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

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev

After the regaining of independence , in DATE property reform legislation came into force in GPE and provided that former owners or their heirs could reclaim property nationalised in DATE .

The second applicant and CARDINAL other individuals were the heirs of GPE In DATE they asked ORG to recognise their title to CARDINAL ha of forest in GPE ( hereinafter “ the contested property ” ) which had allegedly belonged to GPE and was nationalised in DATE . They also asked the court to recognise their right to receive a plot of land of the same value in GPE , as it had not been possible to establish the precise boundaries of the inherited land .

On DATE ORG ruled in favour of the claimants . It recognised that there was no question over whether the claimants were the heirs of the late GPE , as that had been established by a court order in DATE . Referring to documents received from ORG and ORG ( ORG dienests ) , it also established that FAC had purchased CARDINAL ha of forest in GPE . Referring to section CARDINAL of the Law on Land Reform in the Cities of the Republic of Latvia ( ORG zemes reformu Latvijas Republikas pilsētās ) , which provided that any requests after DATE for the restoration of property rights should be decided by a court , ORG recognised that the second applicant owned a CARDINAL share of the forest in GPE and that the other CARDINAL claimants owned a sixth each . As there was no evidence of what the precise boundaries of the forest were , the court recognised the claimants’ right to receive a plot of land of the same value elsewhere .

ORG was a defendant in the above proceedings and a representative of ORG contested the claim , arguing that in DATE the contested property had belonged to several individuals as undivided property , and the archive documents did not show what part of that property each claimant could be entitled to .

The judgment was not appealed against and became final on DATE . In DATE , at the PERSON request , ORG adopted an additional decision specifying that the contested property had historically been part of the PERSON estate forest .

After adoption of the above judgment , ORG informed the claimants , ORG and ORG several times of problems in enforcement of the judgment . ORG maintained that the archive material , which had been obtained after the above judgment had been adopted , did not give information as to the location of the contested property . On those grounds , in DATE ORG asked ORG to lodge an application for supervisory review ( protests ) asking for the judgment of DATE to be quashed .

In DATE ORG dismissed the request , arguing that reassessment of evidence could not serve as grounds for triggering supervisory review proceedings .

On several occasions the second applicant complained to ORG and ORG about delays in the enforcement of the judgment .

In order to comply with the judgment , on DATE ORG adopted decisions allocating CARDINAL plots of land to the claimants .

On DATE the title to the CARDINAL plots of land was entered in the land register , and on CARDINAL and DATE the second applicant and the other CARDINAL claimants sold their respective plots to the fifth applicant , the limited liability company ORG , the owner and director of which at the material time was the second applicant .

DATE and DATE the first applicant was the president of the fifth applicant , and DATE and DATE the first applicant was its chairman of the board .

On DATE the President of ORG of the ORG of ORG lodged an application for supervisory review with regard to the judgment adopted on DATE by ORG , arguing that there was a lack of evidence to corroborate that GPE had owned the property before DATE . As information received from ORG had suggested , the contested property had consisted of undivided shares and therefore it could not be concluded that GPE had been the sole purchaser of CARDINAL ha of a forest .

A copy of that application was sent to the second applicant and the other CARDINAL parties to the initial proceedings , inviting them to submit comments within DATE of receipt .

At a hearing on DATE attended by the representative of the claimants in the initial proceedings , the ORG of ORG quashed the judgment and remitted the case to ORG for fresh consideration . The ORG recognised that there was nothing in the case file to suggest that ORG had owned the contested property .

In DATE the Bureau for the Prevention and Combating of Corruption ( “ the KNAB ” ) asked ORG to initiate proceedings to reclaim the contested property from the applicants .

The fifth applicant entered into various transactions with the contested property .

On DATE and DATE part of the property was for a total amount of CARDINAL NORP lati ( ORG ) ( MONEY ( ORG ) ) sold to GPE who on CARDINAL and DATE sold it for the same amount to the third applicant , the limited liability company ORG , the coowner and representative of which at the material time and until DATE was GPE himself .

On DATE and DATE the third applicant was registered as the owner of the property in the land register .

On DATE and DATE the fifth applicant sold CARDINAL other parts of the contested property to the sixth and fourth applicants respectively for about ORG CARDINAL per each transaction . The purchase contract of DATE provided , inter alia , that the seller , namely the fifth applicant , guaranteed that the property was not subject to any dispute , and that seller would be liable for any third party claims made in respect of the transaction .

On DATE the fifth applicant sold another part of the property to ORG , who on DATE sold it to the first applicant for about LVL CARDINAL ( about ORG CARDINAL ) . The purchase contract of DATE provided , inter alia , that the seller guaranteed that the property was not anyhow encumbered .

On DATE and on DATE ( with regard to the first and the third applicants ) ORG , acting on behalf of ORG , lodged a claim against ORG , the applicants , GPE and the CARDINAL other claimants in the initial proceedings . ORG relied on the ORG ’s judgment ( see paragraph CARDINAL above ) and the request received from the ORG ( see paragraph CARDINAL above ) . The claim stated that the second applicant and the CARDINAL other claimants in the initial proceedings had no legal right of ownership over the contested property . ORG was asked to quash the decisions of ORG allocating the CARDINAL plots of land ( see paragraph CARDINAL above ) . ORG also asked for the relevant ORG records to be deleted and the rights of the ORG to the contested property to be recognised .

The claim was based on the section of the Civil Law regulating property claims , such as sections ORG , CARDINAL and DATE ( see paragraph CARDINAL below ) .

On DATE ORG decided to join the claim lodged by ORG and the claim about the restoration of property rights ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the claim lodged by ORG and upheld the decision recognising the second applicant and the CARDINAL other claimants as owners of the contested property .

Both ORG and ORG appealed against that decision .

On DATE ORG of ORG partly upheld the appeal lodged by ORG . The court revoked the decisions of ORG allocating the second applicant and the CARDINAL other claimants the CARDINAL plots of land , and ordered that the corresponding entries be deleted from the relevant ORG records . It established that the lower court had failed to address the fact that until DATE the contested plots of land had been jointly owned by the former owner GPE and CARDINAL other individuals . Moreover , the joint ownership of the land had ceased after the passing of a decree in DATE , and after that date GPE had not registered his title to the property with ORG .

The appellate court also dismissed part of the claim of ORG in which it claimed that the ORG ( represented by ORG ) had ownership rights over the property in question . The plots of land were returned to GPE in order for it to finalise the land reform .

In relation to the ORG argument that they had all acted in good faith when acquiring their part of the contested property , the court at the outset noted that such criteria as the date of conclusion of a contested transaction and the nature of the infringed property rights have to be considered when assessing the protection of bona fide acquirers . The court also observed that after the second applicant had sold the contested property to the fifth applicant , the owner of which was the second applicant himself , all the transactions involving the contested property ( see paragraphs CARDINAL above ) had been concluded after the ORG of ORG had revoked the final judgment in the initial proceedings . It also noted that PERSON had sold his respective parts of the property to the first applicant despite the fact that the civil proceedings initiated by ORG had been pending . On those grounds and on the basis of section CARDINAL of LAW ( see paragraph CARDINAL below ) , the applicants were not recognised as having acted in good faith .

