CASE OF DUINHOF AND DUIJF v. THE NETHERLANDS

Questions of procedure rejected;Violation of Art. 5-3;Non-pecuniary damage - financial award

ORG Mr. PERSON and Mr. PERSON , who were born in DATE and DATE respectively , reside in the GPE . In DATE and DATE , after being forcibly drafted as conscript soldiers in ORG , they each refused , on account of their beliefs as conscientious objectors , to obey specific orders deriving from their obligation to perform military service . They were placed in detention by the competent military officers for suspected offences against LAW ( Wetboek van Militair Strafrecht ) . They were kept in custody and referred for trial before a military court .

Exemption may be obtained from compulsory military service on the ground of conscientious objection , both before and after active military service has begun . The procedure for requesting such exemption from the Minister of Defence is laid down in ORG ( Wet Gewetensbezwaren Militaire ORG ) and a Ministerial Decree of DATE .

In the present case , neither applicant ever submitted a request to the Minister of Defence to be granted the status of conscientious objector ( see paragraphs CARDINAL below ) .

ORG Criminal procedure for the military land and air forces , including in particular the matter of arrest and detention on remand , is governed by the ORG and Air Force Code of Procedure ( Rechtspleging bij de Land - en Luchtmacht - " LAW " ) , as last amended on DATE . Offences under military criminal law , which applies equally to conscript servicemen such as the applicants and to volunteers , are tried at first instance before a Military Court ( PERSON ) . There may be an appeal to ORG ( PERSON ) and ultimately a ( cassation ) appeal on points of law to ORG ( PERSON ) of the GPE .

ORG Every officer and non - commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty ( LAW ) . The resultant detention is not to exceed TIME ( Article CARDINAL ) .

The commanding officer may order a suspected serviceman to be placed or kept in custody on remand if ( a ) there is a serious risk of absconding or ( b ) there are important reasons of public safety requiring immediate deprivation of liberty or ( c ) this is necessary in connection with the maintenance of military discipline among other servicemen ( DATE paragraph ) . Such a detention order may be made against a serviceman suspected of any offence set out in LAW or any offence in respect of which detention on remand is permitted under LAW , with the exception of those offences of which ORG takes no cognisance ( DATE paragraph ) . An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom , or is likely to be given a sentence of shorter duration than that of the detention on remand ( ibid . ) . Detention must be terminated once the grounds for it cease to exist ( LAW paragraph ) . All cases of detention exceeding DATE shall be reported by the commanding officer to the commanding general ( LAW paragraph ) .

Where detention has lasted DATE , the suspected serviceman may petition the competent ORG to fix a term ( liable to extension ) within which the commanding general must either decide whether the case is to be referred to a ORG or else terminate the detention . ORG has to rule on the petition without delay , after hearing the authority empowered to refer the case , the auditeur - militair ( see paragraph CARDINAL below ) and the suspected serviceman , who may have the assistance of an adviser ( LAW ) .

ORG If , after receiving the advice of the auditeur - militair and , " if possible " ( " zo mogelijk " ) , after the suspected serviceman has been heard , the commanding general or a senior officer ( hoofd officier ) designated by him to act on his behalf considers that the case should be tried by ORG , the serviceman shall be referred for trial before that ORG ( LAW ) . On the other hand , the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter ( LAW Regulation No . CARDINAL of ORG explained the effect of these provisions in the following terms ( translation from NORP ) :

" In military penal procedure , as distinct from civilian procedure , the decision to prosecute in a case is not taken separately by the prosecuting authority , the auditeur - militair , but by a military authority . That authority is the commanding general or the senior officer he has appointed to act on his behalf , i.e. the referring officer ... Thus , the auditeur - militair is merely an advisory body at this stage , although the obtaining of his advice and the giving of that advice by him are mandatory . "

Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody ; the grounds for detention set out in the second and fourth paragraphs of LAW ( see paragraph CARDINAL above ) apply pari passu ( Article CARDINAL ) . If , against the advice of the auditeur - militair , the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial , the auditeur - militair may take the matter to ORG ( Article CARDINAL ) . No appeal is provided for in the contrary case .

According to the Government , it has now become standard procedure to apply the above provisions of LAW in the following manner . Where detention on remand has been ordered , the suspected serviceman is always heard by the auditeur - militair and any referral to ORG takes place shortly thereafter , on DATE after the arrest . In view of the requirements of LAW the auditeur - militair ’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in LAW fulfilled . Thus , the standard written form used by the auditeur - militair for the purposes of transmitting his advice to the referring officer contains , inter alia , a paragraph as to whether the suspect should " be released or be placed or kept in custody " . Practice has evolved to the point where the advice of the auditeur - militair is invariably followed and generally regarded as binding .

Detention maintained or ordered in the decision referring the serviceman for trial may not exceed DATE unless extended , by terms of DATE , by ORG at the request of the auditeur - militair ( DATE ) . Every accused detained by virtue of the referral decision must be heard by the officier - commissaris ( see paragraph CARDINAL below ) as speedily as possible and in any event within DATE of referral ; in this connection , the accused may be assisted by an adviser ( Article CARDINAL , first paragraph ) . Before extending detention , ORG must give the accused or his adviser the opportunity to submit argument ( Article CARDINAL , second paragraph ) .

As soon as the grounds for the detention cease to exist , release must be ordered ( LAW , first paragraph ) . In the period between referral and commencement of the trial , power to order release is exercisable by the auditeur - militair , or by ORG at the request of either the officier - commissaris or the detained serviceman himself ( Article CARDINAL , second paragraph ) . ORG , in deciding on such requests , will hear the auditeur - militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time ( DATE paragraph ) .

ORG If the accused is in custody at the first hearing , ORG will decide , after being addressed by the auditeur - militair , whether or not the nature and circumstances of the case require his continued detention during the trial ( LAW . The ORG may direct the accused ’s release from detention on remand at any later stage in the proceedings , either of its own motion or at the request of the auditeur - militair or the accused himself ( Article CARDINAL ) .

ORG A serviceman in custody may request release or suspension of his detention under LAW in proceedings before ORG pending the decision on his appeal .

ORG The auditeur - militair has the function of prosecuting authority before ORG ( Article CARDINAL , first paragraph ) . No serving member of ORG may appear as auditeur - militair or substitute auditeur - militair ( LAW paragraph ) . The auditeur - militair and his substitute may be replaced by an acting auditeur - militair ( plaatsvervanger - LAW paragraph ) who may be a military officer , but such replacement was said by the Government to occur only in exceptional circumstances . Auditeurs - militair ( including substitutes and acting ones ) are appointed , and dismissed , by the Crown on a joint proposal from the Ministers of Justice and Defence ; they must possess a law degree ( LAW paragraphs ) . Under the terms of LAW , second paragraph , of LAW , they are obliged to comply with instructions given to them in their official capacity by the Minister of ORG . However , according to the Government , this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and , at least in DATE , no Minister of ORG has acted or interfered in a concrete case on the basis of LAW .

The auditeur - militair is bound by his oath to act honestly and impartially ( Articles CARDINAL and CARDINAL ) . He must attend the hearings of ORG ( Article CARDINAL ) but he does not take part in the ORG ’s deliberations . He is under a general duty to assist ORG , as well as the commanding general , with reports , observations and advice in relation to military justice when required to do so ( Article CARDINAL ) . He is not under the supervision of ORG or ORG in the discharge of his duties , save that ORG has the power to reprimand him should he fail strictly to observe statutory time - limits ( Article CARDINAL ) .

Attached to each Military Court is CARDINAL officier - commissaris who is in charge of the preliminary investigation of cases ( DATE ) . An officier - commissaris is an officer or former officer of ORG with the rank of captain or higher and is appointed for a fixed term of DATE by the commanding general ( ibid . ) . While he may at the same time be a member of ORG , this is not usually the case . His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary ( Articles CARDINAL , CARDINAL and DATE ) . A hearing by the officier - commissaris has the same force as a hearing by ORG ( Article CARDINAL ) . During his enquiries , he is under a duty to apply himself equally to discovering the accused ’s innocence and to obtaining proof or admission of guilt ( Article CARDINAL ) . Like the auditeur - militair , he is bound by his oath to act honestly and impartially ( Articles CARDINAL and CARDINAL ) .

The Military Court sits with a president and CARDINAL military members ( Article CARDINAL ) .

The latter are military officers appointed by the commanding general ; during their term of office , which is for DATE at least , they may not be dismissed ; they must be CARDINAL of age and be commissioned officers ( LAW . In practice , the rank most commonly possessed is that of captain or major . There is no requirement that the military members be legally qualified . According to the Government , although they retain the status of military officers , they are independent in their capacity as judges and no order can be given to them by anyone . Like the president , the military members are bound by oath to act honestly and impartially ( Articles CARDINAL and CARDINAL ) .

The president is a civilian who must be the holder of a university law degree ; he is appointed for life by the ORG on the joint recommendation of ORG ( Article CARDINAL ) .

The deliberations of ORG are secret and its members are not allowed to make public their personal opinions or those of their colleagues ( Article CARDINAL ) .

ORG Mr. PERSON was arrested on DATE on a charge of having failed to register in due time as a conscript serviceman ( LAW ) . He was transferred to military barracks where he refused to submit to a medical examination . He was then further accused of persistent insubordination ( LAW ) . On DATE , the commanding officer confirmed the detention , the ground relied on being the need to maintain discipline amongst other servicemen ( LAW - see paragraph CARDINAL above ) .

On DATE , he was brought before the auditeur - militair . On DATE , in accordance with the advice of the auditeur - militair , the designated senior officer referred the applicant for trial before ORG , while deciding that he should be kept in custody on the same ground as before ( Articles CARDINAL , DATE and DATE , second paragraph , of LAW - see paragraph CARDINAL above ) .

ORG On DATE , the applicant was heard by the officier - commissaris ( Article CARDINAL , first paragraph , of LAW - see paragraph CARDINAL above ) .

On DATE , ORG examined a request made by the applicant on DATE for release from custody ( LAW - see paragraph CARDINAL above ) . At this hearing , the applicant submitted , inter alia , that the requirements of LAW ( LAW ) of the LAW had not been complied with . ORG held that the lapse of time between the applicant ’s arrest and his appearance before the officier - commissaris , a judicial officer , was " considerable " but nonetheless " acceptable " , having regard both to the fact that this period comprised a DATE and to the geographical distance between the various intervening authorities . Accordingly , considering that the grounds for detention were still prevailing , the ORG dismissed his request .

Subsequently , his detention was regularly prolonged by ORG .

ORG On DATE , Mr. PERSON was convicted of insubordination and sentenced by ORG to CARDINAL months’ imprisonment , the time spent in custody on remand to be deducted therefrom .

ORG He then appealed to ORG .

On DATE , pending the examination of his appeal , the applicant lodged with ORG a request for the detention to be terminated having particular regard to LAW ( LAW ) of the LAW or , alternatively , for the detention to be suspended ( LAW - see paragraph CARDINAL above ) .

On DATE , ORG rejected the first part of his request . However , on DATE , it acceded with immediate effect to the second part subject to a number of conditions , inter alia , that he accepted - which he did - to perform substitute civilian service over a minimum period of DATE and to submit to a medical examination . Criminal proceedings were likewise suspended by the ORG under the same conditions .

ORG subsequently sentenced Mr. PERSON to CARDINAL days’ imprisonment , the time spent in custody on remand , which likewise totalled DATE , to be deducted therefrom .

ORG Mr. PERSON was arrested on DATE on a charge of having failed to register in due time as a conscript serviceman ( LAW ) . He was transferred to a military house of detention where he refused to take receipt of a military uniform and weapon . He was then further accused of persistent insubordination ( LAW ) . The commanding officer confirmed the detention , the grounds relied on being a serious risk of his absconding and the need to maintain discipline amongst other servicemen ( LAW - see paragraph CARDINAL above ) .

On DATE , in accordance with the verbal advice of the auditeur - militair , the designated senior officer referred the applicant for trial before ORG , while deciding that he should be kept in custody on the same grounds as before ( Articles CARDINAL , DATE and DATE , second paragraph , of LAW - see paragraph CARDINAL above ) .

ORG On DATE , the applicant was heard both by the officier - commissaris ( Article CARDINAL , first paragraph , of LAW - see paragraph CARDINAL above ) and by the auditeur - militair .

On DATE , ORG examined a request made by the auditeur - militair on DATE for the detention to be maintained ( LAW - see paragraph CARDINAL above ) . At this hearing , the applicant submitted , inter alia , that LAW ( LAW ) of the LAW had not been complied with . The ORG rejected his various arguments and , considering that the grounds for keeping him in custody were still prevailing , prolonged the detention by a DATE term .

ORG On DATE , the applicant was convicted of insubordination and sentenced by ORG to CARDINAL months’ imprisonment , the time spent in custody on remand to be deducted therefrom .

ORG The applicant then appealed to ORG .

On DATE and DATE , the applicant lodged with ORG requests to have his detention terminated , alleging , inter alia , breach of LAW and CARDINAL ( article CARDINAL , article DATE ) of LAW - see paragraph CARDINAL above ) .

ORG rejected these requests on DATE .

On DATE , ORG , substituting its own judgment for that of the trial court , upheld both the conviction and the sentence imposed .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

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

On DATE the applicant was dismissed from his job as a security guard in a private company . He sued his former employer for reinstatement , payment of wage arrears and compensation for non - pecuniary damage .

On DATE the NORP ORG of the Republic of GPE granted his claim in part and ordered his reinstatement in the job . This judgment was reversed on appeal by ORG , which remitted the case for fresh examination by the first - instance court .

On DATE the Insarskiy District Court of the Republic of GPE found the applicant ’s dismissal justified and rejected the claims in full .

The applicant filed his statement of appeal on DATE . According to him , in DATE he regularly enquired with the court secretariat about the state of proceedings in his case but was informed each time that the date of the appeal hearing had not yet been fixed .

According to the ORG , on DATE the applicant was notified about the pending appeal hearing in his case . The applicant contested that he had received any notification .

In DATE the applicant went to the court in person and found out that the appeal hearing in his case had already taken place on DATE . He learned that his claim had been dismissed at the final instance .

After that , on DATE the applicant received the appeal decision of ORG , which , inter alia , read as follows : “ At the [ appeal ] hearing PERSON maintained his claims and asked the court to grant them ” . The decision also indicated that the other party to the proceedings was present at the hearing and maintained its objections to the claim .

The RSFSR Code of Civil Procedure of CARDINAL DATE ( in force at the material time ) :

“ Parties and their representatives are to be notified with court summonses of the date and place of a court hearing or certain procedural actions ...

A summons is to be served on parties and their representatives in such a way that they have enough time to appear at a hearing and prepare their case ...

Where necessary , parties and their representatives ... may be summonsed by a phone call or a telegram . ”

“ Summonses are to be sent by mail or by courier . The time when a summons was served on an addressee is to be recorded on the summons and its copy , which is to be returned to the court ... ”

“ A summons is to be served on a person against his / her signature made on a copy of the summons , which is to be returned to the court ... ”

“ A civil case is to be heard in a court session with mandatory notification to all parties to the case ... ”

“ If a party to the case fails to appear and there is no evidence that the party was duly summonsed , the hearing is to be adjourned ... ”


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

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

In DATE criminal proceedings were instituted against T , formerly director of the A limited company , and others on suspicion of , inter alia , fraud and fraudulent conversion in connection with important public road construction works . On DATE an investigating judge at ORG ( PERSON ) , pursuant to section CARDINALa of LAW ( Strafprozessordnung ) , ordered that inter alia conversations from T ’s telephones be monitored during DATE . The investigating judge considered that the monitored telephone conversations could disclose fraudulent business connections . On DATE ORG ( Ratskammer ) at ORG authorised the telephone interception .

On DATE counsel for the A company , having joined the criminal proceedings as a private party , obtained the reports on the interception of telephone conversations between T and the applicant , then employed by the A company . On DATE , the A company decided to terminate - without notice - the applicant ’s employment , on account of a breach of trust and untrustworthiness . Subsequently , the A company , having obtained the approval of the works council ( PERSON ) , sent him a further dismissal letter , taking effect on DATE .

On DATE the applicant , represented by counsel , lodged with ORG , sitting as the labour and social court ( Arbeits- und ORG ) , an action for compensation and a declaratory judgment . The first claim concerned specific compensation claims regarding the period DATE and DATE , the second any further loss of earnings or pension rights .

ORG held hearings on DATE , CARDINAL May and DATE . In the course of these hearings , the court heard evidence from witnesses and the reports on the interception of the telephone conversations between T and the applicant , which were read out . Moreover , the parties filed several pleadings .

Meanwhile , in the context of the criminal proceedings against T , ORG , in a decision of CARDINAL DATE upon an appeal lodged by T , had ordered the investigating judge to sort out the recordings of the monitored telephone communications and only to keep material relevant to the proceedings against T or any future investigation procedure . In further appeal proceedings brought by T , ORG renewed this instruction .

On DATE a preliminary investigation was opened against the applicant , and on DATE he was questioned by an investigating judge of ORG on suspicion of having acted as an accomplice to fraudulent conversion regarding a particular product delivered by the F limited company .

On DATE the Innsbruck ORG decided to adjourn the labour proceedings pending the outcome of the criminal proceedings against the applicant . The court considered that the investigations in the criminal proceedings could disclose indications as to when the A company had known about the applicant ’s possible implication in the fraudulent transactions regarding the product delivered by the F company .

On DATE ORG ( GPE ) , upon the applicant ’s appeal , quashed ORG decision and ordered it to resume the proceedings . ORG found that the applicant could not be expected to await the outcome of possibly lengthy criminal proceedings .

In the resumed proceedings , the parties filed further memorials . A hearing was held on DATE . The parties provisionally agreed on a settlement , which was subsequently revoked by the applicant . Further hearings were held on DATE and CARDINAL DATE and on DATE .

On DATE ORG dismissed the applicant ’s action . Having regard to numerous documents , part of the criminal file against the applicant and the statements made by witnesses , as well as the director of the defendant company and the applicant , the court found that the applicant ’s dismissal had been justified .

In its judgment , the court noted in particular that the applicant had occupied a leading position in the defendant company . Following the opening of preliminary investigations against T and his dismissal , the new director of the company had partly restructured the services , including the applicant ’s functions . The applicant , who had been known as T ’s personal friend , had expressly assured his loyalty and reliability . Having been informed by the investigating authorities about a possible leak in the company , the director had issued a circular letter , dated DATE , requesting all staff not to pass on internal information to external persons , including T , and warning about disciplinary consequences . The applicant had acknowledged receipt in writing . In a further circular letter of CARDINAL DATE , staff had been reminded of this request for secrecy . The applicant had again signed an acknowledgment of receipt . The company ’s working order also set out a duty of secrecy , and warned about the possibility of dismissal without notice in case of contravention .

The court , having regard to the reports of the telephone interceptions obtained in the context of the criminal proceedings against T , found that the applicant had held CARDINAL conversations with T from his business phone and during working time . The judgment contained a transcript of these conversations . The court further noted that the defendant company 's counsel in the criminal proceedings against T had become aware of the reports on the telecommunications between the applicant and T , and had passed copies on to the company director on TIME of CARDINAL DATE . The latter had concluded that the reports revealed a serious breach of trust , account being taken of the instruction to secrecy in the circular letters . TIME , the director had informed the applicant about his dismissal for breach of trust , on account of his proven contacts with ORG dismissal had been subsequently approved by the works council .

As regards the criminal proceedings , the court also noted that in DATE the prosecutor ’s office had preferred the indictment against , inter alia , both T and the applicant . The applicant had been charged with having acted as an accomplice to fraud , namely in having manipulated the placement of important orders for road ( tunnel ) construction works .

In assessing the evidence before it , the court found that the functions previously exercised by the applicant in the defendant company had not been in dispute . The director ’s statements as regards the considerations which led to the circular letters and to the applicant ’s dismissal had been credible and conclusive .

The events and circumstances , which were the subject of the conversations between the applicant and T , were confirmed by documents and the statements of the applicant , the company director and T. As regards the reports on the telephone interceptions , the court noted that the recordings had been partly incomprehensible and the reports accordingly incomplete as regards matters which did not form part of the facts underlying its findings . The additional submissions and evidence offered were therefore irrelevant . With regard to the applicant ’s objections to the use of the reports , the court observed that the telephone interceptions had been lawfully ordered in the context of the criminal proceedings against ORG , the reports of the telephone conversations between the applicant and T had been correctly kept in the files as they were of obvious importance for any later criminal proceedings against the applicant . These lawfully obtained reports could be used as evidence in any subsequent criminal proceedings against third persons and they also constituted lawful means of evidence under LAW ) . According to the court , the reports on the telephone interceptions proved that , contrary to the director ’s clear instructions , the applicant had held CARDINAL telephone conversations with T. Referring to case - law on breach of trust within the meaning of LAW ( NORP ) , the court considered that in the context of lengthy criminal proceedings and labour court proceedings against its former director T , the defendant company had a reasonable interest in issuing instructions with a view to preventing any internal information being passed on to NORP Contrary to these instructions , the applicant had informed T about internal investigations in respect of various matters . Such conduct disclosed untrustworthiness and the defendant company could not be expected to continue the applicant ’s employment . The court dismissed the applicant ’s explanations that these conversations had not contained any relevant information or that he had contacted T in order to obtain relevant information for the exercise of his professional functions .

On DATE , following a hearing , ORG dismissed the applicant ’s appeal . As regards the applicant ’s objections regarding various factual findings , ORG considered that these findings concerning the applicant ’s professional performance were irrelevant , as the first instance decision was correct in the light of the undisputed facts . With regard to the applicant ’s legal arguments , ORG stated that , due to the circular letters issued by the director of the defendant company , the applicant had been aware that his contacts with T were prohibited and that their conversations about internal matters ran counter to the company ’s interests . ORG , having regard to several points of discussion between the applicant and T , also confirmed that the applicant ’s conduct constituted a breach of trust .

On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant ’s appeal on points of law . ORG confirmed that the lower courts had correctly applied the relevant law and referred to ORG reasoning . As regards the applicant ’s objections against the use of the reports concerning the telephone interceptions , ORG , having regard to legal writings on the use in evidence of material derived from unauthorised telephone tapping and to case - law , found that the monitoring of T ’s telephone conversations had been lawfully ordered in the context of the criminal proceedings against him . Its justification under LAW had not been in dispute . However , the lawful order of telephone interceptions did not only justify the interference with the private life of the suspected person , but extended necessarily to the interlocutor even if this person was not yet under strong suspicion of having committed a criminal offence . Thus the evidence had also been lawfully obtained with regard to the interlocutor . Accordingly , the contents of conversations publicly used in evidence in criminal proceedings could be generally used in evidence . The lower courts could therefore rely on the contents of the reports on the telephone interceptions which had been established for the purposes of the criminal proceedings . In this respect , ORG noted that the applicant had not contested the correctness of the reports .

The decision was served on DATE .

In the criminal proceedings against the applicant , the trial opened on DATE ; beforehand , the presiding judge had ordered the destruction of the reports on the telephone interceptions as they were irrelevant for the criminal proceedings . On DATE the applicant was acquitted .

B. Relevant domestic law

According to section CARDINAL of LAW , a victim of a criminal offence may join the criminal proceedings with regard to his or her civil claims as a private party ( Privatbeteiligter ) . The private party is , inter alia , entitled to have access to the files as of the pre - trial stage if there are no particular objections ( section CARDINAL(CARDINAL)(CARDINAL ) ) .

The provisions concerning secret surveillance of telephone conversations are set out in sections NORP and PERSON of LAW , in the version in force at the relevant time .

Section CARDINALa(CARDINAL ) provides that the interception and recording of telephone communications are only admissible if they can be expected to lead to the clearing up of a criminal offence committed with intent and liable to a penalty of DATE imprisonment , and if

- the person in possession of the telecommunication installation is himself strongly suspected of that offence ; or

- there are reasons to assume that the person strongly suspected of the offence resides at the address of the person in possession of the telecommunication installation or will contact him through the use of that installation , unless the latter is one of the persons referred to in section CARDINAL(CARDINAL)(CARDINAL ) ; or

- the person in possession of the installation declares his express consent .

Section CARDINALb(CARDINAL ) provides that after termination of the telephone interception the investigating judge shall inform the person in possession of the monitored telecommunication installation and the person suspected of the offence ( the accused ) of the fact that surveillance has taken place . At the same time the person in possession of the telecommunication installation shall be given the opportunity to inspect the records taken . At this inspection the person in possession of the telecommunication installation or the suspected offender ( the accused ) may request the preservation of the inspected records . If there is no such request , the investigating judge shall only keep those records on the file which could be relevant in any pending or imminent criminal proceedings . The judge shall order the destruction of all records not kept on the file .

Section CARDINAL(CARDINAL)(CARDINAL ) , to which section CARDINALa refers , states that the obligation to give evidence shall not apply , inter alia , to counsel as regards confidential information received from their clients .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

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

The applicant ’s father was a member of ORG ( ORG , hereinafter “ the ORG ” ) . He died in DATE .

The statutes of ORG of DATE ( “ the DATE statutes ” ) provided in its LAW that entitlement to membership would be based , inter alia , on the legitimate descent from a male member . In its LAW , however , the DATE statutes stated that such membership should be suspended , inter alia , in respect of married daughters for the duration of their marriage ( see also “ Relevant domestic law ” below ) . The applicant , who is married , did not upon her father ’s death in DATE apply for membership pursuant to § CARDINAL of the DATE statutes .

In DATE a woman applied for membership in the ORG after her father , being a member of the ORG , had died . Her application for membership was rejected as she had been married at the time the application for membership was lodged . She appealed and then filed a complaint with ORG . On DATE ORG held that the provision that membership of women was suspended while they were married was discriminatory on grounds of sex . It also held that , in line with its case - law , the statutes of agricultural associations did not have the legal status of an ordinance ( Verordnung ) and that ORG thus did not have the competence to review such statutes directly . As agricultural associations were public - law entities , their statutes were only binding upon an act of public law by the agricultural authorities , namely authorisation of the statutes . Thus the statutes had to be interpreted in conformity with fundamental rights and the basic principles of the LAW , such as the principle of non - discrimination . Any provisions of the statutes that were not in line with those principles would have to be treated as null and void ab initio , as provided for in LAW ( ORG ) . The agricultural authorities had thus erred when finding that the discriminatory provision , according to which membership of women was suspended for the time they were married , was valid and in force . Their decisions to that effect had thus to be set aside .

Following the decision of ORG held a general meeting and adopted , on DATE , new statutes in order to comply with ORG ruling . On DATE the new statutes were approved by ORG PERSON ) with binding effect as of DATE . The new statutes provided that the key date for defining current members under the new statute was DATE . Furthermore , whereas the right to acquire membership remained the same , the suspension of membership of female married persons had been deleted ( see “ Relevant domestic law ” below ) .

On DATE the applicant wrote a letter to the ORG in which she applied for membership . On DATE she was informed that her application for membership was refused . The reason given was that the new statutes provided that membership by way of succession could only be derived from persons who were members on the key date of CARDINAL DATE ; since the applicant ’s father had died in DATE and thus was not a member on the key date , the applicant could not derive any claim to membership from him .

Meanwhile , being represented by a lawyer , the applicant applied to ORG on DATE to have the rule on the key date set aside . ORG turned down the application on DATE . On DATE the applicant appealed to ORG ( ORG ) .

On DATE ORG decided that the applicant ( and several persons who had also challenged the statutes of the Association ) should be accepted as members of the Association . Whereas ORG found that all applicants in the proceedings had failed to submit documentary evidence that they fulfilled all further prerequisites for membership , it found it unjust to refuse membership on those formal grounds .

The ORG appealed to ORG ( Oberster Agrarsenat ) . On DATE , however ORG rejected the ORG ’s appeal .

The ORG thereafter complained to ORG , which , on DATE , set aside the decision to accept the applicant ’s membership . It held that whilst the applicant had been entitled to become a member under the old statutes which would have had to be interpreted in a non - discriminatory way , she had only applied for membership after the statutes had been changed and according to which she was not entitled to membership . The case was returned to ORG for consideration .

On DATE ORG granted the ORG ’s appeal and rejected the applicant ’s application for membership . It held that the application for membership had been made too late and that the rejection of her application was therefore justified .

The applicant complained to ORG , which on DATE refused to deal with the complaint . The applicant applied to have the case transferred to ORG .

ORG dismissed the complaint on DATE . It held that ORG was bound by ORG decision of DATE . ORG had decided in the light of that decision . ORG decision was served on the applicant ’s counsel on DATE .

ORG is situated in GPE PERSON .

ORG ( Flurverfassungsgesetz ) , governing inter alia agricultural associations , defines agricultural associations as follows :

“ § CARDINAL

( CARDINAL ) ORG agricultural association consists of the totality of the respective owners of the real - estate properties to which participation rights in a real - estate property of an agricultural association attach ( ancestral real - estate properties ) , including those persons who are entitled to person ( “ walzende ” ) shares . ”

An agricultural association has the legal status of a public - law corporation , but is not endowed with the typical sovereign competences ; it is thus not a state institution , but an association of private persons . Its tasks are to manage , cultivate , preserve and improve the property of the association . The members of the association , which are those holding shares in the association , have rights and duties vis - à - vis the other members and the property of the association . The rights of members include participation in elections and the right to use the common economic facilities and real - estate properties . The duties include payment of contributions for proper management of the association , and for the construction and maintenance of the common facilities .

A member ’s free disposition concerning their shares is largely excluded , and the transfer of ancestral real - estate properties and the transfer by legal transaction of the shares attaching to specific persons are subject to supervision by the agricultural authority .

The DATE statutes of ORG contained the following rules on membership :

“ § CARDINAL Membership

The members of ORG are those persons whose names appear on the list of members on the date of entry into force of the present statutes . ...

§ ORG of membership

Membership is acquired by means of entry in the list of members . Entitlement to entry in the list of members , provided that the conditions for actual exercise of the rights of use are met , shall be based on the following grounds :

( a ) legitimate descent from a male member ( § CARDINAL ) ...

( b ) ...

§ CARDINAL Suspension of membership

Membership shall be suspended in the case of :

( a ) NORP members who are not habitually resident in the municipality of ORG ;

( b ) members’ married daughters , for the duration of their marriage ;

§ CARDINAL Effects of suspension of membership

For the duration of suspension of membership there is no right to participate in the administration and the use of real property belonging to ORG .

§ CARDINAL Reinstatement of membership

Once the reasons for suspension of membership no longer apply , membership shall be reinstated , namely with regard to the rights of participation in administration as of the date of a written notice stating that the reasons for suspension no longer apply , and with regard to participation in use [ of property ] as of the beginning of the following calendar DATE .

After the amendment of the statutes in DATE ( “ the DATE statutes ” ) , the relevant provisions read as follows :

“ § CARDINAL Membership

The members of ORG are those persons possessing the relevant rights of use whose names , as at DATE , appeared on the ORG ’s current list of members , and persons who are admitted as members in accordance with the provisions of the present statutes .

§ ORG of membership

Membership is acquired by means of entry in the list of members . The requrements for entry in the list of members are :

a ) NORP nationality

b ) ordinary domicile at ORG

c ) maintaining one ’s own household

d ) direct descent form a member ( father / mother : son / daughter )

§ CARDINAL Suspension of membership

( a ) NORP members who are not permanently resident in ORG ;


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

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

On DATE the applicant was charged with the offence of trafficking in children and detained on remand . On DATE he was indicted before ORG ( PERSON w PERSON ) on charges of trafficking in children and inciting third parties to give false testimony .

The proceedings were terminated by the judgment of ORG of DATE , after the entry into force of LAW . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

“ CARDINAL . NORP Parties

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Violation of Art. 5-3 in that the applicant was not brought before a judge or other officer exercising judicial power;No violation of Art. 5-1 in respect of the initial period of detention;Violation of Art. 5-3 in respect of the length and lack of justification for the detention pending trial;Violation of Art. 5-1 in respect of the delay in release;Violation of Art. 5-4 in that the applicant's appeal detention was not examined speedily;Violation of Art. 5-4 in respect of refusal of access to the case file;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , who was born in DATE , was a minor at the relevant time .

On DATE he was arrested on the suspicion of having destroyed a car with the use of explosives .

On DATE of his arrest he was brought before an investigator who charged him under Article CARDINAL in conjunction with Articles CARDINAL § CARDINAL and CARDINAL of LAW . The investigator also decided to detain the applicant pending trial . This decision , which apparently was confirmed on an unspecified date by a prosecutor , only referred to LAW .

On DATE the applicant appealed to ORG in GPE requesting his release .

On DATE this request was refused on the ground that the applicant was charged with a “ serious wilful offence ” , within the meaning of LAW .

On DATE the applicant 's mother appealed to ORG against the refusal of ORG . She requested her son 's release on the ground that he needed medical supervision and possibly surgery . A copy of a medical certificate was also produced , indicating that the applicant was suffering from a tumour to his right hand which was reappearing despite CARDINAL surgical operations for its removal .

On DATE the applicant 's lawyer requested ORG ( ORG ) to order his client 's examination by a medical doctor with a view to establishing his mental state and whether or not the tumour to his hand required treatment . This request was apparently granted .

By decision of DATE ORG refused to release the applicant . The decision stated that the district prosecutor had erred in relying on LAW as the offence of which the applicant had been accused was punishable , in the case of a minor , by DATE imprisonment , and therefore LAW , which concerned “ serious wilful offences ” ( those punishable by DATE imprisonment ) was not applicable . However , it was clear from the findings of the investigation that there existed a “ prima facie ” danger of absconding , committing further offences , or obstructing the investigation , such a danger being a ground for detention pending trial under LAW of LAW .

On DATE the applicant 's lawyer submitted to ORG another request for release .

He stated that the investigation during which the applicant had fully cooperated and had made confessions , was completed , that the applicant needed medical treatment , that he was psychologically unstable which transpired from the opinion of a psychiatrist who had examined him while in detention , and that Article CARDINAL of LAW allowed pre - trial detention of minors only in exceptional circumstances .

It is unclear whether this request was examined .

On DATE the applicant 's lawyer appealed to ORG in GPE against his client 's pre - trial detention and requested a public hearing .

He relied on the arguments already raised before the prosecutors and emphasised that the provision of LAW had been disregarded . He also relied on the Convention .

On DATE the appeal was sent to ORG to complete the case file .

On DATE ORG received the completed case file , including an appeal for release that had been submitted by the applicant 's mother to ORG on DATE . ORG listed the case for a hearing on DATE .

On DATE the court adjourned the hearing to DATE , as the applicant 's lawyer had not been summoned properly . The court also ordered a medical report and appointed CARDINAL medical experts .

On DATE the applicant was brought to a hospital where he was diagnosed as suffering from pleurisy , and later from tuberculosis . He remained in hospital for an unspecified period of time and underwent intensive treatment .

On DATE the applicant 's lawyer submitted to ORG a request for the appointment of medical experts to examine whether the conditions of detention at the LOC of the investigator 's office would pose a threat to the applicant 's health . This request was granted .

On DATE the experts found that the applicant needed to stay in hospital for DATE , to be followed by a sanatorial placement . The experts concluded that a renewed detention of the applicant at the LOC of the investigator 's office in GPE , if ordered within the upcoming DATE , would put at peril the applicant 's health .

On DATE , the day before the second hearing on his appeal against detention , the applicant 's lawyer requested to consult the case file . At that time the case file was held by the judge dealing with the appeal . The judge refused .

On DATE the applicant 's lawyer repeated his request in writing . The judge refused in writing on DATE .

The hearing before ORG resumed on DATE . The applicant and his lawyer were both present . The applicant 's lawyer unsuccessfully asked for an adjournment as he had been refused access to the case file .

The judge heard the medical expert and decided to substitute the applicant 's pre - trial detention by a more lenient measure , “ parental supervision ” , in view of his medical condition .

Rejecting the applicant 's argument that his detention had been illegal from the outset , the judge stated that he had been lawfully detained . In particular , although the authorities had initially relied on LAW which was inapplicable , this defect had been remedied on DATE when the competent prosecutor had confirmed the applicant 's pre - trial detention under the pertinent rule , Article CARDINAL § CARDINAL of the Code .

Furthermore , the substantive elements justifying the applicant 's detention had existed . In particular , the nature of the offence he had been charged with was important : it was of the category of offences that imperilled the safety of the public at large .

Despite ORG decision to release the applicant from pre - trial detention and place him under “ parental supervision ” , he was not released immediately .

On DATE ORG transmitted its decision of DATE to ORG for execution .

Since the applicant was detained in LOC under the administration of ORG , the decision was thereupon transmitted to that service .

On an unspecified date the applicant 's mother signed the necessary papers regarding “ parental supervision ” .

The applicant was released on DATE .

On DATE he was found guilty and sentenced to DATE imprisonment , suspended .

At the relevant time and until the reform of DATE an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody . The investigator 's decision was subject to approval by a prosecutor .

The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG 's ORG v. GPE judgment ( [ ORG ] , no . ORG , ORG CARDINAL-II ) .

Article CARDINAL of the Code of Criminal Procedure , as in force at the relevant time , set out the legal grounds for pre - trial detention and distinguished between cases where the charges concerned a “ serious wilful offences ” and all other cases .

Under its paragraphs CARDINAL and CARDINAL , and according to the practice of ORG , Article CARDINAL required that a person charged with a serious wilful offence had to be remanded in custody . An exception was only possible where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded since , for example , the accused was seriously ill . The detainee bore the burden to prove the existence of such exceptional circumstances .

Under paragraph CARDINAL of Article CARDINAL , where the case concerned an offence which was not a “ serious offence ” , the accused could be detained pending trial only if it was established that there existed a danger of absconding , reoffending or obstructing the course of justice .

Article PERSON ) of LAW provides that a “ serious offence ” is one punishable by DATE imprisonment .

The wilful infliction of substantial damage to objects with the use of explosives is an offence under LAW in conjunction with QUANTITY of LAW which , if committed by a minor ( LAW ) of LAW ) , is punishable by DATE imprisonment .

Article CARDINAL § CARDINAL of LAW provides that minors may be remanded in custody only in exceptional circumstances . No relevant case - law under this provision is reported .

Paragraph CARDINAL(CARDINAL ) of the same provision states that a minor charged with having committed a criminal offence may be placed under “ parental supervision ” , as a measure to secure appearance before the competent authorities and prevent reoffending . In such cases , the parent must sign a declaration undertaking to supervise the minor and secure his or her appearance before the competent authority .

The Code of Criminal Procedure as in force at the relevant time did not state expressly whether a minor whose pre - trail detention was substituted by parental supervision should be detained pending the making of an undertaking by a parent .

In respect of release on bail , LAW of the PERSON stated that it was only possible after recognisance was given .

By contrast , release must be immediate upon acquittal or where a sentence without imprisonment has been pronounced ( LAW ) .


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

The applicant was born in DATE and lives in the city of GPE , GPE .

On DATE the applicant retired from his post in ORG ( hereafter “ the Police Department ” ) . Having received no redundancy pay , to which he was entitled , the applicant instituted proceedings against ORG , seeking the recovery of the debt .

On DATE the ORG awarded the applicant ORG CARDINAL,CARDINAL in redundancy pay arrears . On DATE , ORG ( hereafter “ the Court of Appeal ” ) , on ORG appeal , re - examined the case and upheld this judgment .

On DATE the ORG ( hereafter “ the Bailiffs’ Service ” ) instituted enforcement proceedings in respect of the judgment of DATE and joined the applicant ’s case to other enforcement actions against the debtor .

On DATE the Bogunsky ORG rejected the applicant ’s complaint about the GPE inactivity . The court stated that in DATE , acting in the course of the enforcement proceedings to which the applicant ’s case was subsequently joined , ORG levied ORG bank account , which revealed no funds suitable for attachment . The court found that no further actions regarding ORG account were possible in the absence of budgetary funds earmarked for such purposes . This judgment was upheld by ORG on DATE and by ORG on DATE .

On DATE the ORG , on ORG request , temporarily suspended the enforcement proceedings . On DATE ORG quashed this decision as it was taken in the applicant ’s absence and manifestly unfounded . On DATE the ORG ultimately rejected ORG request .

On DATE ORG terminated the enforcement proceedings as the judgment of DATE had been enforced in full .

The relevant domestic law is set out in the judgment of DATE in the case of PERSON v. GPE ( no . PERSON , § § CARDINAL ) .


Violations of Art. 8;Violation of Art. 6-2;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the city of PERSON .

On DATE ORG ( hereinafter ORG ) instituted criminal proceedings against the applicant for abuse of power and forgery of official documents . The prosecution ’s case was that the applicant , while acting in his capacity as a private notary , had fraudulently certified a title and real - estate transactions using invalid registration forms .

On DATE ORG issued a search warrant in respect of the applicant ’s office . The search was carried out DATE . According to the record drawn up on this occasion , the authorities seized at the office notary stamps and documents , a number of accounting records and a metal strong - box . The latter was opened on DATE at the LOC of ORG . The relevant record stated that there had been found , inter alia , personal items belonging to the applicant .

On DATE an investigator from ORG closed the applicant ’s case given the lack of any corpus delicti .

On DATE the acting ORG overruled the investigator ’s decision , as it had been proved that the applicant had committed the imputed offence , but ordered the discontinuation of proceedings due to the insignificance of the offence . The applicant challenged this finding , claiming that he had not committed any offence . On DATE the Desniansky ORG of Chernigiv ( hereafter “ the ORG ” ) rejected the applicant ’s complaint .

On DATE the ORG of ORG , in the course of supervisory proceedings , quashed the decision of ORG and remitted the case .

On DATE ORG quashed ORG ruling of DATE and ordered a further pre - trial investigation .

On DATE an investigator terminated the criminal proceedings on substantially the same grounds as in the DATE ruling . On DATE ORG quashed this decision and ordered further inquiries in the case .

On DATE the criminal case was closed due to the insignificance of the offence which had been committed . The applicant ’s complaint against this ruling was rejected on DATE by ORG as being unsubstantiated . In particular , the court indicated that the applicant ’s guilt had been proved by the evidence collected in the course of the investigation .

On DATE the ORG of Appeal ( hereafter “ the Court of Appeal ” ) quashed the decision of DATE as the local court had failed to specify the evidence in support of its opinion as to the applicant ’s guilt . The case was remitted for a fresh consideration .

On DATE ORG rejected the applicant ’s complaint against the ruling of DATE . The court indicated that the investigation case file contained sufficient evidence to establish that the applicant had forged a certain notary document and wittingly carried out an invalid notarial action . However , having regard to the insignificance of the offence , further criminal prosecution was impractical . As regards the applicant ’s submissions concerning the inadmissibility of the evidence obtained by the search of his office , the court found that such complaints could be raised during the trial on the merits and considered itself incompetent to examine them in the course of the proceedings before it .

On DATE ORG upheld this decision . On DATE ORG rejected the applicant ’s request for leave to appeal under the cassation procedure .

NORP In DATE the applicant instituted proceedings against ORG , seeking monetary compensation for the material and moral damage suffered as a result of the allegedly unlawful search of his office ( i.e. loss of or damage to personal items and the seizure of documents essential for his professional activity ) .

On DATE ORG ( hereafter “ the Novozavodsky Court ” ) granted this claim . The court declared the search of the applicant ’s office “ to have been conducted unlawfully ” ( визнати проведення обшуку незаконним ) . In particular , it established that in breach of LAW ( hereafter “ the ORG ” ) the investigator , being well aware of the applicant ’s whereabouts ( at that time he was undergoing hospital treatment ) , had failed to serve the search warrant on him . Moreover , contrary to LAW ORG , the authorities , instead of collecting the evidence relating to the criminal case , had seized all the official documents and certain personal items in the applicant ’s office . This had effectively denied the applicant the possibility of performing his professional duties until DATE , when the relevant documents and items were returned to him . The court awarded the applicant ORG CARDINAL,CARDINAL in material and UAH CARDINAL,CARDINAL in moral damages .

On DATE ORG , on an appeal by ORG , quashed the decision of CARDINAL DATE and remitted the case for fresh consideration because the legal basis for the decision ( namely the termination of the criminal proceedings on “ exonerative ” grounds ) had ceased to exist .

On DATE ORG examined the applicant ’s claim and rejected it as being unsubstantiated . The court , referring to ORG ruling of CARDINAL DATE , found that the applicant ’s case had been closed on non - exonerative grounds , within the meaning of LAW on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry , pre - trial investigation , prosecutors and courts ” DATE , and therefore the applicant had no standing to claim compensation for any acts or omissions allegedly committed by the authorities in the course of the investigation .

On DATE ORG stayed the appeal proceedings until the determination of the applicant ’s complaint against the ruling of ORG of DATE ( i.e. the grounds for the termination of his criminal case ) . On DATE the appeal proceedings were renewed and the applicant ’s appeal against the judgment of DATE was rejected .

NORP In DATE the applicant instituted proceedings in ORG against ORG and its GPE for defamation . The applicant alleged that , during ORG hearing on DATE , the Principal had made CARDINAL statements about him which were libellous and abusive , including CARDINAL rudely questioning his mental health . The applicant demanded apologies and compensation for moral damage .

During the trial , CARDINAL of the applicant ’s main arguments was that he had never suffered any mental health problems . He adduced to this effect a certificate supposedly issued by a psychiatric hospital , attesting that the applicant had never been treated there .

The case of the defence was that the Principal had never uttered the obscenities attributed to him by the applicant . However , they challenged the authenticity of the above certificate and asked the court to verify the applicant ’s assertions . On DATE this application was granted and the Chernigiv Regional Psycho - Neurological Hospital was requested to provide information as to whether the applicant had undergone any psychiatric treatment . On DATE the hospital submitted to the court a certificate to the effect that for DATE the applicant had been registered as suffering from a certain mental illness and underwent in - patient treatment in different psychiatric establishments . However , DATE his psychiatric registration had been cancelled due to long - term remission ( a temporary lessening of the severity ) of the disease . This information was read out by a judge at CARDINAL of the subsequent hearings ; however , no reference to this evidence was made in the final judgment .

On DATE ORG rejected the applicant ’s claim as unsubstantiated . The court found , inter alia , that the applicant had failed to prove that the defendant had made any remarks about his sanity .

NORP The applicant appealed , challenging , inter alia , the lawfulness of the court ’s request for information about his mental state .

On DATE ORG upheld the judgment in substance . On DATE the court issued a separate ruling to the effect that the first instance court ’s request for information concerning the applicant ’s mental health from the public hospital was contrary to Article CARDINAL of the LAW , Articles CARDINAL and CARDINAL of LAW DATE and LAW . In particular , it was indicated that information about a person ’s mental health was confidential , and its collection , retention , use and dissemination fell under a special regime . Moreover , the court held that the requested evidence had no relevance to the case .

Summing up the above considerations , ORG found that the judges of the lower courts lacked training in the field of confidential data protection and notified LOC for Judicial Studies about the need to remedy this lacuna in their training programme .

The relevant provisions of the LAW read as follows :

LAW

“ Everyone is guaranteed the inviolability of his or her home .

Entry into a home or other possessions of a person , and the examination or search thereof , shall not be permitted , other than pursuant to a reasoned court decision .

In urgent cases related to the preservation of human life and property or to the direct pursuit of persons suspected of committing a crime , another procedure established by law is possible for entry into a home or other possessions of a person , and for the examination and search thereof .

Article CARDINAL

No one shall be subject to interference in his or her personal and family life , except in cases envisaged by LAW .

The collection , retention , use and dissemination of confidential information about a person without his or her consent shall not be permitted , except in cases determined by law , and only in the interests of national security , economic welfare and human rights ... ”

Article CARDINAL of the Code enumerates the reasons for the termination of criminal proceedings , including the absence of any corpus delicti . Article CARDINAL of the LAW provides that the case can be closed on the ground of the insignificance of an offence which had been committed .

LAW CARDINAL of the LAW provides that the trial court acquits the defendant in the following cases :

if the event of the crime has not been established ;

if the defendant ’s actions do not constitute any corpus delicti ;

if there is a lack of evidence that the defendant was involved in the offence .

The same grounds , called the “ exonerating circumstances ” ( реабілітуючи обставини ) constitute a basis for compensation for unlawful prosecution ( see paragraph CARDINAL below ) . The remainder of the grounds for the termination of criminal proceedings , set out in Articles CARDINAL , CARDINAL and CARDINAL - CARDINAL of the LAW ( including the insignificance of an offence ) are called “ non - exonerating circumstances ” ( нереабілітуючи обставини ) and do not give rise to a right for compensation for any alleged wrongs committed by the authorities during the investigation .

Article CARDINAL of the Code provides that , on completion of the investigation , the investigator either draws up an indictment or terminates the case .

According to LAW the case can be closed by the investigator on both exonerating and non - exonerating grounds .

Article CARDINAL § CARDINAL of the Code empowers the prosecutor to quash any investigator ’s decision and to give binding instructions to the investigating authorities if he / she finds that the proceedings were conducted contrary to the procedural or sustentative law . However , the prosecutor does not have power to award any damages to a defendant for the established wrongdoing on the part of the investigating authorities .

The relevant provisions of the LAW provide as follows :

Article CARDINAL

“ The search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept in certain LOC .

Article CARDINAL

At the beginning of a search the investigator shall provide the [ search ] warrant to persons who occupy the LOC ... and shall propose to them to produce the items or documents specified in the warrant ... If they refuse to do so , the investigator shall carry out the compulsory search .

... When conducting the search the investigator shall have the right to open locked LOC if the occupier refuses to open them . The investigator , however , shall avoid inflicting unnecessary damage to doors , locks and other property ...

Article CARDINAL

During the search ... there shall be seized only those documents and items which are important for the case , as well as property of the accused or defendant in order to secure civil claim or possible confiscation . Items and documents , removed by law from circulation , shall be seized irrespective of their relation to the case .

Article CARDINAL

The complaint in respect of the decision [ ruling ] of the body of inquiry , investigator or the prosecutor to terminate the criminal case is examined by the judge within DATE .

The judge requests the case file , studies it and , if necessary , hears the person who lodged the complaint .

... Having examined the complaint , the judge , depending on whether ORG and CARDINAL of this Code have been complied with , takes CARDINAL of the following decisions :

CARDINAL ) dismisses the complaint ;

CARDINAL ) quashes the ruling ... and remits the case for further investigation . ”

Article CARDINAL of the Code provides :

Hearings in all courts shall be public except when this conflicts with interests of the protection of the ORG or another secret protected by law .

The in camera consideration of the case can also be ordered by the reasoned decision of the court with a view to preventing the dissemination of data relating to the intimate details of the life of the persons who participate in the hearing .

In the in camera hearing participate the parties and their representatives ... and , if necessary , witnesses , experts and translators .

The in camera hearing is conducted in accordance with all procedural rules . The judgments in all cases are pronounced publicly .

The relevant provisions of the Act provide :

Article CARDINAL

“ Personal information is a complex of documented or publicly acclaimed data about a person .

The main personal data are ... state of health

The sources of the documented personal information are the documents issued on the person ’s request , signed by him or her , as well as data about a person collected by the ORG and municipal authorities , acting within their competence .

The collection of data about a person without his or her permission is prohibited except in accordance with law .

DATE

The ORG authorities and organisations , municipal and local authorities whose information system , retain data about citizens are obliged to ensure that they have an unrestricted access to this information , except in accordance with law , as well as to undertake to secure it from the unauthorised access .

The access of unauthorised persons to information about another person , collected in accordance with law by the ORG authorities , organisations and officials is prohibited .

... The necessary amount of data about citizens that can be lawfully received should be strictly limited and can be used only for lawful ends .

Article CARDINAL

The following official documents are exempt from the general rule of obligatory provision on the information requests :

... confidential information ;

... information that concerns private life of citizens . ”

Article CARDINAL of the Act insofar as relevant provides as follows :

“ Members of medical staff ... who in connection with their work or studies became aware about a person ’s mental disorder , his or her request for psychiatric aid or treatment in psychiatric establishments ... as well as other information concerning the mental state of a person , his or her private life , can not disclose this information except in accordance with ... this Article .

... Disclosure of information concerning the state of a person ’s mental health and provision to him or her of psychiatric aid can take place without the person ’s consent if :

... CARDINAL ) it is important for an inquiry , pre - trial investigation or trial , on a written request from ... a judge .

The documents that comprise information concerning the state of a person ’s mental health and provision to him or her of psychiatric aid must be stored in compliance with requirements which secure the confidentiality of this information . The provision of the originals of these documents and the making of copies can be carried out only in accordance with law . ”

The relevant extract of the PERSON provides :

Article CARDINAL

“ The right to compensation for damages in the amount and in accordance with the procedure established by this PERSON shall arise in the cases of :

- acquittal by a court ;

- termination of a criminal case on grounds of an absence of event of a crime , absence of corpus delicti , or lack of evidence of the accused ’s participation in the commission of the crime . ”


Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant , Mr PERSON , is a NORP national , who was born in DATE . He is currently serving a sentence in the LOC T - Type Prison .

On DATE the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation , namely the ORG .

On DATE the applicant was placed in detention pending trial .

On DATE he was convicted of attempting to undermine the constitutional order under LAW of the former LAW . On DATE ORG upheld his conviction .

At the time of the events giving rise to this application , the applicant was being held in detention at ORG , first pending his trial , subsequently as a convict .

The applicant suffers from diabetes mellitus type-CARDINAL ( formerly called noninsulin dependent diabetes ) .

On an unspecified date in DATE , the prison doctor at the Diyarbakır High - Security Prison referred the applicant to a hospital for what appeared to be routine medical controls in relation to his diabetes . The prison authorities’ initial attempt to escort him to the hospital as instructed was turned down by the applicant on the ground that the relevant tests needed to be done on an empty stomach . He therefore asked the authorities to delay his transfer to the hospital until TIME .

On DATE , when the applicant had still not been taken to the hospital despite what he alleged to be a DATE lapse since the referral by the prison doctor , he submitted a complaint to ORG ( infaz hakimliği ) against the prison authorities , whom he accused of neglecting his health and treatment .

On DATE he was taken to ORG for his medical consultation . The applicant has not submitted a copy of the examination report .

After reviewing the applicant ’s medical file , on DATE the Enforcement Judge confirmed that the applicant had been undergoing regular treatment for his type-CARDINAL diabetes ; that he had been prescribed antidiabetic medication and been provided with a glucose measurement kit to monitor regularly his glucose levels while in the prison ; and that he had been referred to the hospital at the discretion of the prison doctor despite the absence of a request from the specialist at the hospital for such control . He added that in any event , the applicant had been taken to the hospital on CARDINAL and DATE for his controls and concluded that there had been no negligence in the provision of medical treatment to the applicant . He also ordered that a copy of the applicant ’s complaint be sent to ORG for an assessment on whether any criminal liability arose on the facts .

On DATE ORG rejected the applicant ’s objection to the decision of the Enforcement Judge and similarly referred the matter to ORG .

On DATE ORG decided not to bring a prosecution against the relevant prison authorities , on the grounds of lack of evidence indicating neglect . On DATE PERSON upheld the public prosecutor ’s decision .

According to the documents in the case - file , the applicant also suffered from a neuropathic condition , manifesting itself as intermittent numbness in his right leg , for which he was prescribed medication by a neurologist on DATE . It is not clear from the information available whether this condition was related to his type-CARDINAL diabetes .

On DATE the applicant was taken to ORG for a neurological consultation . Upon reviewing the GPE scan and PERSON of his head , the neurologist who examined the applicant recommended that he also see a neurosurgeon . There is no copy of the neurologist ’s examination report in the case - file . While at the hospital , the applicant also consulted a specialist in internal medicine , who told him to continue with his medication and diet and requested to see him again in DATE . He did not , however , see a neurosurgeon at the hospital on DATE .

On DATE the applicant lodged a complaint with the ORG Judge against the prison authorities whom he accused of delaying his neurosurgical examination despite his earlier referral by the neurologist .

On DATE the applicant was examined at ORG by a neurosurgeon , who recommended the placement of fibreboard under his mattress . It appears from the report in the case - file that the neurosurgeon did not make a new diagnosis or recommend a different course of treatment .

On DATE the Diyarbakır Enforcement Judge held that since the applicant had already been examined by a neurosurgeon on DATE , there was no need to take a further decision on his claim . The judge , however , forwarded the applicant ’s complaint to ORG for a review of his allegations . No further information has been provided to the ORG as to any decisions taken by the public prosecutor in this regard .

According to the medical reports in the file dated DATE , CARDINAL DATE and DATE , the applicant was deemed capable of measuring and monitoring his own blood glucose levels with his glucose measurement kit . Furthermore , it appears from the report dated DATE , issued by an endocrinologist , that the applicant was prescribed rapid acting insulin ( CARDINAL units in the morning and CARDINAL units in the evening ) , by injection with an insulin pen , to complement his anti - diabetic drugs in minimising the rise in his blood sugar following meals . The categorisation of his diabetes as type-CARDINAL , however , remained unchanged .

In the meantime , on DATE the applicant filed another complaint with ORG . He argued that despite his documented medical condition , the food that he was given in the prison did not comply with the recommended diabetic diet . He therefore requested authorisation to purchase a stove to cook his own food or , alternatively , demanded the provision of separate diet food to meet his specific needs .

On DATE , the prison management submitted a letter to ORG , explaining that in view of the limited budget , they did not have the means to offer individualised dietary programmes to prisoners . However , the meal programme at the prison was being prepared in consultation with the prison doctor , taking also into account the needs of the inmates with special dietary requirements ( who were CARDINAL out of a total of CARDINAL ) . In cases where a particular meal was not appropriate for their consumption , suitable alternatives were being provided for the persons concerned ; the prison canteen was also available to all inmates , who could moreover store food in the refrigerators provided in their cells . They submitted a sample DATE diet menu in support of their arguments .

Having regard to the information provided by the prison management , the applicant ’s medical reports and the dietary plan prepared by ORG for patients with diabetes , the ORG Judge decided on DATE to dismiss the applicant ’s request for an individualised meal plan . On DATE ORG rejected the applicant ’s objection to the Enforcement Judge ’s decision .

While serving his prison sentence the applicant enrolled in ORG at ORG ( distance learning courses ) .

On an unspecified date , the applicant requested authorisation from the prison management to obtain , with his own means , an “ MPCARDINAL player ” , a portable media player , to study LANGUAGE through listening to recorded language courses , which he claimed was essential for his international relations courses .

On DATE ORG ( “ the ORG ” ) refused the applicant ’s request , on the grounds that ORG players were not listed amongst the goods and devices authorised in prisons under the relevant regulation . The applicant was informed that he could object to this decision before the Enforcement Judge , which he did .

On DATE the ORG dismissed the applicant ’s request on the same grounds as ORG and on DATE ORG upheld this decision .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award

PERSON is a dairy constituted as an agricultural association under GPE law . Its registered office is at GPE .

ORG Following the introduction of the " milk quota " system in the member LAW by ORG . DATE of DATE , GPE adopted , in a grand - ducal regulation of DATE , the provisions incorporating the ORG rules into domestic law . A number of ministerial orders were issued on DATE allocating reference quantities for milk purchases ( i.e. the quantities in excess of which an additional levy would be payable ) to the CARDINAL milk purchasers in LOC , that is to say the dairies purchasing milk from producers - including the applicant association ; the quantities were based on the figures for milk collected in DATE .

ORG The applicant association and CARDINAL other milk purchasers appealed to ORG of the ORG d'Etat against the decisions fixing the reference quantities . In accordance with LAW establishing ORG ( " the ORG treaty " ) , that court referred a number of questions to ORG of ORG ( " the Court of Justice " ) for a preliminary ruling , which was given in a judgment of CARDINAL DATE .

ORG In the light of the answers given by ORG , the PERSON d'Etat held , in a judgment of CARDINAL DATE , that the choice of DATE as DATE had led to discrimination between purchasers , contrary to Article CARDINAL para . CARDINAL of the ORG treaty . The impugned decisions were accordingly set aside and the case was referred to the Minister of ORG for a fairer apportionment of the reference quantities among the CARDINAL dairies in GPE by means of a grand - ducal regulation .

ORG On DATE the Minister of ORG submitted a new draft grand - ducal regulation under which the reference quantities were to be allocated to the CARDINAL milk purchasers on the basis of the milk deliveries made to them in DATE . In order to meet GPE 's obligations under Community law , it was proposed in the draft regulation to make the new reference quantity system applicable not only in the future but also retrospectively to previous milk - production years , with effect from DATE . The draft regulation was submitted to the ORG d'Etat for an opinion .

ORG In a letter of CARDINAL DATE the President of the ORG d'Etat drew the Prime Minister 's attention to the fact that such rules could be given retrospective effect only through legislation and not by means of a regulation .

ORG At the close of its deliberations of CARDINAL DATE the ORG d'Etat proposed certain amendments and a single - clause bill giving the future regulation retrospective effect from DATE , the date on which the milk - quota system had come into force in the ORG countries .

ORG With certain amendments , the Minister of ORG 's draft regulation of CARDINAL DATE became ORG of DATE and the bill drafted by the ORG d'Etat on DATE became the LAW DATE , which made this regulation applicable with retrospective effect to " the DATE periods of application of the additional levy on milk commencing respectively on DATE , DATE and DATE " . For these periods , paragraph CARDINAL of the single section of the LAW provided : " Purchasers ' reference quantities shall be reallocated on the basis of the provisions of LAW of DATE referred to above , and the basic and supplementary individual reference quantities shall be recalculated on the basis of the relevant provisions of the same regulation . "

ORG On DATE the Minister of ORG issued CARDINAL ministerial orders fixing the applicant association 's milk quantities for each of the CARDINAL milk - production years between DATE and CARDINAL DATE .

ORG On DATE CARDINAL PERSON applied to ORG of the ORG d'Etat for judicial review of each of those CARDINAL orders on the grounds that they adversely affected the association and its suppliers because its reference quantities for the milk - production years in question were too low . In its pleadings , in addition to raising a number of grounds of appeal alleging the unlawfulness of the Grand - Ducal Regulation of DATE and breaches of several of its provisions , the applicant association criticised its retrospective application to milk - production years before the CARDINAL which had begun on DATE . In the alternative , it asked ORG to refer a number of questions to ORG for preliminary rulings , including CARDINAL concerning the principle of non - retrospective application .

ORG In a judgment of DATE ORG dismissed the applications in the following terms :

" While it is true that as a general rule a statute makes provision only for the future , it is open to the legislature to give retrospective effect to a statute , in so far as this is not prohibited under LAW . GPE was required to fill the legal vacuum created by ORG judgment of CARDINAL DATE quashing the regulation , otherwise it would have been in breach of its binding obligations under LAW .

Under LAW of that treaty , Community regulations are directly applicable . Consequently , GPE was obliged to legislate on the matter of milk levies for the periods from DATE to CARDINAL DATE , and only ORG , which had the approval of the ORG authorities , had the power to do so .

At all events , the penalties attaching to any failure on the part of purchasers to comply with the quantities during the first , second and third periods are no higher than those which would have been payable under the previous legislation . The difference , amounting to MONEY ] , is to be borne by the ORG , with the agreement of the ORG authorities , so that the retrospective effect of the milk quantities , far from causing the applicant association prejudice , is in fact beneficial to it .

A plea of unlawfulness can not succeed against a statute and this ground must accordingly fail ... "

CARDINAL of the CARDINAL members of ORG had previously taken part in drawing up the PERSON d'Etat 's opinion on the draft regulation and in framing the bill in issue .

ORG In order to regulate and stabilise the market in milk and milk products , which was characterised by overproduction , ORG Nos . CARDINAL/CARDINAL and CARDINAL of DATE . These established in the ORG member States , for a DATE period commencing on DATE , a system of additional levies on all milk delivered in excess of a guaranteed quantity , also known as the " reference quantity " .

Each member ORG was allocated a total reference quantity which it then had to apportion among milk producers , under PERSON , or milk purchasers ( dairies ) under PERSON The reference quantities for purchasers and producers were determined on the basis of the deliveries they took or their production in DATE , DATE or DATE , weighted by a certain percentage fixed in such a way as not to exceed the guaranteed quantity .

The additional levy , which was set at a certain percentage of the target price for milk , was payable by producers or purchasers , as appropriate , on all milk produced or collected in excess of the reference quantity . Where a member ORG chose PERSON , purchasers were to pass on the cost of the additional levy only to those producers who had delivered a quantity of milk exceeding their quota .

ORG GPE opted for PERSON , and the measures for implementing the ORG rules were laid down in a grand - ducal regulation of DATE and a number of ministerial orders of DATE ( see paragraph CARDINAL above ) .

ORG At the time when the judgment complained of by the applicant association was given , the second and third paragraphs of LAW of LAW , which govern the subject , provided :

" In addition to the Government there shall be a ORG , whose functions shall be to deliberate on draft legislation and any amendments proposed thereto , determine administrative disputes and give its opinion on any other question referred to it either by the Grand Duke or pursuant to a statutory provision . The organisation of this ORG and the manner in which it is to perform its functions shall be laid down by statute . "

The Act of DATE , as amended on DATE , laid down the organisation of the ORG d'Etat . LAW provides :

" The ORG d'Etat shall be composed of CARDINAL councillors , CARDINAL of whom shall form ORG .

The latter figure shall not include those members of ORG who form part of the ORG d'Etat . "

The LAW does not distinguish between the ORG and the ORG d'Etat proper with regard to the appointment of the PERSON d'Etat 's members ( section CARDINAL ) . The members are all appointed by the Grand Duke , who chooses them either directly or from a list of candidates put forward by ORG or the ORG d'Etat itself .

The members of ORG are chosen from among the members of the ORG d'Etat ( section CARDINAL ) .

Section CARDINAL lays down the qualifying conditions for becoming a member of the ORG d'Etat . The same qualifying conditions apply to ORG , except that its members must also be doctors of law or enjoy the rights appertaining to that title .

The duties of a member of the ORG d'Etat are not full - time and are incompatible only with serving as a member of the ORG , a Government adviser or a member of ORG . LAW ( CARDINAL ) provides : " Members of ORG may not take part in the deliberations on cases which they have already dealt with in some other capacity than as member of the ORG d'Etat . " It thus implies that a councillor who has already had to deal with a case as a member of the PERSON d'Etat is not prevented from dealing with the same case if it comes before ORG .

ORG In principle , the term of office of a member of the PERSON d'Etat ends only when he reaches the age - limit , which is at present DATE .

ORG The PERSON d'Etat has mainly advisory and judicial functions ( sections CARDINAL and CARDINAL) .

ORG With regard to its advisory functions ( section CARDINAL ) , the PERSON d'Etat gives its opinion on all Government and private members ' bills , draft regulations on general administrative matters , and draft regulations or orders required for the implementation of treaties .

ORG As a judicial body , the PERSON d'Etat , acting through its ORG , is the court of first and last instance in administrative proceedings . Its judicial powers are restricted in CARDINAL respects . Firstly , it can only review the lawfulness of individual administrative decisions , not general regulatory decisions ; secondly , except where there is an express statutory provision to the contrary ( section CARDINAL ) , the only remedy available against these decisions is judicial review on the grounds of lack of competence , ultra vires , abuse of authority or breaches of the substantive or procedural rules protecting private interests ( section CARDINAL ) .

ORG In DATE LAW was amended . A bill at present before ORG is intended to bring about a radical reform of this whole question , the aim being to separate the ORG d'Etat 's advisory and judicial functions .