Violation of Art. 10;Violation of Art. 6-1;No separate issue under Art. 14+10;Non-pecuniary damage - financial award;Costs and expenses partial award

John Freeland;Luzius Wildhaber;Paul Mahoney

Mr PERSON is a NORP of NORP origin and was born in DATE . He lives in GPE and works as a lawyer .

In DATE , a magazine , “ NORP ” ( NORP ) , published in its issue no . CARDINAL an article on a round - table debate it had organised under the chairmanship of Mr NORP in which the applicant had taken part . The applicant ’s comments were recorded in the article , entitled “ The past and present of the NORP problem ” ( PERSON ve PERSON ) , as follows :

“ ORG – Leaving aside the humanitarian side to the current tragic plight of the NORP in GPE , there are important political aspects to the problem , the main one perhaps being the intensification , with the crisis in the LOC , of relations at international level between the NORP movements . At this stage , CARDINAL question needs to be asked : what did we hope to gain from the relations established with GPE and GPE and what have we in fact achieved ? ... If you would allow me to , I should like to return to the question ... of the orchestrating of developments in the regional situation , mainly by GPE and the LOC , ... Mr Okçuoğlu , could I ask you to frame your answer in the context of the unitary ORG ?

PERSON – Your question is badly put . It involves certain ideological considerations . Before answering , I think I should explain what the NORP question is about . It concerns a nation of CARDINAL people , one which has existed in the region since history began and one which has , in company with the other nations established here , played a major role historically ; but it is also a nation which has , since DATE and under the influence of the international and regional powers , been deprived of its national rights , seen its territory divided up between the States in the region and been divested of its sovereign rights so as to be subjected instead to the hegemony of other GPE . If we are to make progress on this question , that must be the starting point . Admittedly , that does not mean to say that a radical solution to the problem will be found from DATE to the next .

Coming back to your question ... the idea that the NORP problem has been fuelled by outside forces , by imperialist powers , is not new . For DATE some observers have seen the problem in those terms . The underlying reasons may be summarised as follows .

Firstly , there are the concerns of the nations which keep the NORP under their domination . From the beginning , those powers have attempted to assert that the problem is that the NORP are not a national entity , have no claims of their own and are manipulated by outside forces . Their aim , then , is to prevent international powers intervening in the problem and to cast doubt on its legitimacy and to distract attention from it . There is also the international socialist movement and the doctrine of imperialism which prevails in such circles . As you know , GPE was akin to an empire in the classic sense . ORG has always been against the NORP as it considered that , if it the NORP were given certain rights , the nations it controlled by force would inevitably also assert claims , and discussion of such issues at the international level would render its networks less inaccessible . That is why the NORP have since DATE of PERSON consistently sided with the powers who have kept the NORP under their domination and why the local socialist satellite powers have invariably put forward similar arguments . Given the negative attitude of these socialist powers towards the NORP , the relationship between the sovereign power of the former and the official ideology of the latter has also played a role . That attitude was reinforced by the NORP position . NORP ideology is in itself an ideology of the sovereign nation . In that regard , the ideology of NORP sovereignty and the NORP national ideology as applied in the region were at one . However , the said doctrine of imperialism does not end there . After DATE , the NORP , under the influence of NORP and NORP socialist propaganda , whether consciously or subconconsciously , adopted the same tack . That led the NORP movement into a series of dead ends .

The allegation that the NORP problem arose as a result of provocations from outside is ill - founded . If one has to speak of imperialist protectionism in LOC , it will be noted that it has been of no benefit to the NORP , whereas , shielded by the imperialist powers concerned , the NORP , the NORP and the NORP have done quite well . If the NORP had not intervened in favour of the NORP in the Crimean War , the Russian Tsar would have expurgated GPE from the history books and would have seized the NORP heritage . Contrary to what is suggested by some left - wing historians , the imperialists tried to save the ‘ sick man’ rather than to kill him . That applies to the NORP , too . Up till now , the only people in LOC – if you except the NORP – who have fought for their national rights are the NORP people . The NORP , NORP and NORP have not fired a single bullet for their national rights . Not a shot was fired when the NORP invaded GPE in DATE . The so - called war of independence was merely a consequence of an historical conflict between the NORP and the NORP . The question of who was right is a controversial one . The resistance against the NORP , launched at NORP and GPE , was NORP . More precisely , it was NORP - NORP resistance that developed under the aegis of the local authorities . It was the spontaneous resistance of the people . Neither the NORP army nor the political authorities played any part in it . The NORP have fallen behind in obtaining their national rights not , as is suggested in DATE , because they are dependent on external powers , but , on the contrary , because they have failed to forge international relations and because the international powers have refused them admission .

While the NORP problem is the problem of the NORP , its solution is also of concern to the regional and international powers as it directly affects their interests . The question can not be dealt with using concepts , such as imperialism , anti - imperialism , socialism and anti - socialism , that bear scant resemblance to the true position . You can not say : ‘ It ’s our problem . You , GPE , GPE , the NORP , the NORP , do n’t interfere ; you , the NORP , the NORP , stay out of GPE . We must solve the problem with all those whose interests are at stake . With or without their help . There , too , it has to be said that of all the parties involved in the NORP problem , it is the NORP who have taken the least initiative . So , the NORP must be realistic . As the question concerns their existence and is posed at a time when their efforts have been minimal , it would be foolhardy to attempt to solve the problems by denying that initiatives have been taken or opposing them . In practice , the NORP must on this point work out how and to what extent they can play a bigger role in finding a solution to the problem . That would be the practical approach .

ORG – I would n’t want you to take what I said the wrong way . I do not suggest that the NORP revolt is dependent on imperialist factors . All I say is that the countries in the region do not have the resources to solve the problems that exist here by themselves . Accordingly , the continued presence of the international powers seems likely . Under those circumstances , how can the NORP play a greater role ?

PERSON Firstly , when considering the NORP problem the international powers are mindful of their own interests . We have to be aware of that and determine where our common interest lies . There are a number of nations like the NORP in the world . Although LAW and the fundamental treaties refer to peoples’ right to self - determination , it is not in practice accepted that that right applies to the NORP , any more than it is accepted that it applies to a series of other nations . Such nations only manage to obtain certain humanitarian and cultural rights that do not extend beyond the boundaries of the countries in which they live . None of them have been able to achieve more than that . The problems of peoples confined to minority status can not readily be referred to and resolved without taking this factor into account . All the boundaries need changing , but that is very difficult to achieve . For that reason , I believe that the NORP have committed an error of judgement . By that I do not mean that they must accept their present status right to the bitter end . If they wish to enter the history books , they have to be aware of the international implications their presence entails .

I would add that I attach no credit to the idea that the NORP have been ‘ deceived or sold’ . Recently , GPE cautioned them to act with restraint ; they broke off their relations with PERSON and turned down all his requests for arms . In my view , the NORP have committed an error of judgement . They have adopted a quite radical approach , CARDINAL for which the organisations of NORP GPE can not be held responsible . The NORP , believing PERSON to be finished , attempted to rise up spontaneously in reaction to the oppression to which they have been subjected for DATE . PERSON and PERSON , in company with the other NORP leaders , were forced to accept that process . We are not strong enough to face the likes of GPE , GPE , the NORP or a PERSON exhausted to the point where he is no longer able to stay on his feet . We have to examine the problem in the light of these realities . The urgent need is to ensure the democratic unity of the NORP . We must abandon the notion of hostility . No side is strong enough to destroy the other and in any event there is no reason to come to that . Our relations should be friendly , not hostile . Similarly , when we forge relations with the western powers , it is necessary and even essential to afford preference to national values .

For my part , I am opposed to the definition of primitive nationalism that has often been asserted in recent times . The use of such terminology sometimes reveals a lack of discernment . Nationalism takes CARDINAL known forms . The first is that of the oppressor nation , the second that of the nation that is oppressed . Beyond that , scientific research into nationalism has not come up with any other definition . It is difficult to know what the notion of ‘ primitive ORG covers : does it dismiss nationalism wholesale or does it suggest another form of nationalism ? It is unclear . Besides , this terminology is unscientific , of no value and merely serves to reflect certain absurd political preoccupations .

I do not subscribe to the theory that the ORG lack of success is due to primitive nationalism . In fact , it is not the NORP who are responsible for their lack of success . The reasons for it are to be found in the international status of the NORP . A number of nations in the world are in the same position as the NORP . None of them has had , up till now , an opportunity to draw its own frontiers , whether by force of arms or otherwise . How can we expect the NORP to be given an opportunity that has been offered to no other nation ? Let us take the example of GPE . The NORP had organised a referendum on the question of their independence and had subsequently declared themselves independent by an overwhelming majority . Yet when GPE gave their approval , the NORP invaded with tanks . GPE was isolated . We have to speak therefore with the benefit of hindsight . Since DATE the struggle has continued in NORP GPE . The only people engaged in combat in LOC are the NORP people . Despite that , their position has not improved at all . The NORP will certainly find a solution to their problem , but one must be aware that the factors coming into play do not depend solely on the NORP .

I should now like to clarify the notion of nationalism about which so much has been said . As you know , nationalist movements began in the west with the French Revolution and subsequently spread to LOC and LOC . The GPE were freed as a result of nationalism . However , the issue of nationality remains alive . There continue to be peoples who have been deprived of their national rights . If they are to be freed they must show nationalist sentiment . The fact that nationalist movements attract an imprecatory reaction from those whom they cause to suffer is understandable . Conversely , it is impossible to comprehend why people who claim to be on the side of the oppressed , who call themselves revolutionaries or innovators , should react in a similar fashion .

The nationalism of the oppressed nation can not be considered to be a usurpation of the rights of another nation . On the contrary , I believe that internationalism in the modern sense is inherent in nationalism . I do not approve of lumping together all kinds of nationalism , without being aware of the difference between the nationalism of the oppressor nation and the nationalism of the nation that is oppressed . If you ignore that difference , then you are serving the cause of the oppressor nation .

Why do NORP socialists , who outlaw NORP nationalism , not take a look at themselves ? They defend the staunchest nationalism of all time , namely NORP , yet they ban NORP nationalism . Prohibiting an oppressed nation from being nationalistic is to condemn it to slavery .

My friend PERSON consistently holds the same line . His politics are always reactionary . The NORP may react , but building a policy on the back of that reaction will not achieve much . In politics , one does n’t have friends or enemies , one has interests . Furthermore , politics is the art of seeking the feasible . Is the position of people who criticise advocates of autonomy and of NORP independence any different from that reached by the NORP national movement in GPE ? Not at all . In GPE , too , some benefit has been gained , but not from policies geared towards independence . Those in favour of independence may on occasion agree voluntarily to limit their demands saying : ‘ Decree a general amnesty , allow us to get organised’ . They even add : ‘ We do n’t want a separation’ . Such policies can not be brought to fruition with plays on words . DATE , the NORP must come up with medium - term policies that are adapted to the international context . ”

On DATE ORG no . CARDINAL ( “ ORG ” ) accused the applicant of disseminating propaganda against the “ indivisibility of the ORG ” . Relying on the comments set out above ( see paragraph CARDINAL above ) , he requested the application of section CARDINAL(CARDINAL ) of LAW ( Law no . ORG – see paragraph CARDINAL below ) and confiscation of the copies of the relevant issue of the aforementioned magazine ( see paragraph CARDINAL below ) .

The applicant denied the charges before ORG , arguing , in particular , that he had never intended to promote separatism .

On DATE ORG , composed of CARDINAL judges , including a military judge , found the applicant guilty of the offence charged and sentenced him under section CARDINAL(CARDINAL ) of PERSON no . ORG to DATE , CARDINAL months’ imprisonment and a fine of MONEY ( “ TRL ” ) , to be paid in DATE instalments . It also ordered confiscation of the publications concerned .

After verifying that the document in issue was an accurate transcription of what had been said at the round - table debate in which the applicant had taken part , ORG found , inter alia , that in his comments , the applicant had asserted that some NORP nationals had been deprived of their “ national rights ” as a result of their NORP origin and that their territory had been divided up between the GPE in the region concerned . According to the applicant , the NORP population – dominated by these States – was fighting to acquire its national rights .

ORG held that those comments , taken as a whole , amounted to separatist propaganda that was detrimental to the unity of the NORP nation and the territorial integrity of ORG and justified Mr PERSON ’s conviction .

In a judgment of DATE , ORG dismissed an appeal by the applicant .

On DATE , at the applicant ’s request , ORG agreed to deduct from the applicant ’s sentence the period from DATE to CARDINAL DATE which he had spent in pre - trial detention in connection with earlier criminal proceedings . Consequently , he was granted automatic parole .

The applicant paid the fine that had been imposed on him that DATE .

On DATE Law no . CARDINAL of DATE came into force . Inter alia , it reduced the length of prison sentences that could be imosed under LAW no . ORG while increasing the level of fines ( see paragraph CARDINAL below ) . In a transitional provision relating to section CARDINAL , PERSON no . CARDINAL provided that sentences imposed pursuant to section CARDINAL of Law no . ORG would be automatically reviewed ( see paragraph CARDINAL below ) .

Consequently , ORG reviewed the applicant ’s case on the merits . In its judgment of DATE it reduced Mr ORG ’s prison sentence to DATE , DATE and DATE but increased the fine to GPE DATE .

Article CARDINAL § CARDINAL of the Criminal Code reads as follows :

“ In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ... ”

The Prevention of Terrorism Act ( Law no . CARDINAL of DATE ) , has been amended by PERSON no CARDINAL of DATE , which came into force on DATE ( see paragraph CARDINAL below ) . Sections CARDINAL and CARDINAL read as follows :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY ...

“ The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . ”

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve .

However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL . ”

The PERSON of DATE contains a “ transitional provision relating to section CARDINAL ” that applies to the amendments which that law makes to the sentencing provisions of section CARDINAL of Law no . CARDINAL . That transitional provision provides :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE . ”

The relevant provisions of LAW concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where one of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .

Furthermore , the Government submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the judgments of DATE ( no . CARDINAL ) and DATE ( no . CARDINAL ) ; DATE ( no . CARDINAL/CARDINAL ) , DATE ( no . CARDINAL ) , CARDINAL DATE ( no . PERSON ) , DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) ; DATE ( no . TIME ) , DATE ( no . CARDINAL ) , DATE ( no . GPE ) , DATE ( no . CARDINAL/ CARDINAL ) and CARDINAL DATE ( no . CARDINAL/CARDINAL ) .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of “ propaganda ” , CARDINAL of the constituent elements of the offence , or on account of the objective nature of the words used .

ORG were created by PERSON no . DATE of DATE , in accordance with LAW . That law was annulled by ORG on DATE . The courts in question were later reintroduced into the NORP judicial system by LAW . The relevant part of the statement of reasons contains the following passage :

“ There may be acts affecting the existence and stability of a ORG such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately . For such cases it is necessary to set up ORG . According to a principle inherent in our LAW , it is forbidden to create a special court to give judgment on a specific act after it has been committed . For that reason ORG have been provided for in our LAW to try cases involving the above - mentioned offences . Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence . ”

The composition and functioning of ORG are subject to the following rules .

The constitutional provisions governing judicial organisation are worded as follows :

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . ”

“ Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW ”

“ ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .

The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor , shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .

Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .

Appeal against decisions of ORG shall lie to ORG .

“ Military legal proceedings

The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... ”

Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG , provide :

“ In the capitals of the provinces of ... ORG shall be established to try persons accused of offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security . ”

“ The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . ”

“ The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian ... judges , the other members , whether regular or substitute , military judges of the first rank ... ”

“ The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .

Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG ... may not be appointed to another post or place , without their consent , within DATE ...

If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves ... may be changed in accordance with the procedure laid down in that legislation . ”

“ ORG shall have jurisdiction to try persons charged with

( d ) NORP offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,

( e ) NORP offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State – meaning both the national territory and its people DATE or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security .

“ ORG shall hear appeals against the judgments of ORG . ”

“ The rules governing the rights and obligations of ... military judges appointed to ORG and their supervision ... , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession ...

The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors ... and the files on any investigations conducted in respect of them ... shall be transmitted to ORG . ”

“ A ORG may be transformed into a ORG , under the conditions set forth below , when a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG ”

NORP The relevant provisions of ORG are worded as follows :

“ The aptitude of military judges ... appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG Law no . CARDINAL ) .

( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members ... shall be the Minister of State in ORG , followed by PERSON .

“ Members ... of the ORG belonging to ORG ... shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG ... ”

“ Military judges ... shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces ...

The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors ... ”

“ The rules governing the salary scales , salary increases and various personal rights of military judges ... shall be as laid down in the provisions relating to officers . ”

“ The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :

A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .

B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .

The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file ... ”

“ When military judges ... sit in court they shall wear the special dress of their civilian counterparts ... ”

Article CARDINAL of LAW of CARDINAL DATE provides :

“ It shall be an offence , punishable by DATE imprisonment , to abuse one ’s authority as a civil servant in order to influence the military courts . ”

Under LAW of PERSON no . CARDINAL ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Greece)

Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos

The applicant was born in DATE and lives in NORP .

On DATE he was arrested by the NORP authorities at the NORP borders under the charge of drug trafficking , as QUANTITY of heroin were found in the car he was driving .

DATE , ORG , prosecuted the applicant for illegal drug trafficking and ordered his detention on remand ( order no . CARDINAL ) .

NORP The applicant alleges that his arrest was a set - up by a NORP national with whom he had disagreements in GPE - where the applicant had allegedly lived for an unspecified period of time - and that the drugs were put in the car without his knowledge .

On DATE ORG convicted the applicant and sentenced him to DATE of imprisonment ( judgment no . MONEY ) .

On an unspecified date the applicant lodged an appeal against the first instance court ’s decision .

On DATE ORG upheld the first judgment ( judgment no . CARDINAL/CARDINAL ) .

On DATE the applicant lodged an appeal on points of law with ORG challenging the abovementioned decision . In the grounds of appeal no complaint was raised by the applicant regarding the interpretation service at the moment he was arrested and afterwards during the proceedings .

NORP The hearing , which was originally set for DATE , was subsequently adjourned to DATE . As it transpires from the case file , the latter proceedings are still pending before ORG .


Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the applicant was arrested by the police . On DATE the Łódź Regional Prosecutor ( Prokurator Wojewódzki ) charged him with fraud and detained him on remand on the grounds specified in LAW . On DATE the ORG ( Sąd Wojewódzki ) , ruling on the applicant 's appeal , upheld the detention order .

On DATE the ORG , at the prosecutor 's request , prolonged the applicant 's detention until DATE . The court based its ruling on the grounds originally given for his detention and the fact that the investigation had not been completed since further evidence needed to be obtained .

On DATE ORG , on a further request by ORG , prolonged the applicant 's detention on remand until DATE . The court relied on the same grounds as those mentioned in its decision of CARDINAL DATE . On DATE the applicant lodged an appeal against the decision prolonging his detention .

Shortly afterwards , on an unspecified date , the investigation was completed . Subsequently , on DATE , ORG lodged a bill of indictment with ORG .

On DATE the ORG referred the applicant 's appeal of DATE to ORG ( Sąd Apelacyjny ) . On DATE ORG held that it “ was purposeless ” to examine this appeal and decided that it should be deemed to be an application for release . The court observed that a decision on the prolongation of detention on remand was necessary only at the investigation stage . Therefore , after the investigation was completed and the bill of indictment was lodged , the applicant could simply file an application for release at any time with the court competent to deal with his case , pursuant to LAW . As a consequence of that decision , the appeal was referred back to ORG . The applicant was informed thereof on DATE . However , in the subsequent proceedings , ORG did not examine the appeal in question either as an application for release under LAW or under any other head .

Meanwhile , on DATE , the applicant had filed a formal petition with ORG ( Prokurator Rejonowy ) . He informed the prosecutor that the order for his detention had expired on DATE , so that his continued detention had become unlawful and unfounded .

Later , on DATE , the applicant lodged an application for release with ORG , arguing , in particular , that he should be released in view of the bad state of his health . On DATE the court , sitting in camera , ordered that the authorities of the prison hospital at FAC submit a medical report on the applicant 's current state of health . It adjourned the examination of the application without fixing a date for a further session .

It appears that the applicant repeatedly complained to the authorities that his detention under the bill of indictment had become unlawful since , on DATE , in reply to those complaints , PERSON , the President of ORG of the Łódź Regional Court , sent a letter to the applicant , the relevant part of which read as follows :

“ The ORG hereby informs the accused that , since the bill of indictment was submitted to ORG , ORG placed the detainee at the disposal of that court . ... From then on , the accused has been at FAC disposal [ and will be ] until the detention order is quashed ( at the [ applicant 's ] or his lawyer 's request , or [ at the request of ] ORG administration – for instance on the ground of his bad state of health ) .

In case an application for release is not allowed , detention may continue until the first - instance judgment is delivered .

In such cases , after the delivery of the judgment , the court makes a decision on whether detention shall continue further . Therefore , the accused 's assertion that his detention [ order ] has expired is unjustified ... ”

On DATE doctors from the prison hospital submitted the report requested by the trial court . They stated that the applicant could undergo medical treatment in that hospital . They suggested , however , that he be examined by a cardiologist , a psychiatrist and a neurologist .

On DATE the court again adjourned the examination of the application for release , finding that reports from the said medical experts had to be obtained to establish whether the applicant should be released on health grounds .

On DATE the applicant filed another application for release with ORG .

On DATE an expert cardiologist submitted a report to the court . On DATE the court found it necessary to place the applicant in the prison hospital but adjourned its decision on his applications for release until the expert psychiatrist and neurologist had submitted their joint report . The report was ready on DATE ; however , on DATE , the court , at the request of ORG , again adjourned the examination of the applications and ordered that certain – unspecified – evidence concerning the state of the applicant 's health be obtained .

On DATE the court ruled on the applications for release dated DATE and DATE respectively . It held that no circumstances justified altering the preventive measure in issue . The decision was based on Articles CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW . On DATE ORG , ruling on the applicant 's appeal , upheld that decision .

In the meantime , since DATE , the applicant had been requesting ORG to give an interpretation of the detention order of DATE , in particular as to whether or not that order had remained enforceable after its expiry . He lodged these requests under LAW on the following dates : CARDINAL and DATE , DATE , CARDINAL and DATE , DATE and DATE , and DATE . The applicant argued that the fact that the indictment had been lodged with the court did not mean that his detention automatically continued after DATE . He further submitted that no provision of LAW provided that detention was prolonged as a result of the transfer of the case to the court . He asserted that the order of DATE was not enforceable as he had lodged an appeal against it . The applicant concluded that he should have been released immediately after DATE because his detention as from that date lacked any legal basis .

On DATE the ORG sitting with a single judge rendered a decision on all the above requests . The court held that the decision of DATE to prolong the applicant 's detention until CARDINAL DATE was enforceable , despite the fact that the applicant had lodged an appeal against it . The judge further reiterated the arguments set out in the letter to the applicant of DATE .

On DATE the applicant appealed . He submitted that the court should have been composed of CARDINAL judges in accordance with the relevant provisions of LAW . He again argued that there was no legal basis for keeping him in detention after DATE . On DATE a panel of CARDINAL judges of ORG quashed the contested decision . The court found that the firstinstance court should have been composed of CARDINAL judges , as submitted by the applicant . However , it also held that LAW was not applicable in the applicant 's case since that provision applied only to cases involving doubts concerning the execution of the sentence or the calculation of the penalty imposed and not to the execution of detention orders .

On DATE the applicant appealed . On DATE the President of ORG of the Łódź Regional Court issued an order refusing to allow the applicant 's appeal on the basis that it was inadmissible in law . The applicant filed a further appeal against that decision . On DATE ORG upheld the decision of DATE , considering that it had been open to the applicant to file an appeal against the decision of DATE , but that any further appeal was inadmissible in law since LAW did not apply to a detainee .

On DATE the ORG quashed the detention order and released the applicant under police supervision . The criminal proceedings against the applicant are still pending in the court of first instance .

At the material time the domestic provisions governing detention on remand were contained in LAW of DATE , which is no longer in force as it was repealed and replaced by LAW DATE ( currently referred to as the “ GPE Procedure ” ) .

The Code of Criminal Procedure of DATE listed detention among the so - called “ preventive measures ” ( those measures including , inter alia , detention on remand , bail and police supervision ) . Until DATE ( that is , the date on which the PERSON of DATE on LAW to LAW and Other Criminal Statutes came into force ) a prosecutor was empowered to order all preventive measures as long as the investigation lasted . Also , at the time the national law did not set out any statutory timelimits concerning the length of detention on remand in court proceedings ; however , under LAW a prosecutor was obliged to determine in his decision the period for which detention was ordered .

That Article stated ( in the version applicable at the material time ) :

“ Preventive measures shall be ordered by the court ; before a bill of indictment has been lodged with the competent court , those measures shall be ordered by the prosecutor . ”

The relevant part of LAW ( in the version applicable at the material time ) stated :

“ CARDINAL . The prosecutor may order detention on remand for a period not exceeding DATE .

( CARDINAL ) the court competent to deal with the case , at the prosecutor 's request , for a period not exceeding one year ;

( CARDINAL ) ORG , at the request of ORG , for such further fixed term as is required to terminate the investigation . ”

The courts , when ruling on a prosecutor 's request under LAW of the LAW , were obliged to determine the precise period for which detention should be prolonged . If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order ( regardless of whether it had been made by him or by a court ) , the detainee had to be released immediately .

Article CARDINAL § CARDINAL of LAW provided :

“ A preventive measure ( including detention on remand ) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one . ”

Article CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) ( in the version applicable at the material time ) provided :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means ;

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society . ”

At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court . Since DATE , the date of entry into force of the Law of DATE on LAW to LAW and Other Criminal Statutes and under the present criminal legislation , the courts have been and are bound by the maximum statutory time - limits for which detention on remand can be imposed during the entire course of the proceedings . In particular , at the material time , there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order , or that this event itself resulted in detention which had originally been prolonged by a court for a fixed period at the investigation stage being continued either for an unlimited period or until a judgment at first instance was given . Nor was there any case - law to that effect . Nevertheless , according to domestic practice , once a bill of indictment had been lodged with the court competent to deal with the case , detention was assumed to be prolonged pending trial without any further judicial decision being given .

It was as late as DATE that ORG , referring to the historical background to the amended criminal legislation , mentioned the practice of keeping an accused in detention under the bill of indictment . It did so in a ruling on the interpretation of LAW . That ruling did not , however , concern criminal legislation as it stood at the material time but related to the LAW as amended with effect from DATE , when LAW as amended ) set out maximum time - limits for detention on remand not only at the investigation stage but at the whole pre - trial stage . In its resolution ( no . I ORG CARDINAL/CARDINAL ) ORG replied DATE in the affirmative – to the question whether , after the lodging of a bill of indictment with the court competent to deal with the case , that court was obliged to give a decision prolonging detention on remand which had meanwhile exceeded the period fixed ( or further prolonged ) at the investigation stage . The relevant parts of the resolution read as follows :

“ Under the provisions of LAW which applied before [ CARDINAL DATE , when ] the amendment of DATE took effect , an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in LAW . However , it did not emerge explicitly from Article QUANTITY ( CARDINAL ) of the LAW that , at the investigation stage , a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last . It was deemed to be obvious that , when prolonging detention at the investigation stage , both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision . It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings .

Comparing the old legislation with the present one leads [ this ORG ] to the conclusion that the legislator , when amending the LAW in DATE , simply extended [ the scope of ] the rules applicable to continuing and prolonging detention on remand DATE which had previously applied only at the investigation stage DATE to the phase of court proceedings .

Before the amendment , the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court . Now , the starting - point is that a suspect ( and an accused ) should not be detained indefinitely as long as a first - instance judgment is not rendered .

Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time - limit [ on this measure ] . For this reason , the court concerned had no interest in [ knowing ] until when detention had been prolonged under the last decision [ ; ] detention could continue because ' detention of limited duration ' had become ' detention of unlimited duration ' . There was therefore only a need to ascertain whether there were grounds for continuing detention under LAW . ”

In its further resolution ( no . I ORG CARDINAL/CARDINAL ) of DATE , ORG confirmed that :

“ If the case , in which detention on remand had been ordered , has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires , the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter . ”

Referring to the resolution of DATE , it also stressed that :

“ ... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect ( accused ) should in no case be detained indefinitely until the first - instance judgment is rendered in his case ...

It should be noted that , from the point of view of procedural safeguards for an accused , what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings , but the total period of his detention and whether his detention and its length are subject to review . If there is such a review at the investigation stage ( LAW and CARDINAL ) , there is no reason why there should not be one at the stage of the court proceedings ... ”

Articles CARDINAL and CARDINAL of LAW of DATE , referring to the formal requirements for a bill of indictment , stipulated that it should contain the first name and surname of the accused and information as to whether a preventive measure had been imposed on him , a statement of the offence with which he had been charged , a detailed description of the facts of the case along with a statement of reasons for the charges , an indication of the court competent to deal with the case and evidence on which the charges were based .

Once the bill of indictment had been lodged with the court , the president of the court carried out preparations for the main trial .

LAW ( CARDINAL ) of LAW provided :

“ CARDINAL . The president of the court , ex officio or at the request of a party , shall refer the case to a court session if he finds that its resolution lies beyond his own competence , in particular :

( CARDINAL ) when there is a need to issue an order on a preventive measure . ”

NORP However , at the material time , according to the relevant domestic practice in respect of detention continuing after the last detention order had expired and after a bill of indictment had been lodged with a court , the courts did not make use of the procedure prescribed by the above - mentioned provision as it was presumed that the detention continued solely due to the fact that a bill of indictment had been lodged and , therefore , there was no need to issue a separate decision prolonging the detention .

