Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in PERSON . In DATE he was convicted of a fraud offence and served a sentence of imprisonment in FAC from DATE to CARDINAL DATE . On DATE he was arrested on suspicion of unlawful possession of firearms . DATE and DATE he was detained on remand in FAC , where he claimed to have been detained with “ recidivist ” prisoners ( see paragraph CARDINAL below ) .

As he had never finished his secondary education , the applicant requested to be enrolled in the school operating inside FAC . In DATE he submitted a written request to the governor of ORG , asking to be enrolled for the DATE . He received no reply before DATE began on DATE , so he wrote again to the governor on DATE and also to ORG and ORG ( in GPE , the Prosecutor is the authority competent to oversee the lawful execution of pretrial and post - conviction detention ) . The applicant received a letter from the Prosecutor , dated DATE , which said that the prison administration had taken due account of the possibility for the applicant to study , in view of his previous sentence . The ORG further stated that the applicant ’s assertion regarding refused access to education had not been confirmed . The applicant also received a reply , dated DATE , from ORG . The letter stated that individuals deprived of their liberty ( лишени от свобода ) were entitled to continue their education in prison and made no specific reference to remand prisoners .

In the meantime , on DATE the applicant sent another request to the prison governor , ORG and ORG . On DATE the applicant filed a new request with the prison governor , again asking to be enrolled in the prison school for the DATE . Referring to the letter of DATE , the applicant argued that ORG had recognised his right to access to education in prison . On DATE he received a reply signed by the Head of the Execution of Punishments Directorate of the Ministry of Justice , rejecting his request . The letter stated , inter alia :

“ It was established that [ the applicant ] has not yet been convicted . Once convicted , he is to be transferred to a prison for recidivists .

The inclusion of recidivists in the educational and work programmes in a prison for non - recidivists would lead to a breach of the requirement that different categories of inmates are to be kept apart and are to participate separately in correctional programmes ... ”

On DATE the applicant appealed against the refusal to enrol him in the school , claiming that in the absence of a second sentence of imprisonment he could not be treated as а “ recidivist ” . In his written pleadings he relied explicitly on the right to education as guaranteed by LAW and by LAW , as well as on LAW of ORG for the Treatment of Prisoners , which provided , inter alia , that “ [ p]rovision shall be made for the further education of all prisoners capable of profiting thereby ” . In the applicant ’s opinion LAW DATE ( see paragraphs CARDINAL - CARDINAL below ) imposed the same obligation on the authorities to provide access to education to prisoners detained on remand as the obligation to provide such access to sentenced prisoners . The refusal pursued no legitimate aim and was contrary to LAW DATE and ORG in Education ( published in ORG in DATE ) . During the hearing he indicated that other persons in his situation were allowed to study and that the prison authorities had not shown any legal ground for their refusal . The prison governor admitted that there had previously been a practice of providing access to the school , but that this had been discontinued because of concerns about the influence of “ recidivists ” on “ non - recidivists ” . The applicant had been refused access as he was to be treated as a “ recidivist ” within the meaning of LAW DATE ( see paragraph CARDINAL below ) and could not attend the school because this would bring him into contact with non - recidivists .

In a judgment of DATE , ORG allowed the applicant ’s appeal and ordered the governor to include him in the prison ’s educational programme . It found , in particular , that the refusal of the prison governor was based on the assumption that the applicant was a “ recidivist ” and that since LOC was a prison for “ nonrecidivists ” , it was the duty of the prison administration to exclude him from programmes involving other inmates , most of whom were “ nonrecidivists ” . The court held that the applicant could not be considered a “ recidivist ” , as defined by LAW because , although he had previously received a sentence of imprisonment , the current set of proceedings against him were still pending and he had not yet been convicted and sentenced a second time . The rule requiring that “ recidivists ” be kept separately from “ non - recidivists ” in prison was , therefore , inapplicable .

The prison governor appealed against that judgment . He argued that , in accordance with the principle for differentiated treatment of the various categories of prisoner , the applicant was accommodated in the group of those remand prisoners who , if convicted , would fall within the category of “ recidivists ” . Moreover , LOC was a prison for “ non - recidivists ” and the accommodation of “ recidivists ” , including remand prisoners treated as such , was exceptional .

Before the examination of the appeal , on DATE the applicant requested the governor to enrol him in the prison school for DATE , starting DATE . As he received no reply to his request , on CARDINAL September CARDINAL he filed a similar request with ORG .

On DATE ORG gave a final judgment in respect of the applicant ’s complaint about exclusion from the school . Before ORG , the prosecutor ( who intervenes in all ORG proceedings ) was of the view that the decision of ORG was correct and that the prison governor ’s appeal should be dismissed . The prosecutor further expressed the view that the grounds for the cassation appeal were unclear and based on an incorrect interpretation of the applicable law , contrary to the correct interpretation given by the first - instance court in the decision appealed against . In its decision ORG noted that before DATE amendments , LAW imposed an obligation for the mandatory education of all prisoners DATE . The current provision envisaged mandatory education only for persons DATE ; for those aged DATE and over there was an obligation on the State to make education available for prisoners who wished to take part . However , convicted prisoners had a right under domestic law to access education only where they had been sentenced to DATE or more of imprisonment , to ensure that they would have the possibility of completing DATE ( see paragraphs CARDINAL below ) . ORG concluded :

“ [ T]he right to education ( whether mandatory or voluntary ) is envisaged and regulated in the legislation of GPE solely in regard of persons deprived of liberty as a result of a final conviction [ лишаване от свобода ] and not in regard of those deprived of liberty pursuant to a measure of remand [ задържане под стража ] . ”

It followed that the question whether the prison authorities unlawfully considered the applicant to be a “ recidivist ” was irrelevant .

Referring to that judgment , on DATE the Execution of Punishments Directorate replied to the applicant ’s requests of CARDINAL DATE and DATE , informing him that he would not be enrolled in the prison school for DATE .

Subsequently , the applicant was convicted and sentenced to imprisonment in respect of the firearms offence . He was removed from FAC on DATE and transferred to ORG to serve his sentence . The Government informed the ORG that the applicant did not file any requests to take part in educational activities while at that prison . However , in his observations to the ORG , the applicant stated that he did not file a request because there was no school at FAC . In addition , he sent the ORG documents which indicated that CARDINAL prisoner considered a “ recidivist ” had participated successfully in the education programme at FAC . The applicant was released from FAC on DATE .


CASE OF DANIEL FAULKNER v. THE UNITED KINGDOM

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The applicant was born in DATE and is detained in FAC , ORG .

On DATE the applicant was sentenced by ORG to custody for life for causing grievous bodily harm . The minimum period ( “ tariff ” ) was set at DATE , DATE , less time spent on remand . The tariff expired on DATE and he became eligible for parole .

ORG subsequently examined his case in order to review whether his detention remained necessary for the protection of the public . On DATE it decided not to direct his release but recommended that he be transferred to open conditions . That recommendation was rejected by the Secretary of ORG .

A second recommendation to the same effect was made , following the applicant ’s second ORG review on DATE and rejected by the Secretary of ORG on DATE . At the conclusion of its statement of reasons for rejecting the ORG ’s recommendation , ORG ( “ NOMS ” ) wrote :

“ The Secretary of ORG has therefore decided that you should remain in closed conditions and your next review will conclude in DATE . ”

The accompanying letter stated :

“ It has been decided that your case will next be referred to ORG for a provisional hearing to take place in DATE .

You will be notified by ORG nearer the time about the exact date of that hearing .

At your next review ORG will consider your suitability for release by way of a paper panel . This consideration will take place DATE prior to your provisional hearing [ in DATE ] . If you are not content with the paper panel ’s decision you may request that the case proceeds to the arranged oral hearing . ”

The case was referred to ORG on DATE . On DATE the applicant and ORG were sent relevant reports as required by the applicable rules . On DATE ORG gave case - management directions requiring additional reports . On DATE ORG received the further reports requested . The hearing took place on DATE . On DATE ORG directed the applicant ’s release . He was released from prison DATE .

Meanwhile , in DATE , the applicant commenced judicial review proceedings against the Secretary of ORG and ORG seeking damages for the delay in holding the hearing . He relied on LAW . He was granted permission to bring proceedings on DATE .

On DATE the claim was dismissed by ORG . Leave to appeal was granted by ORG on DATE .

On DATE ORG handed down its judgment . After carefully reviewing the facts and the individual periods of delay encountered , it concluded that there had been a delay of DATE , from DATE to DATE , in the holding of ORG hearing which was unjustified and for which the Secretary of ORG was responsible . This delay had prevented the applicant from having the lawfulness of his continued detention decided in accordance with LAW . On the question of damages , the court was satisfied that the applicant had shown , on a balance of probabilities , that he would have been released had the review taken place in DATE . Damages on the basis of a loss of liberty were therefore appropriate .

In its judgment of CARDINAL DATE on the amount of damages to be awarded , the court considered a number of just satisfaction awards in cases before this ORG in which breaches of LAW had been found . It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that , but for the delay in the holding of the hearing , the applicant would have been released earlier . It awarded the sum of MONEY ( “ GBP ” ) by way of compensation for the loss of CARDINAL months’ conditional liberty .

The applicant sought leave to appeal to ORG on the ground that the award was inadequate . ORG sought leave to appeal on the ground that the award was excessive . Leave was granted to both parties , and the applicant was in addition given permission to argue that his detention after DATE constituted false imprisonment at common law or a violation of LAW . In respect of his latter argument , he relied on this ORG ’s findings in PERSON , PERSON and PERSON v. the GPE , nos . CARDINAL , CARDINAL/CARDINAL and CARDINAL , DATE .

In its judgment of CARDINAL DATE ORG unanimously rejected the applicant ’s appeal and allowed the appeal of ORG , reducing the damages award to GBP CARDINAL .

As regards the alleged violation of LAW , Lord PERSON , giving the leading opinion , observed that LAW provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under LAW . However , he added , a violation of LAW did not necessarily result in a violation of LAW . He considered this ORG ’s judgment in PERSON , PERSON and PERSON , cited above , not to be directly relevant to the applicant ’s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses , and not for loss of liberty . Lord PERSON noted that the delay in the applicant ’s case appeared to have been the result of errors by administrative staff , “ of a kind which occur from time to time in any system which is vulnerable to human error ” . While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant ’s detention , they were not of such a character , and the delay was not of such a degree , as to warrant the conclusion that there had been a breach of LAW .

On the matter of damages for the violation of LAW , Lord PERSON reviewed relevant case - law of this Court where a violation of LAW , DATE had been found , focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released . He considered that no clear guidance could be derived from the cases since none concerned awards for loss of liberty resulting from a violation of the speedy decision guarantee in LAW . While , he said , an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance , in the applicant ’s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character . For that purpose , the court had undertaken a fuller analysis of the case - law of this ORG than ORG . Lord PERSON concluded :

“ CARDINAL . ... In the light of that analysis , and applying the general approach which I have described ... , it appears to me that an award in the region of £ MONEY would adequately compensate PERSON for his delayed release , bearing in mind the conditional and precarious nature of the liberty foregone . That amount falls well short of the award of £ MONEY made by ORG . In the circumstances , it is in my view appropriate for this court to allow the ORG ’s appeal and to reduce the award accordingly . ”


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

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 PERSON .


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

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

On DATE bank C. brought enforcement proceedings against the applicant before the ORG seeking the payment of a debt of FAC euros ( ORG ) plus EUR CARDINAL,CARDINAL.CARDINAL in interest .

On DATE a writ of execution was issued against the applicant concerning an apartment he had mortgaged to the bank ( penhora do apartamento ) . On an unspecified date a judicial enforcement officer ( agente de execução ) was appointed by ORG as depositary ( fiel depositário ) , thus being in charge of the apartment and responsible for the course of the enforcement proceedings through the sale of the applicant ’s apartment , pursuant to LAW .

On DATE the applicant lodged a complaint with the ORG regarding the judicial enforcement officer ’s inactivity in the proceedings .

On DATE the applicant lodged a complaint with ORG ( Comissão para a Eficácia das Execuções ) complaining about the judicial enforcement officer ’s professional conduct which was preventing the sale of the applicant ’s apartment . On DATE the Commission acknowledged the receipt of the applicant ’s complaint and in DATE informed him that they would start disciplinary proceedings against the judicial enforcement officer .

On DATE following the applicant ’s complaint of CARDINAL DATE , ORG adopted a decision removing the judicial enforcement officer from his post on the grounds of professional negligence and appointed a new one .

According to the last information received by ORG DATE the proceedings are still pending at first instance .


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

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 T.C. Baltag , a lawyer practising in GPE .

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

On DATE ORG convicted the applicant of driving under influence of alcohol and without a licence , of leaving the place of an accident and of manslaughter . He was sentenced to DATE imprisonment . In application of LAW , his right to vote and to be elected was withdrawn during detention .

The applicant appealed against the decision , complaining mainly about the manner in which the evidence had been assessed and the prison sentence established .

On DATE ORG upheld the decision , after reexamination of the evidence in the file .

The applicant appealed on points of law reiterating the arguments advanced in the appeal proceedings . The applicant complained again about the prison sentence imposed on him . The first hearing took place on DATE . The applicant ’s lawyer filed the reasons for appeal for that hearing . In its final decision adopted on CARDINAL DATE , ORG and ORG upheld the previous decisions .

The relevant provisions of LAW providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence , read as follows :

“ Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty :

( a ) the right to vote and to be elected to bodies of a public authority or to public elective office ; ... ”

“ The secondary penalty shall consist in disqualification from exercising all the rights listed in LAW .

( CARDINAL ) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ... ”

In its decision of CARDINAL DATE ( following an appeal in the interest of the law ) , ORG and ORG advised the domestic courts to interpret LAW in the light of the LAW , and thus assess the necessity of the withdrawal of the right to vote in each case . This decision became mandatory on the date of its publication in ORG on DATE .


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The first CARDINAL applicants were born in DATE and DATE respectively . They are father and daughter . The last CARDINAL applicants , who are husband and wife , were born in DATE and DATE respectively . All the CARDINAL applicants live in NORP , GPE .

Early on TIME DATE , the first applicant and his wife , PERSON , who was the mother of the second applicant DATE at that time both citizens of ORG ( “ GPE ” ) – were driving through southern GPE , heading home after a trip to ORG , together with the third and fourth applicants . They were driving in a column of CARDINAL cars which were transporting CARDINAL NORP citizens in total .

At the same time , a NORP army unit from GPE had been notified by an unidentified person from FAC of Drobeta Turnu PERSON that a column of foreign cars was driving from ORG Turnu PERSON towards GPE . At the time of the events , the former President GPE had just been toppled and there were allegedly persistent news reports that terrorists were trying to reinstate the regime .

Suspecting that the foreign cars belonged to the so - called terrorists , a team of soldiers was dispatched by Colonel C. – the commander of the army unit of GPE , who later became general and commander - in - chief of ORG – to block the road in the nearby of the village of LOC , on the viaduct named PERSON . The unit was led by Lieutenant Colonel S. The road was blocked by CARDINAL armoured vans , between which only a single car could pass .

The column of cars reached the blockade , followed by a local bus . The soldiers asked the passengers several times , in NORP , to get out of the cars and surrender . As the tourists did not understand what was happening , they did not get out of the cars . During the domestic inquiry , the applicants and the other persons in the cars submitted that the shooting had started without any prior warning . The passengers in the cars started screaming in NORP that they were NORP tourists . The applicants and the other persons travelling in the column tried to turn back the cars . After a brief pause , the soldiers started shooting again . The first applicant ’s wife was shot in the head and the passenger sitting behind her DATE namely the third applicant – was wounded by bullets , as was the fourth applicant .

Those who were not wounded started to run away from the cars and tried to hide by the side of the road . At that moment a third round of shooting started . CARDINAL of the CARDINAL cars caught fire . Then the shooting stopped and the soldiers approached the cars . The first applicant tried to explain that they were tourists .

Several bullets also hit the local bus and wounded a passenger who was going to his workplace in GPE .

After a while , the first applicant and his wife , together with the third and fourth applicants , were taken to a nearby hospital . The first applicant submits that he was called a terrorist by the NORP soldiers , who pushed him around .

PERSON was operated on the same day but fell into a coma . On DATE she was transferred to a hospital in GPE , where she eventually died on DATE . The medical certificate issued in respect of her death stated that it had been caused by wounds inflicted by gunfire .

The second applicant travelled to GPE to bring back her mother ’s body .

On DATE the third applicant , who had been wounded in her spine , was transferred to a hospital in GPE , due to her serious medical condition . She never recovered completely and is recognised as a disabled person . From a forensic report dated DATE , it appears that the third applicant needed DATE of medical care .

The fourth applicant , who was shot in his left shoulder , was able to leave hospital and go back home to NORP on DATE . From a forensic report dated DATE , it appears that the fourth applicant needed DATE of medical care .

From the investigation carried out by the NORP authorities it appears that on this occasion QUANTITY persons died – the first CARDINAL applicants’ close relative and LOC – and QUANTITY persons from the car column were wounded , namely the last CARDINAL applicants , ORG , ORG , GPE , S.F.D. and PERSON

On DATE the GPE citizens involved in the abovementioned events , including the third and fourth applicants , addressed a complaint to the consular authorities of ORG in ORG . A complaint was also brought on behalf of the first applicant and his wife , who were still hospitalised in GPE and could not personally sign it .

The military prosecutor ’s office in GPE opened a criminal investigation with file no . CARDINAL .

It appears from documents submitted by the respondent Government that during DATE several investigative measures were instituted . Some of the victims , including the first applicant and some witnesses were questioned by the investigative authorities DATE and DATE .

NORP The officer who gave the order to open fire wrote a report on the events which was included in the file .

On DATE , ORG in GPE addressed an inquiry to the NORP authorities concerning the progress of the investigations .

On DATE , Colonel C. – the commander of the military unit of GPE , who had given the order for the army intervention at GPE – was questioned as a witness with regard to these events . He stated that , following the phone call received from ORG PERSON concerning the column of cars heading towards GPE , he had supposed ( “ am bănuit ” ) that they were terrorists and had ordered them to be stopped before they reach GPE .

Medical certificates were handed over to the investigation authorities in respect of the wounds inflicted on the tourists . A technical report was drawn up evaluating the damage to the cars involved in the incident .

Statements were taken from the military staff involved in the incident , namely the army unit which had dispatched the team of soldiers to LOC .

DATE and DATE , with the assistance of ORG , all the victims were interviewed in their country by a NORP prosecutor and their statements were handed over to the NORP authorities on CARDINAL DATE .

On this occasion , all the victims requested civil compensation for the damaged suffered in the incident .

On DATE , additional investigative measures were ordered by a military prosecutor , but it appears that none was taken .

By a decision of CARDINAL DATE , the prosecutor decided not to institute criminal proceedings on the grounds that the shooting had taken place as the result of fortuitous circumstances : the soldiers had been led to believe that the tourists were terrorists , so that when the tourists failed to respond to the order to get out of the cars and surrender , they had given the soldiers an impression of imminent danger .

The above - mentioned decision was automatically subject to review by the relevant Section of the military section of the prosecutor ’s office at ORG ( PERSON , “ SPM ” ) . On DATE , the ORG requested additional investigative measures .

On DATE , the military prosecutor ’s office in GPE asked PERSON for guidance in conducting the impugned investigations .

In a decision of CARDINAL DATE , the ORG quashed the DATE decision not to institute criminal proceedings . In so ruling , the prosecutor found that there had been no justification for the order to open fire , taking into account that the tourists were not armed and had not presented any immediate danger . It was emphasised that the second round of shooting had taken place when the cars were stationary and the passengers were trying to hide in the immediate surroundings environment . He considered that the order to shoot had constituted a criminal act and that any fear that the soldiers might have experienced could not have amounted to a circumstance capable of removing criminal liability . It was therefore ordered to institute criminal proceedings against Lieutenant Colonel S. for aggravated murder .

The file was sent back to the military prosecutor ’s office in GPE on DATE .

On DATE , the military prosecutor ’s office wrote to the commander of the army unit of GPE asking him to ensure that Lieutenant Colonel PERSON would be present for questioning on DATE , and to hand over his last CARDINAL appraisal reports .

Colonel PERSON failed to appear before the military prosecutor on DATE . The appraisal reports had been sent to the military prosecutor ’s office . They showed that S. had been upgraded to colonel .

On DATE , ORG in GPE found that it was not competent to decide the case and referred it to the military prosecutor ’s office at ORG ( ORG ) .

On DATE , the military prosecutor ’s office wrote again to the commander of the army unit of GPE reminding him of his previous letter of DATE and asking him to ensure that officer S. be present for questioning on DATE .

On DATE , Colonel PERSON was formally notified of the criminal charge brought against him and gave a statement before the military prosecutor . He stated that he had not initially ordered the shooting but that it had been a spontaneous reaction by another soldier . He also stated that he had joined in the first round of firing , that he had personally spent CARDINAL cartridges and that he had subsequently ordered the second round of firing .

It appears also from the case file that in DATE Colonel S. underwent a psychiatric evaluation . A medical report was delivered in this respect on DATE stating that Colonel PERSON had a normal representation of the consequences of his acts .

After considering a complaint lodged by Colonel PERSON , by a decision of CARDINAL DATE the military section of the prosecutor ’s office at ORG ordered the partial annulment of the decision of DATE . It was considered that the criminal investigation should not have been limited to Colonel PERSON , as other persons might also have been involved . The prosecutor indicated that the criminal investigation needed to elucidate all the circumstances of the events and , on the basis of the results thus obtained , criminal proceedings should be initiated against all relevant persons . It was therefore ordered that the criminal investigation should be in rem . It was further indicated that the decision should be communicated to all interested parties .

The decision was communicated to Colonel S , but not to the victims .

Following the decision of CARDINAL DATE , it appears from the case file submitted by the responding Government that no investigative measures were taken DATE .

On DATE , the military prosecutor ’s office at ORG ordered the discontinuation of the criminal investigation on the grounds that the criminal liability was timebarred .

On DATE , GPE and GPE , CARDINAL of the victims of the shooting of DATE , lodged a complaint against the decision of CARDINAL DATE with the higher prosecutor .

By a decision of CARDINAL DATE , the military section of the prosecutor ’s office at ORG and ORG quashed the decision of DATE , indicating that DATE given the fact that in DATE criminal proceedings had been instituted against Colonel PERSON and several procedural acts had been taken in connection therewith – the running of the statutory time - limit had been interrupted and criminal liability was therefore not time - barred . It was also decided that the investigation file should be joined to the main criminal investigation file concerning the DATE events , namely case file no . MONEY . Lastly , it decided that the criminal charges previously brought against Colonel PERSON should be resumed and that investigations continue in this respect .

According to the facts established by ORG in the case of the ORG “ DATE ” and Others v. GPE ( nos . CARDINAL and CARDINAL , § § DATE , CARDINAL DATE ) , several criminal investigations into the fatal crackdown on the demonstrations of DATE , which had initially been conducted separately , were joined to the investigation that was the subject matter of case no . CARDINAL . In this case , by a previous decision of DATE , the military prosecutor ’s office had ordered the indictment of CARDINAL persons , principally officers from the ORG , police and ORG forces – including some high - ranking ones – for murder ( Articles CARDINAL of LAW ) , genocide ( LAW of LAW ) , inhuman treatment ( LAW ) , attempts to commit those acts , complicity and instigation in the commission of the above acts and participation in them , acts committed “ during the period from CARDINAL to CARDINAL DATE ” . CARDINAL civilians , including a former President of GPE and a former Head of ORG , had been also charged .

A letter of CARDINAL DATE from the military prosecuting authorities indicates that CARDINAL decisions to discontinue proceedings , issued in the separate investigations , were set aside and the relevant files joined to case no . CARDINAL . After the initial decisions to discontinue proceedings had been set aside , investigations concerning CARDINAL victims who had been killed or injured during the period from DATE in various areas of the country were also joined to case no . CARDINAL .

In a previous letter of DATE , the head prosecutor of the military prosecutor ’s office at ORG and Justice indicated that during DATE , CARDINAL persons had been questioned in case no . CARDINAL . In addition , CARDINAL ballistics reports had been prepared , CARDINAL investigative measures had been instituted and CARDINAL onsite inquiries had been conducted . He also stated that “ among the reasons for the delay [ in the investigation ] , mention should be made of the repetitive measures ... concerning the transfer of the case from CARDINAL prosecutor to another ... , the fact that the prosecutors did not promptly inform the injured parties about the decisions to discontinue proceedings ... and the fact that the investigation had been reopened DATE after the persons concerned had filed their complaints ... ; the lack of cooperation on the part of the institutions involved in the crackdown of DATE ... , the extreme complexity of the investigation ... given that the necessary investigative measures had not been conducted immediately after the impugned homicides and ill - treatment ... ” .

