CASE OF MAMATKULOV AND ABDURASULOVIC v. TURKEY

No violation of Art. 3;No violation of Art. 6 as regard the extradition proceedings;No separate issue under Art. 6 as regard the other complaints;Violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE and are currently in custody in GPE . They are members of the PERSON ( “ NORP ” ) ORG of GPE ( PERSON ) , an opposition party in GPE .

On DATE the applicant arrived in GPE from LOC ) , on a tourist visa . He was arrested by NORP police at FAC ( GPE ) under an international arrest warrant and taken into police custody on suspicion of homicide , causing injuries by the explosion of a bomb in GPE and an attempted terrorist attack on the President of GPE .

GPE requested the applicant 's extradition under a bilateral treaty with GPE .

On DATE ORG made an application to the investigating judge for the applicant to be remanded in custody . The applicant , who was assisted by his lawyer , was brought before the judge DATE and remanded in custody for DATE , in accordance with LAW , which was opened for signature on DATE .

On DATE the first applicant was interviewed by the judge of ORG . In an order made on DATE under the expedited - applications procedure the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but “ ordinary criminal ” offences . The judge also made an order remanding the first applicant in custody pending his extradition . The applicant , who was assisted by his lawyer and an interpreter , denied the charges and protested his innocence .

In written pleadings that were lodged at a hearing on DATE , the first applicant 's representative argued that the applicant was working for the democratisation of his country and that political dissidents in GPE were arrested by the authorities and subjected to torture in prison . He added that the first applicant had been in GPE at the material time and had asked the NORP authorities for political asylum as his life was at risk . He argued that his client had been prosecuted for an offence of a political nature and , relying on LAW , asked ORG to refuse GPE request for extradition .

On DATE the applicant appealed to ORG against the order made under the expedited - applications procedure on DATE . ORG examined the file that had been produced to it and dismissed the applicant 's appeal on DATE .

The applicant entered GPE on DATE on a false passport . On DATE , acting on a request for his extradition by GPE , the NORP police arrested him and took him into police custody . He was suspected of homicide , causing injuries to others by the explosion of a bomb in GPE and an attempted terrorist attack on the President of GPE .

On DATE ORG made an application to the investigating judge for the applicant to be remanded in custody . On DATE the applicant was brought before a judge , who remanded him in custody .

NORP In a letter of CARDINAL DATE the Fatih Public Prosecutor applied to ORG for a determination of the applicant 's nationality and of the nature of the alleged offence .

In a decision of DATE , after hearing the applicant , ORG determined his nationality and the nature of the offence pursuant to LAW . It held that the offences with which he had been charged were not political or military in nature but “ ordinary criminal ” offences . It also made an order remanding the applicant in custody pending his extradition .

At a hearing on DATE the applicant 's representative submitted that the offence with which the applicant had been charged was political in nature and that political dissidents in GPE were arrested by the authorities and subjected to torture in prison . He added that the applicant had been in GPE at the material time on a false passport .

On DATE the applicant appealed to ORG against the judgment of DATE . ORG examined the file that had been produced to it and dismissed the applicant 's appeal on DATE .

On DATE the President of the ORG decided to “ indicate to the Government , pursuant to Rule CARDINAL of ORG , that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to extradite the applicants to GPE until the ORG has had an opportunity to examine the application further at its forthcoming session on DATE ” .

On DATE ORG issued a decree for the applicants ' extradition .

On DATE the ORG decided to extend the interim measure indicated pursuant to Rule CARDINAL until further notice .

On DATE the applicants were handed over to the NORP authorities .

In a letter of DATE the Government informed the ORG that it had received the following assurances about the CARDINAL applicants from the NORP authorities :

( i ) On DATE and DATE the Ambassador of GPE transmitted CARDINAL notes from ORG to which were appended CARDINAL letters from ORG , stating : “ The applicants ' property will not be liable to general confiscation , and the applicants will not be subjected to acts of torture or sentenced to capital punishment ” ;

( ii ) NORP The NORP authorities added “ GPE is a party to ORG Convention against Torture and accepts and reaffirms its obligations to comply with the requirements of the provisions of that ORG both as regards GPE and the international community as a whole ” .

On DATE the Government transmitted to the ORG a diplomatic note dated DATE from ORG of GPE setting out the following points :

“ It appears from investigations conducted by the NORP judicial authorities that PERSON and PERSON have played an active role in planning and organising terrorist acts against the leaders of GPE and its people since DATE , as members of a criminal organisation led by GPE and GPE , who are notorious religious extremists .

It appears from information obtained through cooperation with the intelligence services of foreign countries that PERSON and PERSON have committed offences in GPE and GPE .

Their indictment , which was drawn up on the basis of previously obtained evidence , contains a number of counts : setting up a criminal organisation , terrorism , a terrorist attack on the President , seizing power by the use of force or by the overthrow of the constitutional order , arson , uttering forged documents and voluntary homicide .

All the investigations have been conducted with the participation of their lawyers . The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it . That information has been corroborated by the other evidence that has been obtained .

The assurances given by ORG concerning PERSON and PERSON comply with GPE 's obligations under ORG Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE .

The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to ORG has been served on them .

Arrangements for the accused 's security during the investigation and trial have been made through the use of secure LOC ( with cells specially equipped for that purpose ) and appropriate measures have been taken to prevent them being attacked .

The defendant 's trial in ORG has recently begun with hearings in public . The hearings are attended by members of the local and foreign press . Members of diplomatic missions and representative of human - rights organisations also attend the hearings .

Officials from ORG may also attend . ”

In a letter of DATE , the Government informed the ORG that by a judgment of CARDINAL DATE ORG had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment .

In a letter of DATE , the applicants ' representatives said that they were unable to contact the applicants . They said that conditions in NORP prisons were bad and that prisoners were subjected to torture . They noted , inter alia :

The applicants did not have a fair trial in GPE . The rule requiring trials to be held in public was not complied with . Our only information about the applicants ' trial comes from the NORP authorities .

We wrote to ORG in GPE on DATE requesting permission to attend the trial as observers in our capacity as lawyers , but have received no reply .

As to the allegation that the applicants ' trial was followed by ' national and international journalists and representatives from human - rights organisations ' , the only non - governmental organisation present in GPE that was able to follow the trial was ORG . Although we have made express requests to that organisation , we have not been able to obtain any detailed information about the hearings and events at the trial .

Since the applicants ' extradition , we have been unable to contact them either by letter or by telephone . We still have no means of contacting them . This state of affairs serves to reinforce our suspicions that the applicants are not being held in proper prison conditions .

According to the letter sent by ORG [ ORG ] on DATE and information published in the press , the applicant PERSON has been sentenced to DATE imprisonment . That is the heaviest sentence that can be handed down under LAW . Furthermore , if account is taken of the conditions of detention in NORP prisons , and in particular of the use of torture , it is very difficult for prisoners to serve their sentences in the prisons in proper conditions . Moreover , it is generally believed that certain prisoners , in particular those convicted for offences pertaining to freedom of expression , are given additional sentences . ”

On DATE ORG for GPE forwarded the following information to ORG :

“ On DATE ORG found PERSON and PERSON guilty of the charges listed below and sentenced them to DATE and DATE imprisonment respectively :

PERSON

( a ) DATE imprisonment pursuant to LAW and CARDINAL of LAW ( homicide with aggravating circumstances , namely :

( i ) murder of CARDINAL or more people ,

( ii ) NORP murder of a person on official duty or of a close relative of such a person ,

( iii ) use of means endangering the lives of others ,

( iv ) use of cruel means ,

( v ) offence committed in the defendant 's own interests ,

( vi ) offence committed on the basis of religious beliefs ,

( vii ) offence committed with the aim of concealing another offence or of facilitating its commission ,

( viii ) offence committed by a group of people or a criminal organisation in the interests of that organisation ,

( ix ) repeat offence ) ;

( b ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( terrorist offence ) ;

( c ) DATE imprisonment pursuant to LAW ( incitement to hatred and hostility giving rise to discrimination on grounds of race and religion ) ;

( d ) DATE imprisonment pursuant to LAW ( attempted terrorist attack on the President of GPE ) ;

( e ) DATE imprisonment pursuant to LAW ( attempt to undermine the constitutional regime of GPE , conspiracy to take power or overthrow the constitutional regime of GPE ) ;

( f ) DATE imprisonment pursuant to LAW ( attempt to destroy property or to damage peoples ' health , massacres committed with the intention of harming the activities of ORG bodies and undermining social , political and economic stability ) ;

( g ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( fraud , obtaining the property of others by fraud or deception , by or in the interests of a group of individuals ) ;

( h ) DATE imprisonment pursuant to LAW ( b ) ( entering or leaving NORP territory illegally and with premeditation ) ;

( i ) DATE community service pursuant to LAW ( manufacture , use and sale of false documents : seal , stamp , headed notepaper ) ;

( j ) DATE imprisonment pursuant to LAW forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang ) .

Is sentenced to DATE imprisonment pursuant to LAW ( aggregation of sentences for several offences ) to be served in ' strict - regime ' penal institutions .

PERSON is currently serving his sentence in FAC , which is under the authority of ORG GPE PERSON . He is in good health and is entitled to receive visits from close relatives . He did not receive an amnesty under the ' Amnesty Decree ' of DATE .

PERSON

( a ) DATE imprisonment pursuant to LAW ( aggravated with aggravating circumstances , namely :

( i ) murder of CARDINAL or more people ,

( ii ) NORP murder of a person on official duty or of a close relative of such a person ,

( iii ) use of means endangering the lives of others ,

( iv ) use of cruel means ,

( v ) offence committed in the defendant 's own interests ,

( vi ) offence committed on the basis of religious beliefs ,

( vii ) offence committed with the aim of concealing another offence or of facilitating its commission ,

( viii ) offence committed by a group of people or a criminal organisation in the interests of that organisation ,

( ix ) repeat offence ) ;

( b ) DATE imprisonment pursuant to LAW ( a ) and ( b ) of LAW ( terrorist offence , causing another 's death ) ;

( c ) DATE imprisonment pursuant to LAW ( incitement to hatred and hostility giving rise to discrimination on grounds of race and religion ) ;

( d ) DATE imprisonment pursuant to LAW ( attempted terrorist attack on the President of GPE ) ;

( e ) DATE imprisonment pursuant to LAW ( attempt to undermine the constitutional regime of GPE , conspiracy to take power or overthrow the constitutional regime of GPE ) ;

( g ) DATE imprisonment pursuant to LAW ( b ) ( destruction of or intentional damage to property belonging to others by or in the interests of a group of individuals ) ;

( h ) DATE imprisonment pursuant to LAW ( b ) ( entering or leaving NORP territory illegally and with premeditation ) ;

( i ) DATE community service pursuant to LAW ( manufacture , use and sale of false documents : seal , stamp , headed notepaper ) ;

( j ) DATE imprisonment pursuant to LAW forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang ) .

Is sentenced to DATE imprisonment pursuant to LAW ( aggregation of sentences for several offences ) to be served in ' strict regime ' penal institutions .

PERSON is currently serving his sentence in ORG , which is under the authority of ORG GPE . He is in good health and is entitled to receive visits from close relatives . He did not receive an amnesty under LAW DATE .

At the hearing on DATE , the Government informed the ORG that on DATE , CARDINAL officials from ORG had visited the applicants in FAC and FAC , which are respectively CARDINAL and QUANTITY from GPE . According to the ORG officials , the applicants were in good health and had not complained about their prison conditions either before or after trial .

On DATE the NORP authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held . The doctors made the following findings :

“ ... PERSON was imprisoned on DATE . He did not present any health problems on arrival . Examinations on DATE and DATE did not reveal any symptoms of pathology .

On DATE the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing . ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ... ”

... Mr PERSON was imprisoned on DATE . He did not complain of any health problems on arrival . Examinations conducted on DATE , CARDINAL DATE and DATE did not reveal any symptoms of pathology ... ”

To date , the applicants ' representatives have been unable to contact the applicants .

Article CARDINAL of LAW reads as follows :

“ The NORP State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto .

When called upon to deal with a request by a foreign ORG for the extradition of an alien , the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person 's nationality and the nature of the offence .

No request for extradition may be granted if the criminal court finds that the person concerned is a NORP national or that the offence is political or military in nature or related to such an offence .

If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence the request for extradition may be granted by the Government ... ”

Extradition between GPE and GPE is governed by LAW between GPE and GPE ” , which entered into force on DATE . Under the relevant provisions of that agreement , “ each ORG undertakes to extradite to the other , in the circumstances and subject to the conditions set out in this agreement , anyone found in its territory who is accused or has been found guilty of an offence committed within the jurisdiction of the other ORG ” .

Rule CARDINAL of the Rules of Procedure provides :

“ The ORG may , prior to forwarding its views on the communication to the ORG party concerned , inform that ORG of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation . In doing so , the ORG shall inform the ORG party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication . ”

Rule CARDINAL § CARDINAL of LAW enables interim measures to be adopted in proceedings brought by individuals alleging a violation of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment . It reads as follows :

“ In the course of the consideration of the question of the admissibility of a communication , the ORG or the working group or a special rapporteur designated under rule CARDINAL , paragraph CARDINAL , may request ORG to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s ) of the alleged violation . Such a request addressed to ORG does not imply that any decision has been reached on the question of the admissibility of the communication . ”

Article CARDINAL provides :

“ CARDINAL . The ORG shall have the power to indicate , if it considers that circumstances so require , any provisional measures which ought to be taken to preserve the respective rights of either party .

Pending the final decision , notice of the measures suggested shall forthwith be given to the parties and to ORG . ”

CARDINAL Article CARDINAL § CARDINAL of the LAW states :

“ In cases of extreme gravity and urgency , and when necessary to avoid irreparable damage to persons , the ORG shall adopt such provisional measures as it deems pertinent in matters it has under consideration . With respect to a case not yet submitted to the ORG , it may act at the request of the Commission . ”

Rule CARDINAL provides :

“ CARDINAL . At any stage of the proceedings involving cases of extreme gravity and urgency , and when necessary to avoid irreparable damage to persons , the ORG may , at the request of a party or on its own motion , order such provisional measures as it deems pertinent , pursuant to LAW .

With respect to matters not yet submitted to it , the ORG may act at the request of the Commission .

The request may be made to the President , to any judge of the ORG , or to the ORG , by any means of communication . In every case , the recipient of the request shall immediately bring it to the President 's attention .

NORP If the Court is not sitting , the President , in consultation with ORG and , if possible , with the other judges , shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by ORG at its next session .

The ORG , or its President if the ORG is not sitting , may convoke the parties to a public hearing on provisional measures .

In its DATE Report to ORG , the ORG shall include a statement concerning the provisional measures ordered during the period covered by the report . If those measures have not been duly implemented , the ORG shall make such recommendations as it deems appropriate . ”

Rule DATE provides :

NORP In serious and urgent cases , and whenever necessary according to the information available , the Commission may , on its own initiative or at the request of a party , request that the ORG concerned adopt precautionary measures to prevent irreparable harm to persons .

NORP If the Commission is not in session , the President , or , in his or her absence , one of the Vice - Presidents , shall consult with the other members , through ORG , on the application of the provision in the previous paragraph . If it is not possible to consult within a reasonable period of time under the circumstances , the President or , where appropriate , one of the Vice - Presidents shall take the decision on behalf of the Commission and shall so inform its members .

The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures .

The granting of such measures and their adoption by the ORG shall not constitute a prejudgment on the merits of a case . ”

In its decision of CARDINAL DATE ( PERSON v. GPE and GPE ) , ORG dealt with the first case of a refusal by a ORG to comply with interim measures requesting it to stay execution of the death penalty . It pointed out that by ratifying LAW , ORG had undertaken to cooperate with the ORG in proceedings under the LAW , and that it had not discharged its obligations under LAW and LAW , Volume I ) .

In its decision of DATE ( NORP et al v. The GPE , ORG . CARDINAL/CARDINAL ( DATE ) , PERSON . ORG ) , ORG said :

“ CARDINAL By adhering to LAW , a State party to the LAW recognizes the competence of ORG to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in LAW ( Preamble and LAW . Implicit in a ORG 's adherence to the LAW is an undertaking to cooperate with the ORG in good faith so as to permit and enable it to consider such communications , and after examination to forward its views to ORG and to the individual ( LAW . It is incompatible with these obligations for a ORG party to take any action that would prevent or frustrate the ORG in its consideration and examination of the communication , and in the expression of its Views .

CARDINAL NORP Quite apart , then , from any violation of the LAW charged to a ORG party in a communication , a ORG party commits grave breaches of its obligations under LAW if it acts to prevent or frustrate consideration by ORG alleging a violation of the LAW , or to render examination by the ORG moot and the expression of its Views nugatory and futile ...

CARDINAL Interim measures pursuant to rule CARDINAL of the ORG 's rules adopted in conformity with article CARDINAL of the LAW , are essential to the ORG 's role under LAW . Flouting of the Rule , especially by irreversible measures such as the execution of the alleged victim or his / her deportation from the country , undermines the protection of LAW rights through LAW . ”

In the case of a NORP citizen resident in GPE who was extradited to GPE despite the fact that interim measures had been indicated requesting a stay of extradition ( PERSON v. GPE , DATE , ORG . CARDINAL/CARDINAL , § CARDINAL) , ORG expressed the view that the ORG had failed to “ comply with the spirit of the Convention ” . It noted :

“ ... ORG , in ratifying the LAW and voluntarily accepting the ORG 's competence under LAW , undertook to cooperate with it in good faith in applying the procedure . Compliance with the provisional measures called for by ORG in cases it considers reasonable is essential in order to protect the person in question from irreparable harm , which could , moreover , nullify the end result of the proceedings before ORG . ”

In another decision that concerned the extradition to GPE of an ORG resident in GPE ( decision of CARDINAL DATE , ORG v. GPE , ORG . CARDINAL ) despite the indication of interim measures requesting GPE to stay the extradition , ORG reiterated that failure to comply with the requested interim measures “ ... could ... nullify the end result of the proceedings before ORG ( § CARDINAL ) .

Provision is made for provisional measures to be ordered under the judicial settlement procedure in cases in which ORG has jurisdiction and for precautionary measures under the procedure of individual petition to ORG . ORG power to order provisional measures is derived from ORG power to adopt precautionary measures from its Rules of Procedure ( see paragraphs CARDINAL above ) . ORG has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits ( see , among other authorities , the following orders : CARDINAL DATE , PERSON GPE ; DATE , CARDINAL DATE , CARDINAL DATE , DATE , PERSON v. GPE ; CARDINAL DATE and DATE , DATE and DATE , DATE , PERSON and Others v. GPE and GPE ; CARDINAL and DATE , CARDINAL DATE , NORP and NORP nationals of NORP Origin in GPE v. GPE ; CARDINAL DATE , DATE , DATE , PERSON GPE ; judgment of DATE , PERSON , PERSON , PERSON and Others v. GPE and GPE ) .

As regards the scope of its precautionary measures , ORG is bound by the recommendations it has adopted on individual petition . In its judgment of DATE in the case of PERSON v. GPE , ( ORG . Ct . ORG . C ) No . DATE ) ) ORG considered that the ORG “ ha[d ] the obligation to make every effort to apply the recommendations of a protection organ such as ORG , which [ was ] , indeed , one of the principal organs of ORG , whose function [ was ] ' to promote the observance and defense of human rights ' ... ” .

In CARDINAL orders requiring provisional measures , ORG ruled that GPE Parties to ORG must fully comply in good faith ( pacta sunt servanda ) with all of the provisions of the LAW , including those relative to the operation of the CARDINAL supervisory organs of ORG [ the Court and the Commission ] ; and , that in view of the ORG 's fundamental objective of guaranteeing the effective protection of human rights ( Articles CARDINAL(CARDINAL ) , CARDINAL , DATE and CARDINAL ) ) , GPE Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims ” ( see the Orders of DATE and DATE , in the case of PERSON . v. GPE and GPE ) .

Article CARDINAL the Statute of the International Court of Justice provides for the adoption of provisional measures ( see paragraph CARDINAL above ) .

ORG has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute ( see , among other authorities , the judgment of DATE , in the case of GPE v. ORG ) . In an order of CARDINAL DATE in the case concerning ORG ( GPE v. GPE ) , ORG said ( § CARDINAL ) that the power of the ORG to indicate provisional measures :

“ ... has as its object to preserve the respective rights of the parties pending the decision of the ORG , and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings ; and ... the ORG must be concerned to preserve by such measures the rights which may subsequently be adjudged by the ORG to belong either to the PERSON or to the Respondent . ”

In its judgment of DATE in the PERSON case ( GPE v. ORG ) , ORG noted :

“ CARDINAL . ... The object and purpose of the Statute is to enable the ORG to fulfil the functions provided for therein , and in particular , the basic function of judicial settlement of international disputes by binding decisions in accordance with LAW . The context in which LAW has to be seen within the Statute is to prevent the ORG from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the ORG are not preserved . It follows from the object and purpose of the LAW , as well as from the terms of LAW when read in their context , that the power to indicate provisional measures entails that such measures should be binding , inasmuch as the power in question is based on the necessity , when the circumstances call for it , to safeguard , and to avoid prejudice to , the rights of the parties as determined by the final judgment of the ORG . The contention that provisional measures indicated under LAW might not be binding would be contrary to the object and purpose of that Article .

A related reason which points to the binding character of orders made under LAW and to which the ORG attaches importance , is the existence of a principle which has already been recognized by ORG when it spoke of ' the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given , and , in general , not allow any step of any kind to be taken which might aggravate or extend the dispute ' ( Electricity Company of GPE and GPE , Order of DATE , PERSON , Series A / B , No . CARDINAL , p. CARDINAL ) .

DATE of LAW of DATE , which is headed “ General rule of interpretation ” , provides :

“ CARDINAL . A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose .

NORP The context for the purpose of the interpretation of a treaty shall comprise , in addition to the text , including its preamble and annexes :

( a ) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty ;

( b ) any instrument which was made by CARDINAL or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty .

There shall be taken into account , together with the context :

( a ) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions ;

( b ) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation ;

( c ) any relevant rules of international law applicable in the relations between the parties .

A special meaning shall be given to a term if it is established that the parties so intended . ”

In a briefing for ORG that was made public in DATE , ORG stated :

“ ... ORG remains concerned that GPE has failed to implement its treaty obligations fully despite numerous , wide - ranging and officially endorsed national initiatives in the fields of human rights education and democratization and judicial and legislative reforms aimed at bringing national legislation into line with international standards .

Since DATE , when several murders of law enforcement officials in the GPE region sparked a wave of mass detentions and arrests , the organization has received a growing number of reports of ill - treatment and torture by law enforcement officials of people perceived to be members of independent NORP congregations or followers of independent imams ( NORP leaders ) . CARDINAL of these so - called ' Wahhabists ' were sentenced to long terms of imprisonment in trials that fell far short of international fair trial standards . The organization 's concern was heightened in DATE when CARDINAL of people , men and women , were detained following a reported CARDINAL bomb explosions in the capital GPE . This time the list of those reported to have been arrested , ill - treated and tortured included suspected supporters of the banned political opposition parties and movements PERSON and GPE , including family members and independent human rights monitors , as well as alleged supporters of banned NORP opposition parties and movements , such as ORG - ut - GPE . In the majority of these cases , if not all , that have come to the attention of ORG , those detained were denied prompt access to a lawyer of their choice , to their families and to medical assistance . The responsible authorities , from procurators to courts at all levels and the parliamentary ombudsman , persistently failed to launch timely , full and independent investigations into widespread allegations of torture and ill - treatment . According to independent and credible sources , self - incriminating evidence reportedly extracted by torture was routinely included in trial proceedings and served in many of the cases reviewed by ORG as the basis for a guilty verdict . ORG was disturbed by public statements by NORP officials , including the President of GPE , in the wake of both the ORG murders and the GPE bombings , which , if not directly sanctioning the use of violence by state agents against certain sections of the population , could be perceived at the very least to condone the use of unlawful methods such as torture and ill - treatment . In DATE , for example , President PERSON , portrayed as the guarantor of democracy and human rights , stated publicly that he was prepared to tear off the heads of CARDINAL people in order to protect GPE 's freedom and stability ... ORG is concerned that such statements together with the authorities ' persistent failure to initiate impartial and thorough investigations into allegations of torture and ill - treatment , may create an impression that torture and ill - treatment by law enforcement officials is acceptable , and even necessary conduct , and that they can engage in such conduct with impunity .

This briefing does not attempt to be a comprehensive study of torture and ill - treatment in GPE . Instead it concentrates on those articles of the ORG which are most relevant to ORG current and most pressing concerns .

Failure to ensure that all acts of torture are offences under the criminal law ( Article CARDINAL )

GPE fails to fully meet the requirements under LAW to ensure that all acts of torture are offences under its criminal law and that such offences are punishable by appropriate penalties which take into account their grave nature .

Neither the constitution nor the criminal code , although respectively prohibiting and punishing acts of torture , contain a definition of torture as set out in LAW . LAW guarantees under point CARDINAL that no one may be subject to torture , force , or other treatment which is cruel or demeaning to the dignity of the person .

Article CARDINAL of the criminal code criminalizes obtaining a confession by coercion . Although explicit in its description of prohibited methods of coercion ( beatings , inflicting grievous or less grievous bodily harm , torture ) and specific in naming the perpetrators ( investigating and interrogating officers , procurators ) the article is still far more narrow in its definition of torture than LAW . The maximum penalty prescribed under this article is DATE imprisonment .

Other articles , including LAW , punish various assaults but do not relate specifically to agents of the state ... The NORP press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects . However , to ORG knowledge , in the period under review , none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organization has taken up has been charged under the above articles of the criminal code ...

ORG and again ORG has received credible reports that suspects were denied access to a lawyer of their choice . Often the lawyers are only given access by law enforcement officials after the suspect has been held in custody for DATE , which is when the risk of torture or ill - treatment is the greatest . In many cases law enforcement officials will only grant access to the lawyer after the suspect has signed a confession . Meetings between lawyers and clients , when they are granted , are generally infrequent , because unlimited access to a client as prescribed by the law is difficult for lawyers to obtain . Defence lawyers are rarely allowed to be present at all stages of the investigation ...

LAW explicitly prohibits the use of torture and obliges judges , procurators , investigators and interrogators to respect a person 's honour and dignity at every stage of legal proceedings . Nevertheless , ORG has received countless reports from different sources – former prisoners , relatives of prisoners , defence lawyers , human rights monitors , international human rights organizations , diplomats , copies of court documents DATE that law enforcement officials continue to routinely violate legal obligations not to subject any person to torture or cruel , inhuman or degrading treatment .

Prison conditions

Conditions under which detainees are held pre - trial are reportedly so poor as to amount to cruel , inhuman and degrading treatment . In DATE the NORP authorities admitted that conditions of detention fall far short of the ORG basic minimum standards for the treatment of prisoners . Overcrowding is the norm , with CARDINAL inmates to a bunk bed , sleeping in turns . Inadequate sanitation , shortages of food and basic medication exacerbate the risk of disease , such as tuberculosis . Former prisoners have described punishment cells as underground ' holes ' , QUANTITY with standing room only near the door . The rest of the cell is said to be QUANTITY in height , allowing the prisoner only to crouch or sit . Cells are also said to be overrun with vermin . As with the conditions on death row , these allegations are difficult to verify independently given the NORP authorities ' refusal to allow access to independent monitors . ”

In its DATE Report of CARDINAL DATE , ORG noted with respect to GPE :

“ Reports of ill - treatment and torture by law enforcement officials of alleged supporters of banned NORP opposition parties and movements , such as ORG - ut - GPE , continued unabated . CARDINAL of devout NORP and CARDINAL of members or supporters of the banned secular political opposition parties and movements PERSON and LOC were serving long prison sentences , convicted after unfair trials of membership of an illegal party , distribution of illegal religious literature and anti - state activities . Reports continued to be received that devout NORP prisoners were singled out for particularly cruel , inhuman and degrading treatment in places of detention , particularly prison camps . Several prisoners , among them a prominent human rights defender , died in custody , allegedly as a result of torture . There were CARDINAL death sentences , reportedly imposed after unfair trials , and CARDINAL executions were carried out .

In DATE PERSON , the exiled leader of the banned opposition ORG , was detained by NORP police at GPE airport , GPE . He was remanded in custody while an extradition request from GPE was being examined . In DATE he was released and returned to GPE , where he had received refugee status in DATE , after ORG ruled against extradition to GPE .

In DATE President PERSON publicly stated that CARDINAL people were executed DATE . In DATE the number of offences punishable by death was reduced to CARDINAL .

Allegations of torture and ill - treatment

Reports of ill - treatment and torture by law enforcement officials of alleged supporters of banned NORP opposition parties and movements , including women , continued unabated . CARDINAL of devout NORP and CARDINAL of members or supporters of the banned secular political opposition parties and movements PERSON and LOC were serving long prison sentences , convicted after unfair trials of membership of an illegal party , distribution of illegal religious literature and anti - state activities . The courts were reported to have systematically failed to investigate or take into account the defendants ' allegations of torture . Defendants accused of non - political criminal activities were also reported to have been tortured and ill - treated in detention in attempts to coerce confessions .

Reports continued to be received that devout NORP prisoners were singled out for particularly cruel , inhuman and degrading treatment in places of detention , especially in strict regime prison camps ...

In DATE , CARDINAL ethnic NORP mountain villagers were found guilty of collaborating with the IMU during their incursion into GPE in DATE and sentenced to CARDINAL imprisonment in CARDINAL separate closed trials . This was despite earlier government assurances to ORG that the action to evacuate the villagers was taken in order to improve the living conditions of the people concerned and that no criminal cases would be opened against these forcibly displaced villagers . The group trials , which opened simultaneously and without prior notice at DATE in GPE , were held in separate court buildings cordoned off by armed police . Relatives trying to gain access to the court proceedings were reportedly intimidated and attempts were made to force them to leave the city .

CARDINAL foreign observer , representing the non - governmental organization ORG , obtained access to CARDINAL of the trials . All others , including foreign diplomats , local human rights monitors and the media , were barred .

According to ORG observer , the prosecution failed to provide any substantive evidence to prove the defendants ' guilt . All the defendants had allegedly been held incommunicado until their trial and had not been granted the right to be represented by a lawyer of their own choice . In court the defendants reportedly withdrew their confessions and alleged that they had been tortured in order to force them to confess to fabricated charges . They alleged that they had been forced to memorize and recite prepared confessions on film . Some of the men showed the court marks on their bodies allegedly caused by torture . The court , however , failed to take any of these allegations into consideration .

Rule CARDINAL of the Rules of Court empowers a ORG or , where appropriate , its President , to indicate interim measures which it considers should be adopted . Past practice shows that in principle requests for interim measures under LAW are made in cases in which there is an imminent danger to the applicant 's life or of torture , or inhuman or degrading treatment or punishment . Such requests generally refer to ORG and CARDINAL of the LAW and concern a person 's deportation , extradition or repatriation to his or her country of origin ( whether it be ORG or another ORG ) by the ORG against which the complaint has been lodged .

Rule CARDINAL of ORG Procedure provided :

“ The ORG , or when it is not in session , the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it . ”


CASE OF FLERI SOLER AND CAMILLERI v. MALTA

Violation of P1-1;Damage - question reserved;Costs and expenses award - domestic and Convention proceedings

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Matti Pellonpää;Nicolas Bratza;Stanislav Pavlovschi

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

The applicants claimed to be the owners of a building in GPE , GPE . The Government contested this claim , stating that it appeared from the relevant records and from a letter written by the applicants themselves on DATE that the premises had simply been acquired by the ORG late father , Mr PERSON , under a public deed of DATE . The property had been transferred in perpetual emphyteusis ( a contract granting a tenement for a stated yearly rent or ground rent to be paid in money or in kind ) with effect from DATE . The deed in question included a clause stating as follows :

“ As the said house has been requisitioned by the government it is hereby agreed that the period of CARDINAL ( DATE mentioned in this condition ( an obligation to carry out improvements ) will run from the date on which the keys of the said house shall have been given back by the government to the said PERSON . ”

Having taken note of the disagreement between the parties on this point , the ORG will nevertheless refer in the present judgment to the building in issue as “ the applicants’ building ” or “ the applicants’ property ” .

On DATE the authorities requisitioned the applicants’ building . They allocated the property first to ORG and then to ORG . The building was used as public offices .

According to ORG , the yearly rent due at the time of the requisitioning was CARDINAL Maltese liras ( MTL – MONEY ( ORG ) ) . In DATE ORG decided that it should be increased to ORG CARDINAL ( approximately ORG CARDINAL ) per year . The applicants received this rent regularly and it was still being paid to them at the time the application was lodged ( DATE ) .

On DATE the applicants brought constitutional proceedings before ORG . They argued that the requisitioning and continued occupation of their building amounted to a de facto expropriation . Furthermore , they observed that , even assuming that the measure complained of could be considered to be aimed at controlling the use of property , the authorities should nevertheless have been subject to the ordinary laws governing landlords and tenants . However , when a forced tenancy was established with the authorities , the usual remedies available to ordinary landlords against tenants were excluded , and the landlord - tenant relationship could not be terminated under the usual conditions . Hence , for example , whereas a lease in favour of an individual or a family might terminate in the absence of descendants or relatives entitled to succeed , a government , while its composition might change , remained a government and hence a lessee in perpetuity . In view of the above , the applicants alleged a breach of LAW No . CARDINAL taken alone or in conjunction with LAW .

In a judgment of CARDINAL DATE , ORG rejected the ORG claim . It observed that , according to the caselaw of ORG , a deprivation of property could be said to have occurred only where all the legal rights of the owner had been extinguished . In the present case , the applicants were still receiving the rent due and had not been deprived of their right of ownership . Therefore , the requisition of their building could not be considered an expropriation .

In ORG view , the measure complained of was aimed at controlling the use of property . The authorities had the power to interfere with the right of property in accordance with the general interest provided that their actions satisfied a “ fair balance ” test .

According to the findings of ORG in GPE v. GPE ( no . CARDINAL , Commission decision of CARDINAL DATE , Decisions and Reports ( GPE ) DATE ) , in the implementation of policies of a socioeconomic nature , the margin of appreciation of the ORG was very wide . ORG found that in the present case the occupation of the property by the authorities could properly be said to be in the public interest .

With regard to the claim of discrimination , ORG acknowledged that the applicants were burdened with a perpetual tenant and that the authorities could no longer issue requisition orders after DATE . However , referring to the Case “ relating to certain aspects of the laws on the use of languages in education in GPE ” ( DATE , Series A no . CARDINAL ) , ORG held that these facts did not amount to a violation of LAW , since the difference in treatment was proportionate and based on reasonable and objective grounds . In addition , it noted that the fact that no further requisitions could be carried out did not mean that those in force should not be maintained , especially since the public interest justifying them had not ceased to exist .

The applicants appealed to ORG . They claimed that the requisition constituted a de facto expropriation rather than a measure to control the use of property . Moreover , it had not been carried out in the general interest , since the applicants’ building was being used by the government as offices and had not been allocated to private individuals needing subsidised housing . The measure complained of was therefore disproportionate and the authorities had abused their powers for their own benefit .

