Violation of Art. 6-1;Violation of Art. 8;No violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - award

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

The applicant was born in DATE and is serving a prison sentence in correctional colony IK-CARDINAL in GPE .

On DATE the applicant was arrested in the town of GPE on suspicion of murder and several robberies . He was searched and police officers allegedly withheld his money and jewellery and beat him up . They took him to GPE town police station where the beatings allegedly continued .

On an unspecified date the applicant was charged with aggravated robbery , murder , unlawful detention of an individual , extortion , unlawful possession of firearms and use of force against a ORG official DATE offences under ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW . The applicant was placed in custody .

On DATE ORG of GPE found the applicant guilty of robbery committed with a view to acquiring others ' property on a large scale and accompanied by infliction of grievous bodily harm on the victim ( LAW ( b ) and ( c ) ) ; unlawful detention of a person entailing grave consequences ( LAW ) ; murder with a lucrative aim accompanied by a robbery ( LAW ( i ) ) ; extortion aimed at acquisition of others ' property on a large scale ( LAW § CARDINAL ( b ) ) ; unlawful possession of a firearm ( LAW ) and assault on a ORG official ( LAW ) . The court established that the applicant had instigated his CARDINAL co - defendants to rob employees of a trading company . Accompanied by the co - defendants and carrying a firearm , the applicant had stopped the employees ' car , had robbed them , tied them to a tree in the forest and shot CARDINAL of them dead . The court further found that the applicant had blackmailed another victim , extorting a sum of money from him and had assaulted police officers during his arrest . The court based the applicant 's conviction on testimonies by his co - defendants , the surviving victims and witnesses and the material evidence . The applicant was sentenced to DATE imprisonment . He appealed against the judgment .

On an unspecified date in DATE the applicant was transferred to remand centre SIZO-CARDINAL in GPE in order to secure his presence at the appeal hearing . He was allegedly placed in a cell where he was severely beaten by other inmates .

On DATE ORG of GPE upheld the applicant 's conviction on appeal .

On DATE a deputy Prosecutor General of GPE lodged with the Presidium of ORG of GPE an application for supervisory review of the judgments of CARDINAL DATE and DATE . The prosecutor requested a different legal characterisation of the applicant 's criminal acts , in particular that the charge of “ unlawful detention of an individual by an organised group ” under LAW of LAW be reclassified as “ unlawful detention of CARDINAL or more individuals by a group of persons with the use of weapons and violence dangerous to [ their ] health ” under LAW ( a ) , ( c ) , ( d ) and ( h ) . Furthermore , he requested that the charge of “ murder for financial gain coupled with robbery ” under LAW be reclassified as “ murder coupled with robbery ” under the same provision .

According to the ORG , a copy of the prosecutor 's application was sent to the applicant “ simultaneously ” and on DATE he was informed that the hearing before the ORG was scheduled for DATE . They further submitted that the applicant had been subsequently notified that the hearing had been postponed . The copy of the application of the deputy Prosecutor General produced by the ORG contained handwritten notes : “ postponed [ signature ] CARDINAL . ” , “ postponed [ signature ] CARDINAL ” , “ postponed CARDINAL [ signature ] ” .

According to the applicant , he obtained a copy of the deputy Prosecutor General 's application only on DATE . On unspecified dates the applicant sent to ORG and the Presidium of ORG his observations in connection with the prosecutor 's application . He also sought leave to appear at the supervisory review hearing . It appears that his requests were left without reply .

On DATE the ORG of ORG of GPE examined the application . After having heard the prosecutor and the judge rapporteur and examined the materials of the case , the ORG granted the request , reclassified the applicant 's acts as sought by the prosecutor and reduced the sentence to DATE imprisonment . The ORG court 's decision contained no reference to the applicant 's observations or arguments raised therein . The applicant did not attend the hearing .

From DATE to CARDINAL DATE the applicant was held in colony PERSON in GPE .

On DATE the ORG decided to give notice of the application to the Government of GPE .

By a letter dated DATE and sent through informal channels , the applicant informed the ORG that on DATE wardens PERSON . , PERSON . and PERSON had had a conversation with him . According to the applicant , they told him that the ORG had started its examination of the application lodged by PERSON and that they did not want the applicant to complain about conditions of detention in NORP correctional GPE to ORG . They ordered him to write statements addressed to Mr PERSON , head of ORG in GPE , and to Mr ORG , a prosecutor . The applicant was to affirm that he had no complaints about the conditions of detention . The applicant refused and allegedly endured beatings for DATE and received death threats . According to the applicant , there was no physical evidence of ill - treatment because he had been refused access to a doctor . On DATE the applicant gave up and signed the declarations .

In his letter of CARDINAL DATE he requested the ORG not to accept any statement similar to the above , should the Government produce one .

By a letter of CARDINAL DATE ORG informed the applicant that notice of his application had been given to ORG . The applicant was invited to designate a representative in the proceedings before the ORG . The letter contained several enclosures , such as a statement of facts , questions to the parties , an information note to applicants on the proceedings after communication of an application , an authority form and a list of NORP bar associations to which the applicant could apply for representation before the ORG .

NORP By letter dated CARDINAL DATE the applicant informed the ORG that on CARDINAL DATE a co - detainee had handed him the ORG 's letter of CARDINAL DATE . The envelope had been unsealed . It contained the letter and the questions to the parties . Considering that certain documents were missing , the applicant requested the prison administration to explain why the letter had been opened . According to the applicant , on DATE he had been placed for DATE in so - called “ ORG cell - type premises ” [ помещение камерного типа ] with a stricter prison regime because of his questions .

On DATE the applicant complained of censorship to the head of the colony who initiated an inquiry .

On DATE officer PERSON submitted to the head of the colony an explanation which , in its relevant parts , read as follows :

“ I hereby notify you that on DATE a letter ( incoming no . CARDINAL ) in a foreign language for convict PERSON [ the applicant ] was received . I examined [ the letter ] . The documents in the envelope were inspected and put back into the envelope ; they were not withheld . Other persons did not have access to the above letter and on DATE it was handed over against receipt to PERSON . , head of the brigade ... ”

NORP The explanation compiled on DATE by PERSON . , head of the applicant 's brigade , went on as follows :

“ On DATE at TIME officer PERSON handed over to me a big envelope addressed to [ the applicant ] . The envelope was opened , I examined [ рассмотрел ] the documents contained therein and put them back . There were no documents in NORP there . I gave the envelope to GPE , the inmate on duty , for him to pass it to [ the applicant ] . I did not remove any documents from the envelope and did not give them to persons other than GPE

On DATE inmate PERSON submitted to the head of the colony an explanation worded in the following terms :

“ I ... handed over to [ the applicant ] a big envelope which had been given to me by PERSON . , head of the brigade . TIME after the envelope was given to me I handed it over to [ the applicant ] . I did not look into the envelope and did not take any documents out of it , I did not give the envelope to anybody . ”

On DATE the acting head of the colony delivered a report [ заключение ] . It stated that in course of the inquiry it had been established that on CARDINAL DATE the colony had received an envelope for the applicant with documents from ORG . Officer PERSON in charge of censoring the inmates ' correspondence had automatically opened the envelope , not noticing the logo of ORG . After the inspection [ осмотр ] of the documents she had put them back into the envelope and had passed it over to PERSON . , head of the applicant 's brigade , who was supposed to hand it over to the applicant . The report concluded that PERSON had breached LAW of LAW prohibiting censorship of convicts ' correspondence with ORG . The report went on suggesting , among other things , reprimanding PERSON for negligence and conducting study courses on LAW with the colony officers , followed by obligatory tests .

On DATE the ORG requested the ORG to submit further observations in connection with the censorship of the ORG 's letter and the alleged intimidation of the applicant .

On an unspecified date the regional office of ORG in GPE opened an inquiry in connection with the ORG 's communication of the applicant 's complaints to the Government .

On DATE the regional prosecutor questioned the applicant . His explanation , in so far as relevant , read :

“ On DATE at CARDINAL on duty inmate PERSON handed over to me an opened envelope with the logo of the ORG ; there were CARDINAL sheets of paper with a text in LANGUAGE . He told me that he had received the envelope from PERSON .. At lunch I asked PERSON . why the envelope had been opened . He answered that he had been given the opened envelope by the censor ...

From the text of the documents I understood that not all documents had been given to me ; in particular , some documents which I was supposed to fill in and to return to the ORG were missing ...

I think that the missing documents ... had been withheld by the representatives of the administration of PERSON . I can not name specific persons because I do n't know who they were . My suspicions in respect of the administration are based on the fact that directly after my complaint to Ya . , deputy head of the colony , the administration acted in a strange way . Instead of attempting to find out what had happened to the missing documents , they placed me in a ORG . I think that if the administration had had nothing to do with the loss of the documents they would not be acting like that ...

... In PERSON I was not pressurised directly . However it looks suspicious to me that I have suddenly become a persistent regime breaker . It is also alarming that measures are taken with a view to delaying my incoming correspondence from the ORG and my outgoing correspondence . The attachments to the ORG letter opened in DATE may have been withheld with this aim . ”

On DATE the regional office of ORG issued a report in which they acknowledged a breach of the rules concerning the confidentiality of the applicant 's correspondence with the ORG . At the same time it was noted that it had not been confirmed that documents had been removed from the ORG 's envelope . It was further stated , with reference to the explanations of PERSON , the then acting head of the colony , and PERSON . , that PERSON had automatically opened the envelope , that she had not read the documents and that , in any event , she did not speak LANGUAGE . Had she noticed ORG logo , she would not have unsealed the envelope . Neither she nor other persons had removed the documents from the envelope ; no such directions had ever been given to anybody . It had been impossible to reprimand PERSON because by the relevant time her employment had already been terminated because of general measures to reduce the workforce .

As regards the applicant 's allegation of pressure with a view to making him withdraw some of his complaints to the ORG , the report noted that , according to his own explanation , he had only raised the issue of interference with his communication with the ORG in connection with the opening of the ORG 's letter . He had not referred to any other instances of intimidation or interference .

Lastly , during his detention before his conviction had become final he had been reprimanded CARDINAL times for various breaches of the detention regime . After the conviction had become final the applicant breached the prison regime on CARDINAL occasions : he was placed in a punishment cell , CARDINAL times , in a PKT twice , and was reprimanded CARDINAL times .

By a final judgment of DATE the applicant was convicted of having publicly assaulted a public official .

On an unspecified date he was transferred to serve his prison sentence to correctional colony IK-CARDINAL in GPE .

On DATE the ORG , while giving notice of the applicant 's complaints about the opening of its letter and the applicant 's alleged intimidation under LAW , of its own motion , raised the issue of whether the prison authorities censored the applicant 's correspondence , in breach of LAW .

According to the applicant , during his stay in ORG the prison administration routinely censored his incoming mail from the domestic authorities that was not subject to censorship by virtue of the domestic law .

NORP In particular , the applicant referred to the incoming mail from the following authorities : the Ombudsman of GPE ( letters of DATE and DATE ) , ORG of GPE ( letter of CARDINAL DATE ) , ORG with the President of GPE ( letter of DATE ) , ORG ( letters of DATE and DATE ) , the prosecutor 's office of GPE ( letters of DATE and CARDINAL DATE ) , ORG of GPE ( letter of DATE ) , ORG of GPE ( letter of DATE ) , the department of ORG in GPE ( letters of CARDINAL DATE , CARDINAL and DATE and DATE ) , the LOC court ( letter of DATE ) .

The letter of ORG dated DATE was addressed to the head of PERSON . He was requested to notify the applicant that ORG had examined the applicant 's complaint , forwarded to them by ORG GPE , and dismissed it as unfounded .

Under LAW of LAW of Criminal Procedure , in force at the material time , a prosecutor took part in a hearing before a supervisory review court . A convict and his or her counsel could be summoned if the court found it necessary . If summoned , they were to be afforded an opportunity to take cognisance of the application for supervisory review and to make oral submissions at the hearing . By its ruling of DATE , ORG declared LAW unconstitutional in so far as it allowed a supervisory instance court to examine the case without providing the convicted or acquitted person and their counsel with an opportunity to know the contents of the request for supervisory review lodged by the prosecutor , if the latter sought annulment of the final judgment on grounds unfavourable to that person . ORG made the same findings in respect of the lack of a legal requirement to notify the convicted or acquitted person and their counsel of the time when and place where the supervisory review hearing would take place . Failing that , the above persons would be unable to state their position to the court .

A supervisory review court was not bound by the scope of the application for supervisory review and was under an obligation to review the criminal case in its entirety ( LAW . It could uphold , amend or quash any of the earlier judgments , vary the sentence , discontinue the criminal proceedings or remit the matter for new consideration by the trial or appeal court . It could not , however , increase the sentence or re - categorise the defendant 's actions as a more serious offence ( ibid . ) .

Article CARDINAL § CARDINAL of LAW , as amended on DATE , as well as LAW adopted on DATE by Decree no . CARDINAL of the Russian Ministry of Justice , provide that all detainees ' incoming and outgoing correspondence is subject to censorship by the administration of the correctional facility . Correspondence with courts , prosecutors , penitentiary officials , the ORG , the public monitoring board and ORG is not subject to censorship .


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

Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson

On DATE police officers from ORG arrested the applicant on suspicion of membership of an illegal armed organisation , the Dev - Yol ( NORP Way ) .

On DATE ORG ( sıkıyönetim mahkemesi ) ordered the applicant ’s detention on remand .

On DATE ORG filed a bill of indictment with ORG against the applicant and CARDINAL other defendants . ORG accused the applicant , inter alia , of membership of the Dev - Yol , whose object was to undermine the constitutional order and replace it with a NORP - Leninist regime . The prosecution sought the death penalty under LAW of LAW .

On DATE ORG ordered the applicant ’s release pending trial .

In a judgment of DATE ORG convicted the applicant of membership of the LAW . It sentenced the applicant to CARDINAL years’ imprisonment under LAW of LAW , permanently debarred him from employment in the civil service and placed him under judicial guardianship .

As the applicant ’s sentence exceeded CARDINAL years’ imprisonment , his case was automatically referred to ORG ( askeri yargıtay ) .

Following promulgation of the PERSON of DATE , which abolished the jurisdiction of ORG , ORG ( yargıtay ) acquired jurisdiction over the case and on DATE the case file was transmitted to it .

On DATE ORG quashed the applicant ’s conviction on the ground that he should have been convicted of the offence under LAW of LAW . It referred the case to ORG ( ağır ceza mahkemesi ) . The criminal proceedings are still pending before the latter court .

Article CARDINAL § CARDINAL of LAW provides :

“ Whosoever shall attempt to alter or amend in whole or in part LAW or to effect a coup ORG formed under LAW or to prevent it by force from carrying out its functions shall be liable to the death penalty . ”

Article CARDINAL of the Criminal Code reads :

“ Any person who , with the intention of committing the offences defined in ORG ... , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than DATE imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”


INVESTYLIA PUBLIC COMPANY LIMITED v. CYPRUS

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

The applicant , ORG , is a company incorporated under NORP law with its registered office in GPE . It was represented before ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , Attorney - General of GPE .

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

In DATE the applicant company was registered as a public company .

During DATE an investor company ( ORG ) made an offer to the applicant company to purchase CARDINAL founder 's shares and CARDINAL ordinary shares , at QUANTITY ( ORG ) each ; the total value amounting to ORG CARDINAL . The offer was accepted by the applicant company and the investor company made an advance payment of ORG CARDINAL .

In DATE the applicant company declared a public offer of the shares .

On DATE Law CARDINAL(I)/CARDINAL came into force , amending the ORG DATE ( Law CARDINAL(I)/CARDINAL ) .

In DATE the investor company paid the remaining sum of ORG CARDINAL to the applicant company .

In DATE the shares were transferred to the investor company .

On DATE the applicant submitted an application to introduce the share titles on ORG .

The application was rejected by ORG .

On DATE the investor company requested reimbursement of the sum paid for the purchase of the shares plus interest , as the share titles had not been introduced on ORG .

The applicant company was granted an extension by ORG for the return of the money . This extension covered the period from DATE until DATE .

On DATE the investor company ( “ plaintiff ” ) brought civil proceedings against the applicant company ( action no . CARDINAL/CARDINAL ) before ORG of GPE claiming the return of the sum of ORG CARDINAL paid to the applicant company for the purchase of the shares . The claim was based on sections CARDINAL A ( CARDINAL ) ( b ) of ORG of DATE as amended by PERSON and , alternatively , on section CARDINAL ( CARDINAL ) of the latter law .

The applicant company alleged , inter alia , that the relevant law did not provide the plaintiff with the right to request reimbursement of the sums paid , nor did it require the applicant company to return this money . The applicant company also raised the question of the constitutionality of the applicable law , referring to Articles CARDINAL , DATE ( CARDINAL ) and CARDINAL ( CARDINAL ) of the LAW and the case of ORG v. the Police ( Criminal Appeals DATE and DATE , judgment of DATE ) in which ORG had found that section CARDINAL ( CARDINAL ) of Law CARDINAL ( CARDINAL)/ CARDINAL contravened the LAW .

On DATE ORG issued its judgment . The court observed that the first part of the sum had been paid by the plaintiff in DATE , that is before the entry into force of PERSON , whereas the rest of the sum had been paid afterwards , in DATE . The court found that in the light of sections ORG ( CARDINAL ) ( b ) and CARDINAL ( CARDINAL ) the plaintiff had an actionable right which commenced after the lapse of DATE from the date of the submission of an application for the introduction of the relevant titles on ORG or earlier in the event of rejection of the application . In such an event the issuer or company or person who received the sum had to return it to the purchaser within DATE of the date when the purchaser asked for it . PERSON did not affect rights and obligations which had been created before its entry into force .