The above - cited letter mentioned another reason for the delay , namely decision no . PERSON of ORG of DATE , which withdrew jurisdiction to conduct investigations in case no . CARDINAL from the military prosecuting authorities at ORG and ORG and transferred it to the civil prosecutors , that is , to the prosecutor ’s office at ORG and Justice . In the opinion of the head of the military prosecutor ’s office , as stated in the above - cited letter of DATE , the transfer of the case was sufficient to cause new delays in the proceedings , given the significant volume of the case file , the complexity of the case and the time that had elapsed since the events under investigation .

By a decision of DATE , the military prosecuting authorities at ORG and ORG decided to sever the investigation concerning the CARDINAL civilian defendants ( including a former President of GPE and a former Head of ORG ) from the investigation involving military personnel , and to relinquish its jurisdiction in favour of the prosecutor ’s office at ORG and Justice .

According to a press release issued on DATE by ORG at ORG , the President of the ORG intended to ask ORG to identify the reasons which had prevented the criminal investigation from being conducted rapidly .

In DATE , the applicants petitioned ORG of GPE and ORG in order to get information about the investigation . Their petition remained unanswered .

CARDINAL subsequent decisions of DATE and DATE mentioned by the Government , but not submitted to the ORG , were delivered by the NORP authorities . These decisions were not communicated to the applicants .

According to the Government , on DATE the military prosecutor in charge of the investigation decided to discontinue the proceedings in respect of the events that had taken place on DATE in LOC . On DATE , the aforementioned decision was also quashed and a new case was registered with the prosecutor ’s office at ORG and ORG under no . CARDINAL .

CARDINAL According to the information submitted by the Government , the investigations are still pending .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in DATE and lives in GPE , but is currently detained at ORG ( Zavod za izvršenje krivičnih sankcija ; “ ORG ” hereinafter ) in GPE .

On DATE the applicant was detained on suspicion that he had committed a murder .

On DATE ORG ( PERSON ) in GPE issued a detention order against the applicant . It is clear from the case file that the applicant ’s detention was extended on DATE , CARDINAL DATE and DATE . The decisions of CARDINAL May and DATE are in the case file . The decision of CARDINAL DATE specified that the detention would last “ until a further decision of the court ” ( i m a trajati do dalje odluke suda ) . The decision of DATE specified nothing in this regard .

On DATE the applicant was indicted for murder .

On DATE the applicant approached the prison authorities requesting that he be released in the absence of any decision extending his detention after DATE .

DATE the applicant was served with a copy of a decision of CARDINAL DATE , sent by fax . The copy was neither signed nor stamped . The decision , in its reasoning part , specified as follows :

“ On CARDINAL DATE the High State Prosecutor in GPE lodged an indictment GPE . CARDINAL against [ the applicant ] for the criminal offence of aggravated murder under LAW ( CARDINAL ) and ( CARDINAL ) of LAW .

[ The applicant ] was detained pursuant to decision GPE . CARDINAL/CARDINAL issued by the investigating judge of this court on DATE , which detention was extended by decisions of this court ’s panel , ORG . Br . CARDINAL of DATE and ORG . Br . CARDINAL/CARDINAL of CARDINAL DATE .

The CARDINAL - judge panel ( krivično vijeće ) has , on its own motion , within the meaning of LAW of LAW , examined further detention of [ the applicant ] and found as follows :

- the detention [ of the applicant ] should be extended pursuant to LAW .

Notably , given that [ the applicant ] is indicted for an aggravated murder pursuant to LAW ( a ) and ( CARDINAL ) of LAW , and in view of the seriousness of the criminal offence for which he could be sentenced to DATE of imprisonment , and especially in view of the fact that the accused committed the said criminal offence on DATE at around CARDINAL , after which he fled the crime scene , and that the authorised police officers of ORG deprived him of liberty on DATE at CARDINAL , these are the reasons , in view of the panel , justifying the extension of detention pursuant to LAW .

In the opinion of this panel [ the applicant ’s ] detention should be extended also pursuant to the detention basis as provided in LAW ( CARDINAL ) of LAW , given that [ the applicant ] is charged with aggravated murder under LAW ( CARDINAL ) and ( CARDINAL ) of LAW , and having in mind that the provided sentence is DATE of imprisonment , the first condition for the extension of detention under LAW ( CARDINAL ) of LAW is fulfilled , that is that the provided sentence for the criminal offence is DATE or more . Furthermore , in this particular case there are particularly qualifying circumstances of the criminal offence at issue due to the manner in which it was committed or its consequences , which are reflected in the fact that [ the applicant ] , as it transpires from the case - file , [ ... ] in an insidious manner and for material gain , deprived X of his life [ ... ] by shooting him at close range in the chest and in the back with an automatic gun several times , inflicting on him numerous injuries and causing his immediate death , after which he fled , and according to this panel the aforementioned established facts and circumstances , in their entirety , represent extraordinary circumstances indicating that the [ applicant ’s ] release would threaten public order and peace , which reasons justify the extension of detention . ”

On DATE the applicant appealed , complaining about the manner in which the decision had been served on him and claiming that his detention had ended on DATE , that is DATE as of the last extension of detention . DATE the applicant was served with the stamped and signed decision of CARDINAL DATE .

NORP On DATE the applicant filed another appeal .

On DATE ORG ( Apelacioni sud ) in GPE dismissed both appeals . It established that the decision delivered by fax was identical to the original which was signed and stamped . It further considered that the applicant had been served with a decision bearing no signature or stamp by an obvious mistake , which did not make the decision unlawful or cause a violation of his human rights guaranteed by LAW and the Convention . One of the judges involved in the ruling was GPE

By DATE the applicant filed a constitutional appeal , submitting a number of complaints , CARDINAL of them being that ORG should have been excluded from the bench given that she was related to the representative of the injured party .

On DATE ORG ( Ustavni sud ) in GPE quashed the decision of ORG and ordered that the case be re - examined . ORG quashed the said decision on the ground that GPE had indeed to be excluded from ruling on the applicant ’s appeals as she was the sister of the injured party ’s representative . In view of this , the court did not consider it necessary to examine the other complaints .

On DATE ORG , upon the remittal by ORG , dismissed the applicant ’s appeals . This decision was not submitted to the case - file . From the subsequent decision of ORG ( see paragraph CARDINAL below ) , however , it transpires that ORG held , in particular , that : ( a ) the applicant ’s detention had not ended on DATE , as the previous detention order had not specified how long the detention would last and the statutory time - limit of DATE was not mandatory ( see paragraphs CARDINAL and CARDINAL below ) ; and ( b ) the absence of the stamp and signature on the detention order did not make it unlawful .

On DATE the applicant filed a constitutional appeal complaining that his detention had not been extended within the statutory time - limit of DATE , that the copy of the relevant decision had not been signed and stamped , and that the presumption of innocence had been violated by ORG decision . He relied , inter alia , on DATE and CARDINAL of the Convention .

On DATE ORG dismissed the applicant ’s constitutional appeal . It considered in particular that the relevant legislation limited the duration of the detention to DATE after the indictment , and that there was no other limitation in that regard . The courts had a duty to examine DATE if reasons for detention persisted and , depending on the circumstances , extend it or revoke it . There was no obligation on the courts to specify how long the detention would last , given their obligation to control the duration of the detention DATE . However , these statutory time - limits were not mandatory and the fact that the decision had been issued after DATE and DATE could not therefore be decisive for concluding that the applicant ’s right to liberty was violated . The court also held that ORG and ORG had not stated that the applicant was guilty but that it transpired from the case - file and the disputed decisions that the applicant had been charged with the relevant criminal offence . The court did not address the complaint about the lack of a stamp and signature on the copy of the decision extending the detention on DATE .

It is clear from the case - file that the above decision of ORG was not dispatched before DATE .

On DATE , as submitted by the Government , ORG issued a first - instance decision on the charges against the applicant . They did not provide a copy thereof . There is also no information in the case - file as to whether the criminal proceedings against the applicant have ended in the meantime and if so what the outcome was .


Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

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 PERSON , a lawyer practising in GPE .

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

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

On DATE ORG decided to commence a criminal prosecution against the applicant , a colonel in the NORP army and employee of ORG , for abuse of office and bribe - taking . He was subsequently indicted and on DATE ORG convicted him of the above - mentioned crimes and sentenced him to DATE imprisonment .

The applicant ’s appeal against this decision was partially allowed on CARDINAL DATE by ORG which decided to reduce his sentence to DATE imprisonment .

The applicant filed an appeal on points of law ( recurs ) against the decision of ORG . Among other requests , he claimed before ORG and ORG ( “ High Court ” ) nonpecuniary damage in compensation for the excessive length of the proceedings .

NORP In its judgment of DATE ORG took note of the length of the proceedings , acknowledging that it had exceeded the reasonable time requirement and breached the provisions of LAW applicant . It further held that , in order to remedy this situation , the applicant ’s sentence would be reduced to DATE although the punishment for the crimes of which the applicant was convicted was DATE imprisonment respectively . ORG also mentioned that it was not competent to examine the applicant ’s request for non - pecuniary damage arising out of the excessive length of the proceedings but that such a request could be addressed by the applicant to the civil courts .

The High Court further decided to suspend the execution of the applicant ’s sentence , having in mind the timeframe that had elapsed from the date the crime was committed - a period of time in which the applicant had been of good behaviour and taking into account the fact that he had been held in pre - trial detention for DATE period sufficient for him to understand the gravity of his acts . The elements analysed under the issue of the length of the proceedings were also taken into consideration for this decision .

The relevant NORP legal provisions on the issue of length of criminal proceedings are described in the case of PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL , ORG and CARDINAL , § § DATE , CARDINAL and DATE , DATE ) .


CASE OF SALAKHBEKOV AND ABUKAYEV v. RUSSIA

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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

In DATE the applicants applied for recalculation of the social benefits they were entitled to as persons who took part in the clean - up operation at the GPE nuclear disaster site . Their claims were granted by domestic courts .

Further developments in their cases are summarised in the Appendix .


CASE OF IBRAHIMOV AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicants were born in DATE , DATE and DATE respectively . The first and third applicants live in GPE , and the second applicant lives in GPE .

NORP The youth group ORG ( “ PERSON Məhbusların Hüquqlarını Müdafiə Komitəsi ” ) decided to hold a demonstration at around TIME on CARDINAL DATE at FAC in GPE . They did not notify their plan to the relevant authority , ORG ( the ORG ) .

According to the applicants , the demonstration was intended to be peaceful and was conducted in a peaceful manner . The participants , a group of CARDINAL persons , were demanding the release of young persons arrested during some previous demonstrations .

The applicants attended the demonstration , but shortly after it had begun the police started to disperse it . According to the applicants , as soon as they noticed the police approaching they attempted to run away and leave the place of the demonstration but police officers followed and caught them . All CARDINAL applicants were arrested by police officers GPE and GPE at TIME and were taken to police station No . CARDINAL of ORG .

Police officers GPE and ORG stated the following in a report ( raport ) submitted to a superior police officer :

“ ... at TIME at FAC ... a group of young persons attempted to hold an unauthorised [ demonstration ] by shouting out loud , and disturbed people . When we wanted to calm down those persons they ignored us . ... We ... brought them to police station no . CARDINAL . ... ”

According to the applicants , they were questioned at the police station .

TIME and TIME on DATE of the arrest , “ administrative - offence reports ” ( inzibati xəta haqqında protokol ) were issued by police officer T.R. in respect of all CARDINAL applicants . The reports stated that at TIME on CARDINAL DATE , by deliberately failing to comply with the lawful order of the police , the applicants had committed an administrative offence under LAW ( “ the CAO ” ) .

All CARDINAL applicants refused to sign the respective administrative - offence reports , which contained pre - printed texts declaring that “ [ the arrested person ] was familiarised with the report ” and “ the rights and obligations under Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of ORG were explained ” .

Subsequently , police officer T.R. prepared “ administrative - arrest reports ” ( inzibati qaydada tutma haqqında protokol ) with respect to the first and second applicants .

According to those administrative - arrest reports , copies of which were submitted to ORG , the first and second applicants had been subjected to administrative arrest at TIME on CARDINAL DATE . The reports also stated that the applicants had been released on DATE , without specifying the time of the alleged releases , and contained signatures of the first and second applicants . However , all CARDINAL applicants maintained that they had been kept in police custody TIME .

According to the applicants , they were never served with copies of the administrative - offence reports or with other documents in their case files . They were not given access to a lawyer after the arrest or while they were kept in police custody .

On DATE , DATE after his arrest , the first applicant , PERSON ORG , was brought before ORG .

According to the applicant , the hearing , which began at TIME , was very brief and members of the public , including human rights defenders and journalists , were not allowed to attend , even though the court had not taken a formal decision to close the hearing to the public .

The only witness questioned during the court hearing was police officer ORG , who testified as follows :

“ At TIME on CARDINAL DATE ... a group of persons attempted to hold an unauthorised [ demonstration ] by shouting out loud , and disturbed people . When we wanted to calm down those persons , among them [ the applicant ] , they disobeyed a lawful police order . Then we ... brought them to police station no . CARDINAL where administrative - offence reports were issued in their respect . CARDINAL of them was [ the applicant ] . ” .

NORP The court found that the applicant had failed to stop participating in the unauthorised demonstration . The court convicted him under LAW of the ORG and sentenced him to CARDINAL days’ “ administrative ” detention .

The applicant lodged an appeal before ORG , arguing that his conviction was in violation of his rights because the demonstration in which he had participated had been peaceful . He also complained that his arrest had been unlawful and that the hearing before the first - instance court had not been fair . He requested ORG to quash the first - instance court ’s decision .

The applicant was represented before ORG by a lawyer of his own choice .

NORP On DATE ORG dismissed the applicant ’s appeal and upheld the decision of the first - instance court , stating that its findings had been correct .

ORG also noted that at the first - instance court hearing the applicant had refused the assistance of a ORG - funded lawyer and had decided to defend himself in person .

On DATE , DATE after his arrest , the second applicant , Mr PERSON , was brought before ORG .

According to the applicant , the hearing , which began at TIME , was very brief and members of the public were not allowed to attend , even though the court had not taken a formal decision to close the hearing to the public .

The applicant was not represented by any lawyer . According to the applicant , he was not given an opportunity to hire a lawyer of his own choice . According to the transcript of the court hearing , he refused the assistance of a ORG - funded lawyer and decided to defend himself in person .

The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer and that he had participated in the demonstration as an observer .

The only witness questioned during the court hearing was police officer ORG The statement that he gave against the second applicant , Mr PERSON , was similar to his statement against the first applicant , PERSON ORG ( see paragraph CARDINAL above ) .

The court found that the applicant had failed to stop participating in the unauthorised demonstration . The court convicted him under Article CARDINAL of the ORG and sentenced him to CARDINAL days’ “ administrative ” detention .

On DATE , DATE after his arrest , the third applicant , PERSON PERSON , was brought before ORG .

The applicant was not represented by any lawyer . According to the applicant , he was not given an opportunity to hire a lawyer of his own choice and he refused the assistance of a ORG - funded lawyer because he believed that such assistance would be of a formalistic nature .

The applicant stated before the court that he was not guilty of disobeying a lawful order of a police officer . He further emphasised that he and other participants of the demonstration had protested peacefully , and that they had been holding photos of arrested young persons , without uttering any slogans . The applicant also stated that he had run away as soon as he saw the police approaching and had boarded a taxi , and that police officers had stopped that taxi and had forced him out .

The only witness questioned during the court hearing was police officer ORG The statement that he gave against the third applicant , Mr PERSON , was similar to his statement against the first applicant , Mr PERSON ( see paragraph CARDINAL above ) . ORG also confirmed that Mr PERSON had tried to escape by taxi , and that the police officers had stopped that taxi .


CASE OF R & L, S.R.O. AND OTHERS v. THE CZECH REPUBLIC

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

Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Karel Jungwiert;Mark Villiger

The first applicant is a limited liability company with its registered seat in GPE . It owns a QUANTITY tenement house in GPE , which it bought in DATE for CARDINAL NORP korunas ( MONEY ( ORG ) ) . There is a shop on the ground floor and CARDINAL flat on each remaining floor . In CARDINAL of these CARDINAL flats the rent was regulated . The rent in those CARDINAL flats was CZK CARDINAL ( EUR CARDINAL ) , CZK CARDINAL,CARDINAL ( EUR DATE ) and CZK CARDINAL,CARDINAL ( ORG CARDINAL.CARDINAL ) respectively per month . The DATE rent for the fourth flat was fixed at CZK CARDINAL,CARDINAL ( ORG CARDINAL ) .

On DATE the first applicant sued the ORG for damages in the amount of CZK CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) corresponding to the difference between the regulated rent and the usual rent in the given area as estimated by the first applicant for the period DATE .

On DATE the GPE CARDINAL ORG ( obvodní soud ) dismissed the first applicant ’s action . It held that it was not possible to award damages under LAW since failure to enact deregulating legislation could not be qualified as an “ incorrect official procedure ” within the meaning of the LAW . Moreover , the adoption by ORG of decrees nos . GPE and CARDINAL/CARDINAL could not be qualified as an incorrect official procedure either .

On DATE ORG ( městský soud ) dismissed an appeal by the first applicant . It held that the impossibility of reaching an agreement on deregulating legislation in ORG could not be qualified as an “ incorrect official procedure ” within the meaning of LAW . The court added that in respect of the period from DATE to DATE rents had been regulated by Government Decree no . CARDINAL/CARDINAL . Although that decree had subsequently been repealed by ORG , the latter ’s judgments were not of retroactive effect and thus previous contractual relationships remained unchanged . Accordingly , there was no legal basis for compensation for that period .

On DATE ORG ( PERSON ) dismissed an appeal on points of law lodged by the first applicant . It found that the legislative procedure in ORG could not be described as an “ administrative procedure ” under LAW and that it was impossible to engage liability on the part of the State for the result of voting in ORG .

On DATE ORG ( PERSON ) dismissed a constitutional appeal lodged by the first applicant as manifestly ill - founded , holding that actions for damages against the ORG had a subsidiary character and that the applicant company should have started by bringing an action for rent increase .

NORP The applicant owns a tenement house in GPE consisting of CARDINAL flats and CARDINAL non - residential LOC . The application concerns CARDINAL of these flats for which the applicant collected regulated rent in the total amount of CZK MONEY ( ORG CARDINAL,CARDINAL ) for the period DATE and DATE while the usual rent in the given locality would have amounted to CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) according to an expert report commissioned by the applicant . The applicant and his sister acquired the house under the restitution law in DATE . The applicant ’s sister later transferred her share to the applicant .

On DATE the applicant sued the ORG for damages in the amount of CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) corresponding to the difference between the regulated rent and the usual rent in the given locality for the period DATE and DATE .

On DATE the GPE CARDINAL ORG dismissed the applicant ’s action . It held that it was not possible to qualify the failure by ORG to enact deregulating legislation as an “ incorrect official procedure ” . While the previous regulations had been repealed by ORG , this did not produce a retroactive effect and thus no damages could be awarded for the period of time during which they were in force . The applicant should have brought an action against the tenant requesting the court to determine the amount of rent according to the local and material conditions ( nahrazení projevu vůle nájemců k určení výše nájemného , které by odpovídalo všem místním i věcným podmínkám ) .

On DATE ORG dismissed an appeal by the applicant . It held that the impossibility of reaching an agreement on deregulating legislation in ORG could not be qualified as an “ incorrect official procedure ” within the meaning of LAW . As regards the period until DATE , the court added that rents had been regulated by Government Decree no . CARDINAL/CARDINAL . Although it had subsequently been repealed by ORG , the latter ’s judgments did not have retroactive effect and thus the previous contractual relationships remained unchanged . Accordingly , there was no legal basis for compensation for that period .

On DATE ORG declared inadmissible an appeal on points of law lodged by the applicant .

On DATE ORG dismissed the applicant ’s constitutional appeal as manifestly ill - founded , holding that actions for damages against the ORG had a subsidiary character and that the applicant should have started by bringing an action for rent increase .

The applicant owns a tenement house in GPE consisting of CARDINAL flats and CARDINAL non - residential LOC . She became the sole owner of the house on DATE as a result of restitution ( in DATE ) , gifts ( in DATE ) , inheritance ( in DATE ) and purchases from CARDINAL other family members ( DATE ) . She collected regulated rent for CARDINAL of those flats in the total amount of CZK MONEY ( EUR CARDINAL ) for the period DATE and DATE while the usual rent in the given locality would have amounted to CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) according to an expert report commissioned by the applicant . The applicant occupied CARDINAL flat and let CARDINAL flats to her son and daughter .

On DATE the applicant sued the State for damages in the amount of CZK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) corresponding to the difference between the regulated rent and the usual rent in the given locality for the period DATE and DATE . On DATE she withdrew her claim in respect of an amount of CZK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) .

On DATE the Prague CARDINAL ORG dismissed the applicant ’s action . It held that it was not possible to qualify the failure by ORG to enact deregulating legislation as an “ incorrect official procedure ” . The applicant should have brought an action against the tenant requesting the court to determine the amount of rent according to the local and material conditions .

On DATE ORG upheld that decision . In respect of the period DATE , it held that rents had been regulated by several regulations . Although these had subsequently been repealed by ORG , its judgments were not of retroactive effect and thus the previous contractual relationships remained unchanged . As a result , no compensation could be awarded for that period . As regards the subsequent period , the court held that the impossibility of reaching an agreement on deregulating legislation by ORG could not be qualified as an “ incorrect official procedure ” within the meaning of LAW . State responsibility could however flow from general liability under civil law . Yet , it would be very difficult to establish a causal link between the damage and an unconstitutional failure on the part of the ORG to enact deregulating legislation . Referring to ORG judgments nos . Pl . ÚS CARDINAL/CARDINAL and ORG CARDINAL/CARDINAL ( see paragraphs CARDINAL and CARDINAL of Annex II ) , the court held that as of DATE at the latest the applicant could have brought an action pro futuro . As regards the period DATE and DATE ORG stated that the applicant should have brought an action against the tenants for forfeiture of the proceeds of unjust enrichment . Given that the litigation stemmed from an unlawful situation which was to a substantial extent caused by the ORG ’s inactivity , and the persisting evolution of the case - law , which had not yet been settled , the applicant was exempted from payment of the costs of the proceedings incurred by the ORG both for the first - instance and the appellate proceedings .

On DATE ORG declared inadmissible the applicant ’s appeal on points of law . It found that the legislative procedure in ORG could not be described as an “ administrative procedure ” within the meaning of LAW and that it was impossible to engage liability on the part of the State for the result of voting in ORG .

On DATE the applicant lodged a constitutional appeal . She explained , inter alia , that an action against the ORG was the only avenue she could use . It was not possible to bring an action against the tenants . First of all , the lower courts had been dismissing such actions DATE and DATE , which was the period to which her claim related . Moreover , that judicial practice corresponded to the established case - law of ORG ( see paragraph CARDINAL of Annex II ) and the result of any action against the tenant was thus fully foreseeable . Further , the possibility of bringing an action for rent increase had been created by ORG only in its landmark judgment no . PERSON . ÚS CARDINAL/CARDINAL of DATE . In any event , contrary to the opinion of ORG , it was not possible to use that avenue in the applicant ’s case . Referring to ORG judgment no . ORG CARDINAL/CARDINAL ( see paragraph CARDINAL of Annex II ) , the applicant argued that her only option was to bring actions against the tenant pro futuro whereas her action concerned the past .

On DATE ORG dismissed a constitutional appeal by the applicant as manifestly ill - founded , holding that actions for damages against the ORG had a subsidiary character , and the applicant should have started by bringing an action for rent increase .

On DATE the applicant bought a tenement house in GPE nad Bystřicí at public auction . The rent was regulated in CARDINAL out of the CARDINAL flats . The rent in CARDINAL of the flats was set at CZK MONEY ( ORG CARDINAL ) per month . The non - regulated rent for a smaller flat was CZK CARDINAL,CARDINAL ( EUR CARDINAL ) . Had there been no rent regulation , then rent in a flat affected by the control would be CZK MONEY ( EUR CARDINAL ) DATE ( calculation based by compering yield per sq . m. of regulated and non - regulated flat ) .

On DATE ORG ( okresní soud ) ordered the tenant of that flat to vacate it . On DATE the applicant filed a request for enforcement of that decision .

On DATE he lodged an action for payment of CZK CARDINAL ( ORG CARDINAL ) corresponding to the outstanding rent for the period DATE and DATE . On DATE ORG dismissed that action on the ground that the tenant had actually vacated the flat on DATE .

In DATE the applicant lodged an action for payment of CZK MONEY ( ORG CARDINAL ) for the period DATE and DATE corresponding to the difference between the regulated rent and the rent that he considered usual in the given locality .

On DATE ORG dismissed the applicant ’s claim . It referred to the case - law of ORG and ORG and held that rent could be increased only pro futuro . Moreover , the applicant ’s action could not be granted on the basis of forfeiture of the proceeds of unjust enrichment either because the parties had concluded a valid tenancy agreement .

On DATE ORG ( krajský soud ) upheld ORG analysis and dismissed an appeal by the applicant .

On DATE ORG dismissed a constitutional appeal lodged by the applicant , holding that landlords were not entitled to claim retroactively from tenants the difference between the regulated rent and the usual rent in the given locality . It noted that previous opinions to the effect that it was possible to lodge retroactive claims against tenants had been overruled by its Opinion no . CARDINAL of DATE .

The applicant owns numerous other tenement houses where the rent was regulated . He introduced separate domestic proceedings regarding those houses and ultimately lodged CARDINAL other applications ( nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG , CARDINAL , ORG , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE ) before the Court where he complains of the rent regulation scheme in GPE .

The applicants own a tenement house in GPE consisting of CARDINAL flats , CARDINAL of which was rented under the rent - control scheme . The rent was set at CZK MONEY ( EUR CARDINAL ) DATE . The applicants bought the house in DATE for CZK CARDINAL ( ORG CARDINAL,CARDINAL ) .

On DATE the applicants informed the tenants of an increase in rent that would newly be CZK CARDINAL,CARDINAL ( ORG CARDINAL ) DATE , which the tenants refused to pay . On DATE they sent a letter of reminder to the tenants , who , on DATE , again refused to pay the increased rent .

On an unspecified date the applicants brought the case before the Prague CARDINAL ORG , which was empowered to determine the level of the rent according to the rent agreement ( dohoda o užívání bytu ) . On an unspecified date ORG had declined jurisdiction and informed the applicants that they should bring an action before the courts . The final reminder before the court action was sent to the tenants by the applicants on DATE .

On DATE the applicants thus lodged an action for payment of the increase in rent for the period from DATE amounting to CZK CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) .

On DATE the Prague CARDINAL ORG dismissed their action .

On DATE ORG upheld the first - instance judgment . Referring to the case - law of ORG , and especially its judgment no . ORG CARDINAL/CARDINAL of DATE ( see paragraph CARDINAL of Annex II ) , it held that rent could not be increased retroactively .

On DATE ORG declared inadmissible an appeal on points of law lodged by the applicants .

On DATE ORG , referring to its Opinion no . CARDINAL of DATE , dismissed a constitutional appeal lodged by the applicants , holding that a rent increase could be claimed only pro futuro from the date of lodging the action against the tenants .

On DATE the applicants also lodged a claim for damages against the ORG under LAW for the period from DATE . The proceedings are pending before the GPE CARDINAL ORG .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in DATE and lives in GPE .

The applicant is married with CARDINAL children . Prior to his early retirement he had been employed for DATE and had paid his social security contributions to the ORG .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

Along with his application for a pension , the applicant submitted , among other documents concerning his son ’s health condition , a medical certificate issued by a specialist doctor . The certificate stated that the child ( born in DATE ) suffered from chronic inflammation of upper respiratory tract and that he was in need of his parent ’s constant care .

On DATE ORG issued a decision granting the applicant the right to an earlyretirement pension . The pension amounted to ORG CARDINAL brut which at that time constituted PERCENT of the average brut salary in GPE .

ORG initially suspended the payment of the pension until DATE due to the fact that the applicant was still working on the date of the decision . The applicant ’s employment relationship was terminated with effect from DATE and the pension was paid as of that date .

The applicant was issued with a pensioner ’s identity card marked “ valid indefinitely ” and he continued to receive his pension without interruption until the date of the revocation of the right .

On an unspecified date ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s son required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE the Rzeszów Social Security Board issued CARDINAL decisions in respect of the applicant .

By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the DATE Ordinance .

On DATE the applicant appealed against the respective decisions divesting him of the right to an early - retirement pension . He submitted that he should receive the benefit because his child required constant care , as confirmed by the medical certificate attached to the original application for a pension . Moreover , the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights .

On DATE ORG ( PERSON ) amended the challenged decisions and granted the applicant the right to the EWK payment with effect from DATE .

ORG appealed against the firstinstance judgment .

On DATE the ORG allowed the ORG ’s appeal , amended the challenged judgment and dismissed the applicant ’s appeals lodged against ORG decisions . The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the DATE Ordinance as he had not satisfied the requirement of necessary permanent care .

On DATE ORG refused to examine the cassation appeal .

Following the social security proceedings the applicant was not ordered to return his early - retirement benefits paid by ORG , despite the revocation of his right to an early - retirement pension .

NORP Throughout the whole period of receiving the EWK pension the applicant did not work .

On DATE the applicant started to work in a publishing house where he continued work until DATE . The applicant subsequently worked DATE , CARDINAL and DATE , CARDINAL DATE and DATE , CARDINAL DATE and DATE . DATE and DATE the applicant worked on the basis of a civil law contract . DATE he remained unemployed .

On DATE the applicant was granted a disability pension until DATE . The pension amounted to PERCENT of the average net salary .

The Government submitted that the applicant ’s gross DATE income was ORG CARDINAL ( approx . ORG CARDINAL ) in DATE , ORG CARDINAL ( approx . EUR CARDINAL ) in DATE , ORG MONEY ( approx . EUR CARDINAL ) in DATE , ORG CARDINAL ( approx . EUR CARDINAL ) in DATE , ORG CARDINAL ( approx . EUR CARDINAL ) in DATE , ORG MONEY ( approx . EUR CARDINAL ) in DATE , ORG CARDINAL ( approx . ORG CARDINAL ) in DATE , ORG MONEY ( approx . EUR CARDINAL ) in DATE and ORG CARDINAL ( approx . EUR CARDINAL ) in DATE .

The Government further submitted that the applicant ’s wife had a gainful employment . In DATE she earned PERCENT of the average gross salary in GPE . As of DATE she acquired the right to an oldage pension but she continued to work , so her income after DATE rose to PERCENT of the average gross salary .

The applicant has a daughter who also worked since DATE . She earned PERCENT of the average gross salary in GPE in DATE .


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

The applicant was born in DATE . When lodging his application , he was detained in FAC .

In DATE ORG was informed by a person , to whom they had guaranteed confidentiality and whose identity had remained unknown throughout the proceedings , that the applicant was selling large amounts of amphetamine .

The LOC police therefore mandated another police informer , PERSON , who was equally guaranteed confidentiality by ORG and was supervised by police officer PERSON , to test the veracity of these allegations . S. visited the applicant in his motorbike shop on DATE and pretended being interested in buying a motorbike . He visited the applicant in the shop for the second time on DATE . On that occasion , the applicant told PERSON that a former member of his motorbike club “ NORP ” had cheated the club and offered PERSON euros ( ORG ) if he would beat up that person . When the applicant showed PERSON , who had disclosed his acquaintance with arms , his firearms and asked PERSON whether he could supply him with weapons , PERSON asked the applicant whether he could sell him amphetamine . The applicant asked in reply how much S. would need and what price he would be ready to pay . PERSON offered to pay LAW per kilogram of amphetamine of a good quality . The applicant agreed to the offer and handed over to S. a sample of amphetamine which he had stored in a drawer of his garage . On DATE S. again visited the applicant and offered purchasing QUANTITY of amphetamine from the applicant , in accordance with the instructions from his supervising police officer . The applicant agreed to sell that amount of drugs at a price of ORG CARDINAL,CARDINAL . He had carried a loaded revolver during all of his meetings with S. and had threatened S. with the revolver once , accusing him of being a traitor .

On DATE the ORG authorised the participation of an undercover police officer , C. , supervised by police officer L. , in the operation .

On DATE S. bought QUANTITY of amphetamine for EUR CARDINAL from the applicant , who carried a loaded revolver during the transactions , handed it over to C. who was awaiting him at a different place and brought the money supplied by C. to the applicant .

On DATE S. again visited the applicant in his garage and told him that he would like to buy further drugs from him . The applicant thereupon asked PERSON whether he would need QUANTITY or more . S. ordered QUANTITY of amphetamine , in accordance with his instructions from police officer PERSON , and announced that he would need higher amounts of drugs in the future . The applicant agreed to the proposals .

On DATE S. again bought QUANTITY of amphetamine for EUR CARDINAL,CARDINAL in the presence of C. from the applicant , who carried a loaded revolver during the transaction . As advised by police officer PERSON then asked the applicant to supply a larger amount of drugs . The applicant explained that he could supply MONEY S. wanted , CARDINAL or QUANTITY . S. thereupon ordered QUANTITY of amphetamine for which he was to pay EUR CARDINAL .

On DATE S. and C. bought the amount of amphetamine ordered from the applicant ; the drugs were supplied by B. The applicant was arrested after having handed over the drugs to S. and while collecting the money from C. The police further seized QUANTITY of amphetamine in the applicant ’s flat and numerous guns in his garage .

B. , having been informed of his right to remain silent , confirmed to the police after his arrest and subsequently before the investigating judge that he had participated in the drug transaction on DATE and supplied the amphetamine seized on DATE .

On DATE ORG convicted the applicant of CARDINAL counts of drug trafficking in not insignificant amounts while carrying a weapon and another count of drug trafficking in not insignificant amounts and sentenced him to DATE and CARDINAL months’ imprisonment .

ORG established the facts as summarized above ( see paragraphs DATE above ) . It further took note of the fact that the applicant , a full member of the motorbike club “ MC Bandidos Chapter NORP ” , had previously been convicted , in particular , by ORG of trafficking in drugs ( amphetamine ) on DATE and sentenced to DATE and QUANTITY months’ imprisonment .

ORG observed that the applicant and his co - accused PERSON had not made any submissions on the drug charges during the trial hearing . Its findings of fact were based on the credible statements made by PERSON to his supervising police officer PERSON and , in respect of the last offence , on the confession made by co - accused PERSON during the investigation proceedings .

In the hearing , ORG , having rejected the applicant ’s objection to hearing police officer PERSON as a witness , had questioned PERSON as a witness giving hearsay evidence on the observations made by police informer S. It had not been possible to summon and question S. in person as the GPE - Palatinate Ministry for the ORG had issued a declaration dated DATE , supplemented on DATE following the trial court ’s proposal of alternative methods of questioning , blocking the disclosure of his identity ( Sperrerklärung ) . These declarations , running to CARDINAL pages respectively , had been read out in the hearing .

The Ministry had argued in these declarations that it was necessary to keep the identities of police informer PERSON , and also of undercover police officer C. , secret in order to protect their life and limb and that of their relatives . In the ORG ’s submission , there was a high risk that the applicant would organise a violent revenge against them . He was a member of the motorbike club “ PERSON , LAW ” , which was well - organised worldwide and known for violent , ruthless acts against persons considered as traitors . Members of the motorbike club were currently suspected of involvement in homicides . The applicant , on whose premises a considerable number of firearms had been found , had himself offered PERSON CARDINAL,CARDINAL for assaulting a former member of the motorbike club who was suspected of having deceived the club in the course of business transactions . Further perpetrators who had been involved in the drug deal might equally possess firearms and had not been arrested yet . The disclosure of the identity of the police informer and of the well - trained undercover agent would further compromise the police ’s ability to investigate serious crimes with their help or that of other informers in the future .

The Ministry further stated that there were no means other than the non - disclosure of their identity for the Land to protect the physical integrity of the police informer and of the undercover agent . In particular , keeping their names or places of residence secret or excluding the public and the applicant during their interrogation in court would be insufficient to protect them , owing to the presence of the applicant ’s lawyers and possibly of contact persons of the applicant observing the court building at DATE of the trial . ORG also rejected ORG proposal to have PERSON questioned by a commissioned judge outside the main hearing as the applicant ’s lawyers would be present during such a hearing and might pass on information to the applicant allowing the latter to detect S. ’s identity . Likewise , a video conference including acoustic and optical shielding , as equally proposed by ORG , could not exclude PERSON ’s and C. ’s identification by their figure , by their gestures and language used or by the disclosure of details permitting the detection of their identity in the course of questioning by the defence .

In ORG view , the reasons given in the ORG ’s declarations for the non - disclosure of ORG , and also C. ’s , identities were neither arbitrary nor obviously unlawful .

ORG noted that police officer PERSON had questioned PERSON on DATE and had reported PERSON ’s statements in the hearing . It had then given the defence the opportunity to put questions to S. in writing . On DATE PERSON again questioned PERSON , submitting to him the court ’s questions and those of PERSON ’s defence counsel , and again reported PERSON ’s statements in court . Both police officer PERSON and PERSON ’s detailed statements without contradictions were credible , having regard also to the fact that it had only hearsay evidence before it . ORG noted , in particular , that the applicant had contested having carried a loaded revolver during the first CARDINAL transactions , claiming that the object in his pocket had been a multi - tool . It found that PERSON had already mentioned on DATE that the applicant had carried a weapon . When again being questioned by police officer PERSON on the court ’s request on DATE , PERSON had given more details in respect of the revolver and had convincingly explained when and how he had seen that it had been loaded , which demonstrated the veracity of his statements .

ORG found that the statements made by the police informer could be used as evidence . Under the well - established case - law of ORG ( ORG referred to ORG , file no . CARDINAL StR CARDINAL , judgment of DATE , BGHSt CARDINAL , pp . CARDINAL ss . , see paragraph CARDINAL below ) , the use of police informers was permitted to combat serious crimes which were difficult to investigate , such as drug trafficking . It was not relevant in that context whether the applicant had been incited by a police informer to commit an offence as , in any event , this would not lead to an exclusion of evidence . In that event , the court would only have to state in the reasons of its judgment that there had been a breach of the right to a fair trial under LAW and would have to mitigate the penalty as a result thereof .

ORG considered that PERSON ’s submissions had been supported by considerable further circumstantial evidence . In particular , the nature and amount of drugs trafficked was proven as PERSON had handed the drugs in question over to the police immediately after the respective transactions . Moreover , in respect of the last offence , the applicant and PERSON had been caught in the act and arrested at the scene of the crime . Furthermore , PERSON had initially confessed to the ( third ) offence in the investigation proceedings and his statements had been reported in the hearing by the police officer and the investigating judge who had questioned him at the time .

Finally , both PERSON ’s confession and PERSON ’s statements concerning the second offence had been confirmed by the submissions made by undercover police officer C. to police officer PERSON who supervised him . PERSON had testified as a witness giving hearsay evidence in the hearing , the court having dismissed the applicant ’s objection to hearing him . The identity of C. had remained unknown as he had equally been covered by the ORG ’s declaration blocking a disclosure of his identity . The investigations by an undercover police officer had been lawful under ORG CARDINALa and QUANTITY § CARDINAL of LAW ( see DATE below ) , as they had been authorised by ORG and ORG and had been indispensable in order to further investigate suspicions of drug trafficking by the applicant .

When fixing the sentence , ORG considered as aggravating factors the frequency of the offences as well as the applicant ’s prior conviction for drug trafficking . It took into account as mitigating elements that the drug transactions had been under police surveillance from the outset and that the drugs could not , therefore , freely circulate on the market . Moreover , the applicant had trafficked in so - called soft drugs of average quality only . Furthermore , the applicant was disabled at a rate of CARDINAL per cent and therefore particularly susceptible to suffer from detention .

In ORG view the applicant had not , however , been unduly incited by police informer S. to commit the offences in question , within the meaning of the case - law of ORG ( ORG again referred to ORG judgment of DATE , cited above , BGHSt CARDINAL , pp . CARDINAL ss . ) . The applicant had already been involved in drug trafficking and been predisposed to sell drugs prior to his meeting with the police informer . This was proven , in particular , by the fact that he had supplied PERSON with an amphetamine sample already when they discussed drug transactions for the first time . Moreover , he had indicated on that occasion that he could supply S. with larger amounts of drugs . ORG found in that context that the price offered by PERSON to the applicant ( LAW ) was the average price for a kilogram of amphetamine of average quality in the region . Furthermore , the applicant had previously been convicted of drug trafficking . As his offences had not therefore been the result of unlawful police incitement , there was no ground for mitigating the sentence on that account .

On DATE the applicant lodged an appeal on points of law with ORG . He claimed , in particular , that his right to a fair trial under LAW and CARDINAL ( d ) of the LAW had been breached as he had been unable to cross - examine police informer PERSON and undercover agent C. , on whose submissions his conviction had essentially been based . Moreover , PERSON had unduly incited him to sell drugs . The evidence obtained by the incitement should therefore have been excluded at his trial .

On DATE ORG dismissed the applicant ’s appeal on points of law against ORG judgment as ill - founded .

On DATE the applicant lodged a constitutional complaint with ORG . He complained , in particular , that the judgment of ORG , confirmed by ORG , had breached his right to a fair trial under LAW . He had been unduly incited by the prosecution authorities to commit the offences he had later been found guilty of . Therefore , the evidence obtained by police incitement should have been excluded at his trial ( he referred to ORG Human Right ’s judgment in the case of ORG v. GPE , no . CARDINAL/CARDINAL , DATE to support his view ) . Moreover , throughout the proceedings , he had not had an opportunity to question the police informer and the undercover police officer .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE .