Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in PERSON . At the relevant time he was a serving member of ORG .

On DATE he was convicted , pursuant to section CARDINAL of LAW DATE , by a naval court - martial of unlawfully and maliciously wounding with intent to do grievous bodily harm contrary to the Offences Against the Person Act CARDINAL . He was sentenced to , inter alia , DATE imprisonment and to be dismissed from the service and reduced in rank . He was also ordered to pay ORG MONEY compensation .

NORP The court - martial comprised a President ( a Captain of the Royal Navy ) , CARDINAL naval officers ( a Commander , CARDINAL Lieutenant Commanders and a Lieutenant ) and a Judge Advocate ( Commander PERSON ) . The Judge Advocate was a naval barrister who was working as the naval legal advisor to ORG ( the command responsible for the organisation and deployment of all ships at sea ) . His rank was lower than that of the President of the court - martial . The prosecution was conducted by a Lieutenant Commander of the staff of ORG . The applicant chose to be represented by a naval barrister . The defending and prosecuting officers were junior in rank to the Judge Advocate and the defending officer was senior in rank to the prosecuting officer .

At the beginning of the court - martial the Judge Advocate directed the members of the court - martial as follows :

“ As Judge Advocate it 's my role to ensure that the trial is conducted in accordance with the law and I am here to advise and guide you . I will have no role in the finding on the facts . You must accept what I say on matters of law and procedures [ as ] being correct . If you have any questions of me during the trial ... they must be asked of me in open ORG in the presence of the accused , his friend and the prosecutor and any such questions should pass through you ... as President . That means ... that now that this trial has commenced , you and your court can have no direct communication with me except in open ORG and therefore if I seem to avoid you outside the environs of the ORG ... that 's the reasoning behind that and please do n't think I am being rude ...

Now you and your colleagues may discuss the case when you are together and in private if you so wish , but my strong advice to you at this stage is to resist the temptation until you 've heard all the evidence and indeed my own summing up . You must be particularly rigorous in not discussing the case at all during adjournments in the trial when you could be overheard by others such as during lunch in the LOC room where a room has been set aside for you and particularly TIME since you must not be influenced by anything said to you or which you observe which is not evidence in the trial . I will warn you of this ... each time we adjourn and particularly when we adjourn at DATE proceedings . ”

On DATE ORG decided not to vary the court - martial 's verdict and sentence . In his advice to ORG , the Judge Advocate of the ORG commented that the trial had been “ well conducted by all concerned ” , that the main directions of law in the Judge Advocate 's summing up were “ impeccable ” and that any errors were , in any event , favourable to the applicant .

On DATE a single judge of ORG rejected his appeal , as did the full court on DATE .

LAW ( “ the LAW ” ) came into effect on DATE and amended , inter alia , LAW DATE ( references below to “ the DATE LAW are to that LAW as amended ) . Naval courts - martial are regulated , inter alia , by LAW , by ORG , as amended ( “ the DATE Rules ” ) and by LAW for ORG ( “ ORG ” ) .

Section CARDINAL of the CARDINAL Act provides that any person subject to naval law who commits a civilian offence , whether in GPE or elsewhere , shall be guilty of an offence against that section .

Section CARDINAL(CARDINAL ) of the DATE LAW lists the punishments available to a court - martial following conviction and establishes , as a matter of law , the relative positions of each punishment in the hierarchy of punishments available ( the “ ORG ” to section CARDINAL(CARDINAL ) of the DATE Act ) .

An allegation that a person subject to naval law has committed an offence must be reported to the CO of the accused . The ORG must investigate the charge after which the ORG may dismiss the charge , refer it to ORG or try the accused summarily .

ORG is a senior naval officer . Although he is not legally qualified , he is legally advised by a barrister . He must decide , in respect of cases referred to him by a ORG , whether to refer the matter back to that ORG to be dealt with summarily ( unless the accused has already elected trial by court - martial ) ; to refer the matter to ORG for a decision as to whether the accused should be prosecuted ; or to drop the charges . ORG decision is essentially a command decision , ORG being required to ask himself whether there are service reasons for prosecuting or not . Once ORG has taken this decision , he has no further involvement in the case .

NORP The role of prosecutor is performed by ORG . ORG is appointed by Her Majesty the Queen ( section CARDINALH of the DATE Act ) and is accountable to the Attorney - General for the performance of his prosecuting functions .

In almost all cases ( PERCENT of cases prosecuted in DATE and CARDINAL ) the Prosecuting ORG appoints barristers to prosecute cases from his own staff , which barristers work exclusively for ORG . On occasion , however , the Prosecuting ORG appoints prosecutors from a list of uniformed naval barristers who are eligible to act as prosecutors but who do not , in their general duties , work directly for ORG ( unlike in the army and air force where prosecutions are carried out exclusively by prosecutors on the staff of the relevant Prosecuting ORG ) . Such an officer may be working in a legal or non - legal post , but will always be outside the chain of command of the accused and will always be answerable for his duties as a prosecutor to ORG .

Naval barristers appointed to act as prosecutors are members of ORG and GPE and are consequently subject to the professional arrangements and ethical duties of LAW ( including a duty to act with independence and in the interests of justice ) . ORG and all acting prosecutors also apply the Code for Service Prosecutors which has been endorsed by the Attorney General and which sets out how their duties should be carried out .

Following the Higher ORG 's decision to refer a case to it , ORG has an absolute discretion , applying similar criteria as those applied in civilian cases by ORG , to decide whether or not to prosecute and , if so , to determine precisely what charges should be brought . ORG conducts the prosecution ( Part II , Schedule I to LAW ) , which is brought on behalf of the Crown .

The ORG is a civilian and a civil servant , working in “ one of the secretariats dealing with naval service discipline policy issues ” . The ORG is responsible for making the arrangements for courts - martial , including arranging venue and timing , ensuring that a Judge Advocate and any court officials required will be available , securing the attendance of witnesses and selecting members of the court . The ORG is appointed by ORG . Before commencement of the court - martial hearing , the power to dissolve it is vested in the responsible ORG .

Naval courts - martial consist of a President , CARDINAL serving naval officers of DATE military experience and a Judge Advocate ( since the entry into force of LAW CARDINAL - “ the DATE LAW warrant officers may also sit as members ) . The distinction made between district and general courts - martial in the army and air force does not exist in ORG . Contrary also to the position in the army and air force , ORG does not appoint , and has never appointed , Permanent Presidents of courts - martial ( “ PPCMs ” ) .

In ORG the role undertaken by the Judge Advocate General ( “ JAG ” ) for the army and air force is divided between CARDINAL appointments : the Judge Advocate of the Fleet ( “ ORG ” ) and the Chief Naval Judge Advocate ( “ CNJA ” ) .

The ORG is an experienced civilian lawyer . The current ORG has been a circuit judge since DATE . He was appointed as ORG in DATE by Her Majesty the Queen on the recommendation of the Lord Chancellor , to whom the ORG is responsible . LAW of the DATE LAW provides :

“ Nothing in this part of the Act shall prejudice the exercise by the [ ORG ] of his functions of considering and reporting on the proceedings of courts - martial and disciplinary courts , or any other of his functions in relation to such courts . ”

The prime responsibility of the ORG is to review all naval courts - martial , save for those in which the accused pleads guilty , so as to be able to advise ORG whether or not they have been properly conducted according to law . If , in the opinion of the ORG , they have not been so conducted , he has the power to recommend to ORG that the conviction be quashed or that the finding of guilt or the sentence be altered .

The LAW , on the other hand , is a service appointment . He is appointed by the First Sea Lord ( Chief of Naval Staff ) on the advice of the Naval Secretary and must be a barrister of suitable experience and rank . Save for his judicial role , he is responsible to LOC ( Chief of Naval Personnel ) , who is the senior Admiral responsible for personnel policy . His judicial role is described as part of his " ancillary duties " for which he is solely responsible to the ORG .

The LAW 's primary purpose is to be the principal advisor within ORG on all matters of law , including naval , criminal , employment , maritime and international law . His secondary purpose is to “ ensure that sufficient naval officers are trained as barristers and thereafter appropriately appointed to legal billets to provide the legal services required by commands , including headquarters ” . Among his “ principal ” tasks ” is to assist the ORG and consult with him on matters of law and legal policy , to select officers for legal training and to supervise their duties . Sitting as Judge Advocate at complex courts - martial and appointing barristers to sit as Judge Advocates are among his “ ancillary tasks ” ( section CARDINALB(CARDINAL ) of the DATE Act ) .

Any Judge Advocate sitting in a court - martial must have been qualified for DATE ( section CARDINALB(CARDINAL ) of the CARDINAL Act ) . In addition , as a matter of policy , reflected in the ORG 's terms of reference , ORG has for DATE appointed only serving officers as Judge Advocates . The reasons for this policy have been described by the current CNJA ( ORG PERSON ) as follows :

“ ... because they understand the particular and unique way of life of ORG , gained through their own operational experience . They can advise and direct the court in terms which reflect their detailed knowledge of the ORG , and which therefore enhances the credibility of their role in the eyes of all the parties involved . ”

The manner of appointment of a naval Judge Advocate is also different to the process in the army and the ORG . The appointment process is known as “ ticketing ” , a process which involves both the LAW and the ORG . The ORG regularly assesses the experience and qualities of those who are appropriately qualified , using the same criteria for judicial qualities as are applied by the Lord Chancellor for civilian judicial appointments . He then consults with the ORG as to suitability for appointment . The ORG will have had an opportunity to assess the qualities of such candidates and their suitability for ticketing since his review of the court - martial proceedings may also involve an assessment of the qualities of the prosecuting and defending barristers . With the ORG 's agreement , the CNJA then writes to inform a successful candidate of his or her appointment or “ ticketing ” . Such an appointment is for an undefined period of time . A Judge Advocate , once ticketed , remains on the list until he or she leaves the service or voluntarily resigns from the list . No Judge Advocate has ever been removed from office , although some have voluntarily withdrawn because they have decided to concentrate on operational appointments within ORG . If the question ever arose , grounds for removal would be precisely the same as those for a civilian judge , and the decision would be taken by the ORG .

