PERSON ( the first applicant ) , born in DATE , is the mother of PERSON ( the second applicant ) , born in DATE . They are both NORP nationals from ORG . They are represented before the ORG by PERSON , a lawyer practising in ORG .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

The first applicant entered GPE on DATE and applied for asylum or a residence permit . She was not in possession of any travel documents or identity papers . On DATE her daughter , the second applicant , was born .

According to the report of the asylum interview , the first applicant explained that she was from GPE in GPE and had lived there all her life . She lived together with her parents and CARDINAL brothers . She went to school for DATE . She had a husband named NORP . Her sister had died in DATE , allegedly following childbirth combined with female genital mutilation ( “ ORG ” ) . According to NORP tradition , women were forced to undergo ORG when they gave birth . As the first applicant was pregnant , she was afraid of this inhuman practice . Neither her parents nor her husband could prevent this since it was such a deep - rooted tradition . She claimed that if she had travelled to another part of GPE to give birth to her child , she and her child would have been killed in a religious ceremony . Moreover , the first applicant ’s husband and parents would not have been able to protect them from ORG . Instead , she had decided to flee the country . She got in touch with a man in GPE , who offered to take her to a NORP country to seek asylum . They travelled to another NORP country . She did not know which one . From there they went by plane to LOC , and then by train to GPE . She paid MONEY to the smuggler .

In written submissions of DATE the first applicant ’s counsel repeated that the first applicant ’s husband could not protect her from ORG . Being a businessman earning MONEY per year , he had , however , been able to finance the first applicant ’s escape . He was thus happy that she had escaped and given birth to a healthy child .

On DATE ORG ( Migrationsverket ) rejected the applications for asylum , refugee status or a residence permit . Firstly , it noted that ORG was not included as a ground for asylum under LAW . Secondly , it stated that ORG was prohibited by law in GPE and that this prohibition was observed in CARDINAL NORP states . Thus , if the applicants returned to CARDINAL of those states it would be unlikely that they would be forced to undergo ORG .

The applicants appealed against the decision to the then ORG ( Utlänningsnämnden DATE hereinafter the “ ORG ” ) , maintaining their claims and adding that the practice of ORG was deeply rooted in GPE and persisted despite the law against it . Moreover , those carrying out the actual “ operation ” were never prosecuted or punished . Thus , the applicants alleged that they would not be able to obtain any help or protection from the authorities . The first applicant also referred to her relationship with a NORP citizen .

On DATE , ORG dismissed the appeal , endorsing ORG reasoning and conclusion in full .

Subsequently , the applicants lodged CARDINAL so - called “ new applications ” with ORG .

The first one was lodged on DATE . In it the applicants added that women who refused to undergo ORG were stigmatised and excluded from society and their family . Thus , it would also be very difficult for a woman to settle in another part of the country since she would have no support , and the family and tribe to which she belonged would always find her . ORG rejected the application on DATE as it found that the applicants had provided no new information .

The second application was lodged on DATE and enclosed a statement by a professor emeritus of NORP languages , PERSON , and a statement by a regional protection officer from the ORG , PERSON , both confirming that in general ORG was widespread in GPE . ORG turned down the application on DATE .

The third application was lodged on DATE . In it the first applicant submitted that in fact she had already been subjected to ORG . She maintained , however , that she would not be able to protect her daughter from suffering the same fate on returning to GPE . ORG rejected the application on DATE . It considered that the applicants had failed to show that they were in need of protection in GPE or that it would violate the standards of humanity to deport them to their home country .

On DATE the first applicant gave birth to a second daughter . The latter has applied for a residence permit to ORG , before which the case is pending .

On DATE ORG , examining the applicants’ cases on its own initiative in accordance with a temporary provision of LAW , found that the applicants could not be granted residence permits under the temporary wording of LAW , section CARDINAL b of LAW .

In the applicants’ letter of DATE the first applicant submitted that she did not have any contact with her family in GPE . Nevertheless , she had heard that the second applicant ’s father had been forced to leave the village because he had been harassed and accused of having let the first applicant leave the home and “ escape ” from ORG . She also claimed that she had had an ultrasound examination when she was DATE pregnant and had thus known that she was expecting a girl and naturally wanted to protect her as well .

Following an indication given by ORG DATE under Rule CARDINAL of ORG , the applicants’ deportation was stayed until further notice .

Having decided to communicate the application on DATE , the ORG requested that the parties submit observations as to the complaint . In addition , it specifically invited the first applicant to reply to the following questions :

“ Why did she choose to go to GPE ? How did she manage to leave GPE and enter GPE ? What was her itinerary ? Who bought her tickets ? How much did the tickets and the travel expenses amount to ? Can the sponsor thereof not assist the applicants financially or practically if they were to return to GPE ? Have the applicants made any effort to seek help from the various non - governmental organisations in GPE who are engaged in matters concerning women ’s rights ? In the affirmative , the applicants are invited to substantiate this fact . Why did the applicant mother not submit to the domestic authorities from the very beginning the fact that she had already been subjected to ORG ? Finally , she is requested to substantiate her allegation before the ORG that she had an ultrasound examination made when she was DATE pregnant . ”

The first applicant never replied to the above questions .

In her observations of DATE , she referred to the information already provided . In addition , she explained that it was through a slip of the pen that she had previously stated ( in a letter of CARDINAL DATE to ORG and the application form of DATE ) that she was born in DATE . She was in fact born in DATE . Moreover , she stated that she had never been married to the second applicant ’s father and that he had broken off all contact with the applicants .

A new Aliens Act ( SFS CARDINAL:CARDINAL ) , replacing the DATE LAW , entered into force on DATE . The LAW establishes a new system for examining and determining applications for asylum and residence permits . While ORG continues to carry out the initial examination , an appeal against the ORG ’s decision is determined by CARDINAL of the CARDINAL new migration courts . ORG is the court of final instance . It examines appeals against the decisions of the migration courts , provided leave to appeal is granted . Upon the entry into force of LAW , ORG ceased to exist . ORG acts as the alien ’s opposing party in proceedings before the courts . The migration courts must , as a rule , hold an oral hearing if the alien so requests .

The provisions mainly applied in the present case were to be found in the DATE LAW , now repealed . In accordance with the LAW , an alien staying in GPE for DATE had to , as a rule , have a residence permit ( chapter CARDINAL , section CARDINAL ) . A residence permit could be issued , inter alia , to an alien who , for humanitarian reasons , was to be allowed to settle in GPE ( chapter CARDINAL , section CARDINAL ) . Serious physical or mental illness could , in exceptional cases , constitute humanitarian reasons for the granting of a residence permit .

An alien who was considered to be a refugee or otherwise in need of protection was , with certain exceptions , entitled to a residence permit in GPE ( chapter CARDINAL , section CARDINAL ) . The term “ refugee ” referred to an alien who was outside the country of his nationality owing to a well - founded fear of being persecuted for reasons of race , nationality , membership of a particular social group , or religious or political opinion , and who was unable or , owing to such fear , unwilling to avail himself of the protection of that country . This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals ( chapter CARDINAL , section CARDINAL ) . An “ alien otherwise in need of protection ” denoted , inter alia , a person who had left the country of his nationality because he had a wellfounded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( chapter CARDINAL , section CARDINAL , subsection CARDINAL ) . By making that a separate ground for granting a residence permit , the legislature had highlighted the importance of such considerations . The correspondence between national legislation and LAW had been emphasised as a result . From DATE the term “ alien otherwise in need of protection ” also referred to someone who had a well - founded fear of persecution because of his or her sex or homosexuality ( chapter CARDINAL , section CARDINAL , subsection CARDINAL ) .

In enforcing a decision on refusal of entry or expulsion , the risk of torture and other inhuman or degrading treatment or punishment was taken into account . In accordance with a special provision on impediments to enforcement , an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( chapter CARDINAL , section CARDINAL ) . In addition , he could not , in principle , be sent to a country where he risked persecution ( chapter CARDINAL , section CARDINAL ) .

Until DATE an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so - called “ new application ” with ORG based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion . A residence permit could then be granted if the alien was entitled to a residence permit under LAW , section CARDINAL , of the LAW or if it would be contrary to the requirements of humanity to enforce the refusal - of - entry or expulsion decision ( chapter CARDINAL , section CARDINAL b , in its wording before DATE ) .

Amendments to LAW , section CARDINAL b , of the DATE LAW entered into force on DATE , whereby a new legal remedy of a temporary nature was introduced . The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter CARDINAL , section CARDINAL b , in its previous wording . Furthermore , the amendments to the DATE Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made . The temporary provisions remained in force until LAW entered into force on DATE . ORG continued , however , to examine applications which it had received before that date but had not yet determined .

In some previous cases ORG has been called upon to assess applications in which it was claimed that the asylum - seeker had a well - founded fear of being exposed to female genital mutilation , if expelled to her home country ( see , e.g. , ORG CARDINAL/CARDINAL and ORG CARDINAL/CARDINAL ) . According to ORG , forced female genital mutilation falls under the notion of “ inhuman or degrading treatment ” in chapter CARDINAL , section CARDINAL , subsection CARDINAL , of the CARDINAL LAW . ORG stated that such a procedure was in conflict with both ORG CARDINAL of LAW . From DATE forced female genital mutilation was also covered by chapter CARDINAL , section CARDINAL , subsection CARDINAL , of the CARDINAL LAW , by which a well - founded fear of persecution because of one ’s sex constitutes a need for protection .

