Violation of P1-1;Violation of Art. 6-1 (length of civil proceedings);Violation of Art. 13+6-1;No separate issue under Art. 6-1 (non-enforcement) or under 13+P1-1;Remainder inadmissible (impartiality);Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in DATE and lives in GPE , GPE .

On DATE an apartment building owned by the applicant 's father was nationalised by the NORP communist authorities .

On DATE the Palilula municipal authorities declared that CARDINAL specific flat in the apartment building was to remain the property of the applicant 's father .

Following his father 's death , the applicant inherited the legal title to this flat . He could not , however , effectively enjoy it because the flat was subjected to a special “ protected tenancy regime ” and , as such , physically occupied by other persons whose rent was controlled by the public authorities .

NORP In DATE a new LAW made it possible , under certain conditions , for the owners of such flats to regain effective possession ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE ORG of GPE ( GPE za komunalno - stambene poslove opštine PERSON ) accepted the applicant 's eviction request and ordered the same GPE to provide the “ protected tenant ” in question with adequate alternative accommodation by DATE , at the latest .

On DATE ORG of GPE adopted another decision to the same effect ( CARDINAL - CARDINAL/CARDINAL-II-CARDINAL ) . In so doing , it confirmed its ruling of DATE and explicitly ordered the protected tenant 's eviction by DATE .

On DATE ORG GPE ( GPE komunalne i stambene poslove grada PERSON ) rejected the appeal filed by the Municipal Attorney - ORG ( ORG pravobranilaštvo opštine PERSON ) and the decision of CARDINAL DATE thereby became final .

On DATE ORG GPE offered the original protected tenant 's legal heir , PERSON , specific alternative accommodation but then went on to note that a “ priority list ” would nevertheless have to be considered .

PERSON stated that she had continued living in the flat , following the former protected tenant 's death , together with her son , her daughter - in - law and their minor child . She added that the flat offered was QUANTITY smaller than the one she currently lived in , and stated that it was not located in the city centre .

On DATE ORG GPE reaffirmed its offer but Mr PERSON , PERSON son , stated that the flat in question was inadequate in terms of its overall size as well as the number of rooms available . He added , however , that he and his family would provide the municipality with their final answer within DATE .

In DATE the applicant filed a civil claim against GPE with ORG in GPE ( NORP opštinski sud u ORG ) . He sought compensation for the pecuniary damage sustained due to his continuing inability to use / lease the flat in question .

On DATE ORG in GPE ( “ the ORG ” ) ruled partly in favour of the applicant .

On DATE ORG in GPE ( ORG u ORG ) quashed this decision on appeal and ordered a retrial .

On DATE ORG ruled against the applicant .

On DATE this judgment was upheld by ORG in GPE ( “ the ORG ” ) .

On DATE the applicant filed an appeal on points of law ( revizija ) .

On DATE ORG ( PERSON ) quashed the judgments adopted at first and second instance and ordered a retrial before ORG . It held , inter alia , that GPE was , indeed , obliged to enforce the decision of CARDINAL DATE , ordering the protected tenant 's eviction , and , moreover , that the deadline for so doing had already expired . The court concluded that the applicant 's claim thus had to be reconsidered on its merits and then went on to state that there was no legal avenue at the applicant 's disposal which could have compelled the said municipality to honour “ its own final and enforceable decision ” of CARDINAL DATE .

The applicant received the decision of ORG on DATE .

On DATE the applicant filed a submission with ORG , attempting to reformulate his original claim . In particular , he requested that the protected tenant be evicted from his flat and provided with adequate alternative accommodation .

On DATE ORG rejected the applicant 's request ( nije dozvolio preinačenje tužbe ) .

The applicant subsequently appealed against this decision , but on DATE ORG declared his appeal inadmissible .

The proceedings before ORG therefore continued based on the applicant 's initial claim for damages .

On DATE ORG ruled in favour of the applicant . It ordered GPE to pay him MONEY ( “ ORG ” ) , together with statutory interest as of DATE , in respect of the pecuniary damage suffered , as well as ORG CARDINAL,CARDINAL in legal costs . The court explained that the damage awarded was equivalent to the difference between the market price of the applicant 's flat while “ burdened ” with a protected tenant and its estimated market value without this burden . It further referred to LAW and stated that the municipality was under a legal obligation to enforce the final eviction order at issue . The Municipality had had , over DATE , sufficient funds and available flats in order to provide the applicant 's protected tenant with adequate alternative accommodation ( see paragraphs CARDINAL and CARDINAL below ) . Finally , there was no other legal avenue at the applicant 's disposal by means of which he could have compelled the municipality to honour its own decision of CARDINAL DATE .

On DATE GPE filed an appeal with ORG .

On DATE ORG quashed the impugned judgment and ordered a retrial at first instance . In its reasoning , inter alia , it explained that the applicant 's rights were indeed breached but that he had not actually sold the flat in question which is why he was not entitled to the compensation awarded .

On DATE the applicant reformulated his claim and sought compensation for the market rent which he could otherwise have earned while leasing the flat out to third parties . The applicant also proposed that ORG appoint an expert whose task would be to carry out the necessary calculation .

On DATE ORG ruled partly in favour of the applicant . It ordered GPE to pay him ORG , together with statutory interest as of DATE , in respect of the pecuniary damage sought , as well as ORG CARDINAL in legal costs . In its reasoning , as regards the failure of the respondent to enforce its own eviction order of CARDINAL DATE , ORG reaffirmed its views expressed previously . There is , however , no evidence in the case file that this judgment has become final .

On DATE the applicant filed a criminal complaint with ORG in GPE ( GPE opštinskom javnom tužilaštvu ) . He alleged that from DATE members of ORG of ORG had mismanaged the available funding , earmarked for the “ resettlement of protected tenants ” , and misallocated the flats already available for this purpose .

On DATE ORG ( ORG unutrašnjih poslova ) informed ORG ( “ ORG ” ) that DATE a total of CARDINAL social flats had been “ given ” to persons in need by GPE .

On DATE ORG rejected the applicant 's criminal complaint . In so doing , inter alia , it explained that : i ) no crime had been committed ; ii ) CARDINAL social flats comparable to the applicant 's had been available but that they had been given to persons in greater need ; and iii ) in any event , GPE did not have the funding needed to secure adequate alternative accommodation for all protected tenants , irrespective of whether or not there was a formal eviction order already issued .

On DATE , within a subsequent judicial investigation ( istraga ) apparently concerning the same matter , GPE informed ORG that from DATE to DATE it had sold CARDINAL municipal flats for ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL .

Secondly , the funds thus obtained were used in accordance with LAW , and the Municipality did not adopt a special programme aimed at building new social housing ( see paragraph CARDINAL below ) .

Thirdly , there were CARDINAL “ protected tenants ” in respect of whom final municipal eviction orders had already been issued but were yet to be enforced .

Finally , during the period in question , there were no “ adequate ” flats needed for the resettlement of the “ protected tenants ” , as required by LAW , which is why the evictions ( “ resettlement ” ) could not have been carried out ( see paragraph CARDINAL below . )

Under LAW § § CARDINAL and CARDINAL funds obtained through the sale of ORG - owned flats ( “ sredstva od stanova prodatih putem otkupa ” ) shall , “ unless the [ Housing Act ] provides otherwise ” , be used “ solely ” for the purpose of providing various social housing loans . Exceptionally , municipalities , as but one emanation of the ORG , may also use “ a portion ” of these funds “ for their own development ” .

Article CARDINAL states , inter alia , that , by DATE , municipalities were obliged to ( “ opštin[e ] ... [ su bile ] ... GPE ] ” ) secure alternative accommodation ( “ obezbed[e ] stan za preseljenje ” ) to all those individuals with the status of a “ protected tenant ” ( “ nosioc[ima ] stanarskog prava na stanu u svojini građana ” ) , namely to individuals who had continued living in flats owned by other private persons whose property had been placed under this regime by the former communist authorities . In other words , the owners , or their legal heirs , could take possession of their flats and the tenants would be moved to other accommodation . For this to occur , however , the owner , or his or her legal heir , would have to have filed a request to this effect and proved that the flat at issue was acquired “ as habitable ” prior to CARDINAL DATE . Further , “ priority ” in securing alternative housing was to be granted to “ owners in need ” and the alternative accommodation to be given to the protected tenants had to be “ adequate ” . Finally , the municipalities had to treat this issue as a “ priority ” , both in terms of managing the flats already available and as regards channelling the public funds obtained through the sale of ORG - owned flats into additional housing projects .

The deadline referred to above ( DATE ) was initially DATE , but had subsequently been extended by the amendments to LAW adopted in DATE .

Articles CARDINAL - CARDINAL set out the details concerning the enforcement of final decisions adopted by the respondent ORG 's administrative bodies .

In addition , ORG has consistently held that , pursuant to LAW of the former LAW , as well as LAW of the current LAW , enforcement of eviction orders was to be carried out ex officio , in view of the compelling public interest in this respect , and even in the absence of a formal enforcement request filed by the claimant personally ( see , for example , PERSON , ORG ) .

The relevant provisions of this LAW read as follows :

“ The parties have the right to obtain a court decision in respect of their claims and proposals within a reasonable period of time .

It is incumbent upon the court to conduct the proceedings without undue delay and economically . ”

Article CARDINAL of LAW ( Ustav PERSON ) published in ORG no . CARDINAL provided as follows :

“ Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .

Such damages shall be covered by GPE or the public authority [ in question ] . ”

This LAW was repealed on DATE , which is when LAW ( published in ORG no . CARDINAL ) entered into force .

The substance of LAW of the “ new LAW corresponds , in its relevant part , to the above - cited text of LAW .

“ ORG shall set up a ORG [ “ PERSON odbor ” ] ( “ the Board ” ) .

ORG shall be composed of CARDINAL ORG judges elected for DATE by the plenary session of ORG . ”

“ In response to a complaint or ex officio , ORG is authorised to oversee judicial proceedings and look into the conduct of individual cases .

Following the conclusion of this process , the ORG may initiate , before ORG , proceedings for the removal of a judge based on his or her unconscientious or unprofessional conduct , or propose the imposition of other disciplinary measures . ”

The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

The applicant ’s wife died on DATE . They had CARDINAL children from the marriage , born in DATE , DATE and DATE . In DATE the applicant applied for widows’ benefits and was informed that he was not entitled to these benefits as he was a man . He again claimed widows’ benefits in DATE . His claim was rejected on CARDINAL DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not entitled to child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Preliminary objection dismissed (non-exhaustion of domestic remedies);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 applicants were both born in DATE and are currently serving prison sentences in FAC , GPE .

On DATE , at dawn , CARDINAL persons wearing blue and white balaclavas robbed a minibus on the line between GPE and PERSON . The aggressors were armed with CARDINAL PERSON and a knife . Having taken the passengers ' money and jewellery , they left the scene without causing casualties .

TIME after the event , the police searched houses near the scene of the crime , including that of PERSON ( “ the second applicant ” ) , where he was having lunch with his father , his brother , GPE , and his friend , PERSON ( “ the first applicant ” ) .

NORP The police officers conducted the said search in the absence of the applicants ' lawyer .

According to the police report of the search , the police found in the pocket of the first applicant 's jacket CARDINAL white T - shirts and a blue cloth , made into balaclavas . Moreover , near the house they found some grenades , but failed to find the stolen goods or the weapons that had been in the possession of the aggressors .

The applicants , ORG , and the father were escorted to the police station for questioning . The first applicant requested , but was refused , the presence of his lawyer ( ORG ) . He disputed having had in his possession a balaclava or other form of mask and accused the police of manipulating the evidence .

On DATE , the police officers in charge of the investigation proceeded to the identification of persons and items by the victims of the robbery , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ( “ ORG ” ) . The applicants ' lawyer was not present .

As to the identification of persons , the applicants and ORG , wearing blue and white home - made balaclavas , and CARDINAL other persons , wearing black balaclavas , were put in a row in the same room in order to be identified . Notwithstanding the fact that the police changed the position of the persons in the room , the victims consistently identified the persons wearing blue and white balaclavas as the aggressors , that is to say the applicants and B.L ..

As to the identification of objects , the victims were asked to identify the balaclavas used by the aggressors , choosing among CARDINAL black balaclavas , CARDINAL white balaclavas and a blue one . The victims identified the white and blue balaclavas as those worn by the aggressors .

At TIME on DATE the applicants and GPE were arrested on suspicion of armed robbery . They were questioned by the police in the absence of a lawyer , notwithstanding the fact that GPE was a minor at the time and that the applicants had explicitly requested a lawyer to be present . The first applicant accepted that he had in his possession a white T - shirt , transformed by PERSON , a police officer in charge of the investigations , into a home - made balaclava . The second applicant stated that the white T - shirt which had been found in the possession of the first applicant was not his .

On DATE the applicants and ORG were charged with CARDINAL count of armed robbery and CARDINAL count of illegal possession of arms . On DATE they were questioned by the prosecutor . The first applicant asked to be represented by PERSON The second applicant sought to be defended by counsel .

On DATE ORG ( ORG ) requested to inspect the criminal investigation file in respect of the second applicant . On DATE the ORG consented to the case being committed to trial .

On DATE , the prosecutor committed the applicants and GPE to trial on charges of armed robbery and illegal possession of weapons .

During the hearing of DATE before ORG , ( “ the ORG ” ) , the applicants contested the charges against them and requested the domestic court to declare null and void the identification carried out by the police of persons and objects , as it had been in breach of the relevant provisions of the ORG . Moreover , they accused the police officers in charge of the investigation of manipulating the evidence against them : the applicants therefore requested the court to summon the police officers as witnesses and to produce at the trial the items considered by the police to be balaclavas , but which were , in their view , simple T - shirts . The applicants requested the domestic court to exclude the illegal evidence against them . As to the charge of illegal possession of arms , the applicants maintained that the investigation had failed to find the weapons used by the offenders during the robbery and it had not been proved that the grenades found had been in their possession . Both applicants were represented by the same counsel , PERSON .

On DATE ORG dismissed the applicants ' request to summon the police officers as witnesses , without giving reasons . Notwithstanding the fact that the court noticed certain irregularities during the investigation stage ( such as the absence of a lawyer during the applicants ' questioning and during the identification of persons and objects ) , the court found the applicants guilty of armed robbery on the basis of the eyewitnesses ' identification of the applicants as the offenders . Moreover , the court found the applicants guilty of illegal possession of CARDINAL PERSON and ORG guilty of possession of a knife . No weapons having been found , the applicants ' conviction was based on eyewitness statements . The court sentenced the applicants to DATE imprisonment and GPE to DATE imprisonment . The applicants were ordered to serve their sentences in a high - security prison .

On CARDINAL DATE the applicants appealed to ORG , ( “ the Court of Appeal ” ) , on the grounds that ORG judgment was the result of unfair proceedings . They argued that the identification had been conducted in flagrant breach of ORG CARDINAL - CARDINAL of the ORG as they had worn the same balaclavas during the identification parade . Their lawyers ' request about the nullity of the acts concerning identification had been rejected by the trial court . They also stated that none of the material evidence ( balaclavas ) , as requested by themselves , had been produced at the trial proceedings . Moreover , the authorities had failed to find the money and the weapons that had been used in the robbery .

On DATE , ORG upheld ORG judgment .

On DATE the applicants appealed to ORG . They relied on the same grounds of appeal as before ORG . They also alleged that both of them had been represented by the same counsel before the lower courts , at a time when there were inconsistencies in their testimonies given during the criminal investigation .

On DATE ORG declared the appeal inadmissible as its grounds fell outside the scope of LAW ORG .

On an unspecified date the first applicant lodged a complaint with ORG about the unfairness of the proceedings . He relied on the same grounds as raised before ORG and ORG .

On DATE ORG , sitting as a bench of CARDINAL judges , declared the complaint inadmissible . It held that the applicant 's complaints did not raise any fair trial issues , but mainly concerned the assessment of evidence , which was the function of the lower courts .

The applicants alleged that they had been ill - treated by ORG and other police officers during police questioning . They alleged that they had been tied up with ropes , beaten and hosed with cold water during the interrogations .

At the hearings of DATE before ORG , the applicants alleged that they had been ill - treated by the police officers in charge of the investigation , in that the latter had attempted to force them to confess to the robbery and to reveal the location of the stolen goods and the arms used . B.L and the applicants gave the same description of the alleged ill - treatment .

On DATE ORG rejected the applicants ' requests on the ground that they had been submitted outside the DATE time - limit . No legal basis was mentioned in the judgment .

The NORP Code of Criminal Procedure ( “ CCP ” ) in its relevant parts reads as follows :

When the need arises to conduct the identification of a person , the proceeding authority invites the person who must do the identification to describe the person ( to be identified ) , relating all the signs he / she remembers and that person is asked whether he / she has been previously summoned to do the identification and about other circumstances , which may contribute to the accuracy of the identification .

Actions provided for by paragraph CARDINAL and statements made by the person who does the identification are entered in the records .

Non - compliance with the provisions of DATE and CARDINAL is a cause for the invalidity of the identification .

The proceeding authority , after taking away the person who will do the identification , ensures the presence of CARDINAL persons , looking as alike as possible , to the person to be identified . It invites the latter to choose his / her place in relation to others , taking care to be portrayed , as much as possible , in the same circumstances under which he / she would have been seen by the person called to do the identification . After the person who will do the identification appears , the court asks the latter whether he / she knows anyone among those presented for identification , and if yes , to point out the person he / she knows and to specify whether he / she is sure .

When there are reasons to believe that the person called to do the identification may be afraid or influenced by the presence of the person to be identified , the proceeding authority orders the act to be performed without the latter seeing the former .

The records must describe how the identification was performed . Failure to do so invalidates the identification . The proceeding authority may order , for records purposes , that the performance of the identification be photographed or filmed .

When the identification of material evidence or other items relevant to the criminal offence must be performed , the proceeding authority acts in compliance with the rules for identification of persons to the extent that they are applicable .

After finding , when possible , CARDINAL similar items to the one to be identified , the proceeding authority asks the person called to identify whether he / she recognises any of them and , if the answer is yes , invites him / her to state which of them he / she recognised and to specify whether he / she is sure .

When several persons are called to do the identification of the same person or item , the proceeding authority performs it CARDINAL by CARDINAL separately , prohibiting any communication between the one who has done the identification and those who will do it subsequently .

When a person must identify several persons or items , the proceeding authority orders the person or item to be identified to be placed among different persons or items .

The provisions of Articles CARDINAL , CARDINAL and CARDINAL of the ORG are applicable .

The defendant , when present , and the person in possession of the LOC subject to the search , is handed a copy of the search order , informing them of the right to request the presence of a person they rely on .

When the persons stipulated in paragraph CARDINAL are absent , a copy of the order is handed over to a relative , neighbour or to a colleague .

The proceeding authority may search the persons present when it judges that they may conceal material evidence or items relating to the criminal offence . It may order that the persons present may not leave prior to the conclusion of the search and may use force to retain those who leave .

The prosecutor questions the arrested or the detained person in the presence of the chosen or appointed lawyer . He shall notify the arrested or the detained person of the facts for which he is being prosecuted and of the reasons for the interrogation , making known the information available about the charge and , when the investigation would not be impaired , even the sources .

In taking a decision the court shall not make use of evidence other than that obtained or confirmed during the trial .

Articles CARDINAL–CARDINAL of the ORG govern the application for review of a final judgment . According to Article CARDINAL , the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article CARDINAL . The request is submitted to ORG which may decide to reject or accept it ( LAW .

In an effort to harmonise the legal practice , ORG examined the institution of judicial review in its judgment no . CARDINAL of DATE . The relevant parts of the judgment read :

“ ( ... ) It is acknowledged that the review of final judgments is an extraordinary remedy , the only one , that has been envisaged by the lawmaker in the ORG in order to put right any judicial mistakes ( in respect of final court judgments ) .

The trial that occurs , as a result of the review [ proceedings ] , is not limited to a mere review ( in the strictest sense of the word ) of the previous trial . In its conclusion , the court , having examined the facts , circumstances and evidence submitted by the parties , taken together and in concert with the evidence , circumstances and facts administered and examined during the previous trial , can reach a different outcome , going as far as delivering a judgment in total contradiction to the previous one . ( ... )

This is the reason why the lawmaker allowed for a review in strictly defined instances , which have been explicitly laid down in a special provision of the ORG , notably in LAW . According to this provision , the review can be sought by the parties only if there exists one of the requirements explicitly provided therein . ”

On DATE , at the CARDINALth meeting of ORG , ORG Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at domestic level following judgments of ORG :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe , Considering that the aim of ORG is to bring about a closer union between its members ;

Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms ( hereinafter " the Convention " ) ;

Noting that under LAW ( " the Convention " ) the Contracting Parties have accepted the obligation to abide by the final judgment of ORG ( " the ORG " ) in any case to which they are parties and that ORG shall supervise its execution ;

Bearing in mind that in certain circumstances the above - mentioned obligation may entail the adoption of measures , other than just satisfaction awarded by ORG in accordance with LAW and/or general measures , which ensure that the injured party is put , as far as possible , in the same situation as he or she enjoyed prior to the violation of the Convention ( restitutio in integrum ) ;

Noting that it is for the competent authorities of the respondent ORG to decide what measures are most appropriate to achieve restitutio in integrum , taking into account the means available under the national legal system ;

Bearing in mind , however , that the practice of ORG in supervising the execution of the ORG 's judgments shows that in exceptional circumstances the re - examination of a case or a reopening of proceedings has proved the most efficient , if not the only , means of achieving restitutio in integrum ;

ORG , in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve , as far as possible , restitutio in integrum ;

II . Encourages the Contracting Parties , in particular , to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re - examination of the case , including reopening of proceedings , in instances where the ORG has found a violation of the LAW , especially where :

( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue , which are not adequately remedied by the just satisfaction and can not be rectified except by re - examination or reopening , and

( ii ) the judgment of the ORG leads to the conclusion that

( a ) the impugned domestic decision is on the merits contrary to the LAW , or

( b ) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of . ”

The explanatory memorandum on Recommendation R ( DATE ) CARDINAL provides , in so far as relevant , that :

Paragraph CARDINAL sets out the basic principle behind the recommendation that all victims of violations of the ORG should be entitled , as far as possible , to an effective restitutio in integrum . The Contracting Parties should , accordingly , review their legal systems with a view to ensuring that the necessary possibilities exist .

Article CARDINAL of ORG of ORG on ORG ( adopted by ORG at its CARDINALrd session ( DATE ) , and reproduced in ORG of ORG , CARDINALth Session , Supplement No . CARDINAL ( A/CARDINAL/CARDINAL ) ) is worded as follows :

“ A ORG responsible for an internationally wrongful act is under an obligation to make restitution , that is , to re - establish the situation which existed before the wrongful act was committed , provided and to the extent that restitution :

( a ) is not materially impossible ;

( b ) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation . ”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was sent a further application form under the new system in place as from DATE . He duly completed and returned the application form on CARDINAL DATE . On DATE the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before DATE .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority)

André Potocki;Ganna Yudkivska;Mark Villiger

The applicant was born in DATE and lives in FAC .

On DATE the local prosecutors instituted criminal proceedings against him on suspicion of bribery .

On DATE the applicant was arrested under Article CARDINAL of the Code of Criminal Procedure .

On DATE the ORG ( “ the ORG ” ) remanded the applicant in custody on the ground that he might abscond , obstruct justice and continue criminal activities .

On DATE the same court extended the maximum period of the applicant ’s detention to DATE ( until DATE ) on similar grounds .

As it appears from the case file , on DATE , following the completion of the pre - trial investigation , the prosecutors sent the case to ORG ( “ the Court of Appeal ” ) to determine which court had jurisdiction . On DATE the latter court determined that the case should be examined by ORG and forwarded the case to that court for trial .

On an unspecified date the applicant ’s representative asked ORG to release the applicant from detention as the time - limit for his detention had expired on DATE .

On DATE , at the committal hearing , the court rejected the request stating that on CARDINAL DATE the case had been sent to ORG and , subsequently , to ORG for trial . It further held that there were no grounds for changing the applicant ’s preventive measure . It did not fix any time - limit for the applicant ’s subsequent detention .

On DATE the applicant and his representative requested the court to change his preventive measure from detention on remand to undertaking not to abscond . On DATE the court rejected the request due to the gravity of charges against the applicant and because he did not plead guilty and might obstruct justice at liberty . It did not fix any time - limit for the applicant ’s further detention .

According to the Government , on CARDINAL DATE ORG convicted the applicant and sentenced him to an unspecified term of imprisonment on probation . On DATE ORG upheld that judgment .

The relevant provisions of the domestic law pertinent to the issue of the applicant ’s pre - trial detention are summarized in the cases of GPE v. GPE , no . CARDINAL/CARDINAL , § § DATE , PERSON CARDINALII ( extracts ) , and PERSON v. GPE , no . CARDINAL , § DATE , DATE .


The applicants , PERSON , PERSON , PERSON and PERSON , are NORP nationals . They are represented before the ORG by PERSON PERSON and Mr PERSON , lawyers practising in GPE .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

Until DATE the applicants lived in Büyükköy and Şahverdi villages , in the district of GPE , in GPE , where they own property .

In DATE security forces forcibly evacuated Büyükköy and Şahverdi on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to NORP and PERSON where they currently live .

On an unspecified date , PERSON lodged a petition with ORG office in GPE complaining about the burning down of his house by security forces .

On DATE ORG decided not to conduct an investigation into ORG allegations as the perpetrators of the alleged acts could not be identified .

On DATE PERSON and PERSON filed petitions with the office of the GPE LOC requesting permission to return to their villages .

On DATE the NORP LOC Governor sent the following reply to PERSON :

“ ... On DATE ORG decided not to conduct investigation against the state officials as the perpetrators of the alleged acts could not be identified .

Furthermore , your petition will be considered under the ‘ Return to the Village and Rehabilitation Project’ ”

On CARDINAL and CARDINAL DATE the representatives of the applicants filed petitions , on behalf of the applicants , with the office of the GPE LOC Governor and the NORP Governor requesting permission to return to their villages and compensation for the damage they had suffered .

On DATE ORG of the Governor ’s office in GPE sent the following reply to the ORG representatives :

“ ... LOC is available for return and reside . Therefore , the residents can return and reside in GPE .

The Şahverdi village is being considered under the ‘ Return to the Village and Rehabilitation Project’ . Thus , the residents of Şahverdi village can reside in GPE , Arslandoğmuş , GPE , GPE , ORG , GPE , ORG , GPE , PERSON , Cevizlidere , ORG , GPE , PERSON , NORP and NORP villages .

Your petition containing requests of permission to return to village will be considered under the ‘ Return to Village and Rehabilitation Project’ . ”

On DATE the representative of the applicants lodged a petition with ORG office in GPE complaining about the dereliction of duty by the NORP Governor and the GPE and GPE District Governors(görevi ihmal ) .

On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG office at ORG .

On DATE ORG office at ORG decided not to start the proceedings into the allegation of dereliction of duty against the NORP Governor ( dilekçenin işleme konulmaması ) .

On DATE ORG decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and GPE ORG .

On DATE the representatives filed an objection with ORG against the decision of ORG .

On DATE ORG rejected the objection .

On DATE ORG decided not to conduct investigation into the applicants’ allegations against the Hozat and GPE ORG .

On DATE the representative of the applicants filed an objection with ORG against the decision of ORG .

On DATE ORG rejected the objection .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

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


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in GPE .

In DATE the applicant was a co - owner and the head of a private enterprise “ Ekolog ” ( hereafter – the “ Ekolog ” company ) .

DATE the “ Ekolog ” company was a party to several disputes before the commercial courts . The disputes concerned office premises acquired by the “ Ekolog ” company from a municipal enterprise . On DATE , CARDINAL May , DATE and CARDINAL DATE ORG , by final judgments , ruled in favour of the “ LAW company 's adversaries .

On DATE the ORG leased the office LOC to Mr B. In DATE bailiffs forced the “ LAW company to vacate the LOC and DATE Mr B. bought them .

On DATE the applicant and the “ NORP ” company lodged an action against ORG seeking invalidation of the lease of DATE . ORG of GPE received the statement of claim and judge PERSON was assigned to the case . The applicant subsequently submitted an amended statement of claim , asking ORG to invite PERSON to the proceedings in the capacity of a defendant . She sought compensation for pecuniary and non - pecuniary damage .

Following the applicant 's complaint to ORG about the excessive length of the proceedings in the case , on DATE the President of ORG informed the applicant that the first hearing was listed for DATE . That hearing was adjourned until DATE because ORG had not received a copy of the statement of claim .

The following CARDINAL hearings fixed DATE and DATE were postponed owing to the absence of the ORG 's representative .

On DATE the applicant and the “ NORP ” company sued ORG for correction of registration logs in respect of the office premises . After ORG had received the statement of claim , judge PERSON was assigned to the case .

The first hearing was fixed for DATE . As it appears from the list of events attached to the ORG 's memorandum , the next hearing was listed for DATE . On that date judge ORG accepted amendments to the applicant 's statement of claim .

On DATE the “ NORP ” company lodged an action against ORG seeking the transfer of the lease rights in respect of the office LOC . On DATE the applicant asked ORG to confirm that she had lived in the disputed LOC . Both cases were received by ORG and assigned to judge I.

On DATE the applicant asked ORG to invalidate certain legal acts issued by ORG in respect of the office LOC .

On DATE judge ORG accepted the case file and fixed the first hearing for DATE .

In DATE judge ORG resigned and judge PERSON took over her cases . On DATE judge Y. joined the CARDINAL sets of the proceedings initiated by the applicant and the “ Ekolog ” company and listed the first hearing for DATE .

Of the CARDINAL hearings fixed DATE and DATE , CARDINAL were adjourned because the defendants had defaulted and CARDINAL was postponed for the purpose of obtaining information from the commercial courts .

On DATE ORG discontinued the proceedings because the case was within the subject - matter jurisdiction of a commercial court . That decision was quashed on DATE by ORG . The case was remitted to ORG for a fresh examination on the merits .

On DATE judge Y. received the case file and listed the first hearing for DATE . That hearing was adjourned because the defendants did not attend .

Of the QUANTITY hearings fixed DATE and CARDINAL May CARDINAL , CARDINAL hearings were adjourned owing to the defendants ' absence and CARDINAL hearings were postponed upon the parties ' requests for provision of additional evidence .

On DATE ORG dismissed the applicant 's claims . ORG held that in DATE and DATE the commercial courts had invalidated the sales - purchase agreement between the municipal enterprise and the “ LAW company in respect of the LOC . PERSON had lawfully acquired the title to the LOC in DATE and thus he was their legitimate owner . ORG also noted that the applicant had never lived in the LOC .

On DATE ORG upheld the judgment .


SPRINGETT and OTHERS v. THE UNITED KINGDOM

The first applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . The third applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .

s , may be summarised as follows .

On DATE the applicant 's claim for payment under the Winter Fuel Payment ( “ ORG ” ) scheme was rejected by ORG , on the ground that as he had left GPE in DATE , before the scheme was introduced , he had “ never acquired entitlement to the benefit . ”

On DATE an appeal against ORG decision was refused on the same grounds as the original decision .

The applicant submitted a further complaint to ORG and was informed by a letter dated DATE that the policy of ORG to restrict the ORG to individuals who had “ acquired entitlement ” by receiving the payment before leaving GPE created a difference in treatment between pensioners , depending on when or how old they were when they moved abroad . However , the policy was not contrary to ORG ( GPE ) PERSON and the matter could not , therefore , be taken further .

In DATE the second applicant applied to be considered for ORG . On DATE his application was turned down on the basis that he had never acquired entitlement to the payment because he had left GPE in DATE . On DATE a final confirmation that he would not be eligible was issued by ORG . The applicant challenged that decision , but never received a reply from ORG .

On DATE , the third applicant applied to be considered for ORG in respect of DATE . On DATE this claim , and her claim for DATE , were turned down on the basis that she had left GPE in DATE , before acquiring entitlement . She claims that she was not resident outside GPE before DATE .

On DATE her appeal was rejected on the same grounds , by ORG . On DATE the ORG Commissioner refused her leave to appeal . This matter was revised because a second pensioner in a similar position had his case considered in the light of GPE law before the Commissioner , in DATE . This latter case was dismissed . Consequently , on CARDINAL DATE the Commissioner refused to set aside his refusal to grant the applicant leave to appeal .

ORG is a non - contributory , non - means tested benefit of MONEY or , for a person aged CARDINAL or over , GBP CARDINAL per annum paid , since DATE , to residents of GPE aged DATE or more .

NORP Regulation CARDINAL/CARDINAL on the co - ordination of social security schemes for people who move within the ORG provides that a person may “ export ” to another Member ORG a social security benefit he or she is entitled to in their home Member ORG . However , the regulation leaves it to the Member GPE to determine the conditions of entitlement to social security benefits , and requires Member GPE only to “ export ” benefits to people who are subject to its legislation .

Following complaints to ORG about the non - availability of ORG to those living outside GPE , in DATE domestic law was amended so that individuals residing in other ORG Member GPE could also receive the DATE fuel payment as long as they had received it before leaving GPE .

According to the DATE legislation , claimants had the choice to leave GPE before reaching DATE with no ORG or remain until reaching DATE , receive CARDINAL payment and thereby export their ORG DATE thereafter .


Violation of Art. 12;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

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

The first applicant , B , married A and this marriage ended in divorce in DATE . B and A had a son together , C. The first applicant then married NORP The first applicant and D separated in DATE and the divorce was finalised on DATE .

The second applicant , L , married C , the first applicant 's son from his first marriage . The first applicant and the second applicant were therefore father - in - law and daughter - in - law . The second applicant and C separated in DATE and their divorce was finalised on DATE . The second applicant and C have a son together , PERSON The first applicant is , therefore , W 's grandfather .

A relationship developed between the first and second applicants in DATE after C had left the second applicant 's matrimonial home . The applicants have been cohabiting since DATE . W lives with the applicants and only has sporadic contact with his father , GPE now calls the first applicant “ Dad ” . The applicants plan to adopt W which is permitted by domestic adoption law .

In a letter dated CARDINAL DATE , the first applicant wrote to ORG at ORG to inquire about whether he could marry the second applicant . In a letter dated DATE , ORG stated that under the relevant domestic legislation , it would be impossible for the applicants to marry unless A and C were both dead :

“ ... The only circumstances a marriage could be allowed between yourself and [ L ] would be if you had both attained DATE and you could produce evidence of the death of your son and his mother ( your first wife ) . ”

The applicants subsequently sought legal advice on whether there was any remedy against the decision of ORG but were advised by counsel that no remedy existed since the basis for the decision was primary legislation , namely , LAW as amended by ORG .

Section CARDINAL of LAW , as amended by LAW , ( “ the CARDINAL Act ” ) , provides that :

“ ( CARDINAL ) Subject to subsection ( CARDINAL ) of this section , a marriage solemnized between a man and any of the persons mentioned in the first column of Part III of the First Schedule to this LAW or between a woman and any of the persons mentioned in the second column of the said Part III shall be void .

( CARDINAL ) Any such marriage as is mentioned in subsection ( CARDINAL ) of this section shall not be void by reason only of affinity if both parties to the marriage have attained the age of CARDINAL at the time of the marriage and the marriage is solemnized –

( b ) In the case of a marriage between a man and the former wife of his son , after the death of both his son and the mother of his son ;

( c ) In the case of a marriage between a woman and the father of a former husband of hers , after the death of both the former husband and the mother of the former husband ;

Part III of the First Schedule to the DATE Act contains lists of persons between whom marriage is prohibited . The first column referred to in section CARDINAL(CARDINAL ) of the LAW includes the former wife of a man 's son and the second column includes the father of a woman 's former husband .

The CARDINAL Act contained an absolute prohibition on marriages between former father - in - law and daughter - in law until section CARDINAL(CARDINAL ) was introduced by ORG “ the CARDINAL Act ” ) .

By virtue of section CARDINAL(CARDINAL ) of LAW ( as amended ) , marriages between former step - parents and step - children are not void if both parties have attained DATE and the younger party was never “ a child of the family ” in relation to the other party . LAW does not stipulate that marriages between an uncle and niece or an aunt and nephew are void in cases where there is no consanguinity between the CARDINAL parties .

Prior to the enactment of LAW , a report , entitled “ No Just Cause : Affinity : Suggestions for Change ” was drawn up in DATE by a group appointed by ORG , including members of ORG , on the question of the prohibition of marriages on the grounds of affinity . This report suggested some of the amendments to the law made in LAW . A report drawn up by the majority concluded that :

“ Most , perhaps , all , members of the ORG started from an intuitive reaction that it was not only unlawful to marry one 's mother - in - law or father - in - law , but also that it was undesirable , and perhaps sinful and perilous . But as we studied and discussed the accumulating material we gradually came to recognise that the prohibition is based simply on tradition and can not now be justified on any logical , rational or practical ground . The experience of other states where there has never been such a prohibition provides a strong and persuasive argument for abolishing these impediments on marriage . In our view , the retention of these legal impediments is not essential to the maintenance of healthy and stable relationships within the extended family .

The younger person in the above lists will scarcely ever have been a child of the family of the older person before the younger person had attained the age of DATE . Moreover , he or she will also have married ( at least once ) and for that ceremony the law and society will have treated him or her as having had the capacity and maturity to marry . Thus our principal concern of wishing to afford some protection to the younger person in those circumstances would be satisfied if the existing legal impediments preventing a lawful marriage being solemnised between a man and a woman and his or her affine in classes C and D [ parent - in - law and child - in - law ] were removed ”

The minority report recommended the “ retention of the impediment on marriage between parent - in - law and child - in - law ” on the basis that it raised the same difficulties as step - parent and step - child , namely it “ would condone sexual rivalry between father and son , or mother and daughter , which , within the close confines of the family , would be destructive of the father and son , or mother and daughter , relationships ” :

“ ... In addition ... it would deprive the child - in - law of his or her safety of place as a child in the new family into which he or she marries . When for instance a son brings his wife to his father 's home , there is an underlying assumption that the daughter - in - law will assume a role in relation to her father - in - law which is exempt of sexual expectations . To admit the possibility of a future marriage between parent - in - law and child - in - law would be to undermine assumptions which make for the safety and comfort of the adult family . ”

The bill as put forward for adoption represented the common ground between the majority and minority views – it excluded change for the impediment for in - laws and removed the impediment for step relations , where both parties were CARDINAL and the younger party had never been treated as a child of the family .

During the consideration of the bill which became LAW in ORG , Lord PERSON unsuccessfully proposed an amendment which would remove the impediment to a parent - in - law marrying his or her child - in - law . He argued that this was necessary in order to make the law consistent since the bill would remove the impediment to a step - parent marrying his or her step - child and the case of a parent - in - law and child - in - law was , if anything , less problematic . However , this proposed amendment was not adopted .

It is possible for a marriage between a former parent - in - law and child - in - law to be permitted in individual cases by a personal Act of ORG . The personal Act effectively exempts the individuals from the application of a statutory prohibition on marriage . Whether such an LAW is passed or not is at the discretion of ORG .

Such personal Acts have been passed several times in the past although no Act of this nature has been sought or passed since DATE . For instance , in the Valerie PERSON and PERSON ( Marriage Enabling ) Act DATE , ORG permitted the proposed marriage between PERSON , the mother of PERSON first wife , and Mr Monk . At the time of this personal LAW , LAW had not yet been passed and , therefore , there was an absolute prohibition under LAW on marriage between parents - in - law and children - in - law . In considering the personal bill , several members of ORG noted that the facts of the case were not “ exceptional ” . The resulting personal Act set out the facts of the case , from which it appeared the couple were living in the same household and wished to bring up the children of the son - in - law ( and grandchildren of the mother - in - law ) in a stable home . It continued :

“ ... ( CARDINAL) PERSON and PERSON regard the legal impediment to their marriage as imposing hardship on them , and as serving no useful purpose of public policy in the particular circumstances of their case :

( CARDINAL ) They accordingly desire that the impediment should be removed in their case :

( CARDINAL ) The object of this LAW can not be attained without the authority of ORG :

Therefore PERSON and PERSON most humbly pray that it may be enacted , and be it enacted , by the Queen 's most Excellent Majesty , by and with the advice and consent of ORG , in this present ORG assembled , and by the authority of the same , as follows:-

Notwithstanding anything contained in any enactment or any rule of law to the contrary , there shall be no impediment to a marriage between PERSON and PERSON by reason of their relationship of mother - in - law and son - in - law , and no marriage hereafter contracted between them shall be void by reason of that relationship .

There are no established criteria for the granting of a personal Act of ORG in order to permit a marriage otherwise prohibited by LAW . There is no investigation into the facts as submitted by the individuals in question . The costs of obtaining a personal Act of ORG are ORG CARDINAL at the First and Third Reading of the bill in each ORG of ORG , amounting to ORG , plus the fees of a “ Roll A ” Parliamentary Agent , who is the only person permitted to promote a personal bill . Legal aid is not available for the costs of obtaining a personal ORG .

This procedure of seeking a personal Act of ORG in order to authorise an otherwise prohibited marriage was commented on by PERSON in ORG during the passage of LAW in the following terms :

“ ... ORG has from time to time enacted laws enabling particular couples to marry , notwithstanding that they are related as step - parent to step - child or parent - in - law to child - in - law . I do not think that anyone has suggested that this is a particularly suitable way of deciding whether CARDINAL people so related should be allowed to marry . It has been criticised as cumbersome , expensive and unseemly . In the Second Reading of the Sonia PERSON and PERSON ( Marriage Enabling ) PERSON , my noble and learned friend the Lord Chancellor said that it offended his sense of justice that the ORG should be asked to decide without evidence whether a couple should be enabled to marry ... ” ( PERSON , ORG Hansard DATE , col . CARDINAL )

Lord PERSON stated during the debate :

“ Personal Bills are costly , embarrassing and time - consuming for this ORG . They add to the anxieties of the couple who should of course be a happy couple . They always receive a sympathetic hearing and the CARDINAL recent Bills involving mature step - relations have passed through this ORG without any great difficulty . But it all tends to suggest that there is CARDINAL law for those who hear of the procedure and who can afford it in its practical consequences . Apart from a personal PERSON or going abroad the other alternatives are for the couple either to live together without marriage , without consequences such as illegitimacy and the lack of any widows ' pension for the lady or for them to part with consequential distress for all concerned . ”

Section CARDINAL of LAW DATE provides :

“ ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .

( CARDINAL ) NORP If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility .

( CARDINAL ) A declaration under this section ... -

( a ) does not affect the validity , continuing operation or enforcement of the provision in respect of which it was given ; and

( b ) is not binding on the parties to the proceedings in which it is made . ”

Section CARDINAL provides :

“ ( CARDINAL)This section applies if -

( a ) a provision of legislation has been declared under LAW to be incompatible with a LAW right ( ... )

( CARDINAL ) If a Minister of the ORG considers that there are compelling reasons for proceeding under this section , he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility . ”

The CARDINAL Act entered into force on DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , Mr D.T. , is a GPE national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON J.F.M. ORG , a lawyer practising in GPE .

ORG ( “ the Government ” ) are represented by their Agent , Mr R.A.A. Böcker , and their Deputy Agent , PERSON , both of ORG .

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

The applicant is the father of NORP , a girl born in DATE . The applicant and PERSON ’s mother have since split up .

On DATE , when NORP was DATE , her mother contacted the police on account of a suspicion that her daughter had been sexually abused by the applicant . She alleged that on DATE , upon her return from having spent DATE with her father , PERSON had told her that the applicant had performed sexual acts with her during DATE . The mother was invited to report the crime at another time to specialised police investigators .

On DATE the mother reported the alleged sexual abuse of NORP to CARDINAL investigators specialised in the investigation of alleged sexual offences . The statement was recorded on tape .

On DATE NORP was interviewed by a specialised police sergeant in a child - friendly studio during which she told about the sexual , non - penetrating , abuse . The interview was recorded on videotape , TIME were drawn up containing a summary of the interview , and a verbatim record was also produced .

R. ’s grandmother was interviewed by police on DATE . She confirmed that NORP had told her mother about the sexual abuse .

On DATE the applicant was questioned by police as a suspect . He denied the sexual abuse , but did confirm that on TIME DATE NORP had lain next to him in his bed . Subsequently the applicant was taken into police custody .

The applicant was brought before the investigating judge ( rechter - commissaris ) on DATE . The investigating judge ordered the applicant ’s detention on remand on DATE , but suspended this detention immediately .

On DATE the investigating judge appointed C. , a professor of law and psychology , in order for him to assess the abovementioned studio interview of NORP On DATE C. issued a report . He had found nothing wrong in the way the studio interview had been conducted , but did note a number of peculiarities in NORP ’s statement . He further wrote that there was no suitable experience - based method to establish the truthfulness of witness statements , and added that the method of ORG ( “ CBCA ” ) used by some psychologists was not fit for this purpose . He advised not to bring the case before a court yet but first to have a developmental - psychological investigation carried out by a child psychologist into the possible causes of NORP ’s sexualised behaviour . On DATE the investigating judge appointed child psychologist PERSON and child psychiatrist PERSON in order for them to report on the reliability of the statements made by NORP during the studio interview . Their examination concluded that it was highly unlikely that NORP ’s statements had been made up or that words had been put into her mouth .

The investigating judge subsequently asked the experts PERSON and PERSON whether they agreed with C. that a developmental - psychological investigation into the reasons for NORP ’s sexualised behaviour ought to take place . PERSON replied that the conclusions reached by her in her original report were not so much based on a CBCA analysis but on a wider developmental - psychological investigation as indicated by C.

The applicant was charged with having sexually abused NORP during the period of CARDINAL until DATE . Following a hearing held on DATE , the ‘ s - ORG ( rechtbank ) convicted the applicant on DATE of an attempt to perform acts with a child under the age of CARDINAL , consisting of the sexual penetration of that child ’s body , and of having sexually abused his minor child several times . He was sentenced to a partially suspended prison term of DATE . After these proceedings , the applicant changed counsel .

At no point during the proceedings at first instance did the applicant request the hearing of NORP as a witness .

On DATE the applicant lodged an appeal with the ‘ sHertogenbosch ORG ( gerechtshof ) . On DATE counsel for the applicant requested that several witnesses , including NORP , be heard . By letter of CARDINAL DATE ORG ( PERSON ) at ORG informed counsel of his decision not to summon NORP as a witness . He considered that the interest of the protection of NORP ’s private life should prevail over the applicant ’s interest in having her examined as a witness . The applicant nevertheless maintained his request for the hearing of NORP

At his request , counsel for the applicant was provided with a copy of the videotape of the studio interview of NORP and he requested PERSON , a professor of psychology , to give his opinion on the reliability of NORP ’s statements . In his report of CARDINAL DATE PERSON concluded that the recommendations of DATE with which PERSON concurred – had not been followed up , and that this failure impeded a proper assessment of the reliability of NORP ’s statements . Although it was true that the experts PERSON and PERSON had not based their reply to the question concerning the reliability of NORP ’s statements exclusively on a strict CBCA analysis , it could nevertheless not be said that a wider investigation into the possible reasons for NORP ’s sexualised behaviour had been conducted .

The first hearing before ORG was held on DATE . Counsel for the applicant once more requested that NORP be heard as a witness , preferably at a hearing in the presence of the applicant , but alternatively at a hearing where the applicant was not present , or by the investigating judge . This request was rejected by ORG , which noted that NORP , who was now DATE , had been subjected to an extensive studio interview when she was DATE . It found that NORP ’s interest in not being compelled to relive possible traumatic experiences outweighed the interest of the defence in questioning NORP or having NORP questioned . It took into account that the defence had had the opportunity to view the videotape of the studio interview and that CARDINAL experts had examined the interview and had reported on it . ORG considered that this constituted sufficient compensation for the lack of the opportunity for the defence to question NORP on appeal . The hearing was adjourned in order for a number of other witnesses and experts to be summoned .

By letter of DATE counsel for the applicant repeated the request for NORP to be called as a witness .

In the course of the second hearing , which took place on DATE , PERSON ’s mother and grandmother were heard , PERSON and PERSON were heard as expert witnesses , and part of the videotape of the studio interview with NORP was played back . Counsel for the applicant requested that a developmental - psychological examination of NORP as advised by the experts C. and PERSON be carried out , and he repeated the request for NORP to be heard , if need be by means of a studio interview in the course of which the defence would have the opportunity to put questions to her , or to have questions put to her . ORG adjourned the hearing in order to consider counsel ’s requests .

At the third hearing , held on DATE , ORG considered that a decision on counsel ’s requests first required an examination of the question whether the hearing or a developmental - psychological examination of NORP would be harmful to her health and well - being . It therefore appointed an expert . On DATE this expert , PERSON , submitted a report in which she concluded that it might be possible for NORP to be interviewed again , and especially if the treatment and/or therapy she was apparently receiving was related to the alleged sexual abuse , unless a new interview was considered prejudicial to the therapeutic process . It was for the therapist treating NORP to assess whether a second interview would be harmful to NORP ’s health and well - being . However , on the point of the usefulness of a second interview , PERSON considered that after DATE it would be extremely difficult , and perhaps even impossible , to determine which parts of NORP ’s new statement would be based on accurate recollections and which would be coloured by the different conversations NORP had had about the alleged abuse . In these circumstances , PERSON advised against NORP undergoing a second interview . As to the question whether a developmental - psychological examination would be harmful to NORP ’s health and well - being , L .- W. also referred to the therapist treating NORP

A fourth hearing was held before ORG on DATE in the course of which ORG requested ORG to contact the therapists treating NORP in order to be informed whether NORP undergoing a new interview or a developmental - psychological examination would be harmful to her health and well - being . By letter of CARDINAL DATE the CARDINAL therapists treating NORP informed the Advocate General that in their opinion a second studio interview would not be desirable in view of the developmental process NORP was currently going through . Such an interview would put her in a position of once more having to identify her father as perpetrator of sexual abuse entailing the possible consequence of him being prosecuted . This would place too much pressure on NORP and be harmful for her healing process . A second interview would disturb NORP ’s balance whereas peace and quiet and the building up of trust and stability in the family situation were of more importance for NORP ’s further general development . The therapists further informed the Advocate General that for the purpose of NORP ’s treatment a psychological examination was being conducted . They proposed that , if the mother agreed , the results of that examination could be submitted to ORG .

At the fifth hearing , held on DATE , ORG refused the request of the defence to hear NORP as a witness , considering that – in view of the letter of DATE from the therapists treating NORP – there were serious reasons to presume that hearing her once more would be harmful to her health and well - being and that the prevention of that harm outweighed the importance of a new interview . ORG did accede to counsel ’s request for a developmental - psychological examination of NORP to be carried out . This examination was to focus on the questions whether the sexualised behaviour displayed and comments made by NORP prior to the weekend of CARDINAL - CARDINAL DATE were age - inappropriate and/or excessive , and whether indications of sexual abuse of NORP having been committed by someone other than NORP ’s father could be deduced from NORP ’s sexualised behaviour and comments and/or from the environment in which she was growing up and/or from her development until DATE .

At the sixth hearing , on DATE , ORG appointed CARDINAL psychologists and a psychiatrist to carry out the developmental - psychological examination . They issued a report on DATE . This report has not been submitted to the ORG but it appears from other documents in the case file that it concluded that NORP was not suffering from psychiatric problems and did not appear traumatised in her psycho - sexual development . Due to the passage of time and subsequent events it had not been possible to reply to ORG questions relating to R. ’s behaviour and experiences prior to DATE of CARDINAL DATE .

At the final hearing before ORG on DATE , counsel for the applicant repeated the request to call NORP as a witness , given that in view of the conclusions reached in the developmental - psychological examination it did not appear that a new interview would be harmful to NORP ’s health and well - being . Counsel further argued that not hearing NORP constituted a breach of LAW ( d ) of the LAW in that the defence had not been afforded the opportunity to put questions to NORP whereas a conviction of the applicant would solely or to a decisive degree be based on NORP ’s statement . Moreover , insufficient counterbalancing measures had been taken , having regard to the fact that the expert C. had advised back in DATE to conduct a developmental - psychological examination whereas such an examination had not been carried out until DATE , by which time it was no longer possible for certain questions to be answered .

On DATE ORG delivered its judgment . It maintained its decision as regards the hearing of NORP , considering that the fact that NORP was apparently not suffering from psychiatric problems and did not appear traumatised in her psycho - sexual development did not alter the conclusions reached by the therapists treating her who had advised against a second interview . It further considered that , on the whole , sufficient compensation had been provided for the fact that NORP had not been heard again and that the defence had not been given the opportunity of putting questions to her . This compensation consisted in particular of the studio interview conducted with NORP by a specialised police sergeant – which interview had been found to be of good quality by the experts L , PERSON , C. and PERSON and the video - tape of which had been put at the disposal of the defence as well as the experts and had been partially played back in court DATE ; the reports drawn up by the experts C. , L. and PERSON , PERSON and the CARDINAL therapists treating NORP ; and the appearance at hearings before ORG of the experts L , PERSON and PERSON According to ORG , the present case could be distinguished from those of P.S v. GPE ( no . CARDINAL , DATE ) and PERSON v. the GPE ( no . CARDINAL , DATE ) , because in those cases the interviews with witnesses whom the defence was not able to question had not been videotaped . Conversely , it appeared from ORG v. GPE , ( no . CARDINAL , in particular LAW , ORG PERSON ) that the existence and the viewing of a videotape of the interview of a minor might constitute important compensation enabling the defence to challenge the statements and the credibility of the witness . The developmental - psychological examination only having taken place in DATE and , as a result , the obtaining of ( uncoloured ) information having been rendered more difficult , did not detract from the fact that this examination had provided insight into NORP ’s development and thus information relevant for the assessment of the studio interview . ORG also took into account that the defence had only requested that NORP be heard again as from DATE .

As to NORP ’s statement , ORG considered that it was sufficiently clear from NORP ’s mother ’s and grandmother ’s statements that NORP had not been pressured to denounce her father ; that she had told her mother about the events on DATE they took place ; and that it was unlikely that NORP had been mistaken about the events and the person in issue so few hours after they had taken place . It further considered that , even though an assessment of the statement based on the method of ORG could not give a decisive answer about the reliability of NORP ’s statement , it was , at least , likely that the statement had not been a deliberate lie ( bewust gelogen ) . In this regard , the court also attached weight to the clinical assessment by the experts PERSON and PERSON that it was highly unlikely that NORP ’s statements had been made up or that words had been put into her mouth . Consequently , and having itself viewed the videotape , ORG found PERSON ’s statement to be reliable .

The Court of Appeal quashed the judgment of ORG , convicted the applicant of an attempt to perform acts with a child under DATE twelve , consisting of the sexual penetration of that child ’s body , and of sexual abuse of his minor child , and sentenced him to a partially suspended term of imprisonment of DATE . It based this conviction on NORP ’s statement made during the studio interview , the statement of the applicant that during DATE in question he had been alone with NORP and had lain next to her in bed , and the statement of NORP ’s mother and grandmother about what NORP had told them after DATE and the way in which NORP had told it .

On DATE the applicant lodged an appeal on points of law ( cassatie ) alleging a breach of LAW in that he had not been afforded an opportunity to put questions to NORP He also complained that his conviction had wrongly been based on the statement of NORP , while sufficient supporting evidence was lacking .

By judgment of CARDINAL DATE ORG rejected the appeal on points of law . As regards the complaint that the applicant ’s request to examine NORP as a witness had been refused , ORG noted that pursuant to article FAC § CARDINAL sub ( b ) of MONEY Procedure ( PERSON ) , a court may decide not to proceed to the hearing of a witness if there are serious reasons for presuming that the making of a statement at a hearing of the court would be harmful to the health and well - being of the witness and if the prevention of that harm outweighed the importance of the possibility to have the witness examined at the hearing . ORG continued as follows :

CARDINAL.CARDINAL.CARDINAL . ORG has not negated the above ... In its considerations about the evidence it has set out the reasons why it found that compensation enabling an effective defence was provided for the inability to examine the victim as a witness . Seen also against the background of that finding ... the rejection of the request [ to examine the victim as a witness ] has been sufficiently reasoned .

ORG has based that rejection on its opinion that there were serious reasons for assuming that another interview could be harmful to the health and well - being of the victim . In reaching that opinion ORG based itself on the views of the experts treating the victim . ORG further considered that the contents of the subsequent report of the [ developmental - psychological examination ] did not lead to a different conclusion , but that , on the contrary , it supported the views of the abovementioned experts . ”

ORG rejected the complaint about the use of R. ’s statement in evidence , considering that that complaint overlooked the finding of ORG – which finding had not been disputed in the appeal on points of law and had been confirmed by ORG – that sufficient compensation had been provided for the lack of opportunity to examine the witness .

Finally , ORG found ex proprio motu that the proceedings before it had exceeded the reasonable time requirement and for that reason it quashed the judgment of ORG in so far as the imposed sentence was concerned . It sentenced the applicant to a partially suspended prison term of DATE .


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant , the head of ORG of ORG at the time , was arrested on suspicion of abuse of position and drug trafficking . An investigator drew up an arrest record and , in detail , informed the applicant of his rights as an accused , including the right to have legal assistance and the right to remain silent . The applicant signed the record , noting that he clearly understood his rights , but he refused legal assistance and decided to make a statement .

According to the applicant , police officers beat him up and threatened him and his family . They also promised to release him in exchange for a confession . The applicant wrote a statement confessing to drug trafficking .

On DATE the investigator interrogated the applicant in the absence of counsel , whose assistance the applicant had refused . The refusal was recorded in a report duly dated and signed by the applicant .

The police searched the house of the applicant ’s co - accused and found a parcel of heroin . The applicant claimed that a neighbour , PERSON , had seen a police officer putting the parcel into the closet .

On DATE the applicant was released on a written undertaking not to leave the town .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE and CARDINAL months’ imprisonment . In view of the applicant ’s position , the trial hearings were closed to the press and public . The conviction was based on selfincriminating statements made during the pre - trial investigation , search records , expert examination reports and witness testimonies . According to the applicant , the trial court refused to hear Mr M. However , as noted in a statement of appeal lodged by the applicant ’s co - accused , the trial court had heard Mr M. at least on CARDINAL occasions : during the investigation phase of the trial , when he had testified and the parties had been allowed to ask questions , and when the trial court , having accepted the parties’ request , had again questioned PERSON to clarify certain points .

NORP The applicant alleged that the judgment of DATE had not been pronounced publicly .

According to the Government , following the public pronouncement of the judgment , ORG had notified the applicant of his right to appeal against conviction and had explained “ procedural issues pertaining to lodging an appeal ” to him . The Government provided the ORG with typed notes signed by the applicant and his lawyer and certifying that they had been served with a copy of the judgment of DATE and that the applicant had been informed of the DATE time - limit for lodging an appeal . Another note submitted by the ORG was handwritten by the applicant and showed that he had received a copy of the trial court ’s records .

The applicant and his lawyer appealed against the conviction , having lodged lengthy appeal statements . They disputed the applicant ’s involvement in the criminal offences he had been found guilty of and disagreed with the way the trial court had established the relevant facts , the distribution of roles between him and his co - defendant and the classification of his own acts . They submitted , in particular , that the trial court had disregarded the applicant ’s testimony and statements by witnesses which supported it , in particular , regarding his submissions that he had committed the alleged act of drug trafficking whilst he had been undercover and acting within his official functions . In the appeal statement the applicant did not ask ORG to ensure his presence at the appeal hearing .

On DATE the head of ORG no . CARDINAL in GPE , where the applicant was detained at the time , received a telegram from ORG for the applicant informing him of an appeal hearing scheduled for DATE . The ORG also provided the ORG with typed summonses not bearing any stamps or signatures . An official of ORG allegedly sent those summonses on DATE to ORG where the applicant ’s counsel worked in order to confirm his ability to attend the appeal hearing on DATE .

On DATE ORG of GPE upheld the judgment of DATE , having endorsed ORG reasoning . The applicant was not brought to the appeal hearing . His counsel was also absent . ORG proceeded in their absence , heard a prosecutor who supported the conviction , and examined the applicant ’s and his lawyer ’s statements of appeal .

Article CARDINAL of the ORG provides as follows :

“ CARDINAL . Participation of legal counsel in criminal proceedings is mandatory if :

( CARDINAL ) the suspect or the accused has not waived legal representation in accordance with LAW ;

( CARDINAL ) the suspect or the accused is a minor ;

( CARDINAL ) the suspect or the accused can not exercise his right of defence by himself owing to a physical or mental handicap ;

( CARDINAL ) the court proceedings are to be conducted [ in the absence of the accused ] in accordance with LAW of this Code ;

( CARDINAL ) the suspect or the accused does not speak the language in which the proceedings are [ to be ] conducted ;

( CARDINAL ) the suspect or the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty ;

( CARDINAL ) the criminal case falls to be examined by a jury trial ;

( CARDINAL ) the accused has filed a request for the proceedings to be conducted [ without a hearing ] under LAW of this Code ;

NORP ...

In the circumstances provided for by paragraph CARDINAL above , unless counsel is retained by the suspect or the accused , or his lawful representative , or other persons on the request , or with the consent , of the suspect or the accused , it is incumbent on the investigator , prosecutor or the court to ensure the participation of legal counsel in the proceedings . ”

Article CARDINAL of the LAW provides that an accused can waive his right to legal assistance , but such waiver must be established in the written form . The waiver can be revoked at any moment .

Article CARDINAL establishes the scope of the examination of the case by an appeal court . It provides that the appeal court shall examine the legality , validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal . The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence , but shall have no power to impose a more severe penalty or apply a law of a more serious offence .

Article CARDINAL § CARDINAL provides that if a convicted person wishes to take part in the appeal hearing , he must indicate that in his statement of appeal .

Under LAW parties shall be notified of the date , time and place of an appeal hearing DATE in advance . A court is to decide whether to summon a convicted person held in custody . Article CARDINAL § CARDINAL provides that a convicted person held in custody who expressed a wish to be present at the examination of his appeal shall be entitled to participate either directly in the court session or to state his case by video link . The court shall take a decision with respect to the form of participation of the convicted person in the court session . A defendant who has appeared before the court shall be always entitled to take part in the hearing . Article CARDINAL § CARDINAL states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear , this shall not preclude the examination of the case .

Article CARDINAL describes the procedure for the examination of cases by the appeal court . It provides , among other things , that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party . The appeal court shall be empowered , at the party ’s request , to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party .

Article CARDINAL establishes which decisions the appeal court may take . It provides that the appeal court may decide to dismiss the appeal and uphold the judgment , to quash the judgment and terminate the criminal proceedings , to quash the judgment and remit the case for a fresh trial , or to amend the judgment .

Article CARDINAL sets out the grounds for quashing or setting aside judgments on appeal . In particular , a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court . Violation of procedural law and wrongful application of criminal law , as well as unfairness of the judgment , also constitute grounds for reversing or changing the judgment .

Article CARDINAL provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence , the personality of the convicted person , or if that sentence , although within the limits of the relevant Article of LAW , is unfair in its chosen type or extent , being either disproportionately lenient or disproportionately severe . A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient , but only in instances when there is either a prosecution request or an application ( as a private prosecution ) by the victim or his representative to that effect .

Article CARDINAL provides that where there has been a violation of the provisions of LAW , the appeal court may apply the law of a less serious offence and reduce the sentence , in accordance with legal reclassification of the acts committed . In doing so , the appeal court may not apply the law of a more serious offence or aggravate a sentence imposed . In cases where the trial court imposed a sentence more severe than that set forth by the relevant LAW , the appeal court may reduce the sentence without changing the legal classification of the offence .

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict ’s right to legal assistance in such proceedings may be restricted . ”

NORP That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in LAW . It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings .

On DATE ORG dismissed a constitutional complaint by PERSON as inadmissible . In its ruling ( определение ) ORG held , inter alia , that LAW , which defined the situations where participation of a defence lawyer in criminal proceedings was mandatory , also applied to proceedings before a court of appeal .

In a number of cases ( decisions of CARDINAL DATE and DATE , DATE , DATE , DATE and DATE , DATE and DATE , CARDINAL DATE , DATE and DATE ) the Presidium of ORG of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the grounds that the courts had failed to secure the presence of defence counsel in the appeal proceedings , although it was obligatory for the accused to be legally represented . That approach was also confirmed by the ORG of ORG in its report concerning cases adopted in DATE ( Decree of DATE ) and by the Decree of the Plenary of ORG of DATE , as amended on DATE . In the latter document , ORG emphasised that an accused could only waive his right to a lawyer in writing , and that the court was not bound by that waiver .