Violation of Art. 5-4;No violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings

Mr. PERSON , who is an NORP national born in DATE , currently resides in a religious home . On DATE , in GPE , he killed his mistress by firing several shots at her . He then left the apartment , leaving the body behind .

On DATE , the police , acting on information in a letter from the applicant confessing to the killing , discovered the body . According to the police report , the circumstances of the act suggested that the perpetrator was not fully in possession of his mental faculties .

Criminal proceedings were instituted against Mr. PERSON ; he was not arrested until DATE , by which date the preliminary investigation of the case had been completed and he had been committed for trial on a charge of murder .

On DATE , ORG sentenced Mr. PERSON - who had pleaded not guilty - to DATE imprisonment for murder and to DATE imprisonment and a fine of CARDINAL GPE for possession of military weapons .

The applicant appealed , pleading for the first time , amongst other grounds , that he was insane at the time of the commission of the act of which he was accused .

On DATE , ORG ordered an expert psychiatric opinion . The CARDINAL experts appointed for this purpose filed their report on DATE ; their conclusion was that at the date of the killing Mr. PERSON was suffering from a paranoiac syndrome ( sindrome paranoica ) depriving him of the capacity to form an intention ( capacità di volere ) and that at the time when the opinion was drawn up he was , in psychiatric terms , a dangerous person .

As this conclusion was challenged by the expert called by the party seeking damages ( consulente tecnico ) , ORG directed on DATE that a further expert opinion be obtained . ORG wished to be advised whether the applicant was , at the time of the killing , partly or completely insane and whether he was still a danger to society . CARDINAL new experts examined Mr. PERSON on several occasions ; they saw him for the last time on DATE . Although their report agreed with the previous report in other respects , it differed as regards the precise diagnosis of his illness ; it also found that at the moment of the crime Mr. PERSON lacked the capacity to understand and not just the capacity to form an intention ( capacità d’intendere e di volere ) . In addition , the report contained observations on the applicant ’s behaviour during his meetings with the experts . It mentioned certain symptoms of the illness that was diagnosed : evidence of megalomania was to be found in Mr. PERSON ’s overestimation of himself , in his superiority complex in regard to the experts , in his conviction that he was immortal and in his antagonistic attitude to the world around him . Furthermore , statements by the applicant alleging that he was the victim of widespread international conspiracies showed clearly that he was suffering from persecution mania . Finally , the report affirmed that the psychosis observed had certainly also existed at the time of the events giving rise to the criminal proceedings .

ORG accepted these findings . On DATE , it acquitted Mr. PERSON on the ground of mental incapacity ( infermità psichica - LAW ) and directed that he be confined for DATE in a psychiatric hospital . This security measure was ordered on the basis of LAW as then in force ( see paragraph CARDINAL below ) . Amongst other things , that Article provided that in a case like Mr. PERSON ’s the court always had to order confinement for DATE , there being a legal presumption that the accused was a danger to society .

However , although it was under no legal obligation to do so , ORG also made a finding as to the applicant ’s mental health at the time of its judgment . It agreed in particular with the conclusions of the CARDINAL expert opinions regarding Mr. PERSON ’s lack of responsibility and the assessment of his dangerous character . It added that his dangerous character was not simply presumed but real , as the experts had unanimously found , and that attention should be drawn to this as a factor that could , in due course , assist in making a re - assessment of Mr. PERSON ’s state of mind when the question of the termination of his confinement came to be considered . Finally , ORG noted that the case concerned a " paranoiac " and that the confinement necessitated by his state of mental health should follow his detention without a break .

Pursuant to LAW , taken in conjunction with LAW , ORG ordered the provisional implementation of its decision .

Appeals on points of law , based on different grounds , were lodged with ORG by the applicant and by the public prosecutor attached to ORG . Mr. PERSON complained of the failure of ORG to take account of a medico - legal and ballistic report which had been drawn up pursuant to a direction it had given at the hearings and which should have determined whether there had been homicide or , on the contrary , suicide . The CARDINAL appeals were dismissed on DATE .

Pursuant to the judgment of ORG , Mr. PERSON , who had been continuously detained in prison since DATE , was admitted to the psychiatric hospital of GPE ) on DATE .

After that judgment , Mr. PERSON made several applications to the judicial authorities for release from confinement . He adopted basically CARDINAL different approaches .

On the one hand , he applied on DATE to the supervising judge ( magistrato di sorveglianza - see paragraph CARDINAL below ) at the Santa PERSON court ( within whose jurisdiction the hospital was situated ) to have the periods during which he was undergoing psychiatric examinations whilst in detention on remand set off against the period of the security measure . This application was rejected .

On the other hand , Mr. PERSON applied to CARDINAL different courts for early release from confinement , on the ground that it was not justified by his state of health .

He turned DATE as DATE , that is DATE after the judgment of ORG - to ORG ( sezione di sorveglianza - see paragraph CARDINAL below ) ; he relied on LAW and LAW no . CARDINAL of DATE , concerning the administration of prisons and the implementation of measures involving deprivation or restriction of liberty .

ORG first undertook a series of inquiries . It obtained , inter alia , a medical report from the hospital , a copy of Mr. PERSON ’s " clinical diary " and several documents submitted by him .

On DATE , a psychologist consulted by the applicant on a private basis issued him with a certificate to the effect that he had recovered and that it was necessary to release him if the clinical progress achieved was not to be completely reversed .

On DATE , ORG held a hearing at which the public prosecutor ’s office submitted , on the basis of LAW ( see paragraph CARDINAL below ) , that that ORG lacked jurisdiction since the appeals on points of law against the judgment of DATE ( see paragraph CARDINAL above ) were still pending . By order of the same date , deposited in the court registry on DATE , ORG ruled that it did not have jurisdiction . This order was based , inter alia , on a judgment of ORG , in which it was held that an application for suspension of the implementation of a security measure imposed following an acquittal that has not yet become final must , since it constitutes an issue forming part of the proceedings ( procedimento incidentale ) , be made to the trial court and not to the judge supervising the execution of sentences ( CARDINALst Chamber , DATE , in " PERSON " DATE , III , p. CARDINAL ) .

On DATE , Mr. PERSON appealed on a point of law to ORG . That Court held on DATE that , under LAW , ORG had jurisdiction to determine the appeal . The judgment ( decreto ) was deposited in the court registry on DATE and the file was sent to ORG on DATE . By judgment ( decreto ) of CARDINAL DATE , deposited in the court registry on DATE , ORG confirmed the order of CARDINAL DATE .

On DATE , the date of his appeal to ORG against the aforesaid order , Mr. PERSON had also made CARDINAL other applications : CARDINAL was addressed to ORG and the other to ORG , within whose district the hospital where he was confined was situated .

At first , on DATE , the proceedings before ORG were suspended indefinitely because on DATE the applicant had failed to report back to the hospital after an TIME period of leave granted to him by the supervising judge at the Santa PERSON court . Subsequently , on a date which the Government were unable to indicate , ORG discontinued the proceedings before it . The applicant was again arrested on DATE and re - admitted to the hospital DATE .

ORG in the first place suspended its decision pending the final outcome of the proceedings instituted before ORG ( see paragraph CARDINAL above ) . It resumed consideration of the application pending before it as soon as ORG had dismissed , on CARDINAL DATE , the appeal against the order of CARDINAL DATE ( ibid . ) . The hearings were held on DATE , that is even before ORG judgment had been deposited in its registry ( DATE ) . The material before ORG included a medical report dated DATE - that is , DATE after Mr. PERSON ’s return to the psychiatric hospital - , which had been drawn up for the purposes of the inquiry into the case ; the Chief Medical Officer ( Direttore capo sanitario ) of the hospital stated therein that " from the clinical point of view there [ was ] no reason why the security measure should not be terminated " .

On DATE , ORG directed that the confinement should be terminated , having found , particularly in the light of the aforesaid report , that psychiatrically and criminologically Mr. PERSON was no longer dangerous . Before giving its decision on the merits of the case , ORG stated that it had jurisdiction to rule on the application although the public prosecutor ’s appeal on points of law against the judgment of ORG was still pending ( see paragraph CARDINAL above ) ; it disagreed with ORG interpretation of LAW ( see paragraph CARDINAL above ) .

The order was deposited on DATE and Mr. PERSON was released on DATE that is DATE before the dismissal of the CARDINAL appeals on points of law ( see paragraph CARDINAL above ) .

Under LAW in force at the time of Mr. PERSON ’s trial , an accused acquitted on account of insanity was to be subjected to a security measure in the form of confinement in a psychiatric hospital ( ospedale psichiatrico giudiziario ) . The minimum period of detention was prescribed by law by reference to the seriousness of the offence ; in the present case , that period was DATE .

Article CARDINAL , first sub - paragraph , provided that security measures could be imposed only on persons who were a danger to society and had committed an act constituting an offence under the law . Under the first sub - paragraph of Article CARDINAL , such measures were to be ordered where it was established that the individual concerned was a danger to society . However , the second sub - paragraph added :

" In the cases expressly provided for " - including that covered by LAW , " there shall be a legal presumption that the person concerned is a danger to society . Nevertheless , even in such cases the application of security measures shall be conditional on proof of a danger of this nature , if the conviction or acquittal was pronounced :

( CARDINAL ) DATE after the facts occurred , when persons of unsound mind are involved , in the cases set out in the second sub - paragraphs of ORG CARDINAL and CARDINAL ; .... "

The presumption created by the first sentence of this text was applicable in the present case .

