Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE , GPE . He is the chairman of a regional branch of ORG ( « Հանրապետություն » կուսակցություն ) .

NORP In DATE a presidential election was held in GPE with its first and second rounds taking place on DATE and DATE respectively . Following the first and second rounds , a series of protest rallies were organised in GPE by the opposition parties .

On DATE the applicant participated in a demonstration held in GPE which was apparently followed by a march .

On DATE , when another demonstration was apparently supposed to take place in GPE , the applicant and CARDINAL other members of his party set off by car from GPE to GPE .

The applicant alleged that on the road to GPE their car was stopped by several individuals in civilian clothes who introduced themselves as officers of ORG . The applicant and his colleagues were taken to ORG . From there the applicant was transferred to ORG of GPE where an administrative case was initiated against him on account of his participation in the demonstration of DATE .

On DATE , TIME , the applicant was taken to the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքներկ առաջին ատյանի դատարան ) . There he was brought before Judge PERSON who , having heard the applicant and his lawyer , after a brief hearing sentenced the applicant under LAW ( Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “ the CAO ” ) to DATE of administrative detention , finding that :

“ On DATE [ the applicant ] participated in an unauthorised march , thus violating the prescribed rules for organising and holding street marches and demonstrations .

For this act [ the applicant ] was brought to ORG on DATE .

The fact of [ the applicant ’s ] participation in an unauthorised march was confirmed by the explanation given by [ the applicant ] in court and the examination of the materials of the administrative case file . ”

The decision stated that it was not subject to appeal and could be protested against only by the prosecutor .

On DATE the applicant ’s lawyer lodged both an appeal with the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) and an application with ORG ( ՀՀ գլխավոր դատախազ ) requesting him to initiate an appeal against the decision of ORG . The lawyer argued at the outset , relying on various domestic provisions , that he was entitled to lodge an appeal against the decision of ORG . As to the merits , he submitted that the interference with the applicant ’s right to freedom of peaceful assembly was in violation of the LAW and was not prescribed by law , and the penalty imposed was excessive . The lawyer attached a copy of the contested decision to the appeal .

On DATE the President of the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ ) reviewed the applicant ’s conviction , finding that :

“ [ The applicant , according to the decision of ORG , was subjected to administrative detention ] ... for violating the prescribed rules for organising and holding assemblies , demonstrations , street marches and rallies , by participating in an unauthorised demonstration and street march on DATE .

Having familiarised myself with [ the applicant ’s ] appeal and the materials concerning the administrative offence , I find that the penalty imposed on [ the applicant ] must be changed . ”

The President changed the penalty to an administrative fine of QUANTITY ( ORG ) ( MONEY ( ORG ) at the material time ) and ordered the applicant ’s release . On the same date the applicant was released from detention , after he had served DATE of his sentence .

By a letter of CARDINAL DATE the applicant ’s lawyer was informed by ORG ( ՀՀ գլխավոր դատախազություն ) that , on the basis of the applicant ’s appeal , the penalty had been changed and the applicant had been released by decision of ORG .

On DATE the applicant supplemented his initial application , complaining about the following events .

On DATE he participated in a demonstration held in GPE .

On DATE he was taken to a police station and then transported to the GPE and ORG of GPE where an administrative fine of ORG CARDINAL,CARDINAL was imposed on him for having organised the participation of a group of people from his region in an unauthorised demonstration on DATE .

For a summary of the relevant provisions concerning administrative proceedings see the judgment in the case of ORG v. GPE ( no . GPE , § DATE , DATE ) .

For a summary of the relevant legislation invoked by the parties in connection with LAW ORG ( see paragraphs CARDINAL and CARDINAL below ) see the judgment in the case of Mkrtchyan v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .


Violation of Article 6 - Right to a fair trial

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE the applicants were taken into police custody .

On DATE the applicants were brought before the investigating judge , who ordered their detention on remand .

On DATE ORG public prosecutor filed an indictment against the applicants He accused the first applicant of aiding and abetting an illegal organisation , and the second applicant of being a member of an illegal organisation .

On DATE ORG found the applicants guilty as charged and sentenced each of them to CARDINAL months’ imprisonment and a fine .

On DATE ORG at ORG submitted his written opinion on the merits of the appeal . He advised that the appeal be rejected and that the first - instance judgment be upheld .

On DATE ORG quashed the first - instance court ’s judgment on the ground that the applicants should have been sanctioned under LAW for aiding and abetting an illegal armed organisation .

On DATE ORG adhered to the reasoning of ORG and convicted the applicants pursuant to LAW .

On DATE ORG submitted his written opinion on the merits of the case and stated that ORG should uphold the judgment of ORG .

On DATE , ORG , in conformity with the opinion of ORG , upheld the first instance judgment .


ORG The applicant , Mr PERSON , is a farmer and a contractor . He was born in DATE and resides in GPE , PERSON .

ORG On DATE an enforcement notice was issued and served on PERSON by ORG requiring the demolition of CARDINAL brick buildings on land which the applicant had bought in DATE . The enforcement notice recited that there appeared to the ORG to be a breach of planning control in that the CARDINAL brick buildings had been erected without the necessary planning permission . The notice required the applicant to demolish the buildings and remove the building materials within DATE . In doing so , the authorities acted in accordance with section CARDINAL of ORG DATE , which consolidated earlier legislation ( " TCPA " - see paragraph CARDINAL below ) .

ORG The applicant appealed to the Secretary of ORG for the Environment under section CARDINAL ( CARDINAL ) ( a ) , ( b ) , ( g ) and ( h ) TCPA ( see paragraph CARDINAL below ) .

ORG In accordance with the relevant legislation ( see paragraph CARDINAL below ) , an inspector was appointed to conduct an inquiry and determine the appeal . He was a ORG , a civil servant and a member of the salaried staff of ORG . He had been appointed by the Secretary of ORG after approval of the Lord Chancellor . In his decision letter of CARDINAL DATE the inspector rejected the appeal under grounds ( a ) , ( b ) , and ( g ) but allowed it under ground ( h ) to the extent that the compliance period should be extended from DATE . He held , inter alia , as follows :

" The appeal on ground ( b )

( CARDINAL ) What I need to decide in respect of this ground of appeal is whether , as a matter of fact and degree , the buildings could , from their appearance and layout , be considered to have been designed for the purposes of agriculture . I conclude , from examination of photographs taken during construction and from noting the alterations made since , that the ORG were right to be concerned that the appeal buildings had the appearance of large detached houses . The size , layout , and original external appearance of the buildings and their detailing did little to change that view .

( CARDINAL ) In my opinion , as originally constructed , the buildings would have led any reasonable person to have concluded that he or she was looking at the start of a small new detached housing estate . Indeed , that appeared to be the widely held view of many local people , supported by the local Member of ORG , who were concerned to see what was being built on the edge of the village . The more recent construction of an , as yet , uncompleted but similar building close to the CARDINAL appeal buildings serves to compound the effect .

( CARDINAL ) But it is the original appearance of the CARDINAL appeal buildings and particularly the first assessment of ORG which convinces me that the buildings were not requisite or reasonably necessary for the purposes of agriculture . Numerous features of the buildings were more suited to houses than barns . The original openings in building No . CARDINAL were said to be doorways for a veal calf unit . But this building did not incorporate internal drainage considered necessary for such stock . The doorways appeared to have been more likely to have been useful as window openings , none reached ground level as built ; CARDINAL was almost waist high above outside ground level measured from the lower edge of the unbonded brickwork added later . Other features in both buildings include the extensive use of NORP - style windows and other windows made for domestic use . I understand that PERSON PERSON ’s contacts allowed him to buy these windows cheaply . But whatever their source , they contribute to an impression that the buildings look more like houses than barns . There are other features which add to that view . The use of domestic - style eaves and gable barge boarding . The residential look of the ‘ porch’ to No . CARDINAL building . And the [ ORG ] view about the uneconomic layout of both buildings as originally built all add to the impression that these buildings were not designed for agricultural purposes , albeit they have since been modified and adapted for such a use .

( CARDINAL ) You said that the buildings looked like many local old barns . But it is my view that , as originally built , the appeal buildings would have looked much more like houses . They did not look as if they had been designed for the purposes of agriculture . My opinion is not altered by my finding them now being used for storing hay . The appeal on ground ( b ) fails .

The appeal on ground ( a )

( CARDINAL ) The appeal buildings lie in part of the green belt ... They also lie within ORG but outside the village policy area for Higher PERSON shown on the draft ORG . In my opinion , the decision turns on the following main issues . Whether , if the development is inappropriate to the green belt , there are any special circumstances to justify the granting of planning permission ; secondly , whether the appeal buildings enhance or preserve the character or appearance of the conservation area . I shall also consider the effect of the development on the countryside surrounding the village .

( CARDINAL ) ...

( CARDINAL ) The appeal buildings have neither enhanced nor preserved the appearance of this part of the conservation area , rather the reverse . Much of the pleasant nature of the area is derived from the grouping of the older housing around the centre and from its rural and agricultural setting . The CARDINAL appeal buildings look like part of a small estate of detached houses with access roads and suitable garden areas . The third building , not subject of this appeal , exacerbates this impression .

