Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

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

In DATE the applicant and her former husband purchased from the local municipality a CARDINAL - bedroom flat of QUANTITY in a QUANTITY building . The municipality had owned the building and the plot of land ( part of which served as a yard ) since DATE , when it was nationalised .

In accordance with the usual practice in cases of sale of flats on municipal land , the buyers also obtained a PERCENT portion of the construction rights over the entire plot . Following the applicant ’s divorce in DATE she became the sole holder of the title obtained in DATE .

In DATE the applicant requested from the local municipality an authorisation to construct a small house of QUANTITY on a portion of the yard .

The municipality processed the request . On DATE the competent official issued an authorisation to proceed with the elaboration of a plan by an architect . The document containing the authorisation referred to the “ construction rights conveyed on PERSON ” under the DATE contract . It appears that no consideration was given to the fact that these rights did not entitle the applicant to construct a house in the yard .

On DATE a building permit was issued .

When issuing the authorisation and the permit , the relevant officials apparently overlooked or disregarded the fact that on DATE the land at issue had been denationalised pursuant to a DATE law on the restitution of nationalised property and had become the property of a Mr T. , the heir of the person from whom it had been nationalised in DATE .

The applicant became aware that the property had been denationalised on an unspecified date .

In DATE Mr T. asked the municipal authorities to order the suspension of the construction works undertaken by the applicant . In reply the municipality informed him that a building permit had been issued to the applicant .

The house was constructed rapidly and on an unspecified date in DATE the applicant requested from the local municipality approval of the construction works and authorisation for the use of the house .

This was refused on the grounds that the applicant had never had construction rights over the entire plot and that in any event the land had been private property at the time when the DATE building permit had been issued . It followed that the permit had been issued unlawfully .

On DATE the applicant brought an action against the municipality under ORG ( the ORG , the LAW ’s title having been amended later ) claiming that she had suffered damage occasioned by unlawful acts on the part of the municipality . Her initial claim was for CARDINAL “ old ” NORP levs ( ORG ) . Later , she increased her claim to ORG CARDINAL .

The ORG admitted documentary evidence and commissioned expert reports on the value of the house . The court asked the experts to determine its market value as of DATE , when the action was brought .

In their report of DATE the experts concluded that that value was BGL CARDINAL . At the hearing held in DATE , in reply to additional questions , the experts added that the up - to - date market value of the house was ORG CARDINAL . The difference was the result of the approximately CARDINAL - fold devaluation of the NORP currency DATE .

By a judgment of DATE ORG found that the municipality had acted unlawfully in that it had issued a building permit in disregard of the fact that the property had been denationalised and that the applicant had never been authorised by the owner to build on his land . Since the denationalisation had been ordered by the same municipality , the relevant officials had known about it . The applicant had incurred expenditure to build a house but could not become its owner . The municipality was therefore liable to compensate her for the damage directly related to the unlawful act . The assessment of that damage , in accordance with the relevant law , had to be based on the market value of the house as of DATE , when the claim had been brought , plus interest since DATE . The value in question was BGL CARDINAL , as established by the experts . The court awarded that sum to the applicant , plus interest .

Noting that the applicant had claimed BGL CARDINAL and applying section CARDINAL § QUANTITY of the ORG , the court ordered the applicant to pay ORG CARDINAL in court fees ( the equivalent of CARDINAL new NORP levs ( ORG ) ) , which represented a fixed PERCENT fee on the rejected part of the claim .

As the municipality did not appeal , the award of LAW ( the equivalent of ORG ) in the applicant ’s favour became enforceable towards DATE .

The applicant appealed , claiming , inter alia , that she was entitled to compensation for her actual loss and that ORG had awarded an amount which did not reflect her actual loss . The applicant also challenged the ORG decision concerning court fees and costs .

By a judgment of DATE ORG upheld GPE judgment .

The court noted that since the municipality had not appealed it could not re - examine the question as to whether the municipality was indeed liable in the particular case , and had to proceed on the basis that it was .

As to the amount of compensation , the relevant principles in tort law mandated that it had to be determined by reference to the moment when the loss had occurred . In the applicant ’s case the loss had occurred no later than the date on which the applicant had brought her action against the municipality . In a separate decision dated DATE , the court ordered the applicant to pay ORG CARDINAL in court fees in respect of the appeal proceedings .

The applicant ’s ensuing appeal on points of law was rejected by ORG on DATE . The court stated , inter alia , that the lower courts had applied correctly the relevant law concerning the relevant date for the assessment of the actual damage . Their conclusions were in conformity with the settled judicial practice .

The applicant has not submitted a calculation on the final amount of the compensation and interest due to her under the final judgment of ORG . Seeing that DATE the statutory interest rate in GPE was very high , reaching PERCENT per annum in DATE , that amount must have been not lower than the equivalent of ORG CARDINAL .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Trbovlje .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

On DATE and DATE he made requests that a date be set for a hearing .

Of the CARDINAL hearings held on DATE and DATE , none was adjourned at the request of the applicant .

During the proceedings , the court appointed a medical expert .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON sodišče v PERSON ) .

On DATE , the court upheld his appeal as far as the statutory default interests were concerned and rejected the remainder .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) . He also requested a withdrawal of ORG judge .

On DATE the court dismissed the applicant ’s appeal .


Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

All of the applicants are from the Çayçatı village of GPE . Numerous plots of land in the village had been used by the applicants ' parents or grandparents without a title deed since the DATE 's . These parcels were registered in the name of the ORG in DATE pursuant to Law no . CARDINAL . In DATE they were re - registered in the name of the ORG pursuant to LAW ( Law no . CARDINAL ) .

On various dates in DATE , the applicants instituted numerous civil proceedings in ORG of First Instance pursuant to PERSON no . ORG and requested the annulment of the titles to the plots . Claiming that the parcels in question had been in their families ' possession for DATE , the applicants further requested that the land be registered in their name . They were all represented by the same lawyer . The first - instance court examined the claims under various files and delivered its initial judgments on different dates DATE in the presence of the representatives of both parties , which were then either upheld or quashed by ORG on various dates DATE . For those judgments that had been quashed , the domestic court continued the proceedings by holding numerous on - site visits , hearing witnesses and requesting expert reports , whilst collecting information . The proceedings ended in the applicants ' favour on various dates DATE , after being examined at CARDINAL levels of jurisdiction , which delivered up to CARDINAL judgments . The final decisions for files nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL were served on the applicants on DATE .

Further details concerning the present applications , including the dates of the domestic judgments and notifications , may be found in the attached list .


The applicant was born in DATE and lives in LOC .

NORP In DATE the applicant , who was later joined by a certain PERSON , instituted proceedings in ORG of Sevastopol ( “ the ORG ” ) against CARDINAL individuals seeking annulment of a sale contract and a deed of gift in respect of a flat .

On DATE ORG refused to examine the applicant ’s claims owing to her repeated failure to attend the hearings . On DATE ORG ( “ the Court of Appeal ” ) , upon ORG “ protest ” of DATE , quashed this decision and remitted the case to the first instance court which , on DATE , rejected the applicant ’s claims as unsubstantiated . In its judgment , the court enumerated the main arguments of the parties , analysed the evidence obtained , made references to the substantial and procedural laws and gave reasons for its conclusion .

On DATE ORG upheld that judgment , having in particular analysed the evidence obtained by the first - instance court and having rebutted CARDINAL of the applicant ’s statements .

On DATE the applicant appealed in cassation . She was subsequently twice invited to rectify her appeal to meet procedural requirements . On DATE ORG allowed her request to extend the time - limit for lodging the appeal in cassation . On DATE ORG , acting as a cassation court and having agreed with the lower ORG findings , rejected the applicant ’s appeal in cassation as unsubstantiated .

According to the ORG , DATE and DATE , CARDINAL expert examinations were ordered and the applicant filed CARDINAL procedural requests . She also filed CARDINAL appeals that did not meet procedural requirements . Of the DATE hearings scheduled during the same period of time , QUANTITY were adjourned at the applicant ’s request , CARDINAL were adjourned owing to the presiding judge ’s absence , CARDINAL were adjourned due to CARDINAL or more of the GPE or witness ’s failure to attend , CARDINAL were adjourned due to the both parties’ failure to attend , and CARDINAL was adjourned at request of CARDINAL or more defendants . Overall , due to the applicant ’s requests or her failure to attend , the proceedings were delayed for DATE and CARDINAL moths , excluding the period DATE and DATE .


Preliminary objection rejected (six month period);Violation of Art. 5-1 as regards the applicant's preventive detention;Violation of Art. 5-1 as regards the applicant's detention from 4 June to 31 July 1996;No violation of Art. 5-1 as regards the applicant's detention from 31 July to 16 October 1996;No violation of Art. 5-3 as regards the alleged failure to bring the applicant promptly before a judge or other officer;Violation of Art. 5-3 as regards the length of the applicant's detention;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , a hotel director , was suspected of a murder committed in DATE . In DATE the murder case was struck out for lack of evidence .

The applicant was arrested on DATE . On DATE the Chief Police Commissioner ordered the applicant 's “ preventive detention ” ( prevencinis sulaikymas ) for DATE on the authorisation of the Deputy Prosecutor General . On DATE a judge of ORG confirmed the preventive detention order . The order referred to a general provision of LAW then in force which permitted preventive detention in connection with banditry , criminal association and intimidation . The applicant appealed against his arrest , claiming , inter alia , that he had not been informed of the reason for his detention or of any charge against him . On DATE a judge of ORG dismissed the appeal . No specific charge was brought against the applicant in the above decision . No investigation was carried out in connection with his preventive detention .