The first , second , fourth and fifth applicants lodged an appeal on points of law . Following an application dated DATE , the third applicant joined the cassation appeal lodged by the first applicant . The sixth applicant did not lodge an appeal on points of law .

The CARDINAL appellants complained , inter alia , that the ORG did not have sufficient interest in the property to justify the fact that ORG had lodged a property claim on behalf of the ORG .

By a final decision of CARDINAL DATE , the ORG of ORG upheld in essence the appellate court ’s judgment . With respect to the property claim brought by ORG , the ORG noted that even if the ORG ’s property rights had not been infringed , that did not prevent the court from finding that the second applicant and the CARDINAL other claimants in the first set of proceedings had had no rights to the contested property . The ORG also upheld the appellate court ’s conclusions about the applicants acting in bad faith .

After the above judgment took effect and at GPE request the applicants’ entries were deleted from the relevant ORG records .

On DATE the third applicant was declared insolvent and ORG appointed PERSON as its insolvency administrator who replaced the former board members of the third applicant . On DATE the insolvency proceedings were terminated and on DATE the third applicant was deleted from the company register .

On DATE GPE , who until DATE had been a board member of the third applicant , on its behalf designated a legal representative in the proceedings before ORG ( see paragraph CARDINAL above ) .


MILOŠEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

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

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

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

On DATE PERSON ( a NORP national with CARDINAL office addresses , in GPE and in GPE ) issued a “ payment order ” to ORG , a bank incorporated in the respondent ORG , for payment of CARDINAL United States dollars ( ORG ) to the applicant , conditional upon the availability of funds in GPE ’s bank accounts in ORG The payment order also specified that if no funds were available in those bank accounts , PERSON would be liable to pay the applicant the pledged sum of money in cash . The relevant part of the payment order , co - signed both by PERSON and the applicant , reads as follows :

“ I , PERSON , ORG and Attorney with this , hereby inform and give an irrevocable order to Fiduciary bank : T. a.d . GPE to unconditionally pay out in my name to Mr PERSON ... the amount of GPE CARDINAL,CARDINAL,CARDINAL.CARDINAL ORG ( in words : MONEY DATE ) in cash from either of my accounts [ opened with ORG ] immediately after the arrival of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL in those accounts . This payment order shall constitute a firm obligation on the part of ORG and it shall pay out the amount stated hereunder to Mr. PERSON immediately , whenever this payment order is presented to T. a.d . GPE .

In the event that such resources ... have not arrived in either of my accounts [ specified ] above in due time , I am fully legally responsible to fully pay the amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL in cash to Mr PERSON at his first call and demand . ”

On DATE the applicant , through his representative , submitted the payment order to ORG ( “ the first - instance court ” ) and requested its enforcement . In his “ enforcement request ” ( предлог за извршување ) , amended on DATE , the applicant stated that both ORG and PERSON had failed to fulfil the provisions of the payment order . He proposed that enforcement be allowed in the following terms :

“ Enforcement is allowed of the payment of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , plus interest ... and costs ... from the debtor ’s [ ORG ] funds ( парични средства ) , that is to say ( односно ) from his assets in company NORP , incorporated in GPE as capital of PERCENT in company ORG incorporated in GPE ... by the transmission of the [ first - instance court ’s ] enforcement order from ORG [ of the respondent ORG ] to ORG of GPE so that the competent court in GPE might proceed further with the enforcement and transfer the above - mentioned amount to the [ applicant ’s ] personal bank account ... in ORG in GPE .

Alternatively , if no assets of company ORG are available in GPE , enforcement is proposed in respect of those of the debtor ’s funds that are available in company ORG bank accounts at ORG in GPE , GPE , or at any other institution where the debtor holds personal capital or stake in his other companies in GPE , or movable or immovable property or capital to be found at any other place .

This decision will be delivered to the [ respondent ORG ’s ] ORG , so that it can be transmitted for enforcement , via the competent [ NORP ] ministry , to the competent authorities in GPE .

The applicant and his representative will be notified in the event of any problems with the enforcement . ”

On DATE , by affixing the standard stamp to the applicant ’s enforcement proposal , the first - instance court allowed the enforcement , as proposed by the applicant ( the “ enforcement order ” ) . According to the instruction contained in the text of the stamp , the debtor could object ( приговор ) to the enforcement order within DATE of receiving it . The enforcement order was signed by Judge PERSON

The enforcement order was transmitted in GPE , through ORG of the respondent ORG and GPE , to GPE .. On DATE PERSON signed the delivery slip , which together with the complete file was returned to the respondent ORG . The fact that the file was returned was the reason for the first - instance court ’s seeking further information from the relevant Ministries as to whether PERSON had indeed received the enforcement order translated into NORP . The relevant Ministry did not clarify the matter .

On DATE the first - instance court , relying on “ the general provisions and principles of LAW ” ( hereafter “ LAW ” ) , terminated the enforcement ( се запира извршувањето ) and quashed the enforcement measures ( спроведените извршни дејствија се укинуваат ) . The first - instance court stated that the payment order could not be regarded as suitable for enforcement ( извршна или веродостојна исправа ) , that the enforcement order had been issued in error ( превид ) , and that it was in both parties’ interests that the enforcement be terminated . This decision was made by Judge PERSON , who had in the meantime been appointed to sit in the case .

On DATE ORG ( “ the second - instance court ” ) upheld the applicant ’s appeal and remitted the case for fresh consideration . It found that the first - instance court was bound by its enforcement order of CARDINAL DATE and that it was unclear why it had concluded that it was in the parties’ interests for enforcement to be terminated . In this connection it noted that the enforcement order had been served on both parties , that neither party had appealed against it , and that the first - instance court could not assess the “ substantive legality ” ( материјалната законитост ) of the enforcement order . The second - instance court added that the first - instance court , when considering the case anew , should assess whether any of the statutory conditions for the termination of the enforcement ( запирање на извршувањето ) had been met .

On DATE the president of the first - instance court granted a request by the applicant for the withdrawal of Judge PERSON and appointed Judge PERSON to sit in the case . On DATE the first - instance court again terminated the enforcement . It noted that it had received , on CARDINAL occasions , a notification from ORG that no funds had been available on ORG bank accounts to cover the applicant ’s claim . By citing provisions of the Act relevant to the courts’ territorial competence for enforcement over funds , movable property and stakes in companies ( see paragraph CARDINAL below ) and by taking into account the provisions of LAW regarding ORG seats and legal status , the first - instance court concluded that the enforcement , as allowed by the enforcement order , was impossible . In this connection , it stated :

“ ... the enforcement sought concerned moveable property outside ( the respondent ORG ) ... It is absolutely impossible for a court in ( the respondent ORG ) to carry out enforcement against property in a foreign ORG in which different rules apply . It is true that the enforcement in the present case was allowed and that the ( enforcement order ) became final ... the court has no jurisdiction to proceed with the enforcement against shares in a foreign company in a foreign ORG ... the enforcement concerns shares of a foreign company from GPE , which is absolutely impossible to carry out LAW of GPE . LAW clearly provides that the competent court ratione loci is the court in the place where the foreign company is registered . ”

On DATE the applicant appealed , arguing , inter alia , that there was no legal ground in the Act for the termination of the enforcement in the instant case . He further submitted that under the bilateral agreement applicable between the respondent ORG and GPE ( hereafter “ LAW ” ) ( see paragraphs CARDINAL below ) , the enforcement order should have been transmitted through the respondent ORG ’s ORG to the competent NORP authorities , so that the latter could proceed further with the enforcement .

On DATE ORG dismissed the applicant ’s appeal and confirmed the lower court ’s decision . It held that the first - instance court had not terminated the enforcement proceedings , but had only terminated the enforcement . In this connection it observed that a distinction should be made between ( i ) the termination of enforcement proceedings ( запирање на извршната постапка ) as a final completion of enforcement proceedings and ( ii ) the termination of enforcement ( запирање на извршувањето ) as completion of only a stage of the enforcement proceedings , completely or regarding a particular object of enforcement . The court referred to the lack of funds in GPE ’s accounts in ORG and reiterated the reasons of the lower court that the NORP courts had no jurisdiction to proceed with the enforcement against funds and moveable property in foreign companies for which the power of enforcement was vested with the courts of the jurisdiction within which such assets were located . The applicant was served with this decision on DATE .

Subsequently , the applicant asked the first - instance court to attest to the finality and enforceability of the enforcement order ( издавање на правосилност и извршност на решение ) . On DATE the applicant ’s request was dismissed . The first - instance court held that no such measure could be taken , since there existed a final decision on the termination of the enforcement . It further pointed out that no further enforcement measures could be taken on the basis of the enforcement order . On DATE the second - instance court dismissed the applicant ’s appeal and confirmed the first - instance court ’s decision .

This Act regulated the enforcement of court decisions . Section CARDINAL provided for the subsidiary application of LAW . Section CARDINAL contained a general provision that an enforcement proposal concerning moveable assets should be decided by a court with jurisdiction in the territory in which such assets are located . Sections CARDINAL and CARDINAL specified that an enforcement proposal concerning funds or the transfer of moveable assets should be decided , respectively , by a court with jurisdiction in the territory in which the debtor in question lives or in which such moveable assets are located . Section CARDINAL-a prescribed that enforcement proposals concerning shares and stakes in companies should be decided by a court with jurisdiction in the territory in which the company concerned is registered .

Section CARDINAL of this Act stipulated that a court should regularly and of its own motion verify that a pending case was within its competency .

Article CARDINAL of LAW , which is binding on the respondent State , stipulates that the competent court for recognition and enforcement of a court judgment delivered by courts of a Contracting State shall be the court of the State in which the judgment is to be enforced .

Article CARDINAL provides that a request for recognition or enforcement can be submitted to the directly competent court in the ORG in which the judgment is to be recognised or enforced , or to the court which decided the matter at the first instance which shall , in such a case , transmit that request to the other ORG . Any such request shall be accompanied by a certified copy of the enforcement decision , together with an attestation that the decision has become final and enforceable ( unless this stems from the decision itself ) .

Under LAW , the court of the ORG in which the enforcement should take place shall decide and proceed with the enforcement in line with its national legislation .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicant was born in DATE and lives in GPE .

On DATE , quoting the relevant sections of LAW , ORG ordered the applicant ’s pre - trial detention on charges of terrorist acts and other related offences involving abuse of firearms and explosives on the grounds that he might abscond for fear of a severe punishment , might frustrate the on - going investigation by colluding with accomplices still at large , or might execute the planned offences or re - offend .

The detention measure was extended on DATE and again on DATE . The court reiterated its earlier reasons , adding that the risk of collusion was serious , since certain other suspects had not yet been apprehended .

A further extension was ordered on DATE . The court stated that the applicant was being prosecuted for terrorist acts committed as an associate of an organised criminal group whose plans entailed a real risk of loss of life . It was of note that the group had existed for quite some time and had been committed to carrying out terrorist acts . Moreover , the volume of evidence supporting a reasonable suspicion , as weighed individually against the applicant , was increasing .

On DATE the applicant ’s detention was again extended , the court noting that , in view of the grounds for his detention , not even his clean criminal record , family ties and settled background could provide adequate justification for a less strict measure .

On DATE the measure was renewed , with special reference to the fact that the case was concerned with a series of crimes committed over a long period of time by a criminal organisation .

On DATE ORG ordered that the applicant be held under house arrest , holding that the danger of his re - offending was not of a degree that justified his continued detention , noting also that the investigation was about to be wrapped up and that , in any case , some accomplices in the case had already been released pending trial .

The applicant was released from detention DATE . During the ensuing period he complied with the rules of house arrest .

On DATE ORG again ordered the applicant ’s detention . It held that the charges of several very serious offences committed over a long time in an organised group were of such gravity that they could not be addressed merely by house arrest .

The measure was extended on DATE . In addition to the previously cited reasons , the court considered that there was no reason to assume that the applicant ’s political motivation behind the incriminated acts had subsided , which meant that the risk of re - offending was real .

On DATE ORG ordered the applicant ’s house arrest , observing that the applicant had abided by the previous house arrest ( see paragraph CARDINAL above ) and holding that the risk of re - offending was slight .

On DATE the applicant ’s house arrest was replaced by a restraining order , which was eventually lifted on DATE .

On DATE the applicant was again detained on remand for the purposes of prosecution for a new offence allegedly committed during the on - going proceedings . He was accused of having threatened and harassed a relative of CARDINAL of the witnesses in the main case . For want of evidence , this new investigation was discontinued on DATE .

On DATE the applicant was released from detention and put under house arrest , which lasted until DATE .

On DATE the applicant and his accomplices were convicted . He was sentenced to DATE in a strict - regime prison .

Both the defendants and the prosecution appealed . The outcome of the ensuing proceedings is unknown .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano

The applicant was born in DATE and lives in ORG .

In DATE a large - scale criminal investigation was initiated against several persons for money laundering and fiscal fraud . On DATE the investigation was extended in respect of CARDINAL other persons , including the applicant .

Within the framework of the criminal investigation , on DATE several police officers carried out a search at the applicant ’s home . According to the search report , signed by the applicant and by her appointed lawyer without any objections , the search started at CARDINAL TIME and lasted until TIME

NORP Immediately after the search and in accordance with the provisions of ORG CARDINAL - CARDINAL of LAW ( hereinafter RCCP , see paragraph CARDINAL below ) , namely on the basis of an order to appear before the investigation body , the applicant was taken by police officers to the GPE police headquarters .

According to the record drawn up at the time , the enforcement of the order to appear was executed TIME and TIME , when the applicant arrived at the police station .

The order to appear had been issued by the prosecutor on DATE . It mentioned that

“ In the interests of the investigation ongoing in the above - mentioned criminal file [ number ] concerning money laundering and fiscal fraud , the questioning of [ the applicant ’s name and identification data ] in her capacity of suspect is necessary .

The criminal investigation bodies ( ... ) will bring the suspect to the police headquarters on DATE for the purpose of making a statement [ before the investigating authorities ] . ”

The documents on file show that TIME on DATE and TIME DATE , the investigating authorities , namely CARDINAL prosecutors and CARDINAL judicial police officers , conducted interviews in respect of CARDINAL witnesses and CARDINAL suspects and/or defendants in connection with the criminal investigation involving the applicant .

According to the register kept by the police to record third parties entering the police station on a DATE basis , the applicant ’s appointed lawyer , Mr R .- M.S. , entered the premises of the police headquarters at CARDINAL p.m. The applicant contended that up until that time , her lawyer had been prevented from joining her because he had not submitted a written mandate proving that he lawfully represented her ( see also paragraph CARDINAL in fine , below ) .

It appears from the file that during her stay in the police station , the applicant ’s phone conversations were tapped .

At an unspecified time before TIME , a prosecutor informed the applicant that she was a suspect in an ongoing criminal investigation , and was to be charged with complicity in fiscal fraud ; the applicant was also informed of the rights and obligations she had in that capacity . When invited to give a statement , she refused , claiming that she was unwell and needed medical assistance .

The TIME recording this interview do not mention the exact time of their drafting ; they are signed by the applicant , who confirmed having received a copy . Her lawyer does not appear to have been present .

The Government contended that the applicant ’s request for medical assistance had been part of her defence strategy , as proved , in their view , by the transcripts of a phone conversation she had had with a third party at CARDINAL p.m. , in which she was advised accordingly ( see also paragraph CARDINAL above ) . The same argument was backed , according to the Government , by the conclusions of the medical investigations , which attested to the fact that no urgent need for medical care had been identified in her case ( see paragraph CARDINAL below ) .

At TIME an ambulance was called to the police station . It arrived at TIME and provided medical care ( mainly intravenous infusion with minerals ) to the applicant until TIME , when she was taken to ORG . Accompanied by police officers , she arrived at the hospital at TIME , and was diagnosed with lipothymia . She remained in the hospital until TIME DATE and several medical examinations were performed during this time , following which vitamins , calcium and analgesics were administered . The diagnosis when the applicant left the hospital , accompanied by police officers , was neurovegetative dystonia and light hypokalemia .

The applicant claimed that during the whole time she was in hospital she had been guarded by police officers , who had then escorted her back to the police headquarters .

At TIME the applicant ’s questioning started . In the presence of her chosen lawyer , the applicant refused to give a statement on the grounds that she was very tired , having spent TIME in hospital . She also referred to the fact that neither she nor her lawyer had been given the opportunity to familiarise themselves with the contents of the criminal case file in which she was a suspect .

Subsequently , at TIME , the applicant was informed in the presence of her chosen lawyer that the prosecutor had decided to remand her in custody ( reţinere ) for TIME .

Her lawyer lodged a complaint with the prosecutor against the decision to remand her in custody , as well as another complaint concerning her being unlawfully deprived of her liberty as of TIME on DATE .

In the first complaint , it is claimed that the order to appear became effective on DATE at TIME , and that the applicant was de facto remanded in custody as of TIME It is argued that the applicant ’s deprivation of liberty throughout that interval was unlawful and unjustified , aimed solely at obtaining statements from her under duress .

In the second complaint it is claimed that on DATE , as of CARDINAL p.m. when the search of her home ended , the applicant ’s liberty to move around was restricted , as proved by the fact that she had been accompanied by police officers not only to the police station but also to the hospital , where she had been taken under escort to obtain medical assistance . The applicant mentioned that her lawyer had not been allowed to accompany her or to assist her because he did not have a written mandate , even though the lack of such a document was objectively justified by the circumstances in which she had been taken to the police station .

The prosecutor dismissed both complaints on DATE , holding that the measure to remand the applicant in custody was lawful , necessary and proportional to the gravity of the charge . He stated that the order to appear became effective after the house search had been performed , the presence of the applicant during the search being necessary in relation to its conduct and thus outside the limits of such an order . The prosecutor further considered that the time interval during which the applicant was under medical surveillance could not be included within TIME time - limit set out by LAW , as that was an incident excluding the responsibility of the investigating authorities . The limitation of her lawyer ’s access to the criminal file had been justified by the necessity to get to the truth and to obtain from the applicant a genuine statement , uninfluenced by those already given by the other suspects or witnesses .

On DATE , relying on testimonial , documentary and audio surveillance evidence , the prosecutor asked ORG to place the applicant in pre - trial detention ( arest preventiv ) for DATE as her release posed a threat to public order .

By an interlocutory judgment delivered on DATE , ORG allowed the prosecutor ’s request and ordered the applicant ’s detention until DATE . An appeal lodged against this was dismissed by ORG on DATE . Her pre - trial detention was extended for DATE by a decision of ORG issued on DATE , upheld on appeal .

The applicant was released on DATE after DATE of pre - trial detention .

It appears that the proceedings on the merits are still pending .

The applicant claimed that for DATE , she had been placed in a cell measuring QUANTITY , which she had shared with CARDINAL other detainees . She also complained about the poor conditions of hygiene , lack of ventilation and natural light . According to the applicant , the toilet was not separated from the living area by any partition , thus offering no privacy .

The Government provided information about the applicant ’s conditions of detention . They submitted that the applicant had been detained in a cell measuring QUANTITY , which she had occupied with CARDINAL or CARDINAL other detainees from CARDINAL to DATE . From DATE to the date of her release , the applicant had been placed in a room measuring CARDINAL sq m , along with CARDINAL others .

They stated that each cell had sanitary facilities such as a toilet and a shower , which were separated from the rest of the cell by a curtain . Both cells had access to natural and artificial light , as well as ventilation provided by a double - glazed window measuring QUANTITY .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in DATE and lives in GPE .

The parties gave partly different descriptions of certain factual elements of the case concerning the “ dangerous detainee ” regime ( see paragraphs CARDINAL - CARDINAL below ) . The remaining facts were not in dispute .

The applicant has a history of criminal convictions . For DATE he was sought by the law - enforcement authorities pursuant to a “ wanted ” notice .

On DATE an international search warrant was issued against the applicant on the reasonable suspicion that he had committed , as a member of an organised criminal group , several counts of robbery , extortion , uttering threats , causing bodily harm and placing an explosive with intent to damage property . Earlier , on CARDINAL DATE ORG had also ordered that the applicant be remanded in custody for a period of DATE .

On DATE the applicant was arrested by the NORP police .

On DATE the applicant was handed over to the NORP authorities .

On DATE ORG ( Sąd Rejonowy ) remanded him in custody , relying on the reasonable suspicion that he had committed , as a member of an organised criminal group , several counts of robbery , extortion , uttering threats , causing bodily harm and placing an explosive with intent to damage property . It attached importance to the serious nature of those offences and the likelihood of a heavy prison sentence being imposed on the applicant . The court also considered that keeping the applicant in detention was necessary in order to secure the proper conduct of the proceedings , given the risk that he might abscond . With regard to the latter possibility , the court relied on the fact that he did not have a permanent place of residence in GPE and that he had already been hiding from the police . Finally , the court emphasised that the applicant was a member of an organised criminal group and that certain other members of that group were still at large , which increased the risk that the detainee , if released , might obstruct the proceedings .

NORP The applicant ’s appeal against the detention order , like his further appeals against decisions extending his detention and all of his subsequent , numerous applications for release and appeals against refusals to release him , were unsuccessful .

On DATE ORG lodged a bill of indictment with ORG . The applicant was charged with several counts of robbery , extortion , uttering threats , causing bodily harm and placing an explosive with intent to damage property . The bill of indictment comprised numerous charges against CARDINAL defendants .

During the court proceedings the authorities further extended the applicant ’s pre - trial detention on DATE ( to DATE ) and CARDINAL DATE ( to DATE ) . The courts repeated the grounds previously given for the applicant ’s continued detention . They also found no grounds warranting the applicant ’s release from detention as provided for by LAW .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment and a fine .

The applicant appealed . He was kept in detention pending his appeal .

On DATE ORG ( PERSON ) heard the applicant ’s appeal . It quashed the first - instance judgment and remitted the case . The court also extended the applicant ’s pre - trial detention to DATE , repeating the grounds previously given .

On DATE the case file regarding the applicant ’s case was transmitted to ORG for re - trial .

On DATE the ORG requested the Prosecutor to complete the bill of indictment . However , on DATE ORG quashed that decision , remitted the case to ORG and ordered it to proceed with the trial .

On DATE the ORG further extended the applicant ’s detention to DATE , repeating the grounds previously given .

On DATE the ORG extended the applicant ’s pre - trial detention to DATE . The applicant lodged an interlocutory appeal against this decision . On DATE the ORG quashed ORG decision , finding that it had been taken by a judge who should have been excluded ex lege from deciding in the applicant ’s case .

On DATE ORG , in a different composition , again extended the applicant ’s pre - trial detention to CARDINAL DATE . The court further extended the applicant ’s detention on CARDINAL DATE ( to DATE ) , CARDINAL DATE ( to DATE ) , QUANTITY DATE ( to DATE ) , DATE ( to DATE ) , CARDINAL DATE ( to DATE ) , CARDINAL DATE ( to DATE ) and DATE ( to DATE ) . On each occasion the court repeated the grounds previously given and found no grounds warranting the applicant ’s release from detention as provided for by LAW . In addition , the court observed that while it appeared from medical reports that the applicant was suffering from various health problems , treatment could be provided within the penitentiary facility .

In its decision of CARDINAL DATE dismissing the applicant ’s appeal against the decision of CARDINAL DATE extending the applicant ’s detention , ORG addressed the applicant ’s argument that his detention had exceeded the reasonable time requirement referred to in LAW . The court cited the relevant provisions of the LAW and held that taking into consideration the complexity of the case and the fact that the applicant had been charged with numerous and various offences committed in cooperation with other persons the detention , although considerably long , had not exceeded the “ reasonable time ” within the meaning of the LAW . The court also considered that “ detention was indispensable because , other , less severe preventive measures would not properly secure their aim ” .

In the meantime , on DATE ORG examined the applicant ’s request for release and dismissed it . The court relied on the same grounds as previously albeit it additionally observed that the applicant had no permanent place of residence in GPE that he had been previously convicted and once , when he had been granted home leave during his sentence , he went into hiding abroad . In GPE he used a fake passport . The court considered that in these circumstances and taking into account that the applicant still had an outstanding sentence to be served in GPE , there was a reasonable fear that he might abscond or go into hiding . The court concluded that other preventive measure , not involving deprivation of the applicant ’s liberty , would not secure the proper conduct of the proceedings .

On CARDINAL DATE ORG convicted the applicant . The applicant appealed .

On DATE ORG again quashed the first - instance judgment and remitted the case .

Since DATE the applicant has been serving a prison sentence imposed on him in another set of criminal proceedings .

On CARDINAL DATE the applicant lodged a complaint with ORG under LAW on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . He claimed that the proceedings had commenced in DATE and were still pending . He sought an acknowledgement that the proceedings had been lengthy and just - satisfaction in the amount of PLN CARDINAL .

On CARDINAL DATE ORG dismissed the applicant ’s complaint . The court did not accept the applicant ’s view that the proceedings had lasted DATE . It examined only the course of the proceedings after DATE , stating that the applicant ’s complaint could only refer to the current stage of the proceedings , i.e. after ORG had remitted the case to ORG and had duly transmitted the case file . As regards the period after DATE it considered that the proceedings before the trial court had been conducted with the requisite speed , especially given the complexity of the case . In particular , the court observed that the hearings had been held frequently and at regular intervals and that only a few had been adjourned for reasons not imputable to the trial court . It further observed that at the request of the applicant , on CARDINAL DATE CARDINAL witnesses who had their permanent place of residence in GPE were summoned to be heard at the hearing on DATE . The CARDINAL summons were returned with notes “ addressee unknown ” . On DATE the applicant indicated a NORP address of CARDINAL of these CARDINAL witnesses . The court adjourned the hearing until DATE and summoned the witnesses again . On DATE the court heard one witness ; the remaining CARDINAL failed to appear . On DATE the applicant requested the court to hear another witness who had been deprived of his liberty in GPE . The court granted the request and decided that the witness in question be heard through the consular office . The court also observed that there had been objective difficulties in appointing expert witnesses of several specialities and that some of the expert reports obtained were incomplete and had to be returned for rectification .

On DATE ORG ( PERSON ) classified the applicant as a “ dangerous detainee ” . It considered that this was necessary in view of the fact that he was charged with numerous offences against human life and health . The commission also referred to the applicant ’s serious lack of moral character and the fact that he was a recidivist . Finally , the commission emphasised that the applicant had already escaped twice from custody and had been hiding from the police for DATE .

Every DATE the commission reviewed , and upheld , its decision classifying the applicant as a “ dangerous detainee ” . The commission underlined that the initial grounds for imposing the special confinement measure were still valid .

The applicant appealed to ORG against the decisions extending his status as a “ dangerous detainee ” . All his appeals were dismissed . In particular , the court gave decisions on DATE , CARDINAL DATE and DATE . The authorities relied on the grounds set out in the initial decision . They laid particular emphasis on the risk posed by the seriousness of the offences and the fact that the applicant had already escaped previously from custody and had been in hiding for DATE .

On DATE the Head of FAC ordered that the applicant be placed in solitary confinement for a period of DATE as a disciplinary punishment , after he had refused to undergo a strip - search . The applicant asked the Head of FAC to reconsider his decision . The penalty was implemented DATE and DATE .

On DATE the Head of FAC upheld his original decision , stating that it had been well - founded in view of the applicant ’s refusal to strip and his aggressive behaviour towards the prison guards who were to perform a body search . The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal , arguing that the impugned decision had been lawful and as such could not be contested before the court .

On DATE another disciplinary punishment was imposed on the applicant : he was refused permission to receive any food packages . The punishment was imposed on the applicant for allegedly aggressive behaviour prior to a full strip - search ( kontrola osobista ) on CARDINAL DATE .

As a “ dangerous detainee ” , the applicant was subjected to a full body search every time he entered or left his cell , which meant that he had to strip naked in front of CARDINAL prison guards and was required to carry out deep knee - bends at least twice a day .

On several occasions the applicant complained about the full stripsearches . In particular , on DATE he complained about a stripsearch of CARDINAL DATE . In reply , ORG , after verifying the circumstances of this check , confirmed that it had been carried out in accordance with the relevant procedures .

The applicant ’s visiting rights were also severely restricted . According to the list of visits submitted by the ORG , which was not contested by the applicant , between DATE and DATE the applicant received visits on CARDINAL occasions . However , DATE and DATE the applicant did not receive any visits . On DATE he received a visit from his defence lawyer . From DATE he was visited by his sisters , initially once DATE and subsequently , after DATE , DATE . Furthermore , the applicant could leave his cell for TIME of outdoor exercise per day in a QUANTITY by walls .

DATE the applicant made many requests to the prison authorities , asking them to allow him to take part in training sessions , workshops , courses or other sports activities organised for the other inmates . All those requests were rejected .

On DATE the dangerous detainee status was lifted . The prison authorities stressed that the applicant ’s attitude had improved significantly and that he did not raise any security concerns .

In respect of the full strip - search , the applicant submitted that during periods when he had been detained in a cell with another inmate , the strip - search had been carried out in the cell , and consequently had occurred not only in the presence of CARDINAL prison guards , but also in the presence of the other inmate .

The Government argued that the strip - searches had been performed in an adequately furnished separate room , which was monitored ; the recording could be viewed in a duty room . Any recordings from the surveillance system had been automatically deleted after DATE .

The applicant further maintained that whenever he was outside his cell , including during his appearances at court hearings and medical visits , he had been required to wear the so - called “ joined shackles ” ( kajdany zespolone ) on his hands and feet .

However , the ORG argued that the applicant had been required to wear “ joined shackles ” only outside FAC and that inside the prison he had merely been handcuffed .

On DATE the applicant asked the prison authorities to allow him to vote in ORG elections , in the polling station set up for that purpose within the confines of the prison . After carrying out a basic body search with a metal detector , the prison guard took the applicant to a separate room and ordered him to strip naked . As the applicant refused to do so , requesting the guard to allow him to vote without undergoing a full strip - search , he was taken back to his cell without being allowed to vote .

On DATE the applicant complained to ORG that he had to undergo a strip - search and that consequently he had not been allowed to vote . His complaint was referred to the Head of FAC .

On DATE the Head of ORG dismissed the applicant ’s complaint . He stated that as a ‘ dangerous ORG the applicant was subjected to a body search every time he entered or left his cell . Since the applicant had refused to undergo a full strip - search on CARDINAL DATE while being taken to the prison polling station , the guards had to take him back to his cell . DATE the applicant was again asked whether he wished to participate in the elections but he refused , stating that he would not strip naked .

DATE . On DATE the Head of the Lublin Remand Centre confirmed that all detainees who wished to participate in the parliamentary elections on DATE had voted .

On DATE the applicant was sent to ORG . From DATE he was detained in FAC . He was subsequently detained in FAC and then again in FAC .

The applicant suffers from hyperthyroidism , asthma , severe back pain , bilateral epididymal cysts and hypertension . During his detention in FAC he received pharmacological treatment . He also underwent a thyroid ultrasound ( on DATE ) and a testicular ultrasound . He also consulted specialist doctors .

On several occasions he complained about the delay in obtaining appointments with specialists . In reply , he was informed on CARDINAL DATE that the waiting time for specialist consultations had been similar to that for the population in general .

The applicant submitted that throughout his detention he was held in conditions which fell below the basic levels of hygiene . He also alleged that his cell in FAC had had no ventilation , had little natural light , poor artificial lighting and was badly furnished .

The applicant submitted CARDINAL envelopes from correspondence received from his sister , bearing an illegible signature and the stamps “ censored on DATE ” , “ censored on DATE ” and “ censored on CARDINAL DATE ” respectively . In respect of the letter censored on DATE , an authorisation to receive a package containing copies of the court case files and the applicant ’s medical records had been issued by the Head of ORG of FAC and was attached to the envelope . A similar authorisation to receive a copy of the court case files had been issued in respect of the letter censored on DATE and was also attached to the envelope .

On DATE ORG instituted criminal proceedings against the medical and nursing staff of the hospital ward of FAC , for making false statements and forgery of the applicant ’s signature .

On DATE ORG discontinued the proceedings .


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

The applicant was born in DATE and lives in GPE .

In a real estate dispute , on DATE the applicant brought an action before ORG .

After CARDINAL remittals , ORG gave judgment on DATE , which was partly reversed by ORG on DATE ( service : DATE ) . On CARDINAL DATE the proceedings were finally terminated , by way of a rectification order .


CASE OF KOROTEYEV AND SITARSKIY v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard . They also raised other complaints under the provisions of the Convention .


No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in DATE and lived in GPE .

NORP In DATE he deposited GPE dollars in a threemonth account with ORG , a private bank .

In DATE the country suffered a financial crisis , the rouble fell , and the bank defaulted . In DATE the applicant accepted the bank ’s offer to settle and close his account in return for the balance in depreciated roubles . By the time the money reached the applicant in DATE , the rouble had depreciated further .

NORP In DATE the bank went into external administration and its debt repayments were frozen pending a restructuring .

In DATE the bank and its creditors negotiated a group settlement of DATE debt and had it approved by the courts . The settlement discharged the bank from fines , penalties , default interest , and damages arising under legislation , contracts with clients , and court decisions .

NORP In DATE the applicant sued the bank for the loss caused by the exchange - rate fluctuations DATE he had accepted the bank ’s offer and DATE the money had arrived . The bank objected to that claim on the ground that it had extinguished its obligations by repaying the deposit to the applicant . On DATE the ORG of GPE awarded the applicant MONEY ( RUB ) .

NORP In DATE the applicant filed a writ of execution with a bailiff .

On DATE , on the application of the bank , ORG terminated the enforcement of its judgment in view of the group settlement . ORG said :

Considering the nature of the legal relationship at issue , the court takes into account the fact that the enforcement proceedings have been instituted with the purpose of collecting from [ NORP Credit ] the liabilities that had come into existence before DATE inclusive and , under the ... terms of the friendly settlement , are related to [ the bank ’s ] restructured liabilities subject to novation on the terms of the friendly settlement approved by a [ court decision ] that had defined the procedure and terms of the extinction of the liabilities .

Pursuant to section CARDINAL § CARDINAL of LAW , the conclusion of a friendly settlement between a creditor and a debtor constitutes a ground for the termination of the enforcement proceedings , and therefore the [ bank ’s ] application shall be granted and the [ enforcement proceedings ] shall be terminated .

NORP In DATE , in reply to the applicant ’s query , the bank ’s external administrator informed the applicant that his deposit had not been on the books and that under the terms of the group settlement his judgment debt could not be paid .

On DATE ORG upheld ORG decision , finding that the applicant ’s individual claim was to be settled with the group claim . ORG said :

When terminating the [ enforcement ] proceedings the [ ORG ] has referred to the provisions of section CARDINAL of the Code of Civil Procedure and reached the conclusion that the terms of the said friendly settlement regarding the restructuring of the credit obligations of [ NORP Credit ] extended also to [ the applicant ] .

The [ ORG ] agrees with the said conclusion of the [ ORG ] as based on the provisions of the law and confirmed by the circumstances of the present case .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

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

In GPE , the applicant completed DATE of schooling and subsequently held various jobs in GPE . After leaving the country , he lived in GPE from DATE , living at first on social security and later working as a DATE - labourer on several farms . In DATE he arrived in GPE , where he applied for asylum under a different identity . His application was finally rejected in DATE . He left GPE for GPE with a NORP national with whom he had started a relationship . In DATE he moved on to GPE , where he worked as a cook and waiter in various restaurants .

NORP In DATE the applicant re - entered GPE . On DATE his daughter , from his above - mentioned relationship , was born . The applicant ’s daughter is a NORP national .

In DATE and DATE the applicant and the child ’s mother lived together . From the outset they had , and continue to have , joint custody . On DATE , ORG issued the applicant a residence permit based on family ties , valid until DATE .

On DATE the applicant was arrested on suspicion of having committed an offence under LAW ( Betäubungsmittelgesetz ) .

On DATE the NORP ORG sentenced him to CARDINAL years’ imprisonment for drug trafficking on a large scale . It observed that the applicant had recruited and instructed the child ’s mother as a drugs runner for CARDINAL separate consignments of cocaine from LOC to LOC in DATE and in DATE . It considered , in favour of the applicant , that this was his first criminal conviction , that the first delivery had failed ( the drugs did not actually enter the distribution system ) , and that the applicant had been detained on remand since DATE . ORG held against the applicant that he had used as drugs runners CARDINAL young women who were adolescents at the time the offences were committed , and who ran the risk of a lengthy prison sentence in LOC ; that he had exploited the naivety of his daughter ’s mother ; that a large amount of cocaine was meant to be smuggled in the first case and that QUANTITY of cocaine were smuggled into LOC in the second case ; and that the entire undertaking had been handled very professionally . In addition , ORG considered that a conviction for a third case of drug smuggling could not be envisaged for the sole reason that the precise amount of cocaine transported in a suitcase from GPE to GPE could not be determined .

The applicant submitted that his daughter and her mother had visited him in prison DATE and that he had sought a court ruling on contact with his daughter , when the child ’s mother discontinued the visits . On DATE , the applicant and the child ’s mother agreed before ORG that supervised meetings between him and his daughter would take place as soon as he was released from prison . As of DATE , the daughter visited the applicant regularly in prison DATE every four weeks for TIME at a time – in the company of a priest .

On DATE the applicant was released , after having served his entire sentence . He was placed under supervision of conduct ( Führungsaufsicht ) until DATE .

After his release , the applicant was granted exceptional leave to remain ( PERSON ) under LAW of LAW – according to the information available to ORG this was granted most recently in DATE and would last until DATE . It meant that enforcement of the expulsion order was temporarily suspended , being impossible to execute as the applicant did not have a valid passport ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) . He began occupational re - training as a management assistant in marketing communication in DATE , which he successfully completed in DATE , but was not allowed to engage in gainful employment since his release .

The applicant has not lived with his daughter and her mother since his release . Since DATE they have been living in different cities , with distances between their homes varying QUANTITY and the travelling time varying TIME . The applicant sees his daughter on a regular basis and maintains close contact with her . It is not disputed between the parties that she spends DATE with him . According to a social worker ’s statement , he has become an important contact person for her . Both the applicant ’s daughter and her mother explicitly wish the applicant ’s contact with his child to continue .

NORP Since his release , the applicant was convicted of CARDINAL offences by ORG , of fraud in DATE and of theft in DATE and DATE . He was sentenced to CARDINAL , thirty and ninety day - fines , respectively . By being present on NORP territory without having a passport , he committed an ongoing offence under LAW . Criminal proceedings in this connection were discontinued by the public prosecutor in DATE because the applicant ’s guilt was considered to be of a minor nature and because prosecution was not in the public interest . The matter was referred to the administrative authority for treatment as an administrative offence .

On DATE the Authority of the City of GPE refused to renew the applicant ’s residence permit and ordered his expulsion . It held that the applicant ’s expulsion was mandatory pursuant to LAW of LAW ; since DATE : Section CARDINAL of LAW ) which foresaw the mandatory expulsion of an alien if he or she were sentenced to either CARDINAL years’ imprisonment for a criminal offence , or to any period of imprisonment ( not on probation ) for an offence under LAW . The authority examined whether the applicant enjoyed special protection against expulsion because he was the father of a NORP child . It found that the applicant had lived with his daughter only for a short time prior to his imprisonment , she had thus experienced separation from the applicant and that , in the light of the applicant ’s very serious criminal offences , the ORG ’s interest in removing the applicant prevailed over his interest in enjoying family life with his daughter . He could remain in contact with her by letter or telephone and could apply for permission to enter GPE for specific periods of time ( NORP ) . It considered that the applicant ’s expulsion was in conformity with LAW . This decision , which also contained an unlimited re - entry ban and notice that he would be deported to GPE if he did not leave GPE voluntarily within DATE after being released from prison , became final on DATE .

On DATE , after the applicant had served CARDINAL of his prison sentence , the authorities envisaged his expulsion as of DATE .

On DATE the applicant introduced another asylum application ( see paragraph CARDINAL above ) . On DATE , ORG dismissed his application as manifestly illfounded under LAW of LAW ( see paragraph CARDINAL below ) and , finding that there were no impediments to his return to his country of origin , ordered his expulsion . The decision again contained notice that he would be deported to GPE if he did not leave GPE voluntarily within DATE after the decision became final . On DATE , ORG granted suspensive effect to the applicant ’s appeal in the asylum procedure . On DATE it dismissed his appeal in the main procedure , also finding , inter alia , that the applicant ’s ties to his daughter could not be taken into account in the asylum procedure . This decision became final on DATE .

On DATE the applicant applied for a residence permit based on family ties .

On DATE the Authority of the City of GPE rejected his application , holding that there was a final expulsion decision ( of DATE ) against the applicant , which precluded granting him a residence permit . No impediments arose from the fact that his daughter was a NORP national . The applicant could maintain contact with her through letters , telephone calls and occasional visits . His daughter was accustomed to a long - distance relationship with him . He was responsible for the renewed separation and the purpose of the expulsion order had not yet been achieved . At the same time , it reduced the re - entry ban to DATE and ruled that the applicant could , starting DATE after his actual expulsion , apply for permission to enter GPE DATE for a total of DATE .

On DATE ORG quashed that decision and ordered the administrative authority to issue a residence permit . It noted that the applicant met the requirements for a residence permit based on family ties , but that granting such a permit was precluded by the final expulsion decision . However , the applicant was entitled to a residence permit on humanitarian grounds in accordance with LAW § CARDINAL of LAW , with the margin of appreciation inherent in this provision being reduced to CARDINAL . LAW of LAW was not applicable to this provision and the applicant ’s departure was impossible in law due to his family life with his daughter , which was protected , inter alia , by LAW .

ORG found that , despite the serious nature of the criminal offences the applicant had committed , there was no public interest that outweighed the child ’s best interests and the applicant ’s interest in having contact with his daughter . The relationship between the applicant and his daughter had the quality of a “ family ” and their ties were of benefit to the child . It considered that they could only live together in GPE , as the child could not be expected to relocate to GPE ; that the applicant had committed the criminal offences prior to the birth of his daughter ; that he had made considerable efforts as a father , as was also evidenced by his choice to remain imprisoned in GPE and to have supervised meetings with his daughter as of DATE rather than having his sentence suspended and being expelled as of DATE ; that the latter event marked a turning point , which occurred after the expulsion order had become final in DATE and which had not been taken into account by the administrative authorities ; that the child had already been deprived of a relationship with her father for DATE during his imprisonment ; that the material assessment with a view to the applicant ’s expulsion had been conducted on DATE , DATE before the developments in the fatherdaughter relationship and the moment the expulsion order would be enforced ; and that the enforcement of the expulsion order in connection with a re - entry ban would deprive the child of the possibility of a normal father - daughter relationship for the remainder of her childhood .