( CARDINAL ) These objections amount to sound and clear - cut reasons why planning permission should be withheld . The fact that other buildings or buildings of a broadly similar nature , if considered to be designed for agricultural purposes , could be built under the provisions of ORG , does not affect my decision . The appeal on ground ( a ) fails .

The appeal on ground ( g )

( CARDINAL ) You said that demolition of the buildings and the removal of the materials was an excessive requirement . I do not agree . Harm to the purpose of the green belt has been caused . The appearance and character of the conservation area has not been either enhanced or preserved . Encroachment on the countryside has occurred . Making the buildings look more like those which might have been permitted development as you suggested could mitigate a little of the harm I have identified . But this is not just a matter of cosmetics . The main objections would remain . In my opinion , the proper and necessary course of action is that required by the notice . That includes removal of materials . Such a requirement would not preclude their re - use on site for any possible future permitted development . The appeal on ground ( g ) fails .

The appeal on ground ( h )

( CARDINAL ) ... PERSON wanted more time in order to erect a replacement or replacements before demolition . I see no need to insist on a period which would make undue difficulty for him . I will increase the period to DATE ...

( CARDINAL ) I have taken account of all the other matters raised , including the possibility of your client putting up a large steel - clad building under permitted development rights , but find they do not affect my decision . "

ORG The applicant appealed against this decision under LAW TCPA ( see paragraph CARDINAL below ) . In his Notice of Motion , the applicant first alleged that the inspector had " erred in law in applying the wrong test in deciding whether the buildings were permitted development under the provisions of the ... ORG " and " in considering that the said buildings were not requisite or reasonably necessary for the purposes of agriculture when there was no evidence upon which any reasonable inspector could so find " . The subsequent grounds of appeal dealt expressly with grounds ( a ) and ( g ) of the appeal to the Secretary of ORG ( see paragraph CARDINAL above ) .

ORG The appeal was dismissed by ORG on DATE , the judge , Mr PERSON , ORG , finding inter alia as follows :

" A principal argument on behalf of the applicant at the inquiry under [ ground ] ( b ) was that the erection of the CARDINAL buildings was permitted development under LAW ...

The applicant does not challenge the inspector ’s decision under ground ( b ) . Nevertheless paragraphs CARDINAL and CARDINAL of the decision letter , where he is still dealing with that ground , are relevant to the court ’s consideration of his decision on grounds ( a ) and ( g ) ...

In my judgment ... it can not be said that the inspector failed to take into account the fact that the applicant might , within his ORG rights , erect buildings of a broadly similar nature . He addressed that very consideration in terms at paragraph CARDINAL of his decision letter . Because the applicant had those rights and wanted more time to erect a replacement or replacements , the inspector extended the applicant ’s time for complying with the enforcement notice under ground ( h ) .

Whether the existence of these General Development Order rights provided sufficient reason for the inspector to grant planning permission for the buildings in fact erected , whether or not conditioned as suggested by the applicant , was a matter for judgment - the inspector ’s judgment . Whether another decision - maker would have reached the same conclusion as did this inspector is not to the point . Nor is the view of this court , which does not sit on appeal from the judgment of inspectors , relevant . I am unable to say that there was anything irrational in the inspector ’s decision . In particular , the question whether the alterations proposed to a building were , as he evidently thought , a ‘ matter of ORG and would not meet the main objections was entirely a matter of planning judgment for him . It is to be remembered that , in order to stay within his ORG rights , the applicant must erect replacement buildings which , by their appearance and layout , could be considered as designed for the purposes of agriculture . If they are , their effect on the green belt , the countryside and the conservation area is irrelevant to the exercise of that right . That does not , however , in my judgment mean that the inspector acted irrationally in concluding that the buildings in fact erected without permission under LAW were objectionable and should be demolished .

In the result , I find no error of law and I dismiss the application . "

ORG At the hearing held before ORG on DATE , the applicant ’s representatives stated that , although they had not represented the applicant before ORG , they surmised that the challenge to the inspector ’s ground ( b ) reasoning had been raised in LAW and then abandoned at the hearing because of the limited jurisdiction of ORG . In confirmation of this , the applicant furnished the ORG with a statement by the barrister who had represented him in ORG .

ORG Leave to appeal to ORG was refused . ORG , on DATE , also refused leave to appeal .

ORG Under LAW TCPA , planning permission is required for the carrying out of any development on land . LAW TCPA allows for planning permission to be granted by a development order .

ORG no . DATE ( " TCPGDO " ) sets out classes of development for which permission is automatically granted .

According to LAW , and Class A of Part CARDINAL of Schedule CARDINAL to the TCPGDO , planning permission is deemed granted for the following developments :

" A. The carrying out on agricultural land comprised of an agricultural unit of -

( a ) works for the erection , extension or alteration of a building , or

( b ) any excavation or engineering operations , reasonably necessary for the purposes of agriculture within that unit . "

ORG Accordingly , buildings , structures or works not designed for the purposes of agriculture require planning permission ( paragraph A.CARDINAL ( c ) of Class A of Part CARDINAL of Schedule CARDINAL to the TCPGDO ) .

ORG Where it appears to the local planning authority that there has been a breach of planning control and the authority consider that it is expedient to do so , they may issue an enforcement notice requiring the breach to be remedied ( section CARDINAL TCPA ) .

Section CARDINAL ( CARDINAL ) ORG provides that an appeal against an enforcement notice may be made to the Secretary of ORG on any of the following grounds :

" ( a ) that planning permission ought to be granted for the development to which the notice relates or , as the case may be , that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged ;

( b ) that the matters alleged in the notice do not constitute a breach of planning control ;

( g ) that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control or to achieve a purpose specified in section CARDINAL ( CARDINAL ) ;

( h ) that the period specified in the notice as the period within which any step is to be taken falls short of what should reasonably be allowed . "

Section CARDINAL ( CARDINAL ) ORG provides that if an appellant or the local authority desires , the Secretary of ORG shall give each of them the opportunity of appearing before and being heard by a person appointed by the Secretary of ORG for the purpose . Where such a person has determined an appeal , his decision shall be treated as that of the Secretary of ORG . Pursuant to the applicable regulations , appeals against enforcement notices are heard and determined by an inspector .

ORG According to ORG ( DATE ) , " staff of the ORG act on behalf of the [ Secretary ] of ORG for the Environment ... This work includes that of inspectors who , exercising their own independent judgment , decide cases or make recommendations to the ... Secretary of ORG ... " ( paragraph CARDINAL.CARDINAL ) . The process of decision - making on appeals has a " quasi - judicial character " ( paragraph CARDINAL ) . The ORG , which " upholds the principles of openness , fairness and impartiality " ( paragraph CARDINAL ) , is " subject to the scrutiny of the ORG , ORG and ORG ... " ( paragraph CARDINAL ) . Among the objectives of the ORG is that of maintaining " the integrity of each inspector as an independent tribunal , not subject to any improper influence " ( paragraph CARDINAL ( ii ) ) .

Annex B to LAW adds :

" Each inspector must exercise independent judgment and must not be subject to any improper influence , nor must it appear that the inspector may be subject to any such influence . "

The basic principles set out in this document had long been applied in practice .

ORG In determining planning appeals , inspectors are required to have regard , inter alia , to the policies promulgated by the Secretary of ORG on matters of planning as a " material consideration " ( section CARDINAL TCPA ) and to comply with the various procedural rules for the conduct of enforcement appeals ( ORG DATE , and ORG ) ( Inquiries Procedure ) Rules DATE ) . Like any other person exercising statutory powers , the inspector must also act in a procedurally fair manner .

ORG Decisions by inspectors are not seen by ORG in draft before they are promulgated . However , up until the time when the decision letter is issued , the Secretary of ORG may revoke the power of an inspector to decide an appeal ( Schedule CARDINAL to the TCPA ) .

Section CARDINAL TCPA provides for appeals against a decision of the Secretary of ORG under section CARDINAL . An appeal may be made to ORG on a point of law , or the Secretary of ORG may be required to state a case for the opinion of ORG ( section CARDINAL ( CARDINAL ) TCPA ) .

ORG It is common ground that an appeal " on a point of law " may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , pp . CARDINAL ORG ) . ORG will also grant a remedy if the inspector ’s decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority ( see paragraph CARDINAL above ) .

ORG As an appeal to ORG under LAW ( CARDINAL ) is on a point of law , ORG has no power to receive further evidence on primary facts ( Green v. Minister of ORG [ DATE ] CARDINAL All England Law Reports CARDINAL , p. CARDINAL ) . GPE ’s ORG and GPE , CARDINALth edition , vol . CARDINAL ( DATE reissue ) describes many of the cases on the question of whether a point is CARDINAL of fact or of law as " irreconcilable " ( p. CARDINAL ) . GPE ’s ORG states that " if there is no evidence for a particular finding or if the tribunal does not take into account at all a relevant consideration , there could well be grounds of appeal raising a question of law . The contention that a tribunal has failed to give adequate weight to evidence or sufficient consideration to a particular circumstance does not afford such grounds ; and the weight which a tribunal gives to a particular piece of evidence or a particular consideration is a matter for that tribunal " ( GPE ’s ORG , CARDINALth edition , vol . DATE reissue ) , p. CARDINAL ) .


