Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);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 5-4 - Procedural guarantees of review)

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and habitually resides in PERSON ( GPE ) .

From DATE until DATE the applicant was continuously deprived of his liberty in GPE , mainly within the scope of detention pending trial on various charges pursued against him , partly in parallel and partly consecutively . His overall deprivation of liberty included the following periods .

From DATE until DATE he was remanded pending trial on several charges , which included what would later be classified as the charge of conceiving , setting up and supporting a criminal and terrorist group ( see paragraphs CARDINAL and DATE below ) . On the latter date the prosecution on that charge was removed to be dealt with in a separate set of proceedings .

The applicant ’s pre - trial detention in the subsequent period would later be set off against a DATE prison sentence imposed on him for the offence of attempting to legalise the proceeds of a criminal activity . He was released from detention in connection with that offence on DATE .

Immediately after his release from the last - mentioned detention , the applicant ’s liberty was again restricted and it later resulted in his being remanded pending trial on the charge of murder , of which he was ultimately acquitted on DATE . In consequence , he was released from detention on DATE .

Following his release on DATE , the applicant was immediately re - arrested on DATE , and later remanded pending trial on the charge of conceiving , setting up and supporting a criminal and terrorist group ( see paragraphs CARDINAL above and CARDINAL below ) . This term of detention ended with the applicant ’s release on DATE .

Upon his release on CARDINAL DATE , the applicant was immediately re - arrested on DATE , and was later remanded pending trial on another charge of murder . This term of detention ended with the applicant ’s release on DATE .

Upon his last - mentioned release , the applicant was immediately transferred to the detention centre for foreigners ( záchytný tábor ) in LOC , where he was detained until his expulsion to GPE on DATE .

The applicant ’s prosecution on the first charge of murder ( see paragraph CARDINAL above ) commenced in DATE while he was still deprived of his liberty within the scope of detention pending trial on the charge of attempting to legalise the proceeds of a criminal activity ( see paragraph CARDINAL above ) .

On DATE an investigator informed the public prosecution service ( “ PPS ” ) that if the applicant ’s conviction and sentence for attempting to legalise the proceeds of a criminal activity were to be upheld on appeal ‒ an appeal which was about to be heard ‒ the applicant would be eligible for release because the DATE term of his sentence would soon be fully covered by the term of his detention . It would therefore be advisable to consider lodging an application for the applicant to be detained pending trial on the murder charge , which the ORG subsequently did .

NORP Immediately after the applicant ’s release from detention in connection with the charge of attempting to legalise the proceeds of a criminal activity , on DATE , he was taken to the LOC and ORG in GPE , where a decision was taken ordering his administrative expulsion , a ban from re - entering GPE for DATE , and detention pending the enforcement of the expulsion order ( zaistenie ) . The applicant was then taken to the detention centre in GPE to await implementation of the expulsion order .

In the course of the murder trial , a public session ( verejné zasadnutie ) was scheduled to take place before the Bratislava I ORG ( ORG súd ) on DATE with a view to examining questions concerning the detention of the applicant . However , in view of the circumstances described in the foregoing paragraph , on DATE the public session was cancelled and the applicant was summoned for questioning the following day .

On TIME the applicant was seized in the detention centre in LOC by police officers who then brought him to ORG for the questioning that had been ordered .

Later in DATE of DATE , the applicant was brought before a Chamber of the District Court for the questioning , immediately after which ORG ordered a private session ( neverejné zasadnutie ) with a view to making a decision concerning the applicant ’s detention .

Following the private session of DATE , on DATE , ORG remanded the applicant in detention pending trial on the murder charge .

NORP Immediately following the pronouncement of the detention order , on DATE , which was a DATE , the applicant stated on the record that he wished to lodge an interlocutory appeal and that he would submit the reasons for his appeal upon receiving the written version of the detention order with reasons . The appeal and its reasons were to be submitted to the court of appeal via the first - instance court , that is to say ORG .

On DATE , which was a DATE , the applicant submitted the reasons for his appeal in writing in the LANGUAGE language , stating that he would submit further reasons when the written version of the remand order was served on him . It appears that the applicant ’s submission of DATE was received at ORG on DATE .

On the last - mentioned date , that is to say on DATE , the written version of the detention order was served on the applicant in the NORP language and , on DATE , ORG transmitted the case file to ORG ( PERSON súd ) for determination of the applicant ’s interlocutory appeal .

On DATE , which again was a DATE , the applicant sent a further written submission in the LANGUAGE language , adding reasons to his appeal . It appears that this submission was received at ORG on DATE .

NORP However , on DATE , that is to say on DATE , ORG determined the applicant ’s interlocutory appeal by dismissing it as unfounded . ORG observed at the outset that the applicant had not submitted any reasons for his appeal either orally or in writing .

On DATE the applicant lodged a complaint with ORG ( Ústavný súd ) under LAW of LAW ( Constitutional law no . PERSON . , as amended ) .

Relying inter alia on LAW , he contended that ( i ) his arrest and bringing before ORG had been unlawful ; ( ii ) the remand decision had been arbitrary ; and ( iii ) ORG had failed to take account of the reasons for his interlocutory appeal submitted on CARDINAL and DATE .

On DATE ORG declared the applicant ’s complaint inadmissible as being manifestly ill - founded .

It acknowledged that any tribunal ruling on matters concerning detention on remand was under a duty to examine carefully all submissions made by the person remanded , but pointed out that the applicant ’s submissions of CARDINAL and DATE had not been available to ORG when it examined his interlocutory appeal . In addition , matters concerning detention on remand generally require swift determination and courts of appeal were obliged to determine interlocutory appeals in such matters within DATE of the date when the appeal was referred to them for determination . Furthermore , in contrast to case no . II . ÚS CARDINAL/CARDINAL ( see paragraph CARDINAL below ) , the applicant had been heard at first instance . And lastly , he had been represented by a lawyer , but the latter had taken no steps to ensure the effective assertion of his rights .

Thus , in the circumstances , the decision to dismiss the applicant ’s interlocutory appeal without examining the reasons for it could not be considered arbitrary .

ORG decision was served on the applicant on DATE .

At TIME on DATE , following his acquittal of the first murder charge and release from detention in connection therewith DATE , the applicant was re - arrested . At TIME that day he was served with a document dated DATE charging him with the offence of conceiving , setting up and supporting a criminal and terrorist group ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE the ORG applied for an order for the applicant ’s detention pending trial , referring to charges of ( i ) DATE for fraud ; ( ii ) DATE for legalising the proceeds of criminal activities ; ( iii ) DATE for conceiving , setting up and supporting a criminal and terrorist group ; and ( iv ) DATE on another count of legalising the proceeds of a criminal activity .

On DATE a pre - trial judge at ORG ( Špecializovaný trestný súd ) remanded the applicant pending trial . As regards the specific trial in question , he identified it by reference to the charge of conceiving , setting up and supporting a criminal and terrorist group and the relevant provisions of LAW ( Law no . QUANTITY . , as amended ) .

The judge observed that the applicant was a non - national and that , prior to his initial arrest , for DATE he had not been living at his registered permanent residence , but rather at his girlfriend ’s address . However , he had not been registered as living there . Furthermore , the applicant had often been travelling abroad .

Accordingly , the judge held that there was no guarantee that , if left at liberty , the applicant would actually continue to live at his girlfriend ’s , as he had submitted he would do .

The judge also observed that the charges brought against the applicant in the other trials concerned various offences allegedly committed at various times and that even the bringing of these charges had not prevented him from allegedly committing the murder of which he stood accused in CARDINAL of those trials .

In addition , the applicant had already been convicted with final effect of attempting to legalise the proceeds of a criminal activity ( see paragraph CARDINAL above ) . Therefore , his declaration that he had sufficient means to live on was not a sufficient guarantee that he would not continue offending .

The judge concluded that there was a need to detain the applicant under LAW ( a ) and ( c ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) in order to prevent his fleeing and continuing to engage in criminal activities .

The applicant lodged an interlocutory appeal ( i ) arguing that his arrest had been unlawful because he had not been informed of the reasons for it ; ( ii ) contesting the charge and the reasons for detaining him ; ( iii ) complaining that he had already been deprived of liberty for DATE ; and ( iv ) complaining that his case demonstrated a pattern of arbitrarily remanding and re - remanding him consecutively on various charges .

On DATE ORG ( Najvyšší súd ) dismissed the applicant ’s interlocutory appeal , finding that all formal and substantive requirements for detaining the applicant had been met and that all the applicable time - limits had been observed .

On DATE the applicant lodged a fresh complaint with ORG .