On DATE the murder case was reopened . The applicant was charged , as a principal offender , with murder with aggravating circumstances . He was accused of organising the unlawful punishment of the alleged thief of his car , who had died as a result . Among the CARDINAL accused persons in the case were QUANTITY police officers who had allegedly handed over the arrested victim to the applicant .

On DATE the Deputy Prosecutor General , by reference to LAW , authorised the applicant 's detention on remand on suspicion of murder . His detention was authorised until DATE .

On DATE the applicant was questioned . On DATE he submitted an application to the prosecution , claiming that there was no evidence to suspect him of having committed or prepared an offence , and that his preventive detention and subsequent detention on remand were incompatible with domestic criminal procedure and LAW . On DATE the Chief Prosecutor of ORG dismissed the application on the ground that the applicant 's detention could be justified merely by the gravity of the alleged offence .

On DATE the applicant submitted an application to ORG , again arguing that there was no reasonable suspicion against him , and that his detention infringed his rights under LAW . On DATE a regional prosecutor dismissed the application . On DATE a renewed application by the applicant 's representative was rejected by ORG .

The pre - trial investigation was concluded on CARDINAL DATE . DATE to DATE the applicant and his counsel were given access to the case file . The other defendants in the case had access to the file until DATE .

The applicant , after consulting the case file , submitted an application to the prosecution , arguing that the charge and detention were ill - founded . On DATE a prosecutor of ORG dismissed the application , stating that the case file as a whole contained sufficient evidence of the applicant 's guilt .

On DATE the prosecutor informed the authorities of the prison in which the applicant was remanded that his detention was “ automatically extended until DATE ” pursuant to former LAW of LAW , and that the case had been transmitted to ORG of the Panevėžys Region to confirm the bill of indictment . No decision on the applicant 's detention on remand was taken .

On DATE the Chief Prosecutor of ORG wrote to the prison authorities , informing them that the murder case had been transmitted to ORG , and that the applicant 's detention had been valid . No decision as to the detention was taken .

On DATE ORG informed the prison authorities that a court hearing would be held on DATE and that directions for the trial of the applicant and his co - accused would be given . No formal order as to the applicant 's detention on remand was issued .

On DATE , at the directions hearing , a judge of ORG decided that the applicant 's detention on remand “ should remain unchanged ” . The judge did not mention any other aspects concerning the lawfulness of the applicant 's detention . The applicant 's counsel was present at the hearing .

The trial started before ORG on DATE . On DATE the examination of the case was adjourned in order to collect further material evidence .

From DATE to DATE ORG heard the case in the presence of the applicant and his lawyer . On DATE the court decided that the applicant was to remain in custody . No other aspects of the lawfulness of the applicant 's detention on remand were mentioned in the decision . The term of the applicant 's detention was extended to DATE . The court also ordered additional investigative measures .

On DATE the applicant appealed against that decision to ORG . He also lodged applications with ORG , the prison authorities , and the ORG . The applicant claimed that ORG decision to detain him had not been valid , because it had simply prolonged a non - existent decision on detention which had expired on DATE . The applicant stated , inter alia , that LAW had been infringed to his detriment .

On DATE the ORG drew the attention of the Minister of the ORG , ORG , the Director of ORG and the prison governor to the fact that , in his view , the applicant “ had been remanded in custody unlawfully from DATE until DATE , in breach of LAW ... and LAW ) of the Convention ” .

On DATE the applicant renewed his appeal against his detention .

On DATE ORG disallowed the appeal by reference to LAW as it was worded at the time . In its letter to the applicant , ORG admitted that the lower judges had “ possibly ” erred in law in deciding the question of his detention , but it noted that no appeal lay against their decisions .

On DATE , on appeal by the prosecution against ORG decision of DATE , ORG quashed the decision to order additional investigative measures in the case . The applicant appealed .

On DATE the applicant lodged an application against his detention with the President of ORG . On DATE the President of ORG informed the applicant that the application could not be examined . He admitted that the applicant “ was remanded in custody from DATE to DATE without the remand measure being extended ” . He emphasised , however , that the “ ground of appeal can not overturn the provision of law according to which a decision ordering , varying or extending a remand measure ( Article CARDINAL § CARDINAL of LAW ) ... can not be the subject of an appeal ” .

On DATE ORG amended ORG decision of DATE quashing ORG decision of DATE to order additional investigative measures . ORG also decided that a bench of CARDINAL judges rather than a single judge should consider the merits of the murder case .

The applicant instituted civil proceedings against the prison authorities for keeping him in detention without any formal order . On DATE a judge of ORG dismissed the action . The judge held that the prison 's actions had been based on “ the authorisation of the prosecutor , and letters containing information about the extension of the detention , and decisions of the judge and court ” . On DATE ORG upheld the decision of ORG .

The applicant applied for bail on health grounds . On DATE ORG dismissed the application . The trial was again adjourned and additional investigations ordered until DATE , when the case was referred back to court . The trial resumed on DATE .

On DATE ORG acquitted the applicant on all charges for lack of evidence . He was released from custody .

The prosecution and the other defendants in the case appealed against the first - instance judgment . On DATE ORG quashed the judgment of ORG . The case was referred back to the prosecution for further investigation .

On DATE a prosecutor of ORG informed the applicant that the criminal proceedings against him had been discontinued by a decision of DATE .

The following provisions of LAW ( PERSON ) are relevant :

“ A person arrested when committing an offence must , within TIME , be brought to court for the purpose of determining , in the presence of the detainee , whether detention is appropriate . If the court does not order the detention of the arrested person , he shall be released immediately . ”

“ A person whose constitutional rights or freedoms are violated shall have the right to apply to a court . ”

Relevant provisions of the former Code of Criminal Procedure ( ORG proceso kodeksas ) are :

“ No one shall be arrested save by virtue of a decision of a court , or an order of a judge or the authorisation of a prosecutor ... ”

“ ... [ H]aving sufficient reasons to suspect that a person may commit a dangerous act , the elements of which are set out in Articles DATE [ banditry ] , CARDINAL - CARDINAL [ criminal association ] and CARDINAL - CARDINAL [ intimidation ] of LAW of GPE , and with a view to preventing the commission of such an act , a chief of police ... may , by a reasoned decision , with the authorisation [ of a prosecutor ] ... order the arrest of the person ...

Within TIME , in the presence of the police officer who took the decision to arrest and the prosecutor who authorised it ... a president of a district court , a judge of a regional court or a president of a division of a regional court shall decide on the lawfulness of the arrest .

The judge , in determining whether the arrest was lawful , may of his own motion bring the arrested person before him ; however , the judge may also decide in the absence of the arrested person ...

The arrested person ... may appeal against the decision to a higher judge .

... [ T]he decision of the higher judge shall be final and can not be the subject of an appeal ...

... [ A ] person detained on the authorisation of a prosecutor and whose detention is confirmed by a judge may be so detained for no longer than DATE ... ”

Since DATE arrest may only be ordered by a court or judge .

“ Detention as a remand measure shall be used only where based on the decision of a court , the order of a judge or the authorisation of a prosecutor in the case of offences carrying a statutory penalty of DATE of imprisonment ...

In the case of offences specified in [ Article ] ... CARDINAL [ murder with aggravating circumstances ] ... of LAW , detention as a remand measure may be ordered on the ground of the gravity of the offence alone ...

In deciding whether to authorise the detention , a prosecutor ... shall personally hear the suspect or defendant where necessary ... ”

“ ... [ T]he arrested person shall be brought before a judge within not more than forty - eight hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the hearing . After having questioned the arrested person , the judge may maintain the arrest order by designating the term of detention , or may vary or revoke the remand measure . ...

After the case has been transmitted to the court ... [ it ] may order , vary or revoke the detention on remand . ”

The amended LAW in force since DATE ) provides that the prosecutor and defence counsel must take part in the first judicial examination of the arrested person , unless the judge decides otherwise . The amended provision also permits the court to extend the period of detention on remand before its expiry .

“ For the purpose of extending the term of detention on remand [ at the stage of pre - trial investigation a judge ] must convene a hearing to which defence counsel , the prosecutor and , if necessary , the detained person shall be called . ”

The version of the LAW in force since DATE makes it compulsory for the detainee to attend the remand hearings .

“ An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the detention on remand ... With a view to examining the appeal , a hearing may be convened , to which the arrested person and his counsel , or counsel alone , shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal .

A further appeal shall be heard when the extension of the term of detention on remand is examined . ”

The present LAW in force since DATE ) now provides for an appeal to a higher court and a hearing in the presence of the detainee and his counsel , or his counsel alone .

“ The period when the accused and his counsel have access to the case file shall not be counted as part of the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case file shall not be counted as part of the overall term of pre - trial investigation and detention . ”

Since DATE this period has ceased to be relevant for remand decisions .

“ Decisions of courts ... ordering , varying or revoking a remand measure ... can not be the subject of an appeal ... ”

A number of provisions of the present Code of Criminal Procedure are relevant .

