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

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

The applicant was born in DATE and lives in GPE .

On DATE , R.C.A. was hired as an inspector by ORG on the recommendation of the applicant and another person , PERSON She had a contract for a limited period of time , namely DATE , which was extended for DATE . In order to obtain a permanent contract she took part in a competition organised by ORG in DATE . She succeeded , being the only candidate . After DATE , the atmosphere at the workplace became tense . R.C.A. was on probation in her new post and was therefore monitored and kept under close scrutiny .

According to R.C.A. ’s statements , she was persecuted by her superiors and even sexually harassed by the mayor . Therefore , she asked for the protection of the applicant , to whom she allegedly gave CARDINAL German marks ( DEM ) .

According to the applicant ’s statement , the money was given to her as a loan with no prearranged date of reimbursement in DATE . The applicant also stated that another colleague , PERSON , had borrowed money from R.C.A. , and that the practice of borrowing money from each other was common in their workplace . The applicant ’s statements were confirmed by her colleague , who was heard as a witness before the court .

On DATE denounced the applicant to the police for influence peddling . She claimed that the applicant had asked her for DEM CARDINAL in order to persuade the mayor to give her a permanent position within ORG .

On DATE obtained the authorisation of the prosecutor ’s office attached to ORG to record conversations between herself and the applicant . Subsequently , all the conversations that took place between the applicant and herself DATE and DATE were recorded . The recording was carried out using CARDINAL recording devices , CARDINAL belonging to R.C.A. and the other to a police officer .

Following a request by R.C.A. for the return of the money , the applicant and R.C.A. met in a cake shop close to the applicant ’s home on DATE . The applicant stated that she was accompanied by a colleague , GPE According to R.C.A. ’s version , the applicant was alone , while she herself was accompanied by her husband and brother , who waited outside the cake shop . The applicant handed over to LAW GPE dollars ( ORG ) ( the equivalent of ORG CARDINAL ) .

On DATE a criminal investigation was initiated against the applicant on the charge of influence peddling .

On DATE was invited to the prosecutor ’s office attached to ORG to give clarification on the recordings . After some discussion of the transcripts of the conversations she said she had a headache and left , promising to come back the same day . However , she never came back to continue the discussion with the prosecutor . This was mentioned in the record of the meeting drafted by the prosecutor .

On DATE ORG of ORG decided to discontinue the investigation against the applicant on the ground that the actus reus of the offence was missing .

On DATE the chief prosecutor decided to reopen the criminal investigation against the applicant . He noted that the investigation had been incomplete and that there were several aspects to be clarified in connection with the charges against the applicant . He also ordered a preliminary investigation against the mayor of GPE .

On DATE R.C.A. enquired the chief prosecutor about the progress of the investigation . She expressed concern about the integrity of the transcripts of the recordings , as she had noted that the parts of the conversations had been erased .

The file was presented to the applicant on DATE . TIME certifying the taped conversations was drafted afterwards , on DATE .

By a bill of indictment of DATE , the prosecutor ’s office committed the applicant for trial on a charge of influence peddling in violation of Article CARDINAL § CARDINAL of LAW and ORG CARDINAL ( a ) and CARDINAL of Law no . CARDINAL . By the same decision the prosecutor decided not to open a criminal investigation against the mayor , without giving any reasons .

Several hearings were held before GPE Court .

According to a witness statement given by the mayor of GPE before the county court on DATE , R.C.A. was well known as a person who recorded her private conversations at work , about which many colleagues had complained . A similar aspect was revealed by another witness , PERSON She stated that R.C.A. had changed her behaviour at work after she had obtained a permanent contract . As PERSON was the person who had recommended R.C.A. for the job , other employees informed her that R.C.A. was leaving her office during TIME . PERSON had tried to advise R.C.A. to change her behaviour ; she noted that the latter was recording their conversation .

On DATE the court granted a request by the applicant for a technical report on the contents of the tape recordings . On DATE the applicant ’s lawyer asked to see the authorisation for the recording of the conversations and the minute drafted of the occasion when R.C.A. handed over the recordings . She also lodged a written request for an expert assessment of the authenticity and integrity of the recordings .

On DATE ORG , which was in charge of the preparation of the report , asked the court to send it all the technical equipment used for the recording of the audio tapes .

On DATE R.C.A. submitted written notes by which she informed the court that on DATE she had refused to confirm that the transcripts of the recorded conversations presented by the prosecutor corresponded to the recordings performed by her ( see paragraph CARDINAL above ) .

On DATE , the court imposed a fine on R.C.A. as she had refused to provide the court with the original tapes and equipment used for recording the applicant .

As R.C.A. refused to attend the court hearings or to submit the original tapes , CARDINAL orders for her to be brought before the court were issued by the county court .

By a judgment rendered on DATE , GPE Court acquitted the applicant on the ground that the elements required for the offence were not present .

The county court held that ORG ’s version of events was supported only by the testimony of her husband and brother and by the taped conversations , whose authenticity and integrity could not be established by an expert , mainly because R.C.A. had refused to provide the expert with the technical equipment used for the recording . Moreover , R.C.A. ’s statements contained many contradictions . In this respect the county court stated :

“ ... although R.C.A. stated that the money was given to the applicant before the competition which was to take place on DATE , during the proceedings before the court she stated that it was given later , after the competition , then she changed her previous statement only when she was asked by the prosecutor attending the hearing about the logic of such an action ...

In conclusion , the statements mentioned above are not corroborated by the facts or circumstances resulting from all the evidence adduced in the case , and can not be confirmed by the audio recording of the conversations , since these were not executed in accordance with the provisions of LAW ( in force until CARDINALst January CARDINAL , in accordance with PERSON ) ...

Contrary to the above - mentioned legal provisions , in the case file there are TIME , all dated DATE , which mention only that the conversations between R.C.A. and the defendant were authorised under no.CARDINAL on CARDINAL DATE ( although the transcripts from pages CARDINAL of the file indicate a previous date , namely CARDINAL DATE ) , and after the tapes had been heard it was confirmed that their contents were mentioned in the transcripts .

Moreover , according to the letter of DATE from ORG and the statements of R.C.A. and the witness PERSON , the recording of the conversations was made by devices belonging to R.C.A. , who submitted to the criminal investigation body recordings made before she had made her accusations , and thus before she had obtained authorisation from the prosecutor .

Despite the fact that a forensic report intended to establish the contents of the audio tapes was ordered at the request of the defendant ... it could not be adduced before the court in the absence of the technical equipment ( microphone and tape recorder ) used for the recording of the tapes . ORG stated in the abovementioned letter that the police officer ’s recording device had been lost , and the other one was in the possession of R.C.A. , who had refused to hand it over . ”

The prosecutor ’s office appealed against the judgment rendered by ORG . It argued that the applicant ’s guilt was proved by the statements of the accuser , R.C.A. , and confirmed by the audio recordings of the conversations between R.C.A. and the applicant .

On DATE ORG ordered an expert technical report on the authenticity or otherwise of the tape recordings . At the hearing held on DATE the court revoked that order on the ground that “ R.C.A. no longer has the originals of the audio tapes ” .

On DATE , ORG dismissed the appeal on the ground that the applicant could not be convicted on the basis of recordings obtained in breach of the applicable legal provisions . It noted that the prosecutor had not observed the legal provisions concerning the attestation of the authenticity of the recordings , and considered that the correct procedures for telephone tapping had not been observed . With respect to R.C.A. ’s statements ORG arrived at the same conclusion as the first - instance court . It held that most of her statements were contradictory and were corroborated only by her husband and brother . However , the applicant ’s statement that she had received the money from R.C.A. as a loan was confirmed by the statements of CARDINAL other colleagues . CARDINAL of them stated that they had heard R.C.A. threatening the applicant that she would claim that the money given as a loan was in fact a bribe .

