Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was arrested in PERSON on DATE by ORG of ORG , on suspicion of aiding and abetting the ORG .

On DATE the applicant signed a form whereby his rights as a detainee were explained to him . The form included his right to inform one of his relatives about his detention and his right to request the assistance of a lawyer .

According to the custody records ( nezaret kayıt defteri ) , the police informed the husband of the applicant ’s sister about his detention . Moreover , it was noted in these records that the applicant did not request the assistance of a lawyer .

During his interrogation by the police officers at ORG , the applicant confessed in detail to his involvement in the activities of the ORG . According to the interrogation minutes dated DATE , drafted by the police and signed by the applicant , he was informed of his right to have access to legal assistance of CARDINAL or more lawyers at any stage and level of the investigation .

On DATE the applicant was transferred to ORG of ORG , for further questioning .

On DATE , upon the request of ORG , ORG authorised the applicant ’s detention in police custody until DATE .

On DATE , during his questioning by ORG at ORG , the applicant described the work that he carried out for the ORG . He confessed that he was working as a courier for the members of the organisation who were in prison . On DATE the applicant was brought before the ORG . He denied his statement given in ORG , as he alleged that he had signed it under duress . He confirmed his statement given before the public prosecutor . The magistrate ’s court ordered his detention on remand .

On DATE ORG at ORG filed a bill of indictment charging the applicant with membership of a terrorist organization , the ORG , and with assisting and abetting the said organisation , contrary to Articles CARDINAL of LAW and LAW of DATE . Before ORG , the applicant was represented by his lawyer .

On DATE , the court convicted the applicant under LAW of LAW and sentenced him to DATE and CARDINAL months’ imprisonment . The court held that during his questioning by the police and the public prosecutor , the applicant had described his involvement with the activities of the ORG . Moreover , although in his statements given during the hearings he had claimed that he was not a member of the ORG , he had explained in detail his involvement with the activities of the organisation . Moreover , the other accused had also confirmed the fact that the applicant took new members of the organisation to the east of the country to join the guerrilla fight carried out in the mountains and acted as a courier for ORG members who were in prison .

On DATE ORG upheld the decision of DATE .

The fourth paragraph of LAW ( as amended by PERSON no . CARDINAL/CARDINAL of DATE ) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and , if successful , be released .

Section CARDINAL of Law no . CARDINAL on ORG or ORG provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons :

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... ”


Violation of Art. 6-1 + 6-3-d;Just satisfaction partially reserved;Costs and expenses award - Convention proceedings

The applicant , a pensioner of NORP nationality , is at present residing in GPE .

On TIME DATE a burglary was committed in a café at PERSON , in the GPE . From footprints found at the scene of the crime , the police inferred that CARDINAL persons had taken part in the burglary .

On DATE QUANTITY women , a mother and a daughter , came to the police station . After having received the assurance that their anonymity would be respected , they reported to the officers in charge that , on TIME , they had seen CARDINAL men in a minibus in the vicinity of the place where the crime had been committed . CARDINAL of the men had passed them in the street , under a street lamp , at TIME , his face partly covered by a handkerchief . The suspicious appearance of the men led the CARDINAL witnesses to take down the licence number of the minibus .

The police arrested the owner of the minibus , who denied having had anything whatsoever to do with the burglary . As to the second man referred to by the anonymous witnesses , suspicion first fell on a former waiter at the café , but he had an alibi for TIME in question . The investigations then concentrated on his acquaintances , including the applicant .

Subsequently , the police informants were shown various photographs of the applicant and they recognised him as being the man who had passed them in the street .

PERSON was arrested on DATE . On DATE the police arranged for a " covert confrontation " of the applicant with the CARDINAL witnesses . It took place in PERSON at TIME : they were sitting in a car QUANTITY from the suspect and could not be seen by him ; he was holding a handkerchief in front of his face . They had no hesitation in identifying him as CARDINAL of the men they had seen . The applicant denied having been at PERSON , claiming that he had been in GPE throughout TIME in question .

On DATE he and the owner of the minibus were charged with burglary ( schwerer PERSON ) .

ORG ( PERSON ) held a hearing on DATE during which CARDINAL police officers gave evidence concerning the statements made by the QUANTITY witnesses mentioned above . Their identity was not , however , disclosed in the court proceedings .

The applicant ’s requests to have those witnesses summoned to appear and to be confronted with them were rejected by ORG . It noted that the police officers concerned had promised not to reveal the names of the witnesses , who feared retaliation , and that ORG ( Landesgendarmeriekommando ) had not released the officers from their duty of secrecy in this respect . The court also considered that the police ORG testimony established sufficiently what the QUANTITY women had seen and that they were reliable . The decision not to disclose their identity was therefore justified .

On DATE ORG , after hearing evidence from several witnesses , including another police officer , convicted the applicant and his co - accused of burglary and indicated orally the principal grounds for its decision . PERSON was sentenced to CARDINAL GPE imprisonment , from which the periods of detention on remand were to be deducted . He stated immediately that he intended to lodge an application for a declaration of nullity ( PERSON ) and an appeal against sentence ( GPE ) .

The written judgment of ORG was served on the applicant on DATE . Extensive reference was made therein to the statements of the CARDINAL unidentified witnesses to the police . In relation to the question of their anonymity , the court stated :

" The names of these QUANTITY women are not known to the court . ORG had not released the investigating officers from their duty of secrecy , and they could not therefore disclose the identity of the CARDINAL women . The court is bound by this decision ... . In this connection it should be stated that the police are under instructions to co - operate with the public in investigating crime . The QUANTITY women asked the investigating officers not to disclose their names , because they are afraid of reprisals . The QUANTITY women are simple but trustworthy persons . The investigating officers of the criminal investigation department can be relied upon for this kind of assessment . It is therefore entirely acceptable that the QUANTITY persons should remain anonymous . "

ORG also took into consideration that another witness had provided the applicant , at his request , with certain details concerning the victim and his financial situation , and that the CARDINAL defendants had been seen in GPE , leaving a bar together , shortly before the events in question . Furthermore , the court found that the evidence given by the QUANTITY witnesses called on PERSON behalf had failed to establish an alibi . It concluded that PERSON , together with his co - accused , had committed the crime .

On DATE ORG ( Oberster Gerichtshof ) rejected PERSON application for a declaration of nullity . In its view , his request to have the anonymous witnesses summoned and examined could serve no purpose since it had not been specified how their identity would be established and because the police had refused to answer enquiries in this respect . It would have been possible to identify the CARDINAL witnesses by taking evidence from X , whom , according to their statement , they had met on the TIME in question . However , the applicant had not submitted any request to this effect .

The applicant ’s appeal against sentence was dismissed on DATE .

By a letter of DATE the Government informed the Registrar that the Attorney - General had recently brought before ORG a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes - Article CARDINAL of LAW ) against the judgment of DATE .

The taking of evidence at a trial is governed by ORG to CARDINAL of LAW Strafprozessordnung ) .

Article CARDINAL para . CARDINAL provides that " witnesses and experts shall be called separately and heard in the presence of the accused " . The presiding judge and the other members of the court , the public prosecutor , the accused , the party seeking damages and their representatives may question them ( Article CARDINAL ) . However , in certain exceptional circumstances , their previous statements may be read out at the hearing ( Article CARDINAL ) .