Following the DATE period the applicant company had been granted an extension by ORG for the return of the money . This extension was still in force both when the plaintiff requested the return of the shares ( CARDINAL DATE ) and when the plaintiff brought the civil proceedings ( DATE ) . Therefore , in so far as the sum of ORG CARDINAL was concerned , which was claimed on the basis of section CARDINAL ( CARDINAL ) of PERSON , this claim was premature in view of the extension given to the applicant company by ORG .

The court then went on to examine the applicant company 's claim regarding constitutionality . In this respect it firstly held , inter alia , that LAW , providing for the protection of the right to property , was not relevant to the contested legislative provisions . In considering the applicant company 's complaint as to the constitutionality of the provisions in question in relation to LAW and CARDINAL of the LAW protecting the freedom to conduct business and the freedom to contract respectively , the court observed that such an issue could not be examined in abstracto but only in relation to the circumstances of a given case . Although the applicant company claimed that the law interfered with an agreement between the parties that had come into effect , the facts put before the court did not support this claim . First of all , it could not be ascertained when the agreement had been reached . Secondly , the court was not aware of the contents of the agreement , and in particular whether the agreement contained conditions as to the rights and obligations of the parties in the event that the share titles were not introduced on ORG . It could not therefore be ascertained whether the sections of the law in question affected and/or interfered with the specific agreement in any way . Consequently , the court held that it could not , on the basis of the facts before it , examine the issue of constitutionality raised before it .

Furthermore , the court held that the case of ORG v. the Police ( cited above ) relied on by the applicant was not applicable . In this respect it noted that in that case ORG had examined the constitutionality of sections CARDINAL ( CARDINAL ) and ( CARDINAL ) of PERSON in relation to LAW . LAW CARDINAL ) imposed an obligation on the company to submit a ( duly completed and well - founded ) application for the introduction of titles on ORG within DATE , or alternatively on another date but not DATE following the date of entry into force of the applicable law . ORG found that section CARDINAL ( CARDINAL ) was unconstitutional as it deprived the appellant company [ in that case ] of the capability of acting in the way which it considered promoted the financial interests of the company and those of its members . It rendered criminal the freedom of the appellant company to regulate its financial relations and the free financial operation of the business so that it could operate profitably .

The court pointed out that in the present case the plaintiff was not seeking to interfere with the activities of the applicant company but had requested reimbursement of the sums it had paid for the purchase of the shares , with the prospect that the share titles would be introduced on ORG , a right which had been implicitly , if not directly , recognised by ORG in the case of GPE , where the following was stated :

“ The complainant - investors have contracted freely and of their own accord with the appellants . The GPE legal framework contains provisions which protect the rights of the investor . For a possible violation of rights which emanate from the relationship which they created with the appellants , they may resort to the remedies provided by LAW . ”

Accordingly , the court found in favour of the plaintiff and awarded it the sum of ORG CARDINAL with PERCENT interest from DATE , the date of the submission of the application to introduce the share titles on to ORG , until payment . Costs were awarded against the applicant company .

On DATE the applicant company lodged an appeal with ORG ( appeal no . DATE ) . The applicant company had CARDINAL grounds of appeal . It raised , inter alia , the compatibility of the legal provisions in question with Articles CARDINAL , DATE , DATE and CARDINAL of the LAW ( see below ) , LAW and CARDINAL of the Convention and LAW No . CARDINAL . In the context particularly of LAW , the applicant company , in its written submission to the court , alleged that it had made known to prospective purchasers that it did not meet one of the basic requirements for admission to ORG .

However , during the hearing of the appeal , the applicant company restricted its grounds of appeal to CARDINAL points . Firstly , that the respondents did not have an actionable right on the basis of the relevant provisions and secondly that these provisions were unconstitutional because they contravened LAW , which protected the right to property . The applicant company 's complaint of unconstitutionality was therefore limited to the above LAW provision . In this respect , the applicant relied on ORG judgment in the case of ORG v. ORG ( Criminal Appeal no . CARDINAL , judgment of DATE ) in which ORG had found that the PERSON on the Return of Money to Investors ( PERSON CARDINAL(I)/CARDINAL ) contravened LAW .

On DATE ORG upheld the first - instance judgment and dismissed the appeal . With regard to the question of constitutionality the court noted that the case of ORG ( cited above ) relied on by the applicant was distinguishable from the present case . The court noted that the above decision of ORG concerned a criminal case in which the provisions of section CARDINAL of PERSON CARDINAL(I)/CARDINAL were examined . This law criminalised a specific omission by a person , which arose from the operation of a private agreement , that is to say in the domain of civil law . The court pointed out that the issue which arose in the present appeal was covered fully by the decision of ORG in the case of ORG v. PERSON ( Civil Appeal DATE , judgment of DATE ) where the provisions of section CARDINAL(CARDINAL ) of PERSON CARDINAL(CARDINAL)/CARDINAL , which were in essence identical to the contested provision , namely section ORG ( CARDINAL ) ( b ) , were discussed extensively . In that case ORG decided that the provisions of the relevant section were constitutional . ORG decided that the same was applicable to the provisions of section CARDINALA ( CARDINAL ) ( b ) . In particular , the court noted that legislative provisions and regulations which had the object of protecting the public interest and social and financial interests as well as those of the public and citizens , were permissible . ORG went on to cite the essential parts of the above judgment :

“ We consider that in the present case too what has been done by the legislation in issue is the regulation of the relations between the contracting parties thus excluding the application of the provisions of LAW ) . Even if in any case it could be said , if this article was applicable , that the provisions of LAW ( CARDINAL ) were put there for the protection of the rights of third parties , as permitted by paragraph CARDINAL of the above article of the LAW .

In any case , as has also been stated in PERSON ( above ) , legislative provisions and regulations are permissible which have the object of protecting the public interest , the social and financial interests as well as the protection of the public and the citizens . The same section provides for the prevention of exploitation by persons who have peculiar financial power , something which in our view would be completely applicable to our case , where learned counsel for the appellant himself in his oral address before us referred extensively to the problems and situations created by the introduction of companies on to ORG . In any case , however , in the case of ORG of FAC and ORG v. PERSON ( DATE ) CARDINAL GPE CARDINAL , at page CARDINAL , it was said that the ORG also continues to have the power to secure the vital interests of its people . It does not matter if appropriate legislation which serves this purpose has the consequence of amending or annulling agreements already in force ( see PERSON v. PERSON , CARDINAL GPE CARDINAL , CARDINAL ) . ”

Section CARDINALA ( CARDINAL ) ( b ) of ORG Law CARDINAL(I)/CARDINAL ) as amended by PERSON which entered into force on DATE provides as follows :

“ Any interested purchaser who has paid any sum or other consideration to an issuer , a company or a person for the purchase of shares either in accordance with the provisions of sub - section ( CARDINAL ) above or otherwise , may after DATE have elapsed from the date of the submission of an application for the introduction of the relevant titles on ORG , or earlier in the event of rejection of the application , apply in writing for the return of the sum or consideration if the relevant titles have not been given to him or the relevant titles have been given to him but they have not as yet been introduced on ORG . In such an event the issuer or company or person who received the sum or consideration must return it to the interested purchaser within DATE of the date when the interested purchaser asked for the return of the sum or consideration , with PERCENT interest calculated from DATE when the application for the introduction of the said titles on ORG was made , and must return the relevant titles if they have been issued and given to the interested purchaser :

Provided that , notwithstanding the provisions of sub - section ( CARDINAL ) , the ORG may bar an issuer or company which contravenes the provisions of this section from introducing titles on ORG . ”

On DATE Law CARDINAL(I)/CARDINAL was amended by PERSON . LAW PERSON was abolished and replaced . However , the provisions of Law CARDINAL(I)/CARDINAL continued to be applied to rights and obligations that arose before NORP came into force .

Sections CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of Law CARDINAL(I)/CARDINAL provide as follows :

“ CARDINAL ( CARDINAL ) Any issuer , company , member of the board of a company or person who has received or has bound any sum or has received any consideration for the sale or offer for sale or acceptance of an offer for the purchase of titles on their behalf or on behalf of any company incorporated or being incorporated before the entry into force of ORG ( Amending ) ( No . CARDINAL ) PERSON of DATE , with the prospect and/or representations that the said titles would be introduced on ORG , shall within DATE or within any other period which will be decided by CARDINAL of the interested purchasers and which shall not in any case exceed DATE from the date of entry into force of ORG ( Amending ) ( No . CARDINAL ) PERSON of DATE take all the necessary actions for the submission of a duly substantiated and documented application ( in accordance with the present PERSON and the LAW issued thereunder ) for the introduction of the relevant titles on to ORG .