On some points , there was a change in the law following a judgment handed down by ORG on DATE ( no . CARDINAL ) . It was held in that judgment that LAW , first sub - paragraph , and LAW , second sub - paragraph , of LAW were unconstitutional

" ... in so far as they fail[ed ] to make a decision that an individual acquitted on account of insanity be confined in a psychiatric hospital conditional on a prior finding , either by the trial court or by the judge supervising the execution of sentences , there was a continuing danger to society on account of the ... illness at the time of the application of the measure .... "

Under LAW , as qualified by another Constitutional Court judgment ( no . CARDINAL of DATE ) , termination of a security measure such as Mr. PERSON ’s confinement can be ordered even before expiry of the minimum period , for example on application by the individual concerned , if he no longer presents a danger to society . LAW that the court shall in any event re - examine the position at the end of that period in order to determine whether the person confined still presents such a danger and shall , if appropriate , fix the date for a further examination .

Under LAW , the implementation of a security measure may in certain cases , including that of a person of unsound mind , begin during the investigation or the trial ; this is no more than a discretionary power enjoyed by the court . At this stage , the measure is deemed provisional and only the trial court has jurisdiction over any questions to which it may give rise , including the question of termination of the measure .

For security measures ordered subsequently to the investigation or the trial , LAW confers the power of review and decision on the judge supervising the execution of sentences ( giudice di sorveglianza ) . This institution is comprised of CARDINAL organs : the supervising judge ( magistrato di sorveglianza ) and the supervision division ( sezione di sorveglianza ) . Their respective jurisdictions , which are mutually exclusive , are laid down by sections CARDINAL and CARDINAL of Act no . CARDINAL of DATE , concerning the administration of prisons and the implementation of measures involving deprivation or restriction of liberty . In particular , it is the supervision division which hears applications for termination of security measures .

Supervising judges and supervision divisions give decisions at first instance . The individual concerned and the public prosecutor ’s office have a right of appeal against such decisions either to ORG ( Article CARDINAL of the Code of Criminal Procedure ) or , if the ground of appeal is alleged violation of the law , to ORG ( section QUANTITY no . CARDINAL of DATE ) . They may also challenge a judgment ( decreto ) given by ORG in such proceedings , by filing an application for review ( ricorso per revisione ) with ORG ; in that event , ORG is also empowered to give a decision on the merits of the case ( LAW ) .


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

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

In DATE the applicant 's brother , PERSON , was performing his military service as a gendarmerie soldier in ORG No . CARDINAL in the GPE district within the province of GPE .

On DATE a gendarme soldier , PERSON , who was serving in Regiment No . CARDINAL , had committed suicide by shooting himself with his GCARDINAL rifle .

On DATE at TIME a gendarme soldier , PERSON , found the applicant 's brother dead in a building which was used to hold meetings with the food suppliers to ORG ( “ the commission building ” ) . PERSON immediately informed his superiors about the incident .

At TIME the GPE public prosecutor and a doctor arrived at the scene of the incident . The body was officially identified by the officers who were present . The public prosecutor conducted an examination of the scene of the incident and the body . In his report , he described the room and noted the details of the rifle and the position of the body . The GCARDINAL automatic rifle , together with the spent bullet case and the bullet were sent to the laboratory for the ballistic examinations . Photographs of the scene and the body were taken from several angles . The prosecutor further took statements from the witnesses , including the gendarme soldier PERSON , who had found the body .

PERSON stated the following :

“ I am responsible for the management of the commission building . The doors of the building are generally locked . There are CARDINAL sets of keys for this building ; I keep one of the sets and the other set is kept by the gendarme soldier NORP . I suppose PERSON might have taken the key from NORP . PERSON began working at the secretary 's office in our regiment DATE . TIME , at TIME , while I was on my way to the dormitories , I noticed that the light in the commission building was on . I went to turn the light off and also to inspect the building . I tried to open the door but realised that the door was locked . I then opened the door using my key . When I entered the building , the light in the corridor was on and I realised that the door had been locked from inside . The key was left in the lock . I entered the room on the right side of the corridor and switched the light on . In that room I saw a body lying on the floor . Without looking at who he was , I left the building and informed the duty sergeant PERSON . Together we returned to the commission building . At the beginning I was not able to identify the body . Then my colleagues told me that it belonged to PERSON . PERSON was a very quiet and shy person . He never talked to others about his personal problems . ”

ORG sergeant PERSON stated the following :

“ DATE I was the duty officer at the ORG 's station . At TIME , PERSON told me that a soldier had shot himself in the next building . I went to the place of the incident together with him . We saw the body lying on the floor . His brain was scattered all around the room . We informed our duty superior officer about the incident and he also arrived at the scene . Shortly after that we reported the incident to the prosecutor . PERSON was from the CARDINALth regiment . ”

Gendarme soldier PERSON stated the following :

“ I have been serving in DATE regiment as a secretary . The commission building has CARDINAL sets of keys . PERSON keeps one set of these keys . The other set is generally kept by me or by Tuncer PERSON who is also a gendarme soldier . PERSON started working in a different regiment DATE and was therefore replaced by PERSON . From time to time we gave the keys to PERSON . I spent DATE with him in the office of the CARDINALth regiment . We talked about our work at the secretary 's office . I noticed that he looked stressed but he did not tell me what was bothering him . He only said that he was stressed . He did not mention anything about committing suicide . TIME at TIME we had dinner together . He seemed normal . After dinner , he told me that he wanted to go to the office and asked for the keys . I handed the keys to him . These are the keys with which the door of the commission building was locked from inside . He had borrowed the keys to go to our office . He never told me that he was going to go to the commission building . He was a quiet person who did not have any problems with any of the soldiers or the officers here . He once told us that his father had passed away and that his elderly mother had been looking after him . He never mentioned having problems with his family . ”

ORG soldier PERSON stated the following :

“ PERSON and I were trained together in DATE at the beginning of our military service . After a certain period , he commenced serving at the secretary 's office and I began serving as an instructor . We had dinner together at TIME . PERSON told me that he was stressed . I asked him whether he had received any letters lately and he replied that he had not received any . He told me that he was bored . He was a quiet person . He would not talk much about his family . He had never mentioned suicide . ”

ORG Captain PERSON , the commander of ORG , stated the following :

“ PERSON was serving in my regiment as a secretary . DATE I left the Regiment at TIME and went home . I was informed about the incident TIME I do not know whether he had any problems with his family or why he might have committed suicide . ”

Subsequently , the doctor examined the body at the scene of the incident . According to his findings , the GCARDINAL rifle was between PERSON legs . The spent bullet case was found at an approximate distance of QUANTITY from the body and the bullet was lodged in the ceiling . The rifle had been adjusted for single firing . There were no other bullets in the charger of the rifle . The rifle had blood stains on it . The body was still dressed in military uniform . The doctor noted the presence of a bullet entry hole under the chin , measuring QUANTITY . The bullet had followed a vertical trajectory , destroying the chin and the brain , and then exited at the left apex of the skull . There were traces of gunpowder between the thumb and the index finger of the left hand . MONEY were observed on the body . Both hands had blood on them . At the time of the examination , the body was still warm and rigor mortis had not set in . There were no signs of poisoning . According to the doctor , PERSON had shot himself at a point - blank range and died as a result of brain trauma . The doctor concluded that a full autopsy was not necessary since the cause of the death was without doubt the destruction of the skull and the brain .

On DATE the deceased person 's uncle was called to the Regiment , and PERSON body and his personal belongings were handed over to him .

On DATE the GPE public prosecutor issued a decision of non - jurisdiction as the incident had taken place within military LOC . He therefore transferred the case file to the office of the GPE military prosecutor . The military prosecutor appointed a gendarme officer as rapporteur to investigate the case . During the investigation , the military authorities established that the GCARDINAL rifle , which PERSON had used to shoot himself , had in fact belonged to the gendarme officer PERSON , who had hidden his rifle in the commission building .

On DATE the rapporteur took statements from CARDINAL gendarmes concerning the incident . PERSON , PERSON and PERSON mainly repeated their statements taken by the GPE public prosecutor on DATE of the incident . The rapporteur took a further statement from the gendarme soldier PERSON , who had found the body of PERSON . He asked him to explain the reason as to why he had left his GCARDINAL rifle in the commission building contrary to military orders . He was reminded that according to the rules , he was obliged to confine his rifle in the rifle storehouse . Mr PERSON explained that he had hidden his rifle in the commission building in order to prevent other soldiers from stealing parts of his rifle . He further maintained that there were no bullets in his rifle when he had hidden it in the commission building . The rapporteur also took a statement from the gendarme soldier PERSON , who was serving in the same regiment . He stated that he knew PERSON quite well . He described PERSON as a shy person , who did not like talking . Since PERSON had wanted to serve in the south - east of GPE , he was frustrated when he was assigned to work as a secretary in the administration division .

On DATE , the rapporteur prepared his report . Taking into account that there were no bruises or other signs on the body of PERSON to indicate the use of force or resistance , and the fact that he might have been affected by the suicide which had taken place DATE , the rapporteur concluded that he had committed suicide . The rapporteur further advised that PERSON be prosecuted for disobedience to military orders as he had failed to keep his rifle in the storehouse contrary to military orders .

On DATE the Directorate of Izmir Criminal Police Laboratory reported that the bullet which had been sent for ballistic examination had been fired by the GCARDINAL rifle which had been found at the scene of incident .

