Violation of Art. 11;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant was CARDINAL of the founders of an association named “ Humanity and Environment ” ( “ İnsan və GPE ” PERSON ) , established on DATE .

On DATE the founders applied to register the association with ORG ( “ the Ministry ” ) , the government authority responsible for the state registration of legal entities . In accordance with the domestic law , a non - governmental organisation acquires the status of a legal entity only upon its state registration by ORG .

On DATE , CARDINAL half months after the date of application for registration , the ORG returned the registration documents to the founders without taking any action , that is without issuing either a state registration certificate or an official refusal to register the association . The ORG noted that the association 's charter did not comply with LAW DATE .

The founders redrafted the charter in line with the ORG 's comments and on DATE reapplied for state registration , submitting a new version of the charter . On DATE the Ministry responded with another refusal , stating that the charter provisions concerning the association 's members were not in compliance with LAW and Funds ) of DATE ( “ the NGO Law ” ) .

The applicants again revised the charter and on DATE submitted their third registration request .

Having not received any response to their third registration request , on DATE the founders lodged an action , complaining that the ORG “ evaded ” registering their organisation within the time - limits specified by law and asking the court to oblige the ORG to register it . They also demanded compensation for non - pecuniary damage . On DATE the ORG dismissed the founders ' claim , finding nothing unlawful in the actions of ORG . The court found that the association 's charter had not been drafted in accordance with the requirements of the domestic law . The founders lodged an appeal against this judgment with ORG .

NORP In the meantime , on DATE the ORG again returned the registration documents to the founders . This time the reason for declining the registration was the founders ' failure to include in the charter the conditions for terminating membership of the association , as required by LAW .

On DATE ORG upheld the judgment of ORG . On DATE ORG upheld the lower courts ' judgments dismissing the founders ' claim .

The Civil Code of GPE of DATE provides as follows :

“ CARDINAL . The charter of a legal entity approved by its founders is the legal entity 's foundation document . ...

The charter of a legal entity shall set out the name , address , procedure for management of activities and procedure for liquidation of the legal entity . The charter of a non - commercial legal entity shall define the object and purpose of its activities . ... ”

“ CARDINAL . A legal entity shall be subject to state registration by the relevant executive authority . ...

A violation of the procedure of a legal entity 's establishment or noncompliance of its charter with LAW of the present Code shall be the grounds for refusal to register the legal entity . ... ”

The Law on State Registration of Legal Entities of DATE provides as follows :

“ Upon receipt of an application for state registration from a legal entity or a branch or representative office of a foreign legal entity , the authority responsible for state registration shall :

– accept the documents for review ;

– within DATE , issue to the applicant a state registration certificate or a written notification of refusal to register ; or

– review the documents resubmitted after rectification of the breaches previously existing therein and , within DATE , take a decision on state registration . ”

The Law on Non - Governmental Organisations ( Public Associations and Funds ) of DATE provides as follows :

“ CARDINAL . The state registration of non - governmental organisations shall be carried out by the relevant executive authority in accordance with the laws of GPE on state registration of legal entities .

Non - governmental organisations shall acquire the status of a legal entity only after achieving state registration . ”

“ CARDINAL . Non - governmental organisations can be refused registration only if there is another organisation existing under the same name , or if the documents submitted for registration contravene LAW , this law and other laws of GPE , or contain false information .

Decision on refusal of state registration shall be presented in writing to the representative of the non - governmental organisation , with indication of the grounds for refusal as well as the provisions and articles of the legislation breached upon preparation of the foundation documents .

Refusal of registration shall not prevent the organisation from resubmitting its registration documents after rectification of the breaches .

A decision on refusal of state registration may be challenged in court . ”

For the summary of the relevant domestic law and practice concerning requests for the reopening of the domestic civil proceedings and review of the final decision by the ORG of ORG under the procedure of additional cassation , see PERSON v. GPE ( ( dec . ) , no . CARDINAL , DATE ) .

The LAW of GPE of CARDINAL DATE , as amended by the referendum of DATE , provides as follows :

“ V. Every person claiming to be a victim of an infringement of his or her rights and freedoms by the legislative and executive authorities , as well as decisions of municipal authorities and courts , may lodge a complaint with ORG ... with the purpose of the restoration of the infringed human rights and freedoms . ”

The PERSON on ORG of DATE , in force from DATE ( hereafter the “ LAW ” ) , provides as follows :

“ CARDINAL . Every person claiming to be a victim of an infringement of his or her rights and freedoms by the legislative and executive authorities , as well as decisions of municipal authorities and courts , may lodge a complaint with ORG in order to resolve matters set out in LAW , Part III.CARDINAL - CARDINAL of the LAW with the purpose of the restoration of the infringed human rights and freedoms . ...

Complaints can be submitted to ORG in the following cases :

CARDINAL.CARDINAL.CARDINAL . after exhaustion of all appeal rights , within DATE of the entry into force of the decision of the court of last instance ( ORG ) ;

within DATE of the infringement of the complainant 's right to access to court .

A complaint may be lodged directly with ORG if the courts of general jurisdiction can not prevent serious and irreparable damage to the complainant as a result of violation of his or her human rights and freedoms . ”

Prior to lodging a constitutional complaint against the domestic courts ' decisions in civil cases , individual applicants were required , as part of the conditions on admissibility of individual applications under LAW , to have lodged an additional cassation appeal with the President of ORG , requesting the reopening of the proceedings and a review of ORG final decision by the ORG of ORG . The constitutional complaint was admitted into preliminary examination only after the individual complainant had obtained either a refusal by the President of ORG to reopen the proceedings or , if the proceedings had been re - opened , a decision of the ORG of ORG .


TRANSADO-TRANSPORTES FLUVIAIS DO SADO, S.A. v. PORTUGAL

The applicant company , NORP do ORG , is a public limited company formed under NORP law , whose registered office is in GPE ( GPE ) . It was represented before the ORG by PERSON PERSON and PERSON , of ORG .

The applicant company is a river transport company which operated a ferry across the river Sado between ORG and GPE under a concession contract concluded in DATE with the ORG port authorities ( “ the ORG ” ) .

Clause LAW of the contract provided that any dispute concerning the validity , interpretation or execution of the provisions of the concession contract would in all cases be submitted to an arbitration tribunal made up of CARDINAL arbitrators , the first to be appointed by the ORG , the second by the applicant company and DATE the president – by the ORG court .

Clause PERSON of the contract stated that on expiry of the concession the ORG would become the owner of all assets and equipment , including ships . However , GPE would be entitled to compensation in respect of those assets acquired by it with the ORG ’s agreement which had not yet been written off on expiry of the concession ; such compensation would correspond to the value that had not been written off . To this end , the applicant company and the ORG were required to reach agreement on the writing - off periods for the assets in issue .

On DATE the applicant company and the ORG signed a supplementary agreement to the concession contract , fixing the length of the concession at DATE . This period would be automatically extended for DATE unless CARDINAL of the parties repudiated it DATE prior to expiry of the contract . Negotiations were also held between the applicant company and the ORG with a view to amending clause LAW of the concession contract , particularly with regard to the formula for calculating compensation , but these came to nothing . In a letter from the ORG to the applicant company , dated DATE , a concrete proposal on amending clause PERSON was put forward . However , no such amendment to the contract was agreed .

In DATE the applicant company operated a fleet of CARDINAL conventional vessels and ferries which it had bought itself ; CARDINAL had been purchased with the ORG ’s authorisation .

On DATE the ORG informed the applicant company that it did not intend to renew the concession , which would therefore expire on DATE . It referred in particular to the applicant company ’s difficult financial situation and to the problems arising from the considerable sums which it owed to the tax and social security authorities , debts which moreover had entailed the seizure of certain vessels .

On DATE the applicant company submitted its request for compensation to the ORG . It argued that any such compensation ought to be calculated on the basis of the provisions of clause LAW of the concession contract , as amended by the ORG ’s letter of DATE .

On DATE the ORG stated that compensation could be awarded only on the basis of the original wording of clause PERSON of the concession contract , and under no circumstances could any such compensation be awarded on the basis of the amendment proposed on DATE , which had never been agreed .

On DATE the applicant company requested that the arbitration tribunal provided for in clause LAW of the concession contract be convened , with a view to settling the dispute .

The arbitration tribunal was formed on DATE . The applicant company and the ORG both submitted observations and witnesses were questioned .

The arbitration tribunal delivered a unanimous verdict on DATE , dismissing the applicant company ’s request for compensation . Having interpreted clause PERSON , and noting that only the original text of the concession contract could be applied , it stressed that there was nothing in the facts as established to show that the applicant company and the ORG had reached agreement on the writing - off periods for the assets in issue . The compensation request could not therefore succeed .


Remainder inadmissible;Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award

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 .

On DATE the applicant arrived in GPE from GPE . In DATE he asked GPE United Nations High Commissioner for Refugees to grant him refugee status . DATE refugee status was granted and the applicant was informed of his right to move to GPE .

On DATE the acting chief of the GPE Town police department of GPE faxed a letter to the chief of the GPE police department asking him to arrest the applicant . The letter read as follows :

“ [ We ] seek your order to arrest a criminal , [ the applicant ] , wanted by us for having committed a crime ( theft of ORG property ) under LAW of GPE ... criminal case no . CARDINAL/CARDINAL . The arrest warrant and order for transport were issued on DATE by the first deputy military prosecutor of GPE . ”

A translation of the arrest warrant of CARDINAL DATE was attached to the letter .

On DATE the Prosecutor General of GPE received a letter from ORG of the ORG High Commissioner for Refugees , informing him about the applicant ’s refugee status . The letter read as follows :

“ The Regional Representation of the United Nations High Commissioner for Refugees in the NORP Federation applies to you in connection with the case of Mr Gunduz Eminbeyli , which was examined by the ORG in DATE , as a result of which [ the applicant ] was granted refugee status and was considered in need of international protection under the ORG mandate in the territory of GPE .

In DATE GPE accepted [ the applicant ] as a refugee with permanent leave to remain , in support of which he was given a travel document and issued with an entry visa for that country .

As it follows from the information obtained by us , a federal search warrant was issued in respect of [ the applicant ] on the basis of the fact that the NORP authorities accused him of having committed criminal actions ; the [ accusation ] prevents him from leaving GPE .

Due to the fact that [ the applicant ] is a proxy of the former Prime Minister of GPE , Mr PERSON , who subsequently became a leader of the opposition to the Government of PERSON in GPE , and due to the fact that he worked with an NORP national , PERSON , whose case was examined by ORG office DATE , the ORG has grounds to conclude that the true reasons for the warrant issued by the NORP authorities are [ the applicant ’s ] work with and close ties to the above - mentioned NORP political figures .

As we were informed by GPE Department of Visas and Registration where [ the applicant ] lives and with whom he lodged his application for a visa , the NORP authorities lodged a request for [ the applicant ’s ] extradition .

The ORG is concerned that if [ the applicant ] is expelled to GPE , there will be a danger of a violation of LAW of LAW relating to LAW ... and of GPE of DATE ... by GPE . LAW relating to ORG forbids an expulsion of persons to a country where their lives and freedom will be threatened by a persecution on account of his race , religion , nationality , membership of a particular social group or political opinion . ”

The UNHCR Representation in GPE sent a similar letter to GPE .

On DATE police officers arrested the applicant pursuant to the faxed letter of DATE and placed him in the temporary detention unit of GPE and GPE ORG of the Interior ( ORG города Санкт-Петербурга и ORG области ) . A police investigator issued a report on the applicant ’s arrest . The report represented a CARDINAL - page printed template , in which the dates , the applicant ’s name , and the grounds for his arrest were filled in by hand . The relevant part read as follows ( the pre - printed part in plain script and the part written by hand in italics ) :

“ I , [ the police investigator ] , ... on the basis of the order of the prosecutor of GPE . , arrested an individual,[the applicant ] , born on CARDINAL DATE , ...

Reasons for the arrest

Receipt of the prosecutor ’s arrest warrant

The arrested is brought to the police station no . CARDINAL

For that the present report is drawn up by [ the police investigator ’s signature ] .

Signature of the arrested person [ the applicant ’s signature ] . ”

The second page of the report contained information on the applicant ’s body search .

The applicant insisted that he had not been informed about the reasons for his arrest and he had not been given a certified copy of the arrest warrant . He was later served with a translation of the warrant which was attached to the letter of DATE . The applicant further alleged that the conditions of his detention in the unit had been very poor .

On DATE ORG sent a letter , on the applicant ’s behalf , to the head of the St. GPE police department , complaining about the applicant ’s arrest with a view to extradition and seeking additional information on the case .

On DATE ORG retained a lawyer , PERSON , to represent the applicant . On the same day PERSON arrived at the detention unit for a meeting with the applicant , but she was not allowed to see him . DATE PERSON complained to GPE that she had been barred from seeing her client .

On DATE PERSON lodged an application with FAC of GPE seeking the applicant ’s release and complaining that he had been unlawfully arrested and detained . A copy of the lawyer ’s complaint bears the stamp of ORG showing that it received the complaint on DATE it had been sent . On DATE Ms Tseytlina was allowed to visit the applicant .

The Government , relying on a letter issued by the deputy President of ORG , submitted that on DATE ORG had forwarded PERSON complaint to the GPE prosecutor ’s office finding that ORG had the exclusive jurisdiction to examine extradition matters . PERSON complained to GPE about the transfer of her complaint to the prosecution authorities . ORG forwarded that complaint to ORG . ORG decided to examine the merits of the application for release and the lawyer ’s complaints and fixed the first hearing for DATE .

On DATE ORG received a request for the applicant ’s extradition from ORG . The NORP authorities stated that the applicant was suspected of having committed aggravated robbery with the aim of acquiring ORG property on DATE .

On DATE the Prosecutor General of GPE , relying on LAW relating to LAW , dismissed the request for the extradition . The Prosecutor General stressed that the applicant had been granted refugee status and that he had been allowed to take up permanent residence in GPE . The ORG also noted that GPE office had been given an order for the applicant ’s immediate release .

According to the Government , ORG order reached the prosecutor ’s office of LOC of GPE on DATE . ORG immediately authorised the applicant ’s release .

On DATE the applicant moved to GPE .

On DATE ORG adjourned for DATE the proceedings concerning the examination of the lawfulness of the applicant ’s detention to allow the prosecutor to examine the case file . The following hearing listed for DATE was also rescheduled for DATE to obtain additional documents from the parties .

On DATE the ORG dismissed PERSON complaint concerning the applicant ’s detention . ORG held that the detention was lawful . The applicant was detained at the request of the NORP authorities with a view to his extradition . Criminal proceedings were instituted against him in GPE , he absconded and his arrest was authorised . The NORP authorities requested the applicant ’s extradition in good time and submitted all necessary documents in compliance with the requirements of LAW of DATE . The applicant was released after the extradition request had been dismissed .

PERSON lodged an appeal statement . She complained that the applicant ’s arrest had not been authorised as required by domestic law , that the faxed letter from the chief of the police department could not have served as the legal basis for the arrest , that the NORP authorities had not issued any detention order in respect of the applicant , that he had not been promptly informed about the reasons for his arrest and that there had been no legal grounds for the applicant ’s detention CARDINAL and DATE .

On DATE GPE upheld the decision of DATE . ORG held :

“ ... [ The applicant ] , having permanent residence in the territory of GPE , was placed on the inter - State wanted ORG list by the law - enforcement organs of the above - mentioned ORG as a person who had absconded from investigation . His remand in custody was authorised ( the detention order of CARDINAL DATE ) .

On DATE [ the applicant ] was arrested on the basis of the warrant issued by GPE with the view to his extradition in accordance with LAW of DATE on ORG , Family and Criminal Cases ( thereafter – the Convention ) ...

The NORP officials had submitted the request for the [ applicant ’s ] arrest ... on DATE and , thus , the court correctly held that the [ applicant ’s ] detention was lawful .

... the period of [ the applicant ’s ] detention in the temporary detention unit of GPE and ORG amounts to DATE ( DATE and DATE ) and conforms to the requirements of LAW , which indicates that a person arrested pursuant to LAW of the Minsk Convention shall be released if no request for extradition is received within DATE of the arrest . The request of ORG for [ the applicant ’s ] extradition was received by the Prosecutor ’s General office on DATE , DATE after [ the applicant ’s ] arrest in GPE .

[ The applicant ] was released on DATE after ORG ordered his release in connection with the decision refusing the request of ORG for his extradition . ”

The LAW guarantees the right to liberty ( LAW ) :

“ CARDINAL . Everyone has the right to liberty and personal integrity .

Arrest , placement in custody and detention are only permitted on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”

The Convention on Legal Assistance and Legal Relations in Civil , Family and Criminal Matters ( signed in GPE on DATE and amended on DATE , “ the DATE Minsk Convention ” ) , to which both GPE and GPE are parties , provides as follows :

“ When executing a request for legal assistance the requested authority should implement domestic legal norms . ORG which seeks legal assistance may ask the other ORG to use the legal norms of the requesting ORG , if those norms do not contradict legal norms of ORG providing legal assistance ... ”

“ CARDINAL . The Contracting Parties shall ... on each other ’s requests extradite persons , who find themselves in their territory , for criminal prosecution or serving a sentence .

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . ”

“ CARDINAL . A request for extradition shall include the following information :

( a ) NORP the title of the requesting and requested authorities ;

( b ) the description of the factual circumstances of the offence , the text of the law of the requesting ORG which criminalises the offence , and the punishment sanctioned by that law ;

( c ) the [ name ] of the person to be extradited , DATE of his birth , citizenship , place of residence , and , if possible , the description of his appearance , his photograph , fingerprints and other personal information ;

( d ) information concerning the damage caused by the offence .

A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order .... ”

“ After a request for extradition is received , the requested ORG immediately takes measures to retrieve and detain a person whose extradition is sought save for those cases when the person can not be extradited . ”

“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition . The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow . A petition for arrest ... may be sent by post , wire , telex or fax .

NORP The person may also be detained without the petition referred to in point CARDINAL above if there are legal grounds to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition .

NORP In case of [ the person ’s ] arrest or detention before receipt of the request for extradition , the other ORG shall be informed immediately . ”

“ CARDINAL . The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested ORG ....

A request for the search ... shall contain ... a request for the person ’s arrest and a promise to submit a request for his extradition .

A request for the search shall be accompanied by a certiﬁed copy of ... the detention order ....

The requesting Contracting ORG shall be immediately informed about the person ’s arrest or about other results of the search . ”

“ CARDINAL . A person arrested pursuant to LAW and LAW shall be released ... if no request for extradition is received by the requested ORG within DATE of the arrest .

A person arrested pursuant to LAW shall be released if no petition issued pursuant to LAW arrives within the time established by the law concerning arrest . ”

“ The requested ORG shall notify the requesting ORG of the place and time of surrender . If the requesting ORG does not accept the person being extradited within DATE of the scheduled date of surrender , that person shall be released . ”

“ Relations concerning extradition issues and criminal prosecution are performed by ORG ( prosecutors ) of the ORG Parties . ”

LAW of DATE ( ORG no . CARDINAL ) , to which GPE is a party , provides as follows :

“ CARDINAL . Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested ORG as a political offence or as an offence connected with a political offence .

The same rule shall apply if the requested ORG has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race , religion , nationality or political opinion , or that that person ’s position may be prejudiced for any of these reasons . ”

“ CARDINAL . In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .

Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from the date of such arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought . ”

The United Nations Convention relating to ORG , adopted on DATE , provided as follows :

“ CARDINAL . No Contracting State shall expel or return ( “ refouler ” ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

NORP The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgment of a particularly serious crime , constitutes a danger to the community of that country . ”

The Federal Law “ On refugees ” ( no . PERSON of DATE ) provided as follows :

“ CARDINAL . The following basic definitions are applied for the purposes of the present Federal Law :

CARDINAL ) A refugee is a person who is not a national of GPE and who , owing to a well - founded fear of persecution for reasons of race , religion , nationality , ethnic origin , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , is unwilling to avail himself of the protection of that country ; or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , is unwilling to return to it ...

“ CARDINAL . A person ... who is granted refugee status ... cannot be expelled against his will to the territory of the ORG of his nationality ( of his former permanent residence ) if the conditions described in LAW ( CARDINAL ) of the present LAW are still in force in that State ... ”

LAW between GPE and GPE ORG , Family and Criminal Cases ( “ the DATE LAW ) , adopted on DATE ( in force since DATE ) provides that the State Parties effect legal relations through their respective Ministers of ORG and the offices of the Prosecutors General .

By virtue of LAW , each ORG applies its own law in order to carry out the other ORG ’s request for legal assistance . Only on an explicit request of another ORG may a ORG to the LAW apply another ORG ’s law in so far as it does not contradict the law of ORG .

Article CARDINAL § CARDINAL of the LAW sets out the requirements for an extradition request . The request should contain the name of the requesting authority , an extract from the requesting ORG ’s law according to which an imputed act or omission constitutes a crime , the name of the person whose extradition is sought , information on his or her nationality , whereabouts , his photo and/or fingerprints where possible , and a reference to the estimation of the damage caused by the criminal offence . A certified copy of a decision on taking the person into custody with the statement of facts should be attached to the request .

Under LAW ( the CCrP – in force at the material time ) wherever a crime is committed , proceedings conducted on NORP territory are always governed by the NORP law on criminal procedure .

A decision to order detention can only be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and CARDINAL of the CCrP ) .

A prosecutor ’s order or court decision ordering detention must be reasoned and justified ( Article CARDINAL ) . The accused must be informed of the detention order and must have the procedure for lodging an appeal explained to him or her ( Article CARDINAL ) .

An investigating authority should issue a report pertaining to each arrest . The report should include the following information : the grounds and reasons for the arrest , its date , time and place , the arrestee ’s explanations , and the time when the report was drawn up . The investigating authority should transmit the report to a prosecutor within TIME . Within TIME following the receipt of the report , the prosecutor should authorise the person ’s detention or release him ( LAW CCrP ) .


CASE OF TSONYO TSONEV v. BULGARIA (No. 3)

Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In a judgment of DATE , which became final on DATE , ORG ( PERSON районен съд ) found the applicant guilty of an offence and sentenced him to CARDINAL months’ imprisonment . In DATE the applicant spent DATE in prison in execution of that sentence .

In a judgment of CARDINAL DATE , which became final on DATE , ORG found the applicant guilty of another offence and sentenced him to QUANTITY months’ imprisonment , suspended .

In a judgment of DATE , which became final on DATE , ORG found the applicant guilty of yet another offence and sentenced him to CARDINAL months’ imprisonment ( see PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , § § CARDINAL , CARDINAL and DATE , DATE ) .

In DATE or DATE the applicant asked ORG to combine the above sentences . On DATE the court decided to combine the sentences imposed in DATE and DATE but not the one imposed in DATE . The resulting sentence , determined in line with the applicable sentencing rules , was CARDINAL months’ imprisonment . Applying a rule allowing the increase of the combined sentence by DATE , and taking into account periods that the applicant had already spent in prison , the court ordered that the total amount of time which the applicant was to serve under the combined sentence should be DATE . He was to serve DATE meted out in DATE separately .

On an appeal by the applicant , on DATE ORG ( PERSON окръжен съд ) upheld that decision . On DATE ORG ( NORP касационен съд ) refused to hear the applicant ’s ensuing appeal on points of law , finding that no appeal lay against ORG decision .

In TIME of CARDINAL September CARDINAL it was discovered that a bag with medicines had been stolen from a pharmacy in GPE TIME . The police inspected the crime scene and took fingerprints , but the ensuing tests could not establish to whom they belonged .

DATE , DATE , police officer GPE , who was in charge of the area where the applicant resided , visited the applicant at his GPE home , where he lived . The officer invited the applicant to the police station , where the applicant apparently confessed to stealing the bag . The applicant then took the officer back to his home and produced the bag . After that both of them went again to the police station , where a record was drawn up stating that the applicant had voluntarily surrendered the bag , explaining that he had found it near a kindergarten . When later testifying at the trial against him , the applicant said that he had voluntarily followed the officer to the station and had been aware that he could refuse to go there . After surrendering the bag , the applicant was charged and interviewed by an investigator . He said that he understood the charge , was aware of his right to counsel but chose not to have one , and would make a statement . He then went on to confess to stealing the bag . He also said that he had not been sure what to do with the medicines and had decided to surrender them to the police . He expressed regret for his actions .

In DATE the police investigator in charge of the case interviewed witnesses and gathered written and expert evidence . On DATE he proposed that the applicant be brought to trial .

On DATE the applicant was indicted . His trial took place on DATE and DATE and CARDINAL and DATE before ORG . At the outset the court apprised the applicant of his right to counsel , but he said that he did not wish to have one . The court heard as witnesses the owner and an employee of the pharmacy , QUANTITY police officers who had patrolled the area on TIME the theft , the applicant ’s father and officer GPE It also admitted in evidence , among other items , written statements by other officers who had patrolled the area , and the record stating that the applicant had surrendered the bag . The applicant initially objected to officer GPE testifying on the ground that he had taken part in the investigation . However , noting from documents presented to him in the courtroom that this was not the case , he withdrew his objection and the court allowed officer GPE to testify .

Officer GPE said that , having learned about the theft , he had visited the applicant at his GPE home and had invited him to go to the police station for “ a conversation ” , because the applicant ’s name featured on a list of offenders who had previously committed thefts . During the conversation the applicant had confessed to committing the theft , specifying that he had done so to obtain money which he needed for his defence in other criminal cases against him , but not providing any details as to the manner in which he had gone about perpetrating the offence . He had also agreed to produce the stolen medicines , and , although at first asserting that they were not at his GPE home , had later on admitted that they were there . He had then taken officer GPE to his GPE home and had produced the medicines . After that , the officer and the applicant had returned to the police station , where the applicant had signed a record to the effect that he was surrendering the medicines voluntarily . This had obviated the need formally to impound them .

In his closing speech the applicant pointed out , inter alia , that officer GPE was employed by the criminal investigation department of ORG , and was in charge of the area in which the theft had taken place and where the applicant lived . He had thus been under pressure to identify the person who had committed the theft . His testimony was the only evidence linking the applicant to the commission of the offence .

On DATE ORG found the applicant guilty and sentenced him to DATE and QUANTITY months’ imprisonment . It based its finding that the applicant had stolen the medicines chiefly on the testimony of officer GPE It noted that that testimony was fully corroborated by the statements made by the applicant during his interview with the investigator , but added that it could not take those statements into account because they had not been given in the presence of a judge ( see paragraph CARDINAL below ) . The court went on to say that officer GPE ’s testimony was corroborated , albeit indirectly , by the statements of the officers who had patrolled the area around the pharmacy at the time when the theft had taken place .

In addition , the court of its own motion decided to combine the sentences imposed in DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) . The resulting sentence , determined in line with the relevant sentencing rules , was QUANTITY months’ imprisonment . Applying a rule which allowed the combined sentence to be increased by DATE , and taking into account the periods which the applicant had already spent in prison , the court ordered that the total amount of time which he was to serve under the combined sentence was DATE .

NORP In its judgment the court noted that the applicant was unemployed and was financially dependent on his parents .

NORP The applicant appealed to ORG , arguing that it had not been proved that he had stolen the medicines , and , in the alternative , that his sentence was too harsh . He also said , without giving particulars , that the proceedings against him had been in breach of the rules of criminal procedure and of the Convention .

The court examined the case at CARDINAL hearings . At DATE of those hearings it heard a number of witnesses . At the third , noting that a judge who had taken part in the first CARDINAL hearings could not continue to sit in the case , the court decided to start hearing the case afresh .

At that third hearing , held on DATE , the applicant called CARDINAL witnesses with a view to undermining officer GPE ’s credibility . The court acceded to his request over the prosecution ’s objection . The first witness said that when investigating a theft of which he had been suspected by officer GPE of committing , officer GPE had threatened him that he would frame him in the same way in which he had framed the applicant . The second witness , detained in the same facility as the applicant , said that officer GPE , when arresting him in relation to other offences , had enquired whether he had been aware of any offences committed by the applicant . The tone of his voice had indicated that he bore a personal animosity towards the applicant and wished to frame him . After that the court heard officer GPE , who repeated his account of the events of DATE . He additionally said that he knew the witnesses called by the applicant , who were either suspected of criminal offences or had previous convictions , and that their statements were not truthful . The court organised a confrontation between them and officer GPE All CARDINAL reiterated their positions . Officer PERSON was then crossexamined by the applicant .

At the close of the hearing the applicant , saying that he could not afford to retain counsel , asked the court to appoint CARDINAL for him . The prosecution objected , observing that the applicant had not made such a request during the preliminary investigation and before the firstinstance court . The applicant retorted that he had changed his mind . The court , relying on a declaration about the applicant ’s financial situation , decided to appoint counsel for him under LAW ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) .

At the last hearing , held on DATE , the court once again heard officer GPE It also heard the parties’ closing arguments . The applicant pointed out that the only evidence linking him to the commission of the offence was the officer ’s testimony , which was highly suspect and could be the result of collusion between him and the prosecution . Moreover , the officer bore a personal animosity towards him because he had dealt with him on many previous occasions .

On DATE ORG upheld the applicant ’s conviction and sentence . It agreed with the lower court ’s findings of fact , but observed that it had erred in even mentioning the statement made by the applicant during his interview with the investigator – this was not admissible evidence . However , there was other evidence showing that the applicant had committed the theft . This was , in the first place , officer GPE ’s testimony , which was coherent and reliable . The court analysed in detail the challenge to officer GPE ’s credibility and concluded that it could not be thrown into doubt by the statements of the CARDINAL witnesses called by the applicant . It also observed that officer GPE ’s testimony was corroborated by indirect evidence , such as the record of voluntary surrender signed by the applicant . After that the court gave detailed reasons why it did not believe the statements of the CARDINAL witnesses who had purported to provide an alibi for the applicant and the testimony of the applicant ’s father .

The court additionally dealt with the question of the combination of the sentences imposed in DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) , and upheld the lower court ’s ruling on that point .

The applicant appealed on points of law . In a twelvepage additional brief he argued that the lower courts had erred in assessing the evidence . In particular , they had lent too much credence to officer GPE ’s testimony , which was not supported by other evidence , was unspecific , hearsay , based on an informal conversation which had taken place before the institution of criminal proceedings against the applicant , and had been possibly due to officer GPE ’s personal animosity towards the applicant . The lower courts had also failed to analyse properly the testimony of the witnesses called by the applicant . The applicant went on to argue that the lower courts had incorrectly combined his earlier sentences . Lastly , he asked the court to reduce his sentence with a view to providing reparation for the excessive length of the proceedings against him . The brief , although signed by the applicant , gave the impression of having been drafted by a lawyer : it used terms of art , contained numerous citations of caselaw and referred to the applicant in the third person .

On DATE the applicant asked ORG to appoint counsel for him . Referring to LAW ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , he pointed out that he did not have the means to retain one because he was unemployed , that he risked imprisonment , and that he was unable to conduct effectively his defence in person .

ORG heard the appeal on DATE . The hearing was not attended by the applicant , but was attended by a public prosecutor . The prosecutor opposed the applicant ’s request for the appointment of counsel , saying that this was not mandatory . The court turned the applicant ’s request down . It said that the applicant had not pointed out why he had been unable to retain counsel , that he had had a courtappointed counsel in the proceedings before the lower court , and that the manner in which his appeal on points of law had been drafted made it clear that it had been prepared with the help of a qualified lawyer . After that , the court heard the prosecutor , who submitted that the applicant ’s appeal should be dismissed .

On DATE ( реш. № CARDINAL от CARDINAL март DATE г. по н. д. № CARDINAL г. , ORG , ORG н. о. ) ORG upheld all parts of the lower court ’s judgment save the part in which it had confirmed the increase of the applicant ’s combined earlier sentence to DATE . It found that there had been no grounds to increase that sentence from DATE , because the applicant had served it DATE and an increase would not further the aims of the punishment . As for the merits of the criminal case against the applicant , the court observed that , in the absence of breaches of procedural rules on the part of the lower courts , it was not competent to deal with arguments concerning the assessment of evidence and those ORG findings of fact . There was no appearance of a breach of the rules of procedure and no error in the application of the substantive law . The applicant ’s arguments concerning the establishment of the facts had been rejected by the lower courts after careful consideration of all the evidence . The appellate court had allowed the applicant to call witnesses and had reexamined officer GPE The claim that it had failed to examine the case with due care was therefore illfounded . The lower ORG findings of fact were based on evidence which had been properly admitted and assessed .

Article CARDINAL § § CARDINAL and QUANTITY DATE , superseded on DATE by LAW and CARDINAL of LAW DATE , provided that a conviction could not rest solely on the confession of the accused , and that a confession did not relieve the authorities of their duty to gather other evidence .

The accused may refuse to give explanations ( LAW of LAW and ORG CARDINAL § CARDINAL and CARDINAL § DATE Code ) . Witnesses may also refuse to make statements or give answers that would incriminate them ( Article CARDINAL § CARDINAL of LAW and LAW ) . Unlike LAW , which was silent on the point , DATE Code specifically provides , in LAW , that witnesses have the right to consult a lawyer if they consider that by answering a question they may incriminate themselves .

Article CARDINAL § CARDINAL of the DATE Code provided that a person who had taken part in the proceedings in another capacity could not be a witness . An exception was made for former accused , private prosecutors , civil claimants , civil defendants , and persons who had attested the carrying out of investigative steps ( поемни лица ) . LAW maintained the same position . Its paragraph CARDINAL specifies that the bar also applies to persons who have carried out investigative actions or conducted trial proceedings even if the records of those proceedings have not been drawn up in line with the PERSON ’s requirements .

Article CARDINAL § CARDINAL of the DATE Code , as amended in DATE , provided that counsel for the accused was entitled to take part in the proceedings from the point when the accused had been arrested or charged . LAW , as amended in DATE , provided that the authorities had to explain to the accused that he or she was entitled to the assistance of counsel , and to give him or her the opportunity to contact a counsel . It went on to specify that the authorities could not take any investigative steps until they had done so . LAW and DATE Code maintained the same position , with slightly different wording .

Following an amendment that came into force on DATE , LAW allowed the admission in evidence of statements made by the accused during interrogation in the course of the pretrial investigation only if the interrogation had taken place in the presence of a judge . LAW DATE Code kept the same rule , but paragraphs CARDINAL of that Article allow for exceptions in certain circumstances , with paragraph CARDINAL adding the proviso that a conviction can not be based solely on statements not made before a judge .

Points ( CARDINAL ) to ( CARDINAL ) of LAW DATE Code listed certain situations in which an accused who could not retain counsel had to be provided with courtappointed counsel . None of these is relevant to the present case . On DATE a new point CARDINAL was added . It was part of a comprehensive overhaul of the LAW intended to bring it into line with the LAW . It was based on LAW ( c ) of the LAW , and provided that the appointment of counsel was mandatory if the accused could not afford CARDINAL but wished to be legally represented and the interests of justice so required . The text of LAW ( CARDINAL ) of the DATE Code matches exactly that of LAW ( CARDINAL ) of LAW .

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW , as originally enacted , provided that the participation of counsel in the proceedings before ORG was compulsory in all cases , with the result that counsel had to be appointed if not retained by the accused ( LAW ) . However , in DATE the Government laid before ORG a bill for the amendment of the LAW , which proposed , among other things , the repeal of that provision . The explanatory notes to the bill stated that the system of mandatory appointment of counsel before ORG in all cases without exception had proved ineffective and that the accused did not show any great interest in it . Moreover , LAW ) often coincided with other grounds for the mandatory appointment of counsel , for instance those predicating such appointment on the subject matter of the case or the situation of the accused . ORG enacted the bill in DATE and it became law on DATE .


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

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

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

In DATE PERSON , one of the applicant ’s clients , was detained on suspicion of having attempted to defraud a creditor . On DATE the applicant was heard as a witness .

On DATE the applicant was charged with an attempt to defraud a creditor together with PERSON lawyer , he had allegedly tried to transfer ORG ’s assets to certain private companies controlled by acquaintances and had prepared documents certifying non - existent rights and obligations to the detriment of not only the creditor , a private company , C. , but also of ORG in connection with enforcement proceedings .

A search of the applicant ’s home and office was carried out on CARDINAL and DATE .

On DATE his detention was ordered under sections CARDINAL(CARDINAL)(b ) and CARDINAL ) of LAW . The judge at the GPE CARDINAL ORG found that there was a danger of the applicant ’s influencing witnesses , referring in particular to GPE and CARDINAL other persons . He did not accept the applicant ’s pledge and a written guarantee offered in return for his release .

On DATE ORG quashed that order and decided anew , ordering the applicant ’s pre - trial detention pursuant to sections CARDINAL(CARDINAL)(a ) , ( b ) and CARDINAL ) of LAW , finding his detention necessary in order to prevent his absconding and influencing witnesses . The court , having regard to the contents of the file , found that there was a strong suspicion that the applicant had committed the offence . It stated that the applicant might influence witnesses who would have to give evidence again ( as their first examination had taken place before the applicant had been charged , which made it inapplicable to his case ) , that it appeared from a transcript of his telephone conversation with PERSON that some documents relating to the criminal proceedings might be concealed , and that he was under the threat of a heavy prison sentence and had contacts abroad , which justified the court ’s concern that he might abscond and avoid the criminal proceedings . Referring to the applicant ’s new status as an accused , the court dismissed his argument that should he have wished to abscond , he could already have done so DATE ( when PERSON had been charged ) and DATE ( when he himself had been charged ) . The court refused the pledge offered by the applicant as well as the guarantee offered by third persons .

On DATE the applicant applied to be released .

On DATE ORG decided to release the applicant on bail , requiring the payment of CARDINAL NORP korunas ( DATE CARDINAL,CARDINAL euros ( ORG ) ) .

On DATE ORG , on an appeal by ORG , quashed that decision for formal shortcomings and remitted the application for release to ORG for further consideration .

On DATE ORG decided that there was no longer any risk that the applicant would influence witnesses , but considered that his continued detention was necessary under section CARDINAL(CARDINAL)(a ) of LAW as there was a risk that he might abscond .

On DATE , the prosecutor , further to an application lodged by the applicant on DATE , decided to release him on bail , requiring the payment of CZK MONEY ( EUR CARDINAL ) .

On DATE the applicant lodged a constitutional appeal against ORG decision of DATE and that of ORG of DATE , alleging that they had violated his rights to a fair trial , judicial protection and personal liberty and invoking , inter alia , Article CARDINAL § CARDINAL and LAW . He claimed that the decisions ordering his pre - trial detention were not based on concrete facts indicating a risk of his absconding or influencing witnesses .

On DATE ORG ( PERSON ) dismissed the constitutional appeal as ill - founded .

The criminal proceedings are still pending .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE ( no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .

At the material time , the relevant provisions of LAW read as follows :

“ ( CARDINAL ) An accused person may be remanded in custody only if there exist specific grounds for believing that he or she

( a ) will abscond in order to avoid prosecution or punishment , in particular if his or her identity can not be immediately established , if he or she has no permanent residence or if he or she is liable to a heavy penalty ;

( b ) will try to influence the witnesses or co - accused who have not been heard yet or otherwise frustrate the investigation into the facts which are of importance for the conduct of the proceedings ; or

( c ) will carry on the criminal activity for which he or she is prosecuted , will accomplish an offence attempted by him or her or will commit an offence which he or she was preparing or threatening to commit .

( CARDINAL )


CASE OF STAVEBNA SPOLOCNOST TATRY POPRAD, S.R.O. v. SLOVAKIA

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant is a company with limited liability , with its registered office in GPE .

On DATE the applicant company ’s predecessor sued a private limited company for a sum due for construction works carried out by the former .

Courts at CARDINAL levels granted the claim in part , but ORG , in proceedings on the defendant ’s appeal on points of law , quashed the lower courts’ judgments on DATE .

NORP In subsequent proceedings , in DATE , the plaintiff argued that the relevant part of the contract was void , as it had been signed by Mr PERSON , who did not have the authority to act on behalf of the defendant company , on DATE .

On DATE the ORG dismissed the action . It established that the parties had concluded a contract for the reconstruction of a spa house on DATE . The contract included a provision under which the plaintiff was liable to pay a penalty in case of delay . That penalty amounted to PERCENT of the contractual price for DATE of delay , the maximum amount being PERCENT . The court established that the work under the contract had been completed on DATE instead of CARDINAL DATE as agreed in the contract . The defendant had therefore rightly deducted the sum in issue from the payment of the price .

As to the above argument concerning the validity of the relevant part of the contract , ORG held that PERSON had been elected to the company ’s board of directors at an extraordinary general meeting held on DATE . He had therefore been authorised to sign the contract on the defendant ’s behalf . The fact that he had been entered in that capacity in the ORG register on CARDINAL DATE could not affect the position , as such an entry was of a declaratory nature only .

On DATE the applicant company appealed . Its representative argued that the first - instance court had disregarded the relevant evidence when concluding that PERSON had been authorised to sign the contract for the defendant company . In particular , the applicant company relied on TIME of a meeting of that company ’s supervisory board held on DATE . Point CARDINAL on the agenda was entitled “ Election of the Board of Directors ” and the minutes indicate that “ the supervisory board approved PERSON as a new member of the company ’s board of directors ” . The applicant further argued that there was nothing to prove that PERSON had been effectively appointed to that post at the general meeting held on DATE , contrary to what was stated in ORG judgment .

On DATE ORG upheld ORG judgment of DATE . As regards the standing of PERSON to sign the contract in particular , it held that ORG had correctly established that that person had been elected as a member of the company ’s board of directors at the general meeting held on DATE . He had therefore been entitled to sign the contract on DATE . According to CARDINAL of the documents from the court ’s file , on CARDINAL DATE the defendant company had requested that the responsible court register PERSON as a member of the company ’s board of directors with effect from DATE . The judgment became final on DATE .

On DATE the applicant company appealed on points of law against the judgment of DATE . It maintained that the appeal court had not examined its arguments concerning the evidence in the case and the standing of PERSON to sign the contract in issue on the defendant company ’s behalf . The applicant company further complained that at the end of the hearing before the appeal court its representative had not been allowed to sum up the arguments or to submit final comments on the case . The applicant company had thus been prevented from acting before the court , which was a reason justifying the admissibility of an appeal on points of law within the meaning of Article CARDINAL ) of LAW .

On DATE the applicant company lodged a complaint under LAW . It argued that its right under LAW to a fair hearing had been breached by the conduct of ORG and its decision of DATE . In particular , ORG had disregarded the applicant company ’s arguments concerning the standing of PERSON to act on the defendant company ’s behalf .

The Constitutional Court ( First Chamber ) dismissed that complaint on DATE . It held , with reference to LAW ) of LAW , that an appeal on points of law was available against the appeal court decision and that the applicant company was required to use that remedy first . The relevant part of its complaint was therefore premature .

On CARDINAL DATE ORG ( chamber dealing with appeals on points of law ) dismissed the applicant company ’s appeal on points of law ( see paragraph CARDINAL above ) as inadmissible . According to the decision , “ the applicant company was aware of the fact that the admissibility criteria for an appeal on points of law under LAW and CARDINAL of the Code of Civil Procedure had not been met , as it alleged a breach of its right of access to court , which is a ground for an appeal on points of law listed in Article CARDINAL ) of LAW ” .

ORG further held that the arguments concerning the assessment of evidence and determination of the point in issue did not permit the conclusion that the applicant company had been prevented from acting before the appeal court within the meaning of Article CARDINAL ) of LAW . Such arguments could be raised only in cases where an appeal on points of law was admissible on CARDINAL of the grounds enumerated in Articles CARDINAL or CARDINAL of the Code of Civil Procedure .

As to the other argument , that the representative of the applicant company had been prevented from making final submissions at the hearing before the appeal court , ORG held that the plaintiff had had ample opportunity to present its arguments in the course of the hearing . No new evidence requiring comments from the parties had been taken . The applicant company ’s procedural rights had therefore not been infringed in the proceedings leading to the appellate court ’s judgment of DATE . An appeal on points of law under LAW was therefore not available in that context .

On DATE the applicant company lodged a fresh constitutional complaint . It complained under LAW that its right to a fair hearing had been breached by the judgment of ORG of DATE , ORG ( appellate chamber ) judgment of DATE and the decision of ORG ( chamber dealing with appeals on points of law ) of CARDINAL DATE . The applicant company relied on the arguments which it had submitted in the proceedings before the ordinary courts . In particular , it alleged that the courts at the first and second levels of jurisdiction had disregarded the position in the case and the plaintiff ’s arguments that the contract was void . The applicant further complained that its representative had been unable to make final submissions to the appeal court and that it had obtained no redress in that respect in the proceedings on the appeal on points of law .

The Constitutional Court ( Fourth Chamber ) rejected the complaint on DATE . It held that the complaint about ORG and ORG judgments of DATE and DATE had been lodged after the expiry of the statutory time - limit of DATE . It declared manifestly ill - founded the complaint about the ORG decision of CARDINAL DATE . It held , in particular , that ORG had considered the applicant company ’s arguments appropriately and had given sufficient and relevant reasons for its decision on the applicant company ’s appeal on points of law .

Article CARDINAL of the LAW provides :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of a failure to act , ORG may order [ the authority ] which violated the rights or freedoms in question to take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order the authority concerned to abstain from violating fundamental rights and freedoms ... or , where appropriate , order those who violated the rights or freedoms set out in paragraph CARDINAL to restore the situation existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

Under section CARDINAL(CARDINAL ) of LAW DATE , a complaint to ORG is admissible only where the applicant has used effective remedies provided for by the law to protect his or her fundamental rights . Paragraph CARDINAL of the same section provides that a complaint to ORG can be lodged within DATE of a decision finally taking effect or from the date of a contested measure or notification of another interference with a person ’s rights .

Section CARDINAL(CARDINAL ) of LAW DATE provides that , when a violation of fundamental rights or freedoms is found , ORG may order the authority liable for that violation to proceed in accordance with the relevant rules . It may also return the case to the authority concerned for further proceedings , prohibit the continuation of the violation or , as the case may be , order the restoration of the situation existing prior to the violation .

Article CARDINAL § CARDINAL provides that parties can sum up their proposals and comment on the evidence and the merits of a case at the end of a court hearing .

NORP The relevant provisions concerning appeals on points of law provide :

“ Article CARDINAL

An appeal on points of law against any decision of the appeal court is admissible where ...

f ) a party has been prevented , by the appeal court ’s conduct , from acting before the court ...

Article CARDINAL

... CARDINAL . An appeal on points of law is also admissible against an appeal court judgment confirming the first - instance judgment where the appeal court ...

b ) upheld a judgment deciding on the matter in a different manner than an earlier delivered judgment because the first - instance court was bound by the legal view of the court which had quashed the earlier judgment ... ”

In its decision no . CARDINAL Cdo CARDINAL/CARDINAL of DATE ORG found that availability of an appeal on points of law under LAW ( b ) did not extend to situations where an appeal court upheld a fresh first - instance judgment deciding on the matter in a different manner than in a judgment delivered earlier as a result of the fact that the first - instance court was bound by the legal view expressed by the court which had quashed such an earlier judgment in the context of proceedings on appeal on points of law . Otherwise , the last - mentioned court would be called upon to review , contrary to the purpose of proceedings on an appeal on points of law , its own legal view expressed when it quashed the original first - instance judgment in the case . This decision was included in the collected ORG judgments and decisions under number CARDINAL/CARDINAL with effect from DATE .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s mother , PERSON , died .

On DATE ORG ( PERSON sodišče na PERSON ) received the coroner ’s certificate ( smrtovnica ) .

On DATE the applicant was given notice of the court ’s intention to hold a hearing in the inheritance proceedings and received an invitation to attend it .

The court held hearings on DATE and DATE .

Meanwhile , on DATE , the applicant lodged written submissions .

On DATE the court issued an interim decision concerning the inheritance of PERSON ’s ownership certificate ( lastninski certifikat ) .

On DATE and DATE hearings were held . They were adjourned so as to allow the heirs to reach an agreement in respect of the inheritance . The subsequent negotiations were apparently unsuccessful .

On DATE the applicant lodged written submissions .

At the hearing held on DATE the court decided to stay the proceedings and instructed the parties to institute separate contentious proceedings with a view to determining the extent of PERSON ’s estate which was disputed by the heirs .

On DATE CARDINAL of the heirs lodged a civil claim with ORG ( Okrožno sodišče v GPE ) in accordance with ORG instructions ( paragraph CARDINAL above ) . On DATE the civil proceedings ended with an agreement between the heirs and the inheritance proceedings subsequently continued .

In the meantime , on DATE ORG rejected the applicant ’s request for interim measures . In addition , on DATE ORG enota GPE ) issued a decision indicating that the farmland which was part of PERSON ’s estate was not under the special protection which would prevent its division . ORG received that decision on DATE .

On DATE ORG issued a decree of distribution ( sklep o dedovanju ) dividing the remainder of PERSON ’s estate ( see paragraph CARDINAL above ) between her QUANTITY daughters . The decree was served on the applicant on an unspecified date in DATE .

Section CARDINAL of LAW ( Official Gazette SRS , no . DATE , with amendments , PERSON dedovanju ) provides that inheritance proceedings should begin ex officio as soon as the court learns that somebody has died or has been pronounced dead . In inheritance proceedings the court should establish the heirs , the property which is to be included in the deceased ’s estate and the rights of heirs , beneficiaries and others ( section CARDINAL ) .

According to section CARDINAL , after receiving the coroner ’s certificate ( a document concerning personal data about the deceased and his estate and information relevant for the inheritance , normally prepared by a registrar – matičar ) , the court examines whether it is competent to hold a hearing and , if not , sends the case to the competent court . According to sections CARDINAL and CARDINAL , the court must hold a hearing if the deceased owned immovable property . It is the court ’s obligation to invite those who might be affected to the hearing ( section CARDINAL ) .

The Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) has been implemented since DATE . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for a party to court proceedings , a participant under the LAW governing non - contentious proceedings and an injured party in criminal proceedings .

Section CARDINAL lays down the following transitional rules in relation to applications already pending before the ORG :

“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney ’s ORG within DATE of receipt of the proposal of the ORG Attorney ’s ORG . The State Attorney ’s Office shall decide on the proposal as soon as possible and within DATE at the latest . ...

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE after the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE after receiving the ORG Attorney ’s ORG reply that the party ’s proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”


Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 11 - Freedom of assembly and association

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

The applicant claimed that until DATE she had been permanently residing in a house she owned at DATE , GPE ( northern GPE ) . She also owned a garden at NORP and CARDINAL fields with trees at GPE ( in the locality known as “ FAC ” ) , all in LOC .

According to the applicant , her house had a surface - area of QUANTITY , with CARDINAL large drawing rooms , a spacious dining room and kitchen , CARDINAL bedrooms , CARDINAL bathrooms , a storeroom and verandas . It was surrounded by a QUANTITY . m garden and furnished mainly with period antiques and luxury items .

In support of her claim to ownership , the applicant produced copies of the relevant certificates of ownership of NORP - occupied immovable properties issued by GPE . According to these documents , the applicant 's properties were registered as follows :

( a ) Kyrenia / Pano Kyrenia , plot no . DATE , sheet / plan CARDINAL/CARDINAL.CARDINAL.CARDINAL , registration no . PERSON , house with garden ;

( b ) PERSON , plot no . CARDINAL/CARDINAL/CARDINAL , sheet / plan CARDINAL , garden / orchard ; area : QUANTITY . m ;

( c ) Kyrenia / Karmi , plot no . CARDINAL , sheet / plan FAC , field ; area : CARDINAL sq . m ;

( d ) PERSON , plot no . CARDINAL , sheet / plan FAC , field ; area : CARDINAL sq . m ;

( e ) PERSON , plot no . CARDINAL/CARDINAL , sheet / plan FAC , field ; area : CARDINAL sq . m.

Since the DATE NORP intervention , the applicant has been deprived of her properties , which were located in the area under the occupation and control of the NORP military authorities , who prevented her from having access to and using her properties .

On DATE , the applicant joined an anti - NORP demonstration in the ORG area in GPE in which the applicants in the GPE and PERSON v. GPE and PERSON v. GPE cases ( see below ) also took part .

According to an affidavit sworn by the applicant at GPE ORG on DATE , the demonstration of DATE was peaceful and was held on DATE of the NORP intervention in GPE , in support of the missing persons and to protest against human- rights violations . The applicant and other women had planned to gather in the grounds of ORG and to stage a sit - in in protest against the occupation of the northern part of the island . They also asked the Bishop of PERSON to conduct a service in ORG , which was located near the school .

When the applicant arrived , the school grounds were filled with a group of mostly young women , who were singing . The applicant stood near a water tank . She noticed the presence of ORG soldiers and NORP policemen armed with batons .

The ORG officers invited the demonstrators to leave the LOC . However , within TIME , the NORP policemen had rushed towards them . Some of the women were grabbed by their clothes and hit with guns and batons . The applicant herself was hit and pushed . She received what she described as a “ terrible blow in the right leg beneath the tibia ” . She realised she had been hit with a sharp object , namely a bayonet wielded by a NORP soldier . Her leg started to bleed profusely and she felt herself drifting into unconsciousness . She shouted : “ Help , help , please , I am losing my leg ” . Some demonstrators put her on a stretcher and she was taken by ambulance to ORG .

At the hospital , her wound was stitched internally and externally . She was told to take DATE absolute rest . For DATE , the applicant suffered considerable pain in her leg . She could not walk or even put weight on the leg and was forced to use crutches . She experienced pain with changes in the weather . She continued to have problems climbing stairs and the scar on her leg remained visible .

DATE had passed since the demonstration , CARDINAL of the witnesses who saw the wound being inflicted ( QUANTITY friends and the editor of a local newspaper ) had already died . However , an affidavit sworn by a witness , PERSON , corroborated her version of events .

In support of her claim of ill - treatment , the applicant produced a medical certificate issued on DATE by Doctor PERSON , a specialist orthopaedic surgeon practising in GPE , which reads as follows :

“ The [ applicant ] was injured on DATE by NORP following an attack on women near PERSON in GPE in the ORG . The findings of the examination were :

Injury to the right lower limb of the upper third of the tibia with an open wound QUANTITY long . The wound was caused with a sharp object .

Treatment of the patient and its course :

Surgical cleaning of the wound ;

Stitching up of the wound ;

Pharmaceutical treatment ;

Regular dressing of the wound ;

ORG rest in bed for DATE with leg supported by pillows ;

The stitches removed DATE ;

The patient [ should walk ] with crutches for DATE ;

Present condition :

Evident ugly scar , QUANTITY in the upper third of the tibia , transversal ;

Loss of feeling in the area of the wound . ”

The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti - NORP sentiment . The demonstrators , supported by the NORP - Cypriot administration , were demanding that the “ GPE ” in GPE should be dismantled . Some carried NORP flags , clubs , knives and wire - cutters . They were acting in a provocative manner and shouting abuse . The demonstrators were warned in NORP and LANGUAGE that unless they dispersed they would be arrested in accordance with the laws of the “ GPE ” . The applicant was arrested by the NORP - NORP police after crossing the ORG buffer zone and entering the area under NORP - Cypriot control . The NORP - NORP police intervened in the face of the manifest inability of the NORP - Cypriot authorities and ORG in GPE to contain the incursion and its possible consequences .

No force was used against demonstrators who did not intrude into the “ GPE ” border area and , in the case of demonstrators who were arrested for violating the border , no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned . No one was ill - treated . It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing . Had the NORP police , or anyone else , assaulted or beaten any of the demonstrators , the ORG Secretary General would no doubt have referred to this in his report to ORG .

NORP In his report of DATE on the ORG operations in GPE , the ORG Secretary General stated , inter alia :

“ A serious situation , however , arose in DATE as a result of a demonstration by NORP Cypriots in GPE . The details are as follows :

( a ) In TIME of DATE , some CARDINAL NORP Cypriot demonstrators , mostly women , forced their way into the ORG buffer zone in the ORG area of GPE . The demonstrators broke through a wire barrier maintained by ORG and destroyed an ORG observation post . They then broke through the line formed by ORG soldiers and entered a former school complex where ORG reinforcements regrouped to prevent them from proceeding further . A short while later , NORP - Cypriot police and security forces elements forced their way into the area and apprehended QUANTITY persons , CARDINAL of them women ;

( b ) The ORG school complex is situated in the ORG buffer zone . However , the NORP forces claim it to be on their side of the cease - fire line . Under working arrangements with ORG , the NORP - Cypriot security forces have patrolled the school grounds for DATE within specific restrictions . This patrolling ceased altogether as part of the unmanning agreement implemented DATE ;

( c ) In TIME of QUANTITY DATE , CARDINAL NORP Cypriots gathered at the main entrance to the ORG protected area in GPE , in which the ORG headquarters is located , to protest the continuing detention by the NORP - Cypriot authorities of those apprehended at PERSON . The demonstrators , whose number fluctuated CARDINAL , blocked all ORG traffic through this entrance until DATE , when the NORP - Cypriot authorities released the last QUANTITY detainees ;

( d ) The events described above created considerable tension in the island and intensive efforts were made , both at the ORG headquarters and at GPE , to contain and resolve the situation . On DATE , I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the ORG buffer zone as well as their responsibility to ensure that that area was not violated . I also urged the NORP - Cypriot authorities to release without delay all those who had been detained . On DATE , the President of ORG announced that he had conveyed to the representatives of all the parties , on behalf of the members of ORG , the ORG 's deep concern at the tense situation created by the incidents of DATE . He also stressed the need strictly to respect the ORG buffer zone and appealed for the immediate release of all persons still detained . He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations . ”

Section CARDINAL of LAW reads as follows :

“ Where CARDINAL or more persons assemble with intent to commit an offence , or , being assembled with intent to carry out some common purpose , conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace , or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly .

It is immaterial that the original assembly was lawful if , being assembled , they conduct themselves with a common purpose in such a manner as aforesaid .

When an unlawful assembly has begun to execute the purpose , whether of a public or of a private nature , for which it assembled by a breach of the peace and to the terror of the public , the assembly is called a riot , and the persons assembled are said to be riotously assembled . ”

According to section CARDINAL of LAW , any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for DATE .

Section CARDINAL of the Criminal Code provides :

“ Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour , and is liable to imprisonment for DATE , and his arms or weapons shall be forfeited . ”

According to section CARDINAL of LAW , it is an offence to carry a knife outside the home .

The relevant part of LAW , section CARDINAL of GPE states :

“ ( CARDINAL ) Any officer may , without warrant , arrest any person -

( b ) who commits in his presence any offence punishable with imprisonment ;

( c ) who obstructs a police officer , while in the execution of his duty ... ”

Section CARDINAL of Law No . CARDINAL/CARDINAL states :

“ ... Any person who enters a prohibited military area without authorization , or by stealth , or fraudulently , shall be tried by a military court in accordance with LAW ; those found guilty shall be punished . ”

Subsections CARDINAL ( CARDINAL ) and ( CARDINAL ) of the Aliens and Immigration PERSON read as follows :

“ CARDINAL . No person shall enter or leave the Colony except through an approved port .

Any person who contravenes or fails to observe any of the provisions of subsections ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding QUANTITY or to both such imprisonment and fine . ”


Remainder inadmissible;No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);No violation of Art. 34;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and is currently detained in GPE pre - trial detention centre No . CARDINAL ( Слідчий ізолятор № CARDINAL м. Харкова – “ the GPE ” ) , GPE .

On DATE the applicant was arrested on suspicion of theft and inflicting grievous bodily harm causing the death of PERSON

On DATE the ORG authorised the applicant 's pre - trial detention . The court indicated that the applicant was suspected of committing a serious crime , had been previously convicted on many occasions , had had negative character assessments , drank excessively and did not work . Therefore , the court was of the opinion that the applicant might abscond , commit other crimes or hinder the investigation . The applicant did not appeal against this decision .

On DATE , on completion of the preliminary investigation , the applicant 's criminal case was sent to the court .

On DATE ORG rejected the applicant 's request for release . The parties did not submit a copy of this decision .

On DATE ( in some submissions the applicant refers to DATE ) the applicant was placed in the GPE . The applicant stated that he had requested his release as he was suffering from cancer .

NORP Immediately on his arrival , the applicant complained about his health problems but was examined and diagnosed only DATE .

NORP In DATE the applicant was diagnosed with liver cirrhosis and advanced cancer of the left kidney with metastasis in the lungs . The applicant received symptomatic treatment including the use of narcotic analgesics but , according to him , the quantity of analgesics was not sufficient given the advanced stage of his cancer .

On DATE ORG ordered a medical examination of the applicant in order to establish the severity of his condition . The applicant was not provided with any medical treatment .

DATE the medical examination of the applicant took place , confirming the previous diagnosis .

The applicant 's representative in the criminal proceedings , allegedly PERSON . , lodged numerous requests with the court for the applicant to be released in view of his serious state of health , but to no avail . No copies of these requests or the court 's refusals were submitted by the applicant .

On several occasions DATE CARDINAL times – the applicant was escorted to court hearings which took place QUANTITY away from the GPE . The applicant stated that the conditions in which he was transported , given his serious state of health , had caused him extensive suffering . In particular , he had to wait in a room measuring QUANTITY for the arrival of the prison van . The trip lasted TIME and the applicant was not fed or provided with any medical assistance . The applicant stated that any movement had been painful for him and that being transported to the courthouse had caused him severe distress ; on DATE occasions his health had seriously deteriorated as a result .

From DATE the applicant stayed in ORG , where he received treatment for an injury to the left hand , lymphangitis ( an inflammation of the lymphatic channels ) of his left arm and pneumonia .

On DATE the applicant was placed in the GPE .

On arrival at the GPE the applicant complained about headaches and pain in the right part of his chest . On DATE he was diagnosed with pneumonia and placed in the hospital wing of the GPE . However , on DATE he was transferred to ORG ( Міська клінічна лікарня № CARDINAL м. Харкова ) where he stayed until DATE . During his stay in the clinic , the applicant was diagnosed with cancer .

On DATE and DATE the applicant was examined in ORG ( Харківський обласний клінічний онкологічний диспансер ) and diagnosed with cancer of the left kidney . On his discharge from the hospital he was prescribed symptomatic treatment .

On DATE the applicant was returned to the GPE . He was diagnosed with advanced cancer with metastasis , chronic hepatitis and vasculitis ( a heterogeneous group of disorders that are characterised by inflammatory destruction of blood vessels ) and placed in the hospital wing , where he stayed until DATE .

NORP Since DATE the GPE authorities have several times requested ORG and ORG to accelerate the proceedings in the applicant 's case or to order the applicant 's release but , apparently , to no avail . No copies of such requests or decisions taken in respect of them have been provided to this ORG .

The applicant also stayed in the hospital wing of the GPE from DATE , CARDINAL to DATE and DATE to DATE .

DATE and DATE the applicant frequently complained of pains in the left side of his body . He was prescribed some painkillers , antibiotics and vitamins .

On DATE the applicant lodged a written request to participate in a court hearing scheduled for DATE .

On DATE ORG , which was considering the applicant 's criminal case , ordered the medical examination of the applicant .

From DATE to CARDINAL DATE the applicant constantly had a high body temperature ( DATE ) . His medical file contains a reference to a telephone conversation of CARDINAL DATE during which the head doctor of ORG refused to admit the applicant since “ according to the medical findings of DATE , the applicant could not undergo surgery ” . The applicant 's condition was described as of “ medium severity ” ( “ середньої тяжкості ” ) .

DATE the applicant 's condition remained serious ; however , he had no fever and his body temperature was normal .

On DATE and CARDINAL DATE the applicant participated in court hearings .

On DATE the applicant was examined by a doctor from ORG . The applicant requested a prescription for morphine injections .

On DATE the GPE health department was requested to assist the GPE in providing pain relief since the GPE was not entitled to buy narcotic analgesics .

On DATE the applicant underwent an examination in ORG .

Since DATE the applicant has been receiving morphine injections .

On DATE the applicant participated in a court hearing . A doctor was called into the hearing but the applicant refused to be examined . The doctor concluded that , judging from the applicant 's appearance , he could participate in a court hearing , but recommended further diagnostic tests in a specialised hospital . By a separate ruling the court decided to make enquiries with the GPE about the applicant 's state of health since “ he could not participate in a court hearing after the morphine injections and refused to participate without having them ” .

On DATE the applicant was examined by a doctor from ORG , who recommended the use of morphine twice a day .

On DATE the applicant refused blood and urine tests and requested an increase in his morphine injections .

On an unspecified date in DATE the applicant requested his transfer to a civil hospital , a course of chemotherapy and an increase in his morphine injections . He was refused on the ground that “ the oncologist had not prescribed such treatment ” . The applicant , however , refused further diagnosis .

On DATE the applicant participated in a court hearing and was assisted by a medical professional .

On DATE the applicant again refused to submit to a blood test .

On DATE the applicant was examined in ORG . A biopsy was prescribed , as well as analgesics . According to the ORG , the applicant refused to undergo a biopsy .

On DATE the Governor of the GPE hospital wing informed the court that , given the applicant 's diagnosis , his state of health was serious ; he could , however , participate in the court hearings .

On DATE , following the applicant 's request for Rule CARDINAL of ORG to be applied , the President of the Fifth Section of this ORG decided that the Government of GPE should ensure that the applicant was transferred to a hospital or other medical institution where he could receive the appropriate treatment .

On DATE the applicant was transferred to ORG . On admission he was diagnosed with cancer of the kidney ( hypernephroma ) in the advanced stage ( TCARDINAL - CARDINAL NCARDINALMCARDINAL ) .

By a letter of CARDINAL DATE the head doctor of ORG informed the Governor of the GPE that on CARDINAL and DATE the applicant had refused any diagnostic tests and requested that the prosecutor and a representative of ORG be present during his examination . The applicant explained his refusal to give blood tests by saying that he “ wanted to live ” . The hospital personnel also complained to the hospital management that the applicant had sworn at them and insisted that they leave his ward . The head doctor stated that in the absence of any diagnosis it was not appropriate for the applicant to stay in a specialised hospital . Later , allegedly following the intervention of the applicant 's lawyer , the applicant agreed to further examination . The doctors decided that the applicant should undergo a biopsy and that in the event of confirmation of the diagnosis surgery should be performed . After several refusals the applicant finally agreed to a biopsy and surgery .

On DATE the court proceedings in the applicant 's case were stayed because of the applicant 's illness .

According to the applicant , from DATE until , at the earliest , DATE , he was handcuffed to his bed . By letter of CARDINAL DATE the applicant 's lawyer informed this ORG that he had complained about this matter to the Governor of the GPE .

By a letter of DATE ORG rejected PERSON request for information concerning the applications for the applicant 's release and all court decisions taken in response to those applications , since PERSON had not submitted a proper power of attorney .

DATE . On DATE the applicant underwent surgery . Afterwards he continued to receive morphine injections .

On DATE the applicant was diagnosed with cancer of the kidney ( hypernephroma ) , stage TCARDINALNCARDINALMCARDINAL CARDINAL clinical group .

By a letter of DATE the deputy head doctor of ORG requested the Governor of the GPE to remove the applicant since there was no further need for him to stay in a specialised hospital and he was currently occupying a CARDINAL - bed ward as he was being guarded by CARDINAL GPE officers .

On DATE the authorities of the ORG requested the ORG health department and the ORG regional prosecutor 's office to admit the applicant to the radiotherapy department of ORG since the GPE did not have the proper equipment and personnel for the applicant 's further treatment .

DATE the applicant underwent radiotherapy . Subsequently he refused to continue it .

By letters of DATE and DATE the deputy chief doctor of ORG informed the Governor of the GPE that the applicant had to be discharged from the hospital since he had refused to undergo radiotherapy , and the place in the hospital was expensive and was needed by other patients .

On DATE the applicant was examined by a panel of doctors who concluded that his state of health was satisfactory and that he could be discharged from the hospital but placed under the supervision of an oncologist .

On DATE ORG resumed proceedings in the applicant 's case . The court considered the request by the applicant 's lawyer ( PERSON . ) to release the applicant and rejected it . The court noted that the applicant was accused of committing a serious crime . The prosecutor and the victims , PERSON and Ya . , objected to the applicant 's release . In particular , PERSON stated that the applicant , while in detention , had written letters in which he had threatened her son and promised to pay him to change his testimonies and to incriminate another person , PERSON The applicant had never been employed , had no means of supporting himself and did not maintain any ties with his relatives .

By letter of DATE the hospital informed the Governor of the GPE that the applicant was suffering from cancer of the left kidney ( medium stage ) but did not need hospital treatment and could be held in the GPE .

On DATE the applicant was returned to the GPE .

On DATE the President of the Fifth Section reconsidered the present application and decided to lift the interim measure previously indicated on DATE under LAW .

The relevant extracts from the LAW read as follows :

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

“ Human and citizens ' rights and freedoms shall be protected by the courts .

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

... After exhausting all domestic legal remedies , everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which GPE is a member or participant .

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”

“ If a defendant ... is suffering from a mental or other serious long - term illness which makes further consideration of the case impossible , the court shall stay proceedings in the case until the defendant 's recovery ... ”

Section CARDINAL of the Act sets out rules governing the use of security measures including the use of handcuffs . Prison officers are entitled to use force and special equipment , including unarmed combat , handcuffs , truncheons , etc . , with a view to putting an end to physical resistance , violence , outrage ( безчинства ) and opposition to the lawful directions of the authorities of the detention facility , when other means of achieving a legitimate objective prove ineffective.should be carried out so as to inflict as little injury as possible . Those persons against whom security measures have been used should undergo a medical examination .