Preliminary objection rejected (ex officio examination);Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Just satisfaction reserved

ORG The applicants , who are all NORP nationals , live in GPE . They were prosecuted for acts committed in the course of demonstrations that took place in GPE DATE . The popular unrest , which was particularly heightened DATE and DATE , was triggered off by the decision to transfer the capital of the province of GPE from GPE ( its traditional site ) to GPE , and became particularly widespread on account of the economic situation in this part of the region . It took the form of general strikes , dynamite bombings and clashes with the police . It led to CARDINAL of arrests , CARDINAL charges and , in DATE and DATE alone , to CARDINAL prosecutions ; CARDINAL of these were transferred , for serious reasons of public policy ( LAW paragraph CARDINAL below ) , to a court in another town , including CARDINAL to ORG .

ORG As to the exact dates of the facts concerning each applicant , the evidence in the case - file contains numerous contradictions and uncertainties which the efforts of the Court , and in particular the questions it put to the persons appearing before it , have not entirely succeeded in removing . Subject to this reservation , the facts may be summarised as follows :

ORG Mr. PERSON was born in DATE and is a clerk . He complains of CARDINAL different proceedings instituted against him .

ORG On DATE , the applicant was charged , together with CARDINAL other persons , with obstructing the public highway and seditious assembly . The preliminary investigation commenced before ORG had to be suspended by reason of the election to ORG on DATE of CARDINAL of the applicant ’s co - accused , Mr. PERSON . In DATE , ORG authorised Mr. PERSON ’s parliamentary immunity to be waived ( LAW ) , following which , on DATE , the investigating judge committed the persons concerned , including Mr. PERSON , for trial .

ORG On DATE , the public prosecutor ( procuratore della PERSON ) of GPE requested the public prosecutor ( procuratore generale ) attached to ORG to apply for the case to be remitted to a court other than ORG , for serious reasons of public policy . By order of DATE , registered on DATE , ORG granted the application made by the latter public prosecutor on CARDINAL May and transferred the case to ORG , which received the case - file on DATE .

ORG On DATE , ORG summoned the applicant to appear . On DATE , it delivered a judgment acquitting the applicant , which was entered in the court registry on DATE .

ORG In DATE , Mr. PERSON was arrested and charged , together with another person , with obstructing the public highway , seditious assembly , illegal possession of weapons ( tear - gas grenades ) and " serious resistance " to the police .

In DATE , the GPE investigating judge committed the applicant for trial . The committal decision included a discharge on CARDINAL of the counts . In DATE , the investigation chamber of ORG declared inadmissible the appeal that the public prosecutor ’s office ( pubblico ministero ) had brought on that point .

ORG In DATE , the NORP public prosecutor requested the public prosecutor attached to ORG to apply for the case to be remitted to a court other than ORG , for serious reasons of public policy . By order of DATE , registered at DATE , ORG granted the application made in DATE by the latter public prosecutor and transferred the case to ORG .

ORG The PERSON public prosecutor ’s office received the case - file on DATE and transmitted it to ORG on DATE . The applicant , after being summoned on DATE to appear on DATE , received a CARDINAL months’ suspended sentence and a fine for illegal possession of weapons but was acquitted on the remaining charges .

On DATE , ORG upheld this decision against which Mr. PERSON had appealed . The applicant ’s subsequent appeal on a point of law to ORG was dismissed on DATE .

ORG On DATE , the applicant was arrested and charged , together with CARDINAL other persons , with obstructing the public highway .

ORG On DATE , the NORP public prosecutor requested the public prosecutor attached to ORG to apply for the case to be remitted to a court other than ORG , for serious reasons of public policy . By order of DATE , which was registered DATE , ORG granted the application made by the latter public prosecutor on DATE and transferred the case to ORG .

ORG The applicant was committed for trial on DATE . ORG summoned Mr. PERSON to appear on DATE , but had to adjourn the hearings until DATE . On DATE , it delivered a decision , which became final , acquitting the applicant .

ORG Mr. PERSON was born in DATE and is a carpenter . In DATE , together with CARDINAL others , he was arrested and charged with resisting the police .

ORG The PERSON public prosecutor conducted the investigation according to the " summary " procedure ( LAW ) and committed the applicant for trial on DATE .

On DATE , however , he requested the public prosecutor attached to ORG to apply for the case to be remitted to a court other than ORG , for serious reasons of public policy . By order of DATE , ORG granted the application made by the latter public prosecutor on DATE and transferred the case to ORG .

ORG , at its first hearing on DATE , concluded that the ordinary procedure should be followed and consequently referred the case - file to an investigating judge for examination . After once more being committed for trial DATE , Mr. PERSON was acquitted by ORG on DATE for lack of evidence by a decision which became final .

ORG Mr. PERSON was born in DATE and is a messenger . He was arrested on DATE and charged on DATE , together with CARDINAL other persons , with insulting the police . He was released from custody on DATE . The GPE investigating judge committed him for trial on DATE .

ORG On DATE , the NORP public prosecutor requested the public prosecutor attached to ORG to apply to ORG for the case to be remitted to a court other than ORG , for serious reasons of public policy . The latter public prosecutor did so on DATE , but did not forward the case - file until each of the CARDINAL persons charged had been served with judicial notification ( see paragraphs QUANTITY below ) . By order of CARDINAL DATE , which was registered DATE , ORG granted the application and transferred the case to ORG .

ORG , before which proceedings had been commenced by the public prosecutor ’s office in DATE , summoned the applicant on DATE to appear before it on DATE . At that hearing , the defence objected , under LAW , that the committal order was void because it had not been notified of the lodging of the preliminary investigation documents at the court registry before closure of the investigation proceedings . On DATE , the ORG allowed the objection . Consequently , it sent the case - file back to the investigating judge , who on CARDINAL DATE made a new committal order .

A first hearing fixed for DATE had to be postponed because some important witnesses did not attend . At the following hearing on DATE , the case had to be adjourned again because the composition of the chamber had changed . Finally , on DATE , the ORG discharged Mr. PERSON , finding that the period of limitation had expired on DATE ( Articles CARDINAL and CARDINAL of LAW ) .

ORG Mr. PERSON was born in DATE and is a labourer . He was arrested on DATE and charged on DATE , together with CARDINAL others , with resisting and insulting the police , obstructing the public highway and seditious assembly . The GPE investigating judge committed him for trial on DATE .

ORG On DATE , the NORP public prosecutor requested the public prosecutor attached to ORG to apply to ORG for the case to be remitted to a court other than ORG , for serious reasons of public policy . The latter public prosecutor did so on DATE , but did not forward the case - file until DATE , after service of judicial notification on each of the CARDINAL accused ( see paragraphs QUANTITY below ) . By order of CARDINAL DATE , which was lodged in the registry on DATE , ORG granted the application and transferred the case to ORG .

ORG , before which proceedings had been commenced by the public prosecutor ’s office in DATE , summoned the applicant on DATE to appear before it on DATE . At the hearing on that date , the consideration of the case had to be adjourned until DATE because it had proved impossible to serve judicial notification on some of the accused .

On DATE , ORG discharged Mr. PERSON , finding that the period of limitation had expired on DATE ( Articles CARDINAL and CARDINAL of LAW ) .

ORG Article CARDINAL , first paragraph , of LAW provides ( translation from NORP ) :

" At any time during or at any stage of the proceedings on the merits , on application by the public prosecutor attached to ORG or ORG , ORG may transfer the preliminary investigation or trial proceedings to a different court , on serious grounds of public policy or on grounds of legitimate suspicion . "

Article CARDINAL , second paragraph , specifies that the application is to be communicated to the accused ( imputato ) by the registry of the public prosecutor ’s office . The transfer proceedings suspend neither the preliminary investigation nor the trial , unless ORG , which gives its ruling on the application by means of an order ( Article CARDINAL ) , directs otherwise ( Article CARDINAL ) .

ORG Under LAW ( translation from NORP ) :

" There is a close connection between proceedings in the following cases :

Where the prosecutions concern offences ( reati ) committed on the same occasion by several persons gathered together ... ;

If the evidence of an offence or of CARDINAL of its circumstances is material for the evidence of another offence or CARDINAL of its circumstances . "

Where a close connection exists , LAW provides that proceedings may be joined provided this serves to expedite the procedure .

Notifications in criminal cases are governed by the rules laid down by Articles CARDINAL to CARDINAL of the Code of Criminal Procedure .

ORG As regards the initial notification of an accused person who is not in custody and where it is impossible to effect service on the person concerned , a copy shall be left at his domicile or normal place of work , with a third party living with him , even temporarily , or , failing that , with a caretaker or equivalent . If both places are unknown , a copy of the document shall be served on CARDINAL of these persons wherever the accused resides or has an address . Where there are no such persons , or where they are unable or unwilling to accept service of a copy of the document , the latter shall be lodged in the town hall of the municipality in which the accused lives or , failing that , in which he has his normal place of work ; notice that the document has been lodged shall be posted on the door of the accused ’s home or normal place of work ( Article CARDINAL ) .

ORG If notification is nevertheless impossible , the official responsible for serving it shall so inform the competent judicial or prosecuting authority . That authority , after having ordered further searches , in particular at the accused ’s place of birth or his last place of residence , shall draw up a declaration to the effect that the accused is untraceable ( decreto di irreperibilità ) , assigning him a defence lawyer if he does not already have one and requiring that the notification which could not be served and any future notifications be lodged with the registry of the judicial authority ( ufficio giudiziario ) conducting the proceedings ( LAW ) .

ORG Under LAW , the accused is asked , in the first formal document in the proceedings to elect a domicile for notification purposes ; he is required to report any change of domicile . According to the legislation applicable at the time ( amended by LAW no . CARDINAL of CARDINAL DATE ) , where the information provided on this matter by the person concerned proved incomplete , further searches had to be conducted pursuant to ORG and CARDINAL .

ORG By virtue of LAW , a court is obliged , at any stage of the proceedings , to take notice of its own motion of the extinction of an offence ; statutory limitation takes effect by operation of law .

The statutory limitation period varies from DATE , according to the seriousness of the potential penalty ( LAW ) ; in calculating the period , account has to be taken of any suspension or interruption that may have occurred ( ORG CARDINAL and CARDINAL of LAW ) . Thus , in the case of Mr. PERSON and Mr. PERSON , the period was DATE ( see paragraphs CARDINAL and CARDINAL above ) .


The applicant is a NORP national , born in DATE and living in GPE .

A.

The applicant , his wife and his son co - owned , together with CARDINAL other individuals , a land in PERSON which they had jointly purchased in DATE . The CARDINAL families co - owning the property built cottages on the land and reached an agreement as regards its use . In DATE CARDINAL co - owners requested that they should be authorised to accede to their cottage by a car across the plot used by the applicant and his family . An agreement was not reached and the CARDINAL co - owners brought proceedings with a view to having the co - ownership dissolved .

On DATE the Bratislava - vidiek ORG súd ) dissolved the co - ownership and determined the owners of the individual plots forming the estate . It considered such a solution necessary in order to ensure a peaceful enjoyment of the property by all persons involved and also in order to enable the claimants to accede to the plot attributed to them .

On DATE ORG ( PERSON súd ) modified the first instance judgment in that it re - distributed the property with a view to ensuring all owners a direct access to their plots . Since the shares of the former co - owners could not be entirely respected , the persons concerned were granted a compensation .

On DATE ORG ( Najvyšší súd ) quashed the judgment as the facts had not been established with sufficient certainty . In particular , ORG considered that ORG should have explored in more detail the possibility of dividing the property in accordance with the co - ORG shares .

The case was sent back to ORG . On DATE an expert appointed by the latter submitted his opinion on the division of the land . Another expert opinion concerning different issues was submitted on DATE .

At a hearing held on DATE the applicant requested an adjournment of the case as he had not been given an opportunity , despite his CARDINAL requests to this effect , to examine the case - file . The applicant further challenged the CARDINAL expert opinions . As regards the opinion of DATE , the applicant alleged that the data used by the expert were not correct , that the expert had not taken into account all the relevant facts and that the PERSON request for access to their plot with a car was not justified . The applicant suggested that ORG should order a second expert opinion on these issues .

The court scheduled another hearing for DATE so that the applicant could study the case - file on CARDINAL and DATE .

On DATE and DATE the applicant challenged the presiding judge of ORG . The applicant considered that the judge lacked independence and impartiality as he disregarded the opinion expressed in ORG judgment of DATE and since he envisaged to accept the expert opinion of CARDINAL DATE which was based on false facts . He also complained that the judge was not willing to order a second expert opinion .

On DATE ORG dismissed the applicant ’s request . It considered that a mere objection to the way in which the judge proceeded with the case was not a relevant reason for his exclusion . ORG noted that the applicant had not substantiated his allegation that the judge was biased . It qualified the applicant ’s request as an attempt to interfere with the court ’s independence in deciding on the case .

ORG decision was signed by a judge and stated that it was adopted in accordance with LAW ( CARDINAL ) of LAW ( see “ Relevant domestic law and practice ” below ) . On DATE the president of the civil law section of ORG informed the applicant that the decision of DATE had been taken by chamber no . CARDINAL and not by a single judge as alleged by the applicant .

Another hearing before ORG was scheduled for DATE . The applicant requested that the proceedings be adjourned . He alleged that the case was not ready for adjudication , that ORG decision of DATE had not been taken by a chamber as required by LAW ( CARDINAL ) of LAW and that his request of DATE to be allowed to consult the case - file had not been granted .

On DATE ORG upheld the Bratislava - vidiek ORG decision of DATE to dissolve the co - ownership of the land and redistributed the ownership of the individual plots so that the claimants could directly accede to their plot . It referred to the conflicts between the claimants and the applicant ’s family on this issue and held that such a solution conformed to LAW ( CARDINAL ) of LAW .

When determining the shares of the owners ORG noted that it was bound by the purchase contract of CARDINAL DATE which had been duly registered by ORG . According to the contract , the claimant family and the applicant ’s family had a title to CARDINAL of the property each . For practical reasons , the plot attributed to the members of the claimant family exceeded by QUANTITY their original share and the plot attributed to the members of the applicant ’s family exceeded their share by QUANTITY . Both families were therefore ordered to pay a compensation to the other owners who were in agreement . The court further ordered the claimants to pay NORP korunas ( SKK ) CARDINAL to the applicant ’s family as a compensation for a fence and other investments which they had made on the land . The amount of the compensation had been determined by an expert .

The judgment was based on the expert opinion including a geometric plan submitted on DATE . ORG noted that the opinion conformed to the relevant regulations . The court also referred to its CARDINAL inspections of the site of CARDINAL DATE and DATE respectively .

On DATE the applicant complained to the president of ORG that the judgment of DATE had not been served on him . He alleged a violation of LAW ( CARDINAL ) of LAW . On DATE the president of ORG informed the applicant that he had extended the time - limit for drafting the judgment with reasons until DATE as the judge originally charged with this task was on a long - term sick leave . The judgment was served on the applicant on CARDINAL DATE .

On DATE the applicant lodged an appeal on points of law with ORG . He alleged that ORG had not established the facts correctly and that it had decided arbitrarily . In his view , ORG had disregarded a mistake committed by ORG when registering the co - ORG shares on DATE . The applicant also complained that the expert opinion of CARDINAL DATE had been based on false facts , that his request for a second expert opinion had not been granted and that there existed no relevant reasons for granting the claimants access to their plot by a car .

The applicant further alleged that prior to the hearing held on DATE ORG had not allowed him to consult the case - file , that his son had not been duly summoned and that ORG judgment had been served belatedly . He complained that he had suffered a damage of SKK CARDINAL which ORG had not taken into consideration .