LAW ( CARDINAL ) and ( CARDINAL) and LAW ( CARDINAL) and ( CARDINAL ) provide , respectively , that the accused and their counsel have the right to “ submit requests ” and to “ appeal against acts and decisions of an interrogator , investigator , prosecutor or court ” .

“ In deciding whether to commit the accused for trial , a judge individually , or a court at a directions hearing , shall determine

( CARDINAL ) whether the remand measure has been selected appropriately . ”

“ After deciding that there is a sufficient basis to commit the accused for trial , a judge individually , or a court at a directions hearing , shall determine issues concerning

( CARDINAL ) the remand measure in respect of the accused ... ”

“ The defendant shall have the right to

( CARDINAL ) submit requests ;

( CARDINAL ) appeal against the judgment and decisions of a court . ”

“ In the course of a trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . ”

The law of DATE amending and supplementing LAW ( ORG proceso kodekso pakeitimų ir papildymų įstatymas ) stated that detention authorised by a prosecutor prior to DATE could thereafter be extended by a court in accordance with the new procedure governing remand in custody .

The reservation entered by GPE in respect of LAW was in force until DATE and provided as follows :

“ The provisions of LAW , paragraph CARDINAL , of the Convention shall not affect the operation of LAW ( amended version No . I-CARDINAL , DATE ) which provides that a decision to detain in custody any persons suspected of having committed a crime may also , by decision of a prosecutor , be so detained . This reservation shall be effective for DATE after the Convention comes into force in respect of GPE . ”


The applicants , Mr PERSON and ORG , are NORP nationals who were born in DATE and DATE respectively and live in ORG .

The applicants own real estate which is burdened by a servitude ( a road crossing it ) ( tierasite , vägservitut ) . They wanted to have the road transferred to the neighbouring estate and initiated administrative proceedings to that effect . On DATE their application was rejected by ORG ( maanmittaustoimisto , lantmäteribyrå ) .

By letter dated DATE the applicants appealed to ORG ( maaoikeus , jorddomstolen ) , requesting that the decision of ORG be quashed and the road transferred to the neighbouring estate .

On DATE ORG rejected their appeal . It found , inter alia , that the servitude had already been confirmed by ORG in DATE and that the situation had not considerably changed since then . As the nuisance caused to the applicants was modest , there was no reason to transfer the road elsewhere . CARDINAL of the lay judges gave a dissenting opinion .

By letter dated DATE the applicants appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already presented before ORG .

On DATE ORG refused the applicants leave to appeal .

By letter dated DATE the applicants lodged an application for the reopening of the case ( tuomion purku , återbrytande ) with ORG . They claimed that the earlier judgment and decisions were manifestly based on a misapplication of the law .

On DATE ORG refused the request . It found that the applicants had not given any grounds on the basis of which ORG judgment or the ORG decision could be reversed .

According to LAW , section CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalken , Act no . CARDINAL/CARDINAL , as amended by Act no . CARDINAL/CARDINAL ) :

“ A final judgment in a civil case may be reversed :

( CARDINAL ) if a member or official of the court or a representative or counsel of a party has , in connection with the case , been guilty of criminal conduct that may be assumed to have influenced the result of the case ;

( CARDINAL ) if a document that has been used as evidence was false or its contents did not accord with the truth and the person who presented the document was aware of the same , or if a party heard under affirmation or a witness or expert witness has deliberately given a false statement and it may be assumed that the document or the statement has influenced the result ;

( CARDINAL ) if reference is made to a circumstance or piece of evidence that has not been presented earlier , and its presentation would probably have led to a different result ; or

( CARDINAL ) if the judgment is manifestly based on a misapplication of the law .

A judgment shall not be reversed on the grounds referred to in subsection ( CARDINAL ) , unless the party can establish a probability that he or she could not have referred to the fact or piece of evidence in the court that passed the judgment or on appeal , or that he or she has had another justified reason not to do so . ”

A request for the reversal of a judgment in a civil case shall be made within DATE of the date on which the requester became aware of the circumstance upon which the request is based . If the request in a civil case is based on the circumstance referred to in section CARDINAL , subsection ( CARDINAL ) , the period shall be calculated from when the judgment became final . A request for the reversal of a final judgment shall be filed with ORG .


The applicant , an NORP citizen born in DATE , is currently resident in GPE . He was represented before the ORG by Mr PERSON , a solicitor practising in GPE .

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

The applicant entered GPE illegally on or DATE and on DATE claimed asylum on the basis that he feared persecution as a homosexual . He stated that security forces had come to his house because of a satellite television and had become suspicious of the double beds , which he used with his homosexual partner , along with his cousin and his partner . According to his account , CARDINAL were arrested for having a satellite dish and detained for DATE and beaten . His partner confessed to being homosexual and they were remanded in custody . After being held in prison for DATE , he was released on the payment of bribes by his family who feared that he would face the death sentence as a homosexual . He left GPE on DATE .

By letter dated DATE , the Secretary of ORG rejected the asylum application . He found it lacking in credibility that the authorities had kept him so long in custody if they intended to execute him and noted that the applicant had not claimed asylum on arrival in GPE . However , the ground of rejection was that he was not satisfied that the applicant was in fact NORP . The applicant appealed to the Adjudicator raising complaints under LAW and CARDINAL of the Convention .

On DATE , the Adjudicator rejected the applicant ’s appeal . He examined the extent of risk to homosexuals in GPE . It appeared that in theory homosexuality in GPE was punished harshly but that in practice the strict regulations , requiring CARDINAL eye witnesses to the act of homosexual penetration or CARDINAL confessions from each active partner , rendered convictions hard to achieve . CARDINAL source was quoted as not having come across any case that went to trial and another that it was so hard to prosecute a case of homosexuality that it almost never happened . Another sociologist and researcher stated that homosexuality was a common phenomenon in GPE and was tolerated as long as it did not disturb public order and remained in private . The Adjudicator concluded that it was extremely unlikely that homosexual activity conducted in private would result in ill - treatment or harassment . Insofar therefore as the applicant alleged that he had been detained on ground of his homosexuality and brought before a court , he observed that there was no question of there being QUANTITY eyewitnesses to any sexual act . He considered it most unlikely that the security forces acted as the applicant alleged , that the account of his escape was implausible and that the applicant had not been telling the truth about what happened . As the applicant had not expressed any prospect of continuing a relationship with his partner and was not at risk of punishment for acts conducted in private , he found no issue arising under LAW , notwithstanding the criminal prohibition in GPE was in likely breach of this provision .

The applicant applied for leave to appeal in ORG . His grounds relied on LAW and the existence of a law in GPE prohibiting adult consensual activity which would breach that provision .

On DATE , ORG rejected the applicant ’s application for leave to appeal , finding no error of law and that the Adjudicator had quite properly found that there would be no breach of the applicant ’s human rights if removed to GPE .

The applicant ’s application for legal aid to bring judicial proceedings was refused by ORG on DATE . His request for review of the refusal was refused on DATE .

The applicant may be expelled at any time but directions for his removal have not yet been issued .

This report dated DATE stated in respect of homosexuals :

“ CARDINAL Although homosexuality is never spoken about and thus a hidden issue , in practice it is not difficult to encounter homosexuals in GPE . There are special parks in GPE , known as homosexual meeting places ... A different sexual orientation may , however create problems . Still , homosexuality is practised DATE and as long as this happens behind closed doors within your own CARDINAL walls , and as long as people do not intend to proselytise ‘ ORG or homosexuality , they will most likely remain unharmed .

CARDINAL Technically , homosexual behaviour is sharply condemned by ORG and the NORP code of law ( LAW law ) ... Sodomy is punishable by death if both parties are considered to be adults of sound mind and free will . It must be proven by either CARDINAL confessions from the accused , the testimony of CARDINAL righteous men who witnessed the act or through the knowledge of a Sharia judge ‘ derived through customary ORG . If the accused repents before the witnesses testify , the penalty ‘ will be ORG . ...

CARDINAL NORP So far , no cases of execution only on grounds of homosexual relations have been identified . In fact , the burden of proof is quite high and it would be difficult to prove homosexual liaisons or intercourse . According to some local newspapers there have been instances of execution of homosexuals . It is not confirmed whether the homosexual act alone led to the execution or whether the person was accused on other charges too .

DATE there were reports that a man accused of sodomising and then murdering his nephew was to be thrown over a cliff in a sack . This was given widespread publicity by the NORP opposition in the GPE and was taken up by the other wires , but we have heard no reports that the sentence was ever carried out .

However , jurisprudence , burden of proof notwithstanding , certainly has used accusations of homosexuality . Furthermore , it does happen that homosexuality is mentioned as CARDINAL of the accusations amongst other offences held against the defendant . For instance , accusations of homosexuality have been used in unfair trials , such as the case of a NORP leader in PERSON in DATE who was clearly prosecuted for political reasons . There have also been other political cases , although not in the recent past .

According to the NORP of DATE valid to DATE sentences of imprisonment for DATE and up to CARDINAL lashes are possible . The death penalty may also be incurred if the act is deemed ‘ LAW against God and corruption on earth’ . Since DATE the revised NORP omits direct threat of lashes or the death penalty . The penalties of lashing and of death are , however , still judicial options , even though they are not mentioned in the revised NORP . Reports suggest that since DATE they have been rarely used . The most recent report of execution [ which ] is of the death by stoning of a man dates from DATE , on charges of repeated acts of ‘ adultery and ORG Reports of use of the death penalty in cases where the only offence is sodomy are extremely difficult to substantiate , and are held to be an unlikely sentence . More usually lashing is the punishment .

However , strict though the legal position is , expert opinion consulted by the NORP IRB [ ORG ] states ‘ ... in practice ( homosexuality ) is presently , and has been in the past , for the most part tolerantly treated and frequently occurring ... In practice it is only public transgression of NORP morals that is condemned and therefore NORP law stresses the role of eye - witnesses to an offence’ .

The same source stated that the police are not empowered nor do they actively pursue homosexual activity of any kind that is performed behind the ‘ veil of decency’ of closed doors .

Sources indicate that there are held to be many differing levels of homosexual activity within NORP society . In rural areas , even ‘ lavat’– sexual behaviour between men - can be considered socially to be compensatory sexual behaviour for heterosexual sexual intercourse , and the practitioners held not to be homosexuals . The key offensive practice is sodomy , or more particularly to be sodomised , as an unnatural inversion of God ’s creation , and some experts hold that ‘ homosexuals’ are understood in GPE to be willing passive partners . ”

This report , cited in the CIPU above and in the Adjudicator ’s decision in this case stated inter alia :

“ Theoretically , homosexual behaviour is sharply condemned by ORG , but in practice it is present , and has been in the past , for the most part tolerantly treated and frequently occurring in countries where NORP predominates ... In practice it is only public transgression of NORP morals that is condemned , and therefore NORP law stresses the role of eye - witnesses to an offense . The police are not allowed to go in search of possible sinners , who can only be caught red - handed , and not behind the “ veil of decency ” of their closed doors ... The generally tolerant attitude toward homosexual practice can partly be explained by the fact that it will usually take place discreetly . Moreover it does not have serious personal consequences such as for example , heterosexual adultery would have . ...

According to the representative of ORG for NORP and NORP Concerns ... who is also an activist working with ORG ... none of the few known executions of homosexuals and lesbians in GPE were carried out on the sole basis of homosexuality . ...

In its DATE report ORG states that :

The strict regulations for submission of evidence , CARDINAL male witnesses to the homosexual penetration , alternatively CARDINAL confessions from each of the active partners , renders a sentence for homosexuality almost impossible in practice . The police and justice administration do not take active measures to investigate the existence of homosexuality , nor do they actively hunt homosexuals . All in all , the situation in practice in GPE is drastically different from the impression conveyed by the Shari’a inspired penal code . According to the information from usually very reliable sources , no homosexuals have been executed in GPE for DATE . In order to risk policiary sanctions – maltreatment or a short time in custody / jail , regardless of the fact that the penalty according to the law is death or whipping - a homosexual couple must behave with great indiscretion , almost provocatively , in a public place .

According to a sociologist specializing on GPE and chargée de conferences at FAC ( GPE ) , the law stipulates that people engaging in sexual relations with a person of the same sex ... would only be put on trial if the prosecution can produce CARDINAL righteous men who witnessed the sexual act , or CARDINAL of the partners admits to having sexual relations with another man ... If there are CARDINAL men to testify to the homosexuality of a person , the accusation of homosexual activities can not be proven . The sociologist stated that it would be suicidal to ‘ admit one ’s homosexuality’ and added that such an admission is implausible . In practice , the burden of proof lies so heavily on the prosecution that ... a homosexual will very rarely be tried or sentenced . The sociologist has never come across any case that went to trial and stated there are many more stonings for heterosexual relations prior to marriage and for adultery than for homosexuality .

Another sociologist ... at ORG stated ... that legislative repression is not directed against ‘ homosexuals’ but against heterosexual relations outside marriage . Repressing ‘ homosexual GPE is rare for the security forces because of the difficulty of identifying who is ‘ ORG and who is not since NORP men have very close physical contact ( holding hands and kissing ) which is socially acceptable behaviour in GPE . It is very rare that a person would be arrested for ‘ homosexuality’ but if a person were arrested and convicted as a homosexual the punishment would be harsh .

According to another sociologist and a researcher on GPE with the ORG , although NORP and NORP laws punish ‘ homosexuality’ by death , in practice , it rarely happens , except in the cases of pedophilia ... ‘ Homosexuality’ is a common phenomenon and is tolerated as long as it does not disturb public order and remains a private activity . It would be repressed only when made public and asserted , an implausible occurrence in GPE .

A DATE letter from the Director of ORG at ORG in GPE states that :

Furthermore it is not known that NORP authorities are actively taking legal actions against homosexuals . It is most unlikely that the authorities would take proceedings against a homosexual as long as he does not manifest his disposition in an open and public manner . As far as ORG knows not anyone has been prosecuted on homosexuality charges alone in GPE for DATE .

There are many indications that there is a significant difference between the legal texts and the practice of the security forces .

As far as the behaviour of homosexual persons can be taken as a relevant indication about the degree of oppression of homosexuals , the impression is rather that the situation in GPE is relatively tolerant , since homosexuality is by no means unusual in GPE . Certain ‘ health ORG in GPE are for example known to be frequented by homosexuals . Furthermore , it is by no means unusual to meet openly homosexual persons –under otherwise heterosexual private circumstances like social events .

... There is a park in central GPE called GPE ( student ) that is famous and well - known as a place where men who are looking for sexual relationships with other men meet . The sociologist added that the public and the security forces are aware of the park ’s reputation ... ”

A NORP fact - finding mission to GPE in DATE reported :

“ CARDINAL Homosexuals

During their visit to GPE , the delegation had an opportunity to discuss the situation for homosexuals in GPE with several of their contacts .

... A NORP embassy said that it had never heard of cases relating solely to homosexuality . According to the same source , however , a man who had been charged with CARDINAL counts of indecent behaviour had been executed DATE ... He had also been found guilty of raping a DATE boy in his shop .

According to a NORP source familiar with the homosexual scene in GPE , it had never heard of cases being brought against homosexuals . The source thought that the homosexual community would be aware of any cases being brought against persons solely on the grounds of their homosexuality .

A source connected with a NORP news agency thought that any cases brought against homosexuals would not be brought to public attention . In view of that fact , the source could not rule out the possibility that there might be cases where the charge relates to homosexuality . In that connection the source referred to a case in a military prison where a prisoner let slip to a warder about a homosexual relationship he had had . The prisoner was subsequently sentenced to CARDINAL lashes .

According to a government source , homosexuals do not experience any problems in NORP society ; in other words , few cases relating to homosexuality have been brought before the courts .

However , according to a source with good knowledge of the NORP judicial system , many cases concerning homosexuality have been brought before the NORP courts . The source was unable to provide further details of the cases in question . With regard to sentences passed in such cases , the source could say only that the death penalty had been pronounced in several . The source added that if a case was not fully substantiated , it was for the judge to decide on the punishment .

When the delegation asked why such cases were brought , the source replied that this was because CARDINAL of the parties involved in the homosexual relationship had contacted the courts .

According to a government source , a person can not accuse himself . With regard to homosexuality , this means that DATE in his opinion – if an NORP citizen reveals himself as a homosexual in a NORP newspaper , nothing will happen to that person when he returns to GPE .

Several Western sources , including CARDINAL embassy , said independently that homosexuals do not face problems in GPE DATE . There are places where homosexuals meet ... ”

In this case , the ORG rejected the complaints of the complainant who complained that the GPE were proposing to expel him to GPE where as a homosexual he claimed that he had previously been detained and tortured for his homosexuality and would face further risk of torture . It noted the contradictions and inconsistencies in his account and also “ from different and reliable sources that there is currently no active policy of prosecution of charges of homosexuality in GPE ” . It accordingly found that it had not been given enough evidence to conclude that the complainant would run a personal , present and foreseeable risk of being tortured if returned to his country of origin .


Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 6-1 and 6-3-c;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lived in GPE .

On DATE the applicant was arrested on suspicion of having murdered his father and uncle . The applicant made a written request to be provided with a legal aid lawyer . On DATE an expert examination of fingerprints and a forensic examination were ordered and on CARDINAL DATE the applicant was remanded in custody .

On DATE legal aid counsel , PERSON , was appointed to assist the applicant , and he was charged with aggravated murder on DATE .

From DATE a number of expert examinations were carried out . Subsequently the applicant received copies of orders for such examinations . He signed each of them confirming their receipt and indicating that he had no comments or requests .

On DATE the detention order was lifted and replaced with an undertaking not to leave his place of residence .

NORP In DATE the applicant 's former cellmate in the detention facility , PERSON . , testified that the applicant had told him in detail how he had murdered his father and another man .

NORP On unidentified date the applicant 's friend , PERSON , made a witness statement that the applicant had asked him to murder his father and when PERSON refused the applicant seemingly intended to do it himself .

On DATE the applicant was again remanded in custody .

On DATE the ORG examined the criminal charges against the applicant . The applicant pleaded not guilty . The court examined CARDINAL witnesses including PERSON . and NORP , and found the applicant guilty of having murdered CARDINAL persons and sentenced him to DATE imprisonment . In its judgment the court referred to witness statements , forensic reports and extensive material evidence .

The applicant and his lawyer appealed , alleging that Zh . and NORP had given their statements under pressure from the police and claiming that the investigation had been conducted with numerous violations of the applicant 's defence rights . They also complained that the orders to appoint expert examinations had been received late .

