Violation of Art. 6-1;Remainder inadmissible

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in PERSON . She acts on behalf of her deceased husband , Mr PERSON ( “ G. ” ) .

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

PERSON was in conflict with a number of officers of the NORP police and was allegedly persecuted by those officers for criticising them and helping alleged victims of police abuse . In DATE PERSON was allegedly abducted by the local police and a ransom was requested . Having been kept for DATE in the woods , he was released and on DATE lodged a complaint against several officers of the local police , including NORP , the Deputy Chief of the NORP police . A criminal investigation was opened but was discontinued for lack of evidence .

On DATE , a subordinate of NORP , made a complaint against PERSON for resisting the legitimate orders of the police . On DATE PERSON made a complaint against NORP , PERSON and another officer for abusing their power by beating him up at his home and requested the opening of a criminal investigation . The judge examining the CARDINAL cases closed the first one for lack of evidence . The criminal investigation into PERSON ’s complaint was discontinued some time later .

On CARDINAL DATE the personnel of the local police station wrote a letter to various authorities in support of the CARDINAL officers and against GPE ( CARDINAL of the CARDINAL accused in the present case ) . The Prosecutor General found that many of the statements by the police officers in that letter were unfounded and tendentious and contained gratuitous accusations against GPE and the prosecutor who had opened the criminal investigation . There was mention of talk among the officers about possibly resorting to “ illegal methods of fighting ” the suspects .

On DATE a burnt - out car was found in a forest near GPE . The police found the remains of a person in the boot of the car . A criminal investigation was opened and led to the conclusion that the victim was NORP Three persons became the prime suspects : the PERSON brothers ( GPE and PERSON ) and PERSON

According to the prosecution , the following events led to the murder of NORP on TIME to CARDINAL DATE . In DATE NORP had opened a criminal investigation against PERSON for “ aggravated hooliganism ” . The PERSON brothers and PERSON were in serious conflict with NORP On DATE NORP visited a bar in PERSON , where he met with the PERSON brothers and PERSON , was insulted by them and was hit outside the bar . They agreed to meet at TIME at a roundabout to finish the dispute .

When they met at TIME , the PERSON brothers and PERSON beat NORP and then forced him into the back of his police car and drove to a forest , followed by PERSON in his own car . In the forest , they continued beating NORP and then loaded him into the boot of his car , sprayed petrol all over it and set the car on fire .

The applicant disputed this version of events .

On DATE the ORG acquitted all CARDINAL suspects . On DATE ORG upheld that judgment .

On DATE a bomb exploded near PERSON ’s house but nobody was hurt . PERSON lodged a complaint and requested measures of protection . The criminal investigation initiated at his request could not identify the bombers and was closed in DATE . ORG refused to apply measures of protection to him because he had not received any threats and there was no reason to expect a repeat of the bombing .

On DATE ORG quashed the lower courts’ judgments of DATE and DATE and ordered a full rehearing of the case .

On DATE PERSON and his son were killed in their car by gunmen . The criminal investigation subsequently launched did not reveal the identities of the killers . On DATE the applicant insisted on the continuation of her late husband ’s retrial in order to prove his innocence . She was recognised as his legal representative and was allowed to make submissions to the courts in addition to those made by the lawyer whom she had appointed .

On DATE ORG ( “ the first - instance court ” ) , the CARDINAL which examined the witnesses in the case directly ( except for ORG , the prison hospital doctor ) , found the following facts :

On DATE D.C. was taken to the local police station and questioned as a witness about the events of the night of CARDINAL to CARDINAL DATE . On DATE PERSON was taken to the same police station and also questioned as a witness about the same events .

They were not informed of their rights and were not assisted by lawyers . They were handcuffed while questioned . After the questioning , administrative files were opened on the basis of their alleged insults to NORP at the bar and a judge ordered their arrest for DATE as an administrative sanction . During the administrative arrest further questioning took place and other procedural steps were taken , resulting in evidence later used in the criminal case against them . In particular , during this period ( DATE ) , PERSON and GPE confessed to having murdered NORP

The court found that the initial reports which had served as a basis for the administrative arrest had been filed in breach of the proper procedures . There had been no grounds for the administrative arrest because the CARDINAL men were suspects in a criminal case and any detention should have been ordered on that basis .

On DATE G. and GPE were taken to a remand centre in PERSON , where they were questioned again until DATE as witnesses and without legal assistance . They made statements accepting their guilt during the questioning .

On DATE they were , for the first time , interviewed as suspects ( as opposed to witnesses ) , still without having their rights explained and without access to a lawyer .

On DATE both GPE and PERSON were questioned for the first time in the presence of their lawyers and each confessed to having committed the crime . However , when signing the record of the questioning , each wrote that he did not accept any guilt . The same happened on DATE in respect of PERSON , who had been arrested in GPE and extradited to GPE . In his statement PERSON mentioned that PERSON and NORP had fought in the woods and had both fallen to the ground before NORP was immobilised and burned in his car . GPE noted that after taking PERSON to the hospital where she worked after TIME , they had driven back by the police station building and towards the roundabout . However , the court found that this was contradicted by the officer PERSON , who had been in a police car parked next to the police station and who had not seen any car drive past the station at that time .

NORP In DATE PERSON lodged CARDINAL complaints about ill - treatment by the police . On DATE the investigating judge requested the prosecutor to investigate the allegations . On DATE the prosecutor answered in respect of CARDINAL complaint that the facts had not been confirmed but did not attach any documents from the investigation as required by law . There was no evidence of any investigation of the second complaint .

NORP In DATE PERSON was admitted to a hospital for detainees , where he was examined by PERSON on DATE . PERSON testified in court that PERSON had complained to him of ill - treatment by the police , but because there were no visible signs , this had not been recorded in the medical report . The court noted that the medical report had been drawn up DATE after the alleged ill - treatment , which prevented the verification of the allegations . However , PERSON ’s medical file showed that he had complained of pain in the kidneys and broken chest bones and that he had been treated for injuries to his head and leg ( “ post - traumatic neuritis of the right leg ” ) . Dr ORG testified that such damage to the leg normally appeared as a result of blows or contusions to that area . The doctor ’s conclusion that no chest - bone fractures had been found was not backed up by X - ray evidence as required by law . Subsequent X - ray pictures were of too poor a quality to establish whether the bones were intact .