No provision deals expressly with statements made by anonymous witnesses and hearsay evidence .

The assessment of evidence by the trial court is provided for in LAW , which reads as follows :

" ( CARDINAL ) In passing judgment the court shall only have regard to what has occurred at the trial

( CARDINAL ) The court has to examine the evidence carefully and conscientiously with regard to its trustworthiness and conclusiveness separately and in its entirety . The judges do not decide upon the question whether or not a particular fact has been proven according to formal rules of evidence , but only according to their own conclusions drawn on the basis of their careful examination of all evidence before them . "


Violation of P1-1;Non-pecuniary damage - reserved;Pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings

The applicants owned a number of plots of land located in GPE , on FAC .

In DATE a local land development plan was adopted under which a local health centre was to be built on their land . However , this plan was not implemented and apparently the land was later designated for the construction of small individual houses .

In DATE the applicants requested the municipal authorities to reclassify their land so that it could be used for construction purposes . In DATE they were granted an initial approval for a development project on their land ( decyzja o warunkach zabudowy ) .

In DATE they obtained a permit under LAW DATE to divide their plot , which was listed in the local land register as plot no . CARDINAL , into CARDINAL smaller plots suitable for the construction of individual houses ( decyzja o zatwierdzeniu projektu podzialu nieruchomości ) .

In DATE ORG announced that it was intending to adopt a new land development plan under which part of the applicants’ property was to be used for the construction of a major roadway . On DATE the applicants lodged their objections against the proposed amendments . On DATE the amendments were adopted by the ORG . The ORG objections were not taken into consideration .

On DATE the applicants requested that final construction permits ( zezwolenie na budowę ) be granted to them in respect of certain plots on the basis of the decisions given in DATE ( see paragraph CARDINAL above ) .

NORP In DATE the local ORG administration obliged ORG to draw up a financing plan for local infrastructure investments , including the road network , and to fix time - limits for the purchase from their owners of plots necessary for the implementation of the plans .

On DATE the applicants requested ORG to amend further the local plan as amended in DATE by providing that the projected roadway would , instead of CARDINAL , be QUANTITY wide , as provided for in DATE decisions allowing their property to be divided into smaller construction plots .

In a letter to FAC DATE , communicated to the applicants for information , the PERSON Governor stated that the construction of the roadway would not be provided for in the financing scheme for the local land development plan until DATE . Therefore , no purpose was served by blocking the development of the properties concerned .

Subsequently , in DATE the local municipality informed the public that it would start proceedings in order to amend the DATE land development plan in its part concerning the projected roadway .

On DATE the applicants submitted a request to obtain a final construction permit for their plot no . CARDINAL on FAC . Those proceedings were subsequently stayed , the authorities considering that no decision could be given before the changes to the development plan had been adopted .

In DATE the local municipality made public the proposed amendments to that plan . In DATE the applicants lodged their objections against them .

On DATE the applicants asked the Mayor when ORG would discuss the new amendments to the plan .

On DATE they were informed that ORG would discuss the amendments to the plan at its session to be held on DATE , but that it would most likely decline to make any changes to it .

On DATE the ORG decided not to make any changes to the DATE plan as proposed by the applicants and other persons who had lodged objections against the amendments . It was observed that the proposed changes had resulted in a number of objections being lodged by the owners of properties concerned . It was impossible to reconcile all of the conflicting interests . It was further acknowledged that the proposed amendments to the plan would free some of the applicants’ plots . However , on the whole , and having regard to the number of serious objections against the changes , it was not considered feasible to amend the plan accordingly . In particular , it would not have been feasible to build the projected roadway if it were to be QUANTITY wide , as had been proposed inter alia by the applicants . Moreover , had the plan been amended , the municipality would have incurred substantial expenditure for the purchase of plots which would have to be used for the construction of the roadway . It was further noted that the local investment plan did not provide for the construction of the road to begin before DATE . Nevertheless , it would be premature to give up the construction , since there remained a possibility that the necessary funds might eventually be secured from ORG funds .

The applicants lodged a complaint against this decision with ORG . The court rejected their complaint as it was still open to them to have recourse to a remedy provided by local government legislation , namely requesting ORG to bring its actions into conformity with the law . The applicants accordingly did so .

On DATE ORG refused the ORG request .

On an unspecified later date the ORG request for the final construction permits for their plots was dismissed , regard being had to the fact that these plots were in the vicinity of the projected road .

The applicants lodged a complaint with ORG against the municipality ’s failure to adopt changes to the local development plan . They argued that under the DATE land development plan they could not use their property in accordance with their wishes . Their requests to obtain final construction permits had been refused . The local investment plans did not provide for any work in connection with the construction of the roadway to be carried out before DATE at the earliest and until then they were be prevented from making use of their property . Therefore , they had to bear an intolerable burden in that the local municipality had adopted the plan to build a roadway which would necessitate their expropriation at some undetermined time in the future . However , that plan could not be implemented in the foreseeable future because of lack of financial resources .

On DATE ORG dismissed their complaint . The court recalled the history of the local development plan dating back to DATE . The court noted the municipality ’s argument that the current budget did not allow for the construction of the roadway . It considered that the applicable planning laws did not make it obligatory for the municipality to amend existing land development plans in response to every request of the public . The nature of the policy functions of the municipality in the area of land development was such that the municipal organs could not be taken to be under an obligation to amend the plan once it had started the relevant proceedings .

The DATE local development plan for the GPE municipality expired on DATE ( see paragraph CARDINAL below ) . Apparently no new plan was adopted thereafter . In DATE the first applicant requested the municipal authorities to grant her initial planning permission and it was granted in DATE .

DATE to DATE questions of land development were governed by LAW of DATE .

On DATE a new LAW was enacted . It entered into force on DATE .

On DATE ORG passed a law amending LAW DATE .

On DATE a new LAW was enacted which repealed LAW .

Under the provisions of land planning legislation as applicable at the relevant time , land development plans were adopted by organs of local government . A decision to prepare a new plan was taken by a local council . Subsequently , the local mayor prepared , with the assistance of the local administration , a draft land development plan . The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than DATE . All members of the public were entitled to submit objections and comments on the draft plan .

A final plan was adopted by way of a resolution of a local council . The council , when voting on the draft plan , also decided whether and , if so , in what manner , objections and comments submitted by the local public were to be considered .

Under LAW of DATE owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time .

Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities . The municipalities were obliged either to buy plots designated for future expropriation under local land development plans , or to replace those plots by other plots within DATE from the date on which a relevant request was submitted by the owner , or to award compensation for damage caused by the fact that the plot was designated for future expropriation .

NORP However , this obligation and the corresponding claims of the owners applied only to plans adopted after the LAW had entered into force , that is to say , to plans adopted by local municipalities after DATE .

Pursuant to the DATE Act , plans adopted before the date of its entry into force were to expire on DATE .

In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE , namely until DATE .

On DATE ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .

Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .

Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by LAW . Pursuant to LAW , when , following adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts .

NORP From DATE to CARDINAL DATE the rules governing the administration of land held by ORG and municipalities were laid down in ORG of DATE ( the “ DATE LAW ” ) .

Article CARDINAL of this Act provided that properties could be expropriated only for the benefit of the ORG or a municipality .