Also , at the time , the LAW set out CARDINAL different legal avenues whereby a detainee could challenge the lawfulness of his detention : an appeal to a court against a detention order made by a prosecutor ; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor ; and proceedings relating to a detainee 's application for release .

As regards the last of these , LAW ( in the version applicable at the material time ) stated :

“ An accused may at any time apply to have a preventive measure quashed or altered .

Such an application shall be decided by the prosecutor or , after the bill of indictment has been lodged , by the court competent to deal with the case , within a period not exceeding DATE . ”

No provision of the Code stipulated that exceeding the time - limit laid down in that Article would have any legal consequence .

The interpretation of enforceable decisions in criminal proceedings was at the relevant time governed by the provisions of LAW of DATE .

Article CARDINAL of that Code provided :

“ CARDINAL . The authority executing a decision , as well as everyone whom such a decision concerns , may request the court which has dealt with the case to rule on any doubts concerning the execution of that decision or the calculation of the penalty imposed .

Everyone whom the decision on interpretation referred to in paragraph CARDINAL concerns may appeal against such a decision . ”

According to LAW , provisions of the Code referring to a “ convicted person ” applied by analogy to a “ detainee ” . However , in the light of domestic practice and legal theory , it was considered doubtful whether LAW applied to cases in which a person detained on remand challenged the lawfulness of his detention since such a challenge was normally examined in the proceedings prescribed by LAW ( see paragraphs CARDINAL above ) .

Proceedings relating to a request under LAW were designed to obtain an interpretation of an enforceable decision which had not been formulated with adequate precision . The court which was called upon to interpret the decision in question was not competent to amend or supplement its operative part ( see the decision of ORG ( no . PERSON CARDINAL/CARDINAL ) of DATE , ORG CARDINAL/CARDINAL/CARDINAL ) . That being so , the person concerned could not obtain his release by lodging a request under LAW .


Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time)

The applicants were born in DATE , DATE and DATE respectively and live in GPE .

On DATE the applicants claimed compensation for damage to their health ( infection with Hepatitis C ) .

On DATE the GPE I ORG dismissed their action .

On DATE ORG , upon the applicants ' appeal , quashed the first - instance judgment and remitted the case file for further examination to the district court .

On DATE the applicants complained to the President of the district court about undue delays . On DATE the President of the court concerned acknowledged that there had been delays in the proceedings .

On DATE , CARDINAL DATE and DATE the district court held hearings .

The proceedings are pending .

On DATE ORG found that GPE had violated the applicants ' right to a hearing without unjustified delay . ORG awarded CARDINAL NORP PERSON ( SKK ) to each applicant as just satisfaction in respect of non - pecuniary damage , ordered the district court to avoid further delays and to reimburse the applicants ' legal costs .

Second set of constitutional proceedings

On DATE ORG found that , in the period after its previous ruling , the Bratislava I ORG had violated the applicants ' right to a hearing without unjustified delay . ORG awarded SKK CARDINAL to each applicant as just satisfaction in respect of non - pecuniary damage , ordered the district court to avoid further delays and to reimburse the applicants ' legal costs .


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

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

Together with Mr W. , the applicant held shares in a limited liability company which in DATE took out several loans from the PERSON ORG eG for which both the applicant and Mr PERSON provided directly enforceable guarantees ( selbstschuldnerische Bürgschaft ) . In DATE the bank terminated the loans on account of arrears and claimed the outstanding debts from the applicant .

After the applicant had refused to pay , the bank invoked the guarantees and in DATE brought an action claiming partial payment of MONEY ( ORG ) . Together with its statement of claim the bank submitted , inter alia , a deed signed by the applicant on DATE guaranteeing an overdraft of the company ’s account in anticipation of a current account advance ( GPE ) of LAW . On DATE , following an oral hearing , ORG found the bank ’s claim to be justified in view of the guarantee . The applicant brought an appeal against the judgment .

On DATE ORG advised the parties that it had doubts as to the action ’s conclusiveness ( GPE ) . In the opinion of ORG , the guarantee of DATE did not cover the bank ’s claim since it was in anticipation of a current account advance and had therefore expired once the advance had been authorised .

On DATE the bank ’s lawyer submitted a deed guaranteeing the actual current account advance signed by the applicant on DATE . The applicant did not dispute the newly submitted guarantee ; however , she alleged that its submission constituted an inadmissible amendment of claim ( Klagänderung ) and that a claim based on the new guarantee was moreover time - barred .

In DATE the presiding judge of the competent chamber , Mr W. , fell ill . He has been unfit for service because of illness ( dienstunfähig krank ) since then . By decision of ORG presidium of CARDINAL DATE PERSON was appointed regular deputy presiding judge ( regelmäβiger PERSON ) .

By letter of CARDINAL DATE Mr PERSON informed the parties that in view of the new submission of the bank the chamber intended to dismiss the applicant ’s appeal in accordance with section CARDINAL § CARDINAL of the Code of Civil Procedure ( see Relevant domestic law and practice , below ) without an oral hearing for lack of prospects of success . The court considered that from the beginning the bank had based its claim on an undisputed guarantee for the current account advance and had simply submitted the wrong deed . For this reason the claim could not be time - barred either . In reply , the applicant submitted that , because of the amendment of claim , a decision under section CARDINAL § CARDINAL of the Code of Civil Procedure was no longer admissible and an oral hearing was necessary . On DATE ORG , by unanimous decision , dismissed the appeal under section CARDINAL § CARDINAL of the Code of Civil Procedure , referring to the reasons set out in the letter of CARDINAL October DATE .

On DATE the applicant submitted a complaint that she had not been heard ( FAC ) , arguing , inter alia , that ORG had neither dealt with her arguments regarding a modification of the matter in dispute ( ORG ) nor the question whether a decision under section CARDINAL § CARDINAL of the Code of Civil Procedure was still admissible .

On DATE ORG dismissed the applicant ’s complaint . The court held that it did not view the bank ’s submission on appeal as new or as an amendment of claim . However , even if it had considered it as such an oral hearing would not have been necessary . The new submission had been undisputed and was therefore admissible in any event on appeal . An amendment of claim would have been relevant ( sachdienlich ) and therefore also admissible , irrespective of the applicant ’s objection . Finally , the bank ’s claim was not time - barred as argued by the applicant : the current account advance had not been terminated until DATE so the statute of limitations ran until DATE and the correct guarantee had been submitted in time .

In a constitutional complaint of DATE the applicant alleged a violation of her right to be heard and a violation of her right to the legally competent judge . In connection with the latter argument , she submitted that because of the long - term illness of Mr W. a new presiding judge should have been appointed . Furthermore , the decision of the presidium of CARDINAL DATE was unlawful because there had been no material cause ( sachlicher ORG ) for the appointment of PERSON as deputy presiding judge and thus a change in the distribution of business ( PERSON ) in the course of the business year .

On DATE ORG refused to accept the applicant ’s constitutional complaint for examination ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

The relevant domestic law is described in the ORG ’s decision in the case of PERSON v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE .


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

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

On DATE the applicant was involved in a major traffic accident in GPE . Her car was destroyed in a head - on collision with an inter - city bus while the applicant and her family members all sustained serious injuries .

On DATE the applicant filed a compensation claim against a NORP insurance company with ORG in ORG ( Opštinski sud u ORG ) .

Following CARDINAL remittals , both of which took place before GPE ratified the Convention , on DATE the parties in the domestic proceedings informed ORG that they were willing to consider a friendly settlement .

On DATE ORG suspended the proceedings , stating that they would be continued should the parties fail to reach a settlement .

Since the friendly settlement negotiations were unsuccessful , on CARDINAL DATE the applicant urged ORG to resume the proceedings .

Following CARDINAL scheduled hearings and the receipt of an expert 's report , on DATE ORG ultimately ruled partly in favour of the applicant . On an unspecified date thereafter this judgment became final since neither party filed an appeal against it .

The applicant complained under LAW that the length of the proceedings in question had been incompatible with the “ reasonable time ” requirement which reads as follows :

“ In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [ a ] ... tribunal ... ”

The Government contested that argument .

The ORG observes that the proceedings in question ended by DATE . Since the respondent ORG ratified LAW , they have thus been within the ORG 's competence ratione temporis for a period of DATE and DATE at CARDINAL level of jurisdiction .

The ORG also recalls that , in order to determine the reasonableness of the delay at issue , regard must be had to the state of the case on the date of ratification ( see , mutatis mutandis , PERSON v. GPE , DATE , Reports of Judgments and Decisions DATE ) and notes that on DATE the impugned proceedings had already been pending for DATE in all .

The Government raised various objections to the admissibility of the applicant 's complaint . However , the ORG has rejected similar objections in many previous cases ( see , for example , PERSON , no . CARDINAL , § § CARDINAL and DATE , DATE ; PERSON , no . GPE , § § CARDINAL and CARDINAL , CARDINAL DATE ; V.A.M. v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE ) . It finds no particular circumstances in the instant case which would require a departure from this jurisprudence . It therefore declares this complaint admissible .

The Government further stated that there had been no violation of LAW .

Frydlender v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALVII ) .

The ORG has frequently found violations of LAW in cases raising issues similar to the one in the present case .

Having examined all the material submitted to it , the ORG considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case . In view of its case - law on the subject , the ORG therefore considers that the length of the impugned proceedings was excessive and failed to meet the “ reasonable time ” requirement . There has accordingly been a breach of LAW .

The applicant further complained under LAW that the proceedings at issue had been unfair .

The ORG notes that the applicant did not avail herself of the opportunity to file an appeal against ORG judgment of DATE . It follows that this part of the application is inadmissible for non - exhaustion of domestic remedies , pursuant to LAW .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicant claimed CARDINAL ( ORG ) and LAW in respect of the non - pecuniary and pecuniary damages suffered , respectively .

As regards the former , tapplicant ORG CARDINAL under this head .

The ORG , however , does not discern a causal link between the violation found and the pecuniary damage sought . It therefore rejects the applicant 's claim in this regard .

The applicant did not make any claim for costs and expenses . Accordingly , the ORG is not required to make an award under this head .

The ORG considers it appropriate that the default interest should be based on the marginal lending rate of ORG , to which should be added CARDINAL percentage points .


Violation of Art. 6-1;No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant was born in DATE and lives in PERSON . He is a lawyer belonging to ORG .

The applicant was a party to proceedings before ORG to determine where his practice was to be located , a necessary preliminary to any activity in his profession .

On DATE ORG of the PERSON region ( PERSON ) refused to enter the applicant 's name in the list of practising lawyers . On DATE ORG ( PERSON ) upheld that decision . On DATE the Minister of ORG set aside ORG decision . On DATE ORG entered the applicant 's name in the list , but refused to determine a location for his practice on the ground that he had not joined a lawyers ' cooperative ( zespół adwokacki ) in order to carry on his profession .

On DATE the applicant appealed , informing ORG that he had been retired since DATE and only worked from time to time . He received no reply .

On DATE the applicant asked ORG to forward to the Minister of ORG his application for permission to carry on his profession as an independent lawyer and to have his practice established in PERSON at the address he indicated .

On DATE ORG refused his application on the ground that he had not made any request for the location of his practice to be designated . According to the Government , the applicant did not appeal against that decision .

On DATE the applicant submitted a request to have his practice located in ORG ; that request was refused on DATE because there were no places available . On DATE ORG dismissed an appeal by the applicant citing the lack of places and the need to give priority to trainee lawyers .

On DATE ORG ( PERSON ) , sitting in GPE , set aside the decisions given . It held that ORG had been required to designate a location for the applicant 's practice at the time when it entered his name in the list of members of the Bar , that is on DATE . It also held that when designating the location of the applicant 's practice ORG had a duty to take into account , among other considerations , his state of health .

On DATE ORG decided that the applicant 's practice should be located in PERSON ( QUANTITY from PERSON ) . On appeal , that decision was upheld on DATE by ORG .

On DATE ORG once again set aside the decisions given . It held that the governing bodies of the profession , when designating the location of the applicant 's practice , had still not taken into account his state of health , had not explained why , despite the growing number of law practices in the chief town of the region ( PERSON ) , the applicant 's request had not been allowed , and had not explained why requests similar to the applicant 's had been dealt with and granted as a priority .

NORP That decision was served on ORG on DATE . On DATE ORG asked the applicant to supply information about his professional activity and his state of health . The applicant described his professional activity and stated that he had suffered CARDINAL heart attacks .

On DATE ORG decided to suspend the proceedings to determine where the applicant 's practice was to be located and brought an action to have the applicant declared unfit to carry on his profession on the ground that he had suffered heart attacks . On DATE ORG upheld the decision .

On DATE the applicant complained to ORG , sitting in GPE , of ORG refusal to comply with its decision of DATE . On DATE , according to the ORG , ORG dismissed the complaint as being out of time .

On DATE ORG set aside the decisions given on DATE and DATE . It observed that the proceedings instituted by ORG could be brought only against a practising lawyer , whereas in the present case , although the applicant 's name had been entered in the list of lawyers , he could not carry on his profession because the location of his practice had not been determined .

On DATE ORG directed the applicant to supply medical certificates attesting to his state of health . Citing ORG decision of DATE , the applicant refused to comply . In consequence , on DATE , ORG determined the location for the applicant 's practice as PERSON ( approximately QUANTITY from ORG ) . It held that there were no medical reasons why the practice should not be located outside the chief town of the region , in which there were too many practising lawyers . On DATE the applicant appealed , and on CARDINAL DATE he complained of ORG continued failure to comply with the decision of ORG , sitting in GPE . On DATE ORG overturned ORG decision . On DATE ORG put off its decision until DATE .

On DATE , as ORG had not given a ruling within the time allowed , the applicant asked ORG , sitting in PERSON , to compel ORG to reach a decision and “ to take the necessary measures to comply with the instructions given by ORG in its decisions ” . On DATE ORG informed ORG that the applicant 's case was due to be heard at its meeting on DATE . On that date ORG fixed the location of the applicant 's practice in GPE ( QUANTITY from ORG ) , giving him permission to live elsewhere . On appeal , that decision was upheld on CARDINAL DATE by ORG .

On DATE ORG , sitting in PERSON , refused to compel ORG to give a ruling , given that in the meantime ( on DATE ) it had done so . It further noted that the applicant had appealed against the decision concerned . The part of his application containing the request for the necessary measures to be taken to comply with ORG instructions was referred to ORG , sitting in GPE , which had jurisdiction over the matter .

On CARDINAL DATE the applicant explained to ORG , sitting in GPE , exactly what it was he was seeking . He distinguished between the following requests : the setting aside of ORG decision of CARDINAL DATE ; the imposition of a fine on ORG ; damages for DATE of delay in complying with ORG instructions ( to take the state of his health into account ) ; and a decision on whether he had the right to bring civil proceedings to obtain compensation for the loss he had suffered through the failure to comply with ORG decisions .

ORG submitted that the application should be refused . Firstly , it pointed out that the applicant was refusing to supply the medical certificates requested , which suggested that he was in good health . Secondly , it informed the court that the applicant worked as a legal adviser in a specific field , so that he was able to carry on an occupation successfully outside the legal profession . It further observed that he was in receipt of an invalidity pension ( uprawnienia rentowe ) . Lastly , it submitted that ORG , the town in which ORG had fixed the location of the applicant 's practice , did not have the requisite number of lawyers . The choice of location had therefore been prompted by concern for the proper administration of justice .

On DATE ORG , sitting in GPE , allowed only part of the applicant 's claim , setting aside ORG decision of CARDINAL DATE . It first observed that ORG had not complied with the orders made in all the decisions it had given up to that date . It referred to the principle that decisions taken by ORG concerning the location of a lawyer 's practice were administrative decisions and therefore came under its jurisdiction . It pointed out that an administrative body could not ignore its legal opinion , since any decision taken in disregard of its orders would be null and void .

ORG also pointed out that an administrative body called upon to deal with a request like the CARDINAL in issue was required to take into account the interest of the individual while protecting the general interest . It emphasised that in the present case ORG decisions gave no valid reason for refusing to allow the applicant to establish his practice in PERSON . In conclusion , it described the proceedings before ORG as unfair , since the applicant had been refused any opportunity to make his case and because ORG had done no more than speculate about his state of health .

ORG invited the applicant to its meetings on DATE and DATE . He was unable to attend , but presented his apologies .

On DATE ORG again fixed the location of the applicant 's practice in GPE . On DATE it annulled the above decision and finally fixed the location of the applicant 's practice in PERSON . On DATE the applicant informed it that he would begin work on DATE .

The applicant also referred the matter to ORG ( ORG i GPE – “ the Office ” ) . At the end of the related proceedings , on DATE , the GPE regional anti - monopoly court ( PERSON Antymonopolowy ) dismissed an appeal by ORG against a decision given by the head of ORG PERSON GPE i GPE ) on DATE . After noting that ORG engaged in monopoly practices restraining competition in the service provision market , the court ordered it to abandon the practices concerned . On DATE ORG appealed on points of law .

On DATE ORG quashed the previous decisions . It ruled that the case concerned the applicant alone and that the conduct of ORG authorities could not be equated with monopoly practices . It held that ORG was not required by its rules to locate a lawyer 's practice in the town of his choice .

Section CARDINAL of ORG ( the Law of DATE ) provides that the legal opinion expressed in a decision of that court is binding on the administrative body whose action or omission gave rise to the proceedings . The administrative body concerned is required to comply with the opinion until subsequent factual or legal elements cause it to lose its validity or until the decision is set aside as a result of an extraordinary appeal .

Section DATE of LAW ( the PERSON of CARDINAL DATE ) provides , inter alia :

“ CARDINAL . NORP The regional bar association shall give a decision to enter a lawyer 's name in the list of its members and at the same time shall designate the location of his practice , taking into account the need to ensure appropriate geographical coverage in the supply of legal assistance .

NORP The regional bar association may decide not to designate the location of the lawyer 's practice in the event of one of the obstacles to carrying on the legal profession referred to in LAW ( CARDINAL and CARDINAL ) and § CARDINAL . ”

The obstacles to carrying on the legal profession listed in section CARDINAL of LAW are as follows :

“ CARDINAL . A lawyer may not carry on his profession

– if he is bound by a contract of employment ,

– if his spouse works as a judge or prosecutor within the area covered by the regional bar association – in the inquiry and investigation agencies ,

– if he has been declared permanently unfit to carry on the legal profession ,

– if he has been declared unfit ,

– if he has been punished by a suspension from his duties or provisionally suspended from his duties . ”


Mr PERSON , a NORP citizen , is an engineer by profession and resides in ORG in the LOC - West of GPE .

On DATE the applicant was stopped by police inspector B. while driving a tractor on a highway ( motortrafikled ) , on which this was prohibited under the Traffic Ordinance of DATE ( vägtrafikkungörelsen ORG the DATE LAW ) . He refused to pay a fine , maintaining that he had not seen any road sign indicating the category of the road or the prohibition in question .

On CARDINAL DATE Mr PERSON was summoned to appear before ORG ( tingsrätten ) of ORG , charged with having contravened sections CARDINAL and CARDINAL of the DATE Ordinance .

In a letter to ORG he stated that he expected the public prosecutor to call certain police officers , including police inspector PERSON , as witnesses , as he could not afford to call any himself . Moreover , the public prosecutor should , he said , produce the relevant official meteorological records ( see the extracts from ORG judgment in paragraph CARDINAL below ) . In addition , he requested ORG to appoint an official defence counsel .

On DATE this request was refused by ORG , which considered that the case was simple and that the applicant was able to defend himself . His appeal against this decision was dismissed by ORG ( hovrätten ) of GPE and PERSON on DATE , with no possibility of further appeal .

On DATE ORG held a hearing ( huvudförhandling ) during which both the applicant and police inspector B. were heard . It did not , however , order the production of the relevant meteorological records . On DATE it found the applicant guilty of the charge brought against him and sentenced him to a fine of MONEY . In its judgment ORG stated :

" [ The applicant ] has contested criminal liability and has made the following statement : He was on his way from ORG to ORG driving a tractor that he had just bought . He had travelled with his father to ORG that morning and they had then , inter alia , travelled the same road but in the opposite direction . The mist had been very dense already in the morning and [ the applicant ] had observed nothing special as regards the road during the trip . He does not know what the concept ‘ ORG means . When he arrived on the ‘ ORG west of ORG it was so misty that he saw no road signs that attracted his attention . He was therefore unaware of the character of the road he was driving on and even if he had noticed a road sign indicating ‘ ORG he would not have known what restrictions this would imply as regards driving certain vehicles .

Police inspector B. has been heard as a witness but has not given any information other than that the weather was normal in the area of ORG without any signs of mist .

[ The applicant ] - who was driving as alleged by the public prosecutor - drove a long distance by tractor and should therefore have paid particular attention to the rules applicable as regards the driving of such a vehicle . The fact that the weather was misty does not relieve him from his obligations as a driver . He shall therefore be convicted in accordance with the charge against him . "

On DATE the applicant appealed to ORG of GPE and PERSON . He claimed that the proceedings before ORG had been " unbalanced " and that numerous " interruptions " by the judge had prevented him from following the arguments and from presenting his case in a satisfactory manner ; that the fine imposed was far too high ; and furthermore , that ORG had overlooked the fact that certain road signs had been missing .

In his reply of DATE , the public prosecutor , referring to the evidence submitted before ORG , maintained that the applicant was guilty and expressed the opinion that it was not necessary to hold a new hearing . On DATE ORG sent a copy of this reply to the applicant , advising him that since the case could be adjudicated without a new hearing , he was entitled to submit final written observations within DATE .

In his final observations of CARDINAL DATE , PERSON asked ORG to take the absence of certain road signs into account and to consider the weather situation and the fact that he was overtaken by an unmarked police car which failed to warn him .

He also applied for a public hearing to be held in GPE , for police inspector B. to be heard as a witness and for the relevant meteorological records to be examined . In addition , he requested free legal assistance since he needed defence counsel and did not have sufficient means to pay for CARDINAL .

ORG rejected the applicant ’s requests and decided the case on the basis of the case - file . In its judgment of DATE , upholding the findings of ORG , it stated :

" From the photos which have been referred to , it appears that the fact that the road in question was a ‘ ORG did appear from appropriate and visible road signs at ORG . For this reason and since [ the applicant ] nevertheless drove the tractor on [ the road ] from PERSON to GPE , he committed the offence with which he has been charged by the prosecution . "

PERSON applied for leave to appeal to ORG ( högsta domstolen ) , claiming that the appeal proceedings had been very " unbalanced " and had not complied with human - rights standards . ORG refused the application on DATE .

Under the rules on public access to official documents , contained in the Freedom of the Press Act DATE ( tryckfrihetsförordningen ) and LAW ( sekretesslagen , CARDINAL ) , the case - files from the courts involved were all accessible to the public .

According to LAW of LAW , lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing . Exceptions to this rule do , however , exist , particularly at appellate level . Thus , LAW , section DATE , as worded at the relevant time ( it was subsequently amended with effect from DATE ) , provided :

" ORG may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party .

The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty ( vite ) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ... "

ORG has the power to review questions both of law and of fact . However , there are some limits to its jurisdiction . LAW , for instance , lays down that ORG may not normally change the lower court ’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before ORG ; LAW , LAW ( as amended by LAW and CARDINAL ) also contains a rule prohibiting the appellate court , in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused , from imposing a sentence which can be considered more severe than that imposed at first instance .


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

On DATE Mr T. ’s minor daughter , who was at the time aged DATE , lodged a complaint with the Genoa public prosecutor ’s office , which opened an investigation concerning T. in connection with an alleged rape . On DATE it sent to him in GPE ( GPE ) a " judicial notification " advising him that proceedings had been instituted and inviting him to provide an address for service in GPE .

The applicant claims that he did not receive the notification in question because on DATE he had left GPE , where he had worked for a time , for GPE ( GPE ) . He had , moreover , visited ORG there to report his change of address .

On CARDINAL DATE the investigating judge declared the applicant untraceable ( irreperibile ) and designated a lawyer to act for him . Thereafter all the documents which were to be notified to the applicant were lodged with the registry , his lawyer being informed thereof on each occasion .

On DATE the investigating judge issued a warrant for Mr T. ’s arrest , which was not executed as his whereabouts were unknown . In a report of CARDINAL DATE the police noted that the applicant did not live at the place indicated .

After the investigating judge had committed the applicant for trial , the President of ORG instructed the police to undertake new inquiries . On DATE they drew up a report stating that their inquiries had proved unsuccessful ; they advised the judge that , according to the information which they had obtained , the accused had found employment in the GPE . The President in his turn declared Mr T. untraceable .

On DATE ORG convicted PERSON in absentia and sentenced him to DATE imprisonment , to be stripped of his civic rights and to accessory penalties .

As the officially - appointed lawyer had appealed , the police made further attempts to find Mr T. , but to no avail ( reports of DATE and DATE ) , with the result that he was again declared untraceable . On DATE ORG upheld the contested judgment . The decision was notified to the applicant in the manner provided for in LAW in force at the material time ( see paragraph CARDINAL below ) because according to a police report of CARDINAL DATE the applicant was still untraceable . No appeal was filed in ORG .

On DATE the ORG public prosecutor ’s office issued a warrant for PERSON arrest . On DATE he was arrested in GPE , on the LOC of ORG ; he was extradited on DATE . On his arrival in his country he received notification of his conviction and sentence and on CARDINAL DATE the arrest warrant of DATE was served on him .

On DATE he lodged an objection to the execution of the warrant ( incidente d’esecuzione ) . He complained that he had been convicted without being able to defend himself , despite the fact that the competent authorities had known his address .

ORG dismissed his objection on DATE . It considered that the applicant had been duly informed of the proceedings against him and that he had , in any case , been aware of them ; this was shown in particular by a letter he had written to his wife on DATE .

The applicant filed an appeal on points of law , which ORG found inadmissible on DATE on the ground that no submissions had been lodged in support of it . Mr T. maintains that he was not given legal assistance to formulate such submissions .

Following a second appeal on points of law ORG confirmed the finding of inadmissibility on DATE . It added that Mr T. could no longer , at the stage of the execution of a judgment which had since become final , raise complaints relating to the conduct of the proceedings .

At DATE and CARDINAL of its report , the ORG made the following findings of fact :

" CARDINAL . The applicant acknowledges that he was indirectly aware of the proceedings against him because his wife had informed him in DATE that his daughter was pregnant and had accused him of rape .

Moreover , on DATE he had written to the judge dealing with the case to contest the version of the facts given in the complaint ...

In addition , the applicant had explained his behaviour to his wife in a letter he sent her on DATE . That letter , bearing his address , had been added to the criminal file . He states that he wrote regularly to his wife , to whom he also sent money , and to his mother ; [ ... ] both of them knew his address . Lastly , he points out that his passport had been renewed on DATE in GPE , and then again in DATE , also in GPE , implying a favourable opinion from ORG in GPE and the prefecture in GPE . He was therefore not untraceable . "

Before the Commission Mr T. had claimed that he had tried on several occasions to leave the GPE DATE and DATE , but that the NORP authorities had prevented him from doing so .

He completed his sentence in DATE .

At the material time a judicial notification was the document by which the judicial authorities informed the person suspected of having committed an offence that an investigation had been opened and invited him to appoint a defence lawyer of his choice and to provide an address for service . It had to specify the legal provisions infringed and the date of the alleged offence .

The investigating judge , in the event of a " formal " investigation , or the public prosecutor , where the investigation was " summary " , had to send the notification at the very beginning of their investigation ( ORG CARDINAL and CARDINAL of the Code of Criminal Procedure ) .

The notification had to be sent by registered letter requiring acknowledgment of receipt . If the letter was not delivered because the addressee was untraceable ( irreperibile ) , a bailiff had to serve the notification in accordance with the normal procedure ( Articles CARDINAL to CARDINAL of the Code of Criminal Procedure ) .

In its judgments in PERSON and Others v. GPE of DATE ( Series A no . CARDINAL , p. CARDINAL , paras . CARDINAL ) , PERSON GPE of CARDINAL DATE ( Series A no . CARDINAL , p. CARDINAL , paras . CARDINAL , and pp . CARDINAL , paras . DATE ) and GPE v. GPE of DATE ( Series A no . CARDINAL , pp . CARDINAL - CARDINAL , para . CARDINAL ) , the ORG gave a brief description of the NORP legislation then in force as regards notification to a person or an accused who was " untraceable " and trial in absentia ( contumacia ) .

In the present case it is necessary to cite LAW ( replaced with effect from DATE ) , which provided as follows :

" Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad , the public prosecutor or magistrate ’s court ( pretore ) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted . This formality shall neither suspend nor delay the proceedings .

Where the accused ’s address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate , the judge or the public prosecutor shall make the order ( decreto ) provided for in LAW .

The above provisions shall not apply where the issue of an arrest warrant is mandatory . "

The second sub - paragraph of Article CARDINAL stated as follows :

" The judge or the public prosecutor ... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved impossible to carry out , or any future notification , be effected by means of lodging the relevant documents with the registry of the judicial organ before which the proceedings are pending . The defence lawyer shall be informed without delay when any such document is so lodged . "

It is also necessary to reproduce the text of the following CARDINAL Articles :

" In the case of in absentia proceedings , an extract of the judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings , subject to the provisions of the third paragraph of Article CARDINAL . "

For the judgments referred to in LAW , the period within which the accused may appeal shall begin to run from the notification of the decision or judgment .