The applicants further observed that they were being discriminated against , since the authorities were abusing their power and frustrating the applicants’ right to seek a remedy . They relied on LAW taken in conjunction with LAW No . CARDINAL .

In a judgment of DATE , ORG dismissed the ORG appeal and upheld ORG judgment .

The Constitutional Court reiterated that , since the applicants had retained their right of ownership and were still receiving rent , the measure complained of could not be considered a de facto expropriation , but was aimed at controlling the use of property .

ORG noted that LAW , as in force at the time of the issuing of the requisition order , authorised requisitions either in the general interest or to meet the need for affordable housing . In the present case , the use of the building as a government department was clearly in accordance with the public interest .

The Constitutional Court further pointed out that in GPE and Others v. GPE ( DATE , Series A no . CARDINAL ) , ORG had held that any interference with the right of property must strike a fair balance and be proportionate to the aims pursued . The regular payment of rent to the applicants mitigated the effects of the requisition and sufficed to achieve this balance . Moreover , during the constitutional proceedings the applicants had never complained that the amount of rent was unfair or unjust compared to the value of the requisitioned property . It was true that the authorities would probably continue using the building for an indefinite period of time ; however , this was lawful as long as the building was being used in the general interest .

Lastly , ORG observed that the applicants had never claimed that they needed their property urgently for themselves or for their families . Hence , no “ individual and excessive burden ” had been imposed on them within the meaning of the GPE case - law .

As to the ORG complaint under LAW , ORG noted that it was unclear what form of discrimination the applicants were claiming to have suffered . They had not clarified , either , what kind of remedies they had been unable to use . In any case , the authorities and the applicants were not “ persons in relevantly similar situations ” . ORG referred on this point to the case in GPE and LANGUAGE v. GPE ( DATE , Series A no . CARDINAL-B ) .

According to section CARDINAL of LAW , requisition means

“ ... to take possession of a building or require the building to be placed at the disposal of the requisitioning authority ” .

Until DATE the ORG Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest or in order to provide living accommodation to certain persons or ensure a fair distribution of living accommodation . Section CARDINAL(CARDINAL ) of LAW , as in force at the time of the requisitioning of the applicants’ building , read as follows :

“ The Secretary , if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation , may requisition any building , and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect or complied with . ”

After DATE authority to issue requisition orders was transferred to ORG . In section CARDINAL(CARDINAL ) of LAW , after the words “ public interest ” , the conjunction “ or ” was deleted and replaced by the words “ but only ” .

A requisition order imposes a landlord - tenant relationship on the owner of the requisitioned LOC . According to LAW , the owner of the LOC has a right to compensation , which is calculated and payable pursuant to the criteria established in LAW . This provision , in so far as relevant , reads as follows :

“ ( CARDINAL ) Subject as hereinafter provided , the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums , that is to say –

( a ) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this LAW , under a letting granted immediately before the beginning of that period :

Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of LAW , the rent shall not exceed the fair rent as defined in LAW ;

( b ) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained ( except in so far as the damage has been made good during that period by the occupant of the requisitioned LOC or by a person acting on behalf of ORG ) , no account being taken of damage which , under the provisions of this LAW , is the responsibility of the requisitionee ;

( c ) a sum equal to the amount of expenses reasonably incurred , otherwise than on behalf of the Director , for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking possession of the building ... ”

According to LAW , “ fair rent ” means :

“ ( i ) in respect of an old house the rent which might reasonably be expected in respect of an old house , regard being had to the average rents prevalent on DATE , as shown on the registers of ORG in respect of comparable dwelling houses in the same or in comparable localities :

Provided that where , after DATE , structural alterations or additions in a house , whether old or new , have been carried out which , in the opinion of ORG , have enhanced the rental value of the house and in respect of which or , as the case may be , of a part of which , no compensation has been paid or is payable under the provisions of the War Damage Ordinance , DATE , and no amount has been paid or is payable by way of a grant by ORG of GPE , the rent shall be increased by an amount which , in the opinion of ORG , corresponds to the enhancement of the rental value and which shall in no case exceed a return of DATE a year on the capital outlay on the alterations or additions ( excluding any interest on loans or in respect of idle capital ) or , as the case may be , on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance , DATE , and no amount has been paid or is payable by way of grant by ORG of GPE , in every case as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG ; and

( ii ) in respect of a new house , a sum equivalent to a return of CARDINAL per centum a year on the freehold value of the site and of CARDINAL per centum on the capital outlay on construction ( excluding any sum which has been paid or is payable by way of a grant by the Government of GPE and any interest on loans or in respect of idle capital ) as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG :

Provided that where a payment under LAW , DATE , is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part , for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed DATE fair rent of the former building as on DATE , or CARDINAL per centum for DATE on that part of the capital outlay , whichever is the less ;

( iii ) in respect of a scheme house , an DATE sum to be determined by agreement ... ”


Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in the village of GPE , GPE .

The applicant worked at the ORG - owned ORG company ( Державна будівельно-промислова компанія « PERSON ) .

On an unspecified date the applicant instituted proceedings against the above company in the Novograd - Volynskyy Town Court ( “ the ORG ” ) claiming CARDINAL NORP hryvnias ( ORG ) in salary arrears .

By an order of ORG dated DATE , the company was liquidated and a liquidation commission established .

On DATE ORG terminated the proceedings in the case because the company was in liquidation .

By a letter of DATE the liquidation commission acknowledged the applicant 's claim of ORG CARDINAL,CARDINAL.CARDINAL . The applicant was included in the register of creditors of the company .

On DATE the applicant was paid the full amount of the outstanding debt .

The relevant domestic law is summarised in the judgment of ORG and Others v. GPE ( nos . CARDINAL , and the following , § § CARDINAL , ORG CARDINALXII ) .


The first applicant , Mr PERSON is a NORP citizen , born in DATE , and lives at GPE , GPE . The second applicant , Mr Tomm Berntsen , also a NORP citizen , was born in DATE and lives in GPE , GPE . The first applicant is represented by PERSON Ole PERSON , a lawyer practising in GPE , GPE . The second applicant is represented by PERSON , a lawyer practising in GPE , and by PERSON , a lawyer practising in GPE , GPE .

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

Background

In DATE the applicants , together with CARDINAL other persons , founded a limited liability company , ORG , which in DATE was renamed ORG ( hereinafter referred to as VIP ) . The first applicant was Chairman of the company board during most of the period DATE and DATE ; DATE he was a board member and the managing director . The second applicant was the managing director and a board member during a large part of the period between the DATE of DATE and DATE . In addition , the applicants were major shareholders in VIP .

The company 's trade consisted of acquiring media rights within television and home video industry . It developed into becoming a large - scale holder of film rights for television , cinemas and hotels in various countries . Until DATE , its business was largely concentrated on this kind of activities . While the company experienced a considerable expansion in its trade , its share capital increased from ORG CARDINAL,CARDINAL in DATE to ORG CARDINAL in DATE . To a large extent , new emissions of shares were used as a means to acquire capital for the purchase of other firms and to cover the running of the company and its financial costs . CARDINAL emissions of shares took place from DATE to DATE .

In DATE , VIP merged with the company ORG , increasing the number of employees from CARDINAL . From being a relatively small company VIP became a mother company of a large diversified corporation with CARDINAL subsidiary companies involved in a number of different types of activities .

In DATE , VIP failed to present within the prescribed time - limit the accounts for DATE . Following the discovery of a large unexpected deficit , debt settlement proceedings were opened in DATE .

Criminal Investigation

On DATE ORG ordered the GPE police to open an investigation into alleged criminal activity within VIP and certain other companies involved . On DATE , the police interrogated the applicants for the first time . The investigations , which lasted DATE , concerned suspicion that the applicants were guilty of serious fraud ( Articles CARDINAL and CARDINAL of LAW ) and of serious breach of trust ( Articles CARDINAL and CARDINAL ) inter alia in relation to the issuing and sales on the ORG stock market of CARDINAL invalid VIP shares in order to meet the company 's financial needs ; the issuing of CARDINAL invalid VIP shares and their transfer to a bank , subsequently replaced as security by CARDINAL equally invalid shares ; partial implementation of an agreement to the effect that CARDINAL of the applicants ' own VIP shares were sold to ORG illegally at a fixed and too high a price . Furthermore , they were suspected of serious embezzlement ( Article CARDINAL and CARDINAL ) in relation to ORG CARDINAL profits derived from an agreement concluded by the applicants without the board 's knowledge giving them a right to repurchase VIP shares at a fixed price . The applicants were moreover suspected of a number of other offences , including various violations of the accounting legislation , insider trading ( second applicant only ) and tax evasion ,

ORG began to acquaint himself with the case as soon as he received the first recommendation from the police in DATE . Only when he received the last such recommendation in DATE could he gain a complete picture of the case . He then decided that it was too complex to be dealt with by his office and in DATE transferred the case to ORG ( ORG in GPE ) . This is a separate central police and prosecuting authority , set up in DATE - in order to bring together a broad range of expertise for the investigation of complex cases of economic crime - and fully operative since DATE .

In the course of the investigations , the police heard CARDINAL witnesses and collected some CARDINAL-shelf metres of documents , in part by seizure , in part by voluntary means . The official case documents extended to QUANTITY . Altogether CARDINAL persons were charged ; of whom CARDINAL were finally indicted . At the time , the VIP case was the most extensive case of economic crime ever investigated by the NORP police .

Criminal Proceedings

On DATE an indictment was served on the applicants . In DATE the charges concerning insider trading were dropped . A second indictment was served on DATE . In DATE it was decided not to pursue charges relating to tax evasion and violation of accounting legislation . Those concerning serious embezzlement were also dropped . According to the Government , in some instances this was motivated by the state of the evidence , but in most instances it was done in order to simplify and expedite the proceedings . The indictments were replaced by other indictments on DATE by which the applicants were charged inter alia with fraud contrary to Articles CARDINAL and CARDINAL of the Penal Code .

On DATE ORG ( PERSON ) scheduled the case to be examined as from DATE . The main hearing opened on CARDINAL DATE and involved a total of CARDINAL court DATE . The applicants were heard as well as CARDINAL witnesses .

In decisions of various dates between DATE and CARDINAL DATE ORG , ORG and ORG refused the second applicant 's requests for reimbursement of his travel and subsistence expenses - amounting to ORG CARDINAL,CARDINAL in connection with travelling from GPE to GPE . Moreover , ORG refused his requests for photocopies of the case documents being sent to his address in GPE .

By judgment of CARDINAL DATE ORG acquitted the applicants with respect to some of the charges against them but convicted them of violations of Articles CARDINAL and CARDINAL of LAW and of various provisions of LAW DATE ( LAW of DATE no . CARDINAL ) on account of the issuing and sales of shares without the required authority from the company 's governing board . Pursuant to LAW it deferred the issue of sentencing pending a probationary period of DATE . The latter conclusion , which meant that no sentence would be imposed provided that the applicants did not re - offend within the prescribed period , was based on ORG finding of violation of LAW . It observed that , since the entire case had lasted from DATE until DATE , approximately a period of DATE , the requirement in DATE that proceedings be concluded within a " reasonable time " had been violated . The applicants were not ordered to pay any costs .

The Prosecution appealed against ORG judgment , contesting principally its findings as to sentencing and , in the alternative , the ORG acquittals on certain charges . In their cross - appeal the applicants challenged their convictions by ORG .

By judgment of DATE , ORG ( lagmannsrett ) , sitting with Mr Justice PERSON , PERSON Justice PERSON and ORG , together with CARDINAL lay judges , acquitted the applicants of the charges of serious breach of confidence under LAW , cf . CARDINAL , of the Penal Code but convicted them of various charges under Articles CARDINAL and CARDINAL and a number of provisions of ORG . It sentenced them to CARDINAL and a half years’ imprisonment of which DATE were suspended with a probationary period of DATE . They were not ordered to pay costs .

As regards sentencing , ORG judgment included the following reasons :

“ ORG has concluded that the time elapsed - approximately DATE before a final judgment can be expected - is too long , and that the time spent prior to the date in DATE when the summary of evidence was made available and the final indictment of DATE must essentially be attributed to the prosecution . In view of the complexity of the case , - owing , inter alia , to the extensive documentation resulting from investigations of a large number of companies - it must be accepted that the police investigations were planned from the outset to have considerable scope . The amount of time spent at this stage must therefore be viewed against the background of the whole complex of cases . ORG has therefore no particular comment to make on the time spent DATE , when the charge was transmitted to ORG . However , in ORG view , the prosecuting authority has not been able to establish the existence of special circumstances that could justify the excessive lapse of time until the summary of evidence and the final indictment were made available . Had the case been processed with reasonable expediency , it should have been possible to set the case down for trial by DATE , at the latest .

The final indictment and the summary of evidence were not available until DATE . In the view of ORG it seems reasonably clear that the case should have been tried by ORG by DATE . A period of DATE must be regarded as sufficient for the defence lawyers’ preparation of the case . ORG has an independent responsibility for ensuring that the case be tried within a reasonable time . ORG nevertheless places reliance on the fact that ORG had to give due consideration to the defence lawyers’ requests for time for preparation of the case . All factors taken into consideration , the defence lawyers’ many initiatives in relation to the attempts by the prosecuting authority to set a date for the trial must also be seen as reflecting a wish to delay the trial by making exaggerated demands for preparation time . The additional period of DATE that elapsed before the case came before ORG must therefore be attributed to the indicted persons . For the sake of the record , it should be mentioned in this connection that ORG was able to offer an DATE that was not convenient to the defence lawyers .

Taken as a whole , the High Court finds that CARDINAL of the CARDINAL½ years that have now been spent on the case can not be regarded as part of ‘ reasonable time’ , and that the indicted persons could not be held directly responsible for this . This fact must have major consequences for the sentence .

… Had the case been tried within a reasonable time , a longer custodial sentence would have been appropriate . The High Court finds , with reference to the long time that has elapsed , that a considerable part of the sentence must be made conditional , but ORG will not make the sentence wholly conditional or grant a conditional deferral of sentence , as was done by ORG . The general deterrent effects are considered to be of major importance in this regard . ”

The applicants sought to appeal against ORG judgment to ORG . They maintained that , in view of the excessive duration of the criminal proceedings against them , the issue of sentencing could be deferred or , at least , they should be given suspended sentences . In any event , they considered that , in view of the nature of the offences , their sentences to CARDINAL½ PERSON imprisonment were too severe . The prosecution requested ORG to reject the appeal . ORG of ORG ( Høyesteretts kjæremålsutvalg ) allowed the appeal in as far as it concerned the issue of sentencing .

In its judgment of DATE , ORG , by CARDINAL votes to CARDINAL , decided to modify the sentence ordered by ORG to a suspended sentence with DATE , in accordance with the ORG CARDINAL of LAW .

PERSON , with whom the majority agreed , stated :

“ I have reached the conclusion that the appeal must be upheld so that the whole prison sentence be suspended .

By way of introduction , I should like to point out that even though ORG has been vested with full powers to review the evidence concerning the question of guilt , the factual basis for ORG will in ORG such an extensive case as this one not be as good as that of ORG . In this connection I mention that the case was heard DATE and that CARDINAL witnesses were heard . The state of the evidence warrants giving the assessments made by ORG considerable weight with respect to the contentious issues of importance to sentencing . In the present case this is of particular importance for the assessment of the questions related to the duration of proceedings .

The case concerns particularly serious matters and very large amounts of money . Even though no economic loss has arisen directly as a result of the offences , there must have been a considerable risk of such loss being incurred by the injured parties and by others . The central provisions in ORG concerning the expansion of capital have been neglected . Had it been known that invalid shares had been issued in a company registered on ORG , it could have had important repercussions on confidence in the company , irrespective of whether the formal requirements were subsequently fulfilled and its shares were then considered valid . Both the ORG shareholders and its creditors could have suffered losses .

Even though those convicted were acquitted of the charges of breach of trust , the breach of confidence which they committed vis - à - vis the company by abusing their positions must be taken into account in sentencing .

Those convicted have strongly emphasised that they did not act in order to obtain a personal gain . ORG has not considered this as an adequate description of the situation , something to which I agree . They had considerable share - holding positions in the company and occupied prominent posts . Were the company to have had a financial crisis this would undoubtedly have strongly affected them financially and would have had a great importance for their reputation .

As regards offences of the kind for which [ the applicants ] have been found guilty , the starting - point must be that a long and unconditional prison sentence should be imposed . I find no reason for departing from the assessment made by ORG that they should receive the same sentence and I refer to ORG statements at this point . The length of the prison sentence , on which ORG unanimously has decided , can not be seen as disproportionate and should in my view be maintained . On the other hand , as already mentioned , I have reached the conclusion that the sentence as a whole should be suspended .

This is exclusively due to the long period which has elapsed . As regards the relationships between NORP criminal law and Articles CARDINAL § CARDINAL and CARDINAL of the Convention , I here refer to the decision in GPE ( ‘ NRt’ ) DATE , p. CARDINAL . As in that case , I find no reason to consider in more detail whether the length of the proceedings must be deemed incompatible with LAW .

The parties agree that DATE is the starting - point for the period to be taken into consideration in the assessment of the length of time . It has taken DATE to bring the case to the point of a legally enforceable judgment . This in itself is a very long period . In the above - mentioned decision of DATE , it is stated that , in as far as the duration of the proceedings in an extensive case of economic crime is necessary , the length can not be given particular importance in sentencing . Nevertheless , I suppose that this must be subject to qualification in cases of particularly long periods , save if the length is mainly caused by the convicted person ’s own conduct , for instance where s / he has been evasive and where for this reason it has not been possible to hear the case within a reasonable time .

The duration of proceedings in our case is due to several factors . ORG has made an extensive assessment of this question and has concluded that CARDINAL of the CARDINAL½ years which the case at that time had taken , could not be regarded as ‘ reasonable time’ and could not be attributed to the conduct of those convicted . But it was also stated that a part of the time used was caused by the defence 's own conduct , notably steps which apparently were attempts to delay the decision to set the case down for trial . DATE of the time spent was attributed to the defendants .

CARDINAL point which was disputed during the proceedings before ORG was how one should consider the time spent on matters which did not lead to indictment before the ORG . When the police , in a case concerning economic crime , have received a report from the trustees in bankruptcy or , as here , from a debt settlement board , pointing to suspicious circumstances in several matters , the police must be given a reasonable time to investigate the case as a whole , without the accused being able to invoke , as a rule , unreasonable length of time solely on the basis that some of the matters of which they were suspected did not lead to formal indictment . In the case before us the investigations were carried out , inter alia , into the ORG accounting and those investigations were time - consuming . I find it clear that the time spent on such investigations in principle can not have any impact on sentencing in a situation where the company was insolvent and where there was suspicion relating to several offences . I note that the indictment of CARDINAL DATE concerned extensive breaches of Article CARDINAL , second sentence , cf . first sentences , cf . LAW ( CARDINAL ) and other provisions , charges which were later dropped in the interest of economy of the procedure . Even though the assessment obviously can not be based on the assumption that those convicted were guilty with respect to matters which were not adjudicated , one would have to take into account in the assessment of the duration of the proceedings that it concerned investigations of a large business corporation and that it inevitably took time to identify the criminal offences in question .

It thus clearly appears that an extensive and time - consuming investigation was necessary and that , when this was finalised , there remained a considerable task for the prosecution in connection with the preparation of the indictment and for the defence lawyers . In any event , even the prosecution agrees that the duration of the proceedings has been too long and that this must carry weight in sentencing . The delay , which was caused by the fact that the case was taken over by ORG in DATE , must be to the benefit of the accused . Otherwise , I see no reason to deal with the particular matters which have or may have delayed the proceedings .

Those convicted have been found guilty of particularly serious offences , but in my view there are no penal policy considerations which suggest that , DATE after the investigations started , they should serve a prison sentence . ”

In his dissenting opinion Mr ORG stated :

“ I share the [ above ] views as regards the offences committed by those convicted . I further agree that the duration of the proceedings must be given considerable importance in sentencing . ORG has in my view done so to the extent required when it decided that CARDINAL of the CARDINAL½ DATE of the prison - sentences should be suspended . In my opinion there is moreover reason to consider that the defence must be deemed responsible for a greater share of the unnecessary time consumption than considered by ORG . ”

Compensation proceedings

On DATE the first applicant submitted a request to ORG for compensation of pecuniary and non - pecuniary damage under ORG CARDINAL and CARDINAL of LAW . In the first place , he claimed ORG CARDINAL in compensation for incurred and future legal costs in connection with his application to ORG concerning the length of the criminal proceedings against him . Secondly , he sought ORG CARDINAL in compensation for non - pecuniary damage .

In a decision of DATE , ORG , sitting with Mr Justice PERSON , PERSON Justice PERSON and ORG , rejected the entirity of the claim .

The first applicant subsequently challenged the High Court ’s decision before ORG of ORG . By decision of DATE , the ORG rejected the appeal .

As regards the claim for compensation of legal costs , ORG unanimously agreed with ORG that the application to GPE was not necessary in order to expedite the national proceedings and that , accordingly , the conditions for compensation under LAW were not fulfilled .

As to the claim for compensation for non - pecuniary damage caused by the length of the criminal proceedings , ORG found , by CARDINAL votes to CARDINAL , that there were no grounds for upholding this claim . Mr Justice Gjølstad and Mr Justice Tjomsland voted in favour of rejection , while Mr Justice PERSON voted against .

The majority quoted from passages in ORG judgment of DATE dealing with the reasons why the proceedings had lasted for DATE . Bearing this in mind , the majority based its assessment of the compensation issue on ORG finding that the criminal proceedings had exceeded by DATE what could be considered a reasonable time . The majority first considered that the protraction of the proceedings of DATE must have caused great inconvenience to PERSON . In this connection , the majority emphasised the ORG 's responsibility for ensuring that criminal proceedings be concluded within a reasonable time . On the other hand , the majority considered that a significant factor in the case at hand was that the prison sentence , because of the excessive duration of the proceedings , had been suspended . Had the case been investigated and adjudicated within a reasonable time it could be presumed , on the basis of ORG judgment , that they still would have to serve a prison sentence of GPE DATE . As a consequence of the fact that the proceedings had lasted DATE beyond what would have been reasonable , he had been released from a great burden of having to serve a very long prison sentence .

The majority further stated :

“ [ I]t would not be correct , when making the very broad assessment foreseen by the statutory provisions , to disregard the penal - law consequences of the duration of the proceedings in the determination of a claim for compensation of nonpecuniary damage . Apart from the claim with respect to costs , no claim has been made for compensation of pecuniary damage in relation to the length of the proceedings . Also in previous cases where ORG has found that the requirement of reasonable length of criminal proceedings has been violated , it has attached significance to whether the length has been taken into account in sentencing in making its assessment of whether non - pecuniary compensation should be award as ‘ a ORG in accordance with LAW ( see the above - mentioned decision reported in NRt DATE , p. CARDINAL ) .

In the light of this , the majority , like ORG , finds that given the importance attached to the duration of the proceedings in the sentencing , there were no special circumstances in the present case suggesting that it would be reasonable to make an award for compensation of non - pecuniary damage . ”

The minority , Mr Justice PERSON , observed that it was primarily the general interest of penal policy , which justified reducing the sentence on the ground of excessive duration of criminal proceedings . The rules on compensation for non - pecuniary damage in LAW were based on different considerations . It was , as was also stated in the provision , a tool for providing the person , who had suffered a disproportionate damage as a result of prosecution , economic compensation for the injury or other non - pecuniary damage which the person had suffered . The rule was related to other statutory provisions on compensation for non - pecuniary damage , in particular LAW . Under LAW it was nevertheless a condition that such compensation from the ORG appeared reasonable in the particular circumstances ( Article CARDINAL ) and that there were particular reasons for the ORG to grant such compensation ( Article CARDINAL ) . Mr Justice PERSON noted that the majority was of the view that the special burden , which PERSON had suffered , was sufficiently compensated by his being released from his duty to serve the prison sentence . However , in Mr Justice PERSON ’s opinion , penal policy considerations and the justifications for compensation for nonpecuniary damage should be kept apart .

Revision proceedings

On DATE the first applicant requested that his compensation claim , rejected by ORG of ORG on DATE , be given a fresh examination by ORG so as to amend the earlier decision . He submitted that Mr Justice Tjomsland , because of his previous participation and views expressed in the appeal on sentencing , should have withdrawn from taking part in the ensuing compensation case . The first applicant invoked Sections CARDINAL and CARDINAL , subsection CARDINAL , of ORG and LAW . Considering that there was no legal basis for amendment , the ORG proposed to examine the request as CARDINAL for revision , to which the applicant did not object .

On DATE , ORG , sitting in a different composition than in the compensation proceedings , refused to grant revision of the decision of DATE . It recalled that , as a rule , the same judges who examined the question of guilt should determine compensation claims of the kind in issue . While the preparatory works for LAW did not contain any justifications for this arrangement , the latter could not as such be deemed incompatible with LAW . Thus , under the relevant law , a judge 's previous participation in the criminal case against a person claiming compensation was not of its own an obstacle to the judge 's taking part in the compensation case . Under LAW of ORG , the purpose of which provision was to secure the confidence of the public in the impartiality of the judiciary , a judge would not be prevented from taking part solely on the ground that he or she had adjudicated a case concerning the same parties ( NRt DATE , p. CARDINAL ) . The same applied where the new case arose from the same factual background ( NRt ORG had not been required under LAW to withdraw from consideration of the compensation case .

b. Relevant domestic law

Article CARDINAL of the Penal Code provides :

“ A person shall be liable for punishment if he by intent seeks to obtain for himself an unjust enrichment

by causing , strengthening or exploiting a delusion , unlawfully delude someone into an action resulting in damage or a risk of damage for him or the one on whose behalf he is acting , or

The penalty for fraud is fines or imprisonment of DATE . The same applies to aiding and abetting such conduct . ”

Under LAW , a person who is found guilty of serious fraud shall be punished by up to DATE imprisonment and may also be liable to pay fines . The same applies to the aiding and abetting of such an offence .

Article CARDINAL of the Code of Criminal Procedure reads :

“ Even though the conditions in LAW are not fulfilled , the court may award the accused compensation for particular or disproportionate damage occasioned by the criminal proceedings if this would be reasonable in the circumstances . ”

Article CARDINAL states :

“ If the conditions for compensation under LAW are fulfilled , the court may , if it is warranted by particular reasons , award the accused a suitable sum in compensation for the infringement or other damage of non - pecuniary character which he has sustained in connection with the criminal proceedings . ”

Article CARDINAL(CARDINAL ) , third sentence , provides :

“ For the examination of a request for compensation , the court should in as far as possible be constituted with the judges who adjudicated the criminal case . ”

The relevant provision of Section CARDINAL of ORG ( domstolloven - PERSON of CARDINAL DATE no . CARDINAL ) reads :

“ No one shall sit as a judge or lay judge

if he has previously been involved in the case as arbitrator or as a lower - court judge , lay judge or clerk . ”

Section CARDINAL provides :

“ Nor may a person sit as a judge or a lay judge if there are other particular circumstances which are liable to weaken the confidence in his impartiality . This applies in particular if a party requests that he withdraws on this ground . ”


Violation of Art. 6-1;Not necessary to examine Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant and ORG were arrested by police officers GPE and GPE in the act of committing a theft . The applicant had a hammer in his hand at the time of arrest . Later he was charged with attempted theft and violent resistance to a public official ( virkamiehen väkivaltainen vastustaminen , våldsamt motstånd mot tjänsteman ) .

At the trial hearing before the GPE ORG ( käräjäoikeus , tingsrätten ) the applicant admitted the attempted theft but denied the charge of violent resistance to a public official . Both the applicant and police officer GPE were heard . GPE testified , inter alia , that the applicant had threatened him and his colleague PERSON with a hammer by waving it above his head when the police officers had interrupted the attempted theft . The applicant , for his part , said that he had seen the police arrive and that he had raised the hammer above his head while leaving the building , before the police officers had ordered him to drop it . He denied any intention to threaten the police officers . ORG testified that the applicant had tried to escape . ORG was not heard as a witness .

On DATE ORG convicted the applicant of attempted theft and violent resistance to a public official , finding GPE ’s statement reliable . The applicant was sentenced to an aggregate punishment of CARDINAL months’ imprisonment .

On DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) requesting an oral hearing in which he , ORG , GPE and ORG should be heard in order to clarify his behaviour outside the building where he was arrested and the alleged threatening of the police officers . He did not specify why NORP in particular should be called as a witness .

On DATE ORG upheld the conviction , reducing the sentence to CARDINAL months’ imprisonment . It found an oral hearing manifestly unnecessary , holding that the applicant ’s account before ORG - which he had not contested - and his writ of appeal indisputably proved that he had seen the police officers outside the building . He had then left the building with a hammer raised in the air and had taken some steps towards the police officers . His intention had been to escape . Having seen one of the police officers draw a handgun , he obeyed their orders to drop the hammer when QUANTITY away from them . ORG held that the question whether the applicant had violently resisted a public official could be reliably resolved on the basis of these undisputed facts without hearing witnesses .

As to the merits , it ruled that “ the applicant must have understood that he had threatened the police officer with violence by , as he had stated himself , stepping towards him with a hammer in the air . The intention to escape mentioned by the applicant proves that he also intended to threaten the police officer with violence in order to escape from the scene of the crime . ”

On DATE the applicant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) . He claimed that according to the domestic legislation ( LAW , sections DATE of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) , see paragraphs CARDINAL and CARDINAL below ) ORG should have held an oral hearing and heard the witnesses . He stressed that the matter turned on the credibility of the oral evidence .

On DATE ORG , by a majority , refused the applicant leave to appeal .

Chapter CARDINAL , section CARDINAL of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ; Act no . PERSON ) provides that ORG shall hold an oral hearing if the defendant in a criminal case so requests . An oral hearing may however be dispensed with if the appeal is manifestly ill - founded or if a hearing would be manifestly unnecessary for another reason .

Under LAW , LAW CARDINAL of the Code , ORG shall hold an oral hearing regardless of whether one has been requested , if the decision on the matter turns on the credibility of the testimony admitted in ORG or on new testimony to be admitted in ORG . In that event , the evidence admitted in the ORG shall be readmitted at the hearing before ORG unless there is an impediment to doing so .

Under LAW , section CARDINAL of the said LAW no . DATE ) if a piece of evidence that a party wishes to adduce pertains to a fact that is not material to the case or has already been proved , or if the fact can be proved in another manner with considerably less inconvenience or cost , the court may decide not to admit this piece of evidence .


The applicant is a GPE national , born in DATE and currently residing in GPE .

A.

In DATE the applicant opened a clothes shop in GPE and in DATE she engaged a certain PERSON as a trainee sales assistant . In DATE PERSON was employed as a full time shop assistant .

In DATE the applicant informed PERSON that she no longer required her services as she had sold the shop and was moving to GPE . The applicant left GPE on DATE . She returned to GPE on CARDINAL occasions , in DATE , DATE and DATE .

On DATE PERSON summoned the applicant to appear before ORG . She claimed , inter alia , that the training contract was null and void and that she was entitled to a higher severance payment . PERSON requested the bailiff to serve the summons at the applicant ’s address in GPE . As the applicant was absent , the bailiff , acting in accordance with LAW ( hereinafter referred to as the “ ORG ” ) , left a notice on her letterbox and sent her a registered letter , informing her that a copy of the summons had been deposited at ORG registry .

A number of witnesses were heard before FAC on CARDINAL and DATE . Neither the applicant nor her lawyer took part in these hearings .

In a judgment of DATE , filed with the registry on DATE , the PERSON accepted PERSON claim and ordered the applicant to pay to her former employee the total sum of CARDINAL ORG ( CARDINAL ORG ) . This judgment was served on the applicant on DATE at her address in GPE in accordance with Rule CARDINAL of the ORG .

The applicant took cognisance of this judgment only on DATE , when she was on holiday in GPE .

On DATE the applicant lodged an appeal with ORG , challenging the lawfulness of the serving of the summons and of the first - instance judgment . She alleged , inter alia , that as she had moved to GPE in DATE , the summons should have been served on her at her address in GPE . In this respect , the applicant requested the examination of a number of witnesses who could testify that PERSON knew her new address and telephone number in GPE . Observing that she had been unaware of the action brought against her and had taken cognisance of the Magistrate ’s judgment only on DATE , the applicant requested ORG to declare that the first - instance proceedings were null and void .

In a judgment of DATE , ORG held that the first - instance decision had became final on DATE and rejected the applicant ’s appeal as being out of time . It observed that , as appeared from the certificates issued by ORG and ORG , at the relevant time and at least until DATE the applicant had her official address in GPE . Even assuming that PERSON was aware that the applicant had left ORG , nothing suggested that this moving had a definitive character . As the applicant ’s name was still written on the letterbox placed in front of her house , the serving of the summons and of the ORG judgment was valid and lawful .

On an unspecified date , the applicant appealed on points of law , reiterating the objections raised before ORG . In a memorial of DATE , she recalled that the competent authorities had refused to hear the witnesses who could have testified that she had sold her business and that PERSON knew her address and telephone number in GPE .

In a judgment of CARDINAL DATE , filed with the registry on DATE , ORG , considering that the lower court ’s decision was logical and well - reasoned , rejected the applicant ’s claim . It recalled that a person was presumed to reside in the place of his or her official residence and that this presumption could be overruled only by very substantial elements . The relevant parts of this judgment read as follows :

“ ... the allegations of the applicant , aimed at obtaining a declaration that the serving ex LAW ORG was null and void , are based on CARDINAL assertions :

a. that PERSON moved to GPE ;

b. that this moving had a definitive character ;

c. that it is up to PERSON to show that her moving was not definitive ...

ORG just considered the fact that the applicant ’s residence was still in GPE , via PERSON no . CARDINAL , as this was evident not only from the bell and the letterbox , but also from the documents issued by ORG and ORG . The applicant ’s official address after her ( alleged ) moving remained unchanged ...

Even assuming that there had been a moving , it is not clear why it should be up to PERSON to prove that this moving “ was not definitive ” . The objection has been raised by PERSON GPE . It is up to her to prove the facts on which her objection is based ... ” .

ORG noted that PERSON did not produce any relevant document proving her moving to GPE , then continued as follows :

“ In her appeal , PERSON requested ORG to examine a number of witnesses who should have testified that PERSON was aware of her moving to GPE ... On this point , the ORG shares ORG finding that “ even assuming that [ PERSON ] was aware that PERSON had left GPE ... this does not mean that she should have inferred that this moving was a definitive one ... ” . ORG reasoning is clear : CARDINAL facts should be proved , the moving and its definitive character . This second element has not been proved and could not have been proved by the witnesses sought by the applicant ... This confirms that ... no moving has been proved , neither temporary , nor definitive . Therefore , the serving of the summons and of the first - instance judgment is lawful and the decision of ORG has now become final ... ”

B. Relevant national law

Article CARDINAL of the ORG reads as follows : “ If the actual delivery of the act is not possible because of the absence , lack of capacity or refusal of the persons indicated in LAW [ the consignee , a member of his or her family , a person charged of his or her house or business ] , the bailiff deposits a copy of the act to be served at ORG ... , puts a notice ... on the front door of the consignee ’s house or office and informs him or her by means of a registered letter ” .