Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

Mr PERSON ( “ the first applicant ” ) was born in DATE and Mr PERSON ( “ the second applicant ” ) was born in DATE . They live in GPE .

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

On DATE the applicants , who are brothers , were arrested in GPE by the local police following a request from the GPE authorities . They were suspected of membership of a criminal organisation and of murdering , or attempting to murder , a number of persons in GPE ( see PERSON v. GPE , nos . CARDINAL and DATE , DATE DATE for more details in respect of other persons accused of membership of the same criminal group ) . All CARDINAL of the other persons on trial with the applicants made self - incriminating statements during the pre - trial investigation , and fully accepted their guilt in committing the crimes with which they had been charged . All ( with CARDINAL exception , a former police officer ) retracted these statements at a later stage , claiming that they had been tortured in order to extract those statements .

On DATE the applicants were examined by a doctor , who found bruising around their eyes , a bruise on the knee of the first applicant , a reddish area on the chest of the second applicant and marks left by handcuffs on each of the applicants’ wrists . The applicants explained that these injuries had been caused during their arrest .

On DATE they were handed over to the NORP police and flown to GPE , where they were detained in the PERSON police inspectorate from TIME According to a document signed by both the NORP and GPE authorities , no complaints or other issues were raised by either the applicants or the GPE authorities .

According to the applicants , they were ill - treated throughout TIME of CARDINAL November CARDINAL and TIME DATE by PERSON V. GPE , the investigator from ORG in ORG responsible for investigating exceptional cases , and by officers PERSON , PERSON , PERSON and PERSON from the PERSON police inspectorate . The officers put gas masks on them and suspended them for TIME on a metal bar with their hands tied behind their backs ( a method known as “ swallow ” ( ласточка ) , and somewhat similar to “ NORP hanging ” ) . While in that position , the applicants were hit with rubber sticks on their bodies and the soles of their feet and weights were hung around their necks . From time to time the flow of air through the gas mask was stopped until they fainted .

At TIME on DATE an ambulance was called to give emergency medical aid to the first applicant . The doctors found bruises on his face and head , and diagnosed him as suffering from contusion of the soft tissues on his face , head trauma and possible post - traumatic encephalopathy ( a second - degree emergency ) . They also noted that “ because he is very dangerous , the police have not authorised [ the applicant ’s ] admission to a hospital ” .

The applicants asked to see a lawyer . On DATE at CARDINAL p.m. the applicants were briefly allowed to meet their lawyers , in the presence of the investigator and police officers , whose presence effectively excluded the possibility of giving proper legal advice . Observing signs of ill - treatment and having spoken to their clients in the presence of the investigator , the lawyers requested a medical examination of their clients .

Medical examinations of both applicants were carried out on DATE at their ORG request , in the presence of the investigators . The medical expert found that the first applicant had bruises to his eyes and the head , circular irritations on the wrists and QUANTITY oval bruises on one hand , and injuries to the soles of both feet . In response to a specific question , the expert stated that the injuries had been caused DATE and could have been caused on DATE . After signing and sealing the report , the expert added a note , according to which the first applicant ’s injuries were considered “ minor body injuries ” . In the case of the second applicant , the expert found bruises on the face , chest , ribs , the soles of the feet , circular irritations on the wrists and CARDINAL oval bruises covered with crusts on his hand . The expert also noted that the injuries could have been caused on DATE and were considered to be minor injuries .

According to the applicants , a number of the injuries found by the expert were not mentioned in the medical report drawn up in GPE on DATE , prior to the applicants’ transfer to GPE .

During their interrogation on DATE both applicants denied involvement in any crime . Although their lawyers obtained permission from PERSON , the deputy Commissioner of the PERSON police inspectorate , to meet their clients as of DATE , the authorisation was not signed until DATE and the authorities refused to allow the applicants to meet their lawyers before that date . Mr PERSON was frequently unavailable , but was allegedly the only person who could authorise a meeting between the lawyers and the applicants . As a result , the lawyers could not meet their clients for DATE to give them proper legal advice ( see paragraph CARDINAL above ) .

On DATE a court ordered that the applicants be remanded in custody for DATE . During that hearing they both denied having committed any crime . On DATE the Deputy Prosecutor General rejected the first applicant ’s lawyer ’s challenge to the investigator , finding that the latter had given the lawyer proper permission to meet his client and had allowed the medical emergency team to see the accused , and that no translator had been requested or was necessary .

The applicants submit that , no longer able to resist ill - treatment , they signed self - incriminating statements on CARDINAL and DATE . Only then were they again allowed to see their lawyers on DATE .

According to the first applicant , during the meeting of DATE , he could not speak privately with his lawyer but was immediately interrogated in his presence and in the presence of both the investigator and an officer of the NORP police inspectorate . The police officer present in the room was not initially mentioned in TIME of the interviews . The Government disputed these circumstances , stating that the confidentiality of the meetings had been observed . TIME of the interview with the first applicant on DATE included a statement by the lawyer , according to which a request to have a private discussion with his lawyer before the interview had been refused and an “ operative agent ” , who was not an investigator , was present . His presence was , in the lawyer ’s view , intended to subject the applicant to psychological pressure .

On DATE the first applicant ’s lawyer complained to ORG , invoking Articles CARDINAL , CARDINAL and CARDINAL of the LAW , stating that his client was being ill - treated in order to obtain confessions from him , and that the rights of the defence were being seriously violated by the failure to allow him to meet his client . He alleged that investigator ORG had told him that he could meet his client only after the first interview . The lawyer added that during the interview of DATE his client whispered to him and indicated , using signs , that he had been ill - treated again and nodded towards a police officer ( Mr PERSON ) , who was present at the interview . He queried the participation of the police officer in the interrogation process since that was the prerogative of the investigator alone .

NORP The lawyer suggested that the police officer was there in order to ill - treat his client and put psychological pressure on him . After noting the presence of the police officer in TIME of the interview , the investigator wrote a note stating that the officer had been included in the investigating team and thus could question the applicant . The lawyer submits that at the beginning of the investigation he was not given a list of all the persons included in the investigating team , as required by LAW ( see paragraph DATE below ) .

NORP The lawyer also alleged that threats were made against him personally ( to the effect that a criminal case would be fabricated against him and that he would be arrested ) following his challenge to the investigator and his comments on the various procedural irregularities . Investigator PERSON and officer PERSON shouted at him and threatened him in the presence of his client . Having seen how they treated his lawyer , the first applicant was even more afraid and asked the lawyer to stop arguing , since he would be ill - treated again as a result .

The investigator stated that the first applicant had signed a confession on DATE but refused to show this to his lawyer . His client ’s request to speak in private with his lawyer was rejected in an abrupt manner .

A similar complaint on behalf of the second applicant was addressed to the PERSON prosecutor ’s office on DATE . On DATE prosecutor ORG asked the PERSON Police Commissioner to allow the ORG access to the applicants . On DATE he informed CARDINAL of the lawyers that “ certain of the complaints ” had been found to be partially well - founded and had formed the grounds for making submissions to ORG , ORG and ORG .

On DATE the head of the investigations department of ORG , Mr Ş. Ştogrea , replied to the first applicant ’s lawyer ’s letter of CARDINAL DATE , that no violation of procedure had been established and that the first applicant had not personally made any complaints . He did not annex a copy of the decision in accordance with LAW ( see paragraph CARDINAL below ) .

On DATE the first applicant ’s lawyer complained to the PERSON prosecutor ’s office , stating that his client had been detained since DATE in police cells in the PERSON police inspectorate , rather than in a remand centre of ORG , as required by LAW see paragraph CARDINAL below ) . In further letters of CARDINAL and DATE the applicants’ lawyers requested their clients’ transfer to the remand centre of ORG in PERSON ( also known as “ prison no . CARDINAL ” ) . They referred to the lack of necessary facilities for meeting their clients in the LOC of the police cells in the PERSON police inspectorate and to the applicants’ medical condition , which could not be treated in their current place of detention . They submitted that , according to the regulations , an individual ’s detention in the police cells of the PERSON police inspectorate could not last for DATE . On DATE the lawyers were informed that their clients would shortly be transferred to prison no . CARDINAL .

On DATE judge PERSON from ORG informed the LAW that during the examination of the first applicant ’s appeal against the court decision of DATE to remand him in custody , the court had found that the first applicant ’s right to meet with his lawyer had been violated by officers of the PERSON police commissariat . He asked the Commissioner to take measures to prevent similar conduct in the future .

On DATE the second applicant asked ORG to have his arm examined by a doctor since , he alleged , he had lost all movement in it as a result of ill - treatment by the police on DATE . He never received a reply . On DATE his lawyer asked ORG to reply to his client ’s request of DATE . He was informed , by a letter of DATE , that his client had been sent a reply on DATE in which it was explained that any complaints were to be addressed directly to the trial court following the submission of the case to that court . In addition , a medical examination of the second applicant had been carried out . In reply , the lawyer requested confirmation from the court to which his client ’s complaint had been forwarded , as well as the outgoing number of the letter addressed to him , since he had not received any letter dated DATE . In addition , no medical examination of his client had been carried out following his complaint of DATE . The lawyer considered inadequate a further reply from the Prosecutor General dated CARDINAL DATE and he requested detailed answers to his questions . It is not clear whether he received an answer .

During the examination of the case by ORG in DATE the applicants also complained about their ill - treatment . The court forwarded their complaint to ORG . No action appears to have been taken on the basis of that complaint .

In DATE the applicants informed the administration of prison no . CARDINAL in GPE about their fear of reprisals by a group of detainees in that prison . The applicants asked to be transferred to prison CARDINAL . They were transferred to that prison on DATE , and did not inform the administration of any threat received or otherwise alert the authorities to any danger to their lives or health in that prison . On DATE the applicants were severely beaten by other detainees from their own brigade . They claim that for dubious reasons the security personnel were absent from their posts and thus did not intervene , and that the metal gates separating their block from other blocks were left unlocked , in violation of the rules . According to several reports submitted by the Government , during their free time detainees could either remain in their cells or visit common areas within their brigade ’s premises . There were therefore no metal gates or other barriers between inmates from the same group of cells and there could not be “ forced entry ” into the applicants’ cell . The applicants had declared that the injuries had been self - inflicted while practising martial arts , and had refused to make any written statement .

Both applicants were taken to a hospital and were then transferred to prison no . CARDINAL . According to the Government , the prison administration gave the applicants the option of requesting detention in separate LOC from the other detainees , in order to protect them from a possible future attack , but they refused . They were placed in an increased security cell , but were free to visit common areas . On DATE they allegedly went to a meeting in a common area organised by another detainee . The meeting ended with a fight , as a result of which the applicants were again severely beaten by other detainees . The applicants claim that the security personnel disappeared for TIME during the event . They were again taken to hospital with serious injuries , and later transferred to another prison . According to the applicants , no serious investigation into these CARDINAL assaults has taken place and none of the attackers has been identified and punished . According to the Government , CARDINAL organisers of the meeting were identified and a criminal investigation was opened into the event . The applicants never complained about either of the attacks and refused to make statements to the administration against the detainees who had attacked them . The various investigations opened into the events of DATE ended on CARDINAL May , DATE and DATE respectively , finding that the applicants had refused to avail themselves of additional measures of protection offered to them by the prison administration , fearing that such measures would diminish their reputation in the criminal world . The administration of the CARDINAL prisons in which the attacks had taken place took measures to reinforce security , in order to minimise the risk of similar acts in the future .

In a letter to ORG DATE the first applicant complained that he had not received the specialised medical treatment which he required , on account of the absence of the necessary medical equipment . He also claimed that his transfer to prison no . CARDINAL in GPE on DATE had been premature , in that he had not yet recovered from the last assault on him .

On DATE ORG , acting as a first - instance court , found all CARDINAL suspects guilty . Each applicant was sentenced to DATE imprisonment .

The court found that each applicant had been involved in CARDINAL different criminal acts ( murder and attempted murder ) , typically assisting others to commit the crimes ( driving getaway cars , supplying weapons and uniforms , etc . ) . Each applicant was a member of the criminal organisation and was guilty of illegal possession of weapons .

The evidence on which the court based its judgment was , in each case , the declarations of the CARDINAL co - accused , declarations by surviving victims or their relatives , statements of witnesses and expert reports .

In the court ’s opinion , the declarations of the co - accused were consistent and the fact that they had all subsequently withdrawn their statements , alleging that they had been obtained by ill - treatment , was merely an attempt to avoid responsibility . The court emphasised the dates on which each of the accused had made confessions in the presence of their lawyers ; some of these confessions had been recorded on film . This excluded any possibility that the statements had been made as a result of ill - treatment , given also that no evidence of ill - treatment had been adduced . The court referred to a medical report of DATE ( before the ORG arrest and apparently drawn up in respect of some of the other accused ) in which no signs of ill - treatment had been found .

The surviving victims and their relatives , as well as witnesses , testified as to the manner in which the crimes had been committed , or described having sold cars to “ unknown persons ” or having seen such unknown persons carry out the crimes . None of them declared that they had seen any of the co - accused at the scene of the crimes .

The expert reports determined the manner in which the crimes had been committed and the types of weapons used .

In the attempted murder of Mr PERSON and others a weapon was used which was subsequently found during a search conducted on DATE in an apartment rented by the second applicant . Further weapons were found in that apartment , including automatic rifle ammunition which was identical to some of the cartridges found at the scene of the murder of PERSON ORG and Mr PERSON .

In addition , a mobile telephone operator submitted a list of all incoming and outgoing calls made from a telephone belonging to the first applicant ( which , the trial court stated without any further detail , had also been used by the second applicant ) . During the preparation of the murder of PERSON on DATE , this telephone had been frequently used to contact several of the co - accused .

Two witnesses confirmed that unknown persons had come to them DATE and had purchased CARDINAL sets of dark uniforms . These were later used during the murder of PERSON .

In their appeal in cassation against the judgment of ORG , the applicants submitted the following .

GPE , CARDINAL of the alleged masterminds of most of the crimes attributed to the criminal organisation of which the applicants were allegedly members , declared in court that he had committed some of the crimes he was charged with , but that the applicants had not participated in any of them . He claimed that he had been forced to make declarations against the applicants as a result of ill - treatment . According to the applicants , even the declarations made by ORG during the investigation were contradictory , since he had claimed to have seen one of the applicants in CARDINAL different places at the same time . In his statement , another co - accused ( S. ) declared that he was not sure whether he had seen the second applicant in the getaway car and then replied to the lawyer ’s direct question that he had not seen him at the crime scene . However , the trial court had merely stated that PERSON confirmed the second applicant ’s participation in the crime .

Despite the court ’s statement that there was no evidence of ill - treatment , substantial evidence confirming ill - treatment had been submitted to the court in the form of medical reports and complaints .

The court had paid no attention to the complaints regarding the violation of the rights of the defence , notably the lack of access to their lawyers during the period when they had been ill - treated .

On DATE the prosecutor had declared that all charges against the applicants were withdrawn due to a lack of evidence of their guilt . However , on DATE he radically changed his position and requested the court to find them guilty , although no new evidence had been added to the file . This contradictory behaviour confirmed , in the applicants’ view , that the prosecution itself was not convinced of their involvement .

On DATE the prosecutor had requested and obtained the suspension of the trial and the re - opening of the investigation , having shown the judge a letter from ORG . None of the co - accused or their lawyers was shown the contents of that letter , despite their requests to that effect .

During the hearings in court , CARDINAL of the co - accused declared that the applicants had nothing to do with the crimes and that they had made their statements as a result of ill - treatment .

In their address to ORG the applicants added that neither of them had been informed of his right not to make statements incriminating the other , since the law entitled them not to testify against close relatives .

DATE . During the reconstruction of events officers had committed serious violations of procedure , as was clear from the video recording of the event : they had asked leading questions and even given their own answers to them , and had then shown the accused where to go , where to stop , etc . The second applicant was not involved in any reconstruction of events .

CARDINAL of the charges against the applicants ( conspiracy to commit murder and murder of PERSON ) were not brought against them until DATE , during the court hearing , and those charges had been based only on statements made by CARDINAL of the co - accused on DATE . However , the author of those statements declared that he had refused to cooperate in the conspiracy and that he was unaware of any tangible actions or plan by the applicants to commit the murder .

In addition , although the prosecution claimed that the second applicant rented the apartment from ORG after seeing her advertisement in newspaper ORG , no such advertisement had appeared in that newspaper and ORG stated in court that she had not placed such an advertisement . She declared that she knew the second applicant and allowed him to use her apartment in DATE . In DATE she agreed with the second applicant to give the keys of the apartment to O. Thereafter the applicants left for GPE . During the investigation she had to make false statements under pressure from the investigators . The applicant argued that he could not be held responsible for what happened in the apartment after he transmitted the key and left for GPE .

The first applicant had made CARDINAL self - incriminating statements , CARDINAL of which were dated DATE . The CARDINAL others had not been dated , nor properly registered as evidence , yet they formed part of the evidence on which the court had based its judgment .

The video recording of the reconstruction of events with one of the co - accused ( PERSON ) clearly showed one of the police officers wearing sunglasses which later appeared on PERSON In court PERSON declared that he had been ill - treated in the police car in order to testify as instructed . He was then told what to say and how to proceed and was made to wear the sunglasses in order to disguise signs of ill - treatment . He testified in court that he had not known the applicants and that the police and investigators had shown him their pictures .

In restating the various violations of their rights and their illtreatment , the applicants invoked the LAW and the LAW . They stated that all their complaints had been examined superficially and that all the evidence against them had been obtained through violent and unlawful means .

ORG reviewed the findings of ORG and found that that court had adopted a lawful judgment . In particular , it found that the lower court had not based its judgment only on the statements by the co - accused , but also on other evidence , although the confessions were the basis for the applicants’ convictions .

NORP The court cited the relevant parts of the declarations made by the co - accused , including the applicants , and emphasised that in each case the statements were made in the presence of lawyers and were often recorded on film , which depicted no signs of ill - treatment or undue influence . The court noted that the first applicant had made statements at the interview of DATE and that the second applicant made statements at the interviews of DATE and DATE .

The court also found that “ [ ORG is not true that the statements were made under the influence of unlawful methods by the police . During the hearing the court has verified these arguments and they have not been confirmed ” .

ORG dismissed the ORG appeal in cassation .

The relevant provisions of LAW , in force at the time , read :

... Evidence obtained in violation of the present Code or not properly examined during the court hearing can not constitute the basis of a court conviction or of other procedural documents . ”

... The first questioning of an accused who has been taken into custody is to be conducted only in the presence of a defender , chosen [ by the accused ] or appointed ex - officio . ”

The following shall serve as a ground for initiating a criminal investigation :

( CARDINAL ) NORP declarations , letters from citizens ;

... ( CARDINAL ) the direct discovery by the investigating authority , the investigator , prosecutor , judge or court of the elements of a crime .

The proceedings may be initiated in cases where there is sufficient information regarding the crime committed . ”

... In response to a declaration or a notification received , CARDINAL of the following decisions shall be adopted within DATE or , if additional verification is needed , within DATE :

( CARDINAL ) to initiate a criminal investigation ;

( CARDINAL ) NORP to refuse the initiation of a criminal investigation ;

( CARDINAL ) NORP to forward the declaration or notification to the authority competent to deal with it .

The decision taken under paragraphs CARDINAL and CARDINAL above shall be brought to the attention of the person who made the declaration or notification ”

In complex or voluminous cases the investigation may be carried out by several investigators . This is to be mentioned in the decision to initiate the criminal investigation or in a decision adopted for that purpose . ... In such cases the ... accused ... is to be informed of the names of all the participating investigators and his [ or her ] right to challenge any of them is to be explained to him [ her ] . ”

The place of detention on remand of persons against whom preventive measures have been applied shall be remand centres . In certain cases such persons may be detained in prisons , in police cells ....

Persons detained on remand may be detained in police cells for DATE . If they can not be brought to a remand centre because of the considerable distance or the lack of appropriate transport facilities , they may be detained in police cells for longer periods , not exceeding DATE . ”


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

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

In DATE the applicant was dismissed from work . In DATE the applicant instituted civil proceedings challenging the decision on his dismissal . He sought reinstatement , compensation of salary and lost earnings .

Following CARDINAL remittals , on DATE ORG ( PERSON ) gave a partial judgment ordering the applicant ’s reinstatement and awarding him compensation of salary . The judgment also stated that the compensation for lost earnings and the litigation costs were to be decided on later .

On appeal by the employer , on DATE ORG ( PERSON ) upheld the first instance judgment in part concerning the applicant ’s reinstatement . It quashed and remitted in part the decision on compensation for salary .

On DATE the employer filed a request for revision on points of law ( revizija ) against that decision . On DATE ORG ( PERSON ) dismissed that request .

The first instance court not having decided a part of his claim , on DATE the applicant filed a constitutional complaint concerning the length of the proceedings .

On DATE ORG held a hearing .

During the next hearing held on DATE it adopted a judgment by default .

On DATE the defendant paid the applicant the sum ordered by the judgment .

On DATE ORG ( Ustavni sud PERSON ) found that the applicant ’s right to a determination of his civil claim within a reasonable time had been violated and awarded him CARDINAL NORP PERSON ( HRK ) as just satisfaction .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON –Official Gazette no . CARDINAL/CARDINAL of DATE ; “ the LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request


CASE OF MARKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

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

On DATE the applicant was laid off by the company “ PERSON - lift ” d.o.o PERSON ( “ the employer ” ) where he worked as a lift repairman .

On CARDINAL DATE the applicant brought an action against his employer , claiming that he had been unlawfully dismissed . He sought to be re - instated to a post corresponding to his qualifications .

Of CARDINAL hearings , including the preparatory one , scheduled DATE and DATE , CARDINAL hearing was adjourned at the judge ’s request ; CARDINAL hearings were postponed because of late submission of evidence ; CARDINAL hearing was adjourned without any reasons and CARDINAL hearing was rescheduled at the employer ’s request . The applicant attended all the hearings as scheduled . During this period , the composition of the judicial council ( судскиот совет ) changed once .

On DATE the employer requested the court to reinstate the proceedings ( враќање во поранешна состојба ) as it had failed to appear in court on CARDINAL DATE due to a failure of its former representative to inform it about the date of the hearing . On DATE the applicant filed an objection against the employer ’s request which he had subsequently withdrawn . The hearing of CARDINAL DATE was held by another trial judge who had taken over the case .

At the hearing of CARDINAL DATE the court examined some witnesses .

On DATE ORG upheld the applicant ’s claim and annulled the employer ’s decision for termination of his employment . The court found that his dismissal had not been made by a competent body . It held that the applicant had worked with the employer continuously for DATE and as such the managing board ( управен одбор ) should have decided his dismissal , instead of its manager .

On DATE the employer appealed against the decision .

On DATE ORG upheld the employer ’s appeal , quashed the lower court ’s decision and ordered a retrial . It found that the lower court had erred in establishing the facts , in particular concerning the applicant ’s uninterrupted work with the employer which had undergone several organisational changes over the time .

Of CARDINAL hearings scheduled DATE and DATE , CARDINAL hearings were adjourned by the trial court to examine the official company ’s register concerning the employer ; CARDINAL hearing was postponed due to the trial judge ’s absence ; CARDINAL hearings were rescheduled as the court could not locate a witness , whose whereabouts had been provided by the applicant . Within this period , the court heard the applicant and examined some witnesses . The composition of the judicial council also changed once as new lay - judges stepped in the proceedings . The applicant attended all the hearings as listed .

On DATE ORG Instance dismissed the applicant ’s claim as the dismissal decision had been adopted by a competent body and the applicant had infringed working discipline . The court established that the applicant had been initially employed by “ PERSON - Daka ” GPE ( “ the company ” ) , a company incorporated outside the former GPE , which had had a subsidiary office in GPE . When the company had founded “ PERSON servis ” d.o.o . PERSON , as a separate legal entity incorporated in the former GPE , the applicant continued working for this newly created entity . At the last stage , “ PERSON servis ” d.o.o . PERSON was merged with another company “ PERSON montaza ” , creating as a separate legal entity . As stated by the ORG , this decision was drawn up on DATE and served on the parties after the applicant had paid the court fees .

On DATE the applicant appealed against the decision .

On DATE the first - instance court ordered the applicant to pay the court fees within DATE . On DATE the applicant complied with this order .

On DATE ORG upheld the applicant ’s appeal and overturned the lower court ’s decision . It found that the applicant had worked continuously for DATE with the same employer , despite the organisational changes that the latter underwent over time . It therefore declared the applicant ’s dismissal null and void and ordered the employer to reinstate him to work .

On CARDINAL DATE the employer lodged with ORG an appeal on points of law ( ревизија ) . On DATE the applicant submitted his reply to the employer ’s appeal on points of law .

On DATE the employer requested the public prosecutor to submit to ORG a request for the protection of legality ( барање за заштита на законитоста ) .

On DATE the employer filed before ORG a request for re - opening of the proceedings ( предлог за повторување на постапката ) .

On DATE the applicant instituted separate enforcement proceedings concerning the reinstatement order and the trial costs . On DATE the court granted the applicant ’s request ( “ the enforcement order ” ) . On DATE the applicant withdrew his request concerning the reinstatement , as he had meanwhile been reinstated . On DATE the court stayed the enforcement proceedings concerning the applicant ’s reinstatement and dismissed the employer ’s objection concerning the reimbursement of the trial costs . On DATE ORG upheld the lower court ’s decision . On DATE the employer requested postponement of the enforcement . On DATE the applicant objected to the employer ’s request for postponement . It appears that the applicant received the sum due to him .

On DATE ORG returned the case - file to the trial court in respect of the employer ’s request for re - opening of the proceedings .

On DATE ORG Instance terminated the proceedings concerning the employer ’s request for re - opening of the proceedings and decided to transfer the case - file to ORG in respect of the employer ’s appeal on points of law .

On DATE ORG upheld the employer ’s appeal on points of law , overturned ORG decision and upheld the trial court ’s decision of CARDINAL DATE . It departed from the reasoning of ORG finding that the employer could not be considered the one in which the applicant had been initially employed .


The applicant , born in DATE in ORG , is a citizen of GPE . He is resident in LOC . The applicant is represented before the ORG by PERSON , a lawyer practising in GPE .

A.

On DATE the applicant , who was serving in the army at the time , was shot and wounded in a clash with members of the ORG . A bullet entered his neck , causing permanent damage to his spine and leaving him PERCENT paralysed below the waist .

The applicant received a retirement pension . His medical expenses were covered by the ORG . Under PERSON No . CARDINAL he was granted compensation for non - pecuniary damage and to cover the costs of hiring a lay helper ( bakıcı ) to assist him with his DATE needs . The applicant considered that the amount of the compensation was insufficient .

On DATE he requested ORG to pay him additional compensation . ORG rejected his request . On DATE the applicant challenged the ORG ’s rejection before ORG .

The ORG was composed of CARDINAL military judges CARDINAL of whom , according to the applicant , had no legal training . In assessing the overall loss which the applicant had suffered , the court deducted the amount of the retirement pension and the compensation awarded under PERSON No . DATE already paid to him . The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a TIME basis . The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances . According to the assessment of the legal expert , the applicant had already been adequately compensated .

The applicant ’s lawyer objected to the expert ’s calculations on the ground inter alia that the full amount of the fees paid to the helper had to be disregarded from the final calculation . On DATE the CARDINALnd Chamber of ORG ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability , relevant case law and comparative awards .

Under domestic law the judgments of ORG are final and can not be appealed . The applicant requested rectification of the judgment ( kararın düzeltilmesi ) . In accordance with domestic law , the file was re - examined by the same CARDINAL - judges of ORG which had given the judgment of DATE . On DATE the ORG rejected the request for rectification , holding that the request did not fall within the specified grounds for rectification .

B. Relevant domestic law

LAW . DATE on ORG provides :

“ Rectification of a judgment rendered by the ORG or ORG may be requested on one of the following grounds , only once within DATE after it is served on the parties :

a ) The judgment does not refer to the allegations and the objections which affect its merits ;

b ) The judgment contains provisions which contradict each other ;

c ) The judgment is contrary ( “ aykırı ” ) to procedural and substantive law ( “ usul ve kanuna aykırı ” ) ” .


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a statement of claim with ORG ( Sąd Rejonowy ) .

On DATE ORG found that it lacked jurisdiction to deal with the case and referred it to ORG ( PERSON ) .

On DATE the applicant was ordered to rectify certain procedural shortcomings in her claim in order to fulfil the formal requirements set out in NORP law . She complied with the court ’s order in DATE .

At a hearing on DATE the defendant lodged a counterclaim . On an unknown date in DATE the applicant submitted her reply to the counterclaim .

DATE and DATE the court held CARDINAL hearings .

On DATE ORG delivered its judgment .

On DATE the applicant lodged a notice of appeal . On DATE she was served with the court ’s statement of reasons .

NORP The case was referred to ORG ( Sąd Apelacyjny ) in DATE . On DATE the court partly amended the judgment and remitted the case in part .

On DATE the applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) against the judgment of ORG .

On DATE ORG , sitting in camera , refused to entertain the cassation appeal as it did not raise any issue of general importance .

On DATE the ORG remitted the case to ORG .

On DATE ORG held a hearing . A hearing scheduled for DATE was postponed because the judge was ill .

On DATE a hearing was held .

On DATE the ORG delivered its judgment . The applicant lodged an appeal against it .

On DATE , by a final judgment of ORG , the applicant ’s appeal was dismissed .

On DATE the applicant lodged a complaint with ORG under section CARDINAL of the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . The Supreme Court referred the case to ORG .

NORP The applicant sought a ruling declaring that the length of the proceedings before ORG had been excessive and an award of just satisfaction in the amount of MONEY ( ORG ) .

On DATE ORG gave a decision in which it acknowledged the excessive length of the proceedings before ORG , finding that there had been periods of unjustified inactivity in DATE , then DATE and DATE . It awarded the applicant LAW in just satisfaction . The court observed that the claim for just satisfaction in the amount of PLN CARDINAL,CARDINAL was excessive .

The court did not take into consideration the delays that had occurred before ORG ( DATE ) , nor did it consider the period DATE and DATE , when the case was pending before ORG .

On DATE a certain “ S - P ” ORG instituted civil proceedings for repossession against the applicant . DATE the court held CARDINAL hearings . By a decision of DATE ORG discontinued the proceedings .

On an unknown date in DATE the police instituted criminal proceedings against the applicant on charges of threatening behaviour . On DATE , by a decision of the district prosecutor , the applicant was made subject to a police supervision order . The applicant appealed .

On DATE ORG amended the decision and the police supervision order was quashed .

On DATE ORG issued a penal order imposing a fine on the applicant . It appears that the applicant lodged an appeal . The proceedings were terminated by a final decision of DATE ( the applicant has not produced a copy of it ) .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the Court by Mr PERSON , a lawyer practising in GPE The respondent Government are represented by their Agent Mr PERSON , ORG .

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

From DATE until DATE the applicant was employed , notably as a passenger assistant by a NORP shipping company , henceforth called PERSON ( NORP Seaways ) , and he was a member of a trade union , henceforth called GPE ( ORG ) .

In his employment the applicant had no responsibility for the primary operation of the ship but as a crewmember he was involved with the safety on board . At the relevant time he worked in shifts of DATE at work on board followed by DATE of leave on land .

ORG had issued a circular on DATE laying down that all staff on board had to submit to an alcohol test if so required by the authorities or the shipping company / shipmaster .

On DATE ORG issued a new set of regulations concerning its staff policy on alcohol and drugs which inter alia stated that when on duty on board the employees were allowed a blood alcohol level of QUANTITY and when on leave on board CARDINAL per mille . When on board the employees were not allowed to be in possession of or use drugs or any other intoxicating substances or have any remains thereof in their bodies traceable by a urine test . A passage headlined “ control ” stated :

“ By request of authorities , the ORG or ORG all employees are under an obligation to submit to tests for alcohol , drugs or any other intoxicating substances . The employees can expect to undergo such a test without notice at least once a year . ”

A passage headlined “ violation of these regulations ” stated inter alia :

“ A violation of these regulations will be regarded as a considerable breach of the conditions of employment and can lead to immediate dismissal ... ”

A copy of the regulations was distributed to the employees who were requested to sign it thereby confirming that they have read and understood it .

In DATE ORG introduced random mandatory alcohol and drug test requiring the person concerned to provide a sample of urine .

In letters of CARDINAL DATE and CARDINAL DATE ORG and another trade union henceforth called ORG ( PERSON ) informed PERSON that they could not approve of the new set of regulations . Thus , a conciliation meeting was held on DATE between the employer and the said trade union , but the parties failed to reach an agreement .

On DATE the applicant , allegedly without any kind of suspicion , was requested to provide an urine sample behind a screen in a room in which a person from a NORP company called Medscreen , hired for this purpose , was present . It appears that no trace of alcohol or drugs was found .

ORG and ORG instituted civil proceedings against ORG before ORG claiming that ORG should acknowledge that the control procedure introduced by the regulations of DATE was wrong and that accordingly , despite any given signature the employees could not be obliged to provide a urine sample . Among other arguments they claimed that the random urine tests were in breach of LAW . On DATE ORG found for ORG . In its decision the ORG stated :

“ Since a majority could not be obtained amongst the arbitrators the case will be decided by the president who states :

Pursuant to case law and practises in labour market matters the right of management encompasses the right to issue regulations justified by operational considerations . Likewise , the management have a right to introduce measures of control justified by operational considerations if such measures have a reasonable purpose , do not offend the employees’ dignity , and do not cause any loss or appreciable inconvenience for the employees .

It is undisputed that alcohol is a legal stimulant and drugs are not , though in GPE the possession of hashish for ones own consumption is seen as a minor offence . The presence of drugs on board might in certain countries lead to the detention of the ship or to other sanctions against the ship , which is CARDINAL of the reasons why the merchant navy prohibits any possession of drugs on board .

The past regulations [ of DATE ] issued by ORG solely authorised a control measure with regard to the employees’ alcohol consumption . It appears that the past regulations were not objected to and , as the case has been presented before the ORG , it is mainly the test introduced [ in DATE ] for drugs and other intoxicating substances that caused the present dispute .

It is undisputed that on CARDINAL occasions within DATE CARDINAL employees have been in possession of and used drugs . The testimonies heard before the court substantiate that some employees on board have used drugs as a stimulant , which must be considered a serious problem . Therefore , PERSON do have a justified reason for introducing measures of control suitable and contributing to solve this problem .

The consumption of alcohol will usually be traceable by the smell or by using a breathalyser . This is not the case when it comes to drugs or any other intoxicating substances . Taking a blood sample would require the consent of the person concerned . It is indeed very difficult simply by observation to ascertain whether a person has used drugs and a clinical test does not with sufficient certainty provide an indication of the employee ’s ability to perform his or her duty . Thus , providing a urine sample is a possible measure of control .

There is no substantiation for assuming that ORG uses the test for any other purposes than to control the employees’ consumption of alcohol and drugs . No information is provided as to whether the samples are stored , and in the affirmative how , but any extension of the test , be it on the basis of a sample already submitted or of future tests , do require that the employees are informed . Also such an extension may be brought before a Court of Arbitration for review .

The employees do not suffer any loss as the test is submitted to during TIME .

The control measure introduced by ORG applies to all employees on board including the Captain . X testified that the test is performed in a room in private . Thereafter the urine sample is handed over . In this way the test can not be considered to expose the individual ’s decency . In addition , since everybody is obliged to submit to the test the individual ’s honour can not be considered infringed .

The plaintiff has submitted that the test infringes the employees’ spare time , as it will reveal which activities the employees have been involved in . However , an employer must be entitled to demand that an employee coming to work is capable of performing his or her duties . Accordingly , this entails some limits on the employees’ spare time before coming to work . However , having regard to the fact that the consumption of alcohol and the use of drugs , unless taken on a regularly basis , do not leave traces for CARDINAL or two days , the ORG does not find that the measure in question infringes the right to respect for private life to such an extent that random tests thereby should be excluded . The employees’ rotation system whereby a leave on board is followed by a leave off board does not reverse this finding .

ORG ) has stated that besides from reducing learning and memory , using hashish might reduce one ’s psychomotor functions up till TIME when doing complex tasks . Perhaps no problems will occur when doing the daily tasks that the plaintiff ’s members perform . Nevertheless , as all crew members are part of the safety crew , though rarely needed , it is absolutely essential that they are , in a fully adequate way at all times , able to perform functions related to the safety on board , which in case of a catastrophe might entail complex tasks . Accordingly , operational considerations do justify that the defendant introduced the control measure in question . The fact that no survey has been carried out as to the customers expectations to the safety on board does not reverse this finding since , having regard to the latest catastrophes on ships in the NORP oceans , a customer has a right to assume that the shipping company aim to have as much safety on board as possible , and that the company makes sure that its crew members can perform their safety tasks in a fully adequate way .

The regulations in question contain a passage according to which a violation will lead to immediate dismissal . The defendant can not unilaterally by introducing such a passage change the required conditions for a dismissal , and a given signature by an employee on the regulations does not entail that such a change has been accepted . However , with regard to a possible dismissal the defendant did in fact express in the pleading that the burden of proof falls upon the shipping company . ”

Below is a general description of the NORP industrial relations system , also known as the “ Danish Model ” .

The struggle at DATE between on the CARDINAL side employees and their unions ( notably what is DATE called the ORG , i.e. ORG ) and on the other side the employers and their federations ( mainly the central organisation DA , i.e. ORG ) resulted in the so - called DATE Agreement from DATE between the ORG and the ORG . The ORG laid down CARDINAL major principles :

the right of employees to organise in trade unions ;

the right of the employers to manage and control work ;

the right to industrial actions ( strike , boycott and lockout ) to obtain

e.g. a collective agreement ;

the embargo on industrial action which means that no strikes are

lawful during the term of a collective agreement ;

the establishment of a special arbitration tribunal to deal with all

violations of LAW .

The DATE Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners . By tradition the NORP legislature plays a minor role as regards governing wages , salaries and employment conditions . Accordingly , rights imposed by statute in other countries have in GPE been obtained by agreements between the labour market partners . It is thus characteristic of NORP law that the relationship between employers and employees is basically governed by a combination of agreements ( collective and individuals ) , labour law principles and general statutes and rules laid down in pursuance of statutes .

Thus , according to the “ Danish Model ” the content and scope of an employer ’s managerial right or his right to carry out control measures depend on labour law principles in so far as it is not governed by any agreements or by statutes or rules laid down in pursuance of statutes . ORG

Disputes between the labour market parties are , failing friendly settlement , finally determined by either courts of arbitration or by ORG depending on the dispute in issue .

Control measures .

As stated above , LAW from DATE acknowledged the employer ’s right to manage and control work . The right to carry out control measures was acknowledged firstly in a decision by ORG from DATE , and confirmed by subsequent case law . According to the said case law , the following guidelines have been characterised as reasonable control measures :

The control measure may not be unnecessary , but must serve a sensible purpose .

The form of it may not be humiliating for the employees .

It may not cause any loss or significant inconvenience .

It must be possible to submit the justification of the measure to industrial arbitration .

When a control measure has proved expedient and has been practised on the majority of the company employees , it can be extended to cover the rest of the staff .

The employer should notify his staff as early as possible of any contemplated control measure .

Employees shall - at least in so far , cf . point CARDINAL above - observe the employer ’s requirement of introduction of a control measure , and the trade union may be held responsible if it supports any resistance .

The collective agreement need not include any authority for the introduction of control measures . If a regular scheme has been laid down in the collective agreement , the employees may reject changes during the term of the agreement if they have a legitimate interest in raising such objections .

Normally there is no obligation to compensate the time spent in connection with a control measure because such obligations only exist if the measure results in “ undue delay ” to the employees .

No claim can be made to leave salaried employees ( masters , foremen ) out of the search scheme .

Control measures ( in particular searches ) must be carried out correctly and unassailably , but not necessarily by persons who are independent of the employer .

Controls of women ( searches ) must be carried out by women .

Act on Use of ORG .

Act no . CARDINAL of DATE on ORG etc . on ORG ( Lov om brug af helbredsoplysninger på arbejdsmarkedet ) defines the situation in which an employer is entitled to request health data and does not exclude any specific testing method . The explanatory notes to the PERSON forming the basis of LAW ( L CARDINAL of DATE ) gives a detailed account of the scope of the LAW . The notes state partly which situations are comprised by the LAW , partly which situations fall outside the LAW . Among other thing is stated ( see para . CARDINAL , section C , of the general explanatory notes of the PERSON ) :

“ This PERSON does not affect the employer ’s right to institute general control measures affecting employees , e.g. in the form of tests to detect the abuse of alcohol or drugs , provided that such tests are not intended as health examinations ” .

It is further stated ( see the special explanatory notes to section CARDINAL of the Bill ) :

“ In certain cases a personal examination is in the nature of a control measure in which no data on diseases or symptoms of a disease is requested . This is the case , inter alia , when an employer wants to check by blood sampling whether an employee has alcohol in his blood in contravention of the employment contract .

In such cases the employee will most often have signed a declaration to the effect that he is willing to submit to such checks . Other stimulants than alcohol may be involved .

Such examinations fall outside the scope of the bill to the extent the individual measure is not also intended to procure data on diseases or the risk of developing or contracting a disease . Whether such prohibition and the pertaining checks are justified is a general question under employment law . ”

ORG

The ORG joint ORG adopted in DATE a resolution concerning drugs and alcohol in the maritime industry . Moreover , the joint ORG on ORG adopted in DATE ORG in ORG .

Based on the ILO Convention no . CARDINAL on ORG , which entered into force on DATE , GPE has adopted a number of legal provisions as well as an executive order ( no . CARDINAL of DATE ) concerning medical examination of seafarers , the purpose of which is to ensure , having regard to the safety of the vessel and the safety and health of everybody on board , that the GPE health is satisfactory . Pursuant to the said executive order the consequence of the use of drugs or hashish or abuse of medicine or alcohol is absolute rejection irrespective of the relevant person ’s function on board the vessel .

The Seamen ’s Act

Pursuant to the first sentence of LAW ( CARDINAL ) of LAW ( cf . LAW no . CARDINAL of DATE ) bringing drugs and other toxic substances on board a ship is prohibited . Pursuant to subsection ( CARDINAL ) of the same provision , the shipmaster may subject the seaman ’s recreation room to a search if he has reasonable grounds for suspecting that something illegal has been brought on board . The seaman is entitled to be present at the search . The provision is supplemented by LAW and ( vi ) of the LAW according to which a shipmaster can dismiss a seaman if he offends grossly while on duty by repeated intoxication , or if the person in question conceals on board dutiable goods or goods prohibited as export articles at the place of departure or as import articles at the place of destination . According to NORP case law , a single incident of gross intoxication may lead to dismissal . However , in a recent judgment of DATE ( published in ORG ( ORG


Violation of Art. 5-1-c;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE , at TIME , the applicant was taken into custody on suspicion of attempted murder .

On DATE formal charges were brought against the applicant .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան ) granted the investigator ’s relevant motion and ordered the applicant ’s detention on remand for DATE , to be calculated from DATE .

On DATE the investigator filed a motion with ORG , seeking to have the applicant ’s detention on remand prolonged for DATE .

On DATE ORG examined and dismissed this motion . This decision was subject to appeal .

On DATE at TIME a copy of this decision was presented by the applicant ’s lawyer to the Chief of the Yerevan - Kentron Detention Facility ( « Երևան-Կենտրոն » քրեակատարողական հիմնարկի պետ ) where the applicant was held .

On DATE the prosecutor lodged an appeal against the above decision .

DATE at TIME the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) commenced the examination of the prosecutor ’s appeal . The applicant was escorted to the hearing by CARDINAL national security officers in an official car .

At TIME the applicant ’s lawyer arrived and requested a TIME recess to be able to consult with the applicant . The Government alleged that the lawyer was deliberately late for the hearing , while the applicant claimed that her lawyer was informed by telephone about this hearing TIME

At TIME the applicant ’s detention period authorised by the decision of DATE expired .

Following the recess , the lawyer challenged the impartiality of the bench . He first alleged that the court had not given the applicant sufficient time to prepare her defence and also failed to ensure equality of arms . Furthermore , there were CARDINAL national security officers in the court building who prevented the applicant , who was formally already at liberty , from going out of the building . Thus , the fact that such things were happening in the building of ORG suggested that the outcome of the proceedings was already pre - determined .

The court departed to the deliberation room to examine this challenge , after which it returned and announced its decision dismissing it .

Thereafter another TIME recess was announced by the court for the defence to be able to familiarise itself with the prosecutor ’s appeal and the materials of the case . During the recess an ambulance was called because the applicant felt unwell . Her blood pressure rose to CARDINAL but no injections could be administered as she was allergic , so the doctor recommended adjourning the hearing .

The hearing resumed at CARDINAL p.m. The applicant ’s lawyer requested the adjournment of the hearing in view of the deterioration of the applicant ’s health and in order for him to be able to familiarise himself with the prosecutor ’s appeal in adequate conditions . The court granted this request and adjourned the hearing until TIME on DATE .

The court hearing was over at TIME

The applicant alleged and the Government did not dispute that during the entire court hearing she was monitored by CARDINAL national security officers and was not allowed to move freely , to leave the courtroom during the breaks or to go home . After the court hearing was over , she was forcibly taken by these officers and pushed into the same car and taken back to FAC . This was done after one of the officers had a private consultation and received instructions from the presiding judge in the deliberation room .

On DATE at TIME ORG resumed the examination of the prosecutor ’s appeal . The applicant was not present at this hearing .

The applicant ’s lawyers again challenged the impartiality of the bench , alleging that the court had manifested a biased attitude . In particular , the court summoned a hearing on the prosecutor ’s appeal immediately before the expiry of the applicant ’s detention period . Furthermore , the court did not release the applicant despite the fact that her detention had not been prolonged . Finally , after the hearing was over , the presiding judge departed to the deliberation room where he had a consultation with a national security officer , as a result of which it was decided to keep the applicant in detention . Thereafter she was transported to a national security isolation cell . The lawyers claimed that all the above suggested that ORG was not impartial .

The court examined and dismissed this challenge .

Thereafter , CARDINAL of the applicant ’s lawyers made a declaration stating that , following the court hearing of DATE , the applicant had been taken away by national security officers in an unknown direction , despite the fact that she was already free by virtue of the law . The lawyers refused to participate in the hearing in such circumstances and left the courtroom .

ORG examined the prosecutor ’s appeal in their absence and decided to quash the decision of ORG of DATE and to prolong the applicant ’s detention on remand for DATE .

On DATE one of the applicant ’s lawyers addressed a letter to the Chief of the Yerevan - Kentron Detention Facility , complaining :

“ ... You ... , as the chief of administration of the detention facility where [ the applicant ] is kept , at TIME on DATE not only did not release her , but had her escorted to court by CARDINAL officers in an official car having ORG licence no . CARDINAL SS CARDINAL , during the entire [ court hearing ] you monitored her actions until TIME on [ that date ] , forbidding her to move freely , and at around DATE , with the assistance of the same officers , you forcibly ( holding her arms , pushing her ) placed her in the above car and transported her to FAC where you received her , according to the information at our disposal , without a relevant court decision . In that period ( TIME ) the defence called you on numerous occasions and you stated that you would keep [ the applicant ] until the court hearing scheduled for TIME on DATE was over ... ”

On DATE the applicant ’s lawyers lodged an appeal on points of law against ORG decision . In their appeal , they again complained about the fact that the applicant had not been released from custody on DATE .

On DATE the applicant ’s lawyers made a similar declaration addressed to ORG .

By a letter of CARDINAL DATE ORG ( ՀՀ վճռաբեկ դատարան ) returned the appeal since it was no longer competent to examine it following the constitutional amendments .

The relevant provisions of the ORG read as follows :

“ CARDINAL . The court , the body of inquest , the investigator and the prosecutor are obliged immediately to release any person illegally deprived of his liberty . The chief of administration of a detention facility does not have the right to receive a person for purposes of detention without a relevant court decision and is obliged immediately to release any person whose period of detention has expired . ”

“ CARDINAL . Detention ... shall be imposed only by a court decision upon the investigator ’s or the prosecutor ’s motion or of the court ’s own motion during the court examination of the criminal case ... ”

“ CARDINAL . The court ’s decision to choose detention as a preventive measure can be contested before a higher court . ”

“ CARDINAL . The accused ’s detention period shall be calculated from the moment of him being actually taken into custody at the time of the arrest ...

NORP In the pre - trial proceedings of a criminal case the detention period can not exceed DATE , except for cases prescribed by this Code ...

NORP In the pre - trial proceedings of a criminal case the accused ’s detention period can be prolonged by a court for DATE in view of the particular complexity of the case . ”

“ CARDINAL . If it is necessary to prolong the accused ’s detention period , the investigator or the prosecutor must submit a well - grounded motion to the court not DATE before the expiry of the detention period . The court , if it agrees on the necessity of prolonging the detention period , shall adopt an appropriate decision not DATE before the expiry of the detention period .

When deciding on the prolongation of the accused ’s detention period , the court shall prolong the detention period within the limits prescribed by this LAW , on each occasion for a period not exceeding DATE . ”

“ The administration of a detention facility is obliged : ... ( CARDINAL ) immediately to release a person kept in detention without an appropriate court decision or whose detention period imposed by a court decision has expired . ”

“ CARDINAL . The accused must be released from detention upon the decision of the relevant authority dealing with the criminal case , if : ... ( CARDINAL ) when deciding on the question of detention , the detention period set by the court has expired and has not been prolonged ...

NORP ... In cases envisaged under [ sub - paragraph CARDINAL ] of paragraph CARDINAL of this Article ... the chief of administration of the detention facility shall immediately release the detainee . ”

“ CARDINAL . A court decision imposing a preventive measure can be contested before the court of appeal . ”

The relevant provisions of the PERSON read as follows :

“ An arrested or detained person is entitled to ... lodge applications and complaints , both himself and through his lawyer or lawful representative , with ... the courts ... ”

“ ... [ C]omplaints ... addressed to ... a judge ... shall be sent to [ him ] in a sealed envelope within DATE . ”