No violation of Art. 6-1;No separate issue under Art. 6-2;No separate issue under Art. 6-3-c;No separate issue under Art. 6-3-d;No separate issue under Art. 13

For DATE until DATE the applicant was employed as an accounts clerk at a fruit and vegetable wholesalers . It was her job to bank cash and cheques . In DATE she resigned after telling the company secretary ( “ S. ” ) that there was a shortfall in the accounts which had been caused by the theft in DATE of CARDINAL bags containing GBP CARDINAL , which she said had been taken out of her possession at some time between her getting the money ready for banking at her place of work , visiting a local public house at lunchtime , and arriving at the bank . She said that she had not reported the theft earlier because she was afraid she would be held responsible and lose her job , and that she had made efforts to meet the shortfall from her own money , but that the strain had become too much . S. subsequently went through the accounts from DATE and discovered a shortfall of MONEY CARDINAL,CARDINAL . He also discovered that since DATE the applicant had been consistently banking the takings late and occasionally failing to bank all the cash received .

The applicant was charged with stealing GBP CARDINAL,CARDINAL.CARDINAL . She pleaded not guilty and , in DATE , following a DATE trial in a ORG before a judge and jury , she was convicted of theft and sentenced to CARDINAL years’ probation and CARDINAL ORG community service . She was DATE at the time and had no previous convictions .

The applicant appealed against conviction . Her grounds of appeal were , inter alia , that the judge had made frequent interruptions and persistently hectored defence counsel , thus depriving the applicant of a fair trial . In particular , it was submitted that during the defence counsel ’s cross - examination of the main prosecution witness , PERSON , the judge had intervened so frequently that defence counsel was prevented from testing the accuracy of a schedule of banking payments prepared by PERSON which was the basis of the prosecution case , or from developing possible lines of defence , such as that the loss had occurred prior to the commencement date in the schedule . In addition , the applicant complained that the judge had constantly interrupted her examination - in - chief , making it impossible for her to give her evidence in a coherent manner , and had hectored her counsel to such an extent that he had felt unable to continue and had curtailed the examination . The grounds of appeal referred to the transcript of the trial which showed interventions by the judge on almost every page of S. ’s cross - examination and on CARDINAL of the QUANTITY pages of the applicant ’s examination - in - chief .

NORP In DATE ORG dismissed the applicant ’s appeal against conviction , finding as follows :

“ The principal ground relied upon by PERSON , who appeared at trial and also on this appeal before us , was that the trial was unfair ( and he does not mince his words ) because of the attitude of the learned judge from the moment that he began to cross - examine [ S. ] through to the time when the appellant was giving her evidence in - chief , throughout her cross - examination , and even up to the moment when he was addressing the jury on her behalf at the close of the evidence . He says that there were frequent interruptions and that on balance they were hostile to the defence case being presented . They had the effect of disturbing his concentration and diverting the attention of the jury and also the attention of the appellant who was thereby unable to present a coherent and consecutive account of what had happened .

We find that there is some substance in those criticisms . It appears from a reading of the transcripts that there were frequent interruptions at the start of the appellant ’s evidence . In our view those interruptions , though no doubt well intentioned , may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also , as seems to have been the case and as Mr PERSON tells us , of disconcerting him . Likewise , so far as the evidence of [ S. ] is concerned , it does appear that , probably through a misunderstanding of the points that Mr PERSON was seeking to make , the learned judge did interrupt cross - examination far more often than could be justified on any view . We are not impressed with the complaint which is made about the interruption which occurred during Mr PERSON ’s speech to the jury . That was simply to clear one matter up ; it could have occupied CARDINAL about TIME out of a speech lasting TIME or thereabouts , we are told . That complaint is unjustified .

We have to consider that ground and the criticisms which we feel have been made good in the context of the case as a whole . But we turn from that first ground of appeal to the second , which is to the effect that the summing - up was defective . ...

This was a very short summing - up . It might be said that it was somewhat laconic . But we have to consider whether or not there was a sufficient reference to the defence which was being put forward . In essence the learned judge dealt with the defence at pages CARDINAL and CARDINAL of the transcript . He said :

‘ ... the broad case is the defendant says that the money was taken from her , I think it is fair to say now in DATE rather than DATE , as she originally said , and that she believes now it may well have been taken from [ her place of employment ] , and she seeks to support that by saying there have been other small thefts [ there ] , which suggests somebody dishonest was there who might have taken this amount.’

... That was a very short way of putting the defence forward . It does not deal in great detail with the points which PERSON had been attempting to advance both in the course of the cross - examination and in his speech . To that extent the criticism is justified .

It is a further criticism that the judge erred in withdrawing from the jury a main line of defence to the effect that the loss may have occurred prior to DATE , but we find that that ground of appeal is misconceived . The prosecution case was quite simply that the money must have gone after DATE because it was the reconciliation of the cash received , with the amounts paid into the bank , which produced the deficiency of GBP CARDINAL . No part of that sum could have been stolen before DATE .

Further it is said that the judge wrongly directed the jury that there was no evidence of there being a second paying - in book in use at the time , and the complaint is made that the appellant said that there was ( in conflict , it has to be said , with the evidence of [ S. ] ) . This was a mistake on the judge ’s part , so it appears , and something which we have to take into account .

It is then said that the judge erroneously implied that defence counsel had failed to suggest to [ S. ] that there was CARDINAL paying - in book , and once again it appears that the judge was in error about that . So far as we have been able to see , he was not corrected subsequently .

Next it is said in further criticism of the summing - up that the judge told the jury that the appellant never made the suggestion that the money might have been stolen before she left her place of work on DATE in question . That , too , was an error , but it was corrected by [ prosecution counsel ] at the close of the summing - up and in itself could not support a basis for quashing the conviction . ...

As we have observed , there are criticisms which can be made of the manner in which this trial was conducted . It does seem to us that on occasions this very experienced and highly regarded circuit judge ( now retired ) did enter the arena , sometimes for legitimate reasons and at other times perhaps without justification . It does seem to us also that counsel found himself incommoded and disconcerted by those interventions and interruptions . Counsel have to possess ( and if they do not have them they have to grow ) rather thick skins . There was never an occasion where the learned judge in the course of trial , so it appears to us , made a ruling to the effect that PERSON should not continue with the line of defence that he was attempting to develop either in cross - examination or through his own witness . It appears to us that perhaps Mr PERSON was on this occasion a trifle oversensitive . That does not , of course , detract from the validity of the criticisms – some well - founded , some not – in the round . In the end we have to ask ourselves whether or not we think this conviction was unsafe . That is the test we have to apply .

The case was a strong one ; indeed the evidence was overwhelming . The appellant on her account to the police and to the jury was admitting that a substantial sum of money had gone missing whilst it was in her possession . She had , by means of late banking , taken steps to cover up the deficiency . We have not a moment ’s hesitation in saying that , so far as we are concerned , the conviction was entirely safe . Notwithstanding the criticisms which we have found to be made out as to the manner in which the trial was conducted , this appeal will be dismissed . ”

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW ) , as amended by LAW DATE ( “ the DATE LAW ) , provides a single , composite right of appeal against a criminal conviction . It states that ORG :

“ ( a ) shall allow an appeal against conviction if they think that the conviction is unsafe ; and

( b ) shall dismiss an appeal in any other case . ”

The broad intention behind this provision was summarised by the then Lord Chief Justice , Lord PERSON , in NORP v. PERSON and Others ( [ DATE ] vol . ORG p. CARDINAL [ ORG ] ) , when he said :

“ This new provision ...... is plainly intended to concentrate attention on CARDINAL question : whether , in the light of any arguments raised or evidence adduced on appeal , ORG considers a conviction unsafe . If the ORG is satisfied , despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence , that the conviction is safe , the ORG will dismiss the appeal . But if , for whatever reason , the court concludes that the appellant was wrongly convicted of the offence charged , or is left in doubt whether the appellant was rightly convicted of that offence or not , then it must of necessity consider the conviction unsafe . The ORG is then subject to a binding duty to allow the appeal . ”

The scope of the “ safety test ” was discussed by Lord PERSON in his judgment in NORP v. ORG , ex parte Pearson [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ( ORG ) ( after the hearing of the applicant ’s appeal ) , where he stated :

“ The expression ‘ ORG in section CARDINAL ) of LAW does not lend itself to precise definition . In some cases unsafety will be obvious , as ( for example ) where it appears that someone other than the appellant committed the crime and the appellant did not , or where the appellant has been convicted of an act that was not in law a crime , or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection , or where the jury verdict , in the context of other verdicts , defies any rational explanation . Cases however arise in which unsafety