On DATE another medical examination of PERSON was carried out at the request of the investigator . While no signs of ill - treatment were found , the diagnosis was “ mild consequences of craniocerebral trauma with hypertonic syndrome ” and PERSON was advised to undergo in - patient treatment . He refused , but in DATE he had to be admitted to the hospital as a result of the head injuries and neuritis in the leg . He stayed at the hospital until DATE .

The court also found that , owing to various violations of the rules on criminal procedure , including the use of ill - treatment for the purpose of obtaining a confession , the self - incriminatory declarations made by the third suspect , PERSON , who had been arrested in GPE , could not be accepted as evidence . No proper request had been made by the GPE authorities to their NORP counterparts to question PERSON and he could not properly be questioned by the NORP authorities because he was not a NORP citizen .

The court found that in all the statements made by the suspects there was no fact of which the prosecution had not already been aware before the questioning . Furthermore , PERSON ’s complaint that he had been shown a video of GPE ’s statements , including those made during the crime scene investigation , had been made at a time when he was still a witness and had no right of access to the case file ; he was not even supposed to have known of the existence of that video recording . The court concluded that the only way for PERSON to have known about the recording was by having seen it , which confirmed his claim that he had been shown it in order to ensure that his confession concurred with those of GPE

On the basis of all the evidence , the court found that the statements made by the suspects during questioning had not been given voluntarily but had been taken from them illegally under duress and could not constitute valid evidence .

The court then turned to the witness statements . The witnesses had given evidence on CARDINAL matters : ( i ) the quarrel at the bar ; ( ii ) the existence of unfriendly relations between the accused and NORP ( motive for the crime ) ; and ( iii ) the events at TIME at the C. brothers’ GPE house ( alibi for PERSON ) .

The court examined a number of witnesses whose written statements made at the police station about the events at the bar apparently confirmed that the accused had initiated the fight and been aggressive towards NORP A number of those witnesses declared in court that they had been threatened or otherwise forced by the police to sign witness statements , whereas they had not witnessed the events described in the statements . CARDINAL of these witnesses was DATE , who stated that under pressure from the police he had signed a false witness statement about having seen the accused ’s car being driven in the direction of the roundabout at TIME on the date of the crime .

The statements taken from CARDINAL other witnesses by the police in DATE were read out in court , including that of ORG who had been with C.E. and had confirmed his statement ( see the preceding paragraph ) . They referred mostly to the events at the bar . Since these witnesses were uncontactable abroad and the accused could not confront and properly challenge them , and in virtue of guarantees provided for in LAW , the court rejected their statements as evidence .

Another witness , a former colleague of NORP who had been accused by PERSON of beating him up in DATE , confirmed his earlier statements attributing the initiation of the fight to the accused . He had gone with NORP to the police station and , rather than talking about subsequently returning for any further meeting , they had agreed to go home after visiting the police station . The witness PERSON declared in court that she had seen part of a quarrel at the bar between the accused and NORP but that later ( at TIME ) , when she had been taken to work by the accused in their car , they had been calm and had not spoken about the policemen .

The court concluded that not a single witness , including NORP ’s colleagues , had confirmed the prosecution ’s version that NORP and the suspects had agreed after the incident at the bar to meet at a later time near the roundabout to continue the dispute .

Some of the police officers declared that PERSON had threatened NORP with violence because of the administrative file opened against him . The court failed to see why in such circumstances and after allegedly being threatened that same night by the suspects , NORP would have agreed to return for a fight , alone and without warning anyone , including the officer on duty at the police station , and without taking his weapon from the safe .

D. ’s colleague , a police officer who was present during all the events at the bar , had not informed his superiors of any such meeting even though he would have been obliged to report anything suspect . Indeed , he did not confirm that such an agreement had taken place . Moreover , having called his wife from the police station , he had gone outside to be taken home by NORP in his car but had not seen NORP or his police car . He had run down the street hoping to see him , but passing by the roundabout TIME , he had not seen NORP or anyone else there .

The court ’s conclusion was that the incident at the bar , to the extent that it had happened , had ended there .

Other witness statements related to the alleged motives for the crime , for example , that relations between the suspects and NORP were hostile on account of the criminal file opened against PERSON and that NORP was worried about vengeance on their part . However , the court found no objective confirmation of such fears . On the contrary , NORP had declared during questioning in the case in which PERSON had accused him of abduction in DATE that he was on good terms with PERSON

In addition , while NORP had opened a criminal investigation in respect of PERSON on DATE , he had not taken any measures in relation to him before handing the case to another investigator on DATE . There was no evidence in the file suggesting that PERSON had seen the materials in the file and thus found out about D. ’s involvement in the case , and the case had been closed by another investigator in DATE following PERSON ’s admission of having committed hooliganism . The court thus did not find any reasonable motive for revenge by PERSON based on that investigation .

Other witnesses called by the prosecution not only denied the allegation that PERSON had told them about killing NORP while they were travelling in GPE , but declared that they had seen PERSON being beaten to obtain a confession from him . The court likewise rejected the evidence of a former officer from the police station in PERSON where NORP had worked to the effect that he had been told by PERSON about the murder and its details . The court found that the witness was not impartial .

Another group of witnesses testified about the events at the house of the C. brothers’ parents . These witnesses ( not only the parents ) stated that they had butchered and processed a pig for TIME and then taken the meat to the market at TIME CARDINAL of them declared that they had been made to sign statements which did not entirely correspond to what they had witnessed , in particular being pressed by the police to indicate that the butchering had begun at a different time and to declare that PERSON had not been present . A meat seller at the market confirmed that at TIME he had received meat from PERSON and that , judging by its weight , the butchering had taken DATE .

Considering all the above witness statements , the court found that at TIME , the time of the murder according to the prosecution , the suspects had been at ORG GPE house and could not have been in the woods to commit the crime as alleged .

The report of the crime scene investigation , together with a video recording of the investigation , depicted each of the accused showing the place and the manner in which they had allegedly committed the crime . According to the testimony of CARDINAL of the police officers who had taken part , the investigation had been carried out on DATE .

The court found a number of violations of the rules on criminal procedure in the investigation of the crime scene . In particular , the report had been signed and annexed to the case - file only at a much later stage , whereas by law , it should have been signed during or immediately after the investigation . The witnesses to the crime scene investigation confirmed that they had signed the report but that they had not been allowed near the crime scene and had seen the burnt - out car only from a distance . Contrary to legal requirements , they had not had any explanation of their rights and obligations as witnesses , they had not seen what the police had found on the scene and they had not seen the video recording of the event before signing the report and map .

In addition , while a car tyre print had been found at the crime scene , a copy had not been made . NORP ’s documents , found intact and “ conspicuously displayed ” nearby , had not been examined for fingerprints , even though they had a plastic cover that could have retained prints .

A piece of fabric found on a bush had been described but not located on the map and not subjected to expert analysis . The analysis of the ORG clothes which they had worn on TIME did not reveal any element suggesting that they had been at the crime scene .

A petrol tank found at the scene had likewise not been analysed by the experts .

The prosecution had not produced to the court the video recording of the crime scene investigation . The map drawn did not indicate the exact position of a number of items and marks noted in the report as having been found at the crime scene . This made it impossible for the court to verify whether what the accused had indicated at the crime scene coincided with the map and the traces found .

The report of the investigation described the finding of a plastic tube in DATE , but no details or measurements were given . It was only on DATE that the investigator had presented as evidence a piece of plastic tubing which had allegedly been found at the crime scene and had been used for taking fuel from NORP ’s car in order to set the car on fire . The court rejected that evidence , along with the result of a forensic experiment that merely showed the possibility of evacuating fuel from the car ’s tank in that manner .

In the light of these findings , the court excluded the crime scene report as a whole from the evidence on account of the serious procedural violations .

The court examined additional facts determined during the investigation . A witness testified that he worked as a security guard in a café near the roundabout and had seen a police car and another car stopping there and a fight taking place between their occupants . They had then all got back into their cars and shots had been heard . CARDINAL car had left , followed by the police car , in the direction of PERSON . He had not seen either of the CARDINAL cars return in the direction of the wood where the burnt - out car was later found .

Other witnesses confirmed in court that they had heard shots that night but could not confirm their location .

The defence claimed that , after a brief initial investigation of the shooting , including a ballistics report , the relevant evidence had been withdrawn and examined in a new criminal case , in order to prevent the examination of alternative leads in the accused ’s case . The court found no evidence of any ballistics report , but noted the presence of records of interviews of witnesses who had heard the shots . Moreover , a cartridge case was found in NORP ’s car , the origin of which had not been explained . The court concluded that initially there had been another lead in the case which had not been fully investigated .

The court also examined the evidence relating to the identification of the human remains found in the car and decided that the identity of the victim had not been established .

The court also found , from the statements of a number of witnesses , including police officers , that the assumption that the CARDINAL suspects had committed the crime had emerged immediately and remained not just the main scenario under consideration , but in fact the only one examined during the entire investigation . In the court ’s view , this was confirmed by the failure to examine in any detail the established fact of the shooting in the area of the roundabout .

The court also noted the general attitude of the local police officers towards the suspects displayed in their letter of CARDINAL DATE ( see paragraph CARDINAL above ) , which had led it to conclude that the local police had formed a strongly negative attitude towards the suspects even before the crime had been committed . Added to that was the loss to the police station in the form of the police car that had been destroyed . The court concluded that that police station should not have been involved at all in the investigation of the crime . Nonetheless , most procedural steps in the initial phase of the investigation of the case had been performed by officers from that police station .

NORP The court examined the expert reports on various items found in and around the car . It concluded that most of those reports had been filed in serious breach of the rules on criminal procedure ( notably , the presumed identity of the human remains found in the burnt - out car had already been written on the materials presented to the experts , who were under the impression that the fact had already been established ) or had been seriously undermined by the improper manner in which samples had been obtained during the crime scene investigation .

The court concluded that these reports neither confirmed , nor denied the identity of the victim . The objects found in the car and identified as belonging to the alleged victim were not inseparable from him and could have been placed there . Moreover , the prosecution had given no explanation as to why those who had committed the crime , having taken measures thoroughly to destroy all traces , had left NORP ’s personal documents untouched in an open space nearby , “ conspicuously displayed ” with his picture attached .

The court considered that credibility could be attached to the statements by the accused that illegal forms of pressure had been used on them and to those made by some witnesses about being forced by the police to give false statements .

The court also found that the investigation had been unilateral and biased against the suspects . It found that it had not been proved that the remains in the burnt - out car belonged to the alleged victim . While it had been proved that a crime had been committed by burning the car and an unidentified person inside it , there was no evidence to show that the suspects were the perpetrators of the crime . Most of the evidence gathered was unreliable owing to breaches of criminal procedure and could not serve as a basis for a conviction . On the basis of its findings , the court acquitted all CARDINAL suspects .

On DATE ORG quashed the judgment of ORG and adopted a new one , convicting GPE , PERSON and PERSON It did not sentence PERSON because of his death in DATE .

The court recounted in detail the sequence of events as submitted by the prosecution . It then examined the parties’ submissions and the material in the case file and examined CARDINAL witness ( Dr P.O. ) . The court noted the contents of the interviews of each of the accused during the investigation ( of PERSON on CARDINAL and DATE , of GPE from DATE , CARDINAL DATE and CARDINAL DATE and of PERSON , without specifying any specific date in his case but rather stating that he had given genuine confessions “ throughout the investigation ” ) .

It found that the CARDINAL suspects had on a number of occasions made genuine and consistent confessions in the presence of their lawyers and that PERSON had written CARDINAL of his confessions himself . GPE ’s confession of CARDINAL and DATE had been filmed .

The court considered that all of the above precluded the possibility of ill - treatment and that the ORG confessions had incorrectly been excluded from the evidence by the first - instance court . The suspects had changed their statements towards the end of the investigation only to avoid criminal responsibility .

In the court ’s opinion , there was no evidence of any ill - treatment of the accused . The officers questioned in that regard all denied having applied such treatment and PERSON ’s personal medical file from his hospital treatment in DATE did not establish any evidence of ill - treatment . PERSON did not confirm the ill - treatment .

The officer who had questioned PERSON after arresting him in GPE testified to the fact that PERSON had been lawfully questioned and that he had not been subjected to any form of ill - treatment . Because PERSON had a NORP residence visa in his passport for DATE , the NORP investigating authorities had treated him as a NORP citizen and there had thus been no need for a special request by any NORP authority to that effect .

The court noted that all CARDINAL suspects had made similar statements , differing only as regards their respective roles in committing the crime . The court considered that their subsequent denial of committing the crime and the slight variations in their versions of events was an attempt to avoid criminal responsibility .

The crime scene investigation had been conducted in the presence of witnesses and PERSON ’s lawyer and was filmed . Both GPE and PERSON had been able clearly to indicate the place and the manner of NORP ’s killing .

DATE . D. ’s wife had identified the objects found in the burnt - out car and declared that the accused had often threatened her husband and family because of a criminal investigation opened by her husband against PERSON On DATE the local police had called to inform her that her husband ’s corpse had been found burned in the woods , together with his keys and documents . The court found that NORP had indeed opened a criminal investigation against PERSON on DATE .

The car found at the crime scene belonged to the local police station . Blood samples from around the car coincided with the NORP ’s blood group . Moreover , no other disappearances had been reported during the relevant period in the region . There was no doubt in the view of ORG that the corpse found in the car was NORP

The court stated , without giving any further details , that a number of witnesses had “ directly and indirectly shown that the accused were connected to the crime ” . The statements of CARDINAL other witnesses , excluded from the evidence by the first - instance court , were declared admissible by ORG , although it did not specify why , or what those statements included .

NORP Moreover , the witness statements of PERSON and PERSON had been read in court but unlawfully excluded from the evidence by the first - instance court .

The court also found that the first - instance court had not given reasons for its decision to reject from the file several types of evidence . The court rejected as unproven , without giving any explanation , all the other evidence taken into account by the first - instance court in favour of the accused . It found each of the accused , including PERSON , guilty as charged and decided to discontinue the proceedings against PERSON because of his death .

On CARDINAL DATE ORG upheld the judgment of ORG .

The court first recounted in detail the prosecution ’s version of events , the findings of the lower courts in the case and the arguments raised by the defence , including an alibi for the accused .

The court declared that it accepted only lawfully obtained evidence as the basis for its judgment , evidence which it found “ sufficient to confirm the guilt of the accused [ PERSON ] , [ GPE ] and [ PERSON ] in having committed the acts of which they are accused ” . It referred to the contents of the self - incriminating statements made by the accused on DATE and CARDINAL DATE and noted that these statements had been made in the presence of their lawyers . It confirmed ORG acceptance of the self - incriminating statements as the “ decisive evidence ” in the case . The accused had made similar statements ; the discrepancies relating to the role of each in committing the crime were the result of their attempt to transfer most of the guilt to the others .

DATE . The court also found that the accused had not withdrawn their statements until DATE , when they declared that they had been ill - treated . The first - instance court :

“ gave credibility to the accused ’s declarations , even though they had not been proved , while deciding , without any basis , that witnesses who testified that there had been no ill - treatment were interested persons and should thus have their testimony excluded . ”

The court also noted the statements of several witnesses who confirmed that the quarrel at the bar had taken place , that the accused had initiated it and that they had left for the hospital , while NORP had left for the police station after CARDINAL a.m. The testimonies largely coincided , as to the time and sequence of events , with the initial statements by the accused .

The witness ORG confirmed that the accused had driven her to the hospital after TIME and confirmed the quarrel at the bar . Her statements largely coincided with those made by GPE on DATE . The witnesses ORG and ORG stated that they had seen the accused in their car and the police car driving towards the roundabout shortly after TIME

The officer who had been on duty that TIME at the police station noted that NORP and his colleague PERSON had come to the station at around QUANTITY TIME later NORP had left in the car .

Officer PERSON ( se paragraph CARDINAL above ) , remembered CARDINAL of the accused shouting in the PERSON language “ I will burn you ” . The officer did not speak that language but remembered the word and had later found out its meaning .

The court noted that NORP had opened a criminal investigation against PERSON , which might have constituted a motive for revenge .

The court examined various pieces of evidence which proved , in its view , that the human remains found at the crime scene were those of NORP : an expert report had found that the corpse was , in all probability , that of a man ; the blood stains found coincided with NORP ’s blood group ; and items found in and around the car , such as keys and documents , belonged to NORP and had been recognised by his wife .

Lastly , the court declared that the above and “ other evidence taken into account by ORG ” proved the accused ’s guilt . No further details were given .

The relevant provisions of LAW in force at the material time read as follows :

“ Criminal proceedings can not be instituted , and those already instituted shall be discontinued :

( CARDINAL) against a deceased person , with the exception of those cases where the proceedings are necessary for the rehabilitation of the deceased ... ”

Evidence obtained in violation of the present Code or not properly examined during the court hearing can not constitute the basis of a court conviction or of other procedural documents . ”

“ ... A witness who refuses to testify shall be liable in accordance with LAW , and shall be liable for falsely testifying in accordance with LAW of LAW . ... ”

“ ... When the accused is first questioned after being taken into custody , the questioning may take place only in the presence of defence counsel , whether chosen or officially appointed . ”

“ TIME of an investigatory procedure shall be filed during the procedure or immediately thereafter . ...

After the end of the questioning the audio or video recording shall be reproduced in full for the person questioned . ... The audio or video recording shall end with a declaration by the person questioned confirming the correctness of the recording . ”

The following have the right to introduce a revision request :

( b ) the spouse and other close relatives of a convicted person , even after his or her death . ”

The relevant provisions of the LAW on compensation for damage caused by the illegal acts of the criminal investigating authorities , prosecuting authorities and courts ( no . CARDINAL ( DATE ) ) read as follows :

“ ( CARDINAL ) Pursuant to the present Act , compensation shall be payable for pecuniary and non - pecuniary damage caused to a natural or legal person as a result of :

( a ) unlawful detention or arrest ... ;

( b ) unlawful conviction ... ;

( d ) unlawful administrative detention or arrest ... ”

“ ( CARDINAL ) At the time of notifying about ... an acquittal ... , the natural person ( in case of his or her death the heirs ) ... shall be handed a notice in a typical form explaining their right and procedure for asking reparation for damage caused . ”

“ ( CARDINAL ) The prosecutor responsible for the criminal investigation or the hierarchically superior prosecutor shall make an official apology in the name of the ORG to the groundlessly prosecuted person .

( CARDINAL ) Official apology of the prosecutor shall be made in the case where :

( c ) an acquittal becomes final ; ...

( CARDINAL ) The prosecutor shall make an official apology in written form to the victim of the unlawful acts or to the latter ’s close relatives . ”


The applicant , Mr PERSON , is a NORP national who lives in Calbe . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

, may be summarised as follows .

The applicant is the operator of a service - station in ORG . In DATE , he concluded a service - station agreement with an oil company which contained an exclusive purchasing clause , according to which the applicant is obliged to buy petrol from the company for DATE .

In DATE , after the applicant ’s legal counsel had challenged the contract , the oil company sued the applicant before ORG in order to declare the contract between the parties as being valid and to order the applicant to refrain from purchasing , storing and selling other ORG petrol .

On DATE , ORG dismissed the oil company ’s claim . It held that the agreement was prohibited by LAW CARDINAL § CARDINAL LAW ( then LAW ) and was therefore void pursuant to LAW of LAW . ORG found that the exclusive purchasing agreement restricted the competition within the NORP common market and that the contract with its DATE duration formed part of a number of agreements designed to hamper the market entry for potential competitors . ORG also found that this provision applied even though the contract had described the applicant ’s position as that of a sales agent ( PERSON ) , because his contractual obligations did not support such a qualification .

The oil company subsequently lodged an appeal with ORG . In the appeal proceedings , the applicant asked the court to dismiss the appeal and , alternatively , to make a referral to ORG under LAW regarding the following question :

“ Is LAW to be interpreted in such a way that the obligation for the exclusive purchase of petrol in a service - station contract with the owner of the service - station , like the contract between the parties to the present dispute , -even if the contract is phrased as a sales agent agreement- is capable to distort competition within the relevant market of the sale of petrol by service - stations and to noticeably affect trade between member states and is such an agreement consequently void pursuant to LAW ORG ? ”

On DATE , ORG set aside ORG judgment of CARDINAL DATE and ordered the applicant to refrain from purchasing , storing or selling other oil company ’s petrol in his service - station . ORG concluded that the applicant had to be regarded as a sales agent under NORP PERSON and that LAW was therefore not applicable . Finally , ORG stated that it had not been obliged to seek a preliminary ruling by ORG under LAW ORG since the applicant could still lodge an appeal on points of law with ORG .

The applicant , represented by legal counsel , lodged an appeal on points of law with ORG on DATE , requesting ORG to set aside the judgment of ORG of CARDINAL DATE and to decide in accordance with his motions lodged in the appeal proceedings ( “ nach den Schlußanträgen der Revisionklägerin in PERSON ) . Those motions thus also included his alternative motion to request a preliminary ruling under LAW . However , his submissions to ORG did not contain an express request for a reference under LAW , nor did the applicant give any express reasons for the necessity of a preliminary ruling . On DATE ORG refused to admit the applicant ’s appeal on points of law , finding that the case was neither of fundamental importance , nor that it had reasonable prospects of success . No further reasons for the dismissal were given by ORG .

On DATE , ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint without giving any reasons .

( CARDINAL ) The following shall be prohibited as incompatible with the common market : all agreements between undertakings , decisions by associations of undertakings and concerted practices which may affect trade between Member GPE and which have as their object or effect the prevention , restriction or distortion of competition within the common market , and in particular those which :

( a ) directly or indirectly fix purchase or selling prices or any other trading conditions ;

( b ) limit or control production , markets , technical development , or investment ;

( c ) share markets or sources of supply ;

( d ) apply dissimilar conditions to equivalent transactions with other trading parties , thereby placing them at a competitive disadvantage ;

( e ) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which , by their nature or according to commercial usage , have no connection with the subject of such contracts .

( CARDINAL ) Any agreements or decisions prohibited pursuant to this Article shall be automatically void . ( ... )

ORG shall have jurisdiction to give preliminary rulings concerning :

( a ) the interpretation of this LAW ; ( ... )

Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .

Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG .

LAW of LAW Grundgesetz ) provides :

“ ( ... ) No one may be removed from the jurisdiction of his lawful judge . ”

It is settled case - law of ORG that ORG is a “ lawful judge ” within the meaning of LAW ( see BVerfGE DATE , p. CARDINAL , at p. CARDINAL ; BVerfG , CARDINAL BvR CARDINAL/CARDINAL ) . ORG finds a violation of that provision if a court against whose decisions there is no judicial remedy basically fails to recognise its obligation to seek a preliminary ruling under LAW ( BVerfG , decision of DATE , CARDINAL BvR CARDINAL/CARDINAL , ORG DATE , p. CARDINAL ) . The same applies in the instance that there does not yet exist any case - law by ORG concerning a decisive question on the application or interpretation of ORG law , or the existing case - law has not yet exhaustively answered that question ( BVerfG , decision of DATE , cited above , p. CARDINAL ) .


CASE OF DVORACEK AND DVORACKOVA v. SLOVAKIA

Remainder inadmissible;Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The first applicant , Mr PERSON , was born in DATE . The second applicant , PERSON , was born in DATE . They are married and live in GPE . They filed the application also on behalf of FAC , their daughter .

Ms Ivana Dvořáčková was born in DATE with Down Syndrome ( trisomy CARDINAL ) and a damaged heart and lungs . She was in the care of a specialised health institution in GPE . In DATE she was examined in ORG in ORG where it was established that , due to post - natal pathological developments , her heart chamber defect could no longer be remedied .

NORP On DATE she underwent vascular surgery in GPE . However , the doctors considered that comprehensive heart surgery with a view to eliminating the cardio - vascular defect was no longer feasible . A conservative treatment was recommended and the medical prognosis was that her heart or lungs would fail in DATE of her life .

Ms Ivana Dvořáčková died of heart failure on DATE at DATE .

On DATE PERSON and her parents instituted proceedings in GPE . They claimed compensation for damage on the ground that FAC health had been seriously and irreparably damaged as a result of shortcomings in the post - natal treatment she had received in a hospital to which the defendant was the legal successor . In particular , on the basis of the aforementioned examination in ORG in GPE , they alleged that the health institution in GPE had failed to diagnose in time the extent of the damage to her health and to ensure appropriate and timely treatment of the defect .

ORG held QUANTITY hearings in the case and dismissed the action on DATE . On DATE ORG in GPE quashed that judgment . The case file was returned to ORG on CARDINAL DATE .

In DATE and DATE ORG took various procedural steps . It scheduled CARDINAL hearings in DATE .

NORP On DATE ORG appointed an expert , who submitted an opinion on DATE .

Another hearing in the case was scheduled for DATE . The plaintiffs requested an adjournment but ORG dismissed their request on DATE . On DATE ORG quashed that decision . After obtaining further evidence , ORG stayed the proceedings on DATE at the ORG request . On DATE the plaintiffs requested that the proceedings be resumed .

On DATE ORG held a hearing at which PERSON challenged the expert .

On DATE , after their daughter had died , the first and second applicants asked ORG to proceed with their case and determine whether the defendant was liable for damage to their daughter ’s health . They indicated that the question arose whether her death had been caused by shortcomings in her medical treatment and that they intended to claim damages in that respect . On DATE the first and second applicants specified their claims for damages with ORG .

On DATE ORG dismissed the request for the exclusion of the expert . In a separate decision , which was rectified on DATE , it discontinued the proceedings . On DATE the ORG varied the first - instance court ’s decision in that it discontinued the proceedings only to the extent that they concerned part of ORG claim for compensation which under the relevant law could not pass to her heirs . The appellate court remitted the case to ORG for further examination .

On DATE ORG adjourned the case as the defendant ’s representative did not attend the hearing .

A further hearing was held on DATE . The first applicant stated that he challenged the CARDINAL expert opinions included in the file as the experts involved either lacked the requisite qualifications or were biased . ORG decided to obtain another expert opinion . A hearing scheduled for DATE had to be adjourned as the judge was ill .

After the case had been transferred to a different judge , a hearing was held on DATE . The first applicant urged the court to determine the case . He maintained that the evidence available was sufficient and that obtaining another expert opinion was not necessary . The judge decided to obtain a fourth expert opinion in the case . In a decision of CARDINAL DATE ORG instructed ORG P.J. Šafárik University in PERSON to submit an opinion on the relevant issues within DATE .

On DATE the GPE I ORG asked the Hradec Králové ORG ( GPE ) for assistance in obtaining a further opinion by CARDINAL NORP medical experts .

NORP In DATE the parties informed the ORG that the proceedings were pending .

On DATE ORG held that the Bratislava I ORG had violated PERSON right to a hearing within a reasonable time . It found that the case was not particularly complex and that the plaintiff had not by her conduct contributed to the length of the proceedings in a substantial manner . The decision stated that there had been unjustified delays in the proceedings before ORG , totalling DATE .

ORG ordered the Bratislava I ORG to proceed with the case without further delay and to pay to the plaintiff , within DATE from its judgment becoming final , the equivalent of MONEY ( ORG ) as just satisfaction . It also ordered the Bratislava I ORG to reimburse the plaintiff ’s costs related to the constitutional proceedings within DATE .

On DATE the parents of PERSON , represented by an advocate , lodged a complaint with ORG alleging a violation of their right under LAW to a hearing within a reasonable time .

They submitted further arguments and documents subsequently . In particular , in CARDINAL letters which they personally sent by registered mail to ORG and its President on DATE , they alleged that the inactivity of ORG amounted to a denial of justice and that ORG , DATE and DATE of the Convention had also been violated . As regards Article CARDINAL in particular , they submitted that their daughter had died as a result of medical negligence . The applicants referred to the States’ obligation to protect the life of persons within their jurisdiction and to “ apply all civil - law remedies , such as compensation for damage , in cases of medical negligence ” .

On DATE the applicants appointed a different advocate to represent them in the proceedings before ORG . In a submission of DATE the advocate asked ORG to have regard to all earlier submissions in the case and to consider the scope of the breach of the applicants’ rights guaranteed by both LAW and the Convention . At the request of ORG the advocate submitted , on DATE , further information about the scope of the proceedings complained of and about the complaint under LAW . He indicated in his letter that in the proceedings before ORG the plaintiffs “ alleged a breach of their right under LAW to a hearing without unjustified delays and that they also complained of interference with their human rights guaranteed by LAW ” .

On CARDINAL DATE ORG declared admissible the complaint of unjustified delays in the proceedings before GPE . It stated that the plaintiffs had claimed damages in the action brought on CARDINAL DATE and therefore had standing as a party to the proceedings complained of .

To the extent that the plaintiffs complained of “ interference with their human rights guaranteed by LAW ” ORG rejected their complaint as not complying with the statutory requirements . In particular , the plaintiffs had not specified the rights which they alleged had been violated , submitted any arguments in support of their allegation or provided draft wording for the operative part of the decision they sought to obtain from ORG with respect to that complaint .

On DATE ORG found that GPE had violated the plaintiffs’ right to a hearing within a reasonable time . It ordered ORG to proceed with the case without further delay and granted the equivalent of ORG CARDINAL each to the first and second applicants as just satisfaction payable within DATE . It also ordered the Bratislava I ORG to reimburse the costs of the constitutional proceedings to the applicants ( the equivalent of ORG CARDINAL ) .

ORG noted that the proceedings in issue concerned a claim for compensation for serious damage to the health of Ms Ivana Dvořáčková . That claim was based on allegedly incorrect medical diagnoses as a result of which ORG lung and heart had been damaged to the extent that she had been permanently handicapped as from CARDINAL DATE . Subsequently the plaintiffs had extended the claim to include , inter alia , compensation for the costs of medical treatment and care for their daughter , expenses relating to her burial and damages for unjustified interference with their privacy .

The Constitutional Court found that the case was not particularly complex and that the overall duration of the proceedings could not be imputed to the plaintiffs . In addition to the delays in the proceedings to which it had pointed in its judgment of DATE ( see paragraph CARDINAL above ) , ORG found that the case had been with an expert for DATE . During the subsequent period ORG had not proceeded with the case effectively with the exception of a period of DATE and DATE when the proceedings had been stayed .

The following provisions of LAW DATE are relevant in the present case .

Section CARDINAL(CARDINAL ) provides that a request for proceedings to be started before ORG must indicate , inter alia , the decision which the plaintiff seeks to obtain , specify the reasons for the request and indicate evidence in support .

Pursuant to paragraph CARDINAL of section CARDINAL , plaintiffs are required to submit an authority for a lawyer to represent them in the proceedings before ORG .

Under paragraph CARDINAL of section CARDINAL , ORG is bound by a plaintiff ’s request for proceedings to be started unless the LAW expressly provides otherwise .

ORG has declared itself bound , in accordance with section CARDINAL(CARDINAL ) of LAW DATE , by a party ’s submission aimed at initiating proceedings before it . ORG has expressly stated that the submission was particularly relevant as regards the wording of the order which parties sought to obtain from it as it could only decide those matters which a party had requested be determined ( see , for example , decisions III . ÚS CARDINAL of DATE or III . ÚS CARDINAL of DATE ) .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

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

NORP On DATE ORG convicted the applicant of fraud and usurping official powers ( Articles CARDINAL(CARDINAL ) and CARDINAL of LAW ( “ the GPE ” ) applicable at the time ) and sentenced him to DATE imprisonment . The court absolved him from serving the sentence in view of an amnesty law which applied to participants in the military conflict in the GPE region in DATE .

On DATE a prosecutor asked the court to quash its own judgment of DATE since the amnesty should not have applied to the applicant . The prosecutor explained that it had been discovered shortly prior to making the request that a copy of the document submitted by the applicant to the court in DATE to prove his participation in the DATE conflict could not be found in the file . At the same time , the applicant was not registered with any organisation responsible for issuing such documents and keeping the lists with those issued with such documents . This , the prosecution considered , constituted new facts unknown to the court when it had adopted its judgment .

On DATE ORG reopened the proceedings and declared the applicant guilty of having committed the offences covered by Articles CARDINAL(CARDINAL ) and CARDINAL of the FAC It sentenced him to DATE of imprisonment .

On DATE the ORG partly quashed that judgment and reduced the punishment to PERCENT imprisonment . On DATE ORG upheld that judgment .

Having eventually gathered sufficient evidence in DATE , a specialised ORG confirmed the applicant ’s participation in the DATE conflict . The prosecution then asked the court to quash the judgment of DATE and all subsequent judgments upholding it .

On DATE ORG again found the applicant guilty of having committed the offences provided under LAW ) and CARDINAL of the FAC and applied the amnesty law to him , absolving him from serving his sentence .

According to the documents submitted by the ORG , the applicant was released immediately after the adoption of the judgment of CARDINAL DATE and was re - arrested on DATE on suspicion of having committed another offence ( extortion ) on DATE . According to the applicant , he was detained for TIME on CARDINAL May and DATE on suspicion of fraud committed during DATE and was arrested again on DATE . He claimed that during ORG DATE his office and car had been searched .

On DATE the applicant was arrested on suspicion of having extorted money from a private individual on DATE . He was also accused of having defrauded several persons during DATE .

An arrest warrant was issued by ORG on DATE and it was renewed thereafter until DATE , when he was released in order to undergo medical treatment in a civilian hospital . Since he thereafter absconded from the law enforcement authorities , he was re - arrested on DATE . On DATE he was convicted of fraud by ORG .

That judgment was partly upheld by ORG on DATE and by ORG on DATE , sentencing him to CARDINAL years’ detention .

On DATE the applicant initiated proceedings claiming compensation for his “ repeated conviction ” in DATE . On DATE ORG found in his favour and awarded him MDL CARDINAL ( ORG CARDINAL ) for the non - pecuniary damage caused by the DATE revision and the resulting DATE of illegal imprisonment ( MayOctober CARDINAL ) .

On DATE ORG quashed that judgment and adopted a new one , rejecting all of the applicant ’s claims . According to the applicant , he could not lodge an appeal against that judgment because he could not observe formal requirements such as the typed form of the appeal and the payment of court fees . It appears from the documents submitted by the parties that he managed to lodge his appeal and that it was examined .

On DATE ORG ordered a rehearing of the case by ORG because of procedural shortcomings .

On DATE ORG upheld the judgment of DATE and rejected the applicant ’s argument that the sum awarded to him had been too small to compensate for the damage caused to him by unlawful detention , which according to him had lasted DATE .

On DATE ORG upheld that judgment . The court found that the applicant was the victim of a miscarriage of justice and that personal freedom was one of the highest social values . However , the applicant was compensated sufficiently by the lower court , in view of the fact that compensation should neither undervalue the damage to the victim nor constitute a source of unjust enrichment .

According to the applicant , on DATE ORG rejected a request of ORG to reopen the proceedings in order to take account of the fact that he had not been detained in DATE . The applicant did not submit a copy of that decision .


The applicant , a citizen of GPE born in DATE , resides in PERSON in GPE .

A.

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

The applicant entered GPE as a seasonal worker in DATE . In DATE he married PERSON , a citizen of GPE who arrived in GPE in DATE and is currently working as head of department in a supermarket . As a result of the marriage , the applicant was granted an DATE residence permit . Their son PERSON was born in DATE .

At a date not specified in the application the applicant suffered an accident while at work . Part of his left arm was amputated , and he now draws an invalidity pension .

On DATE ORG ( Bezirksgericht ) sentenced the applicant to CARDINAL months’ imprisonment , a fine of MONEY ( CHF ) and CARDINAL years’ expulsion from GPE , inter alia , on account of professional insurance fraud and contravening LAW ( GPE ) , in particular gun - running firearms to GPE . The expulsion from GPE was suspended on probation for a period of DATE . No appeal was filed against this judgment .

By letter dated DATE ORG ) of GPE informed the applicant that his DATE residence permit ( GPE ) would only provisionally be prolonged until DATE , as the judgment of ORG had not yet entered into legal force . On DATE ORG decided no longer to prolong the applicant ’s residence permit in view of his criminal conviction . The applicant ’s appeal against this decision was dismissed by ORG ( NORP ) of the GPE of GPE on DATE .

On DATE ORG ( PERSON ) fined the applicant MONEY for having contravened LAW ( Betäubungsmittelgesetz ) while in prison .

On DATE the applicant was released from prison on probation .

The applicant filed an appeal against the decision of DATE which was upheld , on DATE , by ORG ( Verwaltungsgericht ) of the GPE of LOC . The ORG noted in particular that the Government of the GPE of LOC had overlooked that the applicant ’s wife had obtained as from DATE a right to domicile in GPE ( Niederlassungsbewilligung ) .

On DATE the applicant ’s wife and son were granted the right to domicile in GPE .

The applicant ’s renewed appeals against the refusal to prolong his residence permit were dismissed by the Government of the GPE of GPE on DATE and by ORG of the GPE of GPE on DATE .

The applicant filed an administrative law appeal ( PERSON ) which ORG ( PERSON ) dismissed on DATE . The ORG relied in particular on LAW of LAW ( Bundesgesetz über PERSON ) according to which a foreigner will lose his right to a prolongation of a residence permit if he breaches public order . The ORG then weighed the public interest in not renewing the applicant ’s residence permit in view of his criminal conviction with his interest in remaining with his family in GPE .

The ORG considered in particular that the applicant had shown considerable “ criminal energy ” in that he had regularly committed offences of the same type while in GPE . He had furthermore maintained regular contacts with his home country to which he had occasionally returned during his stay in GPE .

The ORG furthermore found that the applicant ’s wife would undoubtedly suffer in her professional activities if she followed the applicant to GPE , though this did not suffice as a reason to prolong his residence permit . Their son was of an adaptable age and could be expected to follow his parents . The issue furthermore arose whether the separation could still be regarded as being disproportionate since the wife had stated during the proceedings that she would in any event remain in GPE with their son , even if the applicant left GPE .

As a result , the ORG did not find it disproportionate that the applicant ’s residence permit had not been renewed .

On DATE ORG ( ORG für ORG ) informed the applicant that he had to leave GPE by DATE . By decision of the same date the ORG prohibited the applicant from entering GPE for a period of DATE , i.e. until DATE .

B. Relevant domestic law and practice

Section CARDINAL of LAW ( Bundesgesetz über PERSON ) states :

“ CARDINAL . As a rule the authority shall at the outset only grant a residence permit to the alien , even if the latter envisages permanently to stay in the country . The ORG shall determine in each case DATE as from when it shall grant the right to domicile .

If this date has already been determined , or if the alien is entitled to the right to domicile , the spouse shall be entitled to a residence permit , or to have it prolonged , as long as the spouses live together . After a regular and uninterrupted residence of DATE the spouse shall also be entitled to the right to domicile . Unmarried children DATE shall be included in the right to domicile if they live together with their parents . These rights expire if the entitled person has breached public order . ”


Violation of Art. 6-1 with regard to the civil proceedings;Violation of Art. 6-1 with regard to the criminal proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

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

The applicant worked as the head of the sales department in a coal mine “ Rozbark ” in ORG . On DATE she was dismissed from her job .

On DATE she lodged a claim for compensation and reinstatement with ORG ( Sąd Rejonowy Wydział Pracy ) . Before DATE the trial court held CARDINAL hearings and heard evidence from CARDINAL witness .

On DATE the parties reached a friendly settlement and ORG discontinued the proceedings . On DATE the applicant ’s lawyer asked the court to resume the proceedings , as the defendant company had failed to comply with the terms of the settlement . On DATE ORG ( Sąd Wojewódzki ) quashed the decision of DATE and resumed the proceedings .

On DATE ORG held a hearing . On DATE it stayed the proceedings until the conclusion of criminal proceedings against the applicant ( referred to below ) . The applicant ’s further appeal against that decision was dismissed by ORG on DATE .

On DATE the applicant asked the court to resume the proceedings . On DATE the court held a hearing . On DATE it dismissed her application . On DATE , on the applicant ’s appeal , ORG resumed the proceedings .

DATE and DATE the court held CARDINAL hearings and heard evidence from CARDINAL witnesses . On DATE the ORG gave judgment . The court granted the applicant compensation and dismissed her claim for reinstatement . Both parties appealed .

On DATE and DATE ORG held hearings . On DATE the applicant sent a letter to the President of ORG asking for a hearing date to be set .

On DATE ORG dismissed the defendant ’s appeal . DATE ORG gave judgment and dismissed the applicant ’s appeal . The judgment is final .

On DATE ORG ( Prokurator Rejonowy ) submitted to ORG ( Sąd Rejonowy ) a bill of indictment against the applicant and CARDINAL other employees of the “ LOC coal mine . The applicant was charged with carrying out fraudulent financial operations . On DATE the ORG returned the case - file to ORG instructing him to complete the investigation . ORG appealed . On DATE ORG ( Sąd Wojewódzki ) ordered ORG to proceed with the case .

During the proceedings ORG held QUANTITY hearings and heard evidence from several witnesses .

On DATE the ORG delivered a judgment and acquitted the applicant . ORG appealed .

On DATE the ORG quashed the first - instance judgment and remitted the case to the prosecution authorities for a further investigation .

On DATE ORG ordered an expert opinion to be obtained . The expert submitted his opinion on DATE . On DATE the ORG decided to stay the investigation until an expert on management prepared an opinion .

On DATE the applicant sent a letter to ORG complaining about the slow progress of the proceedings . On DATE she sent another letter to the Minister of ORG ( Minister PERSON ) asking about the progress of the investigation proceedings . In a letter of DATE the ORG informed the applicant that there were difficulties in finding an expert competent to prepare an opinion .

On DATE the expert on management submitted his opinion to the Prosecutor . The investigation was resumed on DATE .

On DATE ORG submitted to ORG a bill of indictment against the applicant and CARDINAL other persons .

On DATE the ORG discontinued the criminal proceedings against the applicant .