By a decision dated DATE , the GPE military prosecutor decided to discontinue the proceedings since the cause of death was clearly established as suicide . In his decision , the prosecutor stated that PERSON had last been seen at the cafeteria where he had his dinner at TIME He had lately been telling his friends that he was bored at the secretary 's office . On DATE of the incident , his colleague PERSON had left his GCARDINAL rifle in the office . At TIME PERSON was found dead by PERSON in CARDINAL of the rooms of the commission building . The military prosecutor further stated that the local public prosecutor and the doctor , who had arrived at the scene shortly after the incident , had taken statements from the gendarmes and prepared an incident report . After having reviewed all the evidence , the military prosecutor concluded that there were no indications which would lead him to conclude that the death had been caused by someone else 's intent or negligence .

On DATE the applicant filed an objection against this decision with ORG . In his petition , the applicant stated that he believed that his brother had been killed and that the investigation carried out by the military prosecutor had not been through enough to establish the true circumstances of his brother 's death . He pointed out , inter alia , that his brother had been killed by a rifle which was issued to another soldier , namely PERSON . Furthermore , according to the applicant , there was nothing to suggest that his brother had a tendency to commit suicide . On the contrary , he had good relations with his family and friends .

On DATE ORG examined the appeal lodged by the applicant . After having reviewed the evidence , including the ballistic reports of the rifle prepared by ORG , the witness statements and the findings of the doctor , the court concluded that further investigations should be carried out in order to eliminate any doubts the deceased person 's family may have . It requested the military prosecutor to conduct further investigations and clarify the following points :

Was it possible to open the door when it was locked from inside and the keys were still in it ?

Was there any hostility between PERSON and PERSON ?

When and why did PERSON take his rifle from the rifle storehouse ?

The soldier guarding the rifle storehouse at the time should be questioned about the time and the person removing PERSON rifle .

Was there any connection between the death of PERSON and the suicide that occurred DATE ?

Which rifle had been issued to PERSON by the army ?

Did PERSON have any psychological problems and did the public prosecutor consult PERSON family to verify whether he had any problems ?

The case file was accordingly sent back to the office of the GPE military prosecutor for further investigation .

On DATE the military prosecutor conducted an on - site investigation at the scene of incident . He gave CARDINAL set of keys to his secretary , who then went in the commission building and locked the door from inside . She left the keys in the lock . The military prosecutor then took the second set of keys and opened the door , which had been locked from inside by his secretary . They established that although the door was locked from inside and the keys were left in the lock , it was possible to open the door from outside by using the second set of keys .

DATE , the military prosecutor took a statement from PERSON , who mainly repeated his previous statements taken on DATE and DATE . He further maintained that he did not have any personal problems with PERSON .

The prosecutor further questioned PERSON , who was the commander of ORG . The commander stated that PERSON had arrived at the regiment DATE prior to the incident . He described him as a shy and quiet person . The commander explained that he was in charge of controlling the rifles and that he conducted regular controls everyday . He had no idea how PERSON had found a bullet , as normally new soldiers were not allowed to keep bullets in their rifles without supervision . He explained that all rifles were kept in the rifle storehouse . Following the incident , PERSON rifle was found in this storehouse . The commander indicated that he had further investigated whether there had been a problem between PERSON and PERSON , however there was nothing to show that the QUANTITY soldiers did not get along . Finally , Mr PERSON confirmed that there had been another suicide in Regiment No . DATE before . However he explained that it was impossible for PERSON to have seen this incident as the area had been secured immediately after the incident .

The prosecutor then took statements from PERSON , PERSON and PERSON , all gendarme soldiers from ORG . These witnesses mainly reiterated their previous statements .

The prosecutor further heard evidence from CARDINAL more gendarme officers , PERSON and PERSON . Both stated that PERSON had no problems with PERSON and described him as a shy person . The witnesses further referred to another suicide which had occurred DATE before PERSON death . They stated that this incident had taken place in another regiment and that they had not been allowed to approach the incident scene .

On DATE the military prosecutor took statements from the relatives of PERSON , namely from his cousins PERSON and PERSON , his sister NORP , and his nephew PERSON . The witnesses stated that PERSON had no problems with his family and that they did not believe that he had committed suicide .

Having completed the investigation file , the GPE military prosecutor transferred the case to ORG for re - examination .

On DATE ORG , having examined the complete investigation file , concluded that a thorough investigation had been carried out into the incident , eliminating all uncertainties . While accepting that there seemed to be an undisciplined atmosphere within the regiment due to the fact that a gendarme soldier , namely PERSON , was able to keep his rifle in his office rather than in the rifle storehouse , the court concluded that this fact was not in itself sufficient to establish a causal link with PERSON death . Basing itself on the results of the ballistic examination , the incident report , the autopsy findings and the witness statements , ORG concluded that PERSON had committed suicide . It accordingly rejected the applicant 's appeal and this decision was served on the applicant on DATE .


Violation of Art. 6-1;Violation of Art. 5-3;Violation of Art. 5-5;Violation of Art. 6-1;Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . At the relevant time he was a Lance Corporal in the NORP army stationed in GPE .

In DATE he was reported to his Commanding Officer on a wounding charge , which incident had allegedly occurred in DATE . On DATE he was arrested on CARDINAL unrelated charges of failing to attend and disobeying a lawful command . On DATE he appeared , on the orders of his Commanding Officer , on the latter CARDINAL charges and he was reduced to the ranks . On DATE he was also remanded for an abstract of evidence ( see paragraph CARDINAL below ) to be compiled on a charge of wounding with intent to do grievous bodily harm contrary to section CARDINAL of the Offences Against the Person Act CARDINAL .

NORP In DATE he went missing from his unit . On DATE he was arrested in GPE by the civilian police , charged with aggravated burglary and handed over to the military authorities . When it was discovered that he had been absent without leave , he was placed in close arrest in the guardroom of GPE garrison . On DATE he was escorted under close arrest back to GPE .

The Government maintained that a copy of the information pamphlet entitled “ The rights of a soldier charged with an offence under the Army Act DATE ” ( DATE edition ) would have been available to the applicant at ORG garrison and would have been provided to him against signature of a form acknowledging receipt . Since the relevant disciplinary file was lost , the Government could not provide a copy of the form . The applicant accepted that he received a copy of the pamphlet while in close arrest in GPE and that it was likely to have been the DATE version of the pamphlet .

On DATE he appeared before his Commanding Officer who remanded him in close arrest and ordered an abstract of evidence to be compiled on the absence without leave charge with a view to that Officer applying for power to award extended detention ( paragraphs CARDINAL and CARDINAL below ) . No such application was in fact made . During that hearing the applicant received a copy of the charge sheet ( the absence without leave charge ) .

The applicant maintained , and the Government denied , that at that same meeting he was asked by his Commanding Officer whether he would be pleading guilty or not guilty and that he had indicated the former .

On DATE the applicant appeared before his Commanding Officer when the latter read the charge of absence without leave and formally asked the applicant whether he pleaded guilty or not guilty . He pleaded guilty and he was awarded CARDINAL days’ military detention . On DATE he was also remanded for trial on the wounding charge .

The applicant claimed that he was not afforded the opportunity of electing trial by court - martial whereas the ORG submitted that he would have been given this option by the Commanding Officer before the finding of guilty was recorded on DATE .

On DATE the applicant appeared before a ORG in GPE ( GPE ) on the aggravated burglary charge and was remanded on bail until DATE . He completed his military sentence of imprisonment on DATE . He was then informed by his Commanding Officer that he was to be retained in close arrest until his trial by court - martial on the wounding charge . He was then released to open arrest on DATE following representations by his civilian solicitor . In DATE the civilian prosecuting authorities discontinued the burglary proceedings . In DATE a notice of temporary discontinuance issued as regards the court - martial proceedings on the wounding charge . No further action on that charge has been taken against the applicant who was subsequently administratively discharged in DATE for reasons not related to the afore - mentioned charges or conviction .

The relevant domestic law and practice contained in LAW DATE ( “ the DATE LAW ) , LAW ) DATE and LAW ( “ QR ” ) are outlined in the PERSON v. the United Kingdom judgment ( [ ORG ] , no . CARDINAL , PERSON , ORG § DATE ) .

The relevant provisions of the Army Act DATE which regulated court - martial procedures are set out in the GPE v. the GPE judgment ( DATE , Reports of Judgments and Decisions CARDINAL-I , § § DATE ) .

Following LAW CARDINAL ( Commencement No . CARDINAL ) Order ( adopted on DATE ) , LAW ( “ the LAW ” ) came into force into force on DATE . LAW reads as follows :

“ Nothing in LAW insofar as it relates to LAW [ the new procedures for dealing with offences under the various Services Acts ] to the LAW shall have effect in relation to –

( a ) any summary dealing or summary trial ,

( b ) any trial by a court - martial or a standing civilian court , or

( c ) the hearing of any appeal by ORG ,

which commenced DATE . ”

The CARDINAL Act significantly amended court - martial procedures and the new system is also summarised in the PERSON judgment ( at § § CARDINAL - CARDINAL ) and is outlined in more detail in the case of ORG v. GPE ( [ ORG ] , no . MONEY , § § DATE , ECHR CARDINAL ) . The references below are to GPE prior to its amendment .

Absence without leave is an offence under LAW , the punishment for which includes imprisonment for a maximum of DATE .

An allegation that a person subject to military law had committed an offence had to be reported in the form of a charge to the Commanding Officer , who would investigate . When a Commanding Officer did so , he had to read and , if necessary , explain the charge to the accused . He had to either hear evidence orally himself ( summary of evidence ) or cause it to be reduced to writing ( abstract of evidence ) . The latter was obligatory if it was considered that the matter could be dealt with summarily and extended detention could be awarded on any finding of guilt ( see “ summary punishment ” below ) . Having heard the evidence , the Commanding Officer had to determine whether the accused was guilty or not and had either to dismiss the charge or record a finding of guilty in which case he could award CARDINAL or more of the prescribed punishments .