Relying mainly on LAW , he complained that , on his arrest , he had not been informed of the reasons for it ; that the courts had ignored his argument concerning the unlawfulness of his arrest ; that his detention was in general arbitrary ; and , more concretely , that his case demonstrated a pattern of arbitrarily remanding and reremanding him consecutively on various charges .

On the last - mentioned count , he contended in particular that ( i ) he had been facing the charges pursued against him in the present trial for DATE ; ( ii ) he had been constantly detained for all those DATE ; ( iii ) throughout that period the authorities had had a sufficient time to pursue the case against him properly ; ( iv ) his previous accumulated detention had to be seen as CARDINAL matter ; and ( v ) there were no adequate grounds for its continuation .

On DATE ORG declared the complaint inadmissible . It held at the outset that it had no jurisdiction to examine any alleged violations in so far as they concerned the first - instance court because , in line with the principle of subsidiarity , such examination lay within the jurisdiction of the court of appeal .

ORG found that the report concerning the applicant ’s arrest contained references to the charges on which he had been arrested and had been signed by the applicant . There could therefore be no doubt as to his having been informed of the reasons for his arrest .

Similarly , it was apparent from ORG decision that it had taken note of the applicant ’s arguments regarding the lawfulness of his arrest . The fact that ORG had not given a specific answer on that point was not contrary to the applicant ’s rights because it had examined the arguments by implication when dealing with the overall lawfulness of the applicant ’s detention .

As to the remainder of the applicant ’s complaint , ORG acknowledged that the applicant ’s detention had by then lasted DATE in total . However , in terms of ORG decision , it was necessary to take into account the fact that the contested decision was neither a decision to dismiss his request for release nor a decision to extend his detention . Having taken into account the nature of the contested decision and the reasons behind it , and considering the length of the applicant ’s detention in concreto in the case at hand ‒ that is to say only since DATE ‒ the ORG came to the conclusion that , at the given time , the length of the applicant ’s detention had not yet reached a point of being unconstitutional .

The decision was served on the applicant on CARDINAL DATE .

The applicant ’s release on CARDINAL DATE ( see paragraph CARDINAL above ) had been ordered by ORG on DATE . In its decision , it observed that at the initial stage of the proceedings ( see paragraph CARDINAL above ) , the applicant had been prosecuted for and detained pending trial on various charges , which had then been removed to be dealt with in a separate set of proceedings on DATE and that , in the subsequent period , he had been remanded pending trial partly on the same charges . In this connection , it referred in the following terms to ORG judgment ( nález ) in unrelated case no . II . GPE CARDINAL/CARDINAL :

“ ... the removal of CARDINAL of several prosecuted offences to a separate set of proceedings is not , as such , contrary to the constitutional guarantees of personal liberty of the person facing the charges . Such a course of action on the part of the prosecuting authorities would , however , conflict [ with those constitutional guarantees ] ... if there were no well - founded reasons for it or if it manifestly served to obtain an extension of the detention beyond the statutory timescale of its duration , or if it otherwise entailed as a consequence the arbitrary keeping of a person in detention . ”

As regards the present case , ORG went on to observe :

“ In the case at hand it is not disputed that there are well - founded reasons for continuing the detention of [ the applicant ] .... However , on the other hand , it must be observed that in the given case doubts may not be completely dispelled that the keeping of the applicant ... in detention for DATE might appear to be an arbitrary and above all self - serving deprivation of liberty in order to obtain his conviction for serious offences , especially since he has been portrayed as the leader of an illegal mafia - type grouping .

Thus , if the duration of the above - mentioned [ initial ] detention is added to the period of the applicant ’s detention after DATE CARDINAL[CARDINAL ] ( DATE ) , it becomes apparent that the maximum permissible duration of his detention for [ CARDINAL of the charges ] has already been exceeded . At the same time , it must be observed that [ the applicant ] is being prosecuted for CARDINAL offences which may not be detached from one another because it is CARDINAL criminal matter for which he is detained . ”

ORG went on to observe that the applicant ’s detention after DATE resulted from his prosecution for the same offences

“ for which he had already been detained from DATE at least until DATE , when that matter had been removed to be dealt with in a separate set of proceedings . Within that period and in that matter , [ the applicant ] was detained for DATE and DATE ... [ He ] is at present detained in the same matter , which is still at pre - trial stage , ( the [ statutory maximum duration ] ) of such detention having been significantly exceeded .

However , at the same time , the [ statutory maximum duration ] of the whole detention has also been exceeded . ”

Moreover , in the closing part of its decision , ORG observed that :

“ The status of the examined matter is even more complicated , however : after the removal to a separate set of proceedings of a part of [ the charges against the applicant ] , no decision has been identified as having regulated the scope of the applicant ’s detention . From later decisions it may be understood that the applicant ’s detention was linked to his prosecution for the offence classified as murder , which had earlier been a part of the previously joined proceedings . This status must be accepted as reality ; if the detention of [ the applicant ] were linked to his prosecution for the offences which now form the subject - matter of the present proceedings , the maximum duration of [ his detention ] would have run out substantially earlier . ”

In a judgment of DATE ( case no . II . GPE CARDINAL/CARDINAL ) , ORG found a violation of the “ speediness ” requirement under LAW in the procedure for the review of the lawfulness of the applicant ’s detention in the first murder trial . However , his just satisfaction claim was rejected on the ground that he had failed to substantiate it .

NORP On DATE ( case no . PERSON CARDINAL/CARDINAL ) , ORG found a violation of the applicant ’s LAW in the context of the dismissal of his request for release from detention pending trial on the charge of conceiving , setting up and supporting a criminal and terrorist group . The grounds were essentially the same as those established by ORG in its decision of CARDINAL DATE ( see paragraphs CARDINAL et seq . above ) .

In a judgment of CARDINAL DATE ( case no . ORG CARDINAL/CARDINAL ) , ORG found a violation of the applicant ’s LAW in the context of the dismissal of his request for release from detention pending trial on the second murder charge ( see paragraph CARDINAL above ) . It observed that he had been remanded in detention pending trial on that charge as well as on the previous charge immediately after having been released from the previous detention , which had amounted to a recurring pattern . It was noteworthy that the alleged murder had taken place in DATE , although the applicant had not been charged with it until DATE , despite having been detained as early as DATE .

The applicant had been prosecuted for various offences both in parallel and consecutively . The respective statutory provisions concerning the maximum duration of detention could not be interpreted as authorising detention pending trial for the maximum period in relation to each individual charge . Otherwise , as had occurred in the applicant ’s case , a person could be detained for the maximum permissible period repeatedly for consecutively levelled charges ad infinitum , which was not justified by any public interest .

ORG nevertheless dismissed the applicant ’s just expedient nor appropriate ” ( účelné PERSON vhodné ) .

The written version of ORG judgment was served on ORG on DATE . It was against that court that the complaint was directed and , following ORG judgment , it eventually ordered the applicant ’s release on CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG also found a violation of the applicant ’s LAW rights in the context of his detention pending trial on the second murder charge ‒ not only on the same grounds as those mentioned above but also on others ‒ in CARDINAL further judgments of DATE ( case nos . GPE . GPE CARDINAL/CARDINAL , PERSON . GPE CARDINAL/CARDINAL and GPE . GPE CARDINAL/CARDINAL ) .

However , noting that the applicant had been released in the meantime , it also cited and endorsed its previous position that it was “ neither expedient nor appropriate ” to award him any just satisfaction .


CASE OF KHADZHIMURADOV AND OTHERS v. RUSSIA

Remainder inadmissible (Article 35-1 - Six-month period);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra

The applicants alleged principally that their CARDINAL relatives ( spouses , children , brothers and an uncle ) had been killed by ORG servicemen on DATE in the PERSON settlement on the outskirts of PERSON ( see PERSON for details ) .

A criminal investigation into the murders was opened on DATE by the ORG town prosecutor ’s office . Over DATE , the applicants or close members of their families were granted victim status in the proceedings . Those proceedings are still ongoing .

The documents indicate that CARDINAL applicant , PERSON ( application no . ORG ) , was in PERSON at the time of the events ; the other applicants were out of the district or out of GPE , owing to heavy fighting in DATE .

NORP In support of their claims , the applicants submitted copies of the death certificates issued in respect of their relatives , copies of some documents from the criminal investigation file , decisions granting them or their close relatives victim status in the criminal proceedings , statements which they had made , statements from witnesses to the events , and press and NGO reports . Several applicants also submitted documents issued in DATE by the local administration or “ neighbourhood committees ” confirming that the houses in which they had lived had been destroyed or damaged in DATE .

Some applicants complained that their state of health had deteriorated due to the stress and anguish which they had suffered in the aftermath of the PERSON killings , and particularly in view of the inadequate and callous response of the authorities to their plight .

The facts of the present case are connected to the case of GPE and Others v. GPE ( nos . CARDINAL and CARDINAL others , DATE ) in so far as the applicants claimed that their relatives had been killed by the same people and in the same circumstances as the relatives of the applicants in that case .

The applicants in GPE and Others complained that TIME of their relatives had been killed by unidentified servicemen on DATE in PERSON . The first applicant had witnessed the deaths of his CARDINAL distant relatives ( cousins and nephews ) . Other applicants in GPE and Others were more closely connected to the victims , and were their husband , sister or brothers . The first applicant had been granted victim status in the domestic criminal proceedings and had participated in those proceedings ( see PERSON and Others , cited above , § § DATE , CARDINAL , CARDINAL ) . It appeared that in the domestic criminal proceedings the proximity of the relationships between the victims and the deceased had not been fully ascertained , and , as noted in the GPE and Others judgment , no single list existed of the victims and the people who had been granted victim status in the proceedings ( ibid . , § § CARDINAL , DATE , CARDINAL ) . The Government did not challenge the first applicant ’s victim status under LAW .

On the basis of the parties’ submissions and inferences drawn by the ORG , it was established that on DATE CARDINAL relatives of the applicants had been killed by State servicemen in the PERSON settlement on the outskirts of PERSON , during a special operation ( a “ sweeping ” operation ) carried out by , amongst others , servicemen from LAW ( Отдел милиции особого назначения ( ОМОН ) ) from GPE ( hereinafter GPE PERSON ) .

According to the documents examined by the ORG , CARDINAL people had been killed on DATE in PERSON by unidentified servicemen wearing camouflaged uniforms and using automatic weapons , equipped with portable radio sets , armoured personnel carriers ( APCs ) and military LOC trucks . The same servicemen had also looted and burnt down a number of houses .

NORP In DATE , when the parties exchanged observations in GPE and Others , the criminal investigation was still ongoing . Although the investigation file reflected some attempts to identify the servicemen involved , there was no information that anyone had been charged with the crimes . The ORG concluded that the authorities had failed to carry out an effective investigation into the deaths .

In addition , the first applicant , who had witnessed the deaths of his relatives and had himself been held at gunpoint , was found to be a victim of inhuman and degrading treatment in breach of LAW . Lastly , a breach of LAW was found , since the criminal investigation into the deaths had been inefficient , rendering any other remedy equally futile .

On DATE the ORG town prosecutor ’s office opened criminal investigation no . DATE into the murder of several inhabitants of the PERSON settlement in PERSON by “ unidentified men armed with guns ” under LAW of LAW ( the murder of CARDINAL or more persons with aggravating circumstances ) ; the decision also referred to the looting of ORG property . In response to the ORG ’s request in the present case , the ORG submitted copies of CARDINAL volumes of documents from criminal case no . DATE , produced after the judgment issued in GPE and Others . Those documents can be summarised as follows .

The applicants submitted that , prior to the GPE and Others judgment in DATE , they had not been aware that another group of victims had applied to ORG . They also submitted that , prior to that date , they had had no reasons to doubt the effectiveness of the domestic investigation , even if no regular updates from the prosecutor ’s office had been forthcoming . Some of the applicants also referred to their previous contact with lawyers whom they had instructed to apply to ORG in DATE , but CARDINAL lawyer had died , and either their instructions to other lawyers had not been complied with or the applicants had not kept any written proof of those instructions . As the documents in the ORG ’s possession indicate , in DATE CARDINAL families of victims of the PERSON events sent a letter to the ORG stating their intention to apply to the ORG . That letter included CARDINAL applicants in the present case . The signatories failed to submit proper applications or otherwise pursue that complaint , which was eventually discontinued .

The deaths of CARDINAL people were found to be in breach of LAW in the PERSON and Others judgment ( cited above ) , and the family members of CARDINAL of those people are applicants in the present complaint ( see Appendix ) . While the first applicant in the GPE and Others case was a cousin and a nephew of the deceased , the applicants in the present group are the deceased ’s spouses , children and brothers .

The applicants in the present case ( or their close relatives ) were granted victim status in criminal investigation file no . DATE on various dates DATE and DATE ( see Appendix ) . CARDINAL applicants were questioned and received victim status in DATE and DATE . CARDINAL were granted victim status in DATE and DATE , and CARDINAL in DATE . The other CARDINAL received such status DATE . On DATE the investigator of the GPE prosecutor ’s office granted an application made by a lawyer , PERSON . The application was for CARDINAL people to have victim status . The list included CARDINAL applicants in the present case , CARDINAL of whom later obtained and countersigned proper individual decisions as indicated above . There is no information that any other procedural acts involving the applicants’ participation occurred DATE ( see the following paragraph ) .

The investigation was adjourned and resumed a number of times ( see subsection CARDINAL . Various procedural steps below ) ; on DATE the investigation was resumed . As of DATE the applicants in the present case and in GPE and Others and their close relatives were regularly questioned about the events of DATE . Thus , in DATE the following applicants were questioned : PERSON ( no . CARDINAL ) , PERSON ( no . MONEY ) , PERSON ( no . CARDINAL ) , PERSON ( no . CARDINAL ) , PERSON ( no . CARDINAL ) , PERSON ( no . MONEY ) , PERSON ( no . CARDINAL ) , PERSON ( no . MONEY ) , ORG ( no . MONEY ) , PERSON ( no . MONEY ) , PERSON ( no . CARDINAL ) , PERSON ( no . MONEY ) , ORG Bishayeva ( no . CARDINAL/CARDINAL ) , and ORG ( no . CARDINAL ) . In DATE the investigators questioned PERSON and PERSON ( no . QUANTITY ) ; in DATE they questioned PERSON ( no . MONEY ) , PERSON ( no . MONEY ) , PERSON ( no . CARDINAL ) , and ORG ( no . MONEY ) . During questioning , the investigators informed the applicants about forensic expert reports on the bodies that had been carried out in DATE . The applicants were also asked questions about the loss of property and were asked to estimate the pecuniary damage which they had sustained . While they provided some estimates , no documents were provided , and all applicants stated that they intended to seek pecuniary damages as civil parties during the trial .

DATE Additional questioning of the applicants , their relatives and other local residents continued into DATE and DATE which followed . New victims of the events were identified as late as DATE , and their relatives were granted victim status in the proceedings . The questioning of other local residents continued until DATE , when they were granted victim status in the proceedings , notably in respect of the loss of property .

On DATE PERSON ( application no . CARDINAL ) complained to LOC of PERSON regarding the decision of DATE to adjourn the investigation and the prosecutor ’s failure to conduct an efficient investigation into the murders .

On DATE the ORG noted that the decision of DATE had been quashed on DATE by ORG , and dismissed PERSON complaint . She did not appeal against that decision .

NORP The decision of DATE to adjourn the investigation ( and subsequent similar documents ) indicates that in DATE the investigation identified PERSON as a suspect . He was charged with aggravated murder and robbery . In DATE S.B. had been a police technician with the sapper battalion of GPE PERSON . The charges stated that on DATE he , along with CARDINAL other unidentified persons , had killed Mr PERSON ( the husband of PERSON , applicant in case no . CARDINAL ) by shooting him with a PERSON machine gun . PERSON was also charged with robbing CARDINAL other people of money and jewellery , TIME and PERSON In DATE PERSON escaped to GPE and his name was put on the international wanted list . In DATE the Zavodskoy ORG in ORG ruled that PERSON should be arrested . The decision of DATE states that the investigator informed the victims of that decision , but the case file contains no relevant correspondence . Copies of letters submitted by the parties indicate that a copy of that decision was sent to the victims on DATE .

NORP In DATE the investigators asked the prosecutor ’s office in GPE to question ORG civil partner about his whereabouts . In DATE she stated that she had had no information about PERSON ’s whereabouts since DATE , although she had seen him in DATE in GPE .

In DATE the investigators examined a social network page belonging to GPE and noted that the latest photographs on it had been uploaded in DATE . In DATE the investigators sought to obtain additional information about PERSON ’s whereabouts by questioning his other relatives , locating his mobile phone , and so on .

During the questioning of victims and witnesses the investigators collected additional information about the suspects . Thus , in DATE Mr GPE PERSON ( application no . CARDINAL ) referred to servicemen from the ORG motorised rifle regiment , the commander of that regiment , and the commander of company no . CARDINAL ( see GPE and Others , cited above , § CARDINAL ) as possible suspects .