The appeal on points of law submitted by the prosecutor was allowed by ORG and ORG on DATE . That court quashed the decisions of the first CARDINAL domestic courts and convicted the applicant of influence peddling , sentencing her to CARDINAL years’ imprisonment , suspended , with probation . Without hearing evidence directly from the applicant , R.C.A. or any witnesses , the court arrived at the conclusion that ORG ’s statements were not contradictory and that in fact the applicant ’s statements were corroborated only by the testimony of CARDINAL witness , PERSON , a colleague of the applicant and CARDINAL of the individuals who had also persecuted R.C.A.

It mainly based its decision on the statements of R.C.A. , the testimony of ORG ’s husband and brother and the audio tapes containing the conversations between R.C.A. and the applicant .


CASE OF MILEUSNIĆ AND MILEUSNIĆ-ESPENHEIM v. CROATIA

No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Effective investigation)

Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants were born in DATE and DATE . Until his death the first applicant lived in GPE , GPE . The second applicant lives in GPE , GPE .

According to the applicants , on DATE , during the armed conflict in GPE , a number of the first applicant ’s neighbours , together with the other members of their family , gathered in the first applicant ’s home in GPE , GPE , because the town was being shelled . At TIME several soldiers broke into the house and immediately started to hit and kick the first applicant . He could not see them well because the house , like the rest of the town , was without electricity . When he fell to the ground , they dragged him into the kitchen where PERSON , the first applicant ’s wife and the second applicant ’s mother , and PERSON , the first applicant ’s daughter and the second applicant ’s sister , and PERSON , one of their neighbours , were sheltering . In the candlelight , the first applicant saw CARDINAL men in military uniforms of ORG with balaclavas on their heads . They continued to hit and kick the first applicant and CARDINAL of the men cut through the first applicant ’s palm with a knife . The other man cut CARDINAL of B. ’s fingers off with the knife . CARDINAL of the soldiers shot PERSON in the head , the other then cut PERSON ’s throat with a knife and subsequently shot at her with a firearm . The soldiers then ordered V.M. to make coffee for them . CARDINAL of the soldiers introduced himself as Grgić from a nearby village , PERSON . He asked the first applicant if he knew him and then hit him on the head with the shotgun . CARDINAL soldier then cut a muscle in the first applicant ’s right hand . Next , the soldiers shot V.M. dead . After that , a soldier shot the first applicant through his right cheek . The soldiers then left the kitchen . The first applicant escaped through the window and ran away , reaching a nearby medical centre . From there he was transferred to a hospital in PERSON , then to GPE where he lay in a coma for DATE . When he came round , one of the doctors told him that CARDINAL men had been looking for him and wanted him killed . His sister sent an ambulance from GPE and he was transferred from GPE to GPE , where he was treated from DATE to CARDINAL DATE .

When the first applicant returned to his home in ORG on DATE , he found refugees accommodated in part of the house . In DATE , all of his possessions had been taken away .

It appears that the police were alerted of the above - described events DATE . On DATE ORG ordered an investigation into the events in respect of suspects GPE , GPE , GPE and GPE

On DATE ORG dropped the charges against GPE and GPE on the ground that there was insufficient evidence that “ any projectiles had been shot from their weapons ” .

On DATE ORG indicted the remaining CARDINAL suspects , GPE , GPE and ORG before ORG on CARDINAL counts of murder aggravated by an exceptionally immoral purpose .

ORG terminated the proceedings against GPE , GPE and FAC on DATE on the basis of LAW .

D.L. died on DATE .

On DATE the applicants lodged a criminal complaint against CARDINAL suspects , namely , GPE , GPE , ORG , GPE and GPE , on charges of war crimes against the civilian population .

On DATE the GPE State Attorney ’s ORG dismissed the complaint against ORG since he had died in DATE .

On DATE an investigating judge of the ORG heard evidence from the first applicant . On DATE the first applicant asked that CARDINAL witnesses be called and provided their addresses and telephone numbers to ORG .

On DATE the Police interviewed the potential witnesses , PERSON and PERSON

On DATE the ORG Attorney ’s ORG submitted a request to ORG to open an investigation into the above - mentioned criminal complaint . The request was denied on CARDINAL DATE . However , upon an appeal lodged by the GPE State Attorney ’s ORG of DATE , ORG ordered on DATE that the investigation in respect of GPE , ORG , GPE and GPE be carried out .

On CARDINAL DATE the investigating judge heard evidence from the CARDINAL suspects . CARDINAL of them confessed to some of the charges but the other CARDINAL remained silent . The investigating judge ordered the detention of all CARDINAL suspects .

The investigating judge heard evidence from the first applicant and CARDINAL other witness on DATE and from another CARDINAL witnesses on DATE . She heard the first applicant again on DATE , as well as an expert witness and one of the accused .

On DATE the GPE State Attorney ’s ORG indicted GPE , ORG , GPE and GPE in ORG on charges of war crimes against the civilian population , which included the killing of V.M. and ORG and seriously wounding the first applicant . The accused lodged objections to the indictment which were dismissed by ORG ( PERSON ) on DATE .

Hearings were held on DATE and DATE . On the latter date ORG commissioned a report on the autopsy of PERSON and PERSON and a psychiatric report in respect of the accused Ž.B. The report on the autopsy was submitted on DATE and the psychiatric report on DATE .

Hearings were held on CARDINAL , DATE and DATE . On the last - mentioned date a judgment dismissing the charges was delivered on the ground that the accused had already been tried for the same offence before ORG . The charges against ORG had been dropped by the prosecutor and the proceedings against GPE and ORG had been terminated under LAW .

The NORP State Attorney ’s Office lodged an appeal on DATE and on CARDINAL DATE ORG upheld the judgment in respect of GPE and GPE and quashed the judgment in respect of GPE and FAC As regards GPE and Z.P. ORG concluded that the prosecutor had dropped the charges against them because there had not been sufficient evidence that they had participated in the shooting of the victims . Neither had the evidence adduced in the proceedings before ORG indicated their involvement in the killing and wounding of the victims . The relevant part of the judgment referring to the actions of GPE and GPE reads :

“ The evidence presented [ at the trial ] ... did not establish any activity on the part of the accused ORG so as to indicate [ that they had committed ] acts of violence towards PERSON or any other person in the house , before FAC , ORG and the late PERSON started to shoot at the victims . The [ first - instance ] court concluded that the accused ORG had not entered the house at all and that the accused [ PERSON had quickly entered and exited the house of the victim PERSON , without having committed any act in the house . ”

ORG further held as follows :

“ Since no new facts were established in the fresh criminal proceedings in which the impugned judgment was delivered ... save for those [ facts ] in respect of which the ORG Attorney had already dropped the charges , irrespective of their different legal qualification , the conclusion of the first - instance court that [ the situation ] was a matter of res judicata is correct and , contrary to the assertion of the ORG Attorney in the appeal , the indictment was correctly dismissed in respect of the accused GPE and GPE in accordance with LAW ) . ”

The case was then transferred to ORG .

Hearings before ORG were held on DATE and DATE .

On DATE that court found the accused GPE and ORG guilty as charged and sentenced them to CARDINAL and DATE imprisonment respectively . The judgment was upheld by ORG on DATE .

On DATE the applicants brought a civil action against the ORG in ORG ( Općinski sdu u ORG ) , seeking compensation in connection with the deaths of V.M. and PERSON , wounding of the first applicant as well as pecuniary damage as regards the expenses incurred for the stone erected on the grave of their relatives . In these proceedings the NORP State was represented by the State Attorney ’s Office .

On DATE ORG dismissed the applicants’ claim , finding that it had become time - barred .

That judgment was upheld by ORG on DATE and by ORG on DATE .

A subsequent constitutional complaint lodged by the applicants concerning the assessment of facts and interpretation of laws was dismissed by ORG ( Ustavni sud PERSON ) on CARDINAL DATE .