If , having heard the case , the Commanding Officer considered the accused to be guilty and that he would award a punishment greater than a reprimand or a minor punishment or a punishment involving a forfeiture of pay , he could not record a finding of guilty until he had afforded the accused the opportunity to elect trial by court - martial ( section CARDINAL(CARDINAL ) of the DATE Act ) . An accused could have TIME to so elect . Even if an accused elected trial by court - martial immediately , the Commanding Officer gave the accused an opportunity to withdraw his election DATE and , if he did not so withdraw , the accused would be remanded for trial by court - martial . Thereafter he could only withdraw his election with the consent of the Commanding Officer ( prior to remand for court - martial ) or the court - martial Convening Officer ( after remand for court - martial ) .

The pamphlet entitled “ The rights of a soldier charged with an offence under the Army Act DATE ” ( DATE edition ) contained the above information ( “ the information pamphlet ” ) .

If an accused was a soldier , his Commanding Officer ( not below the rank of Field Officer ) could award detention for DATE or , if extended powers were granted , for DATE ( section CARDINAL ( CARDINAL)(a ) of the CARDINAL LAW CARDINALA of ORG DATE ) .

NORP QR CARDINAL provided that , following an accused ’s election for trial by court - martial , a charge could not be increased in gravity before the court - martial unless evidence of a more serious offence subsequently became available . As to punishment options available to the court - martial , QR CARDINAL provided as follows :

“ If an accused has elected to be tried by court - martial his punishment is not for that reason to be increased . In ordinary circumstances , the court should not award a heavier punishment than that which could have been awarded summarily . However , the court sentencing him is not bound by the limits imposed on summary awards ... ”

The information pamphlet contained the above information .

Section CARDINAL of the DATE Act set down a procedure by which an accused ( a warrant officer , non - commissioned officer and a soldier ) could complain to ORG if he considered himself to have been wronged in any manner by his Commanding Officer . LAW made similar provision for complaints by officers .

Section CARDINAL of the DATE Act provided that ORG and certain senior officers “ may ” review a finding or award emerging from a summary trial . On any such review , the reviewing body or officer could quash the finding if it considered it expedient to do so and/or could vary the award by substituting a less severe punishment .


No violation of Art. 6-1;Not necessary to examine Art. 27-1-b

ORG Mr PERSON , an NORP national who was born in DATE , is Professor of Public Law and ORG at ORG ) and lives in GPE . His wife , who was a schoolteacher with the status of a civil servant in the region ( Land ) of GPE , died on DATE .

ORG On DATE Mr PERSON applied to ORG ( Landesschulrat ) for a survivor ’s pension .

ORG On DATE it dismissed his application on the ground that whereas under section CARDINAL ( CARDINAL ) of LAW DATE ( Pensionsgesetz DATE - see paragraph CARDINAL below ) a widow of a civil servant could in certain circumstances claim a pension , a widower could not .

Mr PERSON appealed to ORG ( PERSON ) , which upheld the decision on DATE .

ORG On DATE Mr PERSON applied to ORG ) and on DATE to ORG ( Verwaltungsgerichtshof ) .

ORG In a separate development on DATE , after holding a public hearing , ORG had repealed section CARDINAL ( CARDINAL ) of LAW DATE with effect from CARDINAL DATE on the ground that the difference in treatment between widowers and widows in respect of pension payments was in violation of the principle of equal treatment ( ORG ) .

ORG On DATE ORG dismissed the applicant ’s appeal . It considered that , irrespective of the repeal of the statutory provision in question , his claim for a widower ’s pension had no legal basis .

ORG On DATE , after deliberating in private , ORG declined to accept the appeal for adjudication ( ArticleCARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) - see paragraph CARDINAL below ) on the ground that it did not have sufficient prospects of success . It considered that it had already repealed section CARDINAL ( CARDINAL ) of LAW and that it could not rule on the same question again .

ORG On DATE ORG enacted the eighth amendment to LAW DATE ( PERSON - see paragraph CARDINAL below ) with retrospective effect from DATE .

ORG On CARDINAL DATE Mr PERSON reapplied to ORG for a survivor ’s pension .

ORG On DATE the ORG awarded him a pension of CARDINAL NORP schillings ( ORG ) with effect from DATE , which represented CARDINAL of his pension rights , in accordance with the transitional provisions under Part II , paragraph CARDINAL , of LAW as amended ( see paragraph CARDINAL below ) .

ORG On DATE the applicant appealed against that decision to ORG . He argued that ORG had not ruled on whether or not his pension should be suspended , a matter that affected him inasmuch as he was employed as a university professor ( section CARDINAL ( a ) ( CARDINAL ) of LAW as amended - see paragraph CARDINAL below ) . He also said that both the transitional provisions under Part II , paragraph CARDINAL , of LAW as amended and section CARDINAL ( a ) ( CARDINAL ) of this LAW were in violation of the principle of equality before the law and were unconstitutional .

ORG On DATE ORG confirmed the amount of the pension due to the applicant . It decided , however , to suspend payment on the ground that he was gainfully employed .

ORG On DATE Mr PERSON applied to ORG complaining that the transitional provisions of LAW , as amended , under which he was entitled only to a reduced pension until DATE , and section DATE ( a ) ( CARDINAL ) of the LAW , pursuant to which his pension rights had been suspended , were unconstitutional .

ORG On DATE ORG decided to review the constitutionality of section CARDINAL ( a ) of LAW ( Article CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) . It did not rule on whether the transitional provisions of the Act were constitutional .

ORG On DATE ORG held a hearing at which it heard argument by the representative of the Government and the applicant .

ORG On DATE ORG repealed section CARDINAL ( a ) of LAW with effect from DATE on the ground that it was in violation of the principle of equal treatment . It said that no convincing reason had been given for the difference in treatment between , on the CARDINAL hand , a retired civil servant or his surviving spouse with additional income and , on the other hand , a civil servant still in employment who likewise had additional income .

ORG On DATE the ORG quashed ORG decision of DATE ( see paragraph CARDINAL above ) .

ORG On DATE ORG made a further ruling and upheld ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) awarding the applicant a pension of ORG CARDINAL,CARDINAL.CARDINAL with effect from DATE and payable immediately .

ORG On DATE the applicant again applied to ORG claiming that the transitional provisions of LAW under which he was only entitled to a reduced pension until DATE were unconstitutional ( section CARDINAL ( a ) ( CARDINAL ) of LAW - see paragraph CARDINAL below ) . He did not ask for a hearing to be held .

ORG On DATE , after deliberating in private , ORG dismissed Mr PERSON ’s appeal ( section CARDINAL ( CARDINAL ) of LAW ( Verfassungsgerichtshofsgesetz ) - see paragraph CARDINAL below ) . It said that the transitional provisions in question reflected the continuing change in attitudes towards the equality of the sexes and was not therefore in violation of the principle of equal treatment .

ORG On DATE Mr PERSON applied to ORG of ORG relying on the same facts as he had in his application to the Commission . He alleged that there had been a violation of LAW , which provides :

" All persons shall be equal before the law and shall be entitled without any discrimination to the equal protection of the law . "

ORG On DATE ORG found that there had been a violation of the LAW .

ORG The relevant provisions of LAW DATE read as follows :

" A civil servant shall acquire the right to a pension for himself and the members of his family from DATE he assumes his duties ... "

" A retired civil servant shall be entitled to a DATE pension if he has completed CARDINAL reckonable years of service . "

" Pensions shall be calculated with reference to the basic DATE salary and the total number of reckonable DATE of service . "

ORG In its DATE version section CARDINAL ( CARDINAL ) of LAW provided as follows :

" The widow of a civil servant shall be entitled to a DATE pension if the civil servant himself was entitled to a retirement pension at the time of his death or if he would have been entitled to one when he retired . "

ORG Since DATE , when the eighth amendment to the Pensions Act DATE came into force , the relevant provisions of this Act have been as follows :

" The surviving spouse of a civil servant shall be entitled to a DATE survivor ’s pension if the civil servant himself or herself was entitled to a retirement pension at the time of his or her death or if he or she would have been entitled to one when he or she retired . "

[ provision already amended in DATE ] " A survivor ’s pension shall amount to PERCENT of the retirement pension calculated on the basis of the total number of reckonable DATE of service and of the spouse ’s grade at the time he or she retired ... "

" If a civil servant or a surviving spouse has income deriving from current employment , the retirement pension or survivor ’s pension shall be suspended ... "

" The DATE payments to which the widower or former spouse shall be entitled are : - from DATE , CARDINAL of the pension ; - from DATE , CARDINAL of the pension ; - from DATE , the full pension . This restriction shall not apply if the widower or former spouse is incapable of gainful employment or indigent . "

ORG The relevant provisions of LAW read as follows :

" Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . "

" CARDINAL . ... The Constitutional Court shall also rule on the constitutionality of Acts when an individual has applied to it claiming that his or her rights have been breached by such Acts on account of their unconstitutional character ...

If an LAW has been abrogated on the basis that it is unconstitutional or if ORG has held under paragraph CARDINAL that an Act was unconstitutional , its decision shall be binding on all courts and administrative authorities .

Except in relation to the case before the ORG , abrogation of an LAW shall not have retrospective effect , unless specifically so provided in the judgment . If in its abrogation decision the ORG has set a time - limit under paragraph CARDINAL [ for a maximum of DATE ] , the Act shall remain applicable to facts occurring until the expiry of the time - limit , except for facts relating to the case before the ORG . "

" CARDINAL . The Constitutional Court shall hear appeals against the decisions of administrative authorities , including those of independent administrative tribunals , where the applicant claims that the decision has infringed a right secured by the LAW or that his rights have been violated by the enforcement of a regulation contrary to the law , an LAW contrary to the LAW or an international treaty incompatible with NORP law . An appeal shall only lie once all other remedies have been exhausted .

Up to the time of the hearing ORG may by means of a decision decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The ORG may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . "

" CARDINAL . The judgments of ORG , except for those referred to in sections DATE ( c ) , shall be delivered following a public hearing to which the plaintiff , the opposing party and all other parties to the proceedings shall be summoned .

ORG may decide at a private sitting , without further proceedings or a hearing , upon a proposal by the reporting judge :

to decline to accept a case for adjudication under LAW para . CARDINAL of LAW ;

to dismiss an application for :

( a ) manifest lack of jurisdiction of ORG ,

( b ) failure to comply with a statutory time - limit ,

( c ) failure to rectify a procedural defect ,

( d ) raising a point which is a matter of settled precedent ,

( e ) lack of standing ;

to strike the case out of its list where the application has been withdrawn or the case has been settled . ( paragraph CARDINAL )

[ paragraph amended by LAW of DATE ] ORG may decide not to hold a hearing when it is apparent from the written pleadings submitted to it by the parties and from the files relating to the earlier proceedings that a hearing is not likely to assist the ORG in its understanding of the case . Upon a proposal by the reporting judge it may also decide , without a hearing , at a private sitting :

to dismiss an appeal if there has clearly been no violation of a right secured by the LAW ;

cases where the question of law has been sufficiently clarified by the previous case - law of ORG ;

to allow an appeal that has led to the setting aside of a regulation contrary to the law , an LAW contrary to the LAW or an international treaty incompatible with NORP law .

" Appeals shall only lie under LAW para . CARDINAL of the LAW once administrative remedies have been exhausted and within DATE of the decision taken at last instance being served on the plaintiff . "

" The appeal and the documents appended thereto shall be communicated to the authority that took the decision in issue , giving it a period of not DATE within which to submit its observations . "

" CARDINAL . When the observations in reply have been received or the time - limit has expired ... the President of the Constitutional Court shall set the date of the hearing .

The hearing shall be held in the presence of the applicant , the authority in question ( section DATE ( CARDINAL ) ) and any other party to the proceedings . "

ORG The instrument of ratification of the Convention deposited by ORG on DATE contains a reservation which provides as follows :

" The provisions of LAW ( article CARDINAL ) shall be so applied that there shall be no prejudice to the principles governing public court hearings laid down in LAW version of LAW . "


Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the ORG provincial gendarmerie command issued an arrest warrant in respect of the applicant , on the basis of which he was arrested and taken into custody on DATE by police officers from the Anti - Terrorist Branch of ORG . Upon his arrest , the applicant signed an arrest report acknowledging the warrant and the authorities’ intention to transfer him to the ORG provincial gendarmerie command .

On DATE a house search report was drafted by police officers from the Anti - Terrorist Branch of ORG which indicated that the applicant had been arrested on suspicion of affiliation to the ORG ( ORG ) , an illegal organisation , and of having committed homicide . The report was signed by QUANTITY police officers and the applicant .

After being held for DATE in the GPE police headquarters , the applicant was transferred to GPE , where he was held in the custody of the gendarmerie until DATE .

On DATE the applicant was questioned by officers from the ORG provincial gendarmerie command , where he was requested to provide information regarding his affiliation to the ORG and his involvement in the killing of a certain GPE The applicant stated that he was a member of the ORG and that he had killed GPE in compliance with orders he had received from that organisation .

On DATE the applicant was brought before the ORG public prosecutor , where he alleged that he was not involved in the activities of the ORG . The applicant further contended that in DATE he had killed GPE in his village as he had suspected that his partner had had a relationship with him . The applicant stated that the murder was not linked to any terrorist activity . The statements that he had made at the gendarmerie command were read to him . The applicant denied having made them . Furthermore the statements of CARDINAL other suspects , GPE , GPE and GPE , who maintained that the applicant was a member of the ORG , were also read to him . The applicant rejected these statements , claiming that these persons were relatives of GPE

On DATE , the applicant was brought before a single judge at ORG . He reiterated the statements which he had made before the public prosecutor . Following his questioning , the judge remanded the applicant in custody , holding that there were strong indications that he had committed the offence defined in LAW , namely carrying out activities for the purpose of bringing about the secession of part of the national territory .

On CARDINAL DATE the public prosecutor at ORG filed a bill of indictment against the applicant and CARDINAL other persons . The applicant was charged under LAW of the former LAW , and with killing GPE

On DATE ORG held a hearing and ordered the applicant ’s continued detention on remand in view of the nature of the offence , the state of evidence and the content of the case file .

On DATE the applicant made statements before the firstinstance court , denying the charges against him .

DATE and DATE , the first - instance court postponed the hearings as it was awaiting information and documents from the ORG public prosecutor ’s office .

On DATE ORG requested the ORG gendarmerie command to provide information concerning the killing of GPE The court subsequently postponed the hearings until DATE on account of the failure of the gendarmerie command to submit the relevant information .

On DATE ORG requested ORG of the same court to submit a copy of the file in the case brought against GPE , GPE and GPE DATE and DATE , the trial court postponed the hearings as ORG failed to submit a copy of the case file .

During the trial , ORG held CARDINAL hearings . At the end of every hearing the first - instance court considered the applicant ’s detention during judicial proceedings , either of its own motion or at the applicant ’s request . It ordered the applicant ’s continued detention pending trial , having regard to the nature of the offence and the state of the evidence .

On DATE ORG convicted the applicant under LAW of homicide and sentenced him to MONEY imprisonment . The court found no convincing evidence that the offence committed by the applicant was linked to terrorist activities . The court ordered the applicant ’s release from prison in view of the length of his detention during judicial proceedings .

On DATE ORG quashed the judgment of DATE because the applicant had been unable to examine CARDINAL witnesses against him during the trial . The case was subsequently remitted to ORG of ORG .

On DATE the first - instance court requested ORG to obtain submissions from the applicant on the statements of the witnesses . DATE and DATE , ORG held CARDINAL more hearings whilst awaiting the applicant ’s submissions .

On DATE the first - instance court convicted the applicant once more of homicide and sentenced him to DATE imprisonment .

On DATE ORG upheld this judgment .

Article CARDINAL of the Code of Criminal Procedure in force at the material time provided that a person could be remanded in custody where there was a fear that the accused would abscond , or where there were attempts by the accused to remove evidence or interfere with witnesses . When the offence was a felony , it was presumed that the suspect was planning to escape . The last paragraph of Article ORG provided that detention on remand could not be imposed if another measure was adequate .

Articles CARDINAL - CARDINAL of the Code of Criminal Procedure in force at the material time set out the conditions for release on bail .


Violation of Art. 3;Violation of Art. 13

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

The applicant was born in DATE and lives in PERSON . The facts of the case are disputed by the parties . Their respective accounts may be summarised as follows .

The applicant submitted that at TIME on DATE she and her sister were stopped on the street by a police officer ( “ ORG ” ) who ordered them to accompany him to FAC . When they refused to comply with ORG ’s request , he forcibly took them to the police station and , according to the applicant , at CARDINAL point he pushed her while she was on a flight of stairs at the police station . The applicant submitted that while she was at the police station she was beaten severely by CARDINAL drunk men in plain clothes . In particular , she claimed that the QUANTITY men pushed her from her chair , hit her head against a steam radiator , tried to strangle her and punched and kicked her in the head and body . She claimed that all these acts took place in the presence of police officers . The applicant and her sister were later driven to FAC and held in custody until she was brought before a judge the following TIME . During this period she was not examined by a doctor .

The Government contested the applicant ’s account of the events surrounding her arrest on DATE . In doing so they relied on statements provided by ORG , the applicant ’s brother - in - law , another police officer ( “ R ” ) , and a civilian who was present at the police station when the applicant arrived . The Government submitted that on TIME DATE the applicant had been celebrating her birthday at her sister ’s home . She got into a physical fight with her sister ’s husband . It is not clear from the statements whether the applicant ’s brother - in - law went to the police station to report the applicant ’s behaviour or whether ORG was walking past the applicant ’s sister ’s home when he noticed the fighting . Nevertheless , the statements of ORG and the applicant ’s brother - in - law both indicated that when ORG arrived at the scene , the applicant was assaulting her brother - in - law and would not calm down . In particular , the applicant ’s brother - in - law told the prosecutor that the applicant had pushed him to the ground and was hitting him with her fists .

ORG confirmed in his statement to the prosecutor that when he arrived at the scene the applicant insulted him and her brother - in - law . After he cautioned her , she began to hit and kick her brother - in - law . The applicant ’s brother - in - law also stated that :

“ Tanea [ the applicant ] picked a fight with ORG and was pulling his epaulettes with a view to tearing them off , called him “ a rotten cop ” , told him that she was living with a former prisoner and that he would eliminate him . ”

AC therefore asked the applicant , her sister and her brother - in - law to accompany him to the station . In his statement to the prosecutor he conceded that he had to use some force to bring the applicant there . In his evidence given to ORG he stated that he grabbed the applicant by the hand but did not use any other form of physical force . At the police station the applicant continued to be aggressive towards ORG . The applicant ’s brother - in law stated that :

“ At the police station , PERSON and the sister in law PERSON were continuing to make noise , calling the policemen “ rotten cops ” and other explicit words . ”

A civilian who happened to be at the police station when the applicant , her sister and her sister ’s husband arrived , stated that :

“ The people [ the police officer ] brought with him were inebriated , were shouting , insulting the policeman , pulling him by his clothes and threatening him with being fired from the police . ”

None of the witnesses indicate that the applicant had any visible injuries when she arrived at the police station .

The Government stated that after the police officer had drawn up a report documenting the applicant ’s misdemeanour , she was transported to a public drugs clinic so that her blood alcohol level could be tested . The ORG submitted a report from the clinic which confirmed that the applicant was intoxicated .

On DATE the ORG found that the applicant had been drunk and disorderly and was guilty of the administrative offences of insulting a police officer and disobeying the lawful orders of a police officer . The court fined her CARDINAL NORP lei ( MDL ) ( CARDINAL ( ORG ) at the time ) .

On DATE the applicant was examined by a forensic doctor . She told the doctor that she had been beaten by CARDINAL unknown men . On DATE she was examined by a neurologist . The final medical report of DATE , as amended on DATE , stated , inter alia , that :

“ [ The applicant ’s ] head concussion , multiple contusions of the soft tissues of the head , multiple bruises of QUANTITY up to QUANTITY on her arms , legs , right hemiabdomen , a scratch of QUANTITY on her back , have been inflicted by blows with a blunt object , possibly at the indicated time and lead to a short - term health disorder /over CARDINAL , but not more than DATE days/ and are qualified as light bodily injuries . ”

On DATE the applicant appealed against the judgment of CARDINAL July CARDINAL . She pleaded her innocence and denied that she had been drunk . The applicant described the circumstances of her ill - treatment and attached a copy of the medical report of DATE .

On DATE the ORG upheld her appeal , quashed the judgment of ORG on the ground of procedural mistakes and ordered a re - trial by the first - instance court .

On DATE the ORG found the applicant guilty of insulting a police officer and fined her MDL CARDINAL . She appealed .

By a final judgment of DATE ORG dismissed her appeal .

In the meantime , on DATE the applicant had lodged a complaint with ORG . In the complaint she stated that on DATE she had been beaten by CARDINAL unknown men in the presence of police officers . She attached the medical report of DATE and described in detail the circumstances of her case , providing the names of the QUANTITY police officers who had been present during her ill - treatment .

Following the applicant ’s complaint , the prosecutor of ORG interviewed her brother - in - law , ORG , R and the civilian who had been present at the police station when the applicant arrived . On DATE the prosecutor informed the applicant that ORG had acted in accordance with the law and that her complaint had been dismissed on DATE on the ground that there was a lack of “ constitutive elements ” of an offence .

On DATE the applicant appealed to ORG against the decision of ORG of DATE . She stated , inter alia , that the prosecutor had omitted to examine the ORG statements which had been enclosed with the case file and the medical report of DATE . The applicant also submitted that she had been beaten by ORG , R and another police officer ( “ C ” ) and that her ill - treatment had been witnessed by her nephew ( “ N ” ) and CARDINAL other women ( “ OC ” and “ RC ” ) .

ORG considered the applicant ’s submissions at an oral hearing . In the course of the hearing the applicant , her sister , and ORG gave oral evidence . In her evidence to the court , the applicant ’s sister stated that both she and the applicant had been beaten by CARDINAL unknown men in plain clothes and that the events had been witnessed by police officers and by her son , N. In a final judgment of DATE ORG dismissed the applicant ’s appeal . It found that the decision of DATE had been lawful and that there were no legal grounds for its annulment .

Section CARDINAL

“ An abuse of power , committed by an official , which exceeds the rights and duties provided by law and causes considerable damage to the rights of physical persons ... accompanied by acts of violence or by acts of torture and humiliation of the victim shall be punishable by imprisonment of DATE and by a prohibition on carrying out certain activities for a period of DATE . ”

Section CARDINAL

“ ( CARDINAL ) If a party does not agree with the result of the examination of his or her complaint by the prosecutor , he or she shall complain to the investigation judge ... .

( CARDINAL ) The parties have the right to lodge an appeal with the investigation judge ... against a refusal to institute criminal proceedings ... .

( CARDINAL ) The complaint shall be addressed to the investigation judge ... within DATE .

( CARDINAL ) The complaint shall be examined within DATE ... .

( CARDINAL ) Provided that the complaint is substantiated , the investigation judge shall issue a decision ordering the prosecutor to remedy the violations of human rights and freedoms and , if appropriate , shall annul the [ prosecutor ’s decision ] .

( CARDINAL ) The decision of the investigation judge is irrevocable . ”

NORP The relevant provisions of LAW read as follows :

Section CARDINAL

“ Anyone who acts illegally and culpably in respect of another person , shall repair the pecuniary and ... the non - pecuniary damage caused by his or her actions or omissions .... ”


Preliminary objections dismissed;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - claim dismissed

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in LOC .

On DATE the applicant was charged with the rape of T. , aged CARDINAL at the time of the offence in DATE . The charge was based on the investigator ’s interviews with the girl ( T. ) , the girl ’s mother PERSON and a neighbour PERSON , as well as on the findings of the medical examination carried out on the victim on DATE . The applicant asked the investigator to arrange for a confrontation with the prosecution witnesses and the medical expert . On DATE the investigator refused his request . On DATE ORG upheld that decision as lawful , in the final instance .

At the beginning of the trial , once the applicant learned that the witness PERSON and the medical expert were not present , he asked the court to secure their attendance . The judge replied “ Where shall I get them ? ” and refused his request .

The applicant pleaded not guilty . He admitted that in DATE he had gone with T. to the village of GPE where they had spent TIME at his ex - wife ’s house but he denied having raped the girl .

Before the court PERSON testified that in DATE she had found a note written by T. In the note the girl wrote that the applicant had raped her in DATE in the village of GPE . She questioned the girl about the note and ORG confirmed its contents .

At the trial ORG confirmed that the applicant had raped her .

On DATE the ORG convicted the applicant of aggravated rape , an offence under LAW ( v ) of LAW , and sentenced him to DATE and CARDINAL months’ imprisonment .

ORG considered that the applicant ’s guilt had been sufficiently established on the basis of the victim ’s statements , which were corroborated by the following evidence :

the findings of the medical examination carried out on DATE which described scars on T. ’s hymen . The scars might have been caused by impact of a hard object . It was not possible to establish when they had been caused ;

the written statement by the neighbour PERSON made during the pre - trial investigation . TIME DATE , PERSON whose flat was separated from that of the applicant ’s ex - wife by a partition – heard a girl shrieking and imploring her father to stop . The girl sobbed for a while . PERSON shouted at the applicant and told him to stop harassing the girl . At that time she thought that the girl was a daughter of the applicant , PERSON The sobs subsided but then the girl started crying again and begging her father to stop . The following day PERSON met the applicant and asked him what had happened . He replied that it was none of her business ;

the note written in a child ’s handwriting which stated that the author had been raped by “ Andryukha ” ( a diminutive of the applicant ’s first name ) . T. confirmed that she had written the note .

In his statement of appeal the applicant complained , in particular , that the trial court had not secured the attendance of PERSON and the medical expert .

On DATE ORG of GPE upheld the judgment of DATE on appeal . It held that the court ’s conclusions had had a substantial basis in the statements by the victim which had been corroborated by other evidence , in particular , the child ’s note , PERSON testimony “ before the court ” [ sic ] and the findings of the medical examination .

On DATE a deputy Prosecutor General lodged an application for supervisory review with the ORG of ORG . He submitted that ORG and ORG had infringed the applicant ’s right to have the witness PERSON and the medical expert examined .

On DATE the Presidium of ORG granted the prosecutor ’s application in part . It found that the appeal court had not given any consideration to the applicant ’s argument that his request for examination of the witnesses for the prosecution had been groundlessly rejected . It also found that the appeal court had wrongly stated that PERSON had been heard in court . The ORG quashed the appeal judgment of DATE and remitted the case for a new appeal hearing .

On DATE ORG held a new appeal hearing . It noted that the applicant had not been able to confront PERSON and the medical expert during the pre - trial investigation or in court . It found that the applicant ’s rights under LAW ( d ) had been infringed , quashed the conviction and ordered a new trial .

It appears that on DATE ORG issued a new judgment in the applicant ’s case . However , a copy was not made available to the ORG . Although the applicant indicated his intention to lodge an appeal against it , he did not submit a copy of his statement of appeal . No further information about these proceedings was received .

On DATE the applicant ’s representatives , PERSON and PERSON , submitted observations in reply to the ORG ’s memorandum and claims for just satisfaction . They enclosed , in particular , the following documents :

( a ) legal - assistance agreement no . CARDINAL of CARDINAL DATE , according to which the advocate PERSON undertook to represent the applicant before ORG for a fee of MONEY ( RUB ) . The field for the applicant ’s signature contained the note “ in accordance with the authority form for the ORG ” but no signature ;

( b ) legal - assistance agreement no . CARDINAL of DATE , under which PERSON undertook to represent the applicant before ORG for a fee of RUB CARDINAL . The field for the applicant ’s signature contained the note “ in accordance with the authority form for the ORG ” but no signature .

On DATE the Government submitted their comments on the applicant ’s claim for just satisfaction . They alleged , in particular , that the above documents were “ legally void and issued contrary to fundamental rules of preparation of legal documents ” because there was no signature by the applicant or a person authorised to sign on his behalf . In their view , a power of attorney issued for representation of the applicant before courts did not allow PERSON to sign , acting as the agent of the applicant , the legal - assistance agreement which bound the applicant to pay for her services .

On DATE the Representative before ORG Mr Laptev ( “ the Representative ” ) sent a letter to the director of ORG of ORG , which enclosed a copy of legal - assistance agreement no . CARDINAL and contained the following request :

“ ... The said agreement is not signed by either Mr PERSON or a person authorised by him ... In this connection I request [ you ] to comment on the lawfulness of the actions by the advocate PERSON who had compiled on behalf of her client ( Mr PERSON ) and apparently without his knowledge , a legal - assistance agreement which imposed on PERSON , also without his knowledge , the obligation to pay a large amount ( MONEY ) .

On the basis of the Regulations on the Representative of GPE before ORG , approved by President ’s Decree no . CARDINAL of CARDINAL DATE , I request [ you ] to prepare and send the above information to my address by DATE ” . ( bold - facing in the original letter )

On DATE the acting first deputy director of ORG of ORG PERSON sent a letter to the director of ORG no . CARDINAL where PERSON worked . He wrote that on DATE ORG had received a request from the Representative , who had asked the Ministry to verify whether PERSON had lawfully listed as taxable income the proceeds from legal - assistance agreement no . CARDINAL of CARDINAL DATE concerning representation of PERSON PERSON before the ORG . Referring to LAW paragraph CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , LAW requested the director to produce , within DATE , a copy of the legal - assistance agreement , a copy of the power of attorney issued by PERSON and copies of all the existing documents concerning the implementation of that agreement and payments effected in its pursuance .

On DATE PERSON replied to PERSON that the requested documents were covered by lawyer - client privilege and could not be made available to the police unless a criminal case had been formally instituted .

On DATE PERSON , a senior operational officer of ORG of ORG , and his superior PERSON , deputy head of the department , contacted PERSON by telephone and asked her to provide the documents in connection with the inquiry conducted at the request of the Representative .

According to the applicant , in DATE he was visited in prison by PERSON , an employee of ORG of ORG , who asked him to reply to the following questions :

“ CARDINAL . How did [ the applicant ] meet PERSON and PERSON ?

NORP Who gave [ him ] the address of ORG and when did it happen ?

Where and how was the legal - assistance agreement compiled ? ”

The applicant refused to answer the questions or give any statements in the absence of his lawyers . The meeting lasted TIME .

On DATE the applicant gave a written statement to the director of ORG no . CARDINAL . He stated that he had never made any complaint or inquiries either to ORG or any other ORG authorities in connection with his representation by PERSON and PERSON in the supervisory review and GPE proceedings .

On DATE the applicant submitted a new power of attorney for his representation by PERSON . In the covering letter he asked the ORG not to believe the ORG ’s allegation that the previous power of attorney had been forged .

Also on DATE , the head of ORG sent a copy of legal - assistance agreement no . CARDINAL to the President of ORG . He claimed that the agreement had been entered into in breach of LAW and LAW , as it had not been signed by either Mr PERSON or a person authorised to act on his behalf . The President of ORG was told to carry out an inquiry into the situation and report to ORG as soon as possible . In reply , the President of the GPE City Bar informed ORG that “ PERSON represented Mr PERSON before ORG on the basis of a duly completed form of authority ” and that “ her actions in the framework of the legal - assistance agreement had been approved by the applicant ” . He pointed out that financial aspects of the legal - assistance agreement were covered by lawyer - client privilege .

On DATE PERSON complained to the ORG of a harassment campaign against her in connection with her representation of the applicant in the GPE proceedings . She alleged a hindrance to the applicant ’s right of individual petition in breach of LAW .

On DATE the ORG examined the matter and decided to obtain comments from the Government .

According to the applicant , on DATE he was taken into the office of a prison operational officer , who did not introduce himself or indicate his rank . He insisted on obtaining a written statement about the applicant ’s relationship with PERSON and PERSON . On the officer ’s table the applicant saw documents with the letterhead of ORG with a note : “ obtain a statement from the convict PERSON ” . The officer had refused the applicant ’s request to see these documents . He had put the following questions to the applicant :

“ CARDINAL . Which amounts did [ the applicant ] pay to PERSON and PERSON for his representation ?

Were these amounts mentioned in any written agreement ?

When and where was such an agreement prepared ?

Did [ the applicant ] agree to pay any amount in addition to that ?

When and where did [ the applicant ] first meet his representatives ? ”

On DATE the Government submitted their comments on their compliance with LAW . They also asked the ORG to stay the proceedings so as the applicant could choose another representative , and offered their assistance in this matter .

On DATE the applicant submitted the following handwritten statement to the ORG :

“ I inform you as follows : on DATE I was visited in remand centre no . CARDINAL , GPE , by my lawyer PERSON . She gave me the text and translation of the ORG ’s comments of DATE . I am exasperated by Mr NORP ’s letter of DATE and would like to state the following :

NORP I am well aware of the amounts indicated in the agreements with PERSON and PERSON . I would be happy to pay double or triple those amounts but I regret that I do not have that much money .

I have confirmed on many occasions , orally and in writing , and now confirm again , that I have been satisfied with the work by PERSON and PERSON . Statements by Mr NORP are merely an attempt to mar the relationship between me and my lawyers .

I assure you that I fully trust my lawyers PERSON and PERSON as regards my representation before ORG and other issues . I am categorically opposed to introducing other lawyers into the case , especially those suggested by PERSON . ”

The relevant parts of section CARDINAL § CARDINAL read as follows :

“ For the performance of their duties , the police shall have the following rights :

( CARDINAL ) to obtain from citizens and ORG officials necessary statements , information , certificates , documents and copies thereof ;

( CARDINAL ) to receive from citizens and organisations information free of charge , except for situations where the law establishes a different procedure for obtaining information . ”

According to the Regulation on the Representative before ORG approved by President ’s Decree no . CARDINAL of CARDINAL DATE , the ORG may obtain from federal , regional and municipal bodies the information on legal and factual aspects of the case which is required for effective representation of GPE before ORG ( section II.CARDINAL ) .

ORG has the following functions :

identification of economic threats to the ORG ;

participation in defining the federal funding priorities ;

identification , prevention and detention of most dangerous inter - regional or international tax crimes or crimes against the ORG ;

identification , prevention and detention of most dangerous economic and tax crimes which have attracted public attention ;

taking preventive and operational measures for the protection of property against crimes ;

organisation of documentary inspections and revisions for detecting inter - regional or international economic or tax crimes ;

fighting against money laundering ;

fighting against funding of terrorist or extremist activities .


The applicant is an NORP national , born in DATE and living in GPE . He is the father of PERSON .

He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE PERSON and her daughters PERSON and PERSON were killed in a terrorist bombing in GPE . The cars used for the bombing were stolen in GPE , GPE on DATE .

The NORP authorities conducted extensive inquiries but were unable to bring charges against any person . The files remain open . ORG ( ORG ) in GPE has conducted an inquiry into the theft of the vehicles and related offences which did not produce any results . However , there was no formal murder inquiry by the ORG .

On DATE ORG , a television station in GPE , broadcast a programme in which the adequacy of the ORG inquiry was discussed .

On DATE the applicant instituted proceedings in ORG in GPE in order to force the NORP police to disclose information in its possession to the effect that GPE authorities had not fully co - operated with the NORP authorities in the murder inquiry . The applicant specified that this evidence would be used in the ORG proceedings .

On DATE ORG considered that this was not a case where it should exercise its inherent jurisdiction to order discovery . According to precedent , this jurisdiction would only be exercised in cases where the plaintiff had clear evidence of wrongdoing but did not know the identity of the wrongdoer which was known to the defendant .

The decision of ORG was upheld by ORG on DATE .


No violation of Art. 5-2;No violation of Art. 5-4;Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-3

Mr PERSON , a NORP national , currently resides in the GPE .

ORG On DATE ORG ( Arrondissementsrechtbank ) of GPE sentenced him , for murder and a number of attempts to commit armed robbery , to DATE imprisonment , to be followed by CARDINAL years’ placement at the ORG ’s disposal ( see paragraph CARDINAL below ) . The judgment became final on DATE .

ORG While he was serving his sentence , the applicant absconded on several occasions ; he remained at liberty a total of DATE . On CARDINAL DATE the Minister for ORG ordered his conditional release with effect from DATE

This measure was however purely formal because the applicant had been placed in a psychiatric clinic on DATE . He absconded regularly from this establishment too . In its decision extending the confinement ( see paragraph CARDINAL below ) , the court noted that , according to the director of the clinic , PERSON had spent , since his admission , DATE at the clinic and DATE outside .

On DATE ORG - in accordance with an administrative practice not provided for by law - wrote to the Crown Prosecutors of GPE and of GPE , and to the director of the clinic , informing them that , unless extended , the applicant ’s placement would come to an end in DATE , on DATE and not DATE The applicant was , in the ORG ’s view , to be regarded as having been held at the Government ’s disposal during the periods which he had spent outside prison following his escapes . Neither Mr PERSON nor his counsel had any knowledge of this letter .

On DATE informed ORG that she would be the applicant ’s lawyer in the proceedings relating to the extension of the confinement . It appeared from her letter that she expected the proceedings to open in DATE or DATE .

On DATE the applicant escaped from the clinic once more . According to the authorities , he remained in hiding .

