CASE OF ASLLANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano

The applicant was employed by a local company owned by ORG , which operated a bakery in GPE . At TIME on DATE several police officers arrived at the bakery in order to establish whether or not the employees were in possession of the necessary work and residence permits . PERSON , a police officer at the time and currently the mayor of PERSON , arrived DATE . At CARDINAL a.m. TIME the applicant arrived , after being called by LOC and the applicant were taken to the LOC police station and interviewed in the office of GPE , the commander - in - chief of GPE police . The applicant alleged that during the interview PERSON had ill - treated him and that he had left the police station at TIME on DATE .

On DATE the applicant was examined in the ORG hospital by PERSON who issued a certificate ( no . CARDINAL ) in which he was diagnosed with fractura osso nosi post traumatica - in obs . On the reverse of the certificate the following handwritten text appeared :

“ At TIME , a fight ( тепачка ) , an X - ray was taken of the nasal pyramid ... realignment and [ splinting ] were carried out ... ”

An undated medical certificate ( no . DATE ) signed by PERSON indicated the following :

“ [ The applicant was ] admitted on DATE at TIME as an urgent case . It concerned a fight . The nose pyramid and the ... right upper nostril were visibly swollen . Assuming that the nasal septum was broken , an X - ray was taken of the nasal pyramid ... The radiologist ’s findings are : no traumatic changes to the nasal bone . So the obstruction of the right nasal cavity was caused by swelling . The nasal septum has been realigned to the left and a double front [ splint was made ] ... ”

On an unspecified date DATE the applicant lodged a complaint of ill - treatment by the police with the public prosecutor . Furthermore , on DATE the applicant and GPE complained to the ORG that they had been ill - treated by police officers during the incident CARDINAL DATE . According to the official police notes from that date , the applicant complained that after the discussion at the bakery , he had been arrested and detained ( приведен и задржан ) at GPE police station for questioning . During questioning , PERSON had insulted and physically assaulted him . He had taken a newspaper out of the applicant ’s bag and tried to stuff it into the applicant ’s mouth . He had then punched him CARDINAL times , causing visible injuries , namely a broken nose and facial bruising . Police officers PERSON and ORG , the commander - in - chief of the LOC police , had been present at the time . PERSON complained that while at the bakery , PERSON had slapped him several times in the face in front of the workers . He had also insulted him and threatened to send him “ in a black plastic bag to GPE ” unless he admitted that he had been giving money to ORG , a police officer from ORG .

On DATE and DATE the applicant was examined again at ORG and prescribed a therapy .

On DATE he was examined at ORG and diagnosed with facial bruising and a broken nose . Another certificate confirming the injuries was issued by the hospital on DATE . A GPE scan on DATE confirmed that he had suffered a broken nose without bone displacement .

In letters dated DATE , CARDINAL May and DATE the public prosecutor , in response to the criminal complaint lodged by the applicant , asked the ORG to communicate any relevant material regarding the alleged incident on DATE .

On DATE the ORG sent the public prosecutor a “ special report ” ( посебен извештај ) regarding the case , setting out a summary of the complaints made by the applicant and GPE It reads as follows :

“ To establish the truth regarding the allegations , the ORG interviewed the complainants , PERSON , ORG ( bakery workers ) , PERSON labour inspector PERSON . , as well as police officers PERSON , PERSON , GPE , GPE , GPE , GPE , GPE , GPE , FAC and GPE On the basis of the discussions held and an inspection of the DATE logbook and other official material regarding the case held at GPE police station , [ the ORG ] establishes the following :

On DATE at CARDINAL p.m. GPE , GPE , GPE and GPE , plain - clothed police officers , and GPE , a police officer in ( official ) uniform , arrived at the A. bakery . After identifying themselves to the workers , including the owner GPE , they informed them that they would be carrying out an inspection ...

In the meantime , police officer PERSON arrived at the bakery . He joined in the discussion with GPE and the other workers , asking whether they had offered free bread , food and drinks to some police officers in return for their protection . He asked the owner ... GPE , how much money he had been giving to police officer PERSON to protect him ... in the presence of the other workers , PERSON slapped GPE in the face several times . [ He ] then ... ordered [ him ] to the storeroom , where PERSON continued slapping him in the face . He threatened to kill him , put him in a black plastic bag and return him to GPE unless he admitted to a judge that he had been giving money to PERSON insulted his ethnicity .

On DATE at TIME [ the applicant ] , GPE and [ CARDINAL other individuals ] were arrested and detained at GPE police station ... When [ the applicant ] took documents out of his bag concerning the bakery ... PERSON noticed a [ K.D ] newspaper which had on its front page ORG declaration of independence and a picture of PERSON ’s face with the new flag of GPE . PERSON started searching [ the applicant ’s ] bag and took the newspaper out . He tried to stuff it into [ the applicant ’s ] mouth ... [ He ] continued using offensive language to insult [ the applicant ’s ] ethnicity . He suddenly punched him CARDINAL times in the nose causing him visible injuries such as bruising . [ The applicant ’s ] nose started to bleed . This happened in the presence of GPE , GPE and PERSON Later , when [ the applicant ] and PERSON went to police officer GPE ’s office to give details about the workers from GPE , GPE noticed blood on [ the applicant ’s ] shirt . He asked [ the applicant ] about the origin of the blood . [ He ] replied that it was not right that he had been beaten up by a police officer and that he was ready to take responsibility for his actions .

During the discussion , police officer PERSON denied the allegations made by the applicant and GPE , explaining that he had not used any force during his conversation with them . [ His ] assertion was confirmed by police officers PERSON , GPE , GPE , GPE , GPE and GPE , who [ said ] that no force had been used against [ the applicant ] or GPE by PERSON or any other police officer in the performance of their duties .

Regarding the inspection carried out at the A. bakery in GPE , the police officers had no plan ; there was no search warrant . Besides , there was no information in the DATE logbook about [ the applicant ’s ] arrest and detention at GPE police station , or [ about ] the use of force against him . Nor was a report [ about the use of force ] drawn up .

After the interview ended and all the relevant evidence for misdemeanour proceedings had been obtained , [ the applicant ] was released ; GPE and the other workers from GPE stayed ...

Given the injuries sustained , on DATE at TIME [ the applicant ] went to ORG [ H]ospital , where he obtained immediate medical assistance . An X - ray was then taken of the nasal pyramid and [ a nasal plaster ] was made . A medical certificate , no.CARDINAL ... was issued in this regard . ”

As noted in the special report , it was accompanied by considerable written material , which included the applicant ’s complaint ; official notes regarding interviews held with PERSON and various police officers including PERSON , GPE , GPE , GPE , GPE , GPE and GPE and GPE ; medical certificates CARDINAL . CARDINAL and DATE and photographs of the applicant with a neck collar and plaster on his nose . The Government did not provide copies of the official notes concerning the interviews held with the police officers listed above .

Further to a request by the public prosecutor dated DATE , on DATE an investigating judge of ORG ( “ the trial court ” ) opened an investigation into the allegations that PERSON had ill - treated , threatened and insulted GPE and the applicant .

DATE and DATE the investigating judge heard oral evidence from the applicant , GPE , GPE , workers ORG and PERSON , police officers GPE , GPE , ORG and other witnesses .

The applicant stated that the police officers present at the scene had ordered him and GPE to go to the police station . CARDINAL of them had joined him and GPE in the latter ’s car and had set off to go there . The applicant repeated that during his interview at the police station , PERSON had used offensive language against him , had tried to stuff a newspaper into his mouth and had punched him CARDINAL times in the face and nose .

PERSON denied all the accusations made against him by the applicant and GPE

Z.C. , who gave evidence without the applicant and his representative present , stated :

“ ... PERSON treated me correctly ... He did not ill - treat or insult me . It is untrue that PERSON or any other police inspector took me to [ the storeroom ] , pushed me against the flour bags and slapped me . It is absolutely untrue ... I also want to emphasise that it is untrue that PERSON threatened to put me in a black plastic bag and send me back to GPE .

The whole story was a set - up by [ the applicant ] , so to speak . He suggested that I accuse [ G.S. ] of ill - treating , insulting and hitting me , telling me that we would both [ get ] MONEY ( ORG ) compensation from the ORG , and LAW from the accused . , I went to GPE and gave a statement regarding the case , a false statement accusing [ PERSON ] in the fear that [ the applicant ] could deport me to GPE .

TIME , [ the applicant ] arrived at the bakery in a taxi from ORG . At the police ’s request ... I went to LOC police station . I can not say whether I went in ... with [ the applicant ] , but what is relevant is that I , [ the applicant ] , and CARDINAL individuals from GPE went to LOC police station in cars and jeeps ... after a while , a policeman took me and [ the applicant ] into the chief - officer of ORG office . There was [ PERSON ] , [ another officer ] and the chief - officer of PERSON , I think his name is M.[G ] ... At CARDINAL point I noticed [ the applicant ] take documents and a newspaper from his bag ... I can firmly say that [ PERSON ] did not take the newspaper ... and did not hit [ him ] in the face . I do not know if there was blood on his shirt ...

I can say that the whole thing is a lie constructed by [ the applicant ] , because he forced me to say that the accused had ill - treated and insulted me . Nor did the accused hit [ the applicant ] at the police station ... ”

Bakery workers ORG and PERSON both confirmed that during the incident on DATE PERSON had spoken in a loud voice and asked them who they had given bread for free . Both confirmed that PERSON and GPE had gone to the storeroom and that GPE had returned with flour on his back . PERSON confirmed that PERSON had slapped PERSON , whereas ORG maintained that she did not hear GPE complain that he had been slapped or ill - treated by anyone that night .

GPE , the police officer responsible for foreigners , stated :

“ after a while , GPE and an unknown national from GPE , who said that his name was PERSON [ sic ] and that he was the manager of the company , arrived at my office ... he literally told me ‘ that ’s all fine [ referring to the ban on employing foreigners without a work permit ] , but I should not be beaten up’ . I asked him who had beaten him up and pointing with his hand he said ‘ [ look ] up PERSON . He showed me blood and I noticed that he had a visible blood stain , so to speak . He said that a police officer had beaten him up , but he did not specify who . I told him that it was not my job ... I did not see anything on [ the applicant ’s ] face like a nose injury or blood ... ”

Police officers PERSON and ORG denied that PERSON had slapped PERSON at the bakery or that PERSON had used offensive language . They confirmed that the applicant had arrived at the bakery and that both he and PERSON had discussed the issue of illegal workers with them and PERSON in PERSON ’s office at LOC station . They also confirmed that the applicant had had a newspaper in his bag and that PERSON had enquired whose photograph was on the front page . Both denied that PERSON had hit the applicant .

A forensic medical opinion was commissioned by the trial court . On DATE PERSON , a court expert , drew up a medical report on the basis of the above - mentioned medical records and a further X - ray . The relevant parts of the report stated :

“ [ the applicant ] suffered a broken nose without any displacement of bone fragments , as well as facial bruising . These injuries ... amount to bodily injury . These injuries ... were a result of the use of brute force on the face . ”

On DATE the public prosecutor informed the investigating judge that he was withdrawing the charges against PERSON brought by the applicant and “ ORG by way of the special report ” due to the lack of evidence that PERSON had committed the crime in question .

On DATE the investigation was closed and the applicant was advised that he could pursue the prosecution as a subsidiary prosecutor . He availed himself of that opportunity and on DATE brought a private indictment against PERSON on charges of ill - treatment and bodily injury .

On CARDINAL DATE the trial court allowed an objection by PERSON and discontinued the proceedings . On DATE that decision was quashed by ORG , which ordered the trial court to further investigate allegations which had meanwhile been raised , namely that the applicant had sustained certain injuries in a traffic accident that had happened before the incident on DATE . The appellate court also ordered a confrontation between the applicant , PERSON and police officers GPE , GPE and GPE

At a hearing on DATE the applicant confirmed that he had sustained a neck injury in a traffic accident that had happened on DATE and that because of this he had been wearing a neck collar . On the photographs taken at the ORG DATE after the alleged incident , he had had a neck collar . He denied that there was any connection with the injuries to his nose and eye which PERSON had caused him .

On DATE a confrontation took place between the applicant and police officers PERSON , PERSON and ORG , who denied that PERSON had punched the applicant .

GPE , who also took part , stated :

“ ... I noticed that [ the applicant ] had blood [ on him ] , namely a small stain on his shirt . ”

All the judges of the trial court , including the presiding judge , applied separately to be excluded from the case as they had already sat in a different capacity . On DATE ORG assigned the case to ORG as the court with jurisdiction ratione loci .

ORG held several hearings , in which it heard oral evidence from the applicant , PERSON and police officers PERSON , ORG and GPE The defendant and the police officers maintained their previous statements , denying that PERSON had punched the applicant during the interview at GPE police station . GPE stated , inter alia , that he had noticed a stain on the applicant ’s shirt , but that he could not say for certain whether it had been blood . During the proceedings , the applicant asked the court to examine GPE , who , according to official information from ORG , had left the respondent ORG in DATE . The court ’s attempts to secure his presence at the trial were to no avail since his whereabouts remained unknown despite PERSON ’s statements on DATE and DATE that he had been in contact with him and knew where he was living . At the hearing on DATE , the applicant stated that he had also been in contact with GPE who had agreed to give evidence in court and confirm his statement given to the ORG .

On DATE the court acquitted PERSON for lack of evidence . It established that he and several police officers had gone to the bakery to follow up allegations that illegal workers from GPE were employed there , and that both GPE and the applicant had been questioned at the police station . However , it found that none of the witnesses examined had corroborated the applicant ’s allegations of ill - treatment .

On DATE ORG allowed an appeal lodged by the applicant and remitted the case for fresh examination . The court held that the first - instance court had not established relevant facts regarding the applicant ’s injuries , which had been supported by relevant medical evidence . Furthermore , it had not given any reasons regarding the origin of those injuries , despite the fact that investigative steps had been taken with a view to establishing whether they had been caused in the car accident that had actually happened on DATE . In this connection , it instructed the lower court to reassess the available evidence and , if needed , to arrange a confrontation with the applicant and the witnesses . The lower court was also advised to analyse the available medical evidence and to consider what time the applicant sought medical assistance .

In the new proceedings , the first - instance court again examined the defendant and the applicant . A confrontation was arranged between him and the police officers who were present at the police station at the relevant time . It also heard oral evidence from Drs L.D.B. ( who confirmed the veracity of the information contained in the medical certificate , see paragraphs CARDINAL and CARDINAL above ) and GPE , the court expert .

The applicant submitted in evidence a written statement dated DATE , certified by the PERSON ( GPE ) Court of First Instance , in which GPE stated that his testimony of DATE ( see paragraph CARDINAL above ) had been incorrect and given under duress . He confirmed that the applicant had been hit by PERSON at the police station in the presence of QUANTITY police officers , as a result of which he had suffered a broken nose . He confirmed his statement given to the ORG . He stated that he would not give oral evidence in FAC of First Instance because he feared for his personal safety . However , he agreed to testify in ORG , the EULEX ( EU Rule of Law Mission to GPE ) or ORG in GPE .

On DATE ORG again acquitted PERSON due to the lack of evidence to support the applicant ’s allegations . The court stated that it had given weight to the evidence given by all the witnesses , especially given that most of them were police officers and PERSON was an experienced court expert .

On DATE ORG quashed that judgment and remitted the case for fresh examination , which , as noted in the judgment , was to be held before a different panel of first - instance court judges . The court found that the lower court had again not established the facts regarding the applicant ’s injuries . The available medical evidence confirmed that the injuries described in the medical reports issued soon after the alleged incident on DATE had not resulted from the car accident in DATE . The first - instance court had merely referred to the witness statements without assessing their probative value in connection with the medical evidence . It had given no weight to the medical evidence , which should have been analysed in relation to what time the applicant had sought medical assistance . The court instructed the lower court to reassess the evidence , organise a confrontation between the applicant and the defendant , and take other steps to establish the origin of the applicant ’s injuries .

In the resumed proceedings and at the request of ORG , on DATE PERSON supplemented the expert opinion regarding the applicant ’s broken nose , saying that it could not be ruled out that he had suffered it in the traffic accident in DATE . This was so since broken noses healed slowly and remained X - ray detectable for a long time . He further stated that with a nasal injury such as that described in the medical certificate issued by PERSON ( see paragraph CARDINAL above ) , bruising should appear DATE TIME after being struck . The medical certificate did not indicate that there had been any bruising on the applicant ’s face when he had been examined at ORG .

Dr L.D.B. confirmed that she had indicated in the medical certificate everything she had considered relevant regarding the applicant ’s injury . The applicant stated that she had refused to specify that he had been assaulted by the police since she stated “ [ she ] does not want to go to court ” .

N.S. commented on his previous statements given to the investigating and trial judges ( see paragraphs CARDINAL and CARDINAL above ) , stating that he could not confirm whether he had seen a blood stain on the applicant ’s shirt .

During the proceedings the court made attempts through ORG to secure GPE ’s attendance at the trial . However , his whereabouts remained unknown despite the fact that the applicant stated that he had been in contact with him and that he had agreed to testify in the GPE or PERSON courts due to fear . The court did not accept that GPE had given evidence in these courts .

In a decision of CARDINAL DATE , the court did not admit in evidence ORG written statement of CARDINAL DATE ( see paragraph CARDINAL above ) finding that it had not been given in court and could not serve as the basis for a court judgment .

On DATE ORG acquitted PERSON due to lack of evidence that he had committed the imputed crimes . The court confirmed that the police , including the accused , had been involved in the inspection at the bakery . The applicant , after being called by GPE , had arrived at the bakery at TIME on DATE . At Resen police station , the accused had joined police officers PERSON and PERSON , who had interviewed Z.C. Soon after , the applicant had arrived at the office even though he had not been officially summoned . The court also established that there had been a discussion between the accused and the applicant about the newspaper . After the discussion , the applicant had complained to police officer GPE that he had been hit by a police inspector , alleging that a stain on his shirt had been blood from his nose . The applicant had no visible facial injuries . ORG of First Instance further indicated that after the applicant had left the police station at TIME , he had taken part in a fight with unknown individuals at an unknown place , and at TIME he had asked for medical assistance at ORG . Dr GPE had examined him , noting in the medical certificate that the injuries had been sustained in a fight . The applicant had further convinced GPE to charge PERSON before the ORG . As to the latter ’s special report , the court stated :

“ ... besides the statements of the complainants , accused and witnesses , it does not contain any indication that [ the ORG ] established anything relevant for these proceedings , [ including ] any responsibility on the part of the accused ... ”

Relying on medical evidence and statements by PERSON and GPE , the court established that at TIME on DATE , when the applicant had first been examined at ORG , he had had swelling on his nose , but no bruising . As specified in the medical certificate issued by PERSON , the injuries had been sustained in a fight . Given the statements the witnesses and PERSON had given in the investigation , the court concluded that there had been no evidence to support the applicant ’s allegations .

On DATE ORG allowed the applicant ’s appeal and quashed the first - instance court ’s judgment . It concluded that the lower court , notwithstanding that it had admitted considerable evidence , “ had established incomplete and wrong facts ” and “ had drawn illogical and unreasonable conclusions ” . In this connection , the court stated :

“ The court observes , as already noted in its judgment of DATE , that the first - instance court disregarded the medical [ records ] ... and adduced evidence as to whether there was any colouring to [ the applicant ’s ] injury . During the proceedings , an attempt was made to relate [ the applicant ’s ] injury to a traffic accident in DATE [ in which ] he had sustained injuries and worn a neck collar for longer . This is no longer argued in the impugned judgment , but it is alleged that [ the applicant ’s ] injury was sustained in a fight he had taken part in before asking PERSON for medical assistance . It is unclear on what basis the first - instance court had drawn this conclusion ...

The first - instance court now also did not sufficiently assess GPE ’s statement ... in which he clearly said that he had noticed a blood stain on [ the applicant ’s ] shirt . In the impugned judgment , this witness ’s statement is changed so that justification was given for the conclusion that [ the applicant ] did not sustain such an injury ... the first - instance court , in principle , accepts that [ the applicant ’s ] injury was not a result of actions taken by the accused , but ... was sustained in a fight with unidentified persons at an unknown location immediately before the [ medical ] examination .

In such circumstances , the first - instance court finds that [ the applicant ’s ] injury was caused later than the interview that took place at GPE police station ...

... there is no evidence that after the interview [ at the police station the applicant ] went somewhere , took part in a fight with unidentified individuals and sustained injuries before asking the doctor for a medical check - up . The reasons the first - instance court gives in support of its judgment are unclear and , to a considerable extent , contradictory and inconsistent with the evidence admitted ... ”

On DATE ORG of First Instance acquitted ( ослободува од обвинение ) PERSON of ill - treatment and dismissed the indictment ( се одбива обвинението ) as regards the accusations of bodily injury . In this latter connection , the court found that the prosecution had become time - barred . As regards the charges of ill - treatment the court found , for the same reasons as in the previous judgment , that there was insufficient evidence that the applicant ’s injury to his nose had been caused by PERSON On the contrary , all the available material suggested that it had been sustained in a fight that had taken place immediately before the applicant had asked for medical assistance at ORG .

On DATE ORG allowed the applicant ’s appeal and remitted the case to the first - instance court for fresh examination , which , as noted in the judgment , was to be held before a different panel of judges . The court stated that :

“ ... the conclusion of the first - instance court was in serious doubt and the established facts were not supported by the evidence admitted ... the first - instance court again disregarded the instructions of ORG specified in the [ previous ] judgments . The first - instance court disregarded the medical [ records ] ... the first - instance court was previously instructed to assess [ GPE ’s ] statement ; [ the latter ] , which included some indications as to what had happened ... As previously stated , it is clear from [ GPE ’s ] statement that he had been told by [ the applicant ] that it had not been right to work without a permit , but that [ the applicant ] should not have been beaten up . Witness [ GPE ] clearly stated that he had seen a blood stain [ around ] the applicant ’s stomach [ area ] ... It would be necessary for [ the first - instance court ] to reassess evidence already admitted and pay particular attention to the instructions [ specified ] in this judgment and earlier judgments of ORG , which suggest that the available evidence is sufficient [ for the court ] to draw a conclusion as to whether the accused had undertaken those actions and committed the crime imputed to him ... ”

The fifth round of proceedings is at present pending before the first - instance court .

In a judgment of CARDINAL DATE , which became final on DATE , ORG allowed the applicant ’s request for protection of the right to a hearing within a reasonable time ( “ length remedy ” ) and acknowledged that the criminal proceedings against PERSON had been too long . It held that the applicant had not contributed to the length of the proceedings , which had been protracted due to the fact that CARDINAL courts of first - instance had adjudicated the case ; ORG had not been diligent in fixing court hearings and the case had been remitted to it twice already . It awarded the applicant the equivalent of MONEY ( ORG ) in compensation and ordered ORG to conclude the criminal proceedings as quickly as possible , but DATE after receipt of its judgment .


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in DATE and lives in PERSON .

By a judgment of ORG ( PERSON u PERSON ) of DATE , upheld by ORG ( PERSON ) on DATE , the applicant was sentenced to CARDINAL years’ imprisonment for robbery .

On DATE ORG ( PERSON ) sentenced him to DATE imprisonment for theft , which was confirmed by ORG on DATE .

Following a request by the applicant , on CARDINAL DATE a CARDINAL - judge panel of ORG took into account the above CARDINAL convictions and sentenced him to a single sentence of DATE and QUANTITY months’ imprisonment .

On DATE the applicant was transferred from ORG ( FAC ( GPE u GPE ) to serve the prison sentence originally imposed by ORG on DATE ( see paragraph CARDINAL above ) .

He remained in FAC until DATE , when he was transferred to ORG ( PERSON u ORG ) following a decision by ORG ( ORG pravosuđa , PERSON ) on DATE .

According to the applicant , he spent DATE with CARDINAL other inmates in a cell measuring QUANTITY including the sanitary facilities . The cell was badly maintained , dirty and insufficiently equipped with enough lockers and chairs for all inmates . Moreover , he was not given any opportunity to engage in prison work , and in general was not provided sufficient access to recreational and educational activities .

According to the Government , while in FAC the applicant had at his disposal an average of QUANTITY of personal space . He was detained in CARDINAL different cells , the conditions of which are detailed in the table below :

The Government also submitted that each cell had a toilet fully separate from the living area , each with its own air ventilation system . All cells had access to drinking water , and had windows allowing in natural light and fresh air . During DATE , cells were heated by a central heating system . They were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in DATE , DATE and DATE , which the Government substantiated with photographs , floor plans and other relevant documentation . Furthermore , the inmates were provided with all the necessary hygiene and sanitary facilities . The nutrition was based on the assessment of experts and the quality of the food was constantly monitored by the competent state authorities , which the Government substantiated with the relevant documentation .

The Government also explained that for TIME , CARDINAL , the applicant had been allowed to move freely outside his cell . In addition , he had been able to use the gym , which had been open TIME and TIME , and the basketball court , which had been open on DATE CARDINAL and at the weekends both in the morning and TIME . The prison had also been equipped with a badminton court , ping - pong tables and chessboards , all of which had been available to the applicant . He could have also borrowed books from the ORG library , which provided its services to the prison , and he had been allowed to watch TV and borrow films .

On DATE the applicant lodged a request with the ORG administration through a lawyer , asking to be transferred to FAC for personal and family reasons .

On DATE he complained to ORG in general terms about the conduct of FAC administration , alleging that they had never offered him the opportunity to have a meeting with the relevant officials , that his request for a transfer had been ignored , and that the prison food had been inadequate .

The applicant again reiterated his request for a transfer to ORG on DATE , citing personal and family reasons .

On DATE ORG replied to the applicant ’s complaints , finding them ill - founded in all respects . It pointed out that he had been given sufficient opportunity to have contact with his family , that he had not been engaged in any work because there had been an insufficient number of working positions in FAC , that he had had CARDINAL meetings with the prison governor and CARDINAL meetings with various other ORG officials , and that food had been prepared in consultation with experts , the prison diet having been continuously supervised by the prison doctor .

On DATE the applicant complained about the conditions of his detention to a sentence - execution judge of ORG . He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family . He also complained , inter alia , that his request to engage in prison work had not been answered , and that he was being detained with CARDINAL other inmates in cell no . CARDINAL , which measured QUANTITY in total and was inadequately equipped and maintained .

Following the applicant ’s complaint , the sentence - execution judge requested a detailed report from FAC concerning the conditions of his detention .

After obtaining the relevant report and hearing the applicant in person , on DATE the sentence - execution judge dismissed his complaints as ill - founded . She found , in particular , that the applicant was not detained in inadequate conditions of detention , that he was provided with sufficient hygiene and sanitary facilities , and that was not engaged in prison work since such opportunities did not exist for all prisoners in FAC .

On DATE the applicant lodged an appeal against the sentence - execution judge ’s decision with a CARDINAL - judge panel of ORG , alleging that she had erred in her factual findings , as cell no . CARDINAL actually accommodated CARDINAL inmates .

On DATE a CARDINAL - judge panel of ORG dismissed the applicant ’s appeal as ill - founded , endorsing the reasoning of the sentence - execution judge . It also explained that the required standards for personal space under LAW , namely QUANTITY , should in principle be respected , but that there could be no automatic violation of a prisoner ’s rights if such a standard was temporarily not complied with .

On DATE the applicant complained to ORG about the decision of its CARDINAL - judge panel . He argued that for DATE since arriving at FAC , he had been detained in cell no . CARDINAL , measuring QUANTITY , where CARDINAL inmates in total had been detained . He had then spent DATE in cell no . CARDINAL on the first floor with CARDINAL inmates , which had measured QUANTITY . He had then been placed in another cell , also marked “ cell no . CARDINAL ” , which again measured QUANTITY , where he had spent DATE with CARDINAL inmates . At the time of his complaint he was being held in cell no . CARDINAL with CARDINAL inmates .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , relying on LAW ( equality before the law ) , LAW before the ORG authorities ) and LAW ( right to a fair trial ) of the LAW , complaining in general terms of a lack of personal space and work opportunities in FAC .

On DATE the applicant complained to ORG pravobranitelj ) that he had not been granted a transfer to the prison closer to his family , and alleged in general terms that the conditions of his detention had been inadequate .

By a letter of DATE the ORG invited the applicant to further substantiate his complaints .

The applicant replied to that request on DATE , indicating that the sentence - execution judge and CARDINAL - judge panel of ORG had never examined his complaints properly , and that he had not been granted QUANTITY of personal space in detention required under LAW .

On DATE the ORG replied to the applicant ’s letter that , according to the information available , his accommodation in FAC had fallen short of the requirements of adequate personal space under FAC . The ORG also pointed out that the cell where the applicant was being detained had been renovated in DATE , and complied with all hygiene and health standards . The ORG also noted that just like CARDINAL other inmates the applicant had not been engaged in prison work , as there had been an insufficient number of working positions for all prisoners .

On DATE ORG declared the applicant ’s constitutional complaint ( see paragraph CARDINAL above ) inadmissible as manifestly ill - founded . The relevant part of the decision reads :

“ In his constitutional complaint , the appellant was unable to show that ORG had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions . ORG therefore finds that the present case does not raise an issue of the complainant ’s constitutional rights . Thus , there is no constitutional law issue in the case for ORG to decide on ... “

The Constitutional Court ’s decision was served on the applicant ’s representative on DATE .


Inadmissible (Article 35-3-a - Ratione materiae)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Carlo Ranzoni;Egidijus Kūris;Guido Raimondi;Helen Keller;Iulia Motoc;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Marko Bošnjak;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in DATE and lives in GPE .

In DATE the applicant took up the position of pastor in ORG ( ORG ) . His rights and obligations , together with his remuneration , were set out in an appointment letter issued by ORG on DATE ( the “ Letter of Appointment ” ) . The relevant part of the Letter of Appointment reads as follows :

“ ORG of the pastor :

The tasks defined by ecclesiastical laws and legal provisions , in particular those laid down in Statute no . II of DATE on pastors and pastoral service and the code of conduct of LOC ; the pastor is expected to perform the aforementioned tasks in the spirit of his oath and to the best of his abilities .

In addition , as required by the special needs of his ecclesiastical community , the pastor ’s responsibilities include the following : exercising the rights and obligations of management , as detailed in ORG Statute CARDINAL/I on ORG ... ”

In DATE disciplinary proceedings were instituted against the applicant for statements he had made in a local newspaper . At the same time the first - instance ecclesiastical court suspended the applicant ’s service with immediate effect pending a decision on the merits in the disciplinary proceedings . He received a letter stating that , under LAW ( CARDINAL ) of Statute no . I of DATE on the jurisdiction of ORG , during his suspension he was entitled to PERCENT of his service allowance .

The applicant claimed that , following his suspension , he had sent letters to the head of the congregation and to the competent bishop claiming payment of his overdue services allowances , but to no avail .

On DATE the first - instance ecclesiastical court concluded that the applicant had committed disciplinary offences and removed him from service . On appeal , on DATE , the second - instance ecclesiastical court upheld that decision .

On DATE the applicant took his case to ORG , seeking payment of PERCENT of his service allowance and other benefits to which , in his view , he should have been entitled during the period of his suspension . Arguing that his suspension had reached its statutory maximum duration on DATE , he also sought the payment of the entire service allowance from that date until the termination of his service , that is , on DATE . He argued in substance that his ecclesiastical service was analogous to employment .

On DATE ORG discontinued the proceedings pursuant to LAW , holding that the applicant ’s claim could not be enforced before domestic courts ( “ a felperes kereseti kérelmében foglaltak bírói úton nem érvényesíthető igények ” ) . Under section CARDINAL ( CARDINAL ) of Statute no . I of DATE on the jurisdiction of ORG , a pastor ’s service with the ORG was regulated by ecclesiastical law , whereas a layman ’s employment with the ORG was governed by the ORG labour law . Accordingly , since the dispute before it concerned the applicant ’s service as a pastor , the provisions of LAW were not applicable in the case . This decision was upheld on appeal . The applicant did not apply for review to ORG .

On DATE the applicant lodged a civil action against ORG with ORG , the relevant parts of which read as follows :

“ The PERSON ’s service remuneration , as described in his Letter of Appointment , was .... In addition , the Plaintiff was also eligible to an age bonus equal to .... The Plaintiff was also involved in teaching for which he received ... per month .

On DATE the Respondent suspended the Plaintiff as a pastor and reinstated him to the service roster , which meant he was exempt from all duties until further notice . The Respondent has paid the Plaintiff ’s pastoral allowance until DATE and his salary as a teacher until DATE . In view of the above , the Respondent has caused damage to the Plaintiff by not paying his dues according to their standing legal agreement .

Plaintiff ’s claims are as follows :

I. For the period DATE and DATE , a DATE amount of ...

II . For the period DATE and DATE , an amount of ....

III . For the period DATE and DATE ( DATE ) the unpaid teaching fees ...

Furthermore I submit that the Plaintiff considered the legal basis of the above dues ... as employment and went to ORG to have them reimbursed . In view of the fact that the Pest County Regional Court ’s final decision ... upheld the ruling of the first - instance ORG which , for its part , stated that my involvement with the Respondent did not qualify as employment , I , the Plaintiff , hereby seek reimbursement of my loss before ORG . ”

On DATE the respondent ORG filed a defence , inviting the court to dismiss the applicant ’s claim .

On DATE the applicant filed another submission with the first - instance court , further elaborating on his claim . The relevant parts of that submission read as follows :

“ The PERSON ’s pastoral service was constituted ... on the basis of election by ORG and confirmed by the dean of the ecclesiastical district as well as the bishop of the ecclesiastical region . Its terms were laid down in the Letter of Appointment ... which remained in force during the period indicated in the case .

The pastoral service was carried out by the Plaintiff in person . Its content and accomplishment has not been in dispute between the parties . The Plaintiff ’s pastoral activities were manifold . In particular , he was responsible for the community services of the Parish – e.g. preaching , handling the sacraments , outreach , evangelisation , maintaining the bond between the NORP and the ORG and various related tasks of pastoring , teaching and administration , which included the tutoring of his assistant and deputy pastor . The Plaintiff as pastor , together with the caretaker , represented the NORP and had numerous other administrative tasks as well . As part of his pastoral duties , the PERSON was also obliged to take part in management and teaching .

Neither the establishment of the pastoral service relationship nor the substance of the resulting mutual obligations was the subject of any dispute between the parties involved .

As to the legal classification of the pastoral service relationship itself ... we hold that the Plaintiff ’s activity is best characterised as agency because its content and nature correspond to the factual elements of an obligation of means necessitating personal involvement . For the above reason , we consider that the relevant rules are those of LAW on agency contracts ...

Despite the fact that the Respondent ’s dean – the Plaintiff ’s immediate superior –had already confirmed in writing the legal basis and the amount of the fees due for the period of suspension , in its correspondence dated DATE ... , these were , in fact , paid only partially . Namely , the pastoral cash allowance was paid only up until DATE and the fee due for religious teaching only up until DATE . ”

The applicant based his claim in the first place on Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ( as in force at the material time ) seeking payment of overdue fees stemming from an agency contract he believed he had with ORG . He maintained that for the period from DATE , when the suspension allegedly became unlawful , until the date of termination of his appointment , he was entitled to a fee for his services , which corresponded to the service allowance set out in his Letter of Appointment . He thus sought enforcement of the agency contract . Alternatively , he based his claim on ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW , which provided for damages for breach of the agency contract he had allegedly entered into with the respondent ORG .

On DATE the Pest Central District Court dismissed the applicant ’s claim , holding as follows :

“ An agency contract , according to the particulars of LAW of DATE on LAW ... is a mutual legal transaction ( Article CARDINAL ) . Such transactions are regarded by LAW as contracts of material exchange , as LAW , in accordance with LAW ) , typically regulates pecuniary rights .

Contracts , by definition , are between parties with common material interests : they need whatever value the other has to offer . The goal of the contract is to obtain such value from each other .

Pursuant to LAW , mutual property services are contracts for valuable consideration – with the notable exception of gratuitous CARDINAL - party transactions in which CARDINAL party provides a material service whereas the other is not obliged to do so . The alleged agency contract between the PERSON and the Respondent might be gratuitous if the agent receives no payment from the principal . Except that there was no statement from the PERSON to that effect . Quite the contrary : he filed the lawsuit with the clear intention of obtaining material gain from the Respondent . Thus it can be said that the Plaintiff based his claim on a non - gratuitous agency contract , as provided for in LAW .

In view of the above , this required the Plaintiff to provide some sort of material service , interest or condition in return , something with clearly defined market value . The pastoral service provided by the PERSON ( according to exhibit no . CARDINAL , it also involved preaching , handling the sacraments , outreach , evangelisation and various related tasks of pastoring , teaching etc . ) , however , does not qualify as material service . It is , for all intents and purposes , religious activity .

If the undertaking of mutually agreed conduct is not gratuitous , and the conduct of CARDINAL of the parties has no material value , then , according to the rules of LAW , there can be no civil - law contract for valuable consideration .

Agency contracts , like all contracts , are based on mutual agreement : CARDINAL party makes a formal proposal containing all the key elements of the deal to another , which , in turn , issues a statement of acceptance – see LAW ) and ( CARDINAL ) , and ORG , CARDINAL and CARDINAL of LAW . The parties involved are free to negotiate terms on the basis of legal parity .

The documents submitted show that the Plaintiff ’s appointment was an ecclesiastical process , the terms of his service were set out in a Letter of Appointment ... formulated by the Presbytery of his NORP . The Respondent and its officials exercised various rights vis - à - vis the Plaintiff ( suspension , reprimand by the ecclesiastical court , relocation to service roster , demotion , etc . ) . Within the meaning of LAW , the parties did not negotiate the details of the service , and the Plaintiff became a pastor by appointment , not as a result of a binding agreement . Due to the lack of legal parity between the Plaintiff and the Respondent , the Plaintiff did not enter as a civil - law party into a legal relationship with another civil - law party .

The lack of binding agreement means that the Plaintiff ’s primary claim DATE with reference to ORG and CARDINAL of LAW is insufficient to support his case .

Pursuant to LAW , the rules of tort liability are applicable to liability for breach of contract . Once again , the lack of binding agreement means there was no breach of contract nor any material damage involved . In view of this , the Plaintiff ’s secondary claim is also unfounded .

The acknowledgment of debt , by legislative nature and in practice , is a contractual institution which allows CARDINAL party to affirm its financial obligation towards another . Statements stemming from relationships beyond the control of civil legislation are , for that very reason , neither valid nor binding pursuant to LAW . The letter submitted by the Plaintiff ( illegible reference number ) as acknowledgement of debt is , in this context , rather irrelevant : the sender does not legally represent the Respondent , which might not endorse , or even share , his opinion .

The documents and statements presented by the Plaintiff were sufficient for a review of the case . As the claim was unfounded , the amount at issue was not determined . The hearings of the bishop ... and dean ... were also deemed unnecessary as their opinions feature prominently in the documents and cover all necessary aspects . ”

On DATE the applicant filed an appeal against the first - instance judgment . On DATE the respondent ORG filed pleadings in reply , requesting the court to dismiss the applicant ’s claim .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance decision with the following reasoning :

“ The first - instance court established the facts correctly and the second - instance court agrees with its decision , but differs in its legal reasoning :

LAW IV of DATE provides that ORG in accordance with its LAW – its self - governing bodies are independent legal entities . Pursuant to section GPE ) of the Respondent ’s own Statute no . II of DATE on the LAW and Government of the ORG , a parish is such a legal entity . LAW of the same LAW as the service contract of ORG officials .

The Plaintiff ’s Letter of Appointment , detailing his pastoral duties and allowances , was issued on DATE by ORG . It proves that a legal relationship was established between the Plaintiff and the Parish of ORG , an independent legal entity .

In its pleadings ... , the Respondent referred to LAW and LAW of DATE , thus confirming that the Parish of Gödöllő ... is an independent legal entity within ORG .

In view of the above , the second - instance court came to the conclusion that the Plaintiff ’s claim was unfounded vis - à - vis the Respondent , ORG . ”

On DATE the applicant lodged a petition for review with ORG , in which he stated as follows :

“ .... ORG held that , based on the Letter of Appointment , the Plaintiff ’s legal relationship was with ORG . But , as indicated by us several times , the Letter of Appointment does not mention the lectures on ecclesiastical history the Plaintiff has been giving in a ORG . The fees for these lectures were paid by the Respondent to the Plaintiff directly . Our motions to take evidence were dismissed because of the decision of the first - instance court , which ORG overruled DATE but it is the lack of this very evidence that caused the second - instance court to disregard the difference between the nature and the remuneration of the above - mentioned activities .

Pursuant to Articles CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) and CARDINAL of LAW , a legal relationship – namely agency DATE is established when CARDINAL party ( the agent ) is obliged to provide quality service and the other ( the principal ) is obliged to pay for the said service in accordance with the agreement . As far as teaching is concerned , the Respondent was the sole principal . ORG had nothing to do with DATE which is evident from the fact that the fee was determined according to ORG standards ...

The decisions of the courts are , first of all , only partially compliant with Article CARDINAL of LAW , which lays down the requirement of full justification , and secondly , constitute an infringement of multiple provisions of LAW , namely LAW ( CARDINAL ) , CARDINAL ( CARDINAL ) , and much of the content of LAW . Due to the dismissal of our motions to take evidence , the contradictory decisions of the courts are not based on the true nature of the material service exchanged between the parties , and regard pastoral service and teaching in a ORG as one and the same , despite the fact that these activities greatly differ from each other in both nature and practice of execution ... ”

The respondent ORG replied to this petition in a submission dated DATE .

On DATE ORG discontinued the proceedings , finding as follows :

“ The Plaintiff commenced his action specifically in order to claim fees arising from his contractual relationship with the Gödöllő Parish , as contained in his Letter of Appointment . He did not make any reference to a contract between him and the Gödöllő Parish to provide teaching of church history , nor did he claim any fee in connection with such a contract . He submitted a claim regarding such a contract for the first time in his petition for review [ to ORG ] . Consequently , the fact that the lower courts did not analyse that contractual relationship between the parties and did not take evidence regarding that issue can not be considered an omission on their part ...

In order to determine the rules applicable to the agreement in question and to the implementation of the rights and obligations arising from it , it is necessary to have regard to the very purpose of the agreement underlying the Plaintiff ’s actual claim as well as the elements thereof defining the parties’ rights and obligations . The first - instance court rightly stated in its assessment that the agreement serving as the basis of the applicant ’s claim was not an agency contract under civil law or concluded by and between parties enjoying personal autonomy in the marketing of [ goods and services ] . The PERSON was appointed as a pastor in an ecclesiastical procedure , and the obligations of the Respondent were defined in an appointment letter issued by the assembly of presbyters . The parties established between themselves a pastoral service relationship , governed by ecclesiastical law .

Under LAW ( CARDINAL ) of Act no . DATE on Freedom of Conscience and Religion and on Churches , the ORG is separate from the ORG . Under sub - section ( CARDINAL ) , no State coercion can be used to enforce the internal laws and regulations of Churches .

Relying on the above provisions , the applicant can make a claim under the ecclesiastical law before the relevant bodies of ORG . The fact that the agreement entered into under ecclesiastical law resembles a contractual agreement under LAW does not entail ORG jurisdiction or the enforceability of the claim in a judicial procedure within the meaning of LAW . ( In the particular case , the basic elements of an agency contract and the execution of such a contract could not be established either . )

ORG reached the same conclusion in the earlier proceedings when assessing the claim under ORG labour law and dismissing its enforcement in judicial proceedings .

The first - instance court was right to point out that as the impugned agreement lacked a civil - law legal basis , the court could not examine the applicant ’s secondary claim ( compensation for breach of contract ) . On the basis of the above reasoning , there were no grounds to adjudicate on his claim on the merits .

ORG accordingly quashes the final judgment , including the first - instance judgment , and discontinues the proceedings under LAW ( CARDINAL ) ( f ) and CARDINAL ( a ) of the Code of Civil Procedure ... ”


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

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

NORP The applicant was born intersex and in DATE underwent a feminising surgical procedure in GPE . The applicant is a lawyer and appeared before the NORP courts and in NORP society as a female . In DATE she changed her legal identification documents in GPE so as to record her female name , PERSON . Previously she used the name of PERSON .

The applicant at some stage moved to GPE where she is currently practising as a lawyer . For professional purposes the applicant had initially kept her original male name , PERSON , on all her cards and documents and on ORG .

In the beginning the applicant appeared before the courts wearing trousers and signed all documents as “ GPE ” . In DATE she started appearing in court in female attire .

On DATE the applicant had a case before ORG ( criminal jurisdiction ) and appeared before Judge PERSON had appeared before this judge previously in respect of other cases wearing trousers and a jacket . On the above date she was wearing a long black skirt with a black blazer and a white shirt . The applicant claims that she was publicly humiliated and degraded by Judge PERSON in open court .

According to the applicant , Judge PERSON started making derogative comments . He told her that she was not allowed to appear before him . When she asked him the reason for this he replied that this was because she was wearing a skirt , she was a man and he did not accept masquerading in his court . When the applicant responded that she had already appeared before another judge without a problem , he kept saying “ you are a man , you are a man ” . He also told her that on ORG she was registered as PERSON . When the applicant stated that he was violating her human rights , he replied “ you are a man and you are not allowed to appear in such attire ” . The court room at the time was full of lawyers and other people ( court staff and other audience ) who started laughing at her . The applicant told the judge that he had publicly disclosed her personal data . The judge asked her to leave the court room which she did after stating “ as you wish your honour , with your leave ” .

On DATE the President of ORG issued an affirmation that PERSON had been entered in ORG on DATE and had renewed her licence from DATE until DATE .

On or around DATE , the applicant appeared before the same judge for a second time wearing a skirt . She submitted that the judge had reprimanded her and had stated that she was a man and she was not allowed to appear before him for the same reasons he had told her before . Although she informed the judge that she had obtained a certificate by ORG with her female name , the judge laughed and replied that her name had not been altered in the register and that she had to leave the court room and provide him with a certificate from ORG . The court room was full of lawyers and other people who were laughing at her . The applicant left the court room humiliated .

The applicant submitted that these incidents had received wide publicity through the mass media for DATE adding further humiliation to the applicant , her family and friends . She was subjected to mockery , ridicule , contempt and was harassed by the journalists and other people . She also had suicidal tendencies .

NORP The President of ORG of GPE advised her not to appear before the said judge even though she had several cases before him .

On DATE , following the lodging of the present application with the ORG , the applicant appeared before Judge PERSON who informed her that he had stepped down in respect of the cases in which she was a lawyer . Her cases were transferred to another judge of the same court . However , the applicant claimed that when she appeared before the new judge , he also treated her in a similar manner , called her by her male name and addressed her as “ sir ” in an unnecessary repetitive manner which amounted to mockery .

The applicant stated that ORG did not keep TIME of the relevant incidents and of the conversations set out above .

Section CARDINAL ( CARDINAL ) of the Civil Wrongs law provides that no action shall be brought against any judge of any court in the LOC , other than ORG , nor against any person lawfully performing the duties of a judge of such court , nor against any official receiver , nor any member of any court martial nor against any arbitrator nor other judicial officer in respect of any civil wrong committed by him / her in his / her judicial capacity if this act caused the civil wrong within his / her jurisdiction .

LAW , which came into force when GPE was established , provided for the existence of both a ORG and ORG . These ORG were composed of NORP , NORP and neutral judges , that is , judges from a foreign country other than GPE and GPE . The CARDINAL neutral judges presided over the ORG . After the intercommunal troubles of DATE , ORG ( Miscellaneous Provisions ) Law no . CARDINAL was enacted on the basis of the law of necessity . By virtue of this law , the CARDINAL highest courts were merged into CARDINAL , ORG , to which the various jurisdictions and powers of the CARDINAL pre - existing courts were transferred .

ORG was originally composed of CARDINAL judges , but the number of judges was gradually increased by legislation to its current number of CARDINAL judges . The judges of ORG are appointed by the President of GPE . The district judges , senior district judges , presidents of district courts and judges of the courts exercising specialised jurisdiction are appointed by ORG , a body consisting of the judges of ORG ( Articles CARDINAL.CARDINAL(CARDINAL ) and ( CARDINAL ) and CARDINAL of the LAW ) .

Pursuant to LAW ORG has exclusive authority over the appointment , promotion , transfer , termination of appointment , dismissal and disciplinary matters of judicial officers of the inferior courts . It has the power to terminate the appointment of any judge , on account of mental or physical incapacity ( Article CARDINAL.CARDINAL(CARDINAL ) ) or to dismiss a judge on the ground of misconduct ( Article CARDINAL.CARDINAL ( CARDINAL ) ) .

On DATE ORG on the basis of Article CARDINAL ( f ) of the LAW and section CARDINAL of ORG ( Miscellaneous Provisions ) Law of DATE ( Law CARDINAL/CARDINAL , as amended ) , setting out the practice and procedure to be followed by ORG in the exercise of its competence with regard to disciplinary matters relating to judicial officers . The relevant rules stipulate in detail the disciplinary procedure to be followed in the event a complaint is made that a judge may have become incapable , have displayed inappropriate behaviour ( misconduct ) or committed a disciplinary offence ( Rule CARDINAL ) . If it is considered that an investigation is justified , an investigating judge is appointed by ORG to carry this out ( Rules CARDINAL -CARDINAL ) . After the completion of the investigation , ORG decides , on the basis of the report submitted by the investigating judge and the statements which were taken during the investigation , whether the referral of the judge under investigation to ORG is justified ( Rules CARDINAL and CARDINAL ) . If a decision is taken to proceed against the judge for misconduct or the commission of a disciplinary offence , ORG files a charge or charges against the judge in question who is called to appear before ORG . Disciplinary proceedings are then carried out before that body ( Rules DATE ) . If ORG decides that the charge or charges against the judge in question have not been proved , it shall acquit and exonerate him ( Rule CARDINAL ) . Otherwise , a judge who is found to be guilty of misconduct shall be heard before ORG proceeds further ( Rule CARDINAL ) .

The penalty for misconduct under the Rules is dismissal ( Article CARDINAL.CARDINAL(CARDINAL ) of LAW and Rule CARDINAL ) and for committing a disciplinary offence , a reprimand or a reprimand published in ORG ) .

Section CARDINAL of ORG ( Miscellaneous Provisions ) Law of DATE ( Law CARDINAL/CARDINAL , as amended ) provides that ORG can make Rules to be published in the official ORG the better carrying out of this LAW into effect . Article CARDINAL ( f ) of the LAW provides that ORG may make Rules of Court for prescribing the practice and procedure to be followed by ORG in the exercise of its competence with regard to disciplinary matters relating to judicial officers .


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in DATE and , prior to his conviction , lived in GPE .

On DATE the applicant was arrested on suspicion of fraud . Subsequently , he was charged with fraud , attempted fraud , embezzlement , tax evasion and a breach of duties in his work as a tax agent .

On DATE the ORG of ORG remanded the applicant in custody pending investigation . The judge found that ( CARDINAL ) the applicant was suspected of serious crimes , ( CARDINAL ) he might abscond , ( CARDINAL ) he might put pressure on witnesses , or ( CARDINAL ) he might interfere with the investigation .

On DATE ORG upheld the detention order of DATE on appeal .

The applicant remained in detention pending investigation and trial . The courts extended his detention , using the same stereotyped formula as described above .

On DATE he was committed for trial before ORG of Yaroslavl .

On DATE he was convicted of the charges and sentenced to CARDINAL years’ imprisonment .

On DATE the ORG quashed the judgment on appeal and remitted the case to the first - instance court for a fresh examination .

On DATE the trial court ordered his release on bail .

On DATE the bail was paid and the applicant was released .

On DATE the applicant was convicted of fraud and attempted fraud and sentenced to DATE and CARDINAL months’ imprisonment .

On DATE ORG upheld the judgment on appeal .