Once “ ticketed ” , these officers gain experience by assisting at a court - martial with an experienced Judge Advocate . They then proceed to cases where they sit as Judge Advocate where the accused pleads guilty , so that sentencing is the only matter at issue . It is then for the LAW to assess when the Judge Advocate in question is ready to officiate in contested cases . At that point Judge Advocates are appointed to individual cases by the LAW , by his letter of appointment , but the practice is that there is no selection as the Judge Advocate is appointed by rota on a “ cab rank ” basis , the only criteria being that the Judge Advocate is not excluded by section CARDINALC(CARDINAL ) of the CARDINAL LAW . Accordingly , a list is kept by the ORG of “ ticketed ” Judges Advocates , and the name at the top of the list is appointed to the next court - martial . That Judge Advocate 's name then goes to the bottom of the list and such persons will not be appointed until his or her name rises to the top of the list again . Such ticketed barristers may be serving in either legal or non - legal appointments : those serving in legal appointments sit as Judge Advocates on average for DATE each year and those serving in non - legal appointments will normally sit for less .

There are currently CARDINAL practising Judge Advocates CARDINAL of whom is serving in a ORG appointment and is not therefore reported on by his ORG superiors .

Judge Advocates are responsible solely to the ORG for the performance of their professional duties at courts - martial while in office . As noted above , the ORG reviews all contested courts - martial which result in a conviction . In advising ORG , the ORG will comment on the Judge Advocate 's handling of the proceedings and his summing up . He may also pass “ professional comments about the judicial performance to the CNJA ” . At the time of the applicant 's court - martial , there was a haphazard practice whereby the ORG might provide a Judge Advocate 's reporting officer , at that latter officer 's request , with a synopsis of the ORG 's comments on the Judge Advocate 's performance . The Judge Advocate who officiated at the applicant 's court - martial was not so reported upon and that practice has since ceased . The CNJA does not sit on any promotion board of any officer who has served as a Judge Advocate and has no control over or effect upon their promotion . Judge Advocates receive no additional or separate pay for duties in such office and their pay and promotion can not be affected by their performance or status as a Judge Advocate .

ORG CARDINAL , which came into force after the present court - martial , provides as follows :

“ CARDINAL . It follows that Judge Advocates must be free from any supervision or restraint in order to carry out independently the duties required of them by law . In the conduct of their professional duties at courts - martial Judge Advocates are accountable , only in so far as the standard and performance of their duties is concerned , to the [ ORG ] .

The [ ORG ] is solely responsible for reporting on the professional performance of Judge Advocates in the conduct of their duties in court - martial trials . No other personal report , assessment or other document is to be prepared or used to determine whether an officer conducting Judge Advocate duties is qualified to be promoted , or is qualified or suited for particular appointments or training . Where Judge Advocates are appointed to general appointments , or whilst carrying out their general duties , nothing in this article shall prevent the appropriate reports being prepared on them concerning their conduct of those duties , for promotion , appointing or training purposes . ”

The appointment of the members of the court - martial proceeds by way of a random selection : the ORG requests ships and establishments to nominate officers to serve as court - martial members . There was also a list of volunteers who had put their name forward as being available and prepared to sit as a court - martial member . ( Since the entry into force of the CARDINAL Act , the appointment of members has been by way of a random selection from a computer generated database of eligible personnel ) .

Section CARDINALC(CARDINAL)(b ) of the DATE Act excludes from selection for courts - martial the CAOs , the COs of the accused , members of ORG , investigating officers and all other officers involved in inquiring into the charges concerned . Rule CARDINAL of the DATE Rules also excludes an officer serving under the command of ORG referring the case , ORG or the CAOs . The members of the court - martial are not legally qualified although most will have attended a previous court - martial as an observer . They will also have attended a Divisional Officer 's Course where they will have received instruction on summary trials and many will have attended the Junior Staff Course which includes a lecture on Naval Discipline .

The members of a court - martial remain subject to naval discipline in the general sense since they remain naval officers , but this is subject to their not being reported on in relation to the carrying out by them of their duties as members of the court - martial and , in particular , in relation to their judicial decision - making . Attempting to influence , or influencing , a member of a court - martial amounts to the common law offence of perverting the course of justice and/or to the offence of conduct to the prejudice of good order and naval discipline ( section CARDINAL of the DATE Act ) .

NORP The President is responsible for conducting the trial in a manner befitting a court of justice and in accordance with the traditions of ORG ( Rule CARDINAL ) of the DATE Rules ) . The post of Permanent President of Courts - Martial ( “ PPCM ” ) , which existed in the air - force and army ( the ORG judgment , § § DATE ) was never created in ORG .

When the members have been nominated and the court - martial has been convened , the members are sent LAW for court - martial members ( paragraphs CARDINAL - CARDINAL below ) along with a list of prosecution witnesses . The members are required to examine the list and to inform the ORG if any of the witnesses is known to them . They are also advised that , should they subsequently discover that they do know someone , they should advise the Judge Advocate .

At the outset of the court - martial , the names of the members of the court - martial ( of the Judge Advocate , the President and of the ordinary members ) are read out and an accused can object to any member of the court - martial .

The President and each ordinary member of a court - martial take the following oath :

“ I swear by almighty God that I will duly administer justice according to the law and without partiality , favour or affection ; and I do further swear that I will not on any account , at any time whatsoever , disclose the vote or opinion of any member of this court - martial , unless thereunto required in due course of law . ”

The Judge Advocate takes the following oath :

“ I swear by almighty God that I will to the best of my ability carry out the duties of judge advocate according to law and without partiality , favour or affection ; and I do further swear that I will not on any account at any time whatsoever disclose the vote or opinion of the President or [ of ] any member of this court - martial unless thereunto required in due course of law . ”

Once the court - martial hearing has commenced , the power to dissolve it is vested in the Judge Advocate . At the court - martial the Judge Advocate sits apart from the court - martial members and has no contact with them ( either during or outside TIME of sitting ) other than appears on the record of the court - martial . A Judge Advocate 's rulings on points of law are binding on the court - martial members and he or she delivers a summing up in open court before the court martial retires to consider its verdict .

Deliberations of the court - martial members are confidential , members being forbidden to reveal any opinion or vote . The Judge Advocate does not deliberate in private with the court - martial members on verdict and has no vote on this . The Judge Advocate will , however , sit in private with the court - martial members to deliberate on sentence and to give any advice on sentence required and he has a vote . Decisions on verdict and sentence are reached by majority vote ( section CARDINAL of the DATE Act ) . The casting vote on sentence , if needed , rests with the President of the court - martial , who also gives reasons for the sentence in open court . The members of the court are required to speak , and at the close of deliberations to vote , on verdict and sentence in ascending order of seniority .

All guilty verdicts reached , and sentences imposed by , a court - martial must be reviewed by the “ Reviewing ORG ” within prescribed time limits ( section CARDINAL of the DATE Act ) . ORG is ORG which has delegated its functions to ORG ( also known as ORG ) which in turn has delegated that task to the Naval Secretary .

Contested cases resulting in a conviction are ( as noted above ) scrutinised by the ORG who provides written advice to ORG as to the safety of the conviction and the conduct of the trial . For guilty pleas resulting in conviction , legal advice is provided to ORG by a senior naval barrister who is himself an experienced Judge Advocate but who does not continue to practice as a Judge Advocate for the duration of his tenure as advisor to ORG , for reasons concerning his independence from the “ naval judiciary ” . The accused may also petition ORG within DATE following sentencing and ORG procedure does not begin until after receipt of that petition or after DATE time - limit for its receipt . Post - trial advice to ORG ( either from the ORG or the experienced naval barrister ) is disclosed to the accused . Account will be taken of the petition , where one is submitted , in the advice given to ORG .

The Reviewing ORG gives a reasoned decision ( Rule CARDINAL of the CARDINAL Rules ) and its verdict and sentence are treated for all purposes as if they were reached or imposed by the court - martial .

ORG may substitute a finding of guilt which could have been made by the court - martial and if the court - martial must have been satisfied of the facts which would justify making that finding ( section CARDINAL(CARDINAL ) of the CARDINAL Act ) . It may also “ pass any such sentence ( not being , in the opinion of the authority , more severe than the sentence originally passed ) open to a court - martial on making such a finding as appears proper ” ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) .

According to section CARDINALA of LAW , ORG can also quash any guilty verdict and associated sentence and make an order authorising a re - trial under the same conditions as ORG ( see paragraphs DATE below ) . It is then for ORG to decide whether to seek a re - trial . While the individual concerned is not heard by ORG specifically on the question of a re - trial , the decision of ORG to seek a re - trial can be challenged as an abuse of process . If convicted on re - trial , the individual also retains his access on verdict and sentence to ORG .

The ORG is a civilian court composed of judges from the criminal division of ORG . A convicted person has a right of appeal to the ORG against both conviction and sentence ( section CARDINAL of ORG DATE as amended - “ the DATE LAW ) .

An appeal against conviction will be allowed where the ORG finds that the conviction is unsafe , but dismissed in all other cases . The test of what is “ unsafe ” is the same as that applied in appeals against convictions from the civilian criminal courts . An appeal against sentence may be allowed where the ORG considers that the sentence is not appropriate for the case ( section CARDINALA of LAW ) . The ORG has power , inter alia , to call for the production of evidence and witnesses whether or not produced at the court - martial ( section CARDINAL of LAW ) .

In the case of NORP v. PERSON ( judgment of the ORG of DATE ) , the appellant pleaded guilty to a charge of absence without leave and was sentenced to , inter alia , DATE detention . ORG rejected his petition and Mr Justice PERSON gave the judgment of the ORG on appeal . Having noted in detail the advice of the ORG to ORG , he quoted as follows from a prior judgment of the ORG ( NORP v. PERSON , judgment of DATE ) :

“ In our judgment , the court has to bear in mind , in dealing with an appeal of this kind , ... the somewhat “ hybrid jurisdiction ” which [ the ORG ] exercises ; in that it is clearly free to correct any injustice , but it nonetheless has to be mindful that those imposing and confirming sentences , particularly , it is to be said ... in relation to an offence of desertion , are particularly well placed and indeed better placed than [ the ORG ] in assessing the seriousness of offending in the context of service life ” .

Mr Justice PERSON continued :

“ The offence of going absent without leave , as indeed the offence of desertion , is not one in respect of which any civilian parallel exists . The sentencing considerations involve factors that are particular to the armed services , in respect of which their judgment and experience are entitled to great weight . A court should be reluctant to interfere with such courts - martial sentencing decisions , particularly where the [ JAG ] has reviewed the matter and has dismissed the petition in the terms in which he did here . The considerations particular to this sort of military offence relate to the significance of the offence for the maintenance of military discipline and efficiency , the need for deterrence , the significance of rank and the availability of other measures from dismissal to loss of rank and pay , which are in many ways not available or not paralleled in the civilian sphere . Indeed some of those factors would also be of particular weight when the [ ORG ] is dealing with offences which do have parallels in the civilian sphere , and would justify caution in interfering with courts - martial sentences ; even more so do they justify caution when dealing with offences which have no parallel in the civilian sphere . ”

The case of NORP v. ORG ( judgment of the ORG of CARDINAL DATE ) concerned a re - trial following a decision of ORG . Lord Justice PERSON in the ORG stated as follows :

“ The Reviewing Authority directed ... that the Prosecuting ORG consider whether there should be a re - trial . That was an inappropriate direction on the part of ORG because under section CARDINALA of the [ CARDINAL LAW ] the decision whether or not to order a re - trial must be one for ORG itself and not for ORG , though of course ORG could , if so disposed , canvas the views of ORG , and of the proposed defendant , as to whether or not there should be a retrial . Following that , ORG was advised of the error of its approach and ... directed a retrial in the interests of justice . ... If [ such a ] decision of ORG was to be challenged , it could only be challenged by means of judicial review ... . ” .

In the cases of R .v . Ball and NORP v. PERSON ( judgment of the ORG , CARDINAL DATE ) , the sentence of the court - martial was DATE detention and ORG substituted a sentence of DATE imprisonment . The ORG quashed the latter sentence and replaced it with a sentence of DATE detention .

At the relevant time , the Briefing Notes described below were sent by the ORG to the members ( including the President ) selected for a court - martial .

The introduction to LAW provided as follows ( The Order of Procedure booklet referred to in this introduction was not submitted by the Government to the Court ) :

“ CARDINAL . These notes provide a guide to the roles and duties of Presidents and Members of the ORG at naval courts - martial trials . They are not mandatory and officers must continue to exercise their judgement and discretion during the course of the trial . The purpose of these notes is to explain procedures and formalities , so that officers taking part for the first time can better understand their role and concentrate on the issues in the trial .

Officers selected to officiate will also find it useful to acquaint themselves with ORG booklet ( a copy of which is enclosed with these notes ) although it is the Judge Advocate 's responsibility to ensure that the procedures are followed . He will lead the President and the Members on matters of procedure throughout the trial , and will prompt them as required in the observance of the traditional formalities . ”

Paragraph CARDINAL of the Briefing Notes provided that :

“ The President is “ responsible for conducting the trial in a manner befitting a court of justice and in accordance with the traditions of the ORG ” ( Rule CARDINAL ) [ of DATE Rules ] ) . Whilst these notes and the procedure booklet will prepare and arm Presidents to discharge this task , it is upon the Judge Advocate ( who is also a member of the court ) that Presidents should rely for advice and guidance on the discharge of this duty , and all matters associated with the trial . Judge Advocates are selected from the ranks of experienced naval barristers by the [ CNJA ] . It is their responsibility to ensure that the trial is conducted in accordance with the law , and they are trained and experienced in all matters concerning evidence and procedure and are accustomed to dealing with the many unforeseen difficulties inevitably faced by courts - martial . ”

The Notes continued at CARDINAL as follows :

“ CARDINAL . Experience has shown that it is of paramount importance that Presidents confine themselves to their particular duty laid down in [ DATE Rules ] , and do not allow themselves or their ORG Members to treat the proceedings as a board of inquiry into any aspect of omission , neglect or wrong - doing by any person not charged and brought before the ORG as an Accused . ...

Without exception such matters can be dealt with internally , without the need to draw attention to them outside the ORG by pronouncement made in open court . The preferred course for dealing with such matters which may come to light during the trial ... is therefore for the Presidents to raise them with the appropriate ORG authority after the trial has finished . ...

Presidents and ORG Members should bear in mind that their duties in court can be exacting , onerous and require considerable patience ; they should not therefore underestimate the demands that will be made of them . They must be prepared to concentrate on the issues in the trial without any distraction by their normal duties and responsibilities . ... ”

Paragraphs CARDINAL covered the opening procedure describing how the members of the court - martial would enter ( indicating that the President would return the salutes of the uniformed personnel as appropriate ) and how the parties could object to any member of the court - martial ( which matter would be resolved , if necessary by the Judge Advocate ) , after which the sitting members would take their oaths .

Paragraph CARDINAL dealt with the procedure in the case of a plea of not - guilty . It covered the ORG 's opening statement , the examination in chief , cross - examination and re - examination of witnesses , questions of witnesses by the Judge Advocate and the President , closing addresses by the prosecution and defence . It also indicated that , at the discretion of the President , it would be permissible and often helpful ( particularly to the uniformed advocates ) to relax swords during the course of the trial . It went on to advise that :

“ ( i ) The Judge Advocate will then direct the ORG on the legal issues they must consider , and will summarise the evidence in a neutral way . He will define the elements of the offences and any other relevant law , give the ORG simple guidance on how it applies to the issues in the case , and usually invite them to approach their consideration of the case by addressing a number of questions that will direct their minds to the issue of innocence or guilt . The ORG will find it helpful to make a note of any questions the Judge Advocate poses .

( j ) The ORG will then retire to consider its verdict . They must not separate nor communicate with anyone whilst doing so . If they have further questions about any aspect of the case , then the President must re - open the ORG and put those questions to the Judge Advocate on the record . Having come to their finding , and having completed ORG which has been left with them ( and which the Judge Advocate will have explained in his summing up ) the President re - opens the ORG , the ORG collects ORG and the Judge Advocate reads the finding . In the event of any finding of guilt , the ORG hears mitigation and then retires ( this time with the Judge Advocate present to advise them ) to consider their sentence . ... ”

Paragraph CARDINAL dealt with questions to witnesses by the members ( other than the President and the Judge Advocate ) and pointed out that if they were in doubt about a question then the President could seek the Judge Advocate 's advice in open court before any question was asked .

Paragraphs CARDINAL and CARDINAL dealt with the Judge Advocate 's rulings on the admissibility of evidence and on any submission by the accused that there was no case to answer in the absence of the other members of the court - martial . Paragraph CARDINAL concluded that “ like all of the Judge Advocate 's rulings on matters of law , the ORG are bound to follow his direction . ”

Paragraph CARDINAL of the Notes provided :

“ The ORG are the sole judges of the facts and weigh the evidence to establish innocence or guilt . They are bound by the Judge Advocate 's directions on the law and must take any advice on the law and procedure exclusively from him . During the trial , the ORG may find that they have questions which they wish to address to the Judge Advocate ; such questions must be asked in open court in the presence of the Accused ( and his Accused PERSON and the Prosecutor ) and the Judge PERSON 's reply must also be on the record . This means that once the trial has commenced , the ORG can have no direct communication with the Judge Advocate except in open court . ”

Paragraph CARDINAL of the Notes further stated :

“ As the sole judges of the facts the ORG must appear to be , and remain throughout , impartial . It is important that not only is justice done , but that it is seen to be done . ”

Paragraph CARDINAL of the Notes warned members that :

“ The ORG must not be tempted to reach a decision before they have heard all the evidence for both prosecution and defence . ... ”

Paragraph CARDINAL of LAW recalled that :

“ ... [ The members ' notes ] should be left behind and will be destroyed by the ORG once the trial is over . ”

Paragraph CARDINAL of the Notes contained the following guidance :

“ The ORG should not be tempted to discuss the case amongst themselves until they have heard all the evidence and the Judge Advocate 's summing up . They must be rigorous in not discussing the case outside their number at all during the adjournments , particularly TIME , since they may be influenced , even subconsciously , by anything said to them which is not evidence in the trial . The Judge Advocate is required , as a matter of law , to remind them of this before any adjournment of any length . ”

Paragraph CARDINAL of the Briefing Notes provided :

“ After a plea of Guilty or a finding of Guilt , the Judge Advocate will retire with the remainder of the ORG to advise on and consider sentence with them in closed court . The Judge Advocate will advise ORG sentencing options available in the case . Sentencing is a matter for the court 's discretion and judgment , but the Judge Advocate will advise them on the appropriate level and type of sentence , based on naval sentencing practice and ( where appropriate in more serious cases ) Court of Appeal sentencing guidelines , as well as his experience . ORG will be invited to consider and , if necessary , vote on the sentence to be awarded , in which case the normal tradition of the ORG should be followed : the junior member should vote first , followed by the other Members of the ORG and the President , in ascending order of seniority . The Judge Advocate is a member of the ORG , and if necessary , has the penultimate vote on sentence before the President , who himself has an additional casting vote in the event of an equal division of votes . That said , it is the customary and proper practice for naval courts - martial to try and achieve a consensus opinion on the appropriate sentence in the first instance . ”

Paragraph CARDINAL of LAW added that :

“ Following pleas or findings of Guilt in the case of officers , ORG ( at the Judge Advocate 's prompting ) will observe the tradition of the ORG by turning the point of the Accused 's sword to face him . ”

Paragraph CARDINAL concerned announcing and giving reasons for a sentence and read as follows :

“ Increasingly it is the practice of the civil court judges to announce in open court the reasons behind any particular sentence they have awarded . This has been the practice of naval courts - martial for some time and is now a statutory requirement . The procedure is as follows :

( a ) The ORG , with the assistance and advice of the Judge Advocate , will determine the appropriate sentence in closed court . ...

( c ) The Judge Advocate will also , together with the President , draft a statement of the reasons why the ORG has awarded the particular sentence , which will be designed for public consumption . This statement of the reasons for sentence will be included in the signal publishing the result of the court - martial which receives a navy - wide distribution . ”

In DATE the naval Higher ORG referred CARDINAL cases to ORG for a decision whether or not to prosecute and CARDINAL of those cases were discontinued before trial .

In DATE the rate of acquittals in contested naval courts - martial was PERCENT . The rate of acquittals in contested ORG trials has been :

DATE – PERCENT

DATE – CARDINAL.CARDINAL

DATE PERCENT

DATE PERCENT

DATE PERCENT


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving his sentence in the GPE , ORG no . CARDINAL of GPE .

The applicant was apprehended on DATE and held in detention on suspicion of being involved in murder and theft of private property .

In DATE the investigator remitted the case - file to ORG , which on DATE remitted the case for additional investigation to the ORG prosecutor .

On DATE the ORG , in the presence of the applicant and his representative , following examination of a wide range of documentary and oral evidence , sentenced the applicant to life imprisonment and confiscation of all of his personal property following his conviction for murder and theft of private property committed as a member of an organised criminal group .

On DATE ORG , sitting in a chamber composed of CARDINAL judges and in the presence of the applicant and his CARDINAL representatives , rejected the cassation appeals lodged against the judgment of DATE as they were unsubstantiated . It confirmed the applicant ’s conviction , having examined a wide range of documentary and oral evidence .

On DATE , DATE and DATE ORG refused to re - examine the applicant ’s case in the course of extraordinary review proceedings , finding no grounds for it .

Following the applicant ’s conviction , in DATE , he unsuccessfully complained to ORG and ORG , various other state institutions , about the unlawfulness of his conviction and various procedural irregularities that from his point of view occurred in the course of examination of his case .

According to a letter of DATE from ORG , on DATE the applicant requested ORG , which was examining his criminal case , to allow him to marry ORG However , this request was not examined and no answer was given to the applicant as on DATE ORG remitted the case for additional investigation and the applicant did not repeat his request for permission to marry ORG The letter also stated that the applicant ’s passport had remained with the prosecutor ’s office throughout the proceedings , including the period when the case - file had been remitted for additional investigation , and after the applicant ’s conviction became final it was sent to the court for enforcement of the sentence imposed on the applicant .

In DATE the applicant requested ORG to provide him with his passport so that he could marry . On DATE ORG replied that his passport was at the court of appeal and thus he had to address his request to that court .

On DATE the ORG of Appeal informed the applicant that his request lodged with the court on DATE to allow him to marry ORG had not been examined by that court because the case had been remitted for additional investigation to the prosecutor ’s office . Thus , he should have addressed the prosecutor office as it was from then on responsible for processing his criminal case . Also , when the case arrived at the court in DATE he had not requested anew permission to marry .

On DATE ORG informed the applicant that his passport was part of his personal file and had been archived at the penitentiary institution where he was serving his sentence . They also informed him that it was being exchanged for a new NORP ordinary citizen ’s passport ( in exchange for the invalid NORP passport he had ) .

On DATE the applicant received an internal NORP passport in exchange for the NORP passport issued to him in DATE .

On DATE the applicant requested ORG to inform him about the procedure for registration of marriages . On DATE the applicant received detailed explanations as to how registration of marriages for convicts could be effectuated .

In accordance with LAW , convicted persons had the same rights and duties as other citizens of GPE , with restrictions provided by the law , resulting from the judgments of the court and the regime of serving their sentence , as provided by these judgments .

Marriages are registered in accordance with the general rules of ORG CARDINAL – CARDINAL of the Code on Marriage and Family . According to LAW the presence of the couple is obligatory for registration of marriages . However , if a person is unable to attend registration of marriage at the civil acts registration department , marriage can be registered at other LOC . LAW established a limited list of circumstances that would preclude a person from getting married , however , conviction of a person or his detention were not seen as an obstacle for registration of a marriage .

By virtue of Rule CARDINAL - CARDINAL.CARDINAL registration of marriage with convicts shall be conducted on the general grounds referred to in the Code on Marriage and Family . A marriage can be registered on the basis of a request from a person who is not serving the sentence as well as a convict himself . The completed documents are then sent to the penitentiary for transfer to the convict ( Rule CARDINAL ) , who is to fill out his part of the application for marriage and after that the documents and the convict ’s signature are certified and sent to the appropriate civil acts registration department ( Rule CARDINAL ) .

If a convict is the person who initiates the marriage , then he requests the relevant documents from the penitentiary ( including a special application form ) , fill them out and send them to the person he intends to marry , who shall then also fill them out . The completed documents are then transferred to the civil acts registration department ( Rules CARDINAL and CARDINAL ) .

The persons concerned are then informed ( the respective penitentiary institution shall inform the convict ) by the civil acts registration department of the date and time of the marriage ( Rule CARDINAL ) . The registration of marriage takes place in the LOC designated by the penitentiary institution ( Rule CARDINAL ) . The relevant remarks as to registration of marriage are put into the ordinary national passport of the married couple ( Rule CARDINAL ) . Registration of marriage for persons who are detained pending trial is conducted by the relevant civil acts registration departments at ORG ( GPE or prisons ) , only upon written permission of the body , which is responsible for the case , in accordance with the procedure and rules established for the penitentiary institutions .


Violation of Art. 10;No violation of Art. 6-1;No violation of Art. 7

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE . He was a journalist on the nationwide magazine CARDINAL päivää .

On DATE , the National Conciliator ( valtakunnansovittelija , riksförlikningsmannen ) at the time , and B. , his female friend , entered late at night A. 's home where his wife was present . The situation escalated , the police were called and the incident , which subsequently involved also A. 's grown - up children , led to ORG 's arrest . Following the incident , criminal charges were brought against both PERSON and NORP on DATE . On DATE ORG ( käräjäoikeus , tingsrätten ) sentenced PERSON to a DATE conditional prison sentence for resisting arrest and for criminal damage ( vahingonteko , skadegörelse ) , and PERSON to a fine for assault . On DATE ORG ( valtioneuvosto , statsrådet ) dismissed PERSON from his post as ORG . On DATE ORG ( hovioikeus , hovrätten ) upheld the judgment with respect to B. As regards PERSON , the case was discontinued as he had died on CARDINAL DATE . On DATE ORG ( korkein oikeus , högsta domstolen ) refused PERSON leave to appeal .

On DATE CARDINAL päivää magazine published CARDINAL articles written by the applicant about A. and PERSON The first article was entitled “ A. collects his female friend DATE from work , the relationship continues ” and it concerned A. 's and B. 's relationship . B. 's conviction as well as her workplace were mentioned as background information but the major part of the article concerned the journalist 's eyewitness statements about how A. and PERSON spent their free time . The caption of the article stated that “ A. 's female friend PERSON visits his home DATE ” . Also , several pictures of B. were published . The second article was entitled “ The police laughed at the ex - national conciliator , PERSON arrested the journalists ” . It was about A. and his behaviour in certain encounters with the media , and PERSON 's name was mentioned only in passing . The caption of the article stated that “ PERSON requested executive assistance from the police in order to take his female friend secretly to his home ” . Prior to these articles , PERSON 's identity had been revealed and her picture had been published in the media .

In DATE and PERSON requested that criminal investigations be conducted against journalists who had written about the incident of CARDINAL DATE and the circumstances surrounding it . On an unspecified date they made such a request with respect to the applicant , claiming that the articles published in CARDINAL päivää had invaded PERSON 's privacy .

On DATE the public prosecutor brought charges under LAW , section CARDINAL(a ) , paragraph CARDINAL , of LAW against the applicant as well as the editor - in - chief ( see PERSON and others v. GPE , no . CARDINAL , DATE ) , in ORG . The charges brought against the applicant clearly indicated that the applicant was charged only for having written the articles in question . He was not charged for having been responsible for the headings , pictures or in which part of the magazine the articles were to be published .

B. concurred with the charges brought by the public prosecutor . She pursued a compensation claim jointly and severally against the applicant , the editor - in - chief and the publishing company , which was joined to the criminal charges . Charges brought against the other journalists of the magazine as well as the editor - in - chief were examined in the same proceedings .

On DATE the court , after having held an oral hearing , first decided to declare all parts of the case file secret for DATE except for the applicable legal provisions , the conclusions and the summary of the case . Additionally , PERSON 's identity was not to be revealed in the public parts of the case file . As to the merits of the case , the court accepted the statement of facts indicated in the charges and noted that the applicant was not responsible for the headings , pictures or in which part of the magazine the articles were to be published . It sentenced the applicant to pay DATE - fines , amounting to MONEY ( ORG ) , for invasion of PERSON 's private life . Moreover , the applicant was ordered to pay PERSON , jointly with the other parties to the case , ORG CARDINAL plus interest for non - pecuniary damage as well as her costs and expenses .

ORG found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied . ORG had already found in DATE that the national television broadcast on DATE , in which ORG 's name had been mentioned twice in the context of an interview with A. , had invaded her private life . PERSON did not hold such a position in society that the exception in LAW , section CARDINAL(a ) , paragraph CARDINAL of LAW was applicable . The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as ORG did not justify revealing her identity . Nor was PERSON 's conviction of a kind that would justify revealing her identity . The Penal Code provision in question did not require that intent to harm be shown but it was sufficient that the dissemination of information about the private life of a person was capable of causing him or her damage or suffering . The applicant , therefore , had had no right to reveal facts relating to B. 's private life .

By letter dated DATE the applicant appealed to ORG , requesting , inter alia , that an oral hearing be held and if not , that he be given a possibility to submit additional comments . Moreover , he claimed that the disclosure of a convicted person 's name could not be considered as falling within the scope of private life , and that ORG judge had had a fixed idea about the outcome of the case .

On DATE ORG , without holding an oral hearing , upheld the ORG judgment . The court balanced the freedom of expression against the protection of private life in the light of the ORG 's case - law . It found that , according to the preparatory works and the national and the ORG 's case - law , the facts mentioned in the articles were of a kind to which the protection of private life typically applied . ORG had already found in DATE that PERSON was not a public figure , and the fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as ORG did not justify revealing her identity . Nor was PERSON 's conviction of a kind that would have justified revealing her identity . The fact that PERSON 's identity as A. 's friend had previously been revealed in the media did not justify the subsequent invasion of her private life .

NORP By letter dated DATE the applicant applied for leave to appeal to ORG , reiterating the grounds already presented before ORG . Moreover , he claimed that ORG had not reasoned its judgment sufficiently , and that the judgment was written in a manner suggesting collective criminal liability . This conflicted with the presumption of innocence . Further , he claimed that the restrictions on freedom of expression were neither necessary nor justified in this case .

On DATE ORG refused the applicant leave to appeal .

The relevant domestic legislation and practice are outlined in the ORG 's judgment in PERSON and others v. GPE ( no . CARDINAL , § § DATE , DATE ) .

The relevant international materials are outlined in the ORG 's judgment in PERSON and others v. GPE ( cited above , § § CARDINAL - CARDINAL ) .


The applicant , Mr Ladislav Eštok , is a NORP national , who was born in DATE and lives in PERSON .

summarised as follows .

The applicant had been employed as a car mechanic with a private entrepreneur until DATE when he was dismissed with immediate effect for an alleged serious breach of work discipline .

In a letter of DATE the applicant informed his employer that he considered the dismissal void and insisted that his employment continue .

The applicant challenged the validity of his dismissal before the PERSON ORG ( Okresný súd ) .

On DATE ORG held a hearing . Immediately after the hearing , the applicant 's lawyer obtained a copy of TIME of it .

On DATE ORG ruled that the dismissal was void for formal reasons . In particular , it did not state with the requisite clarity and certainty why the applicant was to be dismissed . The ruling became final and binding on DATE .

In DATE the applicant took another set of civil proceedings against the above entrepreneur . He maintained that , as the dismissal of DATE was void , his employment continued . He was however neither being assigned any work nor being paid any salary . He claimed financial compensation for the wages thus lost .

On DATE ORG took a decision on the action . It observed that , at the hearing held on DATE in the proceedings concerning the validity of the dismissal , the applicant had declared that he no longer wished to be employed by the defendant . In such a case the applicant was entitled to financial compensation for wages lost in a period limited under LAW ( CARDINAL ) ( b ) in conjunction with Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( f ) of LAW to DATE following the void dismissal , i.e. until DATE ( “ the first period ” ) . ORG calculated the amount payable in respect of this period and ordered that the defendant pay this amount to the applicant . The ruling concerning the first period became final and binding on DATE . ORG finally dismissed the action insofar as it was claimed compensation for the wages allegedly lost in the subsequent period .

On DATE the applicant lodged an appeal . On DATE he submitted the reasons for it . He challenged ORG judgment of CARDINAL DATE only insofar as it had dismissed his claim , i.e. in relation to period after DATE . He maintained that he had never made any statement to the effect that he was not interested in continuing to be employed by the defendant . There was no record of any such statement in the copy of TIME of the hearing of DATE that had been obtained by his lawyer .

On DATE ORG ( PERSON súd ) quashed the challenged part of ORG judgment and remitted the relevant part of the action ( i.e. pertaining to DATE only ) to the latter for reexamination . It noted that there was a discrepancy between the contents of the original version of TIME of the court hearing of DATE that was held in the respective courtfile and the copy of these minutes that had been submitted by the applicant . Contrary to the applicant 's copy , the version held in the courtfile contained a record of a statement by the applicant that he had no longer wished to be employed by the defendant . ORG instructed ORG to reexamine the matter after having clarified this discrepancy .

ORG held further hearings on DATE , CARDINAL DATE and CARDINAL DATE .

On DATE , following another hearing held on DATE , ORG determined again the remaining part of the applicant 's action . Despite all efforts , it was not possible to establish with certainty the legal nature of the applicant 's statement at the hearing of DATE as regards his further employment with the defendant . No conclusion could therefore be drawn from it and the relevant facts of the case had to be and in fact were established by means of other documentary evidence and several testimonies that were available . ORG made a distinction between the period from DATE to CARDINAL DATE when ORG judgment of DATE concerning the validity of the dismissal had become final and binding ( “ the second period ” ) and the period after that date ( “ the third period ” ) . As for the second period , the applicant was entitled to compensation . ORG calculated the amount payable and ordered that the defendant pay this amount to the applicant . As for the third period , ORG finally decided that the existence and scope of any entitlement to compensation would be determined in another set of proceedings opened for this purpose under a separate filenumber . The defendant challenged this judgment by an appeal .

On DATE ORG quashed ORG judgment of CARDINAL DATE insofar as it concerned the second period . It found that ORG had not supported its determination of the amount payable in respect of this period by adequate reasoning and that it had failed to establish the facts relevant for this determination sufficiently .

On DATE ORG again determined the amount payable DATE to the applicant by way of compensation for wages lost in the second period and ordered that the defendant pay this amount to the applicant . The applicant and the defendant appealed on CARDINAL and DATE respectively .

On DATE ORG determined the appeals . It found that ORG had sufficiently established the facts of the case . ORG had however erred in its calculation of the amount payable and ORG adjusted the calculation . No appeal lay against this judgment .

The separate set of proceedings which had been opened pursuant to ORG judgment of CARDINAL DATE in order to determine the applicant 's claims pertaining to the third period is still pending .

On DATE the applicant seized ORG ( Ústavný súd ) with a complaint ( sťažnosť ) under LAW of ORG as in force from DATE . He objected that the length of the proceedings concerning his action of DATE had been excessive and invited ORG to find a violation of his right under LAW ( CARDINAL ) of the LAW to a hearing without unjustified delay , to order ORG to proceed with his case speedily , to award him CARDINAL NORP korunas ( SKK ) by way of just satisfaction and to order that the ORG reimburse his legal costs .

On DATE the Constitutional Court found that ORG had violated the applicant 's above constitutional right . It ordered that ORG proceed with the case without delay and awarded the applicant LAW by way of just satisfaction in respect of nonpecuniary damage . ORG also ordered that the applicant 's legal costs be reimbursed . ORG took into consideration the whole duration of the proceedings since DATE when the action had been lodged . The subjectmatter of these proceedings was not of a particular complexity . The nature of the dispute called for special diligence . The applicant contributed to the overall length of the proceedings to some extent , in particular by not having formulated his early submissions with adequate clarity . ORG did not deal with the case effectively which was shown inter alia by the fact that its judgments of DATE and CARDINAL DATE had to be quashed as the relevant facts had not been established sufficiently . Moreover , the applicant 's claim in relation to the third period was still pending . ORG determined the amount of just satisfaction on an equitable basis referring to LAW .

Article CARDINAL ( CARDINAL ) provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Prior to DATE there was no “ effective remedy ” within the ORG meaning in GPE as regards this right ( see , mutatis mutandis , NORP v. GPE ( dec . ) , no . MONEY , CARDINAL DATE ) .

As from DATE , the LAW has been amended in that , inter alia , natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision , ORG has the power , in the event that it finds a violation of LAW ( CARDINAL ) of the LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , DATE ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in DATE and lives in ORG , LOC . He is serving a prison sentence in GPE .

On DATE the applicant was arrested in ORG on suspicion of organised murder and robbery . He was placed in a temporary detention facility at the police station ( ИВС при УВД – ORG ) in ORG . On DATE he was remanded in pre - trial custody .

According to the applicant , at TIME on DATE the applicant was checked out of the ORG in ORG ; he was handcuffed with his hands behind his back , blindfolded with a canvas bag pulled over his head , and put on the floor of a police minibus . Several police officers and CARDINAL other detainees were in the same vehicle . As soon as the vehicle drove off the policemen began punching and kicking the applicant to force him to confess to the murder and to make him sign some documents . They hit him on the body and head , twisted his fingers , pulled on the handcuffs and tightened them behind his back . This lasted for TIME , until they arrived at a place described by the applicant as “ somewhere in a forest ” . The applicant was taken out of the vehicle and the beatings resumed . The applicant was spread on the ground , strangled with a rope or a belt , then his shoes were taken off and the police officers hit him on the heels with a wooden baton . The applicant claimed that he passed out several times , but when he regained consciousness the beating resumed ; he was hit in the head and on the body , kicked on the groin , and strangled again . The applicant claimed that the ill - treatment in the forest lasted TIME . After that the policemen put the applicant back into the van and drove on . In the van they continued to beat and intimidate him . The applicant remained blindfolded the whole time . When they arrived at ORG of the ORG in ORG the bag was removed from his head and he was checked into the ORG ’s ORG . He was placed in cell no . CARDINAL .

The applicant remained in the ORG in ORG until DATE . He allegedly requested to see a doctor , but this was refused . On DATE the applicant was brought back to ORG and released there .

On DATE the applicant saw a doctor at ORG in ORG ; he reported the ill - treatment and complained of headaches , vertigo , pain in the chest and abdomen and injuries to his feet and wrists . He was diagnosed with a head injury , possible concussion , and bruises on the chest and on the left foot .

On an unidentified date DATE the applicant requested the prosecutor ’s office of ORG to investigate the ill - treatment in criminal proceedings . On DATE the applicant was questioned by the police about the alleged ill - treatment . The case was then assigned to the assistant prosecutor who questioned the applicant on DATE . Both times the applicant spoke in detail about the episode of DATE .

On DATE the assistant prosecutor ordered a medical examination by forensic experts to identify the applicant ’s injuries , establish their origin and the time of their occurrence . On DATE he was examined by the forensic expert who then requested the applicant ’s medical file from ORG .

On DATE the assistant prosecutor questioned the guard who was on duty at the ORG when the applicant was checked out . He submitted that on DATE the applicant was checked out at TIME by CARDINAL police officers from the special squadron . After the applicant had been signed out they picked up his belongings , handcuffed the applicant and pulled a canvas bag over his head . CARDINAL other detainees were checked out at the same time and were taken away in the same vehicle . As far as he could tell , nobody ill - treated the applicant before the group left the ORG .

On DATE the assistant prosecutor questioned CARDINAL detainees , GPE and ORG , who were transferred to ORG on DATE with the applicant , and on CARDINAL DATE he questioned CARDINAL of the convoy policemen . ORG both said that they did not see anything because they were blindfolded , and that they did not hear any violence during the transfer . The convoy officer submitted that he and other policemen had carried CARDINAL detainees in the minibus and that they had made no stops on the way and had not used any force during the transfer .

On DATE the applicant was detained again , and remained in detention pending trial .

On DATE the chief medical officer of ORG replied to the enquiry from the prosecutor ’s office , stating that on DATE the applicant had been examined by a traumatologist and had been sent for an X - ray , after which he did not come back to the admissions office . He stated that the applicant had indicated that the injuries were caused on DATE and were the result of a domestic accident .

On DATE the prosecutor ’s office refused to open a criminal investigation into the allegation of ill - treatment , on the grounds that they were unsubstantiated .

On DATE , having received the applicant ’s medical file from the hospital , the forensic expert drew a report stating , in so far as relevant , as follows :

On the right side of the abdomen , covering a total area of QUANTITY , barely visible , are healing multiple abrasions ... , an abrasion on the outside of the right wrist QUANTITY ... , on the same level below the elbow bone there is a healing abrasion QUANTITY ... On the inner left wrist there is an abrasion of QUANTITY ... , on the outside there is a stripe - like abrasion of QUANTITY . Reports pain during palpation of the right side of the chest at the level of the seventh and the eighth ribs , on the line between the front and armpit , also reports pain when inhaling sharply or coughing . According [ to the applicant ] , he has pain in the soft tissues of the left foot ; no injury [ can be seen ] there . Sought medical aid at the admissions office of ORG on DATE , [ was examined by ] traumatologist . Medical files requested .

On DATE , [ record made by ] traumatologist . Complains of pain in the right side of the chest , headaches , nausea and vertigo . Beaten up DATE . Objective finding : condition of medium gravity ... Abdomen soft , painful when palpated . Reports pain during palpation of the left side of the chest ... Diagnosis : bruise on the left side of the chest , bruise on the left foot . On DATE . Headaches , vertigo ... Diagnosis : closed craniocerebral injury , concussion , bruise on the chest . On CARDINAL DATE , [ record made by ] traumatologist . Complains of pain in the fingers . Diagnosis : bruise on the chest . No other records made . The X - ray of the right side of the chest made on DATE reveals no bone fractures . ... The X - ray of hands and wrists in straight projection reveals no bone fractures . The X - ray of heel bones in CARDINAL projections reveals no bone fractures . Treatment by traumatologist continues ... .

On DATE a medical examination established that Mr PERSON had healing abrasions on the abdomen and the right and left wrist , caused by blunt hard object(s ) . The abrasions on the wrists could have been caused by objects like handcuffs . These injuries could have dated back to DATE prior to the examination .

These injuries caused no damage to health .

The clinically established diagnosis of concussion is not supported by objective clinical data , and therefore its gravity is not susceptible to evaluation . ”

The applicant was not informed of the results of the forensic examination and was not provided with a copy of the report .

On DATE the applicant received a letter informing him of the decision dispensing with a criminal investigation into the alleged ill - treatment . On DATE he lodged a complaint with the prosecutor of ORG contesting that decision .

On DATE ORG provided the prosecutor ’s office with an extract from the applicant ’s medical file . It stated that on DATE the applicant complained of pains in the head and chest and was sent for X - ray screening . On DATE he was examined by a traumatologist . The chest and head X - ray did not reveal any pathology . He was diagnosed with bruises on the chest and left foot . On CARDINAL DATE he was again examined by the traumatologist , with the same diagnosis , and by the neurologist who diagnosed him with a head injury and possible concussion .

On DATE the applicant requested the prosecutor ’s office to send him a copy of the forensic report .

On DATE the prosecutor ’s office issued another decision refusing to institute criminal proceedings into the alleged ill - treatment . It relied on the statements of the ORG staff and the cellmate denying that force had been applied to the applicant at the ORG .

As he had received no reply to his letter of DATE , on DATE the applicant reiterated his request for a copy of the forensic report .

On DATE the applicant ’s cellmate at the ORG in GPE , S. , wrote to the prosecutor ’s office of ORG confirming the applicant ’s allegations of ill - treatment . He contended that on DATE at TIME the applicant was placed in cell no . CARDINAL ; that he was bleeding and bruised , his clothes were torn and bloodstained and he was unable to move around the cell without help . He had confirmed that the applicant had apparently been tortured by the special squadron police during his transfer from ORG and stated that no medical help was provided to the applicant at the detention facility .

On an unspecified date the same assistant prosecutor requested a further report on the applicant . On DATE an expert drew up the report . The applicant himself was not present , and the expert studied only a CARDINAL - page extract of the applicant ’s medical file issued on DATE . He concluded that it contained insufficient information and that , in the absence of the original medical documents , he could not establish whether the applicant had suffered any injuries .

On DATE the prosecutor ’s office refused again to institute criminal proceedings into the alleged ill - treatment , referring to the statements of ORG and to the fact that the expert had been unable to establish any injuries in the report of DATE .

On DATE , following complaints by the applicant , ORG of the LOC quashed the decision of DATE and ordered the inquiry to be continued . She gave detailed instructions to the prosecutor ’s office of ORG to carry out a number of steps to verify the allegations , including questioning of the medical personnel who examined the applicant on CARDINAL and CARDINAL DATE , obtaining the original medical records , establishing the identity of the staff members who had made or required the extracts of the medical files , and questioning ORG staff and cellmates about the applicant ’s injuries .

On DATE the prosecutor ’s office of ORG took a new decision refusing to institute criminal proceedings into the alleged ill - treatment . The decision essentially reiterated the preceding ones and concluded that the applicant ’s allegations were unsubstantiated . The applicant complained to the prosecutor ’s office about the refusal to hold an investigation and requested access to the file .

On DATE ORG wrote to the applicant to apologise for the false statement he had made to the office of the prosecutor conducting the ill - treatment inquiry . He explained that although he had remembered the “ monstrous ” beatings the applicant was subjected to during the transfer , he felt that telling about it would put him at risk .

On DATE ORG held a hearing in the applicant ’s criminal case and gave judgment . The applicant was found guilty of burglary and aggravated murder and sentenced to DATE imprisonment . During the trial the applicant complained of ill - treatment , and several witnesses testified that he been injured . The court did not examine the issue further .

Following requests by the applicant , on DATE and CARDINAL DATE the prosecutor ’s office refused to grant him access to the inquiry file . The applicant challenged the refusal before ORG . On DATE the court granted the applicant ’s claim and ordered the prosecutor ’s office to give the applicant access to the case file . CARDINAL pages of copies of the documents were sent to the applicant on DATE . They did not include the expert report of DATE .

On an unidentified date the applicant challenged the decision of CARDINAL DATE refusing the investigation of his ill - treatment before ORG . Among other arguments he referred to the forensic examination that he underwent on DATE and requested that the results be included in the case file . On DATE the court returned his complaint , stating that it could not examine the matter while a similar complaint was under examination by the prosecutor ’s office . The applicant appealed .

On DATE the Deputy President of ORG replied to the applicant that ORG had never received the applicant ’s complaint challenging the decision of DATE , and that in any event the latter was not amenable to judicial review because the applicant ’s arguments had already been examined in substance in the criminal proceedings against the applicant which had ended in his conviction .

Despite the above letter , the applicant ’s complaint was subsequently accepted for examination by ORG , and the applicant requested to attend the hearing . He also requested that his lawyer be informed about the date of the court hearing . The applicant claims that neither he nor his lawyer were notified of when the hearing was scheduled .

On DATE the court examined the complaint . Neither the applicant nor his counsel were present , but the public prosecutor took part in the hearing . The court upheld the decision of DATE dispensing with a criminal investigation . The applicant appealed .

On DATE the ORG examined the applicant ’s appeal and upheld the decision of DATE , finding the allegations of ill - treatment unsubstantiated and the prosecutor ’s decision well - founded . It appears that neither the applicant nor his lawyer were present at the hearing , while the prosecutor was .

On DATE the ORG gave notice of this application to the respondent Government .

On DATE the Prosecutor of the Yaroslavl Region submitted a request to ORG to have the decisions of DATE and DATE quashed in supervisory - review proceedings . The ground for the request was the absence of the applicant from the proceedings at both levels of jurisdiction . On DATE that request was granted , and the applicant ’s complaint was remitted for fresh examination by the district court .

On DATE ORG of the ORG issued a report on the internal inquiry relating to the applicant ’s complaints of ill - treatment . Having referred to the previous decisions by the prosecutor ’s office and the courts , it stated that the applicant ’s allegations of ill - treatment were unsubstantiated .

On DATE the ORG scheduled a hearing on DATE and ordered that the applicant be brought from the correctional facility to take part in the proceedings . The applicant requested CARDINAL times that the hearing be postponed . The requests were granted , the first time to allow him time for preparation , the second time following the replacement of his counsel and the third time to allow him more time to read the file . The hearing was postponed until DATE , then until DATE , and finally until DATE .

On DATE the court began examining the applicant ’s claim . The applicant was present at the hearing and made oral submissions . The hearing continued until DATE , when the court held a judgment dismissing the claims . The applicant appealed .

On DATE the ORG granted the applicant ’s appeal , reversed the judgment of DATE and remitted the case for fresh examination by the district court .

On DATE the district court examined the applicant ’s claims in fresh proceedings and granted them in full . It noted that the prosecutor ’s office had not taken all the measures necessary to enable a reasoned , lawful and well - grounded decision , in particular that it had failed to take into account the results of the forensic examination that took place on DATE . It therefore declared the refusal to investigate the applicant ’s allegations of ill - treatment in criminal proceedings unlawful and ordered the prosecutor ’s office to rectify the omissions .

On DATE ORG upheld the judgment of DATE .

The parties did not inform the ORG what follow - up measures had been taken by the prosecutor ’s office , if any .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s husband entered into an agreement with a building company . Under the terms of the contract the company had to build within DATE an individual house in accordance with the approved project , and the applicant ’s husband had to pay them the price of the house in DATE instalments .

On DATE the applicant ’s husband died .

The building company sued the applicant and her daughter ( heirs to the applicant ’s husband ) seeking to recover the contract arrears and to invalidate their title to the unfinished construction project .

On DATE ORG of PERSON ( “ the ORG ” ) granted the company ’s claims . The applicant appealed . The appeal hearing was scheduled for DATE .

During the hearing of DATE ORG ( “ the ORG ” ) decided to postpone the appeal hearing at the request of the plaintiff . The applicant ’s representative was present . According to the applicant , ORG did not specify the date of the next hearing .

On DATE the court notified the applicant that the hearing had been adjourned to CARDINAL DATE . The applicant received that notification on CARDINAL DATE , DATE of the hearing . The postmark on the envelope submitted by the applicant showed that it had reached her on DATE . ORG upheld the judgment on appeal in the absence of the applicant and her representative . It follows from the appeal decision of CARDINAL DATE that the other party was present at the hearing and made oral submissions .

NORP On DATE the applicant requested ORG to re - examine the case , alleging that she had not been duly notified of the appeal hearing of CARDINAL DATE .

On DATE ORG dismissed the applicant ’s request , finding that the materials of the case contained evidence that she had been properly notified . However , ORG did not specify what evidence the case file contained .

In DATE the applicant ’s husband joined a building partnership with a view to acquiring a flat . From DATE he paid construction fees .

Following her husband ’s death in DATE the applicant brought proceedings against the partnership , seeking to join it as a member in her husband ’s stead .

On DATE ORG granted the applicant ’s claim . On DATE ORG upheld that judgment on appeal .

On DATE the ORG of ORG quashed the above decisions by way of supervisory review and remitted the case for a fresh examination .

On DATE ORG granted the applicant ’s claim . However , on DATE ORG quashed the judgment on appeal and remitted the case for a fresh examination .

On DATE ORG dismissed the applicant ’s claims . On DATE ORG upheld the judgment on appeal .

The Code of Civil Procedure of GPE ( “ the ORG ” , in force from DATE ) reads as follows :

“ CARDINAL . NORP Parties ... are to be summoned to court by a letter sent via registered mail with an acknowledgment of receipt , a court summons with an acknowledgment of receipt , a telegram , by phone or fax or by any other means of communication which guarantees recording of the fact that the court summons or notifications were received by the parties .

A court summons is CARDINAL of the forms of court notification . Parties are notified by court summons of the date and place of a court hearing or of particular procedural actions ...

A summons or another form of notification is to be served on parties in such a way [ as to ensure ] that they have enough time to prepare their case and to appear at the hearing .

A court notification addressed to a party is to be sent to the address indicated by that party or his / her representative . If the party does not reside at the indicated address , the court summons may be sent to his or her place of work ... ”

“ CARDINAL . Court summons and other notifications are to be sent by mail or delivered by a person authorised by the court to deliver them . The time of service is to be recorded as laid down by post office regulations or on a document which is to be returned to the court .

With a party ’s consent , a judge can serve him / her with summons or notifications to be delivered to another party . A person authorised by the judge to deliver a court summons or another notification is to return a counterfoil of the summons or a copy of the notification bearing the addressee ’s signature recording receipt . ”

“ CARDINAL . A court summons ... to a person is to be served on him or her against his or her signature on a counterfoil of the summons , which is to be returned to the court ... ”

“ CARDINAL . Upon the receipt of the statement of appeal ... the judge shall :

CARDINAL ) NORP send to the parties copies of the statement of appeal and the enclosed written documents not later than the day after their receipt ;

CARDINAL ) NORP notify the parties of the time and place of the appeal hearing ... ”

“ CARDINAL . If a party to the case fails to appear and there is no evidence that the party was duly summoned , the hearing is to be adjourned ... ”


Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The relevant parts of LAW ( PERSON zakon PERSON , ORG nos . CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL and DATE ) read as follows :

“ A security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who , at the time of committing a criminal offence , suffered from significantly diminished responsibility [ and ] where there is a risk that the factors giving rise to the state [ of diminished responsibility ] might incite the future commission of a further criminal offence .

A security measure of compulsory psychiatric treatment may be imposed , under the conditions set out in paragraph CARDINAL of this Article , during the execution of a prison sentence , in lieu of a prison sentence or together with a suspended sentence .

Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist , but [ it shall not ] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed DATE .

“ Anyone who inflicts bodily injury on another person or impairs another person 's health shall be fined or sentenced to imprisonment for a term not exceeding DATE . ”

“ Criminal proceedings for the offence of inflicting bodily injury ( LAW ) shall be instituted by means of private prosecution . ”

“ ( CARDINAL ) Anyone who threatens another person with harm in order to intimidate or disturb that person shall be fined up to CARDINAL DATE wages or sentenced to imprisonment for a term not exceeding DATE .

( CARDINAL ) Anyone who seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year .

( CARDINAL ) Criminal proceedings for the criminal offences defined in DATE and QUANTITY of this Article shall be instituted upon [ a private ] application . ”

“ A family member who by an act of violence , ill - treatment or particularly contemptuous behaviour places another family member in a humiliating position shall be sentenced to imprisonment for a term of DATE . ”

The relevant provisions of ORG ( Official Gazette no . CARDINAL/CARDINAL , Zakon o zaštiti of nasilja u obitelji ) provide :

“ This Act defines the term domestic violence , persons considered as family members within the meaning of this LAW , the manner of protection of family members and the types and purpose of minor offences sanctions . ”

“ ( CARDINAL ) The provisions of LAW are to be applied in respect of minor offences in the sphere of domestic violence , unless otherwise provided by LAW .

( CARDINAL ) All proceedings instituted under LAW shall be urgent . ”

“ Domestic violence is :

– any use of physical force or psychological pressure against a person 's integrity ;

– any other act by a family member which might cause physical or mental suffering ;

– causing fear , fear for personal safety or harm to a person 's dignity ;

– physical assault irrespective of whether it has caused injury ;

– verbal assaults , insults , cursing , calling names or other forms of serious harassment ;

– sexual harassment ;

– stalking and all other forms of harassment ;

– illegal isolation of a person or restricting his or her freedom of movement or communication with others ;

– causing damage to or destruction of property or attempting to do so . ”

“ ( CARDINAL ) Minor offences sanctions for protection from domestic violence are fines , imprisonment and protective measures .

“ A court may order the following protective measures against the perpetrator of an act of domestic violence

( a ) compulsory psycho - social treatment ;

( b ) prohibiting access to the victim 's proximity ;

( c ) prohibition on harassing and stalking the victim of violence ;

( d ) removal from flat , house or other living premises ;

( e ) providing protection to a person exposed to violence ;

( f ) compulsory treatment for addiction ;

( g ) seizure of objects intended for or used in the commission of a minor offence . ”

“ The purpose of protective measures is to prevent domestic violence , to secure the necessary protection of the health and safety of a person exposed to violence and to remove the circumstances favourable to or capable of inciting the commission of a further minor offence . ”

“ ( CARDINAL ) A protective measure of obligatory psycho - social treatment may be imposed in respect of the perpetrator of an act of domestic violence in order to put an end to the violent behaviour of the perpetrator or where there is a risk that the perpetrator might reoffend against persons under LAW .

( CARDINAL ) The measure under paragraph CARDINAL of this section shall remain in place as long as the reasons for which it has been imposed exist , but for no longer than DATE .

“ ( CARDINAL ) A protective measure prohibiting access to the victim 's proximity may be imposed against a person who has committed an act of domestic violence where there is a risk that he or she might reoffend .

( CARDINAL ) A decision imposing a measure prohibiting access to the victim 's proximity shall define the places or areas covered as well as the distance of access .

( CARDINAL ) The duration of a measure under paragraph CARDINAL of this section shall not be shorter than DATE or exceed DATE .

“ ( CARDINAL ) A protective measure prohibiting the harassing and stalking of a victim of violence may be ordered against a person who has committed violence by harassing or stalking and where there is a danger of his or her reoffending against persons under LAW .

( CARDINAL ) The measure under paragraph CARDINAL of this section shall be ordered for a period from DATE to DATE .

“ ( CARDINAL ) A protective measure of providing protection to a person exposed to violence may be ordered in respect of a person exposed to violence for his or her physical protection and to enable him or her to take from home his or her personal documents , clothes , money or other items necessary for everyday life .

( CARDINAL ) The measure under paragraph CARDINAL of this section shall include an order to the police to escort the person exposed to violence and protect that person while he or she takes his or her personal items and to escort him or her while leaving the home .

( CARDINAL ) The duration of this measure shall be defined by the duration of implementation of the court order . ”

“ ( CARDINAL ) Protective measures may be ordered at the request of a person exposed to violence or of the police , or of the court 's own motion .

( CARDINAL ) The protective measures under LAW ( a ) and ( g ) shall be ordered by the court of its own motion .

( CARDINAL ) The protective measures under LAW shall be ordered for a period which shall not be DATE , nor shall it exceed DATE from DATE when a decision in minor offence proceedings has become final or from the date of completion of a prison term , if not otherwise provided under this LAW . ”

“ ( CARDINAL ) The protective measures under LAW ( b ) , ( c ) , ( d ) and g ) of this LAW may be ordered independently even where no other sanction has been imposed .

( CARDINAL ) The protective measures under paragraph CARDINAL of this section may be imposed at the request of a person who has lodged a request for minor offences proceedings to be instituted , in order to remove a direct risk to the life of persons exposed to violence or other family members .

( CARDINAL ) A court shall give a decision under paragraphs CARDINAL and CARDINAL of this section within TIME .

“ ( CARDINAL ) The perpetrators of domestic violence are obliged to comply with the protective measure [ ordered against them ] .

( CARDINAL ) Persons who do not comply with the protective measure ordered against them shall be punished for a minor offence by a fine which may not be MONEY or by DATE imprisonment .

The relevant part of LAW ( Zakon o Prekršajima , Official Gazette no . CARDINAL ) reads :

“ A fine may be prescribed in respect of an individual in a minimum amount of MONEY and a maximum amount of MONEY ... ”

“ The prison term may be prescribed for a minimum duration of DATE and a maximum of DATE . On an exceptional basis , in respect of the most serious minor offences , it may be prescribed for a maximum duration of DATE .

The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . ORG ) read as follows :

“ The main purpose of a prison term , apart from humane treatment and respect for the personal integrity of the person serving the prison term , ... is the development of his or her capacity to live after release in accordance with the laws and general customs of society . ”

( CARDINAL ) The individual programme for the enforcement of a prison term ( hereinafter “ the enforcement programme ” ) consists of a combination of pedagogical , working , leisure , health , psychological and safety activities and measures aimed at adapting the time spent in detention to the character traits and needs of the prisoner and the type and possibilities of the particular penitentiary or prison . The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under LAW .

( CARDINAL ) The enforcement programme shall be designed by the prison governor on a proposal from the penitentiary or prison expert team ...

( CARDINAL ) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... )

In its Recommendation Rec(CARDINAL)CARDINAL of DATE on the protection of women against violence , ORG stated , inter alia , that member GPE should introduce , develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims , support and assistance , adjustment of the criminal and civil law , raising of public awareness , training for professionals confronted with violence against women and prevention .

ORG recommended , in particular , that member States should penalise serious violence against women such as sexual violence and rape and abuse of the vulnerability of pregnant , defenceless , ill , disabled or dependent victims , as well as penalising any abuse of position by the perpetrator . The Recommendation also states that member States should ensure that all victims of violence are able to institute proceedings , make provisions to ensure that criminal proceedings can be initiated by the public prosecutor , encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest , ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children 's rights are protected during proceedings .

With regard to violence within the family , ORG recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order , inter alia , to enable the judiciary to adopt interim measures aimed at protecting victims , to ban the perpetrator from contacting , communicating with or approaching the victim , or residing in or entering defined areas , to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police , medical and social services .


The applicant , Mr PERSON , is a NORP citizen , who was born in DATE and lives in GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .

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

During DATE the applicant lent the following sums of money to CARDINAL different companies :

- on DATE and DATE to ORG , a company in GPE , DEM CARDINAL,CARDINAL and DEM CARDINAL,CARDINAL , respectively , for DATE at an interest rate of PERCENT .

- on CARDINAL , CARDINAL and DATE , DATE and DATE to ORG , a company in GPE , CARDINAL NORP kunas ( HRK ) , HRK CARDINAL,CARDINAL , HRK CARDINAL , HRK CARDINAL , HRK CARDINAL , respectively , for a period of DATE at an interest rate of PERCENT .

As the said companies failed to repay the loans , the applicant instituted the following proceedings before ORG :

On DATE the applicant filed an action seeking re - payment of DEM CARDINAL .

Before CARDINAL DATE , when the LAW entered into force in respect of GPE , the first instance court held several hearings .

The hearing scheduled for DATE was adjourned .

At the hearing on DATE the court invited the applicant to submit a certificate from he Registry of ORG in order to verify PERSON ’s position in respect of F.I.M.

On DATE the applicant submitted the requested certificate and on CARDINAL DATE he asked the court to hear CARDINAL witnesses .

At the hearing on DATE the court heard the applicant and PERSON

On DATE the court gave judgment rejecting the applicant ’s claim .

On DATE the applicant appealed against the judgment .

It appears that the applicant also challenged the presiding judge for bias . This motion was dismissed by the President of ORG on DATE .

On DATE the case - file was forwarded to ORG ( Županijski sud u GPE ) as the appellate court .

The proceedings are presently pending upon the applicant ’s appeal .

On DATE the applicant filed an action for re - payment of ORG CARDINAL against GPE and GPE who took over the loans from company Y.

On DATE the applicant ’s claim was dismissed . The decision was served on the applicant on DATE and became final on DATE .

The relevant parts of LAW of LAW on LAW ( entered into force on DATE , published in ORG no . CARDINAL of CARDINAL May CARDINAL - hereinafter “ LAW on the LAW ” - Ustavni zakon o Ustavnom sudu PERSON ) read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .