Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicant was born in DATE . When lodging his application with the ORG , he was detained in FAC . Since DATE he has been detained in FAC .

On DATE the GPE am ORG convicted the applicant , a first offender , of CARDINAL counts of murder and CARDINAL count of attempted murder committed DATE . The applicant was found to have killed or have attempted to kill in his car CARDINAL young women he had not previously known treacherously and in order to satisfy his sexual desires . He had strangulated a DATE hitchhiker during his lunch - break , had strangulated CARDINAL prostitutes during or after sexual intercourse with them and had attempted to strangulate a third prostitute in the same manner . The GPE am ORG sentenced the applicant to DATE imprisonment and ordered his placement in a psychiatric hospital ( LAW , see paragraph CARDINAL below ) . The court , having consulted a psychiatric and a psychological expert who had diagnosed the applicant with a sadist sexual deviation , lack of empathy and a brain damage , found that the applicant suffered from a serious mental abnormality and had acted with diminished criminal responsibility . Furthermore , owing to that condition , the applicant was liable to reoffend and was therefore dangerous to the public .

ORG further considered that the conditions for the applicant ’s preventive detention under LAW ( see paragraph QUANTITY below ) were equally met . However , even though it did not appear very likely that the applicant ’s condition could be treated , it could not be wholly excluded that a therapy might prove successful . Therefore , the court decided , by reference to LAW ( see paragraph CARDINAL below ) , to order the applicant ’s placement in a psychiatric hospital and not in preventive detention as the former was the more suitable measure of correction and prevention in these circumstances .

On DATE the applicant was accordingly transferred to PERSON psychiatric hospital .

On DATE ORG ordered that the applicant serve his prison sentence prior to his continued placement in a psychiatric hospital as a therapy of the applicant had not proven successful . The applicant then served his full sentence in FAC . On DATE the applicant requested his release , arguing that he had served his full sentence on DATE . Thereupon , he was again transferred to ORG in DATE on the basis of his conviction in DATE .

On DATE ORG terminated the applicant ’s placement in a psychiatric hospital pursuant to Article CARDINAL of LAW ( see paragraph CARDINAL below ) . That decision became final on DATE . Having regard to the findings of an expert it had consulted , it found that the applicant had in fact not suffered from a disorder which had made him act with diminished criminal responsibility at the time he had committed his offences and which had warranted his placement in a psychiatric hospital . By a decision of DATE , ORG ordered the applicant ’s provisional detention pending the competent court ’s decision whether or not he was to be placed in preventive detention retrospectively . The latter order became final on DATE . The applicant was then detained in FAC since DATE .

On DATE the GPE am ORG , relying on Article CARDINAL of LAW ( see paragraphs DATE and DATE below ) , ordered the applicant ’s preventive detention retrospectively ( nachträgliche GPE ) .

NORP The GPE am ORG found that , as required by LAW § CARDINAL ( CARDINAL ) of LAW , the applicant had been placed in a psychiatric hospital pursuant to LAW after having committed several of the offences listed in LAW , first sentence , namely several murders . On DATE ORG had terminated the applicant ’s placement in a psychiatric hospital pursuant to LAW as the condition diminishing the applicant ’s criminal responsibility on which the placement order had been based had never existed and thus did not persist at the time of the decision terminating the placement . It was irrelevant whether or not the placement in a psychiatric hospital had been based on a wrong diagnosis from the outset .

The GPE am ORG further considered that a comprehensive assessment of the applicant , his offences and , in addition , his development during the execution of his placement in a psychiatric hospital revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims ( LAW ( CARDINAL ) ) . Having regard to the convincing findings of CARDINAL psychiatric experts it had consulted and to the statements made by the doctors who had attempted to motivate the applicant to undergo therapy in prison and in the psychiatric hospital , the court found that it was very likely that the applicant , if released , would commit offences similar to those which he had been convicted of in DATE . Less restrictive measures , in particular the supervision of the applicant ’s conduct , would be insufficient to protect the public from him .

NORP The psychiatric experts PERSON , who had been obliged to draw up their reports on the basis of the case files as the applicant had refused to have himself examined by them , had considered that there was a high risk that the applicant would commit further murders for sexual motives or in order to cover up previous violent sexual offences if released . He had committed a series of murders without any comprehensible motives arising from his personal situation . Even though he did not suffer from a true sadistic deviation , his acts had disclosed a combination of aggressive and sadistic sexual elements . He was particularly dangerous for his lack of empathy and his refusal to reflect on his offences and to undergo treatment .

On DATE the applicant lodged an appeal on points of law . He took the view that Article CARDINAL of LAW was incompatible with LAW .

On DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded . On DATE the applicant was transferred to FAC .

On DATE the applicant , represented by counsel , lodged a constitutional complaint with ORG . He argued that LAW of LAW and the decisions of the lower courts , based on that provision , to order his preventive detention retrospectively were incompatible with LAW . He stressed that the sentencing court in DATE , in a final judgment , had deliberately declined to place him in preventive detention . The said provision and decisions therefore breached the prohibition to increase a penalty retrospectively ( LAW ) as well as the constitutional protection of legitimate expectations in a ORG governed by the rule of law and the prohibition to be punished twice for the same offence . The failure to release him following the termination of his placement in a psychiatric hospital further violated his right to liberty under LAW ( LAW ) .

On DATE a chamber of CARDINAL judges of ORG declined to consider the applicant ’s constitutional complaint – as well as that of another applicant who lodged application no . CARDINAL before the Court – on the grounds that it was ill - founded ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

ORG noted that Article CARDINAL § CARDINAL and Article CARDINALb § CARDINAL had been inserted into LAW because , under ORG well - established case - law , a person could no longer be detained in a psychiatric hospital under LAW and had to be released if that person no longer suffered from a condition excluding or diminishing his criminal responsibility . This was considered problematic in cases in which the person concerned , without suffering or without ever having suffered from the said condition , was still dangerous to the public .

ORG found that Article CARDINAL of LAW and the lower courts’ decision to order the applicant ’s placement in preventive detention retrospectively were compatible with LAW . Article CARDINAL of LAW did not breach the ban on the retrospective application of criminal laws imposed by LAW . That Article applied only to ORG measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a sanction to compensate for guilt . Unlike such a penalty , preventive detention was not aimed at punishing criminal guilt , but was a purely preventive measure aimed at protecting the public from a dangerous offender . For the same reason , Article CARDINAL of LAW did not breach the right not to be punished twice for the same offence under LAW .

The Federal Constitutional Court further took the view that LAW was in conformity with the protection of legitimate expectations guaranteed in a ORG governed by the rule of law , even if applied to a case such as that of the applicant , who had committed his offences and had been convicted and sentenced prior to the entry into force of the said provision . It considered as compatible with LAW the legislator ’s decision whereby the effective protection of the public from very dangerous offenders who were liable to commit serious offences resulting in considerable psychological or physical harm to the victims – which was a paramount public interest – outweighed the offender ’s interest in protection of his legitimate expectations .

ORG noted that the impugned provisions allowed the courts in a case like that of the applicant to amend retrospectively a sanction fixed in a previous final judgment in the light of new evidence ( in particular new expert reports ) , without new facts having come up . It emphasised that the sentencing criminal court ’s decision not to order preventive detention became final even if it later emerged that the court had erred in considering the offender not to be dangerous . Nevertheless , the retrospective preventive detention order under LAW of LAW , read in conjunction with Article CARDINAL of LAW , entailed only very limited disadvantages of constitutional relevance . In substance , the ordering of a measure of indefinite duration depriving the person concerned of his or her liberty DATE namely , placement in a psychiatric hospital DATE was merely replaced , under certain qualified conditions , by the ordering of a different such measure of indefinite duration , namely preventive detention . Any remaining disadvantages for the offender in the protection of his legitimate expectations were outweighed by the paramount interest of the public pursued by the provisions in question .

The Federal Constitutional Court further found that Article CARDINAL of LAW was compatible with the applicant ’s right to liberty under LAW ( LAW ) . In order to protect the right to life , physical integrity and liberty of citizens the legislator was authorised , within the limits set by the principle of proportionality , to deprive of his liberty a person who could be expected to violate the ORG said rights .

NORP In FAC , persons in preventive detention are placed in a separate building from prisoners serving their sentence . They have certain minor privileges compared with convicted offenders serving their sentence ( see , for instance , PERSON GPE , no . CARDINAL , § CARDINAL , ORG DATE ) . As regards therapeutic measures , persons held in preventive detention in PERSON are offered a DATE discussion group proposing ideas for recreational activities and for structuring DATE life . They are further offered discussions with an external psychiatrist once per DATE as well as psychological or psychotherapeutic measures and social training considered suitable for them . Furthermore , a psychologist and a social worker were available permanently to discuss with the detainees .

When transferred to ORG on DATE , the applicant refused to discuss the planning of the execution of the preventive detention order with the prison staff , which therefore considered his transfer to a social therapeutic institution as lacking prospects of success . He worked in prison from DATE until DATE and has been out of work since then . In DATE the applicant participated in a DATE social training course in prison .

On DATE the ORG refused to suspend the applicant ’s further preventive detention and to grant probation . It found that it could not be expected that the applicant would not commit any further offences if released ( Article CARDINAL § CARDINAL of LAW ; see paragraph CARDINAL below ) . It noted that the applicant still considered it unnecessary to reflect on his offences or to undergo a therapy . The decision became final on DATE .

On DATE ORG declined to terminate the applicant ’s preventive detention . It found again that it could not be expected that the applicant would not commit any further offences if released ( Article CARDINAL § CARDINAL of LAW ) . On the contrary , there was a danger that if released , the applicant , owing to specific circumstances relating to his person and his conduct in prison , would commit serious crimes of violence as defined by ORG judgment of CARDINAL DATE ( see paragraph CARDINAL below ) , namely treacherous murders to satisfy his sexual desires .

ORG considered , in particular , that according to the pertinent findings of ORG in the said judgment , a retrospective order of preventive detention following the termination of a person ’s placement in a psychiatric hospital did not breach the protection of legitimate expectations guaranteed in a ORG governed by the rule of law or the prohibition of retrospective punishment . As the judgments of ORG only had the force of Federal legislation in GPE , the fact that that court had considered , in its judgment of CARDINAL DATE ( PERSON GPE , cited above ) , that retrospective preventive detention was in breach of human rights , did not alter that conclusion .

On CARDINAL DATE the GPE am ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal . It agreed with ORG that the stricter standards set up by ORG in its judgment of CARDINAL DATE ( see paragraph CARDINAL below ) for a continuation of preventive detention which had been ordered retrospectively under paragraph CARDINAL of Article CARDINAL of LAW did not apply to preventive detention ordered under paragraph CARDINAL of that provision .

The applicant subsequently lodged a constitutional complaint with ORG against these decisions . The proceedings before that court are apparently still pending .

On DATE ORG dismissed as inadmissible the applicant ’s request for a reopening of the proceedings in which his retrospective preventive detention had been ordered in DATE . In particular , a reopening on the ground that ORG had found a domestic court ’s judgment to be in breach of the LAW applied only to applicants who had themselves obtained a judgment of that court in their favour . Moreover , the facts at issue in the M. v. GPE case ( cited above ) were not sufficiently comparable to those in the present case .

On DATE the GPE am ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , ECHR DATE ) . A summary of the provisions of LAW the right to liberty ( LAW ) and the ban on retrospective application of criminal laws ( LAW ) can also be found in that judgment ( ibid . , LAW and DATE ) . The provisions referred to in the present case provide as follows :

Measures of correction and prevention ( see Articles CARDINAL et seq . of LAW ) cover , in particular , placement in a psychiatric hospital ( LAW ) or in preventive detention ( LAW ) .

Article CARDINAL of the Criminal Code governs orders for a person ’s preventive detention made by the sentencing court when finding the person guilty of an offence . That court may , at the time of the offender ’s conviction , order his preventive detention ( a so - called measure of correction and prevention ) under certain circumstances in addition to his prison sentence ( a penalty ) , if the offender has been shown to be a danger to the public .

Under LAW , first sentence , of LAW , in its version in force at the time of the order for the applicant ’s retrospective preventive detention , preventive detention may be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences , including murder , rape and dangerous assault , to DATE imprisonment , if he has previously been convicted ( only ) once of CARDINAL or more such offences to CARDINAL GPE imprisonment and if the remaining requirements laid down in LAW ( CARDINAL ) and ( CARDINAL ) are met .

Article CARDINAL of the Criminal Code governs the combination of different measures of correction and prevention . If the conditions for several such measures are met , yet the desired objective may be attained by one or a part of these measures , then only those latter measures shall be ordered ( see Article CARDINAL § CARDINAL ) . Otherwise , such measures shall be ordered cumulatively unless the law provides otherwise ( Article CARDINAL § CARDINAL ) .

The Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen GPE ) of DATE , which entered into force on DATE , inserted Articles CARDINALb and QUANTITY into LAW ; the latter provision was amended by LAW of DATE . The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under LAW were no longer met ( including cases in which they had never been met from the outset ) , but who were still dangerous to the public ( see ORG documents ( ORG ) , no . CARDINAL , pp . CARDINAL , CARDINAL ) .

In fact , under the case - law previously established by the courts dealing with the execution of sentences , a person ’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered , or had in fact never suffered , from a condition excluding or diminishing his criminal responsibility , even if that person was still dangerous to the public ( see ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of CARDINAL DATE , ORG für ORG ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL Ws CARDINAL , decision of CARDINAL DATE , ORG für PERSON ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL StR CARDINAL/CARDINAL , judgment of DATE , Collection of decisions of ORG in ORG ( BGHSt ) no . DATE , p. CARDINAL ; see also ORG , CARDINAL . CARDINAL BvR CARDINAL/CARDINAL and DATE , decision of DATE , ORG ( ORG ) DATE , p. CARDINAL ; and ORG , no . CARDINAL StR CARDINAL/CARDINAL , decision of CARDINAL DATE , § CARDINAL with further references ) .

Article CARDINALb § CARDINAL of LAW , in its version in force at the relevant time , provided :

“ ( CARDINAL ) NORP If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article CARDINAL § CARDINAL because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement , the court may order preventive detention retrospectively if

NORP the placement of the person concerned under LAW was ordered on the basis of several of the offences listed in LAW , first sentence , or if the person concerned had either already been sentenced to CARDINAL years’ imprisonment or had been placed in a psychiatric hospital because of CARDINAL or more such offences , committed prior to the offence having led to that person ’s placement under LAW , and

a comprehensive assessment of the person concerned , his offences and , in addition , his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims . ”

Article CARDINAL of LAW , in its version in force at the relevant time , provided :

“ ( CARDINAL ) NORP If , after enforcement of an order for placement in a psychiatric hospital has started , the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate , it shall declare the measure terminated . On termination of the measure , the conduct of the person concerned shall be supervised . ... ”

The said CARDINAL provisions remained valid also under LAW ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of DATE , which entered into force on DATE , for offences committed after the entry into force of that LAW . As a result of the abolition of paragraphs CARDINAL and CARDINAL of Article CARDINALb of LAW by LAW , the former paragraph CARDINAL , slightly amended , became the only provision of that Article .