On DATE ORG overturned that judgment and denied the applicant ’s right to a residence permit . It considered that his asylum application had been rejected as manifestly ill - founded under LAW of LAW and that , therefore , in accordance with LAW , second sentence , of FAC , he could not be granted a residence permit prior to leaving GPE ( see paragraph CARDINAL below ) . The exception to this rule , foreseen in the third sentence of this paragraph , was not applicable because the applicant did not have a claim to a residence permit within the meaning of that provision ( see paragraph CARDINAL below ) .

First , a claim to a residence permit based on family ties under Sections CARDINAL et seq . of FAC was precluded by LAW of LAW due to the final expulsion order of DATE ( see paragraph CARDINAL below ) . Second , a claim to a residence permit on humanitarian grounds under LAW of LAW was proscribed because the applicant did not have a valid passport , which was a general requirement for the granting of a residence permit ( see paragraph CARDINAL below ) . As the decision to waive this requirement in cases concerning residence permits on humanitarian grounds was a discretionary one , the applicant did not have a claim to a residence permit within the meaning of LAW , third sentence , of FAC , not even if the margin of appreciation were reduced to CARDINAL ( see paragraph CARDINAL below ) . Third , the court found that the applicant could not base a claim to a residence permit on impediments to his return to his country of origin either , referring to the outcome of the asylum proceedings in DATE and DATE ( see paragraph CARDINAL above ) . ORG concluded that , under these circumstances , it was not decisive whether the ties between the applicant and his daughter were such that the requirements for a residence permit on humanitarian grounds under LAW § CARDINAL of LAW were met , if the applicant ’s asylum application had not been dismissed , and refrained from elaborating on this aspect .

On DATE the applicant lodged an action to be granted leave to appeal on points of law , arguing that his case raised a matter of fundamental importance . He submitted that he should be granted a residence permit under LAW § CARDINAL of LAW because , as the father of a minor child of NORP nationality for whom he had joint custody , he did , in principle , have a claim to a residence permit based on family ties . The purpose of LAW of LAW was to sanction abuse of the asylum procedure , but an abusive asylum application should not bear negative consequences where the foreigner had a claim , within the meaning of that provision , to a residence permit . In that regard , it should be decisive whether or not the substantive requirements of the respective provision for a residence permit were met , as in his case with regard to the permit based on family ties , and that the reason for the claim not being realised , in his case the final expulsion order against him , should not be relevant .

On DATE ORG rejected the applicant ’s action . It noted that , according to the case - law of the domestic courts , the exception foreseen in LAW , third sentence , of FAC only applied to claims that followed directly from legislative provisions and in respect of which all requirements , general and specific , were met . A residence permit based on family ties was precluded because of the final expulsion order against the applicant . Under these circumstances , granting a residence permit on humanitarian grounds was to be considered . However , as the applicant did not have a valid passport , which was a general requirement for the granting of a residence permit from which derogations were , in cases concerning LAW of LAW , possible only by way of a discretionary decision , the exception foreseen in LAW , third sentence , of FAC was not applicable . The decision was served on the applicant on DATE .

On DATE the applicant lodged a constitutional complaint with ORG , alleging that the decisions of ORG and of ORG violated his right to respect for his family life with his daughter . On DATE ORG declined to accept the applicant ’s constitutional complaint without providing reasons ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

After the Authority of GPE , on DATE , had ordered the applicant to present himself to ORG in GPE so that a passport for the upcoming expulsion could be issued , the applicant refused to do so and filed an action against this order with ORG . During the court hearing on DATE , the applicant and the immigration authorities agreed to the following :

“ - The effect of the re - entry ban will be limited to DATE after leaving GPE .

- The immigration authorities will give their consent for a visa to enter GPE based on family reunion . If the applicant by then still has joint custody with the child ’s mother , a residence permit on the grounds of family ties will be issued . If the applicant no longer has joint custody for his daughter , the immigration authority will use its discretion regarding the issue of a residence permit in favour of the applicant .

- All of this applies only if the applicant can show that he has not committed further criminal offences and if no other reasons for his expulsion emerge .

- A timelimit for leaving the country is set at DATE . ”

In the light of this agreement , the applicant withdrew his action , and the proceedings before ORG were discontinued .

On DATE ORG in GPE declared that it would not issue a passport to the applicant as long as the proceedings before this Court were pending . On DATE the applicant informed the immigration authorities that he would not leave GPE , contrary to his initial plans and to his declaration before ORG . As a result , the agreement concluded before that court became void .


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant in the first case , Mr Sergiy Valentynovych Malysh , is a NORP national , who was born in DATE and lives in PERSON ( “ the first applicant ” ) .

The applicant in the second case , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON ( “ the second applicant ” ) .

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

The applicants instituted separate sets of proceedings before the administrative courts claiming that their special pension and insurance payments had been wrongly calculated by the authorities . The courts rejected the ORG claims as unsubstantiated , finding that the impugned payments had been in accordance with the law and with due regard to the applicants’ specific circumstances . The final decisions were taken by ORG on DATE in the first applicant ’s case and by ORG on DATE in the second applicant ’s case . The applicants did not take part in the hearings on DATE and DATE respectively .

On DATE ORG refused to examine the first applicant ’s cassation appeal , finding that no cassation appeal lay against the appeal court ’s decision of DATE .

The applicants did not indicate the dates on which they were informed of the decisions in their cases .

On DATE the first applicant made submissions to the ORG from which it appeared that he intended to lodge an application under the ORG . By a letter of DATE , the ORG invited the first applicant to submit , by DATE at the latest , a duly completed application form together with copies of all relevant documents . The ORG ’s letter enclosed copies of the ORG , an official application form and the ORG ’s information note for persons wishing to apply to the ORG . On DATE the ORG received the first applicant ’s application form , in which he complained principally about the outcome and unfairness of the domestic proceedings in his case . By a letter of DATE , the ORG informed the first applicant that he had not complied with the requirements set out in Rule CARDINAL of ORG , as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies , in particular copies of his appeals . The first applicant was further informed that his complaints could not be examined by the ORG and that the DATE period referred to in LAW was interrupted only when a complete application was sent to ORG .

On DATE the second applicant sent an application form to the ORG , in which he complained about the outcome and alleged unfairness of the domestic proceedings in his case . On DATE the ORG received the second applicant ’s application . By a letter of DATE , the ORG informed the second applicant that he had not complied with the requirements of Rule CARDINAL of ORG , as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies , in particular copies of his claim and appeals . The second applicant was also informed that his complaints could not be examined by the ORG and that the DATE period referred to in LAW was interrupted only when a complete application was sent to ORG .

On DATE respectively the first and second applicants lodged new applications forms with the ORG concerning the same subject - matter as in their initial submissions . The applicants’ new applications enclosed copies of the domestic courts’ decisions and of the ORG claims and appeals . In his new application , the second applicant stated that , due to his age and poor state of health , claiming that he suffered from a disability , it had taken him a long time to get to the places where he could receive the help and information necessary for the preparation of his application to the ORG . He provided no further details or documents concerning his health problems or the alleged complications he faced in the preparation of his application .


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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 . They also argued that they did not have an effective domestic remedy to complain about the poor detention conditions .