Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - claim dismissed;Pecuniary damage - reserved

The applicant is a NORP joint venture based in GPE , with legal personality under NORP law .

NORP In DATE the Governor of GPE of GPE submitted a proposal to the President of GPE to co - fund a joint venture for strengthening and further improvement of trade links between GPE and GPE . The Governor also suggested that GPE should transfer title to a building in GPE to the future company , so that it could be used as its head office .

In DATE the applicant company was founded by CARDINAL companies , including ORG .

On DATE the applicant 's articles of association were amended , the number of co - founders having increased to CARDINAL entities , including ORG and ORG of GPE ( “ the Fund ” ) . The ORG was stated to be acting on behalf of ORG ( “ NORP ” ) . Each founder was declared to hold PERCENT of the applicant 's share capital . While CARDINAL companies were to pay equal amounts of money for their shares ( ORG CARDINAL ) , the ORG undertook to transfer to the applicant company a title to the building valued at ORG CARDINAL , and belonging , as was stated in the articles of association , to NORP .

On DATE Ukranaftoprodukt , acting on the ORG 's instructions , transferred title to an administrative building in GPE to the applicant . NORP continued to use the building as its LOC .

According to the applicant 's amended articles of association , it was established mainly for the purposes of obtaining profit for the shareholders and for the creation of an infrastructure for the cooperation between NORP and ORG companies pursuant to intergovernmental decisions aiming at improving effectiveness of business links and implementation of joint programmes , such as the sale of oil , gas , wood , agricultural products ; legal advice ; organisation of exhibitions ; other commercial activities necessary for achieving the goals of the company . The applicant company enjoyed all the rights of a separate legal entity . The applicant 's shareholders were entitled to take part in its management , to receive a part of its profit , to be informed about its activities etc . The property of the applicant company consisted of the objects and money transferred to its share capital by the shareholders , as well as the funds received by the applicant from other sources . The shareholders did not enjoy separate rights over the objects transferred to the applicant as their contributions .

In DATE ORG ( “ the City Administration ” ) instituted proceedings in ORG of GPE against the ORG , ORG and the applicant company , seeking recovery of title to the building , claiming that it owned the building and alleging that the title to the latter had been transferred to the applicant ultra vires .

On DATE the court invalidated the transfer of CARDINAL DATE and ordered PERSON to give the building back to ORG . The court found that that the building belonged to ORG and that the ORG had not been entitled to transfer it to the applicant .

Ukranaftoprodukt lodged a request for review of the decision of CARDINAL DATE with the panel of ORG for the review of judgments , rulings and resolutions ( the “ ORG ” ) .

On DATE ORG quashed the judgment of CARDINAL DATE and rejected the claim of ORG . The panel held that the claim had been lodged out of time and that there was no evidence that ORG was the lawful owner of the building .

On DATE the Presidium of ORG rejected the request for supervisory review ( the “ protest ” ) of the resolution of DATE , lodged by the President of that court , as unsubstantiated .

On DATE the Prosecutor General of GPE , following ORG request , lodged a protest with ORG ( the “ ORG ” ) , seeking supervisory review proceedings in the case . On DATE ORG , in the presence of the representatives of ORG office , allowed the protest , quashed the resolutions of DATE and DATE , and upheld the judgment of CARDINAL DATE . In its decision , the court summarised ORG arguments and found them substantiated . No other reasons were given for its decision . The parties were not invited to participate in the hearing before ORG . The applicant 's comments on the protest of ORG were not examined by ORG .

According to the applicant , on DATE its articles of association were amended to the effect that the NORP authorities were no longer a shareholder .

The Government contended that the ORG remained CARDINAL of the founders of the applicant company and , hence , the owner of PERCENT of its share capital .

The relevant provisions of the LAW read as follows :

“ A company shall be the owner of :

[ i ] NORP the property which its founders ... transferred to it ;

[ ii ] the objects which it produced ... ;

[ iii ] NORP the profit which it received ... ”

“ Participants and founders of a company may transfer to it as their contribution buildings ... , money ...

The contribution expressed in karbovatsi shall constitute the founder 's and participant 's share in the [ company 's ] statutory fund . ”

“ In accordance with LAW , the arbitration courts shall have jurisdiction over economic cases .

The arbitration court is an independent body with jurisdiction over all economic disputes between entities , public and other bodies , and over litigation arising out of insolvency . ”

“ The Higher Arbitration Court shall be composed of the President , the First Deputy President , the President 's deputies , and the judges and [ it ] shall sit as :

ORG ;

the Presidium of ORG ;

the panels for the consideration of disputes and for the review of judgments , rulings , resolutions . ”

The relevant provisions of LAW Procedure provided :

“ The Higher Arbitration Court shall consider cases :

CARDINAL ) in which CARDINAL of the parties is ... ORG ... ”

“ The lawfulness and reasoning of a judgment , ruling or resolution of an arbitration tribunal ... may be reviewed under the supervisory procedure upon the party 's request or following a protest by a prosecutor or his deputy , in accordance with this LAW and other laws of GPE .

The party 's request for review of a judgment ... shall be examined by ... the panel of ORG for the review of judgments , rulings and resolutions .

The following persons are empowered to lodge a protest :

ORG and his deputies ... ”

“ The arbitration court shall be entitled to review under the supervisory procedure the lawfulness and reasoning of a judgment , ruling , resolution on its own initiative ... ”

“ ... The panel ... shall review under the supervisory procedure :

CARDINAL ) a judgment and ruling concerning a dispute which was adjudicated by ORG ... ”

“ A judgment , ruling , resolution shall be reviewed by a panel of the President of ORG or his deputy and a judge of ORG . If they do not agree on the outcome of the review , the President of ORG or his deputy may report to ORG who decides the matter ...

A judgment , ruling , resolution shall be reviewed by the President of ORG or his deputy and CARDINAL judges of the panel , if the application of law or assessment of evidence in the case is difficult . In such a case , the decision shall be adopted by a majority of votes .

A judgment or ruling delivered by the Deputy President of ORG or delivered in the hearing in which he presided shall be reviewed by the President of ORG and CARDINAL judges of the panel . In such a case , the resolution shall be adopted by a majority of votes .

A judgment or ruling delivered by the President of ORG or in the hearing in which he presided shall be reviewed by ORG .

If necessary , the parties may be invited to give their explanations at the panel 's hearing . ”

“ The President of ORG , ORG of GPE or his deputies have a right to lodge with the ORG of ORG a protest against the resolution delivered by the panel of ORG for economic disputes .

A party to the proceedings has a right to lodge with the Presidium of ORG an application for supervisory review of the judgment or ruling delivered by the President of ORG in the hearing in which he presided ... ”

“ The President of ORG , ORG have a right to lodge with ORG a protest against the resolution delivered by ORG .

Following its deliberations , ORG shall adopt a resolution ... ”

“ An application for supervisory review ... shall be lodged with the arbitration court which adjudicated the case . If the supervisory review is to be carried out by ORG , the application , together with the case - file , shall be submitted by the relevant arbitration court to ORG within DATE following the receipt of the application .

The protest ... shall be lodged with the arbitration court competent to review the judgment ...

Copies of the application or protest shall be sent to the parties ...

The enforcement proceedings shall not be suspended if an application or a protest is lodged , save in the cases where the judgment ... concerns the transfer of money and the forced taking of property ... ”

“ An application ... and a protest must be lodged within DATE of the date of the judgment ... ”

“ Upon the receipt of a copy of the application for supervisory review ... or of a protest , a party shall send to the arbitration court , other parties ... [ its ] observations [ in reply ] .

The absence of the [ parties ' ] observations ... shall not prevent [ a court ] from carrying out the review . ”

“ The parties may participate in [ the proceedings on ] the review ... The prosecutor ... shall take part in [ the proceedings on ] the review , which were initiated upon [ his ] protest . The non - appearance of the parties or the prosecutor ... shall not prevent [ the court ] from carrying out the review ...

The supervisory review ... shall be completed within DATE of the receipt of an application or protest ...

A judgment , ruling , resolution of the arbitration court may be reviewed under the supervisory procedure no later than within DATE after their delivery . ”

“ ... [ T]he arbitration court has power :

[ i ] NORP to leave a judgment , ruling , resolution without changes ;

[ ii ] to change a judgment , ruling , resolution ;

[ iii ] to quash a judgment , ruling , resolution , and to adopt a new judgment , remit a case for a fresh consideration , discontinue the proceedings , or leave a case without consideration .

A judgment , ruling , resolution ... shall be reviewed as a whole , irrespective of the grounds for an application for supervisory review or a protest .

An arbitration court reviewing a judgment , ruling , resolution under the supervisory procedure shall have all the powers of an arbitration court considering an economic dispute .

The supervisory review of a judgment , ruling , resolution by the Higher Arbitration Court shall be final , save when a party is outside the territory of GPE and there is an agreement between the relevant GPE for a different procedure of review . ”

CARDINAL ) NORP incomplete examination of the circumstances relevant to a case ;

CARDINAL ) NORP lack of proof of the relevant circumstances established by a court ;

CARDINAL ) NORP lack of conformity of the conclusions [ of a court ] ... with the circumstances of a case ;

CARDINAL ) NORP violation or incorrect application of substantive or procedural law ... ”

“ A judgment , ruling , resolution of an arbitration court shall be final and binding on DATE of their delivery ... ”


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

During the Second World War the applicant was subjected to forced labour on a farm owned by a NORP family PERSON in PERSON ( currently GPE in GPE ) .

On an unspecified date she submitted a request for compensation to the Polish - German Reconciliation Foundation .