On DATE the second applicant and GPE , ORG , represented by ORG , reached a settlement by which the ORG was to pay the second applicant the following amounts : CARDINAL NORP Kuna ( HRK ) for non - pecuniary damage for the killing of his mother ; HRK CARDINAL for non - pecuniary damage for the killing of his sister ; HRK CARDINAL for pecuniary damage concerning the expenses incurred for the stone erected on the grave of his mother and sister ; and HRK CARDINAL for costs he incurred in the civil proceedings . The said amounts , together with the applicable interest rates , were paid to the second applicant on DATE .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

A list of the applicants is set out in the appendix . All the applicants are nationals of GPE and are represented by PERSON , a lawyer practicing in GPE .

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

Following its declaration of independence from the former ORG ) in DATE , a brutal war broke out in GPE . CARDINAL people were killed and CARDINAL others were displaced as a result of “ ethnic cleansing ” or generalised violence . The following local forces were the main parties to the conflict : the ORG of GPE ( PERSON i ORG , hereinafter ORG ) , which was mostly made up of ORG and loyal to the central authorities in GPE , ORG ( PERSON vijeće odbrane , hereinafter HVO ) , which was mostly made up of NORP , and the ORG of ORG ( PERSON , hereinafter ORG ) which was mostly made up of NORP . The conflict ended in DATE when ORG for Peace ( “ LAW ” ) entered into force between GPE , GPE and GPE ( succeeded by GPE by DATE ) .

Žepa , a town in eastern GPE , is situated QUANTITY from the border with GPE . Before the war it had a population of CARDINAL , of whom the majority were Bosniacs . During the war , PERSON was one of CARDINAL PERSON enclaves in eastern GPE surrounded by the ORG . In DATE it was declared a “ safe area ” by ORG .

NORP In DATE , there were CARDINAL people living in Žepa , of whom CARDINAL were displaced persons from other parts of GPE .

On DATE the ORG attacked the PERSON “ safe area ” , capturing it on DATE . In DATE that followed , CARDINAL LOC – predominantly able - bodied men who refused to surrender to ORG forces DATE managed to cross the border and flee to GPE . The present applicants’ relatives were among them .

When PERSON was captured by the ORG , the applicants’ relatives ( PERSON PERSON , the brother of the first applicant ; Mr PERSON , the son of the second applicant and brother of the third and the fourth applicant ; Mr ORG , the father of the fifth applicant and the husband of the sixth applicant ; and ORG , the husband of the seventh applicant ) crossed into GPE from GPE , hoping that they would be able to find refuge in a third country . They were discovered by a border guard patrol of ORG ( ORG , hereinafter VJ ) and taken to CARDINAL detention camps . It would appear that CARDINAL exiled individuals were brought to the camps between DATE and CARDINAL DATE . The applicants claim that the men received notification that they had prisoner - of - war status ; it is not clear whether all of them were indeed members of ORG or some of them were civilians . The first camp , ORG , was situated in the municipality of PERSON and the second , PERSON , in the municipality of PERSON , both in GPE . The GPE detention camp was located in an abandoned workers’ barracks and PERSON in a former children ’s recreational facility .

Both camps were guarded by the NORP police force and none of the applicants was allowed to leave them . According to the applicants , during their transportation to the camps or while interned in them , their relatives were either murdered or died as a result of torture and lack of medical assistance .

During their existence the camps were visited by representatives of ORG and ORG for Missing Persons of GPE . The latter compiled a report in which it found that the conditions of detention were disturbing .

Following the entry into force of LAW , the ORG facilitated the transfer of the camp survivors into third countries and the camps were closed in DATE .

The applicants maintained that PERSON , along with the other men , was captured by a border guard stationed at the LOC watch - tower on DATE or CARDINAL DATE . Upon capture and before being handed over to the competent police authorities , he was severely beaten by the soldiers and died there from the injuries sustained .

The Government maintained that nobody by the name of PERSON is mentioned in the relevant police or military records .

The applicants maintained that Mr PERSON , who was DATE at the time , was captured along with the other men by a border guard stationed at the LOC watch - tower on DATE or CARDINAL DATE . Upon capture and before being handed to the competent police authorities , he was repeatedly kicked in the abdomen by the soldiers , sustaining internal injuries as a result . He was then transferred to an internment camp where , despite the deterioration of his health , he was not provided with medical care . He died of the inflicted injuries on the way to hospital on DATE .

The Government maintained that the autopsy report shows that PERSON PERSON died of natural causes due to “ heart failure and stay of breathing resulting from self - poisoning caused by deterioration of part of the small intestine , aggravated by breathing of stomach contents as a result of vomiting and acute inflammation of the stomach . ”

The applicants made no comment on the ORG ’s submission .

Mr GPE was detained at the LOC watch - tower and transported to the ORG camp on DATE . He was transported with another CARDINAL detainees in a closed curtainside truck designed to transport a maximum of CARDINAL people . He died apparently of suffocation during transportation . His body was taken out of the truck and buried on QUANTITY DATE by the NORP religious community in the PERSON cemetery . There is apparently a pathologist ’s report of CARDINAL DATE , without post mortem examination , stating that he had died from heart attack .

In DATE ORG for missing persons ordered the exhumation of his corps , identified him and transported him to GPE . The Commission stated in its request to a competent court that it did not have any information that the persons may have died by the cause of a crime . The autopsy could not determine the cause of death due to the corps’ state .

The applicants maintain that Mr Jahić was severely beaten by guards at the ORG camp and that he died of the injuries inflicted in DATE .

The Government maintained that the only person registered as a detainee under the name of ORG at the ORG camp was transferred to ORG High Commissioner for Refugees in GPE on DATE and had been scheduled for emigration to GPE . They further claim that this person died on DATE in GPE , GPE , GPE and was buried in PERSON , GPE , GPE .

On DATE LAW ( GPE pravo , hereinafter ORG ) , a GPE - based ORG , lodged a criminal complaint on behalf of the applicants and other individuals as victims with ORG ( NORP za ratne zločine , hereinafter ORG ) against CARDINAL individuals for alleged war crimes ( see paragraph CARDINAL below ) . In its criminal complaint the ORG submitted statements from the camps’ detainees , medical documentation , documentation from ORG and ORG for Missing Persons of GPE , and other evidence . They submitted an extensive list of potential witnesses and proposed other investigative steps . Among those alleged to have taken part in the killings , the ORG identified members of ORG , police officers , and military servicemen of various ranks . It would appear that on DATE the ORG requested the ORG to provide evidence it referred to in the criminal complaint , but the ORG apparently failed to do so .

On DATE the OWCP undertook a preliminary verification of the information submitted by the applicants and requested ORG and ORG to submit information regarding the criminal complaint .

On DATE and DATE ORG submitted CARDINAL reports to the FAC . In their reports it was stated that the situation in the camps had been generally good , that the camps had not been enclosed behind a fence , and that residents who were given refugee status had had access to health services , a canteen , a post office , a phone , a bank , and both private visits and visits by officials from international organisations . While CARDINAL of the reports describes the conditions in GPE camp as unsatisfactory , the conditions in PERSON were described as lodgings with the quality of “ hotel accommodation ” . This preliminary examination also revealed some inconsistencies and irregularities in the criminal complaint regarding the identity of the alleged victims and the circumstances of their death and burial .

On DATE the OWCP notified the ORG that it decided , having regard to the ORG ’s allegations and evidence collected by the OWCP , not to prosecute ( da nema mesta krivičnom gonjenju , PERSON . DATE ) on the ground that there had not been elements of the alleged war crime or any other crime within the OWCP ’s jurisdiction in the acting of the suspects . A reasoned decision ( rešenje o odbačaju ) , if it had been made in writing , has neither been sent to the applicants , nor to the ORG .

On DATE the applicants lodged a constitutional appeal before ORG , claiming violations of ORG , CARDINAL and DATE of the Convention . On DATE ORG rejected the applicants’ constitutional appeal , finding that , given the legal nature and content of the OWCP ’s decision , it could not be considered as an individual act which was decisive with respect to the applicants’ human rights , as required by LAW o pojedinačnom aktu iz člana CARDINAL . PERSON ; see paragraph CARDINAL below ) .

NORP The decision of ORG was delivered to the ORG representative on DATE .

The relevant provisions of the LAW read as follows :

Article CARDINAL

“ 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 . ”

LAW of the Socialist GPE DATE ( ORG of ORG – ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , in ORG of GPE nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and in ORG no . CARDINAL/CARDINAL ) was in force until DATE . The relevant provisions thereof are set out hereunder .

Article CARDINAL governs the statutory limitation periods in respect of criminal liability . The relevant parts are worded as follows :

“ ( CARDINAL ) If not prescribed differently by this LAW , criminal liability shall be statutebarred :

CARDINAL ) DATE from the date on which the offence was committed in instances where the law provides for the death penalty or DATE imprisonment ;

CARDINAL ) DATE from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding DATE ;

Article CARDINAL of the same Code is worded as follows :

“ The statutory limitation of criminal liability does not apply to the crimes covered by Articles CARDINAL - CARDINAL of this Code [ genocide and war crimes ] or to crimes for which statutory limitation is proscribed by international treaties . ”

The Criminal code of GPE ( Official Gazette of GPE , nos . CARDINAL/CARDINAL , GPE , DATE , DATE , DATE , CARDINAL and CARDINAL ) entered into force on DATE .

CARDINAL ) DATE from the date on which the offence was committed where the law provides for DATE imprisonment ;

“ The statutory limitation of criminal liability does not apply to crimes covered by LAW of this Code [ genocide and war crimes ] or to crimes for which statutory limitation is proscribed by ratified international treaties . ”

Article CARDINAL - War crime against the civilian population

“ Whoever , acting in violation of the rules of international law applicable in time of war , armed conflict or occupation , orders that a civilian population be subject to killing , torture , inhumane treatment , biological experiments , immense suffering or violation of their bodily integrity or health ; dislocation or displacement or forcible conversion to another nationality or religion ; forcible prostitution or rape ; application of measures of intimidation and terror , hostage - taking , imposition of collective punishment , unlawful transfer to concentration camps or other illegal arrests and detention , deprivation of rights to fair and impartial trial ; forcible service in the armed forces of the enemy ’s army or in its intelligence service or administration ; forced labour , starvation of the population , property confiscation , pillaging , illegal and intentional destruction or large - scale stealing of property that is not justified by military needs , taking an illegal and disproportionate contribution or requisition , devaluation of domestic currency or the unlawful issuance of currency ; or personally commits CARDINAL of the aforementioned actions , shall be punished by not less than DATE imprisonment or the death penalty . ”

Article CARDINAL - War crime against prisoners of war

“ Whoever , acting in violation of the rules of international law , orders the murder , torture or inhumane treatment of prisoners of war , including biological experiments , extreme suffering or serious injury to their bodily integrity or health , compulsory enlistment in the armed forces of an enemy power , or deprivation of the right to a fair and impartial trial , or personally commits any of the aforementioned acts , shall be punished by not less than DATE imprisonment or by the death penalty . ”

LAW of GPE ( ORG of GPE nos . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) was in force in until DATE . Its relevant provisions read as follows :

Article TIME Murder

“ ( CARDINAL ) Whoever causes the death of another shall be punished by not less than DATE imprisonment .

( CARDINAL ) CARDINAL years’ imprisonment or the death penalty shall be imposed on whoever :

CARDINAL ) causes the death of another in a cruel or insidious manner ;

CARDINAL ) causes the death of another by callous , violent behaviour ;

CARDINAL ) causes the death of a person and with premeditation endangers the life of ( an)other person(s ) ;

CARDINAL ) causes the death of another for the purpose of gain , or to commit or conceal another offence , or for callous revenge or other base motives ;

CARDINAL ) causes the death of an official or serviceman during the discharge or related to the discharge of duties concerning the state or public security ... ;

CARDINAL ) with premeditation causes the death of several persons , where this is not a case of manslaughter committed in the heat of passion , or infanticide , or mercy killing .

Article DATE Serious bodily harm

“ ( CARDINAL ) Whoever causes serious injury to another , or serious impairment of another ’s health , shall be punished by imprisonment of DATE .

( CARDINAL ) Whoever causes serious injury to another or impairment of another ’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof , or permanent serious health impairment or disfigurement , shall be punished by CARDINAL to CARDINAL years’ imprisonment .

( CARDINAL ) If the injured party dies as a consequence of sustained injuries according to CARDINAL of this LAW , the perpetrator shall be punished by one to twelve years’ imprisonment . ”

Article CARDINAL - Murder

Whoever causes the death of another shall be punished by imprisonment of DATE .

Article CARDINAL - Aggravated Murder

Whoever :

CARDINAL ) causes the death of another by callous violent behaviour ;

CARDINAL ) causes the death of another and with premeditation endangers the life of another person ;

CARDINAL ) with premeditation causes the death of several people , where this is not a case of manslaughter committed in the heat of passion , or infanticide , or mercy killing ;

shall be punished by DATE imprisonment .

Article CARDINAL – Serious bodily harm

( CARDINAL ) If the actions specified in DATE and QUANTITY of this Article result in the death of the injured party , the offender shall be punished by CARDINAL to twelve years’ imprisonment .

Article CARDINAL – Crime against humanity

“ Whoever , acting in violation of the rules of international law , orders as part of a wider and systematic attack against a civilian population : murder ; placement of the group in living conditions calculated to bring about its complete or partial extermination , enslavement , deportation , torture , or rape ; enforced prostitution ; forcible pregnancy or sterilisation aimed at changing the ethnic balance of the population ; persecution on political , racial , national , ethical , sexual or other grounds , detention or abduction of persons without disclosing information about such acts in order to deny such person legal protection ; oppression of a racial group or establishing domination of CARDINAL such group over another ; or other similar inhumane acts that intentionally cause serious suffering or serious impairment of health , or personally commits any of the aforementioned offences , shall be punished by imprisonment of DATE or imprisonment of DATE . ”

Article CARDINAL – War crime against civilian population

( CARDINAL ) Whoever , acting in violation of international law in time of war , armed conflict or occupation orders : an attack on the civilian population , a settlement , particular civilians , persons incapable of combat or members or facilities of humanitarian organisations or peacekeeping missions ; wanton attack without target selection that harms the civilian population or civilian buildings under the special protection of international law ; an attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is evidently disproportionate to the military effect ; the infliction on the civilian population of bodily injury , torture , inhumane treatment , biological , medical or other research experiments , or the taking of tissue or organs for transplantation or the performing of other acts that impair health or inflict great suffering or the deportation or relocation or forced change of nationality or religion ; forcible prostitution or rape ; applying intimidation and terror measures , taking hostages , collective punishment , unlawful deprivation of freedom and detention ; deprivation of the rights to a fair and impartial trial ; declaration of the prohibition , suspension or non - admissibility in court proceedings of the rights and acts of enemy nationals ; the coercion into service of a hostile power or its intelligence or administration services ; the coercion into military service of persons DATE ; forced labour ; starvation of the population ; unlawful seizure , appropriation or destruction of property not justified by military needs ; taking unlawful and disproportionate contributions and requisitions ; devaluation of local currency or unlawful issuing of currency , or personally commits any of the above offences , shall be punished by DATE imprisonment .

Article CARDINAL – War crimes against prisoners of war

“ ( CARDINAL ) Whoever , acting in violation of international law , orders the injury , torture , or inhumane treatment of prisoners of war , or biological , medical or other research experiments on them , or the taking of their tissues or body organs for transplantation or the commission of other acts harmful to health and causing them serious suffering , or compels prisoners of war to serve in the forces of a hostile power or deprives them of the rights to fair and regular trial ; or personally commits any such offences , shall be punished by DATE imprisonment .