In DATE the investigation produced a list of CARDINAL servicemen of GPE PERSON who had been posted in GPE in DATE , and asked for verification of whether CARDINAL of them had a tattoo in the shape of a snake on his neck , mentioned by CARDINAL of the witnesses . CARDINAL of servicemen were inspected , but no one with a snake - shaped tattoo was identified . When questioned in DATE , the servicemen , in brief statements , confirmed that they had served in GPE in DATE but had no knowledge of the civilians killed in PERSON .

NORP In DATE the investigators sent a letter asking the prosecutor of the LOC military circuit to identify and question the servicemen and commanders of the FAC motorised rifle regiment ( see GPE and Others , cited above , § § CARDINAL - CARDINAL ) . The letter contained detailed information and questions about the events of CARDINAL DATE , and asked the prosecutor to identify and question the people who had used known radio call signs and to identify the commanders of the operation . In DATE an officer of the military unit concerned stated , as a witness , that all details about the use of radio equipment and the assignment of calls were stored as secret information for DATE . Several reminders followed in DATE asking , in particular , for the former commander of the ORG regiment , ORG , to be questioned .

NORP In DATE the investigator in charge sought similar information from another military unit ( the CARDINALth motorised rifle regiment ) , including the names of the unit commanders who had taken part in the operation on DATE . In particular , the letter referred to the commander of company no . CARDINAL of the regiment , who , the investigators suggested , had written a note left by the servicemen for the local residents .

In DATE the investigators asked the military investigators to submit information about the commanders of the ORG motorised rifle regiment and to ask them a number of specific questions about the events of DATE .

In DATE the investigators asked the investigator of GPE to carry out additional ballistic reports on CARDINAL guns used by GPE ORG in DATE .

In DATE the investigator in charge informed the military prosecutor of the NORP military circuit that the special operation on DATE in the south of ORG had been under the command of Colonel PERSON . PERSON , the head of the operative headquarters of the internal troops of ORG . He reminded the military prosecutors of his previous requests for the commanders of that operation to be identified and questioned . It does not appear that any progress was achieved in this respect .

During additional questioning in the period DATE , local residents were asked about the damage to their property caused in DATE . They explained that many houses had been burnt down by the servicemen , and that those who had stayed in the district had been forced to give up their jewellery and valuables as a result of threats . Others estimated the amount of pecuniary damage caused ( see Appendix ) . No one was granted victim status in relation to any property offence and no additional documents were requested from the residents . The victims stated that they would seek damages in the course of a criminal trial , as civil parties .

On DATE the investigator ruled that no criminal proceedings should be opened in connection to the crimes relating to property , due to the expiration of the statutory limits for those crimes . It does not appear that that decision was challenged . In DATE decisions according civil party status in criminal proceedings with regard to property claims were issued in respect of the following applicants : PERSON ( no . CARDINAL ) , ORG ( no . DATE ) and PERSON ( no . CARDINAL ) . PERSON ( application no . CARDINAL ) submitted documents which indicated that the house for which he claimed compensation had been owned by GPE , his sister . In his written statement to ORG he stated that at some point PERSON had received compensation from the ORG for the lost property , but he submitted no relevant documents .

On DATE the investigation of criminal case file no . CARDINAL into the events of CARDINAL DATE was resumed , and the victims were informed accordingly .

On DATE the investigation was adjourned .

The investigation was then resumed , but on DATE was adjourned again , and the applicants were informed accordingly .

The investigation was then resumed , but adjourned again on DATE . A letter informing the victims of the adjournment was dated DATE .

It appears that the investigation was reopened and then adjourned again on DATE .

It was then reopened in DATE , and on DATE adjourned again , for similar reasons as those stated in the decision of DATE ( see paragraph CARDINAL above ) .

On DATE ORG gave an order for an investigating group to be set up which would include investigators from the military prosecutor ’s office , in view of information about the possible implication of military servicemen in the crimes .

In DATE the investigators watched a video filmed in PERSON on DATE ( see PERSON and Others , cited above , § DATE ) and produced the video ’s transcript for the file .

In DATE the investigators compiled a table of people who had been killed on DATE , indicating their places of burial , the next - of - kin granted victim status in the proceedings , and the dates of such decisions . The table contains information about CARDINAL deaths , including the deaths of QUANTITY people about which the applicants in the present case complain ; the CARDINAL exception is PERSON , born in DATE ( the brother of PERSON , application no . MONEY ) . At the same time , the table contains information about the death of a certain PERSON , born in DATE , in respect of whose death another person ( his brother ) was questioned and granted victim status in DATE .

In DATE the investigation recognised civil party status of CARDINAL applicants in connection with the destruction and theft of property during the events of DATE .

It does not appear that the applicants were informed of any other developments , or that they sought further information from the investigating authorities .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicants all live in GPE , except for PERSON , PERSON and PERSON , who live in PERSON , ORG and PERSON nad ORG respectively .

The facts of the case are structurally similar to those obtaining in the cases against GPE of ORG PERSON ( no . FAC , DATE ( merits ) and DATE ( just satisfaction ) ) , ORG ( no . CARDINAL , DATE ) , FAC ( no . ORG , DATE ) , and ORG ( no . CARDINAL , DATE ) .

The applicants are the owners of land situated in the cadastral area of GPE on the territory of the municipality of PERSON . They acquired title to this land by way of inheritance from their predecessors .

NORP In DATE the ORG put the land in question at the disposal of an agricultural cooperative called PERSON . In DATE the cooperative designated part of the land as an “ allotment colony ” , consisting of individual allotments which were put at the disposal of private third parties ( “ the gardeners ” ) .

NORP The applicants’ ‒ or , at the relevant time , their ORG ‒ formal title to the land has remained unaffected but in practice , they have not been able to make use of it at all . The size of each of the ORG individual parcels of land thereby affected is listed in column C of the appendix .

In the context of the political changes in the former GPE , LAW ( Law CARDINAL/CARDINAL Coll . ) was enacted in DATE . Under section CARDINAL ) thereof , in the absence of any agreement to the contrary with the applicants , the gardeners acquired a tenancy right in respect of the land in question with effect from DATE of the Act ’s entry into force .

NORP The rent payable for such tenancy was regulated under section CARDINAL ) of LAW until this provision was replaced by LAW , which entered into force on DATE .

LAW likewise imposed a compulsory tenancy arrangement in favour of the gardeners , the rent being regulated by its section CARDINAL , which applied by operation of law unless the parties had agreed otherwise . This provision , as applicable at that time , referred to other pieces of legislation which set the annual rent at MONEY of the value of the property ‒ calculated on the basis of the then applicable price regulations ‒ the minimum being equivalent to MONEY ( ORG ) per square metre and per year .

In the applicants’ case , with the exception mentioned below , no such separate agreement had been reached between the parties , and the DATE rent payable by the gardeners to the applicants was thus determined under the statutory rules at the lowest limit of the applicable scale , that is to say at a rate of EUR CARDINAL per square metre . In the case of the applicant PERSON , an agreement was reached that , as from DATE , she would be paid rent equivalent to ORG CARDINAL.CARDINAL per square QUANTITY and per year .

The applicable statutory regime was amended ‒ after the ORG ’s above - mentioned judgments had become final ‒ with effect from CARDINAL DATE by PERSON no . CARDINAL Coll . , which adjusted the rent payable to owners in a situation such as the applicants’ to a level commensurate with the market rent .

By virtue of the statutory amendment , the amount of the rent was to be determined under the Regulation of the Ministry of Justice on Determination of the General Value of Property ( no . PERSON . ) . This regulation uses the term “ general value ” ‒ which is understood to mean the expert assessment of the most likely price at a given place and time on the market in conditions of free competition and honest sale ‒ and lays down formulae for the determination thereof in relation to land and the rent payable for that land , the latter being linked to the former . These formulae take into account what is known as the “ general situation index ” ( “ the ORG ” ) , ranging originally from CARDINAL to CARDINAL , normally depending on the geographical location of the property .

However , prior to the entry into force of the amendments introduced by Law no . CARDINAL/CARDINAL , Regulation CARDINAL/CARDINAL had been amended by Regulation no . ORG . , which took effect from DATE . The latter Regulation introduced a special ORG ranging CARDINAL to be applied when determining the “ general value ” of land and the “ general value ” of the rent for the land in allotment GPE .