This passage was subsequently cited by ORG in the case of NORP v. PERSON , PERSON and PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL , where Lord Justice PERSON , delivering the judgment of the court , stated that :

“ The following is not intended to be an exhaustive statement of the principles involved . We simply extract the following . The ORG is concerned with the safety of the conviction . A conviction can never be safe if there is doubt about guilt . However , the converse is not true . A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘ vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the ORG to apply the test ... which , as adapted by [ counsel for the ORG ] , might read :

‘ assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error , would the only reasonable and proper verdict have been CARDINAL of guilty?’ . ”

Later in his judgment , Lord Justice PERSON stated that :

“ We are satisfied that [ the questions of ‘ fairness’ and ‘ ORG ] must be kept separate and apart . The ORG is charged with inquiring into whether there has been a breach of a Convention right . ORG is concerned with the safety of the conviction . That the first question may intrude upon the second is obvious . To what extent it does so will depend upon the circumstances of the particular case . We reject , therefore , [ counsel for PERSON ] ’s contention that a finding of a breach of LAW ) by the GPE leads inexorably to the quashing of the conviction . Nor do we think it helpful to deal in presumptions . The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree . ”

The subject of judicial interventions at trial has arisen in a number of appeals . In NORP v. PERSON ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL ( ORG ) the appellants complained that the conduct of the trial judge had made it impossible for counsel to conduct the case for the defence effectively . The judge had in particular made frequent interruptions to the examination - in - chief of the appellants and their witnesses . Lord Justice PERSON stated that :

“ It is a fundamental principle of an LANGUAGE trial that , if an accused gives evidence , he must be allowed to do so without being badgered and interrupted . Judges should remember that most people go into the witness - box , whether they be witnesses for the Crown or for the defence , in a state of nervousness . They are anxious to do their best . They expect to receive a courteous hearing , and when they find , almost as soon as they get into the witness - box and are starting to tell their story , that the judge of all people is intervening in a hostile way , then , human nature being what it is , they are liable to become confused and not to do as well as they would have done had they not been badgered and interrupted . ”

The court concluded that the judge must have given the impression that he was cross - examining on the evidence - in - chief as it was being given and that defending counsel was at times driven off - course by the judge ’s interventions . The convictions were accordingly quashed .

In NORP v. PERSON ( unreported , DATE , ORG ) , Lord Justice Glidewell , delivering the judgment of the court , said that interventions by a judge in a criminal trial were generally undesirable for a number of reasons : ( i ) they might unsettle a witness ; ( ii ) they might prevent counsel from pursuing a legitimate point ; ( iii ) they might belittle counsel for the defence ; and ( iv ) they might indicate a pre - conceived view by the judge . However , on the facts of the case , despite the inappropriate interventions by the judge , the court was satisfied that counsel for the defence had not been prevented from making the points he wished to make and that the conviction was not “ unsafe or unsatisfactory ” ( which reflected the test contained in section CARDINAL of LAW at that time ) . The appeal was therefore dismissed .

The PERSON case was cited by ORG in the context of the new test under LAW in R v. PERSON ( PERSON ) ( unreported , DATE ) . The court concluded that the Recorder conducting the trial had intervened “ far too often ” during the questioning of expert witnesses and that various of the undesirable consequences identified by ORG had followed . In all the circumstances , the court concluded that the verdict was unsafe on the basis that the appellant had not received a fair trial .

In NORP v. PERSON [ DATE ] ORG Reports CARDINAL ( ORG ) , the appellant complained that the ORG had intervened with his examination - in - chief at trial to such an extent that he had been denied a fair trial . The court upheld the complaint and allowed the appeal , finding that the appellant had been effectively deprived of an opportunity to put his whole case before the jury in an ordered and structured form before that case was tested by the rigours of cross - examination .

Similarly , in NORP v. PERSON [ DATE ] Crim . ORG ( ORG ) , the court found that the trial judge ’s hostile interruptions of the appellant ’s examination - in - chief had effectively constituted a cross - examination and concluded that the jury was bound to have thought that the judge was of the view that the appellant had no defence . The court stated that the fact that the prosecution case was a strong one did not deprive the appellant of his right to be tried fairly and thus allowed the appeal on the basis that the conviction was unsafe .

All of the cases cited at paragraphs CARDINAL above were decided by ORG before the appeal in the applicant ’s case .

In NORP v. PERSON and others ( unreported , DATE , ORG ) , Lord Justice PERSON , giving the judgment of the court , commented as follows :

“ The key principle is that every person is entitled to a fair trial . That general principle is enshrined in LAW . This appeal involves a particular application of that general principle . The particular principles are summarised in ... Archbold CARDINAL ... under the heading ‘ Conduct of Trial Judge’ :

‘ Interventions by the judge during a trial will lead to a quashing of a conviction : ( a ) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief can not be cured by the common formula in the summing - up that the facts are for the jury , and that they may disregard anything said on the facts by the judge with which they did not agree ; ( b ) when they have made it impossible for defending counsel to do his duty ; ( c ) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way’ ( ... ) .

We have seen a transcript of the whole trial except for the opening and counsel ’s closing submissions to the jury . The transcript shows that the judge intervened on a considerable number of occasions during the evidence . He did so in particular during the cross - examination of prosecution witnesses by defence counsel . It is clear from the transcript that he did so for a number of different reasons . For example , he took the view that counsel were cross - examining the witnesses at excessive length and that they were inclined to make comments to witnesses when they should have been asking questions .

It is the duty of counsel ( ... ) both to cross - examine witnesses firmly , fairly and with reasonable dispatch and to avoid making comments which should be confined to submissions . It is equally the responsibility of the judge to do his or her best to ensure that counsel does not overstep the mark in these or indeed in other respects . Moreover , we see no reason why appropriate comments should not be made by the judge on these topics in the presence of the jury .

On the other hand , as we have already said , it is of the utmost importance that every defendant should have a fair trial and indeed that he must be seen to be having a fair trial . It is therefore important that any rebuke to counsel should be delivered in measured tones , especially if it is done in the presence of the jury , and nothing should be done which might have any adverse impact upon the fair presentation of the defendant ’s case or which might lead the jury to conclude that the judge was unfairly prejudiced against the defendants ( ... ) .

It is submitted on behalf of the appellants that in this case on a number of occasions the judge unfortunately treated defence counsel in such a way as to make it difficult for them to put their client ’s case fairly to the jury , and was such as might lead the jury to conclude that the judge was prejudiced against both defence counsel and the defendants .

We have regretfully reached the conclusion that there is considerable force in these submissions . ( ... )

( H)aving considered the transcript as a whole we have reached the conclusion that in the light of the judge ’s approach to defence counsel and his frequent interruptions during the cross - examination of prosecution witnesses , none of which favoured the defence and many of which tended to favour the prosecution , together with his attitude to part , at least , of the defence case , these defendants did not receive a fair trial . An impartial observer at that time would , in our opinion , clearly have reached that conclusion . Yet , as we have already said , each defendant has a right to a fair trial . ( ... )

( W)e are quite unable to say that these verdicts are safe given the fact that these appellants did not receive a fair trial . ”


Violation of Art. 2;Violation of Art. 13

The applicant was born in DATE . Before DATE she was a resident of PERSON , GPE , which she left for PERSON . She currently resides in GPE .

The submissions of the parties with regard to the facts concerning the circumstances of the events of DATE and the ensuing investigation are set out in Part A below . A description of the documents submitted to the ORG is contained in Part B.

NORP In DATE the applicant produced a detailed account of the attack on her . She submitted that prior to DATE she and her family lived at LOC in the Katayama settlement in LOC in PERSON . The applicant has a daughter who was born in DATE . They lived in GPE until DATE and then moved to her parents ' flat in PERSON . In DATE the applicant removed her daughter from GPE after the school which she attended came under attack .

NORP In DATE hostilities resumed in GPE between the NORP forces and the NORP fighters . PERSON and its suburbs came under heavy bombardment . LOC , situated in the northern and central parts of the town , was bombarded from the air and by artillery . The applicant submitted that most residents of the district left for safer areas . The applicant , who stayed because of her poor health , spent DATE hiding from bombardments in the cellars , along with the few other remaining residents of the district . Following heavy fighting , as of DATE the NORP forces started to regain control over the city from the north , and by DATE the central parts of the city were finally taken .

On DATE a massive attack by the federal forces on their district began . The applicant and CARDINAL other persons were hiding in a garage located in FAC and when the shelling intensified they ran to a nearby cellar . While running , the applicant was wounded in her leg . When the shelling subsided , several military servicemen appeared and ordered everyone out of the cellar . The applicant and others walked out , with their hands on their heads . The soldiers told them that they had an order to kill everyone and that those who remained in the city had assisted the fighters ( “ boyeviki ” ) .

The applicant submitted that the soldiers had not listened to their explanations and refused to look at their identity documents . They had ordered the inhabitants to return to the cellar and , once the residents went downstairs , threw tear - gas grenades into it . The people in the cellar wept and asked them to stop , and finally the soldiers ordered them to come out again , CARDINAL by CARDINAL . The applicant , who was wounded , could not walk by herself and was assisted by a NORP man . CARDINAL NORP women and another NORP man walked out first and were shot at the entrance to the garage by machine - gun fire . The soldiers then shot at the third woman and at the applicant and her helper , whose body eventually covered hers .

NORP The applicant lost consciousness and , when she awoke , she realised that the others were dead . She was wounded in the chest and was bleeding from the mouth . When TIME fell , the applicant walked over to a neighbouring street where the PERSON family lived ( see ORG and GPE v. GPE , nos . CARDINAL and QUANTITY , DATE ) . They gave her first aid and allowed her to stay in their shed . They said that they were expecting a second check [ by security forces ] and were afraid to let her into the house .

The applicant , who was bleeding and afraid to remain in ORG , changed clothes and walked to the roadblock with a white flag . There the soldiers checked her documents and let her through . The applicant did not tell them about the attack on her . On TIME the applicant was taken to ORG by ORG ( the applicant in the case of GPE v. GPE , no . CARDINAL/CARDINAL ) who had been looking for her relatives in LOC ( they were later found killed ) .

The applicant remained in the PERSON village ( ORG district ) hospital until DATE . There she was diagnosed with gunshot and shrapnel wounds to the knee joints and chest , concussion and neurotic asthenia . She was treated and her wounds were operated on . She submitted the relevant medical documents .

While in the hospital the applicant was interviewed by human - rights activists , who later reported her story . It was also related in several publications .

After being discharged from hospital , the applicant stayed in ORG , in the premises of an old pig farm used by other refugees from GPE . In DATE the applicant went to PERSON to find out about the state of her flat and property . Her neighbours told her that unknown persons had been looking for her .

The applicant did not seek any direct contacts with law - enforcement bodies in the aftermath of the attack . Nevertheless the events in LOC , including the attack on the applicant , became known to the authorities shortly afterwards due to NGO and media reports .

Several human - rights NGOs contacted the law - enforcement authorities in relation to the events in LOC of ORG in DATE , when CARDINAL local residents were allegedly executed by unidentified detachments of the NORP military .

In DATE ORG issued a report entitled “ Civilian Killings in LOC of NORP ” in which it accused the NORP forces of deliberately murdering CARDINAL civilians DATE and DATE . ORG interviewed survivors , eyewitnesses and relatives of the dead . The report contains information about the attack on the applicant and the killing of CARDINAL people in a cellar , based on an interview with her .

On DATE ORG contacted the NORP authorities , including the President , ORG and the Minister of Defence with a request to investigate credible allegations of the murder of CARDINAL civilians in LOC , with reference to the applicant 's case .

On DATE , following the publication of an article entitled “ Freedom or Death ” in the ORG newspaper on DATE , the investigator of ORG opened a criminal investigation under LAW ( a ) , ( d ) , ( e ) and ( j ) of LAW “ concerning mass murder by the ' CARDINALth brigade ' of the civilian population in the GPE Katayama settlement of Grozny on DATE ” . Within the scope of that investigation , on DATE PERSON submitted a statement to ORG about the murder of her brother PERSON , whose bullet - ridden body had been found on DATE in the courtyard of his house in LOC of PERSON . In her letter she submitted that on DATE she had seen CARDINAL bodies ( QUANTITY women and QUANTITY men ) in a garage at FAC . She gave the applicant 's full name , referred to her as a witness of the killings committed on DATE and stated that she had talked to her in the hospital in GPE ( see ORG and GPE v. GPE , cited above , § § DATE ) .

In DATE ORG issued a document entitled “ Memorandum on Domestic Prosecutions for Violations of International Human Rights and Humanitarian Law in GPE ” , in which it reported a lack of progress in the investigation into the attack on the applicant and into other killings committed in LOC at the same time .

The applicant submitted that certain persons were looking for her and wanted to punish her for relating her story . She submitted that , DATE , her father in GPE , a friend in PERSON , her former boyfriend and her sister in the PERSON region had been contacted by persons asking about her whereabouts . Her former boyfriend had been beaten and told to “ keep away ” from her . The applicant , who still suffered from the consequences of her wounds , was afraid of approaching the authorities for fear that her whereabouts might become known to her persecutors . She submitted that in DATE she had received medical treatment in GPE for neurological problems resulting from the attack .

The Government submitted that the applicant had failed to apply to the authorities with a complaint , as a result of which the circumstances of the attack had become known to them only after the communication of the present application . On DATE ORG initiated criminal investigation file no . DATE under LAW ( infliction of serious injuries ) . The investigation confirmed the attack on the applicant . It also confirmed that the applicant had spent time in hospital in GPE suffering from gunshot wounds . CARDINAL witnesses were questioned . However , the investigation could not question the applicant because she did not make her whereabouts known to the authorities . In DATE the Government forwarded to the ORG a request by ORG seeking assistance in finding the applicant , and a copy of the decision to grant her victim status in the proceedings of criminal investigation no . DATE , to be countersigned by her .

In DATE the investigation concerning the attack upon the applicant was joined with another investigation , pending since DATE , concerning the discovery of CARDINAL bodies with gunshot wounds at FAC . The investigation had been adjourned and reopened , and was on - going . It failed to locate and question the applicant or to identify the culprits .

Following the ORG 's requests , the ORG submitted documents from the criminal investigation file opened in relation to the attack on the applicant ( see Part B below ) .

The Government submitted CARDINAL pages of documents from the investigation file in criminal case no . DATE . The most important documents submitted by the ORG can be summarised as follows :

On DATE the Deputy Chechnya Prosecutor decided to open criminal investigation into the infliction of serious injuries on the applicant , following receipt of the appropriate information from ORG . The case file was assigned no . DATE and the investigation was entrusted to the investigative department of ORG of the ORG ( FAC управление при МВД ЧР ) .

The investigation made several unsuccessful attempts to locate and question the applicant through ORG entities in GPE , PERSON and in the PERSON region .

NORP In DATE the housing bureau of the LOC informed the local department of the interior ( ROVD ) that house no . CARDINAL at FAC was unsuitable for habitation and that the applicant was not listed among the residents .

In DATE the investigation questioned a friend of the applicant in PERSON . The woman stated that she had collected the applicant from the ORG hospital in DATE and that the latter had stayed in her house for DATE . She confirmed that the applicant had told her that she had been shot by armed men during a “ mopping - up ” operation in PERSON and that CARDINAL or QUANTITY people had been killed during the same attack . The witness was not aware of the applicant 's whereabouts .

In DATE the investigation questioned PERSON . , the applicant 's sister who lived in the PERSON region and at whose address the applicant had a formal registration . The witness stated that the applicant had stayed with her in DATE , after which she had left and the witness was not aware of her whereabouts . The applicant had told her that she had been wounded during a “ mopping - up ” operation in Grozny in DATE , when armed men had killed several people in the cellar . The witness stated that her sister continued to suffer from the consequences of the attack , that she could not talk about the incident and that remembering it provoked serious nervous distress .

In DATE the investigation requested the criminal police of GPE to assist in finding the applicant and to investigate her complaint about harassment by unknown persons in retribution for her complaint . Similar requests were forwarded to the ORG regional investigation department and to LOC .

In DATE the NORP district hospital in GPE informed the investigation that the applicant had been treated there DATE and DATE for gunshot wounds to the knees and chest .

The investigation then questioned medical personnel from the hospital 's accident ward . They confirmed that in DATE the applicant had been treated there . The applicant 's medical record had been destroyed during a fire in the hospital , except for a registration log containing basic information about the applicant 's stay .

In DATE the investigation questioned PERSON , whose brother PERSON had been killed during the same attack in which the applicant had been wounded . The witness stated that around DATE she had visited the applicant in hospital and had learnt from her that her brother had been killed in the cellar of a garage in CARDINALth FAC by armed men in camouflaged uniforms . The witness and her CARDINAL sisters had travelled to PERSON and found CARDINAL or CARDINAL bodies with gunshot wounds in the cellar of house no . CARDINAL in CARDINALth FAC . The witness and her sisters removed the body of their brother PERSON , which bore numerous gunshot wounds , and took it to the FAC district for burial . No additional questions were put to the witness at that time about the other details of her brother 's death , nor was she asked if an investigation had been mounted .

Several local residents questioned by the investigators in DATE stated that in DATE they had been outside ORG and that they were not aware of the circumstances of the attack on the applicant or of her whereabouts . They were aware , however , mostly by hearsay , of the murders of residents who had remained in PERSON , committed in DATE by unknown men in military uniforms . Several witnesses stated that they were aware that the murders had been committed during a “ mopping - up ” operation . In particular , several witnesses were aware of the killing of the PERSON family , of ORG and of ORG ( see PERSON and GPE v. GPE mentioned above ) .

PERSON . testified that he was aware of the killing of QUANTITY persons and the wounding of a woman named PERSON in the garage of house no . CARDINAL at the CARDINALth FAC .

In DATE the investigation questioned PERSON ( the applicant in the case of GPE v. GPE , no . MONEY ) , whose mother and brother had been found killed in LOC in DATE . She stated that she was aware of the attack on the applicant , but had no information about the exact circumstances of the attack or of the applicant 's whereabouts .

On DATE the investigator from the Staropromyslovskiy ROVD examined the courtyard and the buildings located at no . CARDINAL in CARDINALth FAC . They found the house and the garage destroyed and uninhabited . Nothing of interest to the investigation was noted .

On DATE the applicant was granted victim status in the proceedings . As the applicant 's whereabouts were not established , she did not countersign the document .

In DATE an officer of LOC in charge of collecting information on the applicant 's case reported to the head of the ROVD that , as a result of questioning of the local residents , it could be presumed that “ the crime could have been committed by military servicemen , possibly of Ossetian ethnic background , possibly enrolled on a contractual basis . Numbers of military units , vehicles and armoured vehicles could not be established ” .

In DATE the Staropromyslovskiy ROVD informed the investigator in charge of the case that they were unable to identify the army units which had conducted the special operations in the district .

The investigation requested several agencies of ORG and of ORG to provide them with information about the location and activities of their units in DATE in the PERSON settlement of LOC . In response they were informed that such information was unavailable because the currently functioning structures had been established after DATE and had no information relevant to the preceding periods .

On DATE ORG opened a criminal investigation with regard to the discovery of CARDINAL bodies in CARDINALth FAC .

In DATE LOC wrote to the local ROVD and informed it that their office was investigating criminal case no . DATE , related to the discovery of CARDINAL bodies at “ house no . CARDINAL in CARDINALth FAC ” . The letter alleged that the information received from ORG indicated that the applicant had been a witness to the murder of CARDINAL people at “ house no . CARDINAL in GPE ” . It further stated that the applicant had never applied to the authorities with information about the incident and instructed the ROVD to carry out a verification of the facts , including locating and questioning the applicant and examination of the site as indicated by her .

On DATE the proceedings in the CARDINAL criminal cases were joined , as they concerned the same incident . The new case file was assigned no . DATE and ORG was charged with the investigation .

In the course of the proceedings several orders were issued by the supervising prosecutors enumerating the steps to be taken by the investigators . In particular , in DATE a prosecutor from ORG ordered that additional information be obtained from the local authorities and from the military prosecutor of ORG ( UGA ) , and that to other possible witnesses to the crimes , including the applicant , be identified and questioned .


MICKOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant , Mr PERSON , is a national of the former GPE , who was born in DATE and lives in GPE ( PERSON ) .

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

The applicant has been a member of the Social - Democrat Political Party ( the SDSM ) since DATE . In the DATE local elections he was elected member of ORG .

On DATE the applicant was appointed Deputy Solicitor General by the Government for a term of DATE and he resigned from his post of councillor .

On DATE the applicant was dismissed . No reasons were given by the Government in this respect .

On DATE the applicant stated that he lodged a complaint with ORG by mail . He alleged that his dismissal was unlawful and discriminatory and that the sole reason for his dismissal was his membership in the ORG .

The applicant stated that the above mentioned mail came back with a notice stating that it had not been collected . The applicant re - sent the same letter to ORG on DATE . The clerk of ORG responsible for collecting from the post office mail addressed to that ORG had been on holiday and nobody collected the mail .

On DATE ORG refused to examine the applicant ’s complaint . It stated , inter alia , that :

“ Under rule CARDINAL of the Rules of Constitutional Court ... each citizen who considers himself / herself to be a victim of a violation of the rights and freedoms set out in LAW ... may lodge a complaint within CARDINAL months’ time - limit from DATE he was served with the final decision or act ...

Regard being had to the fact that the [ impugned ] decision ... was adopted on DATE and promulgated [ in ORG ] on DATE , and [ that the applicant ] lodged his complaint ... on DATE ( the complaint was postmarked CARDINAL DATE ) it means [ the complaint was lodged ] out of the DATE time limit ... ”

On DATE the applicant submitted to ORG that he had sent his first letter on DATE , and that it had come back to him with a notice stating that the mail had not been collected . He enclosed the acknowledgement of receipt .

On DATE ORG replied that there had been no evidence in the case - file which would corroborate the applicant ’s allegations that he had lodged his complaint on DATE . In particular , the court could not establish whether or not the enclosed acknowledgement of receipt related to the said mail .

On DATE the applicant forwarded the note received from the ORG to ORG . It stated that his mail of DATE addressed to ORG had been returned to him on DATE since it had not been collected by the receiver .

On DATE the applicant was informed that ORG had decided not to re - examine his complaint , because of the reasons set out in its decision of DATE .

On DATE the applicant complained to ORG that his dismissal had been unlawful .

On DATE ORG refused to examine the applicant ’s complaint considering that it was not amenable to judicial review within the meaning of LAW of LAW . It stated , inter alia , that :

“ From ... the Acts [ on the Government , and on ORG ] it transpires that ORG , in this particular case , did not take a decision concerning an administrative issue , but that , within the boundaries of its competence as defined by LAW of LAW , ... [ it ] dismissed [ one of its agents ] from his office . The decision whereby [ a person ] is appointed or dismissed from his office does not represent an administrative act within the meaning of LAW because it does not contain a very important element [ and ] that is , it does not regulate an administrative issue . ... ”

LAW sets out ORG competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication , conscience , opinion and public expression , political association and activities , as well as prohibition of discrimination on the grounds of gender , race , religion or national , political or social affiliation .

Article CARDINAL provides :

“ The Solicitor General ’s office is established as an office of ORG , which undertakes the legally defined measures and executed the legal instruments for the purposes of legal protection of the property rights and interests of GPE and performs other tasks as set forth by law . ”

Section CARDINAL provides , inter alia , that the said duties shall be carried out by ORG and his deputies .

Article CARDINAL :

“ ORG represents GPE and its institutions before the courts , other bodies and legal entities and before foreign courts and bodies in property disputes with foreign natural or legal persons . ”

Section CARDINAL provides , inter alia , that ORG has to answer to the Government for his work . In his absence his duties shall be performed by CARDINAL of his deputies . ORG and his deputies are required to observe and maintain the proprieties and good reputation befitting persons performing their duties .

Section CARDINAL provides , inter alia , that his deputies may undertake all the measures before the courts or other bodies that are within the powers of ORG , and that they have to answer for their work to ORG and to the Government .

Sections CARDINAL , CARDINAL and CARDINAL provide that the ORG institutions shall provide the necessary information to ORG office concerning the ORG interest and property and that they shall co - operate in this respect .

Section CARDINAL provides that if the Solicitor General considers that there is no need to institute proceedings , or it is better to reach a friendly settlement or to withdraw an application he shall ask the opinion of the state institution that he represents . In a case of disagreement , the Solicitor General may ask the Government to take a decision in this respect .

Section CARDINAL provides that when the courts during the judicial proceedings observe that it is necessary to undertake measures for the protection of state property or interest they shall inform the Solicitor General .

Section CARDINAL provides that the Government appoints and dismisses ORG and his deputies .

Section CARDINAL provides , inter alia , that the Government ’s decisions on the appointment of ORG and his deputies shall be promulgated in ORG .

Section CARDINAL provides , inter alia , that a person who has NORP citizenship , who fulfils general conditions for employment in a state institution , is a Law School graduate and enjoys the appropriate reputation may perform the functions of ORG , or Deputy Solicitor General .

Section CARDINAL provides , inter alia , that the Solicitor General and his deputies shall be appointed for DATE . They may be re - appointed .

The LAW contains no provisions regarding conditions of dismissal .


Remainder inadmissible;Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in PERSON .

The applicant was arrested on DATE on suspicion of homicide . On DATE the ORG ( FAC ) ordered that the applicant be remanded in custody for DATE in view of a reasonable suspicion that he had committed homicide . It further held that the likelihood that he would be given a heavy sentence justified his detention on remand .

On DATE ORG ( PERSON ) prolonged the applicant ’s detention until DATE . It relied on the reasonable suspicion of his having committed the offence in question and the likelihood of a heavy sentence being imposed on the applicant . In addition , it had regard to the need to obtain expert evidence and a psychiatric examination of the suspects .

On DATE ORG ( Sąd Apelacyjny ) extended the applicant ’s detention until DATE . It found that in the light of the evidence obtained there was a strong likelihood that the applicant had committed the offence . Furthermore , it relied on the severity of the likely sentence and the need to obtain further expert evidence . On DATE the ORG prolonged the applicant ’s detention until DATE , reiterating the grounds previously given . It appears that his detention was subsequently prolonged on an unspecified later date .

In the course of the investigation ORG obtained voluminous evidence and took a series of investigative measures . On DATE the prosecution service filed a bill of indictment with ORG . The applicant was charged with CARDINAL counts of homicide and armed robbery . There were CARDINAL other defendants in the case .

On DATE ORG ordered that the applicant be kept in custody until DATE . It held that the gravity of the charges and the likelihood that the applicant would be given a heavy sentence confirmed the risk that he might obstruct the proceedings . It further held that the applicant ’s detention on remand was the only measure which could secure the proper conduct of the proceedings . Lastly , when extending the applicant ’s detention , ORG had regard to its caseload .

On DATE ORG granted ORG application and prolonged the applicant ’s detention until DATE . It noted that the period of the applicant ’s detention had reached the CARDINAL statutory time - limit ( Article QUANTITY of LAW ) and criticised the trial court for not having indicated any particular circumstances which would justify the prolongation beyond the statutory time - limit . However , it held that the prolongation was justified on account of other significant obstacles to progress in the proceedings , namely the fact that one of the defendants had failed to appear at the hearing which had led to the adjournment of the trial . ORG also noted that although the bill of indictment had been filed on DATE , the trial court listed the first hearing only for DATE .

The applicant ’s detention was subsequently prolonged on DATE ( until DATE ) , on DATE ( until DATE ) and on DATE ( until DATE ) . In all those decisions ORG relied on the same grounds as had been given in the earlier decisions .

NORP The trial court held CARDINAL hearings in the period from DATE to DATE . On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The applicant , who remained in detention , appealed against the first - instance judgment .

On DATE ORG quashed the judgment of ORG and ordered a retrial .

It appears that the applicant ’s detention was prolonged on further unspecified dates . On DATE ORG ordered that the applicant be kept in custody until DATE . The applicant ’s detention was subsequently prolonged on DATE ( until DATE ) , on DATE ( until DATE ) and on DATE ( until DATE ) . In all those decisions , ORG relied on the reasonable suspicion that the applicant had committed the offences in question and the likelihood of a heavy sentence being imposed .

The applicant appealed against the decision of DATE to prolong his detention . He argued , in particular , that ORG had failed to explain why other non - custodial measures were considered insufficient in his case . On DATE ORG upheld the contested decision . It agreed with the applicant that the reasons given by ORG were very brief and general . However , referring to LAW , it held that the applicant ’s continued detention served the public interest of protecting society , given that the applicant had been charged with the homicide of QUANTITY women , having first cruelly treated them .

In its decision of DATE upholding the decision of CARDINAL DATE on the prolongation of the applicant ’s detention , ORG held that his continued detention on the basis of LAW remained valid . Having regard to the nature of the alleged offences , it held that LAW established a presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings .

On DATE ORG , having examined the applicant ’s appeal against the decision of DATE on prolongation of his detention , ordered the applicant ’s release under police supervision . It also imposed a ban on leaving the country . ORG had regard to the excessive length of the applicant ’s detention on remand and the fact that the process of hearing evidence was very advanced . In those circumstances , it was not necessary to prolong further the applicant ’s detention . ORG also noted that despite the significant length of the applicant ’s detention , ORG had failed to ensure the diligent conduct of the trial and , in particular , had not held hearings at reasonable intervals . Furthermore , it observed that the reasons for the continued detention as given by ORG in its decision of DATE were very terse . The applicant was released on DATE .

ORG held CARDINAL hearings in the period from DATE to DATE . The proceedings are still pending .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in cases of ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Pieter Van Dijk

The applicant , who was born in DATE in GPE , entered GPE in DATE at DATE . On DATE he married a NORP national , an invalid whose disability had been assessed at PERCENT , with whom he had been living since DATE .

On DATE ORG sentenced the applicant to DATE imprisonment for armed robbery and armed assault with intent for offences committed in DATE . He was released on DATE .

On DATE the Minister of the ORG made a deportation order against him . The order was served on the applicant , who had been unaware of its existence , on DATE , when he attended ORG in order to regularise his status .

He refused to travel to GPE and was prosecuted for failing to comply with a deportation order . On DATE ORG sentenced him to DATE imprisonment and made an order excluding him from NORP territory for DATE . That decision was upheld on appeal by the Aix - en - ORG of Appeal on DATE . An appeal on points of law was dismissed by ORG on DATE on the ground that the applicant had failed to challenge the legality of the deportation order in the courts below .

On DATE the applicant applied to ORG of ORG for a review of the criminal proceedings that had resulted in his being imprisoned for DATE and banned from NORP territory for DATE . In a judgment of DATE , which was served on DATE , ORG dismissed that application .

NORP In DATE the applicant sought judicial review of the deportation order . In a judgment of DATE ORG quashed the deportation order of CARDINAL DATE , inter alia , on the ground that no notice had been served on the applicant requiring him to appear before ORG . That judgment became final on DATE after being served on the Minister of the ORG .

On the strength of the administrative court 's judgment of DATE quashing the deportation order , the applicant applied to ORG at the Aix - en - ORG of Appeal on CARDINAL DATE for rescission of the DATE exclusion order made by ORG on DATE . He contended that he was married to a NORP national and held a provisional residence permit .

In a letter of DATE the applicant reminded ORG of the terms of his application for rescission . Noting that the application had been outstanding for some time , he asked the office to arrange for it to be heard and a ruling given . On DATE ORG requested ORG at the GPE tribunal de grande instance for its opinion on the merits of the application and any information that would assist the court in deciding whether the exclusion order should be rescinded . On DATE FAC sent ORG the results of an inquiry concerning the applicant .

On DATE ORG at ORG informed the applicant that the case would be heard on CARDINAL DATE . On DATE the Aix - en - ORG of Appeal granted the applicant 's application and rescinded the exclusion order on the ground that ORG had quashed the deportation order .

The applicant also sought to regularise his status with the immigration authorities . He initially obtained acknowledgment forms for applications for provisional residence permits ( not work permits ) for renewable DATE periods . On DATE , however , he was given a new DATE residence permit incorporating the right to seek employment .

On DATE the applicant applied to the prefect for ORG département for a residence permit allowing him to live and work in GPE for a prolonged period , as he was married to a NORP citizen . On DATE the applicant received notice of a decision dated CARDINAL DATE refusing him a residence permit . He appealed to ORG , but his appeal was dismissed on DATE .

The applicant appealed on DATE to ORG . On DATE the President of that court ordered the transfer of the file to ORG – the court with jurisdiction – where the case is currently pending .

On DATE the applicant obtained a temporary residence permit valid for DATE ( from CARDINAL DATE to DATE ) . Recently he obtained a DATE residence permit with the right to seek employment .

DATE of the Ordinance of DATE as amended , concerning the conditions of entry and residence of aliens in GPE reads as follows :

“ Any alien who has evaded or attempted to evade the execution of an order refusing him leave to enter GPE , a deportation order or a removal order or who , having been deported or being subject to an exclusion order , re - enters the national territory without authorisation shall be liable to a term of imprisonment of from DATE to DATE .

The same penalty may be imposed on any alien who fails to present to the relevant administrative authority travel documents enabling any of the measures mentioned in the first sub - paragraph to be executed or who does not have such documents and fails to supply the information necessary to allow such execution .

The court may in addition issue an order banning a person so convicted from re - entering the territory for a period not exceeding DATE .

A ban on re - entering the territory automatically entails the convicted person 's removal from NORP territory , on completion of his prison sentence where appropriate . ”

Article CARDINAL of the Code of Criminal Procedure reads as follows :

“ Any person subject to a ban , forfeiture or incapacity or any measure whatsoever by operation of law following a criminal conviction or imposed as an additional penalty on sentencing may request the court which convicted him , or , if CARDINAL , the last court to convict him , to end all or part of it , including provisions relating to the length of such ban , forfeiture or incapacity . ... ”

“ Applications by convicted persons for the ending of a ban ... shall contain particulars of the date of conviction and the places where the applicant has been living since his conviction or release .

Applications shall be sent to ORG or , as the case may be , ORG , which shall obtain all relevant information and , if appropriate , the opinion of the judge responsible for the execution of sentences , and shall refer the application to the relevant court .

The court shall decide applications in private after considering the submissions of the prosecution . It shall hear the applicant or his or her lawyer , but may decide the application in their absence provided due notice has been served on them to attend ...

A reference to the order ending all or part of a ban , forfeiture or incapacity ... shall be entered on the judgment of the court of trial or retrial and the convicted person 's criminal record . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

Of the CARDINAL hearings held DATE and DATE , none was adjourned at the request of the applicant .

During the proceedings , the court appointed a medical expert and CARDINAL traffic experts .

DATE and DATE the court CARDINAL times urged a preparation of CARDINAL of the expert opinions and the applicant CARDINAL times requested that this expert opinion be provided .

At the last hearing , the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE ORG issued a decision correcting the judgement .

On DATE it handed down a supplementary judgement ( dopolnilna sodba ) . On DATE the applicant appealed also against the supplementary judgement .

The proceedings are still pending .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON PERSON , a lawyer practising in GPE .

The applicant is the father of the child S. , born out of wedlock on CARDINAL DATE . He had been living with Ms B .- K. , the child ’s mother , from DATE to DATE . After their separation PERSON lived with his mother . The applicant had contacts with PERSON until DATE , when Ms GPE prohibited further visits . He subsequently instituted numerous court proceedings concerning access to and custody of his son .

The applicant ’s repeated motions to be granted access to S. by a court order were to no avail . DATE until PERSON attained the age of majority on DATE proceedings concerning the applicant ’s renewed request to be granted access to S. were pending in ORG .

Likewise , the applicant ’s motion lodged in DATE to withdraw or restrict Ms PERSON right of custody in order to prevent her from moving abroad for DATE with PERSON and her family was dismissed . The national courts found that there were no indications that there were risks for the child ’s well - being which could justify an interference with Ms B .- K. ’s right of custody . The applicant ’s motion lodged in DATE to be granted joint custody of PERSON was equally rejected .

CARDINAL joint applications ( nos . CARDINAL and CARDINAL/CARDINAL ) concerning the said access and custody matters are pending with this ORG .

On DATE the ORG declared inadmissible PERSON PERSON ’s application no . ORG concerning the change of PERSON ’s surname after PERSON GPE ’s marriage and compensation for financial losses because of an undue refusal of access .

On DATE the applicant lodged a request with ORG partly to withdraw Ms B .- K. ’s custody of S. in order to secure the preparation of an expert report in the access proceedings pending in ORG since DATE . He also applied for interim measures to be taken .

On DATE the GPE ( ORG dismissed the applicant ’s motion for bias against ORG judge S. It found that there were no indications whatsoever that the judge challenged was biased . On DATE the GPE ( ORG dismissed the applicant ’s objections against its decision .

On DATE ORG conducted a hearing attended by the applicant and S. ’s guardian ad litem . It imposed a coercive penalty of CARDINAL Deutschmarks on Ms B .- K. for failure to attend the hearing . It suspended the proceedings in order to await the outcome of the access proceedings pending in ORG .

On DATE the GPE ( ORG , following the applicant ’s and Ms B .- K. ’s appeals , quashed ORG order against Ms B .- K. to pay a coercive penalty for failure to attend the hearing because of a formal mistake . The applicant ’s objections against this decision were to no avail .

On DATE the GPE ( ORG quashed the decision of ORG ordering the suspension of the proceedings .

On DATE the GPE ( ORG , on the applicant ’s appeal , ordered ORG to further the proceedings .

On DATE the ORG fixed a date for S. ’s hearing on DATE . The date for the hearing was then postponed until DATE . On DATE the GPE ( ORG dismissed as inadmissible the applicant ’s appeal against the fixing of the dates for a hearing , as no appeal lay against these orders .

On DATE ORG dismissed the applicant ’s further motion for bias against ORG judge S. as ill - founded . It found that the judge ’s conduct of the proceedings disclosed no indications of bias on her part . The applicant ’s objections were to no avail .

On DATE the GPE ( ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal against ORG decision of DATE .

On DATE ORG refused to admit the applicant ’s constitutional complaint ( CARDINAL BvR CARDINAL ) against the decisions of ORG and the GPE ( ORG concerning the applicant ’s motions for bias against ORG judge LOC and the length of the proceedings .

On DATE S. attained the age of majority . At that time , the proceedings in ORG had not yet been terminated .

In previous proceedings brought by the applicant ( CARDINAL F CARDINAL/CARDINAL ) , the GPE ( ORG found on CARDINAL July CARDINAL that the applicant was entitled to obtain certain information about his son ’s development . Ms B .- K. was ordered to inform him about the type of school which S. attended , his class and his results , his interests in sports and music and any serious diseases , and to give him a recent photograph of his son . The applicant ’s requests for further information were dismissed .

On DATE ORG dismissed the applicant ’s renewed request dated DATE ( CARDINAL F CARDINAL/CARDINAL RE ) for information on S. ’s personal situation . It argued that the applicant had received conclusive information about his son ’s personal situation following his previous requests .

On DATE the applicant lodged a motion with ORG to be granted access to the files of the Schwalm - Eder - District Youth Office concerning his son S.

On DATE ORG ( CARDINAL E CARDINAL ) dismissed the applicant ’s motion as inadmissible . It found that the applicant had inspected the entire case - files in DATE and therefore had no legitimate interest in being granted access again .

On DATE ORG refused to admit the applicant ’s constitutional complaints ( nos . CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) against decisions concerning the applicant ’s request for access to his son and a request lodged in DATE for information about his son ’s development . It imposed a fine of MONEY ( ORG ) respectively for abuse of petition on the applicant .

On DATE ORG informed the applicant that the court had decided not to modify its decision of DATE .


The applicant was born in DATE and lives in GPE .

Criminal proceedings were brought against the applicant by the public prosecutor at ORG under LAW . The applicant was accused of membership of an illegal organisation .

In the course of the criminal proceedings the applicant was remanded in custody . On DATE ORG convicted the applicant as charged and sentenced him to DATE and DATE imprisonment . The applicant appealed .

On DATE the principal public prosecutor at ORG submitted his written opinion to the latter . This opinion was not communicated to the applicant .

On DATE ORG upheld the judgment of the first - instance court .

In DATE the applicant was released from prison following the reduction of his sentence in accordance with the provisions of the new LAW .

The relevant domestic law and practice in force at the material time are outlined in the PERSON v. GPE judgment ( [ ORG ] , no . CARDINAL , § DATE , ORG CARDINALV ) .

On DATE Article CARDINAL of LAW was amended to provide that the written opinion of the principal public prosecutor at ORG be notified to the parties .


The applicant was a NORP national , born in DATE . He died on DATE . By letter of DATE his wife expressed her wish to pursue the case in his stead .

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

The applicant , a businessman and professional athlete , was suspected of belonging to a GPE mafia - type organisation . The police applied to a court requesting his “ special supervision ” ( teismo įpareigojimai ) under LAW ( see the ‘ Relevant domestic law’ part below ) . On DATE the Kaunas City District Court placed the applicant under “ special supervision ” finding , inter alia , that he was reasonably believed to belong to a criminal organisation . The court did not specify the facts warranting that suspicion , referring solely to the “ the material presented by the police ” . ORG ordered CARDINAL preventive measures of “ special supervision ” for a period of DATE , namely a requirement to live at his permanent residence , a prohibition on visiting CARDINAL specific bars in GPE , and a requirement to inform the police about all his financial transactions exceeding CARDINAL NORP litai ( LTL ) .

The police authorities lodged an appeal against the order , contending that these measures were insufficient . On DATE ORG examined the appeal in the presence of the applicant and his defence counsel . The court ordered , for a period of DATE , CARDINAL further preventive measures of “ special supervision ” , namely a requirement for the applicant to return to his house by TIME and not to leave it before TIME , and a prohibition on driving a motor vehicle . Again , no particular facts were given in support of the finding that the applicant belonged to a criminal organisation , or that he could be involved in any other wrongdoing , within the meaning of LAW .

With police permission , in DATE the applicant underwent out - patient medical treatment in the resort of GPE on LOC coast . On DATE GPE , by reference to the decision of CARDINAL DATE , ordered the applicant to pay CARDINAL ORG as an administrative penalty for failure to comply with the requirement to be at a specific place in Palanga at TIME - time . Upon the applicant ’s appeal , on DATE ORG quashed that decision . ORG found that the curfew obligation of CARDINAL DATE concerned the place of the applicant ’s permanent residence in GPE , and that there was no obligation on him with regard to any place in GPE . The appellate court ruled that the penalty of CARDINAL DATE had been unlawful as the applicant had been permitted to go to GPE by the police .

The applicant was shot dead in GPE on DATE .

The applicant was married and had CARDINAL minor children . His wife and children are NORP nationals , and live in GPE in GPE .

Relevant provisions of LAW ( ORG nusikalstamumo užkardymo įstatymas ) .

Pursuant to LAW , the purpose of the LAW is to apply preventive measures in respect of persons who can adversely affect the rights and freedoms of others , create economic and social conditions for the appearance and development of organised crime , or threaten public safety .

Article CARDINAL permits preventive measures with regard to a person who is reasonably believed capable of involvement in a criminal organisation , aiding or abetting such an organisation by financial and material means or by providing relevant information , or is likely to engage in the future in banditry , blackmail , financial or other serious crime .

Article CARDINAL provides that “ special supervision ” of the person on the basis of a court order is part of the preventive measures permitted under LAW .

Under LAW , a police officer must apply to a court for an order placing a person under “ special supervision ” . The court decides whether or not to grant the request . Upon the request of the person concerned , the police may permit derogations from the measures so ordered .

Paragraph CARDINAL of LAW permits the court not to disclose the facts contained in the material presented by the police in support of their “ special supervision ” application .

Under LAW , the person concerned , his lawyer or the police can appeal against the decision of the court on “ special supervision ” . Pursuant to paragraph CARDINAL of LAW , the decision of the higher court is final and not subject to further appeal .

Article CARDINAL lists the preventive measures of “ special supervision ” , including those applied in the present case .

Failure of the person to comply with a measure of “ special supervision ” is considered an administrative offence under the general rules of administrative law . An administrative penalty may thus be imposed for such a failure . A dispute as to whether the administrative penalty corresponds to the court decision ordering “ special supervision ” may be resolved by way of a separate court procedure , in accordance with the rules of LAW pertaining to administrative penalties .