On DATE and DATE the applicant requested to be assigned another lawyer to represent him in the appeal proceedings because PERSON was unable to attend the hearing as she was already engaged in another trial .

On an unidentified date the applicant was informed that his participation in the appeal hearing would be ensured by video link . On CARDINAL and DATE he requested leave to attend the appeal proceedings in person because he did not consider that the video link would provide him with an adequate opportunity to participate in the hearing .

On DATE ORG of GPE ordered the GPE IZ-CARDINAL/CARDINAL detention centre to ensure the applicant 's participation in the appeal hearing , which was to take place on DATE , by video link .

On DATE ORG of GPE examined the applicant 's appeal . The applicant participated in the proceedings by video link . No defence counsel attended the hearing . The court dismissed the applicant 's appeal , having found no proof that Zh . and PERSON 's testimonies were false . As regards the alleged breach of his defence rights , the court found this to be unsubstantiated .

On DATE the ORG of ORG granted a request for supervisory review by the Deputy Prosecutor General and quashed ORG appeal decision of DATE . The ORG found that the applicant 's right to legal assistance had been violated in the appeal hearing and remitted the case for a fresh examination before the court of appeal .

NORP The applicant requested to take part in the appeal hearing in person . On DATE ORG , sitting as a bench of CARDINAL judges , granted leave to attend in person and ordered the applicant 's temporary transfer from the prison in LOC to a detention facility in GPE , apparently to avail him of the video link .

On DATE the applicant made a new statement of appeal . He requested ORG to examine his appeal on the basis of this new statement only and also requested leave to attend the appeal hearing in person and not by video link .

On DATE ORG , sitting in GPE , examined the case . First , it considered the applicant 's requests of CARDINAL DATE . In a separate decision on procedure it found that there were no grounds to accept the applicant 's new statement of appeal and decided to examine the case on the basis of the statement by the applicant 's former counsel , PERSON , in DATE . It also rejected the applicant 's request to attend in person , finding that the video link would be sufficient to ensure that the applicant could follow the proceedings and make objections or other submissions , and that this form of participation would be no less effective than if he was personally present in the courtroom . ORG then introduced the applicant to PERSON , his new legal aid counsel who was present in ORG courtroom and then allowed them TIME of confidential communication by video link before the start of the hearing . All persons , both in the courtroom and in the detention facility , left the rooms .

NORP The applicant rejected the assistance of PERSON on the grounds that he needed to meet his counsel in person . ORG , having noted that the applicant did not rely on divergence with PERSON in his defence , did not request her replacement by another legal aid lawyer , did not accept the court 's proposal to retain private counsel of his choice and , taking into account the quashing of the previous appeal decision on the grounds of lacking legal assistance , rejected the applicant 's objection to the counsel 's assistance . Accordingly , PERSON represented the applicant in the appeal hearing .

On DATE ORG examined the merits of the case . It upheld the judgment of the GPE Regional court of DATE , making CARDINAL correction in the text and excluding CARDINAL piece of evidence . The substantive findings and the applicant 's sentence remained unchanged .

Article CARDINAL of the Code of Criminal Procedure of GPE ( in force from DATE ) provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty . Unless the counsel is retained by the accused , it is the responsibility of the investigator , prosecutor or the court to appoint legal aid counsel .

Article CARDINAL of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness , validity and fairness of judgments . Under LAW and CARDINAL of the Code , the appeal instance may directly examine evidence , including additional material submitted by parties .

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict 's right to legal assistance in such proceedings may be restricted . ”

NORP That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in LAW . It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings .

In a number of cases ( decisions of CARDINAL DATE and DATE , DATE , DATE and DATE ) the Presidium of ORG of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings , although it was obligatory for the accused to be legally represented .


Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 8;No violation of Art. 3

PERSON , an NORP national , was born in GPE , which was then NORP territory , on DATE . In DATE or DATE , when she was CARDINAL or DATE , she arrived in GPE under the provisions governing entry and settlement of family members ; her father had been living there since DATE and her mother and CARDINAL brothers and sisters had joined him in DATE . A child was born to the couple in GPE in DATE and CARDINAL others were born there in DATE and DATE . After her parents divorced in DATE , the applicant remained with her mother . CARDINAL of her brothers and sisters had NORP nationality , the other four were residents , like her mother .

On DATE the PERSON tribunal de grande instance passed a sentence of CARDINAL months’ immediate imprisonment on PERSON for offences against the dangerous drugs legislation ( acquiring , possessing and selling heroin ) . Under LAW , first paragraph , of LAW , it also made orders for her deportation and her permanent exclusion from NORP territory .

On DATE the applicant appealed . In a judgment of CARDINAL DATE ORG quashed the impugned judgment on account of a procedural irregularity in the trial court ’s composition and then , dealing with the merits of the case itself , passed the same sentence of a DATE ’s immediate imprisonment on the applicant and made an order permanently excluding her from NORP territory .

On DATE PERSON lodged an appeal on points of law against ORG judgment but subsequently withdrew it . The President of ORG formally recorded the withdrawal of the appeal in an order of CARDINAL DATE .

PERSON was taken into custody on DATE and released on DATE , when she rejoined her family at ORG .

On DATE she married a NORP national .

Following a police summons , she was convicted on DATE , sentenced to CARDINAL months’ imprisonment and excluded from GPE for DATE for having remained there in spite of the permanent exclusion order .

On her release a DATE compulsory residence order was made in respect of her so that she could organise her departure herself , and on DATE she left GPE for GPE pursuant to ORG judgment of CARDINAL DATE ( see paragraph CARDINAL above ) . She was given accommodation there by an aunt .

She returned to GPE on DATE with a visa valid for DATE and stayed at her mother ’s home at ORG with other members of her family . She asserts that she is still living there .

On DATE the NORP tribunal de grande instance granted the applicant and her husband a divorce . No child had been born of the marriage .

On DATE PERSON gave birth to a boy , who was given the name of PERSON and had NORP nationality as he had been born in GPE of a mother who had herself been born in a NORP département ( see paragraph QUANTITY above ) . She had parental responsibility for him as the father had not acknowledged the child .

PERSON asserts that she made CARDINAL applications to have the permanent exclusion order lifted , the first being lodged in DATE and refused on DATE and the other CARDINAL being registered on CARDINAL DATE and CARDINAL DATE . According to the ORG , ORG received only the latter CARDINAL .

On DATE the applicant applied to lift the order permanently excluding her from NORP territory . She relied on LAW , paragraph CARDINAL - CARDINAL , of LAW , as amended by LAW DATE ( see paragraph CARDINAL below ) .

In a judgment of CARDINAL DATE ORG refused that application in the following terms :

“ The conviction and sentence having become final by the date of commencement of the PERSON of DATE , the provisions of that PERSON , except in so far as they have the effect of making the application admissible on the basis of LAW , are purely indicatory as regards the applicant .

In the instant case the ORG declines to grant the application . ”

On DATE PERSON lodged a fresh application to have the permanent exclusion order lifted .

In a judgment of CARDINAL DATE ORG held that the application was inadmissible , on the following grounds :

“ PERSON alleged in support of her application that she arrived in GPE in DATE , that CARDINAL of her brothers and sisters are NORP and QUANTITY others are currently applying for naturalisation and that she is the mother of a NORP child born on DATE , in respect of whom she has parental responsibility .

Relying on these factors , her counsel submitted at the ORG hearing that if section CARDINAL bis of the Ordinance of DATE , as amended by PERSON no . CARDINAL of DATE on immigration and the conditions of ORG entry into and residence in GPE , were strictly applied , it would entail a violation of LAW .

The above - mentioned PERSON provides that an application to have an exclusion order lifted can be made only if the foreign national is resident outside GPE , and that is a rule of procedure which admits of no exception .

PERSON application must therefore be declared inadmissible . ”

NORP In a report drawn up for ORG on DATE a psychiatrist from ORG noted :

“ PERSON mental state requires long - term medical treatment . Separating her from her family would have disastrous consequences for her mental balance and might lead to serious psychological decompensation , which would have repercussions on her son PERSON , who is currently DATE . ”

In a medical certificate of DATE intended for ORG the same doctor set out the following findings :

“ PERSON mental state requires long - term treatment .

PERSON has received regular treatment at our centre since DATE . Her condition has not improved , owing to the material and psychological insecurity in which she is living . Separation from her family would have disastrous consequences for her and for her small boy , aged DATE , of NORP nationality , who lives with her . ”

In a certificate drawn up for ORG on DATE at the applicant ’s request , the same doctor indicated :

“ PERSON is still receiving regular treatment at ORG . Her psychological vulnerability is closely bound up with the stress and instability inherent in her social , legal and financial position .

Regularisation of her legal position would be a decisive factor for clinical improvement , but departure for GPE would have serious effects on PERSON already precarious mental balance and also on that of her son , aged DATE , who needs the emotional stability provided by his mother . ”

NORP In a report drawn up on DATE a welfare assistant from ORG , where PERSON has been treated since DATE stated :

“ PERSON has no resources or ORG family benefit and is therefore supported entirely by her mother .

She has a small boy , PERSON , born at ORG DATE .

PERSON is very attached to his mother . She is his only immediate relative who is present , and PERSON does everything to ensure that her little boy does not suffer from having no father .

Similarly , she is trying as hard as she can to protect him from the threat of separation or deportation to which their relationship is exposed . She is an attentive and responsible mother , who is aware of a child ’s physical and , above all , emotional needs and she fulfils her maternal role .

In conclusion , PERSON is an integrated , open child , and it would be a pity to allow him to remain under the threat of separation for much longer . Like all children , he needs security . His mother ’s presence is essential to his balance and it is with her that he will be able to develop normally . ”

At the material time Article L. CARDINAL - CARDINAL of LAW provided :

“ ... the courts ... may order an alien convicted of an offence under LAW to be permanently excluded from NORP territory .

Exclusion from NORP territory shall of itself entail the deportation of the convicted person at the end of his sentence .

Where a person , on conviction , is permanently excluded from NORP territory , he may not request the benefit of the provisions of LAW . ”

Law no . CARDINAL of DATE replaced the last CARDINAL paragraphs by the following provisions :

“ However , exclusion from NORP territory shall not be imposed on :

( CARDINAL ) a convicted alien who is the father or mother of a NORP child resident in GPE , on condition that he or she is vested with or shares parental responsibility for that child or actually provides for its needs ;

Nor shall exclusion from NORP territory be imposed on a convicted alien who can prove either :

( CARDINAL ) that he has been normally resident in GPE since reaching DATE at the most or for DATE , or

( CARDINAL ) that he has been lawfully resident in GPE for DATE .

The provisions of the CARDINAL preceding paragraphs shall not be applicable in the event of a conviction for ... importing or exporting [ toxic plants classified as drugs ] or for conspiracy to commit those offences .

Exclusion from NORP territory shall of itself entail the convicted person 's deportation , where necessary after the end of his prison sentence . ”

Article L. CARDINAL - CARDINAL was repealed by PERSON no . CARDINAL of DATE .

Section CARDINAL bis of the Ordinance of DATE , as inserted by the PERSON of DATE and amended by the PERSON of DATE , provides :

“ An application to have an exclusion ordered lifted … that is made after the time allowed for an administrative appeal has expired may only be granted if the foreign national is resident outside GPE . This provision shall not , however , apply while the foreign national is serving an immediate custodial sentence in GPE or is the subject of a compulsory residence order … ”

The first CARDINAL subsections of section CARDINAL bis of the Ordinance of DATE as amended by the PERSON of DATE were replaced by the following provisions by virtue of the PERSON of DATE :

“ … Other than where the presence of the person concerned constitutes a threat to public order , a temporary residence permit shall be issued as of right :

( CARDINAL ) to an alien not living polygamously who is the father or mother of a NORP child under QUANTITY resident in GPE , on condition that he or she actually provides for the child ’s needs … ”

Article CARDINAL of the Criminal Code provides :

… any person who has incurred a prohibition ... as an automatic consequence of a criminal conviction or on whom such a prohibition ... has been imposed by the convicting court in its judgment , ... may request the court which convicted him ... to lift the prohibition ... , in whole or in part , or vary its duration .

In her application to ORG DATE ( no . CARDINAL ) PERSON alleged that returning her to GPE would amount to treatment contrary to LAW both of her and of her child and that ORG refusal of CARDINAL DATE to allow her application to lift the order permanently excluding her from NORP territory infringed her right to respect for her private and family life as secured in LAW . She also stated that when ORG had considered the application she had made on DATE to have the exclusion order lifted , it had not heard her case in accordance with LAW .

On DATE , in a partial decision , ORG ) declared the complaint based on LAW inadmissible and adjourned the application as to the remainder . On DATE , in a final decision , ORG ( in favour of which ORG had relinquished jurisdiction ) declared the other CARDINAL complaints admissible . In its report of DATE ( DATE ) , it expressed the unanimous opinion that there had been no violation of LAW and by CARDINAL votes to CARDINAL the opinion that there had been no violation of LAW . The full text of the ORG ’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment .


Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings

The first CARDINAL applicants were born in DATE and DATE respectively and live in GPE .

NORP In order to consider an application by GPE for membership of ORG , ORG decided it would need very precise information on the issue of cannabis production in that ORG and the measures being taken to eradicate it , that being the avowed political aim of ORG in person . To that end , ORG requested the PERSON géopolitique des drogues ( OGD – Geopolitical Drugs Observatory ) to prepare a report on drug production and trafficking in GPE . Investigations and reports by the ORG , which closed down in DATE , were considered authoritative . The GPE tribunal de grande instance and the GPE public prosecutor ’s office were among the subscribers to its publications .

The ORG delivered its report to ORG in DATE . The report contained the names of people implicated in drug trafficking in GPE . However , the ORG asked the ORG for a revised version of the report , with the names of the drug traffickers deleted in order to make it more suitable for the discussions that were scheduled with the NORP authorities . This expurgated version of the initial report was published , notably in a book sold by the OGD entitled Etat des drogues , drogue des GPE ( “ State of drugs , drugs of GPE ” ) and containing a chapter on GPE . The book was referred to in the newspaper ORG on DATE .

After initially remaining confidential , the original version of the report began to circulate . ORG learnt of its existence in the autumn of CARDINAL . The report contained CARDINAL chapters with the following titles : ( CARDINAL ) “ Cannabis in GPE – the historical background ” ; ( CARDINAL ) “ General overview of Er Rif ” ; ( CARDINAL ) “ The characteristics of cannabis growing ” ; ( CARDINAL ) “ The socio - economic impact and areas of production ” ; ( CARDINAL ) “ The increase in the land set aside for cannabis production ” ; ( CARDINAL ) “ GPE – the world ’s leading exporter of hashish ” ; ( CARDINAL ) “ Drug - trafficking routes ” ; ( CARDINAL) “ The criminal networks ” ; ( CARDINAL ) “ The emergence of hard drugs ” ; ( CARDINAL ) “ Drug money ” ; ( CARDINAL ) “ The ‘ war on drugs’ ” ; and ( CARDINAL ) “ Conclusion ” . It related how , over a period of DATE , there had been a tenfold increase in the area of land that had historically been used for cannabis production in the region of PERSON and that current levels of production made “ the sharif kingdom a serious contender for the title of the world ’s leading exporter of cannabis ” .

On DATE ORG published an article by Mr Incyan giving details of the report .

The front page of the newspaper carried an introductory article under the main headline : “ GPE , world ’s leading exporter of cannabis ” , and a sub - heading : “ King PERSON entourage implicated by confidential report . ” The article , which was relatively short ( it ran to some thirty or so lines in CARDINAL columns ) , summarised the terms of the TIME ’s report . A more detailed article ( covering CARDINAL columns ) appeared on page CARDINAL under the headline : “ NORP government implicated in cannabis trafficking according to confidential report ” , and a sub - heading : “ The report , which was commissioned by ORG from ORG , says GPE is the world ’s leading exporter and the NORP market ’s main supplier . It points to the direct responsibility of the sharif authorities in these lucrative activities ” . A summary of the article also appeared in an introductory passage which read : “ Drugs – ORG has obtained a copy of a confidential report sent to ORG in DATE in which the ORG says that ‘ in DATE GPE has become the world ’s leading cannabis exporter and the NORP market ’s main supplier’ . The report casts doubt on the sharif authorities’ determination to put an end to the trafficking , despite the ‘ war on drugs’ they declared in a blaze of publicity in DATE . Corruption guarantees the drug - trafficking rings the protection of officials ‘ ranging from the humblest customs officer to the ORG ’s inner circle ... ’ . ”

In a letter of CARDINAL DATE , ORG made an official request to the NORP Minister of ORG for criminal proceedings to be instituted against ORG . The request was forwarded to the Minister of Justice , who referred the matter to the GPE public prosecutor ’s office , as required by section PERSON ) of the Freedom of LAW of DATE .

Mr PERSON , the editor - in - chief of ORG , and Mr Incyan , the author of the article , were summoned to appear in ORG on charges of insulting a foreign head of ORG .

In a judgment of DATE , ORG found that the journalist had merely quoted extracts from what was undisputedly a reliable report , without distorting or misinterpreting it or making groundless attacks and , consequently , had pursued a legitimate aim . It accepted that he had acted in good faith and acquitted both him and Mr PERSON .

The King of GPE and the public prosecutor ’s office appealed against that decision .

In a judgment of DATE , ORG , while recognising that “ informing the public about matters such as the international drug trade is obviously a legitimate aim for the press ” , found that the desire to draw the public ’s attention to the involvement of the royal entourage and to “ the authorities’ accommodating attitude ” that pointed to “ tolerance on the part of the King ... was not entirely innocent ” , since it was “ tainted with malicious intent ” . The articles in question contained “ accusations of duplicity , artifice and hypocrisy that were insulting to a foreign head of ORG ” . The circumstances taken as a whole excluded good faith on the part of the journalist : he had not established that he had “ sought to check the accuracy of the ORG ’s comments ” ; instead , he had simply reproduced its unilateral account of events , thus “ propounding a theory that contained serious accusations ” , without leaving any room for doubt about the reliability of the source . Nor had he sought to check whether the DATE report remained valid in DATE . ORG noted that the journalist had not shown that he had “ contacted any NORP dignitaries , officials , public authorities or services for an explanation for the failure to match words with deeds or even to obtain their observations on the tenor of the ORG ’s report ” . In addition , he had refrained from mentioning the existence of the ORG published by the NORP authorities in DATE on “ GPE ’s general policy on the prevention of drug trafficking and the economic development of the northern provinces ” .

The applicants were therefore found guilty of insulting a foreign head of ORG and sentenced to fines of MONEY ( ORG ) each . They were ordered to pay King PERSON , who had successfully applied to be joined as a civil party to the proceedings , ORG in damages and ORG CARDINAL pursuant to LAW . ORG also ordered ORG to make additional reparation in the form of a report publishing details of the convictions .

The applicants appealed on points of law against that judgment .

In a judgment of DATE , ORG dismissed their appeal , approving ORG view that “ what [ made ] the article insulting [ was ] the suspicion with which ORG determination to put an end to drug trafficking in his country [ was ] viewed , and the charge that pernicious statements had been made to dramatic effect solely in order to preserve the country ’s image ” , especially as ORG had found that the charge of duplicity had been repeated twice and that the insistence on drawing the reader ’s attention to the King in person , in an article that portrayed GPE as the world ’s leading hashish exporter and alleged direct responsibility on the part of the NORP government and members of the royal family , was tainted with malicious intent .

The statutory basis for the offence ( délit ) of publicly insulting a foreign head of ORG is section CARDINAL of the Freedom of LAW of DATE ( “ the DATE Act ” ) , which , at the material time , read as follows : “ It shall be an offence punishable by DATE imprisonment or a fine of MONEY or both publicly to insult a foreign head of ORG , a foreign head of government or the minister for foreign affairs of a foreign government . ”

That provision was amended by LAW of DATE , which removed the power to impose a custodial sentence for this offence .

The rationale behind making it a criminal offence to insult a foreign head of ORG is to protect senior foreign political figures from certain forms of attack on their honour or dignity . In that regard , the offence is similar to that established by section CARDINAL of the same Act of insulting the President of GPE .

Under the case - law , the notion of insulting a foreign head of ORG is to be construed as meaning abuse , defamatory remarks , or expressions that are insulting or liable to offend the sensibilities of the persons the LAW seeks to protect . Thus , ORG has ruled : “ The actus reus of the offence of insulting a head of ORG ... is constituted by any expression of contempt or abuse or any accusation that is liable to undermine the honour or dignity of the head of ORG in his or her private life or in the performance of his or her functions ” ( ORG ( “ PERSON . crim . ” ) , decision of CARDINAL DATE ) .

The DATE Act established a specific legal procedure for the offence . LAW introduced a special legal rule by providing that a prosecution will only lie at the request of the person at whom the insults are directed . Requests must be sent to the Minister for ORG , who then communicates them to PERSON . Furthermore , unlike the position with criminal defamation , bad faith is not presumed . It is for the prosecution to prove malice . On the other hand , the defence of justification ( exceptio veritatis ) , which is available to a charge of criminal defamation , can not be pleaded on a charge of insulting a foreign head of ORG . Lastly , sections DATE and CARDINAL establish a system of different levels of liability , with editors - in - chief and editors being prosecuted as principals , and the authors of the offending articles as accomplices .

According to the ORG , the NORP courts have restricted the scope of section CARDINAL by ruling that it is only intended to “ prevent abuses of freedom of expression ” ( ORG , judgment of DATE ) and have construed the notion of abuse of that freedom narrowly .

As to the scope of section DATE , they consider that the offence created by that section does not preclude political criticism ( ORG , judgments of DATE and CARDINAL DATE ) . Section CARDINAL may only be relied on in the event of a personal attack on a foreign head of ORG . The insult must therefore be directed at the head of ORG and his or her reputation , not his or her policies ( ORG , judgment of DATE ) .

The NORP courts have also held that accusations concerning the conduct of the members of a reigning sovereign ’s family , even if excessive in tone , do not amount to an attack on the person of the head of ORG . They have likewise accepted that the intentionally insulting and sarcastic tone inherent in the satirical form used by the makers of a television programme did not violate the right of foreign public figures to respect for their private life ( ORG , judgment of CARDINAL DATE ) . Only particularly virulent attacks , demonstrating a deliberate intention to cause harm , could come within section CARDINAL ( ORG , judgment of DATE ) .

As regards the intention to cause harm , the NORP courts have consistently held that no presumption of an intention to insult arises . It is necessary to prove that the maker of the offending remarks intended the insult ( ORG , judgment of CARDINAL DATE ) . The defendant is entitled to present his defence in public in adversarial proceedings , without having to go through the complex process of seeking leave to tender evidence ( PERSON . crim . , judgment of DATE ) .

The Government said that in that respect the rules governing the offence of insulting a head of ORG contained more safeguards than those governing ordinary criminal defamation , for which bad faith was presumed . In determining whether there was an intention to cause harm , the courts would consider whether the journalists had made proper , objective inquiries ( ORG , judgment of CARDINAL DATE ) and whether there was evidence supporting the allegations ( ORG , judgment of DATE ) . The absence of a defence of justification , which was available to a charge of criminal defamation , was therefore compensated for by the manifestly liberal approach adopted by the courts when determining whether an intention to cause harm existed ( PERSON . , judgment of CARDINAL June DATE ) .

The applicants have produced to the ORG a judgment of ORG ) of the GPE tribunal de grande instance dated DATE in criminal proceedings instituted at the request of CARDINAL NORP heads of ORG , Presidents PERSON , PERSON and PERSON , on charges of publicly insulting a foreign head of ORG through the publication by ORG of a book entitled Noir Silence . Qui arrêtera la Françafrique ? ( “ Black silence . Who will stop PERSON ? ” ) .

The tribunal de grande instance held : “ The offence established by section CARDINAL of LAW and the manner in which that provision is applied in the courts does not satisfy all the requirements set out in LAW . ” It so found for CARDINAL reasons . Firstly , section CARDINAL had established in favour of foreign heads of ORG “ a special set of rules that PERSON ] on a particularly wide definition of the actus reus and PERSON ] any defence based on evidence that the allegations [ we]re true , to the point where commentators agree[d ] that foreign heads of ORG enjoy[ed ] a higher degree of protection in GPE than the NORP head of ORG himself or the head of the NORP government ” .

Secondly , the tribunal de grande instance noted that the term “ insult ” was not defined in the LAW and was an elusive expression that was not easily construed . In support of that statement , the tribunal de grande instance referred to the definition of “ insult ” in the case - law : “ Any offensive or disparaging expression , or defamatory or abusive insinuation , which is liable to harm the honour , dignity or personal sensibility of the head of ORG in the performance of his or her functions or in his or her private life . ” It reasoned that such a general definition introduced “ a wide subjective margin of appreciation into the definition of the statutory element of the offence ” that prevented journalists and writers from determining the extent of the prohibition with sufficient certainty in advance . Even more significantly , the tribunal de grande instance considered that the distinction legal commentators had sought to draw between acceptable criticism ( that is to say criticism of the foreign head of ORG ’s political acts ) and unlawful insults ( that is to say insults directed at the foreign head of ORG personally ) was difficult to apply in practice , for , as the relevant case - law showed , the courts considered that “ insults proffered at political events necessarily affect[ed ] the person [ concerned ] ” .

Thirdly , the tribunal de grande instance found that the offence was not “ necessary in a NORP society ” , as any head of ORG DATE or anyone else – whose honour or character was undermined or who found himself insulted had a sufficient remedy through criminal proceedings for criminal defamation or proffering insults under LAW .

Lastly , with reference to LAW , it noted that defendants to a charge under LAW were impeded in their defence by the vagueness of the word “ insult ” ; likewise , their inability to adduce evidence of the truth of their allegations deprived them of equality of arms .

It is not possible to determine from the case file whether an appeal was lodged against that judgment , or the outcome of any such appeal .

On DATE a senator introduced a bill proposing the repeal of the offence of insulting foreign heads of ORG . Again , it is unclear from the case file whether that recent proposal will be implemented .


CASE OF MAGAMADOVA AND ISKHANOVA v. RUSSIA

Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively . They live in the village of ORG , LOC , in GPE .

The first applicant was married to Mr PERSON , born in DATE ; they are the parents of CARDINAL children . The second applicant was married to Mr PERSON , born in DATE ; they are the parents of CARDINAL children . At the material time the CARDINAL couples lived in neighbouring houses in ORG .

DATE and DATE PERSON stayed TIME at ORG home . The men slept in the main house . The first applicant , her children and her brother - in - law slept in an annexe to the PERSON family house .

At TIME on DATE the first applicant woke up and heard the sound of gates opening . Shortly after that a group of unknown armed men entered her room . They wore camouflage uniforms and body armour ; some of them wore masks . They did not identify themselves . The first applicant believed that they were servicemen of the NORP federal troops because they had NORP features and spoke NORP without any accent . CARDINAL of the servicemen shouted at the first applicant , using swearwords freely . The men examined the room where the first applicant , her children and brother - in - law slept and , having realised that there were no adult men in it , left . The first applicant looked out of the window and noticed in the courtyard about CARDINAL servicemen surrounding the main house .

In the meantime PERSON , a practising NORP , was performing his prayer in the main house . The servicemen entered his room and pushed him down to the floor . Then they forced PERSON and PERSON out to the courtyard and ordered them to run barefoot towards CARDINAL armoured personnel carriers ( “ APCs ” ) parked nearby . The PERSON registration numbers were covered with mud .

