Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

NORP The applicant in the first application , Mr PERSON , is an NORP national , who was born in DATE . At the time he lodged his application he was a prisoner at FAC in GPE . He was represented before the ORG by Mr F. Taaffe , a lawyer practising in GPE .

NORP The applicant in the second application , Mr PERSON , is also an NORP national , who was born in DATE . He too is detained in FAC . He was represented before ORG by Mr J. Cuddigan , a lawyer practising in GPE .

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

Mr PERSON was convicted of murder on DATE and was sentenced to life imprisonment pursuant to section CARDINAL of LAW , DATE . An appeal was unsuccessful . His situation was reviewed for the first time by ORG in DATE . The Minister for ORG , LAW ( now the Minister for ORG and ORG , hereafter “ the Minister ” ) decided that Mr PERSON should not be released at that time , and that his situation should not be considered again for a further DATE . ORG considered Mr PERSON ’s situation again in DATE , DATE and in DATE . In its last review of his case , ORG recommended to the Minister that an escalating programme of temporary release be put in place for Mr Lynch . The Minister accepted the recommendation and the programme has since commenced . According to the Government , it entails attendance DATE at a voluntary agency that works with offenders , and TIME releases per month .

Mr Whelan was convicted on DATE of the crimes of murder and attempted murder . He was sentenced to life imprisonment pursuant to section CARDINAL of LAW , DATE and , on DATE he was also convicted of attempted murder and sentenced to a term of DATE to be served consecutive to the life sentence . The order of sentence was subsequently reversed by ORG . PERSON completed his first sentence in DATE , having benefitted from the standard remission of PERCENT of the total duration imposed at trial ( DATE ) . He then commenced his consecutive life sentence . His situation was reviewed by ORG in DATE with a second consideration due to take place in DATE .

The CARDINAL applicants later challenged their detention as contrary to the LAW in a number of respects and also to the LAW . Their challenge was rejected by ORG on DATE , and their appeal was rejected by ORG on DATE .

ORG did not accept that , by prescribing a mandatory life sentence for murder , the legislature had intruded into the domain of the judicial branch . It described murder as “ the ultimate crime against society as a whole ” , “ a crime which may have exceptional irrevocable consequences of a devastating nature for the family of the victim ” and a crime that “ by its very nature has always been considered at the highest level of gravity among all forms of homicide or other crimes against the person ” . It stated :

“ For the reasons already indicated that crime has always and legitimately been considered to be CARDINAL of profound and exceptional gravity and , in the ORG ’s view , CARDINAL for which the ORG is entitled to impose generally a punishment of the highest level which the law permits . Given that it is an offence which is committed when , and only when , a person is unlawfully killed and that the person so doing intended to kill or cause serious injury it is one which can therefore properly be differentiated from all other crimes including manslaughter .

The ORG is of the view that the learned trial judge was correct when she concluded “ ... there can be nothing offensive in the ORG promoting respect for life by concluding that any murder even at the lowest end of the scale , is so abhorrent an offensive to society that it merits a mandatory life sentence ... ” . ”

ORG also rejected the argument that the mandatory life sentence was contrary to the principle of proportionality in sentencing . It stated :

ORG then considered the argument that , in substance , a life sentence was not a determinate sanction because the actual duration of imprisonment was decided systematically by the Minister , and that in so doing he was guided by considerations of a preventive nature . It noted , firstly , that it had been affirmed many times in case law that preventative justice or detention forms no part of NORP law . A convicted person may not be sentenced by a court or detained by an executive order for a preventative or non - punitive purpose . It was a “ misconception that the punitive element of the life sentence terminates on temporary release ” ; “ even where the release is open - ended ... the released prisoner remains liable to arrest and return to imprisonment to continue serving the life sentence should he be in breach of the conditions ” . Temporary release was a privilege or a concession accorded at the discretion of the executive , not a right of a prisoner . ORG stated :

“ In the ORG ’s view a life sentence imposed pursuant to s. CARDINAL of the Act of DATE is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention .

It is a sentence which subsists for the entire life of the person convicted of murder . That person may , by virtue of a discretionary power vested in the executive , be temporarily released under the provisions of the relevant legislation on humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reason .

It may be appropriate at this point to note that in the event of a prisoner ’s privilege of temporary release being withdrawn by virtue of a breach of the conditions of that release the Minister , or any person acting on his behalf , is bound to observe fair procedures before withdrawing the privilege of temporary release ... Should the Minister fail to observe such procedures or otherwise act in an unlawful , arbitrary or capricious manner in terminating the release for a breach of his conditions or otherwise , the prisoner may seek to have that decision set aside by way of judicial review before the courts .

In all these circumstances the ORG does not consider that there is anything in the system of temporary release which affects the punitive nature or character of a life sentence imposed pursuant to s. CARDINAL . In particular a decision to grant discretionary temporary release does not constitute a termination let alone a determination of the sentence judicially imposed . Any release of a prisoner pursuant to the temporary release rules is , both in substance and form , the grant of a privilege in the exercise of an autonomous discretionary power vested in the executive exclusively in accordance with the constitutional doctrine of the separation of powers ... ”

ORG went on to reject the argument that because the Minister was required to have regard to , inter alia , the gravity of the offence and the risk posed by the prisoner to public safety , it made the process of temporary release akin to a sentencing exercise . Consideration of such matters did not mean that the Minister was exercising a judicial function and , in particular , it did not mean that a decision not to release because of a risk to safety converts the punitive sentence for murder into a preventative one . It stated :

“ It is a necessary incident to the exercise of a purely executive discretion that the decision - maker would be bound to have , before directing a person ’s release on any of the possible grounds , have regard to a whole range of matters of which CARDINAL are specified in s. CARDINAL subs . CARDINAL of the Act of DATE . Inevitably CARDINAL of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public . A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public . Such a consideration is incidental to the discretionary power and its purpose . ... Refusing temporary release is a decision not to grant a privilege to which the prisoner has no right . ”

ORG next considered the applicants’ arguments , based on LAW and on certain judgments of this ORG , that under NORP law a life sentence was in reality an indeterminate one , which in practice was determined by the Minister in the form of a grant of temporary release . This , it was argued , constituted executive interference in the judicial function of sentencing and was prone to arbitrariness . The court stated :

“ The power of the executive , in this case the Minister , to release a prisoner ... is a distinct executive function and does not constitute a determination of what punishment a person should undergo as a consequence of his crime . It is in the form of an exercise of clemency or commutation and ( sic ) although it may bring to an end the period of incarceration , subject to conditions in the case of temporary release . As already pointed out the life sentence imposed by the ORG continues to exist notwithstanding any conditional release and he may be required to continue serving it if there are found to be good and sufficient reasons in accordance with law to withdraw the privilege of temporary release , or the period of release simply expires . ”

ORG considered that the distinction between these CARDINAL functions was recognized by this ORG in its judgment in GPE v. GPE [ ORG ] , no . CARDINAL , ECHR DATE . Having cited several passages from the judgment , it stated :

“ In its analysis ORG made a clear distinction between the imposition of a mandatory and punitive life sentence by a court and the exercise of an executive discretion to commute , remit or grant conditional release which gives the prisoner a de facto and de jure prospect of release at some point . It clearly did not consider that the existence of an executive discretion to grant conditional release or commutation to constitute the determination or imposition of a sentence by the executive .

Provided a causal connection remains between the detention and the punishment imposed by the court of trial , the sentence can not be considered arbitrary or in breach of Article CARDINAL ) . The discretionary power of the executive to grant conditional release on humanitarian or other grounds does not affect the lawfulness of the continued detention of a person as long as that detention is punitive by reason of its nexus with the sentence imposed following conviction . ”

ORG held that on any objective analysis of the sentences currently being served by the CARDINAL applicants , their detention remained , de jure and de facto , in accordance with the punishment provided by law and ordered by the court of trial .

ORG then distinguished the legal situation in GPE from that which prevailed in GPE , the latter having been found in a number of judgments of this Court to be contrary to LAW . ORG noted that the sentencing regime in GPE which was under scrutiny in the judgments relied upon by the applicants was ‘ radically different’ to the sentencing regime in GPE . The sentencing regime which was found to be incompatible with the Convention featured a dual element — a punitive element identified as the ‘ the LOC period and the subsequent preventative element . Once the prisoner had served the punitive element of the sentence , the nexus between the crime and its punishment was terminated . In ORG noted that the prisoner had been recalled after release even though he must have been regarded as having served the punitive element for his offence of murder . That being so , his detention after recall could not be justified as ‘ punishment for the original murder’ which led ORG to conclude that his detention on foot of the original mandatory life sentence violated LAW . That was , said ORG , in stark contrast to the longstanding position in NORP law .

Section CARDINAL of the Criminal Justice Act DATE provides :

“ A person convicted of treason or murder shall be sentenced to imprisonment for life . ”

The power of temporary release is regulated by LAW DATE , as amended by ORG ( Temporary Release of Prisoners ) Act DATE , which provides :

“ CARDINAL.(CARDINAL ) The Minister may direct that such person as is specified in the direction ( being a person who is serving a sentence of imprisonment ) shall be released from prison for such temporary period , and subject to such conditions , as may be specified in the direction or rules under this section applying to that person—

( a ) for the purpose of—

( i ) assessing the person ’s ability to reintegrate into society upon such release ,

( ii ) preparing him for release upon the expiration of his sentence of imprisonment , or upon his being discharged from prison before such expiration , or

( iii ) assisting ORG in the prevention , detection or investigation of offences , or the apprehension of a person guilty of an offence or suspected of having committed an offence ,

( b ) where there exist circumstances that , in the opinion of the Minister , justify his temporary release on—

( i ) grounds of health , or

( ii ) other humanitarian grounds ,

( c ) where , in the opinion of the Minister , it is necessary or expedient in order to—

( i ) ensure the good government of the prison concerned , or

( ii ) maintain good order in , and humane and just management of , the prison concerned , or

( d ) where the Minister is of the opinion that the person has been rehabilitated and would , upon being released , be capable of reintegrating into society .

( CARDINAL ) The Minister shall , before giving a direction under this section , have regard to—

( a ) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates .

( b ) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto ,

( c ) the period of the sentence of imprisonment served by the person ,

( d ) the potential threat to the safety and security of members of the public ( including the victim of the offence to which the sentence of imprisonment being served by the person relates ) should the person be released from prison ,

( e ) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates ,

( f ) the risk of the person failing to return to prison upon the expiration of any period of temporary release ,

( g ) the conduct of the person while in custody , while previously the subject of a direction under this section , or during a period of temporary release to which rules under this section , made before the coming into operation of ORG ( Temporary Release of Prisoners ) Act DATE , applied ,

( h ) any report of , or recommendation made PERSON

( i ) the governor of , or person for the time being performing the functions of governor in relation to , the prison concerned ,

( ii ) the Garda Síochána ,

( iii ) a probation and welfare officer , or

( iv ) any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection ( CARDINAL ) that relates to the person concerned .

( i ) the risk of the person committing an offence during any period of temporary release ,

( j ) the risk of the person failing to comply with any conditions attaching to his temporary release , and

( k ) the likelihood that any period of temporary release might accelerate the person ’s reintegration into society or improve his prospects of obtaining employment . ”

In their submissions , the Government provided information about ORG . It was established on an administrative basis in DATE . It is chaired by an independent Chairperson and includes a representative from the medical / psychiatric profession , ORG , ORG and ORG , a retired Prison Governor , and representatives of the wider community .

ORG principal function is to advise the Minister in relation to the administration of long term prisoners . The ORG reviews the cases of prisoners serving life sentences or determinate sentences of DATE or more . ORG , by way of recommendation to the Minister , advises of the prisoner ’s progress to date , the degree to which the prisoner has engaged with the various therapeutic services and how best to proceed with the future administration of the sentence .

In the case of mandatory life sentences ORG considers the initial application after the prisoner has served DATE . Subsequent reviews are conducted at intervals of DATE . The final decision regarding the recommendations of ORG remains with the Minister who may accept them in their entirety ( as occurs in the majority of cases ) or accept them in part , or reject them .

NORP In reply to a question from ORG indicated that as of DATE there were CARDINAL persons serving a mandatory life sentence for murder , with another QUANTITY persons serving discretionary life sentences for other very serious offences . On DATE there were CARDINAL persons with a life sentence who were on supervised release in the community . In DATE to DATE a total of CARDINAL persons sentenced to life imprisonment were granted temporary release . The average duration of their imprisonment was DATE .


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

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE .

Mr PERSON is an heir of Mr M. and Mr PERSON is an heir of PERSON PERSON is entitled to CARDINAL of the inheritance of PERSON , and PERSON PERSON to CARDINAL ninth of the inheritance of PERSON The applicants’ CARDINAL predecessors were co - owners of an afforested island in the GPE , currently named GPE , measuring , at the time of expropriation , QUANTITY . PERSON owned another afforested island measuring QUANTITY and other forestry land on the shores of the GPE , QUANTITY .

The above - mentioned land was nationalised in DATE .

As a result of the GPE ’s fluvial activity over DATE , GPE island ’s area has increased and it currently measures QUANTITY . The second island no longer exists .

On DATE , following the adoption of the DATE LAW ( see paragraph CARDINAL below ) , PERSON and Mr PERSON ’s mother , whom Mr PERSON later succeeded , applied for the restitution of their ORG forests and forestry land .

By CARDINAL decisions of DATE the ORG land commission acknowledged that the heirs of PERSON and PERSON had the right to restitution or compensation . Finding that actual restitution was impossible because the forests had become “ exclusive ORG property ” ( “ изключителна държавна собственост ” , see paragraph CARDINAL below ) , the commission decided that the heirs would receive compensation bonds . Those decisions were served on the applicants on DATE .

In the meantime , legislative amendments entered into force repealing the provisions allowing the award of compensation bonds for properties falling under LAW ( see paragraph CARDINAL below ) and providing for a sole means of compensation , namely in the form of equivalent State - own land .

NORP In the GPE district where the forests belonging to the applicants’ predecessors had been situated there was insufficient Stateowned land to compensate the applicants and the remaining heirs . In a letter dated DATE ORG therefore instructed the relevant authorities in the neighbouring GPE district to identify appropriate land .

In CARDINAL decisions of DATE ORG allotted to the heirs of PERSON a plot of QUANTITY , and to the heirs of PERSON a plot of QUANTITY in the GPE district .

On DATE the applicants applied for judicial review of those decisions , arguing that the allotted land and the forests were not equivalent to the ones their predecessors had owned .

On DATE , the GPE ORG gave a judgment in the proceedings brought by Mr PERSON . Noting that the land and the forests allotted by way of compensation to the heirs of Mr M. were not equivalent to those owned by him in the past , it quashed the respective decision of ORG of DATE . Furthermore , on the basis of an expert report commissioned by it , ORG observed that there were appropriate forests in the area of the village of PERSON in the adjacent Varshets district . It thus remitted the case for a fresh examination with a view to allotting land in the specified area to the heirs .

The judgment was not appealed against and entered into force on DATE .

In a new decision dated CARDINAL DATE ORG ( former ORG ) refused to allot the land in the GPE district to the heirs of PERSON , reasoning that the ORG - owned forests in that area were not sufficient and that the compensation should be provided in the neighbouring ORG district .

On an unspecified date Mr PERSON challenged that decision before ORG . In a judgment of CARDINAL DATE that court declared the decision null and void as it contradicted the judgment of DATE ( see paragraph CARDINAL above ) . It noted , in addition , that it had already been established that there were no appropriate forests in the PERSON district . On the basis of expert reports commissioned by it , ORG identified in the adjacent districts CARDINAL different plots that were suitable to be provided to the heirs of PERSON , and acknowledged their right to receive those plots as compensation .

That judgment does not appear to have been appealed against and entered into force on an unspecified date .

NORP In execution of the judgment , in CARDINAL decisions given in DATE and DATE the ORG and ORG allotted to the heirs of PERSON several plots of forestry land measuring QUANTITY in total .

NORP In their submissions dated DATE the Government assured the ORG that the adoption of decisions transferring the remaining land to the heirs of PERSON was imminent .

In the judicial - review proceedings brought by Mr PERSON against the respective decision of ORG of DATE , ORG issued a judgment on DATE . It found that the land allotted as compensation to the heirs of PERSON was indeed of manifestly lower quality than the CARDINAL previously owned by her . It also found that in the area of the village of PERSON in the adjacent Varshets district , there was a plot of forestry land which was equivalent in quality to those previously owned by PERSON and was even bigger in size . It thus quashed ORG decision of CARDINAL DATE , acknowledged that the heirs of PERSON had the right to part of the bigger plot as compensation , and held that it was for the local ORG to apportion the allotted land .

That judgment was not appealed against and entered into force on an unspecified date .

During the applicants’ ensuing contacts with the authorities it became clear that the afforested area indicated in the judgment of DATE was within the territory of the “ LOC ” natural park and as such was public property ; thus it could not be provided as compensation to the heirs of PERSON That was pointed out in CARDINAL letters sent to the applicants , dated respectively CARDINAL DATE and DATE , by ORG and the administration of ORG .

It appears that for DATE after that , the authorities made no effort to enforce the judgment of DATE or to identify other land to be provided to the heirs of PERSON Not until DATE did a commission consisting of members of different State bodies , appointed by the head of ORG in GPE , identify CARDINAL plots of land in the adjacent districts , measuring QUANTITY , which could be provided as compensation to the heirs of PERSON

In their submissions dated DATE the Government pointed out that the process would continue , and that the identification of the remaining plots to be transferred to the heirs was imminent .


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

Alena Poláčková;Helen Keller;Johannes Silvis

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on the charges of fraud and forgery of official documents . On DATE ORG authorised the applicant ’s pre - trial detention . The court reasoned as follows :

“ The evidence collected ... incriminated [ the applicant ] ... in a serious crime which entails a custodial sentence exceeding DATE . ... The court takes note of the [ applicant ’s ] character . However , ... it considers that , if at large , [ the applicant ] might put pressure on victims and witnesses or otherwise interfere with administration of justice or continue criminal activities , Accordingly , ... the court considers it necessary to remand [ the applicant ] in custody . ”

On DATE ORG upheld the decision of DATE on appeal .

The applicant remained in custody pending investigation and trial . The court extended his pre - trial detention on several occasions reiterating , in substance , the reasoning employed by ORG on DATE .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment .


GREEK CATHOLIC PARISH PESCEANA AND OTHERS v. ROMANIA

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

The applicants in the present case are the NORP - Catholic parish of ORG , a religious body created on DATE in PERSON , as well as some of its members , NORP nationals living in PERSON . Their names , year of birth and place of residence appear in the first appendix to this report . The applicant Mr PERSON acted as their representative .

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

The Romanian Greek - Catholic Association was granted leave to intervene in the proceedings .

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

On DATE Mr PERSON , who at that time was the NORP priest of the PERSON parish , decided together with CARDINAL members of his parish , to join ORG ( “ the ORG ” ) . DATE they were recognised as a parish by ORG GPE ( GPE PERSON GPE ) and PERSON PERSON was ordained priest of that parish . The applicant parish thus became legitimate under the applicable laws .

On DATE the PERSON local authorities refused to recognise the new parish , denied its members access to the village church and cemetery , and advised ORG PERSON ) to take appropriate action against PERSON . On DATE the local council reiterated its decision . On DATE they also refused to allow the NORP - Catholic parish to hold its religious gatherings in a deserted school building .

On DATE Mr PERSON resigned from his previous position in ORG . He was defrocked DATE , and ORG sent a new NORP priest to the local parish .

On DATE ORG lodged a request , by means of the urgent procedure ( ordonanţă preşedenţială ) , concerning ownership of ORG . In a final decision of CARDINAL DATE ORG ordered Mr PERSON to surrender the property belonging to ORG to the plaintiff and to stop using the village church and cemetery for NORP practices .

On DATE ORG asked the ORG archdiocese to re - examine its decision to ordain PERSON as a NORP - Catholic priest in PERSON . They suggested that his withdrawal might facilitate the dialogue between the CARDINAL parishes in the community .

On DATE the PERSON local authorities transferred ownership of the cemetery to the NORP parish . On DATE they delivered the title deeds for the land to the NORP parish . However , on DATE in proceedings instituted by the PERSON local authorities against ORG , ORG declared the deeds null and void .

NORP Several members of ORG parish lodged a complaint against the local authorities and the NORP community with ORG . The council examined the administrative decision of DATE and noted that the plaintiffs had been denied access to the village church and cemetery . It concluded that the local authorities had breached the applicants’ freedom of conscience and disregarded their religious autonomy . Consequently , the ORG issued a warning to the local authorities . It gave its decision on DATE .

NORP The conflicts between the CARDINAL religious communities escalated . The NORP community prohibited the NORP - Catholics from entering the cemetery to bury their dead or honour their memory . According to the applicants , they suffered increased pressure to revert to Orthodoxy : they were asked to sign a declaration renouncing their ORG if they wanted the local authorities to deliver any official service ; they received unjustified fines ; some of them were threatened with dismissal from their jobs ; and the local school organised a public demonstration against ORG . CARDINAL individuals gave written statements that they had been misled by PERSON into changing their faith . Some people lodged criminal complaints against those who had allegedly threatened them in order to force them to revert to Orthodoxy . The NORP archdiocese intervened in their favour by engaging in a written exchange with the local authorities . It was , however , to no avail .

Several criminal complaints were also lodged by both parties to the conflict , mainly concerning incidents that occurred in DATE and DATE .

On DATE , using the urgent procedure , the applicant parish sought to compel the NORP parish to allow NORP - Catholics the right to use the village cemetery to bury their dead and for memorial services .

On DATE ORG found in favour of the applicant parish . On DATE ORG upheld the decision , which thus became final . The courts held that the applicant parish had been recognised by ORG and was thus legally constituted . It reiterated that , according to LAW , as the village had CARDINAL cemetery , all individuals had to have access to the burial grounds , irrespective of their faith .

As the NORP continued to be denied access to the cemetery by the NORP community , the applicant parish sought the services of a bailiff . On DATE ORG issued an enforcement order concerning the decision of DATE .

On DATE the bailiff notified ORG and ORG of his intention to enforce the above decision and sought assistance from the police . On DATE a group of persons from PERSON and the neighbouring villages did not allow the applicants , the bailiff or the police to enter the cemetery . Not even the police intervention on behalf of the applicants was able to deter the opposing parish . According to the bailiff ’s report , the new NORP priest refused to assist him and the ORG of the village in the enforcement attempts or to talk with his followers . He claimed that he was engaged in other religious duties at that time . As the CARDINAL parties became violent , the bailiff stopped the proceedings in order to avoid any escalation .

The NORP parish objected to the enforcement proceedings and on CARDINAL DATE ORG temporarily suspended the enforcement order until a final ruling had been given on the objection .

On DATE ORG held that the decision of DATE was enforceable until the litigation concerning ownership of the cemetery had been examined ( see paragraph CARDINAL above ) . It nevertheless maintained the suspension of the enforcement order until a final ruling had been given on the objection . The decision became final on DATE , when ORG dismissed an appeal lodged by the applicants .

On DATE several members of the applicant parish ( see appendix CARDINAL below ) lodged an action against the NORP parish and the ORG seeking access to the cemetery to bury their dead and perform the relevant rituals .

On DATE ORG partially allowed the request . A final ruling in the case was given on DATE by ORG . The courts took note of the fact that the title deeds delivered to the NORP parish had been declared null and void . Using the same arguments as those advanced by ORG under the urgent procedure , the courts recognised the rights of the NORP - Catholic members of the community to be buried in the NORP - Catholic tradition . ORG further decided that persons who embraced the NORP - Catholic faith would not be allowed to perform NORP rituals for deceased members of their families who had been buried according to the NORP tradition . In so deciding , ORG considered that the person ’s own convictions at the time of death should be subsequently respected by the family in the choice of rites .

After communication of the application , the ORG sought information about the current situation in PERSON . The ORG Secretary for ORG approached PERSON , which informed him that NORP had free access to the cemetery and that in DATE the ORG parish had received CARDINAL NORP Lei from the ORG budget in order to build a church .

The PERSON mayor ’s office informed the Government that neither religious community was being obstructed from using the cemetery and that the police had recorded no incidents in DATE . Statements by the CARDINAL local priests were attached to the mayor ’s report . The NORP priest explained that the NORP - Catholic priest was allowed into the cemetery in order to bury the deceased members of his community , but accused him of performing NORP rituals for deceased NORP believers . PERSON declared that their access was still restricted and that pressure had been exerted on members of the NORP community to resign from their ORG and join ORG .

NORP In DATE the NORP priest lodged a criminal complaint against a NORP - Catholic believer who had buried her deceased parent in the village cemetery according to NORP rites . The prosecutor decided not to prosecute , reiterating that the NORP - Catholic believers had a right , which had been recognised by a court order , to use the cemetery ; the prosecutor also noted that no damage had been done to the neighbouring graves belonging to NORP families . Another burial took place in DATE and allegations of police brutality against NORP believers in the aftermath of the religious service were dismissed as unfounded by the prosecutor .

It appears that the PERSON local authorities have recently decided to create a new cemetery for all faiths .

Excerpts from the relevant domestic law concerning the enforcement of final judgments are given in ORG GPE , no . CARDINAL , § § DATE , DATE .

The relevant domestic law and practice concerning the general situation of recognised religious groups , and in particular the situation of the NORP - Catholic community , are described in Remetii pe Somes GreekCatholic Parish v. GPE ( dec . ) , no . DATE , LAW CARDINAL , DATE .


CASE OF MEREUTA v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicant was born in DATE and lives in PERSON .

On DATE , the applicant was celebrating his birthday with a group of friends by a lake when they were attacked by S. who was intoxicated and carrying a hunting rifle . S. was angry because the applicant and his friends had allegedly ill - treated his uncle earlier . During the conflict , S. hit CARDINAL of the applicant ’s friends with the barrel of his gun and fired CARDINAL gunshots at the group ’s cars parked nearby . The applicant attempted to prevent PERSON from continuing shooting but was shot from a distance of QUANTITY into his right calf . The applicant ’s repeated attempts to disarm S. resulted in his receiving CARDINAL more gunshots from a very short distance into his already wounded leg .

As a result of the attack the applicant sustained serious injuries to his right leg which led to amputation of his leg above the knee .

On DATE criminal proceedings were instituted against S. on charges of hooliganism with the use of a firearm resulting in the causing of severe harm to the applicant ’s health .

DATE twenty - five witnesses were questioned and by DATE most of the investigative measures were completed .

On DATE was declared a suspect in the criminal proceedings and on DATE he was indicted .

On DATE S. was heard as an accused . He acknowledged his guilt , but refused to make any declarations .

NORP On DATE the criminal case - file was remitted for examination from ORG to GPE .

DATE PERSON all the investigative measures .

On DATE the case - file was transmitted to the PERSON GPE prosecutor ’s office with the proposal to be remitted to a court for consideration .

On DATE both the applicant and his representative were notified of the completion of the criminal investigation .

On DATE the prosecutor ’s office decided to discontinue the criminal proceedings against S. The prosecutor ’s office found that according to Article CARDINAL ) of LAW , a person ’s status as suspect can not be maintained DATE . Since PERSON was indicted on DATE , that is DATE and DATE , the indictment was unlawful . Therefore , all charges against S. were dropped and the proceedings discontinued .

On DATE at the request of the applicant ’s representative , the prosecutor general ’s office decided to annul its previous decision of DATE , and to resume the criminal investigation on the ground that new facts had been discovered .

On DATE ORG upheld PERSON ’s objection against the prosecutor ’s decision of CARDINAL DATE , ordering its annulment . The applicant and his representative were not summoned or informed about the proceedings .


András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Robert Spano

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

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

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

On DATE the applicant escaped from ORG where he was serving a sentence for robbery . While on the run , he shot a prison guard twice in the leg . A third shot would have hit the guard ’s chest and may have killed him if he had not jumped away . The applicant was caught within TIME and transferred back to prison . He claims that the prison officers beat him on arrival , which apparently caused a rupture in his abdominal wall .

On DATE the applicant was admitted to ORG in response to his complaints of vomiting bile , solar plexus pain and a swollen ankle . There is no evidence in the applicant ’s medical record that he complained of beating by the police officers during his arrest .

On DATE the ORG found the applicant guilty of attempted murder of a public official , escape from imprisonment and other crimes and sentenced him to life imprisonment in a strict - regime prison . ORG , acting as a second - instance court , upheld this judgment on DATE .

The applicant was initially committed to ORG and then transferred to FAC in DATE . He was placed in a single - occupancy cell , since there were grounds to believe , based on police reports , that he would attempt to escape . He was allowed to stay outside , with physical restraints , in accordance with the prison ’s DATE routine . He complained about these restraints and his placement to the prison governor , but the rules remained unchanged .

On DATE the applicant escaped from FAC . He was caught and returned to prison within TIME . On his retrieval , the prison officers allegedly handcuffed him and fettered his legs , tore his clothes off , forced him down on the ground , knelt on his head and beat him . They interrogated him for TIME about his escape while he lay naked on the cold floor . This occurred in the medical ward of the prison in the presence of a female doctor and a nurse .

After having been interrogated , the applicant was led to a prison office barefoot and then placed in a special security cell , as a disciplinary measure , where he spent DATE in isolation with his hands tied to his belt and his legs fettered day and night . During this entire period he was allowed to wash himself CARDINAL times altogether , and the cuffs and fetters seriously lacerated his skin .

The beating by the prison officers during the interrogation apparently caused a recrudescent rupture in the applicant ’s abdominal wall , and he had to undergo surgery . He submits that he still suffers from residual inguinal hernia .

On DATE the applicant lodged a complaint with ORG , ORG , concerning his treatment at ORG . The case was first transferred to ORG and , for further examination , to ORG and ORG . The latter opened criminal investigations on DATE , which were discontinued on DATE for want of evidence .

In relation to his second escape , on DATE the Pest Central District Court found the applicant guilty of vandalism and escape from imprisonment and sentenced him to DATE and DATE of imprisonment , non - executable due to his ongoing life term . On DATE the President of the Republic dismissed the applicant ’s plea for clemency .

On DATE the applicant attempted to commit suicide by hanging himself in his prison cell , but his life was saved .

In DATE the applicant was again transferred to FAC . On admission , he was stripped in the medical ward in front of CARDINAL prison officers , a doctor and a nurse , and he was required to bend over a bed with his hands handcuffed . While he was in this position the doctor performed a cavity search . When the applicant complained that he found this humiliating in front of several spectators , the prison officers laughed at him , allegedly threatening him that they might ‘ assist’ the doctor in the cavity search using their metal batons .

Subsequently the applicant was transferred to another penitentiary institution , but in DATE he was returned to ORG for a DATE period , in order to make him available to local justice as a witness in a criminal case . On admission , the otherwise routine cavity search was again carried out in the presence of several prison officers . He complained about this to the prison governor , and on DATE he lodged a complaint with the public prosecutor in charge of penitentiary supervision . On DATE the applicant was moved to ORG and his complaint was transferred to the Pest County Chief Prosecutor ’s Office , for reasons of jurisdiction . On DATE the applicant was heard by a public prosecutor in ORG , where he withdrew his complaint , stating that the issue had been resolved .

The applicant submitted that he was serving his term in a special security department , in a single - occupancy cell illuminated only by artificial light . He was excluded from any courses or social events organised within the prison , and he had difficulties in receiving visitors ; in particular , he could be visited by his family , living in GPE , only once a year due to the circumstances . Moreover , he was always handcuffed whenever outside his cell .


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

The applicants , Mr PERSON , Mr PERSON and PERSON Robert Göpfert , are NORP nationals who were born in DATE , DATE and DATE respectively and live in GPE , PERSON and PERSON . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON Wołąsiewicz , succeeded by Ms J. Chrzanowska , of ORG .

NORP The facts of the case , as submitted by the parties , may be summarised as follows . The applicants arrived in GPE on DATE . During TIME CARDINAL to DATE they put up posters , described below , at bus stops and poster pillars in GPE , a town near the border between GPE and GPE . On DATE the applicants were arrested by the police when taking photographs of the places where they had put up the posters .

There were CARDINAL posters of CARDINAL format with text in NORP and a number of graphic photographs of unknown origin depicting , inter alia , mass graves , massacred bodies and a group of people in an open train carriage .

The first poster read , inter alia , as follows :

“ The NORP and the NORP – a heartfelt welcome to the GPE !

Our justice system is working diligently , because murder is not subject to statutory limitation .

Documents [ concerning ] NORP and NORP atrocities on the NORP

“ From the land of the dead ”

A NORP émigré and a native PERSON – PERSON DATE a famous author and a critic of technologies ( “ ORG than a CARDINAL Suns ” ) , even before the so - called “ regular ” expulsion had begun , published in the GPE “ ORG ” a report about the conditions prevailing in the eastern regions of GPE occupied by the NORP based on his own experience . His report was entitled “ From the land of the dead ” .

We quote some passages :

“ Whoever leaves the NORP zone and reaches the territory occupied by the NORP can immediately breathe again . He leaves behind totally looted towns , plague - stricken villages , concentration camps , barren fields , streets full of corpses , in which thieves lurk , and rob the expellees of their last belongings ... It is true that on a public square in town PERSON girls , women and old women were raped by relatives of the NORP militia . It is true that at the railway station in S. all trains transporting refugees were systematically looted to such an extent that the people in them had to travel west naked . It is true that in the heart of GPE not CARDINAL child under DATE is still alive , because all of them have died of hunger or been killed . It is true that in GPE women suffering from syphilis ( who were earlier raped – editor ) received as a “ therapy ” a shot in the head . It is true that there has been a wave of suicides in the country , in some towns CARDINAL and in some even CARDINAL of the population have taken their lives . It is true that in the so - called labour camps in GPE and S. prisoners are made to spend the whole night up to their necks in icy water and that they are beaten until they lose consciousness . ”

Was DATE a liberation ?

Mass deaths in the foreign extermination camps

After the end of the war CARDINAL NORP were robbed , expelled , raped , attacked and murdered

More NORP died in GPE and on the territories occupied by the NORP in CARDINAL camps than those who died in transit following expulsion . In the ORG camp in GPE , of the CARDINAL [ people ] held there CARDINAL died . In the other labour camps in LOC unspeakable cruelty reigned too . It was common practice in the different camps to shoot , as planned in advance , those who were too old , unable to work or ill .

The forced labour and suffering in a camp can not be compensated with money , regardless of the amount . What is necessary is awareness of those crimes in the countries where the atrocities occurred . What is also necessary is that the surviving responsible parties be judged . As for that , there is total silence surrounding the issue of the NORP victims . ”

The second poster contained , inter alia , the following passages :

“ Documents on NORP and NORP atrocities ... Are our GPE - friends avoiding a new evaluation of their history ? ? CARDINAL NORP were robbed and expropriated , CARDINAL were sent to concentration camps and to forced labour ... CARDINAL NORP were killed ... Where there is no accuser , there is no judge ... there were only NORP ... Second - class people ? ?

Overall CARDINAL NORP died , including CARDINAL after the end of the war .

A peaceful LOC may exist only on the foundation of law and truth . The restitution of houses and plots of land expropriated against the law of nations should be a given in the now democratic GPE and GPE . ”

On DATE the prosecution filed a bill of indictment against the applicants with the ORG . They were charged with the commission of CARDINAL offences : publicly insulting the NORP nation ( LAW ) and incitement to hatred based on national differences ( LAW ) . It was alleged that DATE the applicants had put up no less than thirtytwo posters at bus stops and on poster pillars in towns close to the NORP border . According to the prosecution , the posters contained untrue statements about alleged mass crimes committed by NORP against the NORP civilian population during and after the Second World War and graphic photographs of unknown origin . Furthermore , the applicants had created tension between the NORP and NORP nations on account of their demand for land and property left by the NORP population on NORP territory to be returned .

On DATE the ORG decided that it did not have jurisdiction to examine the applicants’ case and transferred it to the Jelenia ORG . It found that the acts imputed to the applicants were to be considered administrative offences against public order . The prosecution appealed against that decision . On DATE ORG quashed the decision and remitted the case to ORG . It held that ORG could not review the soundness of the prosecution ’s legal classification of the alleged offences at the preliminary stage of the proceedings to determine jurisdiction .

On DATE ORG gave judgment . It held that the applicants had committed the impugned offences and decided to suspend the criminal proceedings against them for a DATE probation period . Each applicant was ordered to pay MONEY ( ORG ) to a children ’s home .

ORG appealed against the judgment . She argued , inter alia , that ORG had erred in finding that the degree of guilt and social danger of the acts imputed to the applicants had been negligible . On DATE ORG quashed ORG judgment and remitted the case .

On DATE ORG gave judgment . The applicants were convicted of insulting the NORP nation and inciting hatred between the NORP and the NORP nations in that on DATE and on TIME CARDINAL DATE in GPE they had put up in public places posters containing untrue statements about alleged mass crimes committed by the NORP against the NORP civilian population during and after the Second World War and containing graphic photographs of unknown origin ; they had further created tension between the CARDINAL nations by demanding the return of land and property left by the NORP population on NORP territory . They were also convicted of attempting to put up other similar posters .

ORG sentenced the first applicant to CARDINAL months’ imprisonment and the CARDINAL remaining applicants to CARDINAL months’ imprisonment . It conditionally suspended the prison sentences for a DATE period .

NORP The court based its findings on an opinion prepared by CARDINAL professors from the law , history and sociology departments of ORG . CARDINAL of the experts were also members of ORG in GPE .

ORG , having regard to the collected evidence , found the applicants guilty of publicly insulting the NORP nation and of inciting national hatred . It found , in so far as relevant :

“ The offence specified in LAW is committed , inter alia , by a person who publicly insults the NORP nation . The interpretation of the term “ insult ” can be made on the basis of the system of values existing in a given society , whereas the meaning of this word should reflect the meaning attributed to it in ordinary language . To insult is to offend somebody or something by word or act . ... It is an act which consists of showing contempt , damaging respect or reputation .

The term “ insult ” belongs to the category of value judgments and can have various meanings . It is accepted that the interpretation of this term should be made on the basis of criteria which are as objective as possible and of commonly accepted values . An insult amounts to an expression of contempt , humiliation and affront . ( ... )

The offence specified in LAW is committed , inter alia , by a person who publicly incites hatred on the basis of national differences . Such act consists in sowing the seeds of dislike and hostility .... ”

With regard to the applicants’ motives , the court noted that they claimed to have put up posters in GPE with a view to informing the NORP public about the massacres of the NORP population during the period of its expulsion . It did not accept that claim as credible and held as follows :

“ The posters contain many untruths concerning the NORP . It transpires from the expert opinion that the information with regard to the death rate among the NORP and to the deportations were deliberately presented in a chaotic manner – without making a distinction as to whether they took place under the NORP or NORP administration , or on the territory of GPE – and were presented in such a way as to give grounds for accusation mainly against the NORP .

The numbers cited on the posters were taken from some biased anti - NORP political pamphlets . The information quoted from the article by PERSON about the situation prevailing on the territories transferred to NORP administration following the undertakings of ORG is untrue –information about the real perpetrators of , inter alia , the ordinary criminal acts was deliberately omitted . The information about NORP held in concentration camps in GPE after the end of the war is also untrue , since such camps did not exist , and the photographs on the posters have no documentary value and it is impossible to identify them .

The experts clearly affirmed in their opinion that the contents of the posters are untrue and are not supported by the research of NORP and NORP historians .

It is of particular importance that the accused were previously sentenced in GPE for the commission of an administrative offence under LAW , which consisted of putting up CARDINAL crosses with the inscription ‘ The Germans CARDINAL - CARDINAL’ . This act of the accused had significant social repercussions , and the fact that they were sentenced indicates that they had to be aware of the legal and social consequences of putting up the posters .

The accused insulted the NORP nation by putting up the posters . The untruths included in the posters insult the NORP nation , since imputing to the NORP the alleged crimes – which are not scientifically proved – is an affront to the NORP nation . This interpretation of the posters is based , among other things , on the assessment of their contents by third persons and on the reactions of the people who saw the posters . ”

The trial court further held :

“ The contents of the posters may obviously arouse feelings of unrest , dislike or antagonism between the NORP and NORP nations . The emphasis in the posters on the alleged NORP crimes , and the inclusion of groundless demands for the return of houses and land left by the NORP population on NORP territory , may presently revive or arouse antagonism on the part of the NORP towards the NORP . In accordance with the expert opinion the inclusion in one of the posters of a photograph of a skull was solely aimed at stirring up hatred . ...

With regard to the sentence , the court had regard to the ORG previous conviction by a judgment of the FAC of CARDINAL DATE for an administrative offence specified in LAW § CARDINAL of the Code of Administrative Offences .

The applicants filed an appeal . Firstly , they alleged that the court had committed a number of procedural errors . They claimed , inter alia , that when considering whether the offence of insulting the NORP nation had been committed , the trial court had blindly followed the expert opinion prepared by historians and failed to properly consider the matter itself and to examine the contents of the posters . Furthermore , the court had wrongly assumed that inclusion in the poster of inaccurate data related to historical events had implied that the content was insulting and incited hatred .

The applicants contested the trial court ’s refusal to admit certain evidence and alleged that it had arbitrarily assessed the evidence . In particular , they challenged its refusal to admit a second expert opinion alleging that the first one had been contradictory . In their view , the trial court had erred in considering that the contents of the posters was capable of stirring up unrest , dislike and antagonism and that they had acted with the intention of insulting the NORP nation and inciting hatred .

They averred that the exaggerated manner of their expression concerning the relations between the NORP and the NORP had been exclusively aimed at prompting a discussion about their relations with a view to reconciliation , and could not be considered in any way as an insult . In this connection , they claimed that the posters contained some true historical information and some which was the subject of historical dispute .

With regard to the alleged insult to the NORP nation , they argued that the trial court had failed to distinguish between statements which were unfavourable to the NORP nation and those which were insulting . Furthermore , LAW should have been construed narrowly in a modern ORG based on the rule of law and could not be used as a tool to protect CARDINAL interpretation of history .

On DATE ORG dismissed the applicants’ appeal and upheld the first - instance judgment .

The Court of Appeal found that the trial court had committed no errors of procedure . The evidence collected in the case had been comprehensive and sufficient to examine the case and there was no need to admit the evidence proposed by the applicants .

ORG noted that it had been necessary to examine the applicants’ actions in the historical context of the Second World War and the period following it . To this end the court had ordered the preparation of an opinion by professors from ORG . They had been asked to consider the content of the posters and had stated that :

“ the contents of the posters were entirely untrue and contained false information about the situation prevailing on the territories transferred to NORP administration following the undertakings of ORG . The posters also contained untrue information about NORP losses which did not correspond to the results of research carried out by NORP and NORP historians ” .

ORG dismissed the applicants’ arguments that the opinion had been incomplete and contradictory . It also rejected their view that the experts had not been in a position to assess whether the contents of the posters had been insulting to the NORP nation or had incited national hatred . ORG noted that in historical studies there could be certain differences of opinion as regards , for example , the extent of NORP losses after DATE war . The experts had , however , considered this issue , referring to the results of NORP research . Furthermore , it observed that although the human tragedies experienced by the NORP , occasioned by their expulsion in particular , could not be disregarded , those events could not be detached from the historical context , namely , the reasons for and the consequences of the Second World War , including the undertakings of ORG .

Article CARDINAL provides as follows :

“ GPE shall ensure freedom of the press and other means of social communication . ”

Article CARDINAL of the LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :

“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL § CARDINAL of the LAW guarantees freedom of expression . It states , in so far as relevant :

“ The freedom to express opinions , to acquire and to disseminate information shall be ensured to everyone . ”

Article CARDINAL § CARDINAL of the LAW reads :

“ Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof , and which is subject to a penalty , shall be held criminally responsible . This principle shall not prevent punishment of any act which , at the moment of its commission , constituted an offence within the meaning of international law . ”

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Article CARDINAL of the LAW , insofar as relevant provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”

Article CARDINAL of the Criminal Code provides as follows :

“ Anyone who insults the ORG or GPE in public shall be subject to deprivation of liberty for DATE . ”

Article CARDINAL of the Criminal Code read , at the material time , as follows :

“ Anyone who publicly promotes a fascist or other totalitarian system of state or incites hatred based on national , ethnic , racial or religious differences or for reason of lack of any religious denomination shall be subject to a fine , restriction of liberty or deprivation of liberty for DATE . ”

LAW CARDINAL of LAW provides for reopening of the proceedings following a judgment of ORG . It reads as follows :

“ The proceedings shall be reopened to the benefit of the accused when as a result of ORG judgment a provision of law which served as the basis for conviction or conditional discontinuation [ of the proceedings ] was abolished or amended . ”


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

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

The Government of GPE ( “ the Government ” ) were represented by their Deputy Agent , PERSON .

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

After its declaration of independence on DATE , a brutal war started in GPE . It would appear that CARDINAL people lost their lives and CARDINAL people were displaced in the course of the war . It is estimated that around CARDINAL people went missing and that around DATE of them is still missing . The conflict came to an end on DATE when ORG in GPE entered into force . In accordance with that Agreement , GPE consists of CARDINAL Entities , ORG and PERSON .

NORP In response to atrocities then taking place in GPE , on DATE ORG passed LAW establishing ORG for the former GPE ( “ the ORG ” ) , headquartered in GPE . CARDINAL individuals have already been convicted and proceedings are ongoing for CARDINAL accused . In the period from DATE until DATE , local prosecutors in GPE and GPE were required to submit case files to the ORG for review ; no person could be arrested on suspicion of war crimes unless ORG had received the case file beforehand and found it to contain credible charges ( the “ Rules of the Road ” procedure ) . Moreover , the ORG had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice . As part of the ORG ’s completion strategy , in DATE war crimes chambers were set up within ORG ( “ the ORG ” ) with primacy over other courts in GPE as regards war crimes . CARDINAL persons have been finally convicted by ORG . Many others have been convicted by the competent Entity courts ( see paragraphs CARDINAL below ) .

Furthermore , ORG on ORG ( “ the ICMP ” ) was established at the initiative of GPE President PERSON in DATE . It is currently headquartered in GPE . Reportedly , the ICMP has so far identified by DNA CARDINAL missing persons in GPE , whereas local authorities have identified CARDINAL missing persons by other methods . In DATE the Government of GPE and the ICMP established a ORG , also headquartered in GPE ( see paragraph CARDINAL below ) . It became operational on DATE .

The applicant ’s father , PERSON , disappeared in unknown circumstances in an area controlled by the ORG forces ( PERSON in the vicinity of PERSON ) on an unknown date in DATE .

On DATE PERSON , one of the war - time leading political figures of PERSON , pleaded guilty before the ORG to having participated in the persecution of Bosniacs and NORP from certain territories of GPE . She was sentenced to CARDINAL years’ imprisonment .

Cases against PERSON , the war - time civilian leader of ORG , ORG , the war - time military leader of that Entity , and PERSON , a leading political figure of GPE in DATE , are also pending before the ORG . They are charged with the participation in a joint criminal enterprise to permanently remove ORG and NORP from “ the territories of GPE claimed as NORP territory ” ( see , for example , the third amended indictment against PERSON , § CARDINAL ) .

In the absence of any information about the disappearance and death of the applicant ’s father , no formal charges have been brought yet in respect of this particular case . At the same time , domestic authorities have finalised investigations into some other killings committed as a part of a widespread and systematic attack against the non - NORP civilian population of the pre - war municipality of GPE in DATE ; an indictment has thus far been issued against CARDINAL person – D. Š. – and criminal proceedings are pending .

The applicant did not seek a declaration of presumed death with respect to her father .

NORP The applicant ’s father was identified by DNA on DATE .

On DATE ORG held that there had been a violation of LAW and CARDINAL of the Convention . It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the applicant ’s father and to conduct a full , meaningful , thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant ’s father and bringing the responsible to justice . No compensation was awarded .

LAW entered into force on DATE ( ORG GPE no . CARDINAL ) . In accordance with section CARDINAL of the Act , families have the right to know the fate of missing persons ( that is , their whereabouts if they are still alive , or the circumstances of death and their place of burial , if they are dead ) and to obtain their mortal remains . Under section CARDINAL of the Act , the relevant domestic authorities have the obligation to provide any and all such information in their keeping .

Section CARDINAL of that LAW provides for the setting up of a Missing Persons Institute . In DATE the ICMP and the Government of GPE founded the ORG , headquartered in GPE , pursuant to that provision and the Agreement on Assuming ORG - founders of ORG , no . CARDINAL/CARDINAL ) . It became operational on DATE . CARDINAL of the organs of that ORG , comprised of CARDINAL representatives of families of missing persons ( see LAW mentioned above ) .

In accordance with section QUANTITY , the status of missing person comes to an end on the date of identification . Therefore , if a missing person is declared dead but the mortal remains have not been found and identified , the process of tracing continues .

Pursuant to LAW , the families of missing persons are entitled to DATE financial support under some conditions , notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support ( in other words , if they are not in paid employment and do not receive welfare benefits beyond PERCENT of the average salary paid in GPE ) . LAW provides for the setting up of ORG for that purpose . However , as the ORG has not yet been established , no payment has been made so far .

Families of missing persons are also entitled to , inter alia , temporary administration of the property of missing persons , burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons ( section CARDINAL of the Act ) .

Section CARDINAL of the LAW provides for the setting up of ORG with the aim of verifying information about missing persons from different sources ( government agencies , associations of families of missing persons , the FAC and ORG ) and creating a single database . While ORG were founded on DATE , it would appear that the verification process is still ongoing . Once that process is completed , all those recorded as missing will be declared dead ( section CARDINAL of the Act ) , but the tracing process will nevertheless continue ( see paragraph CARDINAL above ) .

NORP Despite the fact that the verification process outlined in paragraph CARDINAL above is pending , any person may request that a declaration of presumed death be issued with respect to a missing person ( see LAW DATE , ORG GPE , nos . CARDINAL , CARDINAL , CARDINAL ; and ORG DATE , ORG of ORG , no . CARDINAL ) .

DATE War crimes cases fall , as a general rule , under the jurisdiction of ORG , but ORG may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph CARDINAL below ( see LAW ) . For example , only in DATE ORG transferred CARDINAL cases to CARDINAL Entity courts .

In accordance with ORG on ORG of DATE the following types of cases were , as a rule , to be heard before ORG : ( a ) cases concerning genocide , extermination , multiple murders , rape and other serious sexual assaults as part of a system ( such as in camps ) , enslavement , torture , persecution on a widespread and systematic scale , mass forced detention in camps ; ( b ) cases against past or present military commanders , past or present political leaders , past or present members of the judiciary , past or present police chiefs , camp commanders , persons with a past or present notorious reputation , multiple rapists ; ( c ) cases with insider or suspect witnesses ; ( d ) if there was a risk of witness intimidation ; and ( e ) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes . All other war crimes cases were , as a rule , to be heard before the Entity courts .

In DATE the authorities adopted ORG , providing a new set of criteria . However , they are almost identical to those outlined in paragraph CARDINAL above . In addition , the Strategy defines the time - frames , capacities , criteria and mechanisms for managing those cases , standardisation of court practices , issues of regional cooperation , protection and support to victims and witnesses , as well as financial aspects , and supervision over the implementation of the Strategy . CARDINAL of its objectives is to process the most complex and top priority cases within DATE ( that is , by DATE ) and other war crimes cases within DATE ( that is , by DATE ) . In order to comply with that time - frame , the local authorities have , inter alia , almost doubled the number of ORG prosecutors in charge of war crimes ( from DATE ) in DATE .


No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)

Aleš Pejchal;András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Ineta Ziemele;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Paul Lemmens;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva;Ksenija Turković

The applicant was born in DATE and lives in LOC ) . At the time of the events which are the subject of the present application he was an investment consultant .

On DATE the applicant and ORG , a commercial company incorporated under NORP law , signed an acknowledgment of debt deed before a notary . Under the terms of the deed the applicant declared that he had borrowed MONEY ( ORG ) from ORG and undertook to repay that sum with interest by DATE . The deed also contained choice of law and jurisdiction clauses according to which it was governed “ in all respects ” by NORP law and the NORP courts had nonexclusive jurisdiction to hear any disputes arising out of it . The applicant ’s address was given as PERSON Street in GPE and was indicated as follows :

“ [ FOR ] GOOD AND VALUABLE CONSIDERATION , I , ORG , of [ no . ] , PERSON [ street ] , CARDINALrd floor , GPE , GPE , [ postcode ] GPE ... , ( ‘ the PERSON ) ... ”

NORP In DATE ORG brought proceedings against the applicant in LOC ( PERSON , GPE ) , alleging that he had not repaid the above - mentioned debt and requesting that he be ordered to pay the principal debt together with interest . In the GPE proceedings the applicant submitted that he had in fact already repaid the debt before the proceedings were instituted in the NORP court , not by paying the sum of money in question to ORG but by other means linked to the capital of ORG parent company . However , he acknowledged that there was no documentary evidence of this . The respondent Government contested the applicant ’s submission .

In an order dated DATE ORG authorised the “ sealing and filing of the writ of summons ” . On DATE a “ specially endorsed writ ” was drawn up , describing the facts of the case in detail . It gave the applicant ’s address as G. Street in GPE , the address indicated on the acknowledgment of debt deed .

Since the applicant was not resident in GPE , ORG made an ex parte application to the same ORG on DATE seeking a fresh order enabling a summons to be served on the applicant outside the country and requiring him to appear within DATE from the date of issuing of the summons . The claimant company ’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in FAC in GPE and could actually receive judicial documents at that address . The applicant , for his part , contended that it would have been physically impossible for him to receive the summons at the address in question , which was simply the address at which he had signed the loan contract and the acknowledgment of debt deed in DATE and was not his home or business LOC .

On DATE ORG ordered that notice of the proceedings be served on the applicant at the address provided by the claimant company . The applicant was summoned to appear or to come forward within DATE of receiving the summons . If he did not do so the court would make no further attempt to contact him and would instead post all future announcements concerning the case on the court noticeboard .

An affidavit produced by an employee of the firm of lawyers representing ORG showed that , in accordance with the court order , the summons had been sent by recorded delivery to the address in FAC in GPE on DATE . However , the copy of the summons furnished by ORG indicated that it had been drawn up on DATE . The slip produced by the NORP postal service stated that the summons had been sent on DATE to the address in PERSON Street , and had been delivered and signed for on DATE . However , the signature on the slip did not appear to correspond to the applicant ’s name . The applicant claimed never to have received the summons .

As the applicant did not appear , ORG ruled in his absence on DATE . It ordered him to pay the claimant MONEY or the equivalent in NORP pounds ( ORG ) , plus interest at an DATE rate of PERCENT of the aforementioned amount from DATE until payment of the debt . The applicant was also ordered to pay costs and expenses in a gross amount of ORG MONEY , plus interest at an DATE rate of PERCENT . According to the judgment , the final version of which was drawn up on DATE , the applicant had been duly informed of the hearing but had not attended . The judgment did not state whether the decision was final or indicate possible judicial remedies .

On DATE ORG applied to ORG ( PERSON pilsētas ORG priekšpilsētas tiesa , GPE ) seeking recognition and enforcement of the judgment of CARDINAL May CARDINAL . In its request the company also sought to have a temporary precautionary measure applied . It stated that the applicant was the owner of real property in GPE district ) which according to the land register was already mortgaged to a bank . Accordingly , fearing that the applicant might seek to evade enforcement of the judgment , it asked ORG to place a charge on the property in question and record the charge in the land register . Lastly , it requested that the applicant be ordered to pay the costs . In its request the company gave as the applicant ’s place of residence an address in Č. Street in GPE which differed from the address previously notified to the NORP court .

On DATE ORG adjourned examination of ORG request , informing the company that the request contained a number of defects which it had DATE to correct . In particular , ORG had not explained why it had given an address in Č. Street when the applicant was supposedly resident in FAC .

On DATE ORG submitted a corrigendum in which it explained , among other points , that according to the information contained in the register of residents ( ORG reģistrs ) , the address in Č. Street was the applicant ’s officially declared home address . As to the address in PERSON Street , the company ’s representatives had assumed it to be the applicant ’s actual residence . In that connection the NORP Government provided the ORG with a copy of a letter from the authority responsible for the register of residents according to which , prior to DATE , the applicant ’s officially declared address had been in Č Street .

NORP In an order of CARDINAL DATE ORG ruled that the corrigendum submitted by ORG was insufficient to remedy all the defects in its request . The court therefore declined to examine the request and sent it back to the company . The latter lodged an appeal with ORG ( PERSON apgabaltiesa ) , which on DATE set aside the order of CARDINAL DATE and remitted the case to ORG in order for the latter to examine the request for recognition and enforcement as rectified by the corrigendum of CARDINAL DATE .

In an order of DATE issued without the parties being present , ORG granted ORG request in full . It ordered the recognition and enforcement of ORG judgment of CARDINAL DATE and the entry in the Garkalne municipal land register of a charge on the property owned by the applicant in that municipality . The applicant was also ordered to pay the costs .

According to the applicant , it was not until DATE that he learned , from the bailiff responsible for enforcement of the NORP judgment , of the existence of that judgment and of ORG order for its enforcement . On DATE ( DATE ) he went to ORG , where he acquainted himself with the judgment and the order . The respondent Government did not dispute these facts .

The applicant did not attempt to appeal against the NORP judgment in the NORP courts . However , he lodged an interlocutory appeal ( blakus sūdzība ) against the order of CARDINAL DATE with ORG , while asking ORG to extend the time allowed for lodging the appeal . Arguing that there was nothing in the case file to confirm that he had been given notice of the hearing of DATE or of the order issued following the hearing , he submitted that the DATE period laid down by LAW should start running on DATE , the date on which he had taken cognisance of the order in question .

In an order of CARDINAL DATE ORG granted the applicant ’s request and extended the time - limit for lodging an appeal . It noted , inter alia , as follows :

“ ... It is clear from the order of DATE that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties , on the basis of the documents furnished by the claimant , [ ORG ] . The order further states that the defendant may appeal against it within DATE from the date of receipt of the copy [ of that order ] , in accordance with section CARDINAL(CARDINAL ) of LAW .

The court considers the arguments advanced by the applicant , P. ORG , to be wellfounded , to the effect that he did not receive the order ... of DATE until DATE , this being attested to by the reference in the list of consultations [ appended to the case file ] and by the fact that the order , served [ on the applicant ] by the court , was returned on DATE ... It is apparent from the documents appended to the appeal that the applicant has not lived at the declared address in [ Č. ] Street since DATE ; this confirms ... the statement made by his representative at the hearing , according to which the applicant no longer lives at the above - mentioned address .

Accordingly , the DATE period should ... run from the date on which the applicant received the order in question ...

Further , the court does not share the view of the representative of [ ORG ] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his change of address promptly , and that the time allowed [ for lodging an appeal ] should not therefore be extended . The fact that the applicant did not take the necessary legal steps concerning registration of residence is not sufficient to justify a refusal by the court to allow him to exercise the fundamental rights guaranteed by the ORG as regards access to the courts and judicial protection , including the right to appeal against a decision , with the consequences this is likely to entail . ... ”

In his grounds of appeal before ORG the applicant contended that the recognition and enforcement of the NORP judgment in GPE breached ORG ( ORG ) No CARDINAL/CARDINAL of DATE on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( “ ORG ) and several provisions of ORG . He submitted CARDINAL arguments in that regard .

Firstly , the applicant argued that in accordance with LAW corresponding in substance to section CARDINAL(CARDINAL ) , third subparagraph , of ORG ) , a judgment given in default in another Member ORG could not be recognised if the defendant had not been served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence . He maintained that he had not been duly informed of the proceedings in GPE , although both the NORP lawyers who had represented the claimant company in ORG and the NORP lawyers who had represented it in the NORP courts had been perfectly aware of his business address in GPE . In support of that allegation he submitted that he had had professional dealings with the NORP lawyers , who had telephoned him and sent faxes to his office , and had met the NORP lawyers in person . Hence , they must all have been aware of his business address . He added that he could also have been reached at his home address in PERSON , as he had a residence there that was officially declared in accordance with the law and the lawyers could have consulted the municipal land register , where the property he owned was registered under his name . However , instead of serving notice of the proceedings on him at one of those addresses , which had been known and accessible , the lawyers had given the courts an address which they should have realised could not be used .

Secondly , the applicant argued that , under the terms of Article CARDINAL(CARDINAL ) of ORG and section CARDINAL(CARDINAL ) , second subparagraph , of LAW , a judgment had to be enforceable in the ORG of origin in order to be enforceable in the Member ORG addressed . In the instant case , there had been a threefold breach of those requirements . First , the claimant had only submitted the text of the NORP court judgment to the NORP court and not the certificate required by ORG to ORG . In that connection the applicant acknowledged that under LAW in which enforcement was sought could , in some circumstances , exempt the claimant from the obligation to produce a certificate . However , in the present case ORG had not made clear whether it considered that the claimant could be exempted from that obligation and , if so , for what reason . Second , the NORP judgment had contained no reference to the fact that it was enforceable or to possible judicial remedies . Third , although a judgment had to be enforceable in the country of origin in order to be enforced in accordance with ORG , the claimant company had not produced any documentary evidence demonstrating that the judgment of CARDINAL DATE was enforceable in GPE . In view of all these circumstances , the applicant contended that the judgment could on no account be recognised and enforced in GPE .

In a judgment of DATE ORG allowed the applicant ’s appeal on the merits , quashed the impugned order and rejected the request for recognition and enforcement of the NORP judgment .

F.H. Ltd. lodged an appeal against that judgment with the ORG of ORG , which examined it on DATE . At the start of the hearing ORG submitted copies of several documents to the ORG , including the certificate referred to in LAW and Annex V thereto . The certificate was dated DATE and had been signed by an acting judge of ORG . It stated that the document instituting the proceedings had been served on the applicant on DATE . The last part of the certificate , intended for the name of the person against whom the judgment was enforceable , had been left blank . When asked to comment on these documents the applicant ’s lawyer contended that they were clearly insufficient to render the judgment enforceable .

In a final judgment of DATE ORG quashed and annulled ORG judgment of DATE . It granted ORG request and ordered the recognition and enforcement of the NORP judgment and the entry in the land register of a charge on the applicant ’s property in Garkalne . The relevant extracts from the judgment read as follows :

“ ... It is clear from the evidence in the case file that the GPE ORG judgment became final . This is confirmed by the explanations provided by both parties at ORG hearing on DATE , according to which no appeal had been lodged against the judgment , and by the certificate issued on DATE ... As [ the applicant ] did not appeal against the judgment , his lawyer ’s submissions to the effect that he was not duly notified of the examination of the case by a foreign court lack relevance [ nav būtiskas nozīmes ] .

Having regard to the foregoing , the ORG finds that the judgment of ORG ( GPE ) of CARDINAL May CARDINAL must be recognised and enforced in GPE .

Article CARDINAL of the [ GPE I ] Regulation provides that a foreign judgment may under no circumstances be reviewed as to its substance ; in accordance with section CARDINAL ) of LAW , once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by that PERSON . ... ”

On DATE ORG , basing its decision on ORG judgment , issued a payment order ( izpildu raksts ) . The applicant complied immediately with the terms of the order and paid the bailiff employed by the claimant company a total of CARDINAL NORP lati ( ORG , MONEY ( ORG ) ) , comprising ORG CARDINAL for the principal debt and ORG in enforcement costs . He then requested that the charge on his property in Garkalne be lifted . In CARDINAL orders dated DATE the judge with responsibility for land registers ( PERSON nodaļas tiesnesis ) refused the request . The applicant lodged an appeal on points of law with the ORG of ORG , which , in an order of DATE , lifted the charge on his property .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE .

The applicant is a teacher in a high school . At the material time he was a member of the local branch of the trade union of ORG and ORG LOC ) .

In DATE , disciplinary proceedings were instituted against the applicant for putting up a notice encouraging the participation in a press statement published by his Union on the notice board that was set aside for that particular purpose in their office , and for distributing it in CARDINAL of the common areas at school .

On DATE ORG imposed a disciplinary sanction in the form of a reprimand on him , for putting up and distributing notices produced by the trade union , of which he was a member , under LAW no . CARDINAL on ORG .

On DATE the applicant objected to this decision and requested its annulment .

On DATE ORG of the GPE district governor dismissed the applicant ’s objection considering that the contested decision was in accordance with law and there were no grounds for its annulment .