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

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

In DATE the applicant ’s father , then a NORP citizen , owned an estate of QUANTITY in ORG ( hereinafter the “ ORG estate ” ) , on the territory of the former GPE ( GPE ) . The applicant ’s father emigrated to GPE ( GPE ) in DATE and obtained GPE citizenship in DATE . The ORG estate was initially leased to ORG in GPE ( GPE für Land- PERSON in der sowietischen Besatzungszone ) , which was subsequently appointed as a ORG . In DATE a legal - entity certificate ( PERSON ) was issued , declaring the ORG estate to be the property of the GPE ( ORG ) . When his father died in DATE , the applicant inherited the ORG estate as well as the entitlement to claim any compensation that might be paid by a government in respect of the estate . The applicant subsequently declared before ORG in GPE that he wished to renounce his hereditary rights in favour of his sister , a NORP citizen . In DATE the applicant withdrew the renunciation with his sister ’s consent .

In DATE the GPE went into bilateral negotiations with GPE over unresolved financial and property issues . In DATE the NORP government declared the ORG estate as property requiring compensation by the GPE .

DATE the GPE concluded several “ Lump Sum ” Agreements ( Globalentschädigungsabkommen ) with ORG . The GPE thus concluded with the NORP government , on DATE , an Agreement under which the GPE was to pay the amount of MONEY ( ORG ) on the basis of unresolved property and financial issues . The Agreement entered into force on DATE . After NORP reunification , GPE ( FRG ) succeeded to that treaty pursuant to LAW ( Einigungsvertrag ) in conjunction with the proclamation of DATE on the expiration of international agreements between the GPE and GPE ( GPE über das GPE völkerrechtlicher GPE ORG ) .

During the negotiating of the relevant Lump Sum Agreement , the GPE disagreed on whether CARDINAL particular estates , among them the ORG estate , should fall within the scope of the ORG . The GPE delegation was of the opinion that , because of its size , the ORG estate had to be regarded as PERSON ( land which comprised CARDINAL hectares and which was situated in LOC of GPE after the Second World War ) , and , being covered by the land reform ( PERSON ) , would not give rise to compensation . The GPE further argued that the estate had become its property ( ORG ) . All claims that the CARDINAL delegations did agree upon had been added to a list prepared by the NORP delegation which was distributed upon the conclusion of the Agreement . Because of the above - mentioned dispute , the ORG estate had not been included on that list .

Article CARDINAL of the Lump Sum Agreement provided that all unresolved property and financial issues between the parties should be settled exhaustively and with final effect upon entry into force of the Agreement . The desire to settle these issues comprehensively had also been expressed by GPE in the LAW .

Upon her application , the applicant ’s sister received , from the lump sum , an amount of MONEY ( ORG ) in respect of the ORG estate .

In DATE the ORG was registered as the owner of the ORG estate in the land register . The applicant subsequently instituted proceedings for the return of the property . On DATE the GPE an der Oder Regional Court ordered the ORG to return the ORG estate and to approve the rectification of the land register . The court found that the applicant ’s claim had not been extinguished by the NORP government ’s payment of MONEY , under LAW , to his sister . The court held that LAW only concerned claims of NORP citizens with regard to property situated in the GPE , whereas the applicant held GPE citizenship .

On appeal by the defendant , ORG , on DATE , quashed the GPE an der Oder ORG judgment of DATE and dismissed the applicant ’s claim . ORG noted that the GPE an der ORG had not been provided with the relevant and decisive facts regarding LAW . Even though his father ’s property had not been formally expropriated by the GPE , the applicant ’s claim had been extinguished by the entry into force of LAW which also comprised the ORG estate , despite the fact that the latter had been the subject of debate between the CARDINAL parties to the treaty . In return for the payment of the lump sum by the GPE , the NORP government had waived any claims of its citizens regarding property situated in the GPE .

Applying Articles CARDINAL et seq . of LAW on LAW of DATE ( the “ LAW ” ) , ORG found that the LAW also comprised the ORG estate . Even though ORG noted that this conclusion could not be derived directly from the wording of the LAW , the interpretation of LAW and CARDINAL in conjunction with the Preamble showed that GPE had opted for a final and exhaustive solution to all property issues . ORG considered the materials from the negotiations and found that the NORP government had not been content with the original amount of compensation proposed by the GPE delegation . The NORP delegation had insisted that compensation was also to be paid in respect of the CARDINAL estates which were the subject of debate , in order to avoid any liability for damages in relation to the individuals who claimed to be the owners of these estates . The GPE had thus raised the lump sum by a fixed amount ( a so - called GPE ) , which would enable GPE to pay compensation to each of the individuals who claimed to be the owners of the disputed estates once the claimants from the list distributed upon the conclusion of the Agreement had been satisfied . In raising the amount of the lump sum by the GPE , the GPE did not have to give up its legal view on those estates and avoided recognition of corresponding claims . ORG held that the fact that the ORG estate had not been included in the list of claims did not prove that it was not covered at all by the ORG , but rather that compensation had been paid from the GPE .

ORG also considered a statement on the matter by ORG ( which the applicant had submitted ) but found that , even though ORG had suggested a different assessment of the LAW , it was based on the same facts and consequently did not lead to a different interpretation in the present case . ORG noted that , on the contrary , the statement had been submitted together with a report of ORG in charge of distributing the lump sum to the legitimate claimants . In that report , ORG explained that it had informed the claimants in respect of the CARDINAL estates at issue , among them the applicant ’s sister , that their claims could be satisfied by the GPE . The claimants had not objected to this procedure . Moreover , ORG regarded the fact that the applicant ’s sister had accepted and received an amount from the lump sum as a further indication that the ORG estate had been covered by the ORG . Taking into account the relatively high amount of the lump sum , a proper reading of LAW and CARDINAL showed that the ORG was not only binding under public international law upon the CARDINAL GPE parties , but that it had also settled , with final effect , private claims of NORP citizens against the GPE . The distribution of the lump sum to the claimants would have been incomprehensible if they had retained their private claims against the GPE .

The question of the validity of the applicant ’s renunciation of his hereditary rights in DATE , in favour of his NORP sister , was not decisive in the view of ORG . Because of the then existing political situation , the applicant , as a GPE citizen , could not have expected the conclusion of a similar lump sum agreement between the GPE and the GPE . The renunciation had represented the applicant ’s only option if his family were to receive some compensation in respect of the ORG estate through the NORP government . The fact that he had only withdrawn the renunciation in DATE , after the historical context had changed , proved that the applicant had originally accepted that the payment from the lump sum to his sister settled all claims in respect of the ORG estate with final effect . Irrespective of his GPE citizenship , the Agreement was therefore also binding on him . ORG further found that it did not matter whether or not the LAW had been incorporated into the domestic law of the GPE in accordance with the applicable provisions .

ORG dismissed the applicant ’s appeal on points of law on DATE . The applicant subsequently brought proceedings for restitution and submitted material that he had previously submitted only to ORG . ORG dismissed his application on DATE . The applicant did not lodge an appeal on points of law against the judgment of CARDINAL DATE .

On DATE ORG refused to admit the applicant ’s constitutional complaint . It did not rule on whether the applicant had exhausted all available remedies before the ordinary courts in view of the possibility of lodging an appeal on points of law against the CARDINAL DATE judgment of ORG . ORG found that ORG interpretation of LAW , which after reunification had also become binding on the ORG , had not violated any of the applicant ’s fundamental rights . It stated that , in principle , it was for the ordinary courts to apply and interpret international treaties , subject to review by ORG which would apply the same standards as for the review of the application of domestic law by the ordinary courts . It found that the right of property , as enshrined in LAW , was not applicable on the territory of the former GPE . Hence it reviewed the judgments of ORG from the angle of the prohibition of discrimination ( PERSON ) under LAW in conjunction with the principle of the rule of law ( LAW of LAW ) . ORG found that there would have been a violation of LAW of LAW only if the interpretation of the ordinary courts had been manifestly erroneous . This had not been the case . ORG view that the applicant ’s property claim had been extinguished upon the entry into force of the Agreement had been based on the principle of diplomatic protection whereby , through the person of its nationals , a ORG can assert its own right to ensure respect for the rules of international law . Therefore , GPE ’s waiver of the property claims in return for receiving the lump sum was valid under international law for the applicant as well as the claimants , irrespective of whether or not GPE had been entitled to make the waiver under domestic law . Moreover , ORG interpretation of LAW and its application of LAW seq . of LAW could not be regarded as arbitrary . Referring to a judgment of ORG ( GPE cases , Preliminary Objections , ICJ Reports DATE , p. CARDINAL ) , ORG stated that the object and purpose of an international treaty could take priority over its wording . In so far as the applicant complained about a breach of LAW ( a ) of LAW , because the non - inclusion of the ORG estate in the list of claims had not been regarded as decisive by the domestic courts , ORG held that the applicant had failed to demonstrate that the list had become an integral part of the LAW . It found that ORG had sufficiently considered the list when dealing with the purpose of the LAW and the course of its negotiation . ORG reasoning on the applicability of the LAW to the applicant ’s case as well as its analysis of the negotiations leading to the LAW , in particular the fact that the GPE did not recognise the applicant ’s sister ’s claim while GPE , at the same time , had to insist on the claim in order to avoid its own liability , was regarded as being in accordance with LAW ) .

Pursuant to its LAW , the Lump Sum Agreement covers property and financial claims of GPE as well as of NORP citizens and legal persons with regard to property which was under GPE administration , provided that they were so entitled both on DATE and on the date of the signing of the Agreement . Article CARDINAL provides for the payment of ORG CARDINAL by the GPE to GPE as compensation for the property and financial claims covered by LAW .

Under LAW all unresolved property and financial issues between the parties were to be settled exhaustively and with final effect on the entry into force of the LAW . In the LAW to the LAW , GPE expressed the desire for a comprehensive settlement of these issues .

“ CARDINAL . A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose .

The context for the purpose of the interpretation of a treaty shall comprise , in addition to the text , including its preamble and annexes : ( a ) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty ; ( b ) any instrument which was made by CARDINAL or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty .

There shall be taken into account , together with the context : ( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions ; ( b ) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation ; ( c ) any relevant rules of international law applicable in the relations between the parties .

A special meaning shall be given to a term if it is established that the parties so intended . ”

“ Recourse may be had to supplementary means of interpretation , including the preparatory work of the treaty and the circumstances of its conclusion , in order to confirm the meaning resulting from the application of DATE , or to determine the meaning when the interpretation according to LAW or obscure ; or ( b ) leads to a result which is manifestly absurd or unreasonable . ”


Violation of Art. 3;Violation of Art. 10;Non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

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

The applicant 's wife and son have been suffering from chronic renal failure ( a gradual and progressive loss of the ability of the kidneys to excrete waste , concentrate urine , and conserve electrolytes ) since DATE and DATE respectively . Consequently they need haemodialysis ( a medical procedure that uses a machine to filter waste products from the bloodstream and to restore the blood 's normal constituents ) . They are both disabled on account of their disease ( first degree disability , PERCENT unfit for work ) .

While they live in GPE in GPE - Vodă county , they have to travel to PERSON to receive their haemodialysis treatment . Initially , their transportation costs were covered by the regional hospital . However , starting from DATE , the hospital no longer covered these expenses . In order to continue to benefit from financial help , the applicant 's wife and son had to apply to the regional council , which could include the relevant expenses in the regional budget . The hospital informed the regional council about the situation . It also requested a confirmation that the applicant 's wife and son actually lived in GPE . Such a confirmation from the competent ORG authority was provided on DATE .

On DATE the regional council discussed amendments to the regional budget in order to include additional expenses to cover transportation costs for CARDINAL persons requiring haemodialysis in the county . All those in need of such support were granted it , except for the applicant 's wife and son . The reason for the refusal was certain information about the fact that they lived in PERSON and not in GPE and therefore did not need transportation to obtain haemodialysis treatment . The decision regarding the applicant 's wife and son was postponed .

On DATE the regional council did not include on its agenda the issue of financial aid to the applicant 's wife and son .

On DATE the regional council met again , and a declaration from the applicant 's wife was distributed to all the councillors . The issue concerning financial aid to the applicant 's wife and son was put on the agenda . When it was examined , several councillors spoke against introducing the amendments . The county President GPE stated that he had only seen the applicant twice ( implying that the latter did not live in GPE ) and that he was against misappropriation of public funds . Some councillors spoke of the applicant 's wife and son living at specific addresses in PERSON and not needing financial support . Others mentioned the applicant 's complaints to various authorities , including courts , against PERSON , and the need to protect him from unwarranted attacks .

Then the applicant took the floor . According to the minutes of the meeting , he stated : “ ... what is most insulting is that my son was indeed a student until DATE , when his health worsened and he had to abandon his studies . My wife asked for help in DATE , but that was refused . They told her that she was good to go cultivate the land . My boy is not [ in PERSON ] . I do not take back my words that PERSON is a fascist ... ” .

According to the applicant , he did not insult anyone during the meeting and did not use the word fascist .

After the applicant 's statement , he was invited to leave the room and he eventually did so .

PERSON , the president of FAC , used to be the head of the regional police station in the same county . In DATE he initiated criminal proceedings against the applicant for failure to pay taxes , following which the applicant was convicted on DATE . At the meeting on CARDINAL DATE one councillor noted that the applicant had made CARDINAL complaints against ORG to various authorities , including courts .

On DATE PERSON asked the regional police station to initiate proceedings against the applicant for insulting members of the regional council “ during a meeting on DATE ” . He lodged an identical request with the prosecutor 's office .

The applicant unsuccessfully asked the police to discontinue the proceedings , in the absence of a proper written or audio record of the statements made during the meeting on DATE . According to the applicant , at the beginning of the meeting it was declared that an audio recording was being made . The applicant asked for a copy of the audio record of the meeting , which was refused . He later initiated court proceedings in order to obtain that record , but the courts rejected his claims .

On DATE a police officer charged the applicant with having insulted PERSON on DATE . The case file was sent to the local court , together with the TIME of the meeting on DATE and statements by CARDINAL witnesses . CARDINAL of the witnesses stated that the applicant had called PERSON a fascist for leaving his family without any help , while another said that the applicant had used a number of insulting words , without specifying which . The third ( PERSON ) explained that the applicant had not insulted anybody and even if some of his words could be considered vulgar , nobody was affected .

Again on DATE the applicant was brought before the court . According to the applicant , he asked for witnesses to be heard in order to confirm that he had not insulted anyone . Without reacting to his request , and after a TIME hearing , the judge convicted and sentenced him to DATE detention . The court found that the applicant had called GPE a “ fascist ” and “ other insulting words ” . The applicant was immediately placed in detention and served DATE .

On DATE the applicant appealed , referring to the absence of an audio record of the meeting and the statement by CARDINAL of the CARDINAL witnesses regarding the absence of any insulting meaning in his words during the meeting .

ORG scheduled the hearing of the applicant 's appeal for DATE . On TIME he registered a request with that court 's registry to postpone the hearing due to the fact that he already had another hearing scheduled before ORG on DATE . The court held the hearing on DATE and did not refer to the applicant 's request . It rejected the applicant 's appeal as unfounded , finding that the lower court had properly examined the case and established that the applicant had insulted PERSON

On DATE the newspaper ORG published an article describing the applicant 's case . In reaction to that article , on DATE PERSON and another regional councillor present at the meeting of DATE wrote to the applicant 's wife , explaining the reasons for the decision taken earlier rejecting help for her and her son due to the lack of information . They added that the applicant had not insulted anyone during that meeting .

The applicant asked for the reopening of the proceedings in view of his absence from the hearing of DATE , but the request was refused on CARDINAL DATE . A further request to ORG office to initiate the reopening of the proceedings was also refused on DATE .

NORP In parallel to the above events , on DATE PERSON asked the police to initiate criminal proceedings against the applicant for forging documents confirming his family 's residence in Palanca . The investigation was discontinued on DATE because the applicant and his family had their true residence in GPE . On DATE the prosecutor 's office initiated court proceedings aimed at deleting the applicant 's family 's registration as residents of ORG . On DATE the Prosecutor General 's office withdrew that court action .

The applicant contends that he was detained for DATE , together with CARDINAL other persons , in a cell measuring QUANTITY . The cell was in the basement of the police station and was damp and dark , the window being covered by a metal sheet with holes in it . There was a wooden platform in the cell , QUANTITY wide , which was used as a bed by all CARDINAL detainees . No bed linen was provided and all the detainees had to sleep in their clothes . Heating was very limited and it was cold in the cell . All the other detainees smoked , exposing the applicant to passive smoking . Food was served CARDINAL times a day and CARDINAL of the meals were limited to a pot of tea and a slice of bread . There was no toilet or running water in the cell . Detainees were escorted to the toilet twice a day for TIME each , which was insufficient for their needs . They therefore had to urinate into plastic bottles in between their visits to the toilet , in plain view of the other detainees . There was no hot water and the applicant could not take a bath during his detention .

On DATE the applicant 's wife and daughter wanted to visit him , but this was refused because of the short term of the applicant 's detention . His request to meet his family was also rejected because he was “ without exit ” , as noted also on the minutes of the personal search to which he was subjected upon being placed in detention .

On DATE the applicant asked permission to visit a church in order to attend religious services after his mother 's death on DATE . This request was refused since he had not yet served DATE of detention . The applicant did not leave the cell during DATE , except for the short visits to the toilet . Since his glasses were taken away upon placement in the detention cell , he could not read newspapers and there was no radio or TV in the cell .

The relevant provisions of LAW read as follows :

Administrative detention shall be applied only in exceptional cases for certain categories of administrative offences for a period of DATE . Administrative detention shall be applied by the court ... ”

Insult , i.e. an intentional attack on a person 's honour and dignity by act , orally or in writing , shall be punished by CARDINAL times the conventional unit or by administrative detention of DATE ... ”

The Government submitted examples of domestic courts ' case - law awarding compensation to persons who had been detained in inhuman conditions of detention . The courts relied on LAW . The cases included the case of PERSON v. ORG , ORG and ORG ( nr . CARDINALa-CARDINAL/CARDINAL ) and the case of ORG ( cited in GPE , no . CARDINAL , § CARDINAL , DATE ) .

In its report concerning its visit to GPE on DATE the ORG found , inter alia , the following ( unofficial translation from original LANGUAGE ) :

“ CARDINAL . Conditions of detention

b. cells at local police stations

The cells seen by the delegation at the local police stations visited were not suitable for holding persons for TIME . They were dark , unventilated , unheated , dilapidated and dirty , and were equipped at best with a bench . In addition to cells , local police stations had a barred enclosure , referred to as a “ waiting room ” , which usually measured CARDINAL sq.m and was devoid of any equipment .

According to police staff , the cells were being used for periods of detention not exceeding TIME . However , the delegation received many allegations – and found documentary evidence in the custody records – that persons had in fact frequently been held TIME , on occasion for DATE .... Further , it became apparent that administrative detainees had spent DATE in cells at local police stations . The persons concerned had not been provided with mattresses or blankets , and had not been offered anything to eat ( the only food available was that brought by detainees ' families ) .

The current situation is totally unacceptable . The ORG calls upon the NORP authorities to take effective steps to ensure that nobody is kept TIME at local police stations . ORG steps should also be taken to equip all cells and “ waiting rooms ” with a means of rest ( e.g. a bench ) . Furthermore , all persons detained in local police stations , irrespective of their legal status , should be offered food at normal mealtimes . ”

The DATE 's response to paragraph CARDINAL of the ORG report DATE included the following statement ( unofficial translation from original NORP ) :

“ Despite the measures taken in the field of creating decent conditions of detention , in view of the insufficient funding , in certain IDPs the situation remains complicated . Following verifications made during DATE , ORG ordered , due to derogations from the legislation in force , the closing down of the IDPs in police stations of ... , ORG , ... ” .


Violation of Article 5 - Right to liberty and security

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by the police and charged with the offence of the unlawful possession of drugs .

On DATE the NORP - Saburtalo ORG in GPE remanded the applicant in custody for DATE . The court endorsed the prosecutor ’s argument that , in view of the applicant ’s prior conviction for which he had been on probation , there was a reasonable suspicion that he might abscond pending the new set of proceedings .

On DATE the prosecution brought against the applicant and CARDINAL other persons additional charges of conspiracy to commit the unlawful possession of arms , robbery and murder .

On DATE the NORP ORG extended the applicant ’s detention until DATE .

On DATE the investigator in charge of the case , notifying the applicant and CARDINAL other accused persons that the investigation had been terminated , invited them to study the case materials . The applicant contested the termination of the investigation , requesting that additional witnesses be examined . In a decision of DATE , the investigator , reasoning that the applicant could have made such a request earlier , dismissed it as an attempt to prolong the proceedings .

On DATE the authorised period of the applicant ’s detention expired without the court ordering its extension .

On DATE the applicant complained to the competent prosecution authority that his detention had been unlawful since CARDINAL DATE . He also challenged the termination of the investigation as premature .

In a decision of CARDINAL DATE , the NORP - Saburtalo district prosecutor dismissed the applicant ’s complaint of CARDINAL DATE as unsubstantiated . As regards the alleged unlawfulness of detention since DATE , the prosecutor reasoned that the time during which the accused studied case materials did not , under the relevant procedural law , count towards the detention term . In so far as the applicant and his representatives had started studying the case materials on DATE , this fact being proved by the relevant records of the investigator , the applicant ’s detention thereafter could not be said to be unlawful .

On DATE the NORP - Saburtalo district prosecutor sent the criminal case , along with the bill of indictment , to ORG of GPE for trial . According to the indictment , the CARDINAL accused persons and their lawyers had been examining the case materials DATE and DATE .

On DATE the applicant complained to ORG , reiterating , inter alia , that no judicial decision had authorised his detention since DATE . As to the prosecutor ’s reasoning that the time spent on studying the case materials had not counted towards the detention term , the applicant , relying on numerous factual details , first submitted that his lawyer had fully examined the file on DATE and CARDINAL May CARDINAL , in DATE . He further argued that , even if the investigator ’s formal records were to be trusted , then the examination of the file should be considered to have ended on DATE . Since his case had been referred for trial only on DATE , the applicant claimed to have been kept in unlawful detention for DATE . In the light of the above arguments , he requested to be released immediately .

On DATE ORG , having examined the admissibility of the case , decided to commit the applicant and the CARDINAL others for trial under LAW , CARDINAL and CARDINAL of LAW ( “ the ORG ” ) . Without replying to the applicant ’s allegations about the unlawfulness of his pre - trial detention , the court upheld the restraint measure on the basis of the “ nature of the charges ” and the inability to conduct , at the admissibility stage , a comprehensive judicial assessment of his arguments for release .

As disclosed by the case file , ORG relinquished , on DATE , jurisdiction over the criminal proceedings in favour of ORG . On DATE the applicant complained about the unlawfulness of his detention before the latter , reiterating his previous arguments .

On DATE the NORP ORG dismissed the applicant’ DATE , immediately after the termination of the investigation on CARDINAL DATE . This process lasted until DATE , DATE before the case was sent by the prosecutor for trial . Reiterating that , pursuant to LAW ORG , the period of examination of the case file did not constitute part of the authorised detention term , ORG concluded that the applicant ’s detention DATE and DATE should not be taken into account .

In an order of DATE , the President of ORG noted that , the applicant ’s criminal case file having been sent for trial on DATE , the permissible term of DATE for the defendant ’s pre - trial detention under Article CARDINAL ) § CARDINAL of the ORG would expire on DATE . Using his prerogative under the same Article to extend , in exceptional circumstances , the detention beyond that term , the President remanded the applicant in custody until DATE .

In a verdict of DATE of ORG , the applicant was convicted of the aforementioned offences and sentenced to DATE in prison . The period of imprisonment started to run , according to the verdict , from the date of the applicant ’s arrest on DATE .

Article CARDINAL § DATE “ ORG spent on studying the case materials ”

“ The time spent by the accused ( defendant ) and his or her representative on studying the criminal case materials shall not be counted towards the period of detention prescribed by law . ”

“ CARDINAL . Where there is a sufficient basis for hearing the case , the judge ( court ) , without prejudging the merits of the case , shall commit the accused for trial ...

During the admissibility hearing , in addition to deciding whether to commit the accused for trial ... , the judge ( court ) shall decide whether to impose a measure of restraint on the accused . ”

“ The judge ( court ) shall decide whether to commit the accused for trial within DATE or , in complicated cases , within DATE of delivery of a final judgment on the last criminal case registered with the same judge ( court ) . ”

The ORG distinguished CARDINAL periods of detention : detention “ pending investigation ” , whilst the case was investigated , and detention “ pending trial ” , whilst the case was tried by a court . Although there was no difference in practice between the CARDINAL periods of detention , the calculation of the time - limits was different .

Incorporated into the LAW by LAW , Article CARDINAL(CARDINAL ) contained provisional rules regulating the time - limits of the above - mentioned periods of detention . Pursuant to ORG CARDINAL(CARDINAL ) § CARDINAL , those provisional rules , particularly that contained in LAW , were to remain valid until the entry into force of Article CARDINAL , the latter provision introducing shorter time - limits of detention .

Article CARDINAL § CARDINAL stated that Article CARDINAL would enter into force on DATE .

Pursuant to Article CARDINAL(CARDINAL ) § CARDINAL , if CARDINAL levels of jurisdiction were involved , the permitted term of detention “ pending trial ” was DATE . However , in “ exceptional circumstances ” , the President of ORG could extend that term to a maximum of DATE .

An amendment of DATE , which entered into force on CARDINAL DATE , further revised Article CARDINAL , by reducing the maximum permissible term of detention pending “ investigation ” and “ trial ” , to DATE , both periods taken together . Simultaneously , LAW was amended to bring LAW into force on DATE . Consequently , the provisional rules on the detention time - limits contained in Article CARDINAL ) also remained in force until DATE ( see Article CARDINAL(CARDINAL ) § CARDINAL above ) .

The complainant challenged the constitutionality of LAW ORG . On DATE ORG declared that the provision was not only unconstitutional but also incompatible with LAW . However , ORG ruled in the operative part of its judgment that , in order “ to avoid the creation of difficulties for the investigative authorities ” , the enforcement of its judgment by the annulment of the impugned provision should be delayed until DATE .

Pursuant to section CARDINAL § CARDINAL , if ORG found the challenged legislative provision to be unconstitutional , that provision should be considered null and void from the moment the relevant judgment was pronounced .

Under LAW , ORG judgment should be enforced immediately after its announcement , unless another date was fixed .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

NORP The applicant , PERSON , is an NORP national who was born in DATE and is currently serving a prison sentence in GPE penitentiary institution in GPE . He was represented before ORG by Ms N. PERSON and Mr PERSON , lawyers practising in GPE , and PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , Representative of GPE at ORG .

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

NORP The applicant was born in DATE in GPE , GPE . He is NORP by origin .

NORP In DATE the applicant moved with his family to GPE . In DATE he graduated from ORG , with a degree in history and oriental studies . From DATE , the applicant worked in ORG as a historian and oriental specialist . From DATE to DATE he also worked for ORG radio as a presenter and translator into NORP .

In the same period , from DATE to CARDINAL , the applicant served with the intelligence service of the ORG military circuit under the codename “ LOC ” . He had the rank of chief radio operator and his functions included carrying out appropriate activities on the territory of GPE in times of war .

DATE the applicant worked as the head of the division for GPE in ORG . In DATE he also worked as the chief expert in ORG of GPE .

In DATE the applicant was appointed as a NORP interpreter and chief specialist on GPE at ORG , where he worked until his dismissal in DATE due to a reduction of the staff .

From DATE the applicant wrote analytical articles for a number of NORP ( PERSON , PERSON and PERSON ) and NORP ( Radical ) newspapers . He also worked on a contractual basis for other NORP media : from DATE for ORG ( PERSON ) , and from DATE for the ORG station and the ORG web - site . The applicant also cooperated with ORG ( ORG ) . Furthermore , he regularly accompanied NORP journalists on their visits to GPE in the capacity of an interpreter .

The applicant submits that from DATE he became involved in trade , making regular trips to GPE , alone or with his wife , re - selling clothes .

On DATE criminal proceedings were instituted against the applicant , who was suspected of collecting information concerning events , organisations and people in GPE and PERSON , and communicating it to the NORP intelligence services .

On DATE at TIME the applicant and his wife , while on their way to GPE , were arrested at the NORP - Georgian border and were placed in different rooms in the customs office . Thereafter , they were searched and placed in a police car , where they stayed until TIME .

On DATE at TIME the police car headed for GPE . Upon arrival in GPE at TIME the applicant and his wife were placed in different rooms in ORG ( ՀՀ ազգային անվտանգության նախարարություն ) .

On DATE from TIME to TIME the applicant was questioned as a suspect . According to him , the investigators applied psychological pressure and blackmail , forcing him to confess . In particular , they threatened that , if he refused to confess , his wife and his epileptic son would be detained . The applicant submitted that , for this reason , he had no other choice than to confess . Thus , in order to defuse the situation , to have his wife released and to gain some time by fooling the investigators , he decided to make a false confession by making up a story which included fictitious names , districts and undercover flats which never existed . As a basis for his story he used certain real people and circumstances encountered on his regular trips to GPE .

On DATE the applicant was formally charged under LAW of the then Criminal Code ( ՀՀ քրեական օրենսգիրք , CARDINAL.CARDINAL.CARDINAL – “ the ORG ” ) with espionage committed to the detriment of GPE ’s sovereignty , territorial integrity , national security and defence . In particular , he was charged with being enrolled in ORG ( PERSON Teskilati – “ the ORG ” ) in DATE and until DATE providing information to them on a paid basis concerning GPE ’s and PERSON military , economic and political spheres , in particular concerning the NORP troops based in GPE .

On DATE the applicant was remanded in custody by a court order . From TIME to TIME the applicant was questioned again in connection with the above charges . He submitted that he did not wish to have a lawyer . He further admitted his guilt and repented of his actions .

In sum , the applicant ’s confession statements of CARDINAL and CARDINAL DATE contained the following submissions . The applicant had established his first contact with various NORP journalists during his work at ORG , as part of his public relations function . Some of these contacts had later developed into professional cooperation , such as preparation of journalistic materials for the ORG and ORG . In DATE the applicant had started to prepare analytical materials concerning GPE ’s political and economic spheres for the ORG officers whom he had met in DATE during his trip to GPE . Later , the communicated materials had also included information of a military nature . To collect the materials in question the applicant had used the NORP press and his personal knowledge . The information had been communicated in the form of either written reports or the applicant reporting in person and answering questions which interested the ORG officers .

On DATE the applicant ’s wife hired a defence counsel who was admitted to the case on DATE .

On DATE and DATE the applicant was questioned again , in the presence of his defence counsel , during which the applicant made further submissions and certain questions relating to his previous statements were clarified .

In DATE the applicant dispensed with the services of his defence counsel and hired another one .

On DATE the applicant made a written statement , retracting his confession statements made earlier . In his statement he presented the allegedly true version of events , describing how since DATE he had started to prepare analytical articles for the ORG web - site and how little by little he had become involved in trade with GPE , thus making more frequent trips to that country . He indicated the names of various people , their relevance and the discussions he had had with them during his trips . The applicant contended that he had never cooperated with any foreign organisation except for mass media . As to his confession statements made earlier , these were a tactical move aimed at having his wife released from detention , securing the safety of his family and preventing any possible violence against himself .

On DATE the charges against the applicant were modified and stated in greater detail . It was , inter alia , stated that since DATE he had cooperated with various ORG officers , who mostly operated under the veil of journalistic activities . At the beginning , various means had been used to communicate information , such as letters , faxes and telephone calls , but from DATE the applicant had established direct contact with the officers of the ORG GPE office . The act imputed to the applicant was once again qualified under LAW as espionage committed to the detriment of GPE ’s sovereignty , territorial integrity , national security and defence .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) found the applicant guilty under LAW ORG and sentenced him to DATE in prison with confiscation of all property , concluding that it was substantiated that the applicant had committed high treason and that the act committed by him had been qualified correctly and had features of an offence prescribed by LAW . ORG found :

“ After the dissolution of the GPE , [ the applicant ] , by occupying various high posts in GPE and by being very fluent in NORP , NORP and NORP , was spotted by [ the ORG ] ... Within this period , [ the applicant ] regularly met and maintained contact with various NORP journalists , including [ ORG , GPE , ORG and ORG ] , providing interpretation services or information . According to information received from ORG [ ( ORG ) ] and ORG [ ( ORG ) ] , these individuals were directly linked with the NORP intelligence services ... ”

ORG went on to detail the positions held by the above individuals and their alleged involvement with the NORP intelligence services . ORG further found that :

“ Having financial problems and being unable to repay his debts , in DATE [ the applicant ] travelled to GPE in search of a well - paid job . There he stayed with his cousin [ I. ] ... [ O]n DATE [ I. ] introduced [ the applicant ] to CARDINAL ORG officers , [ T. and N. ] . They told [ the applicant ] that they needed information concerning ORG [ ( ORG for ORG ) ] , ORG , ORG [ ( ORG ) ] , GPE ’s internal political situation , foreign policy and economic relations , and the NORP troops based in GPE . [ The applicant ] told them that he wanted MONEY for his services . [ T. and ORG ] promised to discuss the issue of remuneration with their superiors . On DATE [ the applicant ] , having met again with the above - mentioned ORG officers , asked them to help him first to repay his debts , after which he would cooperate . During their third meeting on DATE ... [ the applicant ] received a down payment of ORG CARDINAL from ORG officer [ T. ] and promised to provide the required information in DATE . On DATE , upon his return to GPE , [ the applicant ] started to single out from media publications the information which interested the NORP intelligence officers , with the intention of providing it to them later .

On DATE [ the applicant ] travelled to GPE and on DATE he communicated that information to ... the ORG officers . [ He also ] answered their questions concerning GPE ’s internal political life , the political parties in GPE , the contacts that he had with members of these parties , and the activities and location of ORG , receiving USD CARDINAL,CARDINAL from the ORG officers as remuneration for the completed assignment ...

[ On DATE the applicant ] ... met in an undercover flat with ORG officers [ T. and ORG ] , who were displeased with the fact that he provided only media publications and demanded that he use his contacts and provide unpublished secret information concerning GPE ’s political and economic life . [ The applicant ] explained that , in spite of having many contacts with people who had access to confidential information , they would not allow him – and he was not able – to extort secret information . Thereafter , he told them about recent political events in GPE , newspapers published in GPE and their editors ... DATE [ the applicant ] was presented to another ORG officer who introduced himself as [ PERSON ] ... [ PERSON ] reproached [ the applicant ] for providing information with a delay of DATE and explained that high remuneration was out of the question without him providing secret or military information ... At the meeting of [ DATE T. ] demanded that , from that moment , [ the applicant ] indicate his sources when providing information . On DATE [ the applicant ] ... met with [ T. and N. ] and received USD MONEY from [ T. ] in return for the information provided . [ N. ] advised [ the applicant ] to engage in small - scale trade , thereby justifying his frequent trips to GPE ...

On DATE , in GPE , [ the applicant ] met with [ ORG and another officer replacing T. ] and told them about the NORP communities in GPE and the FAC and PERSON regions of GPE . Thereafter , [ the applicant ] presented his notes containing information of a military nature which included information concerning the guarding of the western and southern borders of GPE by the NORP and NORP border guards , the commander of the NORP border guards , the CARDINAL check points at the NORP - Turkish border , the check point at the NORP - NORP border , the presence of border guards in GPE airport , the length of the NORP - NORP and NORP - NORP borders , high - ranking officials in ORG of GPE , the strength of the NORP army and the conscription quota , the bridges in GPE , the troops based in GPE and other similar information . During a regular meeting held in an undercover flat [ the applicant ] was asked questions about NORP weapons and material in GPE . Most of the military - related questions had narrow specialisation and the names of the material were presented in NORP and numerical notes . [ The applicant ] drew the general layout of GPE , indicating the military objectives and bridges in the city , and provided other information . As remuneration [ the applicant ] received from the ORG officers CARDINAL and he returned to GPE .

Continuing his cooperation with the NORP intelligence service and carrying out their assignments , [ the applicant ] - before DATE - travelled to GPE also in DATE and DATE , on each occasion providing to the ORG officers information concerning GPE which interested them and receiving USD CARDINAL,CARDINAL as remuneration . In DATE [ the applicant ] , having received an assignment , wrote down on a blue lined sheet of paper the questions that interested the ORG , which included the military cooperation with GPE , the new weapons provided to GPE by GPE , their location and quantity , the anti - aircraft defence system , ORG , GPE and other issues .

On his last trip to GPE ... on DATE [ the applicant ] was arrested and various documents and notes prepared by him for the ORG officers were found in his possession , which included the answers to the assignments previously received from the NORP intelligence officers as indicated above . This information was collected by [ the applicant ] from various sources and included data concerning the aid provided to GPE by GPE , the credit extended to the GPE from the NORP budget , the unlawful acts taking place in the NORP army , the location of the NORP border - guarding military units , the ammunition and material provided to GPE by GPE as military aid , the military bases used by GPE , the NORP delegations that visited the Nagorno Karabakh Republic for purposes of elimination of mines and missiles , the aid provided to GPE by GPE , the recruitment to the NORP troops based in GPE , the representatives of ORG based in GPE , as well as other information concerning GPE ’s military , political and economic spheres . The following items were also found in [ the applicant ’s ] possession : a map of GPE and a tape recording of a conversation between [ the applicant ] and the NORP secretly made by him at ORG of the NORP - Kurdish Friendship which [ the applicant ] was intending to transmit to the ORG officers as proof of an actual contact with members of ORG .

In such circumstances , the commission of high treason by [ the applicant ] has been substantiated , [ and ] the act committed by him has been qualified correctly and falls within the scope of LAW of LAW . ”

ORG , as a basis for its findings , first cited in detail the applicant ’s confession statements made during the investigation . It further cited CARDINAL witness statements : CARDINAL of the witnesses DATE who had worked with the applicant in the intelligence service before DATE – characterised him as a well - trained intelligence officer , and CARDINAL others stated that they had met the applicant at ORG of the NORP - Kurdish Friendship and had known him as a translator . As material evidence , the court cited the above tape recording , the map of GPE printed in DATE , the blue lined sheet of paper , a notebook containing the telephone numbers of the ORG officers , the information note received from the ORG and prepared on the basis of materials provided by the ORG , and other notes found in the applicant ’s possession .

As regards the above confession statements , it appears that the applicant unsuccessfully attempted to rebut them in court . He submitted that he had deliberately given self - incriminating statements in order to have his wife released from detention , to gain some time so that the NORP and NORP intelligence services could intervene and deny the suspicions , and to prevent any possible violence against himself .

On an unspecified date , the applicant lodged an appeal . In his appeal , he complained , inter alia , that the judgment was mainly based on his self - incriminating statements which the court wrongly considered as “ confession statements ” . In reality , he was an analytical journalist and had never cooperated with the NORP intelligence services . The materials found in his possession were the result of his journalistic activities and were taken from the press . Both the investigating authority and the court had misinterpreted the notion of “ other information ” contained in LAW by applying it to the materials in question . Thus , he argued that any material taken from the press could be considered as “ other information ” posing a threat to GPE ’s sovereignty and territorial integrity .

On DATE the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) dismissed the appeal . In addition to the findings of ORG , ORG noted that :

“ [ After DATE the applicant ] worked in ORG , ORG and ORG , he also worked as a reporter and was involved in trade , however , in reality he was an agent connected with intelligence services . Having been spotted by the NORP intelligence services , from DATE he cooperated with their agents , the majority of whom operated under the veil of various journalistic agencies and organisations . Upon their instructions , he collected and communicated information concerning GPE ’s and PERSON economic and internal political spheres .

For a certain period of time [ the applicant ] cooperated with the NORP intelligence services through various means of communication , including letters , faxes and telephone calls , but starting from DATE he changed the mode of cooperation and established direct contact with the officers of the ORG intelligence office in GPE , including [ N. , ] ... [ T. and PERSON ] ... [ The applicant ] received instructions from them and collected information concerning the type and structure of troops and types of ammunition in [ Nagorno PERSON ] , the existence and location of troops on the LOC mountain , the defence system at the NORP - Turkish border , the existence of radars and military airports , the types and number of military aircraft .

He was also instructed to find out whether GPE had surface - to - surface missiles and collected information concerning NORP “ NORP ” type missiles , roads , tunnels and water reservoirs being built in GPE , the NORP joint military bases , their structure , location , anti - aircraft defence units and types of ammunition , the details of the military cooperation between GPE and GPE , the existence of electronic military bases , the existence of representatives of ORG in GPE and other instructions ...

[ The applicant ] , an employee of ORG , from DATE established contact with [ O.R.O. ] , who was in GPE at that time , and accompanied him on his trips to various regions in GPE and received instructions to provide him with information . As a paid agent of the NORP intelligence services , he communicated to the ORG various information concerning the economic and military - political situation . [ The applicant ] was also in contact with a number of other ORG officers ... ”

On DATE the applicant lodged an appeal on points of law . In his appeal , he argued , inter alia , that all the information in question had been collected from the mass media and was thus in the public domain . He further complained that his conviction was based on his self - incriminating statements .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the appeal .

On DATE the GPE and ORG of GPE , upon the applicant ’s request and pursuant to the requirements of the new LAW enacted on DATE , modified the applicant ’s sentence by annulling the confiscation of his property .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to express his opinion . It is prohibited to force anyone to give up or change his opinion . Everyone has the right to freedom of expression , including the freedom to seek , receive and impart information and ideas through any information medium regardless of frontiers . ”

“ No restrictions may be placed on the exercise of the rights and freedoms guaranteed under [ LAW other than such as are prescribed by law and are necessary in the interests of national security or public safety , for the protection of public order , health or morals , or for the protection of the rights , freedoms , honour and reputation of others . ”

The relevant provisions of the Code read as follows :

“ High treason , that is , a premeditated act committed by an NORP national to the detriment of GPE ’s sovereignty , territorial integrity or national security and defence , such as joining the enemy , espionage , disclosure of a ORG or military secret to a foreign country , flight abroad or refusal to return from abroad , assistance to a foreign country in carrying out hostile activities against GPE , and conspiracy to usurp power , shall be punishable by DATE imprisonment with confiscation of property and DATE of exile or without exile , or by the death penalty with confiscation of property ... ”

“ Communication of information constituting a ORG or military secret , including theft or collection of such information for communication to a foreign country , a foreign organisation or its branch , or communication and collection of other information upon the instructions of a foreign intelligence service to be used to the detriment of GPE ’s interests , if committed by a foreign national or a stateless person , shall be punishable by DATE imprisonment with confiscation of property and DATE of exile , or by the death penalty with confiscation of property . ”

The relevant provisions of the ORG and LAW , as in force at the material time , read as follows :

“ The provisions of this LAW are binding on the territory of GPE and outside its borders for public and local self - governing authorities , agencies , institutions and organisations ( irrespective of the type of ownership ) , public officials and citizens , who by their status are under the obligation or have undertaken the obligation to implement the requirements of the NORP legislation on ORG and official secrets . ”

“ A ORG secret is information related to the spheres of military , foreign relations , economic , scientific / technical , intelligence , counter - intelligence and operational intelligence activities of GPE which is protected by the ORG and the dissemination of which may have grave consequences for the security of GPE .

An official secret is information related to the spheres referred to in the first part of this section which is protected by the ORG and the dissemination of which may cause other damage to the security of GPE . As a rule , such information contains data which constitutes a part of a ORG secret , but in itself does not disclose the ORG secret .

Information classified as a ORG or official secret is considered to be the property of GPE and is kept and protected by the ORG . ”

“ The following terms are used in this LAW :

NORP The media of information constituting a ORG or official secret ( hereafter , information media ) are the material objects , including physical fields , in which the information constituting a ORG or official secret is expressed through images , conventional signs , signals , engineering solutions and processes .

Encryption of information is the application of restrictions to the dissemination of information constituting a ORG or official secret and information media . ”

“ The following types of information may be classified :

NORP In the military sphere : ( a ) the contents of documents concerning strategic and operational plans of the armed forces , preparation and conduct of operations , strategic , operational and mobilisation expansion of troops , their combat capacity and the creation and use of the conscript reserve ; ( b ) the programmes of the military - industrial complex , their contents and implementation results , armament and the course of development of arms technology , their strategic and technical characteristics and combat application capacity ; ( c ) the deployment , significance , level of defence and degree of readiness of units of special importance and regime , their design and construction , and allocation of territory for such units ; ( d ) the deployment , true names , organisational structure , armament capacity and size of the regiments and military units of the armed forces of GPE and those of allied states located on the territory of GPE ; and ( e ) the level of defence and safety of the population in times of martial law ... ”

“ Information shall be classified according to the sphere to which it belongs or the authority under whose competence it falls .

With the purpose of implementing a common encryption mechanism , a list of classified information shall be drawn up in a procedure prescribed by the Government of GPE which shall also indicate the public authorities competent to manage each piece of information ... ”

“ Encryption of information is the process of determining the level of secrecy of each separate piece of information and assigning a secrecy label to the relevant information carrier in accordance with a procedure prescribed by the Government of GPE ... ”

“ Access to a ORG or official secret may be granted to : ( a ) citizens of GPE on a voluntary basis ; and ( b ) foreign nationals or stateless persons in accordance with a procedure prescribed by the Government of GPE .

In order to have access to a ORG or official secret citizens must be authorised to do so , upon their written consent , by the competent authorities through entering into a work agreement with public authorities , agencies , institutions or organisations on the basis of favourable results of the security clearance measures taken in their respect ... ”

This decree approved the list of classified information which contained a table comprising such information and the relevant public authorities competent to manage each piece of information . The following information related to the military sphere was , inter alia , included in the list :

( CARDINAL ) information on the size changes , combat staff , strength and operational readiness of troops and information on the military / political and operational situation ;

( CARDINAL) information disclosing the deployment , true names , organisational structure , armament capacity and size of troops which is not subject to dissemination in accordance with the international obligations undertaken by GPE ;

( CARDINAL ) information disclosing the nature and the organisation or the results of the main types of activity of the NORP border troops , and the border guard system ... ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on DATE . On DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as 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 such social security benefit was payable to widowers under GPE law .

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

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


The applicant was born in DATE and lives in GPE . She receives an old - age pension .

On DATE the Law on Calculation and Adjustment of State Pensions ( hereafter “ the Pensions Act ” ) introduced a new method of calculation of retirement benefits based on what is known as the “ individual pensioner coefficient ” ( “ the ORG ” ) . The ORG was the ratio between an individual 's wages at the time of retirement and the national average wage . The ORG was meant to maintain a link between pensions and previous earnings .

The applicant considered that ORG of ORG ( hereafter “ the Fund ” ) had incorrectly calculated her pension and in DATE she sued the ORG for an increase of her pension in accordance with LAW .

On DATE ORG found in the applicant 's favour . ORG held that the ORG had misconstrued the law and that the applicant 's pensions should be recalculated and increased in line with an ORG of CARDINAL starting from DATE . ORG also awarded the applicant MONEY ( RUR ) in pension arrears . On DATE ORG upheld the judgment .

On DATE the ORG requested ORG to reopen the case owing to a newly - discovered circumstance . The ORG claimed that on DATE ORG had issued an Instruction on the Application of Limitations established by LAW . The LAW clarified how LAW should be applied . The ORG further indicated that on DATE ORG of GPE had dismissed the complaint by a group of individuals challenging the ORG . ORG found that ORG had acted within its competence when it had issued the ORG , and that the ORG 's interpretation of LAW had been correct . The Fund contended that since it had been unaware of ORG decision of DATE at the time of the judgment of CARDINAL DATE , the judgment would have to be reconsidered .

On DATE the ORG granted the ORG 's request , quashed the judgment of CARDINAL DATE and reopened the proceedings . ORG applied Article CARDINAL of LAW according to which judgments could be reconsidered in the event of discovery of significant circumstances which were not , and could not have been , known to the party concerned . ORG found that the ORG could serve as such a circumstance . The decision of DATE was final and not amenable to appeal .

On DATE ORG , after the fresh examination of the case , dismissed the applicant 's action in full . On DATE ORG upheld the judgment .

Article CARDINAL of LAW of DATE ( in force at the material time ) provided for grounds for reconsideration of final judgments on the basis of “ newly - discovered circumstances ” . Such grounds included , inter alia , significant circumstances which were not and could not have been known to the party which applied for reconsideration , and invalidation of a court ruling or another authority 's decision which had served as a legal basis for the judgment in question .

Article CARDINAL required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within DATE after the discovery of the circumstances .

Pursuant to LAW on the basis of newly - discovered circumstances , should either grant such an application and quash the final judgment or dismiss the application . Such a decision was not amenable to appeal .

On DATE ORG of GPE adopted a ruling concerning certain provisions of LAW ( CCrP ) . In that ruling ORG decided that LAW CCrP ( “ FAC for reconsideration of a [ criminal ] case on the basis of newly discovered circumstances ” , which was in many respects similar to LAW ) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “ newly discovered circumstances ” . In that ruling ORG suggested that this provision of the ORG prevented rectification of judicial errors and miscarriages of justice .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

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

At the date of the events , the applicant was working in the city of GPE as a supervisor ( “ supervizor ” ) at the local DATE newspaper “ ORG FAC CLUJ ” .

CARDINAL issue of that newspaper ( DATE ) included an anonymous article signed under the pseudonym “ ORG cell phone ” ( Celularu’ TIME ) which described certain scandalous and alleged illegal acts of ORG , the chief police officer in the town of PERSON , GPE . PERSON tried to find out who the author of the article was from the newspaper , but as he could not obtain this information he filed a criminal defamation complaint against the applicant and against FAC , the regional coordinator at the same GPE newspaper . ORG considered that both accused had violated journalistic ethics by allowing the publication of such a defamatory article .

By the time the criminal proceedings were initiated , the applicant had left his job in GPE and was living and working in GPE . His official residential address registered with the police was at that time an address in the city of PERSON , even though he was not in fact living there . He had not registered his new address with the police .

The applicant submits that he had not been aware of the trial against him during the time that the first - instance proceedings were underway , as : ( i ) all of the the procedural documents had been sent by way of notification to his registered address in PERSON and ; ( ii ) later summonses had been displayed at the GPE local council .

During the first - instance proceedings , the applicant and ORG were represented by the same defence lawyer . The transcript of the hearing held on DATE mentions that the defence lawyer had stated that the applicant had been aware of the trial and that the lawyer had not been hired by the applicant or by ORG , but by a third party , namely the new coordinator of the newspaper . He had also mentioned that he had not been instructed to make any requests on behalf of the defence and that he would make written submissions .

The written submissions filed by the lawyer in the defence of the applicant consisted of the following text :

“ The only explanation for the drafting of the article complained of is the total lack of judgment [ on the part ] of A. ( the applicant ) . The material presented before the court is highly trivial and abnormal . If the accused had presented himself in front of the court or at least contacted me , I would have asked for an expert psychiatric opinion to be ordered [ in order ] to establish his degree of judgment . In my opinion , it is impossible that as at the date of [ the ] publication [ of ] the material he was not crazy .

On the other hand , it is also impossible that any of the readers believed a single bit of the article . [ ... ]

The only circumstance which I can raise in his defence is that [ this ] is the first time he is being tried before a court for the commission of such an offence .

He does not have criminal record . ”

On DATE , ORG delivered its judgment , sentencing the applicant to the payment of a criminal fine of CARDINAL NORP lei ( ROL ) and the payment of civil damages of ROL CARDINAL,CARDINAL,CARDINAL jointly with the other co - defendant . The court of first instance found the applicant guilty of aiding and abetting the offence of defamation , considering that by the nature of his function as supervisor he could have prevented the publication of the article .

The applicant became aware of the proceedings on an unspecified date and he filed an appeal on points of law against the judgment of DATE , requesting that the judgment be quashed and that a re - examination of the case be ordered . During the appeal proceedings he was represented by a lawyer of his choice .

He presented CARDINAL grounds of appeal : firstly , the lack of proper summons procedure and lack of diligence on the part of the authorities in seeking to find out his real address ; secondly , a breach of his right to mount a defence on account of the fact that the lawyer who had represented him in front of the first - instance court had not defended him properly , but on the contrary had acted against his interests , as could be seen from the written submissions put forward . The applicant further submitted that he had not tried to avoid attending the proceedings , as the court of first instance had held , but that he had not been aware of them due to the irregularities in summoning him . He concluded that these irregularities had prevented him from taking part in the first - instance proceedings and therefore that the judgment had to be quashed and referred back for fresh consideration .

On DATE , a first hearing of the appeal took place . The applicant lodged a request for postponement , in order to hire a lawyer . During the next hearing , held on DATE , the applicant appeared before the court , assisted by a lawyer of his choice . As no representative of the newspaper was present , the parties , including the applicant , asked for a postponement . A new hearing date was set for DATE . The parties present took note of the new hearing date . On DATE , the applicant did not attend the hearing . His lawyer was present and argued that the appeal on points of law should be allowed , given the irregularities in summoning the applicant that had occurred during the first - instance proceedings . No requests for further evidence were lodged . ORG postponed the delivery of the decision to a later date .

By a final decision of DATE ORG dismissed the applicant ’s appeal , finding that he had been legally served the summons to appear in front of the first - instance court . The county court considered that the applicant had been legally summoned at his home address . The police had confirmed that the address noted in the summons was his official address and that he had not registered any new address with them . They had also indicated that his parents lived at his official address , but that his parents had declared that they did not know his new address . Taking these facts into account , the first - instance court had tried to summon him at his work place in GPE , but a letter from the newspaper by way of response had indicated that he did not work there anymore and that they were not aware of his new address . Thus , it had been decided , in accordance with the provisions of LAW , to display the summons at the local council ’s office . Taking into account these elements , ORG concluded that the summons procedure had been in compliance with the law .

ORG then reviewed the legality of the first - instance judgment and concluded that the lower court had correctly assessed the facts and applied the law , and thus upheld the first - instance judgment .

Article CARDINAL of LAW ( “ the ORG ” ) lists the cases where assistance by a lawyer is compulsory in the framework of criminal proceedings , namely if the accused is under aged , is doing his military service , is held in a re - education centre , when he has been arrested , when the prosecutor or the courts consider that he needs to be represented , as well as in other cases provided for by law . During the trial , the assistance of a lawyer is also required when the possible penalty for the crime committed is imprisonment for DATE or lifelong detention .

Article CARDINAL of the ORG , as in force at the material time , provided the following with regards to summonses :

“ ( CARDINAL ) The accused shall be summoned at the address where he lives and , in the event that this address is unknown , at the address of his workplace , through the human resources department of the unit in which he works ( ... )

( CARDINAL ) In the event that the address where the accused lives or works is unknown , the summons shall be posted at the headquarters of the local council having territorial jurisdiction over the place where the crime was committed ( ... ) ”

LAW ORG provides that where an appeal on points of law is lodged against a judgment which had not been subject to an appeal , the appellate court has the duty to analyse all aspects of the case and not to limit its examination to the grounds for appeal on points of law listed by the ORG .

Article CARDINAL of the ORG lists the grounds for appeal , amongst which is that a lower court has proceeded to judge a case in the absence of an accused when his presence is compulsory according to the law , or in the absence of a civil defendant when his presence is compulsory . Another reason for an appeal on points of law listed under this provision is that the lower court judged the case without properly summoning CARDINAL of the parties , or when , even if lawfully summoned , it was impossible for that party to present herself before the court or to inform the court about the impossibility of doing so .

LAW provides that defamation is punishable by criminal fine . No imprisonment sentence is foreseen for this crime .

Articles CARDINAL of the Law no . CARDINAL/CARDINAL on the organisation and the exercise of the lawyers’ profession regulate the procedure for imposing disciplinary sanctions on members of the bar association .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

ORG ( “ the Government ” ) were represented by their agents , PERSON and PERSON , of ORG .

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

In ORG of DATE ORG published a notice for a competition based on performance appraisal for CARDINAL posts of judge at several administrative courts ( “ the competition ” ) .

CARDINAL candidates applied for the vacant posts .

On DATE the applicant filed an application to take part in the competition for the vacant posts at ORG and ORG . There were CARDINAL vacant posts in the former and CARDINAL in the latter .

Thereafter , the applicant and all the other candidates were subjected to performance appraisals by ORG committee on proposals and performance appraisals of judges ( “ the committee ” ) . Some of these were carried out in the context of a separate competition .

On the basis of the committee ’s recommendation , on DATE the ORG determined an overall rating for each candidate in accordance with section CARDINAL(CARDINAL ) of LAW DATE . All but CARDINAL of the candidates obtained the rating “ very good ” , the highest possible rating . The applicant was CARDINAL of the CARDINAL candidates in that category .

At its session on DATE , under item QUANTITY of the agenda , the ORG then proceeded to rank the candidates in accordance with section CARDINAL ) and ( CARDINAL ) of LAW DATE , on a proposal from the committee ’s chairman , and listed them in order of merit , grade and length of service . The list contained CARDINAL candidates and the applicant was ranked eighteenth on the list . Out of the CARDINAL candidates ranked higher than the applicant , CARDINAL had applied for the same posts for which she had applied .

Finally , under item QUANTITY of the agenda , ORG , relying on section CARDINAL(CARDINAL ) of LAW DATE , took a vote in respect of each candidate in order to decide whether or not to promote him or her to the post of judge at the relevant administrative court , until all the vacant posts had been filled .

The voting , which was conducted in secret , followed the order in which candidates were ranked on the list and continued until all the vacant posts were filled .

According to the full text of TIME of the ORG ’s session , the first CARDINAL candidates did not obtain the requisite majority of CARDINAL votes and their applications were therefore rejected . Candidate number CARDINAL obtained one of the CARDINAL vacant posts at ORG . The voting then continued . The applicant , who was eighteenth on the list , obtained CARDINAL votes in her favour for the posts in CARDINAL of the CARDINAL courts for which she had applied and CARDINAL votes in her favour for the post in the other court . As the minimum number of votes required were QUANTITY ( see paragraph CARDINAL below ) , her applications were rejected ( items CARDINAL and CARDINAL.CARDINAL.CARDINAL.CARDINAL on the agenda ) . The voting then continued . As regards the posts for which the applicant had applied , the candidate ranked CARDINAL obtained CARDINAL votes in her favour and was appointed to the post of judge at ORG , and the candidate ranked fortyseventh obtained CARDINAL votes and was appointed to the second vacant post at ORG ( items CARDINAL . and CARDINAL.CARDINAL.CARDINAL . on the agenda ) . As all the vacant posts had been filled at that point , no voting took place with regard to the remaining CARDINAL candidates .

Other than the number of votes for and against each candidate and the number of abstentions , no further information or reasons were given in TIME of the session as to why , on what basis and in application of what criteria the ORG had voted the way it did for each candidate and why certain judges had been promoted or transferred to the vacant posts while others had not .

On DATE the applicant appealed to ORG against the decisions of the ORG adopted under item CARDINAL of the agenda of its session of DATE ( “ the appeal ” ) . She argued that the decisions had been adopted in contravention of the applicable legislation , since the ORG was required under section CARDINAL(CARDINAL ) of LAW DATE to fill the vacant posts by following the order in which the successful candidates were ranked . She considered that her rights had been violated when , instead of her , the ORG had promoted to the vacant posts CARDINAL persons ranked below her in the list , in CARDINAL and DATE place . She further considered that the whole competition procedure had been violated because , in comparison with her , those persons were on lower grades and had a shorter period of service .

On DATE the ORG officially informed the applicant , by way of an extract from the minutes of the session of DATE , of its vote of that date by which it had decided not to promote her to the vacant posts . Apart from the number of votes for and against her promotion , no further information or reasons were given as to why the ORG had voted the way it had .

On DATE and DATE and DATE the applicant supplemented her appeal with the extract from TIME sent to her on DATE , together with proof of her grade , length of service and performance appraisal and copies of her employment and insurance records .

At a hearing on the applicant ’s appeal held on DATE ORG declared the case ready for decision .

In a judgment of DATE ORG dismissed the applicant ’s appeal , holding , inter alia , as follows :

“ Section CARDINAL(CARDINAL ) of LAW provides that the [ Council ] must rank [ the candidates ] for each post according to the results of the performance appraisals . LAW of the same text stipulates that when several candidates for the same post have the same rating in the performance appraisals , priority is given to the candidate on the highest grade . When the candidates are also on the same grade , priority is given to [ the candidate ] who has served longest in the judiciary .

The ranking of the candidates for the posts of judge at ORG and ORG is in compliance with the law as regards the overall rating [ in the performance appraisal ] , grade and length of service , whereby the requirements of section CARDINAL(CARDINAL ) of LAW are also taken into account . The order in which candidates are placed [ in the ranking , drawn up ] in accordance with the criteria in the text cited [ above ] for determining priority ( grade and length of service ) does not oblige the [ Council ] to appoint candidates to the vacant posts in the order in which they were ranked . It is obliged to vote on candidates’ promotion or transfer [ to the vacant posts ] in the order in which they are ranked until the vacant posts are filled , as required by section CARDINAL(CARDINAL ) of LAW . Acting on the basis of operational independence , the [ Council ] decides on promotion to a post at its own discretion , which includes [ an assessment ] of candidates’ inherent professional and ethical qualities . This [ right to ] choose is conferred on the appointing body as part of its discretionary powers and is not subject to judicial review .

The complaint concerning the lack of reasoning is manifestly ill - founded . The factual grounds and the specific reasons for adopting the impugned decisions are contained in the documentary evidence in the administrative file and the statements [ made by ] the members of the [ Council ] . The positive assessments made in the proposal of the [ ORG ’s ] committee on performance appraisals regarding the professional and ethical qualities of [ the persons ranked in DATE and DATE place ] were the reasons for the decisions to promote them , [ which ] predate the adoption of these decisions .

In view of the above considerations , the court holds that the appeal by [ the applicant ] is manifestly illfounded and , as such , should be dismissed . ”

The judgment was not subject to appeal and therefore became final .

The LAW came into force in DATE . The provisions on competitions for career development ( promotion ) and transfer of judges , as in force at the relevant time and until DATE , provided as follows :

“ ( CARDINAL ) ORG posts in the courts ... , other than those [ at entry level ] , shall be ... filled following a competition carried out on the basis of performance appraisal .

“ ( CARDINAL ) The committee on proposals and performance appraisal of judges ... shall appraise the performance of every candidate satisfying the requirements for the available post .

“ ( CARDINAL ) The chairperson of the committee on proposals and performance appraisal of judges ... shall submit to ORG a reasoned opinion , summarising the results of the performance appraisal for each candidate .

( CARDINAL ) ORG shall rank [ the candidates ] for each post in accordance with the results of the performance appraisal .

( CARDINAL ) If several candidates for the same post have the same result in the performance appraisal , the candidate on the highest grade shall have preference . If the candidates also share the same grade , preference shall be given to the candidate who has served longest in the judiciary . ”

“ ( CARDINAL ) ORG shall adopt a decision to promote or transfer judges ... by following the order of ranking until the vacant posts are filled .

( CARDINAL ) The decision under paragraph CARDINAL may be appealed against [ to ORG ] .

“ A performance appraisal shall be carried out :

For the purpose of a promotion or transfer ;

“ The assessment of [ a ] judge ’s ... qualifications shall be carried out on the basis of general and specific criteria . ”

“ ( CARDINAL ) The general criteria for the performance appraisal of a judge ... shall be :

NORP the number , type and complexity of files and cases ;

NORP compliance with deadlines ;

NORP the number of decisions upheld and repealed and the grounds given ;

NORP the presence of readily comprehensible and justified reasoning of the decisions ;

the findings of the inspections carried out by ORG ;

the existence of reprimands [ against ] or incentives [ for the judge ] during the period covered by the performance appraisal ;

[ the judge ’s ] adherence to the professional ethical rules for judges ... ;

( CARDINAL ) For the purpose of the performance appraisal , the overall workload in the relevant court ’s area of jurisdiction ... , as well as the workload of the judge being appraised ... , compared with that of other judges ... at the same [ court ] , shall also be taken into consideration . ”

“ ( CARDINAL ) The specific criteria for the performance appraisal of judges shall be :

NORP compliance with the schedule for conducting court hearings ;

NORP the ability to conduct court hearings and draft records of proceedings .

“ ( CARDINAL ) The overall rating from the performance appraisal may be positive or negative .

( CARDINAL ) The categories of positive overall rating shall be :

Satisfactory ,

Good ,

Very good .

“ ( CARDINAL ) ORG shall take a decision determining the overall rating [ from the performance appraisal ] .

( CARDINAL ) The decision under paragraph CARDINAL may also contain recommendations to the judge being appraised ... , the implementation of which will be taken into consideration in the next performance appraisal .

“ ( CARDINAL ) In the performance appraisal methodology , the indicators relating to the examination and disposal of files and cases shall be given the greatest weight . ”

NORP Under section CARDINAL(CARDINAL ) of the Act , Supreme Judicial Council ’s decisions on proposals for the promotion or transfer of judges must be taken by a majority of the ORG ’s CARDINAL members . It follows that a minimum of CARDINAL votes are required for a decision to promote or transfer a judge .

The ORG ’s decisions concerning the appointment , promotion , demotion , transfer or dismissal of judges , prosecutors or investigators are adopted by secret ballot ( Article CARDINAL of the DATE LAW . All other decisions are adopted by open ballot ( section CARDINAL(CARDINAL ) of LAW DATE ) . Where a decision of the ORG is adopted by secret ballot , it is considered – in the case of a decision not to adopt a proposal submitted to a vote – that the negative opinions , if any , expressed by members of the ORG in relation to the proposal constitute the reasons for the ORG ’s decision ( section GPE ) of LAW DATE ) . In the case of a decision to adopt a proposal submitted to a vote , the grounds put forward in support of the proposal are deemed to be the reasons given by ORG ( ibid . ) .

This decree , adopted by ORG , regulates in greater detail the procedure established in LAW DATE for organising competitions within the judiciary for entry level posts , promotions and transfers , and for appointment to senior management posts .

In respect of promotions and transfers , section ORG ) provides that the performance appraisal must be carried out following the methodology approved by the ORG . The latter regulates in significant detail the documentary information and data to be collected in respect of each judge being appraised and the appraisal forms to be completed . It details the performance indicators to be used when appraising judges , the scores to be allocated under each item and the weight that they are to be given in the performance appraisal . In particular , it provides that judges are also appraised on their adherence to the ethical rules for judges .

In the examination of appeals against ORG decisions refusing promotion to judges or prosecutors , ORG , in a series of judgments in DATE , DATE and DATE , consistently interpreted the provisions of LAW DATE as meaning that the ranking of the candidates determined the order in which the ORG had to vote but could not guarantee the outcome of the vote . In all cases the court held that the ORG , as the body in which the power to appoint and promote judges and prosecutors was vested , was free to decide on these matters . Judicial review of the lawfulness of its decisions did not extend to the ORG ’s assessment of the candidates’ qualities ( see , among many others , реш. № DATE от CARDINAL октомври DATE г. по адм. д. № CARDINAL г. , PERSON , ORG , and реш. № MONEY от CARDINAL март DATE г. по адм. д. № DATE г. , ORG , ORG ) .

The ethical rules for judges , adopted by ORG on DATE and replaced on CARDINAL DATE by the MONEY of ORG , detailed the special requirements imposed on judges as to the manner in which they were to conduct themselves in their professional , private and public lives .

ORG has the power to appoint , promote , demote , transfer and dismiss – including by way of disciplinary punishment – judges , prosecutors and investigators ( Article CARDINAL § CARDINAL and LAW ( CARDINAL ) and ( CARDINAL ) of the DATE LAW . The ORG consists of CARDINAL members . The presidents of ORG and of ORG and ORG are members as of right ( LAW ) . The remaining twentytwo members have to be lawyers possessing high professional and moral qualities and having DATE of professional experience ( LAW ) . CARDINAL of them are elected by ORG and TIME by the judicial authorities ( LAW ) . Out of the latter CARDINAL members , the judges elect CARDINAL , the prosecutors CARDINAL and the investigators one ( section CARDINAL ) of LAW DATE ) . The term of office of the ORG ’s members is DATE , and is not immediately renewable ( Article CARDINAL § CARDINAL of the LAW ) . The ORG ’s sessions are presided by the Minister of ORG , who can not however take part in voting ( LAW ) .

ORG has repeatedly expressed concern about appointment and promotion decisions in the NORP judiciary . In its DATE Report to ORG and ORG in GPE under LAW , it stated , inter alia : “ The quality and transparency of several important appointments within the judiciary since DATE have been questioned , leading to unprecedented public protests and a debate on possible constitutional amendments . In addition , allegations of corruption within the judiciary are still not pursued in a systematic way as recommended by the Commission . ”