The first applicant tried to follow her husband but the servicemen blocked her way . Eventually she went out of the annexe to the courtyard .

The servicemen threw PERSON and PERSON on the ground and hit them with rifle butts . Then they put the CARDINAL men into the APCs and drove away .

When the first applicant entered the main house , she discovered that there had been a search as there was a mess in the house and the floor was covered with scattered sugar .

The applicants have had no news of ORG and PERSON since DATE .

The Government disagreed with the applicants’ account of events . They argued that the second applicant had not witnessed her husband ’s abduction and concluded that it was doubtful that the kidnapping had taken place at all .

Shortly after the events of DATE the applicants started to search for their husbands . They repeatedly contacted various official bodies , both in person and in writing , informing them that their husbands had been apprehended on TIME to DATE and trying to establish the whereabouts and fate of those missing . In particular , they applied to the ORG offices at different levels , ORG of GPE , the Plenipotentiary Representative of the NORP President in ORG , ORG ( “ ORG ” ) , ORG and ORG , describing in detail the circumstances of their husbands’ abduction . In their efforts the applicants were assisted by the PERSON . The official bodies forwarded the majority of the complaints to the ORG offices for investigation .

On DATE the NORP district prosecutor ’s office ( “ the district prosecutor ’s office ” ) instituted an investigation into the disappearance of PERSON and PERSON under LAW of LAW ( aggravated kidnapping ) . The case file was given the number CARDINAL . The decision read as follows :

“ At TIME on DATE unidentified armed men wearing camouflage uniforms [ who had arrived ] in CARDINAL APCs surrounded the house at CARDINAL FAC in the village of ORG and seized [ Mr ] PERSON and [ Mr ] ORG . After that [ Mr PERSON and Mr Magomadov ] were placed in the APCs and taken away in an unknown direction . ”

On DATE the district prosecutor ’s office stayed the investigation in case no . DATE for failure to identify those responsible . The second applicant was informed of the suspension by letter of DATE .

On DATE the military prosecutor of military unit no . DATE ( “ the unit prosecutor ’s office ” ) informed the applicants that military personnel had not been implicated in PERSON and PERSON ’s abduction .

On DATE the applicants requested the prosecutor ’s office of GPE and the district prosecutor ’s office to resume the investigation and to admit them to the proceedings as victims . On DATE the district prosecutor ’s office replied that their application concerning the search for their husbands “ apprehended by unidentified servicemen of law enforcement bodies of the NORP Federation ” had been included in the investigation file in case no . DATE and stated that the applicants would be informed of any progress in the investigation .

On DATE the prosecutor ’s office of GPE quashed the decision of DATE on suspension of the investigation , reopened the proceedings in case no . DATE , ordered that the district prosecutor ’s office take all requisite investigative measures to resolve the crime and informed the applicants accordingly .

On DATE ORG forwarded the second applicant ’s letter to the prosecutor ’s office of GPE .

On DATE the prosecutor ’s office of GPE sent letters identical to the one of DATE to each of the applicants .

On DATE , DATE and DATE the prosecutor ’s office of GPE forwarded the second applicant ’s letters to the district prosecutor ’s office .

On DATE ORG informed the first applicant that her husband had not been detained by ORG officers , that he had not been suspected of any crimes and that the ORG was taking the necessary steps to establish his whereabouts and to identify those responsible for his disappearance .

On DATE ORG of GPE forwarded the second applicant ’s letter to the NORP district department of the interior ( “ ROVD ” ) and ordered the facts complained of to be verified and procedural steps taken if necessary .

On DATE the district prosecutor ’s office informed the applicants that the investigation into their husbands’ kidnapping was in progress .

On DATE the military prosecutor ’s office of ORG ( “ the ORG prosecutor ’s office ” ) forwarded the first applicant ’s complaint to the unit prosecutor ’s office and ordered it to conduct an inquiry .

On DATE the prosecutor ’s office of GPE informed the applicants that “ on DATE the investigation in the criminal case [ had been ] suspended pursuant to LAW ( due to failure to identify the alleged perpetrators ) ” and that “ [ o]n CARDINAL DATE the prosecutor ’s office of GPE [ had ] resumed the investigation and investigative measures aimed at identification of the perpetrators and establishment of [ the applicants’ ] relatives whereabouts [ were ] being taken ” .

On DATE the district prosecutor ’s office informed the first applicant that the investigation had been resumed on DATE and that investigative measures were being taken .

On DATE the district prosecutor ’s office informed the first applicant that the investigation in case no . DATE was under way .

On DATE the ORG prosecutor ’s office informed the unit prosecutor ’s office that its letter of DATE remained unanswered , forwarded a copy of the first applicant ’s complaint for the second time and ordered an inquiry .

On DATE the prosecutor ’s office of GPE forwarded a complaint lodged on behalf of the second applicant by ORG , a regional NGO based in GPE , to the district prosecutor ’s office .

On DATE the prosecutor ’s office of GPE informed the second applicant that her complaint lodged with ORG had been included in the investigation file in case no . DATE and that investigative measures were being taken to establish her husband ’s whereabouts .

On DATE the prosecutor ’s office of GPE forwarded to the district prosecutor ’s office a complaint lodged by the PERSON on behalf of the applicants for examination and requested that case no . DATE be investigated more energetically .

On DATE the unit prosecutor ’s office informed the first applicant that they had no information on her husband ’s whereabouts .

On DATE and DATE the prosecutor ’s office of GPE forwarded the first applicant ’s requests for assistance in the search for her husband to the district prosecutor ’s office .

On DATE the district prosecutor ’s office informed the second applicant that the investigation in case no . DATE had been suspended on DATE .

On DATE the ORG prosecutor ’s office informed the second applicant that she should send her further queries to the district prosecutor ’s office or to the prosecutor ’s office of GPE .

On DATE the district prosecutor ’s office informed the first applicant that the investigation had been suspended .

On DATE the PERSON requested an update on the progress in the investigation in case no . DATE from the prosecutor ’s office of GPE . In reply they were informed that the prosecutor ’s office of GPE had resumed the investigation on DATE .

NORP On DATE the district prosecutor ’s office informed the applicants that the investigation had been suspended on DATE .

On DATE the prosecutor ’s office of GPE informed the second applicant that she had been granted victim status and questioned on DATE and that the investigation had been suspended .

On DATE the second applicant complained to the district prosecutor ’s office of her husband ’s kidnapping by unknown men .

On DATE the district prosecutor ’s office instituted an investigation of PERSON and PERSON abduction under LAW of LAW ( aggravated kidnapping ) . The case file was assigned number DATE . On DATE second applicant was granted victim status and questioned . She submitted that her husband had gone to his neighbour ’s home and then been taken away by unidentified armed men in CARDINAL APCs .

On DATE the district prosecutor ’s office sent requests for information to the ROVD , the department of the ORG of the LOC district , a military prosecutor ’s office , the military commander of the LOC district , the information centre of ORG , the remand prisons in GPE and operational and search bureau no . CARDINAL ( “ ORB-CARDINAL ” ) . In reply they were informed that the police , the ORG and the military had not carried out any operations in respect of PERSON and PERSON , that the CARDINAL men had not been arrested or detained and that the ORG agencies had no information on the whereabouts of the missing men .

On DATE the district prosecutor ’s office granted the first applicant victim status in case no . DATE and questioned her . The first applicant submitted that her husband had been unemployed . In TIME of DATE PERSON had come to visit her husband . At TIME on DATE the first applicant had been awakened by noise coming from the courtyard and seen armed men in camouflage uniforms , some of whom had worn masks . The men had entered the house in which her husband and PERSON had been sleeping , taken them outside and brought them to the ORG .

On DATE the investigation was suspended for failure to identify those responsible .

On DATE the district prosecutor ’s office resumed the investigation in case no . DATE and informed the applicants accordingly .

At some point the investigation was suspended . It was resumed on DATE and again suspended on DATE .

DATE . On DATE the district prosecutor ’s office refused to institute a criminal investigation into the first applicant ’s allegations that the armed men who had kidnapped her husband had sprayed an unknown fluid in her face for the reason that the first applicant had sustained no bodily injuries .

NORP The district prosecutor ’s office questioned a number of witnesses . Neither the witnesses nor the victims alleged that PERSON and PERSON had been beaten at the time of their abduction .

The Government submitted that the investigating authorities had sent a number of queries to various ORG bodies and had taken other unspecified investigative measures .

The investigation failed to establish the whereabouts of PERSON and PERSON . The investigating authorities sent requests for information to the competent ORG agencies and took other steps to have the crime resolved . The investigation found no evidence to support the involvement of servicemen of the military or law enforcement agencies in the crime .

On CARDINAL DATE the district prosecutor ’s office resumed the investigation in case no . DATE and informed the applicants accordingly .

The Government further submitted that the progress in the investigation was being supervised by ORG . According to the Government , the applicants had been duly informed of all decisions taken during the investigation .

NORP Despite specific requests by ORG did not disclose most of the contents of the investigation file in case no . DATE , providing only copies of decisions to suspend and resume the investigation and to grant victim status , as well as of several consequent notifications to the relatives . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .

Article CARDINAL of LAW ( “ the ORG ” ) provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the lawfulness and grounds of the impugned decisions .

Article CARDINAL of the ORG establishes the rule that data from the preliminary investigation can not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission .