Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-5;Not necessary to examine Art. 13;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant , PERSON , is a NORP national born in DATE . He resides in GPE . At the relevant time , he was a soldier with the regular forces of the NORP army .

Prior to the events in question , the applicant went absent without leave from his unit in GPE CARDINAL times . Prior to his third absence , he had been remanded for trial by court martial on an assault charge ( later abandoned ) , he remained absent for CARDINAL years and he gave himself up to the civilian police in DATE .

On DATE the applicant did not return after CARDINAL GPE leave ( his fourth absence without leave ) . On DATE he was arrested at his home by the civilian police and on DATE he was taken by army escort to FAC . Before the ORG , the parties disputed whether the applicant was then brought before his commanding officer on CARDINAL DATE pursuant to LAW ) DATE ( see paragraph CARDINAL below ) .

The applicant remained in close arrest until his court martial . He was detained in a cell in a guardroom under the supervision of a guard apart from certain occasions when he was taken to hospital for psychiatric care .

NORP In or about DATE the applicant was informed that he would have to appear before the unit adjutant after DATE . He retained a solicitor prior to DATE , who advised him until DATE . On DATE the applicant appeared before the unit adjutant and was given the abstract of evidence . He was told that he should read the abstract and check that it was accurate . The applicant was cautioned pursuant to Rule CARDINAL of the Rules of Procedure ( ORG ) DATE ( see paragraph CARDINAL below ) .

Acting on his original solicitor ’s advice , the applicant prepared his own statement and obtained a statement from his girlfriend , which statements were completed on CARDINAL and DATE respectively . The applicant submitted both statements to the adjutant on DATE , which statements were then attached to the abstract of evidence . The applicant was then remanded for trial by court martial by his commanding officer and he applied for legal aid from the military authorities . The charge sheet , dated DATE and signed by his commanding officer and on behalf of the convening officer , recorded CARDINAL charges of absence without leave and CARDINAL of desertion contrary to the Army Act DATE .

Although the applicant instructed his present solicitor in DATE , the latter did not commence work for the applicant until legal aid was granted by ORG by letter dated DATE .

By notice dated DATE a district court martial was convened to try the applicant on the charges . The court martial took place on CARDINAL and DATE . The assistant prosecuting officer was the unit adjutant . The applicant , who was legally represented , pleaded not guilty .

During the court - martial hearing , the applicant ’s solicitor challenged ( under section CARDINAL of ORG ) the admission into evidence of the statements of the applicant and his girlfriend . The judge advocate ( having heard evidence from the unit adjutant and the applicant ’s representative ) found that LAW ORG ) DATE had been followed . Given the applicant ’s legal representation at the relevant time and the procedures followed , the judge advocate could not see “ how a fairer situation could have arisen ” and , accordingly , he rejected the applicant ’s challenge . The judge advocate also clarified during the court martial that “ we can take it as an agreed fact that the adjutant or the assistant adjutant will either be the prosecuting or assistant prosecuting officer in any court martial ” . The applicant was convicted on the CARDINAL charges of absence without leave and on CARDINAL of the charges of desertion , and the remaining charge of desertion was reduced to CARDINAL of “ absent without leave ” . He was sentenced to be imprisoned for DATE and to be dismissed from the service , the sentence expressly taking account of the period of close arrest immediately preceding the court martial .

After confirmation and promulgation of the conviction and sentence , the applicant petitioned the ORG . By letter dated CARDINAL DATE the applicant was informed that his petition to ORG had been rejected . His leave application to the single judge of ORG was rejected on DATE and his further appeal to the full ORG was also refused on DATE .

DATE of the applicant ’s detention fell on or around DATE . Accordingly , and pursuant to LAW ) DATE and paragraph CARDINAL.CARDINAL(c ) of ORG ( see paragraphs CARDINAL and CARDINAL below ) , a direction from the convening officer was completed on DATE attaching an authorisation from the Commander in Chief , the latter of whom directed the applicant ’s continued detention “ to prevent him absconding ” before trial ( “ the delay report ” ) .

Having requested a copy of the delay report and informed the authorities of his intention to apply for a writ of habeas corpus , the applicant ’s solicitor issued those proceedings on CARDINAL DATE challenging mainly the regularity of the delay report . That report was received by the applicant ’s solicitor on DATE , following which further submissions were made to ORG .

On DATE ORG rejected the application . The court found , inter alia , that the delay report had been properly completed in a timely fashion . It noted that the expressed reason for the applicant ’s continued detention was to prevent his absconding and found that “ perfectly understandable ” given the charges against him .

At the relevant time the provisions governing the detention and trial of members of the army were contained in the Army Act DATE ( “ the DATE LAW ) , in the Rules of Procedure ( Army ) DATE ( “ the DATE LAW ) and in FAC for the ORG DATE ( “ the LAW ” ) .

NORP Since the applicant ’s court martial , the law has been amended by , inter alia , LAW ( see the GPE v. the GPE judgment of DATE , Reports of Judgments and ORG , p. CARDINAL , § § CARDINAL ) and by the Investigation and Summary Dealing ( Army ) Regulations DATE ( “ the DATE Regulations ” ) . The provisions detailed below are those applicable at the time of the applicant ’s arrest , detention and court martial .

A warrant for the arrest of a person subject to military law and considered to have deserted or to be absent without leave may be issued by the commanding officer and any such warrant must be addressed to the civilian police . A person arrested pursuant to that warrant must be handed over as soon as is practicable to the military ( section CARDINALA of the DATE Act ) .

The relevant rules vary depending on whether the accused is a non - commissioned officer or soldier or , on the other hand , an officer or warrant officer . In the former case ( described below ) , the commanding officer ’s powers are generally broader as regards the investigation and pursuit of charges against an accused .

Desertion and absence without leave constitute offences under LAW . The punishment for the offence of desertion is imprisonment for an unlimited term ( subject to the sentencing power of the court martial in question ) and that for absence without leave is imprisonment for a maximum of DATE .

Section CARDINAL of the CARDINAL LAW provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and that as soon as may be , either proceedings shall be taken for punishing the offence or he shall be released from arrest . In addition , should that detention DATE without a court martial being convened , a report ( a “ delay report ” ) on the necessity for further delay shall be made by the person ’s commanding officer to the prescribed authority in the prescribed manner and a similar report shall be made to the same authority and in the same manner DATE until a court martial is assembled or the offence is dealt with summarily or the accused is released from detention .

Any allegation that the person subject to military law has committed an offence under LAW must be reported in the form of a charge to that person ’s commanding officer and , before any action is taken , the commanding officer must investigate the charge ( section DATE ) .

After investigation , a charge ( which can not be dealt with summarily ) may be dismissed by a commanding officer if he is of the opinion that it ought not to be proceeded with . Moreover , if it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be , and in the interests of the better administration of justice ought to be , taken against the accused otherwise than under LAW , the commanding officer may stay further proceedings ( sections CARDINAL and ORG ) .

If the commanding officer has not stayed the charge and if the charge is not one which can be dealt with summarily and it has not been dismissed or if it is a charge which can be dealt with summarily but the commanding officer is of the opinion that it should not be so dealt with , he shall take the “ prescribed steps ” with a view to the charge being tried by court martial ( section DATE ) and ( CARDINAL ) ) . Dealing summarily with a charge includes taking evidence , reducing it to writing , deciding as to the guilt or innocence of the accused and rendering sentence ( section CARDINAL ) ) . However , where the commanding officer has taken steps to have the charge tried by court martial , any higher authority to whom the case is forwarded may refer the charge back to the commanding officer to be tried summarily if the charge is CARDINAL that can be dealt with summarily ( section CARDINAL(CARDINAL ) ) or with a direction to dismiss the charge or to stay all further proceedings therein .

Rule CARDINAL of the DATE Rules provides that when a person is detained by a military authority , his commanding officer shall , unless it is impracticable , within TIME of becoming aware that he is so detained have such person brought before him , inform him of the charge against him and begin to investigate it . If the investigation has not begun within TIME , the commanding officer must report the case to a higher authority together with the reasons for the delay in commencing the investigation ( Rule CARDINAL(CARDINAL ) ) .

NORP The report to which CARDINAL of the DATE Act refers shall be signed by the commanding officer of the person detained and shall be sent to the person who would be responsible for convening the court martial ( Rule CARDINAL ) . According to Schedule CARDINAL to the DATE Rules the report must , inter alia , specify whether the accused is in close or open arrest , the reasons for his detention , certain details about the progress of the investigations and of the preparation for trial together with the reasons for the delay since the last report .

The accused shall not be held in arrest for CARDINAL consecutive days without a court martial having been convened unless the convening officer directs in writing , citing reasons , that the accused shall not be released from detention ( Rule CARDINAL ) .

Rule CARDINAL(CARDINAL ) provides that an abstract of evidence shall be made by the commanding officer or by another officer on the direction of the commanding officer . The accused shall not be present while the abstract of evidence is being made and it shall consist of a signed statement by , or a précis of the evidence of , each witness whose evidence is necessary to prove the charge . Once compiled , the accused is given ( normally by the officer who compiled the abstract ) a copy and the accused is cautioned as follows :

“ This is a copy of the abstract of evidence in your case ; you are not obliged to say anything with regard to it unless you wish to do so , but you should read it and , when you have read it , if you wish to say anything , what you say will be taken down in writing and may be given in evidence . ” ( Rule PERSON ) of the DATE Rules )

Statements submitted by the accused ( including those of witnesses which he wishes to be included in the abstract ) shall be attached to the abstract of evidence and shall thereafter form part of it ( Rule CARDINAL(CARDINAL ) ) . The pamphlet entitled “ Rights of a Soldier ” ( which is given to accused persons and which is available in the cells in the guardroom ) describes the purpose of the extract of evidence as , inter alia , to “ provide a brief for the prosecutor at trial ” and to inform the accused of the evidence which will be given at trial .

The prescribed steps to be taken by a commanding officer for sending a case for trial by court martial include , in accordance with LAW , sending to higher authority a draft charge sheet ( signed by the commanding officer ) , the abstract of evidence , a statement of character together with the service record of the accused and a recommendation as to how the charge should be proceeded with ( for example , by district or general court martial ) . It is the convening officer who finally decides on the charges to be retained against an accused and he generally does so by countersigning the draft charge sheet submitted by the commanding officer .

Paragraph CARDINAL.CARDINAL of LAW states that the mere allegation that a person subject to military law has committed an offence does not , of itself , necessarily warrant placing that person under arrest of any description . If the offence is trivial , the offender is to be informed of the charge and required to report to the unit orderly room at a specific date and time . If arrest is necessary , the category of arrest is to be determined in the interests of the service and by the nature of the alleged offence . Generally , a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline .

The circumstances which would warrant placing an accused under close arrest include those where the accused is deliberately trying to undermine discipline , is likely to injure himself or others or is likely to suborn witnesses ; where he has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself ; and where , having regard to the nature or prevalence of the alleged offence which is under investigation , it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades ( also paragraph CARDINAL ) .

Paragraph CARDINAL.CARDINAL provides that ( subject to , inter alia , the general principle that the accused is not to be unnecessarily held under arrest ) commanding officers are responsible for ensuring that in each case the need to keep an accused under arrest , together with the form of that arrest , is kept under constant review . As necessary , the form of arrest may be changed or the accused released .

Paragraph CARDINAL ) provides that the person into whose custody the accused is committed is to inform the accused of the rank , name and unit of the person by whom he is alleged to have committed the offence and the nature of the allegation . Paragraph CARDINAL provides that a charge preferred against an officer or soldier is to be dealt with at the earliest opportunity . Accordingly , it is provided , inter alia , that on the receipt of every delay report the convening officer is to satisfy himself ( if the accused is in detention ) as to the necessity of the ongoing detention ( subsections ( a ) and ( b ) ) . On receipt of the fourth delay report , or , in any event , after CARDINAL days’ detention , the convening officer is to make a special report to his / her superior officer outlining the reasons for the delay , when it is expected the accused will be brought to trial and the reasons for the continued detention ( subsection ( c ) ) . If an accused is not brought to trial by DATE , the latter superior officer must , in turn , make a special report to the Commander in Chief by DATE ( subsection ( d ) ) . On receipt of such special reports , the superior officer and Commander in Chief mentioned are to take all practical steps to expedite the trial of the accused ( subsection ( e ) ) .

Where an accused has been in detention for DATE without a court martial being convened , a direction in accordance with Rule CARDINAL of the DATE Rules not to release the accused can only be given with the prior approval of the Commander in Chief . This report is to contain the reasons for the delay , when it is expected the accused will be brought to trial and the reasons for the continued detention ( paragraph CARDINAL.CARDINAL(f ) ) . Delay reports are not , as a rule , copied to the accused or his representative .

Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful . Jurisdiction is normally exercised by ORG of ORG and habeas corpus is available to persons in military custody ( NORP v. ORG Colchester , ex parte PERSON [ DATE ] CARDINAL All England Law Reports at p. CARDINAL ) .

The scope of this review will depend on the context of the particular case and , where appropriate , the terms of the relevant statute under which the power of detention is exercised . However , the court will examine the legal validity of an accused ’s detention and whether there is sufficient evidence to detain him , and , if the power to detain depends on the prior establishment of an objective fact , the court will decide whether that fact exists ( PERSON v. Secretary of ORG for ORG [ DATE ] Appeal Cases at p. CARDINAL ) .

Legal aid is not available from the military authorities for applications to the civilian courts , including applications for writs of habeas corpus . However , legal aid from the civilian authorities is available for such proceedings . A person will not be granted representation for the purposes of any such proceedings unless it is considered that there are reasonable grounds for taking , defending or being a party to proceedings ( section CARDINAL(CARDINAL ) of LAW DATE ) . Such an application for legal aid will only be approved after all the questions of fact or law arising in the action , cause or matter to which the application relates , and all the circumstances in which the application was made , have been considered ( ORG ( General ) Regulations DATE ) .

An application for an emergency legal aid certificate can be made pursuant to ORG DATE . The information furnished must be such as to allow the area director to decide the nature of the relevant proceedings , the circumstances in which it is required , whether the application is likely to fulfil the conditions under which legal aid may be granted and whether it is in the interests of justice that the applicant should as a matter of urgency be granted legal aid .

The relevant provisions of the DATE Act relating to general courts martial are set out in the above - mentioned GPE judgment ( at pp . CARDINAL - CARDINAL , § § DATE ) . These provisions ( summarised at paragraph CARDINAL below ) apply equally to a district court martial with certain relevant differences . A district court martial comprises a president and a minimum of CARDINAL other officers and the minimum rank of those members is lower than for a general court martial .

Central to the court - martial system under LAW was the role of the “ convening officer ” . This officer ( who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving ) assumed responsibility for every case to be tried by court martial . That officer had the final decision on the nature and detail of the charges to be brought and the type of court martial required , and was responsible for convening the court martial .

The convening officer would draw up a convening order , which would specify , inter alia , the date , place and time of the trial , the name of the president and the details of the other members , all of whom he could appoint . Failing the appointment of a judge advocate by the Judge Advocate General ’s Office , the convening officer could appoint CARDINAL . He also appointed , or directed a commanding officer to appoint , the prosecuting officer .

Prior to the hearing , the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate , and could indicate the passages which might be inadmissible . He procured the attendance at trial of all witnesses to be called for the prosecution . When charges were withdrawn , the convening officer ’s consent was normally obtained , although it was not necessary in all cases , and a plea to a lesser charge could not be accepted from the accused without it . He had also to ensure that the accused had a proper opportunity to prepare his defence , legal representation if required and the opportunity to contact the defence witnesses , and was responsible for ordering the attendance at the hearing of all witnesses “ reasonably requested ” by the defence .

The convening officer could dissolve the court martial either before or during the trial , when required in the interests of the administration of justice . In addition , he could comment on the proceedings of a court martial . Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court , although in an exceptional case , where a more public instruction was required in the interests of discipline , they could be made known in the orders of the command .

The convening officer usually acted as confirming officer also . The findings of a court martial were not effective until confirmed by the confirming officer , who was empowered to withhold confirmation or substitute , postpone or remit in whole or in part any sentence .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in DATE and lives in PERSON .

On DATE an indictment was lodged against the applicant and CARDINAL others before ORG . He was charged with the criminal offence of abuse of position as the director of the company HIT D.O.O. under LAW .

The indictment was served on the applicant on DATE . All of the accused lodged objections to the indictment .

On DATE the court rejected the objections .

On DATE the first hearing was held . The representatives requested the recusal of the judge . The request was rejected .

DATE and DATE the court held some CARDINAL hearings . CARDINAL hearings were interrupted due to health problems of CARDINAL of the co - accused ( ORG ) . QUANTITY hearings scheduled for DATE were postponed to DATE .

On DATE held a hearing and decided that the case against Ms ORG should be tried separately .

Between DATE and CARDINAL DATE the court held CARDINAL hearings , heard several witnesses , dealt with CARDINAL requests for recusal of judges and adduced evidence .

On DATE following amendments of the criminal legislation the court held a hearing in a different formation ( a panel of CARDINAL judges instead of CARDINAL ) and commenced the hearing by re - reading the indictment .

DATE and DATE the court held CARDINAL hearings , heard several witnesses and adduced evidence . About CARDINAL hearings were postponed due to health problems of the applicant and one of the accused ( Mr. PERSON ) .

During the hearing held on DATE the applicant informed the court that he had serious heart problems and needed an operation . The court decided to try the applicant ’s case in a separate set of proceedings .

On DATE ORG issued a decision joining the proceedings against the applicant and PERSON

On DATE the court decided to join to the proceedings the case involving the co - accused Mr. PERSON , whose case had been remitted to the first - instance court after an initial conviction and a subsequent successful appeal .

DATE and DATE the court had to appoint ex officio representatives for the accused and had to deal with a motion for recusal of a judge and a motion for transfer of jurisdiction .

DATE and DATE the court held CARDINAL hearings . The court heard several witnesses and adduced evidence . The court also had to deal with requests for recusal of judges and in addition the ex - officio representatives resigned and the court had to appoint new ones .

On DATE the first - instance court issued a judgment finding the applicant guilty as charged . He was sentenced to CARDINAL years’ imprisonment . The written copy of the judgment was issued on DATE . The applicant appealed .

On DATE the ORG rejected the appeal and upheld the first - instance judgment . The applicant lodged a request for protection of legality .

On DATE ORG upheld the request for protection of legality in part and amended the operative part of the judgment by changing the legal classification and convicting him for the crime of the abuse of authority under section CARDINAL of LAW . ORG found that the crimes under section CARDINAL of the old Criminal Code and section CARDINAL of the new Criminal Code constituted legal continuity and as the latter section was more favourable for the applicant ORG amended the first - instance judgment . His sentence was lowered to DATE of imprisonment . He lodged a constitutional complaint .

On DATE the applicant was granted pardon by a Decree issued by the President of GPE . In the Decree it was stated only that the applicant ’s sentence of DATE and DATE imprisonment was to be reduced to CARDINAL years’ imprisonment , provided that the applicant did not commit another crime within DATE .

On DATE ORG rejected his complaint as unsubstantiated .

For relevant domestic law see PERSON v. GPE ( no . CARDINAL ,

DATE ) .


The applicants are NORP citizens , born in DATE . They are twin brothers , resident in GPE . They own an island , GPE , in LOC . They also own " The NORP " newspaper . They are represented before the ORG by PERSON , solicitor , of PERSON White Durrant , with Mr PERSON . The facts of the application , as submitted by the parties , may be summarised as follows .

A.

The applicants bought PERSON in order to build a private residence there for themselves and their family .

In DATE , a producer of the television programme " The Spin " wrote to the applicants ' lawyers requesting an interview with the applicants on the issue of The NORP and their home on GPE . The request was referred to the Editor in Chief of The NORP , who offered to answer questions concerning the newspaper , and stated that the applicants did not wish do be interviewed and that they refused permission for anyone to enter GPE without their express permission .

The producer nevertheless arranged for a reporter on The Spin to be taken to the island in a small boat , and for his unauthorised landing to be filmed by a film crew . When challenged about his landing , the reporter told an employee of the building contractors that he had come for a meeting with the applicants . The reporter then walked about the island until challenged by a Mr Field . The reporter initially told PERSON that he did not have any recording equipment on him , but later produced a radio , a voice microphone and a battery pack . Mr Field then sought to escort the reporter off the island . In order to secure the reporter 's departure , Mr Field used the reporter 's radio to speak to a person , identified by the reporter as his producer , to ask for the reporter to be picked up again . The producer informed Mr. PERSON that he no longer had the boat , with the result that the applicants had to arrange for a boat to be chartered , at their expense , to ensure the reporter 's return to ORG .

The applicants complained about the invasion of privacy to ORG ( ORG ) , which denied jurisdiction unless and until the relevant issue of The ORG was broadcast . The applicants ' challenge by way of judicial review to that decision of the ORG failed on DATE , leave to apply for judicial review having been granted on DATE . In his judgment on the application for judicial review , Mr Justice PERSON agreed that on a proper construction of LAW DATE , the ORG had no role to play until a broadcast had occurred . He observed :

" The law of GPE and GPE at present places no general constraints upon invasions of privacy as such . LAW DATE unambiguously limits the power of the [ ORG ] to adjudication upon complaints of infringement of privacy against the ORG arising out of programmes which have been broadcast . If an unwarranted infringement of privacy has been committed by the ORG otherwise that in connection with the obtaining of material included in a broadcast programme - whether because the nexus is insufficient or because no programme has been broadcast - the Commission is without adjudicative power . It can not therefore entertain an anticipatory complaint even where , once the programme is broadcast , the complaint is bound to succeed . It follows that in this field and to this extent , as elsewhere in LANGUAGE law , the individual is without an effective remedy before a national authority if the right to respect for his or her private and family life is violated . "

Leave to appeal was refused .

On DATE , the ORG delivered its adjudication on the applicants ' complaint following the broadcast of The Spin , which had taken place on DATE . The ORG found , inter alia , that " in landing on the ORG ' private island and in broadcasting footage obtained , the ORG unwarrantably infringed the ORG ' privacy " .

In separate proceedings relating to a different broadcast , ORG on DATE awarded the applicants FFCARDINAL,CARDINAL.CARDINAL against the reporter .

B. Relevant domestic law

ORG ( ORG ) was created in its present form by LAW DATE ( LAW ) . By LAW , its function is to consider and adjudicate upon complaints of :

( a ) unjust or unfair treatment in programmes to which this Part applies , or

( b ) unwarranted infringement of privacy in , or in connection with the obtaining of material included in , such programmes .

The relevant Part of the DATE Act applies to " any television or sound programme broadcast by the ORG or after [ DATE ] ... " .

Under Section CARDINAL of the CARDINAL Act , where the ORG has considered and adjudicated upon a complaint , it may give the following directions , namely :

" directions requiring [ the ORG ] to publish the matters mentioned in subsection ( CARDINAL ) in such manner , and within such period , as may be specified in the directions " .

Section CARDINAL ( CARDINAL ) provides that :

" Those matters are -

( a ) a summary of the complaint ; and

( b ) the ORG 's findings on the complaint or a summary of them . "


Violation of Art. 2 (substantive aspect);No violation of Art. 2 (procedural aspect);Non-pecuniary damage - finding of violation sufficient

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

In TIME of DATE the applicant ’s DATE son , PERSON , and CARDINAL of his friends were in a district of the old town of GPE .

Plainclothes police officers PERSON and PERSON , serving in the LOC police station , were out on patrol duty in an unmarked police vehicle when they noticed the CARDINAL young men on the street . The CARDINAL men were not committing any offence , but PERSON noticed in his car mirror that CARDINAL of them turned to look at the police car as it passed . Since several burglaries had been recently reported in that area , he decided to carry out an identity check . However , as he drove back towards them , the CARDINAL men ran away .

The QUANTITY police officers got out of the car and ran after them . The chase apparently continued for TIME . The CARDINAL young men split up and ran off in different directions .

G.A. ran after PERSON . As he approached him , PERSON put his hand inside his jacket . Suspecting that the latter might take out a weapon , G.A pulled out his own service revolver , a CARDINAL magnum Smith and ORG , which had no safety catch and was loaded . Holding the revolver in his right hand , with his finger on the trigger , he ordered PERSON to stop . After running QUANTITY , PERSON tired of the chase , lost his balance and tripped . That allowed PERSON to catch hold of him with his left hand . PERSON then pushed him against a car and immobilised him by forcing him to raise his hands and place them on the car roof while he was pointing his gun towards the sky .

Then , with his left hand PERSON twisted the young man ’s left wrist behind his back in order to handcuff him . At that point PERSON jabbed him with his right elbow in the right side , causing him sharp pain . Reacting to the pain , PERSON bent forward , and while he was drawing himself back up , his revolver went off , firing a single shot in the lower part of GPE right ear , instantly killing him .

C.T. , who had in the meantime arrived close to the CARDINAL men , was QUANTITY away from the scene and partially witnessed the incident . From where he was standing , he was not able to see the shooting .

TIME after the fatal shot police officers from the ORG police station conducted a preliminary inquiry ( προανάκριση ) into the event . The police officers inspected the area and drafted an inspection report as well as a sketch plan . In addition , they took a statement from ORG few hours later , a crime scene reconstruction was conducted in the presence of ORG and a report was drawn up in this respect .

On DATE a forensic post - mortem examination was performed by a forensic medicine expert from ORG . The doctor indicated that the cause of death was a fracture of the cranium due to a gunshot wound and that the shot had been fired either at point - blank range or from QUANTITY distance . According to the report , the exact range was to be established after further examination in the criminal police laboratory .

The forensic medicine expert also examined G.A. According to the report , PERSON was diagnosed with “ a contusion in the right hemithorax ” .

On DATE , at TIME , the applicant was informed of the incident .

The following day , ORG instituted criminal proceedings against G.A. for wilful homicide , exceeding the limits of self - defence and unauthorised use of weapons . The applicant joined the proceedings as a civil party , claiming a specific amount by way of damages .

On DATE PERSON gave his statement before the investigating judge and he was set free after he had given a bank guarantee of ORG CARDINAL .

On DATE the applicant gave a statement and asked the investigating judge to examine in detail the amount of pressure that needs to be put on the trigger in order to release the hammer and fire the gun as well as whether the use of the gun had been absolutely necessary after the victim ’s arrest .

On DATE the criminal police laboratory published the report on the range at which the bullet had been fired . According to the CARDINAL experts , the sample of skin taken from the victim was too small to establish the exact range .

On DATE the ballistic examination of the weapon was conducted . The report indicated that CARDINAL cartridge had been fired from ORG weapon .

Following the preliminary inquiry the case was referred to ORG , which on DATE decided not to press charges against G.A. , considering that PERSON death had resulted from his sudden and violent assault on G.A. and the accidental discharge of the latter ’s revolver that was its consequence ( decision no . CARDINAL ) .

On DATE the applicant lodged an appeal . On DATE ORG confirmed the dismissal of charges against ORG decision no . CARDINAL/CARDINAL ) . It stated , inter alia , that :

“ The blow surprised the defendant , his body first bent forward and then backwards to the left , because of the pain and the surprise he felt , and his weapon , which was a revolver and did not have a safety catch , went off .

( ... ) [ PERSON death ] was not the result of the defendant ’s reckless behaviour , but of the victim ’s violent and sudden assault and the discharge of the latter ’s revolver that was its consequence . There is nothing to show that [ G.A. ] , given the circumstances and his knowledge and abilities , could have foreseen and avoided the death of the victim . ”

On DATE the applicant appealed to ORG .

On DATE ORG overturned the decision appealed against and remitted the case to ORG of ORG for reconsideration ( decision no . CARDINAL/CARDINAL ) . It held that the reasoning given in the decision appealed against was ambiguous , contradictory and insufficient . In particular , it did not indicate how the trigger had been squeezed , although it implied that the discharge was connected to the victim ’s violent movement . Furthermore , it did not make references to the forensic ballistics report .

On DATE ORG of ORG overturned the dismissal of charges and committed the defendant for trial before ORG . It stated , inter alia , that the victim had already been immobilised at the time he was shot and did not pose a threat to the defendant ( decision no . CARDINAL/CARDINAL ) .

On DATE the defendant appealed to ORG .

On DATE ORG dismissed the defendant ’s appeal ( decision no . DATE ) .

On DATE the hearing before ORG took place . ORG heard evidence from the applicant , CARDINAL other relatives of the victim , police officer PERSON and CARDINAL other police officers , as well as from the defendant .

NORP ORG also heard statements from CARDINAL experts the defendant had asked to be called . The first expert , a forensic medicine expert , who had read the post mortem examination , reached a conclusion supporting the defendant ’s view . The second expert was a mathematician who put forward a theory on the trajectory of the bullet in support of the defendant ’s view . The court also read out various documents , such as the results of the post mortem examination of the deceased , forensic medical reports , autopsy reports , photos and the crime scene reconstruction report .

On DATE the ORG published its judgment acquitting the defendant by CARDINAL votes to CARDINAL ( judgment no . PERSON ) . On the basis of the case - file and the evidence submitted the majority held in particular that :

“ ... the violent blow surprised the defendant , who felt pain and bent forward and then backwards to the left and his muscles were “ contracted ” because of the pain that the violent and unexpected hit had caused him ( ... ) ,

... because of his reflex action the defendant involuntarily squeezed the trigger of his revolver , which was not equipped with a safety catch , and a bullet was fired ( ... )

... It is apparent that the defendant had not intended to kill the victim , as charged , since : CARDINAL ) the gun went off against his will and it was the result of the involuntary reflex action of the muscles of his right arm as a response to the sudden and intense blow that he had received from the victim ; CARDINAL ) he did not know the victim and he had no reason to hurt him , let alone to kill him ; CARDINAL ) if he had really wanted to kill PERSON ... , he would have shot him during the chase and before his arrest ; in any event there was no longer any reason to shoot him since he had already immobilised and arrested him ... ; CARDINAL ) CARDINAL bullet was fired from the gun ... ; CARDINAL ) from the trajectory of the bullet [ according to the report of the mathematical expert ] , it appears that the hand that had fired the gun had not been steady ... ; furthermore , it does not appear from the evidence that the defendant shot the victim in cold blood ... or that he acted in self - defence , since no attack was launched by the victim , who had already been immobilised ... ”

Furthermore , ORG examined the facts complained of under the provisions concerning reckless homicide . It concluded that :

“ ... on TIME [ G.A. ] carried out his duties in the most impeccable way possible . He pursued the deceased with professional consciousness , he did not fire his gun during the pursuit , although another in his place might have done so , and , most importantly , he arrested and immobilised the deceased holding his revolver in his right arm and pointing it to the sky , in order to avoid accidents ... What followed , i.e. the death of PERSON , was not the result of an intentional act of the defendant or the latter ’s reckless behaviour , but of the victim ’s violent and sudden assault that caused the reflex action of the defendant ... and the discharge of the revolver that the latter was holding in his right hand . The reflex action of the defendant was an instantaneous reaction of the nervous system , an automatic contraction of the body muscles ( including those of the right arm ) out of the defendant ’s control , as a response to the pain suffered from the violent and sudden blow ; since this contraction was not a voluntary action , it can not be considered an actus reus and hence he [ the defendant ] can not be considered criminally liable ...

The ORG reached the same conclusion as far as the charge of unauthorised use of weapons was concerned . In particular , it held :

“ Consequently , since neither the death of the victim nor the use of the defendant ’s gun can be considered as “ acts ” in the legal sense of the term , the objective element of the crimes that the defendant is being accused of has not been established and he should be declared innocent . ”

CARDINAL of the minority judges , including the President of ORG , considered that the defendant should have been declared guilty of reckless homicide and unauthorised use of weapons . They based their reasoning on the way revolvers function :

“ ... There is a slight time delay of TIME between the moment the trigger is pulled and the moment the gun fires . This is the time the hammer needs to be cocked and released ; the time the hammer needs to be cocked corresponds to the time the cylinder needs to rotate clockwise . When the hammer has already been cocked , it needs less pressure on the trigger to release the hammer and fire the gun . On the contrary , when the gun is in a hammer - down position , it needs more pressure on the trigger and more time to fire the gun , since in this case , the trigger first cocks the hammer ( thus advancing the cylinder ) and then releases the hammer at the rear of its travel , firing the round in the chamber . In the present case , it appears from the testimonies ... that ... with his left hand [ G.A. ] twisted the young man ’s left wrist behind his back in order to handcuff him , while with his right hand he was holding the revolver , obviously with the hammer cocked , pressing against the victim ’s right scapula . ... [ ORG ’s death ] resulted from the defendant ’s negligent conduct , since : CARDINAL ) he should not have cocked the hammer of his gun , since in that case the trigger needs less pressure to fire the gun ; CARDINAL ) he should not have had his finger on the trigger but on its protective frame ; CARDINAL ) he should not have been pressing the gun against the victim ’s scapula while he had his finger on the trigger and the hammer cocked . If the gun had been in a hammer - down position , even if the defendant had had his finger on the trigger , it would have been more difficult for the gun to go off , since it required more pressure on the trigger . ... the defendant had no intention to kill the victim ... he should have been declared guilty of reckless homicide and unauthorised use of weapons . ”

On DATE the applicant , who did not have the right to appeal in cassation under domestic law , asked ORG to bring the case before ORG . On DATE the Prosecutor dismissed his request .

Shortly after the shooting , PERSON was declared free of duty for DATE and he was later granted sick leave for a total period of DATE . On DATE he resumed his duties in ORG . On DATE he was transferred to an administrative post in ORG .

In the meantime , on DATE , DATE after the fatal incident , the NORP police headquarters launched ORG ( Ενορκη Διοικητική Εξέταση , DATE ) in order to ascertain the exact circumstances in which PERSON death had occurred and whether police officer PERSON was guilty of any disciplinary offence . That investigation was assigned to an officer of the police department dealing with administrative investigations .

On DATE the report on the findings of the ORG was issued . According to the report , the death of PERSON was not the result of the police officer ’s reckless behaviour , but of the victim ’s violent and sudden assault and the discharge of the latter’

In the meantime , while the case was pending before the penal courts , on DATE the applicant brought an action against the ORG under section CARDINAL of the PERSON introducing the Civil Code seeking compensation for damage sustained as a result of an unlawful act by a public authority , namely , his son ’s killing by police officer PERSON

On DATE , DATE prior to ORG ’s acquittal by ORG , ORG allowed the applicant ’s claims in part ( judgment no . DATE ) . It held inter alia :

“ ... The grounds set forth in LAW no . CARDINAL/CARDINAL , which authorises the use of firearms , do not apply under the circumstances of the present case , since [ G.A. ] had not been attacked by the victim ... nor was he acting in self - defence ... The use of the firearm by the police officer in order to arrest the deceased was unlawful and resulted in the young man ’s death . ... The police officer ’s outline of events , according to which the firing was provoked by a ‘ reflex ORG following the blow he had received from DATE in the sense that he involuntarily pulled the trigger DATE can not be accepted , because it is in contradiction with his own statement concerning an ‘ unconscious instinctive reaction caused by the violent blow he had NORP . In fact , that means that pulling the trigger was an instinctive reaction to the victim ’s behaviour , which implies that [ G.A. ] acted without using his reason and without showing the prudence and discipline expected from a police officer with DATE of experience . ... thus , police officer PERSON is PERCENT responsible for PERSON death since he used his firearm in violation of the applicable law ... ”

On DATE the ORG appealed to ORG challenging the implementation of the substantive law and the assessment of the evidence . It referred subsequently , in a separate memorandum , that PERSON had been acquitted by ORG on DATE .

On DATE ORG rejected the appeal and awarded the applicant LAW GPE for non - pecuniary damage ( judgment no . CARDINAL/CARDINAL ) , considering inter alia :

“ Even supposing that the use of the firearm by the police officer in order to arrest the deceased was not in breach of a specific provision , nevertheless it constituted unlawful conduct , since he failed to take those steps that are appropriate to his duties , that result from the relevant legislation , from common sense , from his scientific and professional education and experience and from the notion of good faith and aim at the protection of individual freedoms , namely the right to life and limb . Consequently , the appellant is responsible ... ”

At the material time , the use of firearms by law - enforcement officials was regulated by Law no . CARDINAL , which was enacted on DATE when GPE was under NORP occupation . LAW of that statute listed a wide range of situations in which a police officer could use firearms ( for example in order “ to enforce the laws , decrees and decisions of the relevant authorities or to disperse public gatherings or suppress mutinies ” ) , without being liable for the consequences . These provisions were modified by LAW no . CARDINAL/CARDINAL , which authorises the use of firearms in the situations set forth in PERSON no . CARDINAL “ only when absolutely necessary and when all less extreme methods have been exhausted ” . Law no . CARDINAL was criticised as “ defective ” and “ vague ” by ORG ( see Opinion no . CARDINAL ) . Senior NORP police officers and trade unions have called for this legislation to be updated . In a letter to the Minister of Public Order dated DATE , ORG ( ORG ) , an advisory body to the government , expressed the view that new legislation which would incorporate relevant international human rights law and guidelines was imperative ( ORG , DATE Report , pp . CARDINAL ) . In DATE the Minister of Public Order announced that a new law would shortly be enacted , which would “ safeguard citizens against the reckless use of police weapons , but also safeguard police officers who will be better informed as to when they can use them ” .

On DATE Law no . DATE , which is entitled “ Carrying and use of firearms by police officers , training of police officers in the use of firearms and other provisions ” , came into force . Law no . CARDINAL was repealed ( section CARDINAL) . Further , in DATE , the “ Pocket Book on Human Rights for the Police ” , which was prepared by ORG , was translated into NORP with a view to its being distributed to NORP policemen .


Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Lack of jurisdiction (new complaint);Violation of Art. 14+6-1;No violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - reserved;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

PERSON , a NORP national born in DATE , was married in DATE . She lives at ORG in the GPE of GPE .

ORG In DATE she began to work for the industrial firm of NORP at GPE ( GPE of GPE ) . Her employer regularly deducted contributions to the federal invalidity - insurance scheme from her wages ( see paragraph CARDINAL below ) .

ORG In DATE she contracted open pulmonary tuberculosis .

On DATE she applied for a pension on the grounds of incapacity for work due to her illness .

ORG of ORG Schweizerische Maschinen- PERSON ) decided on DATE to grant her CARDINAL an invalidity pension for the period from DATE to DATE .

ORG On DATE the NORP company dismissed the applicant with effect from DATE on account of her illness .

ORG After PERSON had made a further application for a pension , ORG determined on DATE that she was physically and mentally unfit for work and decided to pay her a full pension with effect from CARDINAL DATE .

In DATE and DATE the invalidity - insurance authorities reviewed her case and confirmed the award of a pension .

ORG On DATE the applicant gave birth to a son .

ORG In DATE ORG ( IV - Kommission ) of the GPE of GPE asked PERSON to undergo an examination at the invalidity - insurance authorities’ medical centre ( PERSON GPE ) in GPE .

ORG The medical centre asked PERSON and PERSON for CARDINAL reports ( PERSON ) on the applicant ’s health - one on the state of her lungs and the other a psychiatric report - and these were sent in on CARDINAL and DATE respectively . The centre prepared a summary on DATE , to which it attached PERSON report ; it concluded that the applicant was wholly unfit for clerical work and assessed her fitness for household work at PERCENT .

ORG On DATE ORG cancelled , with effect from CARDINAL DATE , PERSON pension , then amounting to MONEY ( CHF ) DATE , as her family circumstances had radically changed with the birth of her child , her health had improved , and she was PERCENT able to look after her home and her child .

ORG On DATE PERSON lodged an appeal ( Beschwerde ) with the GPE of ORG , ORG Rekurskommission für die Alters- , Hinterlassenen- und Invalidenversicherung - " ORG " ) . She claimed a full invalidity pension or , failing that , a MONEY , arguing , in particular , that ORG conferred on her the right to a pension so long as she was PERCENT incapacitated . So as to continue receiving her pension , she also asked ORG to order that her appeal should have suspensive effect .

The Board dismissed the latter application on DATE

ORG On CARDINAL May PERSON dispensed with the services of her counsel .

ORG On CARDINAL May she went to ORG headquarters to inspect her medical file , which had been sent there by ORG , but she was not allowed to see it .

On DATE she wrote to ORG to complain about this and to demand to be able to see the file or at least a photocopy of certain important documents .

In a letter of CARDINAL DATE to the same board she again sought permission to inspect the file , in particular " all the medical reports , records of examinations and results of laboratory tests from DATE " , and the handing over of vital documents .

ORG dismissed the appeal on CARDINAL DATE .

In the first place , the right to inspect the file did not imply a right to take documents away or to have photocopies made of them . It sufficed that the appellant had had an opportunity to study her file at ORG registry ; she had not availed herself of that opportunity , despite numerous invitations to do so .

In the second place , it could not be discounted that even if the appellant had been fit , she would have been content with looking after her home once her child had been born . At all events , having regard in particular to the examinations carried out by the medical centre , the invalidity in question was not enough , in the case of a mother and housewife , to make her eligible for a pension . PERSON was in a position to be more active if she really wished to work despite her new family circumstances . The refusal to pay a pension could help her recover from her neurotic obsession with being unable to work .

ORG On DATE PERSON wrote to ORG . She said she needed all the documents and expert reports in order to assess the prospects of succeeding in her legal action . She referred to a perfusion scintigram , a lung - function test , blood - gas analyses and a plethysmogram .

ORG In a letter of CARDINAL DATE ORG replied as follows :

" ... [ T]hese documents provided the basis for the various medical reports . They are in our file only because of the right of inspection granted to you . We are therefore unable to make further documents available to you . "

ORG On DATE PERSON lodged an administrative - law appeal with ORG against the decision of ORG . She applied for a full pension or , in the alternative , an order remitting the case to the authority of first instance . She also sought leave to inspect the whole of her file ( vollumfängliches PERSON ) .

ORG received observations from ORG invalidity - insurance department on DATE and from ORG on DATE . ORG submitted that the invalidity pension should cease ; ORG argued that the appeal should be dismissed , relying on a report by its own medical service , which referred in particular to the examination carried out by the medical centre .

ORG In a letter of CARDINAL DATE ORG informed the applicant that her complete file had been sent to ORG , which " within DATE [ would ] make all the documents available [ to her ] for inspection " . She would then have a further DATE in which to supplement her administrative - law appeal submissions .

ORG On DATE PERSON inspected her file and photocopied a number of documents . On DATE the file was returned to ORG .

Mr PERSON , a lawyer , wrote to ORG on DATE to inform it that he would henceforth be representing the applicant and to ask for the case file to be forwarded to him ; this was done on DATE .

ORG On DATE PERSON filed supplementary pleadings in support of her appeal . They included a complaint that the medical centre took it for granted in its expert opinion that her lungs functioned normally , relying on the report of PERSON , which was not in the file however . She also criticised the arbitrariness of ORG opinion that even if she had been fit , she would have devoted herself to household tasks because of the birth of her child .

ORG gave judgment on DATE , holding that since CARDINAL May PERSON had been PERCENT incapacitated and was therefore eligible for a CARDINAL - pension if she was in financial difficulties , and that as there was no evidence before it on this point , the case should be remitted to ORG .

In such a case the court ’s function was not limited to reviewing compliance with federal law and ascertaining that judicial discretion had not been exceeded or misused ; it could also review the appropriateness of the impugned decision , and was bound neither by the facts found by the court below nor by the parties’ claims .

The applicant had succeeded in her complaint that ORG had failed to produce all the documents for inspection ; she had been able to argue her case in ORG , whose file she had had an opportunity to examine and which had considered the facts and the law with complete freedom .

As to the pension claim , the court said :

" Regard must ... be had to the fact that many married women go out to work until their first child is born , but give up their jobs for as long as the children need full - time care and upbringing . This assumption based on experience of everyday life - experience which must be duly taken into account in determining the method to be applied for assessing incapacity ... - must be the starting - point in the present case . At the time the contested decision was taken , on DATE ... , the child , who was born on CARDINAL DATE , was DATE , and accordingly , on the balance of probabilities ( nach dem GPE der überwiegenden PERSON ) ... , it must be assumed that the applicant , even if her health had not been impaired , would have been occupied only as a housewife and mother . "

In the court ’s view , this made it unnecessary to examine whether PERSON was fit to work in her previous employment ; the question was rather one of determining to what extent , if at all , she had been restricted in her activities as a mother and housewife . Here it was sufficient to rely on the expert opinion produced by the medical centre . The fact that the lung specialist ’s report was missing from the file was a defect ( ein gewisser PERSON ) , but the examination carried out by the specialist in internal medicine made it possible to answer the question whether after DATE there had been any change in the state of the applicant ’s lungs . After that date the applicant had no longer been treated for tuberculosis and in that respect was perfectly fit to work . As to her neurosis , it had much diminished in the meantime ; and a handicap resulting from her back problems could in theory be assessed at PERCENT at most .

ORG On DATE ORG decided that PERSON could not claim a CARDINAL - pension since her income in DATE , DATE and DATE had greatly exceeded the maxima applicable in DATE to " cases of hardship " ( see paragraph CARDINAL below ) .

The applicant did not appeal .

Invalidity insurance is governed by CARDINAL federal statutes - ORG DATE ( " ORG " ) and LAW of DATE ( " ORG " ) .

Invalidity insurance is compulsory for all persons resident in GPE ( section CARDINAL OASIA ) . Certain other people may contribute on a voluntary basis , notably NORP nationals living abroad ( section CARDINAL PERSON ) .

Invalidity insurance is managed by cantonal and occupational associations under the supervision of the ORG ( sections CARDINAL ORG and sections CARDINAL ORG ) .

ORG At the present time invalidity insurance is financed partly from ORG and insured ORG contributions and partly from contributions by the ORG , in roughly equal proportions .

There is no ceiling on contributions . Those paid by the insured are automatically deducted from earnings . Children , wives and widows of insured persons are exempted if not working , whereas others not gainfully employed pay from MONEY DATE ( section CARDINAL ORG and section CARDINAL ORG ) .

ORG LAW ORG deals with the assessment of incapacity .

Provision is made in subsection CARDINAL for pensions to be graduated in proportion to the degree of incapacity : a full pension is granted where incapacity is PERCENT and a CARDINAL - pension where it is PERCENT . At the material time , PERCENT incapacity entitled a person to a QUANTITY only " in cases of hardship " ; DATE incapacity must be PERCENT for a person to be eligible for a DATE .

" For the assessment of incapacity , the income which the insured person could earn after becoming incapacitated and after taking any appropriate rehabilitation measures from work that could reasonably be expected of him in a stable labour market is compared with the income he could have earned if he had not been incapacitated . "

The amount of the pension is based on the insured ’s DATE average income , which is calculated by dividing the total income taken as a basis for assessing contributions by the number of DATE ( sections CARDINAL et seq . ORG , taken together with sections CARDINAL et seq . PERSON ) . For full ordinary pensions the maximum amount is double the minimum amount .

Contributions are enforceable and the right to claim them is subject to a limitation period of DATE ( sections CARDINAL and CARDINAL ORG ) .

ORG has derived from LAW , which enshrines the principle of equality , an individual ’s right to inspect his case file lodged with a judicial body .

The right in question means being given an opportunity to have access to the official documents and to take notes but not to take the file away or to demand that copies should be made and handed over ( judgment of CARDINAL DATE , Judgments of ORG ( ORG ) , vol . CARDINAL , part GPE , pp . CARDINAL - CARDINAL ) .

On this last point ORG has , however , accepted that individuals may ask for copies , provided that this does not entail an excessive amount of work or substantial expense for the authority concerned ( judgment of CARDINAL DATE , ORG , vol . CARDINAL , part GPE , pp . CARDINAL - CARDINAL ) .

Section CARDINAL(CARDINAL)(e ) ORG , first sentence , provides : " If the circumstances so warrant , the parties shall be summoned to a hearing . "

ORG Under Rule CARDINAL para . CARDINAL of ORG ,

" The parties shall not have a right to demand a hearing in appeal proceedings . By agreement with the division , the presiding judge may order a hearing to be held , on an application by one of the parties or of his own motion . The parties may inspect the file before the hearing ... "


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

NORP Since DATE the applicant worked as a cleaner in a home for the care of mentally disabled persons .

On DATE the applicant was arrested on suspicion of having sexually abused PERSON , a mentally disabled resident of the said home .

On DATE ORG charged the applicant with having attempted to sexually abuse PERSON twice , once on an unspecified date at DATE or DATE ( first charge ) and a second time on DATE ( second charge ) .

On DATE the NORP Regional Court II convicted the applicant on CARDINAL charges of sexual abuse of a person unfit to defend herself and sentenced him to a cumulative sentence of DATE imprisonment ( DATE for the first charge and DATE and DATE for the second one ) .

On DATE , following the applicant 's appeal on points of law , ORG quashed ORG judgment and remitted the case to a different chamber of ORG . ORG found that ORG , in dismissing the defence 's motion to obtain another report of a psychiatric expert , had made a procedural mistake . In view of the fact that witness U. had abused alcohol and tablets at a period in time prior to the offences , it was necessary to have her examined by a medical expert in order to verify whether she suffered from a mental illness affecting her ability to give correct evidence ( PERSON ) . In these circumstances , it was not sufficient , as was done by ORG , to have the witness 's credibility examined by a psychological expert .

During an oral hearing on DATE , the sixth hearing in the case , the GPE Regional Court II heard further witnesses . It indicated to the parties that the offences in question could be qualified differently in law as ORG had not proved unable to defend herself . Following a short interruption of the hearing , ORG discontinued the proceedings concerning the first charge preliminarily according to section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) upon a motion by ORG . TIME of the hearing do not contain any reasons given either by ORG or by ORG for proceeding in this manner . It had not been possible throughout the proceedings to establish the exact date on which the offence underlying the first charge had been committed .

On DATE the NORP ORG II convicted the applicant in respect of the remaining second charge of sexual abuse and of bodily injury and sentenced him to DATE imprisonment suspended on probation . ORG based its judgment mainly on the evidence given by PERSON , who was the only eye - witness to the alleged crime . Relying on reports given by both a psychological and a psychiatric expert , the court noted that due to her slight mental disability , Ms U. 's ability to give correct evidence was considerably restricted . Nevertheless , it was convinced that ORG statements were correct . She had not reported the offence on her own motion , but had confessed it to her partner on DATE when the latter had noticed that she felt depressed . Her partner had then convinced her DATE to inform the management of the home of the incident . Numerous other signs , such as the fact that U. had not tried unnecessarily to incriminate the applicant and had no other motives to accuse him demonstrated that the witness was credible . Moreover , CARDINAL further female witnesses had confirmed that the applicant had harassed them .

In the judgment , no reasons were given for discontinuing the proceedings in respect of the first charge .

On DATE the applicant , represented by counsel , lodged an appeal on points of law with ORG , which he reasoned on DATE . He complained , inter alia , that there was a procedural error as no reasons for discontinuing the proceedings in respect of the first charge emerged either from ORG request to do so or from ORG decision to partly discontinue the proceedings or from its judgment . However , ORG had not found witness U. to be credible in this respect , which was documented by the fact that it had decided to discontinue the proceedings pursuant to section CARDINAL § CARDINAL of the Code of Criminal Procedure . The reasons for discontinuing the proceedings could be essential for the evaluation of Ms U. 's credibility as both charges concerned similar offences and were primarily based on ORG assertions . If ORG did not follow PERSON testimony with respect to the first charge , it would have been necessary to explain why that court found the same witness 's testimony to be credible with respect to the second charge .

On DATE ORG requested the court to dismiss the applicant 's appeal on points of law as ill - founded . He argued in particular that no reasons had to be given for partly discontinuing the proceedings pursuant to section CARDINAL § CARDINAL of the Code of Criminal Procedure .

In his submissions in reply dated CARDINAL DATE , the applicant agreed that section CARDINAL § CARDINAL of the Code of Criminal Procedure did not prescribe that reasons had to be given for the discontinuance of the proceedings . However , failure to do so nevertheless rendered the evaluation of evidence defective in the circumstances of the present case .

On DATE ORG rejected the applicant 's appeal on points of law . In respect of the said procedural error complained of , it dismissed his appeal on points of law as inadmissible , finding that the applicant had not sufficiently set out the facts which were relevant for his complaint as required by section CARDINAL § CARDINAL of the Code of Criminal Procedure ( see paragraph CARDINAL below ) .

The court agreed with the applicant 's submission that

“ in cases in which the charges for CARDINAL offences were based on the statement of CARDINAL witness and the proceedings were discontinued pursuant to section CARDINAL § CARDINAL of the Code of Criminal Procedure in respect of CARDINAL of these offences , the reasons to do so can have evidential value for the decisive question of the credibility of the sole witness for the prosecution ; if no grounds for discontinuing the proceedings are given , there is a lack of reasoning ( GPE ) ( see ORG , PERSON ( StV ) DATE , pp . CARDINAL , CARDINAL ) . ”

NORP However , what had been discussed in the hearing before ORG discontinued the proceedings pursuant to section CARDINAL § CARDINAL of the Code of Criminal Procedure could not be known by having regard to the text of the judgment alone , as there was no duty to mention the discontinuance of the proceedings pursuant to that section or the reasons therefor in the judgment . It was true that there were judgments in which courts had set out in detail the reasons for partly discontinuing the proceedings and the influence of that decision on the evaluation of evidence , but this was only done if the court saw reasons to do so .

In the present case , ORG was unable to ascertain on the basis of the applicant 's reasoning in his appeal alone whether there had been a procedural error assuming that the facts submitted by him proved to be true ( the court referred to its previous decisions published in the ORG ( ORG ) DATE , p. DATE and StV DATE , p. CARDINAL in this respect ) .

According to ORG ,

“ what is missing is a statement as to which reasons , if any , for discontinuing the proceedings were orally discussed during the court 's hearing , because the failure to give reasons for the discontinuance could only constitute a procedural error if these reasons could have had an influence on the outcome of the judgment , such as doubts about the credibility of the statements of the only prosecution witness . ”

ORG noted that as a rule , proceedings were not discontinued pursuant to section CARDINAL § CARDINAL of the Code of Criminal Procedure without any comments , despite the fact that there was no duty to record such statements in the minutes . If , in exceptional circumstances , no comments were made , the appellant was at least obliged expressly to state that the court had not given any other grounds , such as a limitation of the offences at issue in the proceedings for reasons of efficiency , which were irrelevant for the evaluation of evidence .

On DATE the applicant lodged a constitutional complaint with ORG . He argued that his rights to be heard and to a fair trial were violated as in its decision ORG had applied new admissibility criteria which he could not have foreseen . According to the applicant , ORG , in its previous case - law , had demanded an account of the oral statements during the hearing only if the TIME disclosed that there had been such statements at all . Now on the contrary , that same court asked for an account of statements which ( might ) have been made in the course of the hearing and which were not included in the record .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant 's constitutional complaint . The decision was served on the applicant 's counsel on DATE .

The relevant provisions of LAW read as follows :

Section CARDINAL [ Insignificant further offences ]

“ ( CARDINAL ) ORG may dispense with prosecuting an offence

NORP if the penalty or the measure of correction and prevention ( Maβregel der Besserung und Sicherung ) in which the prosecution might result is not particularly significant compared to a penalty or measure of correction and prevention which was imposed with binding effect upon the defendant for another offence or which he has to expect for another offence , or

NORP furthermore , if a judgment for such offence is not to be expected within a reasonable time and if the penalty or the measure of correction and prevention which was imposed with binding effect upon the defendant or which he has to expect for another offence , appears sufficient to have an influence on the offender and to defend the legal order .

( CARDINAL ) NORP If public charges have already been preferred , the court may provisionally discontinue the proceedings upon the motion of ORG at any stage .

( CARDINAL ) If the proceedings were discontinued provisionally on account of a penalty or measure of correction and prevention which was to be expected for another offence , the proceedings may be resumed , unless barred by limitation in the meantime , within DATE after the judgment delivered in respect of the other offence became final . ”

Section CARDINAL [ Reasoning of an appeal on points of law ]

“ ( CARDINAL ) The appellant shall make a statement on the extent to which he contests the judgment and applies for it to be quashed ( notices of appeal on points of law ) and shall give reasons for his motions .

( CARDINAL ) The reasoning must show whether the judgment is contested because of a violation of the law of procedure or because of a violation of a different legal provision . In the former case the facts which constitute the defect have to be set out . ”

Section CARDINAL [ ORG - limit for reasoning the appeal on points of law ]

( CARDINAL ) The defendant may only do so [ i.e. submit notices of appeal and the grounds therefor ] in the form of observations signed by defence counsel or a lawyer or orally to be recorded by the court 's registry . ”

Section CARDINAL [ Recording of the main hearing ]

“ ( CARDINAL ) The record must indicate the course and the results of the main hearing in essence , and show that all essential formalities have been observed ; it must also specify the documents read out or those documents the reading of which has been dispensed with ... , as well as the applications filed during the course of the hearing , the decisions given , and the operative provisions of the judgment .

( CARDINAL ) The main outcome of questionings in the main hearing ... shall also be included in the record ; ... ”

Section CARDINAL [ Probative value of the record ]

“ DATE of the formalities required for the main hearing can only be proved by the record . Against the contents of the record concerning these formalities only proof of forgery is possible . ”

Pursuant to the well - established case - law of ORG , an appellant alleging a violation of a procedural rule must set out the facts which constitute the defect within the meaning of section CARDINAL § CARDINAL , second sentence , of LAW in such a comprehensive and detailed manner that the appellate court is in a position to verify on the basis of the appellant 's reasoning alone whether there would be a procedural error if the alleged facts were proved . It is not only necessary for the appellant not to omit facts weighing against him , but also to submit facts militating in favour of exceptional circumstances which would render his complaint unfounded . Depending on the nature of the violation of the procedural rule , ORG developed special requirements in its case - law on how to reason an appeal on points of law ( see the decision of ORG of DATE , ORG . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL with many references to decisions taken by ORG DATE ) .

In its decision of DATE ( cited in paragraph CARDINAL above ) ORG examined the constitutionality of the requirements set up in the case - law of ORG which an appellant has to satisfy in order to lodge an admissible appeal on points of law about a procedural error in accordance with section CARDINAL § CARDINAL , second sentence , of LAW . ORG found that as a rule , these requirements did not violate the individuals ' right to effective legal protection and did not limit access to ORG in an arbitrary manner ( see § § CARDINAL of the decision ) . It stressed that the interpretation of the said section by ORG served to prevent that court from being overcharged , which would itself compromise an effective legal protection ( see § CARDINAL of the decision ) .

ORG , in its decision of DATE ( no . CARDINAL StR CARDINAL , ORG DATE , p. DATE ) , considered an appeal on points of law lodged by ORG complaining about a procedural error to be inadmissible for failure to comply with the requirements of section CARDINAL § CARDINAL , second sentence , of LAW . It found that the appellant failed to set out all the facts which constituted the defect in such a comprehensive and detailed manner that the appellate court was in a position to verify on the basis of the appellant 's reasoning alone whether there would be a procedural error if the alleged facts were proved . The submissions failed to give an account of the contents of the statements made by the defendant prior to the hearing before the police .

In its decision taken on DATE ( no . CARDINAL StR CARDINAL/CARDINAL , StV DATE , pp . CARDINAL - CARDINAL ) ORG dismissed the defendant 's appeal on points of law concerning a procedural error as inadmissible pursuant to section CARDINAL § CARDINAL of the Code of Criminal Procedure . The appellant , who complained that his motion to appoint a further expert had wrongly been dismissed , despite the fact that the court - appointed expert allegedly lacked expertise , failed to set out the full contents of the report given by that expert . In so far as the appellant based his allegations on statements made by that expert during the hearing , the account given in the judgment of the discussion with the expert in the hearing proved that there was no lack of expertise on his part . Accordingly , ORG was not in a position to verify whether the allegation of a lack of expertise was wellfounded .

On DATE ORG ( no . CARDINAL StR CARDINAL , StV DATE , pp . CARDINAL - CARDINAL ) allowed the defendant 's appeal on points of law alleging that the law had been applied wrongly to the facts ascertained in the judgment ( PERSON ) . The defendant had been charged with CARDINAL counts of sexual abuse of children , which had all been based on the statements made by the only witness for the prosecution . He was acquitted as the witness had been proved to have invented the incident in respect of CARDINAL count and convicted in respect of CARDINAL other counts ; in respect of CARDINAL counts of sexual abuse the proceedings were discontinued pursuant to section CARDINAL § CARDINAL of the Code of Criminal Procedure . According to ORG , the evaluation of evidence in ORG judgment was defective , inter alia , because that court had discontinued the proceedings in respect of CARDINAL counts of sexual abuse of children without giving reasons therefore . In the circumstances of the case – there was notably only CARDINAL witness for the prosecution , no further incriminating evidence and the defendant 's innocence was established in respect of CARDINAL of the comparable offences he had been charged with – the reasons for discontinuing the proceedings in respect of CARDINAL further counts could have had evidential value for the decisive question of the credibility of the sole witness for the prosecution .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant sustained grievous bodily injuries as a result of a traffic accident . On DATE ORG ( PERSON районний суд ORG області ) found Mr PERSON responsible for the accident and sentenced him to CARDINAL GPE imprisonment . The sentence was conditionally suspended . By the same judgment , the court left the applicant ’s claim for compensation without consideration on the ground that the defendant had paid her the claimed amount of his own accord .

On DATE the applicant instituted civil proceedings in the Pershotravensk ORG ( ORG районний суд ORG області ) against Mr PERSON , seeking compensation for the damage caused to her health as a result of the accident . Subsequently the applicant modified the amount of her claim for compensation on several occasions . In the course of the proceedings CARDINAL expert assessments were ordered by the courts to assess the damage sustained by the applicant .

NORP ORG considered the case on three occasions and delivered judgments on DATE , CARDINAL DATE and CARDINAL DATE , which were overturned by the decisions of ORG ( Дніпропетровський обласний суд ) of CARDINAL DATE , CARDINAL DATE and CARDINAL DATE , respectively .

In its decision of CARDINAL DATE ORG decided to transfer the case to ORG for a fresh examination .

On DATE ORG found in part for the applicant and awarded her a lump sum of CARDINAL NORP hryvnias ( ORG ) and a DATE allowance of ORG CARDINAL for an unlimited period of time in compensation for loss of earnings . The court also awarded her ORG CARDINAL in compensation for travel expenses and rejected the applicant ’s claim for compensation for medical expenses .

On DATE the latter judgment was quashed by the decision of ORG . It held that the first - instance court had made wrong calculations and had failed to establish whether the applicant ’s injuries could have resulted in any recognised degree of disability . It decided to remit the case to ORG ( ORG районний суд м. GPE ) for a fresh examination .

On DATE the latter court found in part for the applicant and ordered Mr PERSON to pay her a lump sum of ORG MONEY and a DATE allowance of ORG CARDINAL for an unlimited period of time in compensation for loss of earnings . The court also awarded the applicant ORG CARDINAL in compensation for medical and travel expenses .

On DATE ORG , following the defendant ’s appeal in cassation , quashed the judgment of DATE and remitted the case for a fresh consideration to the same court . The regional court held that the first - instance court had failed to take into account the conclusions contained in its decision of CARDINAL DATE .

On DATE ORG awarded the applicant a lump sum of ORG MONEY and a DATE allowance of ORG CARDINAL in compensation for the damage to her health and loss of earnings ; ORG CARDINAL for non - pecuniary damage ; and ORG CARDINAL in compensation for medical , travel , and legal costs and expenses .

On DATE Mr PERSON appealed against the judgment of CARDINAL DATE .

By separate decisions of DATE and CARDINAL DATE , the same court awarded the applicant additionally ORG CARDINAL .

On DATE ORG quashed the decisions of DATE , DATE and CARDINAL DATE and adopted a new judgment on the merits of the case . The court awarded the applicant a lump sum of ORG CARDINAL,CARDINAL.CARDINAL and a DATE allowance of ORG CARDINAL . The court further rejected the applicant ’s claims for non - pecuniary damage and costs and expenses .

The parties did not appeal in cassation .


His wife died in DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows ' benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows ' benefits because he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no security benefits were payable to widowers under GPE law .

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


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant had been working as a licensed doctor in GPE from DATE . Since DATE he has been practising medicine in GPE .

He is a member of ORG ( PERSON ) , a corporation under public law and since DATE had been paying compulsory contributions to its pension scheme until his change of residence to GPE in DATE .

Prior to his move to GPE , he was informed by ORG pension scheme ( GPE ) that he could either terminate his membership or continue to stay as a member on a voluntary basis while paying contributions at the full or a reduced rate . The applicant opted for the continuation of his membership and chose to pay voluntary contributions in an amount equal to CARDINAL of the maximum contribution rate .

Since DATE he has also paid the full compulsory contribution to the relevant GPE pension scheme .

Ever since his move to GPE the GPE pension scheme has informed the applicant DATE in writing about the amount of his future pension entitlement . He objected to the corresponding notifications on several occasions alleging that while the amount of contributions had been increased , his expected pension had been unduly reduced compared to DATE . He was repeatedly informed by the GPE pension scheme that the decrease of his pension entitlement was due to the agreed adjustment of his contributions DATE .

By letters of CARDINAL and DATE the GPE pension scheme advised the applicant of the option to have the meanwhile accrued contributions transferred to the GPE pension scheme subject to the latter 's approval . It further specified that a transfer of the contributions could only be effected by means of a direct payment to the GPE pension scheme and that it was not possible to disburse the amount accrued to the applicant himself . By a letter dated DATE the applicant asked for his contributions to be transferred .

On DATE the GPE pension scheme informed the applicant that the conditions of a transfer were not fulfilled since the GPE pension scheme was not in a position to accept a direct transfer of the contributions . The applicant notified the GPE pension scheme on DATE that he nevertheless wanted to continue the payment of his voluntary contributions .

NORP In reply to a further objection by the applicant on DATE regarding the calculation of the amount of his future pension entitlement , the GPE pension scheme , by letter dated DATE , specified that the definite amount of the applicant 's pension claim would be determined once he had become eligible to the actual payment of pension benefits and could only be challenged together with a corresponding payment order .

On DATE the applicant brought an action against ORG ( PERSON ) with ORG claiming the transfer of the total amount of his compulsory and voluntary contributions accrued with ORG pension scheme including interest and compensation for inflation to the GPE pension scheme . Alternatively , he requested that the GPE pension scheme be obliged to freeze his pension entitlement at the current amount while maintaining the amount of contributions to be paid by him .

By a letter dated CARDINAL DATE ORG informed the applicant that there existed doubts as to the admissibility of his action . It asked in particular for information as to whether there existed a decision of ORG rejecting the transfer of his contributions and whether he had instituted preliminary administrative proceedings ( PERSON ) in this respect . As regards the applicant 's alternative action , ORG pointed out that a corresponding dispute could only be instituted once the applicant was entitled to the payment of the pension . The applicant replied by letter dated DATE .

By letters dated DATE and DATE ORG submitted its written observations to which the applicant replied by written submissions dated DATE .

At his repeated request , the applicant was informed by ORG , by letters dated DATE , DATE and DATE , that it was not yet foreseeable when a decision in the matter would be taken since older pending matters were being treated as a priority .

On DATE ORG assigned the case to a single judge for a decision .

On DATE a hearing took place . By a judgment of DATE ORG dismissed the action as primarily inadmissible and did not grant the applicant leave to appeal .

As regards the applicant 's claim for a transfer of his pension contributions ORG held that he was lacking the need for judicial relief ( Rechtsschutzbedürfnis ) since following the failed attempts to transfer the contributions in DATE the applicant had voluntarily continued to pay the contributions and had not repeated his request to have them transferred by the GPE pension scheme . It found that the applicant could only have had recourse to the courts after having challenged an administrative decision rejecting his request . The applicant 's alternative claim was rejected as manifestly ill - founded by ORG .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award

In DATE , the applicant let at a low rent , pursuant to a DATE law on rent control ( equo canone ) , an apartment he owned in GPE .

On DATE the applicant served a notice to quit ( disdetta ) on the tenant on expiry of the term on DATE , but she refused to leave .

In a writ served on the tenant on DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate ( pretore ) .

In a decision of DATE , which was made enforceable on DATE , the magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On an unspecified date the applicant served notice ( precetto ) on the tenant requiring her to vacate the LOC . He subsequently served notice on the tenant informing her that the order for possession would be enforced by a bailiff ( significazione di sfratto ) .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful as , under the statutory provisions providing for the suspension or staggering of the evictions , the applicant was not entitled to police assistance . The competent prefect , in fact , had to give priority in the grant of police assistance to any pending urgent cases .

Thereafter , the applicant decided not to pursue the enforcement proceedings , in order to avoid useless costs , given the lack of prospects of obtaining the assistance of the police . He resumed the proceedings on DATE , unspecified date .

On DATE the bailiff evicted the tenant . In the report on the eviction , the bailiff noted that the tenant , who was elderly and sick , had been lying in bed for DATE ; she had to be transferred by ambulance to a council flat which was allocated to her by GPE on DATE .

The applicant thus recovered possession of his flat .

The relevant domestic law is described in the ORG GPE judgment of DATE , to be published in the ORG ’s official reports , § § DATE .