( CARDINAL ) Whoever orders the murder of prisoners of war or personally commits such an offence , shall be punished by CARDINAL years’ imprisonment or imprisonment of DATE . ”

This Act ( published in ORG no . CARDINAL , amendments published in ORG nos . CARDINAL , CARDINAL , DATE and DATE ) entered into force on DATE . ORG , ORG and ORG within ORG and ORG were set up pursuant to LAW . They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former GPE ( see section CARDINAL of this Act ) .

In a number of previous cases concerning war crimes , the OWCP has treated the war in GPE DATE as an internal armed conflict ( see the judgments in cases GPE , PERSON I , PERSON , PERSON , PERSON and PERSON ) . The majority of the indictments in these cases came into being DATE . The final judgments in most of these cases had been adopted by the domestic courts by DATE .


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

The applicants was born in DATE and lives in GPE .

On DATE the applicant instituted an action for the settlement of accounts in inventory proceedings ( ação especial de prestação de contas em inventário ) before ORG .

From DATE to DATE the administrator of the estate ( cabeça de casal ) was notified , challenged the action and submitted the relevant accounts , which were contested by the applicant .

On DATE the judge gave instructions setting out the matters that had already been established and those that remained outstanding ( despacho saneador ) . On DATE the evidence submitted by the parties was admitted by ORG .

On DATE the applicant revoked the power of attorney given to her lawyer in the proceedings and on DATE requested legal aid , which was granted by the ORG ’s Attorney ’s ORG on DATE . On DATE a lawyer was appointed to represent the applicant .

On DATE , following a request of the applicant ’s representative , the hearing scheduled to CARDINAL DATE was adjourned .

On DATE the hearing was adjourned because the representative of the administrator of the estate failed to appear . The hearing was adjourned to CARDINAL DATE .

On DATE the applicant requested to represent herself in the proceedings .

NORP On DATE the applicant ’s request was granted and the first hearing was held . The hearing continued on DATE .

On DATE ORG adopted a decision with regard to the factual basis ( matéria de facto ) and on DATE it delivered its judgment in which it ruled against the applicant .

On DATE the applicant appealed against the decision before ORG , which delivered a decision remitting the case to the first - instance court on DATE .

DATE and DATE the proceedings were again analysed by the first - instance court to which they were remitted twice . On DATE ORG adopted its fourth judgment in the proceedings .

DATE the applicant lodged different appeals before ORG , ORG and ORG .

On CARDINAL DATE ORG adopted the final decision in the proceedings .

On DATE the applicant instituted inventory proceedings ( processo especial de inventário ) before ORG .

DATE and DATE several procedural steps took place , namely , the appointment of the administrator of the estate ( cabeça de casal ) and declarations from the parties .

On DATE a conference between the parties ( conferência de interessados ) started . The conference was adjourned to DATE at the request of the parties who argued they would try to reach an agreement .

On DATE , at the request of the parties , the proceedings were stayed for DATE .

On DATE the applicant requested information to the administrator of the estate with regard to certain amounts which had allegedly been received by her . On DATE the administrator of the estate replied .

On DATE the conference of the parties continued and the representative of administrator of the estate requested the suspension of the proceedings due to the death of the latter .

DATE and DATE procedural steps were taken in view of the continuation of the proceedings against the heirs of the deceased administrator of the estate ( incidente de habilitação de herdeiros ) . In this period a second administrator of the estate was appointed .

DATE and DATE the applicant revoked the power of attorney given to her lawyer in the proceedings and requested legal aid , which was granted .

On DATE the conference of the parties was scheduled to CARDINAL DATE .

On DATE the administrator of the estate requested a second set of proceedings against the heirs of her father . On DATE ORG admitted the heirs as parties to the proceedings .

DATE and DATE ORG attempted to notify CARDINAL of the heirs .

On DATE the conference of the parties was adjourned due to the death of a J.L.E , party to the proceedings . On DATE proceedings were initiated against the heirs of J.L.E , seeking their intervention in the proceedings .

On DATE the conference of the parties was adjourned at the request of the parties who sought to reach an agreement . The agreement between the parties failed .

DATE and DATE the parties lodged several requests with ORG , to which it promptly replied .

On DATE a third set of proceedings against the heirs of ORG , party to the proceedings , was initiated ; having ended on DATE .

On DATE ORG adopted a decision with regard to the partition of the estate ( sentença de partilha ) .

On DATE the applicant appealed against the decision before ORG . By a decision of DATE ORG quashed the first - instance decision , annulled all the procedural steps taken and remitted the case to ORG .

DATE and DATE several procedural steps took place , in particular , notifications , a request made by the applicant and delivering of declarations .

On DATE ORG ordered the suspension of the proceedings in order to determine the legal standing of one of the parties . DATE and DATE , the applicant appealed against this decision before ORG – which was dismissed DATE and the administrator of the estate requested the continuing of the proceedings , which was determined by ORG .

On DATE the conference of the parties was adjourned to CARDINAL DATE , which continued on DATE .

DATE and DATE several applications were made and challenged by the parties , different appeals were lodged by the applicant and several notifications were made by ORG , which promptly replied to all requests .

On DATE ORG adopted a decision with regard to the partition of the estate . On DATE the applicant appealed against the decision , which was dismissed by ORG on DATE .

DATE and DATE the applicant lodged CARDINAL appeals before ORG and CARDINAL appeals before ORG . The appeals were dismissed , the last decision being adopted by ORG on DATE .

On DATE the applicant started proceedings seeking the enforcement of the decision with regard to the partition of the estate ( processo especial de execução de inventário ) , which is still pending before ORG .


András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

NORP The applicant , Mr PERSON Çelik , is a NORP national , who was born in DATE and is currently serving a prison sentence .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Positive obligations);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant started his compulsory military service in Şırnak . On DATE he contacted the infirmary of his regiment , complaining of severe pain in his left eye . According to the applicant , the military doctor was absent and he was given eye drops by a soldier who had no medical qualifications . According to the Government , the records of the infirmary ( which were not made available to ORG ) showed that the applicant had been examined by a military doctor and given eye drops by that doctor and not by a soldier .

The following day the pain became persistent , so the applicant contacted the infirmary once again . He was told that he should go to his dormitory and rest . According to the applicant , despite the pain he was in , he was not relieved of his sentry duties during that period . On DATE he was referred to ORG , where he was diagnosed with a corneal ulcer .

On DATE the applicant was transferred to ORG , where his treatment started . However , he completely lost the sight in his left eye . According to the applicant , the doctors informed him that he had lost his eyesight because of the delay in starting the treatment , as in corneal ulcer cases it was essential to start treatment immediately .

On DATE the applicant was transferred to ORG for further treatment . He stayed there until DATE , during which time he underwent several operations . He returned to the hospital for a number of additional operations from DATE to DATE , DATE , DATE , and lastly , CARDINAL to DATE .

A medical report issued on DATE concluded that the applicant was no longer medically fit for military service and that he was eligible for an ocular prosthesis . On the basis of that report , the applicant was formally discharged from the army .

On DATE the applicant instituted proceedings before ORG , seeking compensation from ORG for the damage he had suffered to his eye during his compulsory military service as a result of the delay in his treatment . He claimed MONEY ( ORG ; MONEY ( ORG ) ) in respect of pecuniary damage and FAC in respect of non - pecuniary damage . He argued that for DATE after the start of his eye problem , he had been unable to see a doctor because there had been no doctor present at his regiment infirmary during that time . He gave the administrative court the names of a number of his fellow conscripts who had witnessed the fact that he had not been provided with medical treatment by a doctor in DATE but had instead been told to rest and use eye drops , and asked the court to question them .

In the written defence submissions that it sent to the administrative court , ORG argued that on CARDINAL and DATE the applicant had been examined at the infirmary of his regiment by military doctor İ.H.Ş. , who had prescribed medication for him .

In his observations submitted to the administrative court on DATE in response to those of ORG , the applicant maintained his allegation that on his first visit to the infirmary he had been examined by a soldier because the military doctor , İ.H.Ş. , had been temporarily dispatched to another regiment . He repeated his request that witnesses be summoned to testify before the administrative court and asked the administrative court also to summon and question Dr İ.H.Ş.

During the proceedings the administrative court appointed CARDINAL university professors from the ophthalmology department of ORG as experts with a view to clarifying whether there had been any medical malpractice in the applicant ’s case . Their expert report drawn up on DATE concluded :

“ Our medical opinion , based on our examination of the plaintiff ’s allegations , is as follows :

It is understood that , although the problem in the patient ’s eye is described in the medical reports as a ‘ corneal ORG , the cause of the corneal ulcer ( Herpes virus ? Fungal infection ? Bacterial infection ? ) is not known . Furthermore , it is considered that it was not possible to establish with certainty the infection factor at the hospitals where the patient was observed and treated . For this reason , it is not possible to decide whether the eye problem was related to his military service or whether it was idiosyncratic .

Similarly , because the problem could not be fully diagnosed , it was not possible to determine the outcome [ of the applicant ’s symptoms ] within DATE .

[ We are of the opinion that ] there were no delays , shortcomings , mistakes or negligence in the steps taken in transferring the patient to the hospital , diagnosing the problem , treating the problem or treating the patient . ”

The applicant submitted a written statement to the administrative court on DATE , arguing that the medical report contained contradictory conclusions . He pointed out that , although the experts had indicated in the report that the problem had not been fully diagnosed , they had then gone on to conclude that there had been no shortcomings in the diagnosis of the problem . He further argued that the conclusion reached by the experts , namely that “ because the problem could not be fully diagnosed , it was not possible to determine the outcome [ of the applicant ’s symptoms ] within DATE ” , fully supported his allegations . His contention was also that , precisely because the problem had not been diagnosed properly , the treatment had not started in a timely manner . The applicant asked the administrative court to take steps to eliminate the inconsistencies by requesting and obtaining additional reports from a different set of experts .

In his written opinion submitted to ORG , the public prosecutor stated that the applicant should be awarded compensation either for the authorities’ negligence if such negligence was established , or on the basis of the no - fault strict liability of the military administration .

On DATE ORG , on the basis of the expert report of DATE ( see paragraph CARDINAL above ) , dismissed the applicant ’s claim by a majority of CARDINAL and held that no fault could be attributed to the military authorities in the treatment of the applicant .

In its decision ORG did not deal with the applicant ’s allegation that DATE and DATE he had been unable to see a doctor in the regiment infirmary because there had not been a doctor there during that time , other than stating that the applicant had “ contacted the infirmary of the regiment on CARDINAL and DATE and started receiving medical treatment there ” . Nor did the administrative court respond to the applicant ’s requests to have his witnesses heard .

A dissenting judge stated in his separate opinion that issues such as the cause of the problem , whether or not it had been as a result of the applicant ’s military activities , and what bearing the CARDINAL - to - DATE delay had had on the outcome had not been established in the expert report of DATE . The dissenting judge thus considered that the administrative court should not have decided the case without having obtained a new report and clarified those points .

The applicant requested a rectification of the administrative court ’s decision . He claimed , in particular , that his arguments had not been examined adequately by the court and repeated his arguments regarding the contradictions in the expert report of DATE .

On DATE ORG refused the applicant ’s rectification request by a majority of CARDINAL to one .

According to a medical report of CARDINAL DATE issued by ORG , the applicant was deemed to be suffering from a permanent disability as a result of the loss of sight in his left eye . It was indicated that his ability to work had been reduced by PERCENT as a result of the disability , and that the applicant was entitled to receive a disability pension .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant submitted a written notice to the mayor of GPE informing him that the LOC civic youth association ( “ the Association ” ) registered in GPE , of which he was chairman , intended to hold a picket ( пікет ) outside ORG ( “ the regional authority ” ) building . The notice read as follows :

“ We inform you that , starting from DATE our organisation will hold a picket [ in front ] of the [ regional authority ] for an indefinite term in view of the unhealthy , in our view , social and economic state of affairs in the region .

Beginning of the picket : DATE at TIME .

Place : square in front of the [ regional authority ] building ;

Responsible person according to the decision of the ORG ’s management : ORG [ the applicant ] .

Chairman of the [ Association ] Chumak , PERSON . ”

According to the ORG , the ORG ’s officially registered chairman at the material time was a certain PERSON . The applicant was neither the chairman , nor could he even be a member of the Association because according to the ORG ’s charter , membership was open to persons DATE . At the time of the relevant events the applicant was older .

On DATE the mayor ’s office forwarded the applicant ’s notice to the police , requesting that they maintain public order during the demonstration .

On DATE the ORG started the picket as intended . According to the applicant , several other local groups joined the action and CARDINAL small camping tents ( measuring CARDINAL by QUANTITY ) were erected by the walls of the regional authority building on a QUANTITY wide street for storing handout materials and displaying the NORP slogans .

On DATE the executive committee of ORG instituted administrative proceedings seeking “ to enjoin the [ Association ] not to organise and carry out pickets on the streets and squares of GPE and to oblige it to uninstall the unlawfully erected ‘ small architectural structures’ ( малі архітектурні форми ) . ” The plaintiff alleged that the protesters had been breaching the peace and public order by offending passers - by , acting arrogantly towards them , obstructing the traffic and pedestrians and endangering the lives and health of local residents . Referring to LAW ( “ the ORG ” , see paragraph CARDINAL below ) , which provided for the lodging of an action before the start of a picket , the plaintiff asked the court to admit its action for consideration out - of - time on the grounds that only after the picket had started had it become apparent that the protesters intended to engage in inappropriate conduct . The statement of claim was supplemented with applications by GPE . and GPE , CARDINAL passers - by , addressed to the police , in which they complained that the protesters had “ acted arrogantly ” , had offended their feelings and had erected tents obstructing pedestrians and spoiling the street aesthetics .

On DATE ORG in GPE ( “ the ORG ” ) held a hearing at which the applicant , representing the ORG , denied the allegations that the picketers had engaged in any inappropriate conduct . According to him , during the hearing he had unsuccessfully made several requests for the production of evidence . Notably , he had requested that GPE . , GPE and the police officers present at the site of the picket be summoned for questioning ; that the police authorities be asked whether any incidents of unlawful conduct by the picketers had been documented ; and that the site be inspected in order to determine whether , in fact , the camping tents mounted by the picketers had obstructed the traffic or the passage of pedestrians .

Later on the same date , ORG allowed the claim , having decided that the case file contained sufficient evidence that the protesters had behaved inappropriately . The relevant part of the judgment read as follows :

“ ... [ the ] executive committee ... did not and could not have known about a possible breach of public order by the participants of the event , which fact resulted in missing the time - limit for lodging a court action as required by paragraph CARDINAL of Article CARDINAL of the Code of Administrative Justice of GPE ; the court therefore resets the procedural time - limit ...

The court , when deciding the case , takes into account that the participants in the event installed small architectural edifices on the pavement . In addition , during the event , they acted arrogantly , thus offending other citizens , obstructed the passage of pedestrians along PERSON street , and endangered road users , a fact confirmed by the complaints from GPE and GPE .

