Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lived in Narva until his arrest . He is currently serving a prison sentence .

The Viru County Court convicted the applicant of repeated rape , DATE , of his minor daughter , and sentenced him to DATE imprisonment . As summary proceedings had been applied , the sentence was reduced by CARDINAL . The operative part of the judgment was delivered at a hearing on DATE . After the applicant had informed ORG of his intention to appeal , the court delivered the full text of the judgment , which was served on the applicant on DATE . The operative provisions of the full text had been amended – in addition to the originally delivered operative part , the expulsion of the applicant after his release from prison was ordered and a DATE prohibition on entering the country was imposed .

The applicant lodged an appeal with ORG , requesting his acquittal or the mitigation of the sentence , including the overturning of the expulsion order . He asked that the case be heard in his absence but in the presence of his legal - aid lawyer , PERSON , who had also participated in the first - instance hearing . He requested , inter alia , that his former wife , the victim ’s mother , be re - examined at the appellate court hearing , and asked his lawyer to put certain questions to her .

ORG scheduled its hearing for DATE and informed the parties and the applicant ’s lawyer , B. As B. already had another court hearing scheduled for that date , he asked the court to reschedule the hearing or appoint another lawyer for the applicant . ORG appointed PERSON as counsel for the applicant . According to the record of ORG ’s hearing , PERSON challenged the assessment of the evidence and the applicant ’s conviction by the first - instance court . In the event that the appellate court nevertheless found that the applicant was guilty , PERSON asked for a more lenient sentence for him . Lastly , he argued that no reasons had been given in the judgment for the applicant ’s expulsion and that therefore the expulsion was unlawful .

By a judgment delivered on CARDINAL March CARDINAL ORG upheld ORG judgment . Any intention to appeal to ORG had to be notified in writing to ORG within DATE of the delivery of the judgment . An appeal to ORG , drawn up by a lawyer , had to be deposited with ORG within DATE of service of its judgment on the defendant .

On DATE the applicant refused to accept ORG judgment in NORP . On DATE he received a NORP translation . On DATE he submitted a notice indicating his intention to appeal .

On DATE , DATE the applicant gave to a prison officer an appeal drawn up by himself addressed to ORG via ORG . It was posted on the following DATE , DATE , DATE .

Apparently the applicant had telephoned PERSON from the prison to ask him to draw up an appeal to ORG . PERSON had replied that an appeal to ORG had to be drawn up by PERSON , the lawyer who had represented the applicant before ORG . According to B. , he telephoned PERSON immediately and informed him of the applicant ’s wish to lodge an appeal with ORG . According to the applicant , he also telephoned PERSON

According to PERSON , he did not become aware of the applicant ’s wish to appeal to ORG until he was telephoned by the office of ORG on DATE . He was informed that the applicant had submitted a notice of intention to appeal and that , accordingly , an actual appeal had to be drawn up by a lawyer . On DATE PERSON lodged the appeal . He argued that the original operative part of the judgment was decisive , and the imposition of the additional sentence was unlawful and had to be quashed . He also asked for a reduction of the length of the prison sentence .

On DATE ORG rejected the appeal drawn up by the applicant since such an appeal had to be drawn up by a lawyer . It also rejected the appeal drawn up by PERSON on the applicant ’s behalf , noting that DATE for lodging it had been CARDINAL DATE and the appeal had arrived at ORG too late , on DATE .

On DATE PERSON asked ORG to restore the time - limit for lodging an appeal . On DATE ORG refused because no acceptable reasons had been put forward .

In a letter sent to ORG on DATE the applicant insisted that he had done everything he could in the circumstances and asked ORG to examine his appeal . On DATE ORG replied by a letter reiterating that the appeals drawn up by the applicant himself and PERSON had been rejected and PERSON ’s request for the restoration of the time - limit dismissed .

Subsequently , the applicant made several complaints to courts , ORG and the Chancellor of ORG expressing his dissatisfaction with the actions of the courts and the conduct of PERSON in dealing with his case .

On DATE the applicant made a complaint against PERSON to ORG ( ORG ) . He argued that because of PERSON ’s omissions he had been deprived of his right of defence .

On DATE ORG juhatus ) found that there were indications that a disciplinary offence ( distsiplinaarsüütegu ) had been committed and proposed that ORG ( aukohus ) of ORG initiate proceedings in respect of PERSON commenced on DATE . ORG gave its decision on DATE . It considered that PERSON had had an obligation to take steps to find out whether the applicant wished to appeal against ORG judgment . However , PERSON had taken no such steps between the delivery of the appellate court ’s judgment ( CARDINAL DATE ) and the expiry of the time - limit for lodging an appeal ( DATE ) . ORG found that PERSON had breached the requirements of LAW ( Eetikakoodeks ) of ORG and thus committed a disciplinary offence . He was given a reprimand ( noomitus ) as a disciplinary penalty .

In the meantime , the applicant also made a complaint against PERSON to ORG . On DATE ORG found that B. ’s behaviour showed no elements of a disciplinary offence and would not therefore recommend that ORG initiate proceedings against him .

Subsequently , the applicant applied for legal aid to fund the lodging of a request with ORG for the criminal proceedings to be reopened ( teistmine ) . Such a request had to be drawn up by a lawyer . On DATE ORG granted the applicant legal aid to obtain a lawyer ’s opinion on the prospects of success of a request to ORG for the reopening of the proceedings and of an application to ORG . On DATE the lawyer appointed gave her opinion , according to which the request and application in question had no reasonable prospects of success . On the following day an assistant judge at ORG endorsed the lawyer ’s opinion and terminated the legal aid granted to the applicant , without extending it to the drawing - up of the request and application referred to above . On DATE ORG dismissed an appeal by the applicant against ORG decision to terminate legal aid .

Shortly thereafter the applicant applied for legal aid for the second time . On DATE the ORG granted his request .

On DATE , a lawyer appointed under the legal - aid scheme lodged a request for the reopening of the criminal proceedings ( teistmisavaldus ) with ORG , together with a request for the restoration of the pertinent time - limit . In the request the severity of the prison sentence and the later amendment of the operative provisions of the convicting judgment were complained about . It was argued that such subsequent amendment of the operative provisions had been unlawful . It was submitted that the applicant wished to use his right to challenge ORG judgment in the procedure for the reopening of the criminal proceedings because he had been unable to exercise his ordinary right to appeal against the said judgment .

On DATE ORG declined to accept the request .

In the meantime , on CARDINAL DATE ORG ( Kodakondsus- ja PERSON ) revoked the applicant ’s long - term residence permit in GPE . The applicant challenged the decision before ORG , which on DATE dismissed his complaint . On DATE ORG upheld that judgment . On DATE ORG declined to accept the applicant ’s appeal .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure ( ORG seadustik ) stipulates that the participation of counsel in court proceedings is mandatory .

Pursuant to LAW , an appeal in cassation may be filed by an advocate acting as criminal defence counsel .

Article CARDINAL § CARDINAL provides that an appeal in cassation must be lodged within DATE of the date when a party to the proceedings had the opportunity to examine the judgment of the court of appeal . Paragraph CARDINAL provides that , at the request of the appellant , ORG may restore the time - limit for an appeal in cassation if it was allowed to expire for good reason .

Article CARDINAL sets forth the requirements for an appeal in cassation . These requirements include formal ones , such as the personal details of the appellant and details of the judgment appealed against , as well as substantial ones , such as an indication of the appellant ’s request and reasoning setting out why he or she considers that the substantive law was incorrectly applied or the criminal procedural law was violated . Pursuant to LAW , if an appeal in cassation does not meet the requirements set out in LAW , ORG gives the appellant a time - limit for amending the appeal ; in case of a failure to amend the appeal , or if the appeal has been submitted too late , ORG rejects the appeal .

Article CARDINAL provides that the incorrect application of substantive law and the material violation of criminal procedural law are grounds for appeal in cassation . The latter ground is defined in LAW , which at the material time read as follows :

“ ( CARDINAL ) A violation of criminal procedural law is material if :

CARDINAL ) a decision is made in a criminal matter by an unlawful court panel ;

CARDINAL ) a criminal matter is heard in the absence of the accused , except in the cases provided for in Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of this Code ;

CARDINAL ) NORP court proceedings are conducted without the participation of counsel ;

CARDINAL ) NORP court proceedings are conducted without the participation of the prosecutor ;

CARDINAL ) the confidentiality of deliberations is breached in the making of a judgment ;

CARDINAL ) a judgment is not signed by all members of the court panel ;

CARDINAL ) a judgment does not contain reasons ;

CARDINAL) the conclusions presented in the conclusion of a judgment do not correspond to the facts established with regard to the subject of proof ;

CARDINAL ) a criminal matter is heard in a language in which the accused is not proficient without the participation of a translator or interpreter ;

CARDINAL ) a record is not made of a court session , with the exception of matters heard by way of summary proceedings .

( CARDINAL ) A court may declare any other violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded judgment . ”

Article CARDINAL of the Code of Criminal Procedure provides as follows :

“ ( CARDINAL ) ORG panel of CARDINAL justices of ORG shall decide on the acceptance of an appeal in cassation on the basis of the material in the criminal file ... .

( CARDINAL ) An appeal in cassation shall be accepted if CARDINAL justice of ORG finds that :

CARDINAL ) NORP the allegations made in the appeal in cassation give reason to believe that the appeal court has applied substantive law incorrectly or has materially violated criminal procedural law ;

CARDINAL ) NORP the appeal in cassation contests the correctness of the application of substantive law or requests the annulment of the judgment of an appeal court on account of a material violation of criminal procedural law , and a judgment of ORG is essential for the uniform application of the law .

( CARDINAL ) Acceptance of an appeal in cassation or refusal to accept an appeal in cassation shall be in the form of a decision of ORG without any reasons being given . ”

LAW Procedure sets out the rules concerning a request for the reopening of criminal proceedings . The relevant parts read as follows :

“ ( CARDINAL ) The grounds for the reopening of proceedings ( teistmine ) are :

CARDINAL ) NORP the unlawfulness or unfoundedness of a judgment or decision arising from the false testimony of a witness , knowingly wrong opinion of an expert , knowingly false interpretation or translation , or falsification of documents , or fabrication of evidence , which is established by another judgment which has taken effect ;

CARDINAL ) a criminal offence committed by a judge in the hearing of the criminal matter under review and which is established by a judgment ;

CARDINAL ) a criminal offence committed by an official of the body that conducted the pre - trial proceedings , or a prosecutor in the pre - trial proceedings of a criminal matter , and which is established by a judgment , if the criminal offence could have had an effect on the judgment made in the criminal matter under review ;

CARDINAL ) NORP the annulment of a judgment or decision which was one of the bases for the judgment or decision in the criminal matter under review , if this may result in the making of a judgment of acquittal in the criminal matter under review , or in the mitigation of the situation of the convicted offender ;

CARDINAL ) any other facts which are relevant to the just adjudication of the criminal matter but which the court was not aware of when making the judgment or a decision in the criminal matter under review and which independently or together with the facts previously established may result in a judgment of acquittal or in mitigation of the situation of the convicted offender or in mitigation of the situation of a third party whose property has been confiscated on the basis of a judgment or decision ;

CARDINAL ) ORG declares , by way of constitutional review proceedings , that the legislation of general application or provision thereof on which the judgment or decision in the criminal matter under review was based is in conflict with the LAW ;

CARDINAL ) NORP the satisfaction of an individual application filed with ORG against a judgment or decision in the criminal matter under review on account of a violation of LAW or a LAW thereto , if the violation may have affected the resolution of the matter and it can not be eliminated or damage caused thereby can not be compensated for in a manner other than by review . ”

( CARDINAL ) A request for the reopening of proceedings shall be accepted if CARDINAL justice of ORG finds that the allegations made in the petition give reason to presume the existence of grounds for review . ... ”

Article CARDINAL of the Code of Criminal Procedure sets forth the requirements for a request for the reopening of proceedings . This provision is in substance similar to Article CARDINAL , which concerns appeal proceedings . Article CARDINAL provides that LAW also applies to requests for the reopening of proceedings ( see paragraph CARDINAL above ) .

Article CARDINAL of LAW provides for issues arising in the implementation of judgments for which there is no specific regulation in the preceding provisions of the LAW , and other doubts and ambiguities , to be settled by a decision of the court which gave the judgment or the judge in charge of execution of judgments at the county court responsible for enforcing the judgment .

Section CARDINAL § CARDINAL of LAW ( Riigi õigusabi seadus ) , as in force at the material time , provided that an advocate was not allowed to refuse to provide State legal aid to a person or terminate the provision of legal services to a person before the final adjudication of the matter .

In a judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) ORG , sitting in plenary session , dealt with an application from a person convicted under LAW ( PERSON ) who sought to be released from serving his remaining sentence after a new LAW ( Karistusseadustik ) had entered into force because the new LAW provided for a shorter maximum prison term for a similar offence . ORG considered that the applicant ’s petition could not be considered a request for the reopening of the criminal proceedings ( teistmine ) or a petition for the correction of court errors ( kohtuvigade parandamine ) . ORG held :

“ CARDINAL . ... [ T]he fact that LAW recognises everyone ’s right of recourse to the courts , if his or her rights and freedoms are violated , must not be ignored . [ The applicant ’s ] petition concerns the rights referred to in LAW ... . Proceeding from LAW , ORG may refuse to hear [ the applicant ’s ] petition only if [ the applicant ] has other effective ways to obtain judicial protection of the right of recourse to the courts established in the [ above ] provision of the LAW . ”

ORG proceeded to analyse whether other possible procedures were available to the applicant and concluded :

“ CARDINAL . ... [ ORG ] is of the opinion that there is no effective remedy for [ the applicant ] for the protection of his fundamental right . Taking into account this fact , the fundamental rights at stake , and the duration of the sentence served , the [ ORG ] can find no justification for refusing to hear [ the applicant ’s ] petition on the merits . [ ORG ] also bears in mind the need to give the courts clear guidelines on how to resolve similar cases . ”

Subsequently , dealing with requests lodged in accordance with the procedure for the reopening of criminal proceedings ( teistmine ) , ORG has in several cases referred to the judgment referred to in the previous paragraph , for example , in the judgments of its ORG of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) and DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) . In the former case , ORG noted that the grounds invoked by the prosecutor were not included in the exhaustive list given in LAW of LAW . Nevertheless , ORG found that in that case there was no other effective procedure for verifying whether the applicant ’s right to liberty had been infringed ; it heard the case and ordered the applicant ’s immediate release .

NORP In the latter case , ORG , having also established that there were no grounds for reopening the criminal proceedings , nevertheless analysed whether the applicant ’s rights had been violated . Finding that this was not the case , it refused to reopen the proceedings .

In a judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) ORG dealt with a request for the reopening of proceedings ( teistmine ) , filed on DATE , in a case where CARDINAL different versions of the operative provisions of a judgment of a first - instance court existed . According to the operative part of the judgment originally delivered by the first - instance court , DATE of the DATE prison sentence imposed on the defendant were to be suspended . However , according to the operative provisions of the full text of the judgment , delivered at DATE , the defendant had to serve CARDINAL months’ imprisonment immediately and DATE were suspended .

ORG declined to reopen the proceedings , finding that there were no grounds for that under LAW . Nevertheless , in order to secure the uniform application of the law and consistency in the case - law , ORG made it clear that the original operative part of the judgment was to be considered decisive and reiterated that pursuant to LAW doubts and ambiguities arising in the execution of a judgment were to be settled by a decision ( määrus ) made by the judge in charge of the execution of judgments ( täitmiskohtunik ) .


No violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and is at present living in GPE .

On DATE , based on the statements given by CARDINAL members of the ORG to the police , the public prosecutor at ORG ordered the arrest of CARDINAL people , including the applicant , on suspicion of aiding and abetting an illegal terrorist organisation . Several terrorist acts , including an attack on FAC , carried out by the ORG were mentioned in the order . The public prosecutor further requested to be kept informed DATE about the progress being made in the investigation .

NORP On DATE at TIME , the police eventually arrested the applicant at FAC on the basis of an order prohibiting him from leaving the country . At TIME he was taken to ORG in GPE .

On DATE at TIME , the applicant was taken into custody at ORG . On DATE the public prosecutor at ORG authorised ORG to extend the applicant 's detention for DATE , starting from DATE .

On DATE the applicant was examined by a doctor at ORG in GPE . The doctor noted in his report that no pathological findings had been found on the applicant 's body and that the final medical report would be drafted by ORG .

On DATE , at TIME , the applicant was taken to LOC . The applicant and the police officers who accompanied him took a plane to ORG . At TIME he was handed over to police officers from ORG . On DATE , ORG authorised the extension of the applicant 's detention for DATE .

The applicant alleged that he was subjected to ill - treatment in ORG , which included beatings , electric shock treatment , blindfolding , verbal insults , hosing with cold water , being stripped naked and deprived of food .

On DATE the applicant was driven to different places around ORG in order to locate his different meeting places with terrorists . A sketch map , describing the attack on FAC and how he had assisted the terrorists , was drafted by police officers . In a statement signed by the applicant on DATE , he confessed that he had aided members of the ORG . He alleged that , after having signed this confession , he was again subjected to ill - treatment .

On DATE the applicant was seen by a doctor in PERSON who noted in his report that there were MONEY on his body of beatings or injuries consistent with the use of force . The applicant alleged that the doctor neither spoke to him nor examined him .

On DATE the applicant was first brought before ORG who decided to join the investigation file on the applicant dated DATE to the new investigation file dated DATE . The applicant contended that his police statements were taken under duress and refuted the reliability of the medical report . Moreover , he denied all the allegations made against him . Later he was taken before the judge at ORG . He repeated that his police statements were taken under duress and refuted the allegations against him . Noting that the applicant had a profession and a permanent address , the judge concluded that there was nothing in the case file that required the applicant 's detention pending trial and ordered his release .

On DATE the applicant went on his own to be examined by another doctor . The subsequent medical report dated CARDINAL DATE read as follows ( translation ) :

“ Report :

PERSON , born DATE in PERSON , was taken into custody in GPE on DATE and was held in custody for a total of DATE ; DATE in GPE and DATE in PERSON . During his detention in GPE , he was subjected to duress , such as not having access to means of communication and not being allowed to receive visitors despite his requests .

In PERSON , he was subjected to physical and psychological torture for TIME . He was interrogated while he was completely naked . He was held in a cold and dirty cell which had a stone floor . His access to the toilet and sanitary materials were restricted . He was subjected to offensive language and behaviour . He was threatened with death . He endured psychological pressure which led to desperation and destroyed his self - confidence ( he was repeatedly told that he would be put on trial and subsequently be sentenced to death ; he would be killed even if he was released , etc . ) . He was beaten up CARDINAL times during this interrogation . As a result of moving cables around his body , he was subjected to electric shocks CARDINAL times in succession , mainly on his legs and feet . He was hosed down with cold water . His testicles were squeezed . He was basically subjected to a kind of torture which endangers the victim 's life and causes extreme pain , but does not always leave marks on the body .

While in GPE he had to pay for his food . During TIME of detention in PERSON , he was unable to eat the food given to him since he was exhausted as a result of the torture . He was not supplied with water and he was told that drinking water after being subjected to torture would be dangerous for his health .

Before being released he was taken to ORG , where a medical report was issued , revealing that he was in good health . This report was prepared in the absence of a proper physical examination . On DATE the torture victim had pain in his shoulders and back . He was suffering from weariness and violent headaches . He was going through the interrogation all over again in his dreams . During his sleep he needed to go to the toilet frequently , and he was often going through the whole interrogation procedure in his dreams . The weariness and the dizziness of the victim were easily observed during the first examination .

The results of blood and urine tests were normal . As a result of the neurological consultation , his neck movements were observed to be painful , and hypoesthesia and hypoalgesia were found in his left QUANTITY . In the cervical BT examination no medullar and spinal chord compression was discovered . It was considered that the applicant 's complaints were due to the trauma applied to the cervical region . He is provided with an anti - inflammatory treatment and he is under surveillance .

As a result of the psychiatric consultation , traumatic experience related insomnia was discovered . It was stated that he did not need psychotherapy .

Considering his state of health , it would be appropriate for him to rest for CARDINAL ( DATE .

DATE

Dr PERSON ( signature ) ”

On DATE the public prosecutor at ORG filed an indictment with the same court accusing the applicant of aiding and abetting an illegal armed organisation , contrary to Articles CARDINAL and CARDINAL of LAW and LAW no . ORG on ORG .

On DATE ORG acquitted the applicant of the charges due to lack of evidence .

On DATE the applicant 's lawyers filed petitions with ORG complaining about the excessive length of the applicant 's detention in police custody .

On DATE ORG requested ORG to investigate the complaints made by the applicant 's lawyers .

On DATE and CARDINAL DATE ORG took statements from the applicant 's lawyers . They complained about the excessive length of their client 's detention and his ill - treatment during his detention in ORG .

On DATE ORG took the applicant 's statements . The applicant complained about the length of his detention and criticised the public prosecutor at ORG who had unlawfully authorised the prolongation of his detention . Moreover , he gave details of the alleged ill - treatment in ORG . He gave a description of the QUANTITY police officers who were allegedly responsible for this treatment and maintained that CARDINAL of them was the person who drove him from the airport to ORG . He stated that the doctor who examined him on DATE did not ask him any questions and only checked the upper part of his body . However , he contended that the treatment that he had been subjected to was not the type of treatment which would necessarily leave traces on the body . Moreover , he was unable to complain to the doctor because police officers were present in the room . He further maintained that , apart from the documents in the case file before ORG , he did not have any evidence or witnesses to substantiate his allegations .

On DATE ORG sent a letter to ORG requesting him to investigate the applicant 's allegations of torture .

On DATE the ORG requested information from ORG about the identity of the QUANTITY police officers who drove the applicant from the airport to ORG . Moreover , he sent a letter to ORG requesting a copy of the applicant 's case file . He also sent a letter to ORG requesting to have the applicant examined by a forensic doctor for traces of torture that allegedly occurred during his detention in ORG .

On DATE the ORG informed ORG of the names of the police officers who drove the applicant from the airport to ORG as well as those of the officers who questioned him during his detention . On DATE QUANTITY police officers were summoned before ORG . In their statements to the public prosecutor all CARDINAL police officers refuted the applicant 's allegations .

On DATE the ORG repeated his requests to the public prosecutor at ORG and ORG .

On DATE ORG in ORG decided that charges should not be brought against the CARDINAL police officers . It noted in its decision that the applicant was interrogated on DATE and seen by a doctor in ORG on DATE ; a medical report drafted on DATE found no traces of blows to the applicant 's body and mentioned that , subsequently , on DATE , the applicant was released following a decision of ORG . The ORG consequently held that , contrary to what was claimed by the applicant , he had not been subjected to torture .

The applicant did not appeal against the decision of ORG . The decision was examined ex officio by ORG . On DATE the court upheld the decision of the administrative council holding that there was no evidence to substantiate the applicant 's claim that the police officers had committed the alleged crime .

The relevant domestic legislation is outlined in the ORG 's PERSON v. GPE judgment ( no . CARDINAL , § § DATE , CARDINAL DATE ) .


Violation of Art. 6-1;No violation of Art. 13;Not necessary to examine under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

The applicant ’s grandfather ( “ GPE ) owned a plot of land and a house situated in the centre of GPE . During the Second World War the house was demolished . By virtue of the CARDINAL Decree on the Ownership and Use of Land in GPE ( Dekret o własności i użytkowaniu gruntów na obszarze QUANTITY st . PERSON ) all land in GPE was nationalised . In DATE J.O. asked the administrative authorities to grant him a right of temporary ownership ( własność czasowa ) of his plot . On DATE the Board of ORG ( PERSON ) dismissed his application .

On DATE the applicant and other GPE ’s heirs filed with the Minister of ORG ( ORG i GPE ) an application for the annulment of the decision of DATE . They also asked for a right of perpetual use ( użytkowanie wieczyste ) of the plot in question to be granted to them . On DATE the Minister quashed the DATE decision and remitted the case to the Mayor of GPE ( PERSON ) for re - examination .

By DATE the Mayor had not delivered any decision . On DATE the applicant lodged with ORG ( PERSON ) a complaint alleging inactivity on the part of the Mayor of GPE .

On DATE the Mayor stayed the proceedings until the applicant had submitted certain documents . On CARDINAL DATE , upon a further appeal by the applicant , ORG quashed that decision . On DATE ORG ordered the Mayor to give a decision within DATE . The Mayor failed to comply with this order .

On DATE the Mayor of GPE asked ORG to extend the time - limit as he needed to obtain some additional documents . On DATE the Mayor asked for an extension of the time - limit until DATE .

On DATE the Mayor again stayed the proceedings , this time until the conclusion of other administrative proceedings . On DATE , upon the applicant ’s appeal , ORG quashed that decision and ordered the Mayor to proceed with the case .

On DATE the Mayor refused the application for the grant of the right of perpetual use of the plot concerned . The applicant appealed . On DATE ORG set aside the first - instance decision and remitted the case .

On DATE the Mayor of GPE for the second time refused the application for the grant of the right of perpetual use . On DATE the Board of Appeal again quashed this decision and remitted the case .

Meanwhile , on CARDINAL DATE the applicant lodged a complaint with ORG ( PERSON ) , alleging inactivity on the part of the Mayor of GPE . On DATE ORG delivered a judgment in which it ordered the Mayor to issue a decision within DATE and awarded the applicant CARDINAL ORG for costs and expenses .

On DATE the Mayor stayed the proceedings until the conclusion of the administrative proceedings concerning the transfer of ownership to GPE and the adoption of a local master plan ( PERSON plan zagospodarowania przestrzennego ) . Upon the applicant ’s appeal , ORG upheld this decision on DATE . On DATE ORG confirmed the decision of DATE and dismissed the applicant ’s further appeal .

Subsequently , the applicant asked ORG to impose a fine on the Mayor of GPE . In its judgment of DATE ORG dismissed his application . The court held that the Mayor had failed to comply with the judgment of CARDINAL DATE for objectively justified reasons . The Mayor ’s decision had depended on the conclusion of other administrative proceedings concerning the transfer of ownership to GPE and the adoption of a local master plan . In addition , the court pointed out that , according to LAW of LAW , a party to proceedings who sustained damage as a result of a failure of the administrative body to act was entitled to claim compensation from the administrative authority concerned , according to principles of civil liability .

The proceedings were stayed and are thus pending before the Mayor of GPE .

The Decree on the Ownership and Use of Land in GPE of DATE expropriated owners of real property located in GPE and transferred the ownership of land to the municipality of GPE . The CARDINAL Decree provided , in so far as relevant :

“ Section CARDINAL . ( CARDINAL ) The owner of a plot of land ... can within DATE after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease ( wieczysta dzierżawa ) with a peppercorn rent ( czynsz symboliczny ) . ...

( CARDINAL ) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan ( plan zabudowania ) . ...

( CARDINAL ) In case the request is refused , the municipality shall offer the person entitled , as long as it has spare land in its possession , a perpetual lease of land of equal value , on the same conditions , or the right to construct on such land .

CARDINAL ) In case no request , as provided for in paragraph ( CARDINAL ) , is filed , or the former owner is for any other reasons not granted a perpetual lease or the right to construct , the municipality is obliged to pay compensation pursuant to LAW .

Section CARDINAL . In case the former owner is not granted the right to a perpetual lease or the right to construct , all buildings located on the land shall become the property of the municipality , which is obliged to pay , pursuant to LAW are fit to be used or renovated .

Section CARDINAL .

( CARDINAL ) The right to compensation begins to apply DATE after DATE of taking the land into possession by the municipality of GPE and expires DATE after that date . ... ”

Pursuant to LAW , the ownership of land located in GPE was assigned to ORG . According to the LAW of LAW DATE the ownership of the land which had previously been held by ORG and which was within the administrative territory of municipalities , was transferred to the latter .

Under Article XXXIX of the Decree of CARDINAL DATE introducing LAW ( prawo rzeczowe ) and LAW , the right to construct and the right to a perpetual lease could be transferred into temporary ownership ( własność czasowa ) . LAW of DATE on ORG ( Ustawa o gospodarce terenami w miastach i osiedlach ) replaced temporary ownership with perpetual use ( użytkowanie wieczyste ) .

The right of perpetual use is defined in Articles CARDINAL et seq . of LAW ( PERSON ) . It is an inheritable and transferable right in rem which , for DATE , gives a person full benefit and enjoyment of property rights attaching to land owned by ORG or municipality . It has to be registered in the court land register in the same way as ownership . The transfer of that right , like the transfer of ownership , can be effected only in the form of a notarised deed , on pain of its being void ab initio . The “ perpetual user ” ( użytkownik wieczysty ) is obliged to pay ORG ( or the municipality , as the case may be ) an DATE fee which corresponds to a certain percentage of the value of the land in question .

Article CARDINAL of LAW ( “ the code ” ) of DATE lays down time - limits ranging from DATE to DATE for dealing with a case pending before an administrative authority . If these time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new time - limit . Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent such delays in the future .

On DATE a new LAW DATE on ORG ( “ the DATE LAW ) came into force . According to the provisions of LAW , a party to administrative proceedings may , at any time , lodge with ORG a complaint about inactivity on the part of an authority obliged to issue an administrative decision .

LAW provides :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”

Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity is legally binding on the authority concerned . If the authority has not complied with the decision , the court may , under LAW , impose a fine on it and may itself give a ruling on the right or obligation in question .

NORP Under the same provision , a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of ORG given under LAW , is entitled to claim compensation from the administrative authority concerned , according to principles of civil liability as set out in LAW . Such a claim should be first lodged with that authority . A decision on the compensation claim should be taken by that administrative authority within DATE . If the authority concerned fails to give a ruling in this respect within this time - limit , or if the party is not satisfied with the compensation granted , a compensation claim against the administrative body can be lodged with a civil court .

LAW was repealed and replaced by the Law of DATE on ORG ( “ the DATE Act ” ) which entered into force on DATE . LAW of LAW contains provisions analogous to LAW of the CARDINAL LAW . A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court . Under LAW , if a complaint is well - founded , an administrative court shall oblige the authority concerned to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law .


Giovanni Bonello;Ján Šikuta;Lech Garlicki

The applicant was born in DATE . He is currently serving a prison sentence in PERSON prison .

On DATE ORG convicted the applicant of sexual abuse of a minor and sentenced him to DATE imprisonment . The applicant appealed .

On DATE the ORG upheld the firstinstance judgment . On a later unknown date the applicant requested that a legalaid lawyer be assigned to the case to prepare a cassation appeal . On DATE the court allowed his request . The court 's decision was served on the applicant on DATE .

By a letter to the court dated CARDINAL DATE the lawyer refused to prepare a cassation appeal , finding no grounds for it . This letter was subsequently forwarded by the court to the applicant .

On DATE the applicant requested the court to assign a new legalaid lawyer to the case . In letters to the applicant dated DATE and DATE the court refused to do so . The court referred to the legal - aid lawyer 's refusal of CARDINAL DATE .

Neither in the letter accompanying the lawyer 's refusal of CARDINAL DATE nor in its later letters the court informed the applicant of his further procedural rights .

On an unknown date in DATE the applicant instituted criminal proceedings alleging that correspondence sent by him to courts , prosecutors and other authorities had been destroyed by prison officers . On DATE ORG refused to institute proceedings in the case . On DATE ORG upheld the decision of ORG .

On an unknown date in DATE the applicant , who was serving a prison sentence , filed a request for temporary leave . On DATE the ORG dismissed his request . On DATE the ORG dismissed his appeal as unfounded .

On DATE the applicant requested the penitentiary judge to grant him another temporary leave . On DATE the judge refused his request . On DATE the ORG dismissed his appeal as unfounded .

NORP In DATE the applicant requested that criminal proceedings be instituted against a judge examining his case , alleging that he had destroyed certain documents from his case file . On DATE ORG refused the request . On DATE ORG upheld this decision .

NORP In criminal proceedings concerning an assault against the applicant by his fellow - prisoner , on DATE the ORG convicted the accused and sentenced him to DATE imprisonment . The court also obliged him to pay the applicant damages in the amount of ORG CARDINAL .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of the appellate courts are stated in the ORG 's judgments in the cases of PERSON v. GPE , no . CARDINAL , § § DATE , ECHR DATE ... ( extracts ) and ORG v. GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .

NORP In particular , on DATE ORG examined a situation where a legal - aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings , finding that a cassation appeal would offer no prospects of success . It held that in such a situation the appellate court was obliged to instruct the defendant that the timelimit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer 's refusal and not on DATE when the judgment of the appellate court was served on the defendant himself . It stated that it was not open to doubt that a defendant faced with a legal - aid lawyer 's refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal ( III KZ CARDINAL/CARDINAL ) . ORG reiterated its position in a decision of DATE and in a number of similar decisions given in DATE . It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time - limit in such situations was calculated , but the strand of the case - law launched by the decision given in DATE was both dominant and correct , and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to ORG within a reasonable time frame ( II KZ CARDINAL/CARDINAL ) .

In its decision of CARDINAL DATE ORG stated that the refusal of a legal - aid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time ( V ORG CARDINAL/CARDINAL ) . It confirmed this ruling in a further decision of DATE . ORG observed that the court could only assign a new legal - aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success . If this were not the case , a court was not obliged to assign a new legal - aid lawyer to represent the convicted person and its refusal was not subject to appeal ( III KZ CARDINAL/CARDINAL ) . ORG reiterated its position in a number of other decisions ( e.g. II KZ CARDINAL/CARDINAL , PERSON CARDINAL/CARDINAL ) .


The applicant is a NORP national born in DATE and living in GPE , GPE . He is a businessman . He is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

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

A.

The application concerns the circumstances of the applicant ’s arrest by CARDINAL members of ORG on DATE and his alleged ill - treatment subsequently at the GPE police station . As to the actual course of these events , the Government and the applicant submitted conflicting versions .

a. The applicant ’s account of the relevant events

On DATE , at TIME , the applicant was working in the yard of his house , when he saw Mr. NORP approach , running on the street . CARDINAL police officers wearing uniforms and holding guns were chasing Mr. NORP The applicant asked CARDINAL of the policemen why they were chasing Mr. PERSON In response the policemen ordered the applicant to drop the wooden bar he was holding in his hand . He complied with the order . Thereupon he was ordered to lie down on the ground . He , being afraid , attempted to run away , during the course of which the other policeman present hit him in the face . He nevertheless managed to break free and escape to the neighbouring gardens . Realising that CARDINAL further police officers had meanwhile arrived on the LOC , he eventually went out on the street again and lay down on the ground . Subsequently he was handcuffed and brought to the GPE police station . He alleges that during the drive to the police station Police Officer PERSON hit him once in the stomach .

At the police station his hands were handcuffed behind his back and , subsequently , Police Officer PERSON and the police officer who had previously taken the action against him in front of his house systematically beat him up . During the beating he fell on the floor , where he was kicked several times and his head was banged against the floor , which resulted in a bleeding bruise on his forehead . A person wearing plain clothes stepped on his dislocated foot . Thereupon he was instructed to wash himself , go outside and tell his relatives waiting there that he had not been hurt and that they should leave . He did not comply with this instruction .

b. The Government ’s account of the events

On DATE Police Officers NORP and PERSON were on duty in GPE . They halted a car for an identity check of the driver and his passenger . This latter person , however , did not comply with the police ORG instruction but jumped out of the car and started to run away . While chasing him , the police officers reached the street where the applicant lives . Here the applicant appeared , holding a wooden bar in his hands .

According to the police officers and a civil guard present , the applicant yelled at them , blocked their way and hit with the wooden bar in the direction of Police Officer R. ’s head . Thereupon Police Officer PERSON took out his service gun and ordered the applicant to drop the wooden bar . He dropped the wooden bar and ran away . Police Officer PERSON ran after him , caught him and attempted to stop him grasping him by his left shoulder . The applicant turned around and , with his right fist , he hit Police Officer NORP on the left cheek . Thereupon the police officer tried to push the applicant down on the ground , but the latter hit him again on the left cheek twice , managed to break free and ran away . In TIME the applicant ’s relatives and neighbours showed up in the street ; the preceding events had consequently not been eye - witnessed by anyone other than the police officers and the civil guard . Police Officer R. went on trying to subdue and hand - cuff the applicant in order to prevent further violence but he could not overcome his resistance .

Eventually , the applicant broke free and ran into the spectators’ crowd where he disappeared . Police Officer PERSON followed the applicant into the crowd and saw him fall on the ground accidentally . By the time he got near the applicant lying on the ground in order to handcuff him , several women - some relatives and acquaintances of the applicant - leant over the applicant , covering him with their bodies and preventing his handcuffing . While the police officers were trying to pull these women away , the applicant broke free again and ran away . Jumping over several fences , he soon reappeared in another direction in the street .

In this moment CARDINAL further policemen arrived on the LOC upon the acting police ORG call for back - up . Presumably owing to exhaustion , the applicant meanwhile lay down on the stony earth road further down the street , where the above - mentioned women leant over him again , covering him with their bodies . The proceeding police officers finally managed to handcuff the applicant , whom they brought to the GPE police station .

According to the testimonies given in the course of the ensuing investigations by the police officers involved and the civil guard present , the applicant had injuries on his face when handcuffed ; in turn , he was not ill - treated at the police station .

c. Subsequent events on DATE

Later that day Dr. PERSON was called to the GPE police station , who , at TIME , examined the applicant and prepared a medical report on his injuries . Subsequently he left to fetch his instruments in order to suture the applicant ’s wound on the forehead . The applicant alleges that thereupon a police officer handcuffed him again and went on hitting and kicking him .

After Dr. PERSON had returned and sutured the applicant ’s wound over the eye , the latter was brought to GPE Prison in GPE .

d. Medical reports and opinions evaluating the applicant ’s injuries

In his report of DATE , Dr. PERSON stated that the applicant had the following injuries : abrasions , bruises and suffusions of the face , the forehead , the neck , the shoulders , the right upper arm , the chest and the back , a swollen reddish discoloration and suffusion in the upper stomach region , as well as a ruptured wound over the right eye . In Dr. PERSON ’s opinion , these injuries were to heal within DATE .

On DATE Dr. PERSON examined the applicant in the PERSON prison . In his report Dr. ORG described altogether CARDINAL counts of contusions and abrasions scattered on the applicant ’s head , arms , chest , back , trunk and legs .

On DATE the Bács - Kiskun County Police Department appointed a medical expert to give his opinion on the previous medical reports concerning the applicant ’s injuries . The expert found that the applicant ’s injuries , as described by Dr. PERSON on DATE and by Dr. PERSON on DATE , could be due to the struggle between the applicant and the police officers and the applicant ’s falling down on harsh ground in the context of his arrest . In turn , the expert found no reference in the reports to any injury , which could be attributed to any brutality other than the circumstances of the applicant ’s arrest .

On DATE Professor NORP , a forensic pathologist appointed by ORG of ORG ( “ the Branch Office ” ) , issued an opinion as to the nature of the applicant ’s injuries . He found that the contusions and abrasions on the applicant ’s body , as described in the medical reports of DATE and CARDINAL May , could be due to punches or to falling down on harsh ground . The swollen lesion in the gastric area had been likely to derive from a punch on the applicant ’s stomach . The injuries altogether could be the consequences of the applicant ’s forcible immobilisation and handcuffing . From a forensic medical aspect it could not be proven if the injuries had been suffered in the context of the applicant ’s arrest or of any potential subsequent ill - treatment .

On DATE ORG of the ORG issued a forensic medical opinion in the case . According to this opinion , the applicant ’s injuries must have been due to CARDINAL counts of forcible impact and it could not be excluded that these impacts had been punches . However , in ORG view , the medical report prepared by Dr. PERSON on DATE was not precise enough to underlie a forensic opinion as to the cause of the applicant ’s injuries .

e. Proceedings in pursuit of the applicant ’s allegations of ill - treatment

On DATE and CARDINAL DATE , respectively , the applicant laid charges of ill - treatment and of light bodily assault against the police officers involved . The ensuing proceedings took place before ORG .

On DATE ORG discontinued the investigation upon the charges laid by the applicant . ORG , relying on forensic medical expertise and witness evidence - given by the police officers and the civil guard present at the incident - , found that the applicant ’s injuries could be due to the fight between the police officers and the applicant upon the occasion of the latter ’s arrest , when hindering the lawfully proceeding police officers in arresting Mr. R. ORG held that it could not be proven beyond doubt that the applicant ’s injuries had been caused by ill - treatment rather than in the course of his lawful arrest .

On DATE the applicant lodged a complaint against the decision of CARDINAL DATE . He criticised the fact that ORG had held no hearing in the case . Moreover , he submitted the forensic medical opinion prepared by ORG of the ORG on DATE .

On DATE ORG dismissed the applicant ’s complaint . ORG pointed out that it had not been possible to prove beyond doubt that his injuries had been caused as alleged and that the investigation had been , therefore , lawfully discontinued . To the extent that the decision of ORG had concerned the applicant ’s charges of light bodily assault , ORG quashed the decision of DATE and transferred the case to ORG in order that it should proceed with the applicant ’s charges in private prosecution proceedings .

On DATE the applicant lodged a revisionary complaint with the Attorney ORG . In DATE the Attorney ORG dismissed this complaint .

On DATE ORG , in preparatory proceedings , discontinued the private prosecution proceedings against ORG , NORP and ORG found unsubstantiated the applicant ’s charge of light bodily assault brought against the police officers .

On DATE GPE dismissed the applicant ’s appeal . ORG , while upholding the discontinuation of the proceedings , quashed the reasoning of the first - instance decision on the ground that it had constituted a pre - judgment of the case in breach of LAW ) of LAW .

ORG held that the original charges laid by the applicant , namely those of ill - treatment and of light bodily assault , concerned one and the same event . His charge of ill - treatment was to be pursued in public prosecution proceedings but the relevant investigation had been discontinued and no indictment had been brought against the police officers on this account . In the instant private prosecution proceedings , however , the unlawful origins of the injuries inflicted in the context of the police action against him could not be established . A decision on this question having been a pre - requisite of examining the merits of the charge of light bodily assault , the proceedings were without an object .

f. Criminal proceedings against the applicant

Shortly after the events of DATE the Head of the ORG instituted criminal proceedings against the applicant , charging him with having violently hindered the arrest of Mr. NORP Subsequently the Branch Office prosecuted the applicant on account of the offence of violence against persons acting in official capacity .

On DATE an investigator of ORG heard the applicant as defendant concerning the circumstances of his arrest DATE . On this occasion the applicant did not allege that , subsequent to his arrest , he had been ill - treated at the police station .

On DATE the Branch Office heard Police Officer NORP and Mr. PERSON , the civil guard involved in the events of DATE . Police Officer NORP who stated that the applicant ’s injuries had been due solely to the struggle in the context of his arrest . Mr. PERSON stated that , when handcuffed , the applicant had already had some abrasions on the face and that between the applicant ’s arrival at the police station and his own departure therefrom at TIME he had witnessed no ill - treatment of the applicant .

On DATE the applicant was heard again in the presence of his lawyer . On this occasion the applicant stated that during the drive from the premises of his arrest to the police station , Police Officer PERSON had hit him once in the stomach , and that on his arrival at the police station , the police officer had poured some water on him . When in the building , Police Officer PERSON had sprayed some tear - gas in his eyes and then together with Police Officer F. he had started to hit and kick him . Subsequently he had been forced to wash himself . In TIME arrived who had not examined him , but had had a look at his face and had stated that the wound over his eye needed to be sutured . After the doctor ’s departure , Police Officer S. had kept on kicking him .

Also on CARDINAL DATE the ORG heard Dr. PERSON who stated that when he had examined the applicant on DATE TIME , the latter had made no reference to any ill - treatment suffered at the police station . Dr. PERSON also stated that when having examined the applicant , he had observed no trace of wetness on the applicant ’s clothes , neither had he seen any sign of a conjunctivitis due to contamination by tear - gas .

Moreover , on CARDINAL and DATE and DATE CARDINAL relatives of Mr. NORP were heard as eye - witnesses . These persons stated that , when arrested in front of his house on DATE , the applicant had not had any injuries .

On DATE the Branch Office heard Police Officer O. who had arrived on the premises of the applicant ’s arrest upon the call for back - up . He reinforced the above testimonies of Police Officer NORP and Mr. PERSON and stated that , when handcuffed , the applicant had already had some bleeding injuries on the face .

On CARDINAL , DATE and DATE , DATE , CARDINAL and DATE ORG held hearings in the case . When heard as a witness on DATE , Dr. PERSON stated that in his view the applicant ’s injuries had been inflicted before he had first seen him on DATE , rather than during the interval between this inspection and the examination at TIME Moreover , when heard as a witness on DATE , the author of the forensic medical opinion of CARDINAL DATE sustained his earlier opinion in the sense that from a medical aspect it could neither be verified nor excluded that the applicant ’s injuries had been due to punches .

On DATE the ORG convicted the applicant of the offences of violence against persons acting in official capacity and of light bodily assault . It sentenced the applicant to DATE imprisonment , the execution of which was suspended for DATE . As to the applicant ’s allegations of ill - treatment , ORG noted that CARDINAL counts of his CARDINAL injuries were due to the struggle in the context of his arrest , whereas the cause for the remaining CARDINAL injuries , namely a wound on his right eyelid and an abrasion on the left side of his forehead , remained unclear . Since , however , the medical reports had identified no injuries typical of physical abuse and no other evidence had emerged in support of the applicant ’s allegations , ORG found them unsubstantiated .

On DATE GPE upheld the first - instance judgment , while reducing the probationary period to DATE .

B. Relevant domestic law and practice

According to LAW , official liability [ of the ORG administration ] may be established only if the relevant ordinary remedies have been exhausted or have not been fit to prevent damages .

In its decision no . Pf . I.CARDINAL.CARDINAL/CARDINAL , ORG held that inappropriate police measures may give rise to official liability under LAW .


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

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

On DATE the applicant caused a road accident .

On DATE ORG ( GPE ) summoned the applicant as he was suspected of having driven a car in a state of drunkenness . However , he did not obey the summons . On DATE he commented on the suspicion against him .

On DATE ORG issued an order imposing a fine of ATS CARDINAL on the applicant for having driven his car in a state of drunkenness . A test carried out had shown that the applicant had had an alcohol level in his breath of QUANTITY ( the legal limit is QUANTITY ) .

On DATE the applicant , who was assisted by counsel of his own choice , filed an appeal ; he requested an oral hearing .

On DATE ORG ( PERSON the ORG ” ) served a summons for a hearing on DATE on the applicant ’s counsel .

On DATE the ORG , after having held a hearing on DATE , dismissed the applicant ’s appeal .

On DATE the applicant lodged a complaint with ORG ) .

On DATE ORG quashed the ORG ’s decision . It found that the decision was based on an unconstitutional provision which provided that LAW ( GPE ) did not apply in road - accident proceedings . According to LAW , if the extenuating circumstances outweigh the aggravating circumstances , the imposed fine may be reduced to CARDINAL of the statutory minimum fine . This decision was served on the applicant ’s counsel on DATE .

On DATE the ORG , sitting with a single member , dismissed the applicant ’s appeal . It found that the requirements of LAW were not met .

On DATE the applicant lodged a complaint with ORG against this decision . He stressed that the ORG had failed to hold a hearing in the second set of the proceedings upon his appeal despite his request in his appeal of CARDINAL DATE . He also complained that the decision had not been pronounced in public .

On DATE the ORG submitted its observations in reply . It argued that the applicant had waived his right to a public hearing and a pronouncement in public as he had agreed at the end of the hearing of DATE that no hearing for the pronouncement of the decision should be held .

On DATE the applicant amended his complaint , now stating that the composition of the ORG was unlawful as that member had already decided on his appeal in the first set of the proceedings . Therefore , he challenged that member of the ORG for bias .

On DATE ORG refused to deal with the case for lack of prospects of success .

On DATE the applicant requested that the case be transferred to ORG and on CARDINAL DATE he supplemented his complaint . On DATE the ORG submitted its observations in reply .

On DATE ORG dismissed the applicant ’s complaint . It found that there was no indication of bias of the member of the ORG . As regards ORG ’s failure to hold a hearing in the second set of the proceedings it found that the applicant had failed to file a new request to hold a hearing . This decision was served on DATE .

Section CARDINALe of the Code of Administrative Offences ( Verwaltungs - strafgesetz ) , as far as relevant , reads as follows :

“ ... CARDINAL . In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed , a hearing must only be scheduled if this is expressly requested in the appeal .

A hearing need not be held if the parties expressly waive their right to a hearing . The parties may express such a waiver up to the beginning of the hearing . ... ”

Section CARDINAL of LAW ( Verwaltungs - strafgesetz ) , as far as relevant , reads as follows :

“ If the extenuating circumstances considerably outweigh the aggravating circumstances , or if the accused is under age , the minimum fine may be reduced to DATE of the amount . ”


The applicant , Mr PERSON , was a NORP national who was born in DATE and lived in GPE . He died on DATE . His application is pursued by his daughter –Ms PERSON .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant lodged an action with ORG for division of matrimonial property .

The court held CARDINAL hearings .

Numerous hearings were adjourned during the proceedings . The reasons for the adjournments were : necessity of taking evidence from the case file of the applicant ’s divorce proceedings , the request of the applicant ’s former wife ( “ the other party ” ) to adjourn a hearing , the other party ’s absence as she had not been summoned properly , the applicant ’s absence , the other party ’s request to appoint her a legal - aid lawyer , the other party ’s request to appoint her a new legal - aid lawyer , ordering an expert opinion , the other party ’s lawyer ’s illness , the judge ’s illness , the fact that the other party ’s attorney had not been properly summoned and the other party ’s illness .

On DATE the parties concluded a friendly settlement .

On DATE the court discontinued the proceedings as a friendly settlement had been concluded .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings . A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with section CARDINAL ) of LAW .

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

LAW deals with transmission of rights and obligations of a deceased person :

“ Pecuniary rights and obligations of the deceased are transmitted at the time of his / her death to another person or persons in conformity with the regulations of this chapter . ”


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

In their tax returns for the tax assessment DATE , a substantial number of persons , including the applicant , made deductions for capital losses , after having bought and sold interest options ( ränteoptioner ) , and for paid interest on a promissory note loan ( reverslån ) . All transactions were made with the same opposite party , ORG ( ORG , hereinafter referred to as the “ NF ” ) which had also granted the loans .

Because of the substantial number of persons who had made deductions for capital losses following transactions with the ORG , ORG ( skattemyndigheten ) of GPE decided to make an audit of the ORG . However , due to the very complex and intricate nature of the transactions and the lack of co - operation by the ORG , the investigation proved difficult to carry out , for which reason ORG hired an independent expert body to carry out a part of the audit .

According to the findings of the audit , as set forth in ORG audit report ( granskningspromemorian ) on DATE , the transactions made between the individuals and the ORG had been based on an agreement entered into by the parties beforehand who had followed a procedure set forth therein . The transactions had included buying and selling specific interest options which the ORG claimed were adjusted to conditions on the market . However , ORG found through the audit that the options had not been noted on the market nor adjusted to the market conditions , since the market price of the options had not been decisive for the determination of the price at the time of selling . Instead , the price of the options had been fixed in advance already in the agreement . Moreover , the size of the loss during DATE and the subsequent recovery DATE had also been decided beforehand . Thus , in fact , the parties had not dealt with real options , as defined in the law .

As concerned the promissory note loan , the same type of agreement had been followed . DATE , the individuals had paid a very high interest on the loan and then , at DATE , they had paid the loan in advance , following which a part of the interest was repaid . The audit report revealed that both the cost of the interest paid DATE and the repayment of part of the interest made DATE had been predetermined in the agreement .

The audit report concluded that the individuals had been offered by the ORG an agreement in which everything was predetermined and where the purpose had been to obtain tax benefits . The idea had been that , tax wise , the high interest on the loans paid DATE , and the repayment DATE , should finance the capital losses of the transactions with the options .

On DATE , DATE that the above - mentioned audit report was finalised , ORG transmitted it to the applicant and informed him of its intention to revise the assessment of the arrears ( eftertaxering ) for his DATE tax assessment and to impose tax surcharges on him . On DATE it sent a preliminary consideration ( övervägande ) to the applicant , informing him that it was considering making a revised assessment for arrears and disallowing the deduction for paid interest on the promissory note loan in the amount of SEK CARDINAL,CARDINAL . Further , it was considering imposing tax surcharges ( skattetillägg ) amounting to PERCENT of the increased tax liability on the sum ( apparently amounting to around SEK CARDINAL,CARDINAL ) . The applicant was requested to submit any comments he might have within DATE .

On DATE ORG decided to follow its preliminary consideration . With regard to the imposition of tax surcharges , it found that the applicant had submitted incorrect information by failing to provide it with information about the true conditions of the interest rates of the loan . Further , it considered that no grounds for remission had been shown and that , due to the character of the matter and the way in which it had been carried out , it could not be assumed that any such grounds existed .

On DATE the applicant appealed against the decision , disputing ORG findings . He maintained that there were no grounds for revising the assessment of the arrears or for imposing tax surcharges .

On DATE ORG made the obligatory re - assessment of its decision of DATE but decided not to change it . Following this , it forwarded the appeal to ORG ( länsrätten ) in GPE which received it on DATE .

On DATE , when the above - mentioned audit report was transmitted to the applicant , ORG also informed him of its intention to alter his tax assessment for DATE and to impose tax surcharges on him . On DATE ORG sent a preliminary consideration to him and , on DATE , it decided , on the basis of the findings of the audit , to decrease his income from capital gain by SEK CARDINAL for capital losses but , at the same time , to increase his income from capital gain by SEK CARDINAL for non - deductible interest . It further imposed tax surcharges amounting to PERCENT of the increased tax liability on the latter sum ( apparently amounting to QUANTITY ) since it considered that the applicant had submitted incorrect information and that no grounds for remission existed .

On DATE the applicant appealed against the decision and requested that he be taxed in accordance with his tax return and that the tax surcharges be removed . He further stated that he would develop his grounds of appeal in a later submission .

However , ORG did not receive any further communication from the applicant . On DATE it made its obligatory re - assessment of its original decision and decided not to change it . It noted that , even though nothing had been heard from the applicant , it was necessary to take a decision in order not to prolong the process further . The appeal was then forwarded to ORG , which received it on DATE .

The parties made further submissions before ORG and , in a partial judgment of DATE , the court rejected the applicant 's appeal concerning the question of deduction for capital losses on the options for the tax assessment DATE .

On DATE an oral hearing was held in the case and , on CARDINAL DATE , ORG rejected the applicant 's appeal . It found that the applicant had failed to provide ORG with information about the conditions for the promissory note loan in his tax assessment for DATE , for which reason ORG had been justified in making a revised assessment for DATE arrears .

With regard to the tax surcharges , the court first considered that the imposition of tax surcharges did not violate the Convention . It then found that the applicant had submitted incorrect information and that there was reason to impose tax surcharges since it was clear that he had not furnished ORG with the conditions for the promissory note loan and the interest rates . ORG had not been able to examine whether the declared deductions for interest were correct . It further found that no reasons for remission had been shown .

On DATE the applicant appealed to ORG ( kammarrätten ) in GPE . He maintained his claims , invoking and expanding the grounds he had presented before the lower court . Inter alia , he claimed that the imposition of tax surcharges violated the presumption of innocence contained in LAW since ORG had failed to prove that he had given incorrect information intentionally or by neglect .

On DATE , ORG held an oral hearing in the case where several witnesses were heard at the applicant 's request .

In a judgment of DATE , ORG rejected the applicant 's appeal on the same grounds as ORG , and stated that , although the imposition of tax surcharges fell within the ambit of LAW , it did not violate the presumption of innocence contained therein .

On DATE the applicant appealed to ORG ( Regeringsrätten ) and requested a respite until DATE to supplement his submissions . It is not clear , however , whether he did so .

On DATE ORG refused leave to appeal .

Taxpayers submit yearly tax returns to the local tax authorities . To secure that timely , sufficient and correct information is provided , the tax authorities may , under certain circumstances , impose special charges on the taxpayer in the form of tax surcharges .

The rules on tax surcharges relevant to the present case were laid down in LAW ( Taxeringslagen , CARDINAL:CARDINAL ) . According to LAW , section CARDINAL of the Act , a tax surcharge is imposed on the taxpayer if he or she , in a tax return or in any other written statement , has submitted information of relevance to the tax assessment which is found to be incorrect . It is not only express statements that may lead to the imposition of a surcharge ; concealment , in whole or in part , of relevant facts may also be regarded as incorrect information . However , incorrect claims are not penalised ; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof , no surcharge is imposed . The burden of proving that the information is incorrect lies with the tax authority . The surcharge amounts to PERCENT of the income tax which the tax authority would have failed to levy if it had accepted the incorrect information .

In certain circumstances , a tax surcharge will be remitted . Thus , Chapter CARDINAL , section CARDINAL , of the LAW states that taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age , illness , lack of experience or comparable circumstances . The surcharge should also be remitted where the failure appears excusable by reason of the nature of the information in question or other special circumstances , or where it would be manifestly unreasonable to impose a surcharge .

LAW , section CARDINAL , of the LAW stipulates that , if the facts of the case so require , the tax authorities must have regard to the provisions on remission , even in the absence of a specific claim to that effect by the taxpayer . In principle , however , it is up to the taxpayer to show due cause for the remission of a surcharge .


The applicant , Mr PERSON GPE , is a NORP national , who was born on DATE in the city of FAC , GPE , and currently resides in GPE , the LOC . The respondent Government are represented by PERSON , ORG GPE before the ORG .

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

From DATE until DATE the applicant worked as the head of the technical department of the Perekopkhimstroy company ( hereafter “ the company ” ) . He was also allegedly required to perform the functions of a building engineer .

In DATE the applicant instituted proceedings in ORG against the company , seeking the recovery of the building engineer ’s salary that was allegedly due to him . On DATE ORG ordered the commencement of proceedings . A hearing was held on DATE . On DATE ORG ordered the seizure of documents relating to the salary paid to the applicant by the company . By a judgment on DATE , ORG partly allowed the applicant ’s claims , and ordered the company to pay the applicant CARDINAL karbovantsi ( hereafter “ krb ” ; CARDINAL ukrayinski hryvni - the present currency - hereafter “ ORG ” ) .

On DATE ORG of the GPE quashed this decision and remitted the case for further consideration .

On DATE ORG ordered an economic - accounting expertise ( бухгалтерсько-економічна експертиза ) in the case . By a judgment of DATE , ORG partly allowed the applicant ’s claims and ordered the company to pay the applicant the sum of CARDINAL krb . On DATE the applicant was paid ORG CARDINAL in execution of the decision .

On DATE the President of ORG lodged a protest against the decision of DATE , seeking its annulment . On DATE ORG of the LOC allowed the protest of the President of ORG and remitted the case for further consideration to ORG .

In DATE the applicant lodged complaints with the President of ORG against the decision of DATE , seeking to initiate supervisory review proceedings ( перегляд рішення в порядку нагляду ) . On DATE the Deputy President of ORG , by letter , rejected his claims as unsubstantiated .

On DATE ORG rejected the applicant ’s claims for the recovery of salary and compensation .

On DATE the applicant lodged a cassation appeal with ORG , seeking to quash the judgment of ORG of DATE .

On DATE the applicant informed the President of ORG that he had no intention of lodging the cassation appeal through the first instance court .

On DATE ORG suspended the referral of the cassation appeal to ORG on the ground that it had not been lodged in compliance with LAW . In particular , the applicant had not supplied enough copies of the cassation appeal and had failed to pay the ORG tax . The applicant was allowed DATE ( until DATE ) to rectify the mistakes . He was also informed that , unless he rectified them , his cassation appeal would be returned to him without consideration .

On DATE ORG refused the applicant leave to lodge a cassation appeal against its judgment of DATE due to the applicant ’s failure to comply with its ruling of DATE .

The applicant complained about the ORG decision of DATE to the President of ORG , seeking to initiate supervisory proceedings . The complaint was rejected by the President of ORG DATE as being unsubstantiated .

In DATE the applicant lodged his complaint with the President of ORG of GPE against the decision of ORG of DATE , seeking its annulment . He also complained that he was not provided with a copy of the protest itself or a copy of the ensuing decision . On CARDINAL DATE ORG of GPE refused to initiate supervisory review proceedings ( перегляд рішення в порядку нагляду ) since the impugned decision was not appended to the complaints . It also recommended that the applicant address ORG of ORG of GPE in the LOC with a view to receiving a copy of the decision of DATE by ORG .

On DATE ORG of ORG of GPE in the LOC rejected the applicant ’s request for a copy of the decision , as he should have applied directly to the court which had given it .

In DATE the applicant lodged a complaint with the President of ORG of the LOC requesting the initiation of supervisory review proceedings against the decision of DATE of ORG . On DATE ORG informed the applicant of the need to rectify mistakes in his complaint ( the need to pay the ORG tax for the introduction of the complaint , and the need to provide copies of the relevant judicial decisions ) . The applicant complained to the President of ORG response . On DATE the President of ORG rejected the applicant ’s complaints as being unsubstantiated and refused to initiate supervisory review proceedings in the case ( перегляд рішення в порядку нагляду ) .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in ORG .

He is a former military serviceman . From CARDINAL DATE to DATE he served in the NORP peacekeeping contingent in GPE , the former GPE .

Upon his return , the applicant brought proceedings against the head of his military unit to secure payment of his DATE allowance for his service abroad .

On DATE ORG of FAC granted the applicant ’s claim and ordered the military unit to pay the applicant MONEY ( RUB ) in remuneration and RUB MONEY in expenses for legal advice .

The military unit did not lodge an ordinary appeal , and on CARDINAL DATE the judgment became binding and enforceable .

NORP However , following the respondent ’s request , on DATE the Presidium of ORG of ORG quashed the judgment of DATE by way of supervisory review and dismissed the applicant ’s claims in full . The reason given for the quashing of the judgment was the “ wrongful application of substantive law by the first - instance court ” .

The Code of Civil Procedure of GPE provides as follows :

“ CARDINAL . The grounds on which appeal courts may quash or alter judicial decisions are :

( CARDINAL ) a violation or incorrect application of substantive or procedural law . ”

“ Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . ”

“ CARDINAL . Having examined the case by way of supervisory review , the court may ...

( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for fresh examination ...

( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for fresh examination , if the substantive law has been erroneously applied or interpreted . ”


CASE OF SADAK AND OTHERS v. TURKEY (No. 1)

Violation of Art. 6-1 concerning independence and impartiality;Violation of Art. 6-3-a;Violation of Art. 6-3-b;Violation of Art. 6-3-d;Not necessary to examine Art. 6-1 concerning the other complaints;Not necessary to examine Art. 10;Not necessary to examine Art. 11;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants are former members of ORG and of ORG ( DEP ) , which was dissolved by ORG on DATE .

NORP The public prosecutor at ORG accused them of having infringed LAW and made repeated applications – on DATE , DATE , CARDINAL DATE and DATE – for their parliamentary immunity to be lifted .

On DATE ORG , having deliberated on the basis of the application of DATE , decided to lift the applicants’ parliamentary immunity under LAW .

On DATE Mr Dicle and Mr Doğan were taken into police custody on the orders of the public prosecutor at ORG . On DATE PERSON suffered the same fate .

DATE the public prosecutor at ORG ordered the detention of those CARDINAL applicants in police custody to be extended until DATE .

While in custody , the applicants made no statements to the police .

On DATE they were brought before a judge of ORG and placed in detention pending trial .

On DATE ORG dissolved the DEP and ordered the party ’s MPs to vacate their parliamentary seats .

Mr PERSON was taken into police custody on DATE and placed in detention pending trial on DATE .

In the meantime , on DATE the public prosecutor at ORG had filed a bill of indictment in which he accused the applicants of treason against the integrity of the State – a capital offence under LAW . The accusation was based firstly on the activities that the applicants were alleged to have engaged in on behalf of ORG ) ( harbouring militants and providing CARDINAL of them with medical care , negotiating with local leaders or proffering threats against them to make them help the ORG establish itself in their regions ) and secondly on the content of oral and written statements by the applicants expressing support for ORG activities . On TIME of CARDINAL DATE the offences of which the applicants were accused were announced in the news bulletin of the publicly owned ORG television channel .

On DATE , the date of the final hearing before ORG , the applicants learned that the prosecution was proposing to alter the charge to belonging to an armed gang within the meaning of LAW . ORG invited the applicants to submit their observations on this new characterisation of the offences . The applicants’ lawyers were not present at the hearing because they had decided to protest against ORG refusal to adopt a procedural measure they had requested of it .

In a judgment of DATE ORG sentenced the CARDINAL applicants to CARDINAL years’ imprisonment for belonging to an armed gang within the meaning of LAW , paragraph CARDINAL , of LAW . It rejected the charge LAW , which provided for the death penalty in the event of treason against the integrity of the ORG .

It found it established that the applicants had engaged in intensive “ separatist ” activity under instructions from leaders of the ORG , a separatist armed gang seeking to found a NORP State in south - eastern and eastern GPE . In that context it noted the following points : in the run - up to the DATE parliamentary election the applicants had given speeches under the ORG banner at meetings where slogans had been shouted such as “ Long Live the NORP ” and “ Strike guerrillas strike , found GPE ” ; the applicants had provoked unrest among the population and created an atmosphere that had undermined the authority of the ORG ; they had worn ORG colours when they were sworn in as members of ORG in DATE ; at the congresses of their political parties , the ORG and the DEP , the ORG flag had been hoisted instead of the NORP flag and GPE had been described as an occupier and enemy ; conversations recorded CARDINAL of the CARDINAL applicants and heads of clans ( aşiret reisi ) in south - eastern and eastern ORG had revealed that the former had used threats to try to persuade the latter to join or support the ORG ; CARDINAL of the applicants had harboured a ORG militant in his official residence , had helped him to obtain medical treatment and had fraudulently induced the ORG to pay his hospital bills ; another had harboured in his home ORG militants preparing to join those who were already involved in field operations in the region ; and all the applicants had made statements on behalf of the ORG in foreign countries and spread lies about ORG intended to uphold the ORG ’s views . ORG also rejected an application by a co - defendant for a public hearing of a witness for the prosecution owing to the danger that the witness might suffer reprisals at the hands of the ORG .

When classifying the facts found in the instant case as offences under LAW rather than LAW , ORG referred to the case - law according to which LAW defined a crime in terms of the ends pursued and LAW in terms of the means deployed . Treason against the integrity of the ORG within the meaning of LAW was a crime which could only be made out if it was established that acts had been committed which were likely to pose a real threat to the ORG ’s survival . Acts of violence and terrorism could fall within the scope of LAW if they were serious enough to pose such a threat . LAW , paragraph CARDINAL , on the other hand , made it an offence merely to belong to an armed organisation which was already considered to be acting for a purpose contrary to LAW . The material element of the offence lay in the fact that the persons in question belonged to an armed organisation of the aforementioned type complete with a system of disciplinary rules and a hierarchical structure . In that context , it was not necessary for the defendants themselves to have committed acts posing a threat to the ORG ’s survival . However , LAW did require a specific mental element , namely that the offenders were aware that they belonged to the illegal organisation .

The applicants and the public prosecutor at ORG appealed on points of law against the judgment of DATE .

NORP The public prosecutor argued that the offences were indeed punishable under LAW .

The applicants submitted for their part that the criminal proceedings had been brought for a political purpose , namely to suppress the opinions of members of ORG defending the NORP cause . They contended that ORG by which they had been convicted was a special political court which could not be considered an independent and impartial tribunal .

They also asserted that they had been denied a fair trial because , among other things , their equality of arms with the prosecution had not been respected . They complained in particular that they had been denied the assistance of a lawyer during DATE in police custody ; that their representatives had not had access to the documents on the case file during the preliminary investigation ; that pressure had been brought to bear on their representatives by the government as their defence had been the subject of reports by the NORP secret services and their access to the courtroom had sometimes been impeded ; that the applications filed by their representatives had never been allowed by ORG ; that they had not been permitted to examine before that court the witnesses interviewed by the prosecution during the preliminary investigation or the experts appointed by the prosecution ; that their applications for the examination of the sound and video recordings made by the prosecution had been rejected by ORG for no valid reason ; that the evidence on which their conviction had been based had not been read out at the hearing ; and that their applications for further witnesses to be heard and second opinions to be sought had been dismissed by ORG . The applicants also argued that the difficulties encountered by certain lawyers and foreign delegations when attempting to enter the courtroom had infringed the requirement of a public hearing . Lastly , they criticised ORG for laying the activities of all pro - NORP organisations , whether legal or illegal , at their door and taking account of findings of a political nature having no probative value with regard to the accusations levelled against them .

In a judgment of CARDINAL DATE ORG upheld the decision at first instance as to the applicants’ guilt and the sentences imposed on them .

On the other hand it held that some of the reasons given by ORG in its judgment of DATE could not be permitted to stand . When the telephone conversations between the applicants and the head of the ORG had been recorded the statutory provisions intended to safeguard the freedom of communication had been infringed ; the fact that the applicants’ diaries contained the names and addresses of ORG leaders did not prove the accusations ; and the fact that some of the defendants ( including CARDINAL of the CARDINAL applicants ) had taken part in a press conference held by the head of the ORG could not in itself be regarded as an offence .

In assessing each of the applicants’ guilt , ORG took account of various public communiqués that they had issued . In those documents they had described the parliamentary oath as racist on the ground that it omitted any reference to the NORP identity , and asserted that the NORP government was waging war on the NORP population , that NORP uprisings had been suppressed using methods of genocide and that the national rights of the NORP people were denied by ORG .

Regarding PERSON , ORG noted the following : she had undergone political training in a ORG camp in GPE ) ; she had had CARDINAL conversations with the head of a clan in south - eastern GPE , advising him not to prevent the ORG from attacking ORG targets and encouraging him to telephone the head of the ORG , addressing him as “ Mr Secretary General ” ; she had twice visited the head of another clan to encourage him to join the ORG to help found GPE ; she had handed over to the ORG one of its opponents who had been abducted by ORG militants ; she had described slogans such as “ Long Live Apo [ Apo is a diminutive used to refer to PERSON , the head of the ORG ] ” or “ Long Live NORP ” , shouted at a demonstration in Cizre , as “ slogans of the NORP people ” ; she had declared on NORP television that she felt like a foreigner in GPE and that the NORP parliament , of which she was a member , was constantly taking decisions whose aim was to wipe out the NORP people ; and she had taken part in a demonstration and a press conference held by the ORG in GPE and had addressed the participants from a rostrum draped with the ORG flag .

Regarding Orhan Doğan , ORG noted the following : he had knowingly harboured a ORG militant in his home owing to his organic links with the ORG ; he had helped the militant in question to obtain medical treatment and had fraudulently had the costs reimbursed by ORG ; he had harboured CARDINAL other ORG militants who were about to return to the organisation ’s camps ; he had made statements to foreign embassies to the effect that the villagers leaving GPE in DATE were actually fleeing the ORG forces ; and he had stated at demonstrations that ORG was repressing the NORP people in various ways , while describing the ORG as an army .

Regarding Hatip Dicle , ORG noted the following : he had put pressure on the head of a clan in south - eastern GPE to join the ORG , whose aims he had said were to found GPE and destroy the enemy ; he had asked the persons attending a public meeting in GPE to observe a TIME ’s silence in honour of the ORG ’s dead , asserting that the NORP army had come to the region to repress the NORP people ; he had stated in an interview given to a NORP DATE newspaper that the ORG ideal would be to found a NORP State and that they had been fighting for their freedom since LAW ( DATE ) ; he had described the ORG as a movement with popular roots ; he had stated that all those who were against the NORP should be expelled from their territory even if that would cost them their lives ; he had said that the NORP were engaged in an armed resistance to ensure their survival and that the alleged fight against terrorism amounted to an attempt to crush the ORG claims to nationhood ; he had attempted to justify the terrorist attack on the cadets of the military college for infantry conscripts , in which CARDINAL people were killed and CARDINAL injured , by saying that everyone in uniform was a potential target by virtue of the international conventions on the laws of war ; and he had stated at a meeting of his party that the ORG could not solve the NORP problem by banning the ORG .

Lastly , regarding PERSON , ORG found the following facts established : he had put pressure on the head of a clan in south - eastern GPE to accept the authority of the ORG ; he had asked the inhabitants of the village of LOC ( in south - east GPE ) to relinquish their positions as village guards , explaining that they were in GPE and that the NORP war of national liberation was soon to be launched against the fascist NORP State ; he had described police officers escorting persons in police custody on suspicion of having been active within the ORG as torturers , while stating that he would prevent the repression of the NORP by the NORP and that the NORP would demand some form of retribution ; at a meeting held by the ORG in ORG ( GPE ) , he had described the ORG as a guerrilla army fighting for the independence of GPE and the NORP people ; and in a communiqué sent to foreign embassies in GPE he had declared that the villagers leaving GPE in DATE had in fact been fleeing the ORG forces .

Article CARDINAL of LAW provides :

“ It shall be an offence punishable by death to commit any act aimed at subjecting the ORG or part of the ORG to domination by a foreign ORG , diminishing the ORG ’s independence , breaking its unity or removing part of the national territory from the ORG ’s control . ”

Article CARDINAL of the above Code provides :

“ Any person who , with the intention of committing the offences defined in LAW ... , forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”