Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

In DATE the applicant was convicted of drug trafficking and sentenced to CARDINAL years’ imprisonment . On DATE the remainder of the sentence was suspended and the applicant released on probation .

As of CARDINAL DATE the police investigated the applicant , suspecting a violation of LAW ( Betäubungsmittelgesetz ) because of chemical purchases by the applicant on a large scale .

On DATE the Gieβen ORG issued a search warrant relating to the applicant ’s GPE house , where he was then living , and ordered telephone surveillance measures . The court based its decisions on the suspicion of a violation of LAW on the ground that the chemicals purchased by the applicant could be used to manufacture narcotics covered by LAW .

In file notes dated DATE , DATE and CARDINAL DATE the investigators observed that it seemed that the applicant wanted to use the chemicals to manufacture new designer drugs not covered by LAW . It was further observed that the new designer drugs might , however , fall within the scope of LAW ( Arzneimittelgesetz ) and its penal provisions .

On DATE the applicant was arrested and subsequently remanded into custody .

On DATE and DATE the house of the applicant ’s parents was searched with the applicant ’s consent on the basis of the search warrant issued on DATE . Chemicals found in the course of the search were seized with the applicant ’s consent .

The applicant was questioned on DATE and accused of a violation of LAW . He remained silent and instead referred to a protective letter ( PERSON ) he was carrying with him at the time of his arrest , in which he claimed that the use of the chemicals was purely for scientific purposes . In this letter he stated inter alia :

“ CARDINAL ) Medicinal Products of the Medicines Act are o n l y those substances and preparations which are authorised as medicinal products or registered or are exempted from the need for authorisation or registration by ordinance ( section CARDINAL ( CARDINAL ) Medicines Act ) ... ”

On DATE , after having heard the applicant , the ORG issued an arrest warrant . The applicant remained in pre - trial custody until DATE , when the enforcement of the arrest warrant was suspended . On DATE the arrest warrant was rescinded .

The pre - trial investigations were closed on DATE .

On DATE the applicant was charged with CARDINAL violations of LAW and CARDINAL violations of LAW .

On DATE the indictment was served on the applicant ’s defence lawyer .

On DATE the defence lawyer requested the ORG not to open the main proceedings .

On DATE the ORG declined to open the main proceedings .

On DATE the prosecution submitted grounds for its appeal against the decision of DATE to ORG .

On DATE and DATE respectively the applicant himself and his defence lawyer filed submissions .

On DATE ORG directed the Gieβen Regional Court to open the main proceedings with regard to the alleged violations of LAW .

On DATE the prosecution submitted a revised indictment , charging the applicant with the manufacture of medicinal products without authorisation in CARDINAL cases , in CARDINAL case in conjunction with placing on the market ( Inverkehrbringen ) unsafe medicinal products .

On DATE the ORG fixed the date of the trial for DATE , after the defence lawyer had indicated that he was tied up with business on ORG regular trial days from DATE , and since another case had already been scheduled for DATE .

The trial on DATE ended with the acquittal of the applicant . The ORG argued that the manufactured substance , Methyl - Methaqualon , did not constitute a medicinal product as defined in section CARDINAL § CARDINAL no . CARDINAL of LAW . With regard to the other substance , ORG , ORG ( “ MBDB ” ) , the court reasoned that it could not be ruled out that it only constituted an intermediate ( NORP ) which did not fall within the scope of LAW .

The prosecution appealed the judgment and on DATE submitted grounds for its appeal on points of law .

On DATE ORG held a hearing .

On DATE ORG set aside the judgment of ORG . ORG argued that ORG had applied an incorrect definition of “ medicinal product ” ; ORG did in fact constitute a medicinal product as defined in section CARDINAL § CARDINAL no . CARDINAL of LAW . If , as in the case at hand , the purpose of the substance could not be derived from objective criteria , consumer expectation or scientific assessment , the point of reference had to be the purpose pursued by the manufacturer , which in this case was the applicant ’s intention to develop substances with the same or similar effects as narcotic substances without falling within the scope of LAW as described in his protective letter . With regard to the substance MBDB ORG argued that the development of an intermediate product could suffice for the alleged offence under LAW .

In DATE the files were referred back to the Gieβen ORG .

On DATE the trial was listed for DATE and DATE .

After the defence lawyer had indicated that he would not be able to attend the trial on DATE the dates were changed to CARDINAL DATE and DATE .

During the trial on DATE the defence lawyer , referring to the recent case - law of ORG , objected to the use of the evidence found during the search of the applicant ’s GPE house since the search warrant had been DATE at the time of its execution ( see relevant domestic law and practice below ) .

On DATE the trial ended with the sentencing of the applicant to a cumulative prison sentence ( Gesamtfreiheitsstrafe ) of DATE suspended on probation .

The applicant gave notice of his intention to appeal on points of law and submitted his statement of the grounds of appeal on DATE . He raised the issue of the length of the proceedings and challenged the use of the evidence found during the search of his GPE house .

On DATE the prosecution filed a counterstatement ( ORG ) .

On DATE the attorney general ( ORG ) filed a motion to dismiss the appeal with regard to the verdict ( Schuldspruch ) but , because of the length of the proceedings , to set aside the sentence ( Strafausspruch ) and remit the case in this respect .

On DATE the applicant himself submitted another statement .

On DATE ORG dismissed the appeal on points of law with regard to the verdict , set aside the sentence and remitted the case to ORG for sentencing .

On DATE , following a trial hearing , the ORG fixed CARDINAL separate sentences of CARDINAL months’ and CARDINAL months’ imprisonment and imposed a cumulative suspended prison sentence of DATE for the manufacture of medicinal products without authorisation in CARDINAL cases and a fine of ORG CARDINAL,CARDINAL as a condition of probation ( PERSON ) . In its reasoning regarding the sentence ( PERSON ) ORG expressly took into consideration the length of the proceedings .

On DATE the applicant himself and on DATE his defence lawyer appealed on points of law against this judgment , arguing that the proceedings should be discontinued because of the excessive length of the proceedings violating LAW .

On DATE the attorney general filed a motion to dismiss the appeal .

On DATE the applicant filed a reply .

On DATE ORG set aside the sentence and once again remitted the case to ORG . ORG argued that the judgment did not distinguish between the penalty which would have been adequate without considering the length of the proceedings and the sentence actually imposed , which had been reduced in view of the length of the proceedings .

At DATE the files were referred back to ORG . Because the schedule of responsibilities ( Geschäftsverteilungsplan ) of ORG did not provide for a third remittal , another criminal division ( Strafkammer ) was established on DATE .

On DATE the main lay judges ( PERSON ) for the newly established criminal division were drawn by lot .

On DATE a trial date was set for DATE .

On DATE the defence lawyer complained about the composition of the court , arguing that the judges should have been drawn by lot .

On DATE ORG dismissed the complaint .

On DATE ORG imposed a cumulative suspended sentence of DATE for the manufacture of medicinal products without authorisation in CARDINAL cases and a fine of ORG CARDINAL,CARDINAL as a condition of probation . In its reasoning regarding the sentence ORG expressly acknowledged a violation of LAW and in view of this reduced the adequate separate sentences of CARDINAL and CARDINAL months’ imprisonment by CARDINAL to CARDINAL QUANTITY months’ and the adequate cumulative sentence of DATE imprisonment to CARDINAL months’ imprisonment .

On DATE the written judgment was put on file ; on CARDINAL DATE it was served on the defence lawyer .

On DATE the defence lawyer submitted grounds of appeal on points of law . He again raised the issue of the length of the proceedings .

On DATE the prosecution filed a counterstatement .

On DATE the applicant filed an appeal on points of law .

Because of a signature mistake new executed copies of the judgment were issued on DATE and served on the defence lawyer on DATE .

On DATE the applicant submitted further reasons for the appeal on points of law .

On DATE ORG dismissed the appeal without giving reasons .

On DATE the applicant lodged a first constitutional complaint with ORG against the judgment of ORG of DATE , the judgment of the Gieβen Regional Court of DATE and the decision of ORG of DATE . In his constitutional complaint the applicant challenged the alleged lack of legal certainty of the penal provisions of LAW in connection with the definition of “ medicinal product ” , the search of his GPE house on the basis of an DATE search warrant and the subsequent use of the evidence obtained in the course of this search , and the length of the then still pending proceedings .

On DATE the applicant lodged a second constitutional complaint against the judgment of ORG of DATE and the judgment of the Gieβen Regional Court of DATE , again raising the issue of the length of the proceedings .

On DATE the applicant lodged a final constitutional complaint against the judgment of the Gieβen Regional Court of DATE and the decision of ORG of DATE , arguing that the reduction of the sentence was not sufficient compensation for the excessive length of the proceedings .

On DATE ORG refused to admit the applicant ’s CARDINAL constitutional complaints for examination on the ground that they were ill - founded ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . ORG denied a lack of legal certainty with regard to the penal provisions of LAW . ORG expressly acknowledged a violation of LAW ( inviolability of the home ) by the execution of the search warrant DATE after its issue . However , the court argued that the judgment had not been based on this violation because in the case at hand the violation of LAW did not entail the exclusion of the evidence obtained . The exclusion of evidence could only be considered if the procedural defects were severe , intentional or arbitrary . In the case at hand there was no intentional violation since it was DATE after the search that ORG had established a “ date of expiry ” for search warrants . ORG further argued that the overall length of the proceedings , while too long , was no reason for a discontinuation of the proceedings as submitted by the applicant . It rather had to be left to the lower courts to remedy an excessive length of the proceedings by reducing the sentence .

On DATE ORG decision was served on the applicant ’s lawyer .

LAW ) , dealing with the inviolability of the home , prescribes in its paragraph CARDINAL that a search of LOC may - in principle - only be ordered by a judge .

In its decision of CARDINAL DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL ) ORG held that this requirement of a judicial order ( NORP ) implied that a search warrant must be executed within DATE of its issue . After DATE the judicial search warrant loses its vindicatory power and the search then constitutes a violation of LAW .

Section CARDINAL

“ The term ‘ medicinal product’

( CARDINAL ) Medicinal products are substances and preparations made from substances which , by application on or in the human or animal body , are intended ( ... )

to influence either the nature , the state or the functions of the body or mental health conditions . ( ... )

( CARDINAL ) As long as a product is authorised or registered as a medicinal product pursuant to the present Act , or is exempted from the need for authorisation or registration by ordinance , such product shall be considered a medicinal product . A product shall not be considered a medicinal product if its authorisation or registration has been rejected by the competent ORG , on the ground that it is not a medicinal product . ”

Section CARDINAL

“ Prohibition of unsafe medicinal products

( CARDINAL ) The placing on the market of unsafe medicinal products shall be prohibited .

( CARDINAL ) Medicinal products shall be considered unsafe if , according to the current level of scientific knowledge , there is reason to suspect that , when used in accordance with their intended purpose , they have harmful effects which exceed the limits considered tolerable in the light of current medical knowledge . ”

Section CARDINAL

“ Manufacturing authorisation

( CARDINAL ) Any person wishing to manufacture medicinal products within the meaning of section CARDINAL sub - section CARDINAL or sub - section CARDINAL No . CARDINAL ... on a commercial or professional basis for the purpose of dispensing to others , shall require an authorisation by the competent authority . ... Distribution to others , in the meaning of the first sentence , shall exist if the person manufacturing the medicinal product is not the same as the person using it . ... ”

Section CARDINAL

“ GPE provisions

( CARDINAL ) Any person who

contrary to LAW , markets medicinal products suspected on reasonable grounds of being capable of causing harmful effects , ... shall be liable to imprisonment for a term not exceeding DATE or to a fine . ”

Section CARDINAL

“ Penal Provisions

Any person who ...

in breach of LAW sub - section CARDINAL , manufactures medicinal products within the meaning of LAW sub - section CARDINAL ... without authorisation , ... ,

shall be liable to imprisonment for a term not exceeding one year or to a fine . ”


Violation of P1-1;Pecuniary and non-pecuniary damage - award (global)

András Baka;Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze;Riza Türmen

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant was arrested while crossing the NORP border . He was suspected of attempting to smuggle untreated mink furs . The furs were forfeited as evidence in the context of the criminal case .

On the basis of a decision taken by the prosecution , on DATE the furs were auctioned DATE being goods prone to deterioration - for CARDINAL NORP litai ( ORG , or about ORG CARDINAL,CARDINAL ) . The money received from the auction was transferred to the ORG budget .

On DATE the applicant was acquitted by ORG in view of the lack of any elements of a crime . The court did not rule on the issue of the forfeited evidence .

The applicant brought an appeal , requesting that this issue be resolved . However , on DATE ORG refused to deal with it , ruling that , since the furs had been sold , the handling of the proceeds from the sale was no longer within the jurisdiction of the criminal courts .

The applicant then brought an application before ORG , requesting compensation for the forfeited furs . On DATE that court ruled that the question should be determined in civil proceedings .

On an unspecified date the applicant brought a civil action , claiming the LTL CARDINAL,CARDINAL ( about ORG CARDINAL,CARDINAL ) , i.e. the proceeds minus the auction expenses .

On an unspecified date , he brought a separate civil action , claiming the sum allegedly paid for the furs at ORG , corresponding to ORG or , at the then exchange rate , LTL CARDINAL ( EUR CARDINAL ) .

On DATE ORG found that the tax authorities were obliged to pay the applicant ORG ( ORG CARDINAL,CARDINAL ) . On DATE that decision was quashed on procedural grounds by ORG . The court held that the applicant should have applied to a GPE civil court . That decision was upheld by ORG on DATE .

On DATE the applicant re - applied , this time submitting his action to ORG and claiming the full proceeds of the auction sale - LTL CARDINAL,CARDINAL ( about EUR CARDINAL,CARDINAL ) .

On DATE the court refused to admit the applicant 's claim because he should have applied to the newly - created administrative courts ( operational since DATE ) . However , on DATE ORG quashed the decision of DATE , returning the case for a fresh examination by ORG by way of the civil procedure .

On DATE ORG decided to adjourn the examination of the applicant 's claim pending the examination of his claim for the auction proceeds .

On DATE ORG accepted the applicant 's suit for the whole proceeds of the auction , awarding him LTL CARDINAL,CARDINAL ( about EUR CARDINAL,CARDINAL ) against ORG .

Upon appeal by the tax authorities , on DATE ORG quashed the lower court decision on the ground that ORG should have been the defendant in the proceedings . The case was remitted to the first instance court .

On DATE ORG upheld the appellate decision , stating that both the Inland Revenue and ORG should have been the defendants in the proceedings . ORG further noted that the first - instance court should consider whether to join the case to the applicant 's other claim for damages in the amount of LTL CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL.CARDINAL ) . It noted that in both cases the parties were the same , as was the nature of the claim , i.e. a request for compensation in respect of the value of the furs .

On DATE the applicant re - submitted his claim of LTL CARDINAL,CARDINAL to ORG . The ORG , ORG , ORG and ORG were cited as the respondents .

On DATE ORG rejected the applicant 's claim as he had not proved that he had owned the furs .

On DATE ORG upheld that decision .

The applicant lodged a cassation appeal , reiterating his claim for LTL CARDINAL,CARDINAL . On DATE ORG quashed the lower decisions , accepting the applicant 's claim . It held that , following the applicant 's acquittal , he had been entitled to compensation for the proceeds of the auction . In this respect ORG noted :

“ A person who has acquired property without a legal ground shall return it . The obligation arises where the ground on which the property was acquired ceases to exist . Such property can be goods forfeited upon suspicion of criminal acts . If the suspected person is acquitted ... the ORG no longer has any legal ground to retain the items seized , or their value , where the items have been sold as perishable . ...

Unjust enrichment occurs to the detriment of the interests of a person whose property has been seized . ...

When returning the property acquired without a legal ground or , as in the present case , the value of the objects sold , being quickly perishable , the debtor has a right to require compensation for the expenses incurred in maintaining the property ( LAW ) . This is the right of an honest debtor . Therefore , it has to be established whether the ORG had grounds to start the investigation and forfeit the goods in order to ensure the effectiveness thereof . The fact that no evidence of a crime has eventually been found is not in itself sufficient to assume the lack of honesty on the part of the ORG . ... Indeed , [ the applicant ] had incorrectly filled in the customs declaration ... and this was a sufficient ground to start the investigation against him and seize the material evidence . Therefore , in accordance with LAW should be entitled to recover the expenses incurred during the sale ; those expenses appear to have been necessary in order to safeguard the value of the goods . ”

NORP The applicant was finally awarded LTL PERSON ( about EUR CARDINAL ) in pecuniary damages , corresponding to the value of the auctioned furs from which was deducted the auction expenses ( LTL CARDINAL,CARDINAL.CARDINAL , or about EUR CARDINAL ) and value - added tax ( LTL CARDINAL , or about EUR CARDINAL ) , which the applicant should anyway have paid on importing the furs into GPE .

It appears that the examination of the applicant 's claim for the purported full value of the furs at LTL CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL.CARDINAL ) , which had been stayed on DATE , was not resumed ( paragraphs CARDINAL , DATE , and CARDINAL above ) . ( The parties have not provided the ORG with up - dated information on this aspect of the case . )

On an unspecified date the applicant claimed interest on LTL CARDINAL,CARDINAL ( the whole sum of the auction proceeds ) , calculated from the moment of his acquittal . On DATE ORG awarded him interest in the amount of ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL ) – the sum corresponding to PERCENT interest calculated on the basis of the sum awarded as damages by ORG on DATE ( LTL CARDINAL ) , from the moment of that award to its actual payment DATE . The court dismissed the applicant 's allegation that the interest should be calculated on the basis of the whole sum of the auction proceeds . It also refused to award interest for the whole period of civil litigation for damages . The court considered that the ORG was liable to pay interest only from the date when the fact of unjust enrichment became known – i.e. when it was so concluded by ORG on DATE . Until then , the ORG was deemed an honest acquirer , even after the acquittal of the applicant . The decision was upheld by ORG on DATE . On CARDINAL DATE ORG upheld the lower courts ' decisions . It stated that in accordance with the rules of criminal procedure , the confiscated goods should be returned to the acquitted person after his acquittal . It further stated that , as an honest acquirer of the auction proceeds , the ORG could not be liable to pay interest until DATE of the criminal proceedings .

The applicant has presented an invoice issued by ORG on DATE , indicating that the furs had been purchased for ORG ( about ORG CARDINAL,CARDINAL ) .

According to LAW ( as then in force ) , an item which has been seized as material evidence pending criminal proceedings , and which is prone to deterioration , shall be sold in accordance with the applicable civil procedure .

Article CARDINAL of the old Civil Code ( valid until DATE ) dealt with situations of unjust enrichment , providing for an obligation to return property acquired without a legal ground or to reimburse its value . Article CARDINAL further stipulated :

“ A person who has acquired property without any legal ground shall return or reimburse all the receipts that he [ or she ] obtained or ought to have obtained in using that property from the moment when he [ or she ] knew or ought to have known about the lack of grounds for ... enrichment .

This person has a right to require compensation for all the necessary expenses incurred during the same period in maintaining the property acquired without legal ground . ”

Article CARDINAL § CARDINAL of the new Civil Code ( which entered into force on DATE ) allows a civil claim for pecuniary and non - pecuniary damage , in view of the unlawful actions of the investigating authorities or courts , in the context of a criminal case . The provision envisages compensation for an unlawful conviction , an unlawful arrest or detention , the application of unlawful procedural measures of enforcement or the imposition of an unlawful administrative penalty .


Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pavel Gontšarov;Peer Lorenzen

The application was lodged by Mr PERSON . On DATE he submitted evidence showing that he had changed his name to PERSON . He is an NORP national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

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

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

On DATE a criminal indictment was issued by the authorities of GPE against the applicant . He was charged with several offences , including wire fraud ( use of electronic communication for fraudulent purposes ) , bribery , major fraud against GPE and money laundering . The charges concerned a period DATE and DATE and related to the applicant ’s employment in an organisation which received funds from the GPE government for the performance of certain services in GPE . On DATE an arrest warrant was issued by the authorities of GPE .

On DATE the authorities of GPE requested that the NORP authorities place the applicant under provisional arrest with a view to his extradition .

On DATE the applicant was arrested . On DATE ORG , having heard the public prosecutor and the applicant , assisted by a lawyer , remanded him in custody for DATE . In ORG decision the charges brought against the applicant by GPE authorities as well as the legal grounds for his extradition were set out in detail . In respect of the applicant ’s detention , the court considered that there were sufficient grounds to believe that if at liberty , he could evade the proceedings and abscond . Therefore , the applicant was to be remanded in custody . On DATE ORG dismissed the applicant ’s appeal against that order .

On DATE ORG sent a request to ORG from GPE authorities , dated DATE , for the applicant ’s extradition . ORG noted that ORG had requested that the applicant be kept in custody until his extradition . On DATE the extradition papers were forwarded to ORG .

On DATE ORG found that the applicant ’s extradition to GPE was legally admissible in respect of the charges of wire fraud and major fraud against GPE . These offences carried maximum sentences of DATE in prison respectively . The court established that the offences in question were listed in LAW between GPE and GPE , signed in DATE , and were also punishable in GPE under LAW . In respect of the charges of bribery and money laundering extradition was not admissible , as these offences were not listed in LAW . ORG found that the applicant ’s detention was justified and noted that he had been taken into custody in accordance with its decision of DATE . It extended the applicant ’s detention until his extradition or until a decision to refuse to extradite him was made . It also noted that there was nothing to rule out the applicant ’s extradition , that the general conditions for his extradition were fulfilled and that an arrest warrant had been issued in respect of the applicant whereas the court had no reason to doubt its validity .

Although according to LAW ORG seadustik ) no appeal lay against ORG decision , the applicant lodged an appeal with ORG . He complained , inter alia , that ORG decision had contained no reasons for his detention in breach of LAW ( CARDINAL ) of LAW . On DATE ORG refused to examine it . On CARDINAL DATE ORG dismissed an appeal against the appellate court ’s decision . It agreed with ORG that ORG decision concerning the legal admissibility of the applicant ’s extradition was not subject to appeal and rejected the applicant ’s argument that the lack of an opportunity to appeal against the first - instance court ’s decision was unconstitutional .

In the meantime , on DATE , the Government decided to extradite the applicant .

On DATE ORG quashed the Government ’s decision , mainly because of insufficient reasoning and failure to consider all relevant circumstances .

On DATE the Government took a new decision to extradite the applicant in respect of the charges of major fraud against GPE and wire fraud . The extradition was refused in respect of the remaining charges . The Government , in taking their decision , considered the applicant ’s written objections , records of his CARDINAL meetings with officials of ORG , and the applicant ’s and his ORG submissions made before ORG , as well as a medical expert opinion .

In their decision , the Government addressed the legal grounds for the applicant ’s extradition ( including whether the statutory limitation period had expired and whether the possibly harsher sentence in GPE prevented the applicant ’s extradition ) and weighed the public and international interests against the applicant ’s fundamental rights . They considered , inter alia , that it was not possible to try the applicant in GPE , but that in the event of his conviction in GPE he could request to be transferred to GPE to serve his sentence . They were of the opinion that the fact that the applicant had a child and a sick father in GPE did not prevent his extradition . In respect of the applicant ’s health , the Government relied on a medical expert opinion , which stated that he was able to travel to GPE and stand trial , despite the fact that he was suffering from hypertension .

The applicant lodged a complaint against the ORG ’s decision with ORG . He also requested suspension of the proceedings pending the outcome of the proceedings concerning the legal admissibility of his extradition ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG dismissed the applicant ’s complaint against the Government ’s extradition decision . In respect of the suspension request it noted that there were no other pending proceedings since ORG decision on legal admissibility of extradition was not subject to appeal .

The applicant appealed , and reiterated to ORG the request he had previously made to ORG , for the proceedings to be suspended . On DATE ORG suspended the proceedings as requested by the applicant . After the resumption of the proceedings , on DATE , ORG upheld ORG judgment of DATE . On CARDINAL DATE ORG declined to hear the applicant ’s appeal .

In the meantime , on CARDINAL DATE , the applicant requested that ORG “ review the reasons for [ his ] arrest ( vahistuse põhjendatuse kontroll ) ( and release [ him ] ) ” . He noted that he had been in custody for DATE without having been extradited or his extradition having been refused . He argued that the rules of LAW governing pre - trial detention should be applied . According to these provisions , the maximum duration of pre - trial detention was DATE and this could only exceptionally be extended beyond that limit . No such extension had been ordered in his case . He also disputed the existence of a reasonable suspicion that he had committed an offence and argued that there were no grounds for his detention such as a risk that he would abscond or reoffend .

On DATE a ORG judge replied by letter as follows :

“ LAW of LAW , which governs extradition proceedings , does not provide for review of reasons for remand in custody . By a decision of a preliminary investigation judge of ORG , dated DATE , [ the applicant ’s ] extradition to GPE was declared legally admissible in part . At the same time [ the applicant ’s ] remand in custody was extended until his extradition to GPE or until a decision to refuse extradition ; the said decision has become final . I am therefore returning to you the request sent to ORG . ”

The applicant appealed , relying upon , inter alia , LAW requiring periodic review of the lawfulness of detention in cases where its grounds might change over time .

The appeal was dismissed by a decision of ORG on DATE . ORG agreed with the applicant that ORG letter had to be considered a decision , as it concerned the resolution of a procedural matter , and that a request sent to the court should not have been returned by letter . As to the substance of the complaint , ORG endorsed ORG decision to refuse to examine the request because of a lack of procedural grounds for it to do so in LAW of LAW and , in particular , in LAW , which governs provisional arrest in connection with extradition . The court noted that according to that provision , detention following provisional arrest in connection with extradition proceedings must not be longer than DATE .

On DATE ORG refused to examine the applicant ’s appeal as , under LAW , ORG decision could not be appealed against .

In the meantime , on DATE , the applicant asked ORG “ to take a decision on the question of [ his ] release from detention ” . He relied on LAW , which set DATE as the maximum length of custody following provisional arrest related to extradition proceedings . The applicant asked the court to issue a ruling explicitly providing in its operative part that he would be released from custody on DATE .

On DATE ORG refused to examine the request . It noted that the applicant ’s custody had a legal basis in LAW and was in compliance with LAW ( ORG põhiseadus ) and LAW . Furthermore , it noted that LAW prohibited the keeping of a person in custody for DATE following provisional arrest . In the applicant ’s case the DATE period had not yet elapsed .

On DATE ORG dismissed an appeal brought by the applicant against the above - mentioned decision . It considered that in its decision of CARDINAL DATE ORG could not have specified the final date of the applicant ’s custody , as it would not have been possible to foresee the exact date of his extradition . ORG noted that the applicant was to be released if he had not been extradited by DATE , despite the lack of any explicit order to that effect in the operative provisions of the decision of CARDINAL DATE .

In the meantime , on DATE , the applicant requested that the Government quash its decision of DATE to extradite him . The applicant argued that owing to the DATE limitation period applicable under NORP law his prosecution had become time - barred on DATE : his extradition was therefore no longer permissible . In a complaint of CARDINAL DATE lodged with ORG , the applicant asked the court to oblige the Government to decide that the decision to extradite him should be quashed . He also applied for a stay of the extradition as an interim measure .

On DATE ORG stayed the applicant ’s extradition until DATE . On DATE , on an appeal by the Government , ORG quashed ORG decision . It considered that the applicant ’s indictment on CARDINAL DATE and an arrest warrant issued on DATE by the authorities of GPE had interrupted the limitation period .

In the meantime , by a decision of CARDINAL DATE , the ORG refused the applicant ’s request of CARDINAL DATE for the decision to extradite him to be quashed . On DATE the applicant amended his previous complaint to ORG ( see paragraph CARDINAL above ) , additionally challenged the Government ’s latest decision , and again applied for an interim measure .

On DATE the applicant was handed over to the authorities of GPE and removed from GPE .

On DATE the applicant pleaded guilty to major fraud against GPE in a plea bargain made in GPE for LOC of GPE . On DATE ORG sentenced him to CARDINAL months’ imprisonment

According to the Government , in his sentence in GPE , the different periods the applicant had spent under arrest were taken into account , including the time spent under provisional arrest in GPE .

On DATE the applicant was released : he returned to GPE on DATE .

Part CARDINAL of LAW of LAW ( ORG seadustik ) sets out the procedure for extradition . A request for extradition is sent through ORG and ORG to ORG , which verifies the legal admissibility of the extradition . Thereafter , in the case of an NORP national , it is for the Government to decide on his or her extradition . That decision can be challenged before the administrative courts .

Article CARDINAL of LAW contains rules on the provisional arrest and subsequent detention of a person to be extradited . LAW CARDINAL provides that provisional arrest must not be applied if legal impediments to the extradition have become evident . Paragraph CARDINAL of Article CARDINAL , as in force at the material time , provided that a person could not be kept in custody for DATE following provisional arrest .

Article CARDINAL § CARDINAL provides that if extradition is refused , the person concerned is released from custody .

Article CARDINAL set out rules for the content of a court ’s decision concerning the legal admissibility of extradition . Paragraph CARDINAL ( CARDINAL ) stipulates that the decision must contain a ruling concerning detention and its reasons .

Article CARDINAL , as in force at the material time , stipulated that no appeal lay against the decision concerning the legal admissibility of extradition ( Article CARDINAL ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by PERSON , ORG at ORG .

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

In DATE the police arrested PERSON and PERSON on suspicion of having robbed PERSON . They testified that the applicant had been an accomplice to that robbery .

On DATE the applicant was arrested . According to the applicant , the arresting officers did not explain what the reasons for his arrest were and did not inform him about the statutory rights of an accused . During the first few interviews the applicant refused to answer investigator ’s questions relying on his right not to incriminate himself .

On DATE the ORG prosecutor ’s office authorised the applicant ’s detention on remand . The detention order indicated that he was accused of having been an accomplice to a robbery .

The case was referred for trial to ORG . The trial court , composed of PERSON , the presiding judge , PERSON and PERSON , lay assessors , examined documentary evidence , statements by several witnesses and by the applicant ’s co - defendants . On DATE the ORG found the applicant guilty as charged and sentenced him to CARDINAL years’ imprisonment .

The local television company recorded the pronouncement of the judgment of DATE and made a programme about the criminal proceedings against the applicant . On DATE the programme was shown on television . A reporter allegedly made defamatory comments concerning the applicant .

On DATE the applicant filed an appeal against the judgment of DATE . He challenged , inter alia , the composition of the bench that had given the said judgment . Whilst the Federal Law on ORG of ORG allowed lay assessors to be called once DATE for a maximum period of DATE , or for as long as a specific case lasted , the assessors PERSON and PERSON had been engaged earlier in the course of DATE and DATE in CARDINAL other trials .

On DATE ORG of GPE dismissed the appeal and upheld the applicant ’s conviction . ORG noted that “ the complaints of the co - defendants about unlawful composition of the bench were unfounded ” .

On DATE a deputy Prosecutor General of GPE lodged an application before the Presidium of ORG of GPE , seeking revision of the judgments of DATE and CARDINAL DATE , by way of a supervisory review . The deputy ORG argued that the trial court which had heard the applicant ’s case had been composed in violation of LAW on ORG because the lay assessors , PERSON and PERSON , had participated in CARDINAL criminal cases in DATE .

On DATE the Presidium of ORG of GPE accepted the application for a supervisory review , quashed the judgments of DATE and CARDINAL DATE and remitted the case for a fresh examination . In particular , the ORG held as follows :

“ According to paragraphs CARDINAL and CARDINAL of Article CARDINAL of LAW ... ‘ lay assessors are called once DATE to perform their duties in a regional court for as long as a particular case ORG .

However , that requirement of the law had not been taken into account when the trial court which examined the criminal case against PERSON ... had been set up .

As it appears from the case - file , the judgment of ORG of DATE against Mr ORG was taken by the trial court composed of the presiding judge and CARDINAL lay assessors , PERSON and PERSON .

According to a copy of the judgment of ORG of DATE , ... in DATE the same lay assessors were engaged in the examination of another criminal case against Mr GPE and PERSON , which was pending DATE and DATE .

Therefore the lay assessors , PERSON and PERSON , were engaged in examination of the criminal case against PERSON ... in violation of the abovementioned law , and under LAW that fact serves as a ground for quashing of the judgment because it was issued by the unlawfully composed court . ”

The ORG also held that the applicant should remain in custody pending the new examination of his case .

On DATE ORG of GPE , composed of CARDINAL professional judge , re - examined the applicant ’s case , found him guilty of aggravated extortion and robbery and sentenced him to DATE , DATE and CARDINAL days’ imprisonment . ORG based its judgment on statements by the victims and witnesses , confessions by the applicant ’s co - defendants given in open court and documentary evidence . The judgment of CARDINAL DATE was not appealed against and became final on DATE .

The applicant was released on DATE because he had served his sentence .

For the summary of relevant domestic law provisions concerning appointment of lay assessors see PERSON v. GPE , no . CARDINAL , ORG CARDINALIV , § CARDINAL , and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .


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

The applicant is a male national of GPE who was born in DATE . The applicant , who was granted legal aid , is represented by PERSON , a firm of solicitors practising in GPE . The Government are represented by their Agent , Mr PERSON , ORG .

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

DATE the applicant worked for President PERSON ( see below ) as a bodyguard and martial arts trainer for his children . The applicant had also been a chief sergeant in the NORP military . He was in charge of soldiers who fought for President PERSON and organised defence when the President had to flee into exile . In DATE he joined ORG ( ORG ) and its military branch ORG ( PERSON ) . He was closely involved in training fighters for the ORG .

On DATE he was arrested along with CARDINAL other soldiers and detained until DATE . He was subjected to torture in detention , including , inter alia , being subjected to electric shocks . The applicant submitted medical evidence in support from ORG which attributed multiple scars on his person to torture . He claimed that on DATE a senior NORP army officer opposed to the regime helped him escape . The applicant was shot trying to escape .

The applicant arrived in GPE on DATE via ORG , GPE and GPE and claimed asylum on arrival .

After arrival he was diagnosed with AIDS . In DATE or DATE the applicant married a NORP national who had CARDINAL children from a previous relationship .

ORG and the Adjudicator rejected the applicant ’s asylum claim on DATE and DATE respectively . They emphasised that there was no risk in returning NORP citizens unless they had been heavily implicated in anti - government activities and that a ORG report suggested that only the most senior members of the PERSON regime would be at risk . As to his medical condition , the Adjudicator noted that the applicant had family in the GPE who could care for and support him . The Adjudicator also noted that at the time the applicant and his wife married she already had CARDINAL children and they were aware of his precarious immigration status .

On DATE ORG ( ORG ) granted the applicant permission to appeal in relation to lack of suitable medication in GPE and in relation to the Adjudicator ’s acceptance of core elements of the applicant ’s account whilst making a broad negative credibility finding .

On DATE , following a hearing at which the applicant was represented , the ORG rejected the applicant ’s appeal . Whilst the ORG accepted that he had been detained and ill - treated , it found that the applicant had been a low - level supporter of the ORG and that he would therefore be able to benefit from the DATE amnesty for acts committed during civil conflicts . It noted the applicant ’s own evidence that since DATE the peace process had advanced significantly and an amnesty had been offered , and concluded that even on the applicant ’s own evidence he would not be at risk merely because of his past association with the defunct ORG party , the successor of which was a legal opposition party taking part in the political process .

As regards the applicant ’s medical condition , the ORG found that he had “ full - blown AIDS ” and was receiving anti - retroviral treatment . It noted that in his ORG interview the applicant had accepted that there was medical treatment available in the GPE , the question being the adequacy of that treatment . It referred to a ORG determination in DATE that in GPE anti - retroviral drugs were available , although expensive . It noted that as of DATE the applicant ’s CDCARDINAL count was CARDINAL and his viral load CARDINAL . It noted that as at DATE the applicant ’s viral load was CARDINAL ( down from CARDINAL ) and his CDCARDINAL count above CARDINAL ( from CARDINAL ) and observed that he was clearly making progress . It noted his doctor ’s report that he was taking medication with CARDINAL components CARDINAL of which ( NORP ) was not available anywhere in LOC . The applicant submitted a medical report dated DATE in support . However the ORG also referred to a further letter dated CARDINAL DATE which it found indicated that , contrary to the previous impression , some appropriate treatment might be available after all and was sold cheaply , although patients who took NORP generally did much better . It concluded that even on the applicant ’s evidence some treatment for his AIDS was available although it might not be the consultant ’s treatment of choice and that it was available at a reasonable cost .

The applicant sought leave to appeal to ORG as regards the ORG ’s findings about his illness and the prospects of receiving adequate treatment in the republic of GPE . Leave to appeal was refused by the ORG on DATE .

On DATE ORG maintained its refusal of the applicant ’s asylum claim . It also noted that as the applicant had spent all his DATE in the GPE he would have an adequate support network at home . It concluded that in his present condition , with the treatment available in the GPE and his support network at home , his removal would not breach LAW . It also noted that he had separated from his wife .

The applicant is now divorced from his wife . In DATE he formed a relationship with a NORP citizen , with whom he has a child born in DATE . It is not known whether either his present partner or the child are infected with HIV . It does not appear that he has sought leave to remain in GPE on the basis of his current relationships .

A medical report dated DATE stated as follows :

“ The patient is under our care at GPE . He has an HIV chronic infection well controlled with antiretrovirals . His last CDCARDINAL count was CARDINAL ( PERCENT ) and viral load is undetectable .

Recently he has had to change his antiretroviral regimen because of a problem with lipodystrophy . He was on NORP and changed to PERSON and PERSON . He is tolerating his treatment relatively well . If he can not get the treatment his life expectancy would be DATE because of the possibility of opportunistic infection . If he continues to take his antiretrovirals he can have a life expectancy similar to a normal person but he will be more prone to cardiovascular events like heart attacks or strokes . ”

A medical report from the applicant ’s general practitioner , dated DATE , recorded that the applicant was also receiving treatment for moderate depression and diabetes .

According to GPE ORG on GPE dated DATE , in DATE multi - party democratic elections took place and PERSON party won the majority of seats in both ORG and ORG . This shift in power destabilised the country and led to conflict between the army and militia groups . Civil war broke out between the militia forces loyal to Mr PERSON and PERSON , on one side , and Mr NORP , on the other , DATE before the next elections were due to take place , in DATE . The war continued for DATE , and was finally won by Mr PERSON . The ousted President PERSON and Prime Minister PERSON fled . The planned elections did not take place , the constitution was suspended , and a transitional government was set up . The militia forces , however , fought on sporadically for DATE . A peace agreement was finally reached in DATE .

A new constitution was adopted in DATE and endorsed by a referendum in DATE . The provisions of the constitution provided for a strong executive president , with a limit of CARDINAL terms , with the length of the term extended from DATE . The provisions also provided for a bicameral legislature to be elected DATE . The constitution banned political parties organised on regional , ethnic or religious identity .

In DATE , renewed violence began in the Pool region , instigated by members of the ORG militia group . The conflict slowly spread to other parts of the country and intensified as it did so . A peace agreement between the ORG militia group and the government was signed in DATE and ended the fighting . In DATE , ORG formally approved an amnesty for the former ORG militia fighters .

Presidential elections were held in DATE . Most of the key candidates were banned from participating in the elections or withdrew from the election . This left Mr PERSON to win the election virtually unopposed . A peace agreement between exiled former Prime Minister PERSON and President PERSON was signed in DATE . In DATE , President PERSON appointed a new government made up exclusively of members of his FAC .

In DATE , clashes between ORG fighters and government forces occurred , following the return of PERSON to the country to attend the funeral of his wife . President PERSON subsequently requested that the legislature grant an amnesty to Mr PERSON in the interests of national reconciliation . This was duly approved , and the death sentence issued in absentia against Mr PERSON in DATE , was overturned . DATE after the amnesty was granted , PERSON apologised to the NORP people for his role in instigating the DATE civil war .

According to ORG on ORG in GPE , published DATE , the government ’s human rights record remained poor ; although there were fewer documented abuses during DATE , serious problems remained . Citizens’ right to peacefully change their government was limited . In addition , the following serious human rights problems were reported : killings of suspects by security forces ; mob violence , including killing of suspected criminals ; security force beatings , physical abuse of detainees , rapes , looting , solicitation of bribes , and theft ; harassment and extortion of civilians by uncontrolled and unidentified armed elements ; poor prison conditions ; impunity ; arbitrary arrest ; lengthy pre - trial detention ; an ineffective judiciary ; infringement of ORG privacy rights ; limits on freedom of the press ; restrictions on freedom of movement ; official corruption and lack of transparency ; domestic violence and societal discrimination against women ; trafficking in persons ; discrimination on the basis of ethnicity , particularly against NORP ; and child labour .

ORG further stated that the government did not prevent the return of citizens , including political opponents of the president . By DATE , former president PERSON , who was sentenced in absentia in DATE to DATE in prison for “ economic crimes , ” had not returned to the country , despite a DATE announcement that President PERSON had agreed to allow his return and pardon him . In DATE a former prime minister , PERSON , returned to the country after ORG granted him an amnesty in DATE for a DATE conviction in absentia for allegedly improperly selling the country ’s oil while in office .

ORG for DATE , submitted by the government of GPE to UNAIDS in DATE , stated that at that time the GPE had CARDINAL outpatient treatment centres , CARDINAL at FAC and the other in GPE . These centres were the main structures providing global treatment for people living in the country . The active list of HIV - positive patients in these CARDINAL centres in DATE numbered CARDINAL , of whom CARDINAL were receiving antiretroviral drugs ( ARVs ) . According to the same report , the total number of patients taking ARVs in the GPE rose from CARDINAL in DATE to CARDINAL in DATE and CARDINAL in DATE , giving an increase in recruitment rate of PERCENT over DATE . At DATE , the regular monitoring of patients taking ARVs was PERCENT , the percentage lost to follow - up was estimated at PERCENT and the specific mortality rate at PERCENT .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant ’s wife died on DATE . There were CARDINAL children of the marriage , born on DATE and CARDINAL DATE . In DATE the applicant applied for widows’ benefits and was refused . On DATE he applied to ORG for benefits equivalent to those which would have been received by a widow . He was finally refused such benefits by ORG on DATE .

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


Preliminary objection dismissed (victim);Violation of Art. 6-1;Violation of Art. 13;Damage - financial award;Costs and expenses award

The applicant was born in DATE and lives in PERSON , the GPE region .

On DATE and DATE ORG ( Краснолуцький міський суд Луганської області ) awarded the applicant ORG CARDINAL,CARDINAL.CARDINAL and ORG CARDINAL.CARDINAL respectively in salary arrears and other payments against his former employer , ORG “ GPE ” ( ДВАТ “ GPE автобаза ” ДХК LOC ” ) . These judgments became final and the enforcement writs were transferred to ORG ( ORG виконавчої служби ORG міського управління юстиції ) for enforcement .

The applicant received the debt due to him by the judgment of DATE on DATE and on DATE - by the judgment of DATE .

On DATE ORG explained to the applicant that the delays in the enforcement of the judgments in his favour had been caused by the debtor 's reorganization , the holding of its assets in a tax lien and the statutory moratorium on the forced sale of ORG property .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award

The first applicant was born in DATE , the second applicant in DATE and the fourth applicant in DATE . The first , second and fourth applicants are judges who live in GPE . The third applicant , a retired judge , was born in DATE and currently lives in ORG in the GPE region .

NORP In DATE the first applicant lodged complaints with ORG of Kyiv ( “ the ORG ” ) against ORG and ORG , seeking payment of salary arrears , life - term judicial benefits and compensation for delays in their payment .

On DATE the district court allowed the applicant 's claims . It ordered ORG and ORG to pay the applicant CARDINAL NORP hryvnas ( ORG ) in compensation .

On DATE ORG ( “ the Court of Appeal ” ) upheld this judgment and it became final .

On DATE the Pechersky District Bailiffs ' Service ( “ the ORG ” ) decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the execution writs with ORG .

On DATE the applicant received the sum due to him under the judgment of DATE ( payment order no . CARDINAL ) . ( The enforcement proceedings lasted from DATE , that is , for DATE and DATE . )

In DATE the applicant lodged complaints with ORG against ORG and ORG , seeking payment of salary arrears , life - term judicial benefits and compensation for delays in their payment .

On DATE the district court allowed the applicant 's claims . It ordered ORG and ORG to pay the applicant ORG in compensation .

On DATE ORG upheld this judgment and it became final .

On DATE the ORG decided not to initiate enforcement proceedings in the case and informed the applicant that she should lodge the execution writs with ORG .

On DATE ORG returned the writs of execution in respect of the judgment of DATE , which remained unenforced owing to a lack of funds in the ORG budget .

On DATE the applicant received the sum due to her ( payment order no . CARDINAL ) . ( The enforcement proceedings lasted from DATE , that is , for DATE and DATE . )

On DATE the third applicant retired , following a decision of the Verkhovna Rada to dismiss him .

On DATE the ORG allowed the applicant 's claims . It ordered ORG and ORG to pay the applicant ORG CARDINAL,CARDINAL in compensation .

On DATE ORG declined to enforce the judgment owing to a lack of budgetary funds .

On DATE ORG informed the applicant that the judgment could not be enforced owing to a lack of funds in the ORG budget for such expenditure .

On DATE the Deputy Head of ORG informed the applicant that the judicial administration was not liable for payment of debts that had been incurred before it had been established .

On DATE the ORG returned the writ of execution to the applicant on the ground that there were no funds in the budget of ORG for the enforcement of such judgments .

On DATE the applicant received the sum awarded to him by the judgment of DATE ( payment order no . CARDINAL ) .

On DATE the applicant received the sum due to him in the form of a payment order ( no . CARDINAL ) to his bank account ) . ( The enforcement proceedings lasted from DATE to DATE , that is , for DATE and DATE . )

In DATE the fourth applicant lodged complaints with ORG against ORG and ORG , seeking payment of salary arrears , life - term judicial benefits and compensation for delays in their payment .

On DATE the district court allowed the applicant 's claims . It ordered ORG and ORG to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL in compensation .

On DATE the ORG decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the writs with ORG .

In DATE the applicant lodged the writs of execution with ORG . On DATE ORG declined to enforce the judgment owing to a lack of budgetary funds , and stated that responsibility for enforcement lay with ORG .

On DATE the applicant received the sum due to him ( payment order no . CARDINAL ) . ( The enforcement proceedings lasted from DATE , that is , for DATE and DATE . )

The relevant provisions of LAW read as follows :

“ All expenditure by the ORG for social purposes , and the amounts and aims thereof , shall be determined by LAW . ”

“ Everyone shall have the right to work , including the possibility to earn his or her living by labour which he or she freely chooses or to which he or she freely agrees .

... The right to timely payment for work shall be protected by law . ”

“ The independence and immunity of judges shall be guaranteed by LAW and the laws of GPE .

... Influencing judges in any manner shall be prohibited . ”

“ Justice shall be administered by professional judges and , in cases determined by law , by lay assessors and jurors .

Professional judges shall not belong to political parties or trade unions , take part in any political activity , hold a representative mandate , occupy any other paid position or perform other remunerated work except in the academic , teaching and creative spheres . ... ”

“ In the administration of justice , judges shall be independent and subject only to the law . ”

“ The ORG shall ensure the funding and proper conditions for the operation of the courts and the activity of judges . Expenditure for the maintenance of the courts shall be allocated separately in the ORG budget of GPE . ... ”

Section CARDINAL of LAW provides that judges ' salaries and social - security benefits shall be such as to ensure their financial independence and shall be determined in accordance with LAW . The amount of a judicial salary can not be reduced .

The relevant provisions of LAW read as follows ( PERSON no . CARDINAL ) :

“ ... Budgetary funds shall be spent for the purposes determined by budgetary allocations only ... ”

“ ... Budget commitments can be undertaken and payments from the ORG budget made only in so far as budgetary allocations exist for these purposes . ”

LAW provides that the writing - off of funds from the ORG budget pursuant to a court judgment delivered in favour of the employees of an organisation in receipt of budgetary funds , who are entitled to certain benefits , shall be carried out from the single treasury account of ORG at the expense and within the limits of the budget allocations fixed for financing that organisation .

The ORG budget provided UAH CARDINAL for the enforcement of judgments awarding judicial salaries and benefit arrears .

Section CARDINAL of the PERSON provides that the bailiffs ' departments of ORG shall be responsible for the enforcement of judgments concerning the debts of the executive branch of Government .

The PERSON provides that ORG shall be responsible for organising the financial planning and accounting of the courts and for preparing an estimate of the courts ' budgetary needs .

NORP In accordance with CARDINAL of the LAW , ORG is responsible for the implementation of the ORG budget and for monitoring its expenditure .

The relevant extracts from the Recommendation read as follows :

Proper conditions should be provided to enable judges to work efficiently and , in particular , by :

b. ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities ; ... ”

The relevant extracts from the Explanatory Memorandum read as follows :

“ CARDINAL . Status and remuneration are important factors determining appropriate working conditions ( see paragraph CARDINAL.b ) . The status accorded to judges should be commensurate with the dignity of their profession and their remuneration should represent sufficient compensation for their burden of responsibilities . These factors are essential to the independence of judges , especially the recognition of the importance of their role as judges , expressed in terms of due respect and adequate financial remuneration .

Paragraph CARDINAL.b is closely bound up with the reference in Principle I to all decisions concerning the professional life of judges , which obviously includes their status and their remuneration . ”

The relevant extracts from LAW of LAW on the Statute for Judges , “ Remuneration and Social Welfare ” , read as follows :

“ CARDINAL . Judges exercising judicial functions in a professional capacity are entitled to remuneration , the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction , thereby impairing their independence and impartiality . ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

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

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

The applicant was born in DATE and lives in GPE .

The applicant arrived in GPE on DATE with his parents and siblings and was granted Indefinite Leave to Remain . In DATE he returned to GPE to marry and his wife was granted leave to join him in GPE . When he returned to GPE he initially undertook casual work of a manual nature but later suffered a back injury which prevented him from undertaking further permanent work . In DATE he suffered a stroke , which left him partially paralysed .

The applicant and his wife have CARDINAL children living in GPE . The youngest will turn DATE on DATE and the oldest is CARDINAL . The applicant claims that CARDINAL of his children have a disability . The applicant and his wife separated in DATE although the applicant submits that they were later reconciled .

Following the applicant ’s stroke in DATE , he was convicted of CARDINAL offences for which he was sentenced to a total of CARDINAL PERSON imprisonment . These offences included rape , wounding under section CARDINAL of the LAW against LAW , and living off the earnings of a prostitute . On DATE the applicant was convicted by a ORG of possession of a Class A controlled drug with intent to supply . He was sentenced to DATE and CARDINAL months’ imprisonment .

On DATE the applicant was served with a notice of decision to make a deportation order . The Secretary of ORG had considered the effect that deportation was likely to have upon the applicant and his family but concluded that in the light of the seriousness of the applicant ’s criminal offence , his removal was necessary in a NORP society for the prevention of disorder and crime and for the protection of health and morals .

The applicant ’s appeal against this decision was dismissed on DATE by an Immigration Judge .

In particular , the Immigration Judge noted that the applicant continued to deny culpability for the offence and did not demonstrate any remorse for it . During DATE his disregard of the law had been blatant and frequent and the probation officer considered that the risk of re - offending was high .

In relation to the applicant ’s medical condition , the judge accepted that he had some residual physical disability arising from a stroke in DATE . In particular , he had a limp and could not walk without the assistance of a stick . He also accepted that the applicant suffered from asthma and epilepsy , but noted that no medical evidence had been submitted to substantiate the level of the applicant ’s claimed disabilities . He concluded that the applicant had exaggerated the extent of his disability , and found that his medical needs could be met in GPE .

Moreover , the judge was not satisfied that the applicant no longer had connections in GPE . In relation to the applicant ’s family life in GPE , he did not accept that the applicant and his wife had become reconciled . He noted that following his release from prison , the applicant lived in a different town from his wife . Although he visited his wife and children on alternatives DATE , he did not stay in his wife ’s home during these visits .

On DATE a deportation order was signed . On DATE the applicant was detained and removal directions were set for CARDINAL DATE . The applicant sought permission to apply for judicial review . ORG deferred the removal directions pending the determination of the judicial review proceedings .

On DATE ORG refused the application for permission to apply for judicial review . The applicant renewed his application for permission to an oral hearing , which took place on DATE . Permission to apply for judicial review was again refused by ORG . The applicant made further representations to the Secretary of ORG , which were rejected as containing no new information .

The applicant was deported to GPE on CARDINAL DATE .

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG for ORG deems his deportation to be conducive to the public good . Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against this decision on the grounds , inter alia , that the decision is incompatible with the Convention .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .

The Rules relating to the revocation of a deportation order are contained in paragraphs LAW of ORG CARDINAL ( as amended ) , supplemented by LAW ( “ IDIs ” ) . There is no specific period after which revocation will be appropriate although ORG to LAW of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal . Cases which will normally be appropriate for revocation DATE after deportation include those of overstayers and persons who failed to observe a condition attached to their leave , persons who obtained leave by deception , and family members deported under LAW ) of LAW DATE . With regard to criminal conviction cases , the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “ spent ” under section CARDINAL(CARDINAL ) of the Rehabilitation of Offenders Act DATE . Paragraph CARDINAL of the Rules , however , indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course . This is expanded on in GPE A to LAW of the IDIs , which indicates that revocation would not normally be appropriate until DATE after departure for those convicted of serious offences such as violence against the person , sexual offences , burglary , robbery or theft , and other offences such as forgery and drug trafficking .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . The respondent Government were represented by PERSON , Director of ORG in ORG .

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

The applicant was born in PERSON , GPE . DATE he served as a career officer in active service with the NORP armed forces in different parts of the former GPE . In DATE he moved to GPE to serve there .

In DATE the applicant ’s wife , PERSON , whom he had married in DATE in ORG , GPE , his mother - in - law , PERSON PERSON ( born in DATE ) and his son , PERSON ( born in DATE ) , moved to GPE . PERSON and PERSON PERSON currently live in GPE and both hold permanent residence permits .

In DATE the applicant was assigned to the reserves . In DATE he began work as a taxi driver in GPE . His wife also worked as a civilian . The applicant ’s mother - in - law needs taking care of due to her age .

On DATE GPE and GPE concluded a treaty on the withdrawal of NORP troops from NORP territory .

On DATE the applicant was discharged from the NORP naval forces with the rank of senior captain .

In DATE the applicant and his wife applied , unsuccessfully , for a flat near GPE under a NORP aid programme .

On DATE the applicant and his wife applied for residence permits in GPE . On DATE they were issued with temporary DATE residence permits .

On DATE the applicant submitted an application for a flat in GPE under an aid programme run by GPE . The application form was in NORP and contained the words “ ORG for ORG ” in its header .

On the application form , which the applicant signed , it was stated that if his application were to be approved and he were to be allocated a flat under the aid programme , he and his family , before moving to GPE and obtaining registration of residence ( propiska ) , keys to the flat and authorisation to use it ( order ) , must vacate the dwelling at their disposal in GPE , cancel their registration of residence there and not seek to stay in the NORP countries as permanent residents . It further stated that in the future the applicant would be allowed to visit the NORP countries only as a foreign visitor . It stated that he and his family did not own a dwelling in the NORP countries and that they would not seek to acquire ownership of or sell the dwelling at their disposal at that time , and that they had not received and would not receive any payment for vacating their current dwelling . The applicant also confirmed that at the time of signing the application he and his family did not have any other dwelling in GPE . According to the application form participation in the programme was voluntary ; the person signing stated that he was aware that in the event of failure to leave the LOC country within DATE and to settle in the dwelling offered to him within DATE of receipt of the notice offering it to him , he would lose all his rights to the dwelling under the aid programme . He would become the owner of the dwelling allocated to him only after he had resided there permanently for DATE .

According to another form , apparently submitted by the applicant to ORG , CARDINAL of the companies responsible for implementation of the aid programme under a contract with ORG for ORG , the applicant ’s family comprised CARDINAL members – the applicant himself and his wife .

On DATE the applicant requested ORG of ORG ( PERSON ) of GPE to cancel his and his wife ’s registration of residence at ORG maantee CARDINAL in GPE in connection with their move to GPE . On DATE the request was granted .

Under the aid programme , the applicant was allocated a flat at CARDINAL FAC , GPE . On DATE he moved in . On DATE the applicant ’s residence was registered at that address ( he obtained propiska ) .

In DATE the applicant and his wife applied for an extension of their residence permits in GPE . On DATE the Minister of the ORG refused their request . The refusal was based on CARDINAL grounds . Firstly , the applicant had served as a professional member of the armed forces of a foreign country and had retired from that post . That ground applied also to his wife . Secondly , both the applicant and his wife had committed themselves to leaving GPE and had been allocated accommodation abroad within the framework of an international aid programme .

The applicant and his wife submitted a complaint to ORG ( PERSON NORP ) which , by a judgment of DATE , dismissed the complaint . It observed that LAW provided that the residence permits of former professional members of the armed forces of a foreign country and their family members could be extended only in exceptional circumstances . The order by the Minister of the ORG had not provided grounds as to why such an exception did not apply in the case of the applicant and his wife . Nevertheless , ORG found the order to be lawful , since LAW did not in any case permit extension of the residence permits of persons who had committed themselves to leaving GPE and who had been granted accommodation abroad within the framework of an international aid programme . ORG agreed with the Minister of the ORG that that ground for refusing the extension was absolute and did not leave the authorities any discretion .

In an appeal to ORG ( Tallinna GPE ) , the applicant and his wife contested the retroactive application of the provision of LAW refusing extensions of residence permits to persons who had committed themselves to leaving GPE and who had been granted accommodation abroad within the framework of an international aid programme . LAW had not contained the disputed provision at the time when the appellants had participated in the aid programme and been granted accommodation in GPE . The appellants argued that their right to have their legitimate expectations fulfilled had been violated , as had the principle of legal certainty . They also noted that the aid programme had been based on a treaty between GPE and GPE ; GPE had not been a party to the aid programme . The applicant and his wife had not undertaken a commitment to leave GPE vis - à - vis that country .

On DATE ORG upheld the judgment of ORG . ORG held that the principle of legitimate expectation could not extend to preventing the legislator from making any changes to the legislation in force at any point in time . At the time they had decided to take part in the aid programme , the appellants had been aware that on being granted accommodation in GPE they would have to leave GPE . They had consented to settle in GPE and they had been granted a flat in GPE in DATE . The appellants could not have had any legitimate expectation that their residence permits would be extended , as the impugned provision had been introduced into LAW in DATE , that is , before the appellants had submitted their request for extension of their residence permits . ORG agreed with the firstinstance court ’s assessment that the appellants’ right to family life had not been violated .

ORG ( NORP ) refused leave to appeal on DATE .

Section CARDINAL(CARDINAL ) of LAW ( PERSON seadus ) listed the instances in which a residence permit could not be issued or extended . Section CARDINAL(CARDINAL)(CARDINAL ) provided that a permit could not be issued or extended if the alien applying for it had served as a professional member of the armed forces of a foreign state , had been assigned to the reserve forces thereof or had retired therefrom . DATE ) provided that residence permits could not be issued or extended either for the spouse and minor children of a person referred to in section CARDINAL(CARDINAL)(CARDINAL ) . LAW ) , however , provided that , by way of exception , a temporary residence permit could be issued or extended for the alien concerned if this was not excluded on other grounds under the same provision .

Section CARDINAL(CARDINAL)(CARDINAL ) of LAW provided that a residence permit could not in any case be issued or extended if the person concerned had , inter alia , committed himself or herself to leaving GPE or had been granted accommodation abroad within the framework of an international aid programme . This provision was adopted on DATE and entered into force on DATE . In DATE it was the subject of an amendment which does not appear to be relevant to the present case .

According to the Government , in DATE and DATE the President of GPE and the President of GPE had agreed to undertake a project to provide up to CARDINAL units of housing for NORP military officers demobilised from the NORP countries or elsewhere outside GPE . The Government noted that , as GPE had not been a party to the agreement , they did not have the originals of the documents at their disposal and could not provide them .

The Government submitted to the ORG a copy of the “ NORP Military Officer Resettlement Program – Housing Certificate Program ” ( in LANGUAGE ) and the “ NORP Military Officer Resettlement Program – Housing Construction Program – Information Digest ” ( in NORP and in LANGUAGE ) . These information materials appear to have been handed out by the NORP organisers of the aid programme to the participating NORP officers .

According to the information material , the “ NORP Military Officer Resettlement Program ” had been set up in order to provide CARDINAL units of housing for NORP military officers demobilised mainly from the NORP countries . CARDINAL of the units of housing were to be built , the rest being provided through a housing certificate programme .

In order to take part in the programme , officers had to submit their discharge order , passport , official confirmation of the size and composition of the family , official confirmation of current residence in the NORP countries and a signed application for participation in the programme . The latter included statements to the effect that , upon obtaining housing under the programme , the officer and his family would vacate their present dwelling(s ) in the NORP countries and would not seek permanent residence in any of ORG , and from then on would enter ORG only as foreign visitors . The officers had to declare that they and their families did not own housing in GPE nor would they own , acquire or sell any dwellings in the NORP countries , and would not receive any payments for vacating any dwelling . Officers declared their understanding that if they were found to be eligible to participate in the programme and if all the programme ’s terms and conditions were met , they would receive a suitable flat ( under the housing construction programme ) or financial assistance for the purchase of housing units ( under the housing certificate programme ) .

In order to obtain a registration of residence ( propiska ) for their new flat from the passport office , officers had to present their NORP passport and the NORP passports of all family members along with proof of cancellation of their registration of residence in the NORP countries ( vypiska ) for all members of the family . They had to move in DATE of notification by the NORP social welfare services or the local authorities , failing which their flat could be reassigned .

Participation in the programme was voluntary ; no enrolment fee was required .

After the independence of GPE was restored on DATE , NORP troops remained in the country . Following the dissolution of GPE , GPE assumed jurisdiction over the NORP armed forces . On DATE GPE and GPE concluded a treaty on the withdrawal of NORP troops from GPE and the conditions under which they could reside temporarily in GPE . On DATE , GPE and GPE concluded an agreement concerning social guarantees to the retired military personnel of the armed forces of GPE in GPE . The treaty and the agreement entered into force on DATE , having applied on a provisional basis since DATE , the date on which they had been signed .

Under the terms of the treaty , ORG undertook to withdraw from GPE , by DATE , all military personnel who were in active service with the NORP armed forces . Family members of military personnel in active service who did not have a dwelling in GPE were allowed to remain in GPE for DATE .

The agreement provided that retired military personnel , that is , persons discharged from the army and receiving a pension , and their family members , could apply for residence permits in GPE . ORG could refuse the application for a residence permit on grounds of national security .


The applicant , Mr PERSON , is a NORP citizen of NORP national origin , who is born in DATE and lives in Požega , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .

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

The applicant was employed as an agricultural technician in the Požega Penitentiary and ORG - a ORG prison for young offenders - ( ORG popravni dom Požega ) . On DATE the director of the prison dismissed the applicant and CARDINAL other employees , as a disciplinary penalty , for allegedly having voted for the formation of the so called GPE ( Srpska Autonomna Oblast “ PERSON ” ) and the secession of that Territory from GPE , in ORG in GPE in DATE ( hereinafter the “ Referendum ” ) . The decision of the applicant 's dismissal stated that the PERSON was part of the efforts to change the ORG frontiers by secession of parts of the NORP territory and their annexation to another ORG , which amounted to a criminal offence under LAW ( b ) of LAW . The Referendum was found to be contrary to LAW , thus illegal and participation in it was declared incompatible with service in State organs . The decision was , in addition , based on LAW , enacted in DATE .

The applicant appealed against his dismissal . On DATE ORG and ORG ( PERSON ORG popravnom domu u GPE ) dismissed the appeal .

On DATE the applicant filed an action challenging his dismissal in ORG ( PERSON ) . He claimed that he did not take part in ORG . He also claimed that ORG was enacted after his alleged participation in the Referendum and should not have been retroactively applied .

On DATE ORG upheld the decision of the applicant 's dismissal . It found the applicant ’s participation in the Referendum incompatible with his service in the Požega Penitentiary and ORG .

On DATE the applicant lodged an appeal against the above judgment with ORG ( ORG u GPE ) , reiterating his previous arguments .

On DATE the appellate court dismissed the appeal and upheld the first instance judgment .

On DATE the applicant filed a request for revision with ORG ( PERSON ) . On DATE ORG upheld the lower courts’ judgments .

On DATE the applicant filed a constitutional complaint . He claimed that he had not taken part in the Referendum . He argued that ORG provision , prescribing that an employee in the prison may be dismissed if he was not fit for working in that institution , lacked sufficient clarity and , therefore , was inconsistent with the requirement of foreseeability . In his opinion the decision of his dismissal on account of his alleged participation in the Referendum violated his right to freedom of expression .

On DATE the applicant ’s constitutional complaint was rejected . ORG ( Ustavni sud PERSON ) found the applicant ’s dismissal to be a consequence of his participation in the PERSON which it found incompatible with the applicant ’s employment in the Požega Penitentiary and ORG , pursuant to LAW ) of ORG .

Section CARDINAL ( CARDINAL ) of the Decree on the enforcement of penalties for crimes , economic offences and misdemeanours committed during the state of war or the state of immediate danger for the independence and unity of GPE ( ORG Decree - Uredba o izvršenju sankcija izrečenih za krivična djela , privredne prijestupe i prekršaje za vrijeme ratnog stanja ili u slučaju neposredne ugroženosti neovisnosti i jedinstvenosti PERSON , ORG no . CARDINAL ) provides that the director of an institution may decide to dismiss an employee who is not fulfilling his duties or when it is established that he is not fit ( podoban ) to work in that institution .