In addition , the court has regard to the fact that in the notice of the event it is stated that it will be held indefinitely . Also the number of protesters is not defined ... and it may gradually increase . Accordingly , at any time during the picket of indeterminate length , it can not be excluded that those taking part might repeatedly breach public order . ”

The court also noted that the picket “ may potentially encroach upon the rights and freedoms of other local residents ” and held as follows :

“ [ the court holds ] to prohibit [ the ORG ] and other persons taking part in the action from organising and carrying out peaceful assemblies in the streets and squares of GPE , [ and ] from installing small architectural edifices in GPE ; ... oblige them to dismantle the small architectural edifices installed in the square in front of the [ Administration ’s ] building ...

To allow immediate enforcement of the court ruling ... ”

At TIME on DATE the protesters were dispersed by the police .

On DATE the local registry office informed the applicant that GPE . and GPE were not registered as residents at the addresses indicated by them in their complaints lodged with the police .

On DATE the applicant lodged an appeal against the court judgment of DATE , which he signed as the ORG ’s chairman . He submitted that under LAW of the ORG , a plaintiff ’s action could not be examined when it had been lodged out of time . He further submitted that the court ’s factual conclusions had been devoid of an evidentiary basis . In particular , there was no evidence whatsoever that the protesters had breached the law , apart from the complaints by CARDINAL . and GPE , who had given false home addresses and thus could not be identified . The applicant further complained that the court had rejected his request that those individuals be located and summoned , and that the police officers present at the site of the picket also be summoned for questioning concerning the alleged breaches of the law by the protesters . He also regretted that the court had refused his requests that the relevant police reports documenting the purported breaches of the law ( if any ) be produced and an inspection of the picket site be carried out with a view to determining whether the tents erected by the activists could count as “ architectural structures ” and whether there had been any obstruction of traffic or pedestrians . Lastly , the applicant complained that the sanction imposed by ORG ( a total and permanent ban on the ORG organising peaceful assemblies in GPE ) had been arbitrary and disproportionate .

On DATE ORG examined the applicant ’s appeal and decided that , in view of namely , the short notice of the intention to hold a picket and the indefinite period during which the participants planned to continue their demonstration ) the administrative action lodged by the executive committee could be accepted for examination . It agreed with ORG findings of fact and noted , in particular , that by installing the tents , the protesters had breached section CARDINAL of LAW and section CARDINAL of LAW . At the same time , ORG found that the sanction imposed on the protesters had been disproportionate . In particular , LAW generally allowed peaceful assemblies , which could therefore not be prohibited in a blanket manner . Nevertheless , it did not envisage a form of assembly such as the “ picketing ” of administrative buildings “ with the installation on the streets of small architectural structures ” . Accordingly , the court found that the term “ peaceful assemblies ” in the operative part of ORG judgment had to be substituted with the term “ pickets ” . The court then rejected the applicant ’s remaining arguments as unsubstantiated .

On DATE ORG GPE dismissed an appeal on points of law lodged by the applicant .


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Pauliine Koskelo

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The President granted the applicant ’s request for his identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL of ORG ) . He was represented before the Court by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent ’s delegate , PERSON , Senior Advisor at ORG .

Mr L .- A. Sicilianos , the judge elected in respect of GPE , withdrew from sitting in the case ( LAW of ORG ) . The President of the ORG accordingly appointed Mr Michail Margaritis to sit in his place ( LAW ( a ) of LAW ) .

On DATE the application was communicated to the Government .

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

At the time the events took place the applicant was a legal counsellor at ORG ( PERSON του GPE ) .

On DATE , there were CARDINAL vacant posts at the rank of vice - president of ORG . The first step of the selection procedure consisted of a proposal by ORG , which included a list of all eligible legal counsellors ranked on the basis of seniority . Among the CARDINAL legal counsellors who fulfilled the formal criteria , the applicant was ranked sixth .

At its meeting of DATE , ORG ( “ the ORG ” ) , following the proposal by ORG , unanimously decided to appoint as vice - presidents to ORG Mr GPE , Mr D.A. and Mr N.K , who were second , eighth and fourteenth respectively on the list . The reasoning of the decision stated that they “ [ had ] proved superior to the rest of their colleagues under consideration for the posts , as [ was ] clear from the relevant proposal of the competent Minister , which [ had been ] accepted by the ORG following assessment of each of the eligible legal counsellor ’s files and the ORG discussion ... ”

The proposal of ORG included the qualifications of the eligible staff members , in particular DATE of their appointment , their ranking and salary changes , their assignments and disciplinary proceedings and it concluded that :

“ ... having assessed all of the above - mentioned facts relating to the service of the persons under consideration , as well as other details of their personal service files and ... their general academic training , their moral character , their diligence and their administrative qualifications ; having also taken into account the generally formulated opinion for each one and their seniority ranking , I PROPOSE that the following be chosen and promoted to fulfil the CARDINAL ( CARDINAL ) vacant posts of vice - president of ORG ... [ the names of the CARDINAL accepted candidates followed , handwritten ] ” .

From TIME meeting it appears that its duration was TIME and included other items on the agenda as well .

On DATE , the Presidential Decree by which the procedure was completed was issued and published in ORG .

NORP On DATE , the same procedure was followed for filling another CARDINAL vacant posts to the rank of vice - president of ORG . CARDINAL legal counsellors were eligible for promotion , including the applicant , who was ranked fourth on the list on the basis of seniority .

At its meeting of DATE , the ORG , following the proposal by ORG , unanimously decided to appoint to the vacant posts Mr GPE and Mr GPE , who were sixth and tenth respectively on the list . The reasoning of the decision , as well as the Minister ’s proposal , were identical to the DATE procedure .

The duration of the ORG meeting was TIME and the agenda included other items as well .

On DATE , LAW by which the procedure was completed was issued and published in ORG .

On DATE , the applicant lodged an application for annulment ( αίτηση ακύρωσης ) of the Presidential Decree dated DATE with ORG ( PERSON της PERSON ) , on the grounds of lack of sufficient reasoning in the contested decision and of his having been manifestly superior to CARDINAL of the CARDINAL promoted legal counsellors , who had been ranked lower than him on the list and yet had been promoted .

On DATE , the applicant was informally informed that ORG had applied to have the case examined by the Plenary of ORG and that the President had agreed to grant that request . On DATE , the applicant filed a written submission contesting that decision , relying , on one hand , on the fact that his views on the subject had not been heard prior to the decision and , on the other hand , on the fact that such a referral would result in further delay in the examination of his case . In particular , the applicant maintained that he had DATE left before he reached compulsory - retirement age and the delay in the examination of his case would further diminish his chances of serving as vice - president of ORG . From the material in the ORG ’s possession , it appears that the applicant did not receive a reply to his submission . By a decision of the President of ORG dated DATE , the case was referred to the Plenary of that court .

The date of hearing before the Plenary of ORG was scheduled for DATE . The ORG adjourned the hearing until DATE . On that date , the case was again adjourned on the grounds that there were CARDINAL pending applications raising similar issues to the case under consideration and it would be better to examine the cases together . The hearing eventually took place on DATE .

By its judgment no . DATE , published on DATE and finalised on DATE ( δημοσίευση και καθαρογραφή ) , ORG dismissed the application for annulment of LAW dated DATE . In its reasoning the court first pointed out that the application for annulment was admissible , as LAW , which excluded the possibility of applications for annulment of decisions relating to promotions of judges , could not be applied by analogy . It then observed that owing to ORG special institutional role and the nature of the role of its President and vice - presidents , the ORG , when choosing the candidates who , in their view , had more substantive qualifications for those posts , enjoyed a wide degree of discretion , without being obliged to provide specific justification for their decisions , except for cases where an omitted candidate had been manifestly superior to the promoted candidates . It then noted that according to the minutes the Cabinet had chosen the candidates to be promoted by taking into account not only the competent Minister ’s proposal but also other details from the candidates’ files and following discussion among its members . Lastly , it pointed out that from the material in their possession , the applicant had not been manifestly superior to the promoted candidates .

On DATE , the applicant lodged an application for annulment of LAW dated DATE with ORG , on the grounds of lack of sufficient reasoning in the contested decision and because he had been manifestly superior to the CARDINAL promoted legal counsellors who had been ranked lower than him on the list .

By a decision of the President of ORG dated DATE , the case was referred to the Plenary of that court . The hearing was scheduled for DATE .

By its judgment no . DATE , published on DATE and finalised on DATE , ORG dismissed the application for annulment on the same grounds as those stated in judgment no . PERSON ( see paragraph CARDINAL above ) .

On DATE , the applicant , following a procedure similar to the CARDINAL described in paragraphs CARDINAL above , was appointed President of ORG .

NORP The relevant Articles of LAW read as follows :

“ CARDINAL . The remuneration of judicial functionaries shall be commensurate with their office . Matters concerning their rank , remuneration and their general status shall be regulated by special statute ... ”

“ CARDINAL . Retirement from the ORG legal service shall be compulsory upon attainment of DATE for all judges and prosecutors up to and including the rank of judge of a court of appeal or deputy prosecutor of a court of appeal , or a rank corresponding thereto . In the case of judges and prosecutors of a rank higher than the CARDINAL stated , or of a corresponding rank , retirement shall be compulsory upon attainment of DATE . In the application of this provision , DATE of retirement shall in all cases be taken as the date of attainment of the above age limit . ”

“ CARDINAL . Promotions to the posts of President or vice - president of ORG , of ORG and of ORG , shall be effected by Presidential Decree issued on the proposal of the ORG , upon selection from among the members of the respective ORG , as specified by law ... The mandate of the President of ORG , of ORG and of ORG ... may not exceed DATE , even if the judge or prosecutor holding this office has not reached the retirement age . ”

“ Matters relating to the establishment and functioning of ORG , as well as matters relating to the service status of functionaries and staff members who serve therein , shall be specified by law . The competence of ORG pertains mainly to the judicial support and representation of the ORG and to the recognition of claims against it or to the settlements of disputes with the ORG . The provisions of ORG CARDINAL paragraphs CARDINAL and DATE , as well as of LAW paragraph CARDINAL shall apply accordingly to the main staff of ORG . ”

The relevant sections of LAW ( Organisation of ORG ) and the status of its officers and employees , published in Official Journal A/CARDINAL , read as follows :

“ ORG is responsible for judicially supporting the State ... ”

“ CARDINAL . The ranks of hierarchy of ORG members are the following : President , vice - president , legal counsellor , senior advisor , legal representative A , legal representative and associate legal assistant ( GPE , GPE , PERSON , GPE , PERSON Α΄. PERSON και δόκιμος PERSON ) .

Among members at the same rank , seniority is precedent , in accordance with the provisions of paragraph CARDINAL of the preceding article ... ”

“ CARDINAL . Promotions

a ) For the promotion of a member of ORG to a higher rank the following are required :

i ) Vacancy in the higher rank , if places are structurally distinct ,

ii ) Completion of the statutory time in the rank currently occupied ...

iii ) Possession of the necessary qualifications for the higher rank .

b ) Promotion of members of ORG to the ranks of judicial representative A and senior advisor takes place by election among those who possess the necessary formal requirements and qualifications :

i ) character and courage , ii ) academic training , iii ) judgment , perception and skills in understanding cases , iv ) skills in formulating proposals and pleas , v ) diligence , hard work and service performance , vi ) decent behaviour in general and in particular in courts and in their relations with other services and authorities , vii ) decent social behaviour , to an absolutely satisfying degree , so as to fully respond to the duties of the higher rank

c ) Promotion of members of ORG to the rank of legal counsellor takes place following a “ free vote ” ( κατ’ απόλυτη εκλογή ) . Deemed as eligible for promotion by free vote among those who possess the formal requirements are the members who possess the following to an excellent degree :

i ) character and courage , ii ) academic training , iii ) diligence , hard work and service efficiency , and following a comparison , those who are promoted to fill the vacant posts are elected .

e ) Promotion to the posts of President and vice - president is effected by Presidential Decree following a proposal by the ORG , which , upon the recommendation of the Minister of Economy and Finance , selects the ones who must be promoted among those who fulfil the legal requirements .

i ) The post of vice - president of ORG is occupied by a legal counsellor who has been promoted following DATE of service in the rank of legal counsellor .

j ) The post of President of ORG is occupied by a vice - president or a legal counsellor who has been promoted following DATE of service in the rank of legal counsellor . ”

“ The members of ORG automatically retire from service :

b ) the legal counsellors , who correspond to judges of ORG , the vice - presidents , who correspond to vice - presidents of ORG , and the President of ORG , who corresponds to the President of ORG , [ at the end of their ] DATE .

d ) For the implementation of provisions a ) and b ) of the present paragraph , DATE of retirement age is reached is considered to be DATE the member of ORG retires . ”

The relevant section of Presidential Decree CARDINAL/CARDINAL , which codifies the laws relating to ORG , reads as follows :

“ Legitimate interest . CARDINAL . An application for annulment against an administrative act can be lodged by any individual or legal person who is concerned by the act , or whose legitimate interests , even if non - pecuniary in nature , are infringed upon . ”

“ An application for annulment can be lodged for the following reasons :

CARDINAL ) Incompetence on the part of the administrative authority which issued the act ;

CARDINAL ) Infringement of an essential procedural requirement which had been set for the act ;

CARDINAL ) Infringement of an essential provision of law ;

CARDINAL ) Abuse of authority , when the administrative act per se bears all the elements of legality , but has been manifestly issued for other purposes than those for which it was enacted . ”

According to the case - law of ORG , when domestic law affords to civil servants the right to be considered eligible for promotion , this constitutes a sufficient legitimate interest enabling them to lodge an application for annulment for one of the reasons cited in LAW ( see , for example , decision no . CARDINAL/CARDINAL of ORG ) .


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the inadequate conditions of their detention .


No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of extortion , kidnapping and fraud . DATE ORG authorised his detention .

On DATE ORG held a hearing on extension of the applicant ’s detention . The applicant asked to postpone the hearings for DATE because his counsel was sick and could not attend . ORG dismissed the request , assigned lawyer PERSON to represent the applicant , proceeded with the hearing and extended the applicant ’s detention . The applicant ’s objection to the participation of ORG on account of their different defence strategies and ORG ’s limited knowledge of the case - file was also dismissed .

The applicant and his counsel appealed , complaining , in particular , about a breach of the applicant ’s right to defend himself through legal assistance of his own choosing . On DATE ORG upheld the detention order of DATE , having also noted that the legal aid lawyer PERSON had been appointed because the detention matter “ had to be examined immediately ” .

On DATE ORG once again extended the applicant ’s detention . On DATE ORG held the appeal hearing without informing the applicant in advance about the hearing date . The applicant ’s counsel attended the appeal hearing and made oral submissions . ORG dismissed the appeal and upheld the detention order of DATE .

The applicant ’s detention was further extended on several occasions . In particular , on DATE the measure of restraint was prolonged until DATE .

On DATE the applicant was committed to stand trial before ORG . DATE , on DATE , the trial court scheduled a preliminary hearing for DATE and ruled that , in the meantime , the measure of restraint in respect of the applicant should remain unchanged until the preliminary hearing . The decision was delivered in a written procedure ( without the parties being present ) .

NORP The applicant appealed , complaining , among other matters , that that decision in the part relating to his detention was unlawful and that it had been delivered in his and his lawyer ’s absence . On DATE ORG of GPE upheld the decision , having found , in particular , that the trial judge ’s decision was no more than a restatement of the detention order of DATE extending the applicant ’s detention until CARDINAL DATE ( see paragraph CARDINAL above ) .

At the preliminary hearing on DATE the trial court extended the applicant ’s detention until DATE .

On DATE the applicant was convicted . On DATE ORG upheld his conviction on appeal .