No violation of Art. 8;No violation of Art. 14+8

ORG Mr Stjerna is a NORP national and lives in GPE .

ORG On DATE he applied to ORG ( lääninhallitus , länsstyrelsen ) of PERSON for permission to change his surname ORG ( pronounced " ORG " ) to " Tawaststjerna " . He maintained that his ancestors had used the proposed name and that he and other members of the ORG family had always felt it an injustice only to bear CARDINAL of the original name . Moreover , the use of his surname gave rise to practical difficulties as it was an old NORP form , was not well known and was difficult to pronounce . This meant that it was frequently misspelt ( as " PERSON " , " Säärna " , " Saarna " , " Seerna " , " ORG " , " GPE " and " Stjerba " ) .

ORG In an opinion of DATE submitted to ORG , ORG on Names ( nimilautakunta , nämnden för namnärenden ) opposed the change . It had not been shown that the proposed name had been used by his ancestors because the ancestor in question , Mr PERSON , had been born out of wedlock . The ancestors cited were too far back to satisfy the requirements of section CARDINAL ( CARDINAL ) of the DATE LAW ( sukunimilaki CARDINAL/CARDINAL , släktnamnslagen DATE , see paragraph CARDINAL below ) .

ORG In the course of an exchange of views with ORG on Names , on DATE the applicant stated that his name had given rise to a pejorative nickname " kirnu " in NORP derived from the NORP word " kärna " ( " churn " ) . Moreover , in his view , the remoteness of the ancestors in question could not be a ground for refusing to authorise the name change . Referring to a genealogical report , he disputed the allegation that Mr ORG was not the father of Mr PERSON .

ORG On DATE ORG on Names recommended that the applicant ’s request be rejected ; it considered the proposed name inappropriate . Although PERSON had cited a telling argument in support of his request - the obscure nature of his name - and was a descendant of a person named GPE , his ancestor , who had died in DATE , was very far back and the suggested name would result in sources of inconvenience similar to his present name .

ORG On DATE the applicant told ORG on Names that his mail was delayed as a result of his name being misspelt . In line with the spelling recommended by CARDINAL of its members , he asked for his name to be changed to " FAC " ( as opposed to ORG ) .

ORG On DATE , on the basis of section CARDINAL ( CARDINAL ) of LAW , ORG rejected the applicant ’s request for permission to change his name . It was not satisfied that the proposed name had been used by his ancestors in such a way as to become " established " , since the first one to bear his current name had been born out of wedlock . Since the proposed name had been used by ancestors who were very far back , it would not be appropriate to change his name to theirs .

ORG The applicant appealed from ORG decision to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , which , in a judgment of DATE , upheld the ORG ’s decision by CARDINAL votes to CARDINAL . It observed that it emerged from the written evidence that the applicant ’s ancestor , Mr PERSON was born in DATE and had been the illegitimate son of Mr PERSON GPE . For this reason alone the proposed name could not be considered to have been the " established " name of the applicant ’s ancestors as required by section CARDINAL ( CARDINAL ) of LAW . In the light of this and the reasoning given by ORG there was no ground for altering the latter ’s decision .

In the opinion of the minority the name ORG had been the " established " name of the applicant ’s ancestors . The fact that PERSON , the first of his ancestors to be called ORG , was born out of wedlock was irrelevant . In view of the inconvenience which the present surname was causing the applicant , ORG decision should be quashed and the case referred back to it .

ORG According to the Government a NORP surname guide of DATE listed CARDINAL which had fallen out of use and , in addition , CARDINAL names based on common NORP nouns and place names .

Section CARDINAL of LAW provided that a surname may be changed on the condition that the person concerned could show :

" ( CARDINAL ) that the use of his current surname causes inconvenience because of its foreign origin , its meaning in common usage or its common occurrence or for any other reason ;

( CARDINAL ) that the proposed surname has previously been used by himself or in an established way ( vakiintuneesti , hävdvunnen ) by his ancestors and the name change may be considered appropriate ; or

( CARDINAL ) that a change of surname may be considered justified by changed circumstances or by any other special reasons . "

Section CARDINAL of the DATE Act contained provisions on obstacles of a general character to authorising changes of surname . A new surname was not to be improper or otherwise one the use of which would be manifestly inconvenient . Save in particular circumstances , the new surname should not by virtue of its form or spelling be incompatible with domestic name practice ( paragraph CARDINAL ) ; or be a name very commonly used as a surname ( paragraph CARDINAL ) ; or be commonly used as a NORP name ( paragraph CARDINAL ) .

A surname which was well known as the name of a particular NORP or foreign family could not , unless there were particular reasons for doing so , be approved as a new surname ( section CARDINAL ( CARDINAL ) ) .

ORG Pursuant to LAW which contained provisions on " particular reasons for permitting a new surname " ) , a new surname falling foul of the restrictions in sections CARDINAL ( CARDINAL ) or CARDINAL could nevertheless be permitted if the person requesting the name change showed that the surname in question had previously and lawfully been used by him or his ancestors .

ORG If ORG , after ORG on Names had given its opinion , found no grounds under sections CARDINAL for refusing to authorise an application for a change of surname , the application was published in ORG ( section CARDINAL ) .

ORG A person who claimed that the granting of an application for a change of surname would be incompatible with LAW and would infringe his or her rights could , under section DATE , file an objection with ORG within DATE from DATE of the above - mentioned publication . An objection submitted after expiry of this time - limit could be taken into account in the examination of the application unless the matter had already been decided .

ORG If ORG rejected the application , its reasons were to be stated in the decision ( section CARDINAL ( CARDINAL ) ) .

A decision on an application for a change of surname was to be notified to the applicant and also to any person who has filed objections under LAW ( section DATE ) and could be the subject of an appeal by them ( section CARDINAL ) to ORG .

ORG In DATE the provisions concerning first names were included by LAW in DATE LAW , which was then retitled LAW ( nimilaki , namnlagen ) .

ORG Population registration was effected at national and local level .

Population registration was administered , at national level , by ORG ( chapter CARDINAL , section CARDINAL of the DATE LAW - västökirjalaki CARDINAL/CARDINAL , lag CARDINAL/CARDINAL om befolkningsböcker ) and , at local level , by the evangelical - lutheran and orthodox parishes or , for persons who were not members of such parishes , by the local registration office ( chapter CARDINAL , sections CARDINAL , CARDINAL and DATE ) .

ORG The national register , which was updated CARDINAL times a week , contained the names and personal identity numbers of the persons registered and also other information , making it possible to trace by electronic data processing a person ’s name and address , even if the name or identity number did not appear on the register . Only public authorities had direct access to the register ( see ORG finlandais , PERSON civil , published in DATE by ORG " ) .

ORG The ORG established a personal identity number for every person registered , consisting of the person ’s date of birth , an individual number , and a control number ( sections CARDINAL and CARDINAL of the DATE ORG - väestökirja- asetus CARDINAL , förordning DATE om befolkningsböcker ) .

ORG If ORG or , on an appeal , ORG , authorised a change of name , it had to inform ORG new name ( section CARDINAL ( CARDINAL ) of the DATE Names Decree ( nimiasetus CARDINAL/CARDINAL , namnförordning CARDINAL/CARDINAL ) ) . The authority which gave permission for the name change had to be specified in the register ( section CARDINAL ( CARDINAL ) of the DATE Decree ) .

ORG As from DATE , the DATE Act and the DATE Decree were replaced by LAW ( väestötietolaki CARDINAL , befolkningsdatalag CARDINAL ) and the DATE Decree on Population Data ( väestötietoasetus CARDINAL/CARDINAL , befolkningsdataförordning CARDINAL/CARDINAL ) .

ORG Under the legislation on names in the CARDINAL member GPE of ORG , all members of ORG , the possibility of a person to change his or her name is subject to certain conditions . In GPE , GPE and GPE , any reason may be invoked in support of a request for a change of name . In GPE , GPE , GPE and GPE the reasons must be convincing ones . In some countries specific reasons are required : for instance that the current name gives rise to pronunciation and spelling difficulties ( GPE ) or causes legal or social difficulties ( GPE and GPE ) or is contrary to decency ( the GPE and GPE ) , or is ridiculous ( GPE , GPE and the GPE ) or is otherwise contrary to the dignity of the person concerned ( GPE ) ( see ORG Guide pratique international de l’état civil , GPE ) .

Name changes are noted in population records , at the request of the interested person ( GPE and GPE ) or of a public authority ( GPE ) , or are done so automatically ( the other QUANTITY members of ORG ) .

ORG Under LANGUAGE law a person is entitled to adopt a surname of his own choosing and to use this name without any restrictions or formalities , except in connection with the practice of some professions ( GPE ’s ORG , CARDINALth ed . , vol . CARDINAL , paras . DATE ) . The new name is valid for purposes of legal identification , may be used in public documents and is entered on the electoral roll ( ORG v. the GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , para . CARDINAL ) . GPE has no civil status certificates or equivalent current identity documents ( ibid . , para . CARDINAL ) . The near absence in LANGUAGE law of formalities governing changes of name has not resulted in a large number of changes ( PERSON , ‘ ORG le droit anglais du nom’ , pp . CARDINAL - CARDINAL , in GPE nom , GPE , DATE ) .


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

Mr PERSON , a NORP lawyer residing at GPE ( GPE ) , is a member of ORG and ORG .

On DATE one of his clients was seriously injured in a road accident near ORG ) .

The applicant was instructed by an insurance company to report on the circumstances of the accident , and on DATE , accompanied by the victim ’s wife , he went to a scrapyard at ORG ( province of PERSON ) where the damaged vehicle had been taken . The client ’s wife having attempted to recover personal property concealed in the petrol tank , the owner of the scrapyard alerted the police , who discovered in her possession inter alia a banknote which formed part of the ransom paid for the release of a person who had been kidnapped . The police thereupon took them to Maratea police station , where they were both questioned , and then put them under arrest , at the disposal of the public prosecutor ( procuratore della PERSON ) . The police also confiscated the items which had been taken from the car .

On DATE , at TIME , Mr PERSON was transferred to FAC ( province of Potenza ) and imprisoned in an isolation cell which he shared with another detainee . On DATE the PERSON public prosecutor informed Mr PERSON ’s lawyer that he would hear the applicant on DATE , within DATE laid down by LAW in force at the time .

Mr PERSON appeared on that date , assisted by CARDINAL lawyers . After questioning him , the deputy public prosecutor confirmed his detention ( convalidó PERSON ) . He was returned to PERSON ; he was no longer held in the isolation section , however , but associated with the other prisoners .

The PERSON public prosecutor conducted the preliminary investigation ( istruzione sommaria ) . On DATE he heard Mr PERSON again , at the latter ’s request , and checked his statements with ORG . On DATE he received a telex from the GPE public prosecutor confirming the provenance of CARDINAL of the banknotes which had been seized . On that and DATE he sent telegrams to ORG and ORG in order to obtain information on the applicant ’s parliamentary immunity .

Finally , after hearing the ORG chief of police and another witness on DATE , the PERSON public prosecutor declared that he did not have territorial jurisdiction . He sent the file by post to the public prosecutor ’s office which did have jurisdiction , that of PERSON , which received it on DATE . He also revoked the permission which Mr PERSON had been given to consult his lawyers , communicate with other persons and receive visits in prison , in particular from his sister who had travelled from GPE for this purpose .

The applicant ’s lawyers had in the meantime attempted to challenge his continued detention , but in vain : as the public prosecutor ’s office at Lagonegro had declined jurisdiction and that at PERSON was not yet in possession of the necessary documents , ORG was not empowered to deal with the matter ( LAW ) .

On DATE the PERSON public prosecutor issued a warrant for Mr PERSON ’s arrest ( ordine de cattura ) for possession of property and money originating from a ransom . He ordered him to be transferred to FAC .

The applicant was informed of this decision on DATE , and was taken there in a prison van in TIME of DATE , in handcuffs .

On his arrival he was informed that the deputy public prosecutor at ORG had lifted the prohibitions relating to his correspondence , visits and telephone contacts with his family . He applied at once to ORG for the arrest warrant to be examined in accordance with LAW CARDINAL ( article CARDINAL ) of the LAW and the relevant provisions of LAW ; he also complained , relying on LAW CARDINAL ( article CARDINAL ) , that he had not been " brought promptly before a judge or other officer authorised by law to exercise judicial power " .

The PERSON public prosecutor questioned him on DATE .

On DATE the ORG vacated the arrest warrant of DATE and ordered the applicant ’s immediate release , as there was insufficient evidence against him .

The public prosecutor appealed . According to the information available to the ORG , these proceedings and the main proceedings , in which the charge was reduced to smuggling , are still pending .

LAW in force at the time included the following provisions :

A police officer who arrests a person or receives an arrested person must inform the public prosecutor ... thereof immediately , and in any event within TIME ...

He must also notify him of the results of his inquiries within TIME .

The public prosecutor ... must immediately question the arrested person and , if he considers the arrest to be well - founded , confirm the arrest ( convalida ) by a reasoned decision , at the latest within TIME following the above - mentioned notification . This order shall be notified to the arrested person .

" In the cases specified in Articles CARDINAL and CARDINAL ( flagrante delicto ) the public prosecutor ... may order the arrest . If the arrest warrant is oral , it must be confirmed as soon as possible in writing in the usual form . "

" Police officers who have without an order or warrant from the judicial authorities arrested a person or received a person who has been arrested ... must within TIME place him at the disposal of the public prosecutor or magistrate ... unless the prosecutor and magistrate have been informed of the arrest and consider an extension of the aforesaid time - limit to be necessary . The record of the arrest shall also be notified to the public prosecutor or magistrate .

If he does not have to order the accused ’s release ... the public prosecutor or magistrate shall by a reasoned decision order the accused to be kept in detention at the disposal of the competent authorities ...

The new Code of Criminal Procedure , which came into force on DATE , no longer authorises the public prosecutor to order detention .


The first applicant , Mr PERSON , is a NORP national who was born in DATE . The second applicant , FAC , is a NORP national who was born in DATE . The applicants live in GPE , GPE . They were represented before the ORG by Mr F. GPE , a lawyer practising in GPE .

The applicants , who both lived in GPE before moving to GPE , are married in accordance with the NORP rituals since DATE but did not have a civil marriage in GPE . They are the parents of PERSON who was born on DATE . They have another CARDINAL children born in DATE .

On DATE the first applicant brought PERSON to a hospital in GPE on the advice of a child doctor . According to the first applicant , PERSON had fallen DATE before , without his parents having observed this , and had been injured . He had a swollen forehead and a glasses haematoma , with his eyes being swollen following massive blood intrusions . When examining the child , the hospital doctors discovered further injuries . Considering these symptoms to be the result of PERSON ’s maltreatment , they informed the police thereof .

On DATE CARDINAL experts of ORG submitted a report on the motion of ORG . Having examined PERSON on DATE , they found that the child had numerous older haematoma all over his body , mostly at parts on which he was unlikely to fall , and several smaller scars stemming from injuries inflicted at different moments in time . These findings indicated that he had been ill - treated over a longer period of time and suffered from a so - called battered child syndrome .

In the course of further examinations carried out in hospital , PERSON was found to have also suffered a fracture of the skull at an earlier date which his parents had not noticed .

On DATE ORG , by way of an interim injunction and without having previously heard the applicants , provisionally withdrew the applicants’ right to determine PERSON ’s place of residence and transferred it to ORG . It found that , having regard to PERSON ’s multiple injuries , the applicants were suspected of having ill - treated him . It ordered that the applicants’ other children be equally examined by ORG .

In their report dated DATE the CARDINAL experts of ORG , having examined PERSON ’s CARDINAL brothers , found that they did not show any signs of exposure to violent acts .

On DATE the applicants , who were from then on represented by counsel in the proceedings before the domestic courts , lodged an appeal against the order of CARDINAL DATE . They claimed that at no point in time they ill - treated M.

On DATE ORG , having heard the applicants in person , confirmed the withdrawal of the applicants’ right to determine PERSON ’s place of residence , provisionally withdrew the right of custody of the second applicant , who , in the court ’s view , had sole custody pursuant to section CARDINALa § CARDINAL of LAW ( see ‘ Relevant domestic law’ below ) , and transferred it to ORG . It further ordered an expert report on the question of whether there were signs that PERSON had been ill - treated by his mother and possibly also by his father from a psychological point of view .

On DATE M. was released from hospital . Since then , he has been living in a foster family . His parents visit him DATE .

On DATE ORG discontinued the criminal proceedings against the applicants as there was no sufficient evidence that it had been them who had injured M.

On DATE ORG withdrew the applicants’ parental custody of LAW pursuant to section DATE of LAW ( see ‘ Relevant domestic law’ below ) and conferred it to ORG .

ORG had heard the applicants in person without appointing an interpreter for the second applicant , who hardly spoke NORP and whose submissions in LANGUAGE were translated by the first applicant . It had further consulted a psychological expert and a representative of ORG .

ORG was convinced that PERSON had repeatedly experienced violence . It noted that the applicants had stressed that PERSON had not been deliberately injured by them , but had injured himself while romping around . However , there were no innocent explanations for his numerous injuries inflicted at different points in time . Even assuming that some of them were caused by PERSON ’s own inadvertence , there were several signs , such as the fact that he ducked when someone approached him or that he strongly resisted being undressed , which indicated that he had been ill - treated by others .

The court , having regard to the report of the psychological expert , found that it could not be ascertained whether the injuries of the DATE PERSON , who was not able to make any concrete statement , had been inflicted by his parents . However , it was clear that they had been unable to protect PERSON from such injuries .

Moreover , relying on the report of the psychological expert , ORG found that also PERSON ’s mental development was jeopardized . Mere language problems were inevitable in a family in which CARDINAL of the parents did not speak NORP and were no reason to separate a child from his parents . However , PERSON lived isolated in the family ’s apartment with his mother , who spoke LANGUAGE , hardly knew any NORP and showed no interest in his education , including his learning NORP .

According to the psychological expert and the representative of ORG had settled well in his foster family . ORG found that there were no milder measures , such as aids by public authorities , which were suitable to avert risks to PERSON ’s welfare . The first applicant was busy with CARDINAL jobs and the second applicant , whom both applicants considered responsible for their children ’s education , did not speak NORP and was unwilling to change this by starting to learn NORP . It conceded that the applicants had declared to be willing to cooperate with the authorities , if necessary with the help of a neighbour who was ready to interpret for them . However , as confirmed by a representative of ORG , social pedagogic family support , which was based on a relationship of trust between the pedagogue and the parent , was not possible in the permanent presence of an interpreter .

On DATE the applicants lodged an appeal against ORG decision of DATE .

On DATE ORG appointed PERSON a curator ad litem who subsequently submitted CARDINAL reports to ORG .

On DATE the ORG heard the parties and the psychological expert .

On DATE the ORG , following another hearing in which it also consulted PERSON ’s foster parents , dismissed the applicants’ appeal . Agreeing with ORG , it found that the applicants , by their failure , had jeopardized PERSON ’s welfare and that there were no milder means of averting danger to the child ’s best interest . The applicants were unable to educate PERSON in a way which safeguarded his physical and mental integrity .

ORG found that PERSON had been considerably injured on several occasions in the applicants’ household . It could not be ascertained whether it had been PERSON ’s parents or third persons who had injured the child so that the criminal investigations against the applicants had been discontinued . Despite this , there were several indications , notably PERSON ’s repeated statements that his mother was mean , his aggressive behaviour and the fact that his parents had given different and contradictory explanations for his injuries , that PERSON had been ill - treated within his family . This could , however , be left open . Even assuming that PERSON ( then aged two ) had injured himself while romping around , his parents , despite his serious injuries , had failed to guarantee his full and prompt medical treatment . The applicants were indifferent towards physical injuries of their children . This was not least demonstrated by the fact that during the expert ’s presence , their children were romping around with dangerous objects like turned chairs and forks without their parents interfering . Therefore , the need to protect PERSON ’s physical integrity was already in itself a sufficient reason to withdraw his GPE custody .

ORG , agreeing with the findings of the psychological expert , further found that the child ’s mental welfare would be jeopardized if he returned to his family . PERSON had made traumatising experiences within his family which he had started to overcome as he had settled well in his foster family and , as confirmed by ORG , had developed intensive bonds with them . On the contrary , he had never developed any relationship with his father and had told his mother that she should leave him alone . Visits of his parents had shown that there was hardly any relationship between them and PERSON any longer .

ORG stressed that it was irrelevant that PERSON ’s foster parents could further PERSON considerably more from an intellectual and linguistic perspective than his parents . It was the child ’s welfare which was decisive for the measures to be taken .

ORG observed that pursuant to section CARDINAL of LAW ( see ‘ Relevant domestic law’ below ) , measures resulting in the separation of a child from his family were only permitted if the danger to the child ’s welfare could not be averted by other means , notably aids by public authorities . However , ORG had submitted that it had no pedagogues speaking LANGUAGE and that a direct communication between the pedagogue and the parents was indispensable for a social pedagogic measure to have prospects of success . The parents had not changed their attitude towards physical injuries of their children so that support would be necessary DATE and TIME which was impossible to furnish . Even if this was possible , PERSON ’s mental welfare would still be jeopardized for the reasons already set out .

ORG observed that , the applicants not having had a civil marriage in GPE , it was probably only the second applicant who had custody of PERSON It had nevertheless dismissed also the first applicant ’s appeal for reasons of precaution .

On DATE the ORG dismissed the applicants’ remonstrance . Referring to the reasons given in its decision of CARDINAL DATE , it argued in particular that , even assuming delays in the proceedings , these did as such not warrant returning PERSON to his family .

On DATE ORG , without giving reasons for its decision , refused to admit the applicants’ constitutional complaint . The decision was served on the applicants’ lawyer on DATE .

Pursuant to section DATE of LAW a child ’s mother has sole custody if the child ’s parents are not married and have not deposited a declaration of joint custody recorded by a notary with the authorities .

Section CARDINAL § CARDINAL of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical , mental or spiritual welfare of a child caused by an abusive exercise of parental custody , by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers .

Pursuant to section QUANTITY CARDINAL of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger can not be averted by other means , including aids by public authorities . The right of personal custody may only be withdrawn in its entirety if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger .


The applicants , a family , reside in ORG in GPE . The first applicant is an NORP citizen born in DATE . The second applicant , his wife , is a citizen of the GPE born in DATE . The third and fourth applicants are their daughters , born in DATE and DATE , respectively . The third applicant is an NORP citizen . Before the Commission they are represented by PERSON . PERSON , a lawyer practising in GPE .

The first applicant entered GPE together with his parents in DATE or DATE . In DATE he was sentenced to detention in an educational labour institution ( ORG ) on account of contravening LAW ( Betäubungsmittelgesetz ) . Still in DATE he fled to GPE where he spent DATE undertaking his military service .

In DATE the first applicant returned to GPE whereupon his sentence of DATE was converted to CARDINAL months’ imprisonment suspended on probation .

In DATE the first applicant was sentenced to a fine of MONEY ( CHF ) on account of a drug offence .

The first and second applicant married in DATE . In DATE , their first daughter , the third applicant , was born . The first applicant acquired the authorisation to establish domicile ( Niederlassungsbewilligung ) in GPE , the second and third applicants obtained a residence permission ( GPE ) .

In DATE ORG ( Bezirksgericht ) sentenced the first applicant to CARDINAL months’ imprisonment for having contravened LAW . ORG regarded his culpability ( PERSON ) as severe . Thus , the first applicant , who was himself a drug addict , had obtained QUANTITY of cocain , of which he had used QUANTITY for himself , and sold the remainder . However , the punishment was suspended in favour of stationary therapy . The first applicant has since been working in a pizzeria . According to a progress report of DATE , his expulsion would endanger his integration into social and professional life .

As a result of the first applicant ’s criminal conviction , ORG ) withdrew on DATE his right to establish domicile in GPE and ordered his expulsion . His appeal was dismissed by ORG for ORG , ORG on DATE , his further appeal by ORG ( Verwaltungsgericht ) on CARDINAL DATE .

On DATE the fourth applicant was born . She has kidney problems and must regularly take antibiotic medication .

The first , second and third applicant filed an administrative law appeal which ORG ( PERSON ) dismissed on DATE . The ORG relied in particular on LAW ( a ) of ORG über PERSON ) according to which a foreigner may be expelled from GPE if he or she has been convicted by a court of a criminal offence . The ORG then considered , also in the light of LAW , the proportionality of expelling the first applicant .

ORG considered , on the one hand , that the first applicant had repeatedly been convicted , and that ORG had regarded his culpability as severe . It nevertheless noted that , after his criminal conviction he was afforded therapeutic treatment in the context of which he had found employment . According to a therapy report , his expulsion would endanger his integration into social and professional life .

On the other hand , while the first applicant had been living in GPE for DATE , he had spent DATE in GPE where he had undertaken his military service . As a result , life in his home country would bring about certain difficulties , though he could not be considered a foreigner there . He would also benefit from the professional training obtained in GPE . His wife , the second applicant , had only lived for a period of DATE in GPE , and the circumstances in GPE did not substantially differ from those in GPE . Their daughter , the third applicant , was still of an adaptable age . It would not be unreasonable for them to travel to GPE .


The applicant is a NORP national , born in DATE . She lives in GPE , GPE of GPE of GPE .

The applicant receives her old - age pension and certain other social benefits from the social security authorities . At the time when the applicant lodged the application the total amount of the social payments that she received was MONEY per month .

She claimed that from DATE the amount of these benefits had not been properly calculated . In particular , she alleged that during this period she had been entitled to a special benefit as a widow of a Second World War participant , in accordance with a statute of DATE ( see the ‘ Relevant domestic law’ part below ) . She applied to ORG of GPE , claiming pecuniary and non - pecuniary damages in this respect .

On DATE the court dismissed the action on the ground that the applicant had been entitled to the social benefit in question , but that before DATE she had not applied for it in accordance with the procedure established by that law . The court also noted that since DATE the applicant had received the claimed benefit . On DATE ORG of GPE dismissed the applicant ’s appeal against the judgment , finding that the lower court had properly decided the case .

LAW ( Article CARDINAL ) and LAW entitle a person to an old - age pension , the amount of which depends on the employment and related activities record .

The Act of CARDINAL DATE entitles Second World War participants and their widows to additional DATE payments .


CASE OF LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM (ARTICLE 50)

Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The case of ORG , PERSON and ORG was referred to the ORG by ORG ( " the Commission " ) and the Government of GPE ( " the Government " ) on DATE and DATE , respectively . The case originated in CARDINAL applications ( nos . CARDINAL and GPE ) against that ORG introduced in DATE and DATE by CARDINAL NORP nationals , Dr. PERSON , Dr. PERSON and Dr. PERSON .

On DATE , the ORG constituted to examine the case relinquished jurisdiction in favour of ORG ( Rule CARDINAL of the Rules of Court ) . By a judgment of DATE , the latter held that there had been a breach of LAW ( article DATE ) of the LAW in that the applicants’ case had not been heard publicly by a tribunal competent to determine all the aspects of the matter . It found , on the other hand , that there had been no violation of that LAW ) as regards the applicants’ other complaints , and no violation of LAW ( LAW ) ( Series A no . CARDINAL , points CARDINAL and CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , pp . CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .

At the hearings of CARDINAL DATE , the ORG lawyer had asked the ORG , in the event of its finding a breach of the LAW , to afford his clients just satisfaction under LAW ) . He had , however , stated that he was not yet in a position " to establish the exact amount of any damages , in view of the possibility of compensation , if only partial , being granted under NORP law " .

In its judgment of DATE , the ORG reserved the whole of the question of the application of LAW ) and referred it back to LAW . On DATE , ORG invited the ORG to submit , within DATE , its written observations on the said question , including notification of any friendly settlement at which the ORG and the applicants might have arrived ( ibid . , p. CARDINAL ) .

The President granted extensions of this time - limit on DATE and on DATE .

On DATE , the Secretary to ORG informed the Registrar that the Agent of the Government found it impossible to put forward the slightest proposal on LAW CARDINAL ( article CARDINAL ) issue . On the instructions of the Delegates - who reserved the right to submit observations at a later date - , the Secretary transmitted to the ORG a copy of a note drafted by the ORG lawyer . The note , dated DATE , may be summarised as follows :

The applicants sought an undertaking from the Government to take measures providing partial reparation in the shape of

( i ) the complete and effective expunction of " all the disciplinary and penal sanctions " of which they complained ;

( ii ) the reimbursement of the legal expenses and fines , the former including the following fees of lawyers practising before ORG :

- CARDINAL,CARDINAL BF for Dr. PERSON ;

- CARDINAL,CARDINAL BF for Dr. PERSON ;

- CARDINAL,CARDINAL BF for Dr. PERSON .

( i ) as his principal claim , a provisional award of MONEY , pending the outcome of his second application to the Commission ( no . CARDINAL/CARDINAL , - judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL in fine ) , referred to ORG ( the case of PERSON and ORG ) ;

( ii ) in the alternative , an award

- of " a fair proportion " of the CARDINAL BF he had paid in legal costs ;

- CARDINAL BF for travel and subsistence expenses and by way of attendance allowances ;

- CARDINAL,CARDINAL,CARDINAL BF for pecuniary and non - pecuniary loss .

Dr. PERSON claimed

- CARDINAL,CARDINAL BF for legal costs ;

Dr. PERSON claimed

- CARDINAL,CARDINAL BF for loss of income during the CARDINAL days’ suspension of his right to practise medicine ;

- such sum as the ORG deemed fit for non - pecuniary loss .

By Order of DATE , the President of the ORG directed that the Agent of the Government should have until DATE to submit observations , a time - limit which the President subsequently extended to CARDINAL DATE at the Agent ’s request .

The Government filed their memorial on DATE and indicated , on DATE , that they did not insist that hearings be held .

On DATE , the Secretary to the Commission transmitted to the Registrar the Delegates’ memorial , adding that they too considered that no purpose would be served by hearings .

On DATE , the President directed that the Agent of the Government should have until DATE to reply to the Delegates’ memorial . On DATE , he extended this time - limit to DATE

The Government ’s reply was received at the registry on DATE

Mr. PERSON , a substitute judge , took the place of Mr. PERSON , who was prevented from taking part in the consideration of the case ( Rules CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ) .


Violation of P1-1;Non-pecuniary damage - financial award

In DATE the applicant filed with ORG ( sąd rejonowy ) an action in which she requested the eviction of PERSON from a flat she owned . She also claimed payment of overdue rent , in the amount of MONEY ( ORG ) . She submitted that she had given notice of termination of the lease contract after ORG 's recurrent failure to pay the rent on time . J. had been occupying the flat on the basis of an administrative decision , given under a so - called special lease scheme ( see § CARDINAL below ) . This administrative decision had created a protected tenancy contract between the parties , on the basis of which controlled rent was to be paid by the tenant and the tenancy could not be terminated by the owner .

NORP In DATE the applicant , having offered PERSON an alternative flat , added a new eviction application , which was based on article QUANTITY of the Law on ORG ( LOC o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) . Subsequently , she withdrew the claim related to her tenant 's failure to pay the rent .

On DATE the court gave judgment . It ordered PERSON to pay overdue rent in the amount of PLN CARDINAL,CARDINAL and dismissed the eviction application . The court admitted that the applicant had offered J. an alternative flat before seeking her eviction . It pointed out , however , that LAW DATE PERSON on ORG provided that a flat offered to a tenant as alternative lodging had to be owned by the person seeking eviction ( see § DATE below ) . However , the flat which the applicant had offered PERSON was owned by a housing co - operative and the applicant had only a limited right to it . The court considered that :

“ The plaintiff has a co - operative quasi - proprietorial right to that flat , which , although relatively extensive , is yet limited by a number of provisions of the Co - operative PERSON and can not be equated with ownership . This court is bound by laws , and the relevant provision of the PERSON on the Lease of Dwellings [ concerning the requirements that an alternative dwelling had to meet ] is unequivocal . ”

The court further considered that it was not empowered to assume that the legislature had made the reference to mandatory ownership of the alternative accommodation by mistake . Neither could it accept that this reference should be understood as covering also the quasi - proprietorial cooperative right to an apartment .

The court finally considered that , pursuant to the DATE PERSON on ORG , eviction of a tenant , if preceded by the offer of an alternative flat , was an exception to the general rule that an owner could not evict a tenant who complied with his or her statutory duties . Accordingly , the provisions covering such exceptions could not be given an extensive interpretation .

In the same judgment ORG discontinued the proceedings in so far as they related to the withdrawn application .

NORP The applicant appealed . She submitted that the PERSON on the Lease of Dwellings should not have been interpreted in her case in the literal manner proposed by ORG . She argued that the main objective of the provisions concerning eviction of tenants was to protect the property rights of owners . On the other hand , those provisions were also aimed at guaranteeing tenants an effective right to continued and peaceful enjoyment of accommodation and thus required the owners to secure alternative flats for them . In the light of that aim of the PERSON , the interpretation made by the court had been too restrictive . As a result , only the rights of the tenant were protected by the judgment under appeal , to the detriment of the owner 's rights . The applicant pointed out that the alternative lodging which she had offered PERSON made it possible for her to enjoy peaceful accommodation . The purpose of the provision applied in the case was essentially to secure the position of tenant in an alternative dwelling and to prevent him or her being evicted from it . The apartment offered by the applicant guaranteed such certainty , notwithstanding the fact that she did not own that apartment , but had another right in rem to it , close in its nature to ownership . For those reasons the applicant considered that the dismissal of her eviction application , which made it impossible for her to live in her own apartment , amounted to an infringement of her property rights .

The applicant also resubmitted a declaration of the housing co - operative by which it had agreed that the applicant 's apartment be let to PERSON until DATE , i.e. until the time - limit set by the DATE Law on Lease of Dwellings for the prolongation of the system of protected tenancies .

On DATE ORG ( sąd okręgowy ) dismissed the applicant 's appeal . It pointed out that the underlying purpose of a law could be examined as an aid to its interpretation only if an analysis of a literal meaning of its text proved ineffective . Having regard to the clear wording of the provision at issue and to an unequivocal reference to ' ownership ' of the alternative accommodation , the court found that this was not the case . The provision on which ORG had relied conferred special rights on the owner , in that she was entitled to offer alternative accommodation to the tenant who had been fully complying with the conditions of the tenancy contract . These special rights could not be interpreted in an open - ended manner to the detriment of the tenant .

On DATE ORG rejected the applicant 's appeal against the judgment of DATE , as it was not provided for by law in that case .

On DATE ORG dismissed her appeal against ORG decision of DATE .

DATE on , under successive acts of housing legislation , housing matters were subject to state control . The most important characteristics of this system , called the ' special lease scheme ' under the provisions of LAW , was that tenancy contracts were created by administrative decisions . For all practical purposes , such decisions replaced civil law contracts between landlords and tenants . Under this system owners could not choose their tenants as they were imposed by the administrative authorities , tenants paid controlled rent and owners could not terminate leases by giving notice on a tenancy contract .

The “ special lease scheme ” was abolished by the Law of DATE on ORG . However , the system of protected tenancies was maintained in that the PERSON provided for protection against termination of leases concluded on the basis of administrative decisions .

Under transitional provisions of this PERSON , protected tenancies which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for indefinite period and governed by the provisions of the DATE Law . Until DATE rents paid for these leases were to remain controlled .

The Law of DATE on ORG provided , in so far as relevant :

“ Article CARDINAL . CARDINAL . ... The owner can terminate the lease if the tenant : ...

( CARDINAL ) is in arrears of rent ... for CARDINAL full terms of payment , despite a written notice of intent to terminate the lease and fixing an additional , DATE time - limit for the payment of overdue and current amounts . ...

Article CARDINAL . CARDINAL . Under this law , a lease which originated in an administrative decision on allocation of a flat , or had another legal basis [ that existed ] before in a given locality the state management of housing or special lease scheme was introduced , shall be treated as a contractual lease concluded for an indefinite period under the provisions of this law . ...

NORP If the owner ... intends to live in his flat and with that intention has vacated the flat which he has hitherto rented ... from the municipality , the tenant shall be obliged to vacate the owner 's flat and to move into the flat [ proposed to him ] , provided that the [ condition of ] the flat in question complies with the requirements laid down by this law in respect of alternative accommodation . If such is the case , the owner can terminate the lease under article LAW . ...

If the landlord has offered the tenant the alternative accommodation he owns himself or if , at the owner 's request , such alternative accommodation has been provided by the municipality , paragraph CARDINAL shall apply by analogy . ”

The DATE was repealed by the PERSON of DATE on ORG , ORG and LAW ( LOC o ochronie praw lokatorów , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego ) , which entered into force on DATE .

Article CARDINAL of that PERSON provides , in so far as relevant :

“ ... The owner can terminate the contract , if he or she intends to dwell in the flat owned by him , ... [ and ] provides [ the tenant ] with an alternative flat . ”

The Civil Code mentions the quasi - proprietorial right to a flat in a housing - co - operative ( spółdzielcze własnościowe prawo do lokalu ) in its chapter on limited property rights . The details are described in LAW ( Prawo spółdzielcze ) enacted on DATE . That law provides :

“ Article CARDINAL . § CARDINAL . In buildings owned by a housing co - operative its members have a right to use flats allocated to them ... ( co - operative quasi - proprietorial right to a flat ) ...

Article CARDINAL . § CARDINAL . The co - operative quasi - proprietorial right to a flat is a transferable right , it may be inherited and is subject to enforcement proceedings . It is a limited right in rem .

§ CARDINAL . The validity of transfer of the co - operative quasi - proprietorial right to a flat depends on admitting the acquirer as a member of the co - operative . ...

Article CARDINAL . § CARDINAL . The member is obliged to participate in the costs of construction , use and upkeep of the co - operative 's property , ... and other obligations of the co - operative by bringing in a construction contribution ( wkład budowlany ) ... in the amount corresponding to the total costs of the construction due in respect of his flat , and by the payment of fees relating to the use of the flat . ... ”

NORP Under CARDINAL and CARDINAL of the Co - operative PERSON , a person having the co - operative quasi - proprietorial right to an apartment could let this apartment to third parties or let them use it for free , but only if the cooperative gave its consent thereto . ORG , in its judgment of DATE , found that these provisions were incompatible with the constitutional guarantees of peaceful enjoyment of property rights . This was so because they restricted the very essence of the co - operative quasi - proprietorial ownership right too significantly , in a manner incompatible with the nature of that right in rem , and conferred too strong a position on co - operatives vis - à - vis their members .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

On CARDINAL DATE ORG ( PERSON für PERSON ) convicted the applicant , inter alia , under LAW ) , on numerous counts of handling stolen goods ( Hehlerei ) and sentenced him to CARDINAL GPE imprisonment . ORG found that the applicant , who dealt with antiques , had bought , DATE , antiques which had been stolen in the north of GPE .

On DATE the applicant filed a plea of nullity and an appeal against sentence with ORG ( Oberster Gerichtshof ) .

On DATE the Procurator General ( Generalprokurator ) submitted the following comments on the applicant ’s plea of nullity :

" In the view of the Procurator General , the plea of nullity of the accused PERSON can be dealt with under LAW of LAW . The transmission of a decision is requested . "

On DATE ORG dismissed the applicant ’s plea of nullity and , as regards the appeal against sentence , referred the case to ORG ( Oberlandesgericht ) . On DATE ORG dismissed the applicant ’s appeal .

Under LAW ( d ) LAW ) , a plea of nullity may be rejected by ORG after deliberations in private if ORG unanimously finds that the complaint should be dismissed as manifestly ill - founded without any need for further deliberation .

Section CARDINAL § CARDINAL of LAW , as in force at the relevant time , reads as follows :

" If the public prosecutor at an appellate court submits observations on an appeal on grounds of nullity ... , the appellate court shall communicate those observations to the accused ( person concerned ) , advising him that he may submit comments on them within a reasonable period of time that it shall determine . Such communication may be dispensed with if the prosecutor confines himself to opposing the appeal without adducing any argument , if he merely supports the accused or if the accused ’s appeal is upheld . "

NORP Since the CARDINAL LAW ( Strafrechtsänderungsgesetz ) the last sentence of LAW § CARDINAL reads as follows :

“ Such communication may be dispensed with if the prosecutor merely supports the accused or if the accused ’s appeal is upheld . "


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

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

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

The applicant ’s father and his family of CARDINAL ( including the applicant ) lived in a council flat under the threat of collapse . On DATE ORG ordered the local council to provide the applicant ’s father with “ decent living LOC for a family of CARDINAL ” . This judgment became binding on DATE , but was not enforced .

In DATE the applicant ’s father died , and on DATE ORG transferred the right of claim to the applicant .

Under LAW of DATE , a bailiff must enforce a judgment within DATE .


The applicants are CARDINAL Directors of a limited liability company ( hereinafter “ the Company ” ) . All applicants are NORP citizens , except applicant ORG who is a citizen of GPE . Before the ORG they are represented by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , Director in ORG .

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

In DATE all the applicants were employed by the same employer , the Company . On DATE the Annual General Meeting of the Company decided that a bond loan with warrants be issued . The Terms and Conditions for the Bond Loan with Warrants for share subscription ( hereinafter “ the Terms ” ) were determined , inter alia , as follows :

“ I Loan Terms

NORP The maximum amount of the bond loan with warrants shall be MONEY ( FIM ) .

The Loan shall be offered for subscription to the management of [ the Company ] . It is proposed that ORG pre - emptive right to subscription be disapplied since the loan is intended as part of the incentive programme for the management of [ the ORG ] and its various units .

The bonds shall be dated DATE . The term of bonds shall be DATE . The loan shall be repaid in CARDINAL instalment on CARDINAL against presentation of the bonds at the ORG ’s head office .

NORP The DATE interest rate on the loan shall be ( DATE . ...

Subscription may take place on DATE at the ORG ’s head office .

[ The Company ] shall issue not CARDINAL bonds made out to a named person each with a nominal value of ORG CARDINAL and carrying CARDINAL warrants . The bonds and warrants shall be kept by an agent designated by [ the Company ] for the account of the subscriber until CARDINAL.CARDINAL.CARDINAL .

II Terms and Conditions of Share Subscription

Each warrant shall entitle the holder to subscribe for CARDINAL [ Company ] preferred share with a nominal value of ORG CARDINAL . ...

Shares may be subscribed during the period CARDINAL.CARDINAL.CARDINAL CARDINAL.CARDINAL.CARDINAL . Share subscription shall take place at [ the ORG ’s ] head office or at a place later indicated by [ the Company ] . When subscribing for a share a warrant shall be surrendered . payment of shares subscribed shall be effected on subscription .

NORP The share subscription price shall be FIM CARDINAL .

Warrants pertaining to bonds may not be transferred to a third party prior to CARDINAL.CARDINAL.CARDINAL without the written permission of ORG . After this date warrants may be freely transferred . ”

The Annual General Meeting noted that the loan formed a part of an incentive programme directed to the management of ORG . The purpose of the programme was to strengthen the management ’s commitment to continuous and long - standing service for the Company .

In DATE , CARDINAL employees , including all the applicants , subscribed for bonds under the incentive programme . The ORG loan - share varied CARDINAL ( ORG CARDINAL.CARDINAL ) and CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) , carrying the same amount of warrants . At the time , the mid - rate of the ORG ’s stock was ORG CARDINAL ( EUR CARDINAL ) .

Under LAW ( CARDINAL ) of LAW ( tuloverolaki , inkomstskattelag CARDINAL/CARDINAL , hereinafter “ the DATE LAW ) , an employee receives ordinary income under employee stock purchase programmes when subscribing for the company ’s shares for a price that is under the fair market value of the stock . However , under programmes that are designed for the whole personnel , or for the majority of it , no taxable income arises if the price reduction is PERCENT or less compared with the fair market value of the stock .

Under LAW ( CARDINAL ) of LAW , as it stood , the benefit of subscribing for shares based on debenture loan or stock option was taxable income if the subscription price was lower than the fair market value at the moment when the loan was issued . However , applying LAW , the potential profits in the future , based on appreciation of stock , were regarded as capital gains .

Applying the DATE Act , as it stood in DATE , the applicants did not receive any ordinary income at the option grant . The potential gains would in due course be taxed as capital gains .

In DATE the capital gains tax rate was PERCENT . The rateable value for capital gains was determined by deducting the acquisition price from the sales price . There was a legal presumption that the acquisition price was PERCENT of the sales price unless the taxpayer showed that some other acquisition price be applied .

On DATE the Government introduced a Bill ( hereinafter “ the Bill ” ) , proposing amendments to the DATE Act . The amendments concerned , inter alia , LAW ( CARDINAL ) , of the DATE Act . According to the PERSON , profits based on appreciation of stock were to be regarded as a benefit related to employment . The incentive stock options programme for directors of a company was a new way of paying salary ; the employer gave a promise regarding a right to a certain subscription for shares , and the value of that right would most likely , at the exercise of the right , be significantly higher than at the option grant . From the angle of income tax , it represented a postponed salary , which should be taxed as ordinary income . Due to practical problems relating to the assessment of the benefit at the option grant , the Government proposed that the benefit would be taxed at the exercise of the stock option ( i.e. purchase of shares ) or when the stock option was transferred . The Government stated that the amendments were intended to enter into force as from DATE . The amended LAW would be applied to existing stock option arrangements where the option was exercisable in DATE or later .

On DATE ORG decided , relying on LAW , LAW , of the Terms , to grant to subscribers of the bond loan a permission to transfer the warrants pertaining to bonds ( stock option certificates ) before DATE when the subscribtion for shares would otherwise have started . As a result , a subscriber of the bond loan could transfer his or her stock options already in DATE , during which LAW in its original form was still assumed to be applicable .

On DATE the ORG discussed during its question time the news according to which certain companies were planning to bring forward the opportunity to exercise their stock options . In his answer to the ORG , the Minister of Finance took up the possibility of retrospective legislation . According to his answer , an earlier implementation of the proposed amendment would be justified at least in cases where the original subscription time was brought forward .

On DATE the applicants exercised their stock options by selling them . The selling price was FIM CARDINAL ( EUR CARDINAL.CARDINAL ) per option , i.e. the net value of the stock options after the income taxes paid by the applicants was FIM CARDINAL ( ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) altogether .

On DATE ORG ( valtiovarainvaliokunta , finansutskottet ) gave its report on the PERSON . ORG found that the proposed amendment was based on good reasons relating to fiscal policy . However , it found that the proposed entry into force was problematic . It reported that after the PERSON had been introduced , companies had started to make strenuous efforts to modify their incentive programmes so as to make possible an earlier exercise of the stock options than laid down in the terms of the subscription . ORG found that , when considering the general equality aspects in levying taxes and the need to protect the incentive programmes from such artificial modifications that were made only by reason of taxation , the proposed amendment should enter into force earlier in order to make the described plans unprofitable .

Taking into account expert opinions , ORG found that the goal could not be achieved by applying LAW of LAW ( concerning tax evasion ) . Therefore the Finance Committee found that the implementing provision should include an explicit clause as regards arrangements which permitted an earlier exercise of stock options . On the other hand , the so - called pure cases ( i.e. cases in which the company had not initiated any artificial arrangements with the aim of making possible an earlier exercise of the options ) should be left outside the scope of an earlier implementation . ORG stated that the provision regarding the earlier implementation should be applied , inter alia , in cases where ORG of a company had , after DATE , exercised its right to give a permission to exercise the stock option . It found that the proposed implementation would not be contrary to the right of property , at least if the “ pure ” cases were left outside the earlier implementation , which would apply only to irregular arrangements that aimed at producing an undeserved tax benefit .

The proposed amendment to LAW was adopted on DATE , ratified on CARDINAL DATE and published on DATE . The implementing provision included a clause to the effect described above . The decisive date as regards permission , given by ORG , to an earlier exercise of stock options was set at DATE , i.e. the date of introducing the PERSON .

Under the new provision of LAW ( hereinafter “ the DATE LAW ) and according to its implementation provision , the relevant tax authorities found that the applicants had received taxable income by selling their stock options in DATE . A corresponding income tax was levied on them .

Unlike capital gains tax , the income tax was progressive . The applicants’ incomes in DATE were such as to put them in the highest tax band , resulting in marginal tax rates of PERCENT or more . In practice , the application of the amended tax legislation imposed on the applicants , respectively , a tax burden varying from ORG CARDINAL,CARDINAL ( ORG GPE euros ) to ORG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) , and amounting in total ORG CARDINAL ( ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) more than would have applied under the previous legislation .

The applicants lodged claims for rectification with their respective ORG ( verotuksen oikaisulautakunta , skatterättelsenämnd ) . They referred , inter alia , to LAW No . CARDINAL to the Convention . The first decision was made on DATE and the last on DATE . ORG rejected their claims . The tax authorities found that the relevant profits were to be taxed as ordinary income . In assessing the taxable gains , they did not accept that a PERCENT deduction , based on the presumption of the acquisition price , be made from the sales price . Instead , they found that the assessment of the taxable gains was to be made by deducting the purchase price and sales cost from the sales price . Since in the relevant cases there were no purchase prices , only the sales costs were deducted .

The applicants appealed to ORG ( lääninoikeus , länsrätt ) . They requested that the profit on sale be taxed by applying LAW , i.e. as capital gains and not as ordinary income . They also requested that the legal presumption as regards the acquisition price be taken into account and a corresponding amount be deducted when assessing the taxable gains . They maintained , inter alia , that the interpretation , based on retrospective legislation , according to which the profits on sale of the stock options were taxed as ordinary income , infringed the principle of equality as well as the right of property and , furthermore , was contrary to LAW .

On DATE the first decision was given by ORG of GPE and PERSON . It rejected the appeals lodged by the applicants living in the relevant county .

The above - mentioned applicants , living in GPE and PERSON , applied to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) for leave to appeal .

On DATE ORG granted leave to appeal to CARDINAL of the applicants , but rejected the appeal on merits . The court decided to publish the judgment in its yearbook of precedents ( CARDINAL ) . The key words in the summary of the precedent are , inter alia , “ right of property ” and “ equality ” . After adopting the first judgment , ORG refused the other CARDINAL applicants , who had already received a judgment from ORG , leave to appeal .

ORG stated in its reasoning , inter alia , that the relevant tax on income was not a confiscatory measure which could be regarded as infringing the right of property . It noted that the applicant ’s taxable income , based on the sale of the stock options , corresponded to the actual gains from that sale . ORG found that it had not been contrary to LAW No . CARDINAL to the LAW to tax an income , made by selling stock options , as any other ordinary earnings .

Had the applicants sold their stock options on DATE , which was the originally planned first possible day to transfer the warrants pertaining to bonds , the total net value of the stock options after income tax would have been FIM CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL.CARDINAL ) . Had the stock options been sold on DATE , the total net value after income tax would have been ORG CARDINAL ( ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) .

On DATE ORG gave a decision in another case in which it found that the profits from a sale of a stock option in DATE were to be taxed as capital gains since the original loan conditions had not been altered and since the relevant company had agreed to the transfer prior to CARDINAL DATE .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

The applicant is married and has children . Prior to her application for pension she was unemployed .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called EWK pension .

Along with her application for a pension , the applicant submitted , among other documents concerning her son ’s health condition , a medical certificate issued by a specialist medical centre on DATE The certificate stated that the child ( born in DATE ) had suffered from bronchial asthma and allergy and that he was in need of the parent ’s constant care .

On DATE ORG ( “ the SSB ” ) issued a decision granting the applicant the right to an earlyretirement pension as of DATE in the net amount of MONEY ( ORG ) .

On DATE the ORG requested ORG doctor ( PERSON ) to inform it whether the applicant ’s son required the permanent care of a parent . On an unknown date the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE ORG issued simultaneously CARDINAL decisions for the applicant . By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early - retirement pension under the scheme provided for by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON . DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki ) ( “ the DATE LAW ) .

NORP The applicant appealed against the respective decisions divesting her of the right to an early - retirement pension . She submitted that she should receive the benefit because her child required constant care , as confirmed by the medical certificate attached to the applicant ’s original application for a pension . Moreover , the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights .

On DATE ORG ( PERSON ) dismissed the appeal . ORG concluded on the basis of the evidence , including expert medical evidence , that while indeed the applicant ’s child suffered from bronchial asthma and allergy he did not require his mother ’s permanent care since his health condition did not significantly impair his body functions . The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the DATE Ordinance as she did not satisfy the requirement of necessary permanent care .

The applicant further appealed against the first - instance judgment .

On DATE the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal .

On DATE ORG ( Sąd Najwyższy ) dismissed the cassation appeal lodged by the applicant .

Following the social security proceedings the applicant was not ordered to return her early - retirement benefits paid by ORG , despite the revocation of her right to the early - retirement pension .

The applicant submitted that after the revocation of the pension she had not received any benefits or allowances .

The Government submitted that prior to her EWK pension the applicant was unemployed except for DATE when she had worked . After revocation of the pension she worked for DATE . The ORG submitted that from DATE until DATE the applicant collected sickness allowance and rehabilitation benefit without specifying the amount . Moreover , the applicant ’s husband had been employed since DATE without interruption .

In addition , the ORG submitted information as regards various types of social benefits available in GPE . However , they failed to specify which of those benefits , if any , were available in the applicant ’s situation .

NORP Under the relevant laws applicable at present , it appears that the applicant will qualify for a regular retirement pension in DATE .

CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .

Out of all applications lodged with the ORG , CARDINAL applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .

One hundred - and - CARDINAL applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In CARDINAL applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issue or make it necessary for ORG to give a new interpretation to legal provisions which raised serious doubts or caused ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment of the case of GPE , no . CARDINAL , § DATE , DATE .

The re - opening of the proceedings concerning the early retirement pension is regulated in CARDINAL ( CARDINAL ) of the LAW DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) , which at the relevant time read as follows :

“ The right to benefits or the amount of benefits will be re - assessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”

On DATE a new subparagraph CARDINAL ( CARDINAL ) ( a ) was added , which reads as follows :

“ Section CARDINAL shall apply respectively , if , after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension , disability pension or its amount . ”

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a second - instance court . A party had to be represented by an advocate or a legal adviser .

Article CARDINAL of LAW as applicable at that time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG failed to find non - conformity with the law , it dismissed the cassation appeal . According to Article CARDINAL if the cassation appeal was well - founded ORG could also amend the impugned judgment and adjudicate on merits .

On DATE the ORG made an application to ORG , asking for section CARDINAL ( CARDINAL ) of the LAW DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) to be declared unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . More specifically , the ORG submitted that the introduction of an age - limit in respect of persons taking care of a child , which in essence amounted to a deprivation of the right to a benefit , constituted a violation of the principle of equality set forth in LAW .

On DATE ORG ( KCARDINAL/CARDINAL ) declared the impugned section CARDINAL ( CARDINAL ) of the DATE Law unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . ORG reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits .

On DATE the ORG made an application to ORG , asking for CARDINAL ( CARDINAL)(a ) of the DATE Law to be declared unconstitutional in so far as it allowed the ORG to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted .

On DATE ORG ( GPE declared the impugned section CARDINAL ( CARDINAL)(a ) of the DATE Law unconstitutional in so far as it allowed the ORG to reopen such proceedings following a new assessment of evidence which had already been submitted .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria

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

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

NORP The applicant and PERSON have a child who was born on CARDINAL DATE . In DATE , the couple split up and the applicant returned to live with his parents . At that time the child was cared for by the paternal grandparents . Soon after the separation , PERSON married ORG and then changed her workplace to ORG , QUANTITY away from their former residence .

Relations between the applicant and PERSON deteriorated significantly after their separation . They engaged in extensive litigation concerning the division of property they had acquired during their relationship .

In addition , both parents filed for custody of the child . On DATE the applicant asked for temporary custody pending the outcome of the main proceedings . On DATE ORG granted him that right . A similar request lodged by the mother was dismissed by the same court on DATE .

From DATE the applicant enrolled the child at School no . CARDINAL , at kindergarten level , where he remained until DATE when his mother enrolled him at a kindergarten in GPE , closer to her work place and that of her husband . At that time PERSON was a judge at ORG and subsequently a prosecutor in ORG attached to that district court . Her new husband was a prosecutor in the same office .

On DATE ORG examined the merits of the requests for custody lodged by the CARDINAL parents and found in favour of the mother . It granted visiting rights to the applicant . The court noted that most of the mutual allegations of lack of interest in the child and unfitness to take care of him remained unsubstantiated , the only proven fact being the extreme animosity between the parents .

The applicant appealed and on DATE ORG upheld the custodial decision and set a visiting schedule for the applicant , who was entitled to take the child to his home as follows : DATE , from TIME on DATE to TIME on DATE ; DATE of every school holiday ; and DATE during DATE . The child was to be picked up by the applicant from “ Kindergarten no . CARDINAL ” .

The applicant appealed on points of law , reiterating his request for custody ; he agreed to the pick - up point set by the court as “ Kindergarten no . CARDINAL ” . In a final decision of DATE ORG took note that the applicant had retracted his appeal .

DATE , in accordance with the visiting schedule , the applicant went to the kindergarten where his child used to be enrolled allegedly “ CARDINAL times ” , but the mother never showed up .

In DATE he initiated enforcement proceedings , without success ; the bailiff compiled several reports ( dated DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , and DATE ) confirming the mother ’s failure to comply with the provisions of the county court decision .

Starting from DATE , several criminal complaints ( allegedly CARDINAL ) were lodged by the applicant against D.O for noncompliance with the provisions of the final enforceable decision . ORG attached to ORG joined the examination of the various complaints and on DATE decided not to prosecute on the ground that the alleged crimes had not occurred ; the prosecutor also noted that the applicant had had numerous opportunities to see the child , but he had failed to keep the appointments and preferred instead to lodge various complaints against the mother .

The prosecutor ’s decision was communicated to the applicant on DATE .

NORP The applicant objected to the prosecutor ’s decision , but on DATE ORG upheld it . The court noted that the applicant had not respected the pick - up point set by the courts : he had gone with the bailiff to the child ’s former kindergarten , School no . CARDINAL , whereas the mother had gone with the child to Kindergarten no . CARDINAL , which was located at a different address , as ordered by the final court decision . It also considered that the applicant ’s intention was to find fault with the mother and pointed out , based on the evidence adduced before it , that the applicant had only visited the child in his new kindergarten , in GPE , once , accompanied by the bailiff , and on that occasion he had tried to take the child with him by force , causing a scene which had traumatised the child .

In a final decision of CARDINAL DATE ORG and Justice upheld the prosecutor ’s decision .

On DATE the applicant filed for the clarification of the county court decision of DATE . On DATE the ORG sitting in camera granted his request and acknowledged that “ Kindergarten no . CARDINAL ” was to be understood to be “ the kindergarten belonging to School no . CARDINAL ” . The parties were not summoned to the proceedings .

Several other criminal complaints lodged by the applicant against PERSON were dismissed by the prosecutor on DATE , CARDINAL DATE and DATE for the same reasons as those provided in the decision of DATE .

The relevant domestic legal provisions are set out in the ORG ’s judgments in GPE v. GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) , and GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) . The role and responsibilities of the local public authorities in respect of social assistance and child protection , as well as the relevant provisions of LAW no . ORG are described in the judgment in GPE , ( no . CARDINAL , § § DATE and DATE , CARDINAL DATE ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

At the material time the applicant held the post of Vice President of ORG ( ORG “ PERSON ” ) .

On DATE the applicant left for DATE leave in GPE , where he stayed until DATE , following which he was in GPE until DATE before returning to GPE .

Meanwhile , on DATE ORG instituted criminal proceedings under LAW ( b ) of LAW for fraud involving a Yak-CARDINAL aircraft .

On DATE the applicant was placed on an international wanted list .

On DATE ORG ( GPE – “ ORG ” ) ordered the applicant ’s remand in custody on suspicion of fraud . ORG held as follows :

“ ... Following the institution of the criminal proceedings [ the applicant ] absconded from ORG and GPE .

In connection with the establishment of [ the applicant ’s ] whereabouts in GPE , on DATE he was placed on a wanted list .

... Taking into account the fact that [ the applicant ] is charged with a serious offence , [ that he ] fled from investigation , has actively obstructed the establishment of the truth in the case , and may continue the criminal activity , the court considers it necessary to choose a measure of restraint in the form of placement in custody . ”

According to the applicant , until DATE he did not know anything about the criminal proceedings against him . As soon as he knew about them , he went to the investigation department of ORG , where he was arrested pursuant to the court order of CARDINAL DATE .

NORP The applicant was placed in a temporary detention facility , where he was kept until DATE . Throughout this period the applicant ’s family was unaware of his whereabouts . The applicant was subsequently transferred to ORG remand prison ( ORG ) .

In the meantime , on DATE ORG upheld the decision of CARDINAL DATE on appeal .

On DATE and DATE ORG extended the applicant ’s pre - trial detention until DATE and CARDINAL DATE respectively . On both occasions the court relied on the gravity of the charges against the applicant and the fact that he had been placed on an international wanted list prior to his arrest , which gave the court sufficient grounds to believe that if at large the applicant might obstruct the proceedings . Under these circumstances the court held that the application of a non - custodial preventive measure was not possible .

On DATE ORG upheld the extension order of CARDINAL DATE on appeal . The case file contains no information as to whether the applicant appealed against the extension order of DATE .

On DATE the applicant ’s case file was remitted to ORG ( GPE – “ ORG ” ) for examination on the merits .

On CARDINAL DATE the applicant ’s detention ordered by the decision of DATE expired . No other decision was made regarding his detention until DATE . However , the applicant remained in detention .

On an unspecified date in DATE the applicant sought compensation for unlawful detention DATE and DATE .

On DATE ORG acknowledged that the applicant ’s detention in the above period had been unlawful and awarded him MONEY .

The applicant submitted that the above judgment remained unenforced to date .

On DATE ORG fixed a date for a preliminary hearing of the case and held that the preventive measure applied to the applicant and CARDINAL other co - defendants “ should remain unchanged ” .

On DATE ORG scheduled DATE of the trial and ordered that the preventive measure in respect of the applicant and his CARDINAL co - defendants “ should remain unchanged ” . The applicant ’s request for release was dismissed as follows :

“ [ The applicant and his CARDINAL co - defendants ] are charged with grave crimes punishable with long - term imprisonment . The custodial measure was applied [ to them ] during the preliminary investigation after assessment of the GPE personalities , their health and the gravity of the crimes [ charged against them ] . The arguments of the defendants and their representatives about the unlawful application of the custodial measure ... can not be taken into consideration since this [ issue ] is not the subject matter of the present hearing . ... ”

The applicant appealed against the above decision , in so far as it concerned the preventive measure , to ORG , arguing that the custodial measure had been applied to him unlawfully and without consideration of his personal circumstances . The applicant ’s co - defendants also appealed .

On DATE ORG upheld the decision of CARDINAL DATE on appeal .

NORP However , on DATE the Presidium of ORG quashed the appeal decision of CARDINAL DATE by way of supervisory review , as it failed to address the arguments advanced on behalf of the applicant and his co - defendants by their representatives .

On DATE ORG again upheld the decision of CARDINAL DATE on appeal .

In the meantime , on DATE ORG extended the applicant ’s and his CARDINAL co - defendants’ detention for DATE , until DATE :

“ The circumstances which prompted the application of the custodial measure did not change . The defendants’ reference to the fact that they can not exert pressure on witnesses or victims , as the preliminary investigation is over , and that they will not abscond as they have no previous criminal record and are no danger to society , can not be accepted by the court , because at the present moment the trial has not yet started , and the court has not begun the examination of the evidence in the case , including the examination of witnesses and victims ...

In such circumstances the court does not find grounds for altering the custodial measure to a more lenient one ... ”

On DATE ORG extended the applicant ’s and his CARDINAL co - defendants’ detention for DATE , until DATE , even though the prosecution considered it no longer necessary :

“ The defendants are charged with grave crimes punishable by long - term imprisonment . The custodial measure was applied [ to them ] after consideration of their personalities , health , family situation , existence of dependents , and the gravity of the crimes [ with which they were charged ] . No medical certificates indicating that the defendants can not be detained in the remand prison for health reasons have been provided to the court .

The circumstances which prompted the application of the custodial measure have not changed so far . The GPE statements that they can not exert pressure on witnesses and victims , as the majority of them have already been questioned by the court , and that they will not abscond as they have no previous criminal record and are not a danger to society , can not be accepted by the court , because at the present moment the trial has not been completed and the court has not examined the evidence in full . The GPE maintaining their innocence ... can not justify changing the custodial measure to a more lenient one , as the court is yet to assess the cumulative evidence and to reach a conclusion as to the GPE guilt or innocence ... ”

On DATE , having reiterated its previous reasoning , ORG extended the applicant ’s and his CARDINAL codefendants’ detention for DATE , until DATE .

On DATE the ORG convicted the applicant of fraud and forgery and sentenced him to DATE imprisonment . The pronouncement of the judgment took TIME , from TIME to TIME DATE . The applicant ’s and his co - defendants’ request to be allowed to sit down during the pronouncement of the judgment was turned down .

On DATE ORG upheld the judgment on appeal . The court held that the applicant ’s sentence should be suspended for DATE , and the applicant placed on probation .

On DATE the applicant was released .

According to the applicant , on the dates of the hearings he was woken up at TIME , taken from his cell to the “ waiting unit ” or “ assembly cell ” , together with other detainees who had a hearing on DATE , and later on taken to the convoy area of the court - house . The applicant had to wait in that area for TIME , sometimes until TIME , until called by the court . At TIME the convoy transferred him back to the remand prison , and he was again woken up TIME the following day to be taken to the court . He received no food on DATE of his transfers to the courthouse , either at the remand prison or in the courthouse .

According to the ORG , the applicant was taken to the courthouse on the following dates :

The Government submitted that on DATE of the applicant ’s transfers to the court - house the applicant was woken up as usual at TIME As a rule , he was returned to the remand prison before TIME On the rare occasions when the applicant was returned to the remand prison after TIME he was allowed to sleep at any time during DATE . The Government were unable to submit information as to the exact time of the applicant ’s arrivals at the remand prison from the court - house because the relevant documentation had been destroyed in DATE and DATE due to the expiry of the retention period , but they affirmed that the court ’s TIME were from TIME

According to the Government , on the dates of the applicant ’s transfers to ORG he received dry rations ( bread or dry biscuits , tinned first and second courses , sugar , tea , a plastic spoon and a plastic cup ) , in compliance with the applicable legal norms . In the “ waiting unit ” of the remand prison and the convoy area of the court the applicant was provided with hot water if he requested it . In support of their submissions the Government provided a certificate issued by the governor of ORG on CARDINAL DATE accompanied by CARDINAL invoices ( накладные ) from the applicant ’s remand prison record , dated CARDINAL May and DATE on provision of CARDINAL dry rations and CARDINAL dry ration respectively to detainees transported to the court - house on those dates .

Since DATE , criminal - law matters have been governed by LAW ( Law no . CARDINAL of DATE , “ the Code ” ) .

“ Preventive measures ” include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend , or obstruct the establishment of the truth ( Article CARDINAL ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( Article CARDINAL ) . In exceptional circumstances , and when there exist grounds provided for by Article CARDINAL , a preventive measure may be applied to a suspect , taking into account the circumstances listed in LAW . If necessary , the suspect or accused may be asked to give an undertaking to appear in court ( LAW ) .

The Code makes a distinction CARDINAL types of detention : the first being “ pending investigation ” , that is , while a competent agency – the police or a prosecutor ’s office – is investigating the case , and the second being “ before the court ” ( or “ pending trial ” ) , at the judicial stage .

A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of , or charged with , a criminal offence punishable by DATE imprisonment ( LAW ) . The maximum length of detention pending the investigation is DATE ( Article CARDINAL ) . A judge may extend that period DATE ( Article CARDINAL § CARDINAL ) . Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences ( Article CARDINAL § CARDINAL ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .

From the time the prosecutor sends the case to the trial court , the defendant ’s detention falls under the category “ before the court ” ( or “ pending trial ” ) . The period of detention pending trial is calculated up to the date on which the first - instance judgment is given . It may not normally exceed DATE from the moment the case file arrives at the court , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions , of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .

In its resolution no . CARDINAL of CARDINAL March CARDINAL “ On ORG of LAW ” , as in force at the relevant time , ORG of GPE noted with regard to the provisions of LAW of the LAW that , when deciding whether to extend a defendant ’s detention pending trial , the court should indicate the grounds justifying the extension and its maximum duration ( paragraph CARDINAL ) .

An appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention . The appeal court must decide the appeal within DATE of receiving it ( LAW ) .

At any time during a trial the court may order , vary or revoke any preventive measure , including detention ( Article CARDINAL § CARDINAL ) . An appeal against such a decision lies with the higher court . It must be lodged within DATE and examined DATE after its receipt ( ORG CARDINAL § CARDINAL and CARDINAL ) .

The Pre - trial GPE ( Federal Law no . CARDINALFZ of DATE ) provides that detainees have , in particular , the right to receive free food , including when they are taking part in court hearings , and to have TIME uninterrupted sleep at TIME ( section QUANTITY CARDINAL and CARDINAL ) .

On DATE ORG adopted rules on supply of dry rations , under which those suspected or accused of criminal offences should be supplied with dry rations ( bread , precooked first and second courses , sugar , tea , tableware ) during their presence at a court - house . Detainees should be supplied with hot water to consume with the rations .