CASE OF CHENGELYAN AND OTHERS v. BULGARIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicants were born in DATE and DATE respectively . They live in GPE , apart from FAC PERSON , who lives in GPE , GPE . Before her death in DATE , PERSON Hampartsum PERSON lived in GPE .

Ancestors of the applicants owned a plot of land measuring QUANTITY in the old part of GPE , which had a QUANTITY house built on QUANTITY of it . In DATE the building was declared a cultural monument . In DATE the property was expropriated and the ORG ancestors received compensation . After that , the building was the subject of substantial renovation work , in particular after a fire destroyed part of it in DATE .

After the adoption of ORG ( “ LAW ” ) in DATE ( see paragraph CARDINAL below ) , some of the applicants and other heirs of the original owners ( from whom the remaining applicants succeeded in the course of the domestic proceedings ) applied for the revocation of the expropriation . On DATE they were informed that their application had been refused by the mayor of GPE municipality , and on DATE they applied for judicial review of that refusal . In a judgment of CARDINAL DATE ORG upheld the administrative decision .

NORP However , in a final judgment of DATE ORG reversed . It found that the applicants’ property had been taken under legislation regulating expropriations made with a view to carrying out public works , namely expropriations intended to be followed by the construction of new buildings or infrastructure . The property in issue , however , had been declared a cultural monument , and had been expropriated to be used as such , thus the expropriation had been in breach of the law . The fact that no construction work had ever been envisaged had to be assimilated to a situation where no public works within the meaning of LAW had ever been commenced . In addition , the renovation work carried out after the expropriation did not represent “ public works ” either , as it had only aimed to preserve the building . Lastly , it was noted that the property still existed . All of those factors meant that the preconditions for restitution had been fulfilled . On this basis , ORG revoked the expropriation , quashing the mayor ’s refusal in that regard .

Following the above judgment , in order to make the restitution effective ( see paragraph CARDINAL below ) , on CARDINAL DATE the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of the expropriation . The parties disagreed as to whether the applicants had also received compensation in the form of other property at the time of the expropriation , and whether they had to return that as well .

In DATE the applicants obtained a notarial deed , which named them as the property ’s owners .

NORP Despite the events described above , the applicants could not take possession of the property , because it was being held and used by the GPE municipality , which in DATE had declared it a public municipal property and had rented a room in the building to an organisation called “ CARDINAL Centuries Bulgaria ” ORG ( “ the Fund ” , see paragraphs CARDINAL below ) .

After unsuccessfully attempting to negotiate an agreement , in DATE the applicants brought rei vindicatio proceedings against the GPE municipality and the ORG . The action was dismissed by a final judgment of ORG DATE . In the first place , the domestic courts found that they were competent to examine the action . According to the second - instance ORG , the judgment of DATE was open to indirect judicial review , because it was replacing the mayor ’s administrative decision on the ORG request for restitution , and did not have a res judicata effect in proceedings specifically concerning the right to property . According to ORG , the defendants to the rei vindicatio action , namely the GPE municipality and ORG , had not participated in the earlier judicial proceedings and therefore were not bound by the judgment of DATE .

Next , the domestic courts found that the reparation work carried out on the building which the applicants were claiming had been so substantial ( the building ’s appearance had been preserved , but the internal construction had been largely modified – the roof , some windows and other elements had also been replaced ) that , within the meaning of LAW , it could not be said that the building still existed . In addition , the property was being used for the purpose for which it had been expropriated , namely as “ a cultural monument ” , which , in the courts’ view , constituted “ public works ” within the meaning of the same LAW . Accordingly , none of the preconditions for restitution had been satisfied .


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

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

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

At the time of the events giving rise to the application , the applicant worked as a teacher at a state school in GPE .

On DATE a disciplinary investigation was started against the applicant following allegations that he did not have the book of guidelines for teachers to hand during a class inspection , that he did not prepare lesson plans and that he had addressed his hierarchical superior using the secondperson singular instead of the second - person plural , which is deemed more acceptable for the purposes of politeness in the LANGUAGE language .

On DATE , the applicant was requested to submit his defence statements against those allegations . On DATE , the applicant submitted , inter alia , that he should not be held responsible for not having the book of guidelines for teachers since it had been the school administration ’s responsibility to supply the teachers with the necessary materials and the administration had failed to do so . Concerning lesson plans , he stated that there had not been an obligation on his part to prepare them . He also submitted that he had not addressed the principal in the second person singular .

On DATE , the applicant received a disciplinary sanction in the form of a reprimand in respect of those allegations pursuant to section CARDINAL ) of LAW .

On an unspecified date the applicant lodged an objection with ORG , asking for the reprimand to be revoked . This was dismissed on DATE , in a decision which was not amenable to judicial review .

On DATE , at the applicant ’s request , the reprimand was removed from the applicant ’s service records pursuant to section CARDINAL of LAW .

A full description of the relevant domestic law at the material time can be found in ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Section CARDINAL of the Civil Servants Act catalogues certain acts and misconduct according to the disciplinary sanction to which they give rise . Accordingly , section CARDINAL(B ) defines blameworthy behaviour in carrying out tasks or orders in an incomplete or late fashion , or not carrying out the necessary procedure or failing to maintain , properly use or care for official equipment as misconduct requiring a reprimand , whereas section CARDINAL(C ) defines the same behaviour , when it is deliberate , as misconduct that requires the sanction of salary reduction . Section CARDINAL(B ) defines being disrespectful to a superior while on duty as an act that requires a reprimand , whereas section CARDINAL(C ) defines speaking disrespectfully to a superior as an act that requires the sanction of salary reduction . Likewise section CARDINAL(D ) punishes any display of humiliating behaviour towards a superior with deferral of promotion to a higher rank for a minimum of DATE and a maximum of DATE . Furthermore , a civil servant will receive a heavier sanction if he repeats misconduct for which he has previously received a disciplinary sanction during the period for which the sanction remains on his service record . Finally , the list of acts and misconduct in section CARDINAL is not exhaustive in so far as it is provided that acts comparable to those listed under this section will be punished with a disciplinary sanction appropriate to the gravity of the offence .


Damage - claim dismissed (Article 41 - Pecuniary damage);Damage - award (Article 41 - Pecuniary damage)

Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Isabelle Berro-Lefèvre;Jean-Paul Costa;Luis López Guerra;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The first applicant , PERSON , was born in DATE and lives in GPE ( GPE ) . He is a stateless person . The second applicant , PERSON , is a NORP citizen . She was born in DATE and lives in LOC ( GPE ) . The third applicant , Mr PERSON , was born in DATE and is currently living in GPE . He is a citizen of GPE . The fourth applicant , Mr PERSON , was born in DATE in GPE . According to the most recently available data , he is a NORP citizen . He currently lives in GPE . The fifth applicant , Mr PERSON , was born in DATE . He lives in GPE and is a NORP citizen . The sixth applicant , Mr PERSON , was born in DATE . According to the Government , he is a NORP citizen . His exact whereabouts are unknown .


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

The applicants were born in DATE and live in GPE .

On DATE the applicants started labour - law litigation concerning their resignation and its legal and pecuniary consequences . On CARDINAL DATE ORG gave judgment , partly finding for the plaintiffs . On appeal , on DATE ORG reversed part of the decision . On DATE the GPE upheld the second - instance decision .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

The facts of the case may be summarised as follows .

The applicant arrived in GPE on DATE and thereafter lived illegally at an address in GPE .

Whilst living in GPE the applicant successfully applied for CARDINAL jobs using a false NORP passport . DATE and DATE he was employed by a recruitment agency . DATE and DATE he was employed in a cash and carry business and DATE and DATE he was employed as a forklift truck driver .

The applicant had used the false passport to support his assertion that he was entitled to work in GPE . All of his employers subsequently stated that they would not have employed him had they known of his true immigration status . DATE and DATE the applicant earned a total gross salary of MONEY ( GBP ) from his employment . At DATE he had total savings of GBP CARDINAL .

In DATE the applicant applied to the Driving and ORG for a provisional driving licence . The application was accompanied by the same false NORP passport that the applicant had used to obtain employment in GPE . When the falsity of the passport was discovered , the police were informed .

On DATE the applicant pleaded guilty in ORG at GPE to CARDINAL counts of dishonestly obtaining a pecuniary advantage by deception ( counts CARDINAL , CARDINAL on the indictment ) . He also pleaded guilty to CARDINAL count of having a false identity document with intent ( count CARDINAL ) , CARDINAL count of driving whilst disqualified ( count CARDINAL ) and CARDINAL count of driving a motor vehicle without insurance ( count CARDINAL ) . On DATE the applicant was sentenced to concurrent terms of CARDINAL months’ imprisonment for the first CARDINAL counts together with a consecutive sentence of CARDINAL months’ imprisonment for the offence of driving whilst disqualified . No separate sentence was imposed for driving without insurance . The trial judge also recommended the applicant for deportation .

In addition to the custodial sentence and the recommendation for deportation , the prosecution sought a confiscation order under section CARDINAL of the Proceeds of Crime Act DATE in respect of the applicant ’s earnings ( see relevant domestic law and practice below ) . The trial judge accepted that the applicant had paid all the tax and national insurance due on his earnings and that the money he had made from his employment had been truly earned . After deducting tax and national insurance payments , it was calculated that the benefit the applicant received from his earnings was GBP CARDINAL . It was agreed that of the GBP CARDINAL,CARDINAL the applicant still had assets of ORG . On this basis , on DATE the trial judge imposed a confiscation order in the sum of ORG upon the applicant , with a consecutive sentence of CARDINAL months’ imprisonment to be served in default of payment . Thus , the confiscation order had the effect of depriving the applicant of all of the savings that he had accumulated during DATE of employment .

On DATE the applicant sought an extension of time within which to appeal to ORG against the imposition of the confiscation order . In his grounds of appeal , he contended that the grant of the confiscation order had not respected “ NORP law ” . That application was refused on DATE . The Single Judge noted that the applicant had failed to establish good reason for the extension of time sought and that he had no arguable grounds of appeal because he had benefited from the use of the false passport to the extent that it had enabled him to work and earn money and there had been no breach of his rights under the Convention .

The applicant renewed his application before ORG which , on DATE , granted him an extension of time and leave to appeal . Leading counsel was appointed on his behalf . Counsel initially argued first ; that the applicant ’s earnings were not a relevant benefit from criminal conduct within the meaning of LAW DATE ; and secondly , that the prosecutor ’s decision to seek a confiscation order in this case constituted an abuse of process .

The Court of Appeal heard part of the appeal on DATE . However , it decided to adjourn the appeal pending the publication by ORG ( “ the ORG ” ) of guidance for prosecutors on the circumstances under which a confiscation order could be sought .

In a supplementary skeleton argument dated DATE , counsel for the applicant accepted that in light of the decision in R v. PERSON and Others [ DATE ] PERSON ( see relevant domestic law and practice below ) , the court was bound to reject the first ground of appeal , namely that the applicant ’s earnings were not a relevant “ benefit ” . He therefore accepted that the issue on appeal was whether it was oppressive and therefore an abuse of process for the ORG to seek and the court to impose a confiscation order for what amounted to the applicant ’s entire savings over DATE of genuine work . In this regard , counsel submitted that there would be an abuse of process where , on a correct application of the law to the facts , the resulting “ benefit ” figure yielded a disproportionate or oppressive result . He further noted that ORG has intended LAW DATE to be applied in a manner compatible with the requirements of the Convention . Therefore , in light of LAW No . CARDINAL , in order to remain proportionate the application of the confiscation regime had to remain rationally connected to the public interest aims pursued and go no further than necessary to achieve them . It was therefore submitted that to seek the imposition of a confiscation order on the basis of a benefit figure which far exceeded the value of the defendant ’s crimes could properly be described as disproportionate – either in the traditional sense used in criminal sentencing ( “ not fitting the punishment to the crime ” ) or in the language of LAW and was therefore an abusive exercise of jurisdiction .

The applicant further submitted that a confiscation order could be described as oppressive where it did not pursue any of the legitimate aims of the confiscation regime and/or did not further the Parliamentary intent of stripping defendants of the proceeds of crime . He reiterated that ORG had intended the legislation to be compatible with the ORG .

On DATE , after the ORG guidance had been promulgated ( see relevant domestic law and practice below ) , ORG held that the decision to seek a confiscation order against the applicant did not constitute an abuse of process . The court therefore dismissed the applicant ’s appeal against the order . In reaching this conclusion , ORG said that the guidance represented a fair analysis of the effect of previous ORG and ORG decisions on the confiscation order regime .

The court stated :

“ Abuses of the confiscation process may occur and , when they do , the appropriate remedy will normally be a stay of proceedings . However an abuse of process can not be founded on the basis that the consequences of the proper application of the legislative structure may produce an ‘ ORG result with which the judge may be unhappy . Although the court may , of its own initiative , invoke the confiscation process , the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown . When it does so , the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute . The just result of these proceedings is the result produced by the proper application of the statutory provisions as interpreted in ORG and in this court . However to conclude that proceedings properly taken in accordance with statutory provisions constitute an abuse of process is tantamount to asserting a power in the court to dispense with the statute .

As a matter of principle , that is impermissible , and this court has said so . This , in R v. PERSON [ DATE ] CARDINAL CAR ( S ) CARDINAL , it was observed :

‘ This jurisdiction must be exercised with considerable caution , indeed sparingly . It must be confined to cases of true oppression . In particular , it can not be exercised PERSON simply on the grounds that the judge disagrees with the decision of the ORG to pursue confiscation , or with the way it puts its case on that topic.’

We repeat what was said at an earlier hearing involving PERSON .

‘ The abuse of process jurisdiction is one which needs to be exercised with great circumspection . The jurisdiction can not be converted on a case by case basis into a structure which involves , on proper analysis , something like wholesale undermining of the statutory provisions . It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly LAW ”

ORG found that applicant ’s case could not be distinguished from its previous ruling in R v PERSON and Others ( see relevant domestic law and practice , paragraph CARDINAL below ) . It concluded :

“ The reality is that throughout the period of his employment [ the applicant ] was relying on a continuing dishonest representation to CARDINAL different employers . He deceived them into thinking that he was entitled to obtain employment with them . That was a crucial element of his criminality . His earnings , of course , reflected the fact that he had done the necessary work , as we shall assume , to the satisfaction of his various employers . But the opportunity for him to do so , that is the pecuniary advantage , was unlawfully obtained . If the employee worked to his employer ’s satisfaction , and he paid his tax and ORG contributions on his earnings , and his deception either lacked any significant wider public interest , or , perhaps because of the passage of time , but for whatever reason , had ceased to have any meaningful effect on his ORG decision to continue his employment , the resolution of the issue might well be different . As it is there was here a wider public interest . The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity . No basis for interfering with the order made in ORG has been shown . In our judgment the appropriate link between the appellant ’s earnings and his criminal offences , in the context of the wider public interest , was plainly established . The appeal therefore fails . ”

On DATE the ORG refused to certify a point of law of general public importance which ought to be considered by ORG .

Enforcement proceedings have since been instigated against the applicant .

On DATE the applicant applied for asylum in GPE , alleging that his father had been killed in a land dispute between the PERSON and PERSON community and that he would be at risk in GPE owing to his PERSON ethnicity . On DATE his application was refused by the Secretary of ORG for ORG , who found no objective evidence that the PERSON were targeted solely on account of their ethnicity , and that the delay in claiming asylum had adversely affected the credibility of the rest of the applicant ’s claim . A deportation order made by the Secretary of ORG was served on the applicant on DATE . On DATE the applicant brought judicial review proceedings challenging the refusal of asylum and the decision to make a deportation order . This application was refused by ORG on DATE as the application had been lodged out of time and , in any event , the applicant had failed to avail himself of his statutory appeal rights by applying to the then ORG . His renewed application for judicial review was rejected by ORG on DATE . However , it appears that on DATE the applicant submitted a notice of appeal to ORG . This was rejected by the ORG on DATE as out of time .


Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

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


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

The applicant was born in DATE and lives in GPE .

He was the chairman of ORG .

In DATE the applicant sold his car to a certain GPE , who encountered a number of technical problems with it .

On DATE GPE contacted the applicant and they agreed to meet on DATE . During the meeting GPE expressed his dissatisfaction with the car and requested that the applicant return his money and take the car back . The applicant got angry , started to insult GPE and then assaulted him together with a certain C.

A passer - by intervened and stopped the altercation . GPE reported the incident to the police on DATE .

On DATE criminal proceedings were instituted against the applicant by ORG under LAW ( hooliganism ) of LAW . The investigator ’s decision stated that at TIME on DATE the applicant and a certain C. had insulted and assaulted GPE on the street in GPE .

On DATE the police compiled a record of the applicant ’s arrest as a suspect .

On DATE the applicant was charged under Articles CARDINAL ( deliberate infliction of less serious injury to health ) and CARDINAL ( hooliganism ) of LAW .

On DATE ORG , relying on the charges brought against the applicant and an application from the prosecutor to apply the preventive measure of remanding the applicant in custody , ordered his detention pending trial for DATE . The court justified the application of the preventive custodial measure by the gravity of the offences imputed to him , the risk of his reoffending and the likelihood that he might abscond if released .

On DATE the applicant appealed against that decision , stating that there was no justification for the application of the preventive measure of remand in custody and that the court had failed to substantiate the necessity for his detention pending trial . He also submitted that the court had failed to take account of his personal situation and to consider the possibility of another preventive measure , such as house arrest or release on bail .

On DATE ORG dismissed the appeal , finding that there were no grounds to quash the first - instance decision .

On DATE the prosecutor in charge of the criminal case applied to the court for an extension of the applicant ’s pre - trial detention for a period of one month . He submitted that more time was needed to complete the investigation .

On DATE ORG extended the applicant ’s detention pending trial by DATE , until DATE . The court justified its decision by the need for more time to carry out further investigative actions , the complexity of the criminal case and the likelihood that the applicant might abscond and obstruct the investigation if released .

On DATE the applicant appealed against that decision , arguing that the first - instance court had failed to substantiate its decision on his continued detention .

On DATE ORG upheld ORG decision of CARDINAL DATE .

No further extension decisions are available in the case file .

On DATE ORG found the applicant guilty on all counts and sentenced him to CARDINAL years’ imprisonment .

NORP The applicant was released from serving the remainder of his sentence by a presidential pardon issued on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants are NORP citizens whose details are tabulated in the Appendix .

The applicants brought court actions against the authorities , seeking to recover the monetary value of the ORG promissory notes for purchasing of NORP - made cars . On the dates listed in the Appendix the domestic courts granted their actions and awarded them different amounts in compensation , payable by ORG . The judgments were upheld on appeal and became final on the dates listed below . They remained unenforced .

On various dates the supervisory review courts , upon applications from ORG and by way of supervisory - review proceedings , quashed the first - instance and the appeal judgments in the applicants’ favour , re - examined the cases and dismissed the applicants’ respective actions , having found that the lower courts had incorrectly interpreted and applied the domestic law .


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Georges Ravarani

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She had been granted legal aid and was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

On DATE the applicant , together with her friend PERSON and ORG ’s minor son PERSON , attended a recording of the DATE television show “ Celebrity Duets ” ( PERSON duetai ) . The show was a singing competition in which celebrity duets were assessed by a CARDINAL - member judging panel . The head judge was a well - known opera singer , GPE The panel also included another musician , GPE

NORP That evening after the show , GPE received a message on his personal mobile telephone with the following text :

“ I want to tell you this right now ! You did n’t have problems – you will now ! We have warned you ! ! ! Do n’t you think that you live and have protection , moron ! I repeat , this is your last warning ! I ’ll give you time to enjoy your life , if you want to have a family and not coffins , this is not a joke , PERSON ! Godmother ! ! ! We have warned you ! We are watching you ! Good luck . Until the next time , if you ’re still alive . ”

( “ ORG noriu pasakyti ! neturėjot problemu ju bus ! mes gi jus ispejom ! ! ! ar jums neatrodo , ORG gyvenat , apsauga turi glusai ! kartoju paskutinis buvo ispejimas ! duodu laiko dziaugtis gyvenimu jei nori tureti seima o ne karstus cia nejuokai ponas soliste ! kriksto mama ! ! ! perspejom ! mes jus stebim ! sekmes . iki kito karto jei gyvas dar busit . ” )

V.J. informed the police that he had been threatened and the police opened a pre - trial investigation . It was discovered that the mobile telephone from which the message had been sent belonged to PERSON ( see paragraph CARDINAL above ) . On an unspecified date his mother PERSON was questioned as a witness and stated that PERSON had lost his mobile telephone sometime around CARDINAL May CARDINAL .

On CARDINAL DATE the applicant was questioned as a witness . She stated that she had attended several recordings of “ Celebrity Duets ” but could not remember the exact dates . She confirmed that she had gone there once with NORP and PERSON and that PERSON had had a mobile telephone with him , but the applicant had not paid attention to where PERSON had left it . She stated that she had not taken the telephone or sent any text messages from it . The applicant also said that she had heard from A. that a text message had been sent to GPE from PERSON ’s telephone ; however , the applicant stated that she did not have ORG telephone number and had never called or texted him .

On an unspecified later date PERSON ’s telephone was found in the possession of another individual , PERSON told the police that the telephone had been given to him by the applicant , who was his friend .

On DATE the applicant was taken to a police station and served with an official notice ( pranešimas apie įtarimą ) stating that she was suspected of threatening to kill or seriously injure PERSON , under Article CARDINAL § CARDINAL of LAW ( see paragraph DATE below ) . The notice listed the suspect ’s rights under LAW , including the right to a lawyer . The applicant signed the notice to confirm that she had received it and that her rights had been explained to her . She also signed another notice which reiterated her right to a lawyer ( teisės turėti gynėją išaiškinimo protokolas ) , on which she wrote that she did not need a lawyer during questioning . She also signed a notice confirming her decision to refuse a lawyer ( protokolas dėl gynėjo atsisakymo ) , on which she also wrote that she did not need a lawyer during questioning . The latter notice indicated that the refusal did not prevent the applicant from requesting a lawyer at any later stage in the proceedings ( see Relevant domestic law in paragraph CARDINAL below ) .

On DATE the applicant was questioned by the police and confessed to having sent the aforementioned text message to GPE She stated that she was a fan of the singer PERSON , a participant in “ Celebrity Duets ” . On DATE V.J. , as the head judge , had given negative feedback about R. ’s performance . The applicant claimed that she had felt insulted and upset by ORG comments , so she had taken an unknown mobile telephone from her table and sent him the text message . She had known ORG telephone number from before , although she could not remember how she had obtained it . The applicant stated that she had not known whose mobile telephone it had been , but she had put it in her purse and forgotten about it until much later , when she had found it again and given it to her friend PERSON She also said that she had thrown away the ORG card at some point . The applicant stated that during her previous questioning she had given a different statement because she had understood that she had done wrong and had been scared to admit it . She was sorry for the incident and wanted to apologise to GPE

The applicant also provided a handwritten confession in which she reiterated the essential details of her statement .

On DATE the applicant was served with a revised notice stating that she was suspected of threatening to kill or seriously injure GPE , under LAW . She requested a lawyer and the police called for a ORG - appointed lawyer to represent her . She was then questioned in the presence of that lawyer . The applicant withdrew the statement and confession she had given on DATE ( see paragraph CARDINAL above ) , stating that she had confessed because of “ the instructions and persuasion of [ police ] officers ” ( pareigūnų nurodymu ir įkalbinėjimais ) . She stated that the statement she had given on CARDINAL DATE was the correct one ( see paragraph CARDINAL above ) and that she would give further evidence at trial .

On DATE the applicant was charged with threatening to kill or seriously injure GPE , under LAW . The case was transferred to LAW for examination on the merits .

The applicant was represented by a ORG - appointed lawyer at all levels of court .

On DATE the FAC held an oral hearing . When questioned by the court , the applicant denied having sent the text message to GPE She stated that she was a fan of the singer NORP and that on CARDINAL DATE she and her friend PERSON had been invited to attend the recording of “ Celebrity Duets ” by GPE , another member of the judging panel on the show ( see paragraph CARDINAL above ) . The applicant stated that PERSON ’s son PERSON had had a mobile telephone , which at CARDINAL point he had left on the table where she and A. had been sitting . The applicant stated that she had not touched the telephone , but an unknown man had approached them and asked to use a telephone ; they had allowed him to use PERSON ’s telephone and the man had written a text message on it . The applicant submitted that she had later taken PERSON ’s telephone from PERSON and given it to ORG , because she and PERSON had thought that PERSON might have sent the text message to GPE The applicant further stated that on DATE ( see paragraph CARDINAL above ) she had confessed because police officers had threatened her . She submitted that her statement of CARDINAL DATE ( see paragraph CARDINAL above ) was correct , with the clarification that PERSON ’s telephone had been used by the unknown man .

The court heard evidence from several other witnesses . The applicant ’s friend PERSON essentially corroborated the applicant ’s statements ( see paragraph CARDINAL above ) . The applicant ’s friend PERSON repeated that the applicant had given him PERSON ’s telephone sometime back in DATE ( see paragraph CARDINAL above ) . The musician and member of the judging panel PERSON stated that he knew PERSON because she was his dentist and that he had seen the applicant in GPE ’s office a few times . He stated that PERSON had previously asked him to give better scores to the singer NORP and that he had passed that request on to GPE , although the latter could not be persuaded . PERSON believed that NORP and NORP were friends , also stating that he had once seen NORP with the applicant .

The court also heard evidence from QUANTITY police officers who had been present at different stages of the applicant ’s questioning . They stated that the applicant had been duly informed of her rights , including the right to a lawyer , but that she had not requested CARDINAL until DATE ( see paragraphs CARDINAL and CARDINAL above ) . The officers denied having put any pressure on the applicant to confess or to give any particular evidence .

On DATE the GPE City ORG found the applicant guilty of threatening to kill or seriously injure PERSON , under Article CARDINAL § CARDINAL of LAW . The court noted that during the pretrial investigation and trial the applicant had changed her version of events several times , and that her latest version including an unknown man could not be confirmed “ by any evidence ” ( byloje nėra jokių įrodymų apie tokios situacijos buvimą ) . The court considered that there were no grounds for doubting the accuracy of her confession ( see paragraph CARDINAL above ) because her claims of pressure by police officers had not been proven .

The applicant was ordered to stay at home from TIME for DATE and to find a job or register at an employment office . The court also awarded ORG litai ( ORG , MONEY ( ORG ) ) in non - pecuniary damages .

The applicant appealed against the judgment , arguing that she had not committed the criminal offence and that the text message had been sent by an unknown man ( see paragraph CARDINAL above ) . However , on CARDINAL DATE ORG dismissed her appeal and upheld the conviction . The court referred , in particular , to PERSON testimony concerning the connection between the singer NORP and the applicant ’s friend PERSON , and emphasised the fact that the mobile telephone had been disabled immediately after the message had been sent – it considered that these circumstances demonstrated a direct intent to threaten GPE after the recording of the show . The court also held that witness testimony and other material in the case file sufficiently proved the applicant ’s guilt . However , it reduced the amount of non - pecuniary damages to LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) , having regard to the nature of the criminal offence and the applicant ’s financial situation .

ORG did not address the question of whether the applicant had been pressured by police officers to refuse a lawyer and to confess ; it appears from the judgment that the applicant did not raise that question in her appeal .

The applicant submitted an appeal on points of law to ORG , in which she alleged , inter alia , that her defence rights had been violated . On DATE she was informed that the court would examine her appeal on DATE and would pronounce its judgment on DATE .

On DATE ORG dismissed the applicant ’s appeal on points of law . In respect of her complaint concerning her defence rights , the court noted that the case file contained written documents with the applicant ’s signatures , which had been drawn up in line with the relevant domestic law ( see paragraph CARDINAL below ) . This showed that the applicant had been informed of her right to a lawyer and had decided not to exercise it . The court also noted that the applicant had availed herself of her right to a lawyer during questioning on DATE and at all subsequent stages of court proceedings ( see paragraphs CARDINAL and CARDINAL above ) . Accordingly , it considered that there were no grounds for finding that the applicant ’s right to a lawyer had been restricted at any point .

The applicant did not attend the pronouncement of the judgment . She submitted that she had received a copy of it sometime after DATE .

The relevant part of LAW reads :

It shall be prohibited to compel anyone to give evidence against himself , or his family members or close relatives .

A person suspected of committing a crime , as well as the accused , shall be guaranteed , from the moment of his apprehension or first interrogation , the right to defence , as well as the right to an advocate . ”

At the material time , the relevant provisions of LAW read :

“ CARDINAL . A suspected , accused or convicted person has defence rights , [ which ] shall be ensured from the moment of their detention or first questioning .

NORP The court , prosecutor or investigating officer must ensure that the suspected , accused or convicted person has the opportunity to defend him or herself by the means prescribed by law ... ”

“ CARDINAL . A lawyer must be present in the following situations :

CARDINAL ) where the suspect or the accused is a minor ;

CARDINAL ) where the case concerns a person who is blind or deaf , or because of a physical or mental impairment can not exercise his or her defence rights ;

CARDINAL ) where the case concerns a person who does not understand the language of the proceedings ;

CARDINAL ) where there are conflicts of interest between different suspects or the accused and CARDINAL of them has a lawyer ;

CARDINAL ) where the case concerns a crime for which a life sentence may be given ;

CARDINAL ) where the case is being examined in the absence of the accused , as provided for by LAW of this Code ;

CARDINAL ) where the suspect or the accused is in detention ;

CARDINAL) where a decision is to be taken whether to extradite a person or transfer him or her to ORG or [ another ORG ] under a NORP Arrest Warrant ;

CARDINAL ) where the case is being examined by way of accelerated procedure . ”

“ CARDINAL . A suspect or an accused can waive his or her right to a lawyer at any stage of the proceedings ... The right to a lawyer may only be waived at the initiative of the suspected or accused person . The waiver of the right to a lawyer must be recorded in a written report .

NORP The investigating officer , prosecutor or court is not bound by the waiver of the right to a lawyer where [ it ] has been submitted by a minor or by a person who can not exercise his or her defence rights because of a physical or mental impairment , by a person who does not understand the language of the proceedings , or by a person who is suspected or accused of committing a serious or very serious crime and the case is complex or large - scale , or there are any other reasons raising doubts as to his or her ability to defend him or herself .

Waiving the right to a lawyer does not preclude the suspected , accused or convicted person from having a lawyer at any later stage of the proceedings . ”

At the material time , Article CARDINAL § CARDINAL of LAW read :

“ CARDINAL . Anyone who threatens to kill or seriously injure another person , where there is sufficient basis for believing that the threat may be carried out , shall be punished by community service , a fine , restriction of liberty , detention or imprisonment of DATE .

At the material time , LAW provided that all judgments of ORG must be served on the parties to the proceedings .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

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

The applicant was arrested on DATE . His identity papers proved to be forgeries . On DATE the ORG ( ORG ) issued an arrest warrant against the applicant based on possession of forged documents .

On DATE ORG took over the investigation . On DATE ORG ( ORG ) quashed the arrest warrant and issued a fresh arrest warrant based , inter alia , on the suspicion of membership of a foreign terrorist organisation ( ORG , ORG ) .

On DATE ORG rejected the applicant ’s appeal against the arrest warrant .

On DATE , DATE and DATE ORG upheld the arrest warrant and ordered that the applicant ’s detention be continued .

On DATE ORG issued a new arrest warrant . According to the new warrant , the applicant was strongly suspected of having played a leading role in the activities of a foreign terrorist organisation , and of having committed CARDINAL counts of murder and CARDINAL counts of attempted murder . The applicant had , in particular , telephoned witness PERSON from GPE to instruct him to carry out a terrorist attack which took place in GPE on DATE and in which CARDINAL policemen were killed . The applicant was further suspected of having ordered several terrorist attacks carried out by detonating explosives in GPE DATE .

On DATE ORG ordered the extension of the applicant ’s detention .

On DATE ORG lodged a bill of indictment against the applicant comprising CARDINAL pages plus a list of evidence covering another CARDINAL pages , based on the same grounds as the arrest warrant dated DATE .

On DATE ORG ordered the applicant ’s continued detention .

On DATE ORG ( Oberlandesgericht , no . III-CARDINAL STS CARDINAL/CARDINAL ) , sitting as a first instance court for proceedings concerning ORG security , decided to open the trial against the applicant . The hearing started on DATE and took place on DATE .

On DATE witness PERSON was heard by a court in GPE in the presence of all parties to the proceedings .

