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

On DATE , the applicant was arrested and taken into police custody ( inverzekeringstelling ) on suspicion of having committed rape , attempted manslaughter and/or intentional infliction of grievous bodily harm in that he – having twisted the victim ’s arm behind the latter ’s back and constrained the victim – had forcibly inserted a wooden ladle in the victim ’s anus , resulting in a perforation of the colon . At the material time and for DATE , the victim , the applicant and the latter ’s wife had been engaged in a longstanding tripartite relationship .

On DATE , after having heard the applicant , the investigating judge ( rechter - commissaris ) ordered the applicant ’s detention on remand ( inbewaringstelling ) for a period of DATE . The reasons stated by the investigating judge were :

“ It appears from the case - file that there are serious indications against the suspect ( there is more than a mere suspicion ) .

There are weighty reasons of public safety that warrant detention on remand , namely :

detention on remand is necessary because it concerns an act which , according to the legal definition , attracts a prison sentence of DATE or more whereas in addition this act has seriously rocked the legal order ( the act is of an extraordinarily grave nature ) ; ”

On DATE , after having heard the applicant , ORG ( arrondissementsrechtbank ) ordered the applicant ’s further detention on remand ( gevangenhouding ) for DATE , holding :

“ ORG considers that , after examination , it has appeared that the suspicion , indications and ground , which have led to the order for detention on remand ( bevel tot bewaring ) , currently still exist . ”

The applicant filed an appeal against the decision of DATE with the ‘ s - ORG ( gerechtshof ) . The applicant did not challenge the existence of serious indications against him but argued that , given the context in which the facts had occurred , his release would not give rise to any social unrest which would justify keeping him in pre - trial detention . In his opinion , nobody would be shocked if he was released from pre - trial detention , as little publicity had been given to the criminal investigation and his arrest . The public prosecutor argued that the release of a suspect of rape always caused upheaval in society and certainly in this case where the victim had suffered considerable harm . The applicant ’s appeal was dismissed on DATE by the ‘ s - ORG ( gerechtshof ) . It held that the argument raised by the applicant failed to appreciate that his release could get wider publicity in the suspect ’s surroundings , thus rocking the legal order .

In the meantime CARDINAL further prolongations DATE each – of the applicant ’s detention on remand were ordered by ORG on DATE and DATE , respectively . Both times ORG based its decision on the grounds given in its decision of DATE .

By judgment of DATE , following hearings held on DATE and DATE , ORG convicted the applicant of rape . On the basis of reports drawn up by a psychiatrist and a psychologist who had examined the applicant , ORG found that the applicant was suffering from an Attention Deficit Hyperactivity Disorder ( ADHD ) , an alcohol addiction and an anti - social personality disorder and concluded that , at the time of the commission of the offence , the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree . In this light , ORG decided to sentence the applicant to CARDINAL months’ imprisonment , of which DATE were suspended pending a CARDINAL years’ probation period , less the time spent in pre - trial detention . In addition , it imposed a special condition ( bijzondere voorwaarde ) within the meaning of Article CARDINAL of LAW ( PERSON ) to the effect that the applicant was to comply – during DATE with directives given to him by the local section of the GPE probation and social rehabilitation service ( reclassering ) , also if this would entail treatment for substance abuse . It lastly ordered the applicant to pay the victim , who had joined the proceedings as an injured civil party , CARDINAL in compensation . Although the applicant could have filed an appeal against this judgment , he did not do so .

LAW ; “ ORG ” ) defines pre - trial detention ( voorlopige hechtenis ) as deprivation of liberty pursuant to an order for detention on remand ( inbewaringstelling ) , a warrant for the taking into pre - trial detention ( gevangenneming ) or an order for further detention on remand ( gevangenhouding ) . The statutory rules governing pre - trial detention are set out in ORG CARDINAL of the ORG .

LAW ORG reads as follows :

“ CARDINAL . An order for pre - trial detention can be issued in case of suspicion of :

( a ) an offence which , according to the law , carries a punishment of imprisonment of DATE or more ;

( b ) one of the offences defined in Articles CARDINAL , CARDINALc § CARDINAL , CARDINALd § CARDINAL , LAW § CARDINAL , QUANTITY , CARDINAL § CARDINAL , CARDINALb , CARDINAL , CARDINAL , CARDINALa , CARDINAL , ORG , CARDINALc , CARDINAL and CARDINAL and CARDINAL of the Criminal Code ;

( c ) one of the offences defined in :

- LAW , part b , of the DATE Road Traffic Act ( ORG ) ;

- LAW ( GPE buitengewone bevoegdheden burgerlijk gezag ) ;

- Articles CARDINAL , CARDINAL § CARDINAL and DATE of ORG ( Conscientious Objectors ) Act ( GPE militaire dienst ) ;

- LAW ( Wet op de kansspelen ) ;

- LAW ( PERSON ) ;

- LAW ( QUANTITY wapens en munitie ) ;

- LAW ( LANGUAGE toezicht effectenverkeer ) .

The order can further be issued if no permanent address or place of residence of the suspect in the GPE can be established and he is suspected of an offence within the jurisdiction of the regional courts and which , according to the law , is punishable by imprisonment .

The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect . ”

Article PERSON of the ORG reads :

“ CARDINAL . An order based on LAW can only be issued :

a. if it is apparent from particular behaviour displayed by the suspect , or from particular circumstances concerning him personally , that there is a serious danger of absconding ;

b. if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty .

For the application of the preceding paragraph , only the following can be considered as a serious reason of public safety :

- CARDINAL . if it concerns suspicion of commission of an act which , according to the law , carries a punishment of imprisonment of DATE or more and the legal order has been seriously rocked by that act ;

- CARDINAL . if there is a serious risk the suspect will commit an offence which , according to the law , carries a prison sentence of DATE or more or whereby the security of the ORG or the health or safety of persons may be endangered , or give rise to a general danger to goods ;

- CARDINAL . if it concerns suspicion of CARDINAL of the offences defined in ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINALa , CARDINAL , ORG , CARDINAL , CARDINAL , DATE or CARDINAL of the Criminal Code , whereas DATE have passed since DATE on which , on account of CARDINAL of these offences , the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty , a measure entailing restriction of liberty or community service , and there is further a serious risk that the suspect will again commit CARDINAL of those offences ;

- CARDINAL . if pre - trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect .

An order for pre - trial detention shall not be issued if there are serious prospects that , in case of a conviction , no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect , or that he , by the enforcement of the order , would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure . ”

Orders for pre - trial detention are immediately enforceable ( LAW ORG ) . Pre - trial detention in the form of an order for detention on remand of a suspect may be issued by the investigating judge for a maximum duration of DATE ( Articles CARDINAL and CARDINAL of the ORG ) .

Under LAW ORG , a subsequent prolongation of pre - trial detention may be ordered by ORG in the form of an order for further detention on remand for a maximum duration of DATE . In case the trial proceedings have not started within the CARDINAL days’ validity of an order for further detention on remand , ORG can prolong it twice , each time for a maximum of DATE ( LAW ORG ) .

LAW ORG reads :

“ An order for pre - trial detention may be lifted by ORG . It may do so of its own motion or upon the request of the suspect , or DATE in so far as it concerns an order for ... further detention on remand DATE upon a proposal from the investigating judge or a request by the public prosecutor . ”

Article CARDINAL of LAW , in so far as relevant , states :

“ CARDINAL . Within a maximum of DATE after its execution , the suspect may file an appeal with ORG against a decision of ORG ordering further detention on remand ...

Within the same time - limit , the suspect may file an appeal against an extension of an order for further detention on remand , but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order ... ”

Article QUANTITY of the ORG , in so far as relevant , provides :

“ CARDINAL . The suspect , who has requested for the first time to suspend ( schorsing ) or to lift ( opheffing ) an order for pre - trial detention , may file an appeal with ORG against a negative decision on that request . The suspect , who has filed an appeal against a negative decision on a request for suspension , can not subsequently file an appeal against a negative decision on a request to lift a pre - trial detention order . The suspect , who has filed an appeal against a negative decision on a request to lift a pre - trial detention order , can not subsequently file an appeal against a negative decision on a request for suspension of pre - trial detention . ”

The offence of rape , as defined in LAW ) , attracts a prison sentence not exceeding DATE or a heavy fine .


Mr ORG was born in GPE in DATE and is a NORP national . In DATE he went with his mother , his CARDINAL sisters and his brother to join his father in GPE . He has been living in GPE since enforcement on CARDINAL DATE of an order for his permanent exclusion from NORP territory .

The applicant went to school in GPE , where he also worked for DATE .

NORP In DATE a network of traffickers in heroin imported from the GPE was discovered in the LOC ( LOC ) . CARDINAL people , including the applicant , were committed for trial at FAC charged with consumption of and trafficking in prohibited drugs .

On DATE the Saint - Etienne Criminal Court sentenced Mr ORG to CARDINAL GPE imprisonment , to run concurrently with another sentence of CARDINAL months’ imprisonment imposed by ORG on DATE for dealing in heroin , and ordered him to pay customs fines . Applying LAW , it further imposed permanent exclusion orders on Mr ORG and CARDINAL of his co - defendants and a DATE exclusion order on a fourth .

On appeal by the prosecution , ORG , in a judgment of CARDINAL DATE , increased the applicant ’s sentence to CARDINAL years’ imprisonment , with ineligibility for parole during the first CARDINAL thereof , and confirmed the permanent exclusion order . The reasons for the judgment were set out as follows :

“ In DATE , in the course of an inquiry aimed at breaking up a heroin - trafficking network operating in FAC , the police arrested [ the applicant ] , who had been named as a supplier by various users .

During questioning by the police and the investigating judge ORG admitted that he had been using heroin for DATE and that he injected himself with up to QUANTITY per day . According to his statements , he obtained his supplies from [ K. , A. and NORP ] , who obtained their supplies in GPE .

Again according to his own statements , ORG had been peddling heroin since DATE to finance his own consumption . He even stated at CARDINAL interview that each time he bought QUANTITY he sold on CARDINAL .

The various users named in the charge as buyers from ORG confirmed during the course of the inquiry that they had obtained varying quantities of heroin from him throughout the relevant period , namely from DATE to DATE .

According to the statements made by a number of these buyers , ORG was known to drug addicts in FAC as a supplier and users could meet him in a bar in Place PERSON , where the transactions took place .

ORG was found guilty of selling heroin to [ B. ] in a judgment of GPE [ Criminal ] Court of DATE , which has become final . There is therefore no need to rule on that offence . As regards the remaining charges , and in view of the extreme seriousness of the accused ’s conduct , the ORG upholds the guilty verdict referred from the court below and sentences ORG to CARDINAL years’ imprisonment , to run concurrently with the DATE sentence passed on DATE by ORG ...

The ORG orders [ the applicant ’s ] permanent exclusion from NORP territory .

On DATE , pleading his family ties in GPE , Mr ORG lodged a first application to have the order permanently excluding him from NORP territory rescinded .

In a judgment of CARDINAL DATE ORG declared the application inadmissible on the ground that under LAW CARDINAL - CARDINAL of LAW an alien permanently excluded from NORP territory could not apply for the relevant order to be rescinded .

Following an attempted robbery , the applicant DATE who had been released on DATE – was arrested and , on DATE , detained under a committal warrant . For this offence and the fact that he had stayed in GPE in spite of the permanent exclusion order imposed on him , on DATE FAC sentenced him to DATE imprisonment .

On DATE Mr ORG again applied to have the exclusion order rescinded . He submitted that the length of time he had been living in GPE brought him into a category of convicted aliens on whom , under LAW , in its new version as amended by the Law of CARDINAL DATE , an exclusion order could not be imposed . He also argued that on account of his family ties in GPE the exclusion order was in breach of LAW .

ORG refused this application on DATE in a judgment containing the following reasons :

“ The applicant has submitted not only that the order permanently excluding him from NORP territory should be rescinded in the light of LAW ... but also that , as a matter of fact , he has lived in GPE since DATE and the whole of his family lives here too .

While Mr ORG application has become admissible since the repeal by the PERSON of DATE ... of the last paragraph of LAW CARDINAL - CARDINAL of LAW , the applicant can not rely on the substantive provisions of that legislation , which are not retrospectively applicable to convictions that became final , as in this case , before its entry into force .

His application must accordingly be dealt with on its own merits , on the basis of LAW .

Mr ORG has adduced no new evidence since his conviction on CARDINAL DATE .

He can not argue , as an unmarried man , that his exclusion from NORP territory is an intolerable interference in his family life within the meaning of LAW ...

The offences he has committed , after CARDINAL previous convictions for drug offences , make his presence on NORP territory dangerous for public health and public order .

On DATE ORG ) dismissed an appeal on points of law lodged by the applicant on DATE against the judgment of ORG on the ground that Mr ORG statement of the grounds of appeal did not bear his signature .

On DATE Mr ORG made a third application requesting ORG to rescind the exclusion order . In support of his appeal – which was based on LAW he pleaded changes in his personal circumstances , namely the fact that he was living with a NORP , PERSON , and was the father of the child she had given birth to on DATE .

On DATE the social worker at the prison where Mr ORG was detained wrote to his lawyer in the following terms :

In reply to your letter of CARDINAL DATE concerning the steps taken over DATE regarding recognition of the child of Mr ORG , currently imprisoned , for whose social welfare I am responsible , I can inform you that , at the request of Mr ORG and [ PERSON , his cohabitant :

In DATE I prepared the paperwork for a prenatal recognition of paternity and sent the file both to the town hall of PERSON and to ORG so that the appropriate submissions could be made to ORG .

As this application had been unsuccessful and the child had been born – on DATE – I compiled a new recognition of paternity file and sent it on DATE to ORG at the Saint - Etienne tribunal de grande instance .

On DATE the exclusion order was enforced .

On DATE , at FAC in Fez , Mr El Boujaïdi recognised paternity of PERSON child .

In a judgment of DATE ORG refused the application to have the exclusion order rescinded on the following grounds :

“ Mr ORG lawyer has produced various documents showing that Mr ORG met PERSON in DATE , that is at a date when he should not have been present on NORP territory . Their child was born on DATE . The circumstances he relies on therefore came into being at a time when he was permanently excluded from NORP territory .

The exclusion order was imposed to penalise a dangerous trade in heroin . That being so , the ORG does not see fit to allow the present application .

Relying mainly on LAW and ORG case - law , the applicant appealed on points of law . In a judgment of CARDINAL DATE ORG dismissed the appeal on the following grounds :

“ The judgment under appeal shows that ORG , who is a NORP national , was sentenced , inter alia , to be permanently excluded from NORP territory for an offence against the dangerous drugs legislation , in a judgment of ORG of CARDINAL DATE , which has become final , and that by an application dated DATE he sought to have that exclusion order rescinded .

In rejecting that application ORG observed that the family circumstances on which the appellant relies came into being while he was permanently excluded from NORP territory . It further stated that the purpose of the additional penalty imposed on the appellant was to ‘ penalise a dangerous trade in heroin’ .

… Article CARDINAL of LAW does not prohibit limitations prescribed by law on the right to respect for family life , provided that they are necessary for , among other things , public safety , the prevention of disorder and the protection of health . That is the position in the present case .

It follows that the appeal , which amounts to a challenge to the ORG discretionary power under LAW , then in force , can not be allowed .

Article L. CARDINAL - CARDINAL of LAW formerly provided :

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

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

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

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

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

a convicted alien who is the father or mother of a NORP child resident in GPE , provided that he or she is vested with or shares parental authority over that child or provides for its needs ;

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

that he has been normally resident in GPE since reaching DATE at the most or for DATE ; or

that he has been lawfully resident in GPE for DATE .

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

LAW was repealed by Law no . CARDINAL of DATE .

Article CARDINAL of the Criminal Code provides :

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


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

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

On DATE the GPE Municipal State Attorney ’s ORG ( Općinsko državno odvjetništvo u GPE ) indicted the applicant in ORG ( PERSON kazneni sud u GPE ) on charges of failing to pay child maintenance for his CARDINAL children .

At a hearing on DATE the applicant pleaded not guilty and decided to remain silent and to not give any evidence . The judge conducting the proceedings informed the applicant of his obligation to inform the court if he were to move or change his place of residence . She also informed the applicant of the legal consequences if he failed to comply with this obligation , CARDINAL of which was that the judgment could be placed on the court ’s public noticeboard .

On DATE ORG issued a judgment by which it found the applicant guilty of failing to pay child maintenance for one child but acquitted him of the same charge in respect of the other child . The applicant was sentenced to CARDINAL months’ imprisonment , suspended for DATE on the condition that he compensate the injured party by paying the maintenance due within DATE . The judge conducting the proceedings publicly pronounced the judgment and informed the applicant of his right to appeal within DATE after he received a written copy of the judgment .

On DATE ORG ordered that the judgment be served on the parties .

On DATE ORG received a notice from the post office informing that court that the service of the judgment on the applicant had been unsuccessful . Service had been attempted on DATE , DATE and DATE but nobody had answered at the applicant ’s address . CARDINAL notices of attempted delivery had also been left for the applicant but he had never contacted the post office .

On DATE ORG ordered that service of the judgment was to be executed through the court ’s delivery service .

On DATE the applicant ’s children lodged an appeal with ORG ( Županijski sud u GPE ) against the first - instance judgment .

On DATE a notice from the court ’s delivery service was submitted to the judge conducting the proceedings informing her that service of the judgment on the applicant had remained unsuccessful . Service had been attempted on DATE , CARDINAL DATE , DATE and DATE but without success . The applicant ’s address had been visited in the morning and the evening and notices of attempted delivery had also been left for him but it had been impossible to serve the judgment on him .

The judge conducting the proceedings ordered that the judgment be placed on the court ’s public noticeboard . On an unspecified date in DATE the judgment was placed on the public noticeboard and after DATE it was presumed that the judgment had been served on the applicant .

On DATE the applicant was served with the appeal lodged by his children against the judgment of ORG .

On DATE the applicant submitted written observations in respect of the appeal .

On DATE ORG dismissed the appeal by the applicant ’s children and upheld the first - instance judgment , as a result of which it became final .

On DATE the judgment of ORG was served on the applicant . On DATE the applicant consulted and copied the case file of ORG .

On DATE ORG opened proceedings for revocation of the applicant ’s suspended sentence because he had failed to comply with the conditions set out in the judgment .

On DATE the applicant lodged a request with ORG asking that the stamped certificate stating that the judgment had become final be revoked on the grounds that the judgment had never been served on him . On an unspecified date he also lodged a request for the reopening of the proceedings , which was rejected by ORG on DATE .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , complaining that ORG had never decided on his request for the stamped certificate stating that the judgment had become final to be revoked . On DATE ORG declared the applicant ’s complaint inadmissible on the ground that the impugned decisions were not susceptible for the constitutional review .

At the time , the relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provided :

“ ( CARDINAL ) A court shall grant reinstatement to the prior state of affairs in order to file an appeal to a defendant who , for justifiable reasons , fails within a prescribed term to file an appeal against a judgment or a ruling on security or educational measures or on the confiscation of a monetary benefit , provided that the defendant submits a petition for reinstatement to the prior state of affairs within DATE following the removal of the cause of his failure to act within the term and that , at the same time as the petition , he lodges an appeal ...

( CARDINAL ) After a lapse of DATE from the date of failure , no petition for reinstatement to the prior state of affairs may be submitted . ”

“ ( CARDINAL ) Decisions and other documents shall as a rule be served by mail . Service may also be effected by an official of the authority which has rendered the decision or directly by such authority .

( CARDINAL ) If a party has not reported a change of address to a court or if the party can not be reached at the address that was previously given to the court or it is evident that he is evading receipt of a decision that is subject to appellate review other than a judgment imposing a sentence of imprisonment , the court shall put the decision on the court ’s public notice board . After the lapse of the term of appeal the decision shall become final . ”

( CARDINAL ) An indictment and a judgment or other decision for which the term of appeal begins to run when service occurs shall be served in person on a defendant who does not have defence counsel . Upon the defendant ’s request , a judgment or other decision shall be served on a person designated by him .

( CARDINAL ) If , with the exception of a judgment referred to in DATE , a decision or an appeal by the adverse party which is served for reply can not be served on a defendant because he has not reported a change of address or if it is evident that he is evading receipt of the decision , the court shall put the decision or the appeal on the court ’s public noticeboard and after the lapse of DATE it shall be deemed duly served .

( CARDINAL ) If a defendant who does not have defence counsel is served with a judgment imposing a sentence of imprisonment and this judgment can not be served at his present address , the court shall assign defence counsel to the defendant , who shall perform this duty until the new address of the defendant is determined . ... ”

“ ( CARDINAL ) When a defendant is examined for the first time , he shall be asked for his first name and surname ... The defendant shall be instructed that he is bound to appear upon a summons and to notify the court immediately of changes of his address , as well as of any intention to change his place of residence , and shall be warned of the consequences of failure to comply . ”


Preliminary objections dismissed (locus standi, strike-out request, abuse of the right of application, non-exhaustion of domestic remedies);Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - finding of a violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed

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

According to the applicant , from DATE he served a sentence in GPE correctional colony OX-CARDINAL/CARDINAL , Kursk Region ( учреждение ОХ-CARDINAL/CARDINAL ) . On his arrival at the colony , he was called to see the head of the colony , PERSON , who invited him to become a member of a so - called “ секция порядка ” ( literally , an “ order section ” , an informal category of prisoners who cooperated with the prison administration ) and to conclude a written agreement on cooperation with the colony ’s officials . The applicant refused . As a result of his refusal he was beaten by NORP , the deputy head of the correctional colony , PERSON , a colony official , and NORP , head of the security unit . The beating was continued by other colony officials , who stripped him naked and beat him with rubber truncheons . The applicant was then placed for DATE in a disciplinary cell , where the beating continued . On a number of occasions he was beaten in the presence of an official from ORG . The applicant complained about the events to ORG .

On DATE the institution of criminal proceedings was refused on the ground that “ special equipment ” had been used against the applicant in accordance with the law .

The applicant claimed to have been systematically beaten for writing complaints against the head of the correctional colony and the colony ’s administration to various authorities , and that he had then been forced to eat the complaints he had written . In particular , on DATE he was beaten with rubber truncheons and thrown to the ground , and an NORP dog was set on him . The dog mostly bit his hands , which he was using to cover his face . According to the applicant , the colony ’s doctor noted the bite marks . He alleged that he still had scars on his hands . The head of the correctional colony then threatened the applicant that if he wrote more complaints he would have to spend TIME in a cell with the dog .

During TIME DATE the applicant , together with CARDINAL other inmates , PERSON and PERSON , was taken to the office of prison official PERSON , who asked him to report on the situation in the correctional colony . The applicant responded that he was not in control of the situation . As a result of this reply he was beaten and escorted to a cell where , it appeared , other inmates had cut their veins and stomachs . As a protest against the actions of the colony ’s administration , the applicant also cut the veins on his right arm and , having found an electrode in LOC where repair work was being carried out , thrust it in his right side in an attempt to reach the lungs . According to the applicant , after he had inflicted these penetrating wounds on DATE , he was questioned for DATE and it was not until TIME that a physician pulled the electrode from his side ; however , the glass cap remained in his stomach . The surgeon examined the applicant later and noted that a foreign body was still in his stomach , but did not remove it .

On DATE the applicant and other inmates submitted to ORG applications for the institution of criminal proceedings against PERSON , the head of the correctional colony , colony officials NORP and NORP and others , on account of numerous instances of ill - treatment of prisoners . Criminal proceedings in case file no . DATE were instituted against CARDINAL prison officials , NORP and NORP , on account of the alleged beating of inmate PERSON . However , no criminal proceedings were instituted into the applicant ’s allegations as set out in his complaint to ORG , and he was not granted the status of a victim in the criminal proceedings .

According to the ORG , the applicant was held in GPE correctional colony OX-CARDINAL/CARDINAL from DATE to DATE . During this period the applicant repeatedly broke prison rules and on a number of occasions was seen by a psychologist , who diagnosed him as suffering from an emotionally unstable personality disorder .

On DATE , in the course of a routine search , the applicant was found to have forbidden items , namely CARDINAL metal dowels and CARDINAL razor blades . During the search and seizure of the items the applicant resisted the colony ’s officials . In particular , he pushed them , grabbed their clothes and insulted some of them . CARDINAL of the officials warned him that special equipment could be used against him if he continued behaving in such a way . Since the applicant refused to submit , CARDINAL of the officials used a rubber truncheon against him . After the incident the applicant was examined by a doctor who found abrasions on his back and soft body tissues .

On DATE the deputy prosecutor of GPE was informed of the incident and a report on the use of the special equipment was drafted . The report stated that the rubber truncheon had been used for TIME against soft body tissues . DATE the deputy prosecutor of the Kursk Region personally met the applicant , who told him that he had no complaints against the administration of the correctional colony OX-CARDINAL/CARDINAL and that the application of the special equipment had been justified .

On DATE the deputy prosecutor of the Kursk Region again met the applicant , this time in relation to the injuries he had self - inflicted on DATE while held in a remand prison ( GPE ) in Kursk , prior to his transfer to correctional colony OX-CARDINAL/CARDINAL . In a written statement the applicant explained that he had thrust an electrode into his left side in order to attract attention , as he had wanted to be moved to a correctional facility closer to his home . He also stated that he had no complaints against the administration of the remand prison .

On DATE the ORG received the applicant ’s complaint concerning the alleged beating following his arrival at correctional colony LOC .

In explanations given on DATE , colony officials PERSON , NORP , NORP and PERSON . and the deputy prosecutor of GPE stated that physical force had never been used against the applicant and he had never been threatened with its application .

Following an inspection , on DATE the prosecutor refused to institute criminal proceedings into the applicant ’s allegations of ill - treatment . He also found that special measures were lawfully applied against the applicant on DATE . An appeal against that decision lay with a higher prosecutor or a court .

The Government submitted that the applicant had not applied for medical aid in connection with the alleged ill - treatment on DATE . The authorities became aware of these allegations only after the application had been communicated by the ORG .

On an unspecified date the applicant sent a complaint to ORG of the Kursk Region . The complaint was received by ORG on DATE . The applicant alleged that since his arrival at correctional colony OX-CARDINAL/CARDINAL he had been regularly beaten by colony officials . He sought to institute criminal proceedings against them .

On DATE , following an inspection into the applicant ’s allegations , ORG of GPE of Kursk refused to institute criminal proceedings .

On DATE the Prosecutor of Kursk , who was responsible for supervising penitentiary facilities , quashed the decision and remitted the case for additional inspection .

NORP In the course of the initial and additional inspections the officials who were alleged to have beaten the applicant were questioned by ORG . In particular , the head of the colony , B. , in his statements on DATE and DATE submitted that the inmates , including the applicant , had not been beaten or subjected to degrading treatment and that he had never ordered the use of physical force against them . He regarded the ORG complaints as slanderous and aimed at destabilising the situation in the colony . Similar submissions were made by NORP on DATE and DATE , by NORP on DATE and by PERSON on DATE .

On DATE ORG of GPE of Kursk again refused to institute criminal proceedings . According to the findings of the inspection , the officials of colony OX-CARDINAL/CARDINAL had not abused their official authority and did not use physical force against the applicant . The use of a rubber truncheon against him on DATE had been justified since he had resisted the officials who had conducted the routine search . An appeal against the decision lay with a higher prosecutor or a court .

During TIME DATE the applicant self - inflicted a subcutaneous slash wound to his right forearm and subcutaneous slash wounds to the front abdominal wall and inserted a foreign body into the soft tissue of the front abdominal wall . He had no penetrating wounds . At TIME on DATE the applicant was examined by a surgeon of ORG , who removed the foreign body from the applicant ’s abdominal wall and dressed the wounds . The applicant also underwent an X - ray . No foreign bodies , such as a glass cap , remained in the applicant ’s body after he had been provided with medical aid .

On DATE numerous complaints from inmates of correctional colony OX-CARDINAL/CARDINAL were submitted to ORG of the Kursk Region . The inmates , including the applicant , alleged that they had been systematically beaten by the colony ’s officials . On the same date criminal investigation no . DATE was opened into the allegations of ill - treatment . The applicant was not granted the status of a victim in the criminal proceedings .

On DATE , following an inspection , criminal investigation no . DATE was discontinued in the part related to the complaints lodged by the applicant and CARDINAL other inmates , PERSON and PERSON In the course of the inspection ORG examined the relevant medical reports and questioned several officials of the colony , who submitted that no physical force had been applied to the applicant on DATE . ORG of the Kursk Region found that the applicant ’s injuries had been self - inflicted and his allegations of ill - treatment were unsubstantiated . An appeal against the decision lay with a higher prosecutor or a court .

The applicant submitted that on either CARDINAL or DATE he had been escorted to PERSON remand prison GPE ( учреждение ИЗ-CARDINAL/CARDINAL Льгова ) under the guise of transportation to the medical unit . There he was questioned as a witness in relation to the allegedly unlawful actions of the administration of prison OX-CARDINAL/CARDINAL .

In remand prison GPE officials from ORG , including the head of the regional department , ORG , tried to force the applicant to repudiate his statements concerning the allegedly unlawful actions of the administration of correctional colony OX-CARDINAL/CARDINAL . They had threatened to institute criminal proceedings against him on charges of disorganising the work of prison institutions . The applicant lodged a complaint against ORG PERSON . was questioned as a witness . Although PERSON . confirmed that PERSON had put pressure on him , trying to force him to repudiate his statements , ORG refused on DATE to institute criminal proceedings against P.

According to the applicant , he was not provided with adequate medical assistance in remand prison GPE . Officials from ORG showed him entries in his medical file stating that he had been examined by a doctor ; however , this was not true . Furthermore , a doctor from the regional hospital at ORG forced him to refuse operative treatment in writing . The doctor explained that ORG did not have sufficient funds for the operation and the applicant did not have enough money to pay for it either .

DATE the applicant was allegedly taken out of his cell and placed in a car . He was not informed of either the destination or the purpose of the transportation . In the car he was threatened and insulted by the officials and , unable to bear it any longer , he cut the veins on his right arm . He was then returned to the remand prison . The applicant was not examined by a doctor until lunchtime of DATE , when his wounds were dressed and he was given an analgesic . On DATE several prison officials tortured him , forcing him to refuse Ms Liptser ’s assistance and to withdraw his complaint to the ORG and the statements given in relation to criminal case no . DATE . In particular , they painfully twisted his arms and burnt him with an immersion heater .

According to the ORG , the applicant ’s transfer to remand prison GPE was ordered on DATE and on DATE he was escorted there . He remained in the remand prison until DATE .

On DATE the applicant was examined by a medical attendant who noted the subcutaneous wounds inflicted by the applicant himself in colony OX-CARDINAL/CARDINAL . The medical attendant prescribed a dressing with antiseptic ointment . The applicant also stated that he had a foreign body in his stomach . An X - ray conducted on DATE showed no foreign objects in the applicant ’s body . The applicant ’s wounds were dressed DATE and DATE .

On DATE the applicant committed another act of self - mutilation . At TIME he was examined by a medical attendant who found subcutaneous wounds to the left elbow and the navel area . The wounds were dressed with an antiseptic bandage . DATE the applicant was again seen by the medical assistant , who dressed the wounds with a bandage and antiseptic ointment .

On DATE the applicant ’s wounds were dressed again . Because of the intumescence on his right forearm the applicant was given antibiotics . On the same date the applicant was examined by the head of the neurosurgical department of the regional hospital at ORG . He stated that the earlier self - inflicted slash wounds to the applicant ’s forearms and the front abdominal wall were infected . The applicant was offered surgical treatment which he refused on DATE in CARDINAL written statements . The refusal was also reflected in his medical file . The X - ray showed no foreign objects in the applicant ’s body .

In TIME DATE , on the way to the railway station for transportation to another penitentiary facility , the applicant wounded himself in the area of the right elbow joint . Because of the wound the applicant was not allowed to board the train and was returned to remand prison GPE . There he stated that he had self - inflicted the injury . The applicant had damaged the epidermis but the veins in the area of the elbow joint were not affected . His wound was dressed .

On DATE the applicant was examined by a surgeon from ORG , who found a subcutaneous wound in the area of the right elbow joint that was not bleeding . The applicant refused to have the wound stitched .

After the applicant had been transferred to remand prison IZ-CARDINAL/CARDINAL , PERSON , he complained to ORG that he had been tortured with an immersion heater while held in remand prison GPE .

On DATE ORG refused to institute criminal proceedings . The decision was quashed by a higher prosecutor and the case remitted for additional inspection .

On DATE the ORG again refused to institute criminal proceedings . ORG questioned officers from remand prison GPE and inmates who had been held there at the same time as the applicant . They submitted that they had not seen the applicant being tortured and had not heard of him being ill - treated . The decision noted that on DATE the applicant had not applied for medical aid . However , on DATE he had been examined by a doctor in remand prison GPE , prior to his transportation to remand prison IZ-CARDINAL/CARDINAL . No traces of burns had been found in the course of the examination . ORG concluded that the applicant had self - inflicted the injuries . An appeal against the decision lay with a higher prosecutor or a court .

On DATE the applicant was escorted to remand prison IZ-CARDINAL/CARDINAL , PERSON ( учреждение ИЗ-CARDINAL/CARDINAL по PERSON области ) .

On arrival the applicant was examined by a medical attendant , who noted a slash wound in the area of the right elbow joint , scars in the abdominal area and traces of burns on his body .

On DATE PERSON visited the applicant in the remand prison . During her visit the applicant made the following statement :

“ In remand prison IZ-CARDINAL/CARDINAL I am also subjected to pressure by officials of ORG from the Kursk and PERSON regions and their colleague from GPE [ ... ] They skilfully beat me without leaving any traces : they beat me on the head with books , on the face with their open palms ... They are about to become residents here DATE they have been dealing with me for DATE now from TIME till TIME . They say that I am the only one remaining . They let me make phone calls to remand prisons in GPE and Kursk , where other convicts tell me to withdraw [ my complaints ] and that they have already withdrawn theirs . [ The officials ] brought letters from others saying that I should withdraw [ the complaints ] , refuse assistance from counsel , that “ this must be done ” . Then they began to beat me again and to burn me with a boiler forcing me to write [ the withdrawal letters ] ... I read [ Sh . ’s ] withdrawal of his application [ before the ORG ] and his rejection of your services ... and a similar withdrawal written by PERSON

“ I was forced [ under torture ] to write dictated statements addressed to PERSON Laptev , representative of ORG before the ORG , Mr PERSON , NORP Ombudsman , ORG and ORG saying that I withdrew everything . These statements are dated DATE and one [ was written ] on DATE but is dated DATE . ”

“ The statements dated CARDINAL and CARDINAL DATE should be considered invalid as they are nothing but a result of torture . Only statements written in the presence of my lawyers should be examined .... ”

The applicant also told his counsel that he had tried to send letters to his lawyers and to submit complaints against the officials who had ill - treated him . However , his complaints had either been returned to him or he had been forced to withdraw them . On CARDINAL DATE the applicant ’s counsel informed ORG of ORG and ORG of the alleged ill - treatment , and on DATE she submitted the same complaints to ORG , asking that criminal proceedings be instituted on account of the use of torture against the applicant . On DATE the applicant ’s counsel also informed the ORG that the applicant had been allegedly forced to write statements on withdrawal of his application to the ORG .

On DATE the applicant was examined by a doctor who noted brown streaks on his neck and back . The applicant refused to provide any explanation as to the origin of the injuries to the officials of remand prison IZ-CARDINAL/CARDINAL . The Government submitted that the applicant had committed another act of self - mutilation .

In a letter to his counsel dated DATE the applicant reiterated his previous statements concerning the events in correctional colony OX-CARDINAL/CARDINAL and the ill - treatment in remand prison IZ-CARDINAL/CARDINAL . He also indicated the names of other prisoners who could confirm his statements .

On DATE the applicant complained about pain in the right side of his stomach . He was examined by a doctor from remand prison IZ-CARDINAL/CARDINAL who suspected that there was a foreign body in the tissues of the front abdominal area . However , the applicant refused to permit palpation of his stomach .

In a letter of CARDINAL DATE the applicant informed his counsel that the administration of remand prison IZ-CARDINAL/CARDINAL was aware of the contents of the written statements he had addressed to ORG . Furthermore , he alleged that he had been placed in a disciplinary cell for making statements to ORG .

On DATE the applicant was seen by a surgeon . However , when asked to lie down for an examination , he refused .

On DATE the applicant was examined by a doctor who noted a foreign body in the front abdominal wall . The applicant refused to permit palpation of his stomach . He reiterated the refusal at the examination on DATE . A fluorography conducted on the same date showed a nail measuring QUANTITY in the soft tissues of the abdominal area . On DATE the applicant agreed to have his stomach palpated . During the examination he stated that he could remove the nail himself ; however , he thrust it into a different place . Later that day the applicant was transported to a hospital of ORG . On arrival he refused any medical examination . On DATE the applicant himself removed the nail from the abdominal wall . The doctors dressed his wound with an aseptic bandage .

On DATE a doctor was called to the applicant ’s cell because he had cut his right forearm in another act of self - mutilation . The wounds were dressed with an aseptic bandage .

DATE the applicant was placed in a hospital at correctional facility GPE , GPE , for removal of another foreign body that he had thrust into the abdominal area and for subsequent treatment of the wound .

On DATE the applicant arrived at remand prison ORG , ORG .

On DATE the Prosecutor ’s Office of the Sovetskiy District of PERSON refused to institute criminal proceedings into the applicant ’s allegations of ill - treatment in remand prison IZ-CARDINAL/CARDINAL . The decision was based on the following findings .

The applicant , who was questioned in the course of the inspection conducted by ORG , submitted that during his placement in remand prison IZ-CARDINAL/CARDINAL ORG agents tortured him with an immersion heater , beat him and forcibly injected drugs into his veins , seeking to force him to withdraw his complaints concerning ORG correctional colony OX-CARDINAL/CARDINAL and the application to the ORG . When he could no longer bear the torture he submitted to the pressure and wrote statements to the ORG , the ombudsman , the prosecutor of GPE and the representative of GPE at the ORG , asking that the proceedings following his previous applications be discontinued .

The applicant ’s cellmate , PERSON , submitted that the applicant had often been taken out of the cell by remand prison officers . He had never complained about ill - treatment on returning to the cell . PERSON had never seen the applicant with any injuries .

Remand prison officers and officials of ORG submitted that on a number of occasions they “ had had conversations ” with the applicant because he had been under preventive monitoring as a person inclined to absconding , attacking prison officers , taking hostages , self - mutilation and suicide . However , they had never applied either psychological or physical pressure to the applicant and he had never made any complaints in this regard during the conversations .

The inventory of personal items which the applicant had had with him in the remand prison included an immersion heater .

The medical attendant who examined the applicant on DATE submitted that the applicant had explained that the injuries found had been caused by a dog and by officials from ORG for the Execution of Sentences , who had burned him with an immersion heater . He also noted that the burn marks had been located in places where the applicant could have inflicted them himself .

The doctor who examined the applicant on DATE submitted that he could not be sure that the injuries found had been burn marks . Furthermore , the applicant had refused to provide any explanation as to their origin .

The head of ORG submitted that on the basis of the available medical documents and the applicant ’s medical file it was not possible to come to any conclusions with regard to the nature of the applicant ’s injuries , if any .

The Prosecutor ’s Office concluded that the applicant ’s allegations of ill - treatment were unsubstantiated and the injuries found had been caused by the applicant himself . An appeal against the decision lay with a higher prosecutor or a court .

On DATE the Government sent the ORG a copy of a statement dated CARDINAL DATE , addressed to ORG at the ORG , Mr GPE , and written and signed by the applicant . The statement read as follows :

“ I ask you to examine and accept the statement written in my own hand that I , PERSON , ask you , Mr P.A. Laptev , to recall from ORG the application that I lodged through my counsel PERSON . I do not want it [ the application ] to be examined in the present proceedings . ”

On DATE the applicant was transferred to correctional colony no . CARDINAL , GPE .

Article CARDINAL of the Code of Criminal Procedure of DATE provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .

Article CARDINAL § CARDINAL of LAW , as amended on DATE , provides that all incoming and outgoing correspondence of detainees is subject to censorship by the administration of the correctional facility . Correspondence with courts , prosecutors , penitentiary officials , the ORG , the public monitoring board and the ORG is not subject to censorship . Correspondence of convicted persons with their counsel is not subject to censorship unless the administration of the correctional facility has reliable information to the effect that it is aimed at initiating , planning or organising a crime or involving other people in the commission of a crime . In this case the correspondence is subject to control on the basis of a reasoned decision by the head of the correctional facility or his deputy .

DATE . Rule CARDINAL of LAW adopted by Decree no . CARDINAL of ORG of DATE and amended on DATE , DATE and DATE , provided that letters from detainees should be placed in mail boxes in the facilities or handed over to representatives of the administration in unsealed envelopes . The regulations were repealed by Decree no . CARDINAL of ORG of DATE , which adopted new regulations . Rule CARDINAL of the new regulations provides that letters from detainees should be placed in mail boxes in the facilities or handed over to representatives of the administration in unsealed envelopes , except for correspondence which is not subject to censorship ( that is , with the organisations and persons listed in ORG paragraph CARDINAL ) .


CASE OF KARADEMİRCİ AND OTHERS v. TURKEY

Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

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

On DATE CARDINAL people , including the applicants , gathered outside FAC secondary school . The first applicant , PERSON , who was the president of ORG ( Tüm PERSON ) , read out a statement signed by the GPE branches of that union and of ORG ) denouncing the ill - treatment of pupils from the GPE NORP PERSON secondary school . The group remained outside the school for TIME before dispersing .

The statement reads as follows :

“ To the press and the general public

The pressure put on pupils by the authorities at the GPE PERSON secondary school has resulted in PERSON receiving a beating . The pupils reacted by protesting against the school authorities because of the pressure they were under . In an initial attempt to calm down the pupils , whose reaction was justified , the authorities held a meeting with them . However , they reneged on a promise to open an inquiry into the actions of CARDINAL of the teachers , ORG , who , moreover , was provided with a forensic report .

The pressure continues in the form of a lengthy ( DATE ) suspension of CARDINAL pupils , and the deduction of MONEY from their marks for behaviour .

Although officially pupils in the school are not subjected to beatings or academic pressure , the administrators are despots .

We strongly condemn the administrators and teachers , who are responsible for such pressure .

We call for the withdrawal of the penalties imposed on the CARDINAL pupils .

We call for an investigation into the conduct of the teacher who administered the beating .

We will not be intimidated by pressure .

We reject reactionary and oppressive education .

The pupils are not alone .

Society should not remain silent . ”

By an indictment submitted on DATE , the public prosecutor instituted criminal proceedings against CARDINAL leaders and members of ORG and ORG for making a “ statement to the press ” ( basın açıklaması ) without complying with the statutory requirement to obtain a receipt from the public prosecutor 's office confirming that they had filed a copy of the statement with it . The public prosecutor relied in particular on DATE and CARDINAL of LAW ( Law no . CARDINAL of DATE ) .

In a judgment of CARDINAL DATE , ORG found the applicants and CARDINAL other co - defendants guilty as charged and sentenced them to DATE imprisonment under the provisions relied on by the public prosecutor . The prison sentence was commuted to a suspended fine of MONEY ( MONEY ) .

ORG held that the constitutive elements of the offence had been made out in that , firstly , the trade unions had not passed a resolution authorising a statement to be made to the press and , secondly , the accused were present when the statement was read out in public . The other co - defendants were acquitted on the ground that they were not present when the statement was read out .

The applicants appealed to ORG against that judgment . In their written submissions , they alleged that their convictions violated their right to freedom of expression and , in particular , that “ a statement to the press ” could not be classified as a “ leaflet ” or “ written statement ” within the meaning of section CARDINAL of LAW .

In a judgment of DATE , ORG upheld the judgment at first instance , holding that it complied with the law and the rules of procedure . The applicants did not receive a full copy of the judgment .

On DATE the judgment of DATE was placed in the file of ORG . The sixth applicant , PERSON , obtained a copy of it on DATE .

The relevant provisions of LAW , which was published in ORG on DATE , are as follows :

“ ( CARDINAL ) ORG shall not publish or distribute leaflets [ bildiri ] , written statements [ beyanname ] or similar publications [ benzeri yayın ] without a prior resolution by their executive board . The leaflets , written statements and similar publications shall contain the forenames , surnames and signatures of the president and members of the executive board which passed the resolution .

( CARDINAL ) A copy of the resolution by the association 's executive board to publish and of the leaflet , written statement or similar publication shall be filed for information purposes with the head of the local authority and the public prosecutor 's office for the area . The latter shall deliver , in exchange , a receipt recording the time and date the documents were filed . No leaflet , written statement or similar publication may be distributed or communicated to the press until TIME after it has been filed . ”

“ Anyone failing to comply with the procedure set out in section CARDINAL(CARDINAL ) and ( CARDINAL ) shall be liable on conviction to DATE imprisonment . ”

At the material time trade unions representing public servants were formed without any specific statutory basis . Associations and trade unions were governed by CARDINAL pieces of legislation : LAW and LAW ( Law no . CARDINAL of CARDINAL DATE ) . Although there are no restrictions in LAW on written statements by trade unions , section CARDINAL refers to LAW and lays down that the provisions of that Act shall apply where LAW is silent .

The first CARDINAL applicants produced various judgments that had been delivered by ORG in cases concerning the activities of public - sector trade unions . These included a judgment of DATE ( no . CARDINAL ) , from which it emerged that the first CARDINAL applicants had ultimately been acquitted in another case in which they had been charged with an offence under sections CARDINAL and CARDINAL of LAW after reading out a statement to the press and distributing it to members of the press . In that case , ORG had followed a judgment of ORG ( without giving the reference ) in finding that a statement read out to the press drafted by ORG could not be classified as a “ written statement ” or “ similar publication ” within the meaning of section CARDINAL of LAW .

On DATE and DATE ORG , sitting as a full court , delivered CARDINAL judgments in which it clarified the issue of whether it was foreseeable that section CARDINAL ) and ( CARDINAL ) of LAW applied to written statements read out to the press by members of an association 's executive board . In its view , those subsections applied to texts which had previously been adopted and prepared for publication and dissemination . However , a statement read out to the press by an association on a particular subject was not a text that was drafted with a view to publication and dissemination , but a series of verbal comments . “ Dissemination ” , “ publication ” and similar terms could not possibly cover the situation in which the content of a speech due to be made orally was distributed among members of the press as an aid to understanding . The effect of holding otherwise – by a broad interpretation of the law , CARDINAL which , in other words , included oral statements within the scope of section DATE would be that members of an association 's executive board would be liable to penalties for any replies or explanations given in response to questions from journalists ; such a state of affairs would introduce an unlawful restriction on freedoms . In addition , the legislature had unambiguously laid down in that section that a text drafted with a view to publication could be published only once the executive board of the association had so resolved and the relevant documents had been filed with the competent authority .

Law no . CARDINAL , which ORG passed on DATE , amends LAW , repealing sections CARDINAL and CARDINAL . On DATE the President of the Republic returned the legislation to ORG for a fresh debate on sections DATE , which relate to the financing of associations .


Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , PERSON , PERSON and PERSON , a firm of lawyers practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

On DATE , preliminary investigations ( Vorerhebungen ) were instituted against the applicant and CARDINAL other persons who were suspected of aggravated fraud , breach of trust , money laundering and forming a criminal organisation .

During these proceedings ORG ( PERSON ) acting through its competent investigating judge , on DATE confiscated CARDINAL cars belonging to the applicant by an interim measure under section CARDINALa of the Code of Criminal Procedure ( NORP - ordnung ) in order to secure the levy ( GPE ) of property presumed to have been obtained by criminal acts . The court confiscated a Suzuki Kombi , a ORG Voyager Kombi and a Mercedes Cabrio . On CARDINAL DATE the court further ordered that the cars be kept at a motor trading company in GPE . It dismissed the applicant ’s argument that his friend and not he was the owner of ORG .

The applicant did not appeal against this decision .

On DATE ORG convicted the applicant of aggravated professional fraud and being a member of a criminal organisation . Under LAW ) it found that there should be a levy on the enrichment obtained from the crimes in the amount of CARDINAL,CARDINAL.CARDINAL euros ( ORG ) . The applicant made a plea of nullity to ORG . The applicant and ORG also filed appeals against the sentence .

On DATE the court , referring inter alia to section CARDINAL of LAW ( Exekutionsordnung ) , ordered that the cars be sold at public judicial auction . It noted that the criminal proceedings were very complex and that ORG would presumably not render judgment until DATE . The sale of the cars was necessary in order to prevent excessive parking charges and loss of value due to the ORG decreasing sales value . The court finally noted that the interests of the car owner were protected by the fact that he could recover the cars by participating in the judicial auction . Furthermore , he would obtain the proceeds of the sale revenue if no levy would be imposed . The decision was served on the applicant ’s counsel on DATE . No formal remedy lies against this decision .

Nevertheless , the applicant , assisted by counsel , lodged an appeal on DATE . He submitted that the reasons given for the sale were not plausible , as the cars had until now been kept for CARDINAL , and considerable parking charges had accrued . Therefore , the fact that the cars should be kept for DATE was of minor importance . He was not in a position to buy the cars at the judicial auction as he was currently living on emergency assistance ( Notstandshilfe ) . Furthermore , there was not sufficient legal basis for the court ’s decision to sell his property . The applicant finally argued that he was not the owner of the ORG Kombi and that the court had failed to inform the real owner .

On CARDINAL DATE ORG ( Oberlandesgericht ) rejected the appeal as inadmissible , as no appeal lay against such an order . It noted that the provisions of LAW alone were relevant and section CARDINALa § CARDINAL of LAW only provided for the right to appeal against a decision ordering or cancelling an interim confiscation . This decision was served on the applicant ’s counsel on DATE .

On DATE the cars were sold at a public auction .

On DATE ORG dismissed the applicant ’s plea of nullity against ORG judgment of DATE and , on CARDINAL DATE , ORG dismissed the appeals lodged by the applicant and ORG .

Under LAW of LAW ) a person who has obtained property of value by or as a result of criminal acts should be sentenced to a fine in the amount of the unlawful enrichment . If the exact extent of the enrichment can not be established or can only be established by incurring disproportionate costs , the court has to assess the amount to be levied on an equitable basis .

In case of suspicion of unlawful enrichment , presumably falling under the scope of LAW , and if there is reason to assume that otherwise the levy on the value of the property concerned is thereby placed at risk , section CARDINALa § CARDINAL of the Code of Criminal Procedure ( PERSON ) authorises the investigating judge , at the request of ORG , to issue an interim order of confiscation .

Section CARDINALa § CARDINAL further provides that , if not stipulated otherwise , the provisions of LAW ( Exekutionsordnung ) apply to these interim measures .

Section CARDINALa § CARDINAL provides that ORG , the accused and any other person concerned have the right to appeal to the second - instance court against a decision ordering or cancelling an interim confiscation .

Section CARDINAL § CARDINAL of LAW provides that , upon request , the court may issue any orders which are necessary to prevent obsolescence , disproportional costs or other losses concerning objects which belong to third parties and have been taken into legal custody . According to the legal doctrine , such a decision may also consist in the order to sell the objects concerned .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

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

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

On DATE the applicant , together with his wife and son , went to GPE for a private visit . At TIME they went to the bus station with the applicant 's sister - in - law , to catch the bus home . At the bus station CARDINAL persons wearing plain clothes approached the applicant as he stood alone outside the station hall . CARDINAL of these persons took the applicant by the arms , while the third said : “ Militsiya ” ( PERSON ) and waived a paper in front of the applicant 's face . The applicant could not read the paper .

The persons attempted to push the applicant into a minibus , which had no official police signs . The applicant resisted and the persons allegedly started beating him . They managed to handcuff the applicant and to push him into the minibus . Meanwhile , the applicant 's sister - in - law arrived and was thrust into the same minibus .

According to the applicant , he was further beaten in the minibus .

The applicant and his sister - in - law were taken to the Nakhimovskyy District Police Station in GPE . At the police station the applicant was forced to stand handcuffed against the wall for TIME . Subsequently , he was allegedly undressed and searched in the presence of his sister - in - law .

On DATE the applicant was questioned by the police , who enquired whether he belonged to a neo - NORP organisation , taking into account his hairstyle and the symbol on the t - shirt he wore . The applicant explained that he was a journalist ; that he did not belong to any type of extremist organisation and that he had come to GPE for private purposes .

The applicant 's wife went to the police station , where she was also questioned by the police and gave the same explanations .

At CARDINAL past CARDINAL in the evening of the same day , the police told the applicant that he had been apprehended on suspicion of being a member of the neo - NORP organisation “ S ” . The applicant remained in detention .

On DATE the applicant was taken to ORG ( ORG ) . The police officers told the applicant that he would be tried for failing to comply with their lawful orders .

On DATE a judge of that court found the applicant guilty of wilful disobedience to the lawful orders of the police , an administrative offence , on DATE , and issued a reprimand against him . The court 's resolution stated that it was final and was not subject to appeal . Subsequently , the applicant was released .

According to the applicant , the court proceedings were not public , as neither his wife nor his colleagues were allowed to enter the court room . The applicant was not given an opportunity to study his case file and to consult a lawyer either before or during these proceedings .

On DATE the applicant underwent a medical examination , according to which he was found to be suffering from minor bodily injuries which could have been caused on DATE .

On DATE the applicant complained to the prosecutors , alleging that he had been ill - treated by the police officers on DATE . In a letter of CARDINAL DATE ORG informed the applicant that on DATE the prosecutors had adopted a decision refusing to initiate a criminal investigation against the police officers . Relying on the findings of ORG , the prosecutors concluded that the police officers had not abused their power and that there was no indication that an offence had been committed . The applicant did not challenge the decision of CARDINAL DATE before the domestic courts since , in his view , it was based on the court 's resolution , which was not subject to appeal .

On DATE the applicant lodged with ORG a request for leave to appeal in cassation against the resolution of DATE under the new transitional cassation procedure .

On DATE the ORG informed the applicant that his appeal in cassation would be considered by ORG .

On DATE the President of the ORG quashed the resolution of DATE on the grounds that ORG had failed to verify the lawfulness of the orders given by the police officers and that it had applied a sanction which had not been envisaged by the relevant law . ORG remitted the case to ORG for fresh consideration .

On DATE the latter court invited the applicant to attend the hearing , scheduled for DATE . In his letter of DATE the applicant informed the court that he would not be able to attend the hearing for health reasons .

On DATE the applicant received a letter from the court inviting him to a new hearing , scheduled for DATE . According to the applicant , he was still undergoing medical treatment on the latter date and was therefore unable to attend that hearing .

On DATE ORG held a hearing in the applicant 's case and delivered a resolution , the relevant parts of which read as follows :

“ ... On DATE ... [ Mr ] PERSON wilfully disobeyed the lawful order of the police officers in the course of [ an ] identity check at the bus station in the town of GPE .

[ Mr ] PERSON 's guilt [ is ] proven by the reports of the police officers , [ PERSON ... ] , according to which [ Mr ] ... presented [ to PERSON PERSON ] a police identity card and informed [ him ] that [ he was ] being stopped by the police officers for an identity check . However , [ Mr ] PERSON tried to run away and resisted , thereby damaging the police officers ' uniforms . The police officers made similar submissions before the court ...

[ Mr ] PERSON failed to appear for the court hearing , [ although he had been ] repeatedly informed [ of the date and time of the hearing ] ; in accordance with his earlier submissions , [ he ] did not plead guilty , and explained that one of the police officers had showed him a police identity card , but [ he ] had not been able to read it . Thereafter , he was shown to the “ PERSON ” minibus . Since his sister - in - law told him that [ the persons apprehending him ] were not police officers , he started resisting , and that was why force had been used against him .

The court considers that [ Mr ] PERSON 's actions contain the corpus of the administrative offence envisaged by LAW of the [ Code on Administrative Offences ] .

However , since the time - limit for imposing administrative sanctions , provided for in LAW ] , has expired , the court considers that the proceedings against [ Mr ] PERSON must be discontinued .

Pursuant to ... , [ the court ]

Decided :

To discontinue the proceedings against [ Mr ] PERSON , PERSON .

The decision is final [ and ] is not subject to appeal . ”

The applicant was not informed about the date or time of the hearing of DATE . He received a copy of the court 's resolution on DATE .

Article CARDINAL of LAW , as worded at the material time , provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of DATE .

Under LAW an administrative sanction could be imposed within DATE following DATE on which an offence was committed .

Article CARDINAL envisaged the following sanctions for wilful disobedience to the orders of a police officer : a fine in the amount of CARDINAL to CARDINAL times the statutory non - taxable DATE income ; a PERCENT salary deduction over a period of DATE ( corrective works ) ; or administrative detention for DATE , if , in view of the particular circumstances of the case and with regard to the personality of the offender , the imposition of more lenient sanctions appeared insufficient .

According to LAW , a copy of the resolution in an administrative offence case had to be handed over or sent to the person concerned within DATE following the completion of the case .

Pursuant to LAW , a first - instance court 's resolution imposing an administrative sanction was final and not open to appeal , save in cases envisaged in the law . Article CARDINAL provided that a prosecutor could lodge an extraordinary appeal ( “ protest ” ) against the court 's resolution . According to Article CARDINAL , a court resolution concerning an administrative offence could be reviewed either by the same judge who had adopted it in the first place , upon an extraordinary appeal lodged by a prosecutor , or by the president of a higher court on his or her own motion .

On DATE the ORG of Ukraine made changes to the LAW , by which it introduced an appeal procedure in administrative offence cases . In particular , under the amended Articles CARDINAL and CARDINAL of the LAW , the parties to administrative offence proceedings have the right to appeal against court resolutions in their cases within DATE following their delivery . Such appeals must be submitted through the court of first instance that adopted the contested resolution . That court must , within DATE , refer the appeal or appeals , together with the case file , to the court of appeal , which , in its turn , has DATE to consider the case . The cases are dealt with by a judge of the criminal chamber of the court of appeal in an open hearing . The judge has the power to reject the appeal , to quash the resolution and discontinue the proceedings or adopt a new resolution , and to change the resolution . The judge 's decision is final and not subject to any further appeal .

The relevant parts of ORG to LAW ( ETS No . CARDINAL ) prepared by ORG and submitted to ORG , which concern Article CARDINAL of Protocol No . CARDINAL , read as follows :

“ CARDINAL . This article recognises the right of everyone convicted of a criminal offence by a tribunal to have his conviction or sentence reviewed by a higher tribunal . It does not require that in every case he should be entitled to have both his conviction and sentence so reviewed . Thus , for example , if the person convicted has pleaded guilty to the offence charged , the right may be restricted to a review of his sentence . As compared with the wording of the corresponding provisions of LAW ( Article CARDINAL , paragraph CARDINAL ) , the word " tribunal " has been added to show clearly that this provision does not concern offences which have been tried by bodies which are not tribunals within the meaning of LAW .

Different rules govern review by a higher tribunal in the various member ORG . In some countries , such review is in certain cases limited to questions of law , such as the recours en cassation . In others , there is a right to appeal against findings of facts as well as on the questions of law . The article leaves the modalities for the exercise of the right and the grounds on which it may be exercised to be determined by domestic law .

In some GPE , a person wishing to appeal to a higher tribunal must in certain cases apply for leave to appeal . The right to apply to a tribunal or an administrative authority for leave to appeal is itself to be regarded as a form of review within the meaning of this article .

Paragraph CARDINAL of the article permits exceptions to this right of review by a higher tribunal :

- for offences of a minor character , as prescribed by law ;

- in cases in which the person concerned has been tried in the first instance by the highest tribunal , for example by virtue of his status as a minister , judge or other holder of high office , or because of the nature of the offence ;

- where the person concerned was convicted following an appeal against acquittal .

When deciding whether an offence is of a minor character , an important criterion is the question of whether the offence is punishable by imprisonment or not ... ”