORG no longer had jurisdiction . Accordingly , the prosecutor asked to have the case , which now concerned only the alleged fraud against PERSON , transmitted to ORG which had jurisdiction to deal with offences of lesser gravity , that is , according to LAW ) , offences punishable by a fine or a term of imprisonment not exceeding DATE . Moreover , on DATE , the prosecutor , in pursuance of LAW , called for the applicant ’s conviction on charges of fraud .", "At the time when the case was referred to ORG the case - file contained mainly the following items :", "- criminal information to the GPE police ;", "- the applicant ’s criminal record in GPE ;", "- the order made by ORG investigating judge for the applicant ’s detention on remand ;", "- a record of the investigating judge ’s interrogation of the applicant ;", "- a record of ORG Judge , PERSON interrogation of witness , PERSON ;", "- letters from the applicant to the prosecution , asking it to drop the charges , and to ORG , complaining about his detention on remand ;", "- a note to the effect that the applicant had withdrawn his complaint against detention .", "During the ensuing period , Judge PERSON took the following steps in the applicant ’s case :", "In a letter to LAW ( PERSON ) in GPE , she enquired why a prison sentence imposed on the applicant had been partly suspended . She received a reply on DATE .", "She sent the case - file to ORG together with a rogatory letter asking it to question the applicant in order to establish whether his expectations as regards the pension payments allegedly due in DATE , had been justified and to obtain details of his pension or any other revenue from insurance policies .", "On DATE , she telephoned the PERSON bank to establish whether any payments had been entered on the account opened by the applicant ( see paragraph CARDINAL above ) ; by letter of the same date the bank replied that no payment had so far been recorded .", "In addition , she telephoned ORG of GPE and of ORG ( GPE ) in order to find out whether the applicant had ever applied for or received a pension . According to a note in the case - file , prepared by Judge PERSON on DATE , the first of these companies had replied that , under the reference number which the applicant had indicated , a pension had never been requested by him and that no pension benefits had been paid to him ; the other company had stated that he had not been granted a pension .", "On DATE , she set down the trial hearing for DATE ( Article CARDINAL ( CARDINAL ) of LAW ) .", "On DATE a hearing was held by the PERSON am GPE ORG , with Judge PERSON sitting as a single judge . ORG ( GPE ) was present , but the applicant ’s lawyer at the time did not appear although he had been summoned . The court heard the applicant first , who claimed that he was innocent . It then heard PERSON as a witness and a police officer replacing a colleague who had visited her house after the applicant ’s arrest . Various documents were exhibited ( dargetan ) , including :", "- the complaint to the police ;", "- the results of the police investigations in the case ;", "- the applicant ’s criminal record ;", "- the case - file of ORG ( see paragraph CARDINAL above ) ;", "- the information provided by the PERSON bank and the CARDINAL NORP insurance companies and a letter from a third such company .", "After the court had finished taking evidence , the prosecutor invited it to find the applicant guilty . The applicant asked the court to ascertain that , on DATE , he had applied to a NORP insurance company for a pension . The court dismissed this request , finding that the facts in the case were sufficiently clear .", "By judgment of DATE , ORG acquitted the applicant of the fraud charge concerning the MONEY which he had received from PERSON on DATE but convicted him of having fraudulently induced her to hand MONEY to him and to waive the rent of QUANTITY ; it sentenced him to CARDINAL months’ imprisonment and ordered him to pay PERSON MONEY . The periods of detention pending extradition and the trial were deducted from the sentence .", "The judgment , which was signed by Judge PERSON , was founded inter alia on PERSON testimony as well as the information obtained from the bank and the insurance companies .", "The applicant appealed against his conviction and sentence to ORG . He complained , inter alia , that in the proceedings before ORG , the case had been investigated and tried by the same person .", "On DATE ORG ( Ratskammer ) of ORG dismissed several requests for release submitted by the applicant on CARDINAL , DATE and DATE .", "In a judgment of CARDINAL DATE , ORG , composed of CARDINAL members who had previously taken the above - mentioned decision of DATE , dismissed the appeal . As to his complaint described in paragraph CARDINAL above , the judgment stated :", "\" As a reply thereto , reference should be made to the prevailing legal opinion derived from ORG CARDINAL and CARDINAL of LAW , according to which the trial judge in ORG proceedings may also undertake preliminary inquiries and a judge who has carried out such inquiries will therefore not be excluded from the trial ... .", "Equally , if a judge acts in a criminal case as a judge ... under a rogatory letter , this will not prevent him from participating at the trial ... . It is not necessary for the [ ORG ] in the present case to make a thorough examination of the extent to which this legal opinion , which is generally applied , corresponds to Article CARDINAL ( article CARDINAL ) of the Convention ... , since the accused , who became aware of the ( alleged ) ground of nullity at the latest at the beginning of the trial , did not ... immediately raise this ground before the PERSON am GPE ORG . \"", "In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file ( FAC ) on a complaint , the public prosecutor may have preliminary inquiries ( FAC ) carried out by the investigating judge , ORG and the police authorities ( LAW ( CARDINAL ) of LAW ) .", "Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution , he shall either apply for the institution of a preliminary investigation ( Voruntersuchung ) or file a formal accusation ( PERSON , LAW ) . However , in ORG proceedings there is no formal process of investigation and no special procedure of committal for trial : all that is required is a written or oral application from ORG seeking the imposition of a penalty on the person concerned ( Antrag auf gesetzliche ORG , Article CARDINAL ( CARDINAL ) ) .", "Pursuant to LAW , taken together , ORG may carry out preliminary inquiries , but not formal preliminary investigations like ORG . When undertaking preliminary inquiries a ORG judge must in principle observe the same rules as those that apply to an investigating judge of ORG during preliminary investigations . However , according to LAW , which sets out exceptions to this principle , ORG judge has narrower powers with respect to such matters as pre - trial detention , arrest and search for documentary evidence .", "Under LAW , ORG judge may order the release of a person held on remand , subject to agreement with ORG that the grounds for detention have ceased to exist .", "ORG judge shall set a date for the hearing after such preliminary inquiries as may be necessary have been made ( Article CARDINAL ( CARDINAL ) ) .", "Article CARDINAL ( CARDINAL ) of LAW , which provides that an investigating judge may not participate in the trial of the case , does not apply to ORG proceedings . In such proceedings , preliminary inquiries are , according to established court practice , carried out by the trial judge .", "A judge who has acted under a rogatory letter in a case , but not as an investigating judge , is not thereby excluded from trying the same case ( see the collection of ORG decisions SSt CARDINAL ) ." ]

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[ "6" ]

[ "6-1" ]

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[ "On DATE the applicant was arrested and detained on suspicion of committing an offence . On DATE he was charged with CARDINAL counts of theft , CARDINAL count of attempted theft and CARDINAL count of robbery . Most of the charges concerned offences committed jointly with others . He remained in custody until DATE , when he was released on bail .", "NORP In DATE ORG indicted the applicant , Mr NORP and Mr D.D. in relation to CARDINAL thefts and CARDINAL robbery . On an unspecified date CARDINAL of the victims of the offences joined the proceedings as a civil claimant .", "After a trial , in a judgment of DATE the ORG found the applicant guilty as charged , sentenced him to CARDINAL GPE imprisonment , and ordered him to pay damages to the civil claimant . The court did not make an order for the applicant ’s detention pending appeal . It did not immediately give the reasons for its judgment ; they were made available in DATE .", "On DATE the applicant ’s counsel appealed to ORG . Since at that point she did not yet have the reasons for GPE ORG judgment , she submitted in general that the applicant ’s conviction was unlawful and unfounded and asked it to be quashed . She also argued that his sentence was excessive and requested that it be revoked or suspended . She said that she would provide further particulars and indicate the evidence to be gathered as soon as the reasons for the GPE ORG judgment became available . As required under LAW of LAW , the appeal was lodged through GPE .", "On DATE the ORG briefly noted that the appeal did not meet the requirements of LAW and , without indicating the specific deficiencies , directed the applicant to submit a rectified appeal within DATE . The applicant was notified of the court ’s ruling on DATE , but did not react . Accordingly , in a decision of CARDINAL DATE the ORG dismissed the appeal . Neither the applicant , nor his counsel was notified of this and did not seek to appeal against this decision .", "In line with LAW ( CARDINAL ) of the LAW ( see paragraph CARDINAL below ) , upon the expiry of the DATE time - limit for appealing against the decision of CARDINAL DATE the applicant ’s conviction and sentence were considered final and therefore enforceable . On DATE he was detained in FAC for the purpose of serving his sentence .", "On DATE the applicant ’s counsel appealed to ORG against GPE decision of DATE . She argued that the appeal against the applicant ’s conviction and sentence had been in line with all legal requirements . She stressed that the applicant had not been required to give detailed grounds of appeal , as ORG had not made available the reasons for its judgment within the timelimit for lodging an appeal . Finally , she asked the court to rule rapidly , as the applicant was in custody serving his sentence .", "On DATE the ORG sent this appeal to ORG .", "CARDINAL hearings listed by ORG on DATE and CARDINAL DATE respectively were adjourned : the first because the applicant had not been properly summoned and , although legally represented , did not appear in person , and the second because his co - accused and the civil claimant , despite being duly summoned , failed to attend .", "At a hearing which took place on DATE the ORG found that there was no need to involve the applicant ’s coaccused and the civil claimant in the proceedings relating to the propriety of the GPE ORG decision to dismiss his appeal against conviction and sentence . It further held that this appeal had been in line with legal requirements and that ORG had erred by dismissing it . Moreover , its decision to do so did not indicate in what respects the appeal had been deficient . The court therefore quashed this decision and referred the case back to GPE for further consideration of the appeal against the conviction and sentence . With that the criminal proceedings against the applicant were restored and his conviction and sentence were no longer considered final .", "According to the applicant , at the same hearing his counsel asked ORG to consider whether he should remain in custody or be released . The court declined to do so , saying that it was for GPE to decide on this matter .", "After DATE the applicant ’s counsel filed with ORG and GPE ORG several requests for release , none of which was examined .", "The applicant ’s counsel also met CARDINAL times with the president of ORG , who explained that the judge to whom the case had been assigned was absent . On DATE the applicant ’s counsel filed a complaint with ORG , but received no reply .", "On DATE the ORG sent the case file to ORG .", "On DATE the ORG set the applicant ’s appeal down for examination . Apparently , at this point the president of the panel to which the case had been assigned noticed that the applicant was still in custody . For this reason , on DATE , DATE , she alerted ORG that , following the decision of DATE ( see paragraph CARDINAL above ) , the applicant ’s conviction and sentence were no longer considered final , and that he could not be kept in custody pursuant to them . On DATE the Sofia ORG ordered the applicant ’s release , citing the same reasons .", "On DATE this order was received by FAC and the applicant was set free . It appears that until DATE of the criminal proceedings against him the applicant was not further remanded in custody .", "In a judgment of DATE the ORG acquitted the applicant of the charges concerning CARDINAL of the thefts and upheld the remainder of the GPE ORG judgment . It imposed a global sentence of CARDINAL and a half years’ imprisonment . In determining the length of the applicant ’s period of imprisonment in pursuance of this sentence it deducted , by reference to LAW ( see paragraph CARDINAL below ) , the time he had already spent in custody DATE and DATE , saying that during this period the applicant had been serving a sentence which had not yet been made final .", "The applicant lodged an appeal on points of law .", "After holding a hearing on DATE , in a final judgment of CARDINAL DATE ORG upheld the Sofia ORG judgment .", "Article CARDINAL § CARDINAL of the DATE Code of Criminal Procedure ( presently superseded by LAW ) , as in force at the material time , provided that criminal convictions and sentences became enforceable after they had been made final . This occurred when , inter alia , no ( valid ) appeal had been lodged against them ( LAW ( CARDINAL ) , read in conjunction with LAW ( CARDINAL ) and CARDINAL of the DATE Code , presently superseded by LAW ( CARDINAL ) , read in conjunction with LAW ) .", "The authorities supervising the lawful execution of criminal sentences are the competent public prosecutors ( LAW ( presently superseded by LAW ) , section CARDINAL(CARDINAL ) ( DATE section CARDINAL(CARDINAL ) ) of the DATE LAW ( presently superseded by section DATE ) of the DATE LAW ) and section CARDINAL(CARDINAL ) of the DATE LAW ) . They are under a duty to order the release of any detainee who has been unlawfully deprived of his or her liberty ( section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW , presently superseded by section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ) .", "Section CARDINAL of the LAW originally called the DATE ORG to Citizens Act ( ORG за отговорността на държавата за вреди , причинени на граждани DATE “ the ORG ” ) , renamed on DATE the DATE State and ORG ( ORG за отговорността на държавата и общините за вреди ) , as in force at the material time , read , in so far as relevant :", "“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :", "NORP pretrial detention , including when imposed as a preventive measure , when it has been set aside for lack of lawful grounds ;", "NORP criminal charges , if the person concerned has been acquitted , or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence ... ”", "According to the NORP courts’ caselaw , the ORG is liable for all damage caused by pre - trial detention where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) or the criminal proceedings discontinued on grounds that the charges have not been proven , or where the perpetrated act is not an offence ( реш. № DATE г. от DATE г. PERSON № DATE г. на ВКС ) .", "In a binding interpretative decision ( тълк. реш. № CARDINAL от CARDINAL април DATE г. на ORG по PERSON № CARDINAL/CARDINAL г. , ORG ) , made on DATE pursuant to the proposal of the President of ORG , the Plenary Meeting of ORG of that court resolved a number of contentious issues relating to the construction of various provisions of the ORG . CARDINAL of the decision it held that the compensation awarded in respect of the nonpecuniary damage arising under section CARDINAL(CARDINAL ) or ( CARDINAL ) of the LAW should cover also the nonpecuniary damage stemming from unlawful pre - trial detention imposed during the proceedings , whereas compensation for the pecuniary damage flowing from such detention should be awarded separately . The reasons it gave for this decision were as follows :", "“ Pretrial detention is unlawful when it does not comply with the requirements of [ the ORG ] .", "The ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG when the pretrial detention has been set aside as unlawful , irrespective of how [ the criminal ] proceedings unfold later . In such cases compensation is determined separately .", "If the person has been acquitted or the criminal proceedings have been discontinued , the ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG . In that case , the compensation for non - pecuniary damage has to cover the damage flowing from the unlawful pretrial detention . If pecuniary damage has arisen , compensation for it is not included but has to be awarded separately , taking into account the particular circumstances of each case . ”", "NORP CARDINAL of its decision the court dealt with the question whether the accused should be entitled to compensation under section CARDINAL(CARDINAL ) of the ORG when they have been convicted of some charges and acquitted of others . It held that compensation was due even in cases of partial acquittals , provided there was a proven causal link between the unlawful bringing of charges and the damage suffered . Nonpecuniary damages were to be assessed globally and in equity , taking into account the number of acts in respect of which an accused has been found not guilty and the respective gravity of the offences of which they have been convicted and those of which they have been acquitted . Pecuniary damages were to be awarded by taking into consideration the particular circumstances of each case and whether or not they flowed from the unlawful acts of the law enforcement authorities .", "Under LAW of LAW , the sentencing court has to deduct from any sentence of imprisonment the time already spent by the offender pending the final outcome of the case .", "Section CARDINAL(CARDINAL ) of the CARDINAL Execution of Punishments Act provides that inmates have the right to file applications and complaints , and to appear in person before the prison governor . By section CARDINAL ) of the LAW , these applications and complaints have to be sent immediately to the competent authorities ." ]

[ "5" ]

[ "5-4" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant ’s wife died on DATE , leaving CARDINAL children , born in DATE and DATE . On DATE the applicant applied for widow ’s benefits . By a letter dated DATE , ORG informed him that it was unable to pay him any of the benefits claimed because he was not a woman .", "On DATE the applicant applied for an allowance under the Income and Corporation Taxes Act DATE on the same basis as he would receive it if he were a widow whose husband died in similar circumstances . He only received a letter of reply on DATE .", "The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no social security or tax benefits were payable to widowers under GPE law .", "The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and PERSON , PERSON , PERSON and Geen v. GPE , nos . CARDINAL , GPE , GPE and GPE , DATE ." ]

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[ "ORG ( “ the ORG ” ) is a political party in GPE which was represented in ORG and was in opposition at the time of the events .", "On DATE the applicant party applied to ORG for an authorisation to hold a protest demonstration in FAC , in front of the Government ’s building , on DATE . According to the application , the organisers intended to express views on the functioning of the democratic institutions in GPE , the respect for human rights and the NORP conflict in GPE .", "On DATE ORG rejected the applicant party ’s request on the ground that “ it had convincing evidence of the fact that during the meeting , there will be calls to a war of agression , ethnic hatred and public violence ” .", "The applicant party challenged the refusal in court and argued , inter alia , that the reasons relied upon by ORG were entirely baseless .", "On DATE the ORG dismissed the applicant party ’s action . The court found that ORG refusal to authorise the ORG ’s demonstration was justified because the leaflets disseminated by it contained such slogans as “ Down with PERSON ’s totalitarian regime ” and “ Down with PERSON ’s occupation regime ” . According to ORG , these slogans constituted a call to a violent overthrow of the constitutional regime and to hatred towards the NORP people . In this context , the court recalled that during a previous demonstration organised by the applicant party to protest against the presence of the NORP military in GPE , the protesters burned a picture of the President of GPE and a NORP flag .", "The applicant party appealed against the above decision arguing , inter alia , that the impugned slogans could not have reasonably been interpreted as a call to a violent overthrow of the ORG or as a call to ethnic hatred and that the refusal to authorise the meeting constituted a breach of its rights guaranteed by ORG CARDINAL and CARDINAL of the Convention .", "On DATE ORG dismissed the applicant party ’s appeal and confirmed the judgment of ORG .", "NORP The relevant provisions of LAW of DATE read as follows :", "( CARDINAL ) ORG shall be conducted peacefully , without any sort of weapons , and shall ensure the protection of participants and the environment , without impeding the normal use of public highways , road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property .", "Assemblies shall be suspended in the following circumstances :", "( a ) denial and defamation of the ORG and of the people ;", "( b ) incitement to war or aggression and incitement to hatred on ethnic , racial or religious grounds ;", "c ) incitement to discrimination , territorial separatism or public violence ;", "d ) acts that undermine the constitutional order .", "( CARDINAL ) ORG may be conducted in squares , streets , parks and other public places in cities , towns and villages , and also in public buildings .", "( CARDINAL ) It shall be forbidden to conduct an assembly in the buildings of the public authorities , the local authorities , ORG offices , the courts or companies with armed security .", "( CARDINAL ) It shall be forbidden to conduct assemblies :", "( a ) within QUANTITY of the parliament building , the residence of the president of GPE , the seat of the government , ORG and ORG ;", "( b ) within QUANTITY of the buildings of the central administrative authority , the local public authorities , courts , ORG offices , police stations , prisons and social rehabilitation institutions , military installations , railway stations , airports , hospitals , companies which use dangerous equipment and machines , and diplomatic institutions .", "( CARDINAL ) PERSON access to the premises of the institutions listed in subsection ( CARDINAL ) shall be guaranteed .", "( CARDINAL ) The local public authorities may , if the organisers agree , establish places or buildings for permanent assemblies .", "( CARDINAL ) Not DATE prior to the date of the assembly , the organiser shall submit a notification to ORG , a specimen of which is set out in the annex which forms an integral part of this LAW .", "( CARDINAL ) The prior notification shall indicate :", "( a ) the name of the organiser of the assembly and the aim of the assembly ;", "( b ) the date , starting time and finishing time of the assembly ;", "( c ) the location of the assembly and the access and return routes ;", "( d ) the manner in which the assembly is to take place ;", "( e ) the approximate number of participants ;", "( f ) the persons who are to ensure and answer for the sound conduct of the assembly ;", "( g ) the services which the organiser of the assembly asks ORG to provide .", "( CARDINAL ) If the situation so requires , ORG may alter certain aspects of the prior notification with the agreement of the organiser of the assembly . ”", "( CARDINAL ) The prior notification shall be examined by the local government of the town or village at DATE before the date of the assembly .", "( CARDINAL ) When the prior notification is considered at an ordinary or extraordinary meeting of ORG , the discussion shall deal with the form , timetable , location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation .", "( ... )", "( CARDINAL ) The local authorities can reject an application to hold an assembly only if after having consulted the police , it has obtained convincing evidence that the provisions of sections CARDINAL and CARDINAL will be breached with serious consequences for society .", "( CARDINAL ) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing . It shall contain reasons for refusing to issue the authorisation ...", "( CARDINAL ) The organiser of the assembly can challenge in the administrative courts the refusal of the local government . ”" ]

[ "11" ]

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[ "The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and live in FAC and GPE respectively . They were represented before the ORG by Mr Bigot , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicants , may be summarised as follows .", "The applicants are doctors . At the material time , although they remained registered with ORG ( ordre des médecins ) for the city of GPE , they were not practising medicine but were working as journalists for “ Sciences et Avenir ” , a DATE science magazine for the general public of which they were the editor - in - chief and deputy editor .", "Issue number CARDINAL of the magazine , published in DATE , was entitled “ Hospitals , DATE edition ” with the following coverlines : “ League - table of CARDINAL NORP hospitals ” , “ Best results : the top CARDINAL facilities ” , “ Blacklist of problem hospitals ” and “ Exclusive : mortality in your hospital ” .", "It was stated in the magazine that this special issue had been produced by the applicants , without their status as doctors being mentioned , and by a third journalist who was not a doctor . Its contents included a league - table of the CARDINAL best and CARDINAL worst hospitals in CARDINAL specialist fields . They were ranked according to CARDINAL criteria : their activity , based on health - establishment data from the ORG ( medicalised information system programme ) ; mortality , assessed by reference to a national mortality indicator for patients in the same age bracket and with similar medical conditions ; and notoriety , which was in fact measured by the attractiveness of the hospital for patients from outside the département . The combination of these criteria produced an overall rating out of CARDINAL . Information letters and requests for explanations were also sent to the directors of hospitals where major shortcomings had been found .", "ORG ranked thirteenth in the list of the CARDINAL hospitals with the worst results in the field of digestive surgery , with an overall rating of CARDINAL out of CARDINAL and a mortality rate CARDINAL times higher than the norm .", "On DATE Doctor PERSON , head surgeon at FAC , lodged a complaint with the département council ( conseil départemental ) of ORG for the city of GPE . He criticised the applicants for the highly inaccurate nature of their investigation , as a result of using inappropriate criteria , failing to take account of specificities related to the precise type of medical condition and not distinguishing between emergency and scheduled admissions . Moreover , in his opinion there had been no subsequent moderation , whether in the commentary or in the choice of persons interviewed . He thus considered that his reputation and that of his staff had been seriously impugned , all the more so because he was working in a small town . He lastly argued that the investigation , by casting doubt on the quality of this local - community medical facility , might lead to inappropriate attitudes on the part of patients , particularly in the event of an emergency .", "By a decision of DATE , the département council referred the complaint to ORG regional council for ORG and requested to be joined to the proceedings on account of a breach of LAW and CARDINAL of LAW for medical practitioners . The rapporteur from the département council made the following submissions in particular :", "“ Whilst the seriousness of the journalists ' work is not at issue , it does not appear upon reading the article that any disclaimer as to the limits of the methodology used has been clearly indicated .", "The headings of the articles and paragraphs and the comments inserted in the boxes add a sensationalist tone which turns a report into an indictment .", "Lastly , the possibilities for the criticised heads of department and hospital directors to defend themselves have been very limited .", "Generally - speaking , the specific case of ORG raises the issue of the limits to the transparency of medical information . In the long term such transparency is desirable , but in the short term the beneficial effects of selecting the most efficient services for patients may be counter - balanced by the negative repercussions of anxiety - provoking remarks for a section of the population that is limited in its choice of hospital treatment by age , geography or social situation .", "ORG and concern about the repercussions of remarks among members of the public , as required by LAW [ sic ] of LAW , do not seem to have guided the authors , who should have ensured that the limits to their work were made clear and , in such a sensitive area , should have avoided provocative headings . ”", "In a decision of CARDINAL DATE the regional medical council dismissed the applicants ' plea of inadmissibility , which had been based on the possibility of raising the defences available under LAW of DATE , and found as follows :", "“ Notwithstanding the existence of LAW of DATE , it is clear that everyone is free to use the means of his choosing to enforce his rights without such possibility being open to challenge . ”", "The regional council gave the CARDINAL applicants a warning ( avertissement ) based on the following reasoning :", "“ On the basis of data that could be regarded as objective , albeit open to debate and debated , Doctors PERSON and PERSON , by inserting crossheads , boxes and passages in italics , transformed an informative article into a sensationalist one ...", "By placing the unwritten ethics of journalists before those of doctors , which have been codified in a regulatory text , they crossed a boundary which must not be overstepped , especially as LAW for medical practitioners has the aim of protecting patients – a section of the population that is weak both physically and psychologically . It can not validly be argued that ORG and PERSON submitted their article to the magazine without concerning themselves with the publication or without being aware of the sensationalist additions designed at least to lure readers and perhaps to boost sales ; if that were the case , they failed in their obligation to verify the ultimate and potential use of their statements or the possible impact of those statements on the general public .", "In this connection it is ineffective to claim that , since they were not practising medicine , Doctors ORG and PERSON were not bound by the provisions of LAW for medical practitioners ; on the contrary , their voluntary registration with ORG shows their desire to abide by that Code , especially the provisions in the first section dealing with the general duties of doctors .", "After studying the material in the file and hearing representations from the parties , it appears that ORG and PERSON interpreted information to give it a sensationalist and derogatory character , thus causing damage , perhaps unintentionally , to the complainant Doctor PERSON and to his patients , which is even worse . In these circumstances it is appropriate , in order to reiterate the need for medical ethics , to impose a penalty in the form of a warning . ”", "The applicants , relying in particular on Articles CARDINAL and CARDINAL of the [ NORP ] Convention [ on Human Rights ] , then lodged an appeal with ORG .", "On DATE the disciplinary section of ORG dismissed a complaint by the applicants concerning the rapporteur 's participation in the deliberation of the regional council , finding that his duties were consonant with the principle of impartiality enshrined in LAW . The disciplinary section further found that the applicants had breached their duty of care when imparting information to the public , as provided for in LAW for medical practitioners :", "“ Doctors ORG and PERSON were , at the material time , respectively the editor - in - chief and deputy editor of the magazine ' Sciences et ORG ' , and it was in their capacity as journalists that they wrote the offending articles published in the DATE issue of that magazine . The fact that they were not practising medicine , that the acts were committed in the context of their work as journalists and that they did not invoke their status as doctors is not capable of precluding the application of LAW for medical practitioners , by which every doctor remains bound once he or she is registered with ORG . This fact obliges the disciplinary body , which has jurisdiction to rule on breaches by doctors of LAW for medical practitioners , only to reconcile the ethical duties of doctors with the requirements of the freedom of expression afforded to journalists . In that latter respect , whilst the first paragraph of LAW guarantees freedom to impart information and ideas , the second paragraph of that Article stipulates that the exercise of this freedom , carrying with it duties and responsibilities , may be subject to such restrictions or penalties as are necessary , in particular , for the protection of the reputation or rights of others ...", "... the right for doctors to inform the public about the quality of hospital services , even designated by name , and to give a critical assessment of some of them , can not be called into question , provided only that in presenting their analyses they do not breach the duty of care by which they are bound under the above - mentioned provisions of LAW . Whilst they set out the criteria by virtue of which they had drawn up a league - table of hospitals , they failed to take the precaution , which was all the more necessary as the publication was intended for the general public , of indicating the limits and the relative nature of a qualitative analysis based on data from the ORG ( medicalised information system programme ) , which they presented , by contrast , on page CARDINAL of the publication , as ' an outstanding tool with remarkable accuracy ' . Not only are the published results presented as unquestionable and scientifically established but they are also accompanied by comments and headings such as “ Its hospitals make GPE sick ” , “ Blacklist of problem hospitals ” , and “ underperforming facilities can be found virtually everywhere ” , the purpose of which is not to inform patients but to dramatise the information without any concern for the repercussions of this presentation on the patients who use services whose quality has been seriously impugned . Having regard to the applicants ' level of responsibility in the publication , they can not claim that they are mere employees working under the authority of the magazine 's management without any right of scrutiny in respect of the articles published , nor that the presentation of the facts , the headings and the comments are the work solely of the publication director and were not even tacitly approved by them ... ”", "The applicants then lodged an appeal on points of law with the ORG d'Etat . They submitted that the professional disciplinary bodies did not have jurisdiction in respect of doctors who were not practising medicine professionally . They further complained that they had been deprived of a fair hearing , within the meaning of LAW , as they had not been given prior knowledge of the rapporteur 's report to the CARDINAL professional bodies . They lastly observed that the application of LAW for medical practitioners to doctors not practising medicine , in respect of acts they committed while engaged in the activity of journalism , and without their status as doctor being invoked , constituted a mistake of law . They based that latter argument on the wording of LAW of LAW for medical practitioners , which referred only to “ participation in an educational and health - related action of public information ” and on the incompatibility between the guarantees attaching to the status of journalist under LAW of DATE and the rules of medical ethics .", "On DATE the ORG d'Etat dismissed the applicants ' appeal on points of law on the grounds that the professional disciplinary bodies did have jurisdiction because the applicants were registered with ORG , that the report – simply a statement of facts – drawn up by the rapporteur appointed by the chairman of the disciplinary section did not necessarily have to be communicated to the parties , and that LAW for medical practitioners could apply to acts relating to the applicants ' activity as journalists :", "“ It transpires from the provisions of the above - mentioned LAW DATE that the disciplinary bodies of ORG have jurisdiction , in connection with proceedings brought before them , to assess the conduct of any registered doctor with regard in particular to the provisions of LAW for medical practitioners . It can be seen from the material in the file submitted to the tribunal of fact DATE and it is not in dispute – that PERSON and PERSON were , at the time of the impugned acts , registered with ORG . Accordingly , these doctors are not justified in arguing that the disciplinary sections of ORG regional medical council and of ORG were acting ultra vires in ruling on the breaches of professional duty that they were alleged to have committed in respect of certain articles published in a magazine under their management . The disciplinary section of ORG did not commit any mistake of law when it found that LAW for medical practitioners was applicable to facts relating to the applicants ' activity as journalists . ”", "...", "...", "Decree no . CARDINAL of DATE laying down a Code of Professional Conduct for medical practitioners reads , in relevant part , as follows :", "“ The provisions of the present Code shall be binding on medical practitioners who are registered with ORG ... ”", "“ When a medical practitioner participates in an educational and health - related action of public information , regardless of the means of dissemination , he shall only impart information that has been confirmed , shall act with care and shall be concerned about the repercussions of his remarks among members of the public . In such a context he shall refrain from courting publicity , whether for personal reasons , for the benefit of bodies for which he works or to which he provides assistance , or in support of a cause that is not in the general interest . ”", "“ All medical practitioners shall abstain , even when not exercising their profession , from any act that might bring discredit upon that profession ” .", "..." ]

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[ "The applicant was , and still is , a prominent member of ORG . He has been arrested by the police on a number of occasions and has issued proceedings relating to his allegations , inter alia , of arbitrary arrest , assault and ill - treatment arising out of CARDINAL incidents . In proceedings lodged for incidents in DATE and on DATE , he received an award of damages ( amount unspecified ) . In or DATE he was awarded damages of MONEY ( GBP ) for an incident in FAC on DATE when the judge found that he had been wrongfully arrested by police officers who had purported to arrest the applicant for obstruction in failing to give his name when in fact they were fully aware of his identity . This case concerns his arrest in DATE in relation to the murder of Mr PERSON .", "PERSON was a NORP citizen working for the caterers of canteens in police stations in GPE . He was murdered on DATE . The Provisional IRA claimed responsibility for his death .", "The Government submitted that Special Branch received intelligence that the applicant and CARDINAL other persons were involved in the murder . The intelligence derived from CARDINAL informants who had proved reliable in the past and had provided information leading to seizures of explosives or firearms and to prosecutions . None of the informants had a criminal record . The information given by these CARDINAL informants was consistent , in that all gave the same names as being involved , and independent , in that none was aware of the existence of the others and each gave the information at separate meetings with police officers .", "Detective PERSON of ORG ( “ the ORG ” ) was briefed by Special Branch concerning this intelligence that the applicant was a member of ORG and had been implicated in the murder .", "Detective PERSON briefed Inspector PERSON who in turn briefed Detective Constable S.", "On DATE , at CARDINAL or TIME , Detective Constable PERSON visited the applicant ’s house and conducted a search . At the conclusion of the search , at TIME , PERSON arrested the applicant . He told the applicant that he was arresting him under section CARDINAL(CARDINAL)(b ) of ORG ( Temporary LAW DATE ( “ the DATE LAW ) which empowered a police constable to arrest , without a warrant , a person whom he had reasonable grounds for suspecting of being concerned in the commission , preparation or instigation of acts of terrorism .", "The applicant was taken to FAC where he was questioned about his possible membership of the IRA , his suspected involvement in PERSON murder and also his possible involvement in the murder of CARDINAL soldiers on DATE . He was interviewed on CARDINAL occasions . He did not respond to any questions . According to the Government , the first interview occurred on DATE at CARDINAL a.m. , at the start of which he was told that the police were enquiring into his involvement with the Provisional IRA and related matters . Police notes provided by the Government record that during the next interview , from TIME , the interrogating officers told the applicant that they were making enquiries in relation to his membership of the IRA and the murder of PERSON .", "On DATE the Secretary of ORG for GPE extended the applicant ’s period of detention beyond the initial CARDINAL-hour period , by DATE . The applicant was released without charge on DATE at TIME , after DATE and TIME in custody .", "By a writ issued on DATE against the Chief Constable of the ORG , the applicant instituted a civil action for damages before ORG in GPE in respect of , inter alia , assault , seizure of documents , false imprisonment and unlawful arrest .", "Before ORG , the submissions of the applicant ’s counsel concentrated , as the trial judge found , on the issues of assault and confiscation of documents . He did however raise the argument , in the context of the lawfulness of the arrest , that Detective Constable S. did not have sufficient grounds for suspicion that the applicant had committed an offence to justify the arrest . The evidence before the court from Detective Constable S. was to the effect that he attended a briefing at TIME on DATE in which he was told that he was to carry out a search to find evidence and arrest persons , including the applicant , suspected of involvement in the murder of PERSON . He had been told by his superior officer , Inspector PERSON , at that briefing that the applicant was involved in the murder and stated that these were the reasonable grounds for suspecting the applicant . He did not state that Inspector PERSON had told him the grounds for his own suspicion , nor was he asked about that matter by counsel for either party . It was common ground that the murder was a terrorist offence . The superior officer was not called as a witness in the proceedings .", "On DATE Judge PERSON found that there had been an unlawful taking of the applicant ’s notes by a police officer and awarded Mr CARDINAL in damages . He rejected the applicant ’s claims of assault and ill - treatment , finding that he had not satisfied him on the balance of probabilities that his version of events was right and that of the police officers wrong .", "As regards the allegations of wrongful arrest , the judge noted :", "“ ... while [ the applicant ’s counsel ] submitted that the officer who arrested the [ applicant ] was required , in order to render the arrest lawful , in addition to holding the suspicion grounding the arrest of the [ applicant ] , [ to ] have reasonable grounds for that suspicion , based on his own knowledge of facts giving rise to that suspicion . He accepted that both Mr Justice PERSON and the Lord Chief Justice had previously rejected the same submission in similar cases .", "While he reserved his position on this issue he made no new submissions and produced no new arguments to me which would cause me to depart from the reasoning in their decisions , and in the circumstances I am satisfied in this case on the evidence of Detective Constable [ S. ] that as a result of the information he had been given he had reasonable grounds for suspecting that the [ applicant ] had been concerned in the commission , preparation or instigation of acts of terrorism .", "Cross - examination of the detective constable did not probe the details which had been disclosed to Detective Constable [ S. ] in the course of the briefing during which he was supplied with this information .", "I find on the evidence that the detective constable had a suspicion that the [ applicant ] was involved in the murder of PERSON and that this suspicion was reasonably based on information given to him by a superior officers at the briefing that TIME .", "Either party could have elicited details of the briefing , not as truth of the matters disclosed , but as relevant on the issue of the reasonableness of the suspicion held by the arresting officer . Proof of the lawfulness of the arrest lies on the defendant .", "I would not wish to lay down the proposition that reasonable suspicion could in all circumstances be based on the opinion of another officer expressed without any supporting allegations of fact . But it does seem to me that a briefing officially given by a superior officer would give reasonable grounds for suspicion of the matters stated therein . The fact that I have such scanty evidence of the matters disclosed to Detective Constable [ S. ] means that I am only just satisfied of the legality of the arrest , but I am fortified in my view by the lack of detailed challenge in cross - examination as to the nature of the information given to him .", "The main issue between the parties is as to whether the [ applicant ] was assaulted and mistreated during the period of his detention ... ”", "On DATE , the applicant gave notice of appeal to ORG in GPE concerning the claim of unlawful arrest and false imprisonment .", "On DATE ORG dismissed the appeal , upholding the decision of ORG that reasonable suspicion could be derived from information provided by a superior officer and that the arrest was lawful .", "“ Notwithstanding his concern that more detail of the briefing had not been given , the learned trial judge was able to conclude :", "‘ ( CARDINAL ) that the arresting officer ... did have a suspicion that the [ applicant ] was involved in a terrorist murder and it was implicit that that suspicion was genuinely held by him ;", "and ( CARDINAL ) that the official briefing which he had attended given by [ his superior officer ] gave him reasonable grounds for that suspicion.’", "These were factual findings and clearly contained in our view all the essential proofs that the respondent was required to adduce to constitute lawful arrest under section CARDINAL(CARDINAL)(b ) of the LAW .", "[ Applicant ’s counsel ] submitted that this was not the case . The source of the suspicion and the reasonable grounds for it must be before the court , namely evidence from the briefing officer , Inspector [ B. ] , as to the grounds on which he suspected the [ applicant ] of being involved in the commission , preparation and instigation of acts of terrorism . It would be unjust , he contended , if section CARDINAL could give Inspector [ B. ] protection from liability for false imprisonment if the ORG himself had not reasonable grounds for the suspicion . The first part of this submission flies in the face of the authorities as we have said . The second part , so far as this case is concerned , seems to be hypothetical in that the regularity or the bona fides of the ‘ official ORG were not questioned . No factual foundation for such a case was made out ...", "We consider that the decision of the learned trial judge was correct . The information given at the briefing to the arresting officer was admissible and although , in his words , ‘ ORG it was sufficient to constitute the required state of mind of an arresting officer under section CARDINAL(CARDINAL)(b ) of the LAW . ”", "An appeal to ORG against the decision of ORG was dismissed on DATE . In his judgment , with which the other judges agreed , Lord Hope of PERSON held that it was not necessary for an arresting officer to possess all the information which had led to the decision to arrest , but that the arresting officer must have equipped himself with sufficient information so that he had reasonable cause to suspect before exercising the power of arrest . The information acted upon by the arresting officer need not be based on his own observations , as he is entitled to form a suspicion based on what he has been told ; his reasonable suspicion may be based on information which has been given to him anonymously , or it may be based on information which turns out later to be wrong . While the evidence about the matters disclosed at the briefing was indeed scanty , he found that the trial judge was entitled to weigh up the evidence in the light of the surrounding circumstances and , having regard to the source of that information , and to draw inferences as to what a reasonable man , in the position of the independent observer , would make of it .", "Lord PERSON stated , inter alia , concerning the general principles :", "“ Certain general propositions about the powers of constables under a section such as section CARDINAL(CARDINAL ) can now be summarised . ( CARDINAL ) NORP In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case . Ex hypothesis one is considering a preliminary stage of the investigation and information from an informer or a tip - off from a member of the public may be enough : PERSON v. PERSON [ DATE ] ORG , CARDINAL . ( CARDINAL ) Hearsay information may therefore afford a constable reasonable grounds to arrest . Such information may come from other officers ... ( CARDINAL ) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest . ( CARDINAL ) The executive ‘ discretion’ to arrest or not ... vests in the constable , who is engaged on the decision to arrest or not , and not in his superior officers .", "Given the independent responsibility and accountability of a constable under a provision such as section CARDINAL(CARDINAL ) of the Act of DATE it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section CARDINAL(CARDINAL ) . It is accepted , and rightly accepted , that a mere request to arrest without any further information by an equal ranking officer , or a junior officer , is incapable of amounting to reasonable grounds for the necessary suspicion . How can the badge of superior officers and the fact that he gave an order make a difference ? ... In practice it follows that a constable must be given some basis for a request to arrest someone under a provision such as section CARDINAL(CARDINAL ) , e.g. a report from an informer . ”", "Section CARDINAL of the Prevention of Terrorism ( Temporary Provisions ) Act CARDINAL provided at the relevant time :", "“ ( CARDINAL ) Subject to sub - section ( CARDINAL ) ... , a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be :", "...", "( b ) a person who is or has been concerned in the commission , preparation or instigation of acts of terrorism to which this Part of this Act applies ;", "...", "( CARDINAL ) A person arrested under this section shall not be detained in right of the arrest for CARDINAL after his arrest ; but the Secretary of ORG may , in any particular case , extend the period of TIME by a period or periods specified by him . ”", "This provision sets a test of an honest suspicion upon reasonable grounds , involving an objective element . Domestic case - law indicates that an arrest will be unlawful where , although there was an honest suspicion on the part of the arresting officer , that suspicion was not objectively reasonable ( see , for example , PERSON v. Chief Constable of ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) .", "Although section CARDINAL concerns the suspicion held by the arresting officer , where a briefing officer has told an arresting officer that there is reliable information when there is not , the Chief Constable may become vicariously liable for a wrongful arrest , on behalf of the briefing officer , not the arresting officer ( see PERSON v. Chief Constable of GPE Police , CARDINAL DATE ) ." ]

[ "5" ]

[ "5-3", "5-5" ]

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[ "5" ]

[ "5-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant owns a plot of land with a surface area of QUANTITY , located in the municipality of GPE , near GPE . It is listed in the local land register under entry No . DATE .", "On DATE the applicant and his neighbours lodged their objections to a proposed new land development plan to be adopted by the municipality .", "On DATE the municipal council of PERSON adopted the local land development plan . The applicant 's objections were not taken into consideration . Under the plan , the applicant 's land was designated for agricultural purposes . A road and a hospital were to be constructed on his land after expropriation .", "The applicant and his neighbours complained of this decision to the GPE Governor , arguing inter alia that the plan breached their right to the peaceful enjoyment of their possessions . They submitted that the local land development plan had been prepared in a manner which failed to take properly into consideration and reconcile the various interests of the municipality and the local owners . As a result , the plan was unreasonable and did not comply with the standards of good land administration .", "They transferred the complaint to ORG , after being informed that it alone was competent to examine the matter .", "By a judgment of DATE , ORG dismissed the complaint , considering that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan . It noted that the restrictions on ownership imposed by land development measures were not per se incompatible with the nature of ownership guaranteed by LAW .", "In DATE the applicant and CARDINAL other inhabitants of PERSON requested the Mayor to amend the DATE plan in order to avoid the loss of various investments they had made in their land after the implementation of the plan 's projects . This request apparently remained unanswered .", "In a letter of DATE ORG , in reply to a query submitted by the applicant and other persons , stated that the municipal authorities were under no obligation to provide any compensation for owners whose property was to be expropriated in the future . They were also informed that the validity of the DATE plan had been prolonged for DATE under the amendment to LAW DATE adopted in DATE .", "On DATE the Mayor of PERSON refused the applicant 's request for an initial approval of a development project on his land ( decyzja o warunkach zabudowy ) , considering that the project would be incompatible with the local land development plan . The applicant wished to have a house built on his land while , under the plan , it was designated for the construction of a road and a hospital .", "The applicant appealed against this decision to the Mazowiecki Governor . In a reply of DATE , he was informed that the appeal should be lodged with ORG and that the construction of the road in PERSON would not be budgeted before DATE at the earliest . The applicant addressed ORG .", "On DATE ORG dismissed the applicant 's appeal on the ground that his construction project was incompatible with the land development plan . It was further reiterated that , under LAW DATE , he had no right to compensation for the fact that his land had been “ frozen ” or for the restrictions on its use .", "On DATE ORG informed the applicant that the plan had been amended in that the construction of the hospital was no longer foreseen . However , the project to build a road remained valid , but no timeframe was specified .", "On DATE the applicant requested the Municipality to acquire his property . ORG refused to do so by a letter of DATE .", "On DATE the applicant complained to ORG that the decisions it had given in respect of the land development in his neighbourhood were incompatible with the land development plan adopted in DATE .", "By a letter of DATE , the ORG informed the applicant that , under domestic law , the owners of property to be expropriated in the future had no right to compensation for the fact that their land could not be developed . They would be entitled to compensation only after the final expropriation decisions in respect of their property had been taken .", "On DATE ORG dismissed his appeal against the decision of DATE . The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision . It found that the decision was lawful as it was common ground between the parties that the applicant 's construction project was incompatible with the local land development plan .", "It further noted that the applicant had complained that his situation could not be seen as being compatible with the LAW , given that owners affected by plans adopted prior to the LAW 's entry into force could not benefit from compensation claims provided for by section CARDINAL of LAW DATE . The court referred to the judgment of ORG given in DATE ( see paragraph CARDINAL below ) , which had examined the compatibility with LAW of section CARDINAL § CARDINAL of the CARDINAL Act . That provision had excluded the application of the owners ' right to compensation under section CARDINAL to land development plans adopted before DATE . It had found the provision to be compatible with the LAW .", "ORG observed that it was not its task to amend or criticise existing laws and that it was bound by this provision . Otherwise , there were no grounds on which to consider that the decision challenged by the applicant had been unlawful .", "In the meantime , in DATE the applicant petitioned the ORG .", "On DATE the ORG informed him that the legal framework for “ frozen land ” was governed by LAW DATE . Under section CARDINAL of this Act , owners of such plots were entitled to various forms of compensation , but only insofar as their plots were affected by land development plans adopted after DATE .", "On DATE the validity of the DATE land development plan expired .", "On DATE the applicant was granted an initial planning permit ( decyzja o warunkach zabudowy ) in respect of his land .", "DATE to DATE questions of land development were governed by LAW of DATE .", "On DATE a new LAW was enacted . It entered into force on DATE .", "On DATE ORG passed a law amending LAW DATE .", "On DATE a new LAW was enacted which repealed LAW .", "Under LAW of DATE owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date .", "Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities . The municipalities were obliged to buy such property , replace it with other land within DATE of an owner 's request , or provide compensation for the damage caused by the designation .", "However , pursuant to LAW , these obligations and the corresponding claims of the owners applied only to plans adopted after LAW had entered into force , i.e. to plans adopted by local municipalities after DATE .", "Pursuant to the DATE Act , plans adopted before its entry into force were to expire on DATE .", "In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE until DATE . Again , on DATE , ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .", "Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .", "Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by LAW . Pursuant to LAW , when , following the adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts . It would appear that the operation of LAW is not retroactive , thus limiting the scope of any such claims to the period after the adoption of LAW .", "Other relevant legislative provisions are extensively set out in the ORG 's judgment of DATE in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL ) .", "In its judgment of CARDINAL DATE ( K CARDINAL/CARDINAL ) , ORG examined the request submitted to it by the ORG to determine the compatibility with LAW of section CARDINAL § CARDINAL of LAW DATE insofar as it excluded the application of section CARDINAL of that Act to land development plans adopted before DATE . The court referred to its established case - law to the effect that ownership could not be regarded as ius infinitivum . Consequently , its exercise was normally restrained by many legal and practical considerations , including the necessity of balancing the owners ' interests against those of other persons . Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership . In particular , owners of properties “ frozen ” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans . This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE she complained to the police about her neighbours . She stated that a “ gang ” of neighbours had damaged her property and had used “ psychotronic generators ” in their apartments and cars to cause damage to her health and mind . The applicant also mentioned in the complaint that she had in the past made submissions to ORG , the President of GPE and ORG , which had been unsuccessful .", "On DATE a police officer took statements from the applicant ’s neighbours , who stated that she had behaved unreasonably , walked naked on the streets , shouted at people and accused them of various illegal activities .", "The Psychoneurological Outpatient Clinic no . CARDINAL of GPE ( “ the ORG ” ) was requested by the police on DATE to carry out a psychiatric examination of the applicant .", "On DATE a resident psychiatrist at the ORG ( PERSON ) issued a report confirming the need for a psychiatric examination of the applicant relying on the evidence obtained DATE before . The report stated that the nature of the applicant ’s complaints to various authorities gave reason to believe that they were brought about by a pathology associated with a psychiatric disorder . The psychiatrist concluded that an examination of the applicant was necessary , because progressive development of the disorder might cause a deterioration in her health and aggressive behaviour towards others . The report was certified by the head physician of the ORG . It is not clear whether the psychiatrist examined the applicant in person before issuing the report .", "On DATE PERSON filed an application with LOC of GPE ( “ the ORG ” ) seeking authorisation for an involuntary psychiatric examination under LAW , subsection CARDINAL ( c ) of the PERSON of ORG and Guarantees of ORG DATE ( “ LAW ” ) . The application stated that there was evidence of “ a psychiatric disorder resulting in significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance ” . It also indicated that on DATE , during a police interview , the applicant had refused to consent to undergo a voluntary psychiatric examination . The application was also certified by the head physician of the ORG .", "Evidence attached to the application included the above - mentioned psychiatrist ’s report of DATE , the applicant ’s complaint to the police of DATE , the police officer ’s request of DATE , and the applicant ’s NORP statements of DATE .", "The application was received by ORG on DATE and a hearing was scheduled for DATE . On DATE the court sent a summons to the applicant by registered letter , but that was later returned to the sender after several unsuccessful delivery attempts .", "On DATE ORG considered the psychiatrist ’s application for involuntary psychiatric examination of the applicant . Neither the applicant nor the representative of the ORG were present at the hearing . It was noted in the court transcript and decision that both parties had been duly notified of the hearing but that neither had chosen to appear in court . ORG authorised a psychiatric examination of the applicant without her consent and ordered it to be carried out either at her home or at the ORG . It reasoned as follows :", "“ The court , having examined the evidence , namely the report of the ORG on the need for a psychiatric examination , considers the application well - founded ... for the following reasons .", "In accordance with LAW , subsection CARDINAL of LAW DATE ... a psychiatric examination of a person may be carried out without his or his legal representative ’s consent when the evidence available suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes feebleness , i.e. the inability to autonomously satisfy one ’s basic needs , or significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance .", "The said condition ... has been proven by the ORG ’s medical report , a copy of the applicant ’s complaint to [ the police ] concerning the use of various types of secret weapons , a copy of a statement by PERSON . ( ORG neighbour ) , who stated that ORG behaved unreasonably , walked naked on the streets and shouted at people , as well as by other evidence confirming the need for a psychiatric examination of ORG . ”", "The ORG has received no evidence to suggest that the applicant was either notified of the decision or provided with a copy .", "DATE , on DATE , the ORG sent a request to the police seeking their assistance in the applicant ’s apprehension in order to prevent her from potentially behaving aggressively towards others . The request stated that the clinic was unable to ensure that the applicant would attend an examination .", "On DATE at TIME CARDINAL policemen visited the applicant ’s flat and took her by force to a police station . Having spent TIME there she was transferred by ambulance to ORG no . CARDINAL ( “ the ORG ” ) . At TIME on arrival at the hospital , the applicant was informed that she had been brought there under the authorisation of ORG . It is not clear whether she was allowed to read the court order .", "DATE at TIME the applicant was examined by a medical counselling panel and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome .", "After her release from the hospital on DATE the applicant requested ORG to provide her with a copy of its decision of DATE authorising her involuntary psychiatric examination .", "On DATE the applicant appealed against that decision . She argued , inter alia , that ORG had examined the case in her absence and that she had not been duly notified of the hearing ; that the decision did not contain reasons and that it was based on a single psychiatric report which was accepted by the court without scrutiny .", "On DATE ORG after hearing the applicant and her representative dismissed the applicant ’s appeal and upheld the authorisation for an involuntary psychiatric examination . The court reasoned that the applicant ’s presence at ORG hearing was not required under LAW . Furthermore , it stated that the psychiatric report was well - founded because it contained details of the applicant ’s actions giving grounds to presume the existence of a psychiatric disorder .", "NORP The applicant applied for supervisory review , but to no avail .", "The applicant lodged a constitutional complaint about LAW . She alleged that this legal provision did not guarantee her a right to be present during the hearing of an application for involuntary psychiatric examination , since it specified that such applications shall be considered by “ a single judge ” .", "On DATE ORG of GPE dismissed the applicant ’s complaint . It argued that the term “ single judge ” for the purposes of LAW referred only to the composition of a court and did not preclude the parties’ participation in a hearing .", "On DATE after the applicant was brought to the hospital and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome ( see paragraphs CARDINAL above ) , the medical panel of the ORG concluded that involuntary hospitalisation of the applicant was required CARDINAL of LAW DATE in order to prevent potentially significant damage to her health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance . The application for involuntary hospitalisation was filed with ORG of GPE on DATE .", "On DATE the applicant was discharged from ORG and advised to follow an outpatient treatment programme . DATE the deputy head physician of ORG requested ORG of GPE to discontinue the proceedings concerning the applicant ’s involuntary hospitalisation in the light of her discharge from the facility . The request was granted and the proceedings discontinued on DATE .", "The applicant did not initiate any proceedings for review of her hospitalisation .", "Article CARDINAL of the Code of Civil Procedure of GPE , which entered into force on DATE , regulates the procedure for the judicial authorisation of involuntary psychiatric examinations . It reads as follows :", "“ An application for involuntary psychiatric examination of a citizen shall be lodged by a psychiatrist with the court at the place of the citizen ’s place of residence . A reasoned report by a psychiatrist on the need to conduct such an examination and other evidence shall be attached to the application . Within DATE of the application being filed , a single judge shall consider the application for involuntary psychiatric examination and shall decide to either authorise the involuntary psychiatric examination of a citizen or refuse [ it ] . ”", "LAW DATE in section CARDINAL subsection CARDINAL provides a list of the rights of persons suffering from a psychiatric disorder , including the right to be informed of their rights , the nature of their disorder and available treatment , the right to the least restrictive methods of treatment , and the right to the assistance of a lawyer , legal representative or other person . LAW prohibits restrictions on the rights of persons suffering from a psychiatric disorder solely on the basis of their diagnosis or their admission to a specialised facility .", "Sections DATE and CARDINAL of the LAW regulate the procedure for conducting involuntary psychiatric examinations . The relevant parts read as follows :", "“ ( CARDINAL ) ORG psychiatric examination shall be conducted in order to determine whether the examinee suffers from a psychiatric disorder and needs psychiatric assistance , and to determine the type of such assistance .", "( CARDINAL ) A psychiatric examination , as well as a prophylactic examination , shall be conducted at the examinee ’s request and with his consent ...", "...", "( CARDINAL ) A psychiatric examination of a person may be carried out without his or his legal representative ’s consent in cases when the available evidence suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes :", "...", "c ) significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance ... ”", "“ ...", "( CARDINAL ) In cases when a person does not present an immediate danger to himself or others , the application for a psychiatric examination shall be submitted in writing and shall contain detailed information giving reasons for the need for examination and an indication of the refusal by the person or his or her legal representative to consult a psychiatrist . The psychiatrist may request additional information necessary for making the decision .", "( CARDINAL ) Having established that the application ... is well - founded the psychiatrist submits to a court at the place of the person ’s residence his written reasoned conclusion as to the need of the examination as well as the application for examination and other available materials . The judge gives sanction within DATE from receiving all of the materials ... ”", "The Police Act DATE in section CARDINAL establishes the duties of police in law enforcement . In the relevant part it reads as follows :", "“ The police in line with assigned tasks shall :", "...", "( CARDINAL ) deliver to healthcare institutions ... for medical treatment persons refusing to appear , suffering from diseases and presenting danger to themselves and others , and also ... to ensure together with healthcare institutions in cases and under a procedure prescribed by law supervision over persons suffering from mental disorders ... and presenting danger to others ... ”", "In its decision of DATE ( no . CARDINAL ) interpreting LAW DATE , ORG stated that judicial proceedings in cases concerning psychiatric assistance must be adversarial and respect the principle of equality of parties . Consequently , a psychiatric facility lodging an application with a court was under an obligation to provide evidence confirming the information stated in such an application .", "In the decision of DATE ( no . CARDINAL-O - O ) concerning procedural guarantees afforded to individuals subjected to involuntary psychiatric examination , ORG concluded that such guarantees were essentially the same as those afforded in the course of involuntary hospitalisation and that they included the duty of the courts to verify all the evidence presented to them .", "Article CARDINAL of the Code of Civil Procedure of DATE establishes the procedural guarantees afforded to a person placed in a psychiatric facility . In the relevant part it reads as follows :", "“ CARDINAL . An application for involuntary placement to a psychiatric facility , or extension of a period of involuntary placement , of a citizen who is suffering from a psychiatric disorder shall be considered by a judge within DATE from the date on which the proceedings were initiated . The court shall hold a hearing in the courtroom or in the psychiatric facility . The citizen has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement . In cases when according to the information provided by the representative of the psychiatric facility the citizen ’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility .", "NORP The case shall be considered with the participation of a prosecutor , a representative of the psychiatric facility which applied to the court ... , and the citizen ’s representative ... . ”", "Articles CARDINAL and CARDINAL of the Code of Civil Procedure establish the grounds for discontinuation of the proceedings and its consequences . In the relevant part they read as follows :", "“ The court discontinues the proceedings on the case , if : ...", "a plaintiff withdraws his lawsuit and the court accepts the withdrawal ... ”", "“ The proceedings in the case are discontinued by a decision of the court , which states that repeated submission of the lawsuit regarding the dispute between the same parties , on the same matter and the same grounds in not permitted . ”", "Section CARDINAL subsections CARDINAL and CARDINAL of the LAW ( as in force at the material time ) specified that persons suffering from a psychiatric disorder had the right to a representative of their own choosing . The administration of the psychiatric facility had the obligation to ensure the opportunity for the individual to obtain legal representation by a lawyer ( except for urgent cases ) .", "Section CARDINAL of the LAW sets out the following grounds for involuntary placement of a person in a psychiatric facility :", "“ A person suffering from a mental disorder may be hospitalised at an inpatient psychiatric facility without his or his representative ’s consent prior to judicial authorisation only if his medical examination or treatment is not possible outside of an inpatient facility , the mental disorder is severe and causes :", "a ) a immediate danger to himself or others , or", "b ) feebleness , i.e. the inability to autonomously satisfy basic needs", "c ) significant damage to health due to the deterioration or aggravation of the psychiatric condition in the absence of psychiatric assistance . ”", "Section CARDINAL of the LAW specifies the procedure for the examination of patients involuntarily placed in a psychiatric facility :", "“ CARDINAL . A person placed in a psychiatric hospital on the grounds defined by section CARDINAL of the present Act shall be subject to compulsory examination within TIME by a panel of psychiatrists of the hospital , who shall take a decision as to the need for hospitalisation . ...", "NORP If hospitalisation is considered necessary , the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital , within TIME , for a decision as to the person ’s further confinement in the hospital . ”", "Sections CARDINAL set out the procedure for judicial review of applications for the involuntary in - patient treatment persons suffering from a psychiatric disorder :", "“ CARDINAL . Involuntary hospitalisation for in - patient psychiatric treatment on the grounds laid down in section CARDINAL of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital .", "An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is confined ...", "A judge who accepts an application for review shall simultaneously order the person ’s detention in a psychiatric hospital for the term necessary for that review . ”", "“ CARDINAL . An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge , on the LOC of the court or hospital , within DATE of receipt of the application .", "NORP The person has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement . In cases when according to the information provided by the representative of the psychiatric facility the citizen ’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility ... ”", "“ CARDINAL . After examining the application on the merits , the judge shall either grant or refuse it . ... ”", "On DATE ORG adopted Recommendation Rec(CARDINAL)CARDINAL concerning the protection of the human rights and dignity of persons with mental disorder . In the relevant part the ORG provides :", "“ CARDINAL . The law may provide that exceptionally a person may be subject to involuntary placement , in accordance with the provisions of this chapter , for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if :", "i. his or her behaviour is strongly suggestive of such a disorder ;", "ii . his or her condition appears to represent such a risk ;", "iii . there is no appropriate , less restrictive means of making this determination ; and", "iv . the opinion of the person concerned has been taken into consideration . ”", "“ CARDINAL . The decision to subject a person to involuntary placement should be taken by a court or another competent body . The court or other competent body should :", "i. take into account the opinion of the person concerned ;", "ii . act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted ...", "Involuntary placement , involuntary treatment , or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience , and in accordance with valid and reliable professional standards . ”", "“ CARDINAL . Persons subject to involuntary placement or involuntary treatment should be promptly informed , verbally and in writing , of their rights and of the remedies open to them ... ”", "They should be informed regularly and appropriately of the reasons for the decision and the criteria for its potential extension or termination . ”", "“ CARDINAL . In the fulfilment of their legal duties , the police should coordinate their interventions with those of medical and social services , if possible with the consent of the person concerned , if the behaviour of that person is strongly suggestive of mental disorder and represents a significant risk of harm to him or herself or to others .", "Where other appropriate possibilities are not available the police may be required , in carrying out their duties , to assist in conveying or returning persons subject to involuntary placement to the relevant facility .", "Members of the police should respect the dignity and human rights of persons with mental disorder . The importance of this duty should be emphasised during training . ”" ]

[ "5" ]

[ "5-1" ]

[ "5-1-b" ]

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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 Court by PERSON NORP PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr V. Grosu .", "In DATE the police arrested CARDINAL women for engaging in prostitution . Following questioning it was discovered that they were part of an organised group headed by a pimp . In particular , it appeared that the pimp , PERSON , had rented an apartment for that purpose , hired CARDINAL other persons to answer telephone calls from clients and arrange meetings and placed ads in a local newspaper advertising dates with female partners . The police found the ads in the newspaper and identified the persons responsible for answering telephone calls from clients . CARDINAL of those persons was the applicant .", "On DATE a search was conducted in the applicant 's apartment and a journal containing CARDINAL pages of telephone numbers , lists of clients , amounts of money and a black list of clients was seized . The journal also contained the telephone number of L. and of the apartment where the CARDINAL prostitutes who allegedly worked for L. carried out their activity . DATE the applicant was questioned at the police station as a witness . She admitted to having worked for PERSON and gave details about the functioning of their group . Her duty was to answer telephone calls from clients in search of sex services and to set - up meetings between them and prostitutes . She was to inform clients about the rates and the exact description of the services provided by the prostitutes . She was also to ask for a description of the clients ' appearance and to indicate to them the time and place for meeting the prostitutes . After that she was to call PERSON and provide her with the information concerning the time of the meeting and details about the particular client 's appearance . PERSON would then provide the information to the prostitutes who would later approach the client , if he appeared acceptable to them or if they did not find him suspicious . The applicant also gave details about the division of the revenue among all the members of the group and stated that she was entitled to PERCENT of each successful transaction set - up by her . The sums indicated by the applicant in her declaration were consistent with the amounts indicated in the journal seized from her apartment .", "The police also questioned the CARDINAL other telephone operators , the prostitutes and the alleged pimp , PERSON except for PERSON admitted to having been part of the group and gave details about the group 's activity . The police also obtained a detailed transcript of the telephone communications of all the members of the group over a period of DATE from which it appeared that the pattern of communication between them and the clients was consistent with the scheme described by them during questioning . The police also questioned a client , who had been caught red - handed and who confirmed the story provided by the prostitutes and the telephone operators . The police obtained copies of the applications for placing ads in the newspaper . It appeared from them that the ads containing the applicant 's telephone number had been placed by PERSON of the ads concerning other telephone numbers belonging to the CARDINAL other telephone operators had also been placed by L.", "After the criminal investigation was terminated by the police , the file was transmitted to ORG which indicted all the members of the criminal group , except for the prostitutes , with the offence of trading in prostitution . In the first round of questioning following her indictment the applicant , assisted by a lawyer , admitted to having worked for PERSON by answering telephone calls and arranging meetings , but stated that she had not been aware that the persons in question were prostitutes and possible clients . Later the applicant hired another lawyer and , during the second round of questioning , rejected the charges against her and refused to make any statements . The prostitutes reiterated their statements made at the police station according to which PERSON was their pimp . They identified PERSON from numerous pictures presented to them . CARDINAL of them was confronted with L.", "During the court proceedings the applicant changed her defence and argued that she had been working as an independent prostitute and that the ads in the newspaper had been placed in order to find clients for herself . She did not explain why the ads had been placed by L. According to the applicant she met clients at her home while her husband was away or at the clients ' homes . She emphasised that she did not seek clients for other prostitutes . When asked to explain her relationship with L. she submitted that they had been acquaintances and often telephoned each other because she was sewing a costume for PERSON 's daughter . The journal seized by the police on DATE was hers and she had noted down information in it about her own clients . The applicant did not explain why the telephone numbers of PERSON and of the CARDINAL prostitutes were contained in the journal . She stated that she had been intimidated during the questioning by the police and that her statements given to the police had not been true . As to her statements made during the first round of questioning at ORG , she maintained that they were also false because her lawyer had advised her to lie .", "On DATE the ORG convicted PERSON of trading in prostitution but acquitted the applicant and CARDINAL other co - accused . PERSON 's conviction was based , inter alia , on the testimonies of the CARDINAL prostitutes made to ORG during the investigation stage of the proceedings which were read out in court . None of the witnesses was heard in court because the court had failed to obtain their attendance even with the help of the police . At the same time , the court considered that the testimonies of the CARDINAL prostitutes given during the investigation stage could not be used against the applicant because they did not contain anything to incriminate her and the CARDINAL other co - accused telephone operators . The court considered that the applicant 's confession made during the investigation stage could not be relied upon and that the prosecution had failed to prove that the applicant 's statement that she had been an independent prostitute was incorrect . ORG appealed against this judgment .", "On DATE the court of appeal , following an oral hearing , upheld the prosecutor 's appeal and reversed the judgment of the lower court in respect of the applicant and the CARDINAL other telephone operators . It found the applicant guilty as charged on the strength of her own admission during the first round of questioning by ORG , namely that she had been working for PERSON by answering telephone calls and arranging meetings between interested persons . The court dismissed the applicant 's defence that she had been an independent prostitute . The court also considered relevant the applicant 's testimony made to the police in her capacity as a witness in which she gave details about her duties in the criminal group . The court also gave weight to the journal seized from the applicant 's apartment on DATE , the detailed transcript of her telephone communications and other evidence contained in the case file , without specifying the nature of that evidence . According to the court of appeal 's judgment , the testimonies of the CARDINAL prostitutes used against L. were not the basis of the applicant 's conviction . The applicant was exempted from serving a prison sentence on the basis of an amnesty law .", "The applicant lodged an appeal on points of law against this judgment and argued mainly that the witnesses whose testimonies had been relied upon in the court of appeal 's judgment had not been heard by that court and that she did not have a chance to put questions to them .", "On DATE ORG rejected the applicant 's appeal on points of law , finding that the court of appeal had correctly established her guilt on the strength of the evidence in the case file and the witness testimonies relied upon .", "Under the NORP legislation prostitution is not considered to be a criminal offence but an administrative misdemeanour punishable by a fine or administrative detention . The same is not the case of the offence of trading in prostitution ( “ proxenetism ” ) and obtaining revenue from prostitution practiced by other persons . The latter is considered to be a criminal offence and is punishable by DATE imprisonment ." ]

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[ "The applicant was born in DATE and lives in Ağrı .", "On DATE the applicant was arrested in GPE on suspicion of being a member of an illegal organisation . On DATE he was remanded in custody .", "On DATE the public prosecutor filed a bill of indictment against the applicant and CARDINAL other accused with ORG . On DATE the trial commenced . On DATE the applicant was released pending trial .", "By PERSON no . CARDINAL , in DATE ORG were abolished . Subsequently , ORG acquired jurisdiction over the case .", "On DATE ORG ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under LAW and ORG of LAW had expired ." ]

[ "6" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives 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 .", "As from DATE the applicant held a leading position in a big hospital . From DATE onwards she suffered increasingly from stress and hypertension to the extent that she experienced burnout and was no longer able to work and therefore went on sick leave as from DATE . At this time she also submitted an occupational injury report ( arbetsskadeanmälan ) to ORG ( Försäkringskassan ) in PERSON .", "In DATE ORG granted her an early retirement pension on the ground that she had permanently lost her work capacity because she suffered from hypertension and burnout .", "In the meantime , on DATE , the applicant filed an application for life annuity ( livränta ) with ORG , claiming that her burnout and hypertension had been directly caused by her work .", "In DATE the applicant submitted a medical certificate from her doctor , PERSON , which stated that she suffered from burnout and hypertension and that her work situation had caused or worsened these conditions . However , on DATE , PERSON , one of ORG own medical doctors ( försäkringsläkare ) , made the assessment that the applicant ’s work had involved such a high level of stress that it had worsened her hypertension but that it had not caused it . As concerned the burnout , there was a lack of scientific consensus that burnout could be caused by factors such as those to which the applicant had been exposed at her work .", "On DATE ORG informed the applicant that it was considering rejecting her application for life annuity . It sent her a copy of the case - file and asked her to submit any comments she might have . The applicant replied on DATE that she maintained her claims and , in DATE , she submitted a new medical certificate by PERSON In view of these documents , ORG again asked PERSON to assess the applicant ’s condition . PERSON did not alter his assessment .", "On DATE ORG rejected the applicant ’s application for life annuity on the ground that her medical problems could not be regarded as work - related . The medical opinion given on DATE by PERSON was attached to the decision .", "By letter dated DATE the applicant appealed to ORG ( länsrätten ) of GPE , claiming that she had a right to a life annuity and maintaining that her medical conditions had been caused by her work .", "On DATE ORG rejected the applicant ’s appeal . It found , on the basis of several medical opinions including the ones given by PERSON and PERSON , that it had not been established that the working conditions had caused the burnout and the hypertension .", "By letter dated DATE the applicant appealed to ORG ( kammarrätten ) of GPE , reiterating her claims already presented before ORG .", "The appellate court decided to request an expert opinion which was received by the court on DATE . By decision of CARDINAL DATE , the court granted leave to appeal . Subsequently , in DATE , the applicant , who was now represented by legal counsel , requested that an expert opinion be obtained from a psychiatrist . The court granted the request and ordered that the opinion be submitted no later than DATE . After the court had contacted the psychiatrist , PERSON , on QUANTITY occasions over the phone and once by mail , the opinion was finally submitted on DATE . Both parties were given the opportunity to comment on the expert opinions and each others’ submissions , which they did . Moreover , the applicant requested and was granted an extension of time - limit to submit her comments and further medical certificates on several occasions .", "On DATE ORG rejected the appeal , finding that the applicant ’s working conditions had not contained harmful elements of such scale , duration and intensity that they could have caused , with a high level of probability , her hypertension and burnout .", "By letter dated DATE the applicant appealed to ORG ( Regeringsrätten ) , reiterating the grounds of appeal already presented before the lower instances .", "On DATE ORG refused the applicant leave to appeal .", "LAW deals with the civil liability of the ORG . According to LAW of that chapter , acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault of negligence .", "An individual who wants to claim compensation from the ORG may proceed in either of CARDINAL different ways : He or she may either petition the Chancellor of Justice ( NORP ) in accordance with LAW on ORG against the ORG ( ORG om handläggning av skadeståndsanspråk mot staten , CARDINAL:CARDINAL ) , or bring a civil action against the ORG before a district court , with the possibility to appeal to a court of appeal and ORG . No appeal lies against a decision of the Chancellor of ORG . However , if the claim is rejected , the claimant still has the possibility to institute civil proceedings before the courts . In such proceedings , the ORG is represented by the Chancellor of ORG ( LAW [ GPE med instruktion för NORP , DATE ] ) .", "In a judgment of DATE ( ORG DATE p. CARDINAL ) ORG dealt with a claim for damages brought by an individual against the NORP State , inter alia , on the basis of an alleged violation of LAW . The case concerned the excessive length of the criminal proceedings and ORG held that the plaintiff ’s right under LAW to have the criminal charges against him determined within a reasonable time had been violated . Based on this finding , and with reference , inter alia , to ORG and CARDINAL of the Convention and the ORG ’s case - law under these provisions , in particular the case of GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALXI ) , ORG concluded that the plaintiff was entitled to compensation under NORP law for both pecuniary and non - pecuniary damage . With respect to the level of compensation for non - pecuniary damage , ORG took note of the criteria established in the ORG ’s case - law stating that the ORG ’s practice constituted a natural point of departure in this regard .", "In a decision of CARDINAL DATE ( ORG DATE p. CARDINAL ) , ORG held that the principle concerning a right to damages established in the above - mentioned case of DATE also applied with regard to the rights contained in LAW . ORG stated that the plaintiff ’s right to damages on account of a violation of Article CARDINAL should be assessed in the first place under LAW ( Skadeståndslagen , CARDINAL:CARDINAL ) and LAW and Other Coercive Measures ( NORP om ersättning vid frihetsberövanden och andra tvångsåtgärder , CARDINAL:CARDINAL ) . To the extent necessary , the relevant provisions of domestic law should be interpreted in accordance with the LAW . If GPE ’s obligations under LAW could not be met by such an interpretation , the domestic courts should award compensation without the support of specific legal provisions . As concerned the determination of the level of compensation , ORG repeated that the ORG ’s case - law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from CARDINAL country to another in what should be regarded as a reasonable level of compensation .", "In a judgment of DATE ( ORG DATE p. CARDINAL ) , ORG held that the plaintiffs’ right to respect for their private life under LAW had been violated on the basis that a police decision on a medical examination of some of them had not been “ in accordance with the law ” . Having found that compensation for the violation could not be awarded directly on the basis of LAW , ORG held that there was no reason to limit the scope of application of the principle established in the above - mentioned cases of DATE and CARDINAL September CARDINAL to violations of Articles CARDINAL and CARDINAL of the LAW . In view of this and with reference to , inter alia , LAW and the ORG ’s case - law under these ORG , ORG concluded that the plaintiffs should be awarded non - pecuniary damages for the violation of LAW . With regard to the levels of compensation , ORG concluded that they should not be too far removed from the levels which applied when awarding damages under LAW . Generally speaking these levels should , however , be compatible with the case - law of the Court . In the same case , ORG had also concluded , in a judgment dated DATE , that there had been a violation of Article CARDINAL and that an award for non - pecuniary damage should be made on the basis of the principle established in the case of DATE .", "A further ORG judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) concerned a claim for damages against the NORP State on the basis of an alleged violation of LAW relating to the suicide of the LAW father while in detention . ORG concluded that the case revealed no violation of LAW . However , in its reasoning leading to this conclusion , ORG noted , inter alia , that according to the ORG ’s case - law there was a right to an effective remedy under LAW connected to the ORG ’s duty under the ORG to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty , which should , in principle , include a possibility of obtaining compensation for damage . ORG referred in particular to the judgment in PERSON v. GPE ( no . CARDINAL , § CARDINAL , ECHR CARDINAL ) .", "In a judgment of DATE ( NJA DATE N CARDINAL ) , ORG confirmed its previous case - law in a case concerning claims for damages against the NORP State on account of excessive length of tax proceedings . The court affirmed that it is now a general principle of law that to the extent that GPE has a duty to provide redress to victims of Convention violations through a right to compensation for damages , and that this duty can not be fulfilled even by interpreting national tort law in accordance with the LAW fördagskonform tolkning ) , compensation for damages may be ordered without direct support in law .", "Lastly , on DATE ORG ordered compensation for non - pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “ reasonable length ” requirement in Article CARDINAL nor the right to an effective remedy in LAW . The proceedings in question had concerned a claim for damages against the ORG .", "In DATE the ORG decided to set up a working group on tort liability and the ORG to study the current legal situation . In DATE the working group submitted its report ( PERSON , ORG CARDINAL:CARDINAL ) to the Government . In the report it is proposed that LAW be amended in order to allow natural and legal persons to obtain damages from the ORG or a municipality for violations of the LAW . Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the ORG has been violated . The aim of the proposal is to provide a legal basis for granting non - pecuniary damages arising from disregard of the LAW and to fulfil , together with the other already existing legal remedies , GPE ’s obligations under LAW .", "In its comments on the above report ORG , on DATE , stated that , since the autumn of DATE following ORG case - law developments ( as set out above ) , it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention . It estimated that it had dealt with CARDINAL cases over DATE . During this time the Chancellor of ORG had also represented the NORP State in a number of cases before the civil courts concerning alleged violations of the Convention . A majority of the cases that the ORG had dealt with had concerned non - pecuniary damages for excessive length of proceedings under LAW . Since DATE , it had received CARDINAL such complaints and in CARDINAL of them , the Chancellor of ORG had found a violation and granted compensation . The level of compensation for non - pecuniary damage had been determined with reference to the ORG ’s case - law and varied CARDINAL and SEK CARDINAL ( approximately ORG CARDINAL,CARDINAL and LAW ) . Furthermore , the Chancellor of ORG had dealt with a substantial number of cases ( CARDINAL ) concerning the registration of individuals in the register of ORG . These cases had concerned one or more of Articles CARDINAL , CARDINAL , DATE and DATE of the Convention . There had also been other individual cases relating to alleged violations of Articles CARDINAL and CARDINAL of the LAW , among others ." ]

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[ "The applicant was born in DATE and lives in GPE . At the material time he was the owner and manager of the company AS GPE .", "On DATE the GPE police instituted criminal proceedings against the applicant on charges of tax offences under LAW CARDINAL - CARDINAL § CARDINAL of LAW . In the course of the preliminary investigation the applicant was further charged with the offence of inadequate accounting under LAW as well as with falsification of documents .", "On DATE the ORG prosecutor approved the bill of indictment , and the case was sent to ORG ( ORG ) for trial . The charges set out in the indictment related to acts and omissions of the applicant in the period from DATE .", "In particular , under LAW the acts which were the subject of the charges against the applicant concerned his failures to pay the required taxes , to file by the set deadline revenue statements for DATE , to inform ORG of the change of his company 's location , and to comply with the order of ORG of CARDINAL DATE to pay the required taxes . Under LAW CARDINAL - CARDINAL of LAW the applicant was accused of having unsatisfactorily arranged his company 's bookkeeping , in breach of the legal requirements . The existing records were incomplete and a number of documents had not been preserved , which made it impossible to determine the company 's performance .", "By a judgment of CARDINAL DATE ORG convicted the applicant of the offences under LAW and sentenced him to DATE imprisonment . It also found the applicant guilty of the offence under LAW and sentenced him to DATE imprisonment . As the latter sentence was absorbed by the former , the aggregate sentence imposed on the applicant was DATE imprisonment , which was suspended for DATE .", "ORG found that the application of Article CARDINAL - CARDINAL § CARDINAL of LAW , which had been in force as from DATE , was justified in the case on the grounds that the applicant 's failure to pay the required taxes had been intentional and continuous and his criminal activity had lasted until DATE . It ordered the applicant to pay the city tax authorities CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP kroons in outstanding taxes . No fine or tax surcharge was imposed apart from the requirement to pay the taxes which were due under the relevant tax laws .", "As regards the offence of inadequate accounting under LAW , which was in force as from DATE , ORG noted that the applicant 's company had operated from DATE until DATE . During that period there had been no recording of its economic activity and it was impossible correctly to determine the company 's performance , income , expenditure , profit , loss , debts , solvency or amount of its assets . The applicant had failed to comply with the obligations imposed on him by the PERSON on personal responsibility for the organisation of accounting . The law came into effect on DATE , i.e. at the time of the operation of the company , and the applicant , being its owner and manager , had to comply with the provisions of the law . The applicant also failed to adopt rules and procedures for bookkeeping and to secure the preservation of the relevant documents , as required under the Government decree of DATE concerning the organisation of accounting .", "On DATE the applicant filed an appeal against the judgment to ORG ( GPE ) . He argued that in convicting him under Article CARDINAL - CARDINAL § CARDINAL of LAW of acts committed prior to its entry into force on DATE , ORG had applied the criminal law retrospectively . Before that date a conviction of the offences defined in LAW could follow only if the person concerned had been previously subjected to an administrative sanction for a similar offence .", "The applicant further submitted that , in making him responsible for the inadequate bookkeeping in his company during the whole period from CARDINAL DATE until DATE , ORG had also applied retroactively Article CARDINAL - CARDINAL of LAW which had only been in force as from DATE .", "On DATE ORG upheld the judgment of ORG . It found that the acts with which the applicant was charged under LAW amounted to ongoing crimes . After his first criminal act on DATE the applicant had embarked upon a criminal enterprise which had lasted until DATE , DATE on which ORG discovered the abuses and issued its order . Therefore , ORG had correctly qualified his acts as falling under that law .", "It also considered that the ongoing nature of the applicant 's acts relating to inadequate accounting justified his conviction under LAW .", "On DATE the applicant lodged an appeal on points of law to ORG ( NORP ) raising the same arguments as in his appeal to ORG .", "By a judgment of DATE ORG dismissed his appeal . It held that , according to the principles of NORP criminal law , the law to be applied to a criminal act was the law which had entered into force before the end of a criminal activity . As the applicant 's criminal activity ended on DATE , his actions fell under the law in force at that time , i.e. Article CARDINAL - CARDINAL § CARDINAL of LAW . The same reasons applied to the applicant 's conviction of inadequate accounting under LAW .", "The text of Article CARDINAL - CARDINAL of LAW , in force until DATE , was as follows :", "“ Concealment of income or other objects of taxation , or evasion of submission of income tax returns :", "( CARDINAL ) Concealment of income or other objects of taxation , or submission of knowingly false data in financial statements , tax calculations , income tax returns or other documents relating to the calculation of taxes or payments and their transfer to the budget , or evasion of submission of an income tax return or failure to submit an income tax return on time , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) The same acts , if committed by a person who has a criminal record for a criminal offence prescribed in paragraph ( CARDINAL ) of this article , are punishable by DATE imprisonment . ”", "The text of Article CARDINAL - CARDINAL of LAW , in force as from DATE until DATE , was as follows :", "“ Evasion of submission of income tax returns or other tax calculations , concealment of income or other objects of taxation , and tax evasion :", "( CARDINAL ) Evasion of submission of an income tax return , or failure to submit an income tax return on time , or submission of falsified data therein by a person who is required to submit an income tax return , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation , or failure to submit or failure to submit on time income tax returns , tax calculations , financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget , or failure to submit or failure to submit on time accounting documents , contracts or other documents necessary for the assessment and verification of the correctness of taxes , or failure to comply with an order of ORG , by a competent official who is required to perform the corresponding duties , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or DATE imprisonment ;", "( CARDINAL ) Failure to pay taxes or failure to pay taxes on time , or inadequate compliance or failure to comply with an order issued by ORG for the compulsory collection of taxes by a bank , by a competent official who is required to perform the corresponding duties , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) Incorrect deduction or failure to deduct personal income tax from the wages ( income ) of employees , or failure to transfer deducted payments to the budget in full or in a timely manner , by a competent official who is required to perform the corresponding duties , if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) The same acts , if committed by a person who has a criminal record for a criminal offence prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article are punishable by DATE imprisonment ;", "( CARDINAL ) ORG of acts prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article on a large - scale basis is punishable by DATE imprisonment . ”", "The text of Article CARDINAL - CARDINAL of LAW , in force as from CARDINAL DATE , reads as follows :", "“ Evasion of submission of income tax returns or other tax calculations , concealment of income or other objects of taxation , and tax evasion :", "( CARDINAL ) Evasion of submission of an income tax return , or failure to submit an income tax return on time , or submission of falsified data therein , if such acts are intentionally committed by a person who is required to submit an income tax return , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation , or failure to submit or failure to submit on time income tax returns , tax calculations , financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget , or failure to submit or failure to submit on time accounting documents , contracts or other documents necessary for the assessment and verification of the correctness of taxes , or failure to comply with an order of ORG , if the specified acts are intentionally committed by a competent official who is required to perform the corresponding duties , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) Failure to pay taxes or failure to pay taxes on time , or inadequate compliance or failure to comply with a precept issued by ORG for the compulsory collection of taxes by a bank , if such acts are intentionally committed by a competent official who is required to perform the corresponding duties , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) Incorrect deduction or failure to deduct personal income tax from the wages ( income ) of employees , or failure to transfer deducted payments to the budget in full or in a timely manner , if such acts are intentionally committed by a competent official who is required to perform the corresponding duties , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) Submission of incorrect data or documents upon compulsory registration on the basis of an LAW concerning a tax , or concealment of one 's residence , place of employment or place of business from a tax authority , or evasion of payment of the taxes provided for in LAW in any other manner , if such acts are intentionally committed by a competent official who is required to perform the corresponding duties or by a natural person , or if an administrative punishment has been imposed on the offender for a similar offence [ italics added ] , is punishable by a fine or detention or DATE imprisonment ;", "( CARDINAL ) The same acts , if committed by a person who has a criminal record for a criminal offence prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article are punishable by DATE imprisonment ;", "( CARDINAL ) ORG of acts prescribed in paragraph ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this article on a large - scale basis is punishable by DATE imprisonment . ”", "Article CARDINAL of LAW , in force as from DATE , provides as follows :", "“ Inadequate organisation of accounting :", "Violation of the requirements provided for in legislation regulating accounting or reporting concerning the economic activities , including the commercial or financial activities , or assets of an economic unit , if such violation renders it impossible to correctly ascertain the economic performance , income , expenditure , profit , loss , debts , solvency or amount of assets of the economic unit , is punishable by a fine or deprivation of the right of employment in a particular position or operation in a particular area of activity , or DATE imprisonment . ”", "According to the practice of ORG , if a non - payment of taxes is intentional and continuous the latest version of Article CARDINAL - CARDINAL is applicable to acts which occurred prior to its entry into force provided that part of the criminal activity took place after the critical date . Criminal liability arises on CARDINAL alternative , not cumulative , grounds : ( CARDINAL ) if a person has committed the offence intentionally or ( CARDINAL ) if a person has previously been subjected to administrative punishment for the same offence . Article CARDINAL - CARDINAL § CARDINAL does not contain a separate offence , but it only qualifies the elements listed in § § DATE . Thus , a person may be convicted under Article CARDINAL - CARDINAL § CARDINAL only if his acts encompass the elements of the offences set out in § § DATE . ( ORG of ORG of DATE , PERSON DATE , CARDINAL , CARDINAL ; and decision of CARDINAL DATE , PERSON DATE , CARDINAL , ORG ) .", "ORG has also considered that a constant and continuous violation of the obligation to declare one 's sources of income and to pay the required taxes created a persisting criminal state ( Decision of the Criminal Division of ORG of DATE , case no . CARDINAL ) .", "ORG has upheld an accused 's conviction under LAW concerning inadequate organisation of accounting DATE and DATE ( Decision of ORG of ORG of DATE , case no . CARDINAL ) ." ]

[ "7" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP Town , GPE . He was represented before the ORG by Mr R Posner , a lawyer practising in GPE with ORG .", "On DATE , the applicant and another man , B , were stopped and arrested in a car that the applicant was driving . B was sitting in the front passenger seat when the car was stopped . The car was searched and , under the front passenger seat , under a flap in the carpet , a package containing heroin was discovered . The men were taken by police van to a police station and charged . The following day , a metal smoking pipe was found by a police officer , Special Constable M , in the police van , in the cubicle where B had been sitting . She also stated that she had heard a metal “ clang ” in the van when the men were being taken to the police station . The pipe was found to contain traces of cocaine .", "Each man blamed the other for placing the package in the car and denied all knowledge of it . At trial , a police officer , Police Constable W , gave evidence that , on the basis of a test he had conducted , it would have been impossible for someone sitting in the front passenger seat to place the package where it had been discovered . He had also tried the seat in different positions . On this basis , B was acquitted by the judge . The jury was discharged and a re - trial ordered in respect of the applicant .", "At the applicant ’s re - trial , PC W gave evidence and Special Constable M ’s statement as to the pipe was read to the jury . The applicant was convicted but , on appeal , his conviction was quashed on the basis of fresh expert evidence , which showed it would have been possible for a man of B ’s build , sitting in the passenger seat , to place the package . ORG , in quashing the conviction , ordered a second re - trial .", "At the second re - trial , PC W appeared to give different evidence to the effect that he did not move the seat to different positions . He was not cross - examined by the applicant on this inconsistency with his previous testimony because , for tactical reasons , the defence did not wish the jury to know about the previous trials . Special Constable M ’s statement was not read at this trial . The applicant did not give evidence in his own defence . In his summing up , the trial judge erroneously directed the jury that the pipe had been found in the car and contained traces of heroin , not cocaine . He nonetheless observed : “ you [ the jury ] may think that really nothing turns on the pipe in this case . It does not add or subtract to the case one way or another ” .", "The applicant was convicted and appealed . On appeal , he argued that : ( i ) had the trial judge been aware of Special Constable M ’s statement he would have directed the jury differently and the applicant would have been able to argue more strongly that B was a drug user , and was thus more likely to have placed the package ; ( ii ) PC W ’s change in evidence was highly material but , because of a tactical decision not to refer to the previous trials , he had been deprived of the ability to cross - examine him . The applicant also submitted that , since PC W ’s evidence had led to the discharge of B , it also deprived the applicant of the opportunity to cross - examine B. This deprived the applicant of the opportunity to put to B the allegation that the heroin belonged to him and that the applicant knew nothing about it .", "ORG dismissed the appeal on DATE ( [ DATE ] EWCA Crim CARDINAL ) . It gave the following reasons for its decision ( at paragraphs CARDINAL–CARDINAL of the judgment :", "“ ... The question is whether the conviction of the applicant at the third trial is unsafe . Is it unsafe by reason of any material irregularity in the procedure or by any misdirection of law by the judge ? The answer to each must be no .", "We deal first with the fact that the evidence of [ Special Constable M ] was not adduced at the third trial . It is clear that this evidence had been adduced at the previous trial . It must have been clear to the applicant that it existed . We think that those who were advising the applicant must have realised of its existence . It is referred to , after all , at the front of the transcript of the summing up of the judge in the second trial . We find it difficult ( if not impossible ) to conclude that its existence was not known to the applicant and the defence team at the time of the third trial .", "But , in any event , the evidence about the noise in the police van and finding the pipe in Mr [ B ’s ] cubicle in the van adds either nothing or very little to the case . The pipe was , as the judge said , of no consequence . It contained traces of cocaine , not heroin . The judge was mistaken when he referred to heroin in his summing up . The pipe is an irrelevance . It does not follow , in our view , that because Mr [ B ] dropped the pipe in the van , therefore he and he alone was concerned with the Class A drugs that were found in the car . We do not accept that [ Special Constable M ’s ] evidence would or might have materially affected the minds of the jury as concerns the guilt of the applicant .", "Secondly , the error of the judge , if such it were , that the pipe had been found in the FAC car , is also an irrelevance . The pipe had nothing to do with the case against the applicant , as the judge made clear in his summing up . If anything , the remark of the judge about the pipe was helpful to the applicant ’s case on the third trial .", "Thirdly , the fact that PC [ W ] had changed his evidence from that given at the first CARDINAL trials and that he now agreed with the experts was , on the face of it , highly favourable to the applicant . The effect was that the CARDINAL experts and PC [ W ] all agreed that it was possible for the heroin to be placed under the carpet under the front passenger seat by a person of PERSON [ B ’s ] height and build . It was easier when the seat was in the rear position , but could even have been done with the seat in a more forward position . That evidence all assisted the applicant ’s case that it was PERSON [ B ] who had the heroin and it was he who hid it under the carpet when the police arrived .", "We are unable to see how it could have helped to cross examine PC [ W ] on his previous evidence when the evidence that he gave at the third trial was so much more favourable to the applicant ’s case . We do not accept the argument that if ORG [ which heard the first appeal against conviction and ordered the second re - trial ] had thought that the evidence of PC [ W ] was incorrect , then there would have been no retrial . The fact is that on the appeal the ORG knew that there was a possibility of discrepancy with his earlier evidence because they had received , and regarded as entirely credible , the evidence of the experts about how it was possible to get underneath the seat in whichever position it might be . Despite this potential discrepancy , and therefore the challenge effectively to PC [ W ’s ] version of the facts , ORG was still prepared to order a second retrial .", "Accordingly , we have concluded that none of the points raised are capable of demonstrating even an arguable case that this conviction was unsafe . ”", "In GPE and GPE a witness is competent if he may lawfully give evidence and compellable if he may lawfully be required to give evidence . Competent witnesses are usually but not necessarily compellable ( [ DATE ] ORG ’s Criminal Pleading , Evidence and Practice at DATE ) .", "The test for competence is set out in section CARDINAL of ORG and Criminal Evidence Act DATE , which , where relevant , provides :", "“ ( CARDINAL ) At every stage in criminal proceedings all persons are ( whatever their age ) competent to give evidence .", "( CARDINAL ) Subsection ( CARDINAL ) has effect subject to subsections ( CARDINAL ) and ( CARDINAL ) .", "( CARDINAL ) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—", "( a ) understand questions put to him as a witness , and", "( b ) give answers to them which can be understood .", "( CARDINAL ) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution ( whether he is the only person , or is CARDINAL of CARDINAL or more persons , charged in the proceedings ) .", "( CARDINAL ) In subsection ( CARDINAL ) the reference to a person charged in criminal proceedings does not include a person who is not , or is no longer , liable to be convicted of any offence in the proceedings ( whether as a result of pleading guilty or for any other reason ) . ”", "The effect of subsections ( CARDINAL ) and ( CARDINAL ) is that a co - accused may only give evidence for the prosecution if he ceases to be a co - accused , for example when he has been acquitted .", "In addition , under section CARDINAL(CARDINAL ) of LAW DATE , a person charged in criminal proceedings shall not be called as a witness “ except upon his own application ” . Therefore , a co - accused can only become a competent and compellable witness for any other co - accused once he or she ceases to be a person charged , for example because he or she pleads guilty or is acquitted ." ]

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[ "The LAW of GPE ( hereinafter referred to as “ the LAW ” or “ LAW ” when it is necessary to distinguish it from ORG ) is an annex to the DATE LAW in GPE ( “ LAW ” ) , initialled at GPE on DATE and signed in GPE on DATE . Since it was part of a peace treaty , the LAW was drafted and adopted without the application of procedures which could have provided democratic legitimacy . It constitutes the unique case of a constitution which was never officially published in the official languages of the country concerned but was agreed and published in a foreign language , LANGUAGE . LAW confirmed the continuation of the legal existence of GPE as a ORG , while modifying its internal structure . In accordance with the LAW , GPE consists of CARDINAL Entities : ORG and PERSON . LAW failed to resolve ORG in the GPE area , but the parties agreed to a binding arbitration in this regard ( Article V of FAC to LAW ) . Pursuant to an arbitral award of DATE , PERSON has been created under the exclusive sovereignty of the ORG .", "In the Preamble to the LAW , ORG , NORP and NORP are described as “ constituent peoples ” . At the ORG level , power - sharing arrangements were introduced , making it impossible to adopt decisions against the will of the representatives of any “ constituent people ” , including a vital interest veto , an Entity veto , a bicameral system ( with ORG composed of CARDINAL Bosniacs and the same number of NORP from ORG and CARDINAL NORP from ORG ) as well as a collective Presidency of CARDINAL members with a PERSON and a NORP from ORG and a NORP from PERSON ( for more details , see paragraphs CARDINAL and CARDINAL below ) .", "The applicants were born in DATE and DATE respectively . They have held and still hold prominent public positions . PERSON is now ORG Mission to Bosnia and Herzegovina , having previously served as a member of ORG ( the highest representative body of the local ORG ) and a member of ORG ( a joint body comprising representatives of the local ORG and of the relevant ministries ) . PERSON is now serving as the Ambassador of GPE to GPE , having previously held positions that included being the President of ORG of Bosnia and GPE and the Head of ORG .", "The applicants describe themselves to be of GPE and NORP origin respectively . Since they do not declare affiliation with any of the “ constituent peoples ” , they are ineligible to stand for election to ORG ( the second chamber of ORG ) and the Presidency ( the collective Head of ORG ) . PERSON obtained official confirmation in this regard on DATE .", "LAW , initialled at FAC near GPE ( GPE ) on DATE and signed in GPE ( GPE ) on DATE , was the culmination of DATE of intermittent negotiations under the auspices of ORG on the former GPE and ORG . It entered into force on the latter date and contains CARDINAL annexes .", "The LAW makes a distinction between “ constituent peoples ” ( persons who declare affiliation with ORG , NORP and NORP ) and “ others ” ( members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage , mixed parenthood , or other reasons ) . In the former GPE , a person ’s ethnic affiliation was decided solely by that person , through a system of self - classification . Thus , no objective criteria , such as knowledge of a certain language or belonging to a specific religion were required . There was also no requirement of acceptance by other members of the ethnic group in question . The LAW contains no provisions regarding the determination of one ’s ethnicity : it appears that it was assumed that the traditional self - classification would suffice .", "NORP Only persons declaring affiliation with a “ constituent people ” are entitled to run for ORG ( the second chamber of ORG ) and the Presidency ( the collective Head of ORG ) . The following are the relevant provisions of the LAW :", "“ ORG shall have CARDINAL chambers : ORG and ORG .", "House of NORP . ORG shall comprise CARDINAL delegates , CARDINAL from the Federation ( including CARDINAL NORP and QUANTITY Bosniacs ) and CARDINAL from ORG ( CARDINAL NORP ) .", "( a ) The designated NORP and PERSON delegates from the GPE shall be selected respectively by the NORP and PERSON delegates to ORG Delegates from the Republika Srpska shall be selected by ORG .", "( b ) Nine members of ORG shall comprise a quorum , provided that CARDINAL PERSON , CARDINAL NORP , and CARDINAL NORP delegates are present .", "House of Representatives . ORG shall comprise CARDINAL members , CARDINAL elected from the territory of the Federation , CARDINAL from the territory of ORG .", "( a ) Members of ORG shall be directly elected from their Entity in accordance with an election law to be adopted by ORG . The first election , however , shall take place in accordance with LAW to ORG .", "( b ) A majority of all members elected to ORG shall comprise a quorum .", "Procedures .", "( a ) Each chamber shall be convened in GPE not more than DATE after its selection or election .", "( b ) Each chamber shall by majority vote adopt its internal rules and select from its members CARDINAL NORP , one PERSON , and CARDINAL NORP to serve as its Chair and Deputy PERSON , with the position of Chair rotating among the CARDINAL persons selected .", "( c ) All legislation shall require the approval of both chambers .", "( d ) All decisions in both chambers shall be by majority of those present and voting . The delegates and members shall make their best efforts to see that the majority includes CARDINAL of the votes of delegates or members from the territory of each Entity . If a majority vote does not include CARDINAL of the votes of delegates or members from the territory of each Entity , the chair and deputy chairs shall meet as a commission and attempt to obtain approval within DATE of the vote . If those efforts fail , decisions shall be taken by a majority of those present and voting , provided that the dissenting votes do not include CARDINAL or more of the delegates or members elected from either Entity .", "( e ) A proposed decision of ORG may be declared to be destructive of a vital interest of the PERSON , NORP , or NORP people by a majority of , as appropriate , the PERSON , NORP , or NORP delegates selected in accordance with paragraph l ( a ) above . Such a proposed decision shall require for approval in ORG a majority of the PERSON , of the NORP , and of the NORP delegates present and voting .", "( f ) When a majority of the PERSON , of the NORP , or of the NORP delegates objects to the invocation of paragraph ( e ) , the chair of ORG shall immediately convene a joint commission comprising CARDINAL delegates , CARDINAL each selected by the PERSON , by the NORP , and by the NORP delegates , to resolve the issue . If the commission fails to do so within DATE , the matter will be referred to ORG , which shall in an expedited process review it for procedural regularity .", "( g ) ORG may be dissolved by the Presidency or by the ORG itself , provided that the ORG ’s decision to dissolve is approved by a majority that includes the majority of delegates from CARDINAL of the PERSON , NORP , or NORP peoples . ORG elected in the first elections after the entry into force of this LAW may not , however , be dissolved .", "( h ) Decisions of the Parliamentary Assembly shall not take effect before publication .", "( i ) Both chambers shall publish a complete record of their deliberations and shall , save in exceptional circumstances in accordance with their rules , deliberate publicly .", "( j ) Delegates and members shall not be held criminally or civilly liable for any acts carried out within the scope of their duties in ORG .", "Powers . ORG shall have responsibility for :", "( a ) Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the ORG under LAW .", "( b ) Deciding upon the sources and amounts of revenues for the operations of the institutions of GPE and international obligations of GPE .", "( c ) Approving a budget for the institutions of GPE .", "( d ) Deciding whether to consent to the ratification of treaties .", "( e ) Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the ORG . ”", "“ The Presidency of GPE and GPE shall consist of QUANTITY members : CARDINAL PERSON and CARDINAL NORP , each directly elected from the territory of the GPE , and CARDINAL NORP directly elected from the territory of ORG .", "Election and Term .", "( a ) Members of the Presidency shall be directly elected in each Entity ( with each voter voting to fill CARDINAL seat on the Presidency ) in accordance with an election law adopted by ORG . The first election , however , shall take place in accordance with LAW to ORG . Any vacancy in the Presidency shall be filled from the relevant Entity in accordance with a law to be adopted by ORG .", "( b ) The term of the members of the Presidency elected in the first election shall be DATE ; the term of members subsequently elected shall be DATE . Members shall be eligible to succeed themselves once and shall thereafter be ineligible for DATE .", "Procedures .", "( a ) The Presidency shall determine its own rules of procedure , which shall provide for adequate notice of all meetings of the Presidency .", "( b ) The members of the Presidency shall appoint from their members a chair . For the first term of the Presidency , the chair shall be the member who received the highest number of votes . Thereafter , the method of selecting the chair , by rotation or otherwise , shall be determined by ORG , subject to LAW .", "( c ) The Presidency shall endeavour to adopt all Presidency decisions ( i.e. those concerning matters arising under LAW ( a)-(e ) ) by consensus . Such decisions may , subject to paragraph ( d ) below , nevertheless be adopted by CARDINAL members when all efforts to reach consensus have failed .", "( d ) A dissenting member of the Presidency may declare a Presidency decision to be destructive of a vital interest of the Entity from the territory from which he was elected , provided that he does so within DATE of its adoption . Such a decision shall be referred immediately to ORG , if the declaration was made by the member from that territory ; to the PERSON delegates of ORG , if the declaration was made by the PERSON member ; or to the NORP delegates of that body , if the declaration was made by the NORP member . If the declaration is confirmed by CARDINAL vote of those persons within DATE of the referral , the challenged Presidency decision shall not take effect .", "Powers . The Presidency shall have responsibility for :", "( a ) ORG the foreign policy of GPE .", "( b ) Appointing ambassadors and other international representatives of GPE , CARDINAL of whom may be selected from the territory of ORG .", "( c ) Representing GPE in international and NORP organisations and institutions and seeking membership in such organisations and institutions of which GPE is not a member .", "( d ) Negotiating , denouncing , and , with the consent of ORG , ratifying treaties of GPE .", "( e ) Executing decisions of ORG .", "( f ) Proposing , upon the recommendation of ORG , an annual budget to ORG .", "( g ) Reporting as requested , but not less than DATE , to ORG on expenditures by the Presidency .", "( h ) Coordinating as necessary with international and non - governmental organisations in GPE .", "( i ) Performing such other functions as may be necessary to carry out its duties , as may be assigned to it by ORG , or as may be agreed by the ORG . ”", "The constitutional arrangements contested in the present case were not included in the Agreed Basic Principles which constituted the basic outline for what the future ORG would contain ( see paragraphs CARDINAL and CARDINAL of the Further Agreed Basic Principles of CARDINAL DATE ) . Reportedly , the international mediators reluctantly accepted these arrangements at a later stage because of strong demands to this effect from some of the parties to the conflict ( see PERSON , Achieving Peace or Protecting Human Rights ? Conflicts between Norms Regarding Ethnic Discrimination in ORG , PERSON , DATE , p. CARDINAL , and O’Brien , ORG in GPE : Durable Cease - Fire , Permanent Negotiation , in NORP and ORG ( eds ) , Peace versus ORG : Negotiating Forward- and ORG , ORG , DATE , p. CARDINAL ) .", "Fully aware that these arrangements were most probably conflicting with human rights , the international mediators considered it to be especially important to make the LAW a dynamic instrument and provide for their possible phasing out . LAW § CARDINAL of the LAW was therefore inserted ( see PERSON , cited above , p. CARDINAL ) . It reads as follows :", "“ The rights and freedoms set forth in LAW and its Protocols shall apply directly in GPE . These shall have priority over all other law . ”", "While ORG , in decisions ORG . U CARDINAL/CARDINAL of DATE and CARDINAL of CARDINAL DATE , held that LAW did not have priority over LAW , it came to a different conclusion in decision no . ORG CARDINAL of DATE . In the latter decision , it examined a discrimination complaint concerning the appellant ’s ineligibility to stand for election to the Presidency on the ground of his ethnic origin ( a PERSON from ORG ) and rejected it on the merits . The relevant part of the majority opinion reads as follows ( the translation has been provided by ORG ) :", "“ CARDINAL . The appellants argue that their rights have been violated , taking into account the fact that LAW stipulates that the rights and freedoms set forth in LAW and its Protocols shall apply directly in GPE and that they shall have priority over all other law . Therefore , the appellants are of the opinion that the candidacy of ORG for a member of the Presidency of GPE was rejected exclusively based on his national / ethnic origin in which they see a violation of LAW No . CARDINAL to ORG which guarantees that the enjoyment of any right set forth by law shall be secured without discrimination and that no one shall be discriminated against by any public authority on any ground including the national / ethnic origin .", "...", "There is no dispute that the provision of LAW , as well as the provision of LAW have a restrictive character in a way that they restrict the rights of citizens with respect to the candidacy of ORG and NORP from the territory of ORG and the NORP from the territory of ORG to stand for election as members of the Presidency of GPE . However , the purpose of those provisions is strengthening of the position of constituent peoples in order to secure that the Presidency is composed of the representatives from amongst these CARDINAL constituent peoples . Taking into account the current situation in GPE , the restriction imposed by LAW , which exist with respect to the appellants’ rights in terms of differential treatment of the appellant ’s candidacy in relation to the candidacy of other candidates who are NORP and are directly elected from the territory of ORG , is justified at this moment , since there is a reasonable justification for such treatment . Therefore , given the current situation in GPE and GPE and specific nature of its constitutional order as well as bearing in mind the current constitutional and law arrangements , the challenged decisions of ORG and ORG did not violate the appellants’ rights under LAW No . CARDINAL to LAW and Article CARDINAL of LAW since the mentioned decisions are not arbitrary and are based on the law . It means that they serve a legitimate aim , that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants’ rights are proportional to the objectives of general community in terms of preservation of the established peace , continuation of dialogue , and consequently creation of conditions for amending the mentioned provisions of LAW . ”", "As regards amendments to the LAW , its LAW provides as follows :", "“ CARDINAL . Amendment procedure . This LAW may be amended by a decision of ORG , including a CARDINAL majority of those present and voting in ORG .", "Human Rights and Fundamental Freedoms . No amendment to this LAW may eliminate or diminish any of the rights and freedoms referred to in LAW or alter the present paragraph . ”", "On DATE ORG successfully amended the LAW for the first time , in accordance with the above procedure . The amendment at issue concerned the status of GPE .", "The Agreement on Civilian Implementation outlines the mandate of the High Representative – the international administrator for GPE , established with the authorisation of ORG by an informal group of ORG actively involved in the peace process ( called ORG ) as an enforcement measure under LAW ( see ORG CARDINAL of DATE ) .", "It is well known that ORG powers are extensive ( see PERSON and Others v. GPE ( dec . ) , nos . CARDINAL and others , DATE ) . On numerous occasions , he has imposed ordinary legislation and has amended ORG ( the Entity Constitutions , as opposed to LAW , are not part of LAW ) . Whether the High Representative ’s powers also cover LAW is , however , less clear . LAW is silent on this matter , but an episode concerning a typing error in LAW would suggest a negative answer . DATE after the entry into force of ORG , some of the international lawyers who had been present during the GPE negotiations realised that a reference in LAW ) was wrong ( the reference to LAW ( a)-(e ) was meant to have been a reference to LAW . In DATE the High Representative , PERSON , wrote a letter to the Secretary of ORG of GPE , Mr PERSON , and proposed to correct the error by invoking PERSON CARDINAL to LAW . Mr PERSON considered that Mr PERSON ’s authority under PERSON CARDINAL did not extend to LAW ( see the text of their correspondence in PERSON , cited above , pp . DATE ) . Shortly thereafter , the error was corrected without any formal decision : the High Representative simply informed the Presidency of GPE and published a corrected version of LAW . What is relevant to the present case is that the official position of ORG has ever since been that LAW is beyond their reach . The speech by PERSON , in his capacity as High Representative , to ORG confirms this ( see the ORG from the CARDINALth Plenary Session of ORG , ORG - PV(CARDINAL)CARDINAL of CARDINAL November CARDINAL , p. CARDINAL ) . The relevant part of his speech reads as follows :", "“ If GPE wishes to join the [ ORG ] and ORG it will need a fully functioning ORG and nothing less . GPE and GPE political leaders are already beginning to realise that they face a choice : to maintain the current constitution and pay the economic , social and political consequences , or make the constitutional changes required to make GPE and GPE a stable , functional and prosperous country within ORG .", "I do not believe that the people of GPE will accept that their constitution should be a barrier to their security and prosperity .", "However , we can not remove that barrier for them .", "It has consistently been the view of [ the ] ORG and successive ORG , including me , that , provided the Parties observe GPE – and there remains a question mark on this in respect of PERSON compliance with GPE , then LAW should be changed only by the prescribed procedures by ORG of GPE and not by ORG . In other words , that , provided GPE is observed , the powers of the High Representative begin and end with the GPE texts , and that any alteration to the LAW enshrined therein is a matter for the people of GPE and their elected representatives to consider . ”", "LAW ( published in Official Gazette of GPE and GPE no . QUANTITY of DATE , amendments published in ORG nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) entered into force on DATE . The relevant provisions of this Act provide :", "“ Each citizen of GPE who has attained CARDINAL ( DATE of age shall have the right to vote and to be elected pursuant to this law . ”", "“ In order to be certified for the elections , an independent candidate must present to ORG his or her application for participation in the elections , which is to contain at least :", "ORG CARDINAL ) signatures of registered voters for elections for members of the Presidency of GPE and GPE ; ... ”", "“ The list of candidates shall contain the name and surname of every candidate on the list , their personal identification number ( JMBG number ) , permanent residence address , declared affiliation with a particular ‘ constituent people’ or the group of ‘ others’ , valid ORG card number and place of issue , as well as a signature of the president of the political party or presidents of the political parties in the coalition . Each candidate ’s declaration of acceptance of candidacy , a statement confirming the absence of impediments referred to in section CARDINAL.CARDINAL(CARDINAL)(CARDINAL ) of this LAW and a statement indicating his or her property situation referred to in section CARDINAL of this Act shall be attached to the list . The declaration and statements must be duly certified .", "The declaration of affiliation with a particular ‘ constituent people’ or the group of ‘ others’ referred to in the paragraph [ immediately ] above shall be used for purposes of the exercise of the right to hold an elected or appointed position for which such declaration is required in the election cycle for which the list has been submitted .", "A candidate shall be entitled not to declare his or her affiliation to a ‘ constituent people’ or the group of ‘ others’ . However , any such failure to declare affiliation shall be considered as a waiver of the right to hold an elected or appointed position for which such declaration is required . ”", "“ The members of the Presidency of GPE who are directly elected from the territory of ORG one PERSON and CARDINAL NORP , shall be elected by voters registered to vote in ORG . A voter registered to vote in ORG may vote for either the PERSON or NORP member of the Presidency , but not for both . The PERSON and NORP member who receives the highest number of votes among candidates from the same constituent people shall be elected .", "The member of the Presidency of GPE who is directly elected from the territory of GPE DATE a NORP – shall be elected by voters registered to vote in ORG . The candidate who receives the highest number of votes shall be elected .", "The mandate for the members of the Presidency of GPE shall be CARDINAL ( DATE . ”", "“ NORP and PERSON delegates from ORG to ORG and GPE shall be elected by the NORP and PERSON caucus , as appropriate , in ORG .", "NORP and PERSON delegates to ORG GPE shall elect delegates from their respective constituent people .", "NORP delegates and delegates of the ‘ others’ to ORG and GPE shall not participate in the process of electing PERSON and NORP delegates for ORG from ORG .", "Delegates from ORG ( CARDINAL NORP ) to ORG and GPE shall be elected by ORG .", "PERSON and NORP delegates and delegates of the ‘ others’ to ORG of the Republika Srpska shall participate in the process of electing delegates from ORG to ORG . ”", "“ PERSON or NORP delegates to ORG and GPE shall be elected in such a way that each political entity participating in the PERSON or NORP caucus or each delegate from the PERSON or the NORP caucus in ORG , shall have the right to nominate CARDINAL or more candidates to the list for the election of PERSON or NORP delegates to ORG .", "Each list may include more candidates than the number of delegates to be elected to ORG . ”", "“ Election of delegates from ORG to ORG and GPE shall be conducted in such a way that each political party or each delegate to ORG of the Republika Srpska shall have the right to nominate one or more candidates to the list for the election of NORP delegates to ORG .", "Each list may include more candidates than the number of delegates to be elected to ORG . ”", "LAW , adopted under the auspices of ORG on DATE , entered into force in respect of GPE on DATE . The relevant part of its LAW provides :", "“ In this Convention , the term ‘ racial discrimination’ shall mean any distinction , exclusion , restriction or preference based on race , colour , descent , or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life . ”", "The relevant parts of LAW read as follows :", "“ In compliance with the fundamental obligations laid down in LAW undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone , without distinction as to race , colour , or national or ethnic origin , to equality before the law , notably in the enjoyment of the following rights :", "...", "( c ) Political rights , in particular the right to participate in elections DATE to vote and to stand for DATE on the basis of universal and equal suffrage , to take part in the government as well as in the conduct of public affairs at any level and to have equal access to public service ;", "... ”", "The Concluding Observations on GPE of ORG , the body of independent experts set up to monitor the implementation of this treaty , read , in the relevant part , as follows ( document CERD / C / BIH / CO/CARDINAL of DATE , paragraph CARDINAL ) :", "“ The ORG is deeply concerned that under ORG and V of LAW , only persons belonging to a group considered by law to be CARDINAL of GPE ‘ constituent peoples’ ( NORP , NORP , and NORP ) , which group also constitutes the dominant majority within the Entity in which the person resides ( e.g. PERSON and NORP within ORG , and NORP within ORG ) , can be elected to ORG and to the tripartite Presidency of GPE . The existing legal structure therefore excludes from ORG and the Presidency all persons who are referred to as ‘ Others’ , that is persons belonging to national minorities or ethnic groups other than NORP , NORP , or NORP . Although the tripartite structure of ORG principal political institutions may have been justified , or even initially necessary to establish peace following the armed conflict within the territory of ORG , the ORG notes that legal distinctions that favour and grant special privileges and preferences to certain ethnic groups are not compatible with Articles CARDINAL and CARDINAL ( c ) of the Convention . The ORG further notes that this is especially true when the exigency for which the special privileges and preferences were undertaken has abated . ( Articles CARDINAL ( CARDINAL ) and CARDINAL ( c ) ) .", "The ORG urges ORG to proceed with amending the relevant provisions of LAW and LAW , with a view to ensuring the equal enjoyment of the right to vote and to stand for election by all citizens irrespective of ethnicity . ”", "LAW , adopted under the auspices of ORG on DATE , entered into force in respect of GPE on DATE . The following are its relevant provisions :", "“ ORG to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present LAW , without distinction of any kind , such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”", "“ Every citizen shall have the right and the opportunity , without any of the distinctions mentioned in LAW and without unreasonable restrictions :", "( a ) To take part in the conduct of public affairs , directly or through freely chosen representatives ;", "( b ) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot , guaranteeing the free expression of the will of the electors ;", "( c ) To have access , on general terms of equality , to public service in his country . ”", "“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law . In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”", "The Concluding Observations on GPE of ORG , the body of independent experts set up to monitor the implementation of this treaty , read , in the relevant part , as follows ( document LAW of DATE , paragraph CARDINAL) :", "“ The ORG is concerned that after the rejection of the relevant constitutional amendment on DATE , LAW continue to exclude ‘ Others’ , i.e. persons not belonging to CARDINAL of ORG ‘ constituent peoples’ ( NORP , NORP and NORP ) , from being elected to ORG and to the tripartite Presidency of GPE . ( Articles CARDINAL , DATE and DATE ) .", "ORG should reopen talks on the constitutional reform in a transparent process and on a wide participatory basis , including all stakeholders , with a view to adopting an electoral system that guarantees equal enjoyment of the rights under LAW to all citizens irrespective of ethnicity . ”", "NORP In becoming a member of ORG DATE , GPE undertook to “ review within DATE , with the assistance of ORG ) , the electoral legislation in the light of ORG , and to revise it where necessary ” ( see Opinion CARDINAL(CARDINAL ) of ORG of ORG of DATE , paragraph CARDINAL(iv)(b ) ) . Thereafter , ORG of ORG has periodically reminded GPE of this post - accession obligation and urged it to adopt a new constitution before DATE with a view to replacing “ the mechanisms of ethnic representation by representation based on the civic principle , notably by ending the constitutional discrimination against ‘ Others’ ” ( see Resolution CARDINAL ( DATE ) of DATE , paragraph CARDINAL ; Resolution CARDINAL ( DATE ) of DATE , paragraph CARDINAL ; and LAW ( DATE ) of DATE , paragraph CARDINAL) .", "ORG , ORG advisory body on constitutional matters , adopted a number of Opinions in this connection .", "The Opinion on the constitutional situation in GPE and the powers of ORG ( document LAW of DATE ) reads , in the relevant part , as follows :", "“ CARDINAL . On DATE ORG of ORG adopted Resolution CARDINAL on ‘ Strengthening of democratic institutions in GPE and GPE . LAW of the ORG asks ORG to examine several constitutional issues in GPE and GPE .", "...", "GPE is a country in transition facing severe economic problems and desiring to take part in NORP integration . The country will only be able to cope with the numerous challenges resulting from this situation if there is a strong and effective government . The constitutional rules on the functioning of the State organs are however not designed to produce strong government but to prevent the majority from taking decisions adversely affecting other groups . It is understandable that in a post - conflict situation there was ( and is ) insufficient trust between ethnic groups to allow government on the basis of the majoritarian principle alone . In such a situation specific safeguards have to be found which ensure that all major groups , in GPE the constituent peoples , can accept the constitutional rules and feel protected by them . As a consequence the GPE LAW ensures the protection of the interests of the constituent peoples not only through territorial arrangements reflecting their interests but also through the composition of the State organs and the rules on their functioning . In such a situation , a balance has indeed to be struck between the need to protect the interests of all constituent peoples on the one hand and the need for effective government on the other . However , in the GPE , there are many provisions ensuring the protection of the interests of the constituent peoples , inter alia : the vital interest veto in ORG , the CARDINAL - chamber system and the collective Presidency on an ethnic basis . The combined effect of these provisions makes effective government extremely difficult , if not impossible . Hitherto the system has more or less functioned due to the paramount role of ORG . This role is however not sustainable .", "The vital interest veto", "The most important mechanism ensuring that no decisions are taken against the interest of any constituent people is the vital interest veto . If the majority of the PERSON , NORP or NORP delegates in ORG declare that a proposed decision of ORG is destructive to a vital interest of their people , the majority of PERSON , NORP and NORP delegates have to vote for the decision for it to be adopted . The majority of delegates from another people may object to the invocation of the clause . In this case a conciliation procedure is foreseen and ultimately a decision is taken by ORG as to the procedural regularity of the invocation . It is noteworthy that the LAW does not define the notion of vital interest veto , contrary to ORG which provide a ( excessively broad ) definition .", "It is obvious , and was confirmed by many interlocutors , that this procedure entails a serious risk of blocking decision - making . Others argued that this risk should not be overestimated since the procedure has rarely been used and ORG in a decision of DATE started to interpret the notion [ see decision U-CARDINAL/CARDINAL on the vital interest veto against LAW on Higher Education ] . The decision indeed indicates that the ORG does not consider that the vital interest is a purely subjective notion within the discretion of each member of parliament and which would not be subject to review by the ORG . On the contrary , the ORG examined the arguments put forward to justify the use of the vital interest veto , upheld CARDINAL argument and rejected another .", "The Commission is nevertheless of the opinion that a precise and strict definition of vital interest in the LAW is necessary . The main problem with veto powers is not their use but their preventive effect . Since all politicians involved are fully conscious of the existence of the possibility of a veto , an issue with respect to which a veto can be expected will not even be put to the vote . Due to the existence of the veto , a delegation taking a particularly intransigent position and refusing to compromise is in a strong position . It is true that further case - law from ORG may provide a definition of the vital interest and reduce the risks inherent in the mechanism . This may however take a long time and it also seems inappropriate to leave such a task with major political implications to the ORG alone without providing it with guidance in the text of the LAW .", "Under present conditions within GPE , it seems unrealistic to ask for a complete abolition of the vital interest veto . The Commission nevertheless considers that it would be important and urgent to provide a clear definition of the vital interest in the text of the LAW . This definition will have to be agreed by the representatives of the CARDINAL constituent peoples but should not correspond to the present definition in the Entity Constitutions which allows practically anything being defined as vital interest . It should not be excessively broad but focus on rights of particular importance to the respective peoples , mainly in areas such as language , education and culture .", "Entity veto", "In addition to the vital interest veto , LAW ( d ) of the LAW provides for a veto by CARDINAL of the delegation from either Entity . This veto , which in practice seems potentially relevant only for ORG , appears redundant having regard to the existence of the vital interest veto .", "Bicameral system", "Article IV of the LAW provides for a bicameral system with ORG and a ORG both having the same powers . Bicameral systems are typical for federal ORG and it is therefore not surprising that the GPE LAW opts for CARDINAL chambers . However , the usual purpose of the second chamber in federal GPE is to ensure a stronger representation of the smaller entities . CARDINAL chamber is composed on the basis of population figures while in the other either all entities have the same number of seats ( GPE , GPE ) or at least smaller entities are overrepresented ( GPE ) . In GPE this is quite different : in both chambers CARDINAL of the members come from GPE , the difference being that in ORG only the Bosniacs and NORP from the Federation and the NORP from ORG are represented . ORG is therefore not a reflection of the federal character of the ORG but an additional mechanism favouring the interests of the constituent peoples . The main function of ORG under the LAW is indeed as the chamber where the vital interest veto is exercised .", "The drawback of this arrangement is that ORG becomes the chamber where legislative work is done and necessary compromises are made in order to achieve a majority . The role of ORG is only negative as a veto chamber , where members see as their task to exclusively defend the interests of their people without having a stake in the success of the legislative process . It would therefore seem preferable to move the exercise of the vital interest veto to ORG and abolish ORG . This would streamline procedures and facilitate the adoption of legislation without endangering the legitimate interests of any people . It would also solve the problem of the discriminatory composition of ORG .", "The collective Presidency", "Article V of the LAW provides for a collective Presidency with one PERSON , CARDINAL NORP and CARDINAL NORP member and a rotating chair . The Presidency endeavours to take its decisions by consensus ( Article V § CARDINAL ( c ) ) . In case of a decision by a majority , a vital interest veto can be exercised by the member in the minority .", "A collective Presidency is a highly unusual arrangement . As regards the representational functions of Head of ORG , these are more easily carried out by CARDINAL person . At the top of the executive there is already CARDINAL collegiate body , ORG , and adding a second collegiate body does not seem conducive to effective decision - making . This creates a risk of duplication of decision - making processes and it becomes difficult to distinguish the powers of ORG and of the Presidency . Moreover , the Presidency will either not have the required technical knowledge available within ministries or need substantial staff , creating an additional layer of bureaucracy .", "A collective Presidency therefore does not appear functional or efficient . Within the context of GPE , its existence seems again motivated by the need to ensure participation by representatives from all constituent peoples in all important decisions . A single President with important powers seems indeed difficult to envisage for GPE .", "NORP The best solution therefore would be to concentrate executive power within ORG as a collegiate body in which all constituent peoples are represented . Then a single President as Head of ORG should be acceptable . Having regard to the multi - ethnic character of the country , an indirect election of the President by ORG with a majority ensuring that the President enjoys wide confidence within all peoples would seem preferable to direct elections . Rules on rotation providing that a newly elected President may not belong to the same constituent people as his predecessor may be added .", "...", "In the present case , the distribution of posts in the State organs between the constituent peoples was a central element of ORG making peace in GPE and GPE possible . In such a context , it is difficult to deny legitimacy to norms that may be problematic from the point of view of non - discrimination but necessary to achieve peace and stability and to avoid further loss of human lives . The inclusion of such rules in the text of the LAW [ of GPE ] at that time therefore does not deserve criticism , even though they run counter to the general thrust of the LAW aiming at preventing discrimination .", "This justification has to be considered , however , in the light of developments in GPE since the entry into force of the LAW . GPE has become a member of ORG and the country has therefore to be assessed according to the yardstick of common NORP standards . It has now ratified the [ NORP Convention on Human Rights ] and LAW No . CARDINAL [ thereto ] . As set forth above , the situation in GPE has evolved in a positive sense but there remain circumstances requiring a political system that is not a simple reflection of majority rule but which guarantees a distribution of power and positions among ethnic groups . It therefore remains legitimate to try to design electoral rules ensuring appropriate representation for various groups .", "DATE . This can , however , be achieved without entering into conflict with international standards . It is not the system of consensual democracy as such which raises problems but the mixing of territorial and ethnic criteria and the apparent exclusion from certain political rights of those who appear particularly vulnerable . It seems possible to redesign the rules on the Presidency to make them compatible with international standards while maintaining the political balance in the country .", "A multi - ethnic composition can be ensured in a non - discriminatory way , for example by providing that not CARDINAL member of the Presidency may belong to the same people or the Others and combining this with an electoral system ensuring representation of both Entities . Or , as suggested above , as a more radical solution which would be preferable in the view of the Commission , the collective Presidency could be abolished and replaced by an indirectly elected President with very limited powers .", "...", "ORG is a chamber with full legislative powers . LAW CARDINAL to the [ ORG ] is thereby applicable and any discrimination on ethnic grounds is thereby prohibited by LAW ] . As to a possible justification , the same considerations as with respect to the Presidency apply . While it is a legitimate aim to try to ensure an ethnic balance within ORG in the interest of peace and stability , this can justify ethnic discrimination only if there are no other means to achieve this goal and if the rights of minorities are adequately respected . For ORG it would for example be possible to fix a maximum number of seats to be occupied by representatives from each constituent people . Or , as argued above , a more radical solution which would have the preference of the Commission , could be chosen and ORG simply be abolished and the vital national interest mechanism be exercised within ORG . ”", "The Opinion on different proposals for the election of the Presidency of GPE ( LAW of DATE ) , in the relevant part , provides :", "“ CARDINAL . NORP By letter dated DATE the Chairman of the Presidency of GPE , Mr ORG , asked ORG to provide an ORG on CARDINAL different proposals for the election of the Presidency of this country . This request was made in the framework of negotiations on constitutional reform between the main political parties in GPE . The issue of the election of the Presidency remains to be resolved in order to reach agreement on a comprehensive reform package .", "...", "Comments on Proposal I", "Proposal I would consist of maintaining the present rules on the election and composition of the Presidency , with CARDINAL PERSON and CARDINAL NORP elected from the territory of the GPE and CARDINAL NORP elected from the territory of PERSON . In its [ Opinion on the constitutional situation in GPE and the powers of the High Representative ] the Commission raised serious concerns as to the compatibility with LAW No . CARDINAL to ORG such a rule , which formally excludes Others as well as ORG and NORP from PERSON and NORP from the GPE from being elected to the Presidency . Maintaining this rule as it stands should therefore be excluded and Proposal I be rejected .", "Comments on Proposal II", "Proposal II , which is not drafted as text to be included in the LAW but as a summary of possible constitutional content , maintains the system of directly electing CARDINAL members of the Presidency from the Federation and CARDINAL from PERSON , however without mentioning any ethnic criteria for the candidates . The de jure discrimination pointed out in ORG would therefore be removed and adoption of this proposal would constitute a step forward . The Proposal also includes a rotation of the President of the Presidency DATE . Within the logic of a collective Presidency , this appears as a rational solution .", "By contrast , the Proposal lacks clarity as to the pluri - ethnic composition of the Presidency . The collective Presidency was introduced , and supposedly will now be maintained , in order to ensure that no single ORG organ is dominated by a representative of a single constituent people . As it stands , under the proposal it would be possible to , for example , elect CARDINAL FAC from the Federation to the Presidency . Legally , this drawback could be remedied in the framework of the Proposal by providing that not CARDINAL member of the Presidency may belong at the same time to the same constituent people or the group of Others . It is the understanding of the Commission that the intention is indeed to include such a provision in the LAW in case this proposal is adopted .", "NORP However , the problem would result of having to possibly exclude from the Presidency candidates who have received a higher number of votes . In the GPE it is quite possible that QUANTITY Bosniacs would attain the highest number of votes . In this case , a candidate who obtained more votes would have to be barred from the Presidency in favour of a candidate who obtained fewer votes . These issues should be regulated clearly at the level of the LAW and not be left to ordinary law .", "As a further drawback , de facto Bosniacs and NORP from ORG and NORP from the GPE would also continue to have no realistic possibility to elect a candidate of their preference .", "Furthermore , the election of the Head of ORG would continue to take place on an Entity basis while it would be desirable to move it to the ORG level as part of the overall approach of strengthening the ORG .", "As a minor issue , the proposal would also allow members of the Presidency to hold a leadership position in a political party . This does not seem in line with the overall aim of constitutional reform of transforming the Presidency from an executive body into a ( collective ) Head of ORG .", "To sum up , PERSON is a clear improvement with respect to the present constitutional situation . However , it has a number of drawbacks , including the risk that candidates with less votes than others are elected and it does not contribute to the overall aims of the constitutional reform of moving power to ORG and strengthening the ORG level .", "Proposal III", "Proposal III differs more markedly from the present constitutional situation by introducing a complicated procedure of indirect elections for the Presidency . As set forth above , the main preference of the ORG is for the indirect election of a single President with reduced powers . But also in the case of a collective Presidency , the ORG maintains its preference for indirect elections .", "The reason is , first of all , that CARDINAL of the main aims of the constitutional reform would be to reduce the powers of the Presidency and to concentrate executive power in ORG . This change will be more difficult to bring about if the Presidency does have the legitimacy of a direct popular vote .", "Moreover , in an indirect election it is easier to devise mechanisms ensuring the desired pluri - ethnic composition of the Presidency . It offers more possibilities for inter - ethnic cooperation and compromise while direct elections for de facto separate ethnic slots provide an incentive to vote for the person considered as the strongest advocate of the respective constituent people and not for the candidate best suited to defend the interests of the country as a whole .", "Finally , the Proposal moves the election to ORG . It is indeed desirable and in line with the overall aim of strengthening the ORG to have the election of the Head of ORG at this level .", "From the point of view of the overall approach , Proposal III therefore seems preferable . There are nevertheless some drawbacks .", "First of all , the proposal seems complicated with too many steps and possibilities for stalemate . Nominations can be put forward by members of ORG or ORG , the selection of the candidates takes place by the CARDINAL separate ethnic caucuses in ORG and thereafter the slate of candidates has to be confirmed both by the CARDINAL caucuses in ORG and by ORG .", "Within the parameters of the proposal , it would seem preferable to have a simpler procedure with more focus on ORG as the body having direct democratic legitimacy derived from the people as a whole . The possibility to nominate candidates should be reserved to members of ORG , selection among these candidates could take place in the CARDINAL separate ethnic caucuses of ORG to ensure that the interests of all CARDINAL constituent peoples are respected and the slate of candidates would have to be confirmed by the majority of the composition of ORG , ensuring that all CARDINAL members have legitimacy as representatives of the people of GPE as a whole .", "In addition , it should be clarified how the positions of the President and Vice - Presidents are to be distributed . As it stands , Proposal III leaves this important decision implicitly to backroom dealing between the CARDINAL ethnic caucuses since a slate identifying President and Vice - Presidents has to be submitted to ORG , while no indication is provided on how this choice has to be made . This seems the worst possible solution and likely to lead to stalemate . The rotation envisaged by PERSON seems more feasible .", "There are also other aspects of Proposal III which are not in accordance with the preferences of ORG . In its above - mentioned ORG , the ORG argued in favour of abolishing ORG . Giving it a strong role in the selection of the Presidency can not therefore be considered a positive step . The role of ethnic caucuses makes the election of candidates not belonging to a constituent people extremely unlikely . This is however not peculiar to this Proposal but reflects the political situation . The proposal at least ensures that the representatives of ORG in ORG will take part in the vote and that NORP from ORG and NORP from PERSON are no longer disadvantaged since their representatives in ORG will be able to vote for the candidates of their choice .", "Even in the framework of a collective Presidency , solutions for indirect elections could be devised , which would appear preferable . For example , within ORG , slates of CARDINAL candidates not coming from the same constituent people or the group of Others could be nominated and the vote could take place between such slates . This would nevertheless be a different proposal and not an amendment to Proposal III .", "To sum up , Proposal III is also a clear improvement with respect to the present situation . If it were to be adjusted as suggested in DATE , it would appear suitable as a solution ( although not an ideal one ) for the first stage of constitutional reform .", "Conclusions", "In conclusion , the ORG strongly welcomes that the political parties in GPE have found the courage to try adopting a comprehensive constitutional reform before the forthcoming elections in DATE . It acknowledges that a reform adopted at this stage can have an interim character only , as a step towards the comprehensive reform the country clearly needs .", "With respect to the CARDINAL proposals submitted to the ORG , adoption of the first proposal could only be regarded as a failure of constitutional reform on this issue and should be excluded . By contrast , both PERSON and Proposal III deserve , subject to some additions and amendments , to be considered at the present stage as important steps forward , but by no means as ideal solutions .", "Between Proposal II and PERSON , the Commission would – though not without hesitation DATE give preference to Proposal III , subject to some adjustments as indicated above . An indirect election in line with the aim of the constitutional reform of reducing the powers of the Presidency makes it easier to ensure a balanced composition of the Presidency and thereby corresponds better to the raison d’être of DATE unusual – institution . The Proposal also moves the election to the ORG level , in accordance with the overall aim to strengthen ORG . However , sight should not be lost of the ultimate aim of constitutional reform in this area : having in future a single President elected in a manner ensuring that he or she enjoys trust beyond the ethnic group to which he or she belongs . ”", "The relevant part of the ORG on the draft amendments to LAW ( ORG - AD(CARDINAL)CARDINAL of DATE ) provides as follows :", "“ CARDINAL . NORP By letter dated DATE the Chairman of the Presidency of GPE , Mr ORG , asked ORG to give an Opinion on the text of the agreement on the modalities of the first phase of constitutional reform reached by the leaders of political parties in GPE on DATE . Since the constitutional reform has to be adopted urgently in order to make it possible to take it into account at the parliamentary elections scheduled for DATE , he expressed the wish to receive the Opinion of the Venice Commission ‘ shortly’ .", "...", "PERSON to LAW on ORG", "...", "The main aim of the LAW is to move from a bicameralism with CARDINAL equal chambers to a new system where ORG ... would have only limited powers with a focus on the vital national interests veto . The new structure of the LAW , systematically putting ORG ... first , reflects this aim . The reform would be a step in the direction of the ORG recommendation to abolish the [ ORG ] and to streamline decision - making within the ORG institutions .", "...", "Sub - section ( d ) would increase the number of members of the [ House of NORP ] from CARDINAL to CARDINAL . The justification of the increase in the membership of this ORG is less apparent since its powers are greatly reduced . Nevertheless , this is an issue entirely within the discretion of the national authorities . If they feel that this increase is required to ensure that the ORG adequately represents the political spectrum , this step seems justifiable .", "More problematic is the circumstance that membership in this ORG remains limited under sub - section ( d ) to people belonging to CARDINAL of the CARDINAL constituent peoples . In its Opinion [ on the constitutional situation in GPE and the powers of the High Representative ] ORG noted that the previous composition of this ORG along similar lines seemed to contradict LAW ] in conjunction with LAW No . CARDINAL ] .", "Following the reform ORG would however no longer be a full legislative chamber but a body dealing mainly with the vital national interests veto . It seems therefore questionable whether LAW No . CARDINAL ] and thereby LAW of the [ Convention ] would still be applicable . The problem of the compatibility of this provision with LAW No . CARDINAL [ to the Convention ] remains however . In the absence of any case - law on this LAW , it can be interpreted only with prudence . ...", "In the present case the legitimate aim could be seen in the main role of the ORG as a body in which the vital national interests veto is exercised . The [ GPE LAW reserves the right to exercise this veto to the CARDINAL constituent peoples and does not give it to the Others . From that perspective it would not seem required to include ‘ LOC in the composition of this ORG . The other responsibilities of the ORG , to participate in the election of the Presidency and to approve constitutional amendments – though not beyond criticism DATE , do not lead to a different result . They show that the function of the [ House of NORP ] is to be a corrective mechanism , ensuring that the application of the democratic principle reflected in the composition of the [ ORG ] does not disturb the balance among the CARDINAL constituent peoples . The need for such a mechanism seems still to be felt in [ GPE ] . In that case it seems possible to regard this need as a legitimate aim justifying an unequal treatment of Others in respect to representation in the [ ORG ] .", "...", "LAW V of the LAW on the Presidency", "The main aim of the LAW is to strengthen the powers of ORG and increase its efficiency and reduce the role of the Presidency . This is entirely in line with the Opinion [ on the constitutional situation in GPE and the powers of the High Representative ] of ORG . In addition , the Commission would have preferred having a single President instead of a collective Presidency . This does however not seem politically possible at the moment . LAW takes a first step in this direction .", "...", "ORG adopted an Opinion on the CARDINAL alternative proposals for electing the Presidency at its last session ( CDL - AD(CARDINAL)CARDINAL ) . It would serve no purpose to re - open this discussion at the present moment . The absence of a dead - lock breaking mechanism if the [ ORG ] refuses to confirm the proposal of the [ ORG ] is however a concern .", "... ”", "ORG against Racism and Intolerance ( ECRI ) is ORG independent human rights monitoring body specialised in combating racism , racial discrimination , xenophobia , anti - Semitism and intolerance . In its General Policy Recommendation No . CARDINAL , adopted on DATE , ORG defines racism as “ the belief that a ground such as race , colour , language , religion , nationality or national or ethnic origin justifies contempt for a person or a group of persons , or the notion of superiority of a person or a group of persons ” .", "NORP In a report concerning the general elections held in DATE , ORG , the lead agency in LOC in election observation , held as follows :", "“ The DATE general elections in GPE and GPE were the first elections since the DATE ORG to be fully administered by the GPE and GPE authorities . The manner in which these elections were conducted was generally in line with international standards for democratic elections , although further efforts are needed , particularly with regard to the vote count . Therefore , overall , the elections represented further progress in the consolidation of democracy and the rule of law . However , it was regrettable that , due to constitutional ethnicity - based limitations to the right to stand for office , the elections were again in violation of LAW No . CARDINAL to ORG ) and of the commitments made to ORG , as well as LAW the OSCE DATE ORG . ”", "In DATE GPE signed and ratified LAW with ORG and thereby committed itself to addressing ORG priorities . CARDINAL of the key priorities for GPE , expected to be accomplished within DATE , is to “ amend electoral legislation regarding members of the GPE Presidency and ORG delegates to ensure full compliance with ORG post - accession commitments ” ( see ORG of DATE on the principles , priorities and conditions contained in ORG with GPE and repealing Decision CARDINAL , Official Journal of ORG ( DATE ) ) .", "On DATE ORG adopted its DATE strategy document explaining its policy on enlargement . On DATE progress reports were published , in which the Commission services monitor and assess the achievements of each of the candidate countries and potential candidates ( such as GPE ) over DATE ." ]

[ "14", "P1" ]

[ "P1-3" ]

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[ "ORG The applicant is a NORP citizen and a Gypsy . She lives with her CARDINAL children in caravans parked on land owned by her off FAC , GPE , GPE , GPE . She is married but separated from her husband in DATE .", "ORG As far back as can be traced , the applicant 's family have been NORP based in GPE . She has lived in caravans all her life and as a child travelled with her parents in this area . She continued this itinerant life until shortly before the birth of her third child in DATE .", "ORG In DATE the applicant 's sister and brother - in - law acquired a QUANTITY ( QUANTITY ) site off FAC , GPE , and were granted personal , temporary planning permission for CARDINAL living unit , comprising CARDINAL caravans .", "ORG At her sister 's invitation she moved on to this site in DATE when she was expecting her third child , because she had found it hard being constantly on the move with young children . During this period of settled living the CARDINAL eldest children were able to attend a local school , where they integrated well .", "ORG On an unspecified date in DATE , the applicant acquired part of her sister 's land ( QUANTITY ) to the rear of the site , furthest away from FAC . She moved her CARDINAL caravans on to this plot .", "ORG Her land is now part of a group of CARDINAL adjacent sites which are occupied by NORP . CARDINAL plot has received permanent planning permission for the residential use of CARDINAL caravans . The site occupied by the applicant 's sister enjoyed temporary permission until DATE . The remaining CARDINAL sites have been occupied without planning permission and the occupants have been subject to enforcement proceedings ( see paragraph CARDINAL below ) . The occupants of CARDINAL of those sites have also introduced applications before ORG .", "ORG The applicant has stated that she intends to resume her travelling life sometime in the future , and to pass on this tradition to her children . In DATE she travelled with her sister to LOC in GPE because her father - in - law was dying . She was able to park on waste ground for DATE , but had to move on shortly after the funeral .", "On DATE the applicant applied retrospectively to ORG for planning permission for the CARDINAL caravans on her site .", "She was refused on DATE on the grounds that ( CARDINAL ) adequate provision had been made for Gypsy caravans elsewhere in the GPE area , which had in the ORG 's opinion reached \" saturation point \" for Gypsy accommodation ; ( CARDINAL ) the planned use of the land would detract from the rural and open quality of the landscape , contrary to the aim of the local development plan which was to protect the countryside from all but essential development ( see paragraph CARDINAL below ) ; and ( CARDINAL ) FAC was an agricultural drove road which was too narrow to allow CARDINAL vehicles to pass in safety .", "ORG On DATE the ORG issued an enforcement notice requiring the caravans to be removed within DATE .", "The applicant appealed against the enforcement notice to the Secretary of ORG for the Environment ( see paragraph CARDINAL below ) .", "ORG An inspector was appointed by the Secretary of ORG to report on the appeal ( see paragraph CARDINAL below ) . The inspector visited the site and considered written representations submitted by the applicant and ORG .", "In her report issued on DATE the inspector observed that the local authority had granted planning permission to CARDINAL caravan sites between the applicant 's site and FAC ( the applicant 's sister 's site and another ) , and to an agricultural workshop on land to the east of the site ( which was occupied at the time of the inspection by an unauthorised road haulage business ) . The applicant 's caravans were screened from the road because of these authorised and unauthorised developments . However , the inspector wrote that :", "\" ... whether seen or not , the development subject of these notices [ i.e. the applicant 's caravan site ] extends development further from the road than that permitted . It thus intrudes into the open countryside , contrary to the aim of LAW [ see paragraph CARDINAL below ] to protect the countryside from all but essential development . \" The inspector also found that the access road to the site was too narrow for CARDINAL vehicles to pass , and thus that the use of the site for caravans would not be in the interests of road safety . She considered the applicant 's special status as a Gypsy and observed that in DATE there were over sixty Gypsy families on unauthorised sites in the district of GPE . She continued : \" It is therefore clear in my mind that a need exists for more authorised spaces . ... Nevertheless , I consider it important to keep concentrations of sites for gypsies small , because in this way they are more readily accepted by the local community . ... [ T]he concentration of gypsy sites in GPE has reached the desirable maximum and I do not consider that the overall need for sites should , in this case , outweigh the planning objections . \"", "She concluded by recommending that the appeal be dismissed .", "ORG The Secretary of ORG dismissed the appeal on DATE . The reasons given included the following :", "\" The decisive issue in regard to the planning merits of your appeals is considered to be whether the undisputed need for additional gypsies ' caravan site provision , in the administrative areas of ORG , and of ORG , is so pressing that it should be permitted to override the objections on planning policy and highway safety grounds to the retention of the use of the appeal site as a residential caravan site for gypsies . On this approach , the view is taken that the objections to the continued use of the appeal site as a residential gypsy caravan site are so strong , on planning policy and highway safety grounds , that a grant of planning permission could not be justified , either on a temporary or personal basis . In reaching this conclusion , full consideration has been given to policy advice in the ORG 's Circular CARDINAL/CARDINAL , giving guidance to ORG on the need to provide adequate accommodation in the form of caravan sites , for gypsies residing in or resorting to their area . However , on the available evidence , the view is taken , in agreement with the officer 's appraisal , that the concentration of gypsy caravan sites around the PERSON area has reached the desirable maximum , and the overall need for additional sites should not outweigh the planning and highway objections arising from the continued use of this particular site . \"", "The applicant did not appeal to ORG because she was advised by counsel that no grounds arose in her case ( see paragraph CARDINAL below ) .", "ORG The applicant has been prosecuted for failure to comply with the enforcement notice of DATE . On DATE she was fined £ MONEY and required to pay £ MONEY costs . She has again been prosecuted on QUANTITY occasions after the introduction of her application to the Commission on DATE . On DATE the magistrates granted her an absolute discharge but ordered her to pay the prosecution costs . Finally , on DATE she was fined £ MONEY and ordered to pay £ MONEY costs .", "ORG By a letter dated DATE , ORG informed ORG that the Secretary of ORG had decided to designate the area of GPE under section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) . It was noted that a small number of NORP still remained on unauthorised sites but that , in light of the provision made for sites which was greater than in any other district , it was considered \" not expedient for adequate accommodation to be provided for NORP residing in or resorting to GPE district \" . The order designating the district of GPE came into force on DATE , but no longer applies because of the provisions of ORG see paragraph CARDINAL below ) .", "ORG On DATE the applicant again applied for permission to station her caravans on her site , in the light of a change in the law ( see paragraphs CARDINAL below ) .", "ORG She was refused on DATE on the grounds that ( CARDINAL ) local planning policy dictated that development in open countryside should be restricted and no evidence to justify a departure from this policy had been advanced , and ( CARDINAL ) adequate provision for NORP had been made along FAC ( see paragraph CARDINAL below ) .", "ORG The applicant ( together with others occupying the neighbouring sites ) appealed against this decision to the Secretary of ORG . A report was prepared by an inspector in DATE . The inspector considered , first , whether the continued use of the land as a Gypsy caravan site would detract from the rural nature of the area , and , secondly , if so , whether there were any special circumstances sufficient to outweigh this objection . She found that the road safety objection , which had been CARDINAL of the grounds of refusal in DATE ( see paragraph CARDINAL above ) , no longer applied . With regard to the first question , the inspector found that the applicant had a mobile home , CARDINAL touring caravans and CARDINAL sheds on her site . These were hidden from the road by the caravans on the sites in front and by an agricultural engineering business , the same depth as the applicant 's site to the east . They were visible from other vantage points but could be adequately screened by planting hedges . However , she concluded that :", "\" ... the continued use of the rear plots considerably extends the depth of development south of the road . This intensification of use in itself inevitably detracts from the rural appearance and generally open character of the area , contrary to the objectives of national and local countryside policy . I must therefore conclude that the continued occupation of the land as gypsy caravan sites is harmful to the character and appearance of the countryside . \"", "ORG", "\" a relevant consideration that there is available alternative accommodation close by , which would enable the appellants to stay in the PERSON area and their children to continue at the local schools \" .", "On the other hand ,", "\" little weight [ could ] be given to the private sites at ORG . No substantive evidence was given by either the ORG or the appellants as to whether plots were actually available there or their price \" .", "The inspector considered the impact of Circular DATE ( see paragraph CARDINAL below ) on the applicant 's case , but concluded that , although it placed greater emphasis on the provision of sites by NORP themselves , it was government policy that proposals for Gypsy sites should continue to be determined solely in relation to land - use factors . She concluded that there had been no material changes since the last appeal was heard and the present appeal should therefore be dismissed .", "ORG Accepting the inspector 's conclusions and recommendations , the Secretary of ORG dismissed the appeal on DATE . The applicant has filed an appeal to ORG , which is now pending . ORG", "ORG In DATE ORG opened an official Gypsy caravan site in FAC , QUANTITY away from the applicant 's land . The site consists of CARDINAL pitches , each comprising a fenced , partially grassed area with hard standing for caravans and its own brick building containing a kitchen , shower and toilet . Each pitch is designed to accommodate CARDINAL permanent caravan , CARDINAL touring caravan , CARDINAL lorry and CARDINAL car . They are joined by a central road and the site stands in open countryside .", "ORG DATE ( when the site opened ) and DATE , CARDINAL vacancies have arisen there . ORG contacted the applicant by letters dated DATE and DATE , informing her of the possible availability of pitches on this site and advising her to apply for CARDINAL to ORG . The applicant has never taken any action in this regard .", "ORG Since the site opened , the following incidents have reportedly taken place there : ( CARDINAL ) an unsubstantiated allegation in DATE that CARDINAL of the residents was in possession of a firearm ; ( CARDINAL ) a fight in DATE during which a resident on the site was punched in the eye by another ; ( CARDINAL ) in DATE a car was brought on to the site and set alight ; ( CARDINAL ) in DATE there was an incident of domestic violence ; ( CARDINAL ) also in DATE , the warden 's office on the site was burgled and damaged when temporarily vacant ; ( CARDINAL ) in DATE a site resident was convicted of conduct likely to cause a breach of the peace after exchanging words and threatening gestures with a ORG refuse collector on the site ; ( CARDINAL ) in DATE CARDINAL pitches were damaged by vandalism and/or fire .", "ORG There are authorised privately run sites at ORG , QUANTITY from GPE . In DATE the cost of purchasing a pitch on CARDINAL of them reportedly varied MONEY .", "ORG DATE ( as amended by LAW DATE ) ( \" LAW \" ) consolidated pre - existing planning law .", "ORG It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of the DATE Act ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .", "ORG An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) . The local development plan in GPE restricts development in the countryside to that essential to the efficient operation of particular rural uses , such as horticulture , agriculture and forestry .", "ORG The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , para . CARDINAL ) . There is a further appeal to ORG on the ground that the Secretary of ORG 's decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .", "ORG If a development is carried out without the grant of the required planning permission , the local authority may issue an \" enforcement notice \" , if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .", "ORG There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .", "ORG Again there is a further right of appeal \" on a point of law \" to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector 's decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority . ORG", "ORG Part II of LAW DATE ( \" the CARDINAL Act \" ) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to NORP as a result of planning and other legislation and social changes in the post - war years . LAW defined \" gipsies \" as : \" persons of nomadic habit of life , whatever their race or origin , but does not include members of an organised group of travelling showmen , or of persons engaged in travelling circuses , travelling together as such \" .", "Section CARDINAL of the DATE Act provided that it should be the duty of local authorities : \" to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area \" . The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) .", "ORG Where the Secretary of ORG was satisfied either that a local authority had made adequate provision for the accommodation of GPE , or that it was not necessary or expedient to make such provision , he could \" designate \" that district or county ( section CARDINAL of the DATE Act ) . The effect of designation was to make it an offence for any Gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway , on any other unoccupied land or on any occupied land without the consent of the occupier ( section CARDINAL ) . In addition , section CARDINAL of the DATE Act gave to local authorities within designated areas power to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of section CARDINAL .", "ORG By DATE it had become apparent that the rate of site provision under section CARDINAL of the CARDINAL Act was inadequate , and that unauthorised encampments were leading to a number of social problems . In DATE , therefore , the Government asked Sir PERSON to carry out a study into the operation of LAW . He reported in DATE ( Accommodation for Gypsies : A report on the working of GPE DATE , \" ORG \" ) . Sir PERSON estimated that there were CARDINAL NORP living in GPE and GPE . He found that : \" QUANTITY - and - a - half years after the coming into operation of Part II of LAW , provision exists for CARDINAL of the estimated total number of gypsy families with no sites of their own . CARDINAL of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law : when they stop for TIME they have no alternative but to break the law . \" The report made numerous recommendations for improving this situation .", "ORG Circular CARDINAL/CARDINAL was issued by ORG . Its stated purpose was to provide local authorities with guidance on \" statutory procedures , alternative forms of gypsy accommodation and practical points about site provision and management \" . It was intended to apply until such time as more final action could be taken on the recommendations of ORG . Among other advice , it encouraged local authorities to enable self - help by NORP through the adoption of a \" sympathetic and flexible approach to [ NORP ' ] applications for planning permission and site licences \" . Making express reference to cases where NORP had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming , it recommended that in such cases enforcement action not be taken until alternative sites were available in the area .", "ORG Circular CARDINAL/CARDINAL , which was issued on DATE , stated , inter alia , that \" it would be to everyone 's advantage if as many gypsies as possible were enabled to find their own accommodation \" , and thus advised local authorities that \" the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions \" . In addition , MONEY was spent under a scheme by which MONEY grants were made available to local authorities to cover the costs of creating Gypsy sites .", "ORG LAW of ORG LAW DATE ( \" LAW \" ) , which came into force on DATE , repealed sections CARDINAL of LAW ( see paragraphs CARDINAL above ) and the grant scheme referred to in paragraph CARDINAL above .", "ORG LAW of the DATE Act gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as \" a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner 's consent \" . Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .", "ORG New guidance on Gypsy sites and planning , in the light of LAW , was issued to local authorities by the Government in Circular DATE ( DATE ) , which cancelled ORG CARDINAL/CARDINAL ( see paragraph CARDINAL above ) . Councils were told that :", "\" In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . \" However : \" As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies ... \"" ]

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[ "14", "8" ]

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[ "The applicant was born in DATE and lives in Ploieşti .", "On DATE the applicant received as a dowry from her father a house situated in Ploieşti ( hereafter called “ the house ” ) , composed of CARDINAL flats and a garage plus the adjoining land .", "In DATE the ORG took possession of the property , allegedly under Decree no . CARDINAL/CARDINAL on nationalisation . The applicant was never informed of the grounds or legal basis for that deprivation of property . She was , however , allowed to use one of the flats in the house as a tenant of the ORG .", "DATE the applicant made several complaints to the authorities , arguing that the provisions of Decree no . ORG were inapplicable to her case and requesting that the house be returned to her . She did not receive any reply .", "In DATE the ORG demolished the garage .", "In DATE the applicant brought an action in FAC for recovery of possession of the house . She submitted that she belonged to the category of persons whose property Decree no . ORG exempted from nationalisation and requested that the ORG - owned company , ORG , which managed ORG - owned housing , be ordered to return her property . On DATE the court dismissed her claim on the ground that she had not proved her allegations .", "The applicant appealed against that judgment to ORG . In a decision of CARDINAL DATE the court allowed the appeal , declared the action to recover possession admissible and ordered the house to be returned . It found that , as a nurse and a war widow DATE , the applicant belonged to the category of persons whose property the decree exempted from nationalisation .", "R.P. appealed against that decision . In a judgment of CARDINAL DATE ORG allowed the appeal , quashed the judgment of CARDINAL DATE and dismissed the applicant 's claim on the ground that the house had become ORG property pursuant to Decree no . ORG and that the courts did not have jurisdiction to review whether the decree had been properly applied to her . The court added that provision as to redress for any wrongful seizure of property by the ORG would have to be made in new legislation .", "On DATE the applicant requested PERSON of GPE to lodge an application to have that final judgment set aside , submitting that it was unfair because the court had refused to examine whether Decree no . ORG was applicable to her .", "The Procurator - General replied on CARDINAL DATE , informing her that an application to have a final court judgment set aside could be made only , inter alia , where the decision was ultra vires , which had not been the case here . He added that final decisions could not be challenged on grounds of lawfulness or on the merits .", "On DATE the applicant lodged an application for restitution of the house with the administrative board established to deal with applications lodged in Ploieşti pursuant to Law no . LANGUAGE ( “ the ORG ” ) . She submitted that she had been dispossessed of her property in breach of Decree no . ORG on nationalisation , and that ORG , in its decision of CARDINAL DATE , had held that the deprivation of property had been unlawful but that ORG had refused to entertain her claim and had indicated that she should bring administrative proceedings .", "In a decision of CARDINAL DATE ORG vested ownership of the flat rented by the applicant in her and awarded her financial compensation for the rest of the house and the land . Having regard to LAW no . CARDINAL , which put a ceiling on compensation , ORG awarded the applicant CARDINAL NORP lei ( ROL ) for the second flat and ROL CARDINAL for the adjoining land that had not been returned and rejected her claim for compensation for the garage . According to the applicant , the amount she had received was substantially less than the value of the property .", "On an unknown date the applicant challenged that decision in FAC , arguing that she was claiming restitution of the actual house .", "The proceedings were adjourned pending the outcome of the second action for recovery of possession , which the applicant had lodged concurrently .", "The proceedings were resumed on an unknown date and ended on DATE with a judgment of ORG upholding the decision of ORG .", "In the meantime , on DATE , the ORG sold CARDINAL of the flats in the house to the former tenants .", "On an unknown date the applicant lodged a further action for recovery of possession with ORG .", "In a judgment of DATE the court dismissed the action on the ground that , by deciding to bring administrative proceedings , the applicant had acknowledged that the property had been nationalised with valid legal title and was consequently debarred from bringing an action for recovery of possession .", "The applicant appealed . She stressed that she had consistently argued before ORG that her house had been wrongfully nationalised and that she had brought administrative proceedings under PERSON no . NORP because ORG had refused to examine her first action for recovery of possession . ORG dismissed her claim on DATE on the same ground as ORG .", "The applicant appealed . On DATE ORG dismissed her appeal in a final decision . It noted that the applicant had applied concurrently to ORG and the courts for restitution of the house and noted that the administrative proceedings had been adjourned . It concluded that the applicant , having chosen the remedy provided for in PERSON no . LANGUAGE , was now debarred from bringing an action for recovery of possession in the ordinary courts because that choice amounted to an implicit acknowledgment on her part that the nationalisation had been lawful .", "On an unknown date the applicant applied for the judgment of ORG to be set aside on the ground that ORG had denied her access to a tribunal for the determination of her action for recovery of possession . Her application was dismissed on DATE by ORG .", "The relevant domestic legislation and case - law are set out in the ORG v. GPE judgment ( [ ORG ] , no . CARDINAL , ORG CARDINAL-VII , pp . CARDINAL , § § DATE ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant is a NORP national , born in DATE , residing in Racibórz", "In DATE the applicant wrote a letter to ORG ( ORG ) in which he requested that his wish to abandon his NORP citizenship be acknowledged . He formulated at this occasion various complaints about , in his view , catastrophic situation of the country , about poverty of growing parts of population due to ruinous economic policies and about a number of other social and political issues . He also wrote a letter to the Chancellery of the President of GPE , requesting to be divested of his citizenship .", "On an unspecified date criminal proceedings were instituted against the applicant on charges of arson .", "On DATE ORG submitted a motion to ORG , requesting that an order be given for the applicant ’s placement at a psychiatric institution .", "On DATE ORG , after a hearing held on that date in the presence of the applicant , his lawyer and a prosecutor , committed the applicant to a mental hospital . The court established that criminal proceedings had been instituted against the applicant on suspicion of arson . As doubts had arisen as to the applicant ’s mental health , the prosecutor appointed experts in order to establish his condition . The experts requested that the applicant undergo a psychiatric observation , and , after the observation had been completed , submitted their report . They concluded that on account of psychiatric illness he could not be held criminally responsible , within the meaning of LAW § CARDINALof LAW applicable at that time , and that he posed a threat to public order . The prosecutor had subsequently requested the court to order the applicant ’s committal to a psychiatric institution . The court further stated that in the light of the evidence gathered in the investigations the applicant was , beyond any doubt , an author of the criminal offence in question ( “ analizując dowody zgromadzone w toku śledztwa PERSON uznał , że nie budzi wątpliwości , iż podejrzany jest sprawcą zarzucanego mu czynu ” ) . The court further considered that the prosecutor ’s request was supported by unequivocal conclusions of the experts .", "The applicant lodged an appeal , arguing that he had not been given the access to the full text of the medical expert opinion , that the charges against him were supported only on circumstantial evidence and his guilt had not been established , and challenged the experts’ argument that his wish to emigrate had been motivated by his mental illness .", "On DATE ORG , in a session in the presence of a prosecutor , dismissed the applicant ’s appeal . The court stated that the evidence allowed for a finding that the applicant had committed the offence concerned . The court referred in this respect to the applicant ’s confession made in the investigations , and to the testimony of a fireman who had been leading action of the fire brigade . In his view , the applicant ’s apartment had deliberately been put on fire . He had also found CARDINAL bottles with petrol in the apartment . The court further had regard to the medical expert opinion to the effect that the applicant , who suffered from paranoid syndrome , could not be criminally responsible on psychiatric grounds and that he should be committed to a hospital as he posed a genuine and serious threat to public order . The court concluded that , in view of the fact that the applicant who had never before been under any psychiatric treatment , was uttering threats that he would escalate his violent actions , the conclusions of the lower court were justified .", "Subsequently the applicant was placed in a psychiatric hospital . On an unspecified date he requested the ORG to lodge a cassation appeal against this decision .", "On DATE the ORG lodged a cassation appeal against the decision of ORG . The ORG argued that ORG had failed to inform the applicant and his lawyer about the date of the hearing which was held before that court on DATE . The applicant had thus been deprived of his defence rights .", "On DATE ORG quashed the decision of ORG , considering that in view of the fact that the applicant ’s lawyer had not been informed about the date and time of the latter court ’s session of DATE , and that the applicant ’s interests had not been properly presented and defended in the proceedings . ORG ordered that the case be remitted to ORG for reconsideration .", "Apparently later the applicant submitted a request to be discharged from the psychiatric hospital to ORG .", "On DATE ORG , having again examined the applicant ’s appeal against the decision of ORG of DATE , upheld the decision . The court took into consideration that the evidence gathered in the investigations conducted by the prosecution allowed for a conclusion that the applicant had been the author of the offence concerned , as shown by his own confession and by the testimony of the witness PERSON , relied on by the lower court . The court further referred to the medical expert opinion of psychiatrists from PERSON hospital who , having regard to the results of a clinical observation of the applicant , established that he had been suffering from paranoid syndrome , and that in view of his illness he posed a serious and genuine threat to legal order . The court concluded that the decision of the lower court was well - founded . The court finally observed that , in the light of the letter of the Chief Physician of ORG of DATE , apparently concerning the applicant ’s condition at that time , a judicial review of the applicant ’s detention , provided for by LAW , was called for .", "By a letter of CARDINAL DATE ORG informed the applicant that a decision concerning his request for release would be given as soon as the medical expert opinion was submitted to the court .", "On DATE the applicant complained that the proceedings concerning his request for release lasted too long .", "In reply , ORG , in a letter of CARDINAL DATE , informed the applicant that the decision would be given as soon as the experts appointed to prepare an opinion as to his continued detention submit their final report . They had been urged by the court to speed up their progress , to no avail . In view of their failure to react , the court had requested them again to accelerate their work .", "On DATE ORG , having questioned the experts , decided that the applicant ’s detention should be maintained as he still presented a threat to public order .", "The applicant and his lawyers lodged appeals against this decision , submitting that , in the view of the applicant ’s condition the maintaining of the applicant ’s detention had ceased to serve any purpose , and that the decision to detain him had been “ politically motivated ” .", "On DATE ORG declined to examine the appeal , considering that under LAW it was ORG , composed of CARDINAL professional judge and CARDINAL lay judges , which was competent to rule on the applicant ’s appeal .", "On DATE ORG upheld the decision of DATE . The court considered that the first - instance court had been thorough in its assessment of the evidence , in particular in respect of the expert medical opinions of psychiatrists ORG and ORG , the conclusions of which they had reiterated at a hearing on DATE , indicating that the applicant ’s detention should be maintained . The court further considered that the conclusions of this expert report , contrary to the appearances ( “ wbrew pozorom ” ) , were identical with statements contained in another medical expert opinion drawn by psychiatrists ORG and ORG who had stated that the applicant ’s personality had certain paranoiac characteristics . They had further argued that , since the applicant had been uttering threats , he should remain in detention . The court therefore concluded that their conclusions actually strengthened the conclusions of the other CARDINAL experts . The court went on to state that in view of the applicant ’s past conviction for uttering threats and arson and the fact that during his detention in the hospital he had been submitting numerous complaints to various institutions , his further detention was called for as he had not ceased to pose a serious and genuine threat to legal order .", "On DATE , the applicant requested that criminal proceedings be instituted against certain experts involved in his case . On DATE ORG , to whom the case had been transferred as the prosecutor in whose jurisdiction the proceedings should be conducted , requested that the investigations be conducted by another prosecuting authority , refused to do so . The applicant appealed , and on DATE ORG set this decision aside .", "On DATE ORG refused to re - open the proceedings in which the applicant ’s placement at the mental hospital had been ordered , finding that the legal requirements had not been met .", "On DATE ORG held a hearing at which it examined the applicant ’s request for release , submitted at an unknown date . The court , having regard to doubts as to the applicant ’s current health , and in accordance with the applicant ’s request , ordered that an opinion of a specialised research institution be sought . The applicant subsequently underwent DATE observation in the hospital of ORG of ORG in GPE hospital .", "On DATE ORG discontinued the investigations against the experts , considering that they had no case to answer . The applicant ’s appeal was subsequently transmitted to FAC . On DATE the court upheld this decision .", "On DATE ORG ordered the applicant ’s release .", "The conditions for detention of persons of unsound mind who are not responsible on medical grounds were laid down in LAW , as it stood at the material time :", "\" If it has been established that a person has committed an offence in a state of mental disorder [ excluding his criminal responsibility ] , and his remaining at liberty entails a serious danger to public order , the court shall commit him to a mental hospital or another appropriate institution . \"", "\" In cases provided for in LAW ... ) the period of detention is not determined in the decision of the committal to the psychiatric institution ; the court shall order the release if the detention ceases to be necessary . \"", "According to the case - law of ORG , a threat to public order is to be determined on the basis of a situation obtaining at a time when the offender ’s detention in the psychiatric institution is imposed . The assessment of the existence and the degree of such threat should be made in the light of a medical expert opinion . For a decision ordering detention in a psychiatric hospital to be given , it is not necessary that it is expressly stated in the medical expert opinion that it would pose a threat to public order if the offender were to remain at liberty . It suffices that such a conclusion could be drawn from the medical expert opinion taken as a whole ( ORG , ORG i DATE , item CARDINAL ) .", "A threat to public order is considered serious if an offender ’s remaining at liberty gives rise to a risk of an unlawful act being committed by him ( ORG , ORG i DATE , item . CARDINAL ) .", "LAW , applicable at the relevant time , reads :", "\" CARDINAL . A director of a medical institution is obliged to keep the court informed of the detainee ’s health and of the progress in treatment .", "...", "The court , at intervals of not longer than DATE , shall decide , on the basis of a medical opinion , on the necessity to maintain further security measures . \"" ]

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