Pursuant to LAW , a decision on expropriation had to include in particular :

“ ( CARDINAL ) an indication of the property to be expropriated , ...

( CARDINAL ) an indication of the party upon whose initiative the property is being expropriated ,

( CARDINAL ) an assessment of the amount of compensation ,

( CARDINAL ) identification of the persons ( name , surname and address ) entitled to compensation ,

( CARDINAL ) detailed factual and legal grounds ,

( CARDINAL ) instructions on appeal procedures . ”

Under LAW , expropriation was to be carried out against payment of compensation . The payment was to be made within DATE from the date on which a decision to expropriate had become final .

On DATE the DATE LAW was repealed and LAW of DATE ( LOC o gospodarce nieruchomościami – “ the DATE LAW ” ) was adopted , containing similar provisions on expropriation and compensation .

Until DATE the organisation of construction was governed by LAW ( Prawo budowlane ) .

Section CARDINAL of that Act provided that construction works could be carried out only on land designated for construction purposes in local land development plans adopted under relevant provisions of land development legislation .

Section CARDINAL of that Act read :

“ Every person has a right to build on land , provided that he or she possesses a right to use this land for building purposes and that the building project is in compliance with applicable provisions of building laws . ”

LAW of LAW DATE ( see paragraph CARDINAL above ) provided that division of land into smaller plots designated for construction purposes could be effected by way of an administrative decision only if such a division was in compliance with the local land development plan .

Section CARDINAL of the Building Act DATE provided that all essential urban planning , architectural and technical questions connected with a given building project were to be resolved before construction was started . Pursuant to LAW , the local land development plan was the basis on which all relevant decisions were to be taken .

Land owners wishing to commence building projects . were obliged to obtain first from the local administration an initial development permit ( decyzja o warunkach zabudowy i zagospodarowania terenu ) .

Under LAW of the LAW , building works could be commenced after a final construction permit ( pozwolenie na budowę ) had been granted .

The Construction Act DATE was repealed by a new law enacted on DATE . It entered into force on DATE .

Under LAW ( CARDINAL ) of the LAW , building works could be commenced once a final construction permit ( pozwolenie na budowę ) had been granted .

Under LAW ( CARDINAL ) of LAW , prior to submitting to the competent local authority a request to be granted a construction permit , an owner is obliged to obtain from the local authorities a decision on building conditions ( decyzja o warunkach zabudowy i zagospodarowania terenu ) , provided for in LAW ( CARDINAL ) of LAW DATE as it stands DATE .

Under this latter provision , such a decision should specify the essential characteristics of the land concerned and of the future construction project , if they differ from the use of that land provided for by the local land development plan .

Under LAW of LAW , once such a decision has been obtained , the owner can apply for a construction permit ( pozwolenie na budowę ) .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

On various dates each of the applicants received CARDINAL or more final decisions awarding payments by companies ( see appendix for details ) in which the ORG holds PERCENT of the share capital , and instituted enforcement proceedings to collect the payments .

After those decisions had become final , insolvency or liquidation proceedings against the debtors were initiated . ORG then terminated the enforcement proceedings against them and transferred the applicants ' writs of enforcement to the relevant liquidation commissions for further processing . Some of the debtors were finally liquidated .

In view of the lengthy non - enforcement of the decisions in their favour , some of the applicants ( PERSON , PERSON and PERSON PERSON ) unsuccessfully sued ORG for damages . The other applicants complained to various ORG authorities , also to no avail .

Most of the decisions in the applicants ' favour were enforced ( see appendix for details ) .

The relevant domestic law is set out in the judgment of CARDINAL July CARDINAL in the case of ORG v. GPE ( no . CARDINAL , § § DATE ) .


Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant , Mr Yevgeniy Yukhymovych Zakharov , is a NORP national who was born in DATE and lives in GPE . He is a co - chairman of ORG ( a human rights NGO registered in ORG ) , and an Editor - in - Chief of a “ Human Rights Bulletin ” ( human rights magazine ) .

On DATE the applicant , in his capacity as the Editor - in - Chief of “ Human Rights Bulletin ” , the co - Chairman of ORG and referring to ORG DATE and CARDINAL of LAW , requested ORG to provide this non - governmental organisation with statistical data as to a number of judges and/or law enforcement officers convicted of bribery , ill - treatment of private persons and defamation in DATE and DATE . He further requested ORG to confirm or to deny information disseminated in the DATE ORG on GPE . This report referred to statistical information disseminated by ORG of GPE in DATE .

On DATE the First Deputy Prosecutor General replied that such data was not available at ORG ( hereafterGPO ) and recommended the applicant to request it from ORG that was dealing with the judicial statistics .

On DATE the applicant , again acting in his official capacity as the Editor - in - Chief and the co - chairman of ORG , requested ORG to ensure that the regional prosecutor ’s offices provided responses to similar to the above requests that were sent to these offices . In particular , he mentioned that the Volyn , GPE , GPE , PERSON , PERSON and PERSON regional prosecutor ’s offices had replied to his requests . However , others did not reply or refused to provide such information .

On DATE the First Deputy Prosecutor General informed the applicant , as Editor - in - Chief of the “ Human Rights Bulletin ” , that such statistical data was given not only by the regional prosecutor ’s offices , but by ORG and ORG , which transfer it to ORG . He recommended the applicant to request this information from that committee on the grounds specified in LAW ( Articles CARDINAL and CARDINAL ) , which presumed that the applicant ’s organisation had to pay for this information , on the basis of the tariffs approved by ORG .

On DATE the applicant , acting in his official capacity , requested ORG to provide him with information of interest to the “ Human Rights Bulletin ” . In reply , on DATE the Deputy Head of ORG stated that such information , which was provided to ORG by the law enforcement authorities , was not processed and regrouped in accordance with the previous employment of a convicted person at a law enforcement authority or prosecution service . As to the number of sentenced persons , the Deputy Head mentioned that this information was exclusively available from ORG .

On DATE the applicant , acting as a representative of the “ Human Rights Bulletin ” and a co - chairman of ORG , again requested ORG to provide their mass media source with information he initially requested on DATE . He referred to LAW . He maintained that this information should be available from ORG as its function , under LAW , was to supervise lawfulness of functioning of the inquiry and pre - trial investigation bodies .

On DATE the First Deputy Prosecutor General refused to provide information requested by the applicant as it was not available from the prosecution bodies , but could be requested from ORG , under LAW . He also stated that therefore there were no grounds for instituting disciplinary proceedings against the officials of the regional prosecutor ’s offices who refused to provide this information .

On DATE and DATE , the applicant received information from CARDINAL regional prosecutor ’s offices , which were unable to satisfy the applicant ’s information requests in full ( because the information was unavailable , or not accessible as requested , or because the regional prosecutor ’s offices were not responsible for such matters ) . Only ORG previously informed the applicant , on DATE , about measures taken by them with regard to the investigation and prosecution of the crimes referred to in the request .

On DATE the applicant , as a private person , represented by an advocate and acting under ORG CARDINAL - CARDINAL and CARDINAL of the Code of Civil Procedure , lodged an administrative complaint with ORG of GPE seeking to declare the failure of the ORG to provide him with information on convictions ( mentioned above ) unlawful . He also sought court orders compelling the ORG to provide him with this information on his request . He maintained that his right to receive information from the ORG had been violated .

On DATE ORG refused to examine the applicant ’s claim as it was not substantiated by relevant evidence ( LAW ) . Furthermore , the applicant was asked to provide relevant legal substantiation for his administrative action . In particular , the court asked the applicant to state how his rights and freedoms had been infringed by the refusal of the ORG to reply to information request . The applicant was allowed time to rectify these shortcomings and re - lodged his administrative complaint with the assistance of his legal representative . However , on DATE ORG rejected his complaint as it found inter alia that the applicant failed to establish a link between infringement of his rights and the refusal of the prosecution authorities to provide information to the human rights magazine .

The applicant appealed to ORG , which on DATE rejected the appeal as unsubstantiated . In particular , ORG held that the applicant should indicate specifically , in his complaints , which public official or administrative body had infringed his personal rights . He had also failed to mention which of his rights and freedoms were violated . The court also referred to the judicial practice recommendation contained in the ORG no . CARDINAL of ORG of DATE ( sees domestic law and practice below ) .

The applicant appealed in cassation , but on DATE ORG refused the applicant leave to appeal in cassation as the cassation appeal did not comply with the requirements envisaged by ORG and CARDINAL of the Code of Civil Procedure . The applicant was invited to rectify these shortcomings . He lodged his appeal in cassation anew and on DATE the ORG refused leave to appeal in cassation as the applicant again failed to comply with the court ’s previous ruling . The applicant lodged a cassation appeal for the third time and on DATE ORG rejected it for failure to comply with the requirements of the law .

The cassation appeal was re - lodged , examined and rejected by ORG on DATE . In particular , ORG found no infringements of the domestic substantive and procedural law , which would allow it to institute cassation proceedings in the case .

“ Human and ORG rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers . ... ”

“ ... The jurisdiction of the courts extends to all legal relations that arise within the ORG . ...

Pursuant to LAW , any claim lodged with the court should be lodged in writing and should contain inter alia the exact name of the claimant and the respondent , merits of the claim , the circumstances underlying and proving the claim , evidence that supports the claim .

Article CARDINAL of the Code provided that the judge should grant a time - limit to rectify any shortcomings in a claim .

In accordance with LAW citizens had a right to apply to a court with a complaint , if he / she considered that a ORG body , legal person or official had infringed by its decision , act or omission his / her rights or freedoms . Complaints could be made against executive bodies and their officials , who exercise organisational and managerial functions , administrative and commercial functions and functions specially accorded to them by law .

Under LAW of the Code the courts’ jurisdiction does not extend to the acts or omissions of an official of a body of inquiry , preliminary investigation , prosecution or court with regard to which a non - judicial procedure for considering complaints has been established .

In accordance with LAW , a cassation appeal should contain inter alia the reference to the judicial decision or ruling that is being appealed against and the limits for an appeal in cassation , substantiation of the appeal in cassation , including the name of the law that was allegedly violated by an unlawful judgment or ruling and the references to incorrect application of that law or its infringement , the purpose of the appeal in cassation .

Under LAW , an appeal in cassation should be lodged with the first instance court , where the case - file shall be archived . Rules of Article CARDINAL applied to appeals in cassation that failed to meet the requirements of LAW .

In accordance with Articles DATE and CARDINAL of LAW , persons ( this list includes private persons , legal entities and ORG bodies , as provided by LAW ) who were refused access to official documents should receive a written reply formulating reasons for such a refusal or explaining delaying in providing requested information . They should be allowed to appeal against this reply to a higher administrative authority or to a court . The court , to enable it to rule on the request , should be allowed to request additional documents from the parties .

Articles DATE of LAW establish a right to complain about unlawful acts or omissions of the ORG bodies to the higher administrative authorities and then to a court . This includes requests for compensation .

Articles CARDINAL and CARDINAL of LAW provide that ORG bodies responsible for storage and updating of the statistical date should be allowed to provide paid services on the basis of the Regulation on the conduct statistical research and services provided by the bodies of ORG statistics approved by ORG .

In its decision of DATE concerning the constitutionality of Article QUANTITY , DATE and CARDINAL of the Code of Civil Procedure the Constitutional Court decided :

“ To declare Article MONEY § CARDINAL of the Code of Civil Procedure as not in compliance with LAW ( unconstitutional ) , concerning the lack of jurisdiction of the courts as regards – ... the actions or acts of an official of a body of inquiry , preliminary investigation , prosecution or court with regard to which a non - judicial procedure for considering complaints has been established ... ”

In accordance with paragraph CARDINAL of the ORG , only private persons , who consider that their own rights and freedoms were infringed , should have the right to lodged complaints with the courts based on LAW CARDINAL - CARDINAL of the Code of Civil Procedure .

Under paragraph CARDINAL of the ORG complaints against acts or omissions of the entities against which they are directed should be lodged with the courts at the place of these entities registration . They should correspond to the requirements of Articles CARDINAL and CARDINAL of the Code of Civil Procedure . Taking into account specific issues arising out of examination of these cases , provided by the Articles CARDINAL - CARDINAL – CARDINAL - CARDINAL , the claimants should indicate which particular decisions , acts or omissions he / she wishes to complain about and which specific rights and freedoms had been violated . These complaints should be legally substantiated and proposals for restoring allegedly the infringed rights should be given . It should be also indicated whether a similar complaint had been lodged with the hierarchically superior administrative body or a public official and what kind of response had been received . The courts should apply rules of LAW to the complaints not corresponding to these criteria .


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

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

The applicant was born in DATE and lives in ORG .

On DATE the GPE ORG of Kharkiv ( hereinafter “ the ORG ” ) , upon the applicant ’s claim , ordered ORG in GPE District of GPE ( GPE районне відділення ORG у PERSON , hereinafter “ the ORG ” ) to recalculate in GPE hryvnas the applicant ’s salary , which he received in DATE in NORP roubles , in order to establish the correct amount of his pension according to LAW DATE ( hereinafter “ the Decree ” ) . The defendant was also obliged to pay the applicant the recalculated amount as his regular pension .

This judgment became final on DATE and the writ of execution was issued on DATE .

On DATE ORG in GPE of ORG ( hereinafter “ the Bailiffs ” ) issued the warrant for the enforcement of the judgment by DATE .

On DATE the Bailiffs re - issued the warrant .

As ORG twice submitted calculations of the applicant ’s pension which were not based on the Decree , on DATE and CARDINAL DATE the Bailiffs fined the officials of ORG for failure to enforce the judgment .

In DATE the applicant and the Bailiffs requested ORG of the Dzerzhinsky District of Kharkiv ( hereinafter “ the Public Prosecutor ” ) to institute criminal proceedings against the officials of ORG for intentional non - enforcement of the judgment of DATE .

On DATE ORG rejected this request for want of proof of a crime .

On DATE the ORG rejected the applicant ’s complaint against this decision .

On DATE , upon the applicant ’s request , ORG issued a ruling explaining the judgment of DATE . It indicated the coefficients that should be used by ORG in order to recalculate the applicant ’s pension according to the Decree .

ORG did not appeal against this ruling within the statutory time - limit and the same court , by rulings of DATE and CARDINAL DATE , returned ORG belated appeal without considering it .

During DATE , following numerous written requests by the Bailiffs , ORG submitted recalculations of the applicant ’s pension , which were not based on the ruling of DATE .

