ADZI-SPIRKOSKA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

The applicants , PERSON ( “ the first applicant ” ) , PERSON Straso Gorgieski ( “ the second applicant ” ) , PERSON FAC ( “ the third applicant ” ) , PERSON ( “ the fourth applicant ” ) and PERSON PERSON PERSON ( “ the fifth applicant ” ) , are NORP nationals who were born in DATE , DATE , DATE , DATE and DATE respectively and live in NORP and GPE . The third and fourth applicants died on DATE and CARDINAL DATE respectively . PERSON , the daughter of the third applicant , and PERSON and PERSON , the daughters of the fourth applicant , have applied to continue the application in the name of their predecessors and designated the same counsel to represent them . For the sake of convenience , they will be referred to as “ the successors of the third and fourth applicants ” . The first applicant , a qualified lawyer from NORP , was granted leave to represent the second , third and fourth applicants . The fifth applicant was represented by Mr PERSON , a practising lawyer from GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

In DATE the confiscation commission of the city of GPE , the body with authority at the time , confiscated CARDINAL plots of undeveloped building land from the ORG late predecessors in order to construct residential buildings .

On DATE the first , second , third and fourth applicants instituted restitution proceedings in which they sought restoration of title to the land that remained undeveloped and compensation in return for the remainder . CARDINAL decisions have been given so far , including CARDINAL decisions by ORG on appeals on points of law ( тужба за управен спор ) by the applicants . The most recent decision was given on DATE , when the restitution commission accepted the ORG claim and awarded compensation in return for the confiscated land . The applicants challenged this decision before ORG . The proceedings are still pending .

In DATE the fifth applicant brought a civil action against his former employer , seeking compensation for injuries sustained while at work . In DATE ORG , deciding upon appeals on points of law , ruled partly in favour of the applicant and awarded him compensation for the non - pecuniary loss sustained . The proceedings are still pending before ORG in respect of the applicant ’s claim for pecuniary damage ( “ the compensation proceedings ” ) .

On DATE the fifth applicant requested ORG to find a violation of the “ reasonable time ” requirement in respect of the compensation proceedings and to award just satisfaction . On DATE ORG found that the compensation proceedings had lasted too long and that they had not yet ended . It set a DATE time - limit for ORG to decide on the applicant ’s claim on the merits . It also awarded him compensation in the amount of MONEY ( ORG – equivalent to MONEY ( ORG ) ) as just satisfaction for the violation found . It further reimbursed the costs and expenses incurred in the course of these proceedings . The fifth applicant did not appeal against the decision . It became final on DATE . The amount awarded was paid to the fifth applicant .

Under section CARDINAL(CARDINAL)(CARDINAL ) of LAW , ORG is competent to decide on appeals against decisions of its panels when so specified by law . Under section CARDINAL ) , ORG is competent to decide on length complaints in proceedings specified by law .

Section CARDINAL of the CARDINAL Act provided that an interested party could apply to the immediately higher court ( непосредно повисокиот суд ) if he or she considered that there had been a breach by a competent court of the right to a hearing within a reasonable time . The immediately higher court was to deal with the length complaint ( постапува по барањето ) within DATE after the application had been lodged and to decide whether the court below had breached the right in question . The higher court would award just satisfaction to the claimant if it found a violation of the right to a hearing within a reasonable time . The just satisfaction was payable from the court ’s budget .

LAW became applicable on DATE ( section CARDINAL ) .

Section CARDINAL of the CARDINAL Act supplements section NORP ) of LAW , and provides that ORG is to decide in accordance with the rules and principles specified in LAW and the ORG ’s case - law .

Section CARDINAL of the CARDINAL Act amends section CARDINAL of LAW , providing for the exclusive competence of ORG to determine length - of - proceedings cases . The relevant part of this section reads as follows :

“ An interested party can use the length remedy while proceedings are pending , but not DATE after the decision becomes final .

The length complaint shall contain :

- information about the claimant and his or her representative ,

- information about the case and proceedings complained of ,

- an indication of the reasons for the alleged violation of the right to a hearing within a reasonable time ,

- any claim for just satisfaction and

- the signature of the claimant .

The ORG shall consider a length complaint meeting the criteria specified in subsections ( CARDINAL ) and ( CARDINAL ) within DATE after it has been lodged and shall decide whether the court below breached the right to a hearing within a reasonable time . In so doing , it shall take into consideration the rules and principles set forth in ORG , in particular the complexity of the case , the parties’ behaviour and the conduct of the court in question .

If ORG finds a violation of the right to a hearing within a reasonable time , it may set a time - limit for the court before which the impugned proceedings are pending to determine the right , obligation or criminal responsibility of the claimant and award just satisfaction for the violation found .

Just satisfaction is to be paid within DATE after ORG decision becomes final . ”

Section CARDINAL of the CARDINAL Act adds a new section CARDINAL-a , which reads as follows :

“ After receiving the length complaint , ORG shall immediately , or within DATE at the latest , request the first - instance court to forward the case file to it , and if need be , request the higher court to indicate the reasons for the length of the proceedings pending before it .

A CARDINAL - judge panel of ORG , sitting in private , shall decide on the length remedy . In exceptional cases , ORG may hear representations from the claimant and from the representative of the court concerned .

Within DATE after receipt , the party concerned may appeal against the panel ’s decision before ORG , which shall decide in accordance with section CARDINAL(CARDINAL)(CARDINAL ) . ”

LAW entered into force DATE after being published in ORG ( section CARDINAL ) .

Section CARDINAL of this Act adds a new section CARDINAL-b , by which ORG must forward a copy of its decision , DATE after its adoption , to ORG . The latter must request the claimant , within DATE at the latest , to submit personal bank account details with a view to receiving payment of the just satisfaction awarded by ORG . If the claimant does not submit the required information within DATE , the amount awarded is to be deposited in a special account of ORG . It is to be transferred to the claimant ’s bank account once the latter has submitted the required information . If the claimant does not submit the relevant account details within DATE after the amount was deposited with ORG , the money is to be returned to the ORG ’s budget .

The ORG budget is an DATE assessment of the assets and liabilities of the judiciary and the ORG for training of judges and public prosecutors ( “ the ORG ” – section CARDINAL ) . The ORG budget is managed by ORG ( section CARDINAL ) . The latter is chaired by the President of ORG . It is further composed of the Minister of ORG , the Presidents of ORG , ORG and CARDINAL courts of first instance and the Director of the ORG ( section CARDINAL ) .

In view of the ORG ’s decision in GPE and Others v. the former GPE ( ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE ) , the “ length - of - proceedings ” department of ORG adopted the following recommendations :

a ) expedite proceedings before ORG in length - of - proceedings cases and keep their length DATE , as specified in the CARDINAL Act ;

b ) award just satisfaction in an amount corresponding to the violation found , so that the claimant loses victim status ;

c ) organise ORG in such a way that it fully applies the ORG ’s case - law ;

d ) comply fully with the ORG ’s case - law as regards the amounts awarded by way of just satisfaction in length cases ; in this connection ORG established that the award should not be PERCENT of the sum awarded by ORG in similar cases ; and

e ) comply fully with the orders issued by ORG in cases in which it finds a violation of the “ reasonable time ” requirement , namely payment of just satisfaction and observance of the time - limit that it sets for the courts in question to determine the case on the merits .

According to statistics produced by ORG in DATE , CARDINAL length - of - proceedings cases have been brought before that court since the CARDINAL Act entered into force . The court has examined CARDINAL cases , including CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL until DATE .

A violation of the “ reasonable time ” requirement has been found in CARDINAL cases , including CARDINAL cases in DATE , CARDINAL cases in DATE and CARDINAL in DATE . Since DATE , CARDINAL cases have been decided to the claimants’ significant advantage . These cases have concerned the length of civil , criminal , minor - offence , administrative , insolvency and enforcement proceedings . Decisions on the merits dismissing length complaints have been rendered in CARDINAL cases . ORG has further rejected CARDINAL length cases as failing to comply with the admissibility requirements .