( CARDINAL ) Failure by an issuer , company , member of the board of a company or any person to act in accordance with the provisions of sub - section ( CARDINAL ) above is a criminal offence punishable by imprisonment of DATE or a fine of QUANTITY and/or with both these penalties and entails the compulsory return of any sum or consideration received or the release of any bound sum , with interest of PERCENT to be paid to the interested purchaser with the return at the same time of the relevant titles if they have been issued and given to the interested purchaser .

( CARDINAL ) Any issuer , company , member of the board of a company or person who has received any sum or any consideration from the sale or offer for sale or acceptance of an offer for the purchase of titles on behalf of any company incorporated or being incorporated before the entry into force of ORG ( Amending ) ( No . CARDINAL ) PERSON of DATE , with the prospect or representations that the said titles would be introduced on ORG , shall , if the relevant titles are not introduced for any reason on ORG within DATE of the submission of the application for their introduction on ORG , or earlier in the event of rejection of the application , and if the interested purchaser asks for it in writing , return the sums or considerations to those who had paid them within DATE of the date when the interested purchaser asked for them , which he had paid with PERCENT interest calculated from DATE of the submission of the application , at the same time as the return of the relevant titles :

Provided that , if the ORG ascertains that the application under consideration is duly and sufficiently substantiated and documented in accordance with ORG and that there is no prima facie substantial obstacle to the approval of the application and that the delay in approving the application is not due to the applicant , it may grant a reasonable extension of time to the applicant with regard to the return of the sums received . ”

Section CARDINAL ( CARDINAL ) above imposes an obligation on any “ issuer , company , member of the board of a company or person ” to submit an application for the introduction of shares on to ORG within DATE or within any other period which will be decided by CARDINAL of the interested purchasers and which shall not in any case exceed DATE from the date of entry into force of the amending LAW . Failure to submit such an application is a criminal offence . In the case of ORG v. the Police ( cited above ) ORG found that the penalisation of the failure to submit an application to introduce titles on to ORG within a fixed time - limit , and in an absolute manner , was an impermissible interference with the right protected by LAW and nullified the freedom which that provision guaranteed . It accordingly held that LAW ) was unconstitutional .

In the case of ORG ( cited above ) ORG found that section CARDINAL of the Return of Money to Investors Law ( PERSON CARDINAL(I)/CARDINAL ) was unconstitutional . This case was a criminal case and the law in question criminalised a specific failure by a person which had risen from the operation of a private agreement , that is to say in the domain of civil law . In that case ORG held the following :

“ A purchaser has bought shares from an issuer on the condition that the latter would introduce them on ORG , and this has not happened , then , if the procedure provided by section CARDINAL(CARDINAL ) of the law is followed , he is entitled to ask for the return of the money or the consideration which he gave for the purchase of the shares . If the issuer does not return to the purchaser the money or the consideration he gave , then he commits a criminal offence as provided in CARDINAL of the law , and if convicted is liable to imprisonment of DATE or to a fine of MONEY CARDINAL,CARDINAL .

Our thoughts and judgment follow . As to the amount or any consideration given by a purchaser of shares to the issuer , who both issues and hands over the shares to him , that amount and any other consideration come into the absolute ownership of the issuer just as the shares come into the ownership of the purchaser . The use by the law of the term “ returns ” is without true legal substance . It does not correspond to the legal truth . What the law essentially provides is the compulsion of the issuer , by the likelihood of prosecution and conviction , to deliver to the purchaser , and the registered owner of the shares , part of his property . This is constitutionally impermissible , because it compels the issuer to alienate part of his property , otherwise he will face the consequences which the law provides .

The decision of our ORG in ORG v. PERSON ( DATE ) CARDINAL CLR DATE has no relation to the legal treatment that this criminal appeal ought to have . In that case it was decided that the legislative provision ( section CARDINAL(CARDINAL ) of LAW ) DATE ) constituted a regulation of contractual relations and for this reason it did not violate LAW .

Of assistance in the present case is the decision in Criminal Appeals DATE and CARDINAL ORG v. Police , CARDINAL.CARDINAL.CARDINAL , a decision which was upheld by LAW in recourses CARDINAL and others ORG and others v. the ORG , CARDINAL.CARDINAL.CARDINAL . We observe , however , that in both the above CARDINAL cases the ORG discussed whether the law violated LAW , given the suggestion that the legislative provision was necessary for the reasons contained in paragraph CARDINAL of LAW . The law in issue , examined in this case , as we said above , and for the reasons we have explained , abolishes in toto the fundamental right secured by LAW .

We will not deal with anything else , which results from the good work done collectively by the advocates in the case . The law in issue , the Return of Money to Investors Law of DATE , CARDINAL ) is held to be unconstitutional . ”

LAW provides as follows , in so far as relevant :

“ CARDINAL . Every person has the right to freedom of peaceful assembly .

Every person has the right to freedom of association with others , including the right to form and to join trade unions for the protection of his interests . Notwithstanding any restriction under paragraph CARDINAL of this Article , no person shall be compelled to join any association or to continue to be a member thereof .

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are absolutely necessary only in the ' interests of the security of the LOC or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by LAW to any person , whether or not such person participates in such assembly or is a member of such association .

Subject to the provisions of any law regulating the establishment or incorporation , membership ( including rights and obligations of members ) , management and administration , and winding up and dissolution , the provisions of this Article shall also apply to the formation of companies , societies and other associations functioning for profit . ”

Article CARDINAL - The right to property

“ CARDINAL . Every person , alone or jointly with others , has the right to acquire , own , possess , enjoy or dispose of any movable or immovable property and has the right to respect for such right .

No deprivation or restriction or limitation of any such right shall be made except as provided in this Article . ”

Article CARDINAL - The right to work

“ CARDINAL . Every person has the right to practise any profession or to carry on any occupation , trade or business . ”

Every person has the right to enter freely into any contract subject to such conditions , limitations or restrictions as are laid down by the general principles of the law of contract . A law shall provide for the prevention of exploitation by persons who are commanding economic power .


Violation of Art. 5-3;No violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

PERSON , née PERSON , a NORP national residing at FAC ) , took over a bar - restaurant in DATE . The mother of CARDINAL children from CARDINAL marriages , she was separated from her second husband , PERSON , a petrol pump attendant , and at the material time was living with a third man .

On DATE Mr Merdy was killed by a shot fired from a car . A witness had taken down the registration number of the vehicle and on DATE the police detained Mr PERSON , who was found to be in possession of a pump - action shotgun . He admitted that he had fired the shot , but stated that he had acted on the applicant ’s instructions . He claimed that she had agreed to pay him , and CARDINAL of his friends , Mr PERSON - who also accused the applicant - , the sum of MONEY for killing her husband and that she had advanced him MONEY for the purchase of the weapon .

PERSON denied these accusations although she admitted having seen the murder weapon , having declared in public that she wished to get rid of her husband and having given her agreement " without thinking too much about it " to PERSON who had proposed to carry out the deed . She maintained , moreover , that she had given MONEY to PERSON , whom she described as " a poor kid " , so that he could buy a motor car .

On DATE , in the course of the first examination , the investigating judge of the tribunal de grande instance ( ORG ) of NORP charged the applicant with being an accessory to murder and remanded her in custody .

On DATE the applicant sought her release arguing that there was no serious evidence of her guilt . She claimed in addition that she possessed all the necessary guarantees that she would appear for trial : her home , the business , which she ran single - handed , and her CARDINAL children , some of whom were still dependent on her .

On DATE the investigating judge ordered her release subject to court supervision ; she gave the following grounds for her decision :

" ... at this stage of the proceedings detention is no longer necessary for the process of establishing the truth ; ... although the accused provides guarantees that she will appear for trial which are sufficient to warrant her release , court supervision would seem appropriate . "

He ordered the applicant not to go outside certain territorial limits without prior authorisation , to report to him once DATE on a fixed day and at a fixed time , to appear before him when summoned , to comply with restrictions concerning her business activities and to refrain from receiving visits from or meeting CARDINAL named persons and from entering into contact with them in any way whatsoever .

Thereupon the guardianship judge ( juge des tutelles ) returned custody of her CARDINAL minor children to PERSON .

On appeal by the NORP public prosecutor , the indictments division ( chambre d’accusation ) of ORG set aside the order on DATE , declaring that it would thereafter exercise sole jurisdiction on questions concerning the detention . It noted in particular as follows :

The file contains ... considerable evidence suggesting that the accused was an accessory to murder , which is an exceptionally serious criminal offence having caused a major disturbance to public order , the gravity of which can not diminish in the short lapse of time of DATE .

The investigations are continuing and it is necessary to prevent any manoeuvre capable of impeding the establishment of the truth .

In addition , in view of the severity of the sentence to which she is liable at law , there are grounds for fearing that she may seek to evade the prosecution brought against her .

No measure of court supervision would be effective in these various respects .

Ultimately detention on remand remains the sole means of preventing pressure being brought to bear on the witnesses .

It is necessary in order to protect public order from the disturbance caused by the offence and to ensure that the accused remains at the disposal of the judicial authorities .

As a result , the applicant , who had been released on DATE , returned to prison on DATE .

At the hearing on DATE PERSON had filed a defence memorial . In it she stressed that she had waited until the main phase of the investigation had been concluded before lodging her application for release ; thus all the witnesses had been heard by the police or by the investigating judge , CARDINAL series of confrontations with Mr PERSON had taken place and all the commissions rogatoires had been executed . She noted in addition that Article CARDINAL et seq . of the Code of Criminal Procedure in no way regarded the gravity of the alleged offences as CARDINAL of the conditions for placing and keeping an accused in pre - trial detention and that the parties seeking damages ( parties civiles ) had not filed any observations on learning of her release . She urged the indictments division to confirm the order of CARDINAL DATE releasing her subject to court supervision and stated that she had no intention whatsoever of evading the prosecution , that she would comply scrupulously with the court supervision , that she could provide firm guarantees that she would appear in court and that further imprisonment would destroy , both financially and emotionally , a whole family , whose sole head she remained .

PERSON filed an appeal which ORG dismissed on DATE on the following grounds :

In setting aside the order for the release subject to court supervision of PERSON , née PERSON , accused of being an accessory to the murder of her husband , the indictments division , after having set out the facts and noted the existence of divergences between her statements and the various testimonies obtained , observed that the offence had caused a disturbance to public order which had not yet diminished , that , as the investigation was continuing , it was important to prevent any manoeuvre likely to impede the establishment of the truth and bring pressure to bear on the witnesses , and that the severity of the sentence to which the accused was liable at law raised doubts as to whether she would appear for trial if she were released ; the indictments division considered that no measure of court supervision could be effective in these various respects ;

That being so ORG is able to satisfy itself that the indictments division ordered the continued detention of PERSON , née Letellier , by a decision stating specific grounds with reference to the particular circumstances and for cases provided for in Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ;

On DATE the applicant again requested her release ; the indictments division of ORG dismissed her application by a decision of CARDINAL DATE , similar to its earlier decision ( see paragraph CARDINAL above ) .

On an appeal by PERSON , ORG set aside this decision on CARDINAL DATE on the ground that the rights of the defence had been infringed as neither the applicant nor her counsel had been notified of the date of the hearing fixed for the examination of the application . It remitted the case to the indictments division of ORG , composed differently .

The latter indictments division dismissed the application on DATE . It considered that there were " in the light of the evidence ... , serious grounds for suspecting that the accused had been an accessory to murder " . It took the view that " under these circumstances ... , the accused ’s detention [ was ] necessary , having regard to the seriousness of the offence ... and the length of the sentence [ which she risked ] , in order to ensure that she remain[ed ] at the disposal of the judicial authorities and to maintain public order " .

It also dismissed the complaints based on a violation of LAW and CARDINAL ( LAW , LAW , stressing that these complaints were not based on any provision of LAW and that it had taken its decision with due dispatch in accordance with that code .

At the hearing on DATE , PERSON had submitted a defence memorial . In it she requested the indictments division to order her release " because her application for release had not been heard within a reasonable time " within the meaning of LAW ( LAW ) of the LAW and to take formal note that she did not object to being placed under court supervision .

On an appeal by PERSON , ORG overturned this decision on DATE . It found that ORG had not answered the submissions concerning the failure to respect the " reasonable time " referred to in LAW ( LAW ) .

On CARDINAL DATE the indictments division of ORG dismissed the application , which had been remitted to it , on the following grounds :

... the charges are indeed based on sufficient , relevant and objective evidence despite the accused ’s claim to the contrary ;

Having regard to the complexity of the case and to the investigative measures which it necessitates , the time taken to conduct the investigation remains reasonable for the purposes of LAW , with reference to the dates on which PERSON was placed in detention and had her detention extended ; the proceedings have never been neglected , as examination of the file shows ;

PERSON complaint that a reasonable time has been exceeded is also directed against the time taken to hear her application for release ... and she infers therefrom , by analogy with ORG and CARDINAL - CARDINAL of LAW Code of Criminal Procedure , that such a decision should have been taken within a period of DATE and DATE ;

However , none of the provisions of that code which are expressly applicable to the present dispute has been infringed and it must be recognised that the period of time which elapsed DATE of the application and that of the present judgment is only the inevitable result of the various appeals filed ;

Finally the applicant ’s continued detention on remand remains necessary to preserve public order from the disturbance caused by such a - according to the present state of the investigation - decisive act of incitement to the murder of PERSON ; the extent of such disturbance , to the whole community , is not determined only on the basis of the reactions of the victim ’s entourage , contrary to what the defence claims ... . "

The applicant filed an appeal on points of law . She relied inter alia on LAW ( LAW ) of the LAW , claiming that the indictments division had " failed to consider whether detention lasting more than twenty - two months , when the investigation [ was ] not yet concluded , exceeded a reasonable time " . She also alleged violation of LAW ( LAW ) inasmuch as DATE which had elapsed between the judgment of ORG on DATE and the judgment of the court to which the application was remitted could not be regarded as satisfying the requirement of speediness .

ORG dismissed the appeal on DATE on the following grounds :

In order to reply to the accused ’s submissions based on the provisions of LAW ( LAW ) of LAW , which she had claimed had been infringed , the court to which the application was remitted found that , in relation to the dates on which PERSON had been placed in detention on remand and had her detention extended , having regard to the complexity of the case and the necessary investigative measures , the proceedings had been conducted within a reasonable time within the meaning of the above - mentioned Convention ; it found that the time which had elapsed between the date of her application for release of CARDINAL DATE and that of the present judgment was only the inevitable result of the various appeals filed , cited in the judgment ;

Moreover , in dismissing this application for release and ordering the accused ’s continued detention on remand , the indictments division , after having referred to the grounds for suspicion against PERSON , noted that the latter denied having been an accessory in any way although the declarations in turn of the CARDINAL main witnesses conflict with the accused ’s version . According to the indictments division , it remains necessary to keep the accused in detention on remand in order to protect public order from the disturbance to which incitement to the murder of a husband gives rise ;

In the light of the foregoing statements , ORG is able to satisfy itself that the indictments division , before which no submissions based on the provisions of LAW ( LAW ) of LAW were raised and which was not bound by the requirements of LAW , sub - paragraph CARDINAL , of LAW , which do not apply in proceedings concerning more serious criminal offences ( matière criminelle

During the investigation , the applicant submitted CARDINAL other applications for release : on DATE , DATE , DATE and DATE and then on DATE and CARDINAL DATE . The indictments division of ORG dismissed them on DATE , DATE , DATE and DATE and on DATE and CARDINAL DATE respectively . It based its decisions on the following grounds :

Judgment of DATE

The file thus contains considerable evidence suggesting that the accused was an accessory to murder , which is an exceptionally serious criminal offence having caused a major disturbance to public order , the gravity of which can not diminish in the short lapse of time of DATE .

No measure of court supervision would be effective in these various respects .

Ultimately , detention on remand remains the sole means of preventing pressure being brought to bear on the witnesses .

It is necessary to protect public order from the disturbance caused by the offence and to ensure that the accused remains at the disposal of the judicial authorities .

Judgments of DATE and DATE

Identical to the preceding decision - itself very similar to that of DATE ( see paragraph CARDINAL above ) - except that the sixth paragraph was not included and that the first paragraph ended at the word " accessory " .

Judgment of DATE

In these circumstances there are strong indications of PERSON guilt , indications which were moreover noted most recently by a judgment of this indictments division dated DATE .

The acts which PERSON is alleged to have carried out seriously disturbed public order and this disturbance persists . In addition there is a risk that , if she were to be freed , she would , in view of the severity of the sentence to which she is liable , seek to evade the criminal proceedings brought against her .

The constraints of court supervision would be inadequate in this instance .

The detention on remand of PERSON is necessary to preserve public order from the disturbance caused by the offence and to ensure that she remains at the disposal of the judicial authorities .

Judgment of DATE

There are strong indications of PERSON guilt , having regard to the consistency of Mr Moysan ’s statements .

No new item of evidence has as yet been brought to the court ’s attention such as would be capable of altering the situation as regards PERSON incarceration .

The continuation of her detention on remand remains necessary to preserve public order from the serious disturbance caused by the offence and to ensure that she will appear for trial .

The constraints of court supervision would clearly be inadequate to attain these objectives .

Judgment of DATE

In the present state of the proceedings , PERSON is the subject of an order for the forwarding of documents to the principal public prosecutor dated DATE made by the NORP investigating judge , which gives grounds for supposing that the investigation is close to conclusion so that the competent court will be able to give judgment within a reasonable time .

In consequence the detention on remand is absolutely necessary on account of the particularly serious disturbance caused by the offence .

It is to be feared that PERSON will seek to evade trial , having regard to the severity of the sentence which she risks .

It is consequently essential that the accused remains in detention in order to ensure that she is at the disposal of the trial court .

The guarantees of court supervision would clearly be inadequate to attain these objectives .

In the defence memorials which she submitted at the hearings on DATE , CARDINAL DATE and DATE , PERSON stressed the contradictions in the investigation and the statements of the witnesses . Moreover , she contested the arguments put forward to justify the extension of her detention . She maintained that , once released , she would remain at the disposal of the judicial authorities and that public order would in no way be threatened ; she would comply scrupulously with any court supervision ; she would provide very firm guarantees for her appearance in court and her continued detention would destroy emotionally and financially a whole family , whose sole head she remained . She claimed the benefit of the presumption of innocence , a fundamental and inviolable principle of NORP law .

In her memorial of CARDINAL DATE , the applicant also invoked LAW ( LAW ) of the Convention . She noted that " ... in accordance with the case - law of ORG , the grounds given in the decision(s ) concerning the application(s ) for release , on the one hand , taken together with the true facts indicated by [ her ] in her applications , on the other , [ made ] it possible [ for her ] to affirm that those grounds contained both in the judgment ... of CARDINAL DATE and in the preceding judgment of CARDINAL DATE and in the subsequent judgments [ were ] neither relevant nor sufficient " . She added that the parties seeking damages , the victim ’s mother and sister , had not formulated any observations when she had filed her applications for release of DATE , DATE , DATE and DATE , whereas they had energetically opposed those of PERSON ; she reiterated this last argument in her memorial of DATE .

The case followed its course . On CARDINAL DATE the investigating judge made an order terminating the investigation and transmitting the papers to the public prosecutor ’s office . On DATE the NORP public prosecutor lodged his final submissions calling for the file to be transmitted to the principal public prosecutor ’s office of ORG . This was ordered by the investigating judge on DATE .

On CARDINAL DATE the indictments division committed the applicant for trial on a charge of

" having , in the course of DATE in FAC , being DATE , been an accessory to the premeditated murder of PERSON committed on DATE by PERSON , inasmuch as she had by gifts , promises , threats , misuse of authority or power , incited the commission of this deed or given instructions for its commission " .

On CARDINAL DATE the NORP public prosecutor ’s office advised PERSON counsel that " the case [ was ] liable to be heard during DATE " . By a letter of CARDINAL DATE , however , the lawyer in question gave notice that he would be unavailable from DATE to CARDINAL DATE on account of his participation in another trial before ORG of the PERSON département .

On DATE the public prosecutor informed the accused ’s lawyer that the case would be heard on CARDINAL and DATE . On DATE the Val - de - Marne Assize Court sentenced PERSON to DATE imprisonment for being an accessory to murder . It sentenced PERSON to DATE years’ imprisonment for murder and acquitted PERSON .

The applicant did not file an appeal on points of law ; she was released on CARDINAL DATE , the pre - trial detention being automatically deducted from the sentence ( LAW ) .

The provisions of LAW concerning detention on remand , as applicable at the material time , are as follows :

" In cases involving less serious criminal offences ( matière correctionnelle ) , if the sentence risked is equal to or exceeds DATE imprisonment in cases of flagrante delicto , or CARDINAL years’ imprisonment in other cases , and if the constraints of court supervision are inadequate in regard to the functions set out in Article CARDINAL , the detention on remand may be ordered or continued :

CARDINAL where the detention on remand of the accused is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims , or collusion between the accused and accomplices ;

CARDINAL where this detention is necessary to preserve public order from the disturbance caused by the offence or to protect the accused , to put an end to the offence or to prevent its repetition or to ensure that the accused remains at the disposal of the judicial authorities .

( An Act of DATE expressly provided that Article CARDINAL was to be applicable to more serious criminal cases ( matière criminelle ) . )

acknowleged by the accused ’s signature in the file of the proceedings .

As regards more serious criminal offences , detention is prescribed by warrant , without a prior order .

The investigating judge shall give his decision in chambers , after an adversarial hearing in the course of which he shall hear the submissions of the public prosecutor , then the observations of the accused and , if appropriate , of his counsel .

" Whatever the classification of the offence , the accused or his lawyer may lodge at any time with the investigating judge an application for release , subject to the obligations laid down in the preceding Article [ namely : the undertaking of the person concerned " to appear whenever his presence is required at the different stages of the procedure and to keep the investigating judge informed as to all his movements " ] .

The investigating judge shall communicate the file immediately to the public prosecutor for his submissions . He shall at the same time , by whatever means , inform the party seeking damages who may submit observations . ...

The investigating judge shall rule , by an order giving specific grounds under the conditions laid down in LAW , not DATE following the communication to the public prosecutor .

Where an order is made releasing the accused , it may be accompanied by an order placing him under court supervision .

[ The indictments division ] shall , when dealing with the question of detention , give its decision as speedily as possible and not later than DATE [ CARDINAL since DATE ] after the appeal provided for in LAW , failing which the accused shall automatically be released , except where verifications concerning his application have been ordered or where unforeseeable and insurmountable circumstances prevent the matter from being decided within the time - limit laid down in the present Article . "

" The criminal division hearing an appeal on a point of law against a judgment of the indictments division concerning detention on remand shall rule within DATE of the file ’s reception at ORG , failing which the accused shall automatically be released .

The appellant or his lawyer shall , on pain of having his application dismissed , file his memorial setting out the appeal submissions within DATE of the file ’s reception , save where exceptionally the president of the criminal division has decided to extend the time - limit for DATE . After the expiry of this time - limit , no new submission may be raised by him and memorials may no longer be filed .


The applicant is a NORP national born in DATE and residing in GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the applicant and account being taken of the information provided by the parties ( Rule CARDINAL § CARDINAL ( a ) of LAW CARDINAL § CARDINAL ( a ) of ORG ) , may be summarised as follows .

At TIME on CARDINAL DATE the applicant was implicated in a fight in a TIME bar in GPE and was beaten by PERSON , the private security guard at the bar . The applicant claims that at some point he fell and lost consciousness and that he does not remember clearly the events during the remaining part of the night . He remembers that at TIME he was on the LOC of the district police , third district of GPE ( LOC ) , and that soon thereafter he went back home by taxi .

When the applicant was examined at ORG ( PERSON болница ) at TIME that day , the doctors found that he had a rupture in the small intestines with a resulting haemorrhage in the abdominal area , QUANTITY of blood having been found therein . Also , the applicant had suffered from peritonitis . Moreover , he had received a blow on the head with a resulting concussion and also had several bruises on his face and chest . The applicant underwent surgery without which his life would have been in danger .

Following the incident criminal proceedings were instituted against the private security guard . The applicant ’s requests for the institution of criminal proceedings against police officers were refused .

The procedural steps in all relevant proceedings , the applicant ’s allegations , and the findings of the prosecutors , may be summarised as follows .

Immediately after the incident , on CARDINAL and DATE , written statements were taken from CARDINAL witnesses and also from QUANTITY police officers , who had been dispatched to the scene upon a call from the bar .

On DATE the local ORG ( ORG ) opened ex officio preliminary investigation proceedings ( дознание ) against PERSON , the private security guard . In these proceedings several witnesses were questioned , some of them repeatedly . The applicant was also heard . PERSON was initially questioned as a witness . He was then charged with bodily assault and again questioned . A confrontation between the applicant and PERSON was organised .

PERSON , the bar tender , and PERSON , a waitress , testified that the applicant had entered the bar at around midnight and , in the course of the following TIME , had drunk CARDINAL centilitres of cognac . At TIME he had insisted to be served tea although he had been told that the bar had closed . Irritated by the invitations to leave the bar he had thrown a serving tray on the ground . When PERSON , the security guard , had then tried to lead him out of the bar , the applicant had seized a chair and had tried to hit PERSON There had followed a fight between the CARDINAL . A glass table had been broken . PERSON had finally managed to tie the hands of the applicant . PERSON had in the meantime called a friend , a taxi driver , to come and help . Upon his arrival the taxi driver had called the police . The police had arrived and had called for an ambulance which had taken the applicant .

The taxi driver , who was also questioned , stated that upon his arrival at the bar he had seen the applicant lying on the ground and had called the police .

PERSON pleaded guilty but emphasised that he had acted in self defence . He confirmed the sequence of events as described by the bar tender and the waitress . PERSON testified that during the fight he had kicked the applicant in the stomach and that he had then hit him again in the stomach with his knee .

CARDINAL police officers , who had been dispatched to the scene , and the officer on duty at the police station reported in writing that at TIME a call from the bar had been received , alerting the police about the incident . Upon their arrival , officers PERSON , B. and A. , who had been patrolling the area , had found the applicant lying on the ground , his hands tied with a shirt , visibly seriously injured and drunk . They had then called for an ambulance which had arrived at TIME and had taken the applicant to the emergency unit of the local hospital . Officers T. , B. and A. had remained at the scene and had taken the written statements of CARDINAL witnesses . The applicant had stayed at the hospital until TIME At that time a police officer had visited the hospital and , having been told by Doctor PERSON , who had examined the applicant , that he had not been in need of hospitalisation , had brought him to the police station for questioning .

