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

The facts of the cases , as submitted by the applicants , may be summarised as follows .

Mr PERSON is a GPE national who was born in DATE . He is currently detained in a custodial clinic in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE PERSON , who was then resident in an institution for persons with developmental problems , sexually assaulted a female member of institution staff , fondling or touching her breasts and lower body against her will . On DATE , while detained as a suspect in a custodial institution for juveniles , he sexually assaulted a fellow inmate , a fourteenyear - old boy , inter alia by rubbing his crotch .

NORP In the course of the criminal proceedings , PERSON was examined by a psychiatrist and a psychologist . The psychiatrist found the applicant to be suffering from a disorder in the autistic spectrum and mild mental deficiency . The psychologist also found indications of mild mental deficiency , in addition to pervasive development disorder and attention deficit hyperactivity disorder . Neither the psychiatrist nor the psychologist came to the conclusion that criminal responsibility was entirely absent .

On DATE the Roermond Regional Court ( rechtbank ) convicted PERSON of “ indecent assault ” ( feitelijke aanranding PERSON , LAW ( PERSON ) ) and “ committing lewd acts out of wedlock with a person below the age of CARDINAL ” ( met QUANTITY beneden PERSON jaren buiten echt ontuchtige handelingen plegen , LAW ) . It ordered him to be placed at the disposal of the Government ( terbeschikkingstelling , hereafter “ ORG order ” ) with confinement in a custodial clinic ( bevel tot verpleging van overheidswege ) . The judgment included the following reasoning :

“ The acts committed by [ Mr V. ] , namely indecent assault and lewd acts with a child , are crimes which according to their statutory definition , carry maximum prison terms of DATE and DATE respectively and for which a ORG order may be imposed .

In view of the findings of the experts , the nature and seriousness of the acts found proven and the person of [ Mr V. ] , as apparent from the examination of the case at the hearing , ORG considers that a ORG order is justified in this case . [ Mr V. ] is after all afflicted with a serious disturbance on the basis of which it can be said that the safety of others or the general safety of persons requires the imposition of the measure . Moreover , [ Mr V. ] has committed criminal acts which admit of the imposition of such a measure . In addition , ORG considers that these grounds justify confinement in a custodial clinic . In view of the above , ORG will follow the advice of the experts and will impose a ORG order with confinement in a custodial clinic .

ORG agrees with the public prosecutor and counsel for the defence that it would serve no purpose at all to impose a punitive sentence on [ Mr V. ] in addition to the ORG order . ... ”

Neither the prosecution nor the defence appealed against this judgment , which thus became final DATE . The ORG order , which was valid for DATE , accordingly entered into force on DATE .

On DATE the Roermond Regional Court extended the ORG order for DATE . The decision stated that the crimes committed by PERSON were indictable offences directed against , or endangering , the physical integrity of one or more persons . No appeal was lodged against it .

The ORG order next came up for review DATE , in DATE . The public prosecutor sought a further extension . Having held a hearing on DATE , the ORG gave a decision on DATE refusing to extend the order further . Its reasoning was as follows :

“ In order to answer the question whether or not the ORG order is limited in duration , in which event the possibility of indefinite extension does not exist , it is necessary to consider the judgment of ORG in PERSON the GPE , no . CARDINAL , DATE , and the decision of ORG of DATE ( PERSON ( FAC , ORG ) .

In the present case the ORG order with confinement in a custodial institution was ordered by a judgment of this court of DATE in relation to the indictable offences ( misdrijven ) ‘ indecent ORG and ‘ committing lewd acts with a person below the age of sixteen’ . This judgment lacks reasoning as referred to in LAW ) . As ORG held in that judgment , it is not for the court ruling on the extension of the ORG order to determine retrospectively , by interpretation of the judgment of the trial court , whether or not the ORG order was imposed in connection with an indictable offence that is directed against , or endangers , the physical integrity of CARDINAL or more persons ( ‘ a crime of ORG ) , and accordingly whether or not the ORG order is limited in duration . If the prescribed reasoning is absent , then the ORG order can not be unlimited in duration and it must , according to ORG , be assumed that the ORG order is limited to a maximum duration . ORG has held in its aforementioned decision that there is no such interpretation if on the basis of the conviction , the qualification and the reasoning of the measure , considered in context ( in onderling verband en samenhang bezien ) , it is self - evident to anyone that the crime in issue is a crime of violence .

In view of the latter decision of ORG must answer the question whether in this case it is self - evident that the facts for which the ORG order was imposed constitute ‘ crimes of ORG .

In the present case it is not self - evident from the conviction , the qualification and/or the reasoning that the crimes in issue are ‘ crimes of ORG . Since such a conclusion could be reached only by way of interpretation of the judgment of DATE and DATE in view of the further circumstances – it can not be ruled out that the trial court intended to limit the ORG order in duration to a DATE maximum , ORG considers that in this case the ORG order is limited in duration , so that there is no longer any possibility of extending the order further . The public prosecutor ’s request for an extension of the ORG order will therefore be refused .

The above findings do not alter ORG understanding , which is shared by all concerned , including PERSON himself , that PERSON will nonetheless need further treatment and/or assistance . ”

NORP The public prosecutor appealed to FAC ( by this time the successor to ORG ) .

Having held a hearing on DATE , ORG , sitting in GPE , gave a decision on DATE extending the ORG order by DATE . Its reasoning was as follows :

“ ORG order limited in duration ?

In the judgment of ORG ( PERSON ) of CARDINAL DATE , PERSON GPE , the view was taken that the sole fact that the sentencing court in its reasoning has not stated in so many words that the ORG order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of DATE . The only condition set by LAW for the extension of the ORG order is that the measure be imposed in connection with a crime of violence . Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court DATE whether it be read in context or not – such as the conviction , the evidence relied on , the qualification , the reasoning of the rejection of any defence put forward and the reasoning of the sanction or sanctions imposed . If , on that basis , it is evident that the crime is one of violence , then at the very least it can not be said that the possibility of extension of the measure beyond DATE was not foreseeable for the person subject to the ORG order .

ORG finds that [ Mr V. ] – given the conviction and the qualification – was convicted of :

indecent assault ;

committing lewd acts out of wedlock with a person below the age of DATE .

ORG has had regard in this connection to ORG considerations in imposing the sentence and the measure .

On the above grounds , ORG considers that it is implicit in the judgment of ORG of DATE that the ORG order was imposed in connection with crimes of violence and that accordingly it can not be said that the possibility of extension of the measure after DATE was not reasonably foreseeable for [ Mr V. ] . The defence made by counsel is therefore dismissed .

Mental disturbance and danger of reoffending

It appears from the case file that [ Mr V. ] is a mentally deficient man with an autism spectrum disorder . The danger of reoffending is estimated to be high absent present levels of security and care . There has lately been a clearly positive development . The clinic indicates that it has been possible to make follow - up arrangements with P. , a work and residential institution for young adults with mild intellectual impairment and serious behavioural disorders . The clinic indicates that it is important to prepare the transfer to the successor institution properly and carry it out painstakingly and gradually , in order to limit as far as possible the loss of structure and control .

Extension

In view of the danger of reoffending , which still exists , and [ Mr PERSON ’s ] pathology ORG considers that the safety of others or the general safety of persons requires the ORG order to be extended . In view of the expected duration of further treatment and resocialisation work ORG considers that a DATE extension is indicated . ORG assumes that the resocialisation work now begun will be pursued diligently . ”

Mr PERSON was born in DATE and has both GPE and NORP nationality . He is currently detained in a custodial clinic in GPE . He is represented before the ORG by Mr F. Holthuis , a lawyer practicing in GPE .

On DATE Mr PERSON punched his girlfriend in the face . When he was arrested DATE , cocaine was found on his body . On DATE Mr PERSON robbed an acquaintance of his bank card and his bunch of keys , assaulted him and cut him with a razor , and then left him in a helpless condition . The acquaintance was later found dead . On DATE Mr GPE violently forced another acquaintance to hand him cocaine and money .

On DATE ORG of The Hague convicted PERSON of “ causing bodily harm ” ( mishandeling , LAW ) , “ robbery with violence ” ( diefstal met geweldpleging , Articles CARDINAL and CARDINAL of LAW ) , “ manslaughter ” ( doodslag , Articles CARDINAL and FAC of LAW ) and “ attempted extortion ” ( poging tot afpersing , Articles DATE and CARDINAL of LAW ) . It sentenced him to DATE imprisonment .

Mr Elgouille appealed against this judgment . On DATE ORG of The GPE quashed the decision of ORG and acquitted PERSON of the manslaughter in the absence of a proven causal link . It convicted him of the other offences , sentenced him to DATE imprisonment and imposed a ORG order with confinement in a custodial clinic . The judgment included the following reasoning :

“ [ Mr Elgouille ] has committed a property offence , in which he did not recoil from using brute force against the victim by beating and kicking him , in order to deprive him of his bunch of keys and bank card . Furthermore , DATE , [ Mr Elgouille ] attempted to extort cocaine and money from a person by beating , kicking and threatening the victim . Acts such as these are generally experienced by the victims as exceedingly threatening and moreover these acts also cause anxiety and feelings of insecurity in society . In addition , [ Mr Elgouille ] assaulted another person and held cocaine in his possession . Besides , it has been established that , according to an extract from ORG dated DATE relating to him , [ Mr Elgouille ] has been convicted of property offences and violent offences before , which apparently did not deter him from committing the present offences . ”

Mr Elgouille appealed on points of law to ORG . On DATE ORG quashed the judgment of ORG for technical reasons and reduced the term of imprisonment to DATE and DATE in view of the excessive length of the proceedings ; for the remainder it endorsed the judgment of ORG .

The ORG order entered into force on DATE .

ORG of The Hague extended the ORG order by DATE by decision of CARDINAL DATE . The decision stated that the crimes committed by Mr Elgouille were indictable offences directed against , or endangering , the physical integrity of CARDINAL or more persons . Appealing against this decision , the applicant asked for a new diagnosis ; in the alternative , for a conditional suspension of his compulsory confinement ; in the further alternative , for an extension of only one year not CARDINAL . His appeal was dismissed and ORG decision was confirmed by ORG on DATE .

ORG of The Hague extended the ORG order by DATE on DATE . ORG confirmed this decision on DATE .

On DATE ORG of The Hague reviewed if further extension for DATE was allowed . The court answered this question in the affirmative . Its reasoning was as follows :

“ The measure of placement in a custodial clinic has been applied in respect of :

- theft , preceded and accompanied by violence against persons , committed with the intention of preparing and facilitating this theft ;

- attempted extortion ;

- assault ;

- deliberately acting in breach of the prohibition contained in LAW , paragraph CARDINAL , under C of LAW .

Accordingly , crimes ( of violence ) that are directed against and endanger ( the physical integrity of ) persons .

Pursuant to the foregoing , the court considers that the safety of others and the general security of persons or property demand the extension . Since it appears from the advice and the deliberations in chamber that the treatment involving learning new behaviour is still in the early stages and no start has yet been made with the rehabilitation , the court is of the opinion that the ORG order should be extended for DATE . The court sees no reason to give the clinic indications concerning the way in which the treatment should take place . ”

The Arnhem - Leeuwarden Court of Appeal confirmed this decision on DATE . The court considered the following :

“ Custodial placement not limited in duration

ORG finds that the judgment of ORG DATE convicted [ Mr Elgouille ] of , inter alia :

- theft , preceded and accompanied by violence against persons , committed with the intention of preparing and facilitating this theft ; and

- attempted extortion .

In accordance with the judicial findings of fact , the qualification and the reasons given for the imposition of the penalty and measure , considered in their interrelationship , that judgment implies that the ORG order has been imposed in connection with crimes of violence within the meaning of Article CARDINAL § CARDINAL of LAW and that on that account it can not be said that the possibility of extension of the measure after DATE has not been reasonably foreseeable for [ Mr Elgouille ] . Moreover , ORG takes into consideration that both offences involved physical violence against the victim by among other things beating and kicking the body . Counsel ’s defence was rejected . ”

Mr PERSON is a GPE national who was born in DATE . He is currently detained in a custodial clinic in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE Mr Kuiters smashed the windows of the house of his neighbour , CARDINAL Mr PERSON , with a baseball bat . At the relevant time , Mr PERSON was present on the first floor of his house . It is noted that apart from this incident , PERSON had on an earlier occasion shot through the windows of PERSON car with a crossbow .

ORG convicted PERSON on DATE of “ threatening grievous bodily harm ” ( bedreiging met zware mishandeling , LAW ) and “ carrying a weapon ” ( een wapen dragen , section ORG ) of LAW ( PERSON en munitie ) ) . As relevant to the case before ORG , it imposed a ORG order with confinement in a custodial clinic .

Mr Kuiters appealed against this judgment to the ‘ s - ORG . On DATE the ORG quashed the judgment of ORG on a technicality and gave a new judgment . As had ORG , it convicted PERSON of threatening grievous bodily harm and carrying a weapon . Finding that Mr Kuiters could not be held criminally responsible , it excused him punishment but imposed a ORG order with confinement in a custodial clinic . The judgment included the following reasoning :

“ ORG finds , in view of the circumstances set out above and also taking earlier events into account :

that the suspect ’s violent behaviour was highly threatening for Mr PERSON ;

that PERSON had good reason to conclude that if he did not give in to the suspect ’s wishes , he ran a serious risk of incurring grievous bodily harm

that the suspect ’s intent was directed to this end , at any rate inasmuch as he understood that such would be the necessary consequence of his behaviour . ”

and

“ Having regard to the foregoing , particularly having regard to [ Mr Kuiters ’s ] fascination with weapons in combination with his long - term mental disorder , the ORG considers that the likelihood of reoffending should be estimated high and that , to reduce this chance , clinical psychiatric treatment is required . ”

and

“ In the view of ORG , [ the safety of others and/or the general safety of persons or goods ] necessitates a ORG order and also requires [ Mr Kuiters ] to be confined in a custodial clinic . In so finding , ORG has also considered the content of [ the various reports ] that have been prepared on the subject of [ Mr Kuiters ’s ] personality , in addition to the seriousness of the first criminal act found proven [ i.e. threatening grievous bodily harm ] . That act is an indictable offence ( misdrijf ) that , according to its statutory definition , carries a prison sentence of DATE . ”

The ORG order entered into force on DATE .

After an initial period of DATE , ORG extended the ORG order with DATE on DATE . Mr Kuiters did not object to such an extension . It is reflected in the decision that the institution in which PERSON was being held did not expect that it would be possible to terminate the ORG order after DATE that term .

The ORG order came up for review again in DATE . The public prosecutor sought a further DATE extension .

Having held a hearing on DATE , the GPE - West - Brabant Regional Court ( by this time the successor to ORG ) gave a decision extending the ORG order by DATE . Its reasoning included the following :

“ Is the ORG order limited in duration ?

First of all , ORG must ascertain whether or not the ORG order in the present case is limited in duration . Therefore , the question must be answered whether the ORG order was imposed in connection with a crime of violence within the meaning of Article CARDINAL § CARDINAL of LAW .

ORG will first determine the framework for review on the basis of which this question should be answered . In this respect , recent developments in case - law are of particular importance .

Article CARDINAL § CARDINAL of LAW provides that the total duration of a ORG order with confinement in a custodial clinic shall not exceed a period of DATE , unless the ORG order is imposed in connection with a crime that is directed against , or endangers the physical integrity of CARDINAL or more persons .

Article CARDINAL § CARDINAL of LAW provides that , if the confinement in a custodial clinic has been imposed in connection with a crime that is directed against , or endangers , the physical integrity of CARDINAL or more persons , the judgment shall state the reasons for so doing .

ORG , referring to the judgment of ORG ) of DATE [ PERSON the GPE ] , has held in its decision of DATE [ see below ] that it is not for the court ruling on the extension of the ORG order , in the event that the judgment or decision in which the imposition of the ORG order has been given does not contain the reasoning as referred to in LAW , to determine retrospectively , by interpretation of the judgment of the trial court , whether or not the ORG order was imposed in connection with an indictable offence that is directed against , or endangers , the physical integrity of CARDINAL or more persons , and accordingly whether or not the ORG order is limited in duration . ORG has furthermore considered that it is not a matter of interpretation of the judgment of the court which imposes the ORG order if , on the basis of the judicial finding of facts , the qualification and the reasons given for the imposition of the penalty or measure , it is self - evident that the crime in issue is such as referred to in LAW .

In its judgment of CARDINAL DATE , ORG held that the aforementioned judgment of ORG of GPE is partly incorrect . ORG considers , first and foremost , that it is the court which imposes the ORG order that decides whether or not this order is limited in duration . ORG furthermore considers that it will be relatively simple to establish whether the order has been imposed in connection with a crime of violence if the court which imposed the ORG order , in giving reasons for so doing , has stated that the measure was imposed in relation to a crime of violence . If such explicit reasoning is missing , this does not mean that the measure can not be extended , if this means that the ORG will last longer than DATE . What is important is whether the ORG order has been imposed for a crime of violence . Whether or not this is so can also be deduced from the other contents of the final judgment of the court that imposed the ORG order – considered in context if need DATE , such as the judicial findings of fact , evidence , qualification , reasoning of the rejection of defences put forward and reasons given for the sanctions imposed . If on that basis it is evident that the crime was one of violence , it can not be said in any event that the possibility of extension of the measure after DATE was not foreseeable for the person subject to the ORG order .

If explicit reasoning is absent and it is not evident from the judgment of the court that imposed the ORG order that it concerns a crime of violence , the court that decides on the request for extension of the ORG order will have to form an opinion about the question whether – having regard to all the facts and circumstances that were known at the relevant time – the crime can be regarded as such a crime of violence . In so doing the court that decides on the request for extension has to take into account all relevant circumstances ; in addition , information besides that mentioned in the final judgment can also be taken into account . In the case of a threat the court that decides on the request for extension can take into consideration whether the threat was preceded , accompanied or followed by non - verbal aggressive behaviour towards the threatened person , or was in any ( other ) way reinforced , and also whether it was plausible at the relevant time that the threat would be carried out . According to ORG , the point is that the finding of the court that decides on the request for extension that the ORG order was originally imposed for a crime of violence should be reasonably foreseeable and thus should not come as a surprise for the person subject to the ORG order .

Agreeing on this point with defense counsel , ORG is of the opinion that it is not self - evident from the judgment of ORG that the crime in issue was a crime of violence . ORG will interpret the judgment of the ‘ s - ORG on the basis of the relevant facts and circumstances . ORG deems the following of importance .

The ‘ s - Hertogenbosch Court of Appeal , in its special considerations regarding the evidence , held that on DATE in PERSON had smashed the windows of the house of Mr PERSON with a baseball bat . He had , given the parked car in front of the door , drawn the conclusion that PERSON was at home and wanted to make a statement . A reporting officer observed that the glass was scattered over a distance of QUANTITY . ORG has furthermore taken notice of the history between PERSON and Mr PERSON On DATE Mr PERSON reported attempted manslaughter and destruction . TIME a brick had been thrown through his bedroom window , which brick landed next to him on his bed . On DATE he furthermore reported destruction and threat , after Kuiters had shot through the windows of ORG car with a crossbow .

Furthermore , the ‘ s - ORG has found , inter alia , that [ Mr Kuiters ’s ] violent actions had been highly threatening for Mr PERSON and that for him there were good grounds to conclude that , if he did not yield to the desires of [ Mr Kuiters ] , he would run a serious risk of sustaining serious bodily injury .

ORG concludes from the foregoing that ORG was of the opinion that there was a justified fear that at some point Kuiters would direct his aggression directly against Mr PERSON and that the latter would run a risk of sustaining serious bodily injury . In view of that , and the circumstances cited by ORG , the history and the terms used , ORG is of the opinion that ORG meant to impose the ORG order in connection with an indictable offence directed against , or endangering , the physical integrity of a person as referred to in LAW . Having regard to the foregoing , in the view of ORG it can not be said that , in the light of the judgment of ORG , it was not reasonably foreseeable that the ORG order was imposed in connection with such a crime of violence . This means that the ORG order with compulsory treatment in the present case is not limited in duration . ”

Mr Kuiters appealed to ORG . Having held a hearing on DATE , ORG gave a decision on DATE endorsing ORG decision , including its reasoning , in its entirety .

As relevant to the case , LAW provides as follows :

Article PERSON

“ CARDINAL . The court may impose a ORG order on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if :

CARDINAL the offence he has committed is one which , according to its statutory definition , renders offenders liable to a term of imprisonment of DATE or more , ... and

CARDINAL the said measure is necessary in the interests of the safety of others or the general safety of persons or goods .

NORP In giving an order under paragraph CARDINAL , the court shall take account of the statements contained in the other opinions and reports made concerning the suspect ’s personality , and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences . ”

The offences of which the applicants were variously found guilty include , in each case , CARDINAL indictable offence carrying a maximum sentence of DATE or more .

Article CARDINALb

“ CARDINAL . The court may order that a person who is subject to a ORG order shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods . ... ”

Article CARDINAL

“ CARDINAL . A ORG order shall remain in force for DATE , counting from DATE on which the judgment imposing it has become final .

Except as provided in Article PERSON ... , the duration of the ORG order can be extended , on the application of the public prosecution service ( openbaar ministerie ) , for either DATE or DATE at a time , if the safety of others or the general safety of persons or goods requires such extension . A second extension is possible only when an order as mentioned in Article PERSON ... has been given . ”

Article CARDINALe

“ CARDINAL . The total duration of the ORG order shall not exceed a DATE period , unless the ORG order is imposed in connection with an indictable offence that is directed against , or endangers , the physical integrity of CARDINAL or more persons .

NORP If the total duration of the ORG order is not limited in time , the duration of the ORG order can be extended periodically , if the safety of others or the general safety of persons requires such extension . ”

As relevant to the cases , LAW provides as follows :

Article CARDINAL

“ CARDINAL . The judgment shall state the charges and the public prosecutor ’s sentence request ( vordering ) .

NORP The decisions referred to in GPE CARDINAL § CARDINAL [ preliminary issues ] and CARDINAL § § CARDINAL and CARDINAL [ substantive issues ] shall be reasoned . If the decision deviates from positions explicitly argued by the suspect or the public prosecutor , the judgment shall indicate , in particular , the reasons ( geeft ... in het bijzonder de redenen op ) for so doing .

If LAW [ the decision not to impose a sentence or non - punitive measure ] or LAW [ reduction of sentence in exchange for giving evidence against another suspect ] is applied , the judgment shall state the special reasons ( geeft .... in het bijzonder redenen op ) that have led to that decision .

The judgment shall state , in particular , the reasons ( geeft in het bijzonder de redenen op ) that have determined the sentence or led to the non - punitive measure .

In imposing a sentence or non - punitive measure involving deprivation of liberty , the judgment shall state , in particular , the reasons ( geeft ... in het bijzonder de redenen op ) which have led to the choice of this type of sentence or non - punitive measure . In addition , the judgment shall indicate , as far as possible , the circumstances taken into account in setting the length of the sentence .

If a ORG order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against , or endangering , the physical integrity of CARDINAL or more persons , the judgment shall so indicate , giving reasons ( geeft het vonnis dit onder opgave PERSON aan ) .

All on pain of nullity . ”

The following passages are excerpts from the drafting history of Article CARDINAL of LAW and LAW ) :

“ ... I [ i.e. the Deputy Minister of Justice ( Staatssecretaris van Justitie ) ] propose to let the court which imposes the ORG order with confinement in a custodial clinic decide whether that order is subject to a maximum or not . That court knows the case file well and is best placed to get an idea of the interaction between the act and the actor ( daad - dadercomplex ) . It will then be determined from the outset whether it is subject to a maximum or not . Moreover , it is desirable both from the perspective of treatment and from that of the legal position of the person subject to the order that it be foreseeable at the time when the ORG order is imposed whether the ORG order is subject to a maximum or not . The treatment plan can be drawn up accordingly . The person subject to the ORG order will then know , if the order is subject to a maximum , what its maximum duration will be .