Article CARDINAL of the Criminal Code governs the duration of preventive detention . Paragraph CARDINAL , first sentence , of that LAW provides that if there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release .

Article CARDINAL of the Criminal Code governs the detention of mentally ill persons as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned . It provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility , the court shall order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public .

On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period and also concerning the retrospective order for a complainant ’s preventive detention under LAW of LAW ( file FAC . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . Reversing its previous position , ORG held that all provisions concerned , both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention , were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all the relevant provisions of LAW on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention . It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE and LAW in its version of DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the latest . In relation to detainees whose preventive detention had been prolonged retrospectively , or ordered retrospectively under LAW of LAW ( but not preventive detention ordered LAW ) , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder within the meaning of section CARDINAL § CARDINAL of the newly enacted Therapy Detention Act . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of “ persons of unsound mind ” in LAW sub - paragraph ( e ) of the LAW made in this ORG ’s case - law ( see § § CARDINAL and CARDINAL - CARDINAL of ORG judgment ) . If the above pre - conditions were not met , those detainees had to be released DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .

In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ; see § § CARDINAL ss . of ORG judgment ) . It stressed , in particular , that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in LAW required an individualised and intensified offer of therapy and care to the persons concerned . In line with the ORG ’s findings in the case of PERSON GPE ( cited above , § CARDINAL ) , it was necessary to provide a high level of care by a team of multi - disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success ( see § CARDINAL of ORG judgment ) .


Violation of Art. 8;Not necessary to examine Art. 34;Not necessary to examine Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On DATE LAW DATE ( “ the DATE LAW ) entered into force . Under LAW , trial courts were empowered to make confiscation orders aimed at removing assessed benefits obtained through the commission of offences of which a person has been found guilty .

On DATE the applicant was arrested and subsequently charged and committed for trial .

On DATE the Snaresbrook Crown Court convicted the applicant of CARDINAL counts of corruption committed DATE and DATE , when he was employed by ORG as an ammunition procurement officer . The court sentenced him to CARDINAL years’ imprisonment under section CARDINAL of the Prevention of Corruption Act DATE on each of the CARDINAL counts , to be served concurrently .

The court conducted an enquiry under LAW and found that the applicant had benefited from the commission of the offences in the amount of GBP CARDINAL,CARDINAL,CARDINAL.CARDINAL . Pursuant to section CARDINAL of LAW , a confiscation Order was made against him in the amount of ORG DATE , the amount at which his realisable assets was assessed . This sum was to be paid within DATE . In default of payment the applicant was to be imprisoned for a further ( consecutive ) term of DATE .

NORP The applicant ’s appeals against his conviction and sentence , as well as in relation to the amount and basis of calculation of the confiscation Order , were dismissed by ORG on DATE . The applicant did not dispute before ORG that he had realisable assets in excess of MONEY .

On DATE the Bow ORG issued a summons for the commitment of the applicant to custody for default in the payment of the amount due under the confiscation Order . The hearing on whether the applicant should be committed to custody for non - payment of the confiscation Order was adjourned at the request of ORG ( “ ORG ” ) pending an investigation into alternative methods of recovery .

On DATE , in connection with the enforcement of the confiscation Order , Ms GPE was appointed as Receiver to realise the applicant ’s property , including any property of the applicant held by third parties . ORG , which appointed the Receiver under section CARDINAL(CARDINAL ) of the DATE Act on application by the ORG and after the applicant had been given a further opportunity to comply with the confiscation Order , ordered that the Receiver ’s powers were not to be exercised until the interests of the restrained properties had been determined .

On DATE , following an application on behalf of ORG in separate civil proceedings , the applicant was declared bankrupt . PERSON was appointed as the applicant ’s ORG . This appointment was independent of her appointment as Receiver .

Following an ex parte application by ORG , LOC at Reading ORG ordered , on DATE , that :

“ for DATE from DATE of DATE all postal packets ( as defined by section CARDINAL of ORG DATE ) directed or addressed to the Bankrupt ... shall be re - directed , sent or delivered by ORG to [ the ORG in Bankruptcy ’s address ] . ”

The Order was made under section CARDINAL of LAW DATE in favour of LOC in her capacity as the applicant ’s ORG . The application was based on the grounds that the Trustee in Bankruptcy was of the opinion that communications concerning remittances and useful information in respect of the applicant ’s assets and liabilities which would better enable her to perform her duties might be forwarded to the applicant ’s address and lost to the applicant ’s estate if the Order were not made . The grounds invoked were supported by an affidavit sworn on DATE , which affirmed that it was necessary for postal packets to be intercepted immediately and without notice to the applicant to enable the ORG in Bankruptcy properly to identify the applicant ’s assets and sources of income .

An exception was made in the Order of DATE for letters on which there was a specific direction , signed by ORG , that any such letter was to be delivered as addressed , if possible .

DATE and DATE , a total of CARDINAL letters addressed to the applicant were re - directed to the Receiver and Trustee in Bankruptcy . These letters included , inter alia , a letter from ORG of ORG , CARDINAL letters from ORG concerning civil proceedings to which the applicant was a party , a letter from ORG , CARDINAL letters from his legal advisers , ORG ( later referred to as “ Liberty ” ) relating to the proceedings before ORG , and affidavits and drafts made or prepared for use in ORG in relation to the receivership proceedings .

Each of the letters mentioned above was copied to file before being forwarded promptly to the applicant .

NORP In his letter of DATE to the Receiver and Trustee in Bankruptcy the applicant expressed particular concern that apparently privileged material was being intercepted . On DATE the Receiver and ORG replied that no mail from ORG , ORG and ORG would be opened in the future , as long as the sender ’s names were clearly stamped on the envelopes .

Although the re - direction Order expired on DATE it was only as from DATE that the applicant began to receive his mail directly again . During that period there were CARDINAL mail deliveries to the Trustee in Bankruptcy . CARDINAL delivery was received on DATE , the other on DATE . The deliveries contained CARDINAL items of mail , none of which fell within the categories described above ( see paragraph CARDINAL ) . A number of the items were however copied to file before being forwarded to the applicant .

On DATE the applicant issued a summons for a stay of the receivership proceedings pending the determination of his application to the Commission . The hearing was listed for DATE but was adjourned to CARDINAL DATE . On DATE ORG dismissed the application and confirmed that the receivership proceedings should continue . The applicant has not informed the ORG of any subsequent developments in the receivership proceedings .

Section CARDINAL of LAW DATE provides as follows :

“ CARDINAL . Where a bankruptcy order has been made , the court may from time to time , on the application of the official receiver or the trustee of the bankrupt ’s estate , order ORG to re - direct and send or deliver to the official receiver or trustee or otherwise any postal packet ( within the meaning of LAW DATE ) which would otherwise be sent or delivered by them to the bankrupt at such place or places as may be specified in the order .

An order under this section has effect for such period , not exceeding DATE , as may be specified in the order . ”

Trustees in Bankruptcy have other statutory powers , which are more stringent than the power to apply for a re - direction order but which may nonetheless need to be used , in appropriate cases , if Trustees are properly to investigate the bankrupt ’s affairs for the ultimate benefit of his creditors . In particular , under LAW DATE a ORG may obtain a warrant authorising him to seize property , books and/or records falling into the debtor ’s estate . Furthermore , section CARDINAL of the Act allows the court ( on application by a ORG ) to summon a variety of persons before it to give an affidavit and/or produce documents .

A bankrupt owes a statutory duty , pursuant to section CARDINAL of LAW DATE , to give to the ORG such information as to his affairs , attend meetings with the ORG and do such other things as the ORG may reasonably require for the carrying out of his relevant functions .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s son , NORP , who was then DATE , had a picnic with his friends ( Mr ) PERSON , ( Ms ) N. and ( Ms ) PERSON on the bank of a lake not far from the village of PERSON in the ORG region . They drank some alcohol and took a swim . According to NORP ’s friends , NORP could not swim and stayed in the shallow part of the lake . As submitted by the applicant , he had aquaphobia .

NORP That TIME NORP and PERSON had a fight with a group of about CARDINAL young people picnicking nearby , which left NORP with a bleeding nose and an injured lip .

According to L. , ORG and PERSON , after the fight was over and the other group left for their camp , NORP washed his face in the lake . Shortly afterwards , at TIME , he took a towel and went towards some bushes in the opposite direction to the lake .

TIME , worried by his absence , PERSON and the girls started looking for him . They continued the search for TIME , but to no avail . At some point ORG thought she had heard NORP ’s voice , saying that he was there and that he was unwell , after which it had been interrupted abruptly as if forcibly stifled . The others did not hear anything . The friends asked CARDINAL fishermen fishing nearby whether they had seen NORP , but were told in reply that there had been many young men passing by . Having met CARDINAL persons from the “ rival ” group , PERSON asked whether they had seen NORP , but they replied that they had not . Shortly after that CARDINAL teenagers , including CARDINAL of the CARDINAL mentioned above , approached PERSON , PERSON and PERSON and asked whether they had found NORP On hearing that they had not , they wished them “ good luck with the search ” with what NORP ’s friends perceived as ironic smiles .

L. , ORG and PERSON decided to wait until dawn to continue the search . While PERSON and ORG were asleep , PERSON heard some muffled noises not far from their camp , followed by a splash .

Having resumed the search at TIME on DATE , DATE , PERSON and the girls found NORP ’s towel on a tree QUANTITY from their campsite . NORP ’s dead body was floating in the lake QUANTITY from the bank . L. brought it back to the shore . He noticed a bruise on NORP ’s head , which he did not remember having been there after the fight .

L. , ORG and PERSON went to call the police .

NORP The youths from the other group left their camp at dawn and took the first TIME bus to ORG .

On TIME the police , having been informed of NORP ’s death by his friends , intercepted the aforementioned bus and apprehended some of the young people in question .

According to a report drafted on DATE by the officer on duty at PERSON police station , at TIME had informed the police of NORP ’s drowning . The following officials had gone to inspect the scene of the incident : the prosecutor , an investigator from the prosecutor ’s office , a forensic medical expert , the deputy chief of the investigation unit of the local police station , and the neighbourhood police inspector .

According to an on - site inspection report of DATE , the scene where the body had been discovered was inspected from CARDINAL to TIME It was stated in the report that the inspection group had discovered NORP ’s body floating in the lake QUANTITY from the bank and had taken it to the shore . The report was signed by the prosecutor , the investigator , CARDINAL medical experts , and CARDINAL attested witnesses .

The applicant arrived at the scene at some point during the aforementioned inspection .

The case file also contains an “ accident report ” of DATE signed by the head of the PERSON Saltiv rescue station and a nurse ( apparently from the same rescue station ) . It is limited to outlining the following events and their timing : TIME – receipt of the information about the accident ; CARDINAL TIME arrival at the scene ; and CARDINAL TIME DATE removal of the body from water .

Still on DATE , a post mortem was conducted . It gave drowning as the cause of NORP ’s death .

At some point in DATE the applicant complained to ORG ( hereafter “ the ORG ” ) that the persons with whom her son had been fighting could have been involved in his death and sought the initiation of a criminal investigation into the matter .

Later in DATE she additionally brought to the prosecutor ’s attention the fact that on the arrival of the police at the site on DATE the body of her son had been found in the water QUANTITY from the shore , while PERSON had clearly stated that he had already taken it out . It was unclear in what circumstances the body had been put back into the water .

On DATE the applicant complained to ORG that the ORG had been refusing to accept her complaints under the pretext that the prosecutor ’s personal authorisation was required for that . Having received some additional facts from L. , PERSON and PERSON , the applicant brought them to the attention of the prosecution . She had found out , in particular , that CARDINAL of the persons who had fought with her son , nicknamed ORG , had apparently had a previous conflict with NORP During the fight on DATE they had violently plunged L. into the water . Later , the young man nicknamed PERSON had been among those who had wished D. ’s friends “ good luck with the search ” . Furthermore , the group who had attacked NORP and PERSON had hastily left their own campsite at dawn on DATE . When being apprehended , some of them had referred to the connections and influence of their parents as a threat to the police . T. and U. had later gone into hiding .

On DATE the ORG investigator decided not to open criminal proceedings regarding the death of the applicant ’s son , having concluded that it had been an accident . The decision was mainly based on the post mortem report , according to which NORP had died by drowning . As to the fight which had taken place on the eve of the death , the investigator considered that its circumstances disclosed elements of hooliganism . The case was therefore referred to the NORP police department for further verification in that regard .

As a result , on DATE criminal proceedings were instituted in respect of the fight of DATE , which was classified as hooliganism .

On DATE the ORG investigator ordered a forensic medical examination with a view to clarifying the following issues : ( a ) whether there were any injuries on NORP ’s body and , if so , what their origin was and how serious they were ; ( b ) what the cause of the death was ; and ( c ) whether NORP had consumed alcohol before his death .

On DATE the forensic examination was completed . According to its report , NORP died from “ asphyxia caused by water blocking the airways as a result of drowning ” . The expert noted that there was a bruise on NORP ’s head and a wound on his lower lip . He concluded that those injuries , which might have been caused by blunt objects , had been sustained shortly before NORP had died , but had no relation to his death . It was also noted that NORP had been moderately drunk at the time of his drowning .

On DATE the NORP ORG ( “ the NORP Court ” ) set aside the investigator ’s decision of DATE not to institute criminal proceedings regarding the death . Its criticism mainly concerned the absence of any conclusion as to the possible connection between the fight and the subsequent drowning of the applicant ’s son . Furthermore , the court noted that the case file did not contain the post mortem report referred to .

On DATE the ORG again refused to open a criminal case , given that while D. ’s death had indeed been preceded by the fight , there had been no causal link between those CARDINAL events . The investigator relied , in particular , on the statements of the youths with whom NORP and PERSON had had the fight , who claimed to have stayed in their camp all night and not have seen or heard anything suspicious . They explained their hasty departure from the campsite TIME on DATE by having panicked following the discovery of NORP ’s body in the lake .

On DATE another forensic medical examination regarding NORP ’s death was completed , this time undertaken as part of the criminal investigation into hooliganism . It concluded that NORP had died as a result of drowning , TIME before the examination of his body ( conducted at TIME on DATE ) . The following injuries to the body had been documented : a bruise on the left of the forehead , a bruise on the lower lip , and an abrasion on the chin . All these injuries were classified as light and estimated to have been inflicted by solid blunt objects shortly before NORP died . However , no causal link was established between those injuries and the death . After NORP had sustained them , he would have been able to act consciously and move . Lastly , the report noted that , at the time of his death , NORP had been moderately drunk .

On DATE ORG quashed the prosecutor ’s decision of DATE , refusing to institute criminal proceedings concerning NORP ’s death as being premature and based on an incomplete and perfunctory investigation in disregard of the court ’s earlier guidelines . It noted , in particular , the following :

“ ... [ The applicant ’s ] complaints and submissions have not in fact been verified , additional explanations have not been taken from specific [ witnesses ] , and the necessary documents , in particular , the forensic medical reports regarding the nature and location of NORP ’s injuries and the cause of his death , as well as the results of the operational enquiry measures , have not been studied . ... In the court ’s opinion , the [ decision ] complained of is premature and not based on thoroughly verified data , while the arguments contained therein are unconvincing . ”

On DATE the ORG once again refused to initiate criminal proceedings stating that there was no case to answer . This decision was based on the lack of any established connection between the fight and the resulting injuries on the one hand and the drowning of NORP on the other . The investigator relied on the statements of the witnesses ( the deceased ’s friends and some of those with whom NORP and PERSON had been fighting ) and the findings of the forensic medical reports .

The applicant unsuccessfully challenged that refusal before the domestic courts at CARDINAL levels of jurisdiction . On DATE , DATE and DATE respectively , ORG , ORG ( “ the ORG ” ) and ORG , dismissed her complaint in that regard with succinct reasoning that it was overall unsubstantiated .

Meanwhile , on DATE , the ORG prosecutor had disciplined the investigator in charge of the hooliganism case ( see paragraph CARDINAL above ) for the latter ’s failure to comply with his ORG guidelines and to duly report on the progress of the investigation since the institution of the proceedings on DATE .

On DATE ORG ( “ the ORG ” ) quashed the investigator ’s decision of DATE ( see paragraph CARDINAL above ) as premature . The parties did not provide a copy of this decision of the ORG to the ORG .

On DATE the ORG again refused to institute criminal proceedings in respect of NORP ’s death . The reasoning of this decision was identical to that of the earlier CARDINAL of DATE , except that the investigator inserted a new paragraph with his critical assessment of the statements of NORP ’s friends about having heard some stifled cries . The investigator considered them to be too vague and not at variance with the version that the death had been an accident . He also noted that there appeared to have been no witnesses to the death .

The applicant challenged that decision before ORG . Following several dismissals of her complaint on procedural grounds , it was finally accepted for examination .

On DATE ORG in GPE terminated the criminal proceedings regarding the hooliganism offence ( instituted on DATE ) , having found that there was no indication of a crime . The investigator noted , in particular , that the fight in question had not breached public order , having taken place in a forest where it could not have disturbed anybody . Furthermore , it had resulted in light injuries found to have had no connection to NORP ’s death .

On DATE the case regarding NORP ’s death was transferred to ORG ( hereafter “ the ORG ” ) , as all the judges of ORG had already sat in it .

On DATE the ORG quashed the ORG ’s decision of DATE ( see paragraph CARDINAL above ) , having found that the additional investigation undertaken pursuant to the ORG ’s ruling of CARDINAL DATE had failed to comply with the latter ’s instructions despite their binding nature . The court also reiterated , in substance , the criticism which had earlier been expressed by ORG in its ruling of CARDINAL DATE ( see paragraph CARDINAL above ) .

NORP ORG also specified the measures to be undertaken in the course of the additional investigation , such as the further questioning of PERSON and PERSON on account of the noises and cries they claimed to have heard after NORP ’s departure , as well as the questioning of PERSON , who had not been examined at all in that regard . Furthermore , the investigation had to identify QUANTITY persons who had been present during the on - site inspection on DATE by the operational enquiry group without disclosing their identities and without their presence having been recorded in the police report . Referring to the confirmed threats the teenagers had made about their influential relatives to the police officers during their apprehension , the court noted that the applicant had in fact reasons to fear that those persons could have been relatives in high - ranking posts in law - enforcement authorities . Her allegation that the body of her son had been put back into the water after PERSON had already brought it out to the shore had to be verified as well . Moreover , the origin of all the injuries on NORP ’s body remained to be clarified , given the ORG statements that not all of them had resulted from the fight of DATE . It was also necessary to identify and question the CARDINAL fishermen who had been near the camp of NORP and his friends during TIME DATE , the teenagers who had allegedly enquired in a sarcastic tone about the search for NORP , as well as the police officer who had arrived at the site first , who had waited there alone for his colleagues to arrive and might therefore have been able to offer an explanation as to how the body had ended up back in the lake . The court also instructed the investigation to find out whether there had been any plankton from the lake in issue in NORP ’s lungs . Lastly , it was necessary to clarify the outcome of the investigation initiated on DATE in respect of the fight ( the court was apparently not aware that the investigation in question had been terminated on DATE see paragraphs CARDINAL and DATE above ) .

ORG underlined that all the aforementioned instructions had already been given by the ORG in the ruling of CARDINAL DATE , but had remained unlawfully ignored .

On DATE the NORP police department , to which the ORG had apparently forwarded the case , issued a decision refusing to institute criminal proceedings regarding NORP ’s death . In addition to the reasoning , which had already been given in the ORG ’s decision of DATE ( see paragraph CARDINAL above ) , the investigator stated the following . He had interviewed CARDINAL of the police officers and CARDINAL of the attested witnesses who had arrived at the scene together with the other officials for the on - site inspection on TIME ( see paragraphs CARDINAL above ) . The officer had confirmed what had already been stated in the report ( ibid . ) . The attested witness had submitted that the body had indeed been found floating in the water and that he had personally taken it to the shore in the presence of the other participants of the inspection . Lastly , the investigator referred to the accident report issued by the rescue station staff ( see paragraph CARDINAL above ) , without commenting on it . A general conclusion was reached that NORP ’s drowning had been an accident .

On DATE ORG upheld the above decision .

On DATE ORG quashed the aforementioned ruling in allowing the applicant ’s appeal and remitted the case to ORG for fresh examination . It noted that the first - instance court had incorrectly adjudicated the case in the applicant ’s absence . Furthermore , it had failed to duly assess the lawfulness of the impugned decision of DATE . ORG noted , in particular , that ORG had left the incompleteness of the investigation into NORP ’s death without any legal assessment , having ignored the applicant ’s argument in that regard .

On DATE ORG quashed the investigator ’s decision of DATE ( see paragraph CARDINAL above ) and ordered an additional investigation . It reasoned its ruling as follows :

“ ... The pre - trial investigation authority implemented the guidelines of the ... ORG Office of DATE ... and ... ORG ... of DATE in an incomplete and perfunctory manner .

As can be seen from the submitted materials , the pre - trial investigation authority failed to verify the arguments about the possible connection between the hooliganism - driven beating of [ NORP ] on TIME DATE and his subsequent death . Thus , while on DATE a criminal investigation ... was instituted into the fact of hooliganism , the case file regarding the investigation [ into the death ] does not contain any information about its outcome .

Furthermore , the pre - trial investigation authority did not verify [ the applicant ’s ] argument that her son could not have died swimming given that he had been afraid of water and could not swim and that the depth of the lake at the place where the body had been found was QUANTITY .

Moreover , not all the participants of the fight have been identified or questioned . This concerns , in particular , those nicknamed U. and T. , who might have been involved in the events that took place on DATE ...

Following the study of the materials on the basis of which the impugned decision was taken [ not to institute criminal proceedings ] , it has been established that the investigator did not fully implement the guidelines of the judge and the prosecutor and that the additional investigation was incomplete ... ”

On DATE the NORP police department issued another decision refusing to institute criminal proceedings regarding NORP ’s death with concise reasoning that it had been an accident . On DATE the ORG quashed this decision as unlawful and remitted the case to the ORG for additional investigation which is apparently still ongoing .

The relevant legal provisions can be found in GPE v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , DATE .


CASE OF DOROTA AND ZBIGNIEW NOWAK v. POLAND

Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicants were born in DATE and DATE respectively and live in PERSON .

On DATE the applicants lodged with ORG ( PERSON ) a claim for payment against GPE and GPE

On DATE the first instance court gave judgment . The defendants appealed .

On DATE ORG ( FAC ) partly remitted the case .

On DATE the ORG gave judgment .

The proceedings were terminated on DATE by the final judgment of ORG .

On DATE the applicants lodged with ORG of Appeal a complaint about a breach of the right to a trial within a reasonable time . They specifically relied on CARDINAL of the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) which entered into force on DATE .

The applicants sought a ruling declaring that the length of the proceedings before ORG had been excessive . They asked for an award of just satisfaction in the amount of MONEY ( ORG ) ( approx . ORG CARDINAL ) .

On DATE ORG gave a decision in which it acknowledged the excessive length of the proceedings before ORG . It awarded the applicants jointly and severally ORG CARDINAL in just satisfaction .

On DATE the applicants lodged a claim for payment against ORG ( Urząd Miasta ) and ORG ( ORG ) with ORG .

The first hearing was held on DATE .

On DATE the applicants specified that they wished to continue the proceedings only against ORG .

The hearing scheduled for DATE was adjourned at the ORG request .

On DATE the court held a hearing .

In a letter of DATE the applicants requested the court to accelerate the proceedings and to list a hearing .

On DATE and DATE the court held hearings .

On DATE , DATE and DATE the court ordered that an expert report be obtained . The expert ’s report was submitted to the court on DATE .

On DATE , DATE , CARDINAL DATE and CARDINAL DATE , DATE and CARDINAL DATE the court held further hearings , CARDINAL of which was adjourned at the applicants’ request .

On DATE ORG gave judgment . The parties filed their appeals on DATE .

On DATE ORG upheld the first instance judgment .

On DATE the applicants lodged with ORG of Appeal a complaint about a breach of the right to a trial within a reasonable time DATE Act .

On DATE ORG dismissed the ORG complaint . The court found that ORG had given judgment on DATE , thus at the time of the examination of the complaint the proceedings before the court of first instance had terminated . The court further held that the purpose of the complaint about a breach of the right to a trial within a reasonable time under LAW was to accelerate the proceedings and not only to afford financial compensation . The court consequently held that in the facts of the case there was no basis for declaring that the length of the proceedings had been excessive .

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


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the town of ORG , GPE .

NORP In DATE the applicant had an accident . Later he was registered disabled .

On DATE the applicant instituted proceedings against ORG of ORG , ORG , ORG and ORG in the NORP ORG of ORG claiming compensation for the damage caused to him as a result of the accident . The applicants also sought the rectification of his work records .

On DATE the case was transmitted to the Pridneprovsky ORG ( “ the first - instance court ” ) .

On DATE the first - instance court partly allowed the applicant ’s claims . On DATE it gave an additional judgment by which the remainder of his claims were left without consideration .

On DATE ORG of Appeal quashed the judgment of DATE and the additional judgment of CARDINAL DATE and remitted the case to the first - instance court for fresh consideration .

On DATE the first - instance court found against the applicant .

On DATE the ORG upheld that judgment .

NORP The applicant lodged an appeal in cassation with ORG against the judgment of DATE and the ruling of DATE . According to the applicant ’s submissions , he also challenged a number of the procedural decisions taken by the lower courts before ORG .

On DATE ORG dismissed the applicant ’s appeal in cassation .

In respect of the applicant ’s appeals in cassation against the procedural decisions , ORG informed him that they were not subject to appeal according to the provisions of LAW . However , the applicant tried to institute administrative proceedings against ORG , claiming that the latter had taken no action to consider his appeals in cassation . His efforts were to no avail .

The applicant ’s subsequent requests to have the judgment of DATE and the rulings of DATE and DATE reviewed under the extraordinary review procedure were rejected by the domestic courts as unsubstantiated .

NORP In DATE the applicant lodged a complaint against ORG for refusing to employ him . On DATE the Sosnivsky ORG of ORG found against the applicant . On DATE ORG upheld that judgment . On DATE ORG upheld the decisions of the lower courts . Later , the applicant tried to institute criminal proceedings against the judge of the Sosnivsky ORG of Cherkassy who had considered his case , alleging that he had forged the court records and destroyed important documents . His efforts were to no avail .

In DATE the applicant instituted proceedings against the Head of ORG of ORG , Mr NORP , in the NORP ORG of Cherkassy , challenging his actions . On DATE the court partly allowed his claims . On DATE ORG upheld that judgment .

In DATE and DATE the applicant instituted a number of administrative proceedings in the first - instance court complaining about actions of the judges at the first - instance court and ORG taken in their official capacity while considering his claims . These claims were rejected by the first - instance court . The applicant failed to provide detailed information about any appeals lodged with the higher courts against the rulings to reject his claims .


The applicant was born in DATE and lives in GPE .

At the time of the events , the applicant was a corporal in the Hakkari ORG of ORG .

On DATE the brigadier general ( tuğgeneral ) filed an indictment against the applicant with the Hakkari Military Disciplinary Court which was attached to the LOC and ORG . He accused the applicant of insulting his subordinates , of deliberately hiding the truth from his superiors and of giving abusive commands to his subordinates which did not concern military service . In particular , the applicant was accused of forcing his subordinates to make his bed , or do his personal shopping and laundry . On DATE , the ORG , which was composed of a major ( binbaşı ) , a captain ( yüzbaşı ) and a sergeant major ( başçavuş ) , found the applicant guilty as charged and sentenced him to “ room arrest ” for DATE .

On DATE the applicant appealed .

On DATE ORG attached to ORG gave a decision of non - jurisdiction regarding the first charge and sent the case file to ORG attached to ORG for reconsideration . It acquitted the applicant of the second charge . However , it established that he had given abusive orders to his subordinates . It therefore upheld the decision of DATE in respect of the third charge . As a result , the applicant was ordered to serve DATE “ room arrest ” .

On DATE the applicant petitioned the Minister of Defence for a referral of his case to the office of the public prosecutor at ORG , by means of an appeal against the decision of ORG . He complained , in particular , of a breach of Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Convention .

On DATE the Chief Magistrate of Military Justice , acting on behalf of ORG , dismissed the applicant 's petition .

NORP The relevant provisions in force at the material time provided as follows :

“ ... The Administration shall not impose any sanction resulting in a restriction of personal liberty . Exceptions to this provision may be introduced by law regarding the internal order of ORG . ... ”

“ Military justice shall be dispensed by military courts and military disciplinary organs . These courts and tribunals shall be responsible for conducting proceedings concerning offences committed by military personnel in violation of military law or are committed against other military personnel , on military LOC or in connection with military service and related duties .

Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law , or have been committed against military personnel , either during their performance of duties designated by law or on military LOC so designated .

The jurisdiction of the military courts as regards persons and offences in time of war or a state of emergency , the composition of such courts and the secondment of civilian judges and prosecutors to them where necessary , shall be regulated by law .

The organisation and functions of military judicial organs , the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve , shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary , and with the requirements of military service . Relations between military judges and the commanders under whom they serve as regards their non - judicial duties shall also be regulated by law in accordance with the requirements of military service . ”

The pertinent provisions of PERSON no . CARDINAL , applicable at the material time , provided as follows :

“ The Disciplinary Courts shall be composed of CARDINAL commissioned officers . When prosecuting a non - commissioned officer or a private soldier , CARDINAL of the members of the court shall be selected amongst the non - commissioned officers . ”

“ The members are appointed for DATE by the commanding officer of the military unit . They can not be removed from office during this period . Moreover , the members of the court can not be subordinate to the accused . ”

“ The president and the members are obliged to have served in the military sections or military institutions for DATE , not to have been convicted of an offence except for crimes committed by imprudence , not to be of an inferior rank to the suspect and the president must be , at least , a captain in military rank . ”

“ ... there must be CARDINAL officer who is a member of the military legal service or is a military prosecutor ... ”

“ The members of the court are prevented from carrying out this duty in the following conditions :

a ) if he [ or she ] is a victim of the alleged crime ;

b ) DATE if he[or she ] has any sort of hereditary or marital relation to the accused ;

c ) if he [ or she ] is a relative of the accused ;

d ) if he [ or she ] has defended the accused or carried out an executive duty in the course of the proceedings ;

e ) if he [ or she ] has acted as an expert or a witness during the proceedings ;

f ) if there are reasonable doubts regarding his [ or her ] impartiality . ”

“ The commanding officer of the relevant military unit , the executive officer of the military institution , or the accused , has the right to appeal against the decision of ORG . ”

“ Room arrest or surveillance sentences given by ORG :

A ) Concerning commissioned and non - commissioned officers , civilian staff members , gendarmerie , corporals and sergeants who are military specialists :

II . NORP the sentence of room arrest :

a ) In case of availability , the sentence is served alone in a cell .

b ) The arrestees can not give any orders .

c ) They can not continue with their general duties .

C ) Concerning privates , sergeants and corporals :

a ) They serve their room arrest , together with other convicts , in a cell .

b ) The cell is guarded .

c ) During their sentence , sergeants and corporals can not continue with their general duties . Privates may be employed for austere military services . ”

“ The room arrests ordered by ORG , and served by reserve officers , sergeants and corporals ( except those who are military specialists ) are not considered to be part of military service . Therefore , these officers are discharged from military service after serving the additional time which they have spent in room arrest . ”


Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in ORG ( GPE ) .

On DATE the applicant married GPE , a NORP national . The couple had a child , PERSON , born in DATE .

By a judgment of CARDINAL DATE , the PERSON tribunal de grande instance granted the couple a divorce based on GPE ’s fault and ordered that the child reside at the applicant ’s home , with the mother to have rights of access . Earlier , on DATE , the applicant had already been granted interim custody of PERSON by a decision of the same court .

On DATE GPE abducted PERSON from his paternal grandmother ’s home and took him with her to GPE . The applicant filed a complaint against GPE for child abduction and assault . By a judgment of the PERSON tribunal de grande instance of DATE , GPE was found guilty and sentenced in absentia to DATE imprisonment . A warrant was issued for her arrest .

On DATE , relying on LAW of DATE on ORG and on LAW between GPE and GPE for ORG of DATE , the applicant lodged an application for the child ’s return with ORG , which was the NORP “ ORG ” within the meaning of both instruments . On DATE , ORG requested ORG ( “ the ORG ” ) , which forms part of ORG and is ORG , to secure the child ’s return pursuant to the provisions of the PERSON - Portuguese convention .

On DATE the ORG referred the application to the prosecution service of the NORP judicial district , where the applicant had indicated that GPE was living . On DATE the prosecution service applied to that court for the judicial return ( entrega judicial ) of the child pursuant to section CARDINAL et seq . of LAW ( Organização Tutelar de Menores ) and relying on the above - mentioned PERSON - Portuguese cooperation convention .

On DATE the judge of ORG of ORG , to which the case had been allocated , summoned the child ’s mother to appear before the court to make submissions concerning the prosecution ’s application . Registered letters with acknowledgment of receipt were sent on CARDINAL and DATE to the address given by the applicant . However , both letters were returned to the court with the acknowledgments of receipt unsigned and unclaimed . On DATE the judge , at the prosecution ’s request , asked the police to find out where PERSON ’s mother was living . On DATE and DATE respectively the security police and the NORP national guard informed the court that GPE was not living at the stated address .

On DATE the ORG asked ORG for information about the progress of the proceedings . The judge replied on DATE to the effect that the child ’s mother had not yet been found .

On DATE the prosecution service asked the judge to write to the GPE social security office to request information concerning GPE ’s address and workplace . On DATE the judge ordered the registry to send the letter in question , which was sent on DATE . On DATE the social security office replied that it had no record of GPE on file .

On DATE the judge asked the ORG to find out GPE ’s current address . When it was reported that she might be in the GPE area , the relevant social security office was contacted but indicated in a letter of CARDINAL DATE that it had no record of her .

On DATE ORG sent ORG a copy of the decision taken on DATE as part of proceedings for the award of parental responsibility ( see paragraph CARDINAL below ) . On DATE the judge sent a copy of the decision to the prosecution service , pointing out that the address from which GPE had been summoned to appear in those proceedings was the same as that originally given by the applicant .

On DATE the prosecution service asked the judge to seek information from ORG and ORG . On CARDINAL and CARDINAL DATE those companies replied that they did not have any contracts in GPE ’s name .

On DATE the judge insisted that GPE be summoned from the address in question . The registered letter sent for that purpose was however returned to sender .

On DATE GPE informed the court that she had applied to ORG ( ORG ) for a transfer of parental responsibility for PERSON .

On DATE the judge ordered a court bailiff to compel GPE to appear . The bailiff went to the address in question on DATE to be told , by CARDINAL of GPE ’s aunts , that GPE did not live there . GPE ’s aunt also said that she did not know her niece ’s current address .

On DATE the judge asked the civil identification services of ORG for information about GPE ’s whereabouts .

By a letter of CARDINAL DATE the ORG informed the court that they had asked the police to discover GPE ’s whereabouts . They observed that the police had since told them that the child ’s mother had brought proceedings for a transfer of parental responsibility for PERSON and pointed out that it was now possible to locate GPE by the address she had given when she brought those proceedings .

By an order of CARDINAL DATE the judge decided to ask the police again for GPE ’s current address . He also asked the registry to inform ORG of the existence of the application for the child ’s return with a view to securing a stay of the proceedings for the transfer of parental responsibility then pending before that division .

On DATE the applicant , through his representative , filed an ad litem power of attorney and a request to be kept informed of the steps in the proceedings . He also indicated that he had lodged a criminal complaint against GPE By a decision of CARDINAL DATE , the judge rejected the applicant ’s request on the ground that he was not a party to the proceedings .

On DATE the security police indicated that the address in question was that of GPE ’s parents , who claimed that they did not know her current address . On DATE the judge again decided to seek information from ORG and ORG and from the social security offices of GPE , GPE , GPE and PERSON . DATE all these organisations replied that they had no record of GPE on their files . On DATE the judge again asked the police for information about GPE ’s current address . On DATE the security police indicated that the address was unknown .

On DATE the ORG sent the court a copy of a police report according to which PERSON might be found in a flat recently purchased by CARDINAL of GPE ’s sisters in ORG district ) .

Acting on information supplied by the ORG the applicant travelled to GPE , where he claimed to have seen his son and a third party in the apartment in question on DATE . He informed the NORP consulate general in GPE , which asked ORG to contact the police and ORG as a matter of urgency in order to secure the child ’s return . On DATE the ORG informed the court and asked it to take all necessary steps to secure the child ’s return . On DATE the judge ordered that PERSON be immediately handed over to the ORG and issued a warrant to that effect . On DATE the ORG advised the court that the NORP national guard had been to the address in question on DATE . However , the warrant did not give it the power to force entry into the flat and , since PERSON ’s mother had refused to open the door , it had not been possible to return the child .

The judge subsequently asked the NORP national guard why the warrant had not been executed . On DATE the national guard stated that officers had been to the address in question several times but no one had answered the door .

In the meantime , on CARDINAL DATE , GPE applied for the proceedings to be discontinued , relying on LAW cooperation convention and submitting that PERSON was fully integrated in his new environment .

The judge delivered his judgment on DATE . First he found that GPE should be regarded as having been properly summoned to appear because she had already intervened in the proceedings . He then rejected her application for a discontinuation and ruled that PERSON should be handed over immediately to the ORG . Lastly , he ruled that if she failed to comply with the decision GPE was liable to be prosecuted under section CARDINAL(CARDINAL ) of LAW for non - compliance with a legal order ( desobediência ) .

On DATE GPE appealed against that judgment to ORG ) . On DATE the judge found the appeal admissible and ordered that it should be referred , without suspensive effect , to ORG . ORG dismissed the appeal by a ruling of DATE .

On DATE GPE appealed on points of law to ORG ( Supremo Tribunal de Justiça ) , but on DATE her appeal was ruled to have lapsed ( deserto ) for want of pleadings having been filed .

On DATE ORG judge asked a bailiff to warn GPE that if she failed to hand PERSON over to the ORG she would be prosecuted for non - compliance . On DATE the bailiff reported that no one seemed to be living at the address indicated . On DATE the judge again asked the police for information about GPE ’s current address .

On DATE the police found PERSON and GPE On DATE the judge ordered PERSON to be placed in a children ’s home under the ORG ’s supervision . GPE was permitted to remain with PERSON in the children ’s home . The principal of the children ’s home then refused to hand PERSON over to the applicant , without a “ court order to that effect ” . On DATE GPE lodged a summary application with ORG seeking to prevent PERSON being handed over to the applicant . The applicant claimed that he was not told of the outcome of that application . On DATE PERSON was handed over to GPE in accordance with the decision of ORG on DATE ( see paragraph CARDINAL below ) .

On DATE the prosecution service asked the judge to suspend the DATE judgment , on the ground that , after so much time had elapsed , PERSON ought to be examined by child psychiatrists before being handed over to the applicant .

By a decision of DATE the judge dismissed that request , on the ground that the disputed judgment had already become res judicata .

On DATE the prosecution service appealed to ORG . By a judgment of DATE , ORG quashed the disputed decision . It considered , among other things , that PERSON already seemed well settled in his new environment and that the examinations in question were entirely appropriate .

On DATE the NORP ORG judge asked ORG to proceed with the examinations .

On DATE the applicant was advised that PERSON would be undergoing a medical examination on DATE . The applicant has not been informed of the results of those examinations . The proceedings are still pending .

In DATE the prosecution service applied to ORG for the terms of parental responsibility for PERSON to be fixed . The case was allocated to ORG of that court .

GPE was summoned to appear from the address given by the applicant when he lodged his application for the child ’s return , which was pending before ORG of ORG .

On an unspecified date the prosecution service asked the judge to stay the proceedings in view of the fact that the application for the child ’s return had not yet been decided .

By an order of CARDINAL DATE the judge stayed the proceedings .

Further to the DATE ruling by ORG , the judge issued a decision on DATE to discontinue the proceedings .

DATE . On DATE the prosecution service lodged a further application for determination of the terms of parental responsibility for PERSON at ORG . It sought a variation of the PERSON tribunal de grande instance ’s judgment of DATE on the ground that the child had settled in his new environment . It also asked the court to grant interim custody of GPE to GPE

By a decision of DATE the court granted GPE interim custody of PERSON .

On DATE a meeting ( conferência ) was arranged between the parents . Following that meeting , the court decided that the applicant could be granted rights of access . The applicant was thus able to visit PERSON at GPE ’s home on CARDINAL , DATE and DATE for TIME .

The proceedings are still pending .

ORG had remained in contact with the ORG throughout all the above - mentioned proceedings . The NORP embassy in GPE and the NORP consulate general in GPE sent several requests to the NORP authorities for information on the progress of the case .

Thus , on DATE the NORP embassy in GPE asked ORG to intervene in order to “ expedite enforcement of ORG decision of DATE requiring PERSON [ GPE ] to hand over the child PERSON to his father immediately ... pursuant to ORG between GPE and GPE ... The police must ... now be formally required actively to search for the child ... whose mother ’s family in GPE seem to know where he is because DATE he was located in a flat belonging to his aunt in GPE .

By a letter of DATE the consul general informed the applicant as follows :

“ ... the Ambassador discussed your case with the director of the [ NORP ] Minister of ORG ’s private office and with the public prosecutor . What emerged from those discussions is that recognition by the NORP courts of the NORP court decision to convict your former wife of a criminal offence is a complex issue and may not be satisfactorily resolved . However , ... the decision of the NORP civil courts that the child should be returned to you is final . The NORP prosecutor has asked the ORG and the security [ police ] to carry out a search . This search ... has not so far been successful , which is why the NORP authorities fear that mother and child may have left GPE . Our Ambassador was nonetheless advised that the search would continue for as long as there was no proof that they had left the country ... ”

LAW , which was ratified by GPE on DATE and by GPE on DATE , requires GPE Parties to “ take measures to combat the illicit transfer and non - return of children abroad ” . For that purpose , GPE “ shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements ” .

The relevant provisions of LAW of DATE on ORG , which was ratified by GPE on DATE and by GPE on DATE , provide :

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

“ Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention . For this purpose they shall use the most expeditious procedures available . ”

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ”

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities .

“ ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures :

( a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;

( b ) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

( c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

( d ) to exchange , where desirable , information relating to the social background of the child ;

( e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

( f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organising or securing the effective exercise of rights of access ;

( g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

( h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

( i ) to keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... ”

“ Where a child has been wrongfully removed or retained ... and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( a ) NORP the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

The relevant provisions of ORG between GPE and GPE for ORG of DATE provide :

DATE Right of action

“ CARDINAL . Where the voluntary return of the child is refused , ORG shall refer the case without delay , through the intermediary of the court prosecution service , to the appropriate judicial authorities to secure either the enforcement in the requested ORG of the enforceable decisions taken in the requesting ORG , or a ruling on the application for the child ’s return .

NORP The case may also be referred to the judicial authorities by the interested party .

Enforcement of decisions shall be sought from the court within whose jurisdiction the minor is located or presumed to be located . ”

Article DATE Protective procedure for restoring the status quo

“ CARDINAL . The court of the ORG to or in which the child has been removed or wrongfully retained shall order , as a protective measure , the child ’s immediate return unless the person who removed or retained the child establishes that :

( a ) DATE has elapsed between the removal or retention and the making of an application to the judicial authorities of the ORG where the child is located ; or

( b ) at the time of the alleged violation the person to whom custody had been awarded before such removal was not exercising his right of custody of the child either effectively or in good faith ; or

( c ) the child ’s return would seriously jeopardise its health or safety owing to the occurrence of an exceptional event since the award of custody .

NORP In assessing the circumstances listed above , the judicial authorities of the requested State shall take direct account of the law and judicial decisions of the State where the child is habitually resident . They shall take into consideration the information provided by ORG of the State where the child is habitually resident concerning the legislation on custody in that ORG and concerning the child ’s social background .

A decision on the child ’s return shall not affect the merits of the custody issue .

LAW of custody rights

“ Where a court in the ORG to or in which the child has been removed or wrongfully retained finds that one of the exceptions listed in DATE ( b ) or ( c ) of the preceding Article applies , it may rule on the merits of custody on the expiry of DATE after the child ’s removal or retention provided that the child has settled in its new environment . ”

Section CARDINAL of LAW adopted by LAW no . CARDINAL of DATE provides , inter alia :

“ ( CARDINAL ) If the minor has left his GPE house or the house provided for him by his parents or if he has been removed from it or if he is not in the custody of the person or institution to which legal custody has been awarded , an application for his return shall be made to the court with jurisdiction over the area where the minor is located .

( CARDINAL ) NORP If proceedings are brought , the guardian and the person who cared for or retained the minor shall be summoned to make submissions in reply within a period of DATE .

( CARDINAL ) If there are no submissions in reply , or if such submissions are manifestly ill - founded , the court shall order the child ’s return and indicate where it is to take place ; the court shall order such return only where it considers it necessary ; the person concerned shall be served with the order so as to be able to effect the return in accordance with its terms , on penalty of being prosecuted for non - compliance with a legal order .

Under LAW , non - compliance with a legal order is punishable by a term of imprisonment of DATE or by a fine not exceeding CARDINAL DATE - fines .