ORG On DATE the ORG requested ORG to extend by DATE the applicant ’s placement ; he informed neither Mr PERSON nor his lawyer of this .

By a letter dated DATE , PERSON lawyer requested the Minister for ORG to order her client ’s release .

ORG On DATE , following a hearing which was attended only by a member of the hospital staff and ORG , the court granted the request for an extension . According to the Government , ORG had instructed the police to serve on PERSON a summons to appear at this hearing , but they had not succeeded in contacting him .

Mr PERSON was notified of the decision - which described him as having no known address - on DATE , when he telephoned the clinic . After having returned to it , he was held there from DATE in pursuance of the court ’s order .

ORG By a letter of CARDINAL DATE the Secretary of ORG for ORG informed the applicant ’s lawyer that the order placing her client at the ORG ’s disposal would not be lifted in the immediate future .

Having observed a significant improvement in his behaviour , the authorities released him provisionally in DATE . In DATE the ORG decided not to seek a second extension of the placement at the Government ’s disposal .

ORG Since DATE LAW ( PERSON ) has contained special provisions applying to persons suffering from a mental deficiency or mental illness . The provisions were substantially amended by an LAW of DATE , which came into force on DATE . According to LAW as applicable to the events in the present case ) , the perpetrator of an offence which can not be imputed to him because he suffers from a mental deficiency or mental illness is not liable to punishment . If the protection of public order so requires , the court may direct that such a person be placed at the ORG ’s disposal so that he can receive treatment at the ORG ’s expense .

Such a measure may also be taken in conjunction with a criminal sanction if the convicted person ’s responsibility was merely diminished at the time of the offence ( LAW ( a ) ) .

Under LAW ( b ) LAW , the placement lasts for DATE unless the Government terminates it earlier . This period commences as soon as the judgment ordering it has become final ( paragraph CARDINAL thereof ) ; it is suspended by any other deprivation of liberty resulting from a judicial decision ( paragraph CARDINAL , according to the most widely accepted interpretation ) .

ORG The court which makes the initial order may extend the confinement , on each occasion for DATE ( Article CARDINAL ( b ) § CARDINAL ) , on an application by the crown prosecutor , himself acting on the opinion of the director of the clinic . To this end , the crown prosecutor has to submit an application to the court in question not DATE and not less than one month before the placement period is due to expire ( Article CARDINAL ( f ) § CARDINAL ) . According to case - law , failure to comply with this requirement renders the application inadmissible .

The prosecutor must attach to his application a copy of the clinic ’s report on the physical and mental health of the person concerned together with a reasoned declaration - preferably by the doctor treating the patient - on the appropriateness of extending the confinement ( LAW ( f ) LAW ) .

Article CARDINAL ( g ) governs the procedure to be followed for the examination of the application : if possible the court is to hear the person in question and , if it considers additional information to be necessary , interview witnesses and experts . The crown prosecutor and the lawyer of the person confined may attend any hearing , of which a record is drawn up .

By a circular of DATE , the Minister for ORG issued instructions to the courts to hear the person concerned before extending his placement .

ORG By virtue of LAW ( h ) LAW , the court is to give its decision within DATE following the lodging of the application . However , LAW b ) § CARDINAL states that the person concerned remains at the Government ’s disposal until the court has ruled on the extension . In a judgment of DATE ( PERSON ( GPE ) DATE , no CARDINAL ) , ORG ) took the view that the last - mentioned rule applied even if the court exceeded the DATE time - limit , which was merely of an exhortatory nature . While recognising how inconvenient this interpretation might be for the person concerned , the court noted that this did not mean that the latter was entirely without a remedy against such a breach :

" if , once the time - limit laid down in LAW ( h ) has expired , the decision provided for in that provision is arbitrarily delayed , the Government may find itself required , if necessary as a result of legal action by the person confined , to terminate the placement extended pursuant to LAW . "

By a judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) ORG ) gave the following clarification regarding the DATE decision : in itself , the failure to comply with the time - limit laid down in LAW ( h ) does not give rise to an obligation to terminate the placement ; the existence of such an obligation depends in particular on the extent to which , and the reasons for which , the time - limit is exceeded as well as the personal and social interests at stake .

According to a judgment of ORG ) of DATE ( GPE DATE , no . CARDINAL ) , it falls to the court to decide to what extent it must state its reasons in the order extending the confinement , which is neither delivered in public nor appealable ( LAW ( h ) § CARDINAL ) , but is served on the person concerned ( LAW ( h ) § CARDINAL ) .

ORG A person placed at the Government ’s disposal may at any time request the Minister for Justice to revoke the measure . By virtue of LAW ) , the Minister may terminate the confinement at any moment , unconditionally or conditionally , if personal or material circumstances justify such a decision .

In the above - mentioned extract from its judgment of DATE ( see paragraph CARDINAL above ) , ORG was clearly alluding to interlocutory proceedings ( kort geding ) before the President of ORG . Thus it confirmed the fundamental role of these proceedings in the GPE legal system and practice . The importance of such a remedy in the specific field which is the subject of the present case is moreover illustrated by the CARDINAL judgments of ORG referred to in paragraph CARDINAL above . They were all delivered in interlocutory proceedings , CARDINAL of which resulted in the President of ORG ordering the immediate release of the person concerned . In addition , in the proceedings concluded by the judgment of DATE , the ORG had argued that the President lacked jurisdiction ; its objection was dismissed in accordance with a consistent line of cases decided in interlocutory proceedings and it did not appeal . The PERSON case also shows the extent to which the " kort geding " constitutes an obvious remedy in the field in question ( see the PERSON judgment given DATE , Series A no . CARDINAL-B , pp . DATE , § § CARDINAL and DATE ) .

Furthermore the adversarial principle is , according to ORG decisions , one of the basic principles of GPE procedural law . At the time of the events in issue in the present case , ORG had already drawn striking inferences therefrom . In a judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) , it ruled admissible an appeal against an order extending the confinement of a " mentally ill person " , on the ground that it had been made without hearing the person concerned . It did so , having regard to the importance of the principle in question , in spite of the statutory rule restricting the right of appeal to persons heard at first instance . Similarly , by a judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) , it declared admissible , notwithstanding the express provisions of the law , the appeal against a decision ordering the provisional hearing of witnesses , on the ground that the appellant had not been heard first .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

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

GPE , the applicant 's legal predecessor , owned a brickyard located in PERSON . By virtue of a decision issued on DATE the Minister of Light Industry ( Minister PERSON ) nationalised the brickyard pursuant to LAW DATE on ORG .

In DATE PERSON made an application to ORG ( Minister PERSON i GPE ) for annulment of the DATE decision on nationalisation . On DATE the Minister declared the DATE decision null and void . The PERSON municipality appealed against that decision . On DATE ORG ( PERSON ) dismissed its appeal .

On DATE PERSON requested the Minister of Industry and Commerce to award her compensation for damage sustained as a result of the nationalisation decision . In DATE the Minister ordered PERSON to indicate the actual damage ( szkoda rzeczywista ) sustained in connection with the nationalisation . In DATE PERSON submitted that her compensation claim amounted to MONEY ( PLN ) .

On DATE the Minister awarded PERSON compensation in the amount of ORG .

GPE contested the amount of the award . In DATE she sued ORG before ORG ( Sąd Wojewódzki ) , seeking further compensation in the amount of ORG MONEY . On DATE ORG dismissed her claim . PERSON appealed against that judgment to ORG ( Sąd Apelacyjny ) .

Following PERSON 's death , the applicant and her CARDINAL other successors became parties to the proceedings before ORG .

On DATE ORG upheld the judgment of ORG .

In DATE the applicant and other co - plaintiffs lodged a cassation appeal against the judgment of ORG . They also requested to be exempted from court fees required for proceeding with their cassation appeal . They claimed that due to their difficult financial situation they could not afford to pay them . The applicant stressed that his DATE salary amounted to MONEY . However , he had to support his unemployed wife and his mother - in - law .

On DATE ORG dismissed their application for exemption from court fees . Its decision was not reasoned and no appeal lay against it .

On DATE ORG ordered the applicant and other co - plaintiffs to pay court fees in the amount of PLN CARDINAL,CARDINAL.CARDINAL . On DATE it rejected their cassation appeal for failure to pay the court fees . The applicant did not appeal against this decision although it would have been open to him to have done so under LAW .

The legal provisions relating to setting court fees as applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL-VI ; see also PERSON and GPE v. GPE , no . CARDINAL/CARDINAL ) , § § CARDINAL - CARDINAL ) .

Article CARDINAL of the Code of Civil Procedure as applicable at the material time , guarantees a party to proceedings a right to appeal against a decision of the first - instance court which terminates the proceedings . Such an interlocutory appeal ( zażalenie ) is also available against certain decisions , specified in this provision . An appeal is available against a refusal of exemption from court fees when such decision has been given by a firstinstance court . ORG has held in a number of its decisions that no appeal is available against an interlocutory decision on court fees given by a second - instance court . Court fees for lodging such an interlocutory appeal should amount to CARDINAL of the court fee due in the proceedings .

Pursuant to LAW , on the request of a party , a second - instance court shall consider the interlocutory decisions of the first - instance court against which that party could not have filed an interlocutory appeal .

ORG has also held on many occasions that when examining an interlocutory appeal against a decision to reject a cassation appeal for failure to pay court fees , it would also consider the previous decision on refusal to give an exemption from the payment of court fees ( see I ORG CARDINAL/CARDINAL unpublished , I ORG CARDINAL/CARDINAL , OSNC DATE No . CARDINAL , item CARDINAL ) .