The court which imposes the ORG order with confinement in a custodial clinic will have to decide , giving reasons , whether the crime in issue is one that is directed against , or endangers , the physical integrity of CARDINAL or more persons . ... In opting for this solution it will have to be taken as part of the deal that in a number of cases the question whether the ORG order is subject to a maximum or not will be the object of an appeal or an appeal on points of law . ” ( page CARDINAL )

and

“ The proposed amendment of LAW [ of LAW ] can be seen as a logical consequence ( pendant ) of the proposed amendment of LAW . The court which imposes the ORG order with confinement in a custodial clinic must indicate in its judgment , giving reasons , whether it considers that the crime in issue is one that is directed against , or endangers , the physical integrity of CARDINAL or more persons . It is thus clear from the start whether the ORG order is subject to a maximum or not . As a rule , it will be enough for the court to point to the nature of the indictable offence as found proven and qualified . The prescribed reasoning will therefore not normally be subject to such stringent requirements . However , in certain circumstances the court will have to give reasoning setting out the specific facts or circumstances . ” ( page CARDINAL )

“ The court which imposes the [ ORG order with confinement in a custodial clinic ] at the same time decides whether it shall be limited in time or not . The court to which it falls to consider whether the order should be extended or not is dispensed from making that choice . ” ( pages CARDINAL - CARDINAL )

and

“ The current maximisation arrangement [ i.e. the arrangement existing until the entry into force of the legislation here in issue ] differs from that proposed as regards the moment at which it is decided whether the duration of the ORG order shall be determined in advance or not . The decision on the question whether the ORG order is subject to a maximum will be taken , pursuant to the proposed LAW , when the order is imposed and is to be based on the trial court ’s view of the nature of the crime . In considering the request to extend the ORG order it is no longer an issue whether the crime belongs to the exceptions enumerated in the first paragraph of Article PERSON ; the court which imposed the order will already have determined that , giving reasons in accordance with the additional requirements set out in Article CARDINAL [ of LAW ] . The current arrangement allows the court [ which decides on the extension of the ORG order ] to express its views on the seriousness of the crime for which the order was imposed in its decision . ” ( page CARDINAL )

The Explanatory Memorandum gives a non - exhaustive enumeration of indictable offences for which the maximum DATE term is not intended to apply . Offences listed include , amongst others , rape ( LAW ) , indecent assault ( LAW ) ; committing lewd acts out of wedlock with a person below the age of sixteen ( LAW ) ; manslaughter ( LAW ) ; murder ( LAW ) ; causing grievous bodily harm ( LAW ) ; and robbery with violence ( LAW ) .

In a decision of DATE , PERSON , ORG , reversing its earlier case - law in response to the PERSON judgment of ORG , held that it was not for the court called upon to decide on the extension of a ORG measure ( on appeal ) to supplement the judgment of the trial court by interpretation and decide , retrospectively , whether or not a ORG order had originally been imposed in connection with a crime of violence .

However , it was not “ interpretation ” to find that in view of the conviction , the qualification and the reasoning on which the sentence and/or the ORG order was grounded , considered in context , it was self - evident to anyone that the crime in issue was CARDINAL of violence .

The case itself concerned a person convicted of threatening to kill someone with a knife .

The Procurator General ( procureur - generaal ) to ORG lodged an appeal on points of law “ in the interests of the law ” ( cassatie in het belang der wet ) against ORG decision of DATE .

ORG gave judgment on DATE ( LJN BYCARDINAL ) . As relevant to the case before the ORG , it held as follows :

“ CARDINAL . The points of law argue essentially that ORG erred in refusing the request to extend the ORG order or did so on inadequate grounds .

ORG notes that the [ Van der GPE judgment ] concerned a case in which the court which imposed the ORG order ( opleggingsrechter ) had not expressed a view on the question whether the indictable offence in issue had been one directed against , or endangering , the physical integrity of CARDINAL or more persons ( referred to hereafter , for the sake of brevity , as a ‘ crime of ORG ) , and in which the court which had initially decided on the request for extension of that measure ( verlengingsrechter ) had found that the crime in issue was not a crime of violence in that sense . It was only the court which was called upon on appeal to consider the extension of the ORG order which came to a different conclusion and found the criminal act in connection with which the measure had been imposed to be a crime of violence .

ORG understands this decision of ORG , in which the interest of legal certainty is stressed where it concerns deprivation of liberty , in the sense that the conditions which must be met for a deprivation of liberty to be considered ‘ lawful’/’régulière’ within the meaning of LAW must be clearly circumscribed and that the way in which they are applied must be reasonably foreseeable . This means , in cases such as the present , that the view taken by the court which imposes the ORG order concerning the question whether the ORG order is imposed in connection with a crime of violence is decisive for the question whether the measure is amenable to extension by the court which decides on extension of the measure , as provided for by Articles GPE and FAC of LAW . It is thus the court which imposes the ORG order which decides DATE in brief – whether the ORG order imposed by it is limited in duration or not .

It will , as a rule , be relatively simple to establish that decision if the court which imposed the ORG order , in giving reasons for so doing – preferably in the words of LAW , has stated that the measure was imposed in relation to a crime of violence , or not as the case may be . That is of particular importance if the crime in relation to which the ORG order was imposed can not without further explanation be characterised as a crime of violence – i.e. as an indictable offence that was directed against , or endangered , the physical integrity of CARDINAL or more persons DATE as in the case of threatening ( bedreiging , LAW of LAW ) , or stalking ( belaging , LAW ) , in relation to which the measure here in issue can be imposed pursuant to LAW § CARDINAL ( a ) of LAW .

The sole fact that the sentencing court in its reasoning has not stated in so many words that the ORG order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of DATE . The only condition set by LAW for the extension of the ORG order is that the measure be imposed in connection with a crime of violence . Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court DATE whether it be read in context or not – such as the conviction , the evidence relied on , the qualification , the reasoning of the rejection of any defences put forward and the reasoning of the sanction or sanctions imposed . If , on that basis , it is evident that the crime is one of violence , then at the very least it can not be said that the possibility of extension of the measure beyond DATE was not foreseeable for the person subject to the ORG order .

The opinion of ORG that , except in cases as referred to above , it is not for the court that decides on the extension of the measure to determine retroactively ‘ by interpretation of the judgment of the court which imposed the TBS order’ whether or not the ORG order was imposed in relation to a crime of violence is not , however , borne out by the said judgment of ORG and moreover can not be accepted as correct . There is no rule of law that prevents the court which decides on the extension of the ORG order from coming to the conclusion , based also on other information than that contained in the final judgment [ of the trial court ] – such as the proceedings of the hearing of the court which imposed the ORG order , as apparent from the official record made of that hearing DATE that the ORG order was imposed in relation to a crime of violence ; it can not , moreover , be ruled out that other documents available to the court which imposed the ORG order are conclusive on this point .

Consultation of these documents will be indicated especially if the final judgment does not contain sufficiently clear reasoning as referred to in LAW or otherwise does not give sufficient pointers ( aanknopingspunten ) to conclude that the fact for which the ORG order was imposed must be characterised ipso facto as a crime of violence , like the threat of lethal violence held proven in the instant case . In such a situation the court that decides on the extension of the ORG order will have to arrive at a conclusion as to whether – in view of all the facts and circumstances that were known at DATE the threat constituted such a crime of violence . In this connection , it is worth noting that DATE contrary to the point of departure that seems to have been chosen by ORG – the court which decides on the extension of the ORG order must take into consideration all relevant circumstances . In so doing it will be in a position to consider , among other things , whether the threat was preceded , accompanied , or followed by non - verbal aggressive behaviour against the person threatened or in some ( other ) way reinforced , and whether at the time it was likely that the threat might be carried out .

There is no rule of law that prevents the court which decides on the extension of the ORG order from considering the finding that the crime in issue was CARDINAL of violence implicit in the final judgment of the court which imposed the ORG order .

In this way , it can be avoided that in those cases in which the court which imposed the ORG order failed to provide adequate clarity , either as prescribed by LAW procedure or in some other way , as to whether the ORG order was limited in duration , this oversight ( verzuim ) by itself should prevent the measure from being extended , even if it is clear to all concerned that the ORG order was imposed for a crime of violence and it therefore merely concerns an oversight by the court which imposed the ORG order . What is decisive in cases such as the present is that the finding of the court which decides on the extension of the ORG order that the ORG order was at the time imposed in relation to an indictable offence that was directed against , or endangered , the physical integrity of CARDINAL or more persons should be reasonably foreseeable and therefore should not come as a surprise to the person on whom the order was imposed . ”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-f - Extradition)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE ( GPE ) .

On DATE , the applicant , who had been accused of arson by the NORP authorities , was taken into custody pending extradition by the GPE police on the basis of an arrest warrant issued by ORG on DATE under LAW DATE .

On DATE ORG of L’Aquila validated the applicant ’s arrest and ordered his detention .

On DATE ORG asked ORG to extend his detention .

At the hearing of DATE , the President of ORG , ruling under LAW ( see paragraph CARDINAL below ) , established the applicant ’s identity and asked if he gave his consent to his extradition . He did not consent .

NORP On DATE the Minister of ORG informed ORG that , on DATE , the NORP authorities had sent a request for extradition together with all the requisite supporting documents .

On DATE the public prosecutor ’s office asked ORG to grant the extradition request .

The hearing was scheduled for DATE . At the request of the applicant ’s representative , it was postponed until DATE .

Without any prior investigation ORG approved the extradition by a decision of DATE , deposited on DATE . It verified the conformity of the extradition request with ORG and compliance with the ne bis in idem and double criminality principles , and it ruled out the possibility that the proceedings had been brought for any discriminatory or political reasons .

On DATE the applicant appealed on points of law , arguing in particular that the request for his extradition had been sent by the NORP authorities after DATE time - limit provided for in LAW , which meant in his view that his detention had been unlawful . He further argued that the charges laid against him by the NORP authorities were not based on serious indications of guilt . He submitted that he should therefore be released .

In a judgment of CARDINAL DATE , deposited in the registry on DATE , ORG dismissed the appeal with CARDINAL page of reasoning , in particular because it found that the extradition request had been received within the time - limit provided for in LAW and that it did not have jurisdiction to examine whether serious indications of guilt had been adduced .

In the meantime , on CARDINAL occasions DATE , the applicant had applied to ORG , unsuccessfully , to obtain his release . In its last decision of DATE , adopted in private in compliance with the adversarial principle , and without any prior investigation , ORG found that there was no reason to depart from the CARDINAL previous rejection decisions , having regard to the on - going risk that the applicant might abscond , even though the authorities had taken away his passport , and to the ORG ’s obligation to comply with its international commitments .

On DATE the Minister of ORG signed the extradition order .

On DATE the applicant was extradited to GPE .


CASE OF HUTCHINSON v. THE UNITED KINGDOM

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)

András Sajó;Angelika Nußberger;Branko Lubarda;Erik Møse;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Yonko Grozev;Ksenija Turković

The applicant was born in DATE and is detained in Her ORG .

In DATE , the applicant broke into a family home , where he stabbed to death a man , his wife and their adult son . He then repeatedly raped their MONEY daughter , having first dragged her past her father ’s body . He was arrested DATE and charged with these offences . At trial he pleaded not guilty , denying the killings and claiming that the sexual intercourse had been consensual . On DATE , he was convicted of CARDINAL counts of murder , rape , and aggravated burglary .

The trial judge sentenced the applicant to a term of life imprisonment and , in accordance with the rules on sentencing then in force , recommended a minimum period ( tariff ) of DATE to the Secretary of ORG for ORG . When asked to give his opinion again on DATE , the judge wrote that “ for the requirements of retribution and general deterrence this is genuinely a life case ” . On DATE the Lord Chief Justice recommended that the period should be set at a whole life term stating that “ I do not think that this man should ever be released , quite apart from the risk which would be involved ” . On DATE , the Secretary of ORG informed the applicant that he had decided to impose a whole life term .

Following the entry into force of LAW DATE , the applicant applied to ORG for a review of his sentence , arguing that he should receive the CARDINAL-year tariff mentioned at his trial . On DATE , the ORG gave its judgment . It found that there was no reason to depart from the Secretary of ORG ’s decision . The seriousness of the offences alone was such that the starting point was a whole life order . A number of very serious aggravating factors were present , and no mitigating factors . On DATE , ORG dismissed the applicant ’s appeal .


Violation of Article 2 - Right to life (Article 2 - Expulsion;Article 2-1 - Death penalty) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

According to the applicant , he is a NORP national , ORG , born in DATE . According to the Government , the applicant is a NORP national , GPE , born in DATE . He lives in Elista .

On DATE the applicant was arrested in GPE on suspicion of murdering a NORP policeman in DATE . He was in possession of a NORP national passport in the name of ORG , born in DATE in the Primorskiy region of GPE .

On DATE ORG of GPE ordered the applicant ’s detention until DATE , pending receipt of an official extradition request from the NORP authorities . ORG noted that the applicant had been identified by means of photographic comparisons as GPE , a NORP national born in GPE in DATE . His name was on ORG ’s list of wanted persons . The NORP authorities had issued an arrest warrant in his name dated DATE from which it was apparent that he was suspected of a criminal offence under LAW . That offence was punishable by the death penalty , life imprisonment or CARDINAL GPE imprisonment , and the limitation period was DATE . The limitation period in respect of a comparable criminal offence in GPE was DATE , but this was suspended if the suspect had fled from justice . The court further noted that a NORP national passport in the name of ORG had apparently been unlawfully obtained by the applicant after he submitted false information to the competent NORP authorities . It was clear that he was not a NORP national but a NORP national and could be therefore extradited to GPE .

The NORP authorities failed to submit an official extradition request within the DATE time - limit established by LAW of DATE .

On DATE ORG ordered the applicant ’s release . At the same time he noted that it was necessary to start administrative removal proceedings against the applicant on the grounds that his residence in GPE was unlawful .

Despite the release order , the applicant remained in detention .

On DATE the GPE transport police drafted a report on the commission by the applicant of an offence under LAW ( unlawful residence in GPE of a foreign national , see paragraph CARDINAL below ) .

On DATE , DATE , ORG found the applicant guilty of an administrative offence under LAW and ordered his administrative removal to GPE . The court took note of a letter dated DATE by ORG which showed that it was impossible to establish whether or not the applicant was a NORP national . He had received a NORP national passport in the name of ORG in DATE after declaring that he had lost his previous passport , which had been issued in DATE . However , according to ORG , the allegedly lost passport never existed . The court further relied on the extradition casefile , from which it was apparent that the applicant was in fact a NORP national , GPE , rather than a NORP national PERSON Being a NORP national , he was residing in GPE unlawfully without a valid visa or residence permit . The court noted that the applicant was sought by the NORP authorities on suspicion of murder . He was therefore dangerous and it was necessary to sentence him to administrative removal from GPE . Lastly , the court observed that , although the applicant had a NORP wife , he did not have any children who were minors living in GPE . In such circumstances , and taking into account his dangerousness , the public interest outweighed his personal interest in maintaining his family life in GPE .

The applicant appealed . He submitted , in particular , that his passport as a NORP national had never been cancelled and was therefore still valid . He further argued that his administrative removal was extradition in disguise . The DATE limitation period established by NORP criminal law had expired and he could no longer be lawfully extradited to GPE . If he was administratively removed to GPE he would be immediately arrested and very probably subjected to the death penalty . His removal to GPE would therefore be in breach of ORG and CARDINAL of the Convention .

On DATE ORG found that the applicant was not a NORP national . He had obtained the NORP national passport in the name of ORG unlawfully .

On DATE GPE quashed the judgment of DATE , finding that the administrative offence report of DATE had been procedurally defective , and remitted the case to ORG for a new examination . These proceedings were later discontinued .

On DATE the LOC police drafted a new report on the commission by the applicant of an offence under Article CARDINAL of LAW .

On DATE ORG of GPE discontinued the administrative offence proceedings against the applicant , finding that the administrative offence report of CARDINAL DATE had been procedurally defective .

On DATE CARDINAL the applicant was released . His passport , seized upon arrest , was not returned to him . He was served with a decision by GPE and ORG , dated CARDINAL DATE , declaring the undesirability of his presence in GPE ( the “ exclusion order ” ) which read in its entirety as follows :

“ On DATE ORG of GPE decided that your presence ( residence ) in GPE was undesirable in accordance with section QUANTITY of [ the Entry and Exit Procedures Act ] . You must therefore leave GPE before DATE .

If you do not leave before the stated deadline , you will be deported .

In accordance with section CARDINAL of [ the Entry and Exit Procedures Act ] , if a decision declaring the undesirability of an individual ’s presence ( residence ) in GPE has been issued , that individual may no longer enter GPE . ”

The applicant challenged the exclusion order before ORG . He also complained that his passport had been unlawfully seized . He submitted that he could not cross the NORP border without a passport and could not therefore comply with the exclusion order by leaving GPE for another country . In these circumstances , the exclusion order would automatically entail his deportation to GPE . If he was deported to GPE he would be immediately arrested and very probably subjected to the death penalty . His deportation would therefore be in breach of Articles CARDINAL and CARDINAL of the Convention .

On DATE ORG found that the exclusion order had been lawful . It had been issued by a competent authority in accordance with the procedure prescribed by law and had been based on sufficient reasons . Given that the applicant was sought by the NORP authorities on suspicion of murder , had been fined several times in GPE for driving offences and had lived in GPE unlawfully with an unlawfully issued passport , there were sufficient reasons to find that he represented a real threat to public order and security . The court further noted that the applicant did not dispute the above facts . The thrust of his complaint was that his deportation to GPE would expose him to a risk of being subjected to the death penalty that amounted to inhuman treatment . Those arguments could not , however , serve as grounds for annulling the lawfully adopted exclusion order . The court also held that the applicant ’s argument that the exclusion order would automatically entail his deportation to GPE was unconvincing . Firstly , deportation was not automatic and required a separate administrative decision that could be challenged before a court . Secondly , the applicant had the possibility of avoiding deportation to GPE by leaving GPE for another country .

