Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG . ORG of GPE were invited to state whether they wished to submit written comments on the case ( LAW ) . They did not avail themselves of that possibility .

Before moving to GPE on DATE , the applicant had lived and worked in GPE as a professional soldier for DATE and then as an entrepreneur . He had received a military pension from GPE from DATE . Afterwards , he had received a military pension from GPE until DATE . The applicant was employed in GPE from DATE to DATE . From DATE to CARDINAL DATE and then from DATE to CARDINAL DATE he was registered as unemployed .

On DATE ORG ( PERSON úřad sociálního zabezpečení ) awarded him an old - age pension of CARDINAL NORP korunas ( CZK ) per month ( MONEY ( ORG ) ) starting from DATE . The amount was calculated on the basis of the applicant ’s wage in GPE in DATE together with an unspecified notional amount determined by ORG for the calculation of his military pension . On DATE ORG upheld that decision .

The applicant lodged a request for judicial review arguing , inter alia , that he had been discriminated against on account of his employment in GPE because had he never worked in the country , his pension would be calculated based on section CARDINAL ( CARDINAL ) of ORG on the Application of the Treaty on Social Security ( “ LAW ” ) . In that case it would reach LAW ( EUR CARDINAL ) . He further argued that he had been discriminated against because his income in GPE had not been taken into account at all when calculating his pension .

On DATE ORG ( krajský soud ) upheld the decisions of the administrative authorities , holding that they had correctly applied the NORP - Ukrainian Treaty on ORG ( “ LAW ” ) , the LAW and the relevant law .

On DATE ORG ( GPE správní soud ) dismissed the applicant ’s appeal on points of law ( dovolání ) . It rejected , inter alia , the applicant ’s claim of discrimination , holding that the rule by which the income in another country can not be taken into account when calculating a pension , was justified by technical and practical difficulties and it also protected persons whose pension would be lowered by taking into account low income abroad . The court further stated that it did not consider that any discrimination arose from the fact that section CARDINAL ( CARDINAL ) of the Agreement was not applicable in the applicant ’s case .

On DATE the Constitutional Court ( Ústavní soud ) rejected the applicant ’s constitutional appeal as manifestly ill - founded , agreeing with the ordinary courts .

The entitlement to and the calculation of old - age pensions in GPE of persons having arrived from GPE is governed by the bilateral NORP - Ukrainian Treaty on Social Security of DATE ( “ LAW ” ) and the subsequent Agreement on the Application of LAW of DATE ( “ the Agreement ” ) .

Under LAW undertakes to calculate the average wage or the basis for calculating the pension only on the basis of DATE earned under the law of that ORG .

Under section CARDINAL(CARDINAL ) of the Agreement , when calculating the pension under LAW , no account is taken of any income earned in the other ORG . Section CARDINAL(CARDINAL ) stipulates , however , that if the calculation of a pension is not possible because the person has acquired insurance periods only in the other ORG , the calculation in the NORP Republic shall be based on the average NORP wage DATE the pension is awarded .

Under LAW ( no . CARDINAL ) , the amount of pension is calculated on the basis of the person ’s contribution to the social security scheme during DATE before the date the pension is awarded . However , certain periods are disregarded , including any periods when the person was unemployed , was receiving another pension or the amount of income can not be established . The minimum old age pension under LAW , irrespective of any prior contribution to the scheme , is currently CZK CARDINAL,CARDINAL ( EUR CARDINAL ) .

Act no . DATE determines the subjects required to contribute to the social security scheme and amounts which have to be paid . Section CARDINAL sets out a list of persons who have to pay social security contributions . It includes , inter alia , employees , self - employed persons , persons in various paid elected ORG offices , civil servants , and shareholders and managers of corporations if they are remunerated for their work .


Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 3 (conditions of detention);Remainder inadmissible;Non-pecuniary damage - financial award

The applicant is a lawyer and a former officer of ORG of GPE ( FSB ) . At the time of the events giving rise to the application , he was the subject of an unrelated criminal investigation conducted by ORG concerning the period of his service in the ORG ( criminal case no . CARDINAL ) . From DATE the applicant was under an obligation not to leave his permanent place of residence without the permission of the prosecution or the court .

On DATE in the evening the applicant was returning from a meeting with the officials of the police department of the town of GPE , in LOC , where he was assisting his client as a lawyer . The applicant 's car was stopped by the traffic police on a road . The police searched his car , nothing suspicious being discovered there . TIME the policemen repeated the search , now in the presence of CARDINAL attesting witnesses . This time a handgun with ammunition was discovered on the back seat of the applicant 's car . The applicant was questioned about this gun ; he asserted that it did not belong to him . He also informed the policemen that he was a lawyer and showed his lawyer 's identity card . At TIME the police opened a criminal investigation into these facts ( criminal case no . CARDINAL ) . The applicant was placed in LOC detention centre .

In TIME of DATE , at the investigator 's request , ORG ordered the applicant 's pre - trial detention on the grounds that he was suspected of committing a criminal offence punishable under LAW ( unlawful possession of firearms and ammunition ) by DATE imprisonment and that there was a risk that he might abscond , interfere with the course of justice or continue his criminal activities . The court also stated that at the time of his arrest the applicant was already the subject of another criminal investigation in the context of criminal case no . CARDINAL .

The applicant appealed , stating , inter alia , that ORG , in finding the detention to be lawful , had failed to give any reasons for its finding . The applicant further alleged that the gun had been planted by the police and maintained that he would never keep a loaded gun in a car which he used to drive his children to school TIME . He also noted that he had CARDINAL under - age children and that there was therefore no reason to believe that he would go into hiding . He further submitted that he represented clients in DATE pending cases and that his arrest would be prejudicial to their interests . Finally , the applicant pointed out that the special procedure for authorising the detention of lawyers had not been followed in his case . He asked ORG to examine his appeal in his presence .

On DATE the ORG , after a preliminary examination of the facts of the case , authorised the opening of criminal proceedings against the applicant in connection with the discovery of the gun in his car on DATE . On DATE the applicant 's lawyer lodged an appeal against the detention order of DATE . In the grounds of appeal he stated , inter alia , that the applicant , as a lawyer , could not have been arrested and then placed in custody without a preliminary court decision authorising his criminal prosecution .

NORP On DATE the applicant was formally charged under LAW . On DATE ORG examined the appeal against the detention order . Before the court the applicant was represented by CARDINAL of his lawyers , Mr M. With reference to Articles CARDINAL of the Code of Criminal Procedure , ORG quashed the detention order of DATE . The appeal court stated that the applicant , as a lawyer , could have been placed in detention on remand only after a separate court decision initiating criminal proceedings against him or authorising investigative measures in respect of him . In the present case there had been no such decision when the court had ordered his detention . The appeal court ordered the applicant 's release and remitted the case to the first - instance court . However , the applicant remained in prison . He submitted that he had received a copy of this decision only on DATE .

On DATE the applicant was transferred to the Volokolamsk detention centre . On DATE the FAC town prosecutor applied to ORG , seeking an order for the applicant 's detention on remand .

On DATE the ORG ordered the applicant 's continued detention on the ground that he had been charged with a crime of medium severity and might abscond or interfere with the course of justice if released . The hearing took place in the presence of the applicant and CARDINAL of his lawyers , PERSON and PERSON On DATE he was transferred back to the detention centre in GPE .

The applicant appealed , repeating the arguments used during his first appeal and adding that , once refused , detention on remand could not be ordered for a second time on the same grounds . The applicant also submitted that neither he nor CARDINAL of his lawyers , PERSON , had been notified about the hearing and that they had been unable to present their arguments . He also indicated that ORG decision of DATE ordering his release had still not been executed .

On DATE ORG , in the presence of the applicant 's lawyers , upheld the first - instance court 's decision of CARDINAL DATE and sanctioned the applicant 's continued detention on remand pending pre - trial investigation .

At DATE the bill of indictment in criminal case no . CARDINAL , together with the case file , was forwarded to ORG . On DATE the applicant was transferred to a detention centre in GPE . On DATE ORG ordered the applicant 's pre - trial detention in the context of criminal case no . CARDINAL .

On DATE the ORG dismissed a request by the investigator for prolongation of the applicant 's detention on remand in the context of criminal case no . CARDINAL . However , the applicant remained in custody pursuant to the detention order made by ORG on DATE .

On DATE the defence complained to the ORG about the period DATE and DATE , when the applicant had been detained without any valid grounds . It is unclear whether this complaint has ever been examined by the court and what the outcome of the examination was , if there was one .

On DATE ORG gave judgment in criminal case no . CARDINAL . The applicant was found guilty and the court sentenced him to DATE imprisonment in an open colony ( колонияпоселение ) . On DATE ORG of ORG of GPE upheld the judgment .

As regards criminal case no . CARDINAL , on DATE the ORG found the applicant guilty of unlawful possession of firearms , found in his car on DATE . ORG rejected the applicant 's contention that the gun had been planted by the policemen .

The applicant appealed . On DATE ORG acquitted him . ORG found that the fact that the bag with the gun had been found in the applicant 's car did not necessarily mean that the gun had been put there by him . No fingerprints belonging to the applicant or traces of his sweat had been found on the bag or the gun . There was no evidence that the applicant had been in possession of the gun before his arrest or that he had put it in his car . Moreover , the policemen who had arrested the applicant had insisted that the bag had fallen from the back pocket of the driver 's seat . However , a reconstruction of the offence showed that in the circumstances that had been physically impossible .

ORG further noted that ORG had not accepted either the applicant 's version or the account given by the prosecution . In its judgment it had put forward its own version as to how the gun had happened to be in the applicant 's car . In particular , ORG had found that before leaving the car the applicant had hidden the gun under his cloak , and that during the search the gun had fallen on the floor of the car . However , that version was not supported by evidence , and , moreover , the court had exceeded its powers by extending the factual scope of the indictment . As a result , the applicant was found not guilty .

On an unspecified date the applicant brought proceedings claiming MONEY ( RUR ) for non - pecuniary damage on account of his unlawful detention DATE and DATE . On DATE the ORG found that the whole period of the applicant 's detention on remand , until his acquittal , had been unlawful . As a result , the applicant was awarded RUR CARDINAL,CARDINAL , to be recovered from ORG .

That judgment was appealed against by the prosecution and by the applicant . On DATE ORG quashed the judgment of DATE . ORG found that the judgment of ORG had covered the whole period of the applicant 's detention in the context of criminal case no . CARDINAL , whereas his civil claim had only concerned the period of his detention DATE and DATE . Furthermore , ORG indicated that from DATE the applicant had been in custody in connection with another criminal case ( no . CARDINAL ) , which had ended with his conviction . Lastly , ORG indicated that ORG had failed to summon the representatives of ORG . As a result , the case was referred to ORG for fresh consideration .

In the proceedings before ORG the applicant confirmed that his claim only concerned the period DATE . On DATE ORG ruled in favour of the applicant . ORG found that the applicant 's detention had been unlawful , awarding him ORG in compensation for the non - pecuniary damage sustained . The applicant appealed , claiming that the award was too small . On DATE ORG upheld the judgment of DATE , stating as follows :

“ ... [ The first - instance court correctly found that ] from DATE to CARDINAL DATE the applicant was detained on remand unlawfully , since , by virtue of the decision of ORG of DATE , the judgment of the ORG [ in respect of the applicant ] ... was quashed , and the case was closed because the applicant had not been involved in the [ alleged ] crime .

... [ The applicant ] was fully rehabilitated in respect of the events which had served as a basis for his detention DATE and DATE ... ”

ORG concluded that the amount awarded by ORG was reasonable .

After his arrest on CARDINAL DATE the applicant was placed in the detention centre in LOC ( изолятор временного содержания УВД г. Дмитров ) , QUANTITY north of GPE . On CARDINAL occasions in the following DATE the applicant was transferred to detention centre ORG CARDINAL , situated in LOC , QUANTITY west of GPE , and then back to the detention centre in GPE . According to the information provided by the Government , the applicant was kept in custody in the detention centre in FAC from DATE to CARDINAL DATE , then from CARDINAL to CARDINAL DATE , and from DATE . The Government further asserted that the applicant had been kept in custody in the detention centre in LOC from DATE , from CARDINAL to CARDINAL DATE and from DATE to DATE . The Government did not indicate where the applicant had been detained between CARDINAL DATE and DATE , when he had been transferred to detention centre ИЗ CARDINAL/CARDINAL in GPE . According to the applicant , during DATE he was in the detention centre in LOC .

The parties submitted differing accounts of the conditions of detention in the detention centres of ORG .

In his initial submissions to the ORG the applicant described conditions in the detention centre of ORG as follows :

“ The cell had a dirty wooden floor with puddles of mud ... , insects were everywhere , it was terribly chilly . I was not given a mattress or a chair or even a piece of paper . I had to rest on the wooden floor which was covered in faeces and the blood of crushed bugs . ... Because of the cold I had to remain standing for DATE . I could not sleep . Then I cleaned up a place in a corner of the cell with my clothes and took a nap . TIME I woke up because bugs , lice and some other beasts were crawling over me . ... Since my arrest I have not been able to go for a walk outside the cell . The window is constantly shut and I 've lost all sensation of time . Only once have I been brought before an investigator for questioning . ... There is no washbasin in the cell and I have to wash myself using the lavatory . ... My eyesight has become impaired because of the dull light in the cell . ”

The applicant complained to the prosecutor in similar terms about the conditions of his detention . As a result , he was given a pail of water , washing liquid and a rag to wash the floor .

According to the information , provided by the ORG , cell no . CARDINAL , where the applicant was detained , measures QUANTITY . It is equipped with a lavatory , a tap and a sink . The premises of the detention centre are centrally heated . The cell receives daylight during DATE and is lit by an electric lamp at TIME . Upon his arrival at the detention centre the applicant was given bedclothes ; however , he refused to use them “ as a sign of his disagreement with his arrest ” . In TIME of DATE his relatives sent him the necessary bedclothes .

On DATE the FAC town detention centre was examined by a joint commission of the regional ORG and ORG . The inspection concluded that “ the sanitary state of the cells is satisfactory , wet cleaning with disinfectants takes place DATE ; the ventilation is operational ” . The commission also noted that the applicant had not been taken outside for a walk because the yard in the detention centre was under construction .

In his submissions in reply to those of the Government the applicant insisted that cell no . CARDINAL , where he was detained , was smaller than the Government indicated and , moreover , was not equipped with a washbasin . The water from the tap was evacuated through a lavatory drain ( труба слива для унитаза ) , so , to wash himself , the applicant had had to lean over a stinking toilet pan . The toilet was located very close to the applicant 's sleeping place , and there was no partition between them . The cell had no radiators or other heating devices ; instead , a pipe with warm water passed along the wall . In the applicant 's words , the pipe provided only enough heat to warm his hands on it .

The applicant further indicated that there had been CARDINAL small grilled window in the cell , and there had been no glass in it . In order to keep some warmth within the cell , the grill covering the window was papered over . The applicant did not dare to take the paper off because it was too cold outside . Consequently , there was no natural light in the cell ; during the whole period of his detention in LOC the applicant had to read and write by the dull light of an electric lamp . As a result , the applicant 's eyesight deteriorated .

On DATE the applicant complained to the investigator about the absence of any natural light in his cell . The applicant asked to be examined by an ophthalmologist , but his request was refused . Instead , the head of the detention centre recommended that the applicant take “ blackberry pills ” , which could be procured by his relatives . The applicant indicated that in DATE he had undergone an examination by a doctor in detention centre ИЗ CARDINAL/CARDINAL , which revealed the impairment of his eyesight by CARDINAL dioptres .

On DATE the applicant wrote a new complaint to the investigator . He asserted that over DATE of his detention he had not been taken out of his cell for outdoor exercise . As a result , his asthma had deteriorated , and he had to use his inhalation spray CARDINAL times a day , whereas in principle it should not be used more than twice a day .

As regards living essentials , the applicant insisted that the detention centre was not equipped with any bedclothes , mattresses or pillows . The ORG 's assertion that the applicant had refused to take the bedclothes “ as a sign of his disagreement with his arrest ” he qualified as a blatant lie . In the applicant 's words , if a detainee refused to take any objects for personal use provided by the detention centre , that fact was always recorded in a special register . He insisted that after his arrest he had not been provided with any bedding at all . Moreover , on DATE the police investigator PERSON had confiscated all his clothes ; the applicant had been left in the unheated cell in his underwear . Only in the evening of DATE had the applicant 's wife managed to provide him , through the head of the detention centre , PERSON , with a pillow , CARDINAL blankets and a jogging suit .

The applicant maintained his initial submissions that cell no . CARDINAL had been full of parasites . The inspection of that cell , referred to by the Government , had taken place on DATE , DATE after the applicant had been placed there , and DATE after he left that detention centre . Consequently , that inspection could not have revealed the real situation existing at the moment of the applicant 's detention . In support of his assertions the applicant referred to an article published in the DATE newspaper PERSON shortly after his arrest . In that article the applicant 's lawyer , PERSON , testified that in the morning of DATE he had visited his client ( the applicant ) in the detention centre in GPE . PERSON had said to a journalist : “ That night [ the applicant ] got lice and some other insects , they were crawling over him while we were talking . The cell where he is detained is so dirty that he can not even sit there . ”

In his initial submissions to the ORG the applicant described the conditions of his detention in LOC as follows :

“ In a cell measuring QUANTITY I 'm detained with CARDINAL other people , including CARDINAL mentally ill person ( schizophrenic ) . There is not enough space for sleeping and CARDINAL people have to sleep on the same bed . There are bugs , lice and cockroaches in the cell . The facility for walking is very small . CARDINAL people can scarcely fit in it , and it is impossible to breathe normally even during the walk because others are constantly smoking . I have bronchial asthma of medium severity and it has lately worsened . I have very severe chest pains . I sent a request for a medical examination to the investigator PERSON . , but he did not reply . The investigator also rejected my request for an eye test . Because of the shortage of spoons and mugs we have to use them in turns . I still can not obtain from the administration a spoon , a mug , and a bowl for my own use , or a bed sheet , a pillowcase or a blanket . ”

On DATE the applicant wrote a letter to ORG describing the conditions in the detention centres in ORG . He repeated his complaints about the overcrowding in the cell and the lack of living essentials available to the detainees . In his submission , on DATE the number of detainees amounted to CARDINAL people , and they had to take turns to sleep . The detainees slept on CARDINAL metal shelves stacked on top of each other , which were very short and uncomfortable . The mattress he was provided with looked like a filthy rag with stains of urine . The padding inside the mattress became so matted that it felt like sleeping on a pile of stones . Although the cell was full of lice , the administration did not provide the detainees with insecticides and prohibited their use in the cell . He was afraid of being infected with an insect - borne disease .

He also complained that on several occasions in the course of being transported to another detention centre or the court he had been placed in a very small room ( CARDINAL x QUANTITY ) without light , water or food . He had been kept in this room for TIME , without being able to stretch his legs while sitting . This room was not equipped with a lavatory , and , owing to the understaffing of the detention centre , the applicant had to wait TIME to be taken to the toilets .

According to the information provided by the Government , upon his arrival at detention centre ORG CARDINAL the applicant was examined by a doctor . The Government produced a medical certificate , issued by the prison administration , which stated that “ following a visual examination , no signs of bronchial asthma were detected ” . According to this certificate , the applicant had no asthma attacks during his detention and his eyesight did not deteriorate .

In the detention centre in LOC the applicant had been placed in cell no . CARDINAL , measuring QUANTITY , and allocated for former officials of ORG law - enforcement agencies . This cell was equipped with a lavatory , a shelf for storing foodstuffs , and a sink with hot and cold running water . During the applicant 's detention the number of his cellmates varied from CARDINAL . On DATE the administration of detention centre ORG CARDINAL carried out an inspection of this cell . The administration concluded : “ The sanitary condition of the cell is in accordance with established standards , the plumbing and water supply are operational , no synanthropic arthropods were detected . ”

The Government further indicated that the applicant had been provided with all living essentials . In support of this assertion , the Government produced a special register in which the administration of the detention centre recorded objects given to detainees . According to this register , on DATE ( DATE he was first transferred to the detention centre in LOC ) the applicant had received a mattress , a pillow , a blanket , a pillowcase , CARDINAL bed sheets , a bowl , a spoon and a mug . On DATE , when the applicant was transferred to the detention centre in LOC again , he had received the same objects . He had returned them to the administration on DATE .

The applicant produced medical certificate no . CARDINAL , issued on DATE by ORG . According to this document , the applicant had suffered from bronchial asthma of medium severity and had normal visual acuity . According to the applicant , upon his arrival at the detention centre in LOC he had been questioned by a doctor about his medical history . The applicant had complained of asthma attacks and the impairment of his eyesight ; in reply the doctor had said that he had no appropriate medication for treating asthma and that the applicant 's relatives should procure it themselves . He stated that the only examination he had undergone was a fluorography , and in those circumstances it was little wonder that the doctor had detected no signs of bronchial asthma .

In DATE the applicant repeated his request to be examined by an ophthalmologist , but received no reply . The applicant broke his tooth , because in the detention centre he was given only stale rye bread ; he sought to see a dentist but to no avail . Moreover , the administration refused to allow the applicant to be examined by a doctor invited by the NGO “ For Human Rights ” .

As regards conditions in cell no . CARDINAL , where he had been detained , the applicant challenged the account given by the Government . In his submissions , the cell measured QUANTITY and contained CARDINAL people , and never CARDINAL . The applicant named his cellmates who could confirm this fact . The cell had no shelves : instead , CARDINAL sleeping berths were used for storage of food and personal belongings of the detainees , their clothes , shoes and so on . Hot water was available only occasionally , and for very short periods of time , so the detainees had time only to wash crockery , underwear and bedclothes . There was no place to dry the linen , so the applicant had to sleep on wet bed sheets . The “ lavatory ” mentioned by the Government was in fact a hole in the floor of the cell , which was not separated from the living space , so the odour of faeces was very disturbing . After having used the toilet the inmates had to burn a piece of paper so the smoke attenuated the putrescent scent of faeces , but , at the same time , this caused the applicant severe headaches . The distance between the table at which the detainees ate and the “ lavatory ” was QUANTITY , and the washbasin was located just above it . The applicant admitted that on DATE the cell had been disinfected ; however , on DATE , when he had been placed there , it had been full of lice and fleas again . Apparently the parasites in the mattresses and bedclothes had escaped disinfection . During his detention in GPE , the cell had not been cleaned a single time .

Upon his arrival at the detention centre in LOC , the applicant had received a mattress and a bed sheet . In his submission , the mattresses given to the newly arrived inmates were not cleaned , even if their previous owners had suffered from tuberculosis or other contagious diseases . The applicant was not provided with a bowl , a mug or a spoon ; the administration had promised him to give the crockery as soon as it was available . He insisted that his signatures in the register produced by the Government were forged and that he had never received any crockery from the administration . Moreover , the register contained no information about the third period of the applicant 's detention in LOC , namely DATE and DATE , so there was no proof that the applicant had been provided with any living essentials at all during this period .

As regards the conditions and timing of his transfer to that detention centre , the applicant insisted that its administration had distorted the facts . Thus , according to the prison administration , on DATE he had arrived at the detention centre in LOC at TIME In fact he had arrived there at TIME and spent TIME in a humid room made of concrete , without food or light . The same had occurred on DATE .

The applicant produced written statements by a number of his cellmates concerning the conditions of detention at the detention centre in LOC in DATE and DATE . Thus , Mr GPE was detained in cell no . CARDINAL in DATE . Mr GPE confirmed that the cell had been heavily overcrowded : sometimes CARDINAL inmates were detained there . The cell - mates had to take turns to sleep and there was not even enough space to for all of them to sit down . Furthermore , the cell had been full of insects ( ticks , lice and cockroaches ) . Medical aid had been denied to the detainees .

The Government disputed those allegations . According to the ORG , cell no . CARDINAL complied with sanitary , epidemiological and hygiene standards . Each detainee had an individual sleeping berth , the plumbing and water supply systems were operational , and no vermin had been detected . The Government produced a written statement by Mr GPE of DATE , addressed to the chief officer of the detention centre . In that statement Mr GPE asserted that “ [ the applicant ] had his individual sleeping berth , ... he often complained about the regime of detention , reacted extremely negatively to the requirements of the administration [ of the detention centre ] , and always had conflicts with the officers of the special department ” .

Pursuant to LAW , the unlawful acquisition , transfer , sale , storage , transportation or carrying of firearms , basic parts of firearms , ammunition , explosives , or explosive devices is punishable by restraint of liberty for a term of DATE , or by arrest for a term of DATE , or by deprivation of liberty for a term of DATE , with a fine amounting to CARDINAL to CARDINAL times the minimum wage , or amounting to the wages , salary or any other income of the convicted person for a period of DATE , or without any fine ( paragraph CARDINAL ) . The same acts committed by a group of persons in a preliminary conspiracy , or repeatedly , are punishable by deprivation of liberty for a term of DATE ( paragraph CARDINAL ) .

Under LAW ( “ FAC for arresting a suspect ” ) of LAW ( “ the LAW ” ) , the police may arrest a person suspected of having committed an offence punishable by imprisonment if the person is caught in the act or immediately after committing the offence . No judicial authorisation of the arrest is required .

Pursuant to LAW ( “ FAC for releasing a suspect ” ) , within TIME from the time of the arrest , a suspect must be released if a measure of restraint in the form of custody has not been imposed on the person or a final decision has not been deferred by a court under LAW ( paragraph CARDINAL , subparagraph CARDINAL ) of the LAW . When imposition of custody as a measure of restraint is deemed to be necessary , an application must be lodged to that effect with a district court by a prosecutor or by an investigator or inquiry officer with the consent of a prosecutor .

Pursuant to LAW ( “ Taking into custody ” ) , taking into custody as a measure of restraint is to imposed by a court decision on a person accused or suspected of having committed an offence punishable under criminal law by imprisonment for a term exceeding DATE , if it is impossible to use a different , milder measure of restraint .

If a judge 's ruling to take the suspect into custody as a measure of restraint or to extend the custody period does not arrive within TIME from the moment of the arrest , the suspect must be released immediately , and the head of the custody facility in which the suspect is held must notify the inquiry agency or the investigator in charge of the proceedings in the criminal case and the prosecutor about such release . If a court finding or ruling exists that denies an investigator 's application to order a measure of restraint in the form of custody for a suspect , a copy of that ruling must be provided to the suspect when he is released .

By LAW ( “ FAC for imposing a measure of restraint ” ) , a court is empowered to impose a measure of restraint ( that is , custody ) on a suspect , provided that there are sufficient reasons to believe that the suspect ( CARDINAL ) might abscond during the inquiry , pre - trial investigation or trial ; ( CARDINAL ) might continue to engage in criminal activities ; or ( CARDINAL ) might threaten a witness or other participants in the criminal proceedings , destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case .

Under LAW ( “ Circumstances to be considered in imposing a measure of restraint ” ) , the circumstances to be taken into account when imposing a measure of restraint include , apart from those specified in LAW , the seriousness of the charges brought and the defendant 's personality , age , health , family status , occupation and other circumstances . The judge 's ruling is to be forwarded to the person who has lodged the application , the prosecutor , and the defendant ( suspect ) , to be executed immediately . Under LAW , a second application for a person to be taken into custody in the same criminal case after CARDINAL such application has been denied by a judge 's ruling may be lodged with the court only if new circumstances emerge that justify the need to take the person into custody . A judge 's ruling to take or not to take a person into custody may be appealed against to a higher court within DATE from the date on which the ruling was given . A judge of the appellate court ( кассационная инстанция ) must give a decision on such complaint or representation within DATE from the date of receiving it .

Pursuant to LAW , a special procedure is to be applied in criminal cases with respect to lawyers ( адвокат ) . By LAW ( “ Initiation of criminal proceedings ” ) , a prosecutor takes the decision to initiate criminal proceedings against a lawyer . Such a decision is subject to approval by a judge . LAW prohibits the arrest of MPs , judges , prosecutors and certain other categories of ORG officials , unless they have been caught at the scene of the crime . However , lawyers are not immune from “ arrest ” .

Under LAW ( “ Special features of imposing measures of restraint and conduct of individual investigative measures ” ) , if there was no court decision authorising the criminal prosecution of a lawyer , the court should give its authorisation for investigative measures to be taken in respect of the lawyer .

The Civil Code of GPE provides as follows :

“ CARDINAL . Damage caused to a citizen as a result of unlawful conviction , unlawful criminal prosecution , ... unlawful detention on remand ... shall be compensated at the expense of the ORG of GPE , and in the instances provided for by law , at the expense of the ORG of the subject of GPE ... in full , irrespective of the fault of the officials of the agencies ... ”

“ Compensation for non - pecuniary damage shall be made irrespective of the fault of the person causing the damage when :

... the damage is caused to a citizen as a result of his unlawful conviction , unlawful criminal prosecution , unlawful detention on remand ... ”

The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor ( that is , the ORG agency which decided to prosecute , detain etc . ) . However , the notions of “ unlawful ” prosecution or detention ( see LAW ) are not developed in the relevant provisions of LAW . Certain guidelines on this subject may be obtained from Decree No . CARDINAL-X of ORG of DATE , which concerns compensation for damage caused by the unlawful acts of law - enforcement agencies . For example , point CARDINAL of that Decree provides that an acquitted person has the right to obtain damages from the ORG ; the only exception concerns cases when the person was charged after making a false confession . Furthermore , in the case of PERSON ( published in the Bulletin of ORG , DATE г. , ORG , page CARDINAL ) , ORG of GPE used the following wording : “ ... unlawful attribution of criminal liability , namely when an acquittal judgment was given ... ” . These words , as well as the subsequent judicial practice , suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “ unlawful ” as such . Therefore , if there was an acquittal , detention on remand would be “ unlawful ” even if all the substantive and procedural rules were complied with when it had been imposed .


Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

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

NORP On an unspecified date , the applicant , a former policeman , instituted civil proceedings against his ex - employer , ORG ( “ the Ministry ” ) , seeking payment of salary arrears .

By a final judgment of DATE , ORG ordered ORG to pay the applicant an amount of CARDINAL NORP lei ( MDL ) ( MONEY ( ORG ) at the time ) in salary arrears and LAW ( ORG CARDINAL ) for his lawyer ’s fees : a total equivalent to ORG .

NORP The amount of MDL CARDINAL represented the difference between the sum which had been effectively paid to the applicant for forced absence from work for DATE ( MDL CARDINAL ) and the sum to which he was entitled according to the law ( MDL CARDINAL ) . ORG also ordered the Ministry to calculate and pay the applicant an additional compensation ( premiul - recompensă ) for a period of work from DATE to DATE .

On DATE and DATE the applicant unsuccessfully sought a reopening of the proceedings which had ended in the final judgment in his favour .

According to the applicant , the final judgment in his favour has not been enforced to date .

NORP The applicant claims that in DATE he lodged a court action before ORG , seeking restitution of nationalised property , which had been previously owned by his family . According to him , ORG did not examine his claim until DATE . The outcome of these proceedings is unknown .

On an unspecified date , the applicant challenged a decision taken by the local authorities to refuse to issue him with a building permit .

By a final judgment of DATE , ORG ( PERSON a GPE ) rejected his claim as ill - founded .

By a judgment of ORG ( PERSON ) of DATE the applicant was awarded MDL CARDINAL ( ORG CARDINAL,CARDINAL ) in damages for unlawful dismissal . This judgment was confirmed by a final judgment of ORG on DATE .

The applicant submitted documents , according to which he had initiated several sets of civil proceedings DATE , in addition to those summarised above . According to the submitted invoices , he regularly paid his representatives’ fees . Thus , he paid to different lawyers , respectively , MDL CARDINAL ( approximately EUR CARDINAL ) in DATE , MDL CARDINAL ( approximately EUR DATE ) in DATE , MDL CARDINAL ( approximately EUR CARDINAL ) in DATE , MDL CARDINAL ( approximately ORG CARDINAL ) in DATE and ORG CARDINAL ( approximately ORG CARDINAL ) DATE . These payments amounted cumulatively to MDL CARDINAL ( approximately EUR CARDINAL ) .

During DATE the applicant started to build a decorative fence around his property . According to the invoices , he paid MDL CARDINAL ( approximately EUR CARDINAL ) for the construction materials and MDL CARDINAL ( EUR CARDINAL ) to the contractors .

Finally , the applicant claimed in his just satisfaction claims that he had paid ORG CARDINAL,CARDINAL in fees to his representative before the ORG . He did not ask the ORG for legal aid .

The relevant domestic law has been set out in GPE v. GPE ( no . MONEY , ECHR CARDINALIII ( extracts ) ) .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in LOC . She was represented before the ORG by Mr PERSON , a lawyer practising in LOC . The respondent Government were represented by Mr P. Laptev and PERSON , former Representatives of GPE at ORG .

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

On DATE the police arrested a person codenamed by the authorities “ Fyodor ” for possession of drugs . The arrest was conducted in the presence of CARDINAL lay witnesses , PERSON and PERSON Fyodor ” submitted that he had bought the drugs from the applicant DATE and agreed to participate in a test purchase organised by the police .

On DATE “ Fyodor ” bought drugs from the applicant . She was arrested on the spot in the presence of CARDINAL lay witnesses , PERSON and Mr S. , and the marked money given to her by “ Fyodor ” for the drugs were found on her . On DATE she was charged with drug trafficking .

During the investigation “ Fyodor ” testified that he had purchased the drugs from the applicant on DATE and DATE . PERSON , PERSON , PERSON PERSON , and PERSON also gave written depositions to the investigator , describing the circumstances of “ PERSON ’s ” and the applicant ’s arrests .

As neither of the witnesses appeared at the hearing , the prosecutor requested the court ’s permission to read out their statements . The applicant and her counsel did not object and the ORG statements made during the pre - trial investigation were read out .

On DATE ORG of GPE found the applicant guilty of drug trafficking on DATE and sentenced her to DATE and CARDINAL months’ imprisonment with forfeiture of estate . The conviction was based on the pre - trial testimonies of “ Fyodor ” and the lay witnesses , and the material evidence , including the marked money found on the applicant .

The applicant appealed . It follows from the summary made by the appeal court that she protested her innocence , alleged that the investigation had been procedurally flawed and complained about inaccurate assessment of evidence by the trial court .

On DATE ORG upheld the conviction on appeal . The applicant and her counsel were absent , while the prosecutor attended the hearing and pleaded before the court .

On DATE a deputy Prosecutor General lodged an application for supervisory review with the Presidium of ORG . He submitted that ORG had infringed the applicant ’s right to attend the appeal hearing .

On DATE the ORG of ORG granted the prosecutor ’s application , finding that the failure to bring the applicant before the appeal court had violated the rights of the defence . It quashed the appeal judgment of DATE and remitted the case for a fresh examination before ORG .

On DATE ORG held a new appeal hearing and upheld the conviction . Counsel for the applicant attended the hearing .


Remainder inadmissible;No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education)

Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

NORP The applicants’ particulars are set out in the table in the appendix .

On DATE PERSON failed the entrance examination to study at ORG in GPE . In DATE CARDINAL students sat this examination and there were CARDINAL places available . She failed the examination again in DATE and DATE .

On DATE the first applicant and other students lodged a complaint with the President of the Republic alleging that PERSON no . ORG , in particular the CARDINAL binding criteria used by ORG to set the number of students allowed admission to the relevant faculty of each university ( see paragraph CARDINAL below ) , was incompatible with LAW establishing ORG , Directive CARDINAL/CARDINAL/CE on the recognition of professional qualifications , LAW , LAW on ORG , with regard to the principle of equality , and LAW . She further contested both the ORG ’s decision to impose the same limitations on private universities and the adequacy of the entrance examinations . The first applicant also asked to be provisionally admitted to the university under a conditional clause .

By a decree of DATE ORG ( PERSON ) rejected her request for an interim measure .

On DATE the first applicant made further pleadings and reiterated her request for the matter be submitted to ORG ( the “ ECJ ” ) for a preliminary ruling . Her pleadings were transmitted to ORG in DATE .

By a decree of DATE ( no . CARDINAL ) , adopted on the basis of ORG advisory opinion delivered on DATE and notified to the first applicant on DATE , the President of the Republic rejected the complaints . The decree stipulated that , bearing in mind the human and material resources of the universities , the contested admission restrictions , allowing entrance only to the most meritorious students , were reasonable and therefore compatible with the provisions of ORG ( ORG ) invoked . Moreover , in line with the increase in society ’s need for qualified doctors , admissions to the faculties of medicine in DATE had increased by PERCENT . It noted that the professional examination , after a degree had been obtained , was not an academic title in itself but a ORG examination like those held in most GPE . Lastly , it dismissed the allegation that the entrance examination ’s content was inadequate .

The other CARDINAL applicants had been or are still working as dental technicians or hygienists for DATE .

On DATE , despite their relevant professional experience , those CARDINAL applicants failed the entrance examination to study at ORG . Any preceding and subsequent attempts were also unsuccessful .

Mr PERSON ( hereinafter “ the eighth applicant ” ) had nevertheless passed the entrance examination in DATE . However , following his failure to sit examinations for DATE on account of serious family problems ( as provided for by the relevant University Rule , under LAW no . CARDINAL/CARDINAL ) , he lost his student status in DATE .

These applicants conceded that they had not pursued available domestic remedies , since in their view they would have been ineffective . According to the well - established jurisprudence of ORG , limited access to universities is compatible with the LAW and ORG law ( see , amongst others , the above - mentioned advisory opinion of DATE ) . The eighth applicant also argued that ORG had constantly held that subjective reasons , such as family problems ( as in his case ) , could not be considered as exceptions to the rule favouring continuity of studies . In consequence , his claim would not have been successful .

Law no . CARDINAL , amending section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL , introduced , for the first time , a numerus clausus ( limited access ) to both public and private NORP universities . Section PERSON ) of that PERSON provided that it was for ORG to establish those limits . However , the PERSON did not establish or set clear criteria to determine the faculties subject to restrictions , the number of available places or the selection procedure .

On DATE ( judgment no . CARDINAL/CARDINAL ) , having been asked to examine the constitutionality of section PERSON ) of PERSON no . CARDINAL , ORG delivered a judgment upholding the constitutionality of that PERSON . It considered that the discretion exercised by ORG was not unfettered , since it must act according to an established legal framework . In this connection , in the absence of national legislation on the matter , ORG made reference to relevant ORG directives which aimed to ensure an adequate standard of education . The court further noted that it was for ORG to rule on the subject .

Following ORG judgment , PERSON no . ORG was enacted . It provided that ORG would establish the entrance quota of ORG , ORG on the basis of CARDINAL binding criteria : the capacity and resource potential of the universities , and society ’s need for a particular profession ( fabbisogno di professionalità del sistema sociale e produttivo ) . Based on that assessment , ORG would set the number of students allowed admission to the relevant faculty of each university .

On DATE ORG ( PERSON della ORG – “ the ORG ” ) issued a recommendation on the criteria for admission to ORG . The ORG noted that : ( a ) in practice , the CARDINAL criteria established by the PERSON were applied on the basis of the observations of ORG and ORG , and ( b ) any data gathered would be discussed by an expert task force , composed , inter alia , of representatives from ORG and ORG and Dentists .

In the ORG ’s view , ORG were acting in breach of ORG judgment ( see paragraph CARDINAL above ) and ORG law , in so far as the PERSON took into account not only educational standards but also data concerning occupational demand . Noting that the assessments were made with exclusive regard to the occupational demand of ORG , the ORG concluded that limiting admission to ORG amounted to an unreasonable restriction of competition in professional services . Indeed , by considering only public demand , to the exclusion of any private demand , the number of dentists was artificially reduced and dental fees were unjustifiably increased . Furthermore , the ORG disapproved of the participation of professional associations in the above - mentioned task force , in so far as their decisions might be highly influenced by their own interests .

To be admitted , candidates were required to pass a multiple - choice examination consisting of CARDINAL questions on general culture ( including international geography and history ) , biology , chemistry , mathematics and physics . The examination , based on the high school syllabus , aimed to test the candidates’ aptitude for the subject matter pertaining to the faculty of their choice .

NORP The relevant domestic courts repeatedly found that a numerus clausus and the way in which it was applied in the NORP legal framework were in accordance with both LAW and ORG legislation . Judgments in support of those findings include , inter alia : judgments no . DATE of DATE , no . CARDINAL of DATE , and no . CARDINAL of DATE of ORG ; judgment no . CARDINAL of ORG of DATE ; judgment no . DATE of ORG ; judgment no . DATE of ORG of DATE ; judgment no . CARDINAL of ORG of DATE ; and judgment no . CARDINAL of ORG of DATE .

In particular , in respect of the ORG claim that the criterion related to society ’s need for a particular profession should not be limited to the national territory – to the exclusion of the current and imminent future needs of the entire NORP Community – ORG held , in its judgment no . DATE of DATE , that it was evident that the major determining criterion was that based on the capacity and resource potential of universities , which allowed for proper scientific training as required by ORG legislation . As had previously been upheld by ORG ( judgment no . CARDINAL of DATE ) , the right to higher levels of education , even for the most meritorious students , depended on the availability of technical means and human resources , particularly in the study of sciences , which was both theoretical and practical . Indeed , ORG legislation did not ban numeri clausi . NORP directives provided for the recognition of titles and degrees based on standards of minimum studies and guarantees of a real possession of the necessary knowledge to carry out a profession . However , they left it to individual GPE to determine the instruments , means and methods to fulfil the obligations set by those directives . The criterion relating to society ’s need for a particular profession carried less weight than the capacity and resource criterion , and was indeed secondary . It would come into play in the unlikely event that availability was so abundant that it would be necessary to limit access to the profession to avoid saturating the market . With reference to a recommendation by ORG to limit the number of registered students ( which formed the basis of the decision on the number of places available for DATE ) , the court considered that it was to be seen as a quantitative restriction not in view of society ’s needs , but in the light of a need to ensure that specialised studies reached NORP standards . Given that the relevance of this criterion to the decision on the number of candidates to be registered DATE had not been proven , and because ORG law did not provide for unlimited and unconditional access to education for students , it was not necessary to refer the matter to the ECJ .

According to ORG judgment no . DATE , the DATE time - limit indicated in decree no . DATE is not a prescriptive period which can be interrupted , but the maximum time before the right ( to attend the course ) lapses .

DATE ( former LAW relates to the free movement of persons , services and capital of LAW establishing ORG . It reads as follows :

“ CARDINAL . Freedom of movement for workers shall be secured within the Community .

Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member GPE as regards employment , remuneration and other conditions of work and employment .

It shall entail the right , subject to limitations justified on grounds of public policy , public security or public health :

( a ) to accept offers of employment actually made ;

( b ) to move freely within the territory of Member GPE for this purpose ;

( c ) to stay in a Member ORG for the purpose of employment in accordance with the provisions governing the employment of nationals of that ORG laid down by law , regulation or administrative action ;

( d ) to remain in the territory of a Member ORG after having been employed in that ORG , subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission .

The provisions of this Article shall not apply to employment in the public service . ”

Other relevant ORG texts include : Council Directive CARDINAL/CARDINAL/EEC of DATE on specific training in general medical practice ; Council Directive CARDINAL of DATE on facilitating the free movement of doctors and the mutual recognition of their diplomas , certificates and other evidence of formal qualifications ; and Council Directive CARDINAL/CARDINAL/EC of DATE on the recognition of professional qualifications .