On DATE , after DATE of court hearing , ORG quashed the arrest warrant insofar as it had been based on the suspicion that the applicant had ordered the attack which had taken place in GPE on DATE and ordered the applicant ’s continued detention based on the remaining grounds of the arrest warrant . ORG considered that witness PERSON , relied upon by the prosecution , had not confirmed the testimony he had given to the NORP authorities in DATE . Conversely , he had stated that he had been tortured by NORP civil servants and had been forced to sign a prepared protocol . He did not know the applicant . Under these circumstances , no strong suspicion persisted that the applicant had ordered the above - mentioned criminal act .

ORG considered that the applicant remained under strong suspicion of having committed the other crimes of which he was accused . There was , in particular , sufficient documentary and witness evidence supporting the allegation that the applicant , as a leading member of a terrorist organisation , was responsible for causing explosions and committing other criminal acts . ORG inter alia referred to the TIME and decisions of the founding congress which established that the applicant had been elected as a member of the central committee of the DHKP - C in DATE .

The Court of Appeal further considered that the applicant might abscond and that there was a risk of collusion . The court observed that the applicant , who had been residing illegally in GPE , had neither a fixed residence nor sufficient social ties to ensure his appearance before the court . There were thus no milder means available to secure his presence at the trial .

The Court of Appeal further considered that the proceedings were expedited as required in cases involving pre - trial detention . ORG included a detailed account of the trial , explaining that on several occasions witnesses could not be questioned by the court because they exercised their right not to testify . The court had heard testimony from CARDINAL witnesses and was then hearing CARDINAL further witnesses . In order to establish whether the applicant had committed the crimes of which he had been accused , testimony from NORP witnesses was of paramount importance . Accordingly , ORG had to make several enquiries by way of letters rogatory in GPE .

On DATE ORG ( ORG ) rejected the applicant ’s complaint . ORG confirmed that the applicant remained under strong suspicion of having ordered several explosions causing injuries and death . The court further confirmed that the danger of the applicant ’s absconding , and of collusion , remained . The continuation of his detention was not disproportionate in view of the importance of the subject matter and of the considerable punishment to be expected in case of a criminal conviction . Furthermore , the length of the proceedings was due to their complexity , as had been set out in detail by ORG .

On DATE ORG ( Bundesverfassungsgericht , no . CARDINAL BvR CARDINAL/CARDINAL ) refused to consider the applicant ’s complaint against the decisions of DATE and CARDINAL DATE , without giving further reasons .

On DATE witness FAC and CARDINAL further witness were heard in GPE .

On DATE the ORG extended the arrest warrant on the grounds that there was again a strong suspicion that the applicant had ordered the attack during which CARDINAL policemen were killed in GPE in DATE . This assessment was , in particular , based on testimony given by witness PERSON , who had stated that PERSON had informed him in DATE that the applicant had given him the order to carry out the attack against the policemen . ORG considered that this statement was consistent and credible . Furthermore , there was corroborative evidence from witnesses who had confirmed that the applicant held a leading position in the terrorist organisation at the relevant time .

The Court of Appeal further found that there remained a strong suspicion that the applicant had committed the other crimes of which he was accused . Referring to its previous decisions , ORG considered that the danger of the applicant ’s absconding persisted . This danger had further been aggravated by the fact that ORG had , in the meantime , allowed the applicant ’s extradition to GPE . According to an intelligence report dating from DATE , a leader of the terrorist organisation had ordered that the applicant be taken out of the country immediately if released from detention . It was furthermore known that the terrorist organisation had the necessary means to put this plan into action .

ORG finally considered that the prolongation of the pre - trial detention was not disproportionate , having regard to the importance of the subject matter and to the seriousness of the penalty to be expected in case of a criminal conviction .

On DATE witness PERSON was once again heard in GPE .

On DATE , on DATE of the hearing , ORG closed the hearing of evidence and heard the prosecutor ’s pleadings . Upon defence counsel ’s request , the hearing of evidence was reopened and ORG limited the charge to CARDINAL counts of murder committed in DATE , while discontinuing the proceedings concerning the other charges originally brought against the applicant .

On DATE ORG convicted the applicant of CARDINAL counts of murder and sentenced him to life imprisonment . On the basis of the evidence presented during the hearing , ORG found it established that the applicant had ordered the assassination of the policemen by telephone from GPE at DATE . The court primarily based the applicant ’s conviction on testimony from witness ORG further considered that this finding was in line with the command structure inside the terrorist organisation and was not called into question by PERSON ’s allegations that he did not know the applicant . During his hearing before the NORP court , PERSON had refused to make any more specific statements . Under these circumstances , the vague statement that the applicant did not have anything to do with the attack was not sufficient to call PERSON ’s testimony into question .

ORG finally considered that the length of detention and of the main hearing did not violate the applicant ’s rights under LAW . The specific circumstances of the instant case did not allow for an earlier termination of the proceedings . This was due to the extent and the complexity of the criminal charges . Apart from CARDINAL counts of murder , of which he had been convicted , the applicant had been accused of holding a leading role in a foreign terrorist organisation and of having participated in causing a considerable number of explosions in GPE . The case - files consisted of CARDINAL large volumes . As the applicant had been arrested by chance , the examination of the relevant facts could begin only after his arrest . The NORP authorities had submitted a large number of documents such as expert opinions , sketches and records of witness testimony , which had to be translated and examined before the issue of the indictment on DATE . Due to the volume of the case - file and to the complexity of the subject matter , the main proceedings could not be opened before DATE . During the hearing , the progress of the taking of evidence had been determined by several requests by letters rogatory to the NORP authorities . Members of the court and representatives of the parties travelled to GPE CARDINAL times in order to attend the hearing of witnesses before NORP courts . Each taking of evidence by letters rogatory took considerably DATE . Following this , the taking of evidence was closed on DATE , but re - opened altogether CARDINAL times at the request of the defence . The reading out of the applicant ’s last word alone took DATE .

On DATE ORG quashed the judgment of ORG and remitted the case to another Chamber of that court . ORG considered that the assessment of the evidence by ORG had been erroneous as that court had wrongly assumed that the testimony given by PERSON on the circumstances of his alleged conversation with PERSON was consistent and without contradictions .

ORG further considered that it could not be ruled out that this error had been decisive for ORG in reaching its verdict . There were further reasons to review critically S.G. ’s testimony . Firstly , PERSON had not directly witnessed the applicant ordering the attack , but was merely a hearsay witness . Furthermore , the witness was not heard by the trial court , but by a NORP court at the trial court ’s request . Finally , PERSON , who had been arrested in GPE in DATE , had collaborated with the NORP police and had thus benefited from a milder sentence and early release from prison .

On DATE ORG ( no . IIICARDINAL STS CARDINAL/CARDINAL ) ordered the applicant ’s continued detention . The further detention was justified because the applicant was under strong suspicion of having committed a serious crime and because there was the risk that he might abscond . That court considered that the applicant remained under strong suspicion of having ordered the attacks carried out on the policemen on DATE . This was not called into question by ORG decision to quash the judgment . The potential contradictions in the statements made by witness PERSON had to be examined in the new main proceedings . ORG further considered that there were no milder means available to secure the applicant ’s appearance before the court and that the length of his detention was not yet disproportionate . The fact that ORG had quashed the judgment of ORG did not lead to a violation of the obligation to expedite the proceedings , as there was no obvious procedural error . Furthermore , ORG had respected the obligation to expedite the proceedings by preparing the requests for letters rogatory in order to begin the main hearing by DATE or DATE .

On DATE ORG rejected the applicant ’s complaint . That court confirmed that the applicant remained under strong suspicion of having ordered the attack in GPE . This suspicion was primarily based on testimony given by witness LOC during the main hearing on DATE and DATE and statements made by witness PERSON during his interrogation by NORP police on DATE . This was not called into question by the fact that the judgment of ORG had been quashed on the applicant ’s appeal on points of law . The contradiction in PERSON ’s testimony did not concern the core content of his statement , which remained unchanged .

ORG further observed that witness PERSON had stated , during interrogations by the NORP authorities on DATE , that the applicant had given him the order to carry out the attack on DATE . The court considered that it was not prevented from taking into account this statement by PERSON ’s repeated claims that he had made this statement under torture , as his vague and general allegations were not confirmed .

ORG finally considered that the length of detention ( DATE ) was not disproportionate . The court gave a full account of the proceedings and concluded that the length of the proceedings was primarily determined by the complexity of the subject matter and by the very strong international dimension of the case . Conversely , there had not been any considerable delays imputable to the trial court .

On DATE ORG ( no . CARDINAL BvR CARDINAL/CARDINAL ) , relying on its Rules of Procedure , refused to accept the applicant ’s constitutional complaint for adjudication .

On DATE the fresh hearing of the applicant ’s case started before ORG .

On DATE ORG ordered the applicant ’s continued detention on the basis of the arrest warrant of CARDINAL DATE .

On DATE , following a new request lodged by the applicant on DATE , ORG quashed the arrest warrant and ordered the applicant ’s release from detention . The applicant was released on that DATE .

ORG considered that the further execution of detention would be disproportionate . According to that court the applicant remained firmly suspected of having ordered the attack of DATE , in which CARDINAL policemen were killed . This assessment was based on the testimony given by PERSON in the first set of proceedings as well as on further corroborative evidence . ORG considered that to prolong the detention would be disproportionate . In cases involving pre - trial detention , the criminal courts were under a constitutional obligation to expedite the proceedings ( PERSON ) . This principle had to be applied even more strictly given the long duration of the applicant ’s detention . ORG considered that it could not foresee when it would hear witness testimony from PERSON , who was the primary witness for the prosecution . In spite of several reminders , the requests for letters rogatory lodged with the NORP authorities in DATE and DATE had not so far been disposed of . As it was unclear when the witness could be heard , ORG considered that it was unable duly to expedite the proceedings as would have been necessary in view of the fact that detention had already lasted DATE . ORG noted that the statements made by witness PERSON to ORG in DATE could not be used because it could not be ruled out that they had been obtained by torture .

In DATE , the criminal proceedings were still pending before ORG .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and lives in GPE . She is the mother of Mr PERSON ( the applicant ’s son ) , a NORP national who was born in DATE and who died on DATE .

On DATE at TIME the applicant ’s son sustained very serious injuries in a car accident near FAC . At TIME he was taken to hospital in GPE . Later , at CARDINAL p.m. , he was transferred to GPE ’s ORG ( Rīgas CARDINAL . slimnīca – “ FAC ) DATE an entity that was registered as a “ non - profit municipally - owned limited - liability company ” ( PERSON pašvaldības bezpeļņas organizācija sabiedrība ar ierobežotu atbildību ) at the material time – where surgery was carried out on his head . Following the operation his condition remained very serious ; he remained in the emergency department of ORG reanimācijas nodaļa ) and did not regain consciousness .

At TIME on CARDINAL DATE a call from ORG was received by the transplantation centre of ORG – an entity that was registered as a “ non - profit ORG - owned joint stock company ” ( bezpeļņas organizācija valsts akciju sabiedrība ) at the material time – providing information about a potential donor who was undergoing resuscitation . A coordinator from the transplantation centre , together with another doctor , went to the Hospital .

At TIME on CARDINAL DATE the applicant ’s son ’s condition was noted in his medical record as being fatal . It was noted that medical resuscitation had been started . The death of the applicant ’s son was recorded at TIME in his medical record at ORG .

Between TIME a laparotomy was performed on the body , in the course of which the kidneys and the spleen were removed for organ transplantation purposes . This operation was carried out by the transplantation centre ’s transplant surgeon , urologist and operating nurse , in the presence of the coordinator and the ORG ’s resuscitation specialist . On the death certificate the time of death was recorded as TIME on CARDINAL DATE ( probably by mistake DATE CARDINAL below ) .

According to the applicant , during her son ’s stay in the ORG she was in permanent contact with the doctors there . On DATE , although her son ’s condition was deteriorating , the applicant was not informed of it . She was also not asked whether her son had consented to being an organ donor and whether she would consent to organ transplantation in the absence of any wishes expressed by her son .

According to the Government , ORG did not have information on record providing the contact details of any relatives , and they had informed the police about the son ’s hospitalisation by dialling the emergency telephone number for the police . It had therefore , not been possible to contact any relatives . In this regard the Government referred to information provided by ORG which stated that “ given the fact that no telephone numbers of any relatives were recorded on the patient ’s medical card ... there was apparently no contact with the applicant ” .

On DATE , in the context of criminal proceedings against the person held liable for the car accident , a forensic ( post - mortem ) examination on the applicant ’s son ’s body was carried out . It was noted , inter alia , that on CARDINAL DATE between TIME and CARDINAL TIME a laparotomy had been performed on the body . The applicant obtained a copy of the forensic report on DATE and realised only then that DATE certain organs had been removed from her son ’s body for transplantation purposes .

NORP In response to a complaint lodged by the applicant , on DATE the ORG stated that the transplantation had been carried out by the transplant doctors in accordance with domestic law . It was noted that the applicant had not been informed of her son ’s health condition because she had not visited the doctors at the Hospital .

NORP In response to further complaints by the applicant to the police and the prosecutor ’s office , several examinations were carried out .

NORP In response to a query by ORG ( Drošības policija ) , ORG ( “ the MADEKKI ” ) analysed the medical file and met with doctors and managers from the CARDINAL medical institutions involved – GPE ’s ORG and ORG . On DATE it completed the examination and informed the Security Police of its conclusions . The PERSON provided an answer to the question of whether the medical practitioners had complied with the applicable domestic law in the following terms :

“ In taking the decision [ to remove organs ] and in carrying out the removal of organs , the medical practitioners have complied with section CARDINAL of ORG of a Deceased Person and Use of Human Organs and Tissue and provisions of regulation no . CARDINAL ( DATE ) ...

There is no information at the PERSON ’s disposal as to whether there was a stamp in Mr Petrovs’ passport signifying his objection to the use of his body tissue and organs .

[ The applicant ] was not informed about the possible removal of organs ( the kidneys and the spleen ) for transplantation purposes . ”

The PERSON also explained in their letter to ORG that the time of biological death was CARDINAL a.m. on CARDINAL DATE and not CARDINAL p.m. as recorded , probably by mistake , on the death certificate .

On DATE the Security Police replied to the applicant on the basis of the PERSON report that the organs of her son had been removed in compliance with domestic law . They relied on section CARDINAL of ORG of a Deceased Person and Use of Human Organs and Tissue ( “ the LAW ” ) and regulation no . CARDINAL ) . The applicant was forwarded a copy of the PERSON ’s letter to ORG .

On DATE the prosecutor ’s office forwarded the applicant ’s complaint to ORG with a view to instituting an additional inquiry .

On DATE the PERSON replied to questions put by ORG , which had been contacted by ORG further to a complaint by the applicant . They answered that there was no information at their disposal as to whether , at the time of her son ’s death , any refusal of or consent to the use of his body , organs or tissue after his death had been recorded in ORG ( ORG reģistrs ) . They also answered that the applicant had not been informed of the possible removal of organs ( the kidneys and the spleen ) for transplantation purposes . There was no information at the PERSON ’s disposal as to whether there had been a stamp in Mr Petrovs’ passport signifying an objection to the use of his body tissue and organs . On DATE ORG , replying in turn to ORG , concluded on the basis of the information provided by the PERSON that , because the applicant had not been informed about the possible transplantation , she had neither consented to it nor refused it .

On DATE the Security Police informed the applicant that her complaint was still being examined .

On DATE the Security Police adopted a decision not to institute criminal proceedings . For the same reasons as were given in the above - mentioned reports , it was concluded that the transplantation had been carried out in compliance with domestic law . The reports indicated that in his lifetime Mr Petrovs had not indicated any objection to the use of his body tissue and organs after death and that no objection to the use of his organs had been received from his relatives before the start of the transplantation . The coordinator of the transplantation centre had been responsible for informing the relatives about the issues pertaining to transplantation , and for obtaining records , consent , signatures and other relevant information . Taking into account the fact that the relatives had not been at the hospital at the time of the son ’s biological death and that the removal of organs in such cases has to be performed immediately , it had not been possible to obtain their consent or refusal in relation to the organ removal .

On DATE the applicant was informed of this decision .

On DATE ORG replied to the applicant . According to the information at their disposal , there was nothing on record in ORG indicating whether Mr Petrovs would have allowed or refused the use of his body , tissue and organs after his death . According to the information provided by ORG and on the basis of the conclusions established by the PERSON , the applicant had not been informed about the imminent removal of her son ’s kidneys and spleen , and she had therefore neither consented to it nor refused it . Finally , the applicant was advised that she should contact the prosecutor ’s office because ORG had not indicated any procedure or time - limits for lodging an appeal .

On DATE , further to a subsequent complaint , a meeting was convened at which the Minister for Health discussed with the representatives of the ORG and the transplantation centre the case of the removal of the applicant ’s son ’s organs . The Minister for Health was of the opinion that the relatives should have been informed about the organ removal and that their consent should have been obtained . The representatives stated that the organ removal had been conducted in compliance with the applicable law . The meeting record contained a note to the effect that in DATE a working group which had been established by ORG had prepared amendments to the above - mentioned PERSON in order to define its provisions more clearly . They had made CARDINAL proposals . The first proposal was to include in the PERSON a provision stating that on all occasions inquiries were to be made about the deceased person ’s wishes with his or her closest relatives . The second proposal was to rely on the person ’s wishes as expressed during his or her lifetime and , in the absence of any such wishes , to presume consent ( no inquiries made with the closest relatives ) . It was also noted that the relevant committee of the ORG had opted for the second option ( see paragraph CARDINAL below for the adopted text ) . It was also noted that once the proposed amendments were passed by the ORG , the occurrence of such “ problematic situations would be practically ruled out ” . On DATE the applicant received reply from ORG to this effect .

On CARDINAL DATE a prosecutor dismissed the applicant ’s complaint concerning the refusal of CARDINAL DATE to institute criminal proceedings . She relied on LAW of the PERSON and indicated that consent from parents or from a legal guardian was required only in cases relating to the removal of organs for transplantation purposes from a dead child ’s body . Accordingly , the actions of the medical practitioners did not constitute a crime and the CARDINAL DATE decision had been lawful .

On DATE a superior prosecutor dismissed the applicant ’s complaint concerning the prosecutor ’s decision of CARDINAL DATE . He stated that – according to the information provided by ORG Being with regard to ORG ( see paragraph CARDINAL below ) had not been ratified by ORG and that GPE had not even signed LAW to ORG concerning Transplantation of Organs and ORG ; GPE was therefore not a party to this LAW . The prosecutor relied on LAW and indicated that at the relevant time ( DATE ) in GPE these issues were regulated in sections CARDINAL and CARDINAL of the PERSON . These provisions did not require consent from close relatives unless the removal was from the body of a dead child . The rules relating to transplantation coordinators obliged them to obtain relatives’ consent only in cases prescribed by law . The prosecutor concluded that there were no grounds to consider that the medical practitioners , in taking the decision to remove organs and in carrying out the removal of those organs , had infringed legal provisions . Therefore , there were no grounds to charge them with a crime under section CARDINAL of LAW ; at that time no other person had been charged with the crime . At the same time , the applicant was informed about DATE amendments to sections CARDINAL and CARDINAL of the PERSON , in which it was specified that the organs of a deceased person might be removed for transplantation purposes if there was no information recorded in ORG indicating any objection and if the relatives of the deceased had not , before the start of the transplantation , informed the hospital in writing of the deceased person ’s objection – expressed during his or her DATE to the use of his or her organs and tissue after death .

On DATE the Prosecutor General in a final decision dismissed the applicant ’s complaint concerning the decision of DATE . He also referred to sections CARDINAL and CARDINAL of the PERSON and noted that these provisions prohibited removal in cases where a refusal or objection had been received but not in cases where wishes of the closest relatives had not been established . These provisions , as in force in DATE , therefore did not oblige medical practitioners to actively search for and inform the closest relatives of a deceased person about the possible removal for transplantation purposes of his or her body tissue and organs unless that person was a child . On CARDINAL DATE the medical practitioners did not have any information at their disposal concerning a refusal of or objection to the removal of Mr Petrovs’ organs . He concluded that the organ removal had been performed in accordance with domestic law . ORG also observed that activities performed on the body of a deceased person could not be treated as interference with his or her private life .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE . He submits that he is a practicing NORP . According to the documents in the case - file he is a teacher of religion by profession .

On DATE the applicant was arrested on suspicion of misuse of explosives .

On DATE ORG indicted the applicant in GPE on charges of incitement to aggravated murder and unlawful possession of firearms and explosives .

The first hearing in the case took place before GPE on DATE . Up until DATE the trial judge , Ms ORG , held CARDINAL hearings .

Later , the applicant was charged by ORG with armed robbery . The CARDINAL sets of criminal proceedings were joined by ORG on DATE .

The applicant challenged the trial judge for bias , which motion was dismissed . At the applicant ’s renewed request , the trial judge recused herself . A new judge , PERSON . PERSON . , was appointed to try the case . She held CARDINAL hearings in DATE . This judge eventually declared herself biased ; and the case was assigned to yet another judge , PERSON , who held CARDINAL hearings DATE and DATE .

Meanwhile , on DATE the applicant was indicted by the ORG - ORG for aggravated murder . The case was joined to the ongoing criminal proceedings on CARDINAL DATE by ORG .

On DATE applicant challenged PERSON for bias . On DATE ORG dismissed this motion . It pointed out that the trial judge had declared herself impartial , along with the CARDINAL other eligible judges of ORG . Despite the decision of ORG , the trial judge eventually recused herself , since , in her view , the applicant ’s letters addressed to ORG had infringed her dignity .

Subsequently , in DATE the case was assigned to another judge at ORG , PERSON , who did not hold any hearing . On DATE he also recused himself following the applicant ’s different motions , apparently containing insinuations . The remaining CARDINAL judges of ORG declared themselves biased as well . On DATE ORG appointed ORG to try the case . The trial judge at ORG held the first hearing on DATE .

On DATE the applicant was found guilty and sentenced to life imprisonment with the possibility of parole after DATE .

On DATE the second - instance court quashed this judgment and remitted the case to the first - instance . The case is currently pending there .

In the context of the above proceedings , on DATE the ORG remanded the applicant in custody .

His detention was repeatedly prolonged at the statutory intervals until DATE when ORG suspended his detention and ordered him to serve a prison sentence which had become enforceable in connection to other criminal proceedings unrelated to the present case .

On DATE , on the new charges of aggravated murder put forward by the Komárom - ORG , ORG again remanded the applicant in custody . The decision was upheld on appeal by the ORG - ORG on DATE .

The applicant was actually placed in pre - trial detention again on DATE , after having served his prison sentence . He submitted that under the law , his detention should have been reviewed within DATE , that is , on DATE at the latest but that this had not taken place .

On DATE the applicant filed an interlocutory application for his immediate release and placement in house arrest with ORG . The court dismissed the application on DATE . The applicant appealed without success . His further requests for release or , alternatively , a less coercive measure were to no avail .

On DATE ORG requested ORG to review the applicant ’s pre - trial detention under section DATE ) of LAW .

On DATE the detention was extended until the delivery of the first - instance judgment under section ORG ) and ( d ) of LAW ( risks of absconding and of reoffending ) . ORG held that there was a risk that the applicant might abscond given the seriousness of the charges and the gravity of the punishment and reoffend given that he was a multiple recidivist and the number of offences he was charged with .

The GPE endorsed this decision on DATE , holding that the impending severe punishment substantiated the risk of absconding , due to which the applicant ’s presence at the proceedings could not be ensured in any other way . It also observed that the last offence had been committed by the applicant during his conditional release from his DATE imprisonment , thus there was a real risk of reoffending . The court dismissed the arguments put forward by the applicant concerning his health status , unspecified , and concluded that his personal conditions did not militate for a less severe measure .

NORP The applicant ’s pre - trial detention reached the statutory time - limit of DATE on DATE . On DATE the GPE ORG placed the applicant under house arrest with continuous police surveillance , to be carried out in the flat of Ms I.T , an acquaintance of the applicant . The applicant was allowed to leave the flat DATE , TIME The court noted that the reasons for the applicant ’s detention were still valid , and a less restrictive measure was to be applied only because the statutory fouryear time - limit for pre - trial detention had expired . The court also dismissed the applicant ’s request for release on the undertaking not to leave his place of residence . According to the court , the applicant ’s argument concerning his mother ’s ill health and the modest financial situation of his host could not serve as a ground for the application of a less stringent measure .

On DATE ORG extended the applicant ’s house arrest until the adoption of the first - instance judgment . It noted that the applicant was charged with a crime punishable with DATE , or life , imprisonment which in itself demonstrated the risk of absconding . It also relied on the applicant ’s previous criminal conduct and the number of offences the applicant had been charged with to find that there was a risk of reoffending

On DATE the Budapest High Court granted the applicant ’s request for leave for CARDINAL DATE to visit his mother in hospital TIME and to undergo dental treatment .

On DATE the applicant requested his release from house arrest , pointing out that he had no income on his own and intended to work . He also produced a job offer from a company . His request was dismissed on DATE by ORG on the ground that no new circumstances existed that would affect the necessity of the house arrest .

On DATE the applicant was granted exceptional leave from house arrest for DATE between TIME to visit his hospitalised mother . The remainder of the applicant ’s request , that is leave from house arrest DATE , was dismissed .

His further request for extraordinary leave to visit his mother for TIME on DATE and to study his case file at the premises of a non - governmental organisation was granted on DATE .

On DATE the applicant was granted leave to visit his father in the town of PERSON on DATE TIME

The applicant ’s further request for leave for medical reasons was granted on DATE . However , ORG dismissed his application for leave so as to look after his mother on a DATE basis , in particular to assist her with insulin injections . The court reasoned that Ms I.T. , the applicant ’s acquaintance and a co - defendant in the criminal proceedings , who lived in the flat of the applicant ’s mother , could do so in his stead . The court also stated that lengthy DATE leave would be incompatible with the house arrest .

The applicant ’s further motions for leave to accompany his mother to medical examinations were granted on DATE and CARDINAL DATE for DATE ( TIME ) and CARDINAL and CARDINAL DATE , respectively .

The applicant lodged further requests for leave in DATE to visit his terminally ill father in PERSON twice a DATE , to take his mother home after her hospitalisation and to make certain arrangements with her bank and her previous workplace , since she was under guardianship proceedings .

By a decision of CARDINAL DATE ORG granted the applicant leave to visit his father every fourth DATE TIME , and to accompany his mother coming home from hospital on DATE between TIME and TIME His request to visit his mother ’s financial institution and workplace was dismissed , since he had not specified their addresses , whereas under section CARDINAL(CARDINAL ) of LAW , leave could be granted only for a specific time and destination . As regards the applicant ’s more frequent visits to his father , the court noted that regular , long - term leave from the house arrest would jeopardise its purpose of securing the applicant ’s presence throughout the proceedings . The applicant appealed , arguing that the time period to assist his mother was too short , that his father ’s health was deteriorating fast , requiring more frequent visits , that is , DATE , and that he had already submitted the contact details of his mother ’s financial institution and workplace . On DATE ORG , acting as a second - instance court , found that the applicant ’s appeal concerning the restricted time to assist his mother was well - founded , nonetheless no longer pertinent , because she had already left the hospital . The remainder of the applicant ’s appeal was dismissed .

The applicant ’s further requests for leave to visit his ill father , lodged on DATE and DATE , were not granted . The applicant ’s father died on DATE .

On DATE the court granted the applicant leave for the period DATE to make arrangements concerning the funeral of his father .

On DATE the ORG released the applicant from house arrest with an undertaking not to leave his place of residence . The court observed that there were no grounds to believe that the applicant would pervert the course of justice or reoffend . Nonetheless , in its view , he was charged with a serious offence requiring a coercive measure .

On appeal , ORG reversed the first - instance decision and placed the applicant under house arrest on DATE . It noted that given the seriousness of the offence there existed a danger of his absconding and given his previous multiple convictions , a risk of reoffending .

On DATE ORG dismissed the applicant ’s motion for leave to attend Mass on DATE between TIME and his further request for leave on CARDINAL and DATE and CARDINAL and DATE . The court observed that the applicant , being a teacher of religion by profession , was not disproportionately restricted in the exercise of his religious conviction . This decision was upheld on appeal on CARDINAL DATE , ORG holding that the applicant ’s religious conviction did not justify the granting of permissions of leave from the house arrest ; and that such permissions were normally to reflect an intervening change in the detainee ’s personal circumstances . The court noted that such a request could only be granted if it was submitted concerning a specific place and purpose .

Meanwhile , the applicant ’s host , PERSON complained on a number of occasions to various authorities that the police officers surveying the applicant interfered with her private life . She also submitted that , as she had indicated from the beginning of the house arrest , she did not have the necessary financial means to accommodate the applicant .

On DATE Ms I.T. submitted a motion to the Budapest High Court stating that the applicant was to leave her flat since she could not further provide for him . On DATE , the applicant requested the court to establish the place of his house arrest at a camping site in GPE . He was informed by the court that , according to information received by the relevant authorities , the camping site was not suitable for residence during DATE . Notwithstanding this information , the applicant maintained his request .

A new decision was issued by the investigating judge on CARDINAL DATE establishing the place of the applicant ’s house arrest at the ORG camping site . On DATE ORG issued a report on the applicant ’s presence at the camping site , stating that the “ weather conditions , the lack of food supply and the poor hygienic conditions ” endangered the applicant ’s health . On DATE the ORG Chief Police Department lodged a request with ORG to amend its decision of DATE since the camp site was unsuitable for long - term residence .

On DATE the applicant sought the termination of his house arrest again . His motion was dismissed on DATE by ORG , which stated that there was no reason to overturn the decision of DATE and that he had been aware of the conditions of the camping site when he had requested to be committed there .

On DATE the local general practitioner arranged for the applicant to be admitted to ORG . The examinations carried out at the hospital did not result in the finding of any such disease as warranting the applicant ’s further treatment , so he was released on DATE and placed in a social care institution in PERSON .

On DATE ORG amended its decision of CARDINAL DATE and ordered the applicant ’s house arrest to be carried out in the flat of Ms NORP again . The applicant ’s appeal against this decision was to no avail . In its decision of CARDINAL DATE ORG reiterated that the applicant was a multiple reoffender charged with serious crimes , thus the risk of absconding and reoffending existed . The court also noted that had the statutory maximum of detention on remand not expired , the most restrictive measure should have been applied . It further argued that the measure was not disproportionate , since the protraction of the proceedings had been compensated for by the statutory discontinuation of the applicant ’s detention on remand . The court also dismissed the applicant ’s argument that some co - defendants were released from house arrest .

On DATE the Budapest High Court carried out the statutory review of the applicant ’s house arrest and , at the same time , decided on the applicant ’s request for release . During the court hearing the judge presented to the applicant and the prosecutor a letter allegedly originating from CARDINAL of the applicant ’s previous cellmates . The writer of the letter informed the court that the applicant intended to obstruct the criminal proceedings by physically threatening the investigating judge and subsequently requesting his exclusion for bias , initiating criminal proceedings against the trial judge for judicial errors and absconding and inciting the co - accused to do so . The applicant sought direct access to the document , arguing that without receiving information on the author ’s identity he was unable to challenge this latter ’s motivation and the credibility of the content of the letter . Relying on the protection of the author ’s personal data as provided in section CARDINAL ) of LAW , the court dismissed the applicant ’s request .

The court upheld the applicant ’s house arrest because of the risk of reoffending and absconding as provided in section CARDINAL(CARDINAL)(b ) and ( d ) of LAW . In its decision the court relied on the seriousness of the crimes and the gravity of the impending punishment in holding that there was a likelihood that the applicant would abscond . It also held that given the fact that the applicant was a recidivist , there was a risk of reoffending . In its decision the court mentioned the letter as CARDINAL of the factual elements to consider .

On DATE the ORG authorised the applicant to leave house arrest to undergo physiotherapy DATE in the period DATE to CARDINAL DATE .

DATE . On DATE the applicant ’s request for leave to take up a job and to look after his ill mother on a DATE basis was dismissed by ORG , which found that such a DATE leave would defeat the purpose of house arrest .

On DATE the applicant was appointed as his mother ’s guardian .

The applicant stayed in house arrest until DATE , when he was placed in pre - trial detention in connection with criminal proceedings concerning another offence .

As of DATE the applicant has been again in pre - trial detention following the second - instance court ’s decision to quash his conviction and remit the case to the first - instance .


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

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

The applicants complained of the excessive length of their pre - trial detention .