On DATE the bailiff personally handed to the official of ORG the ruling of DATE and requested him to enforce it by CARDINAL DATE . The bailiff drew up a written report .

On DATE ORG , on behalf of ORG , lodged with ORG a cassation appeal against the rulings of DATE and DATE .

On DATE , following the request of ORG , the Bailiffs suspended the enforcement proceedings .

On DATE the Head of the Bailiffs quashed this decision on the ground that lodging a cassation appeal in itself could not suspend the enforcement of the final judgment .

On DATE the enforcement proceedings were resumed .

On DATE and DATE the Bailiffs fined the officials of ORG for failure to enforce the judgment of DATE and the ruling of DATE .

On DATE the Bailiffs requested ORG to institute criminal proceedings against the officials of ORG for intentional non - enforcement of the judgment of DATE and ruling of DATE .

On CARDINAL DATE ORG rejected ORG cassation appeal against the rulings of DATE and CARDINAL DATE .

On DATE ORG rejected ORG request to review the case in the light of newly disclosed circumstances and to suspend the enforcement proceedings .

On DATE ORG ( hereinafter “ the Court of Appeal ” ) upheld this ruling .

The judgment of DATE remains unenforced .

On DATE ORG instituted criminal proceedings against the applicant for threatening a judge of ORG ( Article CARDINAL of LAW ) . The applicant was obliged not to leave his place of his permanent residence .

On DATE , upon termination of the pre - trial investigation , ORG transmitted the criminal case to ORG .

On DATE ORG , following the motion of the President of ORG , transferred the case to ORG of Kharkiv ( hereinafter “ the ORG ” ) .

DATE ORG rejected the applicant ’s complaint against ORG decision of DATE as the case was pending before the first instance court .

In the course of its examination of the applicant ’s appeal against the ruling of DATE , ORG established that the applicant had not been not duly informed about the date of hearing before ORG and on DATE requested ORG to investigate this matter .

On DATE ORG upheld the ruling of DATE . On DATE , it issued a ruling to the ORG setting out procedural omissions by the judge of ORG who had examined the case .

On DATE ORG rejected the applicant ’s cassation appeal against the ruling of DATE .

On DATE ORG terminated the criminal proceedings against the applicant as time - barred .

On DATE the applicant lodged an appeal seeking to be acquitted .

On DATE ORG quashed the ruling of CARDINAL DATE and remitted the case for a fresh consideration .

In DATE the proceedings were resumed before ORG .

DATE and DATE CARDINAL out of CARDINAL hearings scheduled were adjourned due to the ORG and the victim ’s failure to appear before the court .

NORP In DATE the case was assigned to another judge .

The proceedings are still pending before the first instance court .

The relevant domestic law concerning the non - enforcement of the final judgments is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicants are GPE nationals resident in the GPE . They are represented by PERSON , a lawyer practising in GPE . A list of the applicants is set out in the appendix .

From DATE the GPE , in common with other ORG countries , introduced measures aimed at limiting the quantity of dung , or faecal matter , produced by certain animals including pigs . This initially involved a system of “ dung production quotas ” .

On DATE LAW ( GPE ) entered into force .

LAW , according to its preamble , was enacted with a view to implementing ORG Directive CARDINAL/CARDINAL/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources , and also in order to preserve amenity , the quality of the environment and the health and well - being of animals .

LAW transformed “ dung production quotas ” into a maximum number of pigs per farm – the so - called “ pig entitlement ” ( varkensrecht ) . Pig entitlements ( except in so far as they concerned breeding sows , which were treated as a special category ) were transferable , within certain ( especially territorial ) limits ( sections CARDINAL of LAW ) and subject to the lapse of a variable proportion of the entitlement upon transfer ( section CARDINAL of LAW ) ; they could not , however , be used as collateral ( section CARDINAL ) .

The pig entitlement was calculated in each case by reducing the average number of pigs held on the farm in DATE or , in certain cases , DATE by PERCENT ( sections DATE CARDINAL of LAW ) . A further reduction by PERCENT was foreseen with effect from DATE ( section CARDINAL of LAW ) . It was the actual number of pigs kept in DATE that was decisive ; any “ latent capacity ” ( latente ruimte ) , that is the difference between the number of pigs a farmer would have been allowed to keep at the relevant time and the number actually kept , was lost .

Provision for special cases of hardship was made in GPE hardheidsgevallen herstructurering varkenshouderij ) ; such cases included , among others , farms DATE as determined by precise formulae – had , for specific reasons ( a farmer ’s ill - health not among them ) , been working significantly below the capacity allowed them in DATE and DATE by the dung production quota legislation then in force .

LAW and LAW Decree were repealed with effect from DATE .

The applicants are , or were at the relevant time , pig farmers resident and farming in the GPE .

The applicants PERSON and Lohuis - Voshaar , who ran a farm as a partnership ( maatschap ) , were farming at considerably less than full capacity in DATE and DATE owing to ill - health . They ended up losing PERCENT of their original pig entitlements as “ latent capacity ” , in addition to the PERCENT total reduction prescribed by LAW . They have since given up farming .

NORP The applicant PERSON farmed at CARDINAL locations , on CARDINAL of which he was building a new pig shed in DATE ; farming began there in DATE . Thanks to a clause beneficial to him in GPE Decree he lost PERCENT of his entitlements for that location as “ latent capacity ” . For the other location he lost the full PERCENT .

The applicant PERSON lost the full PERCENT of his DATE entitlement plus PERCENT as “ latent capacity ” . He also stated that he had run into financial difficulties as a result of the uncertainty facing pig farming in DATE , which had forced him to sell off some of his land and purchase pig entitlements from elsewhere .

NORP The applicant PERSON lost the full PERCENT of his former entitlements , plus a claimed PERCENT as “ latent capacity ” .

On DATE the applicants , together with other pig farmers and a non - governmental organisation set up to further the interests of pig farmers ( hereafter “ the original plaintiffs ” ) , brought a civil action in tort against the ORG before ORG ( arrondissementsrechtbank ) of GPE , arguing among other things that the new legislation constituted a “ deprivation of possessions ” within the meaning of LAW No . CARDINAL .

On DATE ORG gave judgment holding , as relevant to the case , that pig entitlements constituted “ possessions ” , and that depriving the applicants thereof without any compensation constituted a tort as long as adequate arrangements for compensation were not made . ORG Hardship ) Decree was not sufficient to mend matters since it could merely limit the damage , not compensate for it .

The ORG appealed to ORG ( gerechtshof ) of GPE . The original plaintiffs lodged a cross - appeal .

On DATE ORG gave judgment holding that the measures complained of constituted not a “ deprivation ” of possessions but a “ control ” of their use . It accepted the necessity of measures to be taken , and also the proportionality of the first reduction of the pig entitlements by PERCENT . The second reduction by PERCENT , however , it found disproportionate . It therefore held that section CARDINAL of LAW should not be put into effect as regards the original plaintiffs , dismissing their claims for the remainder .

A number of the original plaintiffs , including the applicants , lodged an appeal on points of law to ORG ( PERSON ) . The ORG lodged a cross - appeal .

On DATE ORG delivered a judgment ( PERSON ( ORG , ORG ) quashing the judgment of ORG . As relevant to the case before the ORG , it found that LAW No . CARDINAL was applicable and that there had been an interference with the applicants’ right to the peaceful enjoyment of their possessions . However , there was no “ de facto expropriation ” as the applicants argued . On this point , ORG held as follows :

“ CARDINAL.CARDINAL.CARDINAL . According to the case - law of [ ORG ] , in cases where there is no formal expropriation there is a deprivation within the meaning of the second sentence of LAW No . CARDINAL if it concerns a ‘ de facto expropriation’ ( see GPE and PERSON v. GPE , DATE , § DATE , Series A no . DATE , PERSON ( ORG , GPE ) DATE , no . CARDINAL , and PERSON v. GPE ( no . CARDINAL ) , CARDINAL DATE , § DATE , Series A no . CARDINAL ) .

According to the case - law of [ ORG ] cited in the advisory opinion of the Acting Procurator General ... it is , in the case of a ( partial ) withdrawal of a licence , or of a restriction of a different kind of the rights flowing from the licence , not the licence itself that constitutes the nexus ( aanknopingspunt ) for the protection of property , but the enterprise exploited with that licence . In line with this , whenever – as in the cases in issue in the present proceedings – the contested Government measure purports to restrict certain enterprise activities ( bedrijfsactiviteiten ) in pursuance of goals such as those pursued by the quota arrangement of LAW ( ... ) , then in answering the question whether that measure constitutes a ‘ de facto expropriation’ the effects of that measure on the affected enterprise as a whole must be examined ( ... ) . The circumstance that the legislative arrangements ( regelingen ) involved provide for ( limited ) transferability of dung production quotas and pig entitlements does not deprive these legislative arrangements of the character of a restriction imposed on the exploitation of the enterprise ( aan de bedrijfsvoering opgelegde beperking ) . ”

ORG went on to hold that the new legislation constituted a “ control of use ” of the applicants’ possessions . The legislature had not , in principle , overstepped its “ margin of appreciation ” . It had to be recognised , however , that the interests of the individual pig farmers among the plaintiffs deserved protection : in particular , a “ fair balance ” had to be found in each case , implying a “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” . The case was remitted to a different ORG , that of GPE , which would have to review the individual cases of the pig farmers party to the proceedings . The instruction to ORG was phrased as follows :

“ CARDINAL.CARDINAL It follows [ from the above ] that the second paragraph of LAW No . CARDINAL does not , in principle , constitute a basis for not applying LAW in respect of those pig farmers who have been affected by the impugned measures only as concerns dung production quotas or pig entitlements allotted them by law and which they have not acquired for a consideration in any other way .

However , after remittal it will have to be examined whether the impugned measures under LAW constitute an ‘ individual and excessive burden’ for CARDINAL or more of the [ individual ] appellants [ i.e. not including the non - governmental organisation aforementioned ] owing to specific facts and circumstances not applicable to all pig farmers , and whether the relevant provisions of LAW should not be left unimplemented in their respect , at least as long as no provision is made for adequate financial compensation . This may be the case , in DATE but not exclusively DATE , if a pig farmer ’s dung production quota or pig entitlement , obtained for a consideration , is affected , it being of particular importance to what extent the ORG has created expectations finding their expression in , for example , the price for which the rights in issue were obtained .

As mentioned , such problems have been provided for in part by LAW . The [ individual ] appellants have however stated that this Decree does not apply to them .

In so doing it will be possible also to take into consideration facts and developments in the field of legislation that have occurred subsequent to the judgment of ORG . After remittal the parties will be able to expand and adapt their positions accordingly . ”

The applicants lodged an application with ORG DATE , complaining that the new legislation did not constitute a “ control of the use of property ” within the meaning of LAW No . CARDINAL but a “ deprivation of possessions ” without any form of compensation .

On DATE the ORG , sitting as a ORG of CARDINAL judges ( former LAW ) , declared that application ( no . CARDINAL ) inadmissible . It found that domestic remedies had not been exhausted as required by LAW , since , after the case had been remitted by ORG to ORG of GPE , the proceedings had not yet been pursued to a final decision .

After the ORG ’s decision of inadmissibility , proceedings were resumed in ORG of GPE on the basis of ORG remittal judgment of DATE .

ORG gave an interlocutory judgment on DATE . It found , as relevant to the case before the ORG , that both ORG of GPE and ORG had dismissed the suggestion that the applicants’ pig entitlements were “ possessions ” within the meaning of LAW No . CARDINAL of which they had been deprived . Referring to the judgment of a Chamber of this Court ( J.A. Pye ( ORG v. GPE , no . CARDINAL , § DATE , DATE ) , it held that it had nonetheless to consider whether a “ reasonable relationship of proportionality ” existed regardless of whether the interference with the applicants’ rights was to be seen as a “ deprivation ” of possessions or as “ control ” of their use .

Faced with the need to consider the ORG cases individually , it came to the provisional conclusion that the applicant PERSON had been disproportionately affected . He had lost PERCENT of his pre - existing rights , his “ latent capacity ” , in addition to the PERCENT total reduction under LAW ; this had rendered an investment in a new pig shed made in DATE , worth MONEY ( NLG ) , useless . In the case of the applicant PERSON there was a dispute as to the actual extent and value of the “ latent capacity ” actually lost . The claims of the applicants PERSON and PERSON , whose loss of “ latent capacity ” was minimal , would have to be dismissed in their entirety . The proceedings were adjourned so that the loss suffered by the applicants PERSON and PERSON den Heuvel could be established .

In a second interlocutory judgment , delivered on DATE , ORG found it established that the applicant PERSON had suffered a disproportionate loss in that he had lost his PERCENT “ latent capacity ” , for which he had received no compensation . It also found it established that the applicant PERSON had lost “ latent capacity ” in an amount of PERCENT of his former entitlement . However , he had obtained this “ latent capacity ” by taking over dung production quotas attached to land which he had purchased ; hereafter , the discussion centred on whether he had paid a consideration for these quotas or not . It adjourned the proceedings to hear any witnesses brought forward by the parties and obtain a report by an expert .

ORG delivered its final judgment on CARDINAL DATE , after having heard witnesses and taken cognisance of a report by an expert . It found that the applicant PERSON had lost “ latent capacity ” in an amount of PERCENT , but had been able largely to set off his loss against capacity tied to the land which he had purchased . With respect to the PERCENT reduction provided for by LAW , he was affected no worse than any other pig farmer ; he could therefore not be said to have been made to bear an “ individual and excessive burden ” .

ORG quashed the judgment of ORG . It held that the ORG had committed a tort in respect of the applicants PERSON and ORG and was therefore liable for any damage thereby caused , the amount of which would need to be assessed and settled in due course . It dismissed the other applicants’ appeals .

The ORG lodged an appeal on points of law against ORG judgment .

The applicants PERSON and ORG lodged a cross - appeal . The other applicants did not , having been advised by counsel that an appeal lodged by them had no prospects of success .

The applicants PERSON and ORG argued that ORG ought , on reflection , to have given favourable consideration to their argument that they had suffered a “ deprivation of possessions ” within the meaning of LAW No . CARDINAL .

ORG gave judgment on DATE . It dismissed the ORG ’s appeal and the cross - appeal by the applicants PERSON and ORG in their entirety . In dismissing the latter , it referred to its own judgment of DATE , which was binding on ORG .

The Netherlands Civil Code ( Burgerlijk Wetboek ) defines “ property ” ( goederen ) as “ all things and all other proprietary rights ( vermogensrechten ) ” ( LAW . “ Proprietary rights ” within the meaning of that Article are “ rights which , either separately or together with another right , are transferable , or which purport to give the person entitled ( rechthebbende ) material benefit , or which are obtained in exchange for present or future material benefit ” ( LAW ) . LAW provides that all transferable property can be encumbered ( i.e. as collateral ) with a pledge ( pandrecht ) or a mortgage ( hypotheek ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicants were born in DATE and DATE respectively and live in GPE . They are a father and his son .

In DATE the first applicant and his wife bought from the ORG , through ORG , an apartment of QUANTITY in the centre of GPE . The apartment had become ORG property by virtue of the nationalisations carried out by the communist regime in GPE in DATE and DATE . It had been a part of a bigger apartment , which had on an unspecified date before DATE been divided into CARDINAL smaller ones .

In DATE the heirs of the former pre - nationalisation owner of the property brought proceedings against the first applicant and his wife under section CARDINAL of LAW .

In DATE the first applicant ’s wife died and was inherited by the CARDINAL applicants .

The proceedings under section CARDINAL of LAW ended by final judgment of ORG . The courts found that the ORG title was null and void because the division of the initial bigger apartment into CARDINAL smaller ones ( see paragraph CARDINAL above ) had not been carried out in accordance with the law .

NORP Immediately after the final judgment in their case , it became possible for the applicants to obtain compensation from the State , in the form of bonds which could be used in privatisation tenders or sold to brokers . The applicants did not avail themselves of this opportunity .

NORP In DATE the heirs of the former owner of the apartment brought a rei vindicatio action and an action for damages against the first applicant who was still living in the apartment . The proceedings are still pending . The first applicant ’s request to be accommodated in a municipallyowned dwelling , lodged in DATE , has not yet been granted due to the unavailability of free apartments .

These have been summarised in the ORG s judgment in the case of ORG and Others v. GPE , nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG , and CARDINAL , DATE .


Violation of Art. 5-3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

On DATE the applicant was arrested by the police on suspicion of having committed homicide . On DATE ORG ( Sąd Rejonowy ) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question , the serious nature of that offence , the severity of the anticipated penalty and the need to secure the proper conduct of the investigation , in particular the process of obtaining evidence .

During the investigation the applicant ’s detention was extended on several occasions . He filed numerous but unsuccessful applications for release and appealed , likewise unsuccessfully , against the decisions prolonging his detention . The applicant made repeated applications for release on personal grounds , submitting that he had to secure the care and wellbeing of his DATE son . He also contested the reasonableness of the charge against him , maintaining that it was solely based on evidence from his common - law wife who was his alleged accomplice .

On DATE the ORG ( PERSON ) prolonged his detention until DATE . On DATE it ordered that he be kept in custody until DATE . On DATE it extended that period until DATE . The court reiterated the grounds originally given for the applicant ’s detention . It also considered that the need to take further evidence from experts justified the continuation of that measure .

On DATE the applicant , together with his common - law wife , was indicted on charges of homicide , attempted homicide , assault occasioning actual bodily harm , uttering threats , theft , burglary , fraud and illegally possessing explosives and dangerous substances before the ORG . In all , CARDINAL charges were brought against the applicant . The prosecution asked the court to hear evidence from CARDINAL witnesses .

ORG continually prolonged the applicant ’s detention pending trial . On DATE it extended his detention until DATE .

On DATE the trial court dismissed the applicant ’s request of CARDINAL DATE to sever his case and assign it to a separate set of proceedings . It adjourned the hearing due to the absence of the co - defendant ’s counsel .

Subsequently , the applicant ’s detention was prolonged on DATE and DATE . The court held that the grounds originally given for his detention were still valid . It stressed the strong likelihood that the applicant had committed the offences in question .

In the meantime , on DATE , the applicant had unsuccessfully challenged the composition of the court .

On DATE he requested the trial court to appoint him a new legal aid counsel .

On DATE respectively he requested the trial court to assign his case to a separate set of proceedings . Subsequently , at the hearing held on DATE the applicant withdrew his motion .

The hearings scheduled for DATE and DATE had to be adjourned due to the co - defendant ’s absence . CARDINAL other hearings were adjourned due to the absence of the judge rapporteur .

The trial court held further hearings : on DATE , CARDINAL and DATE . In the meantime , the hearings listed for DATE and DATE were cancelled due to the illness of the judge .

Subsequently , as the length of the applicant ’s detention reached the statutory time - limit of DATE laid down in LAW of LAW ( Kodeks postępowania karnego ) , ORG made CARDINAL applications to ORG ( Sąd Apelacyjny ) , asking for the applicant ’s detention to be prolonged beyond that term . ORG granted those applications on DATE ( extending the applicant ’s detention until DATE ) , on DATE ( extending his detention until DATE ) , on CARDINAL DATE ( prolonging that term until DATE ) and on CARDINAL DATE ( ordering his continued detention until DATE ) . In all those decisions ORG considered that the original grounds given for the applicant ’s detention were still valid .

The applicant ’s numerous applications for release and his appeals against the detention decisions were to no avail .

DATE , the trial court listed CARDINAL hearings . The applicant and his lawyer were present at all the hearings . During this period the applicant on several occasions refused to participate in the trial , on CARDINAL occasions he challenged the composition of the court . He also requested the court to appoint him a new legal aid counsel and applied for his case to be assigned to a separate set of proceedings . All his motions were dismissed .

In the meantime , the hearing scheduled for DATE had been cancelled . The hearings listed for CARDINAL and DATE had likewise been cancelled due to the illness of the judge .

Further hearings were held on CARDINAL , DATE and DATE , DATE and DATE . On DATE the applicant refused to participate in the hearing due to his illness . The trial court proceeded with taking evidence and ordered that an expert opinion on the applicant ’s health be obtained .

Subsequently , hearings were held on the following dates : CARDINAL DATE , CARDINAL and DATE . On DATE the trial court acknowledged the delay in the proceedings and stated that it was caused by the particular complexity of the case and other obstacles which could not have been removed by the relevant authorities .

The hearing scheduled for DATE had to be adjourned due to the applicant ’s absence . Further hearings were held on : CARDINAL and CARDINAL April , DATE , CARDINAL and CARDINAL May , CARDINAL and DATE . The applicant and his counsel were present at the hearings . As of DATE the court had heard evidence from CARDINAL witnesses .

On DATE ORG convicted the applicant as charged and sentenced him to life imprisonment .

On DATE ORG upheld the firstinstance judgment .

On DATE the applicant lodged a cassation appeal .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

can not be terminated within the term referred to in paragraph CARDINAL , the court of first instance competent to deal with the case may – if need be and on the application made by the [ relevant ] prosecutor – prolong detention for a period [ or periods ] which as a whole may not exceed DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON , a town in PERSON .

The applicant is a retired police officer who was injured during his service in ORG . He sued a local special - purpose police squad ( Федеральное государственное учреждение GPE милиции особого назначения при ORG Дел Республики Марий Эл ) over his injury . On DATE FAC awarded the applicant a lump sum of MONEY ( RUB ) in damages and costs , and a DATE compensation of RUB CARDINAL,CARDINAL.CARDINAL to be paid from DATE to CARDINAL DATE with an adjustment for the cost of living . On DATE the judgment was upheld on appeal and became binding .

On the defendant ’s initiative on DATE the Presidium of ORG of PERSON quashed the judgment and rejected the applicant ’s claims . The ORG found that the courts below had misinterpreted material law , and , in particular , that ORG had not been responsible for the applicant ’s injuries .

Domestic law concerning supervisory review is cited in detail in earlier cases ( see , for example , PERSON GPE , no . CARDINAL , § CARDINAL , DATE ) .


The applicant is a NORP citizen , born in DATE in GPE , GPE . He is a practising lawyer in GPE .

The applicant is represented before the ORG by Mr PERSON and Mr Nevzat GPE , both practising lawyers in GPE .

A.

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

In DATE the applicant represented CARDINAL landlords in a special enforcement procedure for the eviction of tenants renting their building during which the judge agreed to stay the eviction in view of the defendant ’s offer of security . The judge dismissed the applicant ’s objection to his decision .

On DATE CARDINAL of the applicant ’s clients ( ORG ) sent the judge a personal telegram stating that his decision was “ very arbitrary , unheard of and biased ” . The client stated that if the judge did not change his former decision , he would , under LAW ( Hukuk Usulu Muhakemeleri GPE ) , hold him personally liable for any damage which may result .

On DATE the applicant and CARDINAL of his other clients signed a warning letter which they sent to the judge through the intermediary of a public notary . The letter referred to the telegram dated DATE as “ our telegram ” and alleged that the judge ’s decisions were “ contrary to clear and definite provisions of a PERSON which needed no interpretation ” within the meaning of LAW . The warning letter also referred to LAW which requires that any judge who refuses to accept a petition or to commence proceedings be warned in a notarised warning letter before an action can be initiated against him .

On DATE the judge lifted his stay of execution decision . On DATE the defendants were evicted from the building .

On DATE the judge lodged a complaint with ORG of GPE , accusing the applicant and his clients of insulting ( hakaret ) and threatening ( tehdit ) a judge in their telegram and notarised warning letter . ORG eventually brought charges against the applicant under LAW of LAW which makes it a criminal offence to insult or threaten a judge in the exercise of his judicial functions .

The first hearing before the CARDINALst ORG of GPE was held on DATE . On DATE , the judge happened to be sitting as a substitute member of the CARDINAL - judge ORG . When it was time for the case in question to be heard , the judge took off his robe , left his seat for another substitute judge who came to replace him and sat in the place designated for complainants . During the hearing the judge was heard in his capacity of complainant . The applicant and his lawyers did not challenge the objectivity of the CARDINAL other judges who were sitting with the judge prior to the hearing within the time - limit prescribed by LAW . After the hearing , the judge took his seat as the substitute judge of ORG of GPE for the hearings in the other cases listed for DATE .

At a further hearing and in reply to the closing submissions of ORG , the applicant ’s lawyers argued that the applicant had not personally co - signed ORG ’s telegram of CARDINAL DATE and could not therefore be held liable for its contents . He maintained that he had no intention to insult or threaten the judge , his only purpose being to protect the interests of his clients by requesting that the impugned decision be changed and to remind the judge of his personal liability under LAW if the decision remained unchanged . In their final submissions the applicant ’s lawyers referred to the first hearing held on DATE . In this respect , they complained inter alia , about the fact that the complainant judge who had brought the criminal proceedings against him served as a member of the CARDINALst ORG of GPE in other cases . They argued that in the course of the proceedings the complainant wrongfully tried to influence his colleagues on the bench . Without making a motion for the disqualification of any of the judges ( “ hakimin reddi talebi ” ) , they concluded their observations on this issue with the words “ We convey this situation to the ORG ’s understanding of law and justice ” .

On DATE ORG of GPE acquitted the applicant on the charge of threatening the judge . However , it convicted him of insulting the judge contrary to LAW and sentenced him to CARDINAL months’ imprisonment and a fine of MONEY . The prison sentence was converted to a fine and suspended . The total fine imposed on the applicant was MONEY . In its reasoning , the court held that the applicant ’s reference to the telegram in the text of the notarised warning letter , with the words “ our telegram ” , was sufficient evidence to conclude that the applicant had been involved in preparing and sending the telegram . According to the court , the legal terminology used in the telegram indicated that it had not been drafted by a layman , but by a lawyer , namely the applicant . The court furthermore held that “ a telegram ” was not a method prescribed by law for warning judges . With reference to LAW ) , the court added that a judge could not be addressed in the exercise of his judicial powers in a manner intended to give him instructions . The court concluded , inter alia , that the sending of a notarised warning letter to the judge was not appropriate in the circumstances since the judge had not refrained from accepting petitions or commencing proceedings . CARDINAL of the CARDINAL judges on ORG of GPE dissented on the basis that the applicant could not be held responsible for a telegram which he had not co - signed and that he had not intended to insult the judge .

On DATE the applicant ’s lawyers appealed to ORG ( Yargıtay ) . They referred to the opinion of the dissenting judge . In his grounds of appeal the applicant relied on the argument that the trial court did not attach sufficient importance to the fact that immediately before his trial began the complainant judge had been sitting on the bench of that same court . They also requested a hearing before ORG .

On DATE ORG submitted in writing its closing opinion to ORG . ORG submitted that the applicant ’s reference in the text of the notarised warning letter to the words “ our telegram ” was not sufficient evidence to conclude that the applicant had in fact written the telegram which , moreover , had not been signed by him . ORG advised ORG that the applicant ’s conviction should be quashed . This written opinion was not served on the applicant .

On DATE the CARDINALth Chamber of ORG rejected the applicant ’s request for a hearing and upheld the judgment of ORG of GPE . It found that the applicant was able to submit and have considered at his trial all evidence in his defence to the charges . The court concluded that the reasoning in the trial court ’s judgment was sufficient , consistent and based on a proper evaluation of the evidence .

B. Relevant domestic law

LAW of LAW Procedure contains provisions governing the disqualification of a judge . Article CARDINAL provides :

“ A motion for disqualification on grounds of suspected partiality of a judge may be made at any time before the final decision to open the trial or the accusation is read , and in the event of an appeal the motion to disqualify an appellate judge may be made at any tine before the presentation of the rapporteur ’s report in those cases where there is a hearing , and in cases where there is no hearing , the motion may be made at any time before the initiation of the appellate review .

Where the circumstances entitling CARDINAL to move for disqualification arise subsequent to the aforementioned ones , the motion may be made at any time prior to the final disposition of the case . ”

According to LAW :

“ A motion for disqualification may be made by a petition to the court or by making a declaration to the clerk of the court having him prepare a formal petition in that respect .

The party seeking the motion is obliged to submit proof of the grounds upon which disqualification is sought and a mere statement of belief is insufficient proof .

The court may require a judge whose disqualification is sought to comment on the particulars which furnish the basis of the motion , and the judge must set forth his conclusions as to the sufficiency of these particulars . ”

LAW states , inter alia :

The motion to disqualify a judge is decided by that court of which the challenged judge is a member . However , if the non - participation of the challenged judge results in the court lacking a sufficient quorum and the court is a court of first instance , the ORG court in the same jurisdiction shall decide on the matter ... ” .