Appeal proceedings have been instituted in CARDINAL cases . The second - instance panel of ORG has given a decision in nearly all those cases . It has allowed the appeals and awarded compensation in a higher amount than that awarded at first instance in CARDINAL cases ; it has dismissed appeals in CARDINAL cases and rejected them in CARDINAL cases .

In CARDINAL cases the length of proceedings before ORG relating to the length remedy has been DATE ; in CARDINAL cases , the proceedings have lasted DATE ; in CARDINAL cases , they have lasted DATE , in CARDINAL cases DATE and in CARDINAL cases DATE . In CARDINAL of the CARDINAL cases decided so far in DATE , the proceedings before ORG have lasted DATE and in CARDINAL cases they have lasted not DATE .

ORG has awarded just satisfaction in CARDINAL cases . The total amount awarded in these cases is equivalent to ORG CARDINAL,CARDINAL . Since DATE , the court has awarded compensation in CARDINAL cases , the total amount of which is approximately EUR CARDINAL . Of the total amount awarded , EUR CARDINAL,CARDINAL has so far been paid to the claimants . In CARDINAL cases the compensation was paid within DATE from the date on which ORG decision awarding compensation had become final ; in CARDINAL cases the award was paid with a delay of DATE ( in CARDINAL cases the delay was attributable to the ORG ) ; in CARDINAL cases the payment was made with a delay of DATE ; in CARDINAL cases there was a DATE delay ; in CARDINAL cases the payment was made with a DATE delay and lastly , in CARDINAL cases the award was paid with a delay of DATE . In CARDINAL cases the delay was attributable to the claimants .

Finally , in CARDINAL cases , CARDINAL of which were decided in DATE , ORG has also set a deadline of DATE for the courts in question to determine the parties’ claims in the substantive proceedings . In CARDINAL cases the courts concerned have complied with ORG order .


MARSIKOVA AND MARSIK v. THE CZECH REPUBLIC

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

The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in ORG nad GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

On DATE the first applicant bought a car from company NORP , with a DATE guarantee . In DATE she claimed that there were defects in the car and withdrew from the purchase , but company NORP was not willing to resolve the matter by a friendly settlement .

On DATE the first applicant brought an action against company NORP before the GPE - venkov ORG ( okresní soud ) .

On DATE the second applicant joined the proceedings , the car having actually been purchased by both spouses .

On DATE ORG decided in the applicants’ favour .

Meanwhile , bankruptcy proceedings had been initiated against company ORG judgment could not become final and the civil proceedings remain pending before the first instance court .

On DATE the applicants applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended . It appears that the compensation proceedings are still pending .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


The applicants , ORG and PERSON , are GPE nationals , born in DATE and DATE respectively and living in NORP , GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON of ORG , GPE .

The applicants are Romany gypsies .

DATE and DATE , they were tenants in conventional housing in ORG , in west GPE .

On or about CARDINAL DATE , they took up residence on their own land to the north west of FAC , GPE , GPE , in CARDINAL caravans with their CARDINAL children .

On DATE , the applicants lodged a retrospective planning application for the stationing of a residential caravan on their land . ORG ( “ the Council ” ) refused the application . On DATE and CARDINAL DATE , the ORG issued enforcement and stop notices .

The applicants appealed against the refusal of planning permission and against the enforcement notices . Those appeals were dismissed on DATE . In his decision of that date , the Inspector who had held a public planning inquiry , found that the development eroded the very rural character of the area and harmed the environment . He extended the period of compliance from DATE to DATE noting that it would not be in the interests of the children to be uprooted from school within the usual DATE period .

On DATE , the applicants pleaded guilty to the offence of failing to comply with the stop notice . The first applicant was fined MONEY ( GBP ) and ordered to pay costs of GBP CARDINAL . The second applicant was conditionally discharged . On appeal , the first applicant 's fine was reduced by ORG to GBP CARDINAL and the costs order quashed .

On DATE , the applicants submitted a second application for planning permission , which was refused by the ORG .

In DATE , the applicants enquired about housing with the ORG and homelessness application forms were sent to them . They were advised of a vacancy on ORG . This vacancy was again notified on DATE and on DATE a housing officer visited the applicants ' land and offered them the pitch on the PERSON site . The applicants refused . On the applicants ' evincing interest in housing options , the ORG offered to them on DATE a CARDINAL bedroomed property at Mangravet .

On DATE , the applicants ' appeal against the refusal of planning permission was dismissed after a public Inquiry by ORG . The Inspector found the site constituted sporadic development in open countryside and was detrimental to the appearance of the rural area . He noted that the second applicant had been offered , but had declined , a site on a public site in the FAC district and was not satisfied that he would be led into breaking the law if planning permission was not granted .

On DATE , the ORG issued proceedings in the High Court claiming an injunction , restraining the applicants , inter alia , from stationing caravans and continuing residential occupation on their land . An ex parte injunction was granted on DATE , restraining the applicants from stationing caravans on their land .

On DATE , ORG adjourned the injunction proceedings . The ORG subsequently withdrew the proceedings .

By letter dated DATE , the ORG informed the applicants that it was considering exercising its powers under section CARDINAL of ORG DATE . In DATE , the applicants enquired of the ORG as to the possibility of housing in NORP .

On DATE , the applicants made a third application for planning permission which was refused in or DATE . The applicants appealed .

On DATE , the ORG offered the applicants a CARDINAL bedroomed house in GPE . The applicants refused .

On DATE , the ORG sent a letter to the applicants ' solicitors stating that the applicants had refused an offer of housing and that the ORG would proceed shortly to action under section CARDINAL . On DATE , the ORG evicted the applicants from their land pursuant to their powers under section CARDINAL . They again offered the applicants the possibility of moving to the house in GPE . The applicants refused .

Having nowhere else lawfully to station their caravans , the applicants moved their caravans onto the village green at NORP . This was an area of public amenity owned by ORG , including a childrens ' play area and equipment . Complaints were made by local residents inter alia concerning the coming and going of vehicles over the pavement and close to the childrens ' play area .

On DATE , the ORG served the applicants with a direction under LAW of ORG LAW DATE . The applicants complied with the direction , removing themselves from the green . They stationed their caravans on the unmade roadway leading to the village hall , which was also land owned by ORG . A further direction was served under LAW on DATE . The applicants complied with the order and moved to a car park in the centre of the village owned by a local firm and used as the main village car park by shoppers and visitors to the village . On DATE , the site owners decided to close the car park for reasons of public safety . This caused problems of congestion and traffic difficulties . A third direction under LAW was served on the applicants on DATE , following which they moved to GPE . When a travelling circus arrived with permission to camp , the applicants left voluntarily and moved onto land adjoining LOC . The ORG received a complaint from the owner who said that he had not given permission . They took no action however as there were no issues of public safety involved . On DATE , complaints were received that the applicants had moved back onto FAC . On inspection the ORG found that there were CARDINAL other families with the applicants , and that CARDINAL caravans , CARDINAL transit vans , a pickup truck , a CARDINAL wheel drive vehicle and a horsebox were stationed on the land . On DATE , a direction under LAW was issued , forcing them to move on .

They were prevented from returning to their land by another court injunction obtained by ORG on DATE .

The applicants applied for leave to apply for judicial review of the ORG 's decision to take steps to secure compliance with the enforcement notices . Shortly before the hearing listed for DATE , the ORG offered to treat the applicants as being unintentionally homeless persons to whom they owed a duty under LAW DATE . The applicants were advised by their counsel and solicitors that there were minimal prospects of success in pursuing their application for judicial review and that ORG would cease to fund their application . In view of their lack of any viable alternative , the applicants reluctantly withdrew their application .

The ORG offered the applicants a CARDINAL bedroom flat which was available . The applicants did not consider that this was suitable accommodation . The applicants went to live in their caravan in the small rear garden of a relatives 's house in GPE .