In his testimony the applicant stated that at TIME , while drinking cognac in the bar , he had suddenly lost consciousness . He could not remember whether he had been hit . He had regained consciousness in TIME , in a cell at the police station . A police officer had told him that he had been seen by a doctor during TIME and had then brought him to another officer . The latter had considered that the applicant had not been fit for questioning and had called a taxi for him . A summons for questioning on the following DATE had been given to the applicant .

On DATE the applicant was examined by a forensic doctor . He found a cut on the applicant ’s head , which had been surgically treated and bruises of purple - bluish colour around the left eyebrow , the eyelids , the nose and the chin . There was also a superficial cut of the skin of the cheek CARDINAL cm long and a CARDINAL PERSON long cut on the upper lip . The rim of a tooth had been broken . Several small cuts were found on the palm and a finger of the applicant ’s left hand . Bruises were also found on the chest and the left side of the waist . The forensic expert concluded that the injuries must have been caused on CARDINAL DATE , as stated by the applicant . Another medical opinion , ordered in the course of the investigation , found , inter alia , that there was no indication of a complete loss of consciousness having occurred as a result of the injuries .

On DATE the preliminary investigation was completed . The investigator proposed to the competent prosecutor to indict PERSON

On DATE ORG ordered the discontinuation of the criminal proceedings against Mr. PERSON

Based on the evidence collected in the course of the investigation it was established inter alia that the applicant had been heavily drunk and had attacked Mr. PERSON when he had attempted to lead him out of the bar ; that Mr. PERSON had reacted by kicking the applicant in the abdominal area and that a fight had followed . At some point a taxi driver had called the police who had then called an ambulance .

The prosecutor concluded from these findings that PERSON , albeit having acted in self- defence , had administered blows which had not been strictly necessary to counter the attack . PERSON had thus caused bodily harm of medium level gravity , temporarily endangering the applicant ’s life . Since under the relevant law bodily harm caused in such circumstances was a crime punishable by way of private prosecution , it was unnecessary to continue the public prosecution in the case .

It appears that at least until DATE the applicant had not mentioned any suspicion on his part that he might have been beaten by the police .

On DATE he wrote to ORG ( Окръжна Βоенна Прокуратура ) requesting an investigation against the police . On DATE he appealed to ORG ( PERSON ORG ) against the discontinuation of the criminal proceedings against PERSON In these submissions he stated , inter alia , that he had decided to verify himself certain facts about the events in TIME CARDINAL DATE and that he had sought information from ORG and from the local ambulance service . The applicant enclosed medical certificates reflecting entries in the registers of ORG and of the ambulance service .

The register of the ambulance service recorded that a sergeant PERSON from the police had called on DATE at CARDINAL and had asked for an ambulance to be dispatched to the bar where the fight had taken place that TIME . According to the certificate the ambulance had arrived at CARDINAL at the bar . The applicant had been examined on the spot by Doctor PERSON from the ambulance service . Doctor PERSON had noted that the applicant had received a blow on the head with a resulting concussion and also that there had been an appearance of food poisoning . The certificate further recorded that the applicant had been brought by the ambulance to the urgent surgery unit at ORG , to Doctor PERSON The ambulance had then returned to the LOC of the ambulance service , at TIME

The records of the urgent surgery unit of ORG revealed that the applicant had been brought there and had been examined by Doctor PERSON The certificate stated that the applicant had been injured in the head which had necessitated stitching up , performed by Doctor PERSON There had been no indication of an acute abdominal condition . The applicant ’s arrival had been recorded as having happened at TIME on DATE . The preceding record in the register was for the examination of PERSON TIME The entry which followed the registration of the applicant ’s arrival was for PERSON , who had been admitted at TIME

The register of the ambulance service did not mention any stitching on the applicant ’s head having been found when he had been examined by Doctor PERSON at TIME

On the basis of these certificates , and referring to the findings of the forensic examination of CARDINAL DATE ( see above ) , the applicant claimed that it had been apparent that he had been beaten for a second time following his visit to the urgent surgery unit of ORG at TIME and that this had been done by the police in whose hands he had been at that time . The applicant considered that after his examination by Doctor PERSON at TIME he must have been transported back to the bar and beaten again , whereupon an ambulance had been called . The applicant accordingly requested the reopening of the investigation or the transmission of the file to ORG , which was competent to open criminal proceedings against police officers .

On DATE ORG refused to reopen the criminal proceedings , stating that the applicant could bring a private prosecution action in court and that the facts as regards PERSON had been established . Insofar as the applicant had made new allegations these had been within the competence of ORG . Upon the applicant ’s appeal this decision was confirmed on DATE by ORG ( Главна Прокуратура ) .

In view of the applicant ’s allegations that he had been beaten by police officers the file was transmitted to ORG . ORG conducted a preliminary inquiry ( предварителна проверка ) . CARDINAL police officers were questioned . They confirmed their testimony given during the investigation against PERSON and added that the applicant had not been beaten by the police . They also stated that the applicant had not been put in a cell at the police station , but had waited for a while in the corridor .

On DATE the opening of criminal proceedings against the police officers was refused . The decision stated that the applicant had been beaten by PERSON , that he had been brought to the hospital and that the QUANTITY police officers questioned had denied having beaten the applicant . Furthermore , the applicant having been drunk and in a helpless state , it was illogical to consider that using force against him could have become necessary .

On DATE the applicant appealed against this decision to ORG ( NORP на въоръжените сили ) stating inter alia that the facts had not been clarified , that he had not been questioned and that Doctors PERSON and NORP had not been questioned either . ORG replied that they had taken into account the applicant ’s testimony given in the course of the investigation against PERSON

By decision of DATE a prosecutor of ORG dismissed the appeal stating that the witnesses examined in the course of the criminal proceedings against PERSON , PERSON own admissions , and the applicant ’s testimony showed that all injuries had been caused by PERSON

On DATE the applicant appealed against this decision . The appeal was examined on the merits and dismissed on DATE by decision of a senior prosecutor at ORG who in substance repeated the findings of the lower prosecutor . He stated , inter alia , that the applicant ’s allegations were devoid of any serious foundation .

None of the decisions addressed the applicant ’s allegation that he had been brought to the hospital twice during TIME . Nor did any of the decisions deal with the applicant ’s request that Doctors PERSON and NORP be questioned .

On DATE the applicant instituted private prosecution proceedings against PERSON The ORG heard witnesses , including Doctors NORP and PERSON and the police officers involved , and collected other evidence .

By judgment of CARDINAL DATE PERSON was convicted of bodily assault committed in circumstances of overstepping the necessary defence against an attack . He was acquitted insofar as it had been alleged that he had also caused a loss of consciousness , as it had not been proven that the applicant had lost consciousness at any moment . PERSON was ordered to pay CARDINAL old NORP levs ( CARDINAL ORG ) to the applicant and a fine .

ORG found , inter alia , that after the call for an ambulance the applicant had been seen by Doctor PERSON who had noted a head injury and the applicant ’s intoxication . Doctor PERSON , who had seen the applicant at the hospital , had treated the wound on the applicant ’s head and had examined his general state of health . He had not detected an acute abdominal condition . That had been diagnosed later , when the applicant ’s condition had deteriorated .

ORG further found that there were no contradictions arising from the evidence in the case , including all medical certificates . It rejected PERSON assertion that it had been unclear whether the applicant ’s injuries had been caused by him .

The applicant did not appeal . Upon the appeal of PERSON , on DATE ORG quashed ORG judgment as it found that the amount of the fine had been unclear , different figures having been mentioned in the operative part and in the reasoning of the judgment . The proceedings are pending before ORG , where a hearing was listed for DATE .


Preliminary objection rejected (abuse of process);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 25-1;Violation of P1-1;No violation of Art. 14;No violation of Art. 18;Not necessary to examine Art. 3;Not necessary to examine Art. 5;Not necessary to examine Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Costs and expenses award - Convention proceedings

ORG The facts are based on the ORG 's findings of fact as set out and developed in its report of CARDINAL DATE .

ORG Since DATE , serious disturbances have raged in the South - East of GPE between the security forces and the members of the ORG ( ORG of Kurdistan ) . This confrontation has so far , according to the ORG , claimed the lives of CARDINAL civilians and CARDINAL members of the security forces . It appears from information submitted by the applicants and by the amicus curiae that a large number of villages , estimated at CARDINAL , have been destroyed and evacuated during this conflict ( see paragraph CARDINAL above ) .

ORG Since DATE , CARDINAL of the CARDINAL provinces of south - eastern GPE have been subjected to emergency rule which was in force at the time of the facts complained of .

ORG The applicants ( see paragraph CARDINAL above ) , NORP nationals , were residents in the village of GPE in the NORP district of the province of GPE . The village of GPE and the surrounding areas have been the centre of intense NORP terrorist activity . It is undisputed that the ORG launched serious attacks on ORG on DATE or DATE , and the neighbouring village of GPE on DATE . As a result of the first attack , CARDINAL Kelekçi villagers were killed and CARDINAL others wounded . The second attack on DATE was directed at the GPE gendarme station , which was destroyed , with CARDINAL gendarme being killed and CARDINAL others injured . Thereafter security forces were reinforced in the area and extensive searches were carried out for terrorists . The applicants alleged that on DATE ORG security forces launched an attack on the village of GPE , burnt QUANTITY houses , including their homes , and forced the immediate evacuation of the entire village .

ORG The Government categorically denied these allegations , contending that the houses had been set on fire by the ORG . Initially they stated that the village had merely been searched and that no damage had been caused . Subsequently , it was maintained that no soldiers had entered GPE on DATE , and , if they had been in the vicinity , they had stopped on the outskirts of the village to take a rest .

ORG On DATE houses in GPE were set on fire and the village was almost completely destroyed . It is disputed , however , whether this destruction was caused by terrorists or by security forces .

The Commission established that QUANTITY houses , including those of the applicants , were destroyed or seriously damaged by fire not long after the attack on the GPE gendarme station on DATE . Although noting that there was some uncertainty as to the exact date when the QUANTITY houses were burnt , it accepted the applicants ' claims that this occurred on DATE .

The ORG found that no proper investigation was carried out at the domestic level regarding the destruction of the QUANTITY houses at GPE on DATE either immediately after the event or thereafter . Apparently , a gendarmerie report of CARDINAL DATE dealt with events at GPE . However , the Commission concluded that this report and other " incident reports " which had been submitted to ORG at ORG , in so far as they concerned the destruction of the QUANTITY houses , did not result in any investigation of the facts and involved no attempt to establish responsibility for the destruction .

ORG It was also established by the Commission that , although the applicants had lost their homes , no one gave proper advice to them or , apparently , to the other displaced ORG villagers , on how to obtain compensation for the loss of their homes or other forms of assistance . Petitions were made by the mayor of the village and statements were given to several ORG officials . However , no authority took up the applicants ' problems or referred them to the competent body .

ORG There was also evidence before the Commission that , after the case had been brought to it , certain of the applicants , or persons who were believed to be applicants such as ORG and PERSON ( see paragraphs CARDINAL below ) , had been questioned by the ORG authorities about their applications to the ORG . ORG had been provided with a filmed interview with these QUANTITY persons , during which they were asked about the case in GPE .

ORG As regards the events on DATE ( see paragraph CARDINAL above ) , the Commission noted that the investigation reports and the recorded statements by villagers which had been submitted to it by the respondent Government were dated DATE , i.e. DATE after the destruction of the QUANTITY houses . In these statements they placed the blame on the ORG for setting fire to the houses . At that time , a number of villagers had been heard by the authorities about events at GPE . It was observed that this inquiry had taken place at a time when the village had been further damaged on DATE , and after the ORG had communicated the applicants ' complaints to the Government for observations and decided to hold an oral hearing in the case .

It was further noted that the investigation reports of DATE were based on an exploratory mission undertaken by helicopter on DATE . During this mission , the investigating team did not land at GPE but only observed the village during low - level flights . The report stated that all the houses at ORG had collapsed and that there were no inhabitants in the village .

ORG As to the events of DATE , the ORG found that a team of gendarmes had heard various villagers in DATE . However , in their recorded statements no reference was made by the villagers to the incident of CARDINAL DATE . The statements were examined by ORG in order to determine whether they should affect the ORG 's findings on questions of fact in respect of the incident complained of . In its report of CARDINAL DATE it concluded as follows :

" CARDINAL . In this respect , it is striking that the various statements by the villagers are drafted in a stereotyped form and have on the whole the same contents ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE ) . Most of them describe the events of DATE in an almost identical manner . In the recorded statements the villagers refer to the fact that the terrorists had made a previous attack on the village during which CARDINAL persons had been killed and CARDINAL others injured , this general formula being used even in the statements of the applicants PERSON and PERSON whose close relatives , including the latter 's father , had been killed on that occasion . The statements also contain a declaration about the villagers ' respect for the ORG and their willingness to help the ORG . All in all , the recorded statements give the impression of having been drafted in a uniform manner by the gendarmes rather than reflecting spontaneous declarations by the villagers . This may also explain why some of these statements are in complete contradiction to what the same persons have stated on other occasions ( see PERSON statements referred to in DATE and CARDINAL above , PERSON statements referred to in DATE and DATE above , and PERSON statements referred to in CARDINAL , CARDINAL and CARDINAL above ) . Thus it seems highly doubtful whether the recorded statements to the gendarmes can be said to reflect the information that the villagers intended to convey in regard to the events at issue . "

The Commission concluded that it attached no particular weight to the statements of the villagers in DATE . It further noted the inadequacy of any real investigations at the domestic level which could be of assistance in elucidating the events on DATE . It concluded that the absence of any such investigations was in itself a disturbing element in regard to a serious matter such as the destruction of the homes of a considerable number of persons .

ORG In the absence of any relevant investigations at the domestic level , the Commission based its finding on the evidence which had been given orally by various persons or submitted in writing in the course of the proceedings before it .

The Commission concluded that there was no evidence of any conspiracy between the villagers to accuse the ORG of the burning of the houses in order to obtain compensation or for any other purpose .

It also noted that , while there was evidence that the security forces were in the village , none of the witnesses stated that any stranger had been seen at ORG on DATE . It was unlikely that terrorists would have set fire to QUANTITY houses in the village without anyone having noted their presence . Nor was there any other evidence showing that terrorists had been at GPE on DATE .

ORG Following an assessment of the evidence , the Commission found it convincingly shown that security forces - presumably under the strain of intense terrorist activity in the area - were responsible for the burning of the CARDINAL Kelekçi houses on DATE . However , it had not been shown that the applicants were forcibly expelled from ORG , but the loss of their homes caused them to abandon the village and move elsewhere .

ORG The Government have submitted that the following domestic law is relevant to the case .

LAW provides as follows :

" All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . "

ORG The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of " social risk " . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

ORG The principle of administrative liability is reflected in the additional LAW no . CARDINAL of DATE on ORG , which provides :

" ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . "

ORG LAW makes it a criminal offence

- to deprive someone unlawfully of his or her liberty ( LAW generally , LAW ,

- to oblige someone through force or threats to commit or not to commit an act ( Article CARDINAL ) , - to issue threats ( Article CARDINAL ) ,

- to make an unlawful search of someone 's home ( ORG CARDINAL and CARDINAL ) ,

- to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,

- to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or

- to damage another 's property intentionally ( Articles CARDINAL et seq . ) .

ORG For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

ORG If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected persons ' hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and the Procedure of Military Courts ) .

ORG If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ( PERSON ) ; a refusal to prosecute is subject to an automatic appeal of this kind .

ORG Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

ORG Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

Damage caused by terrorist violence may be compensated out of ORG .

Articles CARDINAL to CARDINAL of the LAW provide for fundamental limitations on constitutional safeguards .

ORG Provisional LAW provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between CARDINAL DATE and DATE . That includes PERSON no . CARDINAL on ORG of CARDINAL DATE , under which decrees have been issued which are immune from judicial challenge .

ORG Extensive powers have been granted to ORG of ORG by such decrees , especially Decree no . CARDINAL , as amended by Decrees nos . CARDINAL and CARDINAL , and Decree no . CARDINAL .

ORG Decree no . CARDINAL modifies the application of PERSON no . ORG , the Anti - Terror Law ( DATE ) , in those areas which are subject to the state of emergency , with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils . According to ORG , these councils are made up of civil servants and have been criticised for their lack of legal knowledge , as well as for being easily influenced by the Regional Governor or ORG , who also head the security forces .

ORG LAW no . CARDINAL of DATE provides as follows :

" No criminal , financial or legal responsibility may be claimed against ORG or a NORP Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . "

ORG According to the submissions of the applicants , this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages , to impose residence restrictions and to enforce the transfer of people to other areas . Damage caused in the context of the fight against terrorism would be " with justification " and therefore immune from suit .


CASE OF KACHERSKAYA AND FROLOVA v. UKRAINE

Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The first applicant was born in DATE ; the second applicant was born in DATE . They live in GPE , GPE region , GPE .

On DATE ORG awarded the first applicant CARDINAL NORP hryvnas ( ORG ) in salary arrears against ORG department for education .

On DATE the same court awarded the first applicant ORG CARDINAL in compensation for recreation leave allowance against the same defendant .

On DATE ORG awarded the second applicant ORG CARDINAL.CARDINAL in salary arrears against ORG department for education . On DATE , the same court awarded the second applicant ORG CARDINAL in compensation for recreation leave allowance against the same defendant .

In DATE , the ORG informed the applicants that the judgments in their favour could not be enforced due to lack of the funds in the ORG budget , and the property of the debtor could not be attached since it was a public institution .

The judgments given in favour of the applicants remain unenforced .

The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .