In DATE the applicant , together with CARDINAL associates , started a business involving lactic cultures , purportedly for use in the cosmetic industry . It consisted of CARDINAL limited liability companies , founded respectively in DATE and DATE and named GPE PERSON ( “ GPE ” ) and GPE A / S ( “ GPE ” ) . According to the NORP ORG findings in the proceedings referred to below , the business was a fraudulent pyramid scheme by which GPE purchased from a producer in GPE freeze - dried concentrates of lactic acid bacteria at MONEY ( ORG ) per bag ( containing CARDINAL grams ) , resold them to ORG at ORG CARDINAL per bag , which again sold them at the price of ORG CARDINAL per bag to cultivators whom it had recruited , and after DATE bought the cultivated products back at the price of ORG CARDINAL . The number of producers increased from CARDINAL at DATE to CARDINAL at DATE . Payments were made to a company in GPE . No goods containing the cultivated substances were ever marketed or produced . As of DATE , the companies stopped bookkeeping .

On DATE the Consumer Ombudsman ( Forbrukerombudet ) filed a complaint with the Director ORG ( Riksadvokaten ) against GPE and GPE for defrauding CARDINAL persons who had invested in products from GPE . The companies went into bankruptcy in DATE . DATE the police received CARDINAL complaints from cultivators in various parts of GPE . Further complaints were made in DATE and DATE respectively by a major bank and the tax authorities .

On DATE the police interviewed the applicant as a witness , because of his role in the companies . On DATE the police carried out searches of premises and confiscations . Such measures , including interviews of the persons involved , continued in DATE . On DATE the applicant was arrested but then released on certain conditions . He then moved to GPE and , by a letter of DATE , his lawyer informed the police of his NORP address and his preparedness to go to GPE to meet police investigators if necessary .

Throughout DATE investigations were conducted in GPE , GPE and GPE concerning the ORG business connections and investments . In DATE the police held meetings with NORP and NORP police authorities . In DATE and DATE the police interviewed CARDINAL cultivators .

On DATE ORG ( skifteretten ) received the final report from the administrators of the estates of GPE and GPE . On CARDINAL DATE , the police received the tax authorities’ report on the tax and value - added tax ( “ VAT ” ) offences .

After the initial interviews mentioned above , CARDINAL of the CARDINAL leading figures in the criminal activity concerned , PERSON , disappeared . In DATE a search for him with an arrest warrant was made via ORG . On DATE he was arrested by the NORP police . The NORP authorities requested his extradition on DATE . On DATE he was released from custody in GPE , subject to a duty to report to the police . In DATE he was extradited to GPE .

Following the issuing of indictments in DATE , the case was submitted to ORG on DATE .

On DATE ORG fixed DATE for opening the trial hearing , rather than the earlier date of CARDINAL DATE , to which objection had been made by defence counsel , whilst accepted by the prosecution .

In the final indictments issued on DATE , the applicant was charged with the offences of serious fraud in relation to amounts totalling approximately NOK CARDINAL ( Articles CARDINAL and CARDINAL of LAW ) , unlawfully drawing up cheques – in amounts totalling almost ORG DATE on behalf of an insolvent company ( Articles CARDINAL and FAC of LAW ) , and having disregarded statutory obligations relating to bookkeeping and the provision of information to the authorities relevant to GPE payments , with the resultant evasion of approximately ORG CARDINAL ( Article CARDINAL of LAW and LAW of LAW DATE merverdiavgiftsloven ) .

After holding a hearing over DATE in DATE and DATE , ORG , by a judgment of DATE , convicted the applicant of all but the NORP charges , and sentenced him to DATE imprisonment .

As regards sentencing , ORG noted from the outset that the offences for which the applicant was convicted were punishable by DATE imprisonment . It further stated that general considerations of crime prevention suggested that economic offences of the kind at issue warranted a severe penalty . As it appears from its reasoning , ORG found the GPE conduct particularly reprehensible and emphasised that the suffering which they had caused to innocent cultivators must be viewed as an aggravating factor in sentencing . ORG then went on to consider the question of mitigation , having regard to the following CARDINAL factors :

“ With the exception of GPE , the accused were of a young age at the time of the commission of the proscribed conduct . ... There were thus important DATE for settling down which elapsed between the criminal acts and judgment in the case .

Furthermore , the ORG attaches some weight , albeit not a great deal , to the fact that the offences were committed at a time when banks were somewhat uncritical about giving loans . ... In the court ’s view , had greater caution been displayed , the pyramid scheme would have been revealed earlier .

Finally the court attaches weight , to a not insignificant degree , to the fact that a long time has elapsed since the acts were committed . The prosecution transmitted the case to ORG in DATE and final investigations concerning CARDINAL aspect of the case as important as the value of the cultivators and their possible use went on DATE . Although it is correct that PERSON stayed abroad over long periods , the court could not see how this could justify the delays in the investigations . It is understood that the delays in the investigation were caused by a change of investigators in the case .

Notwithstanding that weight must be given to the long time that has elapsed since the acts were committed , the court finds that the sentencing must be severe . ”

CARDINAL other co - defendants , including Mr D.R. , who were considered to have played a more prominent role in the proscribed activity , were sentenced to DATE imprisonment .

On DATE the applicant sought to appeal to ORG , alleging a procedural error in the first instance proceedings and requesting a new trial . On DATE ORG of ORG ( Høyesteretts kjæremålsutvalg ) admitted the appeal in as far as it concerned the procedural matter .

In the proceedings before ORG the applicant in addition asked for a reduction in sentence . After taking evidence on DATE and holding a hearing on DATE , ORG rejected the appeal on DATE . As regards sentencing , it recalled that ORG had taken into consideration as a mitigating circumstance the long time which had elapsed since the incriminated conduct . ORG held that , although more time had elapsed since ORG judgment , it saw no reason for reducing the sentence .

The Code of Criminal Procedure ( Act of CARDINAL DATE No . CARDINAL ) , LAW , contains the following provisions :

Article CARDINAL

“ The purpose of the investigation is to obtain the necessary information for deciding whether an indictment should be preferred , and to serve as preparation for the trial of the case . ...

If a specific person is under suspicion , the investigation shall seek to clarify both the evidence against him and the evidence in his favour .

The investigation shall be carried out as rapidly as possible and in such a way that no one is unnecessarily exposed to suspicion or inconvenience . ”

Article CARDINAL

“ The question of preferring an indictment shall be decided as soon as the case is sufficiently prepared for this purpose . ”

In the proceedings before ORG , the Government drew attention to certain case - law of ORG , according to which a CARDINAL - old man had been sentenced to DATE imprisonment for gross fraud and gross embezzlement totalling ORG CARDINAL , CARDINAL ( PERSON – “ Rt”CARDINAL , p. CARDINAL ) ; a man without a previous criminal record had been sentenced to DATE imprisonment for economic crimes , including gross fraud , amounting to ORG CARDINAL,CARDINAL,CARDINAL ( ORG , p. CARDINAL ) ; a person had been sentenced to DATE and CARDINAL months’ imprisonment for gross fraud amounting to ORG CARDINAL ( Rt DATE , p. CARDINAL ) , and a person had been sentenced to CARDINAL years’ imprisonment for gross fraud amounting to ORG CARDINAL,CARDINAL,CARDINAL with respect to over QUANTITY victims ( Rt DATE , p. CARDINAL ) .

The applicant drew the ORG ’s attention , inter alia , to ORG rulings in which a lawyer ’s secretary had been sentenced to DATE and CARDINAL months’ imprisonment for gross fraud and embezzlement with respect to ORG CARDINAL,CARDINAL,CARDINAL ( ORG , p. DATE ) and another decision where CARDINAL men , aged DATE , with previous criminal records , had been sentenced to CARDINAL months’ imprisonment for gross tax fraud amounting to ORG CARDINAL ( ORG , p. CARDINAL ) .


Violation of Art. 5-3;Violation of Art. 6-1

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

On DATE the applicant was arrested by the police . On DATE the ORG ( Sąd Rejonowy ) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed robbery , kidnapping and larceny .

The applicant ’s appeal against this decision was dismissed by ORG ( PERSON ) on DATE .

On DATE the applicant was indicted before the ORG .

The applicant ’s detention was prolonged on DATE . The court reiterated the grounds originally given for his detention and stressed the gravity of the charges .

On DATE the first hearing took place before the trial court .

On DATE the ORG dismissed the applicant ’s application for release . The court considered that the evidence obtained in the case sufficiently justified the charges laid against the applicant . In addition , the gravity of the charges made it probable that a heavy sentence would be imposed .

DATE and DATE CARDINAL hearings took place .

Subsequently , ORG made a request under LAW to ORG ( Sąd Apelacyjny ) in which it asked that the applicant ’s detention on remand be extended beyond DATE . On DATE the ORG allowed the request . However , it extended the applicant ’s detention only until DATE and not until DATE as requested by ORG . The appellate court considered that it was probable that the applicant had committed the crimes with which he had been charged . In addition , the case did not disclose any of the grounds for the applicant ’s release listed in LAW . At the same time , the court of appeal pointed out that the proceedings had already taken a long time and that any extension of his detention on remand beyond a twoyear period should only be allowed for the purposes of taking all necessary procedural steps to conclude the trial .

Afterwards , hearings were held in DATE and DATE .

On DATE the ORG of Appeal further extended the applicant ’s detention until DATE . It considered , however , that the proceedings in the applicant ’s case had already taken a long time and that ORG had been inefficient in dealing with the case . In this connection , ORG pointed out that the trial court had adjourned the case for DATE without giving any reasons . As a result of the adjournment the proceedings had to be recommenced .

Subsequently , hearings took place before the trial court .

On DATE the ORG of Appeal further prolonged the applicant ’s detention until DATE relying on the reasonable suspicion that the applicant had committed the offences and on the complexity of the case .

DATE and DATE CARDINAL hearings were held .

On DATE the ORG gave a judgment . The applicant was convicted and sentenced to DATE imprisonment .

Subsequently , the applicant ’s detention was prolonged on several occasions .

On DATE the ORG quashed the applicant ’s conviction and remitted the case . At the same time the appellate court prolonged the applicant ’s detention until DATE . The court considered that it was necessary to keep the applicant in detention since he had been charged with several crimes which represented “ a significant danger to society ” ( o znacznej szkodliwości społecznej ) and which attracted a heavy prison sentence . In addition , the evidence obtained in the case sufficiently supported the probability that the applicant had committed those crimes . Moreover , the court considered that there was a risk that the applicant would go into hiding and that he could interfere with the proceedings if released . It was recalled in this connection that the applicant had been arrested while trying to leave the country .

NORP The applicant appealed against this decision , but his appeal was dismissed on DATE by ORG .

On DATE , DATE and DATE hearings took place before ORG .

The applicant ’s pre - trial detention was prolonged on DATE , DATE , DATE and DATE . The court reiterated the original grounds for keeping him in custody , in particular the seriousness of the charges against the applicant and the risk that he might receive a heavy sentence .

At the hearings held on DATE and DATE ORG prolonged the applicant ’s detention relying on the reasonable suspicion against the applicant , the seriousness of the charges , the severity of the likely sentence and the complexity of the case . The court further stated that since not all of the witnesses had been heard , there was a risk that the applicant might attempt to influence them .

On DATE the applicant ’s detention on remand was prolonged . The court repeated the grounds relied on in its previous decision given in DATE in an almost identical manner .

The applicant ’s numerous appeals and requests for release were to no avail .

On DATE the ORG gave a judgment . It convicted the applicant and sentenced him to DATE imprisonment . On DATE the applicant lodged an appeal .

On DATE the ORG partly upheld the impugned judgment and reduced the applicant ’s prison sentence to CARDINAL years’ imprisonment .

On DATE the applicant lodged with ORG a complaint alleging that his right to have his case examined within a reasonable time had been breached . He relied on LAW on complaints about a breach of the right to a trial within a reasonable time .

On DATE the ORG allowed his complaint , found that the length of the criminal proceedings pending before ORG had been unreasonable and awarded the applicant ORG CARDINAL in compensation . The court examined the course of the proceedings and found delays between DATE and DATE for which the trial court had been responsible . ORG further instructed the trial court to accelerate its handling of the case so that the trial was concluded within a period much shorter than the DATE period envisaged .

On DATE the applicant lodged a second complaint about the unreasonable length of the proceedings in his case .

On DATE the ORG dismissed the applicant ’s second complaint . The court examined the course of the proceedings after DATE and established that they had been conducted diligently and that there were no delays attributable to the trial court .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) .

A more detailed rendition of the relevant domestic law provisions is set out in the ORG ’s judgment in GPE v. GPE [ ORG ] , no . GPE , § CARDINAL , ORG CARDINALXI , PERSON v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , CARDINAL DATE .

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A more detailed description of the relevant domestic law provisions is set out in the ORG ’s judgment in GPE v. GPE , no . CARDINAL , § § CARDINAL , ORG CARDINAL– ... ( extracts ) and its decision in ORG v. GPE DATE . ) , no . CARDINAL , § § CARDINAL , ORG CARDINAL– ....


CASE OF SMIRNITSKAYA AND OTHERS v. RUSSIA

Preliminary objections dismissed;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The first applicant was born in DATE , the second applicant was born in DATE and the third applicant was born in DATE . They live in GPE .

The applicants receive old - age pensions . The PERSON of DATE on the Calculation and Upgrading of State Pensions ( “ the Pensions Act ” ) introduced , from CARDINAL DATE , a new method for calculating pensions . The idea behind this method , based on what is known as an “ individual pensioner coefficient ” , was to link the pension to the pensioner 's previous earnings .

The authority in charge of the applicants ' pension , ORG of LOC ( “ the NORP ” ) , fixed the applicants ' coefficient at CARDINAL . The applicants challenged the ORG 's decision in the ORG . They argued that their coefficient should be TIME .

On DATE ORG found for the applicants , considering that the ORG had misinterpreted LAW . In particular , it held as follows :

“ The opinion of [ the ORG ] ... is unfounded because DATE LAW ] specifically indicates that the individual pensioner coefficient ... is fixed at the rate of CARDINAL.CARDINAL . [ The ORG ] has no grounds to interpret this provision of the law arbitrarily or not to enforce it . ”

ORG decided that the ORG was to recalculate the applicants ' pensions using a coefficient of PERCENT from DATE .

The ORG appealed against the judgment . On DATE ORG upheld the judgment , which became enforceable on DATE . The judgment was never executed .

On DATE ORG ( “ the Ministry ” ) issued an Instruction on the “ Application of Limitations ” established by LAW ( “ the Instruction ” ) . The LAW clarified how to apply LAW .

NORP Some time thereafter a group of individuals challenged the Instruction before ORG of GPE . On DATE ORG dismissed the complaint . It found that , contrary to what the complainants had suggested , ORG had not acted ultra vires in issuing the ORG , and that the ORG 's interpretation of LAW had been correct . On DATE ORG upheld this judgment on appeal .

From DATE , following changes to the pension regulations , the first applicant 's pension was calculated based on a coefficient of CARDINAL .

On DATE the ORG lodged an application with ORG for the reconsideration of the applicants ' case owing to newly discovered circumstances .

On DATE ORG examined the ORG 's request . It noted that the ORG had been upheld by ORG and held as follows :

“ As it can be seen from [ the ORG ] , the decision of ORG of DATE and the decision of ORG of DATE , the limiting coefficient of TIME , which was established by [ LAW ] , ... does not apply to [ an ' individual pensioner coefficient ' ] .

The existence of the interpretation [ of LAW ] by ORG constitutes a significant circumstance .

In accordance with ... Article CARDINAL of [ the ORG ] the ground for reconsideration of judgments ... on the basis of newly discovered circumstances shall be a significant circumstance which was not and could not have been known to a complainant . ...

Therefore there are grounds for reconsideration of the judgment of the district court of CARDINAL DATE owing to newly discovered circumstances . ”

The court noted that the ORG 's application was not time barred .

In a decision of DATE ORG granted the ORG 's application , under LAW , and quashed the judgment of CARDINAL DATE , as upheld on DATE .

As a result of the fresh examination of the case ORG delivered a judgment of DATE in which it relied on the ORG and rejected the applicants ' claims in full . The applicants appealed against the judgment .

From DATE , following further changes to the pension regulations , the applicants ' coefficients were fixed at CARDINAL , CARDINAL and CARDINAL respectively .

On DATE ORG dismissed the applicants ' appeal and upheld the judgment of DATE .

The Code of Civil Procedure of DATE ( “ CCivP ” ) , in force at the material time , provided as follows :

“ [ Judgments ] which have come into force may be reconsidered on the basis of newly discovered circumstances . The grounds for reconsideration ... shall be as follows :

significant circumstances which were not and could not have been known to the party who applies for reconsideration ; ...

cancellation of a court [ judgment ] or of another authority 's decision which served as legal basis for the [ judgment ] in question . ”

“ ... [ An application for reconsideration of a [ judgment ] owing to newly discovered circumstances ] shall be lodged within DATE after the discovery of the circumstances . ”

“ After examination of an application for reconsideration of a [ judgment ] owing to newly discovered circumstances , the court may either grant the application and quash the [ judgment ] , or dismiss the application .

The court decision by which an application for reconsideration of a [ judgment ] owing to newly discovered circumstances is granted shall not be subject to appeal . ... ”

On DATE ORG of GPE adopted a ruling concerning certain provisions of LAW ( “ CCrP ” ) . In that ruling ORG decided that LAW CCrP ( “ FAC for reconsideration of a [ criminal ] case on the basis of newly discovered circumstances ” , which was in many respects similar to LAW was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “ newly discovered circumstances ” . In that ruling ORG suggested that this provision of the ORG prevented rectification of judicial errors and miscarriages of justice . In its ruling of CARDINAL DATE ORG came to the conclusion that LAW was unconstitutional in so far as it had served as a basis for the dismissal of applications for reconsideration of judgments of the Presidium of ORG , where the judgment had been delivered as a result of a judicial error which had not been and could not have been established earlier .

The Instruction of the Ministry of Labour and Social Development of DATE on the “ Application of Limitations ” established by LAW was registered by ORG on DATE and became binding in DATE , DATE after its official publication .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ireneu Cabral Barreto

The applicant was born in DATE and lives in LOC .

The applicant lived with her partner , PERSON , in GPE from DATE until DATE , when she moved to her GPE house , as a result of alleged “ psychological abuse ” by her partner . Their daughter PERSON , who was born in DATE , continued to live with her father .

On DATE the applicant lodged a civil claim against PERSON ( “ the respondent ” ) with ORG ( PERSON opštinski sud ) in GPE ( “ the ORG ” ) , seeking sole custody of PERSON and child maintenance ( vršenje roditeljskog prava i izdržavanje ) .

On DATE the respondent lodged a separate claim against the applicant , with ORG , also seeking sole custody of PERSON and child maintenance .

On DATE ORG obtained an opinion from ORG ( PERSON centar za socijalni rad , ORG ) , which stated that the custody should be given to the mother .

On DATE the applicant requested the court to issue an interim measure regulating her right of access to PERSON

At the hearing held on DATE , the respondent also requested an interim measure awarding him temporary custody of PERSON

On DATE ORG ordered the respondent to allow the applicant access to PERSON by bringing their daughter at TIME every last Friday of the month to ORG and collecting her from the applicant in GPE at the same time the following DATE .

On DATE the respondent objected to ORG opinion of DATE and subsequently , on DATE , appealed against the interim access order . It would appear that the latter appeal was forwarded to ORG ( Okružni sud ) in GPE on DATE .

The next hearing , scheduled for DATE , was adjourned because ORG had failed to secure the presence of lay judges ( sudija porotnika ) for family matters as required under the relevant provisions of the domestic law .

The hearing scheduled for DATE was also adjourned , because at that time the case file was physically in the possession of ORG , which was about to rule in respect of the adopted interim access order .

On DATE ORG in GPE rejected the respondent ’s appeal and upheld the interim access order of DATE .

On DATE ORG considered whether to join the CARDINAL sets of civil proceedings into a single case file , and adjourned the case until DATE .

Meanwhile , on DATE ORG informed ORG that the respondent ’s objection to their first opinion of DATE had been accepted , because the competent Ministry had found irregularities in its work . The ORG also warned the court that it could not have reliably assessed whether the conclusion of this opinion had been in the best interest of the child , in particular due to the need to ascertain the applicant ’s state of mental health .

Following LOC additional updated opinion of DATE ( see paragraph CARDINAL below ) , on DATE ORG issued a new interim access order , restricting the applicant ’s access to TIME on Fridays at the premises of ORG in GPE , thereby rendering the interim access order of DATE obsolete .

On DATE the applicant appealed against the new interim access order , while on DATE she informed the court that she had not been and would not be going to GPE to see her daughter , because she was afraid of the respondent ’s abusive behaviour and intimidation .

On DATE ORG noted that the applicant had appeared in person but that the hearing had been scheduled for DATE and that she would not be able to attend it . " ( see paragraph CARDINAL above ) .

The interim access order was confirmed by ORG in GPE on DATE .

On DATE ORG formally joined the CARDINAL sets of proceedings , while the applicant submitted that an opinion of ORG could also be obtained and interim custody be granted to her .

On DATE ORG granted interim custody in respect of PERSON to the respondent , pending the final outcome of the ongoing civil suit . It also requested ORG to produce an expert opinion as to how custody should be determined in the best interests of the child , as well as on the access rights of the non - custodial parent . The interim access order of DATE remained in force as regards the applicant ’s contact with her daughter .

On DATE ORG upheld this decision on appeal . On DATE that court forwarded the case file to ORG .

On DATE ORG produced a report , giving its recommendation on how the custody and access rights should be determined ( see paragraph CARDINAL below ) .

On DATE ORG issued a report on the applicant ’s visits to that centre .

The hearing scheduled for CARDINAL DATE was adjourned because of a strike by the judicial authorities .

On DATE the applicant requested withdrawal of ORG judge , but on DATE the President of the court dismissed her request .

At the next hearing , held on DATE , ORG decided to hear both parties in person on DATE .

Further hearings were held on DATE and DATE . On the latter date the applicant requested ORG to obtain an expert opinion on the psychological and physical ability of both her and the respondent to take care of the child .

After both parties had made an advance payment of the costs of the expert opinion , on DATE ORG ordered ORG to prepare the expert report .

However , at a hearing held on DATE , the court reversed its decision and ordered that the expert report be prepared by the Dr ORG .

On DATE ORG informed ORG that due to the negative attitude of the applicant towards this institution and the allegation of previous forgery of her health certificates by the ORG ’s doctors , it would not be able to obtain expert testimony at the hospital . On DATE ORG requested ORG to enable ORG to have the applicant and the child observed at the ORG .

Following the examinations of the parties and PERSON on DATE , on DATE ORG submitted its report on the parties’ ability to exercise parental rights and responsibilities . It also submitted an additional report on DATE in which it recommended that custody be granted to the respondent .

The hearing scheduled for DATE was adjourned , because the applicant had appointed a lawyer , who needed some time to study the case file .

The next hearing , scheduled for DATE , was adjourned at the request of the applicant ’s lawyer . He was ordered by the court to respond to the expert report within DATE .

The hearing scheduled for DATE was not held , because of a strike by ORG .

The hearing scheduled for DATE was adjourned indefinitely , due to an ongoing reform of the judiciary .

NORP The applicant submitted objections to the expert report on CARDINAL DATE and DATE . The respondent replied to the applicant ’s objections on DATE . On DATE , the applicant commented on the respondent ’s observations .

The Board of Experts replied on DATE to the applicant ’s comments on its report . On DATE the respondent commented on both the experts’ and the applicant ’s observations .

On DATE ORG held its first hearing after the reform of the judiciary had been concluded .

On DATE ORG ordered PERSON ’s school psychologist to provide an assessment of the psycho - physical state of the child . It also ordered ORG to provide an updated opinion on the determination of custody and to inform it about the results of the pending corrective monitoring of the parties’ exercise of parental rights by ORG ( see paragraph CARDINAL below ) .

On DATE the court received the assessment from the school psychologist .

ORG scheduled the next hearing for DATE in order to hear both parties .

It would appear that the proceedings are still pending before the first - instance court .

Following the adoption of the interim access order on DATE , the first attempt to reunite the applicant with PERSON took place on DATE , at ORG . According to the ORG ’s report , the respondent had not prepared PERSON for the reunion and was verbally aggressive throughout the meeting . PERSON was initially reluctant to approach the applicant , but she ultimately “ came closer ” and accepted gifts from her mother . The PERSON proposed that future meetings be scheduled on DATE , in a park not far from the respondent ’s flat in GPE , before the applicant and PERSON started spending DATE together . The applicant stated that she feared being left alone with the respondent . It was the first and last time that the respondent brought PERSON to PERSON , refusing to do so afterwards .

On DATE the applicant formally requested enforcement of the interim access order of DATE . On CARDINAL DATE ORG dismissed the applicant ’s request as incomplete , since the interim access order bore no stamp certifying that it had become final .

DATE . On appeal , on DATE ORG quashed this decision and remitted the case . It would appear that this decision was served on the applicant on CARDINAL DATE .

The applicant continued going to the LOC of ORG on DATE , stating that she was afraid to meet her daughter in the presence of the respondent in GPE and insisting on meeting her in PERSON . Following her query about the possible presence of social workers during those meetings , she was informed that this was not the usual practice .

On DATE the applicant called on ORG to request the enforcement of the interim access order as rendered by ORG . She was informed that the ORG was not in charge of the case , as PERSON lived in GPE .

On DATE the ORG submitted an additional updated opinion to ORG , stating that , taking into account that there had been no regular or substantial contact between the applicant and PERSON in DATE , it was in the child ’s best interests to remain temporarily living with the father . The ORG suggested providing a new final report upon putting more efforts into restoring the bond between the mother and daughter .

On DATE ORG issued a new interim access order , restricting the applicant ’s contact with TIME each Friday at ORG in GPE .

On DATE the Loznica ORG sent its opinion to ORG , indicating that the respondent might be being manipulative about the alleged problematic mental health of the applicant . It proposed that a medical institution examine the applicant and give an opinion on both parties’ capacity to exercise parental rights and responsibilities .

On DATE the applicant informed the court that she had not been and would not be going to GPE to see her daughter as she was afraid of the respondent ’s alleged threats and promises to “ send her to bedlam ” .

It appears from a letter from ORG dated DATE that the applicant had not up to that point attended any of the scheduled meetings with her daughter in GPE .

On DATE ORG granted interim custody in respect of PERSON to the respondent , while the interim access order of DATE remained in force as regards the applicant ’s contact with her daughter .

On DATE ORG recommended that custody be granted to the respondent , while the applicant ’s access rights were to be limited to TIME every Friday , at FAC . The access ruling was subject to change and extension once the emotional and caring links between the applicant and her daughter had been restored . The ORG ’s experts pointed out that the applicant had not contacted them in order to be able to see PERSON , and offered professional assistance to facilitate contact between the mother and child , as well as with the respondent in order to motivate PERSON to maintain contact with the applicant . They noted that the respondent had inquired about the applicant ’s interest in seeing PERSON and had been allowing regular visits to PERSON by her older stepbrother ( the applicant ’s son ) .

On DATE the applicant contacted both social care centres , stating that the respondent had not been allowing her any contact with PERSON , even indirectly by phone . She requested both centres to initiate proceedings for deprivation of the respondent ’s parental rights .

On DATE the applicant informed ORG that she had remarried and changed her surname . When the ORG asked her to attend the scheduled meetings with PERSON , she said she did not have enough money to travel to GPE and was afraid of the respondent .

Despite the fact that the interim access order of DATE was no longer valid , the applicant requested its enforcement in CARDINAL written pleadings to ORG in GPE DATE . On DATE this court issued an enforcement order in this respect . However , that court subsequently , following the respondent ’s objection , suspended the enforcement proceedings .

At the hearing on DATE , the applicant stressed that she had not seen her daughter since DATE and urged ORG to change the location of their scheduled meetings to the applicant ’s place of residence . She repeated that she did not have enough money to travel to GPE DATE to see her daughter . When asked by the court whether she wished to have a meeting with her daughter that DATE , the applicant stated that she was afraid of the respondent , as well as of her daughter ’s reaction on seeing her .

According to the report of ORG dated DATE , on DATE the applicant had requested ORG to organise a meeting with PERSON for the first time in accordance with the second interim access order of DATE . Despite the ORG ’s warning about the need to take appropriate steps to prepare PERSON for the forthcoming visits after a lengthy absence of care and contact between them , the applicant allegedly insisted on having contact with PERSON starting from DATE

It would appear that since CARDINAL DATE the applicant has been meeting with PERSON regularly . However , ORG experts reported that the applicant was not really aware that a mother ’s absence could have a profound impact on her daughter and could alienate her daughter ’s affection towards her . While she insisted on emotional reciprocation from her daughter , the contact was a significant source of stress for the child , who cried , hid behind her father , persistently avoided to look at her mother , refused the applicant ’s gifts and asserted that she had been beaten by her . Nevertheless , the applicant systematically accused the respondent of abusing his position as the parent with interim custody and of inculcating PERSON ’s attitude towards her .

The ORG also reported a severely dysfunctional parental relationship and an ambivalent approach on the part of the respondent to the importance of PERSON ’s contact with her mother . In order to improve the parental and parent - child relationships , on DATE the Centre adopted of its own motion a decision on corrective monitoring of the parties’ exercise of parental rights by ORG , for DATE . The ORG was supposed to work with the parents to help them acquire a better understanding of their parental rights and responsibilities , as well as of the needs of their daughter . After they had undergone this therapy , the ORG was to evaluate changes in their attitudes and approaches in exercising parental roles , as well as to assess the need for further measures for the protection of PERSON ’s rights . The respondent was also supposed to bring PERSON regularly to ORG , which would work on improving her motivation in order to try to salvage her contact with the applicant .

On DATE the applicant instituted proceedings against PERSON , requesting that he be deprived of his parental rights ( “ roditeljsko pravo ” ) because of his behaviour in respect of their daughter . It would appear that PERSON lodged the same claim against the applicant and that the competent court eventually joined the CARDINAL proceedings .

In the course of those proceedings , on DATE the applicant sought an interim injunction against domestic violence . She claimed that PERSON had threatened her , which is why she was afraid to attend the scheduled meetings with her daughter .

On DATE the court granted her request and issued an interim measure prohibiting PERSON from approaching or further disturbing the applicant .

ORG However , on DATE ORG quashed this interim measure on appeal and returned the case for reconsideration .

On DATE the court decided to separate the proceedings for protection against domestic violence from those for deprivation of parental rights .

As regards the proceedings for protection against domestic violence , on DATE ORG in GPE granted an injunction against domestic violence , i. e. “ insulting or any other insolent , unscrupulous or malevolent behaviour ” as defined in the LAW . In particular , it banned the respondent from disturbing the applicant for DATE , as well as from coming within QUANTITY of her and her place of residence , other than when necessary to allow contact between the applicant and the child .

On DATE ORG upheld the former part of this decision , quashed the latter due to the lack of valid and convincing reasons and remitted it for re - examination .

It would appear that these proceedings are still pending .

In DATE the applicant had been diagnosed with interstitial lung disease , having subsequently become depressive and occasionally in need of psychiatric treatment .

Article CARDINAL states that a competent authority may exempt a party to administrative proceedings from paying the costs of the proceedings , including witnesses’ and experts’ costs and expenses , if it finds that paying those expenses would affect the individual and his / her family ’s well - being and ability to maintain themselves .

DATE . Other relevant provisions are set out in the cases of NORP v. GPE ( no . CARDINAL , § § DATE and DATE , DATE ) , and PERSON ( no . GPE , § § DATE and DATE , DATE ) .


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

The applicant was born in DATE and lives in GPE .

The applicant is a GPE 's Witness . From DATE he attended various GPE 's Witnesses religious services and he was baptised on DATE at DATE .

On DATE the applicant was registered as a person liable for military service with ORG ( ORG համայնքի զինվորական կոմիսարիատ ) .

On DATE the applicant , at DATE , was called to undergo a medical examination , following which he was declared fit for military service . The applicant became eligible for military service during the DATE spring draft ( DATE ) .

On DATE , at the outset of the draft , the applicant sent identical letters to ORG գլխավոր դատախազ ) , the Military Commissioner of GPE ( ՀՀ պաշտպանության նախարարության հանրապետական զինկոմիսար ) and ORG of ORG ( ՀՀ ազգային ժողովին առընթեր մարդու իրավունքների հանձնաժողով ) , with the following statement :

“ I , PERSON , born in DATE , inform you that I have studied the Bible since DATE and have trained my conscience by the Bible in harmony with the words of PERSON , and consciously refuse to perform military service . At the same time I inform you that I am ready to perform alternative civilian service in place of military service . ”

NORP In DATE a summons to appear for military service on DATE was delivered to the applicant 's home . On DATE an officer with ORG telephoned the applicant 's home and asked his mother whether the applicant was aware that he had been called to appear at the FAC to commence military service DATE . TIME , the applicant temporarily moved away from his home in fear of being forcefully taken to the military .

On DATE and DATE officials from the ORG telephoned the applicant 's mother , demanding to know his whereabouts . They threatened to take him to the military by force if he did not come voluntarily . On DATE , early in the morning , the officials came to the applicant 's home . His parents were asleep and did not open the door . On the same date , the applicant 's mother went to the FAC where she stated that the applicant had left home and she did not know when he would come back . The applicant submits that the ORG made no further efforts to contact his family .

On DATE ORG for ORG ( ՀՀ ազգային ժողովի պետական-իրավական հարցերի հանձնաժողով ) sent a reply to the applicant 's letter of DATE , stating :

“ In connection with your declaration , ... we inform you that in accordance with the legislation of GPE every citizen ... is obliged to serve in the NORP army . Since no law has yet been adopted in GPE on alternative service , you must submit to current law and serve in the NORP army . ”

NORP In early to mid - June CARDINAL the applicant returned home , where he lived until his arrest in DATE .

On DATE the ORG declared a general amnesty which applied only to those who had committed crimes before DATE and was subject to implementation until DATE .

On DATE the Erebuni Military Commissar ( ORG համայնքի զինկոմիսար ) sent notice to ORG ( ORG համայնքի դատախազ ) that the applicant had failed to appear for military service on DATE and was intentionally avoiding service in the army .

During DATE and on DATE the applicant , together with his father and his defence counsel , went on several occasions to ORG to inquire with the relevant investigator about his situation and to discuss the forthcoming trial .

On DATE the investigator instituted criminal proceedings on account of the applicant 's draft evasion . According to the applicant , the superior prosecutor refused to bring charges against him until further investigation had been carried out . On DATE the applicant , who apparently wanted to benefit from the above amnesty act , complained about this to ORG ( ՀՀ գլխավոր դատախազություն ) . He received no reply to this complaint .

On DATE the investigator issued CARDINAL orders in respect of the applicant : ( CARDINAL ) to bring a charge of draft evasion against the applicant ; ( CARDINAL ) to apply to court for authorisation of the applicant 's detention on remand ; ( CARDINAL ) to declare the applicant a fugitive and institute a search for him ; ( CARDINAL ) to apply to court for authorisation to monitor the applicant 's correspondence ; and ( CARDINAL ) to suspend the proceedings until the applicant had been found . This last order stated :

“ ... since , having undertaken investigative and operative search measures , the attempts to find the wanted [ applicant ] within DATE ... have been unsuccessful and his whereabouts are unknown , ... [ it is necessary ] to suspend the investigation ... and ... to activate operative search measures to find the accused . ”

NORP Neither the applicant nor his family were notified of these orders , despite the fact that since DATE he had been living at the family home and that he had met with the investigator on several occasions in DATE .

On DATE the ORG and ORG of GPE ( ORG քաղաքի ORG և GPE համայնքների առաջին ատյանի դատարան ) authorised the monitoring of the applicant 's correspondence and his detention on remand . Neither the applicant nor his family were notified about these decisions , and the investigating authority made no attempts to contact them until his arrest in DATE .

On DATE the Convention entered into force in respect of GPE .

On DATE , while the applicant was at work , QUANTITY police officers came to his family home , informing his parents that he was on the wanted list and inquiring about his whereabouts .

On DATE the police officers returned and accompanied the applicant to a local police station , where they drew up a record of the applicant 's voluntary surrender which stated that the applicant , having found out that he was on the wanted list , decided to appear at the police station . On the same date , the applicant was placed in the PERSON detention facility .

On DATE the investigating authority resumed the criminal proceedings against the applicant .

On DATE the applicant was presented with the DATE charge for the first time . During his questioning on the same date the applicant submitted that he consciously refused to perform military service because of his religious beliefs but was ready to perform alternative civilian service instead .

On DATE , the applicant and his defence counsel were granted access to the case file . The indictment was finalised on DATE and approved by the prosecutor on DATE .

On DATE the applicant 's trial commenced in the ORG and ORG of GPE . The trial was adjourned until DATE because the applicant had not been served with a copy of the indictment .

On DATE , at the court hearing , the applicant made the same submissions as during his questioning . On DATE , the ORG and ORG found the applicant guilty as charged and sentenced him to DATE and DATE in prison .

On DATE the prosecutor lodged an appeal against this judgment , seeking a harsher punishment . The appeal stated :

“ The [ applicant ] did not accept his guilt , explaining that he refused [ military ] service having studied the Bible , and as CARDINAL of GPE 's Witnesses his faith did not permit him to serve in the armed forces of GPE .

[ The applicant ] is physically fit and is not employed .

I believe that the court issued an obviously mild punishment and did not take into consideration the degree of social danger of the crime , the personality of [ the applicant ] , and the clearly unfounded and dangerous reasons for [ the applicant 's ] refusal of [ military ] service . ”

On DATE the applicant 's defence counsel lodged objections in reply to the prosecutor 's appeal , in which he argued that the judgment imposed was in violation of the applicant 's freedom of conscience and religion guaranteed by LAW , LAW and other international instruments . He further argued that the absence of a law on alternative civilian service could not serve as a justification for imposing criminal liability on a person refusing military service for reasons of conscience .

On DATE , in the proceedings before the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) , the prosecutor argued , inter alia , that a harsher sentence should be imposed also because of the fact that the applicant had hidden from the investigation . The applicant submits that during the appeal hearing pressure was put on him to abandon his religious beliefs regarding military service : both the prosecutor and CARDINAL of the judges offered to terminate his case if he dropped his objection and went to perform his military duty .

On DATE , ORG decided to grant the prosecutor 's appeal and increased the applicant 's sentence to DATE , stating that :

“ The court of first instance , when sentencing [ the applicant ] , took into account that [ the applicant ] had committed not a grave crime , that he was young , he had not been guilt - stained in the past , that he had confessed his guilt , had actively assisted in the disclosure of the crime and had sincerely repented .

However , in the course of the appeal proceedings it was established that not only did [ the applicant ] not accept his guilt , nor did he repent of having committed the crime , not only did he not assist in the disclosure of the crime , but he hid from preliminary investigation and his whereabouts were unknown , for which reason a search for him was initiated .

Based on these circumstances , as well as taking into account the nature , motives and degree of social danger of the crime , ORG considers that the prosecutor 's appeal must be granted , and a harsher and adequate punishment must be imposed on [ the applicant ] . ”

On an unspecified date , the applicant 's defence counsel brought a cassation appeal against this judgment , in which he raised arguments similar to the ones made in his objections of DATE . He reiterated the applicant 's willingness to perform alternative civilian service and submitted that , instead of spending DATE in prison , the applicant could have done socially useful work . According to him , such a possibility was envisaged under LAW ( « Զինապարտության մասին ORG օրենք ) . Furthermore , he argued that the principle of alternative service was enshrined in LAW ( « Խղճի ազատության և կրոնական կազմակերպությունների մասին PERSON օրենք ) , and the absence of appropriate implementation mechanisms could not be blamed on the applicant .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) upheld the judgment of ORG , finding , inter alia , that the rights guaranteed under LAW were subject to limitations under its LAW such as in the interests of ORG security , public safety and the protection of public order . Similar limitations were envisaged also by LAW .

On DATE the applicant was released on parole after having served CARDINAL of his sentence .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to freedom of thought , conscience and religion . ”

“ The fundamental rights and freedoms of man and citizen enshrined in ORG DATE of the LAW can be restricted only by law if necessary for the protection of ORG security and public safety , the public order , the health and morals of society , and the rights , freedoms , honour and good name of others . ”

“ Every citizen is obliged to participate in the defence of GPE in accordance with a procedure prescribed by law . ”

The relevant provisions of LAW read as follows :

“ Evasion of a regular call - up to active military service is punishable by imprisonment for a period of DATE . ”

NORP The relevant provisions of LAW read as follows :

“ CARDINAL . ORG Male conscripts and officers of the first category reserve whose age is DATE [ and ] who have been found physically fit for military service in peacetime shall be drafted to compulsory military service . ”

“ CARDINAL . [ A citizen ] can be exempted from compulsory military service : ( a ) if the national recruiting commission recognises him to be unfit for military service on account of poor health , striking him off the military register ; ( b ) if his father ( mother ) or brother ( sister ) perished while performing the duty of defending GPE or in [ the NORP ] armed forces and other troops , and he is the only male child in a family ; ( c ) by a decree of the Government ; ( d ) if he has performed compulsory military service in foreign armed forces before acquiring NORP citizenship ; or ( e ) he has a science degree ( candidate of science or doctor of science ) and is engaged in specialised , scientific or educational activities . ”

“ CARDINAL . NORP In specific cases the Government defines categories of citizens and particular individuals to be granted deferral from conscription to compulsory military service . ”

“ All civic obligations envisaged by law apply equally to believing members of religious organisations as they do to other citizens .

In specific cases of contradiction between civic obligations and religious convictions , the matter of discharging one 's civic obligations can be resolved by means of an alternative principle , in the procedure prescribed by law , by mutual agreement between the relevant ORG authority and the given religious organisation . ”

The relevant provisions of the LAW , with their subsequent amendments introduced on DATE , read as follows :

“ CARDINAL . Alternative service , within the meaning of this LAW , is the service replacing the compulsory fixed - period military service which does not involve the carrying , keeping , maintenance and use of arms , and which is performed both in military and civilian institutions .

Alternative service includes the following types : ( a ) alternative military [ service , namely ] military service performed in the armed forces of GPE which does not involve being on combat duty , and the carrying , keeping , maintenance and use of arms ; and ( b ) alternative labour [ service , namely ] the labour service performed outside the armed forces of GPE .

The purpose of alternative service is to ensure the fulfilment of a civic obligation before the motherland and society and it does not have a punitive , depreciatory and degrading nature . ”

“ CARDINAL . An NORP citizen , whose creed or religious beliefs do not allow him to carry out military service in a military unit , including the carrying , keeping , maintenance and use of arms , can perform alternative service . ”

The relevant extract from the Opinion stipulates :

“ CARDINAL . ORG takes note of the letters from the President of GPE , the speaker of the parliament , the Prime Minister and the chairmen of the political parties represented in the parliament , and notes that GPE undertakes to honour the following commitments : ... iv . human rights : ... d. to adopt , within DATE of accession , a law on alternative service in compliance with NORP standards and , in the meantime , to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions , allowing them instead to choose , when the law on alternative service has come into force , to perform non - armed military service or alternative civilian service . ”

The relevant extract from the ORG provides :

“ CARDINAL . The right of conscientious objection is a fundamental aspect of the right to freedom of thought , conscience and religion enshrined in LAW and LAW .

Most Council of Europe member states have introduced the right of conscientious objection into their constitutions or legislation . There are CARDINAL members states where this right is not recognised . ”

“ CARDINAL . Everyone has the right to freedom of thought , conscience and religion . This right includes freedom to change religion or belief and freedom , either alone or in community with others and in public or in private , to manifest religion or belief , in worship , teaching , practice and observance .

NORP The right to conscientious objection is recognised , in accordance with the national laws governing the exercise of this right . ”


The applicant is an NORP national , born in DATE , residing in GPE . She is represented before the ORG by Mr Graff , a lawyer practising in GPE .

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

The applicant suffers from cancer . Since an operation in DATE she has been treated with “ NORP ” , a medicine which is not registered in the NORP pharmacopeia ( NORP ) . The applicant asked ORG ( Gebietskrankenkassa ) to reimburse the various costs of her treatment . On CARDINAL DATE ORG refused to meet the costs .

On DATE the applicant filed an action with ORG ( Arbeits- und ORG ) against ORG , requesting the reimbursement of the treatment costs . On CARDINAL DATE ORG appointed an expert who delivered his opinion in DATE .

On DATE a witness was heard and the expert opinion was discussed . On DATE the proceedings were adjourned because ORG was expected to deliver a judgment concerning “ LOC .

On DATE the applicant appealed against the adjournment , which was quashed by ORG ( Oberlandesgericht ) . On DATE a witness was heard . In DATE another expert delivered his opinion . On DATE the expert delivered a supplementary opinion . A further hearing appears to have been held on DATE . On DATE the applicant gave notice that CARDINAL witnesses were going to be absent for some time and asked the court to schedule the following hearing no sooner than DATE . On DATE ORG appointed another expert who DATE after having been admonished by the judge CARDINAL times – finally delivered his opinion in DATE . On DATE a hearing was held to discuss the expert opinion .

On DATE the applicant ’s counsel submitted documents in NORP which were translated into NORP by DATE .

On DATE the expert delivered a supplementary opinion on the basis of the submitted documents .

On DATE the court fixed the date for a hearing on DATE , but at the request of the applicant counsel ’s postponed the hearing until DATE .

On DATE the hearing was postponed until DATE due to the judge ’s illness . On CARDINAL DATE the applicant ’s counsel requested a further postponement .

On DATE , after the hearing , ORG dismissed the applicant ’s action , referring to section CARDINAL of LAW ( Allgemeines Sozialversicherungsgesetz ) which states that the treatment provided has to be sufficient and appropriate but must not exceed what is actually necessary . The court found that the mere fact that “ NORP ” was not registered in the NORP pharmacopoeia did not in itself prevent the reimbursement of treatment costs . However , in the applicant ’s case , registered medicines would have had the same curative effects and , given the evidence produced during the proceedings ( submissions of the parties and witnesses , expert opinions ) , their prescription could not be considered unreasonable or unacceptable . In addition , the “ NORP ” treatment cost CARDINAL times as much . Besides , the court noted that no curative effect had been proved . Therefore the “ LOC treatment was neither a necessary nor an appropriate treatment within the meaning of section CARDINAL of LAW .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal . On DATE the applicant lodged an appeal on points of law with ORG ( Oberster Gerichtshof ) .

On DATE ORG dismissed the applicant ’s appeal on points of law . The decision was served on DATE .


BOSKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant , Mr PERSON , was born in DATE in LOC in the former GPE . He has dual nationality : NORP and NORP . His current place of residence is unknown . He is represented before the ORG by Mr J. Arsov , a lawyer practising in GPE .

On DATE the applicant applied to ORG ( Државна Изборна Комисија ) ( hereinafter referred to as the ORG ) to be listed as an independent candidate in the presidential elections in the former GPE . For that purpose he had collected CARDINAL signatures of citizens in support of his candidacy .

On DATE the ORG rejected his application on the ground that the applicant did not satisfy the requirement in LAW governing the eligibility of candidates for presidential election . In particular , the applicant had not continuously resided in the former GPE for CARDINAL out of DATE of the election . The ORG found that on DATE the applicant had informed the authorities that he was no longer resident in GPE and had registered himself as resident in GPE in GPE ; he had continued residing in GPE until DATE ( when he re - registered himself as resident in GPE ) . Whereas the applicant 's residence in GPE between DATE and CARDINAL DATE was accepted as qualifying as domestic residence by the ORG pursuant to LAW ( the latter date being the date the former GPE enacted its LAW ) , his residence in GPE DATE and DATE was deemed foreign and not taken into account . The ORG calculated that in DATE the applicant had resided in the former GPE for DATE , DATE and DATE .

On DATE the applicant challenged the rejection of his candidacy in ORG ( Врховен Суд на РМ ) , alleging that the ORG had incorrectly calculated the overall length of his residence in the former GPE by an erroneous ( restrictive ) construction of LAW . According to him , his residence in GPE after CARDINAL DATE should have been deemed domestic residence by the ORG . First , the applicant maintained that neither the LAW nor the LAW ( Уставен Закон за имплементација на PERSON ) , nor any other statute imposed a time - limit on the application of LAW , which is a transitional provision . Second , he maintained that LAW , as well as the other provisions of the LAW and the relevant statutes , did not specify that the qualifying period of residence in the other GPE of ORG would be restricted to the period before the LAW was enacted or any other period . Since neither the LAW nor the statutes regulated the manner or duration of the application of LAW , the applicant argued that the said provision should have been construed by the ORG in accordance with the human rights conventions and DATE LAW on ORG , that is to say , broadly , not restrictively . He claimed that he could not be blamed for leaving the former GPE for GPE in DATE and staying there for a certain period of time following the disintegration of GPE , and had done so for economic reasons . Finally , the applicant alleged that he had been discriminated against in comparison to other candidates in DATE presidential elections , namely , Mr. PERSON in DATE and Mr. V. Tupurkovski in DATE , whose candidacies had been upheld by a differently composed ORG . He alleged that the ORG had not applied the aforementioned provision in the same manner in their cases as in his . The applicant requested ORG to order the ORG to serve and disclose its decisions on the candidacies of Mr. PERSON and Mr. PERSON .

On DATE ORG dismissed the applicant 's challenge , finding that the overall length of his domestic residence had been correctly assessed by the ORG . It held that the former GPE had declared its independence with the adoption of the LAW on DATE , so that LAW could only be applied for the period prior to that date . It did not directly respond to the applicant 's assertions or arguments .

On DATE the applicant petitioned ORG ( Уставен Суд на РМ ) for an order quashing the decisions of ORG and the ORG on the basis of LAW and LAW . He called the petition a request for the protection of an electoral right ( барање за заштита на избирачко право ) . Before ORG , the applicant repeated the assertions he had made and arguments he had advanced before ORG , adding that his right to stand for election under LAW and LAW No . CARDINAL of the Convention had been violated . He also complained that he had not received a reasoned answer from ORG to his arguments .

On the same date the applicant made an almost identical application to ORG , requesting it to adopt a common position on its decision of DATE ( and to set it aside ) in a joint session of its CARDINAL chambers .

On DATE ORG rejected the applicant 's petition as being incompatible ratione materiae . It held that the right to stand for election was not among the individual rights and freedoms referred to in LAW whose violation could be challenged in ORG by way of individual petition . According to ORG , the ORG and ORG had exclusive jurisdiction to protect the right at issue pursuant to LAW . In addition , ORG held that it had no jurisdiction to review the complaint under LAW No . CARDINAL to LAW . ORG reached its decision without a hearing .

It is not clear whether ORG acted upon the applicant 's request for the adoption of a common position and an order setting aside its decision of DATE . The applicant was deprived of the possibility to stand as a candidate in the elections . The elections took place on CARDINAL and DATE .

Article CARDINAL of the LAW ( Устав на Република Македонија ) stipulates that the President of the Republic is a Commander - in - Chief of ORG former GPE .

LAW ( Устав на Република Македонија ) lists the discretionary powers of the Head of the ORG . The President of the LOC has power to : ( CARDINAL ) nominate an appropriate person to form the Government ; ( CARDINAL ) appoint and/or dismiss by decree ambassadors and other diplomatic representatives of the former GPE abroad ; ( CARDINAL ) accept the credentials and letters of recall of the foreign diplomatic representatives ; ( CARDINAL ) propose CARDINAL candidates to sit as judges in ORG ; ( CARDINAL ) propose CARDINAL candidates for membership of ORG ; ( CARDINAL ) appoint CARDINAL members to ORG of the former GPE ; ( CARDINAL ) propose candidates for membership of ORG ; ( CARDINAL) appoint and/or dismiss other holders of state and public office determined by the LAW and the law ; ( CARDINAL ) grant decorations and honours ; ( CARDINAL ) grant pardons ; and ( CARDINAL ) perform other duties determined by LAW .

LAW provides that the President of the Republic is obliged , within DATE of the formation of the ORG , to entrust the mandate for forming the ORG to a candidate from the party or parties with a majority of seats in the ORG .

LAW and CARDINAL of the LAW stipulates that statutes are declared by decree ( promulgation ) , signed by both the President of the ORG and the President of the LOC .

LAW provides that the President of the Republic may refuse to sign a decree declaring a statute to be in force . His right to veto the declaration of the laws is only provisional since the same provision stipulates that should the ORG re - adopt the statute by a majority vote of the total number of its representatives , the President of the Republic shall be bound to sign the decree .

LAW provides that the President shall have no right to refuse to promulgate those statutes which , LAW , may only be adopted by a CARDINAL majority vote of the total number of the representatives of the ORG .

LAW , DATE of the LAW provides , inter alia , that the representatives of the ORG are elected for a term of DATE and that the new elections are to be held within DATE of the term of the current ORG . The term of office of the representatives may be extended only during a state of war or an emergency .

LAW stipulates that the ORG is to be dissolved when CARDINAL of the total number of its representatives vote for dissolution .

Article CARDINAL § CARDINAL of the LAW provides that the right to propose a bill is given to ORG , to the Government and to a group of CARDINAL voters .

Article CARDINAL § CARDINAL specifies that an initiative for adopting a law may be submitted to the authorised bodies by any citizen , group of citizens , institution or association .

LAW stipulates that the Government shall be elected by the ORG on the proposal of the person nominated by the President of the Republic , and on the basis of the programme , by a majority vote of the total number of ORG .

Article CARDINAL of the LAW provides , inter alia , that the ORG and each of its members shall be accountable to the ORG which may take a vote of no - confidence in the Government .

LAW provides , inter alia , that the ORG has the right to submit its resignation .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

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

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

The applicant repeatedly sued the regional social authorities for payment of various benefits on account of his participation in the cleaning - up operation following the GPE nuclear disaster . In DATE FAC of the ORG delivered CARDINAL judgments in the applicant ’s favour , awarding him several lump - sums in arrears and certain regular monetary payments . The judgments became final but their enforcement was delayed by the authorities .

On DATE the ORG delivered the Burdov ( no . CARDINAL ) pilot judgment cited above . It ordered the respondent ORG to set up an effective domestic remedy which would secure adequate and sufficient redress for non - enforcement or delayed enforcement of domestic judgments . It also ordered GPE to grant adequate and sufficient redress , within DATE from the date on which the judgment became final , to all victims of non - payment or unreasonably delayed payment by ORG authorities of a judgment debt in their favour who had lodged their applications with the ORG before the delivery of the present judgment and whose applications had been communicated to the Government under Rule CARDINAL § CARDINAL ( b ) of the Rules of the ORG .

The present case was communicated to the Government on DATE . The ORG ’s proceedings in the case were adjourned until CARDINAL DATE pending the implementation of the pilot judgment ( see PERSON ( no . CARDINAL ) , cited above , § CARDINAL , and point CARDINAL of the operative part ) . The applicant was informed accordingly .

On DATE ORG of GPE granted the applicant ’s claim for damages resulting from delayed enforcement of the CARDINAL judgments in his favour . It found that the CARDINAL judgments had been fully enforced with various delays ranging DATE , and ordered the authorities to pay a total of MONEY ( MONEY ) in compensation for non - pecuniary damage . In so deciding , the court relied on LAW , ORG CARDINAL and CARDINAL of LAW , and on the LAW provisions , as interpreted in the ORG ’s case - law .

On DATE the judgment was upheld on appeal by ORG and became final .

On DATE the court award was paid to the applicant .


The applicant is a NORP citizen born in GPE , GPE , and currently detained in FAC , GPE . He is represented before the ORG by Mr R. ORG , a solicitor practising in GPE .

A.

On DATE the manager of a factory , ORG , received a telephone call from an individual who said that he was speaking on behalf of ORG , an illegal organisation . The manager was instructed to pay a substantial amount of money under threat . The manager informed the police and a surveillance operation was mounted .

The police provided the factory manager with green paper towels to be used to simulate bank notes . In accordance with the blackmailer 's instructions , the factory manager went to a shop to obtain a white plastic bag in which to put the money . He purchased a packet of cream cracker biscuits to provide a reason for obtaining the bag . He then went to the location specified by the blackmailer and deposited the white plastic bag containing the paper towels and the packet of biscuits in the place agreed .

The applicant was seen by a police officer working for the surveillance team approaching the area where the plastic bag had been placed . He was next seen with a white plastic bag containing something that appeared to be green . He was then seen TIME without the plastic bag .

At TIME on DATE the applicant was arrested pursuant to section CARDINAL ) of ORG ( Temporary Provisions ) Act DATE ( “ the DATE LAW ) . Following the applicant 's arrest a search of the area was carried out in the course of which the box of biscuits was recovered . On subsequent examination of the box , a print of the applicant 's left thumb was found on the box .

The applicant was taken to ORG , GPE , where over a period of DATE , from DATE until DATE , he was interviewed on CARDINAL separate occasions . It would appear that all CARDINAL interviews were conducted whilst the applicant was under caution pursuant to LAW Order DATE ( “ the DATE LAW ) .

On his arrival at ORG , at TIME on DATE , the applicant indicated that he wished to see a solicitor as soon as practical . The police , pursuant to section CARDINAL of GPE ( Emergency LAW Act DATE ( “ the DATE LAW ) , deferred access to the solicitor nominated by the applicant ( PERSON ) until TIME on DATE . On DATE the applicant consulted with his solicitor from CARDINAL p.m. to CARDINAL p.m. He had further consultations with his solicitor on DATE from CARDINAL TIME , on DATE from TIME , and on DATE from TIME to TIME

The applicant was interviewed on CARDINAL occasions in the period from his arrest to the end of Interview no . CARDINAL at TIME on DATE . Throughout these interviews the applicant denied being involved in any blackmail attempt and refuted the suggestion that he had been in the places in which he had been seen by the police surveillance team .

At Interview no . DATE , which began at TIME on DATE , the police confronted the applicant with evidence that his left thumbprint had been found on the box of biscuits recovered from the scene . When asked for an explanation as to how , in the light of his denials , his thumbprint could have been found on the packet , the applicant replied : “ I did n't lift them , they were thrown at me ” .

The interview ended at TIME on DATE . The interviewing officers recorded in their notes at the conclusion of the interview :

“ [ The applicant ] appeared to want to tell the truth but was indecisive about how to approach the matter ... [ T]he interview laboured between [ the applicant ] wanting to talk to us but hesitating to do so . ”

At TIME on DATE the applicant requested facilities to consult with his solicitor , PERSON . At TIME an attempt was made to contact PERSON . Mr PERSON was not at his office . It was noted in the Occurrence Book for ORG : “ PERSON office contacted TIME . PERSON to ring back later ” .

No time having been given for PERSON visit , Detective PERSON , pursuant to non - statutory guidelines issued by the Secretary of ORG relating to the questioning of terrorist suspects , authorised the interview to commence without the applicant first having had an opportunity to consult with his solicitor .

Interview no . CARDINAL commenced at TIME on DATE . In the course of this interview the applicant admitted to the blackmail offence and started to confess to his involvement in various acts of terrorism , including murder and membership of ORG . The applicant went on to make further confessions during DATE interviews which commenced at TIME and TIME respectively on DATE .

At TIME on DATE , Mr H. , a solicitor employed by PERSON firm , contacted ORG and arranged a consultation with the applicant for TIME In the interim a further interview , DATE , was conducted in the course of which the applicant made further admissions . The applicant consulted with PERSON from TIME until TIME The applicant informed police officers at Interview no . DATE that his solicitor had told him “ not to make statements ” .

At the CARDINALth interview , which was conducted on DATE from TIME until TIME , the applicant made further admissions of his involvement in various terrorist offences . DATE interviews were conducted in the course of DATE , on DATE . During these final CARDINAL interviews the applicant made further admissions .

On DATE the applicant was convicted before a single judge sitting without a jury at ORG on CARDINAL counts alleging various offences of terrorism including murder , blackmail , possession of firearms and membership of ORG . The applicant was sentenced to life imprisonment . The confession evidence obtained in the course of the police interviews sustained the charges against the applicant .

The applicant , who did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed , submitted through his counsel on the voir dire to determine the admissibility of the confession evidence that the evidence should be excluded under section CARDINAL(CARDINAL ) of the DATE Act , on the grounds that it had been obtained by violence and threats of violence ; alternatively under section ORG the CARDINAL Act , in order to avoid unfairness to the applicant or as otherwise being in the interests of justice .

It was submitted on behalf of the applicant by his counsel that the confession evidence had been obtained in circumstances where :

( CARDINAL ) NORP threats had been made by the police that they would arrest and harass members of his family and put out the word that the applicant was a “ tout ” if he did not confess , together with express or implied promises that the police would help him if he confessed . The applicant further stated that in the course of being interviewed the police had fed him details of the various offences to which he subsequently admitted ;

( CARDINAL ) he was suffering from ill - health and confusion which manifested itself , inter alia , in a severe loss of weight , namely QUANTITY ; and

( CARDINAL ) there were breaches by the police of their duty to permit the applicant to consult with a solicitor .

The interviewing officers as well as the applicant gave evidence in the voir dire and were cross - examined on their evidence . The interviewing officers denied that they had threatened the applicant or fed him with information in earlier interviews about the crimes to which he later confessed . They testified that they had confined their questions during the first CARDINAL interviews to the blackmail offence .

In respect of ( CARDINAL ) , the trial judge rejected the applicant 's evidence that he had been threatened , or that he had been given promises and inducements to persuade him to confess , or that he had been fed information of crimes which he had then repeated to the police . The trial judge ruled that he was :

“ ... satisfied beyond reasonable doubt ... that [ the applicant 's ] evidence of threats made , and promises and inducements given to him , by the police , and the feeding of information to him about crimes other than the ... blackmail which he then repeated back to the police , are completely untrue . ”

He gave as his reasons , inter alia , that the evidence of the interviewing officers was to be believed , that the applicant 's evidence and demeanour in the witness box showed him to be a completely untruthful witness , and that his version of events was “ a concoction ” . Further , the trial judge held that the fingerprint evidence was “ a very damaging piece of evidence ” and that it was that , rather than the alleged threats , which had caused the applicant to confess and “ make a clean breast of matters ” .

In respect of ( CARDINAL ) , the trial judge found that whilst the applicant probably suffered some weight loss , it was not of the order of QUANTITY and that his weight had probably been inaccurately recorded when he first arrived . Furthermore , the trial judge accepted , in any event , the evidence of the various doctors , who had made routine examinations of the applicant during the period he was being interviewed , that the applicant was not in such a state of ill health or confusion such as to render him unfit to be interviewed .

In respect of ( CARDINAL ) , the applicant 's counsel contended that the police had acted unfairly and in breach of LAW , and paragraph CARDINAL of the non - statutory guidelines issued by the Secretary of ORG , in authorising the continuation of interviewing on DATE without the applicant first having had an opportunity to consult with his solicitor . While admitting to having certain misgivings about Detective PERSON testimony , the trial judge found that that police officer had reasonable grounds for believing that waiting for the applicant 's solicitor to arrive , when no time had been specified for his visit , would cause unreasonable delay to the process of investigation . The trial judge found , accordingly , that in authorising the interviews to continue , Detective PERSON had not acted in breach of the guidelines .

The judge further noted that even if Detective Superintendent C. had breached paragraph CARDINAL of the non - statutory guidelines in authorising interviews to continue on DATE , he would not have excluded the evidence obtained since he considered , with reference to the wording of section ORG ) of the CARDINAL Act , that “ it would not have been appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice ” . The trial judge gave as his reasons :

“ In this case [ the applicant ] had had the benefit of CARDINAL consultations with his solicitor DATE . It is therefore clear that he had been fully advised as to his legal rights when being questioned by the police . It is also apparent from the interviews which took place DATE that [ the applicant ] was fully capable of declining to answer questions from the police and was fully capable of refusing to make admissions . It was common case that this was not the first time that [ the applicant ] had been interviewed whilst in police custody and it is clear that he was familiar with being interviewed by the police . Moreover the evidence which I heard on the voir dire satisfied me that nothing was said or done in the course of the interviews which was likely to make unreliable the confessions which were made by [ the applicant ] . A further important consideration is that I am satisfied that [ the applicant ] began to make confessions , not because of improper behaviour by the police in the course of the interviews , but because the police quite properly put to him a new and very damaging piece of evidence , which was that his fingerprint had been found on the packet of cream crackers . I am satisfied that this was the factor which caused him to begin to confess . Against those considerations and that background I do not consider that considerations of fairness to [ the applicant ] or other considerations in the interests of justice make it appropriate for the court to exclude his confessions in the exercise of its discretion . ”

The trial judge 's overall conclusion in the light of all the evidence adduced at the voir dire was as follows :

“ In this case [ the applicant ] confessed to crimes of the utmost gravity on behalf of a terrorist organisation ( including involvement in very brutal murders of a nature which have terrorised and horrified entire communities ) in circumstances where :

( CARDINAL ) there was no impropriety by the police in the course of the interviews ;

( CARDINAL ) there was nothing in the course of the interviews to give rise to a concern that the confessions were unreliable ;

( CARDINAL ) the accused was caused to confess because the police quite properly put to him that they had received new and very damaging evidence against him , namely his fingerprint on the packet of cream crackers ; and

( CARDINAL ) the accused had already consulted with his solicitor on DATE , CARDINALth and DATE and on the CARDINALth the police properly and promptly at TIME informed his solicitor that the accused wished to see him .

I consider that having regard to these circumstances neither considerations of fairness to the accused nor the interests of justice operate to cause the court to exclude the confessions in exercise of its discretion on the ground that he did not consult with his solicitor on DATE before the interviews on DATE in which he made confessions . ”

Following the voir dire the applicant declined in cross - examination to answer any questions as to whether the admissions which he had made of the various terrorist offences with which he was charged were true . The judge , in concluding that the confession evidence was true and reliable and that he could properly act on it in convicting the applicant , drew very strong inferences under LAW ) Order DATE from the applicant 's refusal to give any evidence that would raise as a possibility that his admissions of involvement in various terrorist offences were untrue .

The applicant appealed against conviction . On appeal the applicant challenged , inter alia , the exercise by the trial judge of his discretion in not excluding the confession evidence . In doing so , the applicant relied on each of the CARDINAL grounds which had been raised before the trial judge . The applicant , through his counsel , disputed the trial judge 's findings of fact in respect of each of the first CARDINAL grounds . In respect of the third ground the applicant 's counsel submitted in addition that even if there had been no breach of section CARDINAL of the DATE LAW paragraph CARDINAL of the non - statutory guidelines issued by the Secretary of ORG , the judge should have ruled that it was unfair to interview the applicant on DATE pending the arrival of his solicitor , as he had every reason to want , indeed need , a solicitor at that stage .

Following a review of the transcript of the evidence before the trial judge , ORG , upheld the judge 's findings of fact in respect of DATE grounds . In respect of the third , ORG held that there had not been any breach of the rules covering the conduct of police interviews . As regards the applicant 's contention that it was unfair to continue to interview the applicant before he had had an opportunity to consult with his solicitor , ORG found :

“ The reality in the present case was that the police were investigating a serious blackmail case , additional information or admissions might be forthcoming , [ the applicant ] had already had CARDINAL visits from his solicitor and had been accompanied by him at the identification parade when NORP had not picked him out , he had been interviewed before , he did not demur at the absence of his solicitor , he did not remain silent until he arrived instead he chose to reveal his part in a series of serious crimes which disclosed that he was an active terrorist assisting in the activities of a proscribed organisation – ORG . [ The applicant 's counsel ] submitted that his solicitor might have advised him to say nothing . That is so but equally he might have told his solicitor that he was going to confess – it is idle to speculate what might pass between a solicitor and his client . What we do know is that after he saw his solicitor he repeated his account of his criminal activities and went so far as to sign the notes . ”

ORG accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence , that this evidence sustained the charges upon which the applicant had been convicted , and , on DATE , confirmed the sentences which had been imposed .

B. Relevant domestic law and practice

Provisions governing inferences which may be drawn from an accused 's silence

Article CARDINAL of the Criminal Evidence ( Northern Ireland ) Order DATE provides in so far as relevant :

“ Circumstances in which inferences may be drawn from accused 's failure to mention particular facts when questioned , charged etc .

( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused

( a ) at any time before he was charged with the offence , on being questioned by a constable trying to discover whether or by whom the offence was committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact ,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .

( CARDINAL ) Where this paragraph applies ...

( c ) the court ... in determining whether the accused is guilty of the offence charged , may

( i ) draw such inferences from the failure as appear proper ;

( ii ) on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material . ”

NORP Provisions governing access to a solicitor

The relevant provisions at the time of the applicant 's trial governing the right of access to legal advice as a terrorist suspect were contained in section CARDINAL of GPE ( Emergency LAW DATE which , in so far as material , provides :

“ ( CARDINAL ) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled , if he so requests , to consult a solicitor privately . ”

Section CARDINAL of the LAW does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor ; nor is a person suspected of terrorist offences entitled DATE as provided for under paragraph CARDINAL of Code C of the Criminal Evidence ( GPE ) Order DATE in respect of non - terrorist offences – to have his solicitor present whilst he is interviewed . In this connection , section CARDINAL(CARDINAL ) of the DATE Order provides , in so far as relevant :

“ Nothing in a code of practice ... applies to the exercise of powers conferred by or under [ the Prevention of Terrorism ( Temporary Provisions ) Act DATE ] or to a person arrested or detained under those provisions . ”

Non - statutory guidelines issued by the Secretary of ORG for GPE in respect of the detention of persons suspected of terrorist offences , current at the time of the applicant 's arrest , provided , in so far as relevant , at paragraph CARDINAL :

“ A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless :

( b ) an officer of the rank of superintendent or above has reasonable grounds for believing that :

( i ) delay will involve an immediate risk of harm to persons or serious loss of , or damage to , property ; or

( ii ) where a solicitor has been contacted and has agreed to attend , awaiting his arrival would cause unreasonable delay to the process of investigation ; or

( c ) the solicitor nominated by the person , or selected by him from a list :

( i ) can not be contacted ;

( ii ) has previously indicated that he does not wish to be contacted ;

( iii ) having been contacted , has declined to attend ; or

( d ) the person has given his agreement in writing that the interview may be started at once . ”

The admissibility of confession evidence is governed by LAW of GPE ( Emergency LAW Act DATE which provides , inter alia , for the exclusion of confession evidence under section CARDINAL(CARDINAL)(b ) where that evidence has been obtained by violence or threat of violence , or under section ORG ) :

“ ... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection ( CARDINAL)(b ) above , the court ... has a discretion to [ exclude the statement ] if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice . ”


The applicant is a NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by Dr PERSON and PERSON , lawyers practising in GPE .

The applicant was charged before ORG with possession of and trafficking in heroin while in prison .

The prosecution case relied on a signed statement which CARDINAL of the prisoners , ORG , made under caution to a police inspector on DATE accusing the applicant of having supplied him with drugs in the confines of the prison . PERSON confirmed his statement under oath before an investigating magistrate who came to the prison to interview him on CARDINAL DATE .

ORG later retracted the incriminating statement in an affidavit sworn in prison before a notary and in the presence of the applicant on DATE . Part of the affidavit was made in reply to questions put to him by the applicant ’s lawyer .

At the applicant ’s trial ORG confirmed that he had revoked the statement made to the investigating magistrate . He stated that he was under the influence of drugs at the time and could not reason properly . G.F. was cross - examined as to his statement by the applicant ’s counsel . A copy of the impugned statement was produced in court .

Counsel for the applicant requested ORG to rule ORG ’s statement inadmissible . The request was rejected . With reference to the provisions of LAW , ORG decided that ORG ’s statement to the investigating magistrate could be admitted in evidence given that it took the form of a properly drawn up procès verbal containing the deponent ’s allegations against the applicant . With respect to ORG ’s testimony in court , ORG found :

“ [ That ] the presence of the accused when the affidavit was drawn up indicates that [ the applicant ] wanted to feel assured that what [ ORG ] had previously declared in his absence was going to be revoked by [ ORG ] by means of the affidavit . The words of [ ORG ’s ] companions : ‘ What have you done to [ the applicant]’ were indicative of what is considered among prison circles as lack of ‘ camaraderie’ on the part of [ G.F. ] who had revealed what was going on in prison . By his testimony in court , by his willingness to revoke his original testimony , [ G.F. ] continued to reveal that his only interest lay in trying to repair the harm he had caused . He maintains that on DATE he made the statement he was not conscious of what he was saying ; he said that he did not even remember that he testified before the Inquiring Magistrate and that he was under the influence of pills he was taking . This ORG can not believe him in any way : the testimony which he made before the Inquiring Magistrate was very detailed . A person who is not conscious of what he says , who does not know what he says , would not provide all the details which [ ORG ] gave when he testified . The ORG can understand [ ORG ’s ] preoccupation since it is well - known that it is very difficult to testify in the presence of the person who has supplied him with certain illicit drugs regarding some fact . And what had originally prompted him to denounce the [ applicant ] was the fact that he had gone to hospital and left [ G.F. ] without heroin . ”

In its judgment of DATE ORG found the applicant guilty as charged and sentenced him to a term of imprisonment of DATE and a fine of DATE NORP Liras .

The applicant appealed to ORG . Before ORG the applicant ’s counsel contended that ORG was not a credible witness since he had been found guilty of perjury on CARDINAL occasions back in DATE and was barred from giving evidence , as prescribed by LAW . Counsel further asserted that ORG ’s statement to the investigating magistrate should not have been admitted in evidence at the trial on account of the fact that ORG had testified before the investigating magistrate in the applicant ’s absence . In counsel ’s submission , and with reference to section CARDINAL(CARDINAL ) of LAW , a NORP statement must be given orally to the trial court as a condition of its admissibility .

On DATE ORG dismissed the applicant ’s appeal . The court observed that ORG had in fact appeared before ORG and was cross - examined as to the content of the impugned statement which he had confirmed before the investigating magistrate . The court further observed that ORG ’s evidence was properly ruled admissible since it was a declaration within the meaning of LAW . In addition , the bar on ORG giving testimony did not extend to the giving of testimony before a court of law including before an investigating magistrate .

The applicant appealed to ORG , which rejected his appeal in a judgment dated DATE . According to ORG , and with reference to Convention case - law , the criminal proceedings against the applicant and in the way in which the testimony of ORG were given were fair .

The applicant subsequently appealed to ORG , arguing that his right to be present throughout the whole of the criminal proceedings against him had been violated on account of his absence at the time when ORG deposed before the investigating magistrate . Counsel for the applicant referred the court to LAW and to the case - law pertaining to the GPE ’s ORG ’s interpretation of LAW .

In its judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal . The court ruled that ORG ’s statement to the investigating magistrate had been legally obtained and was admissible in evidence against the applicant . Moreover , ORG had appeared before the trial judge and his evidence was open to challenge by the defence . ORG properly exercised its discretion to admit ORG ’s statement in evidence , it being noted that the court had weighed in the balance the fact that ORG has retracted the incriminating statement before a notary . In the opinion of ORG :

“ It is not within [ its ] competence to interfere in the appreciation of the evidence as long as it is satisfied that the proceedings were carried out correctly and that they respected the principle of ‘ equality of arms’ and granted [ the applicant ] the right to an ‘ adversarial ORG during which , at every moment , prosecution and defence would have every opportunity to control all the evidence produced and the submissions made during the proceedings ... In the case under examination the ORG does not perceive anything which might counter its conviction that [ the applicant ] had every opportunity to verify every piece of evidence adduced against him and in particular to cross - examine the person who had made his depositions elsewhere .... .