On DATE the NORP - German Reconciliation Foundation awarded the applicant financial assistance in the amount of ORG CARDINAL . It considered that the applicant 's persecution fell under the CARDINALth category . This category comprised persons who had been deported to GPE and subjected to forced labour . The amount was to be paid in CARDINAL instalments , the first one in the sum of ORG CARDINAL to be paid from DATE to CARDINAL DATE .

On DATE the ORG gave a decision confirming payment of DATE , in the amount of ORG CARDINAL , to be paid from CARDINAL DATE to CARDINAL DATE .

On DATE the Director of ORG gave a decision by which he confirmed that the applicant complied with the conditions set out in the applicable domestic law for obtaining the status of a veteran on the strength of her imprisonment in the concentration camp PERSON in DATE and DATE .

On DATE the ORG gave a judgment by which it confirmed that the applicant satisfied the requirements which the applicable laws attached to the grant of war veteran status and that she was permanently and totally unable to work . It further stated that the applicant 's health made it impossible for her to live independently . The court referred to medical reports prepared for the purposes of the proceedings and to a unanimous medical opinion given by a medical panel of ORG which had also confirmed that the applicant 's disability had been caused by her stay in the NORP concentration camp during the Second World War .

On DATE the ORG refused to award further payment to the applicant for her internment in the concentration camp , finding that the available evidence , in particular written statements submitted by witnesses , was insufficient proof that the applicant had been imprisoned there . The applicant appealed .

The ORG , by a decision of DATE , refused to allow her appeal , reiterating the arguments on which it had relied in its firstinstance decision .

On DATE ORG rejected the applicant 's statement of claim under LAW by which she had requested recognition ( ustalenie ) that she had been working as a forced labourer in GPE during the war , at a farm belonging to family B. The court had regard to a resolution of ORG of DATE ( III CZP CARDINAL/CARDINAL ) , by which the latter court had held that civil courts lacked jurisdiction to examine any claims concerning forced labour during the Second World War and that it could not be accepted that such jurisdiction could be based on LAW .

The applicant appealed . By a decision of DATE ORG upheld the contested decision , fully sharing the conclusions of the first - instance court . On an unspecified DATE ORG refused to grant her legal aid for the purposes of lodging a cassation appeal with ORG .

On DATE ORG dismissed the applicant 's action by which she claimed ORG MONEY from ORG as compensation for the ORG 's failure to legislate in order to provide for social insurance entitlements to persons who during the Second World War had been subjected to forced labour and persecution in various factual contexts . The court observed that the applicant was entitled to various social insurance payments arising out of her bad health ; in particular , she received a war veteran 's benefit and a disability benefit granted to her under the universally applicable provisions of social insurance laws . Moreover , no national or international regulations obliged the NORP State to enact legislation addressing specifically the compensation rights of persons who had suffered during the Second World War and providing for special entitlements for them .

On DATE ORG upheld this judgment .

The relevant law and practice concerning the Polish - German Reconciliation Foundation is set out in the ORG 's judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .


Remainder inadmissible;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in the GPE area .

On DATE the applicant was awarded a Commemorative “ DATE ” Medal ( bestowed upon persons who distinguished themselves when defending the freedom and independence of GPE during the period DATE ) . By the Presidential order of CARDINAL DATE the applicant was awarded the Medal of Founding Volunteers of the Lithuanian Army .

On DATE a special governmental commission ( “ the Commission ” ) found that the applicant had been a “ former secret collaborator ” ( slapta bendradarbiavęs asmuo ) under the Law on registering , confession , entry into records and protection of persons who have admitted to secret collaboration with special services of the former GPE , and decided to publish this information in the “ Official Gazette ” ( PERSON žinios ) .

The applicant brought proceedings before ORG requesting it to quash the ORG ’s conclusion as to his former collaboration . On DATE the court partly granted the applicant ’s claim , establishing that there had been a lack of evidence of the applicant having been a ORG collaborator .

On DATE ORG quashed the lower court ’s decision . It was found that the applicant had indeed been a ORG collaborator while working as a sports journalist and travelling abroad in DATE .

On DATE the Commission published information in the “ Official Gazette ” to the effect that , in the past , the applicant had collaborated with the special services of the former GPE , namely with the ORG .

On DATE the applicant was dismissed from his post as an official at ORG of ORG . The decree by which he was dismissed stipulated that the reason for the dismissal was the information regarding his collaboration , which the ORG had published on DATE .

NORP The applicant again challenged the ORG ’s conclusions in its decision of CARDINAL DATE as being null and void . On DATE ORG dismissed the action on procedural grounds , finding that there had been a final court decision on the issue . The case was discontinued .

On DATE ORG reopened the proceedings to have the evidence better examined and to establish guidelines for a common judicial practice in similar future cases .

On DATE ORG examined the merits of the applicant ’s complaints , dismissing his request to quash the decision of ORG of DATE . ORG found that the lower courts had reasonably concluded that the applicant had secretly collaborated with the secret services of the former GPE . The court noted that the applicant ’s rights in examining the evidence and questioning the witnesses had not been curtailed . That decision was final .

On an unspecified date the applicant submitted a request to ORG seeking the reopening of the procedure , alleging violations of material legal norms in the decisions in his case . On DATE , the court dismissed his request as unfounded .

The applicant alleged that he had been disbarred from practising as a barrister as a result of the impugned domestic decisions .

The PERSON on registering , confession , entry into records and protection of persons who have admitted to secret collaboration with special services of the former GPE ( hereafter “ the Law ” ) was enacted on DATE , and came into effect on DATE . The PERSON provided for the creation of a special governmental Commission responsible for the assessment of the activities of persons who had secretly collaborated with such services and the registration of those persons as “ former secret collaborators ” . The PERSON , in so far as relevant in this case , reads as follows :

“ CARDINAL . The provisions of the PERSON on ORG , whose aim is to create a system of national security protecting the ORG and its population , human and ORG rights and freedoms , and also personal safety , shall be implemented by the present PERSON , providing protection against the influence , blackmail and recruitment , or attempts to draw into any illegal activity , by the special services of foreign GPE . The LAW shall also ensure the implementation of the ORG ’s right to apply the principle of loyalty and trustworthiness to civil servants and other employees of ORG government and administration , local government , national defence , the interior affairs system , ORG , courts , ORG , the diplomatic service , customs , ORG controlled institutions and other ORG institutions which implement control and management , to attorneys and notaries , and to employees of banks and other credit institutions , or in strategic economic entities , communication systems , protection services and structures thereof , and in other structures providing detective services . ... ”

“ CARDINAL . A person , who has secretly collaborated with the special services of the former GPE means ... a person ... who has actually and deliberately carried out the tasks and assignments of the special services of the former GPE according to a written or unwritten commitment to collaborate in secret , where the activity is not regulated by statutory regulations or labour laws ( agent , resident , confidant , retainer of conspiracy quarters , retainer of a rendezvous flat , non - staff operational employee or other person who has secretly collaborated with the secret services of the former GPE ) . ... ”

“ CARDINAL . A ... Commission ... shall be established to assess the activities of persons who secretly collaborated with the special services of the former GPE and to adopt decisions whether to include persons in a report or publication of data concerning secret collaboration . ...

Pursuant to the present ORG shall :

CARDINAL ) assess the activities of persons involved in secret collaboration with the special services of the former GPE ;

CARDINAL ) adopt decisions concerning the inclusion in the report of persons who have admitted to secret collaboration with the special services of the former GPE ;

CARDINAL ) adopt decisions concerning the publication of information about the secret collaboration of persons with the special services of the former GPE , in the instances specified in LAW ;

CARDINAL ) ensuring total personal confidentiality , shall encode the secret information transferred to the ORG and adopt decisions concerning the provision of information for research work ; ... ”

“ In accordance with the present PERSON , ORG shall : ...

CARDINAL ) upon the request of persons who have admitted to collaboration in secret with the special services of the former GPE , employ measures to protect them from blackmail and recruitment attempts or efforts to involve them in any illegal activity ; ... ”

“ CARDINAL . Persons who have secretly collaborated with the special services of the former GPE must present themselves within DATE of the registration and confession acceptance date , as announced by the ORG in the “ Official Gazette ” , to register and voluntarily confess in writing , to ORG , to have secretly collaborated with the special services of the former GPE , reveal all of the information known to them concerning the activities of the special services , and hand in the documents or objects linked to the special services of the former GPE . ... ”

“ CARDINAL . Persons who have secretly collaborated with the special services of the former GPE shall be entered in the records by a decision of the Commission if they have voluntarily confessed to having secretly collaborated with the special services of the former GPE , and have submitted all the information within their knowledge in connection with the activity of the special services .

The fact of confession and the data submitted by the person who has confessed shall comprise information which constitutes a ORG secret and which shall be classified as secret and used and declassified according to the procedure established by law ... ”

LAW Protection of persons who have confessed and instances of information publication

“ CARDINAL . Information supplied by persons who have been registered , have confessed and have been entered in the records , and the data regarding them , shall be classified and stored according to the procedure established by law .

Persons indicated in paragraph CARDINAL of this Article shall inform ORG if they experience blackmail and recruitment offers or attempts to draw them into any illegal activities , and ORG , on the basis of a request by the persons who have made confessions , shall take measures to protect them and to uncover criminal activity . The entry of persons in records and the information submitted by them shall be declassified if these persons have been convicted by a final judgment of having committed actions that have been acknowledged as acts against humanity , war or crimes of genocide , and by other instances established by law for the declassification of classified information . ...

The information regarding secret collaboration with the special services of the former GPE shall be published in the ‘ Official Gazette’ in those instances where a person who had secretly collaborated with the special services of the former GPE has failed to admit within DATE of the beginning of registration and reception of confessions announced by ORG , to having secretly collaborated with the special services of the former GPE , and also if he has furnished false information about himself , other persons and the activities of the special services , or has concealed such information . The person who secretly collaborated with the special services of the former GPE shall be given written notice of the decision adopted by the Commission to publicise such information . He may appeal against this decision to the administrative court , within DATE of receipt of such notice . The implementation of the decision to make the information public shall be suspended until the court judgment becomes effective . ”

“ CARDINAL . Persons who have secretly collaborated with the special services of the former GPE , whose data has been made public according to the procedure established in DATE of the present PERSON , for a period of DATE from the date of publication , may not be employed as teachers in educational institutions , educators or heads of such institutions , occupy positions requiring the carrying of a weapon , or work as Republic of GPE civil servants or other employees of ORG government and administration , municipal authorities , national defence , the interior affairs system , customs , the Prosecutor ’s office , courts , ORG , the diplomatic service , ORG controlled and other ORG institutions engaged in control and supervision , as attorneys and notaries , or as employees of banks and other credit institutions , or in strategic economic functions , communications systems , protection services and structures thereof and other structures providing detective services .

In the event that the data concerning persons who secretly collaborated with the special services of the former GPE has been published in the ‘ Official Gazette’ or in other mass media by decision of the Commission , an employer or his representative must , no later than DATE following the publication of this information , dismiss the employee from his job , without paying him severance pay ...

Should the published information regarding a person who secretly collaborated with the special services of the former GPE concern a person who is engaged in legal practice , ORG of GPE shall revoke the decision to accredit the person as a lawyer . At the conclusion of a DATE term , the person shall have the right to be accredited as a lawyer in accordance with the procedure established by law . ”


CASE OF KLIMENKO AND OSTAPENKO v. RUSSIA

Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The first applicant was born in DATE and the second applicant in DATE . They live in GPE , GPE .

The applicants , GPE victims , were in receipt of a DATE pension and a special “ food allowance ” from the ORG . They brought proceedings against the regional social security office ( “ the defendant ” ) claiming recalculation of the pension and the allowance in line with the increase of the minimum subsistence amount .

On the dates listed below ORG of GPE granted the applicants’ claims and ordered the increase of the allowance and its subsequent index - linking . In re - calculating the amounts to be paid the court applied the multiplier of CARDINAL reflecting the increase of the minimal subsistence amount in GPE . The judgments acquired legal force , as upheld on DATE by ORG .

On DATE the defendant appealed to ORG by way of supervisory review of the judgments .

On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit either of the CARDINAL cases for examination on the merits to the Presidium of ORG ( “ the GPE defendant complained to the President of ORG about the judgments in the applicants’ favour and the judge rapporteur ’s decision of DATE .

On DATE the President of the Rostov ORG and on DATE judge B. of ORG allowed the defendant authority ’s applications for supervisory review of the judgments in the first and the second applicants’ favour respectively and sent the cases for examination on the merits to the ORG . These decisions referred to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur ’s decision of DATE .

On the dates listed in the Appendix the ORG , by way of supervisory review , quashed the first instance and the appeal judgments on the ground that that the lower courts had applied an incorrect multiplier to the applicants’ cases , and remitted the cases for a fresh examination to the first instance court .

On DATE ORG examined the cases anew . The court , by a single judgment , established that the allowance due to the applicants should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The court restored in the favour of each applicant MONEY ( RUB ) for the period DATE and DATE and established that as of DATE they were entitled to the DATE compensation in the amount of RUB CARDINAL,CARDINAL.CARDINAL , to be index - linked in future . The judgment was not appealed against and became final DATE .

In DATE and DATE the second applicant brought further court proceedings for adjustment of the allowance . On DATE and CARDINAL DATE ORG granted his claims and ordered the allowance to be increased by application of the multipliers of CARDINAL and CARDINAL respectively and to pay him arrears for the periods from DATE and from DATE to DATE .

As follows from the Government ’s additional observations , on DATE the second applicant applied for annulment of these CARDINAL judgments and the award of DATE due to discovery of new circumstances . On DATE the request was granted by an unspecified court . The judgments of DATE , DATE and DATE were annulled on account of discovery of unspecified new circumstances , and the cases were remitted for a new examination .

According to the Government , on CARDINAL DATE ORG recovered in the second applicant ’s favour RUB CARDINAL,CARDINAL.CARDINAL of unpaid allowance in respect of the period from DATE to DATE and ordered further increase of the DATE payments up to RUB CARDINAL . The scope of the applicant ’s claims was not specified by the Government and it is unclear whether these claims had been granted in full or in part . The judgment entered into force on DATE and at some point was executed in full .

The parties did not submit copies of the judgments of CARDINAL DATE and CARDINAL DATE , the second applicant ’s statement of claims in the respective proceedings and his application dated DATE for annulment of the earlier judgments .

For the relevant provisions on the supervisory - review proceedings contained in LAW see the ORG ’s judgment in the case of PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL et seq . , § CARDINAL , CARDINAL DATE ) .


The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr T. Fritzsche , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr F. Trauttmansdorff , Head of ORG at ORG .

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

The applicant is the owner of premises of QUANTITY registered in the land register under the no . CARDINAL and situated in GPE . At the time of the events , this property was designated as building land and used for agricultural purposes .

In DATE the applicant requested the parcelling of this property and the issuing of a permit for a building site ( GPE ) with GPE ( Magistrat ) as she wished subsequently to sell the land . As GPE did not deal with this request , the applicant filed , on DATE , a request for the transfer of jurisdiction ( PERSON ) with ORG ( PERSON ) .

On DATE ORG , referring to a building prohibition ( Bausperre ) concerning the applicant ’s premises issued under GPE ( GPE ) on DATE , dismissed the applicant ’s request . On CARDINAL DATE ORG ( Landesregierung ) dismissed the applicant ’s appeal . On DATE the applicant filed a complaint with ORG ) arguing in essence that the building prohibition was unlawful . On DATE the ORG declined to deal with the applicant ’s complaint . By decisions of ORG the building prohibition was twice extended until DATE .

Meanwhile , in DATE , ORG decided a new building scheme ( GPE ) under the Upper Austria Planning Act ( Raumordnungsgesetz ) which designated a strip of land of QUANTITY of the applicant ’s property as public traffic area ( öffentliche ORG ) . In DATE this scheme became final . In the respective proceedings the applicant had been consulted and had filed objections . However , she did not challenge the building scheme and its underlying legislation by lodging an individual request for review ( PERSON ) before ORG .

The city intended to use the concerned strip of land for the urban construction project ORG PERSON , a planned new city area in line with the principles of eco - solar and modern construction . Part of the applicant ’s land should serve , more specifically , the future extension of the street running along the applicant ’s property which was to be developed into a broad avenue constituting the middle rib of this new city area .

The applicant offered GPE to buy the concerned land for CARDINAL NORP Schillings ( ORG ) ( PERCENT ( ORG ) ) per square meter . She argued that this price corresponded to the amount offered by building companies for the parcelled land before the issuing of the building prohibition . In DATE GPE declined this offer . It proposed to acquire the part of the applicant ’s property designated as public traffic area at the price of CARDINAL ORG ( CARDINAL ORG ) per square meter and to pay later , namely at the time of the actual extension of the street , the differences between this amount and the then prevailing market value for public traffic areas . Furthermore , should the applicant build on her remaining property , she was to transfer another part of her property to GPE without compensation .

The applicant declined this offer and , on DATE , instituted civil proceedings against GPE . She submitted that the building prohibition concerning her property had been unlawful and had hindered her to sell it . Furthermore , by the designation of parts of her property as public traffic area , GPE had expropriated the area de facto and hindered her to dispose of these and the adjacent plots . As GPE had not realised the town planning project and declined to buy the concerned premises for an adequate price , the applicant claimed CARDINAL ORG ( PERCENT ORG ) in damages ( NORP ) for foregone interests . She further based her claim on the title of unlawful enrichment ( GPE ) .

On DATE ORG ( PERSON ) dismissed the applicant ’s claim . It found that the building prohibition had been lawful . Furthermore , GPE was under no obligation to buy the concerned premises . Thus , the applicant attempted to obtain compensation for the re - designation of her land although this was not possible according to constant NORP case - law .

The applicant appealed and argued that GPE acted unfairly because , on the one hand , it had put itself in the position of the exclusive potential purchaser and , on the other hand , had not offered any adequate conditions for a sale . On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal .

The applicant filed an extraordinary appeal with ORG . She submitted inter alia that , in violation of her right to peaceful enjoyment of her property , she had been restricted in the use of it without any compensation . She referred to the case PERSON and PERSON GPE ( judgment of DATE , Series A no . CARDINAL ) . Furthermore , the restriction had lasted for a long time , it was not foreseeable and it had not been checked when and whether the town planning project would finally be realised . She requested ORG to institute proceedings with ORG to review the constitutionality of the relevant provisions of GPE as they did not provide any compensation for loss of value suffered by the issuing of a building prohibition or re - designation of land .

On DATE ORG rejected the applicant ’s extraordinary appeal . It found that the building prohibition and the subsequent modification of the building scheme were lawful . Furthermore , it was a normal feature that after re - designation the value of the concerned property changed and there was no reason for special treatment in the present case . GPE was under no obligation to enter into a contract with the applicant . If parts of the applicant ’s property should be used for the construction of the planned road and the parties could not reach an agreement on the sale of these premises , the rules concerning expropriation were to be applied in which proceedings the amount of compensation was to be determined . Finally , ORG refused to institute proceedings reviewing the constitutionality of LAW as it found this to be irrelevant for the proceedings at issue . This decision was served on the applicant ’s counsel on DATE .

In a meeting with the Mayor of PERSON and the municipal councillor ( NORP ) competent for town planning matters in DATE , the applicant was informed that the planned course of the avenue in question might be changed . Until now no further steps have been taken by the competent authorities in this matter . The concerned land is still used for agricultural purposes .

In GPE land planning is governed by ORG ( Raumordnungsgesetz ) . Building schemes ( GPE ) and any amendments thereto are regarded as decrees ( Verordnung ) . Decrees are addressed to the general public . The lawfulness of decrees can only be reviewed by ORG ) . A person , who is affected by a decree , may seize ORG with an individual request for review of the lawfulness of a decree , if the decree has direct consequences for the situation of the person without it being necessary that an administrative decision is taken ( PERSON , Article CARDINAL of LAW ) . There is no specific period of time within which such request may be filed .

Section CARDINAL of the Upper Austria Land Planning Act provides that the GPE has to compensate a land owner for the loss of value caused by the issuing or changing of a building scheme , if his or her parcel is not designated as building land although it is suited for building purposes and is surrounded by building land . Furthermore , it has to compensate a land owner the disbursements he / she made to prepare his / her land for building if , because of subsequent changes of the respective building scheme , building later becomes impossible .

Section CARDINAL of GPE ( GPE ) , in the version applicable to the present case , stipulated that ORG can apply by decree a building prohibition ( Bausperre ) on an area if the respective area zoning plan or the building scheme is to be amended and the issuing of a building prohibition is in the interests of an appropriate and controlled building development . The building prohibition was valid until the establishment of the area zoning plan or building scheme , for a maximum period of DATE . It could , in principle , be extended twice for DATE by decree of ORG . LAW did not provide any compensation to the land owner concerned in case a building prohibition was issued .

Proceedings concerning the expropriation of land and subsequent compensation are regulated in CARDINAL of GPE . These proceedings are instituted upon request of the concerned authority .


The applicant is a NORP citizen , born in DATE and resident in PERSON . He is represented before the ORG by PERSON of ORG , in GPE .

A.

The applicant had an extremely difficult childhood . His father disappeared DATE after his birth , while his stepfather was violent to the applicant ’s mother and the children of the family . He and his brother were sent by the local authority to a boarding school to remove them from this disturbed environment .

The applicant was involved in offences of dishonesty . Following convictions for burglary and obtaining property by deception , he was placed under a supervision order in DATE . At this time , he came under the influence of PERSON , a disturbed and violent boy of a similar age . It seems that PERSON decided that they should rob his grandmother . PERSON attempted to suffocate his grandmother with a cushion and when this was unsuccessful ordered the applicant to fetch an axe . The applicant admitted that he brought the axe but denied that he participated in the actual violence .

The applicant was arrested for murder on DATE . He was unable to communicate satisfactorily with his lawyers . He accepted their advice and pleaded guilty to manslaughter ( diminished responsibility ) on DATE . His case was adjourned for reports relevant to sentencing . On DATE he was sentenced to detention for life under LAW ( CARDINAL ) of ORG .

Meanwhile , PERSON was diagnosed as mentally ill . A restriction order was made under sections CARDINAL of ORG . He was sent to ORG .

The applicant was detained in St Charles’ Youth Treatment Centre until DATE . He was then released on licence and has been living in the community ever since .

Since his release , the applicant has not been arrested or come adversely to the attention of the authorities , save for an incident in DATE when he broke down the door to his rented flat when he had locked himself out . He has been employed , generally in temporary positions in the catering trade , and has been prevented from working for some periods due to problems with his eyes necessitating surgery .

According to the conditions of his licence , the applicant has been required to see his probation officer once DATE , and is subject to the approval of that officer as regards where he lives , the employment which he takes up and whether he can leave the country . His request for this supervision to be terminated by ORG was refused on DATE , despite his probation officer ’s opinion that the requirement is unnecessary and counter - rehabilitative .

In or about DATE , the applicant became aware that ORG issued new guidelines requiring more intensive supervision . He believes that this involves a requirement that his probation officer inform his employer , his benefit agency and the police about the applicant ’s status on licence . He believes that the probation officer is also supposed to liaise directly with his sister , as next - of - kin .

On DATE , the applicant ’s representative wrote to ORG , protesting the new guidelines ( a copy of which had not been provided though requested ) , in particular submitting that the requirement for the Probation Officer to liaise with his sister was an unwarranted intrusion in his private life .

On DATE , ORG replied that they were forwarding the applicant ’s letter to ORG as it raised a number of important issues . The applicant ’s probation officer informed him that no action would be taken in his case in relation to the new procedures until the authorities have come to a decision .

B. Relevant domestic law and practice

Detention for life

Section CARDINAL(CARDINAL)-(CARDINAL ) of the Children and Young Persons Act DATE provides that children DATE , where convicted on indictment of , inter alia , any offence punishable in the case of an adult with imprisonment for DATE or more , not being an offence the sentence for which is fixed by law , the court may sentence the offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult .

Release on licence and revocation of licences

Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty ’s pleasure have a " tariff " set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular , following the coming into force on DATE of LAW DATE ( the DATE Act ) .

Where the sentence is not fixed by law ( ie . a discretionary life sentence ) , the DATE LAW in section DATE that where a prisoner has served the tariff period and ORG directs his release , the Secretary of ORG has the duty to release the prisoner on licence . For a life prisoner , the licence is in existence for the rest of his or her life ( section CARDINAL(CARDINAL ) ) .

Pursuant to section CARDINAL of the DATE Act , the Secretary of ORG can authorise immediate recall if it appears to him that it is in the public interest to recall that person before such a recommendation can be obtained from ORG .

The index for determining whether re - detention is justified is that of dangerousness , meaning a consideration of whether the offender constitutes an unacceptable risk of physical danger to the life or limb of the public ( see R v. Secretary of ORG for ORG , ex . parte PERSON , unreported , transcript pp . DATE , and the PERSON v. the GPE judgment of DATE , Reports CARDINAL , at § CARDINAL ) .

On recall , an offender is entitled to a review before ORG in the form of an oral hearing at which the prisoners are entitled to legal representation and there is provision for the examination and cross - examination of witnesses . Prisoners will also normally receive full disclosure of all material relevant to the question of whether they should be released prior to the hearing ( see ORG DATE ) . ORG has the power to direct release .


Violation of Art. 6-1;No violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

On DATE a prosecutor at ORG instituted criminal proceedings against the applicant . He was suspected of being an accomplice to the offence of demanding and obtaining a ransom of MONEY for returning the stolen car of a certain PERSON

On DATE the applicant was charged on CARDINAL counts , including blackmail ( turto prievartavimas ) and inciting the victim ( poveikis nukentėjusiajam ) to make false statements .

The pre - trial investigation in the case was conducted by prosecutors at ORG . It was concluded on DATE . From that date until DATE the applicant and his counsel were given access to the case file .

After having access to the case file , the applicant and his counsel requested the prosecution to discontinue the case , arguing that the charges against the applicant were ill - founded and that the case file “ contained no evidence [ of his ] guilt ” .

On DATE a prosecutor of ORG dismissed the applicant 's requests . In his decision the prosecutor stated , inter alia :

“ After having access to the case file , [ the applicant ] ... submitted [ requests ] to discontinue the criminal case on the ground that he had not committed the offences alleged ... and that his guilt ... had not been proved [ kaltė ... neįrodyta ] . [ These ] allegations must be dismissed as ill - founded because it has been established [ kaltė ... įrodyta ] from the evidence collected in the course of the pre - trial investigation that the applicant is guilty of [ these ] crimes .

Although ORG has not admitted having committed the alleged offences , his guilt has been proved by the witnesses ' evidence , ... video and audio records ... and other material collected in the course of the pre - trial investigation . The fact that PERSON concealed an offence ... is proved by the evidence [ given by witnesses PERSON , GPE and GPE ] ... The fact that PERSON threatened [ the victim PERSON ] by force to obtain property ... is proved by the evidence [ given by ORG and the material evidence ] ... The fact that PERSON conspired with persons who had committed the theft [ of the car ] ... is proved by [ his own statements ] ... The fact that ORG ... intimidated the victim is fully proved by the evidence [ given by PERSON , ORG and material evidence ] ... [ The above evidence ] is assessed by the prosecution as an incitement to make [ PERSON ] give false statements ...

Against the above background , in accordance with LAW , it is decided

NORP to dismiss [ the applicant 's ] requests entirely , and

NORP to inform the persons concerned about the decision . ”

On DATE ORG at ORG confirmed the bill of indictment and sent the case to ORG .

On DATE the President of ORG transmitted the case to ORG .

On DATE a judge of ORG committed the applicant for trial .

On DATE the judge found the applicant guilty of blackmail and inciting the victim to make false statements . He was convicted as the principal offender on the blackmail charge . He was acquitted on CARDINAL other counts . The applicant was sentenced to DATE imprisonment . He was also fined CARDINAL litai and his property was confiscated .

The applicant appealed , relying on various errors of domestic substantive and procedural law . He pleaded , inter alia , that he had been presumed guilty and that he had been deprived of a fair trial by an independent and impartial court .

On DATE ORG held a full appeal hearing . It amended the judgment of CARDINAL DATE in so far as it concerned the applicant 's conviction for blackmail , ruling that the applicant was a secondary party , not the principal offender . The sentence remained unchanged .

The applicant lodged an appeal with ORG , pleading that both lower courts had erred in fact and law and that he had not committed the alleged offences .

On DATE the judge of ORG who had delivered the first - instance judgment wrote a letter to the President of ORG in which he contested the conclusions reached by ORG as to the level of the applicant 's participation in the blackmail offence . In that letter the judge maintained that the applicant ought to have been convicted as the principal offender . The judge requested the President to lodge a petition ( kasacinis teikimas ) to quash ORG judgment .

On DATE the President of ORG lodged a petition with ORG to quash ORG judgment . In the petition the President stated , inter alia :

“ The judgment of ORG should be quashed ... [ The appellate court ] ... wrongly interpreted and applied the law ... On the basis of the material ... it established that PERSON ... executed the will of the group of persons ... and was the principal offender on the blackmail charge ...

In accordance with LAW , I petition

to quash the judgment of ORG of DATE ... and to uphold the judgment of ORG of DATE . ”

On DATE the same President of ORG appointed a judge rapporteur in the case . On CARDINAL DATE the President also appointed a ORG of CARDINAL judges of ORG to examine the case .

A hearing was held on DATE during which ORG requested the ORG to uphold the petition on behalf of the prosecution , which had not lodged an appeal itself in the case . The applicant requested ORG to uphold his appeal and reject the petition .

On the above date ORG quashed the judgment of ORG and upheld the judgment of ORG , rejecting the applicant 's appeal and upholding the petition . ORG found that the applicant had been the principal offender on the blackmail charge .

Relevant provisions are as follows :

“ In administering justice in criminal matters judges are independent and beholden only to the law . Judges decide criminal cases in accordance with the law and their conscience in conditions which make it impossible for them to be affected by outside matters . Any interference with the judges ' or courts ' actions in administering justice is prohibited and gives rise to liability under the law . ”

No evidence shall have a prejudicial influence on a court ... ”

Under the terms of LAW judge in respect of whom there are lawful grounds to fear a lack of impartiality must withdraw . On the same ground the judge can be challenged by the defendant and other parties to the case .

Under LAW of LAW and LAW , ORG is composed of the President , Presidents of ORG and other judges .

Under sections CARDINAL and CARDINAL of LAW and Articles DATE , judges of ORG are professional and permanent judges appointed by ORG .

According to section DATE of LAW , presidents of divisions are officers having power over the “ organisational sphere ” of the courts ' work . Under the third paragraph of section CARDINAL , presidents of divisions may also sit as judges ; in such cases they perform the same judicial functions as ordinary judges .

LAW provides that the President of ORG ,

“ ( CARDINAL ) in examining cases , has the same rights and obligations as other judges . [ He ] may submit petitions to quash or amend a lower court 's judgment ... ;

( CARDINAL ) constitutes chambers of judges and appoints their presidents , ... distributes cases among judges ... [ and ] supervises their examination ;

( CARDINAL ) NORP submits proposals to the President of the Court on premiums and bonuses for judges and other officials ;

( CARDINAL ) heads the Registry ;

( CARDINAL ) organises the case - law research work ... ;

( CARDINAL ) confirms the statistical survey of activities ... ;

( CARDINAL ) executes other functions under the law and the organisational directives of the President of ORG . ”

LAW provides that the President of ORG is responsible for the organisation of appeal hearings .

The fourth paragraph of section CARDINAL of LAW effectively prohibits presidents of courts or presidents of divisions from exerting any influence over or otherwise breaching the independence of other judges in their administration of justice .

Under LAW of the ORG the President of ORG , the President of ORG , presidents of regional courts , and presidents of the criminal divisions of the above courts may submit a petition to quash or amend a particular lower court 's judgment . According to LAW the court hearing the petition shall follow the same procedure as on a normal appeal lodged by the parties to the proceedings .

LAW lays down the requirements for lodging an appeal or petition : it should refer to the specific court hearing the appeal , the case and decision at issue , the substance of the decision and the grounds for quashing the lower court 's judgment .

LAW provides :

“ A person shall be considered innocent until proved guilty in accordance with law by a final judgment of the court . ”

LAW of the ORG provides :

“ No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with law . ”

Article CARDINAL of the LAW provides that prosecutors conduct , inter alia , criminal prosecutions and supervise those responsible for the pre - trial investigation .

Under Articles CARDINAL and CARDINAL of the ORG the prosecutor 's role is to ensure that the criminal case is instituted lawfully and that the domestic law is complied with during the pre - trial investigation , to press charges at trial , to appeal against any procedural act and to supervise the execution of judgments .

In a decision of CARDINAL DATE ORG gave , inter alia , the following description of the general role of a prosecutor in the NORP criminal process :

“ The LAW treats prosecutors as part of the judiciary having specific functions . A prosecutor is an officer who supervises the pre - trial investigation ...

The prosecutor can take part in the criminal case right from the outset . ... In accordance with the procedure provided for by law , he commences the criminal prosecution and pursues it by investigating the crime . CARDINAL of his functions is to supervise the authorities conducting the pre - trial investigation . ... The prosecutor can himself conduct the investigation of any offence . ...

The prosecutor is therefore responsible for the pre - trial stage of the criminal proceedings . ...

The law does not provide the court ... [ but ] the prosecutor with the procedural means to supervise the pre - trial investigation . ”

Under Articles CARDINAL , CARDINAL to CARDINAL and CARDINAL of the ORG , an investigator , prosecutor and court are all entitled to institute or discontinue a criminal case and to collect evidence in the case ( Articles CARDINAL and CARDINAL ) . These functions are exercised according to the stage of the proceedings .

The pre - trial investigation can be conducted by prosecutors working under the authority of ORG , or investigators working for ORG ( Article CARDINAL ) .

Pursuant to ORG and CARDINAL of the ORG the prosecutors ensure that domestic law is complied with by the investigators at the stage of the pre - trial investigation . They are responsible for rectifying any breaches of the law . In doing so , the prosecutors “ function independently from other authorities and are beholden only to the law ” ( LAW and CARDINAL ) . Under LAW the prosecutors ' decisions are “ binding on all authorities and persons ” .

Where the pre - trial investigation is conducted by the prosecution , an accused may , while having access to the case file ( Articles CARDINAL - CARDINAL of the ORG ) , request the prosecutor to “ supplement the investigation ” . The prosecutor must give a reasoned decision if he dismisses this request ( LAW ) . After such a decision , the bill of indictment may be prepared LAW .

A complaint by the accused about an act of the prosecutor at the stage of the pre - trial investigation shall be submitted to and determined by a higher prosecutor ( Articles CARDINAL - CARDINAL of the ORG ) .

After the bill of indictment is confirmed , the case must be transmitted to a court ( LAW . From that stage on “ any requests or complaints about the case shall be submitted directly to the court ” ( LAW ) .


Violation of Art. 2;Violation of Art. 3;Violation of Art. 13+2

The applicant was born in DATE . Before DATE she was a resident of PERSON , GPE , which she left for PERSON . She left GPE on an unspecified date and currently lives in GPE .

The submissions of the parties with regard to the facts concerning the circumstances of the applicant 's relatives ' deaths and the ensuing investigation are set out in Part A below . A description of the documents submitted to the ORG is contained in Part B.

The applicant submitted that prior to DATE she and her family had lived in the Novaya Katayama settlement in LOC of ORG .

NORP In DATE hostilities resumed in GPE between the NORP forces and the NORP fighters . PERSON and its suburbs came under heavy bombardment . The LOC , situated in the northern and central parts of the town , was bombarded from the air and by artillery . The applicant submits that most residents of the district left for safer areas . Following heavy fighting , from DATE the NORP forces started to regain control over the city from the north , and by DATE the central parts of the city were finally taken .

In DATE the applicant and her CARDINAL children were staying in ORG , while her brother PERSON ( usually referred to as ORG ) PERSON ( aged CARDINAL ) and her mother PERSON ( aged DATE ) remained in PERSON .

On DATE the applicant went to PERSON to find out about her relatives . She was not allowed to pass through the military checkpoint at the entrance to the city and spent TIME in a neighbouring settlement . On TIME , on DATE , the applicant again arrived at the checkpoint .

There the applicant met a local resident , identified by her as A. , who told her that at the crossroads of FAC and the CARDINALth FAC there was the body of an old lady in a handcart . He told her that on DATE the old lady had been wounded by shrapnel and that CARDINAL men had tried to take her out of PERSON . They had walked up to the CARDINALth Lane , where there was a group of soldiers and CARDINAL armoured personnel carriers ( APCs ) , CARDINAL of which had been damaged . The soldiers had stopped them , beaten the men and led them away . They had shot the woman in the cart , and then A. had seen shots being fired , so he presumed that the men had also been shot . From his story the applicant deduced that the woman was her mother and that her brother , PERSON , could have been among the CARDINAL men .

At the roadblock on the border of LOC the applicant talked to the military and asked them to let her pass . She identified them as belonging to the FAC detachment of the CARDINALth army . CARDINAL of them whom she believed was in charge , named PERSON , refused to let her go further . When the applicant stated that she was looking for her mother , he replied that they had taken revenge for their dead comrades whose mothers had also wanted to see them alive . Later the applicant submitted that PERSON 's hands had been covered with a bandage and that another local resident , a woman named PERSON , had told her that she had heard him complaining that he had injured his hands “ beating those bastards ” .

A. helped the applicant to get through the military roadblock and accompanied her to the crossroads , where they found the cart containing the body of the applicant 's mother . She had a shrapnel wound in the abdomen and a gunshot wound in the head . The applicant could not stay very long in PERSON , so she took her mother 's body to A. 's house and left . She did not find any traces of her brother .

DATE the applicant returned with her family to PERSON in a hired minivan . They were not allowed to pass through the roadblock with the vehicle and walked to LOC . There they collected PERSON body in the cart and walked back out of PERSON . They then put the body into the minivan and took it to GPE , where they buried it . At that time the applicant did not apply to any authorities or a doctor , nor did she take any photographs of her mother 's body before the burial .

The applicant 's sisters went to the GPE and PERSON detention centres in search of their brother , PERSON .

On DATE the applicant again went to PERSON in search of her brother . She travelled together with relatives of other missing persons from the district , PERSON and his sister PERSON . At the ORG house at LOC they found the bodies of PERSON sister , PERSON , and her son , ORG , as well as the body of their neighbour , ORG . All had gunshot wounds and some had broken bones . PERSON and PERSON applied to ORG in relation to the killing of their relatives ( see ORG and GPE v. GPE , nos . CARDINAL and QUANTITY , DATE ) .

During her trip on DATE the applicant did not find her brother . The PERSON were also looking for PERSON other son , PERSON , and PERSON brother , PERSON .

On DATE PERSON and his sister , with the assistance of A. , discovered CARDINAL bodies in a garage QUANTITY away from the crossroads where the applicant 's mother had been found . They identified CARDINAL of the bodies as GPE and PERSON ; the third body belonged to ORG , the applicant 's brother . The bodies had numerous gunshot wounds . PERSON took photographs of the CARDINAL bodies in the garage and fetched a car to take them to ORG DATE .

The applicant was not present in ORG on DATE , but she referred to the statements of GPE and GPE in relation to the discovery of the bodies .

NORP The applicant also referred to the ORG report “ Civilian Killings in LOC of NORP ” , which included statements by CARDINAL other witnesses , identified as B. and C. , who had lived in LOC at the relevant time . They testified that on DATE at TIME a tall NORP soldier had walked into their house and told them that he had killed a wounded woman in a handcart , and that he would kill them as well . He had also told them that the CARDINAL men who had accompanied the woman had been transferred to a detachment of the police special forces ( PERSON ) . The soldier had then left , without causing any harm to B. and C.

The applicant appended to her complaint a sketch map of the district with indications of places where the bodies of her relatives had been discovered and colour photographs of her brother 's body taken by PERSON at the time of the discovery of the CARDINAL bodies on DATE , and during the autopsy at ORG .

On DATE the body of the applicant 's brother was examined by an officer of ORG of the ORG . The examination took place in ORG in the presence of CARDINAL male relatives . The report listed numerous bullet wounds ( CARDINAL ) to the head , body and limbs . The right ear had been cut off .

On DATE PERSON was buried in Ingushetia .

The applicant submitted that at that time her relatives had requested the prosecutor 's office to conduct an investigation into the killing of her brother . At the same time they had informed the law - enforcement bodies of the killing of the applicant 's mother . The applicant also submitted that relatives of other persons killed in ORG in DATE had applied to the authorities with similar requests . The applicant referred to NGO reports and letters and media reports , which should have alerted the NORP authorities to act quickly and diligently in a case concerning a mass killing .

NORP In particular , the applicant referred to a ORG report of DATE entitled “ Civilian Killings in LOC of NORP ” , which accused the NORP forces of deliberately murdering CARDINAL civilians DATE and DATE . ORG had interviewed survivors , eyewitnesses and relatives of the dead . The report contained information about the killing of PERSON on DATE . It also listed PERSON as having “ disappeared ” after being detained by soldiers .

On CARDINAL DATE the GPE civil registration office issued death certificates for PERSON , born in DATE , and for PERSON , born in DATE . The deaths had occurred on DATE in ORG .

It appears that the applicant had very little contact with the law - enforcement authorities in relation to her relatives ' killing . She contested the effectiveness of the investigation with reference to the documents obtained by the relatives of other victims of the events in ORG and their representatives .

The applicant produced a copy of a letter of DATE from ORG in relation to the murders in LOC . The letter stated that on CARDINAL DATE criminal investigation no . DATE had been opened by ORG under Article CARDINAL , paragraph CARDINAL , of LAW ( murder of CARDINAL or more persons with aggravating circumstances ) . The investigation had been opened following the publication of an article entitled “ Freedom or Death ” in the ORG newspaper on DATE . The investigation had established that in DATE , after the entry of the NORP forces into the district , the bodies of CARDINAL local inhabitants had been discovered . The list of names contained , among others , “ PERSON , PERSON , PERSON and PERSON ” . Forensic examinations carried out on the bodies of PERSON , PERSON . PERSON and PERSON had established the causes of death . The letter stated that no witnesses had been identified to support the assumption that these people had been killed by servicemen . On DATE the criminal case had been adjourned , then reopened on DATE . It had again been adjourned on DATE owing to the failure to identify the culprits . Attempts to identify the culprits , possibly including soldiers of the federal forces , were to continue .

The applicant submitted that the prosecutor 's letter of DATE gave an incorrect list of names of those killed . She stated that her brother 's full name was PERSON , while he had usually been referred to as “ ORG ” . The applicant noted that her brother ( PERSON ) and her mother ( PERSON ) had been listed in the letter , whereas the names of PERSON and PERSON were not familiar to her , even though these were supposed to have been her relatives or neighbours . She concluded that the letter mistakenly referred to her brother CARDINAL or CARDINAL times , confusing his name and patronymic . She also stated that by DATE the number of confirmed victims of the killings should have been much higher than ten . The applicant considered these mistakes to be characteristic of the level of the investigation and its attitude to the victims .

She also referred to the information obtained by the ORG after communicating the complaints of PERSON and PERSON in the case of GPE and GPE ( cited above ) . According to the applicant , the information submitted by ORG in their memorandum about the progress of the investigation was inconsistent and proved that the investigation into the crimes allegedly committed by the NORP forces was ineffective .

On DATE the SRJI , on the applicant 's behalf , requested ORG to inform it about the progress of the investigation in case no . DATE and to forward it a copy of the decision granting the applicant victim status in the proceedings .

In DATE the ORG informed the PERSON that the applicant had to appear in person for questioning and that she should submit documents confirming her family ties with the deceased , PERSON and PERSON . The prosecutor refused to divulge information about the investigation to the PERSON , referring to LAW .

On DATE the ORG informed the ORG Office of the applicant 's address in GPE . It asked the prosecutors to forward a request to their NORP counterparts so that the applicant could be questioned at her new place of residence and granted victim status in the proceedings . This letter was sent again on DATE , because no reply had come from ORG .

On DATE the investigation questioned PERSON , the applicant 's sister . On DATE she was granted victim status .

The applicant submitted that neither she nor her relatives had been properly informed about the progress of the investigation or about its adjournment and reopening .

The applicant referred to ORG documents deploring the lack of progress of investigations into crimes allegedly committed by NORP forces against civilians in GPE .

Referring to information from ORG , the Government submitted that the investigation in criminal case no . DATE had established that in DATE and DATE a detachment of the federal forces had conducted a counterterrorist operation in LOC of PERSON . Within the same period several inhabitants of the district had been killed by unknown persons using firearms . The Government informed the ORG that on DATE the applicant had been questioned as a witness and had given statements about the discovery of her mother 's and brother 's bodies . Later the applicant had avoided any contact with the law - enforcement bodies . On DATE the applicant had been granted victim status in the proceedings , but she had not been notified of this . On DATE ORG had sent a request to its counterpart in GPE to find the applicant . In DATE the NORP authorities had responded that they were working to locate the applicant 's whereabouts .

The Government further informed the ORG that that at some stage the applicant 's sisters PERSON and NORP had been questioned as witnesses and granted victim status in the proceedings . PERSON had refused to allow the bodies of her mother and brother to be exhumed for forensic examination .

After the case had been declared admissible , following a request by ORG , the Government submitted certain documents from the criminal investigation file in case no . DATE , mostly decisions by the prosecutors to adjourn and reopen the proceedings . They are summarised below in Part B. It follows from their submissions that the investigation had been adjourned and reopened , and was still ongoing . It had failed to locate and question the applicant or to identify the culprits .

In the context of the proceedings in ORG and GPE ( cited above , § § DATE ) , the ORG submitted a copy of the investigation file in criminal case no . DATE , opened on DATE by ORG into the “ mass murder by the ' CARDINALth brigade ' of civilians in the GPE Katayama settlement in Grozny on DATE ” . The investigation was opened under LAW , ( d ) , ( e ) and ( j ) of LAW following the publication of an article entitled “ Freedom or Death ” in the ORG newspaper on DATE .

Some of the documents related to the discovery on DATE of CARDINAL bodies in a garage near FAC . CARDINAL body was identified as PERSON , the applicant 's brother . Below is a brief summary of the documents from that file which are relevant to the present case . In addition , in DATE the ORG submitted CARDINAL pages of documents from the file , mainly prosecutors ' orders relating to the adjournment and reopening of the proceedings and notifications to the victims issued after DATE .

At some time in DATE the applicant and her sister NORP produced statements , addressed to ORG , about the discovery of the bodies of PERSON and PERSON .

The applicant stated that on DATE she had travelled to PERSON to find out about her mother and brother . There she had met a man from the neighbourhood named PERSON , who told her that the body of an old woman was lying in a cart at a crossroads nearby . He told her that she had been killed by soldiers from the CARDINALth infantry brigade from ORG , and referred to CARDINAL soldiers who had told him the same thing – one named PERSON , the other PERSON . Together with PERSON the applicant went to the place indicated by him and found her mother 's body in a cart . They took it to PERSON 's home and the applicant returned to PERSON . PERSON had also told her that CARDINAL men who had accompanied PERSON had been taken away by the soldiers and probably shot . He identified them as PERSON and his QUANTITY neighbours , PERSON and PERSON . On DATE , DATE , the applicant returned to ORG with her sister to collect their mother 's body . When returning to ORG , they took along a wounded woman , PERSON ( see PERSON v. GPE , no . CARDINAL ) , who had been shot by soldiers on DATE . They took her to ORG in GPE . The applicant further recalled that , after the burial of her mother in GPE , she had returned to ORG on DATE together with PERSON and ORG . Together with PERSON they searched the area surrounding the place where he had last seen the soldiers and the CARDINAL missing men , but found nothing . On DATE the PERSON again went to PERSON and found the CARDINAL bodies QUANTITY from the place where they had searched on DATE . They took pictures of the bodies and brought them to ORG . Her brother was buried in GPE on DATE .

The applicant 's sister NORP confirmed her statements . She added that on DATE they had hired a minivan in PERSON to go to PERSON , but were not allowed to enter the city with the vehicle . They had had to walk to the LOC district and back with the cart . She also stated that on DATE ORG ( Emercom ) of ORG had given them a lorry to travel to ORG , but the vehicle had again not been allowed to enter the city . She stated that both times on the road they had on numerous occasions been stopped and checked by the military , who had treated them rudely . After DATE the family had searched for ORG in detention centres .

In their testimonies dated CARDINAL DATE PERSON and his sister PERSON gave details concerning the discovery of their relatives ' bodies . Both stated that on DATE they had travelled to PERSON with the applicant and met PERSON , who had told them that their relatives had been taken away by federal soldiers . They also testified about their return to PERSON on DATE , when they had followed PERSON 's directions and found CARDINAL bodies , all frozen to the ground and with severe wounds to the head . PERSON had taken photographs of the bodies at the scene and fetched a car . On DATE they had delivered the bodies to ORG , where they were buried the following day , on DATE .

PERSON daughter , PERSON , accompanied her father and aunt on their trip to PERSON on DATE . In her statement of CARDINAL DATE she confirmed their accounts regarding the discovery of the bodies of PERSON , ORG and ORG .

An examination of the bodies of PERSON , ORG and ORG was conducted by an investigator from ORG in the municipal morgue on DATE . The bodies were frozen . In respect of ORG the expert noted numerous ( CARDINAL ) gunshot wounds to the head , body and limbs . The right ear had been cut off . The report stated that the relatives had refused to submit the body for a complete forensic examination . CARDINAL bullet extracted from the body was handed to the relatives .

DATE . On DATE the headquarters of ORG in LOC ( UGA ) of ORG ( based in GPE ) replied to the prosecutor 's request and submitted a list of the military units , identified by CARDINAL - digit numbers only , which had been deployed in ORG DATE and DATE .

On DATE an investigator from ORG sent a request to the military prosecutor of military unit no . CARDINAL ( GPE ) , asking him to identify the exact locations of the military units at the relevant time , to identify the commanding officers and to retrieve notes referring to operations in LOC . The file seen by the ORG contains no reply to that request .

At different stages of the proceedings in criminal case no . DATE several orders were produced by ORG listing the steps to be taken by the investigators , such as identifying and questioning all the victims and witnesses , and carrying out forensic and ballistics reports . The order of DATE listed QUANTITY persons whose bodies had been discovered in Novaya Katayama , including the applicant 's CARDINAL relatives . On DATE the same prosecutor 's office ordered the investigators to establish possible places where other civilians were buried , to identify further witnesses and victims and to identify the military units that could have been responsible for the crimes .

In DATE the Government submitted additional documents relating to the progress of the proceedings after DATE . Some of the orders criticised the manner in which the investigation had been conducted . DATE the prosecutors on several occasions issued a list of tasks to be carried out by the investigation team , including identifying the military units deployed in the LOC district of PERSON on the relevant dates , identifying the burial places of civilians in the Novaya Katayama settlement , carrying out exhumation orders , identifying witnesses and the victims of the crimes , and obtaining the findings of the expert reports that had been ordered . It is unclear if any of these steps were taken .

The investigation file was transferred CARDINAL times between ORG and ORG . DATE and DATE the investigation was adjourned and reopened CARDINAL times . The victims were informed of the decisions to adjourn and to reopen the investigation . From DATE this information was also forwarded to the applicant 's CARDINAL sisters .

In DATE and DATE PERSON , whose brother and nephew were killed together with the applicant 's brother , applied to the domestic courts . First , he obtained a decision certifying the death of his relatives for administrative purposes ; then he obtained civil compensation for their deaths . Below are the relevant details of these proceedings , as submitted by the parties in GPE and ORG ( cited above ) .

On DATE PERSON submitted an application to ORG in ORG , seeking to have certified the deaths of his brother PERSON , his sister PERSON and his CARDINAL nephews , ORG and ORG . PERSON submitted that his relatives had remained in PERSON during DATE , while he and the rest of the family had gone to PERSON to escape the hostilities . On DATE the soldiers of the “ CARDINALth battalion ” of the federal army entered LOC and “ committed outrages ” . On DATE they entered his sister 's household and killed his relatives in a brutal fashion , causing numerous firearm and stab wounds . Mr PERSON learnt the details of the killings when he attended the funeral of PERSON . His relatives were buried in ORG . A criminal investigation had been opened and was ongoing . Notification of the deaths was required in order to obtain death certificates from the civil registration office .

On DATE ORG in ORG certified the deaths of PERSON , PERSON , ORG and ORG , which had occurred in GPE , GPE , on DATE . The court based its decision on statements by the applicant and CARDINAL witnesses . The court noted in the decision that a criminal case had been opened and that an investigation was in progress ( there is no evidence that a criminal case had been opened at that time ) .

At DATE PERSON applied to a district court in GPE seeking compensation for pecuniary and non - pecuniary damage from ORG . He stated that his CARDINAL relatives had been killed in ORG in DATE by the military . He had found their bodies and had transported them with great difficulty to ORG , where they had been buried . A criminal investigation was opened , but had failed to establish the servicemen responsible for the killings . A witness , PERSON , testified to the court that he lived in LOC , not far from the FAC ' home . In DATE , DATE after the federal troops had established firm control over the district , he had seen the servicemen leading PERSON and CARDINAL of his nephews towards the garages . They were walking in front of an ORG ; armed soldiers were sitting on its hull . Soon afterwards he heard automatic rifle shots from the garages . When he attempted to go there , soldiers threatened him . He also submitted that he had been threatened by someone from the prosecutor 's office , who had told him to “ keep his mouth shut ” . Other witnesses testified about the circumstances in which the bodies had been discovered in PERSON , transported to Ingushetia and buried , and about the state of the bodies prior to burial .

On DATE ORG in ORG granted the claim in part and awarded Mr ORG compensation for pecuniary and non - pecuniary damage in the amount of MONEY .

The court noted that it was common knowledge that LOC had been under the firm control of the NORP federal forces by the material time , and that this did not need to be proved . At that time only federal soldiers were able to travel about the town in an ORG and to conduct identity checks . That PERSON and ORG had been killed during an identity check was corroborated by the fact that their bodies were found in the courtyard of their house with identity documents in their hands . The court further noted that the exact military unit responsible for the killings had not been established by the investigation , which at that time was adjourned . However , all military units were ORG bodies and therefore compensation for pecuniary damage should be paid by the ORG .

NORP The decision was upheld at final instance by ORG on DATE and executed in DATE .

In the context of the proceedings in the ORG and GPE case ( cited above ) the applicants submitted a statement by PERSON , registered medical practitioner , Professor of ORG at ORG and Consultant Pathologist to ORG . The statement was prepared on the basis of the witness statements and of colour photographs taken by PERSON at the time when the bodies of PERSON , ORG and ORG had been found .

The expert concluded : “ ... the photographs show injuries in keeping with bullets fired from a high velocity rifle . ... High velocity rifles can cause significantly destructive injuries . Those unused to looking at injuries caused by these weapons may mistake the cause of injuries produced by these weapons . ” He further listed a number of procedural steps normally taken in the examination of the body of a person who has died in suspicious circumstances . In the expert 's opinion , these should include an X - ray of the body to identify and recover the projectiles and detailed examination and photographing of the external injuries , “ as the pattern of injuries may indicate whether the victims were shot at close range or they had been tortured ” ( see ORG and GPE , cited above , § § DATE ) .

Until DATE criminal - law matters were governed by LAW Soviet Federative Socialist Republic . From DATE the old Code was replaced by LAW ( CCP ) .

Article CARDINAL of the new ORG establishes the rule of impermissibility of disclosing data from the preliminary investigation . Under paragraph CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . Divulging information about the private life of participants in criminal proceedings without their permission is prohibited .


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

PERSON and PERSON , who are husband and wife , are NORP citizens and live in Gryta in the municipality of Västerås .

Since DATE the applicants have owned a property in ORG , adjacent to land on which a company - PERSON ( ORG ) - takes delivery of and treats household and industrial waste , amongst other things . ORG has been authorised to engage in this activity on the land in question since DATE , when ORG ( koncessionsnämnden för miljöskydd - " ORG " ) first issued it with a permit to this effect under the provisions of the DATE LAW ( miljöskyddslagen GPE CARDINAL Act " ) .

Prior to this , it had been discovered in DATE that refuse containing cyanide had been left on the dump and analyses of drinking - water emanating from a nearby well had shown excessive levels of cyanide in the water . ORG ( hälsovårdsnämnden , later named miljö - och hälsoskyddsnämnden ) of Västerås had prohibited the use of the water and had provisionally supplied the property owner dependent on the well with municipal drinking - water .

Further analyses effected in DATE showed excessive levels of cyanide in CARDINAL other wells near the dump , CARDINAL of which was on the applicants’ property . As a result , the use of the water from these wells too was prohibited and the landowners concerned , including the applicants , were temporarily provided with municipal drinking - water .

However , in DATE ORG ( livsmedelsverket ) recommended that the maximum permitted level of cyanide be raised from CARDINAL mg to QUANTITY . As a result , as of DATE , the municipality stopped supplying the above - mentioned landowners with water .

In DATE ORG asked ORG to renew its permit and to allow it to expand its activities on the dump . The applicants together with other landowners demanded that the request should not be granted without an obligation being imposed on ORG , by way of precautionary measure under LAW ( see paragraph CARDINAL below ) , to supply drinking - water free of charge to the owners concerned , as the proposed activity entailed and would continue to entail a risk of polluting their water .

By decision of CARDINAL DATE , ORG granted ORG ’s request and dismissed the ORG and the other ORG claim , on the ground that there was no likely water connection between the dump and the wells . It further stated that , notwithstanding a possible risk of pollution , it would be unreasonable to make the authorisation in question conditional upon such a general measure as that suggested by the claimants .

On the other hand , the ORG attached a number of conditions to the granting of the permit , including the requirement that the water in the wells be carefully analysed at regular intervals and that the owners be informed of the results . Should the analyses give reason to suspect that the dump was causing pollution of the water , ORG would be under an obligation to take immediately any such action to supply the owners with water as deemed appropriate by ORG ( länsstyrelsen ) .

The applicants appealed to the Government , challenging the conditions set for the permit . The Government , as the final instance of appeal ( see paragraph CARDINAL below ) , upheld these and dismissed the appeal on CARDINAL DATE .

According to section CARDINAL of the DATE Act , any use of land that may cause , inter alia , water pollution is considered an environmentally hazardous activity for the purposes of the LAW .

Section CARDINAL provides :

" A person who engages in or intends to engage in an environmentally hazardous activity shall take such protective action , comply with such restrictions on the activity and take such other precautionary measures as may reasonably be required in order to prevent or remedy its detrimental effects . The duty to remedy detrimental effects continues to apply after the activity has ceased .

In assessing the extent of obligations imposed under the first paragraph , regard should be had to what is technically feasible for the activity in question as well as to the public and private interests involved .

In striking a balance between the various interests , particular weight should be attached , on the one hand , to the nature of the area that may be subjected to disturbance and to the impact of the disturbance and , on the other hand , to the usefulness of the activity , the costs of protective action and other financial implications of the precautionary measures in issue . "

A decision by ORG authorising an environmentally hazardous activity must specify what activity is being permitted and on what conditions ( section CARDINAL ) . It may be appealed against to the Government by any person concerned ( section CARDINAL ) . At the time of the Government ’s dismissal of the ORG appeal ( see paragraph CARDINAL above ) , its decisions were not subject to judicial review ( for further details on this point , see , in particular , the GPE and PERSON v. GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , para . CARDINAL ) . Since the entry into force , on DATE , of the Act on ORG of certain ORG , the lawfulness of a number of decisions by the ORG may be challenged before ORG . However , it was not possible for the applicants to avail themselves of this remedy in respect of the Government ’s decision as the LAW did not have retroactive effect .

ORG is composed of a chairman and CARDINAL other members , all of whom are appointed by the Government . The chairman is required to be well - versed in legal matters and experienced in performing judicial tasks ; in addition , CARDINAL of the CARDINAL members must have expertise and experience in technological matters , the second must have experience in activities falling within the competence of ORG ( naturvårdverket ) and the third in industrial operations ( section CARDINAL of the DATE Act ) .

Pursuant to section DATE , a claim relating to an environmentally hazardous activity may be filed with ORG ( fastighetsdomstolen ) , a specially composed chamber of ORG ( tingsrätten ) . Such a claim may , for instance , seek to have the activity made conditional upon protective or precautionary measures being taken .

On the other hand , section CARDINAL provides that the holder of a permit granted under LAW may not be ordered to discontinue the activity in question or to take precautionary measures other than those , if any , specified in the permit . The exceptions to this rule , contained in sections DATE , DATE and DATE , are not relevant to the present case .

Under LAW of the DATE LAW ( miljöskadelagen CARDINAL:CARDINAL - " LAW " ) , a person who has suffered damage or injury as a result of pollution of groundwater or watercourses may lodge a claim for compensation with ORG . The claim may be brought against the person or persons who have caused the deleterious activity to be carried on ( section CARDINAL ) .

A condition for compensation is that there be a substantial probability of a causal link between the impugned activity and the damage or injury ( section CARDINAL ) . The fact that the activity has been authorised under LAW is not a bar to liability under LAW .

A decision by ORG on a compensation claim as mentioned above may be appealed against to ORG ( hovrätten ) and , with leave , to ORG ( ORG domstolen ) .


Violation of Art. 8;Costs and expenses partial award - domestic proceedings

The applicant is an NORP citizen born in DATE .

The applicant entered GPE with a tourist visa in DATE . On DATE he married PERSON , a NORP citizen .

On DATE the applicant was convicted by ORG ( GPE ) of the unlawful possession of weapons .

According to the charges subsequently raised against the applicant , he committed , on DATE in GPE , the offences of robbery and damage to property by attacking a man , together with another person , at TIME , by throwing him to the ground , kicking him in the face and taking MONEY from him .

ORG ( Bezirksgericht ) convicted the applicant of these offences on CARDINAL DATE , though the judgment was quashed upon appeal as the applicant had not been represented by a lawyer . Proceedings were resumed before ORG , which on DATE sentenced the applicant to CARDINAL months’ imprisonment , suspended on probation .

Both the public prosecutor ’s office and the applicant filed an appeal , whereupon on DATE ORG ) of the GPE of GPE sentenced the applicant to CARDINAL years’ unconditional imprisonment for robbery and damage to property . In its judgment the court considered that the applicant had been particularly ruthless and brutal , and that his culpability ( PERSON ) was severe .

NORP The applicant ’s further plea of nullity was dismissed on DATE by ORG ( Kassationsgericht ) of the GPE of GPE .

On DATE the applicant began his DATE prison sentence .

On DATE ORG ( PERSON für ORG the GPE of GPE refused to renew the applicant ’s residence permit ( GPE ) .

The applicant ’s appeal against this decision was dismissed by the government ( NORP ) of the GPE of GPE on DATE .

In a written statement of CARDINAL DATE , the applicant ’s wife complained of being expected to follow her husband to GPE . While admitting that she spoke NORP , she claimed that she would have no work in GPE and no money . She found it most shocking that a married couple was being separated .

The applicant ’s appeal against the decision of CARDINAL DATE was dismissed by ORG ( Verwaltungsgericht ) of the GPE of GPE on DATE . In its decision , the court relied for the non - renewal of the applicant ’s residence permit in particular on sections CARDINAL of ORG ( Bundesgesetz über PERSON ) and on LAW of the ordinance implementing LAW ( GPE ) . The court considered that the non - renewal was called for in the interests of public order and security . It might well separate the applicant from his wife , though they could live together in another country , or visit each other .

On DATE the applicant was given early release from prison .

The applicant ’s administrative - law appeal ( Verwaltungsgerichts- beschwerde ) against the decision of CARDINAL DATE was dismissed by ORG ( PERSON ) on DATE . The court recalled that according to section CARDINAL ) of ORG the criminal conviction of a foreigner served as a ground for expulsion . There was no breach of LAW as the authorities refused to renew the applicant ’s residence permit in view of the serious offence which he had committed . The measure was imposed in the interests of public order and security . The fact that he had behaved well in prison was irrelevant as this did not concern his conduct outside .

ORG noted that a large number of the applicant ’s relations lived in GPE , and that he had not demonstrated particularly close links with GPE . While it would not be easy for his wife to follow him to GPE , this was not completely impossible . Indeed , she spoke NORP and had been able to have some contact by telephone with her mother - in - law . The couple could also live in GPE , where the applicant had spent some time before coming to GPE .

By a decision of DATE ORG ( ORG für ORG ) issued an order prohibiting the applicant from entering GPE as of DATE for an unspecified period of time ( auf unbestimmte Dauer ) . By a decision of DATE the ORG ordered the applicant to leave GPE by DATE .

On an unspecified date in DATE the applicant left GPE and is currently living in GPE .

In DATE the applicant passed a training course to become a waiter . From DATE until DATE he worked as a painter for an organisation for refugees in GPE .

While the applicant was serving his prison sentence at the PERSON prison colony in LOC , the prison services issued an interim report on DATE on his conduct , according to which his work as a gardener and stable - hand had been satisfactory . The report also stated that he had good manners and a very agreeable personality ; that his room was always tidy ; that as a rule he returned punctually from his leave ; and that various urine tests for detecting drugs had all shown negative results .

According to a work report from the C. company , dated DATE , the applicant had been working satisfactorily with that company since CARDINAL DATE as an assistant gardener and electrician . A work report from the ORG company , dated DATE , stated that the applicant had worked well as an assistant gardener for that company for DATE between DATE .

According to a letter from ORG to the NORP embassy in GPE , dated DATE , the applicant had lawfully resided in GPE from DATE until DATE and since that date he had not renewed his residence permit ( permesso di soggiorno ) .

Section CARDINAL(CARDINAL ) of ORG ( Bundesgesetz über PERSON ) , of DATE , provides :

“ The foreign spouse of a NORP citizen is entitled to be granted a residence permit , or to have it prolonged . After a regular and uninterrupted residence of DATE the spouse shall be entitled to the right to domicile . The right expires if there is a ground for expulsion . ”

According to section CARDINAL(CARDINAL)(a ) of the LAW ,

“ the foreigner can be expelled from GPE or from a GPE if ...

( a ) he has been punished by a court for having committed a criminal offence or misdemeanour ... ” .

Section CARDINAL(CARDINAL ) of the LAW provides that “ expulsion shall only be ordered if it appears appropriate in view of the circumstances as a whole ” .

Article CARDINAL of the LAW implementing ORG ( GPE ) provides :

“ In order to establish the appropriateness ( section ORG ) of the Act ) , the following elements are important : the severity of the offence committed by the foreigner ; the duration of his stay in GPE ; and the damage which he and his family would suffer if he were to be expelled . If there appears to be legal justification according to section CARDINAL(CARDINAL)(a ) , even though it may be inappropriate under the circumstances , the foreigner shall be threatened with expulsion . The threat of expulsion must be issued as a written and justified decision and shall clearly state what is expected of the foreigner . ”