Violation of Art. 3;Violation of Art. 8 and P1-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP citizen who was born in DATE and is at present living in GPE ( GPE ) . Until DATE the applicant lived in the village of PERSON , attached to the ORG district in the province of GPE . DATE the applicant was the imam ( religious leader ) of the village . As a result of his involvement with a number of political organisations , including ORG ( ORG ) , ORG ( ORG ) and ORG ( DEP ) , of which he became the local leader , he was imprisoned on a number of occasions . The applicant left and had never returned to his village prior to the alleged events in question , since he had been threatened with death . The application concerns the applicant 's allegations that ORG security forces destroyed his house .

The facts surrounding the destruction of the applicant 's house are in dispute between the parties .

In DATE CARDINAL young women from the village , all of whom were related to the applicant 's extended family , decided to join the ORG .

On DATE the gendarme unit commander of ORG came to the village and threatened to burn the village to the ground if the women were not brought to him within DATE .

The applicant 's family and the families of the young women , frightened by this threat , loaded up their possessions and fled . However , the gendarmes , accompanied by special teams , forced them to return to the village and to unload their possessions . They gathered the families into a house by force , where they assaulted certain of them , including the applicant 's wife . They withdrew from the village telling the villagers to take good photographs of their houses , as that was all they would have to remember them by .

On DATE , at TIME , special gendarme teams and village guards came to the village . Villagers were ordered to go into their homes and to turn off their lamps . The security forces then took diesel oil from the villagers ' tractors and barrels and set fire to the houses of the applicant and his family . The applicant was out of the village , in GPE , when his house was burned down .

On DATE the applicant filed a criminal complaint with the PERSON public prosecutor in GPE for submission to the ORG public prosecutor , calling for an on - site investigation and the institution of proceedings against the perpetrators . This document was registered as no . CARDINAL by the PERSON public prosecutor 's office .

On DATE the applicant made a press statement through a human rights body , ORG , which was carried DATE in the pro - NORP newspaper PERSON .

On DATE the public prosecutor ( no . DATE ) sent a letter to ORG in ORG requesting a report on the matters raised in the applicant 's allegations . He repeated his request in letters of CARDINAL DATE ( no . DATE ) and DATE ( no . DATE ) .

By letter of DATE , ORG in ORG replied to the prosecutor 's letter of DATE by submitting the records of the statements they had taken . The prosecutor took further statements in DATE , and the gendarme commander PERSON in DATE and DATE . Since DATE , there has been no development in the investigation .

The applicant left the village of PERSON of his own free will , together with his spouse and children . He settled first in Adapazarı and then in GPE or GPE . The Government submitted various records of the statements taken by the authorities in relation to the burning of the applicant 's house .

Mr PERSON , the mayor ( muhtar ) of the village of PERSON , stated to the public prosecutor that on the night of the incident , he had seen some persons setting fire to the applicant 's house but as they had their faces covered , he had not been able to recognise them . He did , however , recognise one of them , PERSON ( PERSON ) , a village guard from the village of GPE .

The statement by the applicant 's fellow villager , PERSON , revealed that the applicant had not been in the village during the incident , but that his family had been .

Mr PERSON claimed that although he had seen the applicant 's house burning , he had not seen who had set fire to it , as it was dark .

Mr PERSON and PERSON from the same village made identical statements .

Mr PERSON declared before the same gendarme commander that the applicant had always acted in a subversive manner towards the ORG , that his house had indeed been burned , that he had not seen who had set fire to it , but it had definitely not been the security forces . He also added that all the villagers were pleased that the applicant had left the village . In a further statement , Mr PERSON told GPE that the applicant had always been a ORG supporter , that the applicant and his family had not been in the village on TIME of the incident , that he had not seen who had set fire to the house , but that he was sure that it was not the security forces . He also stated that the applicant himself might perhaps have done it .

Mr Abdulcebbar Sezen was recorded as having declared to the police officer that the applicant was a member of the ORG , that he used to be a source of trouble in the village and that the villagers were pleased that he had left the village . He also stated that the applicant 's house had definitely not been burned by the security forces or the gendarmes and that the security forces had always helped the villagers .

Mr PERSON recalled having declared that the applicant was collaborating with the ORG , that on TIME of the incident he had seen the applicant 's house burning but had been afraid to go out , as he knew that the ORG were in the region at the time . He added that the security forces had not set fire to the applicant 's house .

As to PERSON , he declared that the applicant had not been in the village when the incident had occurred , that DATE before the fire his spouse and children had left the village as well , taking the furniture , and that although DATE before the incident security forces had been in the village , they had not been there during the incident . He finally stated that he did not know who had set fire to the applicant 's house but was sure that it had not been the gendarmes .

The investigation could not continue in the applicant 's absence . According to a letter of DATE from ORG in ORG , the applicant had left PERSON for an unknown place , probably Adapazarı .

The documents contained under this heading concern the applicant 's statement letters and his petitions to the authorities about his complaints as well as the statements made by several witnesses in support of the applicant 's allegations .

The documents listed below pertain to the applicant 's complaints about the destruction of his house by the ORG gendarmerie forces .

( i ) Petition by the applicant dated DATE to the PERSON public prosecutor 's office for submission to the ORG public prosecutor 's office ;

( ii ) Letter from the applicant to PERSON of ORG ( “ ORG ” ) in GPE , containing his complaints about the destruction of his property ;

( iii ) A report dated DATE , signed by the applicant , setting out the sequence of the impugned events and the details of the property destroyed ;

( iv ) Letter of DATE from the applicant to PERSON and PERSON of the ORG , in which he set out his efforts to exhaust domestic remedies in regard to his complaints ;

( v ) Letter of DATE from the applicant to the ORG concerning the statements taken by the gendarmerie from the muhtar , PERSON .

( vi ) Letter dated DATE from the applicant to PERSON of the ORG , containing his comments about the statements taken by the gendarmes from his fellow villagers .

The witnesses mentioned below alleged in their statements that gendarmes had burned the applicant 's house along with some other houses in Dirimpınar on DATE .

( i ) Statements dated DATE by Dilsa , NORP , PERSON , PERSON , GPE and PERSON ( Esma ) PERSON and PERSON ;

( ii ) An undated statement by PERSON and statements dated DATE and DATE by PERSON ;

( iii ) Statement of DATE by PERSON ;

( iv ) Statement of DATE PERSON Daş together with his statement to ORG , also dated DATE .

The applicant produced press releases and articles concerning the alleged destruction of his property by ORG security forces as well as the general situation in south - east GPE at the relevant time .

( i ) A ORG article dated DATE ;

( ii ) Statement of DATE by the applicant to the press complaining about the destruction of his property and explaining the general situation in south - east GPE ;

( iii ) ORG newspaper articles dated DATE concerning the burning of the applicant 's house along with other houses in villages in the PERSON and PERSON districts .

( i ) A copy of a plan of the village of Dirimpınar ;

( ii ) A copy of the applicant 's title deed , to his house , land and buildings in Dirimpınar ;

( iii ) Guiding Principles on Internal Displacement issued by ORG High Commissioner for Human Rights .

The documents listed below concern the statements taken from various witnesses in regard to the applicant 's allegations and the investigation conducted by the national authorities into the impugned events as well as the criminal proceedings against the applicant for having been involved in the ORG .

The witnesses mentioned below alleged in their statements to the authorities that they did not know or had not seen who had burned the applicant 's house . They deny the applicant 's allegations that the gendarmes burned his house . They claimed that the applicant was involved in the ORG and that for this reason nobody had wanted him in the village .

( i ) Report dated DATE , containing statements by ORG , taken by the gendarmes , about the applicant 's allegations ;

( ii ) Statements dated DATE , taken by ORG , and made by GPE and GPE , ORG and PERSON and PERSON ;

( iii ) Statements dated DATE , taken by ORG , and made by PERSON , PERSON , GPE and GPE , PERSON , GPE , PERSON , Bahattin and PERSON and ORG and PERSON .

( iv ) Statement dated DATE by PERSON ;

( v ) Statements of CARDINAL DATE and DATE by PERSON ;

( vi ) Statements of DATE and DATE and DATE by PERSON ;

( vii ) Statements of CARDINAL DATE , DATE , CARDINAL and DATE by PERSON ;

( viii ) Statements of DATE and DATE , CARDINAL DATE and DATE and DATE by PERSON ;

( ix ) Statements of DATE , CARDINAL DATE , DATE and DATE , CARDINAL DATE , DATE and DATE by PERSON ;

( x ) Statements of DATE , CARDINAL DATE , DATE and DATE , CARDINAL DATE , DATE and DATE by PERSON .

The documents below concern the authorities ' investigation into the applicant 's allegations of the destruction of his property by the gendarmes .

( i ) Duty schedules of DATE ;

( ii ) Letters of DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE and DATE from the ORG public prosecutor to ORG in ORG ;

( iii ) Letters of DATE , DATE and CARDINAL DATE from ORG Commander to the public prosecutor 's office in ORG ;

( iv ) Report dated DATE drafted by the gendarmes ;

( v ) Assessment report of the scene of the incident , dated DATE and drafted by the gendarmes ;

( vi ) Report dated DATE drafted by the gendarmes ;

( vii ) Letter of DATE from public prosecutor no . DATE to ORG in Malazgirt ;

( viii ) Letter of DATE from LOC Governor to PERSON PERSON , an agricultural engineer , who was appointed as an inspector by ORG ;

( ix ) Letter of DATE from LOC Governor to ORG ;

( x ) Letter of DATE from LOC Governor to ORG ;

( xi ) Letter of DATE from the ORG public prosecutor to the GPE ;

( xii ) Letter of DATE from the ORG Deputy ORG to ORG ;

( xiii ) Investigation report of DATE by PERSON for submission to the District Governor 's office ;

( xiv ) Letter of DATE from PERSON to LOC ;

( xv ) Decision of DATE by ORG to discontinue the proceedings against the gendarme officers accused of destruction of the applicant 's property ;

( xvi ) On - site report of DATE by the ORG ;

( xvii ) Inspection report of DATE concerning the burned buildings in the village of Dirimpınar ;

( xviii ) Expert report and sketch maps dated DATE on the burning of houses in Dirimpınar ;

( xix ) Letter of DATE from the ORG Deputy Mayor to the public prosecutor 's office in ORG ;

( xx ) Investigation report by ORG for submission to ORG office in GPE ;

( xxi ) Letter of DATE from LOC Governor to ORG ;

( xxii ) ORG decision of DATE to uphold the decision given by ORG on DATE ;

( xxiii ) Letter of DATE from ORG to ORG and the latter 's letter of DATE in reply ;

( xxiv ) Letter of DATE from ORG to ORG and the latter 's letter of DATE in reply ;

( xxv ) Decision of non - jurisdiction by ORG , dated DATE ;

( xxvi ) Report dated DATE signed by the Dirimpınar village muhtar , Mr PERSON , and CARDINAL of his fellow villagers ;

( xxvii ) Permanent search warrant dated DATE issued by the ORG public prosecutor to find the perpetrators of the burning of the applicant 's house ;

( xxviii ) Reports dated DATE , CARDINAL DATE , DATE , DATE and CARDINAL DATE signed by the Dirimpınar village muhtar , PERSON , and QUANTITY gendarmes ;

( xxix ) Letters of CARDINAL DATE , DATE and DATE from the ORG Deputy ORG to the ORG public prosecutor ;

( xxx ) Letters of DATE , DATE , DATE , CARDINAL DATE and DATE from ORG to ORG ;

( xxxi ) Letters of DATE and DATE from the ORG public prosecutor to ORG ;

( xxxii ) Report dated DATE , drafted and signed by CARDINAL gendarmes ;

( xxxiii ) Letter of DATE from ORG to ORG office in GPE ;

( xxxiv ) Undated documents indicating that ORG and PERSON were no longer resident in the village , drafted by the village muhtar , PERSON .

These documents concern the criminal proceedings brought against PERSON , the applicant 's fellow villager , for allegedly setting the applicant 's house on fire . PERSON was acquitted of the charges in a judgment of DATE by ORG .

( i ) Copy of a birth certificate belonging to PERSON dated DATE ;

( ii ) Letter of DATE from ORG to ORG ;

( iii ) Letter of DATE from the ORG Director to ORG office ;

( iv ) Report dated DATE drafted by police officers in ORG ;

( v ) Arrest warrant in absentia , issued by ORG on DATE , against PERSON ;

( vi ) Report dated DATE for the arrest of PERSON ;

( vii ) Body search report concerning PERSON ;

( viii ) Petition of DATE by PERSON filed with the ORG public prosecutor 's office for submission to the ORG public prosecutor 's office ;

( viii ) Letters of DATE and CARDINAL DATE from the ORG public prosecutor to ORG office in Adapazarı ;

( ix ) Letter of DATE from the ORG Director to ORG ;

( x ) Petition of DATE filed by PERSON with ORG on duty , for submission to ORG , which includes his request for release ;

( xi ) Petition of DATE from the representative of PERSON to ORG office in GPE for submission to ORG office in ORG ;

( xii ) Decision of nonjurisdiction by ORG , dated DATE , addressed to ORG ;

( xiii ) Decision of DATE by ORG to sever the criminal proceedings against the gendarmes from the criminal proceedings against PERSON ;

( xiv ) Indictment of DATE by ORG against PERSON charging the latter with setting the applicant 's house on fire ;

( xv ) Decision of DATE by ORG ordering the continued detention of PERSON , who was accused of setting the applicant 's house on fire ;

( xvi ) Minutes of the preliminary hearings before ORG concerning the trial of PERSON , dated DATE and DATE ;

( xvii ) Judgment of DATE by ORG which acquitted PERSON of burning the applicant 's house .

The documents under this heading concern the criminal proceedings instituted against the applicant on account of his alleged involvement in the ORG .

( i ) Judgment of DATE by ORG which acquitted the applicant of the charges of having been involved in subversive activities and of membership of the ORG ;

( ii ) Supplementary decision of DATE by ORG to discontinue the criminal proceedings against the applicant on charges of involvement in the ORG ;

( iii ) Supplementary decision of DATE by ORG to discontinue the criminal proceedings against the applicant on charges of membership of the ORG ;

( iv ) Decision of DATE by ORG to discontinue criminal proceedings against the applicant ;

( v ) Decision of DATE by ORG to uphold the first instance court 's decision to refuse the applicant 's request to change his family name ;

( vi ) Decision of DATE by ORG at ORG to discontinue the proceedings against the applicant on charges of aiding and abetting the ORG .

The facts of the case being in dispute between the parties , the ORG conducted an investigation with the assistance of the parties . In this connection , CARDINAL Delegates of the Court ( Mr A. Pastor PERSON , Mr PERSON and PERSON ) took oral evidence from DATE from CARDINAL witnesses . A further CARDINAL witnesses had been summoned but did not appear for various reasons . The Delegates took evidence from the following witnesses [ ORG : The verbatim records of the evidence given by the witnesses are available to the public at the ORG 's archives . ] :

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL) PERSON ;

( CARDINAL ) PERSON ( PERSON ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON ;

( CARDINAL ) PERSON .

LAW provides :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional LAW no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON shall be brought against the administration before the administrative courts . ”

The Criminal Code makes it a criminal offence

( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;

( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;

( c ) to issue threats ( LAW ) ;

( d ) to make an unlawful search of an individual 's home ( ORG CARDINAL and CARDINAL ) ;

( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or in case human life is endangered aggravated arson ( Article CARDINAL ) ,

( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or

( g ) to damage another 's property intentionally ( Articles CARDINAL et seq . ) .

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected persons ' hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . An appeal against the local council 's decisions lies to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

Damage caused by terrorist violence may be compensated out of ORG .

Extensive powers have been granted to state of emergency the regional governor by decrees enacted under PERSON no . CARDINAL on ORG ( DATE ) , especially Decree no . CARDINAL , as amended by Decrees nos . CARDINAL and CARDINAL , and Decree no . CARDINAL .

Decree no . CARDINAL modifies the application of PERSON no . ORG , ORG ( DATE ) , in those areas which are subject to the state of emergency , with the effect that the powers to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils . These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces .

DATE of Decree no . CARDINAL of DATE provides :

“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”

According to the applicant , this Article grants impunity to the governors and reinforces the powers of the regional governor to order the permanent or temporary evacuation of villages , to impose residence restrictions and to enforce the transfer of people to other areas . Damage caused in the context of the fight against terrorism would be “ with justification ” and therefore immune from suit .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 (fair hearing);Costs and expenses - claim withdrawn

ORG The applicant , a NORP citizen , is a Lieutenant - Colonel in ORG . He is Commanding Officer of FAC and is currently serving as full Colonel in ORG in GPE , GPE .

ORG In DATE the applicant served as Commander of ORG ( " the Station " ) on GPE island in LOC , which is part of GPE .

On DATE the captain of a shrimp trawler , M / S Polarbas , radioed the Station , asking it to receive for treatment a fisherman , who had injured his arm . On DATE the applicant agreed to this request and , on the same date , he and a colleague rowed out in a rubber dinghy to meet the trawler 's lifeboat bringing the fisherman closer to shore . Shortly after the injured fisherman had been taken aboard , a breaker capsized the dinghy , leaving all CARDINAL passengers in the sea , which on DATE had a temperature of -CARDINAL.CARDINAL ORG . The applicant was the only CARDINAL of the CARDINAL who managed to reach the shore and who survived .

ORG A military board of inquiry , set up inter alia to establish the facts of the incident and to express an opinion on whether any regulations had been violated , concluded in a report of CARDINAL DATE that relevant instructions had been violated and that the applicant , as Head of Station , was responsible .

ORG On DATE the public prosecutor of ORG , under an expedited non - judicial procedure ( forelegg ) , proposed to the applicant a suspended sentence of DATE military custody ( vaktarrest ) and a fine of MONEY ( ORG ) for the offence of neglect or carelessness in the performance of official duties ( Article CARDINAL para . CARDINAL of the DATE LAW , Law no . CARDINAL of CARDINAL DATE ) . As the applicant refused to accept the proposal , the public prosecutor instituted proceedings against him in ORG ( byrett - " ORG " ) , charging him with the aforementioned offence .

ORG The trial before ORG took place from DATE . The applicant was heard and CARDINAL witnesses and CARDINAL expert witnesses gave evidence . GPE evidence , including the military board of inquiry 's report of CARDINAL DATE ( see paragraph CARDINAL above ) , was submitted . Furthermore , on DATE ORG held an inquiry on GPE island at the site of the accident , where a number of witnesses testified .

ORG In its judgment of CARDINAL DATE , ORG described the relevant facts as follows :

" In TIME of CARDINAL DATE [ the applicant ] was informed by PERSON , nurse [ at the Station ] , that the captain of M / S Polarbas had been in contact with PERSON radio and requested that Mr PERSON [ the injured fisherman ] be taken ashore at DATE so that the nurse could have a look at his wrist injury . The [ applicant ] responded in a positive manner to the request , but said that they would have to ascertain conditions in [ the bay of ] PERSON before receiving Mr PERSON . The nurse and the Chief PERSON , PERSON , were willing to participate in the operation . Mr Svendsen went down to PERSON to check the conditions and reported back to [ the applicant ] that they were satisfactory . [ The applicant ] then contacted the PERSON and agreed that the patient should be brought by a launch close to the beach in PERSON and that a rubber dinghy ... would meet them there . It was further agreed that the transfer of the patient would take place TIME after the conversation between the PERSON and the FAC . They also agreed on a radio frequency on which the parties would communicate .

While driving to PERSON , the [ applicant ] discovered that he had forgotten his camera . He wondered whether he should return to pick it up , but the nurse insisted that they had no time to lose and that they should therefore drive on . She then offered to collect the camera later , but the [ applicant ] told her that she should not do so .

On arriving at PERSON they found the [ rubber dinghy ] already there , the Maintenance Chief Officer having fetched it and driven it down to the beach . The Maintenance Chief Officer said that the dinghy ought to be pumped up . The Chief PERSON , however , thought that it was better to leave the dinghy as it was and so do nothing to it . The [ applicant ] and PERSON sat down in the dinghy after having put on survival suits . However , neither of them put on their hoods . They took no radio equipment with them in the dinghy , but PERSON had a radio for the purpose of communicating with the PERSON and its launch .

As they left the beach , the Polarbas launch with the injured fisherman on board was far out in the approaches to PERSON . Some time after the dinghy had left , the nurse ... returned to the beach with the [ applicant 's ] camera which she had gone back to collect at the administration building ...

Mr Svendsen rowed the dinghy out from the beach . After having rowed QUANTITY from the shore they waited a while , trying to get the launch to approach them . However , they did not obtain any response from the persons in the launch .

[ Mr Svendsen ] was tired and he and [ the applicant ] changed places , the [ applicant ] taking over the rowing . They tried several times to contact the launch , but to no avail . They realised that something had gone wrong . They therefore rowed further towards the launch which was still lying far out in the approaches to PERSON . As they came up to the launch they were told that the engine had broken down and that a sea anchor had been deployed . The men in the launch were anxious since , despite the sea anchor , the launch was drifting towards the rocks . None of the persons in the launch were wearing life - jackets or survival suits . Nor was such equipment available in the launch .

The injured fisherman ... was taken on board the [ rubber dinghy ] . The dinghy was then rowed away from the launch . A breaker capsized the dinghy and the CARDINAL people on board were thrown into the sea . They were not attached to the dinghy with lines nor did they have any lines with them . They did not have life - jackets .

PERSON , who was standing on the beach , had a portable radio set , but did not have first - aid equipment , such as a stretcher , blankets or the like . "

ORG acquitted the applicant . Its judgment includes the following observations . Although the applicant was in principle under no duty to receive the injured fisherman , such a duty arose from the fact that he agreed to do so . In determining whether the applicant had been guilty of neglect or carelessness in the landing operation or in its preparations , it had to be ascertained whether he had breached any applicable instructions . PERSON breaches or several recurring breaches of instructions could amount to neglect or carelessness within the meaning of Article CARDINAL para . CARDINAL of LAW . The public prosecutor had argued that the applicant had acted in breach of his duties in CARDINAL instances , of which those indicated below were the subject of argument in the present case :

" CARDINAL . ORG It was the duty of the defendant to use the dory once he had decided to receive a patient .

ORG It was his duty to ensure that the nurse brought along medical equipment and was present throughout the operation .

ORG It was his duty , once he had chosen to use the rubber dinghy , to ensure that the chief engineer was attached to it by a line . Moreover he ought to have returned to the beach earlier , once he realised that the launch did not intend to approach them . "

ORG was of the view that the instructions imposing duties on military and civilian personnel on PERSON , in particular Instruction C CARDINAL containing ORG on and around PERSON , were for various reasons unclear . Moreover , many of the provisions in question were designed for the loading and discharging of supply vessels . The relevant instructions could therefore apply to rescue operations only in so far as was appropriate .

As to the above - mentioned item CARDINAL of the prosecutor 's allegations , ORG held :

" ... the [ applicant ] can not be blamed for the fact that the nurse did not remain on the shore throughout the operation . The ORG is satisfied that Botten did not know that she had returned to the Station to fetch his camera . Moreover , the ORG is satisfied that he did not order her to fetch the camera . Anyway , her absence was quite short , lasting TIME . The [ applicant ] knew , however , that [ the ] nurse ... did not bring along first - aid equipment to the shore . In that respect therefore , there is a breach of Instruction B CARDINAL , section CARDINAL . The ORG points out , however , that there are no serious violations of the instructions . The object of the operation was merely to fetch a fisherman who was only suffering from a wrist injury and it would moreover take only a short time to go up to the Station buildings to collect the necessary equipment . "

With regard to item DATE , ORG made , inter alia , the following observations :

" ... ORG agrees in principle with the prosecutor that it was unsafe to row the rubber dinghy right out to the launch . However , the [ ORG takes into account the fact that the [ applicant ] and [ Mr Svendsen ] , while on their way , admittedly after they had passed the point where they had intended to meet the launch , but while they were still in fairly calm waters , discovered that there were problems on board the launch . Accordingly , the [ ORG can not see here either that the [ applicant ] committed any breach of the instructions since it was highly probable , and gradually became quite obvious , that the launch was in a critical situation . "

Finally , with regard to item CARDINAL , the members of ORG were divided :

" Assessor PERSON considers that section CARDINAL of Instruction C CARDINAL lays down an obligation for the defendant to use the dory , since the penultimate paragraph of section CARDINAL ... provides that this rule applies to all personnel on GPE . The President of the ORG considers that ... section CARDINAL , which applies to sea traffic , must be applied wherever appropriate . Regarding this special case , where the [ applicant ] was to take ashore a fisherman with an injured wrist , the President can not find any circumstances which could justify setting aside the general obligation to use the dory . The operation was not conducted under such heavy pressure that this provision could be disregarded . PERSON is of the opinion that the provision does not apply in a rescue operation of the kind in issue and that the matter must therefore be assessed in terms of general requirements of care .

Assessor PERSON considers that the breach of this provision under the very special weather conditions which exist in the ocean area off Jan Mayen is so serious that it qualifies as ` neglect or carelessness ' within the meaning of Article CARDINAL para . CARDINAL of LAW . He has therefore arrived at the conclusion that the defendant should be convicted for violation of Article CARDINAL para . CARDINAL ...

The President ... is of the opinion that even if this instruction has been disregarded , it must nevertheless be considered in applying Article CARDINAL para . CARDINAL ... whether the choice made by [ the applicant ] made the situation worse than would have been the case had he chosen the dory . If it did not , a violation of this instruction can not be described as neglect or carelessness . The majority of ORG and the President ) have found that the use of the dinghy instead of the dory did not lead to reduced safety , having regard to the purpose which the boat was originally supposed to serve . Particular weight is attached to the fact that the parties had agreed to meet close to the beach . Although the precise meeting point had not been agreed , it must at least be accepted that they did not intend to go much further out than QUANTITY from the beach . In this area the waters are calm . Moreover , reference is made to the testimony of the prosecution expert witness , Mr Alv Håkon Klepsvik , Commander . He testified in court that he saw no safety problems in using the rubber dinghy in , or just outside , PERSON provided it was kept away from breakers or wave peaks . He considered that , if one stayed in the middle of PERSON or on the PERSON side , using the dinghy did not give rise to any problems . Nor would he have had any hesitation in using the dinghy to receive a person from another boat . He further testified that there was less risk of injury in transferring a person from a boat to another when the second was a rubber dinghy , and he thought that it would be preferable to use a rubber dinghy rather than a dory for that purpose . As regards the fact that the dinghy was not fully pumped up , he stated that it was better to use a dinghy that was not fully inflated . Nor did this reduce the dinghy 's seaworthiness .

The majority of the ORG agrees with the minority that the essential point in this case is whether there was a duty to use the dory and whether any breach of this duty led to reduced safety . The ... majority has accordingly come to the conclusion that such is not the case and that the defendant should therefore be acquitted , ... finding him not guilty of neglect or carelessness as described in the charge . "

ORG On DATE the public prosecutor appealed from the judgment of ORG to ORG ( PERSON ) . In the first place he maintained that ORG decision was flawed in that it had applied too narrow an interpretation of the statutory offence of neglect in the performance of official duties . In the view of the prosecution , the breach of the duty to use a dory was so serious that it amounted to neglect . ORG view that using a rubber dinghy instead of a dory did not lead to reduced safety was not a sufficient reason for holding otherwise . The instructions had been laid down on the basis of DATE experience and with a view to the particular conditions at PERSON and the fact that the Station officers are not necessarily accustomed to the sea and are only stationed there for a limited period . These considerations suggested that , save in exceptional circumstances , the FAC officer was strictly required to exercise care and to follow the instructions . In the prosecution 's opinion , the instruction could be departed from only if there was an emergency or if the service might thereby be carried out in a better or safer manner ; that , however , was not the situation in the applicant 's case .

The prosecutor further submitted that the facts as established by ORG were sufficiently clear to allow ORG to give a new judgment under LAW para . CARDINAL of the DATE LAW ( see paragraph CARDINAL below ) convicting and sentencing the applicant , as opposed to quashing ORG judgment and referring the case back for fresh examination .

In his alternative submission , he argued that ORG judgment should be quashed on the ground of a procedural defect , its reasoning being incomplete . The judgment failed to describe the sea conditions prevailing at the time when the applicant set out in the dinghy and also when he realised that the lifeboat would not arrive at the agreed meeting point , and the distance between the lifeboat and the shore at those times . Nor did the judgment mention what the applicant thought had gone wrong with the lifeboat , which alternatives he had to taking the dinghy further out or how much time it would have taken to prepare the dory for the operation .

ORG On DATE ORG of ORG ( Høyesteretts Kjæremålsutvalg ) granted leave to appeal . By letter of DATE ORG informed the applicant of its decision and that it had appointed as his counsel the lawyer who had represented him in ORG . Moreover , ORG invited the applicant to contact his counsel as soon as possible if he possessed any information of relevance to the case which was not apparent from the case file . In addition , ORG stated that it intended to deal with his case in the near future without giving him further notice ( LAW as applicable at the relevant time ) .

ORG After the prosecutor and counsel for the applicant had been consulted , ORG , by letter of CARDINAL DATE , advised counsel that it had set the oral hearing for DATE , at TIME

Subsequently , counsel informed the applicant of the date of the hearing and told him that , if he wished , he could ask ORG for leave to make an oral statement at the hearing but that he would not be heard either as a party or as a witness . Moreover , counsel advised the applicant that it was unusual for a defendant in an appeal personally to address ORG . Accordingly , the applicant did not ask for such leave .

ORG An extract of the proceedings in ORG , prepared by the prosecutor ( for further details , see paragraph CARDINAL below ) , was sent to counsel well in advance of the hearing in ORG . Counsel made no objections to the extract , nor did he make any further submissions to ORG .

ORG At the hearing on DATE the applicant 's counsel was present , but he himself was not . As he was entitled to do , counsel addressed ORG and replied to the prosecutor 's oral submissions in so far as they concerned the latter 's appeal on points of law and procedure ( see paragraph CARDINAL above ) . However , in determining liability , ORG was bound by the establishment of the facts concerning the question of guilt in ORG judgment ( LAW as applicable at the relevant time ) .

After the main pleadings , the prosecution requested ORG to convict the applicant of an offence under Article CARDINAL para . CARDINAL of LAW and to sentence him to a suspended term of DATE military custody and to a fine of ORG CARDINAL,CARDINAL , failing payment of which he should be imprisoned for DATE . In the alternative , the prosecutor asked ORG to quash ORG judgment .

Counsel for the applicant requested ORG to dismiss the appeal .

ORG case file included a CARDINAL-page extract from the proceedings in ORG , containing ORG judgment of DATE , the written evidence used by it , including details of the applicant 's professional and private status and income , his military service card , a statement to the effect that he had no criminal record , the military inquiry report and certain court transcripts . However , it did not include any records of the hearings in ORG , such records not being available . ORG heard no witnesses or experts .

ORG In a judgment of DATE , which was final , ORG upheld the prosecution appeal . Mr Justice PERSON , on behalf of a unanimous court , gave the following reasons :

" I find that the appeal on the application of the law must be upheld and that the conditions for pronouncing a new judgment convicting the accused pursuant to LAW para . CARDINAL of LAW have been fulfilled .

The decisive issue in the case is ... whether the applicant 's conduct in connection with the landing operation and the preparations for it constitutes neglect or carelessness under LAW para . CARDINAL of LAW . The grounds cited for this are that he disregarded applicable instructions on several points as specified in the indictment . ORG judgment lists CARDINAL matters which , taken together , are claimed to constitute neglect . Several of these points have not been pursued before ORG .

The instructions applying to PERSON are comprehensive . This must be viewed in the light of the demanding conditions for those serving there . I would note that the preamble to the instructions for PERSON , which were issued in DATE by ORG and ORG and which are relevant to the present case , states : ' Written instructions are more necessary on GPE , where there is a constant turnover of personnel , than elsewhere . '

The ' General Provisions concerning Traffic on and around PERSON , which form part of the said instructions , figure centrally in the case . LAW ... , entitled ' Purpose ' , reads : ' These are general provisions which are intended as guidelines for both official and leisure traffic on and around PERSON . ' Even though the provisions initially give the impression of setting out ' guidelines ' , it is clear that they include binding rules , as shown by LAW paragraph of which reads : ' Excursions by boat in the sea around PERSON without seagoing support vessel are generally prohibited . ' However , the rule goes on to list various exceptions . I would point out that the provisions on sea traffic clearly must cover the operation launched to receive the injured fisherman on that occasion , even though it was presumed that the transfer would be conducted relatively close to the shore . I also find it clear that the provisions must apply to the landing operation , even though there is no mention of assistance to the fishing fleet here or elsewhere in the instructions for QUANTITY .

Section CARDINAL ... includes , inter alia , the following CARDINAL clauses : `

- Ensure that both dories are used on trips if no other boat is close to the island , or no other boat has been made ready to assist if necessary . ORG

- When the weather conditions are deemed to be satisfactory , the other dory may be replaced by the dinghy , which may be taken aboard the dory or drawn behind it . '

In my view , it follows from the rules that there is a requirement to use a dory on occasions such as the one in question here , and that a dinghy could not replace a dory in this situation . It is true that a dinghy could be used in certain circumstances , but only as a backup . I therefore agree with the President of ORG and the one lay judge who , admittedly on somewhat different grounds , found that the provisions imposed an official duty on the [ applicant ] to use a dory instead of a dinghy .

The President of the [ City ] Court was however of ' ... the opinion that even if this instruction has been disregarded , it must nevertheless be considered in applying Article CARDINAL para . CARDINAL ... whether the choice made by the [ applicant ] made the situation worse than would have been the case had he used a dory . If it did not , a violation of this instruction can not be described as neglect or carelessness ' .

I do not agree with this interpretation of the law .

In my opinion , the duty to use a dory is of such key significance in the provisions relating to traffic that an assessment such as that mentioned by the President is insufficient . I refer to the fact that the duty was imposed in the light of experience and is intended to protect life and health in an area characterised by quite extraordinary weather conditions and in difficult waters , and that it is thus particularly important that the instruction is complied with on this point . The assessment referred to by the President of ORG can not therefore be decisive for whether there was neglect .

The second lay judge , who together with the President of ORG constituted the majority voting in favour of acquittal , likewise based her decision on an erroneous application of the law . In her opinion , the duty to use a dory did not apply ' to a rescue operation of this kind , and the matter must therefore be considered on the basis of a general assessment of the duty of care ' . I find that she was of the opinion that there was no duty to use a dory , and therefore no neglect within the meaning of Article CARDINAL para . CARDINAL .

The majority of ORG ... found that using a rubber dinghy instead of a dory on the occasion did not have the effect of reducing safety given the use for which the dinghy was initially intended , namely reception of the injured fisherman from the shrimp trawler 's lifeboat not ' much QUANTITY from shore ' . However , according to the regulations , this is not decisive .

Thus the [ applicant 's ] acquittal is based on an erroneous application of the law . In the present case , however , this does not warrant quashing ORG judgment , since I agree with the prosecution 's submission in the notice of appeal that the conditions are satisfied for pronouncing a new judgment convicting [ the applicant ] pursuant to LAW para . CARDINAL of LAW . In this connection , I refer to ORG account of the facts .

I also refer to what I previously said about the background to and the specific contents of the provisions concerning traffic on and around PERSON , in particular the duty to use a dory . Given the difficult conditions on the island , it is particularly important that rules of this kind are complied with . The [ applicant ] is at fault for having decided , despite the requirement set out in the instruction , to use the rubber dinghy on that occasion and for having done so . I would point out , however , that the situation had changed at the subsequent stages of the operation , when it was clear that the persons in the approaching lifeboat were in danger . In my opinion , however , what had already happened in the earlier stages constitutes such a serious matter that it must be deemed to constitute neglect under LAW para . CARDINAL . I would note that counsel for the defence has contended before ORG that the duty to use a dory could not apply when a lifeboat was launched from the shrimp trawler . I do not find that this [ argument ] can be accorded decisive weight in the present case , as it is clear from ORG judgment that the dinghy was not simply used as a backup on this occasion . Nor could the defendant know whether or not the lifeboat was properly equipped , as subsequently turned out not to be the case .

As previously indicated , the prosecution has also brought up other matters which , in its opinion , constitute breaches of the applicable instructions . Some of these matters which were submitted to ORG have not been pursued before ORG .

ORG unanimously concluded that there was a breach of the instruction on account of the fact that the nurse had not brought first - aid equipment down to the shore and that the [ applicant ] was aware of this fact . I find this to be the case . However , the failure to use a dory in the landing operation is the predominant factor in relation to Article CARDINAL para . CARDINAL .

As regards sentencing , I find it appropriate to sentence [ the applicant ] to DATE military custody suspended for a probation period of DATE , in addition to an unconditional fine of ORG CARDINAL,CARDINAL or , in default of payment , military custody for DATE . In this connection , I have attached importance to the fact that the defendant is only at fault in respect of his conduct during the preliminary stages of the landing operation . "

ORG Article CARDINAL para . CARDINAL of the Military Penal Code reads :

" A person exercising command who is guilty of neglect or carelessness in the performance of his official duties shall be punished with arrest or with the loss of commission or with detention for a term not DATE . "

Appeals in all criminal cases , including those covered by LAW , are governed by LAW .

ORG Under LAW , proceedings during the main hearing in LOC are oral . Written evidence is read out by the person producing the evidence unless the court decides otherwise ( Article CARDINAL ) . After the examination of each individual witness and after the reading out of each piece of written evidence , the accused has to be given an opportunity to speak ( Article CARDINAL ) . The court must see to it that the facts of the case are fully established ( Article CARDINAL ) .

When the production of evidence ( bevisførselen ) is completed , the prosecutor and then defence counsel may make a speech . Each of them is entitled to speak twice . When defence counsel has finished , the person indicted is asked whether he has any further comment to make ( Article CARDINAL ) . In deciding what is deemed to be proved , only the evidence produced at the main hearing shall be taken into consideration by the court ( Article CARDINAL ) .

ORG Under LAW , if ORG decides to convict the accused its judgment must , in giving its verdict , state in a specific and exhaustive manner the facts of the case which the court has found to be proved and on which its verdict is based . It must also refer to the penal provision under which the accused has been convicted . In addition the judgment must state the reasons to which the court has attached importance in determining the sanctions .

If the person charged is acquitted , the grounds of the judgment must , in accordance with LAW , state which conditions for a finding of guilt are deemed not to be satisfied , or the circumstances which exclude a sanction called for by the prosecution .

ORG Under LAW , as applicable at the material time , a party in a criminal case seeking to challenge a judgment of ORG could , depending on the nature of the point disputed , either request a new trial ( fornyet behandling ) in ORG ( lagmannsretten ) or appeal ( anke ) to ORG .

If the object was to contest ORG assessment of evidence in relation to the question of guilt ( bevisbedømmelsen under skyldspørsmålet , LAW , as applicable at the relevant time ) , the appellant party could , with leave from ORG of the ORG apply for a new trial in ORG ( LAW , as applicable at the relevant time ) .

On the other hand , an appeal on grounds of errors of law going to the verdict ( rettsanvendelsen under skyldspørsmålet ) , on procedural defects ( saksbehandling ) and as to sentence ( straffutmåling ) could be lodged with ORG ( Article CARDINAL , as applicable at the relevant time ) . ORG thus had no competence to review questions of facts which go to the question of guilt but had to base itself on the findings of ORG in this respect . No such limitation applied to ORG jurisdiction with regard to sentencing , which comprised both questions of facts and of law .

ORG Both parties may in principle lodge an appeal against a judgment of LOC ( Article CARDINAL , as applicable at the time ) . However , an acquitted person may not appeal unless the court has found it proved that he committed the unlawful act referred to in the indictment ( Article CARDINAL , as applicable at the time ) .

ORG The appeal proceedings are prepared and conducted according to the rules applicable to the hearing at first instance in so far as such rules are appropriate and it is not otherwise provided ( Article CARDINAL , as applicable at the relevant time ) .

ORG The proceedings in ORG are oral and public and both parties are allowed to speak twice . The appellant party is entitled to address the court first . The accused may be allowed to address the court during the hearing ( Article CARDINAL , as applicable at the relevant time ) . Evidence is submitted to the court by reading out from the documents relating to the case ( Article CARDINAL , as applicable at the time ) .

ORG Article CARDINAL ( as applicable at the time ) read :

" If the court finds no reason to vary or set aside the judgment appealed against , the appeal shall be dismissed by court order .

In the alternative the court shall pronounce a new judgment if the necessary conditions are fulfilled ; otherwise the judgment appealed against shall be set aside by court order . "

In determining whether the " necessary conditions are fulfilled " , ORG will concentrate on the question whether the facts as ascertained in the judgment appealed against are sufficient to render a new decision on the merits . Case - law under LAW confirms that ORG is reluctant to pronounce a new judgment .

Prior to the entry into force of the DATE LAW DATE , ORG had , under LAW , power to give a new judgment convicting the accused only " when the question of guilt had been decided against the defendant " in the lower court . The DATE Code removed this limitation on ORG competence .

ORG Since DATE , when the DATE LAW ( Lov av CARDINAL juni CARDINAL nr . CARDINAL om endringer i straffeprosessloven m.v . ( toinstansbehandling , anke og juryordning ) ) entered into force , an appeal against ORG lies ordinarily with ORG , which has power to review points of fact , law and procedure ( Articles CARDINAL , ORG and CARDINAL as amended ) . As a consequence , to a greater extent than before , ORG will act as a second instance , and ORG as a third instance , in criminal cases .

On the other hand , the above - mentioned provisions in Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , which have been replaced respectively by Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , remain essentially unchanged .

ORG In an opinion appended to the bill proposing to amend LAW ( Ot prp nr . CARDINAL ( DATE ) , p. CARDINAL ) , ORG stated :

" The present system , where ORG acts as the ordinary second instance in criminal cases , is internationally unique . This arrangement has enabled a speedy hearing of appeal cases and has given ORG a considerable influence on the practice of criminal law . However , in DATE - given current developments - the present system has demonstrated that it is no longer satisfactory . It does not fulfil the standards of legal safeguards which ought to be met and , at the same time , with the increased number of criminal cases in DATE society , the arrangement creates working conditions in ORG which prevent it from performing its functions in a fully satisfactory manner . The proposal that one should have CARDINAL ordinary instances below ORG would bring the appeal system in criminal cases in line with that in civil cases and with the appeal systems in most countries . It would give ORG the opportunity to concentrate its work to a greater extent on cases where its decision will concern matters of principle , or where there are other particular reasons for obtaining a decision from ORG . "


No violation of Art. 6-1;Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first applicant was born in DATE and lives in PERSON am PERSON . The second applicant was born in DATE and lives in PERSON .

On DATE the Braunau ORG Bezirkshauptmannschaft ) informed the applicant that he was suspected of having driven a motor vehicle under the influence of alcohol contrary to sections CARDINAL ) and CARDINAL ) of FAC ( Strassenverkehrsordnung ) on DATE . The breathalyser test had shown an alcohol level of QUANTITY mg / l in his breath .

NORP In his submissions of DATE the applicant argued that allowance should be made for PERCENT inaccuracy in the result of the breathalyser test . This would lead to an established alcohol level of CARDINAL mg / l and his conduct would therefore constitute a less serious offence under Sections CARDINAL ) and CARDINAL ) of LAW .

On DATE PERSON ORG found the applicant guilty of the offence of drunk driving under sections CARDINAL ) and CARDINAL ) of FAC , which provides for a fine of CARDINAL and CARDINAL ( ORG ) . It imposed a fine of ORG CARDINAL,CARDINAL on him with CARDINAL days’ imprisonment in the event of default . Having regard to the evidence before it , ORG noted that the breathalyser at issue had been duly checked by ORG ( ORG für PERSON ) and the test had been carried out correctly . Referring to ORG case - law , it noted that in such circumstances there was no need to make any allowance for inaccuracy .

The applicant appealed , repeating his argument as regards the alleged imprecision of the breathalyser test .

After holding a hearing , ORG ( Unabhängiger Verwaltungssenat ) allowed the applicant ’s appeal in part . In its decision of DATE it found that an alcohol level in the applicant ’s breath of CARDINAL mg / l could be considered to have been confirmed , since allowance had to be made for a possible inaccuracy in the result of the breathalyser test . Consequently , it convicted the applicant under sections CARDINAL ) and CARDINAL ) of LAW , which provides for a fine of between LAW and EUR CARDINAL,CARDINAL , and reduced the fine to LAW with CARDINAL days’ imprisonment in the event of default .

ORG considered that the question about possible inaccuracy of the breathalyser test was not a matter of law but a matter of fact . There was documentary evidence , and also evidence from an expert on weights and measurements , that for this particular type of breathalyser PERCENT inaccuracy could not be ruled out .

NORP The decision was served on the applicant on DATE . He did not lodge a complaint with ORG ) or ORG ( Verwaltungsgerichtshof ) within the statutory DATE time - limit . There was no other party to the proceedings who could lodge a complaint .

On DATE ORG decision of DATE was served on the Federal Minister for Traffic , ORG .

On DATE the Federal Minister for Traffic , ORG lodged an official complaint ( ORG ) under LAW ) subparagraph ( CARDINAL ) of LAW ( ORG ) against that decision , on the ground that it contained an error of law . According to ORG case - law the authority was obliged to base its finding in respect of the blood alcohol level of the accused on the result of the breathalyser test . In the present case , the breathalyser had been duly examined by ORG and no doubts had been raised as to its correct functioning .

On DATE ORG , following the official complaint , quashed ORG decision of DATE and referred the case back to it . It found that the decision had applied the law incorrectly , since there was no ground to make allowance for inaccuracy in the breathalyser test .

In his submissions of DATE the applicant asserted that it would violate the requirements of a fair trial if the quashing of ORG decision following the ORG official complaint had any negative consequences for him .

On DATE ORG , noting that it was bound by ORG legal view , dismissed the applicant ’s appeal against ORG decision of DATE . Consequently , his conviction under section CARDINAL(CARDINAL)(a ) of FAC was upheld .

As regards the sentence , ORG noted that section CARDINAL(CARDINAL)(a ) provided for a fine of between ORG CARDINAL and ORG CARDINAL,CARDINAL . It found that the minimum fine of ORG CARDINAL with CARDINAL days’ imprisonment in the event of default was appropriate . It noted that the applicant had no prior convictions , and also had regard to ORG case - law , according to which unreasonably lengthy proceedings could lead to a reduction of the sentence .

The applicant lodged a complaint with ORG , claiming several violations of LAW . He submitted , in particular , that the proceedings had been unreasonably lengthy and that he had no remedy in this respect ; that ORG and subsequently ORG had disregarded the expert opinion and documentary evidence on the reliability of the breathalyser test and that his conviction had thus been based on a mere presumption .

NORP Moreover , the applicant alleged that the proceedings were unfair , and violated the ne bis in idem principle , since the proceedings had been reopened following the Federal Minister ’s official complaint , although ORG decision had already become final . However the reopening was not justified by any of the reasons mentioned in LAW No . CARDINAL , and the new proceedings had produced a result which was unfavourable to him .

NORP The applicant also complained that he did not have a review by a higher tribunal as required by LAW , since the scope of the ORG review was limited . Finally , relying on LAW No . CARDINAL , he complained that the fixing of sentences in administrative criminal law did not take ORG financial situations into account .

On DATE ORG dismissed the applicant ’s complaint for lack of prospects of success . On a request by the applicant on DATE it transferred the case to ORG .

On DATE ORG dismissed the applicant ’s complaint as being unfounded . This decision was served on the applicant ’s counsel on DATE .

On DATE the applicant was stopped by a traffic patrol and asked to undergo a breathalyser test . The test showed an alcohol level of CARDINAL mg / l in his breath .

On DATE the Braunau ORG informed the applicant that he was suspected of the offence of driving under the influence of alcohol under sections CARDINAL ) and CARDINAL ) of FAC , with a breath alcohol level of CARDINAL mg / l . The authority requested the applicant to submit his defence .

By a penal order of CARDINAL DATE ORG found the applicant guilty of drunk driving under sections CARDINAL ) and CARDINAL ) of FAC and sentenced him to a fine of ORG CARDINAL with CARDINAL days’ imprisonment in the event of default . Noting that the breathalyser used had been correctly calibrated , it dismissed the applicant ’s argument that the result of the breathalyser test could not be deemed to be completely accurate and that allowance had to be made for possible calibration and measurement errors . As to the fixing of the sentence , the authority noted that despite its request the applicant had not submitted evidence of his income . Thus , it based itself on his unsupported submission that he had a net income of ORG DATE and no maintenance obligations .

The applicant appealed on DATE .

On DATE the ORG held a hearing . It questioned the applicant and an expert on weights and measurements . In addition it took documentary evidence , including submissions from ORG and Measurements relating to the calibration of the breathalyser at issue , and an expert opinion which had been published in a professional journal .

By a decision of DATE ORG allowed the applicant ’s appeal in part . Referring to the evidence before it , ORG held that a certain imprecision of the measurement could not be excluded . Even making allowance for possible inaccuracy a breath alcohol level of CARDINAL mg / l could be established beyond all doubt . The offence therefore fell under section CARDINAL ) of LAW and the fine was to be reduced to LAW , with CARDINAL days’ imprisonment in the event of default .

ORG decision was served on the applicant ’s counsel on DATE . The applicant did not lodge a complaint with ORG or ORG within the statutory DATE time - limit . There was no other party to the proceedings who could lodge a complaint .

On DATE the Federal Minister for Traffic , ORG lodged an official complaint under LAW ) subparagraph ( CARDINAL ) of LAW , arguing that ORG decision had applied the law incorrectly in that it had made allowance for a possible inaccuracy in the result of the breathalyser test .

ORG served the official complaint on the applicant , informing him that he could submit observations . The applicant did not make use of this possibility .

On DATE ORG , following the official complaint , quashed ORG decision of DATE and referred the case back to it . It observed that a driver who was required to undergo a breathalyser test had the right to request that a blood sample be taken to confirm the result , while the law and its own caselaw did not provide for a conclusion to be drawn from the result of the breathalyser test .

On DATE ORG asked the applicant to submit his comments and to indicate whether he wished a further hearing to be held . On DATE the applicant submitted comments and stated that a further hearing could be dispensed with .

On DATE ORG dismissed an appeal by the applicant against the penal order of DATE . Applying ORG legal view , it held that an alcohol level of CARDINAL mg / l in the applicant ’s breath had been established by the breathalyser test . Therefore the conviction under section CARDINAL(CARDINAL)(a ) of LAW stood . However , ORG noted that it shared the applicant ’s concerns as regards a possible violation of LAW No . CARDINAL by the use of the official complaint procedure . It also noted that it had to set a fine of ORG CARDINAL , as this was the minimum fine applicable for the offence at issue . Taking the duration of the proceedings into account ORG reduced the default term of imprisonment from DATE .

The applicant lodged a complaint with ORG on DATE . He raised complaints identical to the ones raised by the first applicant ( see paragraphs DATE above ) .

On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success . In respect of the applicant ’s complaint about the length of the proceedings , it noted that ORG had taken the lengthy duration of the proceedings into account . Upon the applicant ’s request , ORG referred the case to ORG by a decision of DATE .

The applicant made submissions on DATE to supplement his complaint to ORG .

ORG submitted its observations in reply on DATE .

On DATE ORG , referring to its previous decision , dismissed the applicant ’s complaint as unfounded . The judgment was served on the applicant ’s counsel on DATE .

By virtue of section CARDINAL(CARDINAL ) of LAW ( GPE ) , the accused may lodge an appeal against a penal order with ORG .

The administrative authority which has issued the impugned decision is a party to the proceedings before ORG ( section CARDINAL(d ) ) .

Pursuant to Article CARDINAL of LAW ( ORG are set up in the Länder . The function of these panels includes determining both the factual and legal issues arising in cases concerning administrative offences .

By virtue of LAW has jurisdiction to examine complaints alleging that a decision by an administrative authority or by ORG is unlawful .

Article CARDINAL ( CARDINAL ) subparagraph ( CARDINAL ) entitles a person who alleges that his or her rights have been violated by an administrative decision to lodge a complaint with ORG following exhaustion of appeals .

Article CARDINAL ( CARDINAL ) subparagraph ( CARDINAL ) of LAW entitles the competent Minister , inter alia , in matters pertaining to the enforcement of federal laws by the Länder , to lodge an official complaint with ORG against an allegedly unlawful decision of an administrative authority , following exhaustion of appeals by the parties .

Section CARDINAL of LAW ( Verwaltungsgerichts - hofgesetz ) deals with time - limits for lodging complaints .

Pursuant to section DATE ) subparagraph ( CARDINAL ) , a complaint under LAW ) subparagraph ( CARDINAL ) has to be brought within DATE of the date of service of the decision or , if the decision was only pronounced orally , from the date of pronouncement .

Pursuant to section DATE ) subparagraph ( CARDINAL ) an official complaint has to be brought within DATE of the point when the decision at issue was served on the Federal Minister , or the Federal Minister becomes aware of the decision at issue .

Section CARDINAL(CARDINAL ) of the LAW states that , except where otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision . Section ORG ) lists the grounds of unlawfulness of a decision . Section CARDINAL ) provides that if ORG quashes the impugned decision the proceedings are resumed at the stage they were at before that decision was issued .

If ORG quashes the impugned decision , “ the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ” ( section CARDINAL(CARDINAL ) ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants , PERSON , PERSON , PERSON and PERSON , are NORP nationals , who live in PERSON . They were represented before the Court by Mr GPE from the “ ORG , a non - governmental organisation based in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

The applicants were all employees of a private company ( “ the company ” ) . On different dates in DATE they were dismissed .

Since the company had failed to pay them their salaries for DATE of their employment , in DATE the applicants lodged with ORG an action against their former employer , seeking payment of their salary arrears .

ORG found in favour of the applicants and by judgments of DATE , DATE and DATE ordered the company to pay them the following amounts : CARDINAL Moldovan lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) to PERSON ; MDL MONEY ( EUR CARDINAL ) to PERSON ; MDL CARDINAL ( ORG CARDINAL ) to PERSON and ORG CARDINAL,CARDINAL ( ORG CARDINAL ) to PERSON . No appeals were lodged and the judgments became final DATE .

The applicants obtained enforcement warrants which were sent to a bailiff on CARDINAL and DATE . Because the bailiff did not enforce the warrants , the applicants sent numerous complaints to various authorities asking for the judgments to be enforced .

On DATE a bailiff issued a decision and discontinued the enforcement proceedings on the ground that the company had been insolvent and handed over the enforcement warrants to the applicants . The applicants did not lodge an appeal against this decision , nor did they repeatedly submit the enforcement warrants to ORG for enforcement .

The judgments in favour of the applicants have not been enforced to date .

The relevant provisions of domestic law have been set out in this ORG ’s judgment in the case of GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) , § CARDINAL ) .

Article CARDINAL of the Code of Civil Procedure , in force between CARDINAL DATE and DATE , reads as follows :

“ The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings . ( ... ) ”


Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Inadmissible under Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

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

The applicant shared a house and a plot of land with CARDINAL family members ( “ the neighbours ” ) . On DATE he instituted non - contentious proceedings ( postępowanie nieprocesowe ) before ORG ( Sąd Rejonowy w Częstochowie ) in which he requested that the co - ownership of the property be dissolved .

Until DATE the court held QUANTITY hearings and ordered CARDINAL expert opinions .

On DATE the court stayed the proceedings because the applicant had failed to pay an advance fee towards the costs of an expert opinion .

On DATE the proceedings were resumed as the applicant paid the costs ordered by the court .

On DATE and DATE the court held hearings . It ordered a supplementary expert opinion .

In DATE and DATE the applicant requested the court to appoint another expert . Subsequently , he challenged an expert opinion and the expert who prepared it . The court dismissed his applications on DATE and CARDINAL DATE .

On DATE the court ordered another expert opinion . The opinion was submitted to the court on DATE .

On DATE , DATE , DATE and CARDINAL DATE the court held hearings . It ordered CARDINAL supplementary expert opinions .

DATE and DATE the proceedings were stayed because the applicant failed to pay an advance fee towards the costs of a supplementary expert opinion .

NORP In DATE an expert opinion was submitted to the court ; subsequently , the court ordered another expert opinion .

NORP In DATE the applicant challenged the appointment of a new expert .

On DATE the expert submitted his opinion to the court .

On DATE the court held a hearing .

On DATE the ORG gave a decision in which it dissolved the coownership .

The neighbours appealed against it .

On DATE ORG ( Sąd Wojewódzki ) quashed the impugned decision and remitted the case to the firstinstance court .

On DATE the court held a hearing at which it decided to hold a view of the property . The applicant requested the court not to schedule any hearing until DATE .

On DATE the judge held a view of the property .

On DATE the court held a hearing . Subsequently , the court ordered another expert opinion and ordered the applicant to pay an advance fee towards the costs of it .

On DATE ORG stayed the proceedings because the applicant had failed to pay the advance fee . The applicant ’s appeal against this decision was allowed by ORG on DATE .

On DATE the court held a hearing .

Subsequently , the neighbours challenged a court expert . Their challenge was finally dismissed on DATE .

On DATE the applicant challenged another court expert . On DATE ORG dismissed his application .

On DATE the expert submitted another opinion to the court .

On DATE ORG held a hearing .

On DATE the applicant instituted another set of civil proceedings in which he requested permission to be connected to the public water supply and to carry out construction works on the co - owned property . The proceedings are pending before ORG .

On DATE the court again decided to stay the proceedings because administrative proceedings concerning a porch built by CARDINAL of the neighbours were pending . The applicant appealed against this decision .

On DATE ORG resumed the proceedings .

At the hearing held on DATE the court for the second time decided to stay the proceedings due to the administrative proceedings concerning the porch . The applicant ’s appeal was dismissed on DATE .

On DATE the applicant applied to resume the proceedings .

In DATE and DATE the court requested certain municipal and central authorities to provide some information necessary for the case .

On DATE the proceedings were resumed and on DATE the court held a hearing .

On DATE the ORG gave a decision . It dissolved the co - ownership .

On DATE the applicant lodged an appeal against that decision .

On DATE ORG dismissed the appeal .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

The applicant is a practising lawyer by profession . He runs his law office with a partner .

NORP In DATE criminal proceedings on suspicion of aggravated theft , aggravated fraud and embezzlement were opened against the applicant and a number of other persons by ORG ( PERSON für PERSON ) .

On DATE the investigating judge issued a search warrant for the applicant ’s premises . The warrant authorised the search and seizure of the following items :

“ Documents , personal computers and discs , savings books , bank documents , deeds of gift and wills in favour of Dr PERSON , and any files concerning NORP [ name of CARDINAL person ] and PERSON [ name of another person ] . ”

In its reasoning , the search warrant stated that the applicant was suspected firstly of having taken furniture , pictures and silver worth MONEY ( ORG ) from PERSON in DATE for personal enrichment ; secondly , of having induced PERSON to sign an agreement for a secured loan of LAW in DATE , which PERSON then failed to receive ; and thirdly , of having abused the power of attorney granted to him by PERSON in order to make bank transfers , causing the latter financial damage of more than LAW in DATE .

The search of the applicant ’s business LOC was carried out by police officers of ORG on DATE . The applicant , his defence counsel and a representative of ORG were present . The police officers proceeded to search the applicant ’s computer system , copying all files to disc . The representative of ORG opposed this as being disproportionate since it was technically possible , by using appropriate search criteria , to search for and copy only those files which corresponded to the criteria set out in the search warrant . Having contacted the investigating judge , the police officers insisted on copying all files . On the proposal of the representative of ORG , the police officers copied all data returned by a search for the names “ NORP ” and “ PERSON ” to CARDINAL disc and all other data to separate discs . All the discs were sealed .

NORP The report drawn up by the police officers lists the following seized items : ( CARDINAL ) laptop , ( CARDINAL ) CDs / DVDs of ORG data , ( CARDINAL ) CDs / DVDs of all NORP law office data , and ( CARDINAL ) copies of agendas .

All these items were handed over to the investigating judge . Because the applicant opposed the search of the data , ORG ( Ratskammer ) , a panel of CARDINAL judges , of ORG was called upon to decide whether they were to be examined or returned pursuant to LAW ) .

On DATE ORG authorised the examination of all the files . It repeated that there were grounds for suspecting the applicant of the offences described in the search warrant and noted that the data in issue had been seized in the context of the preliminary investigations in respect of the applicant and other persons . A lawyer could not rely on his duty of professional secrecy and the attendant guarantees of LAW when he himself was the suspect . In sum , the examination of the seized files was necessary in order to investigate the offences .

On DATE ORG contacted the Procurator General , suggesting that he lodge a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) in the applicant ’s case . It submitted , in particular , that a search of a lawyer ’s business premises risked impinging on his duty of professional secrecy .

Pursuant to LAW , the investigating judge had to give reasons when issuing a search warrant and to describe as clearly as possible which items were to be searched for and seized . In the applicant ’s case it was open to doubt whether the search warrant had accurately described which items could be seized . Generally , only a search for particular files likely to be related to the offence in issue could be authorised . The same applied to searches of electronic data . A practising lawyer was obliged by law to have at his disposal a computer system fulfilling certain standards in order to communicate electronically with the courts . In fact , most lawyers also had all their files in electronic form . Standard software for law offices allowed full - text searches for any name or word and thus made it easy to narrow the search of data . In the present case such a search had returned results and thus the search warrant did not extend to the seizure of all of the law office ’s data .

For these reasons , ORG argued that the seizure of all the data and ORG decision to permit the examination thereof had been excessive and therefore unlawful . ORG had failed to give any specific reasons why an examination of the data relating to PERSON and PERSON would not be sufficient . The applicant ’s duty of professional secrecy could only be lifted in relation to the suspicion against him concerning CARDINAL of his clients but not in respect of all his lawyer - client relationships . Moreover , the partner in his law office was not under any suspicion .

By a letter of DATE the Procurator General informed ORG that he had not found any reason to lodge a plea of nullity for the preservation of the law .

On DATE ORG convicted the applicant of embezzlement but acquitted him of the other charges . The court sentenced him to CARDINAL GPE imprisonment , CARDINAL of which were suspended on probation . On DATE ORG dismissed the applicant ’s and the public prosecutor ’s pleas of nullity and on DATE ORG upheld the sentence . Subsequently , the applicant obtained evidence which had not been available to him at the time of the trial . He requested a reopening of the proceedings , which was granted and led to the applicant ’s acquittal by ORG judgment of DATE .

Articles CARDINAL to CARDINAL of the Code of Criminal Procedure in the version in force at the material time concerned the search of LOC and persons and the seizure of objects .

Article CARDINAL § CARDINAL provided , in particular , that a search may be carried out only if there is reasonable suspicion that a person suspected of having committed an offence is hiding on the LOC concerned , or that there are objects on the LOC the possession or examination of which is relevant to a particular criminal investigation .

Pursuant to LAW , a search should , in general , be carried out only after the person concerned has been questioned , and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons warranting the search were not eliminated during the questioning . No such questioning is required where delay would be detrimental .

Article CARDINAL § CARDINAL stated that a search may , as a rule , only be carried out on the basis of a reasoned search warrant issued by a judge .

Pursuant to LAW , the occupant of the LOC subject to the search or , if he is unavailable , a relative of the occupant , must be present during the search . A report is to be drawn up and signed by all those present .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provided that , if objects relevant to the investigation or subject to forfeiture or confiscation are found , they are to be listed and taken to the court for safe keeping or seized . It referred in this respect to LAW , pursuant to which objects in safe keeping must be put into an envelope to be sealed by the court , or have a label attached so as to avoid any substitution or confusion .

Article CARDINAL read as follows :

“ CARDINAL . When searching through documents , steps must be taken to ensure that their content does not become known to unauthorised persons .

NORP If the owner of the documents does not want to permit their being searched , they shall be sealed and deposited with the court ; ORG must determine immediately whether they are to be examined or returned . ”

According to the ORG case - law , which is endorsed by the opinion of academic writers ( see ORG , PERSON , CARDINALth edition ) , the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data . If the owner of discs or hard drives on which data are stored objects to their being searched , the data storage devices are to be sealed and ORG must decide whether they may be examined .

Section CARDINAL of LAW regulates the professional duties of lawyers including , inter alia , the duty to maintain professional secrecy .

Article CARDINAL § CARDINAL of LAW exempts lawyers , notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession .

It is established case - law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation .

Pursuant to an instruction ( Erlaß ) of the Federal Minister of ORG of DATE , a representative of the competent ORG shall be present during the search of a lawyer ’s office in order to ensure that the search does not encroach on professional secrecy .


Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

On DATE a judge of ORG issued a warrant for a search of the applicant 's home under LAW § DATE § CARDINAL of the Code of Criminal Procedure .

NORP The decision was issued at the request of a public prosecutor . It stated that criminal proceedings had been brought in DATE against several persons suspected of having produced and sold forged paintings . The applicant had bought CARDINAL such painting in DATE . It was therefore considered likely that he had it in his house . Accordingly , there was a suspicion that there was an object on the LOC which was important for the purposes of the criminal proceedings .

NORP The police arrived at the applicant 's house at TIME on DATE to carry out the search . The applicant was on holiday in GPE . His partner 's son , who was DATE , was present and , according to the police record , he was requested under LAW to hand over the painting . He informed the police that the painting was unlikely to be in the house and expressed the view that it might be at the premises of the applicant 's company , that is , at a different address . All the rooms of the applicant 's house were visually searched CARDINAL and TIME by QUANTITY policemen , in the presence of the applicant 's partner 's son and a third person who was not involved in the case . The painting in issue was not found .

Upon his return on DATE , the applicant complained to ORG , ORG and ORG , alleging that the search had been inappropriate . He argued , in particular , that he had purchased the painting through an auction house and that it had been open to the prosecuting authorities to ask him for it . The search had interfered with his right to respect for his private life , as he had been on holiday and had had to make the necessary arrangements through his lawyer , and because his reputation had been compromised at his place of residence . The applicant also complained that the police had damaged his good name in that they had interviewed the employees of his company about his private collection of paintings .

On DATE the applicant lodged a complaint with ORG . Relying on LAW , he argued that he was an injured party and that he had no interest in concealing the painting , which he had bought at an auction . He was himself interested in having its origin established . He would have cooperated with the prosecuting authorities if requested . However , those authorities had not contacted him prior to the search . The applicant alleged a breach of LAW of LAW . He also complained that the police who had searched his flat had later attempted , without authorisation , to search his private art collection , which was held at a different location , and had interviewed the employees of the applicant 's company , thereby damaging his good name and reputation .

On DATE the police contacted the applicant and requested , under LAW , that the painting be handed over to them . The applicant complied with the request immediately .

NORP On DATE ORG dismissed the applicant 's complaint on the following grounds . To the extent that the applicant complained about the warrant and the search , he should have sought redress within the framework of the criminal proceedings in which he had the standing of an injured party . The question of the justification for the search was within the scope of the powers of the criminal court dealing with the case . The applicant could have asked that court to conclude , in its reasons for the decision on the merits of the case , that the warrant and the search had breached his fundamental rights and freedoms . Such a finding would have entitled the applicant to claim damages under LAW no . CARDINAL/CARDINAL , which governed liability for damage caused in the context of the exercise of public authority .

As to the complaint about the conduct of the police involved , ORG held that the applicant should first have sought redress by means of a petition to a public prosecutor , pursuant to LAW .

In a letter of DATE a public prosecutor of ORG concluded , in reply to the applicant 's complaint , that the search had complied fully with the relevant law . The letter explained that a police operation had been planned for DATE , in the context of which the suspected persons had been arrested and their homes searched . For tactical reasons , the police had planned to secure all of the paintings presumed to have been forged on DATE . The search had consisted of a purely visual examination of the LOC . It had been necessary as there had been a risk that the injured parties would refuse to hand over the paintings to the prosecuting authorities . In particular , they might have denied ownership of the paintings after learning that they had been forged , out of fear that they would be unable to obtain compensation from the perpetrators .

On DATE the investigator concluded that no offence had been committed and discontinued the criminal proceedings concerning the alleged forgery of works of article On DATE the applicant lodged a complaint against that decision . He withdrew his complaint on DATE .

On DATE ORG ordered that new criminal proceedings concerning forged paintings should be brought in the same context . In a decision of CARDINAL DATE the police started these proceedings . A witness was heard on DATE . On DATE the criminal proceedings were stayed as no facts had been established that could have led to the prosecution of a specific person .

The following provisions of LAW are relevant to the present case .

Article CARDINAL § CARDINAL states that all persons who are in possession of an object which is important for the purposes of criminal proceedings are obliged to show it to the investigator or police . Where it is necessary to secure such an object for the purposes of the criminal proceedings , the person in possession of the object must hand it over to the authorities in charge of the case .

In the event of a refusal , the authorities are entitled to seize the object , subject to approval by a judge , or a public prosecutor in preliminary proceedings ( LAW ) .

Pursuant to LAW , the search of a person 's home is permissible where there is a justifiable suspicion that an object which is important for the purposes of criminal proceedings is located therein or that a person suspected of an offence is hiding there .

Under LAW , the search of a person 's home must be ordered by a judge . The warrant must be issued in writing and indicate the reasons . It must be served on the person whose LOC are to be searched . If it is not possible to do so immediately , the warrant must be served within TIME of the removal of the obstacle preventing the service of the warrant .

Article CARDINAL allows for the search of LOC only when it has been impossible to attain the purpose of the search by means of a prior request addressed to the person whose LOC are to be searched .

LAW requires that the person whose LOC are to be searched , or an adult member of his or her household , should be allowed to be present during the search . Pursuant to paragraph CARDINAL of LAW , the presence of a third person without any involvement in the case should also be ensured during a search .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant , PERSON Ivanovna Gurzhyy , is a NORP national who was born in DATE and lives in ORG , the NORP region . ORG ( “ the Government ” ) were represented by their Agent , Mr Y. GPE .

The applicant is a pensioner . She has no home telephone line .

In DATE Mr NORP fatally injured the applicant ’s son in a car accident in the town of GPE , QUANTITY away from the applicant ’s home town .

On DATE the applicant instituted civil proceedings against Mr NORP , seeking non - pecuniary damages and funeral expenses .

On DATE the GPE ORG ( Ленінський районний суд м. DATE hereafter “ the ORG ” ) awarded the applicant CARDINAL hryvnyas ( ORG ) in respect of the funeral expenses and dismissed the remainder of her claims . On CARDINAL DATE the Zaporizhzha Regional Court of Appeal ( ORG суд GPE області – hereafter “ the Court of Appeal ” ) upheld that judgment on an appeal by the applicant .

In DATE the applicant , acting without legal representation , appealed in cassation to ORG . In accordance with the procedural rules applicable at the material time , the cassation appeal was lodged with the first - instance court , which was to rule on its compliance with the procedural formalities .

On DATE the ORG found numerous procedural shortcomings in the applicant ’s cassation appeal and gave her a time - limit by which to rectify them . The applicant provided a corrected version of the cassation appeal ; however , on DATE the ORG decided to return her submissions as “ not lodged , ” having found that the applicant had not rectified the shortcomings properly .

On DATE the applicant appealed against the decision of DATE . On DATE ORG dismissed her appeal .

On DATE the applicant requested ORG to mail her a copy of the decision of DATE . On DATE , CARDINAL DATE , CARDINAL May and DATE the applicant addressed the same request to ORG . She sent her requests by registered mail , enclosing with each one an empty stamped envelope for a reply . Having received no response , the applicant complained to ORG ( PERSON з прав людини ) . On DATE the Office of the Ombudsman informed the applicant that her complaint had been transferred to ORG ( Рада PERSON GPE області – hereafter “ ORG ” ) for consideration . On DATE ORG informed the applicant that on DATE ORG had mailed her a copy of the requested decision .

On DATE the applicant received the decision of CARDINAL DATE and on CARDINAL DATE lodged a cassation appeal against it with ORG . On DATE ORG informed the applicant that it had mailed her cassation appeal to ORG for a ruling on its compliance with the procedural formalities .

According to the Government , on DATE the ORG found that the applicant ’s cassation appeal had procedural shortcomings : she had , in particular , failed to indicate the scope of the appeal and to provide proper references to the decision appealed against or the law allegedly misinterpreted by the lower courts . The court gave the applicant a time - limit of DATE by which to rectify these shortcomings . This decision was despatched to the applicant on DATE . On DATE the ORG decided to return the applicant ’s cassation appeal as “ not lodged ” as she had failed to rectify the shortcomings in issue . This decision was despatched to her on DATE . The Government presented copies of the aforementioned decisions and of the covering letters , dated DATE and CARDINAL DATE , in which ORG had informed the applicant that it was enclosing them for her information .

According to the applicant , she never received these letters .

On DATE the applicant requested ORG to inform her of the status of her cassation appeal , sending her request by registered mail with an envelope for a reply . She has not received a reply .

In accordance with LAW , cassation appeals were to be lodged with the first - instance court that had dealt with the case . Should the judge to whom the case had been allocated determine that the appeal had procedural shortcomings , he or she was to grant a time - limit by which to rectify them . The appeal was to be declared inadmissible and sent back to the appellant if the latter had not followed the instructions of the judge . The LAW did not provide for any specific form of service of the respective decisions .