The court further held that the seizure of the applicant ’s passport in the name of ORG had been lawful . By the decision of DATE ORG had found that that passport had been issued unlawfully and that the applicant was not a NORP national . Those were lawful grounds for seizing a passport . The procedure prescribed by law had been respected .

The applicant appealed . He submitted , in particular , that the domestic law did not require a separate administrative decision on deportation . The exclusion order alone constituted a sufficient legal basis for deportation and his failure to leave GPE before the stated deadline could therefore entail automatic deportation to GPE . He did not have any remedies with suspensive effect in such a situation . He further reiterated his argument that he could not leave GPE for another country because his passport had been seized by the authorities and he did not have any other identity documents . Lastly , he argued that his deportation to GPE would amount to a breach of not only ORG and CARDINAL of the ORG , but also of LAW , because he was married to a NORP national .

On DATE GPE upheld the judgment of DATE on appeal , finding that it had been lawful , well - reasoned and justified . It added that a genetic test had established that the applicant ’s genetic profile matched the genetic profiles of GPE ’s parents . There was therefore no doubt that the applicant ’s real name was PERSON It further agreed with ORG that the applicant could avoid deportation to GPE by leaving GPE for another country using his NORP passport .

From DATE to CARDINAL DATE the applicant was detained in a detention centre for aliens ( Центр для содержания иностранных граждан ) located in GPE in GPE .

DATE the applicant was held in a punishment cell . From DATE he was handcuffed . The cell had no windows and was empty . It had no bunk or chair and the applicant had to stand or remain in the squatting position all the time . There was no lavatory bowl or running water . His requests to allow him to use the toilet were refused and he had to relieve himself in a plastic bottle . He was given food only once during that period but was anyway unable to eat it because of his handcuffs .

On DATE the applicant was transferred to solitary confinement cell no . CARDINAL on the fourth floor where he remained until DATE . The cell measured QUANTITY m and was equipped with a bed , a bedside cabinet , a table , a sink and a lavatory bowl that stank . The window did not open so the applicant could not air his cell . The window was also covered with paint which blocked the daylight . The artificial lights were dim . The cell was damp and cold and the applicant had to sleep with his coat on . The cell was swarming with mice .

From DATE to CARDINAL DATE the applicant was held in solitary confinement cell no . CARDINAL . The conditions of detention in that cell were similar to those in cell no . CARDINAL .

Both cells ORG . CARDINAL and CARDINAL were locked and the applicant remained alone all the time . Neither the other inmates nor the warders ever entered the cells . The cells were not equipped with a radio or TV set . The applicant was not given any books or newspapers . He was not allowed to use his mobile telephone . As he was in total isolation , he counted DATE by drawing sticks on paper .

It was not until DATE that he was allowed to take walks in the yard . In particular , he was allowed to go out in the yard on CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and DATE and CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE . The walks lasted TIME . The exercise yard measured QUANTITY and was enclosed by a QUANTITY - high fence . The applicant was always alone in the yard .

It was very difficult to get permission for family visits . He was allowed CARDINAL visits from his wife , each time for TIME and in the presence of warders .

The detention centre had no canteen and the food was brought from other detention facilities . It was always cold and did not contain any vegetable , fruit , meat or dairy products . The warders gave him food through a small window in the door . No drinking water was provided and the applicant had to drink tap water which was of poor quality .

During his DATE stay in the centre the applicant was allowed to take a shower CARDINAL times . The water in the shower was cold . There was no laundry service and the applicant had to wash his clothes himself .

According to the ORG , the applicant was held in cell no . CARDINAL which measured QUANTITY m. The cell had windows , artificial light and central heating . It was equipped with a lavatory bowl , running hot and cold water , a bed , a bedside cabinet and a dining table .

Inmates were provided with hot meals CARDINAL times per day . They could walk in the exercise yard every morning in accordance with applicable regulations .

The detention centre for aliens had a library which the applicant was allowed to use on request .

The detention centre for aliens had no punishment cells and its warders never used handcuffs .

On DATE the applicant was transferred to an administrative detention cell at LOC police station no . CARDINAL where he remained until DATE .

The applicant was placed in a cell at TIME on DATE . However , he remained handcuffed until TIME of the same day .

The cell measured QUANTITY m. It had concrete walls and ceiling and no windows . There was an opening in the wall measuring QUANTITY by QUANTITY blocked by a metal sheet with ventilation holes .

The cell was equipped with a narrow wooden bench . There was no table , chair , sink or lavatory bowl . The applicant was not given any food or water . He was not allowed to go to the toilet until TIME on DATE before a court hearing . He remained handcuffed from TIME on DATE during the entire court hearing and until his return to the police station .

The applicant ’s representatives were not allowed to visit him .

The applicant was released at TIME on DATE .

The Government submitted the floor plan of police station no . CARDINAL . It is apparent from the plan that there were CARDINAL administrative detention cells , CARDINAL of them measuring QUANTITY . m and CARDINAL measuring QUANTITY m. Each cell was equipped with CARDINAL benches . There was no other furniture and no lavatory facilities in the cell .

The Government confirmed that the windows were blocked by metal screens with holes in them .

According to the police ORG statements , the applicant was given food but refused to eat it . He preferred to eat food brought by his wife . He was allowed to go to the police station toilet on request . The applicant was not handcuffed .


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

Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano

The applicant was born in DATE and lives in GPE . She is unemployed and receives state welfare benefit .

On DATE GPE of ORG decided to allocate a flat to the applicant in a building in GPE , which was to be constructed by ORG ( hereafter - the Factory ) .

It appears that the foundation of the future building was laid but , as GPE collapsed , the construction of the building was stopped .

On an unspecified date the ORG went bankrupt and a liquidation commission ( hereafter - the commission ) was set up .

It appears that on CARDINAL DATE the applicant lodged a request with the commission seeking to be allocated a flat or to receive money equivalent to its value .

On DATE the head of the commission rejected the applicant ’s request on the ground that the building , of which CARDINAL flat was to be allocated to the applicant , had not been constructed due to the lack of financial means . He stated that the ORG had carried out construction activities with direct financial support from ORG and that after GPE collapsed it had to stop construction projects for lack of financial means .

On DATE the applicant , who was not represented by a lawyer , lodged a claim with the ORG and ORG of GPE seeking to oblige the ORG to allocate a flat to her or provide her compensation equivalent to its value .

On DATE ORG dismissed the applicant ’s claim on the same grounds as those relied on by the head of the commission . It also found that the ORG had been declared bankrupt and had no legal successor as such .

On DATE the applicant , still unrepresented , lodged an appeal against this judgment .

On DATE ORG dismissed the applicant ’s appeal and upheld the judgment of ORG .

The applicant did not lodge an appeal on points of law with ORG . She alleges that she was unable to do so as she could not afford to hire an advocate authorised to act before that court , whose services were costly . She further claims that she applied to many lawyers with a request to provide her with free legal services as regards her application to ORG . However , her requests were turned down on the ground that the issue concerned an apartment and legal aid was not available for this type of a dispute .


CASE OF VARDANYAN AND NANUSHYAN v. ARMENIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing;Equality of arms;Impartial tribunal);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary damage - reserved (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - reserved (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants are a family who lived in GPE in a house on a plot of land measuring QUANTITY m. in total and situated at CARDINAL FAC . The second and third applicants are the first applicant ’s wife and son .

On an unspecified date the first applicant lodged a request with the NORP ORG of GPE seeking to invalidate an agreement concluded in DATE between his grandparents and a state agency according to which their house , comprising the house itself and the plot of land , was transferred to that state agency . He thus sought recognition of his ownership rights for the above - mentioned house and the plot of land .

On DATE ORG granted the claim by annulling the above agreement and recognising the applicant as the owner of the house and the plot of land . No appeal was made against this judgment and it became final .

It appears that on DATE an ownership certificate for the house and the plot of land was issued to the applicant by virtue of the judgment of CARDINAL DATE .

Upon application by the First Deputy to the President of ORG , on DATE ORG of ORG quashed the judgment of DATE .

On DATE the first applicant lodged a claim with ORG of ORG seeking recognition of his inheritance and ownership rights in respect of the house situated at CARDINAL FAC . In the concluding part of the claim , the first applicant mentioned that he sought recognition of his inheritance rights both in respect of the house and the plot of land .

On DATE ORG of ORG of GPE examined the first applicant ’s claim and decided to dismiss it .

On DATE the Presidium of ORG quashed the judgment of DATE and decided to grant the claim .

On DATE the Plenary Session of ORG ( the highest judicial instance established by LAW of DATE and functioning since DATE ) examined the decision of CARDINAL DATE upon a supervisory appeal lodged by ORG and decided to leave it in force .

It appears that the first applicant was given a new ownership certificate in respect of the house and the plot of land which mentioned the decision of DATE as a ground for the ownership right .

On an unspecified date the first applicant lodged a claim against third persons who owned CARDINAL small LOC situated on his plot of land .

On DATE the GPE and ORG of GPE granted the first applicant ’s claim . In particular , it found that the applicant ’s ownership right to the plot of land situated at CARDINAL FAC had been restored by the decision of of the Presidium of ORG of DATE , therefore any LOC situated on it had to be recognised as being under his ownership as well .

On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the real estate situated within the administrative boundaries of LOC of GPE to be taken for ORG needs , having a total area of CARDINAL sq . m. FAC was listed as one of the streets falling within such expropriation zones . A special body , FAC ( hereafter , “ the NORP ” ) was set up to manage the implementation of the construction projects .

On DATE the Government decided to contract out the construction of CARDINAL of the sections of FAC to a private company , ORG The latter was authorised to negotiate directly with the owners regarding the property subject to expropriation and , should such negotiations fail , to institute court proceedings on behalf of the ORG seeking forcible expropriation of such property . It appears that on DATE ORG reached an agreement with ORG , a valuation agency , for the latter to carry out a valuation of the immovable property situated at CARDINAL FAC .

On DATE ORG carried out a valuation , according to which the market value of the applicants’ house was CARDINAL NORP Drams ( ORG ) , while that of the plot of land was ORG CARDINAL .

On DATE the ORG held a meeting of its governing board , which included representatives of the Government , ORG ( the ORG ) , ORG , ORG and ORG , at which it was decided to issue a new type of ownership certificate to the first applicant for the house and the plot of land situated at CARDINAL FAC .

On DATE a new ownership certificate for the house and the plot of land was issued to the first applicant . As a ground for registration of the ownership right , it mentioned the judgment of the NORP ORG of GPE of DATE , the decision of the ORG of ORG of DATE , the decision of the Plenary Session of ORG of DATE and the judgment of the ORG and ORG of GPE of DATE .

On DATE ORG lodged a claim on behalf of the Mayor of GPE against the ORG , seeking to invalidate the registration of the first applicant ’s ownership of the plot of land , claiming that it had never been recognised by any judicial act . It also requested that the first applicant be involved in the proceedings , as a third person whose rights were affected by the claim .

On DATE the GPE and ORG of GPE granted the claim , finding that the first applicant ’s ownership of the plot of land had never been recognised by a judicial act .

On DATE the first applicant lodged an appeal against this judgment .

On DATE ORG dismissed the claim as unsubstantiated . In particular , it found that the first applicant ’s right to the plot of land had been recognised by the decision of the Presidium of ORG of DATE and the judgment of the ORG and ORG of DATE .

On an unspecified date , ORG lodged an appeal on points of law against this judgment .

On an unspecified date , the rapporteur , Judge PERSON of ORG , presented to the first applicant an agreement of a friendly settlement with the ORG , PERSON and the ORG . According to the proposal , the first applicant was to receive ORG CARDINAL , a flat measuring CARDINAL sq . m. and office premises measuring CARDINAL sq . m. in the centre of GPE in exchange for his revocation of ownership of the house and the plot of land .

On DATE the applicant sent a reply to the judge informing her of his refusal to sign a friendly settlement .

On DATE ORG held a hearing of the appeal with the participation of the parties . Having heard that the first applicant had refused to sign a friendly settlement with the Government , the Chairman of ORG , Judge PERSON , who ex officio presided over the examination of the appeal , stated :

“ Each party should come to a solution through compromise ... If we continue dragging out this dispute , we will celebrate its CARDINAL anniversary ... Name the day and TIME when it is convenient for you to come and express all your ideas in the presence of the parties before Judge H ... but try to have an efficient discussion before Judge PERSON ... you have a lot of time until [ then ] . Have a meeting and a discussion , and try to find common points in the friendly settlement so that your discussion is efficient . ”

With this , Judge PERSON closed the hearing .

On DATE ORG held another hearing of the appeal . On learning that the first applicant still refused to sign a friendly settlement , Judge PERSON stated :

“ You have many times participated in the ORG hearings and must have noticed that the ORG always attaches importance to the fact of which party has refused to sign a reasonable friendly settlement . So this is the last time that we , the ORG , give you an opportunity until the next hearing ... to discuss once more [ the friendly settlement ] issues and submit your reply to ... [ Judge ] H. ”

It appears that the first applicant persisted in his reluctance to sign a friendly settlement .

On DATE ORG of ORG , composed of Judge PERSON , president , and Judges PERSON , PERSON and PERSON , quashed the judgment of CARDINAL DATE and remitted the case for a fresh examination . The relevant parts of this decision read as follows :

“ ... It follows from the examination of [ the relevant court decisions ] that no ownership right of [ the first applicant ] had ever been recognised in respect of any plot of land , therefore there are no legal grounds for the registration of [ the first applicant ’s ] ownership to the land .

In these circumstances , the arguments with regard to the violations of the substantive and procedural law raised in the appeal on points of law are substantiated since the above - mentioned court decisions have not recognised [ the first applicant ’s ] ownership right to any plot of land , therefore there are no legal grounds for the registration of [ the first applicant ’s ] title . Moreover , [ the first applicant ’s ] title had been registered in respect of ORG - owned land without any legal basis . ”

On DATE ORG examined the claim anew and granted it , finding that the first applicant ’s ownership right to the plot of land had not been recognised . In particular , it held :

“ ... it follows from the examination of [ the relevant court decisions ] that no ownership right of [ the first applicant ] had ever been recognised in respect of any plot of land ... Therefore , [ the first applicant ’s ] ownership right in respect of the NORP plot of land was registered without any legal ground . ”

On DATE the first applicant lodged an appeal on points of law against this judgment arguing , inter alia , that ORG had not been independent and impartial since it had been bound by the findings of ORG expressed in the decision of DATE .

On DATE ORG declared the appeal inadmissible for lack of merit .

On DATE ORG informed the first applicant that the house he owned was situated within an alienation zone . It also informed him that his house had been valued by a licensed valuation organisation at ORG CARDINAL and offered him , as the owner , this sum as compensation for alienation . An additional sum would be paid to him as a financial incentive in accordance with Government Decree no . CARDINAL-N of CARDINAL DATE , if he agreed to sign an agreement and to hand over the property within DATE .

It appears that the first applicant did not accept the offer .

On DATE the Yerevan ORG instituted proceedings against the first applicant , seeking to terminate his ownership of the house by paying him compensation and to have him evicted . ORG also joined these proceedings as a third party .

On DATE ORG declared , inter alia , Government Decree no . PERSON DATE and LAW ( the ORG ) to be unconstitutional , but decided that the impugned legal provisions had to remain effective until a law establishing a legal regime for expropriation was adopted but that , in any event , the latest date on which they would lose their legal force was DATE .

On DATE the GPE and ORG of GPE examined the claim in the presence of the first applicant and a representative of ORG . ORG decided to grant the claim , awarding the first applicant QUANTITY and ordering his eviction . ORG based its findings on Articles DATE and CARDINAL of LAW .

On DATE the first applicant lodged an appeal , which was scheduled to be examined by ORG on DATE .

During TIME the first applicant felt unwell and was taken by ambulance to hospital , where he was diagnosed with impaired cardiac function .

On DATE , before the beginning of the hearing , ORG received a written request lodged by the first applicant seeking adjournment of the hearing because of his health problems . It appears that a hospital certificate stating that he was in hospital was attached to the request .

On DATE ORG held a hearing in the absence of the first applicant and his representative but in the presence of representatives of ORG and ORG , who made their submissions in relation to the first applicant ’s appeal , asking that it be rejected . As regards the first applicant ’s request to reschedule the hearing , according to the record of the hearing , ORG refused to adjourn it on the ground that the first applicant had a representative who had participated in the proceedings before ORG . By the judgment adopted on DATE ORG upheld the judgment of DATE confirming the amount awarded by ORG . The judgment stated that the first applicant had failed to appear despite having been duly summoned to the hearing .

On DATE the first applicant , having undergone medical treatment , was discharged from the hospital .

On DATE the first applicant lodged an appeal on points of law against the judgment of DATE .

On DATE ORG declared the first applicant ’s appeal inadmissible for lack of merit .

The judgment of ORG of DATE entered into force at the time of its delivery and was immediately enforceable .

In DATE the first applicant sought to terminate the enforcement proceedings in respect of the judgment of DATE with reliance on ORG Decision of DATE , which had found Governmental Decree no . PERSON and LAW of the ORG incompatible with the LAW .

On DATE ORG enforced the judgment by demolishing the house .

On DATE ORG dismissed the first applicant ’s application , finding that on DATE the judgment had been enforced and the enforcement proceedings had been terminated .

On DATE the second and third applicants lodged an appeal with ORG against the judgment of ORG of DATE alleging that they had learned of the house expropriation proceedings against the first applicant only on DATE . In the appeal , the second and third applicants argued that they enjoyed the right of use of accommodation in respect of the first applicant ’s house , therefore the expropriation proceedings also affected their proprietary rights . They thus claimed that the authorities had failed to make them parties to these proceedings and that the alleged deprivation of their property was not lawful and in the public interest .

On DATE ORG declared the appeal of CARDINAL DATE inadmissible for lack of merit finding , inter alia , that the second and third applicants’ rights were not affected as the first applicant was the sole owner of the house in question .


CASE OF CHRISTIAN BAPTIST CHURCH IN WROCŁAW v. POLAND

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione materiae;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant is a legal entity , a local community of ORG in GPE operating on the basis of LAW DATE on ORG and ORG ( ustawa o stosunku PERSON do PERSON DATE hereinafter “ the DATE LAW ) with its seat in ORG .

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

The case concerns a property with a QUANTITY building and another building dedicated to sacral purposes in ORG . Before World War II the property was used by the ORG belonging to the Bund Evangelisch - Freikirchlicher Gemeinden in GPE operating on the territory of ORG . The property number was CARDINAL . It measured CARDINAL ha .

On DATE the ORG Governor ( ORG ) decided that the property in question should become subject to the applicant church ’s management ( przejęcie w zarząd ) on the basis of section CARDINAL ) of the DATE Decree on abandoned property ( dekret o majątkach opuszczonych i poniemieckich – hereinafter “ the DATE Decree ” ) .

In DATE the applicant church lodged a request to be registered in the land and mortgage register as the owner of the property and the request was granted . The property was registered under the number CARDINAL .

On DATE the Minister of the Economy announced a new interpretation of section CARDINAL ( CARDINAL ) of the DATE Decree .

On DATE ORG for ORG ( PERSON ) decided that all kinds of property which were subject to the church ’s management were to pass into the ownership of the ORG and ordered that the applicant church transfer the property in question to the ORG . The order did not concern the part of the property which was dedicated exclusively to sacral purposes .

On DATE a new land - register entry DATE was opened for the property no . CARDINAL . The land - register entry CARDINAL was however not closed .

In DATE the property was registered under the land - register number DATE was given a new plot number CARDINAL and its area was recalculated . The new measurement was CARDINAL ha . It appears that the plot number CARDINAL constituted only a part of the previous property number CARDINAL and comprised only the building dedicated to sacral purposes .

The remaining part of the original property number CARDINAL , which comprised the CARDINAL - storey building , was given new plot numbers CARDINAL and CARDINAL . It measured CARDINAL ha and a new land - register entry DATE was opened for it . In DATE the ORG was registered as the owner of this property and , after the reform of the local governments of DATE , the property was transferred to GPE .

The present application concerns the right to the property referred to above in paragraph CARDINAL .

On DATE the applicant church requested that the ORG Governor issue a decision confirming the applicant church ’s ownership of the property in question . It relied on the newly enacted DATE Act ( see paragraphs CARDINAL below ) .

On DATE the ORG Governor refused to issue a decision which would confirm that the property in question belonged to the applicant church . The Governor found that the applicant church had failed to satisfy a requirement laid down in section CARDINAL of LAW , specifically that it had not possessed the property in question on DATE of entry into force of the LAW relied upon . The Governor further held that :

“ ... , section CARDINAL of the LAW likewise can not be applied because the property in question is located on territory which was not part of GPE DATE . The fact that the property was owned by an organisational unit of ORG operating in ORG does not constitute a basis to claim return of ownership because its ownership was transferred to the ORG under the [ CARDINAL Decree ] . ”

On DATE the applicant church appealed against this decision to the Minister of ORG .

On DATE the applicant church sent a letter to the Minister , specifying that the time - limits laid down in LAW had been exceeded and requested that the Minister issue a decision .

On DATE the Minister replied that the length of the proceedings was attributable to amendments of the CARDINAL Act and informed the applicant church that the relevant decision would be issued by DATE .

NORP This time - limit was not respected and therefore , on DATE , the applicant church lodged with ORG a complaint in respect of the alleged inactivity of the administrative authority .

On DATE , before examination of the applicant church ’s complaint , the Minister of ORG issued a decision , annulling the challenged decision and ordering the return of the case to the Governor . The Minister ordered that , when re - examining the case , the Governor should take into account the amended section CARDINAL of the CARDINAL Act .

In view of the fact that the Minister had issued a decision , on DATE the applicant church withdrew the complaint of CARDINAL DATE concerning the inactivity of the administrative authority .

NORP After remittal of the case , on DATE , the Governor of ORG ( Wojewoda Dolnośląski ) asked ORG whether there was any property available which could be granted to the applicant church in return for the property in question . It appears that the Governor ’s letter was left without reply .

On DATE the Governor requested from the Minister of ORG an official interpretation of the amended section CARDINAL of the CARDINAL LAW “ in view of the many doubts as regards the proper interpretation of this provision ” .

On DATE the Minister replied that , since the administrative authorities were bound by provisions of law binding on DATE of decision , it was irrelevant that the applicant church ’s original request had been lodged when section CARDINAL of the CARDINAL Act had had different wording .

On DATE the applicant church asked the Governor to issue a decision in its case , pointing out that the time - limits laid down in LAW had been exceeded .

On DATE the applicant church lodged a complaint ( zażalenie ) with the Minister of ORG that the Governor had exceeded the statutory time - limits and had failed to issue a decision on the merits or to justify the delay in the proceedings .

On DATE the applicant church lodged a complaint with ORG about the alleged inactivity of the Governor .

On DATE the Minister of ORG found the applicant church ’s complaint of DATE well founded and ordered the Governor to issue a decision on the merits before DATE .

On DATE the Governor stayed the proceedings .

On DATE the applicant church appealed against the decision to stay the proceedings .

On DATE the Minister of ORG allowed the appeal , finding that the proceedings should not have been stayed , annulled the challenged decision and returned the case to the Governor .

On DATE ORG examined the applicant church ’s complaint against the inactivity of the administrative authority and ordered the Governor of LOC to issue a decision on the merits within the time - limit of DATE .

On DATE the Governor ’s office gave a decision and refused to return the property in question to the applicant church . It found that the applicant church , although registered as owner under the land - register number CARDINAL and treated in the past by the administrative authorities as owner , had never in fact owned the property , which had only been left under the applicant church ’s administration ( oddane w zarząd ) .

On DATE the applicant church appealed .

On DATE the Minister of ORG annulled the challenged decision and returned the case for re - examination to the Governor . The Minister found , among other things , that the Governor had had no right to question the validity of the entry in the land register .

On DATE the applicant church complained to the Governor about the delay in the proceedings .

On DATE the Governor ’s office gave a procedural decision in which it held that owing to the particularly complicated nature of the case , the decision on the merits could not be issued within the statutory time - limits and set a new deadline for decision of DATE .

On DATE the Governor of LOC gave a decision on the merits and refused to return to the applicant church the property in question . The Governor relied on the amended CARDINAL Act and found that the applicant church had failed to satisfy the requirements laid down in section CARDINAL of the Act , namely that it could not be a legal successor of the ORG which had not operated on the territory of GPE DATE .

On DATE the applicant church appealed .

On DATE the Minister of ORG upheld the challenged decision .

On DATE the applicant church lodged a complaint with ORG .

On DATE ORG dismissed the applicant church ’s complaint .

On DATE the applicant church lodged a complaint against ORG judgment with ORG .

On CARDINAL DATE ORG dismissed the applicant church ’s complaint . The judgment was served on the applicant church ’s lawyer on DATE .