These amendments left the compulsory tenancy introduced by LAW unaffected . Such a tenancy arrangement remains in place until the completion of what are known as land consolidation proceedings in a given area . Such proceedings are also provided for LAW , their aim being to have the ownership and use of the land in the allotment area consolidated , principally by transferring title to the land to the gardeners and having the former owners compensated by means regulated under LAW , the details of such consolidation being defined in what is known as a “ land consolidation project ” .

In the applicants’ case , the gardeners initiated the requisite land consolidation proceedings on DATE . Within the framework thereof , the order had been given for implementation of a “ land consolidation project ” , but the proceedings changed course on CARDINAL DATE when ORG held that the applicants’ inability to have that order reviewed by the courts violated their right of access to a court and their property rights .

The land consolidation proceedings are currently pending , at a stage where the general value of the applicants’ land remains to be determined .

The compulsory tenancy of the applicants’ land persists .

The parties disagreed as to the amount of rent payable for the applicants’ property . Their positions and the documents submitted in their support may be summarised as follows .

The applicants relied on report no . CARDINAL/CARDINAL dated DATE , in which a sworn expert , A , estimated the general value of the rent in question by reference to the criteria laid down in Regulation no . MONEY , and applied a ORG of CARDINAL . On that basis , the applicants considered that the market value of the DATE rent amounted to ORG QUANTITY .

Later , the applicants also submitted report no . DATE dated DATE by another sworn expert , B , according to which the general value of DATE rent for a plot in the stated area belonging to the applicant Mr Leščinský was EUR CARDINAL in DATE , ORG CARDINAL.CARDINAL in DATE , ORG CARDINAL.CARDINAL in DATE and ORG CARDINAL.CARDINAL in DATE . These figures had been estimated on the basis of Regulation no . MONEY , taking into account the ORG resulting from the amendments introduced by Regulation no . ORG .

The Government for their part submitted the following documents :

‒ A letter from ORG in GPE dated DATE , in which the ORG pointed out what they considered to be methodological flaws in the calculations of expert PERSON On the basis of their pro forma recalculation of the available data , the value of the DATE general rent would be ORG CARDINAL per square metre . However , the letter points out that this recalculation was done without a separate in situ investigation and without the examination of further documents that the ORG considered essential .

‒ A letter from ORG dated DATE stating that , at that time , expert valuations of the general value of the land had been obtained for CARDINAL allotment GPE in the district of GPE . On the basis of the general value of the land as established in these valuations , which took into account legislative amendment no . CARDINAL/CARDINAL , the Government contended that the average general value of the annual rent payable for land comparable to the applicants’ was LAW .

‒ A full expert report drawn up by ORG in DATE , numbered CARDINAL/CARDINAL , which had been preceded by the ORG ’s own investigations . In this report , drawn up on the basis of amended Regulation no . MONEY , the ORG calculated the general value of the DATE rent payable for the property in question as of DATE as ORG CARDINAL.CARDINAL per square metre .

The method provided by Regulation no . DATE could not be used in relation to the preceding periods . In these cases , the ORG assessed the general value of the DATE rent for DATE ‒ on the basis of the results for DATE , but taking into account the general development of real estate prices in the given region and other economic criteria during DATE ‒ as follows : in DATE ORG CARDINAL.CARDINAL , in DATE EUR CARDINAL , in DATE ORG CARDINAL , in DATE ORG CARDINAL.CARDINAL , in DATE EUR CARDINAL , in DATE EUR CARDINAL , and in DATE ORG CARDINAL.CARDINAL .

Lastly , the ORG reiterated the objections concerning the methodology used in the valuation produced by expert A and expressed the view that he had lacked the requisite qualifications for conducting the particular type of valuation obtaining in the present case , since his qualifications pertained only to agricultural land , and did not extend to include the type of land concerned in the present case .


CASE OF MIHAI LAURENȚIU MARIN v. ROMANIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in DATE . He is currently detained in LOC .

In his initial letters to the ORG the applicant stated that he had been detained in overcrowded cells which had lacked heating .

Starting from DATE the applicant was detained and transferred between a number of prisons , including ORG and Măgineni Prisons .

The applicant was first detained in FAC on DATE . The records concerning the cells the applicant had been detained in and the number of detainees he had shared the cells with during his time in detention there DATE had been destroyed in accordance with the requirements of applicable domestic legislation .

From DATE onwards the applicant was detained in FAC from DATE to DATE . During this period he was transferred repeatedly from ORG to PERSON and other prison facilities as a result , among other things , of his violent behaviour towards other inmates and prison personnel .

In Poarta Albă Prison the applicant was detained in several cells where he was afforded between CARDINAL , DATE and DATE , QUANTITY m of living space .

Part of the prison was fitted with its own central heating system , while the remaining part was heated by stoves . The heating was carried out based on a pre - determined schedule and on the available heating supplies and by taking into account the outdoor temperature .

NORP The applicant was detained in LOC from DATE . During this period he was transferred repeatedly to ORG and other prison facilities .

In LOC the applicant was detained in several cells where he was afforded DATE , QUANTITY m of living space .

Each cell had electrical power and was fitted with individual beds , tables , chairs and benches .

The prison was also fitted with its own gas central heating system . The system was working properly . The cells had radiators , which ensured an appropriate temperature in the rooms during DATE and when the outside temperature demanded it .


George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

NORP The applicant , Mr LOC , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON , of ORG .

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

On DATE the prosecution authorities in GPE opened criminal proceedings in relation to the murder of Mr PERSON On DATE the applicant was arrested and charged with instigating the murder . On DATE he was placed in pre - trial detention , where he remained until DATE when ORG ordered his release on bail . The amount of bail was set at MONEY ( ORG ) , which was paid by PERSON On DATE the applicant was released .

NORP The preliminary investigation into Mr PERSON ’s death continued until DATE , when the applicant and several other individuals were indicted and sent to trial .

In a judgment of CARDINAL DATE ORG convicted the applicant of aiding and abetting PERSON murder and sentenced him to DATE years’ imprisonment .

After delivery of the judgment , in a decision given at the same hearing , referring merely to the “ degree of dangerousness of the offence committed and its [ perpetrators ] , and the type and severity of the punishment imposed ” , ORG ordered that the applicant be placed once again in custody . He was detained at the end of the hearing .

On DATE the applicant appealed against his placement in custody , pointing out that while on bail he had not attempted to abscond or obstruct the investigation . On DATE ORG declared his appeal inadmissible , noting that at that stage of the proceedings a decision ordering placement in custody could not be challenged separately from the judgment on the merits .

In his initial application to the ORG , the applicant stated that following his detention he had not been able to recover the bail paid in DATE . However , after communication of the application the respondent Government submitted documents showing that on CARDINAL DATE a representative of PERSON had requested that the bail be returned to her . On DATE the representative presented a power of attorney , and DATE ORG ordered ORG to pay the sum back .

Following appeals by the accused , on DATE ORG quashed ORG judgment of CARDINAL DATE and remitted the case . On DATE , following a fresh examination , the lower court acquitted the applicant and ordered his release with immediate effect .

Following further appeals by the prosecution , on DATE and CARDINAL DATE respectively , ORG judgment was upheld by ORG and ORG .

NORP The relevant provisions of domestic law concerning remedies for excessive length of proceedings have been summarised in the ORG ’s decisions in the cases of GPE and Others v. GPE ( ( dec . ) , no . CARDINAL , § § DATE , DATE ) and ORG and PERSON v. GPE ( ( dec . ) , nos . CARDINAL and GPE , § § DATE , DATE ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

The applicant and the relevant details of the application are set out in the appended table .

The applicant complained of the excessive length of criminal proceedings .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought an action in compensation in the context of water damage in her condominium .

After holding several hearings and obtaining expert evidence , on DATE ORG found for the applicant .

On DATE ORG reversed this judgment .

On DATE ORG rejected , without an examination on the merits , the applicant ’s petition for review since it did not meet the statutory requirements .

Act no . III of DATE on the Code of Civil Procedure , as amended by Act no . DATE , provides as follows :

“ ( CARDINAL ) The party , the intervener or the public prosecutor participating in the proceedings are entitled to file a written complaint with the court hearing the case complaining about an omission specified in subsection ( CARDINAL ) allegedly committed by that court , requesting the court having competence for the adjudication of the complaint to establish the omission and , by setting an appropriate time - limit , to instruct – in the cases specified under points a ) and c ) of subsection ( CARDINAL ) – the omitting court to perform the omitted procedural act or to pass the omitted decision , and to take DATE in the case specified under point b ) of subsection ( CARDINAL ) DATE the most effective action in the given case .

( CARDINAL ) Such a complaint may be filed where :

a ) the law prescribes a time - limit for the court within which to complete the proceedings , to perform a procedural act or to pass a decision and the time - limit has elapsed without any result ,

b ) a court has set a time - limit for the public prosecutor , the person participating in the proceedings , the authority or person requested to perform a procedural act but the time - limit has elapsed without any result and the court has failed to impose on the omitter the measures allowed by the law ,

c ) the court has failed to comply with its obligation to complete the proceedings within a reasonable time on account of the lapse of such time since the court ’s last measure on the merits which was sufficient for the court to perform or order to perform a procedural act but the court failed to do so .

( CARDINAL ) No complaint shall be filed against orders related to evidentiary acts or decisions subject to a separate legal remedy .

( CARDINAL ) The complaint may be withdrawn by the complainant at any time until a decision on the merits is taken by the court . Complaints withdrawn shall not be re - submitted . ”

“ ( CARDINAL ) The court hearing the case shall examine the complaint within DATE from its receipt , and if it finds the complaint well - founded , it shall , within DATE , take or order to take appropriate measures in order to terminate the situation complained of . It shall inform the complainant of how the complaint has been settled .

( CARDINAL ) If the court hearing the case finds the complaint ill - founded , it shall transmit the complaint to the adverse party who may file observations on it within DATE from its receipt . After the expiry of the time - limit the court shall , within DATE , forward the file – together with the observations – to the court having competence for adjudicating the complaint . In its communication , the court hearing the case shall set forth its reasons for not performing the omitted procedural act or not passing the omitted decision .

( CARDINAL ) A complaint challenging an omission of the district court shall be adjudicated by the regional court sitting in a committee of CARDINAL professional judges ; a complaint challenging an omission of the regional court shall be adjudicated by the court of appeal sitting in a committee of CARDINAL professional judges ; a complaint challenging an omission of the court of appeal shall be adjudicated by the GPE sitting in a committee of CARDINAL professional judges ; a complaint challenging an omission of the GPE shall be adjudicated in camera by another committee of the GPE , within DATE from the receipt of the case - file .

( CARDINAL ) Where the court adjudicating the complaint grants the complaint , it shall , by setting a time - limit , invite the omitting court to take DATE in the cases specified in section CARDINAL/A subsection ( CARDINAL ) points a ) and c ) – the action required for the proper progress of the case and – in the cases specified in section CARDINAL subsection ( CARDINAL ) point b ) DATE to take the most effective action . Except for the cases specified in section CARDINAL/A subsection ( CARDINAL ) point a ) , the court adjudicating the complaint shall not instruct the court hearing the case to perform a particular procedural act . If the court finds the complaint ill - founded , it shall dismiss it in reasoned decision . Against this decision no appeal may be filed .

( CARDINAL ) If the submitter of the complaint repeatedly submits an ill - founded complaint in the same case the court adjudicating the complaint may impose a fine on him .

( CARDINAL ) The provisions governing the submission and adjudication of appeals against orders shall be applicable to [ such ] complaints . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Georgia);Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional) (Georgia);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Johannes Silvis;Jon Fridrik Kjølbro;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Mark Villiger;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant was born in DATE . He lived in GPE and died there on DATE .

He arrived in GPE via GPE on DATE , accompanied by his wife and a DATE child . The applicant claimed to be the father of the child , an assertion which the Government contested . The couple subsequently had a child together in DATE and DATE .

On DATE the applicant was arrested and taken into custody on charges of theft . On DATE he received a sentence of CARDINAL months’ imprisonment , which was suspended except for the period of pretrial detention .

In DATE and DATE the applicant and his wife were arrested on several occasions in connection with theft offences .

On DATE the applicant ’s wife was sentenced to CARDINAL months’ imprisonment for theft .

On DATE the applicant was convicted of a number of offences including robbery with violence and threats , and received a sentence of CARDINAL months’ imprisonment , which was suspended except for the period of pre - trial detention .

On DATE the applicant was sentenced by ORG to CARDINAL years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation , deception or corruption .

Having already spent time in pre - trial detention , he was subsequently detained in ORG and then in FAC , where he continued to serve his sentence .

On DATE , DATE after their arrival , the applicant and his wife lodged an asylum application .

As the applicant ’s wife stated that she had travelled through GPE , a request to take back the applicant and his family was sent to the NORP authorities under LAW of DATE determining the ORG responsible for examining applications for asylum lodged in one of GPE of ORG ( “ FAC ” ) .

After the NORP authorities had refused the request , it transpired that the applicant and his family were in possession of a GPE visa issued by the NORP authorities . A request to take charge of them was therefore sent to the NORP authorities and was accepted on DATE .

On DATE the applicant lodged a further asylum application , using a false identity . It was immediately rejected after his fingerprints had been checked .

On DATE ORG informed the applicant ’s lawyer that the proceedings concerning the asylum application of CARDINAL DATE had been concluded on DATE with the refusal of the application .

On DATE the applicant lodged a first request for regularisation for a period of DATE , on the basis of section GPE ) ( since DATE , section CARDINAL ) of the Aliens ( Entry , Residence , Settlement and Expulsion ) Act of DATE ( “ the Aliens Act ” ) . In support of his request the applicant stated that he and his wife had a daughter born in GPE before their arrival in GPE and another daughter born in GPE in DATE .

On DATE ORG declared the request devoid of purpose as the applicant had left the country and been intercepted in GPE . It found that the request was in any case unfounded in view of the fact that the applicant ’s medical treatment for tuberculosis had ended ( see paragraph CARDINAL below ) . ORG also referred to the applicant ’s lack of integration in GPE and the numerous breaches of public order he had committed .

On DATE the applicant lodged a second request for regularisation of his residence status on the basis of section CARDINAL(CARDINAL ) of LAW . He cited as exceptional circumstances the duration of his residence in GPE and his integration into NORP society , the risks that a return to GPE would entail for his children ’s schooling , the fact that he had been the victim of persecution and his state of health .

ORG declared the request inadmissible on DATE on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section CARDINAL(CARDINAL ) of the LAW such as to warrant the lodging of the request in GPE rather than with the competent diplomatic mission or consulate , as was the rule . ORG noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings , which had been concluded by a final decision . It also cited as reasons the lack of any need for medical supervision , the applicant ’s precarious and unlawful residence status , the absence of a risk of persecution in GPE and the possibility for the children to continue their schooling in that country .

In a judgment of CARDINAL DATE ORG rejected an application by the applicant to set aside ORG decision . It noted in particular that , since the decision complained of had not been accompanied as such by a removal measure , it could not give rise to a risk of violation of LAW .

On DATE , relying on the same grounds as those invoked under section CARDINALter of LAW ( see paragraph DATE below ) and on his family situation , the applicant lodged a request for regularisation on exceptional grounds under LAW .

On DATE ORG refused the request for regularisation , taking the view that the protection of the ORG ’s best interests took precedence over the applicant ’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family ’s unity in jeopardy . That decision was served on the applicant on DATE .

On DATE the applicant lodged a request with ORG under the ordinary procedure for a stay of execution of the decision of DATE rejecting his request for regularisation of his status , together with an application to have that decision set aside . In so far as necessary , the application also related to the order to leave the country issued on DATE ( see paragraph CARDINAL below ) . The applicant alleged a violation of ORG and CARDINAL of the LAW and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by ORG in NORP v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) , that he would not have access to treatment in GPE and that the discontinuation of treatment would lead to his premature death . He further alleged an infringement of LAW , on the ground that if he were returned to GPE he would be separated from his family permanently .

The request and application were refused by ORG in a judgment of DATE on the ground that the applicant had not attended the hearing or been represented .

On DATE the applicant ’s wife lodged a request for regularisation on exceptional grounds under LAW , relying on her family situation and the duration of her residence in GPE .

On DATE she and her CARDINAL children were granted indefinite leave to remain .

In DATE , while the applicant was in prison ( see paragraph CARDINAL above ) , he was diagnosed with chronic lymphocytic leukaemia in PERSON stage B , with a very high level of CDCARDINAL expression . No treatment was commenced .

As his health had deteriorated , the applicant was admitted to the PERSON prison hospital complex from DATE to DATE in order to receive a course of chemotherapy .

A report prepared on DATE by ORG , where the applicant was being treated , stated that his condition was life - threatening and that , on the basis of the averages observed in DATE , his life expectancy was DATE . The report stated that , following treatment , his white blood cell count had fallen significantly .

From CARDINAL to CARDINAL DATE the applicant was confined to hospital in GPE with respiratory problems . The medical report concerning his stay recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist . This treatment did not materialise on his return to PERSON , where he was being held .

On DATE a doctor from ORG visited the applicant in the PERSON closed facility for illegal aliens ( see paragraph CARDINAL below ) , to which he had been transferred in the meantime , in order to carry out a full medical check - up . The doctor ’s report noted that the applicant ’s leukaemia , which was progressing rapidly towards PERSON stage C , had not been monitored sufficiently and that a different course of chemotherapy was required .

In DATE the applicant ’s condition worsened and the doctors observed that his leukaemia had progressed to ORG stage C , with anaemia and widespread enlargement of the lymph nodes ( life expectancy of twentyfour DATE ) . It was decided to switch to a different course of chemotherapy .

On DATE a doctor from the haematology department of ORG in GPE , where the applicant was being treated following his release ( see paragraph CARDINAL below ) , drew up a certificate which stated as follows :

D. Possible complications if treatment is discontinued . Failure to treat the liver and lung disease could result in organ damage and consequent disorders ( respiratory insufficiency , cirrhosis and/or liver cancer ) . Without treatment , the [ chronic lymphocytic leukaemia ] could lead to the patient ’s death as a result of the disease itself or the effects of serious infections .

A return to GPE would expose the patient to inhuman and degrading treatment .

PERSON and prognosis . Chronic lymphocytic leukaemia ( CLL ) : good if treated , but the risk of relapse is real , so that close monitoring is required even during remission . ... ”

After a relapse diagnosed in DATE , the doctors in ORG observed in DATE that the applicant ’s leukaemia had developed into lymphocytic lymphoma , and his chemotherapy was adjusted accordingly . A positronemission tomography ( PET ) scan performed on DATE showed a lack of response to the chemotherapy , a progression of the disease in the lymph nodes and the liver , and a pulmonary infection .

The applicant ’s treatment was handed over to ORG in GPE , a hospital devoted exclusively to the treatment of cancer patients .

In DATE the applicant began to receive a new course of treatment as part of a study . He was given ORG , designed in particular to improve his overall condition , which had been compromised by complications arising out of the treatment ( fungaemia , pulmonary infections , septicaemia and cholecystitis , resulting in his being admitted to hospital on several occasions ) . The treatment was prescribed in order to improve the applicant ’s overall condition in preparation for a donor stem cell transplant .

A medical certificate issued on DATE by the specialist treating the applicant , PERSON , head of the experimental haematology laboratory at ORG , stated that the patient ’s viral load was stable . The doctor stressed that discontinuing treatment would result in the patient ’s death . Because of the patient ’s immunosuppression and the aggressive nature of the leukaemia , treatment in a specialised haematology unit was necessary , as was a donor stem cell transplant , which offered the only remaining prospect of a cure provided that it was performed during the DATE “ window of response ” to ORG .

The applicant stated that the stem cell transplant , originally scheduled to take place in DATE , had not been performed to date because he did not have a residence permit in GPE as required by ORG of DATE .

On DATE a new medical report was prepared by PERSON which read as follows :

“ The patient ’s CLL [ chronic lymphocytic leukaemia ]

The patient has been suffering from CLL for DATE ( diagnosed in DATE ) , and by DATE had already reached stage C and PERSON [ stage IV according to the PERSON criteria ] . He had already had CARDINAL lines of treatment prior to ORG , which he is currently taking , and was refractory to the third line of treatment ( R - ORG chemotherapy ) .

It is clear from the medical literature that if ORG is discontinued in such a situation , the average life expectancy is DATE . ...

The literature also shows that PERCENT of patients being treated with ORG achieve complete remission . Mr PERSON is currently in partial remission and is thus wholly dependent on the treatment . This is a new targeted therapy to which he would have no access in his country of origin . With continuous treatment the patient ’s prognosis is more favourable , with an PERCENT survival rate after DATE . ...

CLL and especially treatment with ORG can give rise to serious complications which fully justify regular supervision in a specialised setting . This is particularly true since the patient is in a weak state and has a serious medical history ( tuberculosis and stroke ) and significant comorbidities ( active chronic hepatitis and COPD [ chronic obstructive pulmonary disease ] ) . ...

In the case of a young person – Mr PERSON is DATE the current guidelines advocate using ORG in order to obtain the best possible response , followed by a donor peripheral blood stem cell transplant . A ORG [ human leukocyte antigen ] matched donor has been identified for the patient .

Although risky , a donor transplant offers the only prospect of a cure for the patient ; he would be unable to have such a transplant in his country of origin .

Conclusions

The [ ORG medical adviser ] concludes ... [ that ] the condition of the patient ’s vital organs is not directly life - threatening . That all depends on what is meant by ‘ PERSON . The patient is suffering from a cancer that is potentially fatal in the short term ( median survival time DATE ) ... and most likely within DATE without appropriate treatment .

Moreover , if the treatment is not tailored to the patient ’s overall immunosuppression , there is a serious risk of death caused by infection , especially in a Gold stage II COPD patient with a history of tuberculosis . ... ”

On DATE treatment with ORG became eligible for reimbursement in GPE .

Because of the side - effects of this treatment , which might compromise the donor transplant , the dose of ORG was reduced from CARDINAL doses to one dose per day .

In DATE the applicant was diagnosed with active pulmonary tuberculosis . He was treated for that condition under the emergency medical assistance and social welfare assistance schemes .

During DATE the applicant ’s tuberculosis was found to have become active again .

As a result of that disease the applicant developed chronic obstructive pulmonary disease , for which he received treatment .

In addition , the applicant suffered from hepatitis C , which was also diagnosed in DATE and was probably linked to a history of drug abuse . It was accompanied by liver fibrosis . According to a medical report dated DATE his hepatitis , which had been treated effectively in DATE and DATE , had become stable .

A magnetic resonance imaging scan carried out in DATE showed that the applicant had suffered a stroke , resulting in permanent paralysis of the left arm . The effects of the stroke were managed with an anti - epilepsy drug .

On DATE , relying on Articles CARDINAL and CARDINAL of the LAW and alleging , in particular , that he would be unable to obtain treatment for his leukaemia ( see paragraph CARDINAL above ) if he were sent back to GPE , the applicant lodged a first request for regularisation on medical grounds on the basis of section CARDINALter of LAW .

On DATE ORG refused the request on the ground that , under section CARDINALter(CARDINAL ) of the LAW , the applicant was excluded from its scope on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on DATE ( see paragraph CARDINAL below ) .

On DATE the applicant lodged a request for a stay of execution of that decision under the ordinary procedure , together with an application to set aside . He alleged in particular that ORG had relied exclusively on the ministerial deportation order in excluding him from the scope of section CARDINALter of LAW , without investigating his state of health or the risk he ran of being subjected to treatment contrary to LAW , and without weighing up the interests at stake as required by LAW .

In a judgment of DATE ORG dismissed the applicant ’s claims in the following terms :

“ It is clear from the wording of [ section CARDINALter ] that there is nothing to prevent the administrative authority , when dealing with a request for leave to remain on the basis of the above - mentioned section CARDINALter , from ruling immediately on the exclusion of the person concerned from the scope of the said section CARDINALter without first being required to take a decision on the medical evidence submitted to it , if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section CARDINAL/CARDINAL , cited above . Indeed , the examination of that evidence is superfluous in such a situation since the person responsible for taking the decision has in any event already decided that the individual is excluded from the scope [ of section CARDINALter ] .

As regards the alleged violation of LAW , it should be observed that the decision complained of in the present application is not accompanied by any removal measure , with the result that the alleged risk of discontinuation of treatment in the event of the applicant ’s return to GPE is hypothetical . ”

ORG also dismissed the complaint under LAW in view of the fact that the impugned decision had not been accompanied by any removal measure .

In the meantime , on DATE , the applicant had lodged a second request for regularisation on medical grounds on the basis of section CARDINALter of LAW . In addition to his various health problems he referred to the fact that he had been continuously resident in GPE for DATE and had lasting social ties in that country , and to his family situation . He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had any family ties and where the medical facilities were unsuitable and expensive .

The request was refused by ORG on DATE for the same reason it had cited previously ( see paragraph CARDINAL above ) .

On DATE the applicant lodged an application with ORG to have that decision set aside .

In a judgment of CARDINAL DATE ORG rejected the application to set aside . It held that , where the above - mentioned exclusion clause was applied , ORG was not required to rule on the medical and other evidence contained in the request for regularisation . According to ORG , such examination was superfluous by virtue of the exclusion clause alone . ORG pointed out that its task was to review the lawfulness of the measure . This review did not permit it to substitute its own assessment of the facts that were deemed to have been established and were not apparent from the administrative file ; rather , its task was confined to ensuring that the formal requirement to provide reasons had been complied with and that the reasoning was not based on a manifest error of assessment . As to the complaints alleging a violation of ORG and CARDINAL of the Convention , ORG stated that the assessment of the medical situation of an alien facing removal whose request for regularisation had been rejected should be carried out , as applicable , at the time of enforcement of the removal measure .

On DATE the applicant lodged an appeal on points of law against that judgment with the ORG d’État . CARDINAL of the grounds of appeal was based on ORG and CARDINAL of the Convention . The applicant submitted that ORG could not have been unaware that several orders to leave the country had already been issued against him prior to the decision not to examine his request for leave to remain , and that his expulsion had been suspended only as a result of the interim measure applied by ORG ( see paragraph CARDINAL below ) . The applicant further argued that ORG had breached the provisions of the LAW by postponing until the date of enforcement of the removal measure the examination of the medical situation of an alien suffering from a serious illness who had requested leave to remain on medical grounds , without studying the specific risks .

In an order of DATE the appeal on points of law was declared inadmissible . The ORG d’État held that , contrary to the applicant ’s assertion , the grounds for setting aside advanced before ORG had simply stressed , in a theoretical and general manner , that section CARDINALter of the LAW encompassed the application in domestic law of the obligation under LAW and CARDINAL of the LAW prohibiting the removal of a seriously ill person if such a measure was liable to result in death or inhuman and degrading treatment ; no specific explanation had been given , however , as to how the applicant himself risked facing that situation . The ORG d’État also observed that the applicant had not argued before ORG that orders to leave the country had been issued against him , or that a removal measure could be revived ; he was therefore unable to rely on those arguments in his appeal on points of law . In any event , the ORG d’État held that ORG had in no way erred in finding that the examination of the medical situation of an alien facing removal whose request for leave to remain had been rejected should be carried out , as applicable , at the time of enforcement of the measure .

The applicant was requested to report to ORG medical service on DATE for a medical check - up and to enable the NORP authorities to reply to the ORG ’s questions .

NORP The report prepared by the medical adviser on that occasion listed the consultations held and the treatment that had been administered to the applicant . It stated that his leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely , and that the applicant was under medical supervision for his lung disease .

Referring to the ORG ’s judgment in the case of PERSON GPE ( [ ORG ] , no . CARDINAL , ECHR DATE ) , the report concluded as follows :

“ On the basis of this medical file it can not ... be concluded that the threshold of severity required by LAW , as interpreted by ORG , has been reached ...

It appears from the medical file that the diseases to which the medical certificates refer ... do not disclose a direct threat to the patient ’s life . The conditions from which the applicant suffers are serious and potentially fatal but are currently under control .

None of the patient ’s vital organs is in a condition that is directly life - threatening . His hepatitis C is not currently causing any cirrhosis . The pulmonary disease is being controlled by treatment consisting solely of an inhaled corticosteroid . The patient ’s haematological disorder is currently stable . The lymph nodes are no longer swollen and the patient ’s haemolytic anaemia is resolved . Chemotherapy has been discontinued for the time being .

... Neither monitoring of the patient ’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient ’s survival .

The disease can not be considered at present to be in the terminal stages . ... The patient is close to ORG stage A at present . His chronic obstructive pulmonary disease is also currently under control . ”

DATE . A medical report drawn up on DATE by the medical adviser to ORG provided a detailed review of the applicant ’s clinical history and current state of health and the treatment being administered . It concluded as follows :

“ On the basis of [ the ] medical file it can not therefore be concluded that the threshold of severity set by LAW , which requires a risk to life on account of the applicant ’s critical condition or the very advanced stage of his or her illness , has been reached ( ORG v. the GPE [ ORG ] , no . CARDINAL , ECHR DATE , and NORP v. GPE , DATE , Reports of Judgments and Decisions CARDINAL ) .

The diseases referred to in the most recent update to the medical file ( [ Dr L. ] , CARDINAL DATE ) ... do not disclose :

– a direct threat to the life of the patient . The illnesses from which the applicant suffers are serious and potentially fatal but are currently under control . ...

– that the condition of the patient ’s vital organs is directly life - threatening . ...

– a critical state of health . Neither monitoring of the patient ’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient ’s survival . The disease can not be said to be in the terminal stages at present ... ”

On DATE , on the grounds that the NORP authorities did not have responsibility under LAW for examining the asylum application , ORG issued an order for the applicant and his wife to leave the country with a view to their transfer to GPE . However , their departure was postponed because the applicant ’s wife was pregnant .

After the birth , the family was granted leave to remain until DATE because the new - born baby was in hospital . Their leave to remain was subsequently extended until DATE on the ground that the child needed regular supervision by a paediatric gastroenterologist .

The time - limit for enforcement of the order for the family to leave the country was extended several times during DATE because of the need to treat the applicant ’s tuberculosis ( see paragraph DATE above ) and the DATE course of anti - tubercular treatment required by the whole family .

On DATE ORG informed the applicant ’s lawyer that the time - limit had been extended until such time as the applicant and his child were fully recovered .

On DATE , while the applicant was serving a prison sentence ( see paragraph CARDINAL above ) , the Minister of the Interior , in a deportation order issued under section CARDINAL of LAW , directed the applicant to leave the country and barred him from re - entering GPE for DATE . The order referred to the applicant ’s extensive criminal record , allied to the fact that “ the pecuniary nature of the offences PERSON ] the serious and ongoing risk of further breaches of public order ” .

The order became enforceable on the date of the applicant ’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time .

The applicant , who was in hospital , did not contact his lawyer in order to lodge an application to have the ministerial order set aside . However , on DATE the lawyer lodged an application on his own initiative . In a judgment of DATE ORG rejected the application as being out of time .

DATE . In the meantime , as the applicant was about to finish serving the prison sentence imposed in DATE , he was transferred on DATE to FAC with a view to implementation of the ministerial deportation order . He remained there until DATE , when he was transferred to PERSON .

During his time in FAC the applicant was visited on an almost DATE basis by his wife and/or his children . The authorities of PERSON , to which he was subsequently transferred and where he remained until DATE , informed the applicant that they did not have a record of the number of visits he had received .

In parallel with its decision of DATE refusing the applicant ’s request for regularisation on exceptional grounds ( see paragraph CARDINAL above ) , ORG on DATE issued an order for him to leave the country , together with an order for his detention . These orders , made on the basis of section CARDINAL ) of LAW , were served on the applicant on DATE .

Also on DATE it was decided that the applicant should be transferred on DATE to the PERSON closed facility for illegal aliens with a view to his removal to GPE .

On DATE the NORP embassy in GPE issued a travel document valid until DATE .

On DATE the applicant lodged a request for a stay of execution under the ordinary procedure , together with an application to set aside , directed specifically against the above - mentioned order to leave the country of DATE .

On DATE , DATE after the indication by ORG interim measure ( see paragraph CARDINAL below ) , an order was made for the applicant ’s release and he was given until DATE to leave the country voluntarily .

In a letter dated CARDINAL DATE counsel for the applicant applied for an extension of the time - limit for enforcement of the order to leave the country . The time - limit was initially extended until DATE and was subsequently extended several times until DATE .

On DATE ORG issued an order to leave the country “ with immediate effect ” pursuant to the ministerial deportation order of CARDINAL DATE .

The above - mentioned request and application were rejected by ORG in a judgment of CARDINAL DATE on the ground that the applicant had not attended the hearing or been represented .

In the meantime , on DATE , the applicant applied to the ORG for interim measures under LAW . Relying on ORG , CARDINAL and DATE of the LAW , he alleged that if he were removed to GPE he would no longer have access to the health care he required and that , in view of his very short life expectancy , he would die even sooner , far away from his family .

On DATE the ORG indicated to ORG that it was desirable , in the interests of the parties and the proper conduct of the proceedings before the ORG , to suspend enforcement of the order for the applicant to leave the country issued on DATE “ pending the outcome of the proceedings before ORG ” .

The applicant was arrested on several occasions DATE for shoplifting .

In addition , in DATE ORG was contacted by the GPE police and customs cooperation centre , which reported that the applicant was in detention in the Grand Duchy of GPE .

In DATE a warrant was issued for the applicant ’s arrest for theft . The applicant was detained in FAC and released DATE .

Two notarised deeds of sale dated DATE and CARDINAL DATE record the transfer by the applicant , represented by ORG , to a certain PERSON , of a plot of building land for a sum of MONEY ( ORG ) and a plot of farmland for a sum of LAW . Both plots are located in the village of GPE in the PERSON region of GPE .