On DATE and DATE , ORG held a public inquiry into the applicants ' outstanding application for planning permission for their land . He had visited the site and also the applicants ' present abode which he described as unsatisfactory for both the family and their neighbours although it allowed the children to continue with their schooling . The Inspector noted that the applicants ' land had highway access and that the development would not harm existing housing . While due to the hollow in the ground the development would be less obvious than on the previous site , he found that it would nonetheless form an intrusive feature and would harm the character of appearance of the rural landscape . He noted that the applicants had purchased the land encouraged by Government policy and that it was necessary , partly for health reasons , to find a more satisfactory location for the family . While he acknowledged that gypsies were a special case and sites for residence could be acceptable in some rural locations , he was not satisfied that their case was so overriding as to outweigh the development plan policy requirement to protect the countryside in this particular location . He dismissed the appeal .

The applicants bought a house in NORP and are now resident there .

ORG as amended by ORG DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .

The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG 's decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

Again there is a further right of appeal on a point of law to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector 's decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

New guidance on gypsy sites and planning , in the light of LAW , was issued to local authorities by the Government in Circular CARDINAL/CARDINAL ( DATE ) .

Councils were told that :

“ In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . ” ( paragraph CARDINAL )

However :

“ As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies . ... ” ( paragraph CARDINAL ) .

It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted , for example Areas of Outstanding Natural Beauty or Sites of Special Scientific Interest . Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt ( paragraph CARDINAL ) .

Further guidance issued by the Secretary of ORG dated DATE concerned the unauthorised camping by gypsies and the power to give a direction to leave the land ( LOC above ) . Paragraphs CARDINAL - CARDINAL required local authorities to adopt “ a policy of toleration towards unauthorised gypsy encampments ” :

“ CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating gypsies ' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water . ...

Where gypsies are unlawfully camped on Government - owned land , it is for the local authority , with the agreement of the land - owning ORG , to take any necessary steps to ensure that the encampment does not constitute a hazard to public health . It will continue to be the policy of the Secretaries of ORG that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance .

The Secretaries of ORG continue to consider that local authorities should not use their powers to evict gypsies needlessly . They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land . ”

Paragraphs CARDINAL further require local authorities to consider their obligations under other legislation before taking any decisions under LAW . These obligations include their duties concerning pregnant women and newly - born children , the welfare and education of children and the housing of homeless persons . In a judgment of CARDINAL DATE ( NORP v. ORG , ex parte Atkinson , NORP v. ORG , ex parte GPE and NORP v. ORG , ex parte GPE , unreported ) , ORG held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages .

Section CARDINAL of ORG LAW DATE ( “ the DATE LAW ) gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as

“ a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner 's consent ” .

Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a magistrates ' court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .


Violation of P1-3;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

In DATE , DATE after the fall of the communist regime , ORG introduced the CARDINAL Access to Documents of the Former ORG and the Former ORG of the General Staff Act ( “ the LAW ” – see paragraph CARDINAL below ) , providing for , inter alia , the names of individuals who had worked for or collaborated with certain agencies mentioned in the LAW ( “ the former ORG security agencies ” ) to be disclosed . This task was entrusted to a special commission ( “ the ORG ” ) , which had to gather information in the archives of these agencies and on the basis of that information publish reports containing the names of the individuals who had worked for or collaborated with them .

In the runup to the parliamentary elections on DATE , in response to debate concerning the participation of individuals who had allegedly collaborated with the former ORG security agencies , a clause – section ORG ) DATE was included in the newly adopted DATE Election of Members of LAW allowing parties or coalitions which had nominated such persons to withdraw their nominations on the basis of information indicating that they had collaborated with the former ORG security agencies ( see paragraph CARDINAL below ) .

On DATE ORG – the body overseeing the electoral process – decided that the relevant information could be provided by ORG either through the reports it was supposed to prepare or through certificates issued by it . On the basis of these documents and of a request by the party or coalition concerned , the relevant regional electoral commission could annul the candidate ’s registration under the abovementioned section ORG ) . The party or coalition had to nominate a replacement not DATE before the date of the elections .

In a final judgment of DATE ORG , acting on an application from the Coalition for GPE , one of the groups contesting the upcoming parliamentary elections , declared ORG decision of DATE null and void in so far as it provided for collaboration with the former ORG security agencies to be established on the basis of certificates issued by ORG . It held that the only lawful means of establishing that an individual had collaborated were the reports to be drawn up by ORG . ORG could issue only the documents provided for by law . In deciding that it could also issue certificates proving collaboration with the former ORG security agencies , ORG had acted ultra vires , and its decision was therefore null and void .

All CARDINAL applicants were registered as candidates in the parliamentary elections to be held on DATE . They ran on the ticket of ORG , a coalition established in DATE . Prior to the election they were struck off the lists of candidates on account of allegations , based on certificates issued by ORG , that they had collaborated with the former ORG security agencies . The decisions to strike them off the lists were subsequently declared null and void by ORG . However , the electoral authorities did not restore their names to the lists , and as a result they could not run for ORG .

NORP The specific circumstances of each applicant are described below .

Mr PERSON was nominated as a candidate for ORG and registered as such on CARDINAL DATE .

On DATE ORG , relying on section PERSON ) of the DATE Election of Members of LAW and ORG decision of DATE ( see paragraph CARDINAL above and paragraph CARDINAL below ) , requested the annulment of PERSON registration . It did so on the basis of a certificate issued by ORG to the effect that he had collaborated with the former ORG security agencies .

In a decision of DATE ORG annulled PERSON registration . It relied on the request made by ORG and the certificate issued by ORG .

In a decision of DATE ORG refused to examine Mr PERSON ’s appeal against ORG decision . It reasoned that under section PERSON ) of the DATE Election of Members of LAW , a party or coalition could request annulment of the registration of its candidates if information was revealed indicating that they had collaborated with the former ORG security agencies . Each party or coalition could freely assess the facts establishing the existence of such collaboration , and their assessment was not subject to review by the electoral authorities . The purpose of the law was to allow the party or coalition to nominate only candidates of impeccable moral standing . Since a candidate could withdraw his candidacy , it was logical for a party or a coalition to be able to withdraw it as well . Furthermore , it was not open to candidates themselves to challenge the electoral authorities’ decision in the matter .

On DATE , the day of the elections , after unsuccessfully requesting ORG to reconsider its position , Mr PERSON lodged an application for judicial review with ORG . In a judgment of DATE a threemember panel of that court set aside ORG decision and declared ORG decision null and void . It found that not only the parties and coalitions but also the candidates themselves had standing to seek review of the electoral authorities’ decisions to strike them off the lists . It went on to hold that , while section CARDINAL ) of the DATE Election of Members of LAW expressly provided for judicial review of some of ORG decisions , this did not mean that the decisions not expressly mentioned therein were not subject to such review , in view of the general rule that judicial review of administrative decisions could be limited only by statute , which was not the case here . It further held that ORG had erred in accepting that these decisions fell within the regional ORG discretion . Under section CARDINAL(CARDINAL ) of the abovementioned LAW , the striking of a candidate off the list had to be predicated on information to the effect that he or she had collaborated with the former ORG security agencies . In the absence of such information , strikingoff was precluded . LAW provided that the only basis for proving collaboration with the former State security agencies was a report from ORG . The certificates issued by the Commission did not constitute such a basis , as already found by the court in its judgment of DATE ( see paragraph CARDINAL above ) . The annulment of PERSON registration on the basis of such a certificate was therefore null and void .

The same day Mr PERSON asked ORG to reinstate him on the list of candidates , but apparently no action was taken .

PERSON was nominated as a candidate for ORG and registered as such on CARDINAL DATE .

In a decision of DATE ORG , acting in response to a request made by ORG DATE , annulled PERSON registration as a candidate . It relied on section PERSON ) of the DATE Election of Members of LAW ( see paragraph CARDINAL below ) . In a decision of CARDINAL DATE ORG refused to examine PERSON appeal against that decision , on the same grounds as in the case of PERSON ( see paragraph CARDINAL above ) .

On DATE , DATE before the elections , PERSON lodged an application for judicial review with ORG . In a judgment of DATE a threemember panel of that court set aside ORG decision and declared ORG decision null and void , giving the same reasons as in the case of PERSON ( see paragraph CARDINAL above ) .

On DATE PERSON asked ORG to reinstate him on the list of candidates , but apparently no action was taken .

Mr PERSON was nominated as a candidate for ORG and registered as such on DATE .

On DATE ORG , relying on section PERSON ) of the DATE Election of Members of LAW ( see paragraph CARDINAL below ) , requested the annulment of PERSON registration . It did so on the basis of a certificate issued by ORG on DATE to the effect that he had collaborated with the former ORG security agencies .

In a decision of DATE ORG annulled PERSON registration . It relied on section PERSON ) of the DATE Election of Members of LAW , the decision of ORG of DATE ( see paragraph CARDINAL above and paragraph CARDINAL below ) and the certificate issued by ORG on DATE . In a decision of CARDINAL DATE ORG refused to examine Mr Dimitrov ’s appeal against this decision , giving the same reasons as in the case of PERSON ( see paragraph CARDINAL above ) .

The same or the following day Mr PERSON sought judicial review of the above decisions by ORG . In a judgment of DATE , DATE before the elections , a threemember panel of that court set aside ORG decision and declared ORG decision null and void , giving the same reasons as in the case of PERSON ( see paragraph CARDINAL above ) .

Mr PERSON asked ORG to restore his name to the ballot paper , which it did in a decision of DATE , DATE before the elections . However , on DATE ORG set that decision aside , stating that ORG judgment was not yet final . Mr PERSON sought judicial review of the latter decision , and in a judgment of DATE , DATE after the elections , ORG declared it null and void . It found , inter alia , that ORG opinion that the court ’s judgment of DATE was not final was erroneous . It was final and binding , as expressly stated in section CARDINAL ) of the DATE Election of Members of LAW ( see paragraph CARDINAL below ) .

On DATE a fivemember panel of ORG rejected as inadmissible ORG appeal on points of law against its judgment of DATE , reiterating that the judgment was final and not subject to appeal , as stated in section CARDINAL ) of the DATE Election of Members of LAW ( see paragraph CARDINAL below ) .

On DATE a group of fiftyseven Members of ORG ( MPs ) acting on behalf of Mr PERSON requested ORG to annul the election of the person who had replaced him on the ticket following his deregistration . The Plenary Meeting of ORG made a similar request on DATE .

In a decision of DATE ORG declared the MPs’ request admissible and allowed PERSON , among others , to intervene in the proceedings as a third party . In a decision of DATE the court declared ORG request likewise admissible and decided to join the proceedings in the CARDINAL cases .

In a judgment of DATE ( решение № CARDINAL от CARDINAL октомври DATE г. по PERSON № DATE г. , обн. ДВ бр. CARDINAL от CARDINAL октомври DATE г. ) ORG , acting under LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , rejected the request . It held that the courts were entrusted with reviewing the decisions of the authorities , including the electoral authorities . In a ORG governed by the rule of law , the final judgments of the courts were binding on the parties to a case and had the status of res judicata . Therefore , the judgments of ORG setting aside and declaring null and void decisions of the electoral commissions were binding on the latter and had to be complied with . However , failure to comply with the judgments could only engage the ORG ’s liability in tort and could not render the election of the person who had replaced PERSON on the ticket illegal . That person ’s name had featured on the ballot paper and on the list of candidates on DATE of the election , having been included at the request of ORG . The voters had used the ballot papers featuring her name , in accordance with the wishes of the coalition which had put her forward as a candidate .

CARDINAL judges dissented . They stated , inter alia , that as the decision of the electoral authorities to strike Mr PERSON off the list of candidates had been declared null and void , it had never legally existed . Therefore , his name should have been the one to feature on the ballot paper on DATE of the election . The fact that the ballot paper had in fact contained another name did not make good the unlawful decisions of the electoral authorities and did not render the other person ’s election lawful .

In DATE Mr PERSON brought an action under the CARDINAL State Responsibility for Damage Act ( see paragraph CARDINAL below ) . At the time of the latest information provided by PERSON ( DATE ) , the proceedings were still pending at first instance before GPE . CARDINAL hearings had taken place and a further one was listed for DATE .

Article CARDINAL § CARDINAL of the DATE LAW provides that all natural and legal persons have the right to seek judicial review of any administrative decision which affects them , save as expressly provided by statute .

Article CARDINAL of the LAW provides that the lawfulness of parliamentary elections may be challenged before ORG in a manner to be provided by a special statute . According to paragraph CARDINAL(CARDINAL ) of the transitional and concluding provisions of the LAW , such a statute had to be adopted not DATE after its entry into force . Under LAW ( CARDINAL ) of the LAW , ORG rules on disputes concerning the legality of the election of an MP ( see also section CARDINAL ) of the DATE LAW ) . The only persons or bodies who have standing to refer a matter to ORG are ( i ) a fifth of the CARDINAL MPs , ( ii ) the President , ( iii ) ORG , ( iv ) ORG , ( v ) ORG and ( vi ) the ORG ( LAW ; see also section QUANTITY of the DATE LAW ) . In addition , in DATE the ombudsman was allowed to challenge before that court statutes which in his or her view are violative of the ORG rights and freedoms ( LAW ) . Requests made by other persons , officials or bodies are inadmissible ( опр. № CARDINAL от CARDINAL март DATE г. по PERSON № DATE г. ; опр. № CARDINAL от CARDINAL октомври DATE г. по PERSON № DATE г. ) .

DATE LAW stipulates that the ORG is liable for the damage caused by the unlawful decisions or actions of its organs and servants . In a binding interpretative decision of DATE ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по т.гр.д. № CARDINAL г. , ОСГК на ВКС ) ORG , confirming the ORG prior practice , observed that this provision did not provide a direct avenue of redress , but merely laid down a general principle whose implementation was to be effected through a statute . As no such statute was enacted following the LAW ’s entry into force in DATE , this function is performed by the DATE ORG ( see paragraphs CARDINAL and CARDINAL below ) .

The DATE Election of Members of LAW ( ORG за избиране на народни представители ) was adopted by ORG on DATE and entered into force on DATE , DATE of its publication in ORG .

The LAW , as in force at the relevant time ( prior to a partial overhaul in DATE ) , stipulated that elections to ORG were held on the basis of a party list proportional system . Each party or coalition registered with the competent regional electoral commission – the body overseeing the election process in the relevant constituency – a list of candidates for each of the multiseat constituencies into which the country was divided ( section CARDINAL(CARDINAL ) ) . Registration had to take place not DATE before DATE ( section CARDINAL(CARDINAL ) ) .

After the election , ORG – the body overseeing the election process in the entire country ( section PERSON ) ) DATE determined the overall number of seats for each party or coalition on the basis of the total number of votes cast for the respective party or coalition . The Commission did so using the D’Hondt method , applied in accordance with rules adopted by the Commission prior to the elections ( section CARDINAL(CARDINAL ) ) . After the elections , the Commission determined the number of seats for each party or coalition in each of the multiseat constituencies using the same method , taking into account the proportion of the votes cast ( section CARDINAL(CARDINAL ) ) .

ORG had to announce the number of votes cast for each party , and the allocation of seats among the parties , coalitions and independent candidates , not DATE after DATE of the elections ( section CARDINAL(CARDINAL ) ) . It announced the names of the elected MPs not DATE following DATE of the elections ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL(CARDINAL ) , repealed in DATE , provided :

“ Parties and coalitions may request annulment of the registration of a person featuring on their candidate list in respect of whom information is revealed indicating that he or she collaborated with the former ORG security agencies . In such cases the parties and coalitions may propose a new candidate not DATE before DATE . ”

This provision was complemented by paragraph CARDINAL of the Act ’s transitional and concluding provisions , also repealed in DATE , which read as follows :

“ Before registering lists of candidates with the regional electoral commissions , the central leadership of political parties and coalitions may request [ ORG ] to conduct checks on the individuals who have accepted nomination as candidates for ORG on their lists . The checks must be carried out DATE after the request . ”

A new section CARDINAL(CARDINAL ) , inserted in DATE and repealed in DATE , provided that ORG – a body overseeing the storage and use of classified information – checked whether the candidates for ORG had had links with , inter alia , the former ORG security agencies or their predecessor or successor entities , and made this information available to the leadership of the political parties and coalitions which had nominated the candidates concerned .

Under section CARDINAL(CARDINAL)(CARDINAL ) ( former section CARDINAL(CARDINAL)(CARDINAL ) ) , ORG examines appeals against the decisions and actions of the regional electoral commissions . It may , in particular , review the regional ORG decisions relating to the registration of candidate lists ( section GPE ) ) . It has to rule on all appeals within DATE of their being lodged , and must deliver its decision immediately ( ibid . ) .

Section CARDINAL ) provides that certain decisions of ORG are subject to judicial review by ORG . The application for judicial review has to be lodged within DATE of delivery of the decision . The court has to rule on the application within DATE of its being lodged , by means of a final judgment .

Section CARDINAL of the Act ( whose text coincides almost entirely with that of the provision it superseded , namely section CARDINAL(CARDINAL ) of the DATE Election of Members of ORG ) provides that candidates for ORG , and the central leadership of the parties and coalitions which have taken part in the elections , may challenge the lawfulness of the election before ORG within DATE of the announcement of the election results . They can not apply to that court directly ; they must do so through the persons or bodies set out in LAW ( see paragraph CARDINAL above ) . It seems that this provision and its precursor have , apart from the case of PERSON , been used only twice , when groups of MPs acting on behalf of individual candidates or political parties asked ORG to annul the election of an MP . In both cases the court acceded to their requests ( реш. № CARDINAL от DATE г. PERSON № DATE г. ; реш. № CARDINAL от CARDINAL март DATE г. по PERSON № CARDINAL г. ) .

The DATE Access to Documents of the Former State Security Agencies and the Former ORG of the General Staff Act ( “ the LAW ” ) regulated , inter alia , disclosure of the names of persons who had worked for or collaborated with the communistera State security agencies . Section CARDINAL ) provided that the names of these persons were to be revealed in special reports issued by ORG . The reports had to be compiled on the basis of information gathered by a subcommission dealing specifically with that issue ( section CARDINAL(CARDINAL ) ) . In DATE the Dossiers Act was repealed and ORG was abolished .

A new Act on access to and disclosure of documents and publication of NORP ORG links with the ORG security agencies and the intelligence services of the NORP national army ( “ ORG за достъп и разкриване на документите и за обявяване на принадлежност на български граждани към държавна сигурност и разузнавателните служби на българската народна армия ” ) was enacted in DATE . The LAW , which is still in force , coincides to a large extent with the previously repealed LAW .

The DATE Supreme Administrative Court Act , adopted in DATE and superseded by LAW , regulated the procedure before that ORG . Section CARDINAL(CARDINAL ) ( now superseded by LAW ) stipulated that judgments of ORG setting aside administrative decisions or declaring them null and void were binding on everyone .

Section CARDINAL(CARDINAL ) of the DATE ORG Caused to Citizens Act ( on DATE its name was changed to “ ORG and ORG ” ) provides that the ORG is liable for damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants committed in the course of or in connection with the performance of their duties .

Section CARDINAL(CARDINAL ) stipulates that the ORG is liable for the damage suffered by individuals on account of their being charged with a criminal offence , if ( i ) they are subsequently acquitted , ( ii ) the charges are dropped because the impugned act was not committed by them or does not constitute a criminal offence , or ( iii ) the proceedings against them were opened after the expiry of the relevant limitation period or despite an amnesty .

The Code of Good Practice in Electoral Matters ( Guidelines and Explanatory Report ) ( CDL - AD ( DATE ) CARDINAL rev ) , adopted by ORG ( “ the GPE Commission ” ) at its CARDINALst and CARDINALnd sessions ( DATE and DATE ) constitutes , in the ORG ’s words , “ the core of a code of good practice in electoral matters ” . It reads , in so far as relevant :

“ GUIDELINES ON ELECTIONS

Regulatory levels and stability of electoral law

b. The fundamental elements of electoral law , in particular the electoral system proper , membership of electoral commissions and the drawing of constituency boundaries , should not be open to amendment DATE before an election , or should be written in the constitution or at a level higher than ordinary law .

An effective system of appeal

a. The appeal body in electoral matters should be either an electoral commission or a court . For elections to ORG , an appeal to ORG may be provided for in first instance . In any case , final appeal to a court must be possible .

d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers DATE and eligibility , the validity of candidatures , proper observance of election campaign rules and the outcome of the elections .

e. The appeal body must have authority to annul elections where irregularities may have affected the outcome . It must be possible to annul the entire election or merely the results for CARDINAL constituency or CARDINAL polling station . In the event of annulment , a new election must be called in the area concerned .

PERSON All candidates and all voters registered in the constituency concerned must be entitled to appeal . A reasonable quorum may be imposed for appeals by voters on the results of elections .

EXPLANATORY REPORT

Stability of the law is crucial to credibility of the electoral process , which is itself vital to consolidating democracy . Rules which change frequently DATE and especially rules which are complicated DATE may confuse voters . Above all , voters may conclude , rightly or wrongly , that electoral law is simply a tool in the hands of the powerful , and that their own votes have little weight in deciding the results of elections .

An effective system of appeal

NORP If the electoral law provisions are to be more than just words on a page , failure to comply with the electoral law must be open to challenge before an appeal body . This applies in particular to the election results : individual citizens may challenge them on the grounds of irregularities in the voting procedures . It also applies to decisions taken before the elections , especially in connection with the right to vote , electoral registers and standing for election , the validity of candidatures , compliance with the rules governing the electoral campaign and access to the media or to party funding .

There are CARDINAL possible solutions :

– appeals may be heard by the ordinary courts , a special court or the constitutional court ;

– appeals may be heard by an electoral commission . There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less ORG ] with regard to electoral issues . As a precautionary measure , however , it is desirable that there should be some form of judicial supervision in place , making the higher commission the first appeal level and the competent court the second .

Appeal to parliament , as the judge of its own election , is sometimes provided for but could result in political decisions . It is acceptable as a first instance in places where it is long established , but a judicial appeal should then be possible .

Appeal proceedings should be as brief as possible , in any case concerning decisions to be taken before the election . On this point , CARDINAL pitfalls must be avoided : first , that appeal proceedings retard the electoral process , and second , that , due to their lack of suspensive effect , decisions on appeals which could have been taken before , are taken after the elections . In addition , decisions on the results of elections must also not take too long , especially where the political climate is tense . This means both that the timelimits for appeals must be very short and that the appeal body must make its ruling as quickly as possible . Timelimits must , however , be long enough to make an appeal possible , to guarantee the exercise of rights of defence and a reflected decision . A timelimit of DATE at first instance ( both for lodging appeals and making rulings ) seems reasonable for decisions to be taken before the elections . It is , however , permissible to grant a little more time to ORG for their rulings .

The procedure must also be simple , and providing voters with special appeal forms helps to make it so . It is necessary to eliminate formalism , and so avoid decisions of inadmissibility , especially in politically sensitive cases .

It is also vital that the appeal procedure , and especially the powers and responsibilities of the various bodies involved in it , should be clearly regulated by law , so as to avoid any positive or negative conflicts of jurisdiction . Neither the appellants nor the authorities should be able to choose the appeal body . The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission , or where the powers of different courts TIME the ordinary courts and the constitutional court – are not clearly differentiated .

Disputes relating to the electoral registers , which are the responsibility , for example , of the local administration operating under the supervision of or in cooperation with the electoral commissions , can be dealt with by courts of first instance .

Standing in such appeals must be granted as widely as possible . It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal . A reasonable quorum may , however , be imposed for appeals by voters on the results of elections .

The appeal procedure should be of a judicial nature , in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded .

The powers of appeal bodies are important too . They should have authority to annul elections , if irregularities may have influenced the outcome , i.e. affected the distribution of seats . This is the general principle , but it should be open to adjustment , i.e. annulment should not necessarily affect the whole country or constituency – indeed , it should be possible to annul the results of just CARDINAL polling station . This makes it possible to avoid the CARDINAL extremes – annulling an entire election , although irregularities affect a small area only , and refusing to annul , because the area affected is too small . In zones where the results have been annulled , the elections must be repeated .

Where higherlevel commissions are appeal bodies , they should be able to rectify or annul ex officio the decisions of lower electoral commissions . ”

NORP This report , published in GPE , GPE on DATE , describes in detail the unfolding of the parliamentary elections in GPE in DATE . It reads , in so far as relevant :

IV . LEGISLATIVE FRAMEWORK

... some aspects of the current [ DATE Election of Members of LAW ] are of concern . While some of these stem from the previous law , others pertain to newly introduced provisions .

Under [ section ORG ) ] , candidate lists may be changed ... if “ data ” is discovered indicating that they collaborated with the former ORG security agencies . Parties and coalitions may make these changes up to DATE before DATE . The possibility of such TIME changes to the lists posed problems not only for election administrators and courts , but also for parties and voters whose understanding of candidates running in the elections was undoubtedly affected .

NORP The newly adopted [ section CARDINAL(CARDINAL ) ] provides that parties and coalitions may withdraw candidates in case “ data ” on the candidates is found in the files of the Commission on the Documents of the Former ORG . A clear definition of the term “ data ” is needed to provide guidance . There is a particular need to define clearly whether these data constitute full evidence for collaboration with the former ORG security services . The current legal provisions in LAW as well as in FAC to the Documents of the Former ORG led to controversial withdrawals of candidates and a number of court cases .

Parties and coalitions may withdraw nominated candidates and nominate substitutes up to DATE before the elections without having to abide by additional legal requirements . After that deadline , parties may withdraw a candidate from the ticket only if he or she is “ permanently incapable to run in the elections ” or if “ data ” exists that the candidate had collaborated with the former ORG security agencies . In these cases , parties may nominate a new candidate DATE before DATE .

C. COMPLAINTS AND APPEALS

A particular , extended controversy related to changes to the candidate lists . Under the [ DATE Election of Members of LAW ] , candidate lists may be changed if “ data ” is discovered indicating that candidates collaborated with the former ORG security agencies . In this case , parties and coalitions can request the [ ORG ] to withdraw a name from their candidate lists . Accordingly , the [ ORG ] withdrew several candidates from various lists , CARDINAL of whom appealed the [ ORG ] decisions to the [ ORG ] . The [ ORG ] rejected the appeals , arguing that parties and coalitions have the exclusive right to evaluate the available data on collaboration with the ORG security agencies and to withdraw candidates . Furthermore , the [ ORG ] argued that candidates do not have the right to appeal the [ ORG ] decisions taken in accordance to [ section CARDINAL(CARDINAL ) ] of the [ DATE Election of Members of LAW ] , since this article does not establish the right of appeal for a candidate whose registration is annulled upon request of his / her party or coalition based on the existence of the above mentioned data on collaboration with the former ORG security agencies .

Some candidates appealed to ORG , which reversed the [ ORG ] decision DATE before the election and reinstated these candidates on their original lists . ORG recognized the right of candidates to appeal their withdrawals , stating that they have a legal interest because their personal rights as candidates are affected by such measures . Furthermore , ORG argued that in such cases , [ ORG ] are obligated to examine the available data on collaboration with the former ORG security agencies and decide accordingly . However , the [ ORG ] instructed the respective [ ORG ] not to amend the candidate lists in question , stating that the decision of ORG was not in force , as it could be appealed within DATE .

Following this [ ORG ] instruction , the candidates appealed to ORG again and were reinstated once more on DATE , just after the elections had been held . The controversy looks set to continue , as the [ ORG ] has filed additional appeals , notwithstanding [ section CARDINAL ) ] of the [ DATE Election of Members of LAW ] , which states that decisions of ORG are final in the context of election disputes . At any rate , [ ORG ] Decision No . CARDINAL of DATE proclaimed the names of elected candidates according to the candidate lists that did not contain the withdrawn candidates .

The later [ ORG ] decisions are of particular concern . These decisions disregard the rulings of the ORG by postponing the settlement of the dispute until after DATE . As a consequence , the candidates at issue could not participate in the elections . Furthermore , [ ORG Decision CARDINAL disregarded the court ruling again , as it proclaimed the names of elected candidates regardless of the fact that some candidates were still seeking legal redress .

Additionally , the [ ORG ] stated that the rulings of ORG were not in compliance with the law and thus were not binding . The [ ORG ] argued in particular that the court did not have jurisdiction over the case at issue . While the jurisdiction of the court was controversial to some extent , this line of argument of the [ ORG ] is of great concern . It is not within the competence of the parties to determine whether the decision of the court is binding or not . This conflict CARDINAL senior ORG institutions raises serious questions regarding the application of the rule of law in GPE in this instance and should be resolved by ORG .

ORG . RECOMMENDATIONS

The deadline for parties and coalitions to change candidate lists should be set further in advance of DATE .

A clear definition of the term “ data ” under [ section ORG ) ] of the [ DATE Election of Members of LAW ] .

A cut - off date for resignation of candidates and withdrawal of parties and coalitions well in advance of DATE would prevent lastminute changes to the ballot or the use of ballots that have not been updated . ... ”

According to information available to the ORG , the laws of MONEY Parties to the Convention make provision for postelectoral remedies , whether before a special court or tribunal , the ordinary courts , or a constitutional court .


Violation of Art. 3;Violation of Art. 5-3 (insufficient reasons for detention);No violation of Art. 5-3 (statutory competence of judges);Violation of Art. 5-4 (length of review);No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON . He worked as the secretary of ORG .

On DATE the Prosecutor General initiated criminal proceedings against the applicant for alleged abuse of power under LAW § CARDINAL of LAW , in relation to a purchase of CARDINAL ambulances by the PERSON .

On DATE the applicant was arrested by officer PERSON from ORG ) . On DATE ORG issued a warrant for his remand in custody for DATE . The reasons given by the court for issuing the warrant were that :

“ The criminal file was opened in accordance with the law in force . [ The applicant ] is suspected of having committed a serious offence for which the law provides imprisonment for DATE ; the evidence submitted to the court was obtained lawfully ; the isolation of the suspect from society is necessary ; he could abscond from law enforcement authorities or the court ; he could obstruct the finding of truth in the criminal investigation or re - offend ” .

On DATE the ORG partly quashed that decision and adopted a new one , ordering the applicant ’s house arrest . The court found that :

“ The [ lower ] court did not commit any procedural mistakes , but taking into account that [ the applicant ] has a permanent place of residence , has no criminal record , is ill and requires treatment in conditions of non - isolation from society and that there is no specific information about the probability of his absconding from the law - enforcement authorities , the [ court ] considers that in the present case the normal flow of the criminal investigation will be ensured if the accused is subjected to the preventive measure of house arrest . The [ court ] also notes that the criminal file was opened on DATE and that on CARDINAL and DATE the applicant was summonsed by the [ law - enforcement authorities ] as a witness , but on DATE he was taken into custody , and no newly discovered circumstances requiring his detention were submitted . Besides , it is necessary to take into account the presumption of innocence , guaranteed by LAW and that the offence with which the applicant is charged is also punishable with a fine . ”

On DATE the applicant was again arrested on suspicion of having committed the offence of exceeding the limits of his powers in exercising a public function , contrary to LAW , in relation to the same purchase of ambulances referred to in paragraph CARDINAL above . The reason given for the arrest was that “ eye witnesses can testify that this person has committed a crime ” .

On DATE the President of ORG issued a warrant for his detention for DATE . The reasons given by the court for issuing the warrant were that :

“ [ the applicant ] is suspected of having committed a serious offence , for which the law provides imprisonment for DATE ; the evidence submitted to the court was obtained lawfully ; the isolation of the suspect from society is necessary ; he could abscond from law enforcement authorities or the court ; he could obstruct the finding of the truth in the criminal investigation or re - offend ” .

NORP The applicant submitted arguments against the necessity of applying the preventive measure of detention and focused on his bad state of health . He referred to concrete facts , such as that since his first arrest he had never obstructed in any way the investigation and had appeared before the authorities whenever summonsed . His conduct regarding the investigation had always been irreproachable . He had a family , had property in GPE and none abroad , and several newspapers were ready to guarantee his freedom in accordance with the provisions of LAW . The applicant was ready to give up his passport as an assurance that he would not leave the country .

On DATE the ORG upheld the decision of ORG of DATE . The court gave no specific reasons for its decision other than to confirm the lawfulness of the lower court ’s decision .

On DATE the President of the ORG prolonged the applicant ’s detention on remand for DATE until DATE . The court reasoned that detention was necessary because :

“ [ the applicant ] is suspected of having committed a serious offence ; there is a risk that he may put pressure on witnesses or put himself out of the reach of law enforcement authorities ; and there is a continuing need to isolate him from society ” .

On DATE ORG dismissed the applicant ’s appeal without relying on any new arguments .

On DATE the President of ORG rejected a habeas corpus request made by the applicant , stating that :

“ according to the criminal file , [ the applicant ] is accused of having committed a less serious offence , for which the law provides the punishment of deprivation of liberty for DATE . ”

On DATE ORG dismissed the applicant ’s appeal against the judgment of DATE .

Also on DATE officer PERSON , the investigator who had arrested the applicant and who had been in charge of the case since DATE , made a declaration during a press conference . He essentially stated that the case against the Mr PERSON and other accused in the “ ambulances case ” was fabricated for political reasons in order to remove political opponents . There was nothing in the file , according to PERSON , which would warrant the initiation of the criminal proceedings or the arrest of the applicant .

On DATE the investigation ended and the criminal file was referred to ORG . According to the domestic law , no prolongation of detention on remand was necessary after that and the applicant remained in custody pending a final judgment favourable to him or a court decision to end his detention .

On DATE , during the first hearing on the merits of the criminal case , the applicant submitted another habeas corpus request and expressed his readiness to present further guarantees against absconding . He based his request , inter alia , on his weak state of health and on the declarations made by the investigator PERSON on DATE . At the prosecutor ’s request , the court postponed the hearing until DATE in order to decide on joining the applicant ’s case with that of other suspects .

On DATE the court accepted a prosecutor ’s request to join the applicant ’s case with CARDINAL other criminal cases of persons who worked in the PERSON . In reply to the applicant ’s habeas corpus request , the court held that it would be for the court examining the joined cases to decide whether the continuing detention was necessary . He complained about the court ’s failure to properly respond to his request .

On DATE the hearing was postponed .

On DATE the court rejected , by a final judgment , the applicant ’s habeas corpus request , finding that :

“ [ the applicant was remanded ] because he is suspected of having committed a serious offence ; he may abscond from the law enforcement authorities ; and he may obstruct the finding of truth in the criminal process . The grounds on which the detention on remand was ordered remain valid . ”

On DATE ORG rejected another habeas corpus request made by the applicant , finding that “ the grounds for detaining the applicant on remand still hold ” .

The applicant has a medical condition called “ progressive cervical osteoarthritis ( mielopatie ) with displacement of vertebrae CCARDINAL-CCARDINAL-CCARDINAL , with pain disorder ” and has to wear permanently a device immobilizing his neck to minimize risk of fatal injuries to his spinal cord . He also suffers from gout and from arterial hypertension of second degree with increased risk of cardio - vascular complications , all confirmed by medical certificates .

His complaint about the lack of sufficient medical assistance refers to the period of his detention in the ORG remand centre DATE and DATE .

DATE ( DATE according to the Government ) the applicant held a hunger strike . On DATE ( DATE of his second arrest ) he was consulted by Doctor PERSON , who noted the applicant ’s complaints about pain in his back and diagnosed him with serious arterial hypertension ( hipertensiune arterială esenţială ) , giving him medication to decrease his blood pressure .

According to the applicant , neither his family doctor , doctor PERSON , nor any other doctor had been allowed to examine him while in detention until after communication of his application to the Government . He submitted copies of CARDINAL requests lodged by his family doctor on CARDINAL and DATE by which he asked permission to examine the applicant or to have him examined by any other qualified doctor . Neither of the requests was allowed or even acknowledged .

According to the ORG , the applicant did not personally make any request to see doctor PERSON at any time during his detention .

On DATE the applicant fainted during a court hearing and was rushed to a detainee hospital , where he was treated until DATE .

According to the applicant , he was not examined by any neurologist while in the hospital . His personal medical file shows that he complained on numerous occasions of pain in the cervical region of his spine and numbness in his fingers and arms ( on CARDINAL , DATE , DATE and DATE ) . Only on DATE was he visited by a neurologist who concluded that : “ an examination by a neurosurgeon is recommended in order to determine the appropriate treatment ” . No such further examination took place .

On DATE he was released from hospital and taken back to the remand centre . According to his release form , he was “ in a satisfactory condition with the recommendation of supervision by a general practitioner and a neurologist , checks of arterial blood pressure and administration of tablets .... ”

On DATE a prosecutor allowed a request by the applicant ’s wife to have the applicant examined by a neurologist at the remand centre . However , the doctor did not have access to the applicant due to the ORG administration ’s refusal to allow that .

According to the applicant there were no medical personnel in the remand centre .

According to the Government , there was a doctor , ORG , who was a general practitioner and who had provided regular medical assistance to the applicant throughout his detention . In case of an emergency , detainees could have been transported to a nearby hospital .

According to the applicant , due to the lack of medical assistance , he had had to use the opportunity to have his blood pressure measured through the bars of the cage in which he was held during court hearings .

The Government did not dispute that , but rather stated that the general practitioner at the remand centre had provided the applicant with medical assistance whenever he requested it .

According to ORG remand centre , submitted by the Government , during the period with which the complaint is concerned the applicant was examined only on DATE . The next record regarding the applicant is on DATE . Doctor PERSON ’s name appears for the first time , in all the documents submitted by the Government , on DATE .

The applicant ’s wife made numerous unsuccessful attempts ( on CARDINAL , DATE , DATE , DATE , DATE , DATE , as well as on DATE and DATE ) to obtain permission to check on his state of health and to bring him various items . Both the applicant and his wife requested that an arterial blood monitor should be brought and , that instructions should be sought from doctor PERSON on how properly to use it . She was eventually allowed to give the items to the applicant .

On DATE ORG allowed the applicant ’s request to be examined by a doctor . On DATE he was examined by the Head of the Therapy Section of ORG , who noted in ORG ( see paragraph CARDINAL above ) that the applicant did not complain about his health .

Doctor PERSON , who examined the applicant on CARDINAL DATE , concluded that his condition had substantially worsened due to the combination of the CARDINAL diseases ( see paragraph CARDINAL above ) . In the event of lack of medical treatment , the applicant ran serious risks for his life and health . Failure permanently and correctly to monitor and react to changes in his arterial pressure , level of uric acid and other signs could lead to serious effects including myocardium infarct and cerebral - vascular accidents and even sudden death .

Professor PERSON , the Head of ORG of the “ FAC ” hospital , was allowed to see the applicant in prison on DATE . The applicant complained of pain and numbness in his hands , of headaches and of the lack of constant supervision by a specialized doctor . In his report , professor PERSON referred only to the applicant ’s cervical osteoarthritis and did not recommend hospitalisation . He recommended treatment with symptomatic medication , limitation of physical movement and the permanent wearing of the neck - fixing device . While he found no major risk to the patient ’s life due to osteoarthritis , he admitted that there was a constant risk of worsening of the condition of his nervous system . He considered that in case of aggravation of the applicant ’s state of health , he would need neurosurgical treatment in a specialised clinic .