Although there is no federal law in GPE against the practice of ORG , several states have prohibited ORG by law , including GPE , GPE , LOC , GPE , GPE , PERSON and LOC . In the last - mentioned state , the “ Prohibition of Female Circumcision and Genital Mutilation Law ” was passed on DATE and published in ORG on DATE . It follows from this law that it is an offence , inter alia , to circumcise or mutilate the genital organ of any female and that it is irrelevant whether or not consent is obtained . It further follows that any person who is convicted of an act prohibited by the law is liable to a fine or imprisonment for not DATE , or to both .

There are different forms of female genital cutting ( ORG ) or female circumcision ( opponents to these practices use the term female genital mutilation ( ORG ) ) . The distinctions and definitions used by ORG are the following :

Type I circumcision is defined as a clitoridotomy and perhaps the excision of part or all of the clitoris . A clitoridotomy ( also called “ hoodectomy ” in slang ) involves the removal or splitting of the clitoral hood .

Type II circumcision is more extensive than type I , meaning a clitoridectomy and sometimes also the removal of the labia minora . A clitoridectomy means the partial or total removal of the external part of the clitoris .

Type III is regarded as the most severe form of female circumcision , also referred to as infibulation or pharaonic circumcision . Infibulation replaces the vulva with a wall of flesh from the pubis to the anus , except for a pencilsize opening at the inferior portion of the vulva to allow urine and menstrual blood to pass through . After excision , the labia are sewn together , and since the skin is abraded and raw after being cut , the CARDINAL surfaces will join via the natural healing and scar - formation process to form a smooth surface . The girl ’s legs are tied together for DATE to prevent her from moving the wound . Infibulation is often carried out by a “ gedda ” , or matron of the village , without anaesthetic , on girls DATE .

According to ORG ’s “ ORG , DATE , LAW ” , ORG ’s prevalence in GPE among women aged CARDINAL amounted to PERCENT ( figure CARDINAL ) . The prevalence of ORG in GPE as to women and daughters ( figure CARDINAL ) showed that women aged DATE who had undergone ORG amounted to PERCENT , whereas women aged DATE with CARDINAL daughter who had undergone ORG amounted to PERCENT .

ORG report on GPE , “ Country Reports on Human Rights Practices – DATE ” ( DATE ) , stated the following , in so far as relevant , as regards women , children and ORG :

“ The NDHS [ ORG Survey ] estimated the ORG rate at PERCENT among the country ’s female population , and the incidence has declined steadily in DATE . While practiced in all parts of the country , ORG was much more prevalent in the south . Women from northern states were less likely to undergo the severe type of ORG known as infibulation . The age at which women and girls were subjected to the practice varied from DATE of life until after a woman delivers her first child ; however , DATE of the NDHS DATE survey respondents who had undergone ORG had the procedure before their first birthday . According to the survey , the principal perceived ‘ GPE of ORG include maintaining chastity / virginity before marriage , giving the victim better marriage prospects , providing more sexual pleasure for men ( primarily according to male respondents ) , and aiding safe childbirth .

The federal government publicly opposed ORG but took no legal action to curb the practice . Because of the considerable problems that anti - FGM groups faced at the federal level , most refocused their energies on combating the practice at the state and ORG levels . PERSON , GPE , GPE , GPE , GPE , and GPE banned ORG . However , once a state legislature criminalized ORG , NGOs found that they had to convince the ORG authorities that state laws were applicable in their districts . ORG , women ’s groups , and many NGOs sponsored public awareness projects to educate communities about the health hazards of ORG . They worked to eradicate the practice , but they had limited contact with health care workers on the medical effects of ORG .

On DATE ] , ORG enacted a law aimed at punishing those who encourage ORG . The law makes it a punishable offence to remove any part of a sexual organ from a woman or a girl , except for medical reasons approved by a doctor . According to the provisions of the law , an offender shall be any female who offers herself for ORG ; any person who coerces , entices , or induces any female to undergo ORG ; and any person who other than for medical reasons performs an operation removing part of a woman or girl ’s sexual organs . The law provides a $ MONEY ( MONEY ) fine or DATE imprisonment or both for a first offence , with doubled penalties for a second conviction . ”

On DATE , in its “ Consideration of Reports submitted by ORG Parties ” under LAW of ORG stated the following as regards the practice of ORG in GPE :

“ CARDINAL . ORG welcomes the introduction in parliament of a bill on violence in DATE , aimed to prohibit forms of violence such as harmful traditional practices and domestic violence , including marital rape . However , it reiterates its concern at the widespread and continuing existence of harmful traditional practices in ORG , most notably the practice of female genital mutilation , as well as scarification and ritual killing of children , which pose very serious threats to children , in particular girl children .

ORG is concerned at the lack of legal prohibition and sufficient interventions on the part of ORG to address harmful traditional practices . ORG is also concerned at the lack of support services available to protect girls who refuse to undergo ORG and of services to rehabilitate girl victims of the practice .

ORG recommends that ORG , as a matter of urgency , takes all necessary measures to eradicate all traditional practices harmful to the physical and psychological well - being of children , by strengthening awareness - raising programmes . The ORG further recommends ORG to adopt federal legislation prohibiting such practices and encourage further legal changes at the ORG level , in particular , female genital mutilation , as well as measures to provide support for girls who refuse to undergo ORG , and provide recovery services for victims of this harmful traditional practice . ”

In its country report of DATE on GPE , ORG stated that “ in some communities , female genital mutilation and forced marriages were still practised ” . On a previous webpage www.amnesty.org/ailib/intcam/femgen/fgm ) , which was last modified on CARDINAL DATE , ORG estimated that PERCENT of all women and girls underwent ORG in GPE , and that the types practised were clitoridectomy , excision and , in the northwest , some infibulation . ORG further maintained , in so far as relevant :

“ ORG is practised throughout the country and among all ethnic and religious groups . No law specifically prohibits ORG . ORG ) has been active in the fight against ORG . Nurses and paediatricians have campaigned throughout the country , conducting educational activities at the state and community level . In DATE , ORG , ORG , was set up . ORG has had support from ORG , Education and Information . ”

According to a report by ORG for Asylum Practitioners ) of DATE , ORG existed in both rural and urban areas of GPE and was found among NORP , NORP and NORP alike . ORG was more predominant in the southern and eastern zones . Women from northern states were less likely to undergo ORG ; however , those affected were more likely to undergo the severe type of ORG known as infibulation . In ORG , in particular , the police were actively implementing the prohibition on ORG . In the rest of the states where ORG was prohibited it was not clear to what extent the police and other authorities were actually enforcing the prohibition . The NORP government publicly opposed the practice of ORG . Anti - FGM NGOs were active in combating ORG and the medical profession had also campaigned against the practice .

A ORG report of DATE , “ Report on human rights issues in GPE ” , following a joint NORP fact - finding mission to GPE and GPE from DATE to DATE , stated the following ( pp . CARDINAL - CARDINAL and DATE ) :

“ The federal government has warned against harmful traditional practices like ORG and campaigns have been conducted through ORG and the media , a draft federal bill outlawing ORG has been before ORG since DATE . According to ORG , CARDINAL of the most important women ’s NGOs in GPE , the practice of ORG is quite diverse depending on tradition . However , most women throughout GPE have the option to relocate to another location if they do not wish to undergo ORG and government institutions and NGOs afford protection to those women . ORG was of the opinion that ORG in itself is not a genuine reason for applying for asylum abroad . ORG ( ORG ) stated that it is possible for women to seek protection in the shelter run by ORG in NORP in the south and that the organisation ’s NORP office assists many adult women seeking protection against ORG . ORG expressed surprise if someone actually had to leave GPE in order to avoid ORG instead of taking up residence elsewhere in GPE . ”

In addition , ORG Affairs’ report on the human rights situation in GPE for DATE states that ORG is , by tradition , commonly practised in most parts of the country but that the problem is most predominant in the southern parts of GPE ( where GPE is located ) . The report estimates that PERCENT of NORP women have been subjected to ORG . However , it also observes that the issue is now being debated in the country and that information programmes have been developed in order to combat the practice . According to the report , these programmes have had a certain impact , with a reduced number of women being subjected to ORG .


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

The applicant , ORG , is a NORP national who was born in DATE and lives in Vlijmen . She was represented before the ORG by Ms T. Spronken , a lawyer practising in GPE .

On an unspecified date in DATE the applicant was arrested , held in custody and subsequently in pre - trial detention ( voorlopige hechtenis ) on suspicion of murder . She was subsequently summoned to appear before the ‘ sHertogenbosch ORG ( rechtbank ) in order to stand trial . The order for her pre - trial detention was duly prolonged , for the last time on DATE when the ‘ s - ORG sitting in chambers ( raadkamer ) extended by DATE the order for the applicant ’s further detention on remand ( gevangenhouding ) .

The applicant ’s trial started on DATE before the ‘ s - ORG , which decided to adjourn the examination in court until DATE . On DATE , ORG fully recommenced its examination as its composition had changed in the meantime . It further decided to adjourn for an unspecified period its examination in court of the applicant ’s case .

By letter of CARDINAL DATE , the Acting President of the ‘ sHertogenbosch ORG informed the applicant that , due to a misunderstanding , CARDINAL member of the threejudge section of ORG having considered the applicant ’s case on DATE was a judge in training , assigned temporarily to the ‘ s - ORG and who apparently had not yet been officially appointed and sworn in as a deputy judge ( rechter - plaatsvervanger ) before taking up her position in ‘ s - Hertogenbosch . The applicant was further informed that a fresh hearing would be scheduled as soon as practically possible .

On DATE , the applicant ’s lawyer filed a request to lift the applicant ’s pre - trial detention with immediate effect .

On DATE , the ‘ s - ORG sitting in chambers lifted the order for the applicant ’s pre - trial detention and ordered her immediate release . It considered that , although it lacked competence to pronounce the nullity of the trial proceedings conducted on DATE and could only determine the validity of the legal basis for the applicant ’s ongoing pre - trial detention , it was rather obvious that the competent forum would pronounce that nullity . In this light , it concluded that article CARDINAL § QUANTITY of LAW found no application and that the delay referred to in article CARDINAL § CARDINAL of LAW ( PERSON ; “ ORG ” ) had expired . As this thus risked giving rise to uncertainty about the applicant ’s legal position , ORG – for the sake of clarity DATE lifted the order for the applicant ’s pre - trial detention and ordered her immediate release . On DATE , the public prosecutor filed an appeal against the decision to lift the pre - trial order .

On DATE , the ‘ s - ORG ( gerechtshof ) accepted the prosecutor ’s appeal , quashed the decision of CARDINAL DATE and rejected a request filed during the hearing before ORG to lift the applicant ’s pre - trial detention . It rejected the applicant ’s argument that , pursuant to article CARDINAL of the ORG , her pre - trial detention should be regarded as having become unlawful on DATE as the court hearing of CARDINAL DATE was ipso iure null and void . ORG considered that such ipso iure nullity would only arise if that hearing had been held before a non - judicial body , which was not the situation in the case at hand . The hearing of DATE was one in a series of hearings before and decisions taken by the ‘ s - ORG in the applicant ’s case under the provisions of the ORG . This was not altered by the fact that the hearing of DATE was flawed as CARDINAL member of the threejudge section of ORG did not have the status of judge . As the hearing of DATE was not ipso iure null and void , it could not be concluded that the legal basis for the applicant ’s pre - trial detention had become extinct DATE after DATE . This legal basis remained article CARDINAL § CARDINAL of the ORG . ORG acknowledged that the composition of the CARDINAL - judge section at issue was very seriously flawed and that this raised the question whether this flaw had a bearing on the legal basis for the applicant ’s pre - trial detention . After an examination of the statutory system concerning the rules on pre - trial detention , it concluded that there remained a legal basis for the applicant ’s pre - trial detention , namely article CARDINAL § CARDINAL of the ORG , given that DATE had not yet elapsed since DATE . It further decided , after having noted that it was intended to hold a fresh trial hearing on DATE before ORG , that the applicant ’s interest in being released from pre - trial detention was outweighed by general interest considerations . No further appeal lay against this decision , of which the applicant was notified on DATE .

A pre - trial detention order issued by ORG remains in force until DATE after the final judgment ( einduitspraak ) at that instance has been given ( article CARDINAL § QUANTITY of the ORG ” ) . For the purposes of limiting the application and duration of pre - trial detention , article CARDINAL of the ORG regulates the duration of suspensions of trial proceedings . This provision reads in its relevant part :

“ CARDINAL . If the defendant is being held in pre - trial detention , the following paragraphs shall apply [ in relation to suspensions of trial proceedings ] .

If ORG suspends the examination in court ( onderzoek op de terechtzitting ) for a specific period , the period of suspension shall as a rule not exceed DATE . However , if there are compelling grounds , it may set a longer period but in no case DATE .

If ORG suspends examination in court sine die , it shall determine by analogous application of the second paragraph a maximum period within which the examination in court must be resumed .... ”

An overview with further details of the relevant domestic law and practice in respect of pre - trial detention can be found in the ORG ’s decision on admissibility in the case of ORG v. the GPE ( no . CARDINAL , CARDINAL DATE ) .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE .

The applicants’ daughter ( “ S ” ) was born on DATE . S was conceived with the assistance of ORG treatment and she is the applicants’ only child .

In DATE an anonymous call was made to ORG ( “ the ORG ” ) , outlining a number of concerns about S. In particular , the caller said that she was inappropriately dressed , that she reported having seen “ horrible things ” on her father ’s computer , and that her mother had described her as “ sexy ” while she posed for a photograph . The ORG reported the concerns to social services , who contacted the applicants but felt that no further action was necessary . The applicants , however , were convinced that the call had been made by a teaching assistant at ORG school . They visited the school , where they became “ angry and vociferous ” and the headmistress threatened to call the police . They then visited the home of the teaching assistant who they believed had called the ORG , but she was not there .

The applicants subsequently removed S from school . In or around DATE S reached compulsory school age . Although the applicants indicated that they were looking for a new school and that S was being home - schooled in the meantime , there was no evidence to support either of these claims and they subsequently admitted that they had misled the authorities .

The applicants are dog breeders and on or around DATE a police officer visited their home following the theft of a puppy . She described the kitchen as clean and tidy and observed that S behaved in an appropriate manner .

On DATE CARDINAL inspectors from ORG ( “ the ORG ” ) visited the applicants’ property after receiving information that the tails of their dogs had been docked . The applicants were verbally aggressive and the inspectors left the property . They subsequently obtained a warrant under LAW and , on DATE , QUANTITY police officers , CARDINAL ORG officers and a vet went to the applicants’ property to execute the warrant . On entering the conservatory they saw a large pool of urine on the floor and piles of dog faeces throughout . The whole house smelt strongly of ammonia and urine . A number of dead rabbits , which were used to feed the dogs , were spread around the house with trails of blood and entrails . There were blood stains on unwashed floors and a mincing machine in the front room close to LOC ’s clothing . The family bedroom contained only a tattered double mattress and the ceiling was partially collapsed above the bed . S was naked from the waist down and wearing only a grubby pink t - shirt . The applicants later attributed the state of the property to “ the raid ” and said that it was clean before the police arrived . They also explained that they were looking after additional dogs which belonged to a friend , and that the lack of clothes and furniture could be explained by the fact that the family was preparing to move .

Following the visit a police officer requested that protective measures be taken in respect of S and authorisation was given for her to be removed from the property . She was taken first to a police station , where she told a police officer that she had seen her father , the first applicant , “ having sex with his girlfriend on his computer ” .

S was placed with foster carers . Following the placement she stated that she did not wish to see the applicants .

On DATE a social worker visited the applicants’ property . Although some cleaning had been carried out , the applicants refused to engage with the social worker and instead insisted that they were perfect parents .

Contact was arranged for DATE . On arrival at the contact centre , the first applicant became extremely upset and angry . S was distressed by his behaviour and at times was seen to be “ shaking with fear ” .

The local authority initially planned to rehabilitate S to the applicants . They applied for an interim care order with a care plan that S would remain in care until assessments of the applicants could be carried out . In a judgment dated DATE , a ORG Judge found that the threshold criteria for making an interim care order had been met as S had suffered and was at risk of suffering serious harm in the applicants’ care . In particular , the judge observed that the removal of S from school and the living conditions in the applicants’ home provided reasonable grounds for believing that S was suffering significant harm . The judge also found that there was a risk of emotional damage because the applicants could not control their anger and resentment towards others . The judge noted , however , that the risk to ORG ’s physical well - being had diminished by DATE as a number of improvements had been made to the applicants’ property . The judge declined to make any findings on the basis of anything said by ORG , either concerning sexual activity that she may have witnessed or about not wanting to see her parents . The judge made an interim care order .

Directions were given at DATE for the instruction of experts to move the case forward . The position statements of the applicants at that date , which were prepared while both were legally represented , indicated that they accepted the need for a global psychological assessment . CARDINAL expert psychiatrists were appointed to look at the psychiatric background to the case . By CARDINAL DATE the applicants had dismissed their solicitors and counsel . They were acting in person and made it clear that they would only co - operate with a PERSON , who they considered was looking only at S and why she presented as she did . PERSON was able to conduct a TIME interview with the applicants but they subsequently refused to engage further with her and they refused to allow her to observe their contact with S. In her report Dr W described the applicants as having “ a habitual style of oversensitivity , persistent grudge bearing , misconstruing friendly actions , a combative approach to their own rights out of keeping with reality and preoccupation with unsubstantiated conspirational explanations of events . ” Without a process of assessment she found it very likely that S would experience further significant emotional harm if she were returned to the applicants’ care and that there was an additional risk of neglect .

PERSON concluded that there was no evidence either applicant suffered from psychiatric illness although there were concerns that they exhibited paranoid personality traits . As the issue of personality traits was considered to be a matter for a psychologist , she recommended that the applicants undergo a full psychological assessment .

On DATE the judge ordered the continuation of the interim care order . The court also ordered a kinship assessment of ORG ’s aunt and uncle . In the course of the hearing the applicants indicated their unwillingness to agree to any further assessments . The court urged them to seek legal advice as , in the absence of co - operation , the case would have to be set down for a final hearing .

Between the hearing and DATE , as a consequence of the first applicant ’s behaviour at a contact session , he was asked to sign a LAW . He refused to sign the agreement as he believed that it would be tantamount to admitting that he had done something wrong . On DATE the judge again ordered the continuation of the interim care order . She also made an order permitting the local authority to suspend the first applicant ’s contact with S until he signed LAW .

On DATE ORG refused the applicants’ applications for leave to appeal against the orders continuing the interim care orders , finding that there was no prospect of a successful appeal . The court strongly recommended , however , that the applicants obtain representation before the final hearing .

The case came before ORG on DATE . The applicants had still not agreed to a psychological assessment , although the second applicant expressed her intention to instruct a solicitor . At DATE the case was again before the court , and the second applicant indicated that she was willing to seek leave to instruct a psychiatrist . It became apparent , however , that her intention was to re - open findings of fact made in the judgment of DATE . Directions were given for the filing of position statements . When the case came back before the court on DATE , although position statements had been prepared the bundles were not ready and it was not possible to hear the applications before the court .

By DATE the applicants had sought legal advice but had still not agreed to a psychological assessment . The case was listed for hearing at DATE . The hearing could not proceed as planned as a positive kinship assessment of ORG ’s aunt and uncle was undermined by allegations of indecent assault made against the uncle .

The application for a full care order came before ORG in DATE . By DATE of the hearing , the first applicant had again dismissed his solicitor and barrister and he represented himself . The second applicant was legally represented .

Although the local authority had originally hoped to rehabilitate S to the applicants , their failure to co - operate throughout the proceedings forced the local authority to change their position . At the hearing the local authority ’s final care plan was for a permanent placement outside the family , unless the applicants would agree to a full psychological assessment .

In the course of her evidence , the second applicant attributed her past behaviour to an internet site called “ Forced - Adoption.com ” , which recommended that parents in the applicants’ situation refuse to co - operate with social services and refuse to be assessed by any experts until their children were returned .

In a judgment dated DATE , the judge found that the applicants’ behaviour in the course of proceedings demonstrated that LOC ’s emotional welfare took second place to their need to validate their feelings of injustice . She reiterated that at the time the proceedings were taken , S was suffering significant harm from the neglect of her schooling , the environment in which she was living and the applicants’ inability to prioritise her needs over their own . With regard to the final care plan , the judge found that the first applicant had no intention of submitting to a psychological assessment . She also noted that if the second applicant were to agree to an assessment , she would be unlikely honestly to engage . In any case , she noted that an assessment of CARDINAL parent only would be pointless . Finally , she considered that it would not be safe to return PERSON to the applicants without such an assessment , and that ORG ’s interests would not be served by any further delay . The judge could not make a final order in the terms requested by the local authority as ORG ’s case had not been placed before a permanence panel . She therefore made a DATE interim care order .

The case came back before the judge in DATE . It could not be considered earlier as there had been a failure to provide the permanence panel with the correct documentation in an appropriate form .

At the hearing the judge noted that there was no evidence which would require her to vary the conclusions that she made in DATE . She therefore made a final care order , dispensed with the applicants’ consent and made a placement order . Given S ’s age , she indicated that an order which did not allow for the possibility of direct contact between her and the applicants would be inappropriate , but that much work would have to be done before such contact could take place .

On DATE the applicants were refused leave to appeal to ORG .

Section CARDINAL of LAW DATE provides for the making of care and supervision orders :

“ ( CARDINAL ) On the application of any local authority or authorised person , the court may make an order—

( a ) placing the child with respect to whom the application is made in the care of a designated local authority ; or

( b ) putting him under the supervision of a designated local authority or of a probation officer .

( CARDINAL ) A court may only make a care order or supervision order if it is satisfied—

( a ) that the child concerned is suffering , or is likely to suffer , significant harm ; and

( b ) that the harm , or likelihood of harm , is attributable to—

( i ) the care given to the child , or likely to be given to him if the order were not made , not being what it would be reasonable to expect a parent to give to him ; or

( ii ) the child ’s being beyond parental control . ”

ORG provides for the making of placement orders :

“ CARDINAL Placement Orders

( CARDINAL ) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority .

( CARDINAL ) The court may not make a placement order in respect of a child unless—

( a ) the child is subject to a care order ,

( b ) the court is satisfied that the conditions in section CARDINAL(CARDINAL ) of the CARDINAL Act ( conditions for making a care order ) are met , or

( c ) the child has no parent or guardian .

( CARDINAL ) The court may only make a placement order if , in the case of each parent or guardian of the child , the court is satisfied—

( a ) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent , or

( b ) that the parent ’s or guardian ’s consent should be dispensed with .

CARDINAL Parental etc . consent

( CARDINAL ) The court can not dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

( a ) the parent or guardian can not be found or is incapable of giving consent , or

( b ) the welfare of the child requires the consent to be dispensed with . ”


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the applicant had an accident while entering a lift in ORG in GPE . The applicant subsequently learned that the lift had been under repair at the material time , despite the lack of any warning signs to this effect in the building , and that the accident had been caused by her attempt to operate the lift under those circumstances .

Following the accident the applicant was taken to ORG where she received medical treatment . According to the report drawn up by an orthopaedist in that hospital on DATE , the applicant suffered a thoracic vertebral fracture as a result of the accident , was unfit for work for DATE and was required to undergo DATE of treatment .

Criminal proceedings were subsequently brought against the CARDINAL workers who had been repairing the lift at the time ( case no . CARDINAL/CARDINAL ) , on charges of causing injury through professional negligence .

On DATE ORG acquitted the workers , holding that they were not responsible for the injuries which the applicant had suffered .

The GPE public prosecutor then brought criminal proceedings before ORG against the manager and the concierge of ORG , on charges of causing injury through negligence ( case no . CARDINAL/CARDINAL ) .

Meanwhile , on DATE the applicant brought civil proceedings ( case no . CARDINAL/CARDINAL ) before ORG against the management of ORG and Elmas Elektrik Sanayi Ticaret A.Ş. ( the lift maintenance company ) , seeking compensation for the pecuniary and non - pecuniary damage that she had suffered as a result of the accident .

On DATE the first - instance court dismissed the case in so far as it concerned the management of ORG , as the latter had no legal status .

Following the decision of CARDINAL DATE , on DATE the applicant brought a second case before ORG against the owners of the apartments in ORG and its manager ( case no . CARDINAL/CARDINAL ) .

Case no . CARDINAL/CARDINAL was subsequently joined to case no . CARDINAL/CARDINAL .

On DATE ORG ordered that the file concerning case no . CARDINAL/CARDINAL be obtained from ORG .

DATE and CARDINAL DATE ORG postponed the hearings pending receipt of the aforementioned file .

On DATE , after receiving the file in question , the firstinstance court decided to await the outcome of the criminal proceedings .

On DATE the applicant ’s representative informed the firstinstance court that on DATE the criminal proceedings had been terminated as the statutory timelimit under LAW had expired .

DATE and DATE , ORG collected further evidence in the case .

On DATE the first - instance court decided to send the case file to an expert for an assessment of the amount of pecuniary damage allegedly sustained by the applicant as a result of the accident .

On DATE the expert submitted his report .

Subsequently , on DATE the applicant filed a petition with the first - instance court , amending the amount of compensation she had previously claimed , in order to reflect the expert ’s findings in his report of DATE .

On DATE ORG ordered Elmas Elektrik Sanayi Ticaret A.Ş. and the owners of the apartments in the business centre to pay compensation to the applicant for the pecuniary and non - pecuniary damage she had suffered .

On DATE ORG quashed the judgment of CARDINAL DATE . It noted that CARDINAL of the persons ordered to pay compensation was not an apartment owner in the business centre at the time of the accident and that the first - instance court should have duly established the names of the owners before rendering its judgment . ORG further noted that the applicant ’s petition of CARDINAL DATE should have been served on all the defendants .

On DATE ORG dismissed the parties’ requests for rectification of its decision of CARDINAL DATE .

On DATE ORG rendered a new judgment in the light of ORG decision of CARDINAL DATE , ordering Elmas Elektrik Sanayi Ticaret A.Ş. and CARDINAL persons who were apartment owners at the time of the accident to pay the applicant compensation in the amount of MONEY ( TRL ) , with interest running from DATE .

On DATE ORG upheld the judgment of DATE .

On DATE the applicant received a payment of MONEY ( TRY ) .


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE , at TIME , PERSON was gunned down by CARDINAL persons in front of his house in GPE village at LOC of GPE . His mother and to some extent one of his daughters were witnesses to the killing .

On TIME , at TIME , gendarmes at FAC , including its commander Mr PERSON , arrived at the scene .

On TIME , at TIME , CARDINAL gendarmes working as technical personnel at ORG arrived at the scene with the ORG public prosecutor , gendarmes from LOC gendarmerie and a doctor . The technical personnel made a sketch of the scene of the incident , took photographs and secured forensic evidence around the scene . The technical personnel considered that the empty cartridges found at the scene belonged to a MONEY . The doctor carried out a post - mortem examination on PERSON body and concluded that an autopsy had to be carried out to determine the cause of death .

On TIME , the ORG public prosecutor heard evidence from PERSON parents ( PERSON and PERSON ) , his wife ( PERSON ) and a fellow villager . They submitted , inter alia , that they did not know who had committed the murder , that the deceased had previously been convicted of membership of an illegal organisation , namely ORG and ORG ) and that he had returned to the village only recently .

On DATE an autopsy was carried out on PERSON body . The cause of his death was stated as internal bleeding and cerebral haemorrhage due to gunshot wounds .

On DATE the ORG public prosecutor heard evidence from PERSON parents ( PERSON and PERSON ) and daughters ( PERSON and PERSON ) who all affirmed that the deceased had been threatened by ORG . PERSON and PERSON maintained that the perpetrators were wearing masks and military - type clothes . On DATE PERSON parents made an official complaint to the ORG public prosecutor ’s office .

On DATE the ORG public prosecutor heard evidence from PERSON father ( PERSON ) , brother ( PERSON ) , his wife ( PERSON ) and sister ( PERSON ) . They all repeated that the deceased had been threatened by ORG and had been away from the village for DATE prior to his death .

On DATE of the applicants ( “ the complainants ” ) made an official complaint to the ORG public prosecutor ’s office . In this they repeated that that , DATE prior to his death , PERSON had been threatened by ORG and that , as a result , PERSON had left the village for DATE . In this connection , they claimed that this commander was known by the villagers for illegal and harassing activities . Moreover , they noted that it took the security forces from the Bulgurcular gendarmerie command TIME after the incident to reach the village , which was CARDINAL kilometres away .

On DATE the ORG public prosecutor heard evidence from the head of the village ( muhtar ) . The head of the village submitted that neither the deceased nor his family had , prior to the killing , voiced or submitted any representation regarding the alleged threats received by PERSON . He further submitted that after the shooting CARDINAL of the villagers called the gendarmerie CARDINAL or TIME , and that the gendarmes arrived in the village TIME

On DATE the ORG public prosecutor postponed the on - site inspection requested by the applicants until other evidence had been gathered . He further decided that a copy of the documents contained in the case file should be handed over to the ORG legal representative .

On DATE the ORG public prosecutor heard evidence from a gendarme on duty at ORG at the time of the events . The gendarme confirmed that they had received a telephone call at TIME , that they had left the station at TIME and that , due to incidents of terrorism , they had walked through fields rather than using the main road to reach the village .

On DATE , the ORG public prosecutor heard evidence from PERSON PERSON , the Bulgurcular Gendarmerie Commander , who denied the allegations against him . In particular , he submitted that the gendarmes had not been to the village since DATE , that they did not have any vehicles and that they used GCARDINAL and ORG guns . The accused maintained that the deceased had come to the gendarmerie around DATE to ask for their help in obtaining a green card . He further maintained that the deceased might have been killed by the sons of a person killed in DATE and for which killing certain people held the deceased responsible .

On DATE the Van provincial criminal police laboratory carried out a ballistic examination of the cartridges found at the incident scene .

According to an examination of the deceased ’s clothes conducted by CARDINAL experts at FAC on DATE the deceased had received CARDINAL shots at close range and the bullets had entered from the front and exited from his back .

On DATE ORG wrote a report regarding the killing of PERSON . In this report , they pointed to a number of issues which they considered needed to be elucidated in the present case .

On DATE the NORP public prosecutor , relying on the forensic and other evidence in the case file including numerous witness statements , decided not to prosecute PERSON PERSON , the Bulgurcular Gendarmerie Commander , on the ground that there was no cogent evidence to support the allegation that he had abused his office , threatened or killed the deceased . In his elaborated decision the prosecutor examined in particular the issues raised by the applicants and referred to in ORG report . The prosecutor noted , inter alia , that there were certain inconsistencies in the eyewitness accounts of PERSON and PERSON as regards the number of assassins and the type of clothes they were wearing , so that even assuming that the alleged perpetrators were dressed in military clothing , this did not in itself prove that the assailants were soldiers , since such clothing was freely available in the shops and , citing some previous incidents , members of terrorist organisations also wore such garments .

The prosecutor examined the ORG allegations of negligence on account of the belated arrival of the gendarmes from ORG . In this connection , referring to witness statements and information received from ORG , the prosecutor noted , inter alia , that the gendarmes were informed TIME after the incident , that it took them TIME to cross - check the information and to prepare to leave the gendarmerie and that they TIME after walking QUANTITY on foot through fields , for security reasons , under adverse weather conditions . He therefore concluded that there was no intentional belated arrival at the scene of the incident .

As regards the allegations that the deceased had been threatened by ORG and that , as a result , the deceased had left the village for DATE , the prosecutor , after noting serious inconsistencies and contradictions in the various witness statements and the absence of an official complaint to this effect , held that there was no cogent evidence to demonstrate that the deceased had been threatened by the commander . In this connection , the prosecutor also examined the allegations that the commander was threatening others and found them to be unsubstantiated on the same grounds .

Finally , the prosecutor noted , inter alia , that there was strong evidence that PERSON had been killed by a branch of ORG , namely the ORG , on account of a document found on CARDINAL members of the ORG ( ORG ) , who were killed by security forces during a clash on DATE and which implicated the ORG in the killing of the deceased .

On DATE ORG dismissed the ORG objections .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE .

In DATE , when the applicant was DATE , she discovered that her stepfather had hidden a video camera in the laundry basket in the bathroom . The camera was directed at the spot where the applicant had undressed before taking a shower .

The incident was reported in DATE and on DATE the public prosecution indicted the stepfather for sexual molestation ( sexuellt ofredande ) under LAW , section CARDINAL of the Penal Code due to the said event .

On DATE , represented by an officially appointed counsel ( målsägandebiträde ) , the applicant submitted a claim for damages of MONEY ( SEK ) ( approximately EUR CARDINAL CARDINAL ) to be joined to the criminal proceedings . The basis of the claim was that the stepfather had , through the act for which he was being prosecuted , severely violated the applicant ’s personal integrity and should therefore pay compensation for the violation and for her pain and suffering .

Before ORG ( Falu Tingsrätt ) , the applicant , her stepfather , her mother and a cousin were heard . The applicant explained that on the relevant day , just before she was about to take a shower , her stepfather had something to do in the bathroom . When she discovered the camera , it was in recording mode , making a buzzing sound and flashing . She did not touch any of the buttons . Crying , she took the video camera , wrapped in a towel , to her mother . The stepfather took the camera from the mother . Subsequently , the applicant saw her mother and stepfather burn a film , but she was not sure whether it was a recording of her .

The applicant ’s mother confirmed the applicant ’s statement and added that she did not know whether anything had been recorded since the film had been burned without her seeing it . She had not reported the incident to the police until DATE , when she had heard that the applicant ’s cousin had also experienced incidents with the accused .

The stepfather explained that he had lived with the applicant ’s mother from DATE to the autumn of DATE . They had separated due to , inter alia , the incident in question . He had wanted to try to film with a hidden camera , but it was an impulsive act . He was not sure whether the camera had been in recording mode or whether any film had been recorded . The applicant ’s mother had burned the film without any of them seeing it .

NORP By judgment of DATE ORG convicted the stepfather . It found it established that he had had a sexual intent in hiding the camera in the laundry basket and directing it at the part of the bathroom where it was usual to undress . It added that the buzzing sound from the camera perceived by the applicant strongly suggests that the camera was switched on and actually did record . Otherwise , there would be no point in hiding the camera among the clothes in the laundry basket . The hole in the laundry basket indicated that the approach was quite refined . Regardless of the fact that , afterwards , no one verified the contents of the film , it can under the present circumstances be considered established that the stepfather actually filmed the applicant when she appeared nude .

In the judgment , in which the stepfather was also convicted of CARDINAL additional acts of sexual molestation against the applicant and her cousin , a suspended sentence combined with compulsory community service for TIME was imposed on him . Moreover , he was ordered to pay the applicant damages in the amount of SEK CARDINAL .

On appeal , by judgment of DATE , ORG ( PERSON hovrätt ) acquitted the stepfather of the incident in question .

The court found it established that the stepfather had put a camera in the bathroom and that he had started the recording system before the applicant was about to take a shower . Whether a recording had actually been made , however , was unclear . It was apparent , the court continued , that the stepfather ’s motive was to film covertly the applicant for a sexual purpose . Given this motive , it was also regarded as certain that the stepfather did not intend the applicant to find out about the filming . Nor was he , according to the court , indifferent to the risk that she would find out about it . The court thereafter assessed whether the act legally constituted sexual molestation within the meaning of LAW , section CARDINAL of LAW . It referred to a ORG judgment ( ORG DATE p. CARDINAL ) in which ORG had held , among other things , that the filming of sexual abuse was not a crime in itself as in NORP law there was no general prohibition against filming an individual without his or her consent . Following that line of reasoning , and although finding that the act in question constituted a violation of personal integrity , notably in the light of the applicant ’s age and relationship to her stepfather , ORG found that the stepfather could not be held criminally responsible for the isolated act of filming the applicant without her knowledge . Even if she had indeed obtained knowledge of the filming , the court reiterated , this knowledge was not covered by the stepfather ’s intent .

ORG went on by pointing out that the act might , at least theoretically , have constituted an attempted child pornography crime ( försök till barnpornografibrott ) considering the applicant ’s age . However , since no charge of that kind had been brought against the stepfather , ORG could not consider whether he could be held responsible for such a crime . In conclusion , despite finding the stepfather ’s behaviour extremely reprehensible , he was acquitted and the applicant ’s claim for damages dismissed .

On DATE ORG ( ORG domstolen ) refused leave to appeal .

The relevant provisions of LAW ( ORG , TIME ) include the following :

“ A person who by violence or threat which involves , or appears to the threatened person to involve an imminent danger , forces another person to have sexual intercourse or to engage in a comparable sexual act , that having regard to the nature of the violation and the circumstances in general , is comparable to forced sexual intercourse , shall be sentenced for rape to imprisonment for CARDINAL and at DATE . Causing helplessness or a similar state of incapacitation shall be regarded as equivalent to violence .

If having regard to the nature of the violence or the threat and the circumstances in general , the crime is considered less serious , a sentence of imprisonment for at DATE shall be imposed . If the crime is gross , a sentence of imprisonment for CARDINAL and at DATE shall be imposed for gross rape . In assessing whether the crime is gross , special consideration shall be given to whether the violence involved a danger to life or whether the perpetrator caused serious injury or serious illness or , having regard to the method used or the victim ’s youth or other circumstances , exhibited particular ruthlessness or brutality . ”

“ A person who , under circumstances other than those defined in LAW , makes someone engage in a sexual act by unlawful coercion shall be sentenced for sexual coercion to imprisonment for DATE . If the person who committed the act exhibited particular ruthlessness or if the crime is otherwise considered gross , a sentence of DATE and at DATE shall be imposed for gross sexual coercion . ”

“ A person who induces another person to engage in a sexual act by gross abuse of his or her dependent state shall be sentenced for sexual exploitation to imprisonment for DATE . The same shall apply to a person who engages in a sexual act with another person by improperly taking advantage of the fact that the latter is helpless or in some other state of incapacitation or is suffering from a mental disturbance . If the accused has exhibited particular ruthlessness or if the crime is otherwise to be considered gross , imprisonment for DATE and at DATE shall be imposed for gross sexual exploitation . ”

“ A person who engages in a sexual act with someone DATE and who is that person ’s offspring or for whose upbringing he or she is responsible , or for whose care or supervision he or she is responsible by decision of a public authority , shall be sentenced for sexual exploitation of a minor to imprisonment for DATE . This also applies to a person who , in circumstances other than those mentioned previously in this LAW , engages in a sexual act with a child of DATE . If the person who committed the act exhibited particular lack of regard for the minor or if the crime by reason of the minor ’s young age or otherwise is regarded as gross , imprisonment for CARDINAL and at DATE shall be imposed for gross sexual exploitation of a minor . ”

Repealed

“ If a person has sexual intercourse otherwise than as previously provided in this LAW with his or her own child or its offspring , imprisonment for at DATE shall be imposed for sexual intercourse with offspring . A person who has sexual intercourse with a blood sibling shall be sentenced to imprisonment for at DATE for sexual intercourse with a sibling . The provisions of this Section do not apply to a person who has been made to commit the act by unlawful coercion or other improper means . ”

Before DATE the section provided , in as far as relevant , the following :

“ If a person sexually touches a child DATE otherwise than as previously provided in this LAW , or induces the child to undertake or participate in an act with sexual implication , a fine or imprisonment for at DATE shall be imposed for sexual molestation .

A sentence for sexual molestation shall also be imposed on a person who by coercion , seduction or other improper influence induces a person who has attained the age of DATE but not DATE to undertake or participate in an act with sexual implication if the act is an element in the production of pornographic pictures or constitutes pornographic posing in circumstances other than those relating to the production of a picture .

This shall also apply if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards the latter in a way that flagrantly violates a sense of propriety . ” ( Law CARDINAL:CARDINAL ) ”

Currently , the relevant legislation is placed in LAW , section CARDINAL and reads as follows :

“ A person who , otherwise than as previously provided in this LAW , sexually touches a child DATE or induces the child to undertake or participate in an act with sexual implications , shall be sentenced for sexual molestation to a fine or imprisonment for DATE .

This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort or who otherwise by word or deed molests a person in a way that is likely to violate that person ’s sexual integrity . ” ( Law CARDINAL:CARDINAL ) ”

“ A person who promotes or improperly financially exploits casual sexual relations for payment of another person shall be sentenced for procuring to imprisonment for at DATE . A person who , holding the right to the use of LOC , grants the right to use them to another in the knowledge that the LOC are wholly or to a substantial extent used for casual sexual relations for payment and omits to do what can reasonably be expected to terminate the granted right , he or she shall , if the activity continues or is resumed at the LOC , be considered to have promoted the activity and shall be sentenced in accordance with the first paragraph . ”

“ If the crime provided for in LAW is gross , imprisonment for CARDINAL and at DATE shall be imposed for gross procuring . In assessing whether the crime is gross , special consideration shall be given to whether the accused promoted casual sexual relations for payment on a large scale or ruthlessly exploited another . ”

“ A person who , by promising or giving recompense , obtains or tries to obtain casual sexual relations with someone DATE , shall be sentenced for seduction of youth to a fine or imprisonment for DATE . ”

“ Criminal responsibility as provided for in this LAW for an act committed against someone under a given age shall be required of a perpetrator who did not realise , but had reasonable grounds for assuming , that the other person had not attained such age . ”

“ An attempt to commit rape , gross rape , sexual coercion , gross sexual coercion , sexual exploitation , gross sexual exploitation , sexual exploitation of a minor , gross sexual exploitation of a minor , procuring and gross procuring shall be dealt with in accordance with the provisions of LAW . This also applies to preparation for and conspiracy to commit rape , gross rape , gross sexual exploitation of a minor and gross procuring , together with failure to reveal such crime . ”

“ If , in a case of sexual exploitation of a minor under LAW , first paragraph , second sentence or an attempt to commit such a crime , or in a case of sexual molestation under LAW , first paragraph , there is little difference in age and development between the person who committed the act and the child , public prosecution shall not occur unless it is called for in the public interest . ”

“ A person who

CARDINAL ) portrays a child in a pornographic picture ;

CARDINAL ) disseminates , transfers , grants use , exhibits or in any other way makes such a picture of a child available to some other person ;

CARDINAL ) acquires or offers such a picture of a child ;

CARDINAL ) brings about contact between a buyer and a seller of such pictures of children or takes any other similar step to facilitate dealing in such pictures ; or

CARDINAL ) possesses such a picture of a child

shall be sentenced for committing a child pornography crime to imprisonment for DATE , or , if the crime is petty , to a fine or imprisonment for DATE .

By child is meant a person whose pubertal development is not complete or who is DATE . If a person ’s pubertal development is completed , liability will be imposed for deeds committed under points CARDINAL above only if is apparent from the picture or its attendant circumstances that the depicted person is DATE .

.... ” ( Law CARDINAL:CARDINAL ) ”

Before DATE , the second paragraph of the section read :

“ By child is meant a person whose pubertal development is not complete or , if it is apparent from the picture and its attendant circumstances , who is DATE .

“ A person preparing or conspiring to mutiny [ ... ] shall be sentenced in accordance with the provisions of LAW . The same shall also apply [ ... ] to the crime of attempting to commit a child pornography crime described in section DATE , first paragraph .... ( Law CARDINAL:CARDINAL )

“ A person who has begun to commit a crime without bringing it to completion shall , in cases where specific provisions exist for the purpose , be sentenced for attempting to commit a crime if there was a danger that the act would lead to the completion of the crime or such danger had been precluded only because of fortuitous circumstances .

Punishment for attempt shall be at most what is applicable to a completed crime and not less than imprisonment if the least punishment for the completed crime is imprisonment for DATE or more . ”

The Code of Judicial Procedure ( ORG ) provides in so far as relevant :

“ A judgment may not be given for something else or more than that properly demanded by a party . In cases amenable to out - of - court settlement , the judgment may not be based on circumstances other than those pleaded by a party as the foundation of his action . ”

“ The judgment may relate only to an act for which a prosecution was properly instituted or to a matter referred by statute to the court ’s criminal jurisdiction . The court is not bound by a claim regarding the legal characterisation of the offence or applicable provisions of law . ”

LAW ( DATE ) provides in so far as relevant :

“ Anyone who deliberately or negligently causes a personal injury or damage to property shall compensate the injury or damage inferred . ( ORG ) ”

“ Anyone who seriously violates another person through a crime involving an attack against the person , freedom , serenity or honour of that person shall compensate the damage the violation inferred . ( ORG ) ”

In a judgment of DATE ( ORG DATE p. CARDINAL ) concerning a person who had secretly filmed sexual intercourse between himself and his girlfriend and who had subsequently shown the film to several persons , ORG noted that it was not prohibited under NORP law to film another person without his or her consent or to show the film to others . This was so , the court continued , even in situations where the deed in question deeply violated the personal integrity of the person concerned . Apart from certain exceptional situations , the only general sanctions available were the criminal provisions on defamation in conjunction with LAW , section CARDINAL of LAW ( now LAW , section CARDINAL of the named act ) . The court found that the accused person had committed defamation by showing the film to others .

A further judgment dated DATE ( ORG DATE p. CARDINAL ) concerned a man who had filmed and photographed a sleeping woman while assaulting her and committing sexual offences against her . ORG found his acts to constitute , inter alia , sexual molestation . ORG and ORG held that the filming and photographing did not constitute criminal offences under NORP law and that these acts were thus to be disregarded when assessing the man ’s conduct under criminal law .

Yet another judgment dated DATE ( NJA DATE p. CARDINAL ) concerned , inter alia , a person who had covertly filmed his ex - girlfriend with another man in an intimate situation and who had subsequently emailed the film , together with certain descriptive messages , to others . ORG found the filming to constitute molestation and the sending of some of the e - mails to amount to defamation . It also awarded the exgirlfriend damages for , inter alia , violation of personal integrity . ORG granted leave to appeal concerning only the former alleged offence , namely the sexual molestation , and the issue of damages . The court reiterated that NORP law contained no general prohibition against covert filming . The court also noted that in cases where the covert filming did not constitute a crime , no damages could be awarded . Although the need for a strengthened legal scheme in this regard had been acknowledged in NORP legislative work already in DATE , the ORG further noted , it had so far not led to any concrete results . According to the court , it was highly questionable whether the fact that acts of filming of an individual in situations where such filming deeply violated the personal integrity of the person concerned were left wholly unsanctioned under NORP law , was compatible with the requirements of LAW . Given this finding , the court continued , it was legitimate to examine whether sanctions could be provided by interpreting otherwise non - applicable domestic provisions in a treaty - conform manner . In this regard , the court referred to domestic case - law concerning compensation for violations of LAW ( see paragraphs CARDINAL - CARDINAL and CARDINAL ) . However , the court noted , another requirement under the LAW was that no one should be punished for an act which , at the time when it was committed , was not clearly criminalised by law . After having found that the filming in the present case did not fall under any applicable criminal provision , it was left unsanctioned and no damages were awarded .

NORP In DATE ORG issued a report on illicit photographing ( Ds CARDINAL:CARDINAL ) in which it proposed to criminalise such photographing - the term being used as meaning both photographing and filming - in certain situations . The aim of the proposal was in particular to protect individuals from interference in their private sphere by other individuals . It was proposed that the new criminal provision should cover anyone who , in a manner violating another individual ’s personal integrity , photographed or by other technical means recorded a picture of the individual in a home , bathroom , changing closet or a similar space . Moreover , the provision was proposed also to cover photographing or recording in any other space than the ones mentioned , if the act was committed in a pushy , covert or intrusive manner or if it constituted a serious violation of another individual ’s personal integrity in his or her capacity as a private person . It was proposed that sentences under the provision could range from penalties to imprisonment of DATE . According to the report , no need to criminalise attempted photographing had emerged and it was therefore proposed that such acts , an example being the placing of technical equipment with the aim to film someone , were not to be covered by the new provision .

In outlining the reasons for the proposal it was stated , inter alia , that acts of covert or unauthorized filming of individuals by other individuals had constituted a general problem for a long time and that the problem was growing . The technical development had resulted in that individuals could be photographed at in principal any place , at any time and in any circumstances . It was also acknowledged that such acts may violate an individual ’s personal integrity regardless of whether he or she was made aware of the filming while it was ongoing or found out about it at a later stage . The report also referred to domestic case - law and noted that although the showing of a photograph or film to other people had been found to constitute a criminal act in some cases , the mere filming had been left unsanctioned . The report furthermore referred to LAW and to the ORG ’s positive obligations under the article . In all , the report concluded , it was held unsatisfactory that acts such as the ones at issue were not prohibited by law .

In a judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) , which concerned the photographing and filming of certain young individuals aged over CARDINAL but under CARDINAL , ORG held that the pubertal development of the individuals was clearly complete and that it was impossible , from the pictures alone , to determine whether they had attained the age of DATE or not . Their age could moreover not be read from any text accompanying the pictures or any other attending circumstances . In such a situation , and regardless of whether the person responsible for the pictures was aware of the ORG age or not , the act could not be held to constitute a child pornography crime .

In a judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) concerning a claim for damages brought by an individual against ORG , inter alia , on the basis of an alleged violation of LAW on account of the excessive length of criminal proceedings , ORG held that the plaintiff ’s right under LAW had been violated . Based on this finding , and with reference , inter alia , to ORG and CARDINAL of the Convention and the ORG ’s case - law under these provisions , in particular the case of GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALXI ) , ORG concluded that the plaintiff was entitled to compensation under NORP law for both pecuniary and non - pecuniary damages .

In a decision of CARDINAL DATE ( ORG DATE p. CARDINAL ) , concerning length of detention , ORG held that the principle concerning a right to damages established in the above - mentioned case of DATE also applied with regard to the rights contained in LAW . ORG stated that the plaintiff ’s right to damages on account of a violation of the LAW should be assessed in the first place under domestic law which , to the extent necessary , should be interpreted in accordance with the Convention . If GPE ’s obligations under LAW could not be met by such an interpretation , the domestic courts should award compensation without the support of specific legal provisions .

In a judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) , ORG held that the plaintiffs’ right to respect for their private life under LAW had been violated as a police decision on a medical examination of some of them had not been “ in accordance with the law ” . Having found that compensation for the violation could not be awarded directly on the basis of LAW , ORG held that there was no reason to limit the scope of application of the principle established in the above - mentioned CARDINAL cases to violations of Articles CARDINAL and CARDINAL of the LAW and concluded that the plaintiffs should be awarded non - pecuniary damages for the violation of LAW .

A further ORG decision of CARDINAL DATE ( ORG DATE p. CARDINAL ) concerned a claim for damages brought by an individual against a private insurance company . The claim concerned an alleged violation of LAW related to secret surveillance undertaken in respect of the plaintiff . ORG noted that the LAW did not impose duties on individuals . Even if the ORG may have positive obligations under the ORG , the court continued , in view of the ruleof - law - value held by the principle of predictability , an individual could not be obliged to compensate another individual directly on the basis of the LAW .

Yet another ORG judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) concerned a claim for damages against the NORP State on the basis of an alleged violation of LAW relating to the suicide of the plaintiff ’s father while in detention . ORG concluded that the case revealed no violation of LAW . However , in its reasoning leading to this conclusion , ORG noted , inter alia , that according to the ORG ’s case - law there was a right to an effective remedy under LAW connected to the ORG ’s duty under the ORG to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty , which should , in principle , include a possibility of obtaining compensation for damage .

In a judgment in DATE ( NJA DATE n DATE ) , which concerned length of tax proceedings , ORG referred to the abovementioned caselaw and held it to be a general principle that in so far as the ORG had the obligation to compensate someone due to a Convention violation and such compensation could not be awarded on the basis of national law , the obligation was to be fulfilled by awarding compensation without a particular reference to domestic law . The ruling of ORG concerned only the amount of compensation awarded .

In a judgment of DATE ( NJA DATE p. CARDINAL ) , lastly , which concerned , inter alia , length of proceedings before ORG and ORG in a civil case against the ORG , ORG found violations of Articles DATE and CARDINAL of the ORG and awarded the plaintiff compensation .

Furthermore , the Chancellor of ORG has delivered decisions concerning compensation to individuals for violations of the Convention . In a decision of DATE , the Chancellor of ORG awarded an individual damages for violations found under , inter alia , ORG CARDINAL and CARDINAL . The case concerned , inter alia , storage of certain personal information concerning the applicants in the data bases of ORG .

In DATE the Government decided to set up a working group on tort liability and the Convention to study the current legal situation . In DATE the working group submitted its report ( PERSON , ORG CARDINAL:CARDINAL ) to the Government . In the report it is proposed that LAW be amended in order to allow natural and legal persons to obtain damages from the ORG or a municipality for violations of the LAW . Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the ORG has been violated . The aim of the proposal is to provide a legal basis for granting non - pecuniary damage arising from disregard of the LAW , and to fulfil , together with the other already existing legal remedies , GPE ’s obligations under LAW .

In the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse , drafted in DATE , ORG observed , inter alia , that the sexual exploitation of children , in particular child pornography and prostitution , were destructive to children ’s health and psycho - social development and that sexual exploitation and abuse of children had grown to worrying proportions at both national and international level , in particular as regards the increased use by both children and perpetrators of information and communication technologies . The Convention therefore obliged its Parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conducts , including offences concerning child pornography . The Convention was ratified by GPE on DATE and entered into force on DATE .


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violation of Art. 13+6;Violation of Art. 8;No violation of Art. 13+8;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national , who was born in DATE and lives in LOC , in GPE .

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

On DATE the applicant was detained and intimidated by a group of people , allegedly because they wanted him to testify against his relative PERSON , an official in ORG office .

On DATE the applicant was arrested on suspicion of involvement in a robbery , together with PERSON and a third person , U. The accusations against the applicant were made by the people who had allegedly intimidated him .

From DATE the applicant was interviewed several times by an investigator from the prosecution service , sometimes in the presence of ORG . A lawyer was appointed , but the applicant refused to accept his services as he did not trust him .

On DATE the ORG authorised the applicant 's detention on suspicion of theft . On DATE the applicant was officially charged with involvement in a robbery .

The applicant appealed against the decision to detain him on DATE . On DATE the ORG rejected his complaint without giving any reasons .

The investigation was completed on DATE and the applicant was given access to the case file DATE . A lawyer , whom the applicant later dismissed , was present at this stage . The indictment was sent to the ORG on DATE or DATE .

On DATE the case file was transferred to the ORG . After that date all complaints and requests submitted by the applicant to other authorities were forwarded to that court , in accordance with Section CARDINAL of the Code of Criminal Procedure ( ORG ) .

On DATE the ORG scheduled the first hearing for DATE . The judge ordered the continued detention of the applicant and CARDINAL other co - accused , ORG , without giving reasons .

On DATE a judge of ORG adjourned the case because the applicant had not had sufficient access to the case file . DATE the applicant was allowed additional access to the case file and was officially served with the indictment . The applicant submits that he was allowed only short periods over DATE to review CARDINAL pages of documentation in the case file . He also submits that he was handcuffed while accessing it , and had difficulties copying the relevant documents .

The scheduled court hearing on DATE did not take place , due to the absence of the victims and CARDINAL of the representatives . On DATE the judge ordered a psychiatric report on U. and adjourned the hearing .

It appears that further hearings were scheduled , but were adjourned or cancelled on CARDINAL DATE , DATE , CARDINAL DATE and DATE .

LAW entered into force in respect of GPE on CARDINAL DATE .

On DATE the ORG rejected requests by the applicant and his co - accused PERSON for release from detention , and stated that “ at this stage of proceedings their release could influence further trial hearings ” . On CARDINAL DATE ORG rejected an appeal by PERSON against this order .

On DATE the case was adjourned due to the illness of U. By the same decision , the applicant 's further detention on remand was confirmed . On DATE the applicant complained to the ORG about his continued detention on remand . On DATE he was informed that his detention was lawful and that he could challenge it before ORG .

The trial resumed on DATE and on DATE the ORG returned the case to the prosecutor 's office for an additional investigation .

On DATE and DATE the applicant lodged complaints with the President of ORG in respect of his detention on remand . No response was received to those complaints .

On DATE the ORG appealed against the order of DATE , by which the case had been sent for additional investigation . On DATE the ORG quashed that order and instructed ORG to consider the case on the merits . ORG also ordered the continued detention of the applicant and his co - accused , ORG , without giving reasons .

On DATE the hearings resumed , and on DATE the applicant was convicted of robbery and sentenced by ORG to DATE imprisonment . He was represented by a lawyer . The applicant appealed , and on DATE ORG upheld ORG judgment . The applicant was not present at the appeal hearing and was informed of its outcome on DATE . The conviction of CARDINAL DATE subsequently entered into force and the applicant was sent to a detention centre to serve his sentence .

On DATE the ORG of ORG , acting by way of supervisory review of a request lodged by the Chairman of ORG , quashed the conviction of DATE ( as confirmed on DATE ) for procedural irregularities and remitted the case to the first instance court .

The case file was returned to the ORG on DATE . On DATE the applicant was returned to the PERSON town detention centre ( ORG CARDINAL/CARDINAL ) . A judge was appointed to hear the case on DATE .

On DATE the hearing opened , and on CARDINAL DATE the ORG ordered a medical examination of the applicant in a psychiatric hospital . The report was required because of the applicant 's “ strange behaviour which raised doubts about his mental health ” . The behaviour manifested itself in an “ inadequate reaction to questions , [ and ] the constant submission of fictitious and ill - founded requests ” . The applicant was not given a copy of that order for DATE . He appealed against that decision and his continued detention on remand to the ORG on DATE , DATE and DATE , as well as on DATE , DATE and DATE DATE , but received no reply . He also appealed to ORG on DATE and to ORG on DATE . Both replied that his complaints had been forwarded to ORG . The Government submitted that these complaints concerned the actions of the trial court judge and did not raise issues concerning the lawfulness of detention .

The case file was transferred to the ORG psychiatric hospital on DATE . On DATE the file was returned to ORG , no report having been prepared . On DATE the judge of ORG adjourned the case pending another report on an out - patient basis . The applicant announced in the court room that he would begin a hunger strike , which apparently lasted until DATE . He alleged that the judge presiding in the case was not impartial , and that he had made threats against the applicant 's relatives .

The applicant appealed against the order for a psychiatric report to the Armavir Town and Krasnodar Regional Prosecutors , to ORG , to ORG and other administrative bodies . On DATE ORG forwarded the applicant 's complaints to ORG . On DATE ORG informed the applicant that his complaint had been forwarded to ORG , which was to forward the case file for an appeal hearing before ORG . No hearing took place .

On DATE the Chairman of the ORG replied to the applicant and to ORG that no violations of the domestic law had been committed in the handling of the case . He dismissed the applicant 's allegations that the presiding judge had threatened his relatives as “ fictitious and ill - founded ” . The letter concluded that there were no reasons to question the impartiality and qualifications of the presiding judge .

On DATE a medical commission examined the applicant in the detention centre and found him to be of sound mind .

DATE , the applicant submitted QUANTITY requests to the ORG for additional access to the case file . His request was granted for a period from DATE , when he was allowed to have access to and make hand - written copies of relevant documents . The applicant submits that he was allowed CARDINAL to consider the case file of CARDINAL pages .

On DATE the case was adjourned . On DATE the applicant appealed against the adjournment to ORG , but his appeal was not examined .

On DATE the hearing in the ORG resumed and on DATE the applicant was convicted of attempted robbery and sentenced to DATE imprisonment . The applicant did not appeal against the conviction , which entered into force DATE . The applicant was released from detention on DATE , as he had by that time spent DATE , DATE in detention and was granted an amnesty . The CARDINAL co - accused , ORG , were also sentenced to prison terms , but did not have to serve their sentences as they also benefited from an amnesty .

The applicant claimed that in DATE the administration of GPE - CARDINAL/CARDINAL , where he had been detained on remand , refused to forward his application to the ORG . The applicant forwarded the letter through his relatives , who posted it on DATE .

The explanatory notice attached to ORG letter of DATE was not given to the applicant .

NORP The applicant further claims that on DATE he forwarded a letter , with enclosures , to the ORG , and that this letter never arrived . On DATE the applicant sent the letter again via his mother .

A letter from the applicant to the ORG dated DATE was posted on DATE . The applicant lists a number of enclosures to that letter , none of which arrived . The applicant sent them again on DATE through his relatives .

The applicant was not permitted by the prison administration to retain the correspondence from the ORG , which was given to him for DATE and then taken away .

The Government submitted that the applicant sent CARDINAL letters addressed to ORG while in prison - on DATE and on DATE . Both were posted promptly by the prison authorities , and proof of posting exists . The applicant received CARDINAL letters from the ORG in response , dated DATE , CARDINAL DATE and DATE , all of which were transmitted to him immediately in their entirety upon receipt . As proof , the ORG submitted a copy of the correspondence log maintained by the prison authorities which confirmed the applicant 's receipt of the ORG 's CARDINAL letters .

According to the Government , in DATE the national legislation was amended to end censorship of correspondence with ORG in detention centres .

It also appears that in DATE the applicant attempted to sue the postal service for failure to deliver his letter of DATE to ORG . On DATE the ORG refused to consider the merits of his claim for pecuniary and non - pecuniary damages against the PERSON postal service . On DATE the ORG quashed and remitted the decision of DATE . It further appears that on DATE the ORG rejected the applicant 's claim on the merits , and the applicant did not appeal against that judgment .

The Code of Criminal Procedure ( ORG ) , in force at the relevant time , provided in LAW that custody could be imposed as a measure of restraint for offences punishable by imprisonment of DATE .

The ORG provided in LAW that , after the investigation had been completed , the prosecutor should approve the bill of indictment and forward the case to the court . Thereafter , all complaints and requests should be forwarded directly to the trial court .

Under Articles CARDINAL - CARDINAL and CARDINAL of the ORG , an appeal against an order extending a period of detention lay with a court .

Articles CARDINAL - CARDINAL and CARDINAL of the ORG provided that , when the accused was in detention , the judge should set the date for the first hearing within DATE of receiving the case file from the prosecutor . At the same time , the judge should also decide whether the accused should be remanded in custody .

Article CARDINAL of the ORG excluded appeals against certain orders ( определения и постановления ) of the trial court , such as setting dates for the hearing , forwarding the case for additional investigation , or requesting an in - patient psychiatric report . This Section was found unconstitutional by ORG on DATE , to the extent that it prevented persons in detention from appealing against court orders which had the effect of extending their detention .

Articles DATE and CARDINAL of LAW DATE No . CARDINAL “ On pre - trial detention ” provides that detainees have an unlimited right to submit complaints and letters to governmental and non - governmental bodies . Complaints addressed to the prosecutor , courts and other authorities charged with supervising the legality of detention are not subject to censorship and should be forwarded to the addressee in a sealed envelope . Other letters and complaints are subject to censorship by the administration and are to be forwarded by it within DATE of their submission . Any decision by the administration of a detention centre may be appealed in the hierarchical order to a prosecutor and a court . Similar provisions are contained in LAW of pre - trial detention centres , dated DATE and DATE ( Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства внутренних дел Российской PERSON , утв. приказом ORG РФ от DATE г. N CARDINAL ; PERSON внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства юстиции Российской PERSON , утв. приказом ORG РФ от CARDINAL мая DATE г. N CARDINAL , с изменениями от CARDINAL февраля DATE г. ) .


Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested . The applicant , Mr NORP , and PERSON were charged with CARDINAL count of robbery . The applicant was also charged with handling of CARDINAL handguns with cartridges .

On DATE the proceedings against Mr B. were disjoined .

On DATE the applicant was released having given a written undertaking not to abscond .

In the period prior to DATE the NORP ORG of Kyiv ( the district court ) remitted the case twice for additional pre - trial investigation .

On DATE the district court found the applicant guilty and sentenced him to CARDINAL years’ imprisonment . The applicant was arrested .

On DATE ORG ( the court of appeal ) quashed the part of the judgment concerning the applicant ’s conviction and remitted the case for fresh consideration to the district court . The court of appeal upheld the applicant ’s detention on remand .

On DATE the district court remitted the case for additional pre - trial investigation . The applicant was remanded in custody .

On DATE the court of appeal quashed the ruling of DATE and remitted the case to the district court for consideration . By the same decision it upheld the applicant ’s detention on remand .

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

On DATE the district court sentenced the applicant to DATE and CARDINAL days’ imprisonment .

On DATE and CARDINAL DATE the court of appeal and ORG , respectively , upheld the judgment of DATE .

According to the records provided by the ORG , the applicant challenged a judge sitting in his case on CARDINAL occasions , and once he challenged a prosecutor . On CARDINAL occasions the applicant failed to appear .