Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the Court by Ms D. Balčiūnienė , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP In DATE FAC ( hereinafter , “ the prison ” ) published a recruitment notice for a psychologist . The applicant applied for the position .

On DATE the prison ’s human resources division sent the applicant for a medical examination at ORG of ORG ( hereinafter , “ the Commission ” – see paragraph CARDINAL below ) .

On DATE the applicant went for the examination , but after her height was measured the process was terminated and the applicant was told that she was unfit for the position because she was too short . The Commission noted that the applicant ’s height was QUANTITY and she was informed that she was diagnosed as being physically underdeveloped due to lack of proteins and minerals ( sulėtėjusi raida dėl baltymų ir energetinių medžiagų trūkumo ) . The Commission also stated that domestic regulations provided that women smaller than QUANTITY were unfit for work within the security and lawenforcement services ( see paragraph CARDINAL below ) .

NORP In DATE the applicant wrote to the Minister of ORG and ORG and complained about the fact that she had been found unfit for service by ORG . ORG replied that the ORG ’s decisions could be appealed against in accordance with the rules of administrative procedure ( see paragraph CARDINAL below ) .

The applicant also complained to the Parliamentary Ombudsperson , who in DATE established that ORG had performed the medical examination in accordance with the provisions of domestic law ( see paragraph CARDINAL below ) . The PERSON held , however , that ORG and ORG had not replied to a question about the specific reason for setting the height requirements and decided that the applicant ’s requests had not been fully examined . The PERSON thus suggested that ORG and ORG should in the future oblige employees to follow the requirement to provide comprehensive information .

The applicant also complained to the Equal Opportunities PERSON , who in DATE held that the domestic regulation in question was more favourable to men than women . According to medical experts , men were considered small if their height was CARDINAL and CARDINAL cm while women were considered small if their height was CARDINAL and QUANTITY . The contested regulation provided that men were unfit for service in the security and law - enforcement bodies if they were smaller than QUANTITY while women were considered unfit for such service if they were smaller than QUANTITY . The Equal Opportunities PERSON also stated that there was no explanation why officers who did not carry out operational duties were considered unfit for service if they were short .

On DATE the applicant lodged a complaint with ORG . She asked the court to annul the ORG ’s decision that she was unfit for the position and the diagnosis that she was physically underdeveloped . On DATE ORG decided that there had been no medical examination of the applicant , except for measuring her height . The court also raised doubts as to whether a domestic regulation which referred merely to height for acceptance into government service , without any additional examination ( see paragraph CARDINAL below ) , was in accordance with the LAW and LAW and decided to refer the matter to ORG . The examination of the applicant ’s case was suspended awaiting the decision of the latter court ( see paragraph CARDINAL above ) .

On DATE ORG noted that ORG provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions ( see paragraph CARDINAL below ) . However , there was no evidence that a person ’s height , if not related to other health issues , was a reasonable ground to diagnose such a person as being physically underdeveloped . The court did not question the possibility of setting various requirements ( including height ) to hold certain positions , but held that the contested provision was contrary to ORG as it did not differentiate the height requirements according to profession and was not based on any inability to perform certain functions .

NORP The proceedings before ORG resumed . On DATE the applicant was asked to set out her complaint in a more specific way ( patikslinti skundo reikalavimą ) and to ask the court to annul the prison ’s decision on terminating the employment procedure . On DATE , the prison was asked to provide the court with a document , stating who , when and by what decision terminated the employment procedure .

On DATE the applicant , following ORG proposal , stated her complaint in more specific terms and asked the court to also annul the prison ’s decision to terminate the procedure to employ her . On DATE ORG set a time - limit for the applicant to remedy shortcomings in her complaint . The court stated that the applicant had complained about the decision to terminate the procedure to employ her ; however , the prison administration had indicated that there had been no separate decision on that issue . The court held that in such cases only a final decision by the director of the institution in question could be complained of and that a decision by the ORG was only an intermediate document . The court thus suggested that the applicant again state her complaint more specifically and asked the prison to take a decision on terminating the employment procedure . There is no information that the prison had taken that decision in writing ( see paragraph CARDINAL below ) .

The applicant set out her complaint again on DATE . She asked the court to oblige the prison to take a decision on terminating her employment procedure ; to annul that decision ; to annul the ORG ’s decision that she was unfit for service ; and to annul the ORG ’s diagnosis that she was physically underdeveloped .

On DATE ORG decided to terminate the part of the case in which the applicant sought to annul the ORG ’s decision and decided to annul instead the prison ’s decision on terminating the employment procedure . The court observed that the ORG had taken its decision without any medical advice and thus it had been unlawful and unfounded . The court further referred to ORG decision of DATE ( see paragraph CARDINAL above and paragraph CARDINAL below ) and held that the regulation that had been found to be contrary to ORG was not applicable from the date of issuance of the court ’s decision , DATE . The court also referred to a ORG case where the rules for appealing against decisions by the ORG had been explained ( see paragraph CARDINAL below ) . As a result , ORG held that in the applicant ’s case the decision which had affected her the most was that of the prison and not the Commission ’s and thus the latter could not be the subject of examination by the court . The court also noted that the prison ’s decision to terminate the procedure for the applicant ’s employment had not been set down in writing , but decided that the date it had been taken was when the prison had received the ORG ’s decision , which was DATE . The court referred the matter back to the prison so it could examine the applicant ’s employment application afresh and send her for a special medical examination .

NORP In DATE the applicant , the prison and the Commission lodged appeals with ORG .

The applicant sought to annul both the ORG ’s decision and that of the prison to terminate the employment procedure . The applicant disagreed with ORG conclusion that the ORG ’s decision had not affected her situation . She argued that the ORG ’s decision had been the ground for the prison to terminate the employment procedure . She also noted that the prison had not issued a written decision on terminating the employment process and that the procedure to complain about such a decision was unclear . She also stated that she had not asked the court of first instance to refer the matter of her employment back to the prison because by that time the judicial proceedings had taken DATE and the position at the prison had probably already been taken .

The prison argued that the ORG ’s decision had been an independent act with legal consequences for the applicant , namely it had prevented her from being a candidate for the position of psychologist . It did not agree that the negative consequences had been caused by its own decision , which had not even been set down in writing . The ORG stated that the applicant ’s complaint should have been dismissed as unfounded because it was not clear how an employing institution should act if there was a decision by the ORG that a person was unfit for service and that person thought otherwise . In accordance with the case - law of ORG , a person in such a situation would lose the possibility to question the lawfulness of the ORG ’s decision .

On DATE ORG amended ORG decision and held that the ORG ’s decision could not be regarded as an independent document because it had not been an individual administrative act and the ORG was not a public authority . The court also stated that the ORG ’s decision had only been an intermediate step in the employment procedure and could not be contested before the domestic courts . Even if it had been held that the ORG ’s decision could be a matter for an administrative case , the applicant ’s right to continue the employment procedure would not in fact have been protected because the court could not impose an obligation on the institution where the applicant had aimed to be employed on the grounds of the ORG ’s allegedly unlawful decision . The court also held that examination of a case by a court was pointless if a person ’s rights could not be defended . The decision which the applicant could have challenged was the one by the prison . The court stated , however , that the applicant had submitted contradictory claims ( reiškė prieštaringus reikalavimus ) , that is , on the one hand she had asked that the prison be obliged to take a decision on terminating the employment procedure and , on the other hand , that the prison annul its decision on terminating the procedure . The court also noted that the applicant had not indicated any remedy in defence of her rights before the court of first instance ; however , that court had not held that circumstance to be a shortcoming in the claim . In order to defend the applicant ’s rights to the maximum , it had applied the provisions of administrative law and had chosen the remedy that had best met the applicant ’s requirements . That was why the employment matter had been referred back to the prison . The court held that a decision stating that the applicant ’s rights had been breached had no consequences and was not the right way to protect her rights . The court also underlined that the applicant had not wanted to continue the employment procedure and that she had lodged her complaint with the domestic courts without any indication of possible measures of redress . As a decision by a domestic court that merely indicated that someone ’s rights had been breached did not lead to any material or legal consequences for that person , such complaints were not subject to examination by the administrative courts . The court therefore decided to terminate the case .

Article CARDINAL of the LAW provides that everyone is equal before the law , courts , and other state institutions and officials . Human rights may not be restricted ; no one may be granted any privileges on the grounds of gender , race , nationality , language , origin , social status , belief , convictions or views .

Article CARDINAL § CARDINAL ( CARDINAL ) of ORG provides that when implementing equal treatment provisions , an employer , regardless of the person ’s age , sexual orientation , disability , racial or ethnic origin , religion or beliefs , must apply the same recruitment criteria and employment conditions when employing or recruiting someone to public service , except in cases provided for by law . Those include restrictions on the grounds of age , a requirement to know the official ORG language , a prohibition on taking part in political activities , different rights applied on the basis of citizenship and special measures applied in the healthcare , work safety , employment and labour market sphere , which at the same time also aim to create and apply conditions and opportunities guaranteeing and promoting the integration of the disabled into the labour market .

At the material time , LAW ( CARDINAL ) of ORG ( ORG tarnybos statutas ) provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions . The health requirements are set by the Minister of ORG and ORG .

Article CARDINAL § QUANTITY of FAC ( ORG departamente prie PERSON teisingumo ministerijos statutas ) provided that people aiming to be employed at ORG had to be citizens of GPE , DATE , with a sufficient knowledge of the NORP language and a sufficient level of education , personal qualities , physical ability and health . LAW CARDINAL provided that candidates’ health had to be examined by ORG at the request of ORG . Article CARDINAL § CARDINAL ( CARDINAL ) provided that a person could not be accepted for work by ORG or related institutions if he or she was found to be unfit for service by ORG . LAW provided that appeals against decisions regarding a refusal of employment could be made to a court , in accordance with ORG .

Point CARDINAL of the order of the Minister of Interior of DATE , No . CARDINAL ( PERSON vidaus reikalų ministro įsakymas PERSON medicininės ekspertizės organizavimo ir atlikimo tvarkos aprašo patvirtinimo “ , hereinafter , “ the order ” ) provided that the ORG was part of ORG , performing specialised medical expert examinations . An expert examination is a decision by Commission doctors indicating a health disorder in accordance with the international statistical classification of health disorders and problems . A person under examination is a person who aims to be employed by the domestic security and safety services , an officer , former officer or student who is sent for examination by ORG . The status of a person being examined by a medical expert , including the carrying out of laboratory and functional analyses , is equivalent to that of a patient and the provisions of the Law on Patients’ Rights and Compensation for Health Damage are applicable .

At the material time , Point CARDINAL § CARDINAL of the order of the Minister of ORG and ORG of DATE , No . CARDINALV-CARDINAL/V-CARDINAL ( PERSON vidaus reikalų ministro ir PERSON sveikatos apsaugos ministro įsakymas PERSON sveikatos būklės reikalavimų asmenims , pretenduojantiems į vidaus tarnybą , pageidaujantiems mokytis vidaus reikalų profesinio mokymo įstaigose , kitose mokymo įstaigose ORG reikalų ministerijos siuntimu , bei vidaus tarnybos sistemos pareigūnams sąvado patvirtinimo “ ) provided that if a lack of proper development had led to a man being shorter than CARDINAL cm or a woman being shorter than QUANTITY , then they were unfit for service in the security and law - enforcement bodies . No exceptions to this rule were provided .

Point CARDINAL of the order of the Minister of ORG and ORG DATE , No . CARDINALV-CARDINAL/V-CARDINAL , now provides that if a man is smaller than QUANTITY or a woman smaller than QUANTITY because of inadequate development then they are unfit for service in domestic law - enforcement , security or safety bodies .

ORG has decided that Point CARDINAL § CARDINAL of the DATE order ( see paragraph CARDINAL above ) was contrary to ORG in so far as it did not differentiate height requirements according to profession and was not based on any inability to perform certain functions ( ORG decision of DATE , no . PERSON , taken in the applicant ’s case – see paragraph CARDINAL above ) .

Article CARDINAL § CARDINAL of ORG ( hereinafter , “ the LAW ” ) provided that a civil or specialised court had the right to suspend the examination of a case and address a request to an administrative court to decide whether a normative administrative act ( or part of it ) that had to be applied in a specific case complied with a law or Government regulation . LAW provided that the civil or specialised court would renew its examination of the case after the administrative court ’s decision .

At the material time , LAW ( CARDINAL ) of the PERSON provided that CARDINAL possible decision for the administrative court was to hold that a normative administrative act ( or part of it ) was contrary to the law or Government regulation and to annul it .

In addition , LAW provided that a normative administrative act ( or part of it ) became null and void and inapplicable from the date of the official issue of the administrative court ’s decision to recognise that act ( or part of it ) as unlawful .

ORG has held that public administration bodies have to follow the principle of the rule of law and that ultra vires acts must be declared unlawful ( decisions of ORG of DATE , No . ICARDINAL - CARDINAL/CARDINAL ; of DATE , No . ICARDINAL - CARDINAL/CARDINAL ; and of CARDINAL DATE , No . ICARDINAL - CARDINAL/CARDINAL ) .

Article CARDINAL § QUANTITY of the PERSON provided that administrative courts decided legal disputes in the field of public administration .

Article CARDINAL § CARDINAL of the PERSON provided that any person with an interest in a case had the right to lodge a complaint with a court in order to defend his or her rights or interests .

Article CARDINAL § CARDINAL ( CARDINAL ) of the PERSON provided that such a complaint had to set out the applicant ’s claims .

Article CARDINAL § CARDINAL ( CARDINAL ) of the PERSON provided that complaints had to be refused if they were not subject to examination by a court .

Article CARDINAL § CARDINAL of the PERSON provided that a court had to terminate any case if it was not in its jurisdiction , except for cases that were within the jurisdiction of the civil courts .

LAW provided that public administration was an activity of a public administration body intended to implement laws and other regulations . It comprised the taking of administrative decisions , overseeing the implementation of laws and administrative decisions , the provision of administrative services provided for in laws , the administration of the provision of administrative services and the internal administration of a public administrative body .

Article CARDINAL § CARDINAL of ORG provided that normative administrative acts could only be enacted by public administration bodies .

LAW CARDINAL of the PERSON provided that administration bodies were those that performed the functions of public administration .

Point CARDINAL of the order ( see paragraph CARDINAL above ) provided that the Commission ’s decisions could be appealed against in court , in accordance with the PERSON .

ORG has held that only the final decision of an institution could be examined by an administrative court . Many documents are drawn up in the course of administrative procedure , but they are usually intermediate documents and do not decide any issues related to a person ’s material legal rights . An administrative court can not examine a document if it has no legal consequences . A Commission decision is only an intermediate document that has no legal consequences ( decision of ORG of DATE , No . GPE ) .

At the material time , LAW provided that compensation for pecuniary and non - pecuniary damage caused by breaching a patient ’s rights was provided in accordance with that law itself and LAW . LAW provided that a patient or other persons who had a right to compensation had to send a claim to ORG Caused to Patients’ Rights . LAW provided that ORG to Patients’ Rights was a compulsory institution for out - of - court settlements for disputes related to violations of ORG rights and assessments of the amount of damages . LAW provided that any patient or other person who disagreed with a decision by ORG to Patients’ Rights could lodge a court complaint within DATE of the decision or the date they found out about the decision .

ORG has held that a doctor ’s main duty is to provide qualified and diligent health - care services to patients ( decisions of ORG of DATE , No . DATE ; of CARDINAL DATE , No . ORG ; and of DATE , No . ORG ) .

Article CARDINAL § CARDINAL ( CARDINAL ) of the PERSON ( see paragraph CARDINAL above ) provides that administrative courts decide cases concerning damage caused by the unlawful acts of public authorities , as provided for in Article CARDINAL of LAW ( see paragraph CARDINAL below ) .

Article CARDINAL of the PERSON provides that an administrative court can take the following decisions in respect of a case : CARDINAL ) reject the complaint as unfounded ; CARDINAL ) satisfy the claim and annul the contested regulation ( or any part thereof ) , or oblige the relevant administrative entity to end the violation in question or execute any other requirement set by the court ; CARDINAL ) satisfy the claim and oblige the administrative body of a municipality to implement the law , or execute a ORG or other regulation ; CARDINAL ) satisfy the claim and settle the dispute in any other manner set by the law ; CARDINAL ) satisfy the claim and award damages for unlawful acts by the public authority ( Article CARDINAL of LAW ) .

Article CARDINAL § CARDINAL of the Civil Code provides that civil liability only arises where a person is at fault and a debtor is presumed to be at fault , except where laws or contracts provide otherwise .

Article CARDINAL § CARDINAL of the Civil Code provides that damage resulting from unlawful acts of institutions of public authority must be compensated for by the ORG from the ORG budget , irrespective of the responsibility of a particular public servant or other employee of public authority institutions . Damage resulting from unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget , irrespective of whether an employee is at fault . Article CARDINAL § CARDINAL provides that for the purposes of the LAW , the notion “ an institution of public authority ” means any public - law body ( a ORG or municipal institution , official , public servant or any other employee of those institutions , and so forth ) , as well as a private person executing the functions of a public authority . Article CARDINAL § CARDINAL provides that for the purposes of the Article , the notion “ act ” means any act ( active or passive ) by an institution of public authority or its employees , that directly affects people ’s rights , liberties and interests ( legal acts or individual acts enacted by the institutions of state and municipal authority , administrative acts , physical acts , and so forth , with the exception of court judgments – verdicts in criminal cases , decisions in civil and administrative cases and orders ) . Article CARDINAL § CARDINAL provides that civil liability on the part of the ORG or a municipality subject to the LAW arises when the employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees .

ORG has held that in order for a right to compensation for damage to arise the law does not require that unlawful acts by public institutions are annulled or declared void in accordance with the law ( decisions of ORG of DATE , No . DATE ; of DATE , No . ACARDINAL - CARDINAL/CARDINAL ; of CARDINAL DATE , No . ACARDINAL - DATE ; of DATE , No . ORG ; and of DATE , No . A-CARDINAL - CARDINAL/CARDINAL ) .

ORG has held that when considering the issue of compensation for damage , courts have to examine the factual grounds of such damage , irrespective of the presence of a dispute with regard to the lawfulness of such grounds ( decision of ORG of DATE , No . ACARDINAL - DATE ) .

ORG has held that courts have to fully examine the lawfulness of acts that might have caused someone damage , irrespective of separate court proceedings on the lawfulness of such acts ( ORG decision of DATE , No . ACARDINAL/CARDINAL ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Kristina Pardalos;Paul Mahoney;Pauliine Koskelo

On CARDINAL DATE ORG recognised the applicants’ inherited property rights over a plot of land measuring QUANTITY . QUANTITY Since the plot of land was occupied , the applicants would be compensated in one of the ways provided by law .

To date , no compensation has been paid .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by CARDINAL police officers on suspicion of bribe - taking . The police officers took him to GPE , where he was held TIME . According to the applicant , the police officers beat him for TIME , forcing him to confess .

On DATE the applicant was taken to ORG . He complained of ill - treatment to a senior prosecutor from the above office . The prosecutor referred the applicant for a forensic medical examination .

On DATE the applicant was diagnosed with concussion and admitted to hospital .

On DATE the applicant underwent a forensic medical examination , which established that he had numerous bruises on his face , chest , legs and arms , as well as a damaged tooth .

On DATE criminal proceedings were instituted against the applicant on charges of bribe - taking . They were eventually terminated on DATE for lack of corpus delicti .

On DATE the applicant lodged another complaint of ill - treatment with ORG .

On DATE the applicant lodged a complaint with ORG about the failure to examine his complaint of DATE .

On DATE the ORG refused to institute criminal proceedings against the police officers . That decision was quashed by the higher prosecutor on DATE and an additional inquiry was ordered .

On DATE the ORG ordered a forensic medical examination of the applicant , which was conducted DATE and DATE . The experts’ opinion confirmed the previous medical findings ( see paragraphs CARDINAL and CARDINAL above ) and concluded that the injuries had been the result of blows with blunt objects and had been inflicted during the period indicated by the applicant . The experts further opined that it could not be excluded that the injuries had originated in the circumstances indicated by the applicant , as they could all have been inflicted by fists .

On DATE the Kharkiv Frunzenskyy District Prosecutor ’s Office refused to institute criminal proceedings concerning the applicant ’s allegations of ill - treatment . That refusal was quashed by ORG on DATE .

On DATE the Kharkiv Frunzenskyy District Prosecutor ’s Office again refused to institute criminal proceedings concerning the applicant ’s allegations of ill - treatment . In a letter dated DATE , ORG informed the applicant that the decision of DATE had been quashed and that the prosecutor who had conducted the inquiry would be subjected to disciplinary sanctions for the improper performance of his duties .

On DATE ORG issued a decision refusing to institute criminal proceedings concerning the applicant ’s allegations . That decision was subsequently quashed .

On DATE ORG again refused to institute criminal proceedings concerning the applicant ’s allegations of ill - treatment . That decision was quashed by GPE on DATE and the case was remitted for further inquiries .

On DATE ORG Office once again refused to institute criminal proceedings concerning the applicant ’s allegations of ill - treatment .

On DATE the above decision was quashed by ORG , which sent the case file back to the prosecutor for further inquiries . The court noted , inter alia , that it had previously remitted the case for further inquiries , but that its instructions had not been followed . Furthermore , the applicant had not been questioned and the medical evidence had not been assessed . The first - instance court ’s decision was upheld on appeal by ORG on DATE .

On DATE ORG refused to institute criminal proceedings concerning the applicant ’s allegations of ill - treatment . The applicant challenged that decision in GPE on DATE .

On DATE a new Code of Criminal Procedure came into force . On DATE , in accordance with the provisions of the new Code , ORG entered the relevant information in the newly established “ ORG of pre - trial investigations ” and started criminal proceedings in respect of the applicant ’s allegations of ill - treatment .

On DATE the prosecutor issued a decision to terminate the above - mentioned criminal proceedings .

On DATE the ORG rejected the applicant ’s complaint against the decision of DATE .

On DATE ORG quashed the prosecutor ’s decision of DATE .

On DATE the applicant asked ORG to supervise the investigation into his allegations of ill - treatment .

On DATE the Kharkiv Dzerzhynskyy District Prosecutor ’s Office issued a decision to terminate the criminal proceedings for lack of corpus delicti in the actions of the police officers .

On DATE ORG informed the applicant about the decision of DATE .

On DATE and DATE the applicant asked ORG to send him a copy of the decision of DATE .

On DATE the prosecutor sent the applicant a copy of the decision of DATE .

On DATE the applicant challenged the decision of DATE before the investigating judge of ORG .

On DATE the ORG quashed the decision of DATE and remitted the case to the prosecutor for further investigation . The court concluded that the investigator had not followed the instructions of the appellate court indicated in its decision of CARDINAL DATE on remittal of the case for further investigation , and had terminated the criminal proceedings without conducting the necessary inquiries or carrying out a .


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

A list of the applicants is set out in the appendix .

Mr PERSON maintained that he was a national of GPE , while all other applicants maintained that they were nationals of GPE . Additional personal details , the dates of introduction of their complaints before the ORG , and information regarding their legal counsel , respectively , are also set out in the appendix .

ORG ( “ the Government ” ) were initially represented by their former Agent , PERSON PERSON , who was subsequently substituted by their current Agent , PERSON GPE .

Following the intervention of ORG ( “ ORG ” ) in DATE , GPE was placed under international administration .

On DATE ORG , in response to a prior query , informed GPE ’s ORG that the pension system in GPE was based on the concept of “ ongoing financing ” . Specifically , pensions were secured through current pension insurance contributions . Consequently , as the NORP authorities had been unable to collect any such contributions in GPE since DATE , persons who had received their pensions from ORG of the NORP Pensions and ORG ( “ SPDIF ” ) could not expect to continue receiving them . ORG also reminded the Ombudsman that Regulation no . CARDINAL/CARDINAL on pensions in GPE provided for a separate pension system for persons living in the territory ( see paragraph CARDINAL below ) .

The facts , as submitted by the parties , may be summarised as follows .

The first applicant was born in DATE and lives in ORG .

On DATE , following the death of her husband , the first applicant – together with her daughter PERSON , née PERSON was granted a survivor ’s pension by ORG in GPE , with retroactive effect as of CARDINAL DATE .

On DATE the first applicant informed the ORG that she had moved from GPE to ORG , and sought payment of her pension at her new address .

DATE the first applicant repeatedly complained to the ORG that she had never received any pension payments .

In DATE the first applicant lodged a civil claim with ORG in GPE , seeking payment of her accrued pensions with statutory interest and the reinstatement of her entitlement pro futuro .

On DATE the said court found that it did not have territorial jurisdiction and forwarded the case file to ORG in GPE .

On DATE ORG suspended the proceedings . It explained that the international status of GPE was yet to be resolved and that in the meantime the NORP authorities were unable to collect any pension insurance contributions in that territory . The status of GPE was therefore a preliminary question which had to be settled before the first applicant ’s claim could be adjudicated .

On DATE ORG in GPE quashed ORG decision of DATE , holding that the status of GPE was not a valid reason to suspend the proceedings .

On DATE ORG reaffirmed the suspension of the first applicant ’s civil case , pending the outcome of her complaints lodged with the SPDIF . It also reiterated that the status of GPE was a preliminary issue which had to be resolved first .

On DATE the ORG quashed that decision , reiterating that the status of GPE was not a valid reason to suspend the proceedings in question .

On DATE ORG in GPE , which had jurisdiction to deal with the matter following the reorganisation of the NORP judiciary , ruled against the first applicant . It explained that she had not exhausted the administrative remedies before the ORG and had , in any event , failed to properly substantiate her calculation of the accrued pension .

On DATE ORG , which also had jurisdiction to deal with the matter following the above - mentioned reorganisation of the NORP judiciary , quashed that judgment on the grounds of inadequate reasoning .

On DATE ORG again ruled against the first applicant , this time primarily based on her failure to exhaust administrative remedies before the SPDIF .

On DATE ORG ruled partly in favour of the first applicant ( Gž . CARDINAL ) . In so doing , it ordered the ORG to pay her the pension arrears DATE and DATE with statutory interest , as well as the costs of the proceedings . The court opined that the suspension of payment of the first applicant ’s pension had been unlawful from a domestic legal perspective and had also been in breach of LAW No . CARDINAL , as explained by ORG in its judgment in the case of GPE ( no . CARDINAL/CARDINAL , DATE ) . The first applicant ’s claim regarding the payment of her accrued pension DATE and DATE , however , was rejected based on LAW , which provided for a DATE prescription period ( see paragraph CARDINAL below ) . Finally , the ORG dismissed the first applicant ’s request for the reinstatement of her pension pro futuro on procedural grounds .

As of DATE the ORG resumed payment of the first applicant ’s pension .

In the meantime , on DATE , the first applicant also lodged an appeal with ORG ( see paragraph CARDINAL below ) . However , on DATE her appeal was rejected because her representative did not have adequate authorisation .

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

On DATE , following the death of her husband , the second applicant was granted a survivor ’s pension by ORG in GPE .

The second applicant regularly received her pension until DATE , when the DATE payments stopped without an explanation from the ORG .

Thereafter , the second applicant repeatedly sought the resumption of her pension payments . Finally , on DATE she lodged a formal request with the ORG .

On DATE and DATE the second applicant again made requests to the same effect .

In the absence of any action on the part of the ORG , on DATE the second applicant brought an administrative dispute ( pokrenula upravni spor ) before ORG in ORG ( see paragraphs CARDINAL below ) .

On DATE the said court ruled in favour of the second applicant and ordered the ORG to decide on her request .

On DATE the ORG suspended the proceedings , holding that the pensions - related situation in GPE was in a state of flux and that crucial information was lacking . The second applicant ’s request was thus deemed not ready for consideration .

On DATE that decision was quashed on appeal , for procedural reasons , at a higher administrative level and remitted for re - examination .

On DATE the second applicant brought another administrative dispute before ORG , seeking , this time , that the court itself decide on the merits of her claim addressed to the ORG .

On DATE the ORG rejected the second applicant ’s request to have the payment of her pension resumed , “ in the absence of proper substantiation ” .

On DATE that decision was upheld on appeal at a higher administrative level .

On DATE ORG in PERSON , which had jurisdiction to deal with the matter following the reorganisation of the NORP judiciary , quashed the impugned decisions of the SPDIF on procedural grounds and remitted the case for re - examination .

On DATE the ORG ordered payment of the second applicant ’s pension which had accrued DATE and DATE . Regarding the reinstatement of her pension thereafter , the ORG decided that the matter would be considered following receipt of evidence from ORG in GPE ( “ UNMIK ” ) as to whether the second applicant was a beneficiary of a separate “ MONEY ” DATE , which was when she had reached the age of CARDINAL ( see paragraph CARDINAL below ) .

On DATE the ORG rejected the second applicant ’s request to have the payment of her pension resumed because , based on an UNMIK certificate , she had been a recipient of a Kosovan pension as from DATE . The ORG based its conclusion on LAW ( see paragraph CARDINAL below ) .

On DATE the second applicant appealed against that decision at a higher administrative level , arguing that the so - called “ Kosovan pension ” , in the amount of QUANTITY ( ORG ) , was not in fact a pension at all but a benefit offered to all persons aged CARDINAL or over residing in GPE .

The third applicant was born in DATE and lives in LOC .

In DATE , following the death of her husband , the third applicant was granted a survivor ’s pension by ORG in GPE .

At some point thereafter the third applicant moved from GPE to GPE .

The third applicant regularly received her pension until DATE , when the DATE payments stopped without an explanation from the ORG .

Thereafter , the third applicant repeatedly sought the resumption of her pension payments . On DATE she lodged a formal request to that effect with the ORG .

Having received no response and following an additional request which was also ignored , on DATE the third applicant brought an administrative dispute before ORG in GPE .

On DATE the said court declined its territorial jurisdiction and forwarded the case file to ORG in PERSON ( provisionally based in PERSON ) .

On DATE and CARDINAL DATE the third applicant requested information from ORG in PERSON regarding the status of those proceedings .

On DATE the ORG resumed payment of the third applicant ’s pension as of DATE .

The fourth applicant was born in DATE and lives in LOC .

DATE . On DATE the fourth applicant was granted a disability benefit .

The fourth applicant regularly received his benefit until DATE , when the DATE payments stopped without an explanation having been offered .

Thereafter the fourth applicant repeatedly sought the resumption of his benefit payments . On DATE he lodged a formal request to that effect with the ORG .

Having received no response and following an additional request which was also ignored , on DATE the fourth applicant brought an administrative dispute before ORG in GPE .

On DATE and CARDINAL DATE the fourth applicant requested information from ORG in PERSON regarding the status of those proceedings .

On DATE ORG in GPE , which had jurisdiction to deal with the matter since the reorganisation of the NORP judiciary , apparently rejected the fourth applicant ’s claim because he had not shown that he had properly made use of the administrative remedies available to him before applying for judicial review .

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

On DATE the fifth applicant was granted an old - age pension by ORG in GPE .

The fifth applicant regularly received his pension until DATE , when the DATE payments stopped without an explanation from the ORG .

Thereafter the fifth applicant repeatedly sought the resumption of his pension payments . On DATE he lodged a formal request with the ORG .

Having received no response , on DATE the fifth applicant again addressed the same request to the ORG .

On DATE the ORG rejected the fifth applicant ’s claim because he had apparently failed to provide adequate supporting documentation .

On DATE that decision was upheld on appeal at a higher administrative level .

Article CARDINAL provides , inter alia , that a person ’s pension and disability rights must be terminated if it transpires that he or she no longer meets the original statutory requirements . However , should an entitled pensioner secure an additional pension from another pension and disability insurance fund established by CARDINAL of GPE within the territory of the former GPE , his or her pension paid by the ORG must , unless stipulated otherwise by an international agreement , be reassessed ( recalculated ) based on the pensionable employment period ( penzijski staž ) already taken into account by the former .

Article CARDINAL provides that when a pensioner is entitled to CARDINAL or more pensions within the territory of GPE , CARDINAL of those pensions may be paid , in accordance with the pensioner ’s own preference .

Article CARDINAL provides that pension instalments which have not been paid owing to circumstances caused by the pensioner can be sought only for DATE on which he or she lodged a request to that effect .

The Opinions state , inter alia , that the pension system in GPE is based on the concept of “ ongoing financing ” . Specifically , pensions are secured through current pension insurance contributions . Since the NORP authorities have been unable to collect any such contributions in GPE since DATE , persons who have been granted ORG pensions in GPE can not expect , for the time being , to continue receiving them . It is further stated that Regulation CARDINAL/CARDINAL on pensions in GPE , adopted by UNMIK , provides for a separate pension system for persons living in the territory ( see paragraph CARDINAL below ) .

Article CARDINAL § § CARDINAL and QUANTITY provides , inter alia , that the prescription period for seeking civil compensation is DATE from the date on which the claimant first learnt of the damage in question , but that , in any event , the absolute deadline is DATE from the time the damage occurred .

DATE . In response to the situation in GPE , this ORG states , inter alia , that a person ’s recognised right to a pension may only be restricted on the basis of LAW ( see paragraph CARDINAL above ) . Recognised pension rights can not depend on whether current pension insurance contributions can be collected in a given territory .

The ORG further explains that administrative proceedings ( upravni postupak ) and , if necessary , judicial review proceedings ( upravni spor ) would be the appropriate avenue to challenge any restriction of a person ’s pension rights .

Lastly , the ORG notes that , in this context , the civil courts are competent to adjudicate only cases involving claims of malfeasance ( nezakonit i nepravilan rad ) on the part of the ORG .

Article CARDINAL § CARDINAL provides , inter alia , that in simple matters an administrative body must issue a decision within DATE of the date on which the claimant lodged his or her request . In all other cases , the administrative body must render a decision within DATE thereof .

Article CARDINAL § CARDINAL enables a claimant whose request has not been decided within the time - limits established in the previous paragraph to lodge an appeal as if his or her request has been refused . Where an appeal is not allowed , the claimant has the right to directly bring an administrative dispute before the competent court of law .

Articles DATE and CARDINAL provide , inter alia , that judicial review proceedings may be brought against the ORG body or public authority that issued the disputed administrative decision .

Article CARDINAL provides that should a second - instance administrative body fail to decide on an appeal lodged DATE , and should it again fail to do so in DATE upon receipt of the claimant ’s repeated request to that effect , the latter may directly institute judicial review proceedings , as if his or her appeal had been rejected .

Article CARDINAL § CARDINAL provides that the competent court may not only quash the impugned administrative decision but may also rule on the merits of the plaintiff ’s claim , should the facts of the case and the very nature of the dispute in question allow for that particular course of action .

DATE . The substance of Articles CARDINAL § CARDINAL , CARDINAL and QUANTITY , in the relevant part , to that of ORG and CARDINAL § CARDINAL of LAW DATE .

The Administrative Disputes Act DATE entered into force on CARDINAL DATE thereby repealing LAW CARDINAL .

Article CARDINAL provides :

“ [ a ] constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed ” .

As of DATE , ORG considered a total of CARDINAL appeals related in CARDINAL way or another to the general issue of payment or reinstatement of pensions suspended by the SPDIF ( see Už . nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , DATE , DATE , CARDINAL and CARDINAL , decisions rendered DATE and DATE ) . In a total of CARDINAL out of those CARDINAL cases ORG found violations of the NORP constitutional rights . In CARDINAL cases the violations concerned the length of proceedings before the ORG or the competent courts ; in CARDINAL cases they concerned the inconsistent domestic case - law as regards whether persons seeking reinstatement of their pensions should provide the supporting documentation themselves or whether it should be obtained by the ORG proprio motu ; and in CARDINAL case ORG quashed an earlier decision adopted by an appellate court for lack of proper reasoning . The said appellate court had rejected the request for payment of accrued pensions because the claimant had allegedly failed to make proper prior use of the administrative remedies which it deemed relevant . In decisions PERSON . nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL of DATE , DATE and DATE , respectively , ORG also referred to the PERSON judgment , stating that it had taken that case - law into account but that the appellants had simply not complained that their property rights had been breached . Their complaints had focused instead on the inconsistent domestic case - law , as mentioned above . The other appeals were dismissed for various procedural reasons . In any event , ORG always considered only the complaints as specified by the appellants and “ could not go beyond that ” .

These regulations provide for a separate system whereby all persons aged CARDINAL or over “ habitually residing ” in GPE have the right to a “ basic pension ” .

On DATE ORG adopted this LAW , which essentially endorsed the system as set up by the two Regulations cited above but transferred the functional competencies from UNMIK to the FAC authorities .

These regulations provide , inter alia , that the basic pension referred to in paragraph CARDINAL above , in the amount of ORG CARDINAL DATE , could be increased to ORG CARDINAL DATE in respect of all pensioners aged CARDINAL or over , habitually residing in GPE , who could , inter alia , prove that they had been paying pension insurance contributions to the SPDIF for DATE and were not in receipt of another pension on the same basis .

These regulations essentially affirm those described in paragraph CARDINAL above , but raise the pension in question from ORG CARDINAL to LAW DATE .

Articles CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL state , inter alia , that a “ basic age pension ” , that is a “ minimal regular DATE pension ” , shall be paid to all “ permanent citizens ” of GPE aged CARDINAL or over , regardless of whether they had ever been employed .

Articles CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL provide for an “ age contribution - payer pension ” , that is a “ regular DATE pension ” for “ employed citizens ” of GPE , who had paid their contributions to the ORG prior to CARDINAL January CARDINAL . LAW envisages that all persons entitled to a contribution - based pension shall be categorised by ORG taking into account the applicable pensionable employment period , as well as other relevant criteria .

Article CARDINAL provides , inter alia , that pension adjustments , taking into account the living costs and the rate of inflation , shall be regulated by the Kosovan authorities on an annual basis .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the applicant instituted proceedings before ORG against the ORG claiming non - pecuniary damages inflicted on her by involuntary confinements in ORG in DATE and DATE .

At the first hearing held on DATE the applicant lodged a request to delegate territorial jurisdiction to another court .

On DATE ORG upheld her request and delegated jurisdiction to ORG .

On DATE ORG held the first main hearing .

On DATE the applicant lodged a request with ORG a motion to have the presiding judge excluded .

On DATE the Vice - President of ORG upheld the applicant ’s request .

DATE the court held further CARDINAL hearings .

On CARDINAL DATE the applicant lodged a second request to have the then presiding judge excluded and a request to transfer the case to another court with the subject - matter jurisdiction .

On DATE ORG dismissed the applicant ’s request to transfer the case to another court .

On DATE the President of ORG dismissed the applicant ’s request for the exclusion of the presiding judge .

On DATE the applicant lodged a request to have the president of ORG and the presiding judge excluded .

On DATE the President of ORG dismissed the applicant ’s request to have the President of ORG excluded .

On DATE the President of ORG dismissed the applicant ’s request to have the presiding judge excluded .

In the meantime , on DATE , ORG imposed a fine of MONEY ( ORG ) on the applicant for abuse of her procedural rights by having lodged the requests concerning the exclusion of the presiding judge . The applicant appealed .

On DATE ORG upheld the applicant ’s appeal and annulled the order to fine the applicant . The court held that the district court failed to establish that by lodging the requests the applicant had abused her procedural rights .

On DATE the applicant lodged a supervisory appeal . On DATE the President of ORG replied that a hearing would be scheduled for DATE .

A further hearing was held on DATE .

On DATE ORG issued a judgment in which it upheld the applicant ’s claim in part . Both parties appealed .

On DATE ORG upheld the appeals , quashed the judgment of the lower court and modified it by dismissing the claim in respect of the confinement in DATE as time - barred and decided that the claim for non - pecuniary damages in respect of the confinement DATE was well - founded but that the first instance court needed to decide on the amount of compensation in a new set of proceedings .

NORP The applicant lodged a motion for leave to file an appeal on points of law in respect of the question whether her claim for damages due to the DATE confinement was time - barred .

On DATE ORG allowed the applicant ’s appeal on points of law .

On DATE ORG granted the applicant ’s appeal on points of law and quashed the respective part of the decision of the higher court .

On DATE ORG quashed the decision of the district court in respect of the DATE confinement and remitted the case back to the district court .

On DATE the applicant lodged a further supervisory appeal which was dismissed on DATE .

On DATE ORG held the first main hearing after the remittal and postponed the hearing for an indefinite period in order to obtain an expert opinion on the applicant ’s mental health at the time of the confinement .

On DATE the applicant lodged a motion for a deadline with ORG .

On DATE ORG granted the applicant ’s motion for a deadline and ordered the district court to deal with the case with priority .

The proceedings are still pending before ORG which still needs to decide on the applicant ’s claim in respect of the confinement in DATE and on the amount of compensation in respect of the DATE confinement .

On DATE the applicant amended her claim in the above proceedings by claiming further non - pecuniary damages due to the length of proceedings . This part of the claim was separated from the main claim and referred to ORG .

On DATE the applicant raised the claim to ORG CARDINAL .

On DATE ORG dismissed the applicant ’s claim as premature since the main proceedings were still pending . The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal . The applicant lodged a motion to file an appeal on points of law .

On DATE ORG allowed the applicant ’s appeal on points of law in respect of the question whether it was possible to claim compensation for a violation of one ’s right to a trial without undue delay before the termination of the main proceedings .

On DATE ORG held that even though the proceedings had been instituted before DATE when the Act on ORG ( “ the DATE Act ” ) became operational , the latter was applicable to the applicant ’s case and therefore it was not possible to claim compensation before the termination of the main proceedings . It further held that since the appeal on points of law was explicitly excluded as a legal remedy in the proceeding under LAW , the applicant ’s appeal on points of law should be rejected on procedural grounds as not allowed . The applicant lodged a constitutional complaint .

On DATE ORG dismissed the applicant ’s constitutional complaint by reference to LAW of LAW .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 18+5-1 - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE and is currently detained in a prison in GPE .

Prior to the parliamentary election of CARDINAL DATE , which resulted in a change of power , the applicant , one of the leaders of the then ruling party , ORG ( ORG ) , exercised , for DATE in DATE , the function of Prime Minister of GPE . Prior to that , DATE , he had held the post of Minister of the Interior .

After the political coalition ORG had won the parliamentary election of DATE and formed a new government , the applicant was elected Secretary General of the ORG , which became the major opposition force in the country .

DATE and CARDINAL DATE , the date when he was charged with criminal offences and arrested ( see paragraph CARDINAL below ) , the applicant had made CARDINAL business trips from GPE to various foreign countries , always returning as scheduled .

On DATE , when travelling from GPE to GPE to attend an international seminar of ORG , the applicant attempted to cross the NORP State border at FAC using an allegedly fake international passport .

After registering the passport in the relevant electronic database , an officer of ORG of GPE , GPE , noticed a discrepancy between the photograph in the passport , which fully matched the applicant ’s appearance , and the other data in the travel document , including the name of “ PERSON ” , which differed from the identity information stored about the applicant in the electronic database . The police officer returned the problematic passport to the applicant ’s personal assistant , requesting clarification . The assistant immediately brought from the applicant ’s office another passport which was issued in the latter ’s real name and matched all his other identification data . After checking the authenticity of that second travel document , the applicant was allowed to cross the NORP border .

DATE , DATE , a criminal investigation was launched by ORG into the abovementioned incident . The Chief of ORG immediately went to GPE airport to interview the officer , GPE , who had discovered the allegedly fake passport in the applicant ’s possession , in person . As subsequently established by the investigation and confirmed by a number of witnesses , when present at the airport the Chief of ORG suddenly received a call from the applicant on his mobile phone . The latter attempted to exert pressure on the Chief by using his status and long - standing personal connections within the hierarchy of ORG . The applicant demanded categorically that no inquiry be conducted with respect to the incident with the passport and that officer GPE never be called to testify as a witness . According to statements subsequently given to the investigation by the Chief of ORG , the applicant made career and personal threats and used obscene language during their telephone conversation .

Interviewed on CARDINAL and DATE by investigators from ORG with respect to the incident , the applicant denied presenting to ORG a passport under the name of “ PERSON ” , and stated that he possessed CARDINAL passports , CARDINAL ordinary ones and CARDINAL diplomatic travel documents , all of them issued under his real name .

On DATE a new set of criminal proceedings for embezzlement and abuse of official authority were launched against the applicant and the Governor of GPE . They both duly appeared before ORG ( “ the CPPO ” ) on DATE , and were interviewed as witnesses .

On DATE a third set of criminal proceedings was instituted at ORG of GPE in respect of another instance of abuse of official authority allegedly committed by the applicant .

On DATE the applicant and the Governor of the Kakheti Region were examined as witnesses in the context of the second set of the criminal proceedings .

On DATE all CARDINAL of the above - mentioned sets of criminal proceedings ( see paragraph CARDINAL , CARDINAL and DATE above ) were joined into CARDINAL criminal case .

On DATE the applicant and the Governor of PERSON were summoned by the prosecution authority for another interview . At the end of that examination both were arrested .

The applicant ’s arrest was linked to a suspicion that he had engaged in vote - buying ( Article CARDINAL ) of LAW ) , misappropriation of another person ’s property ( CARDINAL § CARDINAL of LAW ) , abuse of official authority ( CARDINAL of LAW ) , and breach of inviolability of another person ’s home ( LAW ) . As confirmed by the relevant record , the arresting officer duly explained to the applicant , who was assisted by a lawyer of his choice , the nature of the above - mentioned charges against him , as well as his procedural rights . The applicant was also briefed on the reasons for his arrest . Notably , that there existed risks that he , as a particularly influential person who had held several high - ranking ORG offices in the past , might negatively influence the progress of the investigation , and that , having regard to his previous attempt to cross the State border with a fake travel document , he might abscond from the trial .

On DATE , CARDINAL DATE , the applicant ’s wife left GPE . A judicially authorised search of the applicant ’s apartment was conducted DATE , the results of which confirmed the discovery of large sums of money in cash ( see the subsequent paragraph ) .

On CARDINAL DATE the prosecutor in charge of the applicant ’s case applied to ORG for pre - trial detention of the applicant as a preventive measure . The prosecutor first gave arguments in support of the risk that the applicant would abscond . Thus , because he had held the posts of Minister of the ORG and Prime Minister of the country in the past , he had formed a broad and extensive personal network within the country and abroad . The applicant possessed CARDINAL valid diplomatic passports under his real name , and those travel documents allowed him to use simplified procedures for entering any foreign country as well as other privileges reserved for diplomats . Furthermore , it appeared that the applicant also had a false passport ( see paragraph CARDINAL above ) . Moreover , the prosecutor continued , the fact that the applicant ’s spouse had hurriedly left GPE on CARDINAL DATE , after the applicant had been summoned by the investigating authority , also gave rise to a suspicion that the applicant might aim to join his wife outside the country . The prosecutor also emphasised the fact that during a search of the applicant ’s apartment on CARDINAL DATE , large amounts of money in cash MONEY ( ORG ) , MONEY ( ( ORG , some ORG CARDINAL ) and CARDINAL NORP laris ( GEL , some ORG CARDINAL ) DATE were discovered , which fact further substantiated the suspicion that the applicant might have been preparing to flee the country .

NORP The prosecutor then enumerated arguments in support of the claim that the applicant might hamper the investigation . Again , given that the applicant had held various high - ranking ORG posts , he had therefore directed and supervised numerous ORG agents employed in various public agencies . Considering that the impugned offences were closely related to his past activities in public office , and the fact that the majority of the important witnesses had worked under the applicant ’s hierarchical subordination , there was a well - substantiated risk that the applicant might influence those people . The prosecutor ’s argument was confirmed by reference to the incident of CARDINAL DATE , when the applicant had managed to identify the mobile phone number of the Chief of ORG , placed a call and exerted pressure on the latter in a rude and obscene manner by uttering personal and career threats ( see paragraph CARDINAL above ) .

By a decision of CARDINAL DATE ORG , after holding an oral hearing with the participation of both the co - accused and their lawyers , decided to release the PERSON Governor on bail , the amount of which was fixed at GEL MONEY ( some EUR CARDINAL ) , and to remand the applicant in custody . LAW was mentioned as the legal basis for imposition of the detention in the reasoning part of the decision .

As to the grounds confirming the necessity of the detention measure , ORG stated that it accepted the prosecution authority ’s arguments concerning the risks of absconding and impeding the course of the investigation ( see paragraphs CARDINAL above ) . Whilst acknowledging that the applicant had proved to be cooperative with the investigation by appearing for interviews , ORG stated that he could nevertheless use his prominent social position , which emanated from the fact of his having held various high - ranking posts in the past , to hamper the investigation process . The court emphasised that the witnesses who were to be examined had been or still remained under the applicant ’s direct hierarchical authority and personal influence . ORG further specifically noted in that respect that the applicant had already been suspected of an attempt to influence the specific witnesses , the Chief of ORG and officer GPE , within the context of the ongoing criminal proceedings ( see paragraph CARDINAL above ) .

NORP In its decision of CARDINAL DATE , ORG indicated , pursuant to LAW ORG , that a pre - trial conference would open on DATE .

The applicant appealed against the decision of CARDINAL DATE , complaining that the imposition of the pre - trial detention had been unreasonable because ORG had failed to refer to any specific evidence or arguments in support of the supposed risks of hampering the investigation or absconding the trial .

By a decision of CARDINAL DATE , ORG dismissed the applicant ’s appeal as ill - founded , confirming that the lower court had correctly assessed the relevant factual circumstances and applied the legal provisions .

On DATE the prosecutor asked ORG to postpone the opening of the pre - trial conference until DATE . The prosecutor substantiated his application by the need for certain additional specific investigative measures to be conducted . Both the applicant , represented by CARDINAL lawyers , and the co - accused ORG Governor agreed with that application in part . By a decision of CARDINAL DATE the ORG granted the request in part , postponing the date until DATE .

On DATE the applicant ’s lawyers sought a further postponement of the pre - trial conference . They argued that the case file was voluminous and more time was needed for the preparation of the defence . The prosecutor objected , indicating that the applicant was attempting to protract the proceedings and leave less time for an examination of the case on the merits . ORG satisfied , on DATE , the applicant ’s request in full , and a new date for the pre - trial conference was set for CARDINAL DATE .

On DATE the ORG opened the pre - trial conference .

According to a record of a subsequent session of the pre - trial conference held on DATE , the applicant asked for his pre - trial detention to be replaced by a non - custodial measure of restraint . In support , he referred to the prosecution authority ’s failure to indicate any new arguments arguably capable of substantiating the risks of absconding or impeding the investigation . As additional guarantees for his appearance for trial , the applicant referred to the fact that he was the Secretary General of a major political party , that he had made a public pledge to cooperate with the authorities , and that he had never failed to appear before the investigating authorities in the past . As further revealed by an audio record of the relevant court hearing , the applicant argued that his continued detention was no longer necessary , as all the witnesses had already been questioned by the investigating authority . The prosecution authority replied that since the witnesses still had to testify before the trial court , the risk that the accused would exert undue pressure on them was still present . The authority reminded ORG of the incident with the fake passport , when the applicant had managed to threaten a high - ranking officer of ORG ( see paragraph CARDINAL above ) .

The applicant ’s request for the termination of the pre - trial detention was examined and rejected by ORG on DATE , DATE . Thus , the court , after hearing the parties’ arguments , announced its decision orally , for the audio record . As disclosed by that record , the judge briefly stated , without giving any explanation , that the “ request for the termination of the pre - trial detention should be rejected ” .

By a judgment of CARDINAL DATE , ORG convicted the applicant of the majority of the charges brought against him . Thus , he was found guilty of vote - buying ( LAW ) , misappropriation of another person ’s property in a large amount ( LAW ( a ) , ( d ) , and CARDINAL ( b ) of LAW on several counts ) , and breach of inviolability of another person ’s home ( LAW ( b ) of LAW ) . As regards the offence of abuse of official authority ( LAW ) , it was dismissed by the court as redundant . The applicant was sentenced to DATE imprisonment .

On DATE ORG upheld the applicant ’s conviction of CARDINAL DATE in full . According to the file as it stands to date , the applicant lodged a further appeal on points of law , and the ensuing proceedings are currently pending before ORG .

According to the applicant ’s addendum to the case file after the communication of the present case , on DATE , at TIME , he was unexpectedly removed from his prison cell . The accompanying prison guards covered his head with a jacket , put him into a car , and drove him to an unknown destination . The journey lasted TIME , after which he was escorted into a building . When he was brought inside one of the rooms the guards took the jacket off his head , and he saw CARDINAL people . CARDINAL of them was allegedly ORG , PERSON , and the other was the head of the prison authority , GPE

According to the applicant , ORG offered him a bargain during that meeting . Notably , the applicant was invited to reveal the “ truth ” about the circumstances surrounding the death of the former Prime Minister PERSON on DATE ( who , according to an official version of the events , had died in a rented flat from carbon monoxide poisoning caused by an inadequately ventilated gas heater ) and , in addition , to provide information about secret offshore bank accounts of the former President of GPE . The applicant turned down the deal , describing PERSON ’s suggestions as a conspiracy theory and nonsense . In reply , ORG allegedly threatened the applicant that his detention conditions would worsen if he did not agree to cooperate with the authorities . The applicant was returned to his prison cell at TIME

On DATE , during a public hearing before ORG , which was already examining the merits of the criminal case against the applicant in the presence of the prosecuting authority and media representatives , the applicant made a statement about what had happened on DATE . He described in detail his night - time conversation with ORG .

On DATE the Prime Minister of GPE publicly commented that the applicant ’s allegations of the TIME removal from prison for a meeting with ORG were a sheer lie , that no investigation would be launched in that respect , and that the applicant should instead “ consult a psychiatrist ” . Subsequently , paraphrasing another public person ’s comment , ORG made the following remark : “ After all , what was this story of abducting [ the applicant ] from the prison all about ? Did [ ORG ] rape him or what?’ ” In the same vein , ORG issued an official statement condemning the applicant ’s allegations as “ untrue ” and “ absurd ” .

On DATE the Minister of Prisons publicly stated that “ [ the applicant ] was not taken out of the prison ... No investigation has been launched into such frivolous allegations . ” The Minister added that recordings made by the prison surveillance systems , which could shed light on whether or not the latter had been taken out of and returned to his cell at the specified times on DATE , could be made public only if a criminal probe was launched in respect of the applicant ’s allegation .

On the other hand , certain other high ORG officials , such as the President of the ORG and the Minister of ORG , acknowledged , in the immediate aftermath of the incident of DATE , that there was a need to launch a thorough and impartial criminal investigation into the issue . On DATE ORG of GPE visited the applicant in prison , where they discussed in detail the incident of DATE . After the meeting , the Defender made a public statement about the necessity to launch a criminal investigation in order to clarify all the facts , and emphasised that the applicant would be ready to cooperate .

On DATE the applicant made a formal request to ORG , of which ORG and ORG were also informed , for the video footage from the prison surveillance system covering TIME DATE to be provided to his lawyer . Those recordings would prove the need for a criminal investigation into his unlawful removal from the prison on that night .

On DATE the Public Defender again called upon the authorities to investigate the applicant ’s allegations . On DATE the Minister of Prisons stated that the recordings from the surveillance system of the applicant ’s prison covering TIME DATE could no longer be extracted as they had automatically been deleted within twentyfour TIME after being recorded .

On DATE the applicant submitted a question to ORG about whether or not a criminal investigation had been launched into the incident of DATE . On DATE the prosecutorial authority informed the applicant that an internal probe carried out by ORG of ORG had not confirmed the applicant ’s alleged irregular removal from the prison . No further details about that probe were given .

On DATE a Member of ORG published certain documents showing that high bonuses were paid in DATE to a number of officers of the prison where the applicant was detained . The parliamentarian suggested that those officers were financially rewarded for their association with the applicant ’s removal from the cell .

On DATE PERSON , a chief advisor to GPE , the Head of ORG , made a public statement confirming the truthfulness of the applicant ’s allegations . She stated : “ [ E]ven a child knows that [ the applicant ] was taken from his prison cell by GPE ” . She further stated that she had been in contact with a number of agents of ORG who had confirmed to her , in private conversation , that they had been instructed by GPE to hide surveillance camera recordings covering TIME DATE .

On DATE , DATE , GPE dismissed PERSON from her position . DATE , on DATE , he himself resigned from the post of head of the prison authority .

The applicant submitted numerous newspaper articles containing interviews with various high - ranking officials of the current regime in the country ( CARDINAL successive prime ministers , various ministers , Members of ORG from the ruling coalition , and so on ) as a proof that there was politically motivated persecution against him . He also referred to a number of official statements issued by the international community , which conveyed concern over the initiation of criminal proceedings and arrests of a number of former high - ranking Government officials , including the applicant .

Thus , for instance , the President of ORG made a public statement on CARDINAL DATE , after his meeting with the Prime Minister of GPE , which included the following passage :

“ The elections in GPE were successfully held , and they were recognised as free and fair ... Democracy is more than elections , it is the culture of political relations in democratic environment . In this respect , situations of selective justice should be avoided as they could harm the country ’s image abroad and weaken rule of law . ”

The European Union High Commissioner for Foreign and Security Policy publicly declared during her visit to GPE on CARDINAL DATE the following : “ ORG calls on all sides in NORP politics to uphold NORP values of democracy , freedom and the rule of law . There should be no selective justice ; no retribution against political rivals . Investigations into past wrongdoings must be , and must be seen to be , impartial , transparent and in compliance with due process . ”

As an additional proof that the current Government was engaged in persecution of its political opponent , the applicant referred to the following excerpt from a ORG adopted by ORG of ORG PACE ) on DATE :

“ It has to be noted that DATE on , almost the entire leadership of the former ruling party has been arrested or is under prosecution or investigation : former Prime Minister and ORG Secretary General , [ the applicant ] , former Defence Minister , [ GPE ] , and former GPE mayor and ORG , campaign manager , [ ORG ] , are in prison ( pre - trial detention ) . The judicial authorities have charged the former President , [ GPE ] , and ordered pre - trial detention in absentia , as well as for former Minister of Defence , [ GPE ] , and former Minister of Justice , [ Z.A. ] . ”

On DATE the Commissioner for Human Rights of ORG published a ORG on his visit to GPE which had taken place from DATE . Included in an array of various problematic human rights issues affecting the country the Commissioner also addressed the allegations of undue criminal prosecution of members of the former ruling party , the ORG . The relevant excerpt from the ORG as emphasised by the applicant , which passage made a separate reference to the incident of DATE , reads as follows :

“ DATE . The cases of [ the applicant ] , [ GPE ] , and [ G.U. ] – all of them members of or associated with the UNM – were discussed by the Commissioner during his visit . [ The applicant ] was formerly Prime Minister and Secretary General of the FAC at the time of his arrest on DATE . He has alleged that on DATE , he was taken away blindfolded from the prison by unknown individuals and brought to ORG of ORG where he was threatened by the then Chief Prosecutor ... Human rights NGOs have called for an investigation into the foregoing allegations and expressed concerns that the internal inquiry by ORG failed to clarify the situation and raised more questions , including regarding the unavailability of video footage from surveillance cameras in the prison . In this regard , ORG indicated to the Commissioner that due to the fact that [ the applicant ] made his complaint only on DATE after the alleged events – the video footage was unavailable because it was automatically overwritten TIME . ”

Then , in the relevant concluding part of the ORG , the Commissioner made the following call upon the NORP authorities with regard to the above - mentioned allegations of unduly motivated criminal proceedings :

“ CARDINAL . The Commissioner wishes to underline that the judicial system should be sufficiently resilient so that its proper functioning is not disrupted by the transfers of power which are characteristic of any true democracy . The persistence of allegations and other information indicative of deficiencies marring the criminal investigation and judicial processes in cases involving political opponents are a cause for concern , as this can cast doubt on the outcome of the cases concerned even when there have been solid grounds for the charges retained and the final convictions . The NORP authorities must address these issues at the systemic level , in the interests of respecting fair trial guarantees for everyone and in enhancing public trust in the institutions responsible for upholding the law . ”

In support of his claim of undue political motivation behind the initiation of the criminal proceedings against him , the applicant also referred to a ORG published on DATE by ORG ( ORG ) on its trial monitoring activities in GPE . The ORG had started the relevant trial monitoring project in DATE , focusing on the follow - up of CARDINAL sets of criminal proceedings unrelated to each other , conducted against senior officials of the previous government , which included the applicant ’s criminal case . After having identified , through the prism of all QUANTITY criminal cases , a number of shortcomings with respect to the fair trial guarantees – such as the principle of equality of arms between parties , the presumption of innocence , the perception of undue influence on the prosecution authority by the executive branch of power , and the unreasonable use of preliminary detention – the ODIHR Report made a number of recommendations to the NORP authorities on how to improve the system of criminal justice in general .

On DATE ORG adopted a ORG on the endorsement of ORG between ORG and GPE . An excerpt from that ORG , cited by the applicant himself in support of his claim , read as follows :

“ [ ORG ] expresses concern that numerous officials who had served under the previous government and some members of the current opposition have been charged with criminal offences and are imprisoned or placed in pre - trial detention ; expresses concern , also , about the potential , use of the judicial system to fight against political opponents , which could undermine the efforts of the NORP authorities in the area of democratic reform ; recalls that the existence of a valuable political opposition is paramount to the creation of a balanced and mature political system , to which GPE is aspiring . ”

Lastly , the applicant referred to the relevant excerpts from ORG GPE Parties to ORG adopted by the PACE on DATE . These passages read as follows :

“ CARDINAL . The following abusive grounds for pretrial detention have been observed in a number of GPE Parties to ORG , namely :

to put pressure on detainees in order to coerce them into confessing to a crime or otherwise co - operating with the prosecution , including by testifying against a third person ( for example the case of PERSON , in GPE , and certain cases of opposition leaders in GPE , such as former Prime Minister , [ the applicant ] ) ;

to discredit or otherwise neutralise political competitors ( for example , certain cases of ORG ( ORG ) leaders in GPE ) ; ...

The root causes of the abusive use of pretrial detention include : ...

the possibility of “ forum shopping ” by the prosecution , which may be tempted to develop different strategies to ensure that requests for pretrial detention in certain cases are decided by a judge who , for various reasons , is expected to be “ accommodating ” ( for example in GPE , GPE and GPE ) . ”

Subsequent to the communication of the present case , the applicant informed ORG for the first time that CARDINAL additional sets of criminal proceedings had been launched against him . Those new criminal cases were not linked in any manner to the main set of the criminal proceedings which had served as the basis for the imposition of the pre - trial detention initially contested by the applicant in the present case ( see paragraphs CARDINAL and CARDINAL - CARDINAL ) .

NORP In particular , on CARDINAL DATE a charge of exceeding of official powers through the threat or use of force ( LAW ( b ) of LAW ) was brought against the applicant in relation to his role , in his capacity as Minister of the ORG , in the planning and supervision of a violent dispersal of a peaceful demonstration by police forces on CARDINAL DATE . By a judgment of DATE , ORG , having established the fact that the applicant had directly given an order to the police forces to dislodge the demonstrators with an excessive use of force , convicted him of the offence . On DATE ORG upheld the judgment of the first - instance court , and the proceedings are currently pending , according to the applicant ’s latest submissions available in the case file , before ORG .

On DATE CPPO brought new charges against the applicant under LAW ( abuse of authority by a high - ranking ORG official ) and LAW ( falsification of official records ) . That new criminal case related to the role of the applicant , in his capacity as Minister of the ORG , in the cover - up of a homicide case which had implicated a number of his close associates , high - ranking officers of the same ORG , as well as his wife , back in DATE ( see PERSON and PERSON v. GPE , no . CARDINAL , § DATE , DATE ) . On DATE ORG , having established that the applicant had personally contributed to perverting the course of the investigation in that homicide case , convicted the applicant of the CARDINAL above - mentioned charges , and the criminal proceedings are currently pending before a court of higher jurisdiction .

On DATE the applicant was charged with a new offence under LAW ( b ) of LAW in relation to his role as Minister of the ORG , in the planning and supervision of a police raid on a private television and radio company , ORG , on DATE as well as of the subsequent unlawful removal of the broadcasting licence from the company ( for more details , see PERSON and Others v. GPE ( dec . ) , no . DATE , DATE ) . Finally , on DATE yet another charge under LAW ( b ) of LAW was brought against the applicant . He was accused of ordering a number of high - ranking police officers to arrange for ill - treatment of a Member of ORG in retribution for insulting and libellous statements the latter had publicly proffered against the wife of the President of GPE . The latter CARDINAL sets of criminal proceedings are , according to the applicant ’s latest factual addendum , still pending before the trial court .