ORG dismissed the appeal on points of law on DATE . It found that ORG had proceeded in accordance with LAW ( CARDINAL ) of LAW and that the reasons for its judgment were relevant and sufficient . ORG noted that the co - ORG shares had been duly registered by ORG in DATE and found nothing to show that the expert opinion of CARDINAL DATE did not conform to the law or was otherwise defective . The failure to order a second expert opinion was not contrary to the applicant ’s right to act before the court .

ORG further established that the damages granted to the applicant ’s family had been determined by an expert and that the applicant ’s complaint about further damage of SKK CARDINAL,CARDINAL had not been the subject - matter of the proceedings in question . Finally , ORG found that the applicant had consulted the file several times and considered it irrelevant that he could not accede to it prior to the hearing held on DATE .

The applicant lodged a constitutional petition ( podnet ) in which he alleged a violation of his constitutional right to judicial protection . It was rejected on DATE . ORG found that the applicant ’s right to have his case examined by a court was respected .

B. Relevant domestic law and practice

Civil Code

Section CARDINAL ( CARDINAL ) gives a court the right to dissolve , at the request of CARDINAL of the co - owners , a joint ownership and to determine the rights of the persons concerned if the latter fail to reach an agreement on this issue . In doing so , the court shall consider the co - ORG shares in the property and bear in mind that its use should be effective .

Code of Civil Procedure

Pursuant to LAW ( CARDINAL ) , the decision on a request for exclusion of a judge shall be taken by a chamber of the higher court .

In accordance with LAW ( CARDINAL ) , parties to the proceeding and their representative have the right to consult the case - file with the exception of the records of votes .

Section CARDINAL ( CARDINAL ) provides that a court shall appoint an expert after having heard the parties if its decision in a case depends on the assessment of facts requiring special knowledge . Pursuant to LAW ) , an expert opinion may be submitted for examination to another expert , a scientific institute or another institution .

In accordance with the relevant case - law ( Collection of the judicial decisions and opinions No . CARDINAL/CARDINAL ) , experts may also prepare opinions after an agreement with natural or legal persons . The interested persons may then submit such opinions to the courts which should consider them as a documentary evidence .

Under Section CARDINAL ( CARDINAL ) , a copy of the judgment with reasons should be dispatched within DATE after its delivery . The court ’s president may grant a derogation from this rule provided that it is justified by serious reasons .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award

Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and is serving a prison sentence in a correctional colony in the town of NORP , Perm Region ( GPE ) .

The applicant was arrested on DATE in the town of GPE , GPE . On DATE ORG of GPE convicted him of , inter alia , attempted rape and several counts of murder , and sentenced him to death . On DATE ORG upheld the trial judgment in substance .

In DATE the President of GPE issued an act of clemency in respect of the applicant , replacing the death penalty with life imprisonment . Thereafter , the applicant unsuccessfully sought a supervisory review of the conviction .

DATE and DATE the applicant was detained for various periods of time in GPE remand centre no . CARDINAL in GPE and other detention facilities . After his arrest the applicant was admitted to hospital because he had frostbite on his feet . He underwent a surgical operation resulting in the amputation of the fifth toe on his right foot and the distal part of his left foot . In DATE he was diagnosed with diabetes . In DATE the applicant was examined in a hospital . A group of experts concluded that he was able to work , except if it required physical exertion ; no disability status was attributed .

In DATE the applicant was transferred to NORP colony no . QUANTITY in GPE ( “ the colony ” ) . DATE he was treated for tuberculosis . It was indicated that he would shortly be examined to determine whether he needed dental and ophthalmological treatment and orthopaedic footwear . In DATE the applicant was treated for his diabetes , diabetic angiopathy ( the generic term for a disease of the blood vessels ) and other diseases . The doctors recommended oral medication to lower blood glucose and a diet . The applicant received medication by PERSON , an oral blood - glucose - lowering drug . It does not transpire from the available medical record that any blood or urine tests were carried out DATE ( see paragraph CARDINAL below ) .

NORP The applicant lodged complaints in relation to the allegedly inadequate treatment of his diabetes , unavailability of books on diabetes , insufficient nutrition and some other matters relating to medical care . On DATE ORG stated that it was not incumbent on this office or another public authority to supply books to individual detainees ; that all relevant counselling on diabetes could be obtained from the detainee ’s doctor , and that the applicant had been examined by a therapist on a number of occasions and received the necessary medication , including oral medication by PERSON . Another complaint was examined on DATE by ORG . It rejected the applicant ’s complaints , indicating that no special or high - vitamin diet was required for prisoners suffering from diabetes ; that they were to be fed according to the standard set by ORG ( see paragraph CARDINAL below ) ; that the applicant was given appropriate medication ; and that in DATE he would be able to have a medical consultation concerning his requests for dental treatment , orthopaedic footwear and an eyesight check - up .

NORP In DATE blood and urine tests were carried out ; the applicant also had an X - ray , which showed no anomalies . From DATE to DATE he was admitted to prison hospital no . CARDINAL to receive dental treatment . The applicant was diagnosed with a partial maxillary and full mandibular adentia ( loss of teeth ) connected to his then sub - compensated diabetes status . The applicant also had various blood and urine tests ( glucose , bilirubin , lipoproteid , cholesterol , alanine and aspartate aminotransferase ) . He was examined by specialist doctors ( a surgeon , a neuropathologist and an ophthalmologist ) who recommended regular medical check - ups . The ophthalmologist diagnosed slight myopia in both eyes and angiopathy . The applicant also had chronic pancreatitis but was in a stable condition . The applicant was given a dental prosthesis and instructions on how to use it . The final recommendations in the discharge certificate included provision of enzymes when needed , a low carbohydrate diet , DATE blood and urine tests , as well as exclusion of medication by PERSON .

In DATE the applicant complained about chest pain and was given medication . In DATE he had a check - up by a physician , an ophthalmologist , a dentist and a surgeon . No specific prescriptions were made . The dentist indicated that the applicant ’s oral cavity “ had been sanitised ” . On an unspecified date the applicant handed over his allegedly defective dental prosthesis to his lawyer , apparently , to have this prosthesis adjusted . Subsequently he was examined by a radiologist and a tuberculosis specialist . On a number of occasions he was given medication for his headaches , hypertension and insomnia . The applicant had several check - ups and X - rays in DATE , DATE and DATE .

As follows from the applicant ’s medical record compiled in colony no . CARDINAL , various blood tests were carried out twice in DATE ( DATE and DATE ) ; CARDINAL times in DATE ( DATE , DATE , CARDINAL and DATE , DATE ) ; CARDINAL times in DATE ( DATE , CARDINAL and DATE , DATE and DATE , DATE , DATE , DATE ) ; CARDINAL times in DATE ( DATE , DATE , DATE and DATE ) and at least once in DATE ( DATE ) . Urine tests were carried out in DATE , DATE , DATE , DATE and DATE , and DATE .

The applicant wrote to ORG , requesting his re - admission to prison hospital no . CARDINAL . This letter was forwarded to ORG . On DATE ORG rejected the applicant ’s request as follows :

“ The complaint has been examined by the medical unit of ORG . Since DATE [ the applicant ’s ] state of health has been monitored in the colony ... In DATE he was examined and received treatment inter alia from a dentist in prison hospital no . CARDINAL . He was discharged from this hospital in a satisfactory condition and was given recommendations to be followed within the regime of an out - patient observation . At present , his state of health is satisfactory ; the most recent laboratory tests were carried out in DATE . For the time being , a consultation with a dentist was not possible because [ the applicant ] did not have his dental prosthesis ( which he had handed over to his lawyer ) .

In - patient treatment in the prison hospital is not necessary . ”

The applicant was examined again in DATE by a medical panel composed of the governor of the prison hospital and the head officers of the gastroenteritis and neurology units in this hospital . The applicant ’s condition was classified as satisfactory . The medical panel confirmed the diabetes ( Type CARDINAL ) diagnosis and symptoms of encephalopathy . The panel concluded that the applicant did not require in - patient treatment in the prison hospital and made the following recommendations :

“ to carry out a glycemic profiling ( TIME before eating and at TIME ) ; to follow a low fat and carbohydrate diet ( which has been followed by the patient on his own) ... and to continue intake of ORG ( TIME ) , and treatment by vasoactive and nootropic substances . ”

The management of GPE colony no . CARDINAL in GPE affirmed in a certificate dated DATE , produced by the Government , that they could not provide the applicant with orthopaedic footwear because it could only be manufactured in another town and there was a long waiting list . Apparently , the applicant had been detained in this colony in DATE . The management of GPE medical facility no . CARDINAL stated in a certificate dated DATE , produced by the Government , that the applicant needed orthopaedic footwear ; however , the relevant regulations on supplies to convicted detainees did not require that it be provided by the ORG . The applicant had been detained in this medical facility in DATE .

A certificate dated CARDINAL DATE and issued by NORP colony no . CARDINAL ( in GPE ) states that during the entire period of his detention in that detention facility the applicant was provided with adequate medication , including glucose - related medicines and CARDINAL meals per day . The management of the colony also stated in a certificate dated DATE , produced by the Government , as follows :

“ [ The applicant ] was not given a prescription for any special diet and receives a ration in compliance with the standards adopted for convicted detainees . ”

NORP In DATE ORG issued a report in relation to the applicant ’s grievances previously raised before various national authorities and ORG . The report reads as follows :

“ In DATE the applicant was transferred to colony no . CARDINAL , where on numerous occasions he underwent out - patient examinations and treatment in relation to various diseases . He was also admitted to prison hospital no . CARDINAL , from which he was discharged in a satisfactory condition , provided that recovery had been obtained for acute illnesses and that amelioration had been observed for chronic diseases ...

The medical unit of the colony has the requisite licences for providing health care ( medication , out - patient treatment , therapy and assessment of disability ) . The colony has the requisite medical staff ( head of the unit , CARDINAL therapists and CARDINAL medical assistants ) with the necessary qualifications ...

For providing consultations on diagnoses and hospitalisation the above staff is assisted by external specialists from hospital no . CARDINAL or municipal or ORG medical institutions ... Certain types of health care ( dental treatment , X - ray imaging , laboratory testing ) are carried out in the medical unit of prison no . CARDINAL .

In DATE [ the applicant ] received dental treatment and prosthesis in prison hospital no . CARDINAL and was discharged from it in a satisfactory condition . The final recommendations included a low carbohydrate diet . In DATE he handed over the prosthesis to advocate PERSON , as can be seen from [ the applicant ’s ] written statement . After DATE he did not request a replacement of prosthesis from the medical unit of prison no . CARDINAL .

Food is supplied [ to the applicant ] in the colony in compliance with the standards set in Decree no . CARDINAL of DATE by ORG ... Since DATE he has been receiving CARDINAL meals per day in order to impede undesired changes in the blood glucose levels . The recommendations for a low carbohydrate diet and low glucose have been followed [ by the applicant ] under monitoring by the medical personnel in the colony .

[ The applicant ] has no disability status . No recommendation for orthopaedic footwear was issued . The regime for detainees on life sentences does not require any substantial movement , except for outdoor exercise ...

[ The applicant ] was and continues to be provided with medical care in compliance with Decree no . ORG issued by ORG and ORG . Such medical care is provided within the framework of the ORG programme concerning provision of free medical assistance to NORP nationals .

During his detention [ the applicant ] was given all requisite medical monitoring and treatment ... ”

NORP The management of NORP colony no . CARDINAL in GPE affirmed in a document dated DATE and produced by the Government that they had no document which indicated that the applicant had asked them for special footwear or that it had been recommended ( see also paragraph CARDINAL above ) . The Government also submitted written statement made in DATE by a medical assistant in colony no . CARDINAL , who affirmed that the applicant could walk independently without any assistance and , in the absence of disability status , did not need special footwear .

According to the applicant , he was not provided with orthopaedic footwear , which was necessary on account of the injuries to his feet . In the absence of such footwear , he suffered pain in his feet and could hardly keep his balance , for instance during long routine line - ups organised by the prison staff or when cleaning cells ; his standard footwear did not fit him properly and wore out quickly . For DATE , the applicant was kept in a cell on the ground floor of the detention facility and had difficulty , in the absence of special footwear , to walk up and down the stairs to / from the first and second floors where the medical unit and the offices of the prison staff were located .

The applicant brought civil proceedings before LOC of GPE ( “ the ORG ” ) against ORG of the ORG , ORG , ORG of GPE and CARDINAL detention facilities . The applicant alleged , inter alia , that he had not been provided with the requisite medical assistance in DATE ; as a result of medical negligence , parts of his feet had had to be amputated ; and he had not been given a special diet adapted to his diabetes in DATE . His claim was dismissed on procedural grounds on several occasions .

NORP In DATE the applicant resubmitted his above claims to ORG . The court opened a file and sought the applicant ’s observations on the need for an expert report to be commissioned . In DATE and DATE the applicant wrote to ORG giving his consent for an expert report to be commissioned and suggested that some questions be put to the expert ( see also paragraph CARDINAL below ) .

The applicant also wrote to ORG asking that he be brought to court hearings in his civil case . The court dispatched summons to the applicant in prison . However , it issued no order for his transfer for any hearings . On CARDINAL and DATE ORG held hearings and heard the prosecutor , the defendants and witnesses . The applicant was neither present nor represented at these hearings .

NORP In DATE the presiding judge asked to see the applicant ’s medical record from prison hospital PERCENT CARDINAL in NORP .

NORP In DATE a Mr Sh . applied to ORG on behalf of the applicant , asking for the applicant ’s medical file , in particular in relation to DATE . He was informed that the applicant ’s medical record had been destroyed because the building in which the hospital had filed it had been flooded in DATE .

An expert report was commissioned and carried out on the basis of the available material . The expert concluded that the surgical operation in DATE had been justified ; the applicant ’s diabetes was hereditary and its treatment had been appropriate , including PERSON ; and that an adequate diet had been given to the applicant . It was noted in this connection that type CARDINAL diabetes required diet no.CARDINAL , which consisted in CARDINAL or QUANTITY servings of food per day excluding or replacing sugar and reducing carbohydrates . A copy of the expert report was sent to the applicant in DATE . According to the applicant , he never saw the documents which served as a basis for the expert report .

Hearings in DATE and DATE were adjourned in the absence of any proof that the applicant had been properly notified . On DATE the court received a letter from the applicant in which he commented on the expert report and also sought his own participation in the hearing and access to the medical documents submitted by the defendants .

On DATE ORG held a hearing at which the applicant was neither present nor represented . By a judgment of DATE , ORG rejected his claims . The applicant appealed . The defendants submitted their observations in reply . On DATE the applicant was provided with a copy of the verbatim record of the trial . In DATE he was served with a copy of the defendants’ observations .

By a letter of CARDINAL DATE the applicant was informed that an appeal hearing was listed for DATE and that “ his absence would not halt the proceedings ” .

On DATE ORG of GPE heard the representative of ORG . The applicant was neither present nor represented at the appeal hearing . At the closure of this hearing ORG upheld the first - instance judgment . In DATE the applicant received a copy of the appeal decision .

NORP law gives detailed guidelines for the provision of medical assistance to detained individuals . These guidelines , found in joint Decree no . CARDINAL/CARDINAL of ORG and ORG , on ORG or Detained ( “ the Regulation ” ) , enacted on DATE , are applicable to all detainees without exception . In particular , section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee . On arrival at a temporary detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates . The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance . DATE after the detainee ’s arrival at the detention facility , he should receive a medical examination , including fluorography . During the in - depth examination a prison doctor should record the detainee ’s complaints , study his medical and personal history , record injuries if present , and recent tattoos , and schedule additional medical procedures if necessary . A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases , HIV , tuberculosis and other illnesses .

Subsequent medical examinations of detainees are performed at least twice a DATE or at GPE request . If a detainee ’s state of health has deteriorated , medical examinations and assistance should be provided by medical personnel of the detention facility . In such cases a medical examination should include a general medical check - up and additional methods of testing , if necessary , with the participation of particular medical specialists . The results of the examinations should be recorded in the detainee ’s medical history . The detainee should be fully informed of the results of the medical examinations .

Section III of the ORG also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment . In each case of refusal , a corresponding entry should be made in the detainees’ medical record . A prison doctor should fully explain to the detainee the consequences of his refusal to undergo the medical procedure .

Detainees take prescribed medicines in the presence of a doctor . In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a DATE dose of medicines to the detainee for unobserved intake .

Until DATE food supplies for detainees were regulated by Decree no . CARDINAL of DATE of ORG . Since DATE they have been regulated by Decree no . CARDINAL . Neither decree has provided for any specific diet for detainees suffering from diabetes .

On DATE ORG issued a standard protocol for out - patient treatment of persons suffering from non - insulin - dependent diabetes . The protocol recommends , inter alia , a DATE provision of CARDINAL glucose ( laboratory ) tests and/or for CARDINAL glucose meter tests .

The Code of Civil Procedure of GPE ( “ the ORG ” ) provides that individuals may appear before a court in person or act through a representative ( LAW ) . A court may appoint a lawyer to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in court proceedings in civil disputes concerning alimony or pension payments or claims for compensation for employment - related health damage ( section CARDINAL § CARDINAL ) . In DATE ORG launched a test project in a number of regions concerning provision of free legal assistance in civil law matters ( Decree no . CARDINAL of CARDINAL DATE ) .

Articles DATE and CARDINAL of the ORG provide that parties may seek a court ’s assistance in obtaining evidence . The relevant party should indicate the circumstances impeding access to such evidence and its relevance to the case , as well as the location from where such evidence should be collected . An unjustified failure to comply with the court order could lead to the person or official in possession of the relevant evidence being fined .

In a given civil case a civil court could ask a court in another location to carry out specific actions in relation to the evidence situated in that location ( LAW ORG ) . This request is mandatory and has to be carried out within DATE from its receipt .

Under Articles CARDINAL and CARDINAL of the ORG , a court may hold a session outside the court - house if , for instance , it is necessary to examine evidence which can not be brought to the court - house .

As follows from Ruling no . CARDINAL of CARDINAL DATE by ORG of GPE , complaints brought by detainees in relation to the inappropriate conditions of detention ( for instance , a lack of adequate medical assistance ) should be examined by a court under the procedure prescribed by LAW of the ORG . The latter provides that a person may bring court proceedings if an action or omission by a public authority or official violated this person ’s rights or freedoms , impeded their exercise or unlawfully imposed an obligation or liability ( Articles CARDINAL and CARDINAL of the ORG ) . Such court action should be lodged within DATE when the person learnt about the violation of his or her rights or freedoms ( LAW ) . If a court considers that the complaint is justified , the court orders the respondent authority or official to remedy the violation ( LAW ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( Article CARDINAL ) . A convicted person may consult his or her lawyer ( ORG CARDINAL and CARDINAL ) .

On several occasions ORG examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts . It has consistently declared the complaints inadmissible , finding that the contested provisions of LAW and LAW did not , as such , restrict the convicted person ’s access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided by law . If necessary , the hearing may be held at the location where the convicted person is serving the sentence , or the court in which the case is being heard may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant ’s submissions or take any other procedural action ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .

The Code of Civil Procedure , as interpreted by ORG in its ruling no . CARDINAL of CARDINAL DATE , allows for a reopening of the domestic civil proceedings on the basis of a ORG judgment .


The applicants , whose names appear in the appendix , are NORP nationals and live in Silopi . They are represented before the ORG by Mr T. Elçi , a lawyer practising in ORG .

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

Until DATE the applicants lived in the LOC village in the district of Silopi in the Şırnak province , where they own property .

On TIME CARDINAL DATE , ORG in GPE , near the village of GPE where the applicants reside , was attacked by the ORG .

On DATE early in the morning the security forces carried out an operation on the applicants’ village , forcing women , children and men to come out of their homes . They gathered them in a square outside the village . The security forces accused the villagers of assisting the ORG . They then dispersed among the houses and set them on fire . The applicants were not allowed to retrieve any belongings from their houses and were forced to evacuate the village . They moved to LOC .

On DATE the applicants applied to ORG for an assessment of the damage they had suffered as a result of the burning down of their homes and possessions . However , due to the extent of the damage , it was not possible to make a complete assessment of the damage caused to their possessions , neither was it possible to make any assessment of damage caused to the fields , LOC and gardens .

On DATE an independent expert submitted his detailed damage assessment reports to ORG . In his reports , he described the nature and the amount of the damage suffered by each applicant . On an unspecified date , copies of the assessment of damage reports were given to ORG .

The applicants repeatedly applied to the administrative authorities in Şırnak for permission to return to their village after the incident . However , the authorities refused their requests .

The investigation carried out by the authorities indicated that on DATE there was an attack to the mechanize battalion by missiles , flak and longed barrelled rifles from inside and around PERSON village . During the clash CARDINAL soldiers died and CARDINAL wounded , the houses of the villagers were also burned down . On DATE a search was conducted in and around the LOC village .

Concerning this incident an investigation was lodged by ORG . On DATE the public prosecutor decided that he lacked jurisdiction and sent the file to ORG on DATE . This investigation is still pending before this court .

The official records indicated that there was no obstacle preventing the applicants from returning to their homes and possessions in their villages . PERSON village is available for resettlement from DATE . The letter of the Şırnak Governorship dated DATE to the district administrations stated that certain villages , including the applicants were available for resettlement . However , none of the villagers applied to return to their village . They only went to crop their fields time to time .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ECHR CARDINAL ... ) .


Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant is the owner of a potable and industrial water station in GPE . By a letter dated DATE the authorities from ORG informed ORG about the fact that the applicant 's company was not complying with the requirements of the relevant regulation concerning the packaging and marketing of spring and mineral waters .

On DATE , in his statements taken by ORG , the applicant maintained that he had been already told by the authorities that the way he was selling water was in breach of the relevant regulation and that he had consequently closed his business DATE .

On DATE ORG issued an advance payment order of CARDINAL NORP Liras ( GPE ) for the applicant , for failure to respect the rule concerning the packaging and marketing of spring and mineral waters , provided in decree law no . CARDINAL . The applicant did not pay the fine within DATE as required by the order .

On DATE the applicant filed a petition with the Karşıyaka ORG , challenging the decision of ORG . He claimed that he had already made a payment . In his submissions to the court , ORG explained that the payment made by the applicant was for a previous offence , which took place on CARDINAL DATE .

On DATE the Karşıyaka ORG dismissed the objection and issued a penal order , by which it increased the fine to ORG , due to the applicant 's failure to comply with the advance payment order .

On DATE the applicant filed an objection with ORG , against the penal order of DATE , alleging , in particular , a breach of LAW ( c ) of the LAW .

On DATE the Karşıyaka ORG upheld the decision of ORG , holding that it was in accordance with the law .

NORP The applicant paid the fine on DATE , CARDINAL DATE and DATE , in CARDINAL equal instalments .

LAW law no . CARDINAL ( amended by law no . CARDINAL ) on the packaging and marketing of spring and mineral waters , provides that the manufacturing , packaging and selling of the spring and mineral waters are under the authorisation of ORG . The principles and procedural requirements concerning these subject matters are regulated by ORG . Article CARDINAL A ( l ) of the same law provides that a company who acts in breach of LAW law no . CARDINAL would be closed , affixed with a seal and be subject to a fine . Should the company commit the same offence again , the fine would be doubled .

Article CARDINAL § CARDINAL of the former Criminal Code provide as follows :

“ If the action does not cause any sickness or prevent the victim from attending his / her usual occupation ( ... ) the offender shall be sentenced to DATE imprisonment or to a fine of GPE CARDINAL to CARDINAL . However , the legal proceedings may be initiated only upon the victim 's complaint . ”

The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events , read as follows :

“ Save the exceptional circumstances described by law , the courts shall decide on objections filed against the penal orders without holding a hearing .

If the objection is upheld , the same court shall decide on the merits of the case . ”

“ The judge at ORG may , without holding a hearing , rule on the offences which are within the jurisdiction of the Magistrates ' Court and it may subsequently issue a penal order .

Only the sentencing to a fine , an imprisonment DATE , a suspension of a certain profession and a seizure ( ... ) may be adjudicated by a penal order . ( ... ) ”

“ If the judge at the Magistrates ' Court considers that the lack of a hearing may put the offender in an unfavourable situation , then it could be decided to hold a hearing . “

“ In addition to the conviction , it should be noted in the penal order , the designation of the offence , the applicable provisions of law , the relevant evidence , and the possibility of raising an objection within DATE after its notification ( ... ) . The petition which raises an objection to the penal order shall be approved by the trial judge . ( ... ) ”

“ A hearing shall be held if the objection is raised against an imprisonment sentence given by a penal order . ( ... )

The suspect can be represented by a defence counsel during the hearing . ( ... )

The objections against the penal orders ( ... ) are examined by a judge at the criminal court of first instance , in line with the procedure described under LAW , CARDINAL and CARDINAL . The objection would suspend the execution of the penal order . ”

In a judgment given on DATE ORG declared LAW of LAW unconstitutional and a nullity . It held that lack of a public hearing before FAC that examines the objections against the penal orders , would be in breach of the right guaranteed under LAW , as well as LAW .

Additionally , the new Criminal Code and LAW which came into force on DATE , contain no provision concerning penal orders .


The applicant is an NORP national , born in DATE and living in GPE . He is a practising lawyer by profession and presents his own case to the ORG .

A.

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

In DATE criminal proceedings were instituted before ORG ( PERSON für PERSON ) against the applicant under LAW ( Finanzstrafgesetz ) . He was suspected of having evaded taxes exceeding MONEY ( ORG ) DATE .

On DATE , upon a warrant issued by ORG , a search of the applicant ’s law office was carried out , at which CARDINAL representatives of the Bar ( Rechtsanwaltskammer ) were present .

In DATE ORG ( PERSON ) was informed about the criminal proceedings pending against the applicant .

On DATE ORG ( NORP ) of ORG appointed an Investigating Commissioner ( PERSON ) , to whom the applicant submitted observations on DATE .

On DATE ORG requested the applicant to file observations as regards a possible interlocutory measure ( einstweilige ORG ) against him .

On DATE ORG imposed an interlocutory measure under section CARDINAL subparagraph CARDINAL ( b ) of LAW DATE ( ORG ) upon the applicant , withdrawing his right to represent people before ORG , its subordinate courts , the corresponding prosecution authorities , and ORG . ORG held that there was cause to fear that the observance of the applicant ’s professional duties would not be sufficiently safeguarded if the applicant represented his clients before a court or authority where criminal proceedings were pending against him . In addition , such representation would prejudice the reputation of the profession . It stated that the measure would be in force at the most until the termination of the disciplinary proceedings against the applicant . Further , he was informed that the measure had immediate effect .

On DATE the applicant filed an appeal with ORG ( PERSON Berufungs- und ORG ) . Alleging that the contested decision was unlawful , unconstitutional and in breach of ORG , he particularly complained that the imposition of the interlocutory measure was not justified since it had not been taken immediately , but DATE after the introduction of criminal proceedings against him . In this respect , he pointed out that CARDINAL ORG representatives had been present during the search of his law office on DATE , and that ORG should , therefore , have been aware of the charges against him . The applicant further claimed that ORG had failed to indicate that he had , during DATE , actually prejudiced his clients or the reputation of the profession .

On DATE ORG dismissed the applicant ’s appeal . It noted that ORG had apparently failed to inform the Bar about the institution of criminal proceedings against the applicant . The latter had only learned about these proceedings in DATE . ORG found that the requirements laid down in section CARDINAL § CARDINAL of LAW DATE for imposing an interlocutory measure were met : Criminal proceedings concerning charges of tax evasion of more than ORG CARDINAL were pending against the applicant and , in view of the serious nature of these accusations and the ensuing disciplinary offence , the measure was necessary in order to protect the interests of potential litigants and the reputation of the profession . It was quite obvious that the applicant could not , in full independence , discharge his professional duties before ORG , which was conducting preliminary investigations against him , or its subordinate courts , the respective prosecution authorities , or ORG for GPE which was carrying out the underlying tax assessment proceedings . Moreover , it was harmful to the reputation of the profession if a lawyer appeared before the same court once as an accused and then as counsel .

Further , as regards the applicant ’s complaint that the interlocutory measure had been taken belatedly , ORG observed that section CARDINAL of LAW DATE did not specify any time - limits . ORG could , therefore , impose such measures as long as the criminal proceedings were pending and the above conditions were satisfied . The applicant had failed to show any new circumstances indicating that a considerable prejudice was no longer to be feared . It was irrelevant whether any clients or the profession had actually suffered any prejudice , since the imposition of the interlocutory measure only required that there was reason to fear that such prejudice would occur if the applicant continued to act before the respective courts or authorities .

On DATE the applicant lodged a complaint with ORG ) . He claimed , in particular , that the disciplinary authorities had failed properly to investigate the facts as regards the institution of criminal proceedings against him . He submitted that the Bar had , at the latest on DATE , become aware that criminal proceedings had been instituted against him . The interlocutory measure , since it had only been imposed in DATE , was therefore arbitrary and infringed the principle of non - discrimination ( Gleichheitsgrundsatz ) , as well as LAW .

On DATE ORG dismissed the applicant ’s complaint . It confirmed the finding of ORG that section CARDINAL of LAW DATE allowed ORG to take interlocutory measures as long as criminal proceedings were pending . To ensure the principle of non - discrimination , ORG was not free to decide , without giving objective reasons , whether or not and when it imposed an interlocutory measure . However , the applicant had failed to substantiate that ORG had acted arbitrarily in the present case . The sole fact that a measure could have been taken earlier did not render the decision arbitrary . Further , the applicant had failed to show that the proceedings , as such , had lasted unreasonably long .

On DATE ORG of the Vienna Bar decided to open disciplinary proceedings against the applicant on the ground that there were reasons to suspect him of having evaded income tax DATE , in an amount to be specified in the further proceedings .

On DATE ORG ( Ratskammer ) at FAC , referring to a report of ORG , found that the amount of taxes allegedly evaded by the applicant was below ORG CARDINAL . Therefore , the prosecution of the tax offences did not fall within the competence of the courts .

On DATE ORG discontinued the criminal proceedings against the applicant and informed the Bar accordingly .

On DATE the Bar lifted the interim measure of CARDINAL DATE , finding that the conditions for upholding it were no longer met , given that the criminal proceedings against the applicant had been discontinued .

B. Relevant domestic law

Section CARDINAL of the Disciplinary Act DATE ( Disziplinarstatut DATE ) deals with interlocutory measures .

Paragraph CARDINAL provides that ORG may impose an interlocutory measure on a lawyer , inter alia , if criminal proceedings are pending against him and if the measure , having regard to the nature and severity of the disciplinary offence at issue , is necessary on the ground that there are reasons to fear considerable prejudice either to the interests of potential litigants or to the reputation of the profession .

Paragraph CARDINAL enumerates the interlocutory measures . In the case of a practising lawyer , they include the withdrawal of the right to represent people before specified courts or administrative authorities , or before courts and administrative authorities in general ( subparagraph CARDINAL ( b ) ) .


Preliminary objection rejected (non-exhaustion);Violation of P1-1;Violation of Art. 6-1;No violation of Art. 6-2;Not necessary to examine Art. 13;Not necessary to examine Art. 14+P1-1;Not necessary to examine Art. 14+6;Not necessary to examine Art. 14+13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings;Pecuniary damage - reserved

PERSON , who is a NORP national , lives in GPE .

ORG On DATE she and her husband , Mr PERSON , bought QUANTITY of land in GPE for a total sum of MONEY ( ORG ) . Further building was not permitted on the land , which was entered in the land register in several different parcels : CARDINAL sq . m of land , QUANTITY . m of ground , house and appurtenant buildings , CARDINAL sq . m of ground and cowshed , QUANTITY . m of garden , ground and shed , and QUANTITY . m of garden .

ORG The sale was concluded on the condition precedent that the SAFER ( Regional Development and ORG ) of GPE did not exercise its right of pre - emption over the property within DATE . The main tax office at ORG registered the sale on payment of duties , firstly on CARDINAL DATE and then on CARDINAL DATE , when the sale took effect on expiry of the statutory time allowed for the SAFER to exercise its right , which it had not done .

ORG On DATE PERSON and her husband were notified by a bailiff of the following decision :

" As [ the Commissioner of Revenue ] considers the sale price declared in the contract of sale ... to be too low , he is exercising , for the benefit of the ORG and with all the effects it entails , the right of pre - emption provided for in LAW over all the real property and appurtenant rights [ acquired by them ] ... [ the Commissioner of Revenue ] offers to pay [ the buyers ] or any other rightful claimant

( a ) the price specified in the contract of sale ,

( b ) the MONEY premium provided for in law , and

( c ) the costs and fair expenses of the contract on production of all the appropriate vouchers . "

ORG On DATE the applicant and her husband instituted proceedings in the GPE tribunal de grande instance against the Commissioner of Revenue for the département of ORG . They sought to have the pre - emption set aside on the grounds that the time - limit for exercising the right had not been complied with , the notification had been null and void ( this ground was not pursued at the hearing ) and there had been a misuse of powers and a breach of the Convention and of LAW No . CARDINAL . In the alternative , they applied for an assessment by a court expert of the market value of the property in issue and an examination of the sellers .

ORG The tribunal de grande instance gave judgment against them on DATE . It ruled that the time allowed for exercising the right of pre - emption had begun to run on CARDINAL DATE and it held that the ORG could not be blamed for not having exercised its right of pre - emption so long as the sale had not taken effect and was subject to the condition precedent .

ORG It rejected the complaints based on the Convention in the following terms :

" As to the breach of the Convention ... allegedly constituted by the right of pre - emption in Art . CARDINAL of the ORG [ LAW ]

If the ORG were to conclude on that account that LAW conflicted with the provisions of LAW , [ the plaintiffs ] could legitimately maintain that the NORP courts must in future refuse to apply LAW .

[ The plaintiffs ] began by arguing that LAW was blatantly inconsistent with LAW . CARDINAL of the LAW to LAW ( PCARDINAL - CARDINAL ) , which provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except in the public interest .

But the LAW referred to has a second paragraph , which provides : ‘ The preceding provision shall not , however , in any way impair the right of a ORG to enforce such laws as it deems necessary ... to secure the payment of taxes ... ’

It so happens that ORG , faced with tax evasion on an increasingly large scale , has felt obliged to enact the provisions of LAW .

By means of that LAW hopes to ensure proper payment of the duties levied on contracts of sale .

The impugned enactment is therefore not inconsistent with the provisions relied on .

[ The plaintiffs ] went on to argue that LAW fell foul of LAW . CARDINAL ( article CARDINAL ) of the Convention ... , which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law ;

that the exercise of the right of pre - emption by the Revenue was a penalty for a ‘ presumed offence of tax evasion’ ; and

that they were therefore regarded , by the very fact of the right of pre - emption having been exercised , as tax evaders with all that that implies in the way of disgrace and without their having any possibility of exculpating themselves .

Article CARDINAL , however , states that the Revenue may exercise a right of pre - emption over property sold at a price it considers too low .

It is therefore not necessary to prove tax evasion before this provision can be applied .

It is sufficient for the price to appear to the Revenue to be too low without its having to determine the reason why it is too low , which may in fact have nothing to do with tax evasion ( e.g. ignorance of the real value or kindness ) .

Admittedly , the provision was enacted solely to counter tax evasion , but those to whom it is applied are nevertheless not necessarily tax evaders and can not be regarded as such ; no penalty is imposed on them and the ORG even pays them PERCENT more than the price they paid .

This PERCENT premium has been provided for precisely because it may inadvertently happen that the right of pre - emption is applied in cases where there has been no attempt to evade tax by the persons concerned .

[ The plaintiffs ] are therefore wrong to regard themselves as disgraced and as having been punished for committing tax evasion .

[ The plaintiffs ] also alleged a breach of LAW para . CARDINAL ( article CARDINAL ) of the Convention ... , which lays down that a punishment can be imposed only after a hearing of the person whose rights are disputed or who is charged with a criminal offence .

But LAW in no way disputes the rights of anyone who has acquired a property and the purchaser is not charged with any offence .

The provision merely confers a privilege on the ORG for the purpose of ensuring that taxes are paid .

It is therefore not necessary , as [ the plaintiffs ] maintained , to allow them to prove that they paid the proper price and did not conceal any payment .

Lastly , [ the plaintiffs ] asserted that they were the victims of a discriminatory measure prohibited by LAW ... ; and

that the measure was discriminatory in relation to other buyers of neighbouring properties at almost identical prices , against whom the Revenue had not exercised its right of pre - emption .

But the Revenue has complete freedom to exercise its right of pre - emption as it wishes .

There is no evidence before the ORG to support the contention that the ORG was influenced by considerations of race , nationality , language , political opinion or any of the other criteria referred to in LAW ) of the Convention .

ORG The applicant and her husband appealed to ORG on DATE . On DATE the judge responsible for preparing the case for trial directed them to make their submissions by CARDINAL DATE .

After securing an extension of time until DATE , the applicants filed pleadings on DATE in which they reiterated the arguments they had adduced at first instance . They supplemented their complaint of discriminatory treatment by pointing out that there was another piece of land that could , they said , have been pre - empted and by criticising the Revenue for having chosen the special procedure of pre - emption instead of the ordinary procedure of making a supplementary tax assessment . Lastly , they argued that the decision to exercise the right of pre - emption did not contain the reasons required by LAW no . CARDINAL - CARDINAL of DATE ( see paragraph CARDINAL below ) .

ORG The Revenue filed its pleadings on DATE , as the judge responsible for preparing the case for trial had requested on CARDINAL DATE . The time - limit of CARDINAL DATE that was given to the applicant and her husband for their reply was put back to DATE and then DATE . They filed their submissions on DATE . The pre - trial proceedings were concluded on DATE .

ORG held a hearing on DATE and gave judgment on DATE . It upheld the lower court ’s determination of the date on which the time allowed for exercising the right of pre - emption had begun to run and dismissed the appeal for the following reasons :

" The ground of appeal alleging that the notification of CARDINAL DATE was unlawful because it did not , as required by LAW no . CARDINAL - CARDINAL of DATE , give any reasons must be rejected , account having been taken of the fact that it does not appear sufficiently substantial to constitute a preliminary point of administrative law , seeing that the notification appears to set out the legal basis and the reason of fact which prompted the Revenue to exercise the right of pre - emption .

For the rest , the ORG , without the slightest hesitation , adopts the excellent reasons for which the court below rejected the grounds relating , firstly , to the misuse of powers of which the Revenue was allegedly guilty by acting speculatively and , secondly , to the contravening by LAW of several fundamental principles laid down in the LAW ... "

ORG The applicant and her husband appealed on points of law on DATE and filed supplementary pleadings on DATE .

They argued CARDINAL grounds of appeal , the first based on failure to comply with the time - limit for exercising the right of pre - emption and the second on breaches of LAW No . CARDINAL ( PCARDINAL - CARDINAL ) and LAW paras . CARDINAL and CARDINAL ( article DATE , article DATE ) of the Convention .

In support of the second ground - the only relevant one here - they maintained , firstly :

It appears from reading these provisions [ LAW para . CARDINAL of the Convention ( PCARDINAL - CARDINAL , article CARDINAL ) ] together that no one can be deprived of his property , even by a tax law , without being able to defend himself in court proceedings . The fact remains , however , that the right of pre - emption conferred by LAW which has become LAW ) is exercised at the discretion of the ORG , which does not have to prove the allegation that the price was too low , and that this provision does not allow a dispossessed purchaser to show that he acted in good faith or that the price in question was a normal one . In the instant case the ORG [ of Appeal ] , which noted that the ORG ’s right was a discretionary one and that it was impossible for the expropriated party to be heard in his own defence and still concluded that LAW conformed with the provisions of LAW and Article CARDINAL para . CARDINAL ( PCARDINAL - CARDINAL , article DATE ) of the ... Convention ... , did not draw from its own findings the legal conclusions which followed from them and thus breached the aforementioned provisions ... "

They went on :

" Article CARDINAL para . CARDINAL ( article CARDINAL ) of the ... Convention ... provides : ‘ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to ORG It is established that the purpose of LAW ORG is to prevent tax evasion and it provides for a penalty in respect of those guilty of it . In the instant case the ORG [ of Appeal ] , which refused to recognise that this was the purpose and nature of the ORG ’s pre - emption so as not to apply to the ORG the provisions of LAW para . CARDINAL ( article CARDINAL ) of the LAW , misunderstood the meaning and scope of LAW ORG ( which has become LAW ) and accordingly breached that provision .

Lastly , the ORG [ of Appeal ] , which noted that the Revenue could exercise its right of pre - emption without having to prove the expropriated party ’s guilt and without that party being able to prove his innocence , but still considered that such a measure did not contravene LAW para . CARDINAL ( article CARDINAL ) of the LAW , breached that provision in refusing to apply it . "

ORG The Revenue ’s defence was registered on DATE . The reporting judge , who was appointed on DATE , filed his report on DATE . The advocate - general was chosen on CARDINAL DATE . Initially heard on DATE , the case was transferred on CARDINAL DATE to a full court of ORG .

ORG On DATE ORG ) delivered CARDINAL leading judgments , including CARDINAL dismissing the applicant and her husband ’s case .

As to the ground of appeal relating to the breach of provisions of the LAW , it said :

" ... in the first place , where the Revenue exercises the powers vested in it by LAW , the dispossessed purchaser may ask a court to rule on a challenge by him seeking to establish that the conditions for applying the aforementioned provision were not satisfied .

In the second place , exercising the ORG ’s right of pre - emption as provided by the aforementioned LAW does not imply that the dispossessed purchaser has committed a criminal offence , from which it follows that the exercise of this right was not within the contemplation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention ...

The ground of appeal is therefore unfounded in every limb . "

ORG Since DATE , it has been possible to build on the land , subject to conditions . The land has not been resold but has been left at the disposal of a neighbouring market gardener . Its current value is in the region of ORG CARDINAL per square metre .

ORG At the time of the pre - emption in question , LAW provided :

" Without prejudice to the provisions of LAW A and for DATE from the date on which the formality of registration for tax purposes or the combined formality [ simultaneous registration for tax purposes and entry in the land charges register ] is completed , the Revenue may exercise for the benefit of the ORG a right of pre - emption over real property , real - property rights , businesses or goodwill , rights to leases or to the benefit of a promise of a lease of all or part of a property where it considers the sale price to be too low , by offering to pay the rightful claimants the price in question and a premium of MONEY .

The DATE period shall be reduced to DATE where the formality is completed at the office for the area in which the property is situated .

The decision to exercise the right of pre - emption shall be served by a bailiff . "

ORG On DATE Article CARDINAL became Article L.CARDINAL of LAW and now provides :

" For DATE from the date of registration for tax purposes or the date on which the combined formality [ simultaneous registration for tax purposes and entry in the land charges register ] is completed , the ORG , represented by the Revenue , may exercise a right of pre - emption over real property , real - property rights , businesses or goodwill , rights to leases or to the benefit of a promise of a lease of all or part of a property where the Revenue considers the sale price to be too low , by offering to pay the purchaser or his successors in title the price in question and a premium of MONEY .

The decision to exercise the right of pre - emption shall be served on the purchaser , vendor or their successors in title by a bailiff .

The exercise of this right shall not prejudice the Revenue ’s right to bring , where appropriate , adversarial supplementary assessment proceedings as provided for in Article L.CARDINAL . "

ORG The administrative decision to exercise the right of pre - emption provided for in this Article must - so it is stated in the Prime Minister ’s circular of DATE - contain reasons in accordance with PERSON no . CARDINAL - CARDINAL of DATE , which came into force on DATE and whose relevant sections provide :

" Natural or legal persons shall have the right to be informed without delay of the reasons for unfavourable individual administrative decisions concerning them .

To this end , reasons must be given for decisions which :

( a ) restrain the exercise of civil liberties or generally amount to a policing measure ;

( b ) impose a penalty ;

( c ) make the grant of an authorisation subject to restrictive conditions or impose obligations ;

( d ) withdraw or rescind decisions creating rights ;

( e ) assert prescription , an estoppel or a forfeiture ;

( f ) refuse a benefit to which persons who satisfy the statutory conditions for receiving it are entitled . "

" The reasons required by this PERSON must be in writing and include a statement of the considerations of law and fact on which the decision is based . "

Jurisdiction to hear appeals against pre - emption decisions under LAW is vested in the ordinary courts .

Firstly , in a judgment of CARDINAL DATE ( ORG , jurisprudence , p. CARDINAL ) the PERSON d’Etat held that it had no jurisdiction , stating that " by reason of the serious interference with the right of ownership which the power granted to the Revenue ... to exercise a right of pre - emption over sold real property entails ... , it is for the ordinary courts ... to deal with cases concerning the right of pre - emption " . Secondly , the ordinary courts have agreed to rule on challenges to pre - emption decisions . They initially reviewed only the formal correctness of pre - emption decisions ( ORG , judgment of DATE , ORG , CARDINAL , DATE ) . Subsequently they extended their review so as to satisfy themselves that pre - emptions had not had a speculative purpose and that they did not disclose any misuse of powers ( ORG , Commercial Division , NORP judgments of CARDINAL DATE , ORG périodique DATE , I , CARDINAL and CARDINAL ) .

Having regard to the discretionary nature of the right of pre - emption , ORG held , however , that the courts could not review the Revenue ’s assessment that a declared price was too low .

In its CARDINAL leading judgments delivered on DATE ( see paragraph CARDINAL above ) ORG considerably widened the scope of judicial review . Explicitly abandoning its earlier view of the discretionary nature of the right of pre - emption , it held that the reasons given for decisions to exercise the right must be in writing and contain a statement of the considerations of law and fact on which the decisions were based . It concluded from this that reasoning which stated only " the Revenue considers the sale price to be too low " was inadequate as it was too summary and too general , the Revenue being required to specify the facts on which it based its assessment that the stipulated sale price was too low , in order to enable a dispossessed purchaser to challenge the assessment and establish that the agreed price corresponded to the real market value of the property .

In CARDINAL of these cases ORG quashed the impugned judgments for having contravened the provisions thus construed ; in the other CARDINAL , including the case of the applicant and her husband , it dismissed the appeals . The applicant and her husband were the only dispossessed purchasers who did not win their case in ORG .

ORG In DATE the Revenue exercised its right of pre - emption only once in the département of ORG - against the applicant and her husband - and CARDINAL times in the rest of GPE .

DATE it carried out CARDINAL operations of this kind .

Since the judgments of DATE ( see paragraph CARDINAL above ) it has refrained from resorting to pre - emption .