CARDINAL other doctors , doctor PERSON and doctor PERSON , who examined the applicant ’s medical files in DATE , while referring to the applicant ’s cervical osteoarthritis , submitted that this disease could ultimately lead to permanent loss of movement and to negative effects for the cardio - vascular system . Doctor PERSON recommended medication , special gymnastics and consultation by a neurosurgeon in order to determine the necessity of undergoing micro - neurosurgery . He also recommended the wearing of a neck immobilisation device . Doctor PERSON submitted that there was a serious risk for the applicant ’s health linked to his osteoarthritis , including tetraparesis . He recommended hospitalisation .

A ORG created after the communication of the case to the ORG found that cervical osteoarthritis presented a risk to the applicant ’s health and that there was a possibility of an eventual increase in the pain suffered . The patient needed “ a regime of adequate medical supervision and treatment on an out - patient basis ( at home , at work , in prison ) ” . In a letter of CARDINAL DATE to ORG declared that high arterial blood pressure and gout required “ an adequate psycho - emotional regime and the administration of medication prescribed by a doctor ” .

According to the applicant , except for CARDINAL occasion , he was always brought to the court in handcuffs and placed in a metal cage during the hearings . The Government did not dispute that .

According to the applicant the cell in which he was detained in the remand centre was overcrowded since it had QUANTITY for QUANTITY persons and was too hot .

According to the Government the applicant had been detained with CARDINAL more person in the cell and the temperature and other conditions were within acceptable limits . In support of their submissions the Government sent the ORG a copy of a report of CARDINAL DATE , drafted by a sanitary - epidemiological inspection and pictures and a video showing the applicant ’s cell .

The room for meetings between lawyers and detainees in the remand centre had a double glass partition with holes which only partly coincided and which were covered with a thick net , to keep them separated . According to the applicant they had to shout in order to hear each other and could not exchange documents for signature .

The Government did not dispute the existence of a glass partition and sent the ORG a video with its images .

On DATE the applicant requested ORG to order the ORG administration to provide a room for confidential meetings with his lawyer . On DATE the court rejected the request on the ground that according to the ORG administration , there were no recording devices installed in the meeting room and that the glass partition was necessary for the security of detainees and lawyers .

The relevant provisions of the LAW read as follows :

“ Article CARDINAL The right of a person whose rights are violated by a public authority

( CARDINAL ) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period , is entitled to obtain the recognition of the right claimed , the annulment of the act and compensation for damage .

( CARDINAL ) The ORG bears pecuniary liability , according to the law , for harm caused through errors committed in criminal proceedings by the investigating authorities and courts . ”

The relevant provisions of LAW ( ‘ the CPP’ ) read as follows :

“ Article CARDINAL Courts which deliver criminal justice

( CARDINAL ) Within the courts , at the criminal prosecution phase , investigating judges act as judicial organs with their own powers in the course of the criminal process .

Article CARDINAL Competence of the investigating judge

The investigating judge ensures judicial control during the criminal prosecution by :

CARDINAL ) NORP ordering , replacing , terminating or revoking detention on remand or house arrest ,

CARDINAL ) ordering the provisional release of the person detained or arrested , ...

Article CARDINAL

“ ( CARDINAL ) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond , obstruct the establishment of the truth during the criminal proceedings or re - offend , or they can be applied by the court in order to ensure the enforcement of a sentence .

( CARDINAL ) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding DATE . In cases concerning offences in respect of which the law provides for a custodial sentence of DATE , they may be applied if ... the accused has already committed the acts mentioned in § ( CARDINAL ) .

( CARDINAL ) In deciding on the necessity of applying preventive measures , the prosecuting authority and the court will take into consideration the following additional criteria :

CARDINAL ) NORP the character and degree of harm caused by the offence ,

CARDINAL ) NORP the character of the ... accused ,

CARDINAL ) NORP his / her age and state of health ,

CARDINAL ) NORP his / her occupation ,

CARDINAL ) his / her family status and existence of any dependants ,

CARDINAL ) his / her economic status ,

CARDINAL ) NORP the existence of a permanent place of abode ,

CARDINAL) other essential circumstances .

Article CARDINAL

A person detained on remand under the provisions of LAW may request , at any time during the criminal investigation , his provisional release under judicial control or on bail .

Article CARDINAL § CARDINAL

A preventive measure applied may be replaced by a harsher one , if the need for it is proved by evidence , or by a lighter one , if by applying it the proper behaviour of ... the accused is ensured , with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed .

Article CARDINAL Examination of requests for detention on remand or house arrest

... ( CARDINAL ) A request for the application of a measure of detention on remand or house arrest is to be examined without delay by the investigating judge , in camera , with the participation of the representative of the prosecuting authority , of the defender and of the accused .

( CARDINAL ) After examining the request , the investigating judge shall make a reasoned decision , ordering detention on remand or house arrest or rejecting the request . On the basis of the decision , the investigating judge shall issue a warrant of arrest which is given to the representative of the prosecuting authority and to the accused and which is executed immediately .

( CARDINAL ) The investigating judge has the right to decide whether a less restrictive preventive measure should be applied . ...

Article CARDINAL Admissibility of a request for provisional release and the court ’s decision

( CARDINAL ) The investigating judge shall verify if the request for provisional release corresponds to the provisions of Articles CARDINAL and CARDINAL . If the request does not correspond to those requirements , the investigating judge shall adopt a decision to reject the request , without summonsing the parties .

( CARDINAL ) If the request corresponds to the requirements provided for in DATE and was submitted by the accused , the investigating judge shall decide on the admissibility of the request and set a date for deciding on the request , summonsing the parties .

( CARDINAL ) On the established date , the investigating judge shall decide on the request for provisional release with the participation of the prosecutor , the accused , his defender or guardian , as well as the person who made the request . The decision shall be taken after hearing all those present .

( CARDINAL ) If the request is well based and conforms to the requirements of the law , the investigating judge shall adopt a reasoned decision provisionally to release the accused , setting conditions if necessary . ”

The relevant provisions of LAW read as follows :

“ Article DATE . Liability of the State for damage caused by the actions of the criminal investigation organs , prosecution and courts

( CARDINAL ) Damage caused to a natural person through illegal conviction , illegal prosecution , illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city , and illegal subjection to the administrative sanction of arrest or of non - remunerated community work , is to be fully compensated by the ORG , whether or not officers in the criminal investigation organs , the prosecution or judges were at fault . ... ”

The relevant provisions of ORG on compensation for damage caused by the illegal acts of the criminal investigation organs , prosecution and courts read as follows :

“ Article CARDINAL

( CARDINAL ) In accordance with the present law , individuals and legal entities are entitled to compensation for the moral and pecuniary damage caused as a result of :

a ) illegal detention , illegal arrest , illegal indictment , illegal conviction ;

b ) illegal search carried out during the investigation phase or during trial , confiscation , levy of a distraint upon property , illegal dismissal from employment , as well as other procedural acts that limit the person ’s rights ;

c ) illegal administrative arrest or order to work for the community , illegal confiscation of the property , illegal fine ;

d ) carrying out of unlawful investigative measures ;

e ) illegal seizure of accounting documents , other documents , money or stamps as well as blocking of banking accounts .

( CARDINAL ) The damage caused shall be fully compensated , irrespective of the degree of fault of the criminal investigation organs , prosecution and courts .

Article CARDINAL

A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met :

a ) pronouncement of an acquittal judgment ;

b ) dropping of charges or discontinuation of investigation on the ground of rehabilitation ;

c ) adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation ;

d ) adoption by ORG or by ORG of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of ORG before ORG . The friendly settlement agreement shall be approved by ORG ; ... ”

The relevant provisions of ORG ( No . DATE ) read as follows :

“ Article CARDINAL Measures applied to detainees refusing to take food

... ( CARDINAL ) A detainee who refuses to take food is detained , when possible , apart from other detainees and must be monitored by a doctor . Ambulatory and emergency medical assistance to such a person is to be given in the cell where ( s)he is detained ... ” .

The relevant provisions of ORG ( No . CARDINAL ) read as follows :

“ Article CARDINAL . President of the ORG

( CARDINAL ) The President of the ORG :

... h ) in case of a reasoned absence of the investigating judge , may appoint an experienced judge to exercise the functions of the investigating judge . ”