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

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

After winning the local and parliamentary elections in DATE , ORG ( ORG ) had scheduled elections within its local and regional branches for DATE .

On DATE the applicant , a journalist with the DATE satirical review ORG , published an article under the following heading :

“ The contents of this page are based on actual facts , events and individuals . Any resemblance to reality is the result of lengthy investigation ! ”

The article was directed at a number of ORG branches and bore the title :

“ Family secrets of main governing party ’s provincial bosses in run - up to elections ”

The article included the following passages :

“ Despite appearances ... Timiş county is , by some margin , the ORG ’s craziest . Chairman of the branch is the esteemed university lecturer PERSON However , closer examination of the situation reveals that the leader is no more than an aristocratic figurehead , a harmless small fish in a pond beneath whose surface lurk some large and evil fish with shark - like tendencies and ambitions ...

Right now , deputy prefect Mr PERSON is the man calling the shots behind the scenes . Consider the facts : PERSON recently removed the secretary - general of Timiş prefect ’s office , PERSON , from his post . The latter had refused to sign an order from the prefect , drawn up by PERSON , handing over possession of a large piece of land in the border village of GPE to V.M. , a ORG senator ...

Deputy prefect ORG whipped PERSON out like a rotten tooth for having the temerity not to put his name to the illegal appropriation of the land by the senator and his pack of hounds . He did not rest until PERSON had been removed from any outfit even remotely concerned with the restitution of land ...

But do n’t be fooled into thinking that PERSON does n’t have problems of his own . He has CARDINAL major problems . The first concerns the land he inherited from his daddy in the village of GPE . QUANTITY of marshland ... Given the pitiable state of his inheritance , PERSON has his eye on a roadside property in the municipality of PERSON . Unfortunately for him , the mayor of PERSON , who chairs the local committee on implementation of LAW , is against the exchange of the CARDINAL pieces of land . Without further ado , ORG suspends him from his post and hands him over to the police , who open CARDINAL criminal investigations against him ... It should be noted that in GPE dealings in real property are coordinated , by law , by the prefects . However , in GPE , the deputy prefect has long since supplanted the prefect by stripping him of all his powers .

ORG ’s biggest personal problem arose on DATE , when he fatally injured the septuagenarian PERSON in an accident . The victim was a shop caretaker ... His executioner , who at the time was sales director of the GPE Radiotel Timişoara company , was driving under the influence of DATE PERSON celebrations . The victim was small and thin . The impact was so sudden and so violent that the bonnet and windscreen of the executioner ’s car were smashed to pieces . The victim ’s internal organs , also in pieces , were scattered over a radius of QUANTITY . PERSON ’s friends in the police said that the executioner ’s car had been travelling at CARDINAL km.p.h . Unfortunately for PERSON , the victim ’s soninlaw is the university lecturer PERSON ...

Initially , ORG obtained a ruling that there was no case to answer , and the case was closed . However , PERSON subsequently sent a memorandum to the Procurator - General of GPE and the case was reopened . Sickened by the machinations of those in power , whose excesses are such that the ORG ’s exploits in GPE surpass even those in the capital , PERSON dismissed his lawyer and lost the case following an appeal by ORG . The executioner was merely ordered to pay the victim ’s family CARDINAL lei in damages . PERSON then made CARDINAL last - ditch attempt to get rid of ORG . Shortly before the appointment of the prefects and deputy prefects , he tried desperately to alert the Civil Service Minister and the Prime Minister to the fact that PERSON was not fit for the job of deputy prefect , as he was guilty of killing through negligence .

But the die has already been cast . The person pulling strings to have ORG appointed is the current Minister of Agriculture , GPE At first , GPE ’s case had been backed up to prime ministerial level by his colleague P.A. , ORG member of parliament for GPE and a university lecturer . But , under pressure from the rector of PERSON , a leading ORG member , PERSON was forced to drop the case unconditionally and hold his tongue . The same sources say that the rector himself had come under intense pressure from GPE [ the Minister of Agriculture ] to persuade PERSON to drop his complaint against ORG . And PERSON , by way of thanks for being found not guilty and having his reputation restored vis - à - vis his superiors , never made any apology , not even a purely formal one , to the victim ’s family .

Our readers are no doubt well aware that ORG is the most ardent supporter of GPE ’s election to the chair of the PSD county branch . ”

On DATE PERSON lodged a criminal complaint with ORG , alleging that the applicant had made several defamatory and insulting statements in his article , in breach of ORG and CARDINAL of LAW . He also applied to be joined as a civil party to the proceedings against the applicant and the DATE review ORG , the party with civil liability .

Although the applicant was summoned to appear and a warrant was issued for him to be brought immediately before the court , he did not attend any court hearing , nor did he produce any evidence in his defence .

In a judgment of DATE , the court rejected the criminal complaint on the ground that there was no evidence in the case file that the applicant had published the article with the intention of insulting or defaming the complainant . The court therefore acquitted the applicant , finding that CARDINAL of the elements constituting the offences of insult and defamation was lacking , namely intent .

However , the court observed that the applicant had accused the complainant of causing a road traffic accident by driving under the influence of alcohol and of unfairly dismissing the secretary - general of the prefect ’s office and the mayor of a municipality . The court considered that those assertions were inaccurate , since the courts which had tried PERSON on a charge of manslaughter had not found him guilty of driving under the influence of alcohol . It also observed that the QUANTITY persons referred to above had been removed from office by order of the prefect , and that there was nothing to suggest that the complainant had influenced the decisions in any way .

In view of the circumstances , the court found that the complainant should be awarded damages since , while the offences of which the applicant stood accused did not fall within the sphere of criminal law , they were such as to render him liable in tort , as he had not checked thoroughly the facts set out in his article . Accordingly , under LAW and CARDINAL of the Civil Code , the court ordered the applicant and the DATE review jointly and severally to pay the complainant MONEY ( ROL ) in respect of the non - pecuniary damage sustained .

The applicant , the DATE review ORG and the complainant all lodged appeals against the judgment with ORG . The applicant appealed against the award of compensation for nonpecuniary damage , arguing that the complainant had not proved the existence of such damage . The complainant , for his part , requested that the applicant be convicted of insult and defamation and that the amount of compensation be increased .

On DATE the court allowed the request for an adjournment lodged by the applicant ’s lawyer . At a hearing on DATE , the applicant ’s lawyer raised an objection of unconstitutionality in respect of the first CARDINAL paragraphs of LAW and requested the court to stay its decision on the merits and to refer the case to ORG . He argued in particular that , for a criminal court to decide on a claim for damages without the civil party having paid stamp duty , when the defendant had been acquitted , was in breach of the constitutional principles of protection of private property and prohibition of discrimination with regard to the payment of taxes and levies . The applicant ’s lawyer alleged that the exemption from stamp duty gave the civil party an unfair advantage over individuals who , in order to have access to a civil court , had to pay stamp duty in proportion to the amount being claimed .

On DATE , under the third and sixth paragraphs of LAW of ORG ( Law no . CARDINAL/CARDINAL ) , the court declared the objection inadmissible on the ground that ORG had already ruled several times , notably on DATE , CARDINAL DATE and DATE and DATE , on the constitutionality of the LAW in question , and had found it to be compatible with LAW .

On DATE the applicant ’s lawyer lodged a memorial with the registry of ORG , objecting that DATE paragraphs of LAW no . CARDINAL/CARDINAL were in breach of LAW . He submitted that the condition laid down in the first paragraph of the section in question for the referral of an objection to ORG , namely that the provision in issue must be decisive for the outcome of the case , allowed the courts a margin of appreciation and was therefore contrary to the constitutional principle of free access to a court . Pointing out that the third paragraph of the section in question ruled out referral to ORG only of objections relating to provisions which had already been found to be unconstitutional , the lawyer concluded that the court should have referred his first objection to ORG .

On DATE the court observed that neither the applicant nor his lawyer had attended any hearings , although the applicant had been repeatedly given notice to appear . The court dismissed the objection of unconstitutionality raised DATE , finding that it had already been examined at the hearing of DATE .

The hearing was held DATE and , in a fresh decision on the merits , the court allowed the complainant ’s appeal and ordered the applicant to pay a criminal fine of ROL CARDINAL,CARDINAL for insult and defamation . It also ordered him , jointly and severally with the DATE review , to pay the complainant ROL CARDINAL in compensation for the nonpecuniary damage sustained .

The court found that the assertions concerning the removal from office of the mayor of a municipality and the complainant ’s having driven while under the influence of alcohol had been defamatory , since they had lacked any factual basis and even the most cursory checking of the facts by the applicant would have revealed the truth . In that connection , the court pointed out that the mayor in question had been removed from office by an order of the prefect dated DATE , published in DATE , and that ORG , in a final judgment of DATE , had found the complainant not guilty in relation to the road traffic accident , taking the view that the victim had been entirely at fault , having crossed the road without due care and attention .

In the circumstances , the court found that the use of the term “ executioner ” had been insulting .

In a dissenting opinion , CARDINAL of the judges took the view that the applicant should have been acquitted , as account should have been taken of the fact that the DATE review ORG had a reputation as a satirical publication which made frequent revelations concerning the professional and private conduct of politicians . He added that the complainant could have obtained satisfaction by making use of his right of reply .

“ Any attack on an individual ’s honour and reputation through words , gestures or other means shall be punishable by a prison sentence of DATE or by payment of a fine . ”

“ Any public statement or allegation concerning an individual which , if true , would render that individual liable to a criminal , administrative or disciplinary penalty or expose him or her to public opprobrium , shall be punishable by a prison sentence of DATE or by payment of a fine . ”

“ Evidence of the truth of such a statement or allegation shall be admissible where it was made in order to protect a legitimate interest . Where the truth of the statement or allegation is proved , no offence of insult or defamation shall be deemed to have been committed . ”

“ Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence . ”

“ The victim of an offence may apply to join the proceedings as a civil party seeking damages against the defendant or the party with civil liability ... ”

The civil action shall be exempt from stamp duty . ”

“ In its decision to convict or acquit the defendant , the court shall also rule on any claims for damages .

When the defendant has been acquitted ... on the ground that one of the elements constituting the offence is lacking , the court may order compensation to be paid in accordance with the rules of civil law . ”

“ The Constitutional Court shall rule on objections raised before the courts relating to the constitutionality of a [ government ] law or decree or of a provision of a [ government ] law or decree which is in force and is decisive for the outcome of the case .

The objection may be raised by the court of its own motion or by CARDINAL of the parties .

Provisions which have been found to be unconstitutional by an earlier decision of ORG ... may not be the subject of an objection of unconstitutionality .

The Constitutional Court shall rule on an interlocutory decision by the court with which the objection of unconstitutionality was lodged ...

The proceedings before the court shall be stayed pending examination of the objection by ORG .

If the objection is declared inadmissible because it does not fulfil the requirements of the first CARDINAL paragraphs , the court shall dismiss it by means of a reasoned decision without referring it to ORG . ”


No violation of Art. 3 (in case of expulsion to Afghanistan)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

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

The applicant claimed that he was born in DATE . The Government contested that and claimed that he was born in DATE . He currently lives in GPE .

On DATE , the applicant ’s older brother , SH , arrived in GPE and made an application for asylum based on the risk to him as the son of a high - ranking member of ORG of GPE ( “ PDPA ” ) . That application was refused by the Secretary of ORG on DATE .

On DATE , SH ’s asylum appeal was allowed by an Adjudicator of the then ORG ( “ IAA ” ) . The Adjudicator accepted that ORG ’s father had been a prominent , high - ranking member of the PDPA who had been in touch with its highest officials and who had also been a member of the central committee responsible for policy making . He also accepted that ORG ’s father was “ known ” by armed factions ; was without any existing political party or tribal protection in GPE ; was living outside GPE ; and would be at risk upon return . The Adjudicator noted that SH had , in DATE , made some contacts and forwarded documents to others on behalf of his father and that a powerful person with political influence had occupied the family land for a considerable time . He concluded that the evidential basis for an historical and DATE interest in SH had been established . In the circumstances , the Adjudicator found that the applicant ’s brother fell “ fairly and squarely ” within the protection category set out by the ORG High Commissioner for Refugees ( “ ORG ” ) as a relative of a former ORG member , and that there were substantial grounds for believing that he would face a real risk of ill - treatment contrary to LAW if he were to be returned to GPE .

As a result , the applicant ’s brother was granted refugee status in GPE by the Secretary of ORG .

The applicant arrived in GPE on DATE and was arrested by the police as an illegal immigrant .

On DATE , he claimed asylum and claimed to be DATE , giving his date of birth as DATE . The factual basis of his asylum claim was similar to that of his brother , SH , and he also relied upon his father ’s previous position as a high - ranking member of the PDPA . He claimed that his father had been a close friend and the personal doctor of several prominent politicians , including PERSON ( the President of GPE DATE ) and other Government ministers . He claimed that , in DATE when the communist regime had collapsed , his father had been forced to flee GPE for GPE . He claimed that his father had continued to be politically active in opposition to a number of warlords and people involved in the current ORG , including Generals PERSON , PERSON and GPE who he had known personally . The applicant claimed that , after his father had left GPE , his family had been forced to move to GPE in eastern GPE where they had lived for over a decade using different surnames so that they would not be identified . DATE , his family had moved to GPE for DATE . During that time , members of ORG had come to their home on CARDINAL or QUANTITY occasions . On the last occasion , they had arrested his uncle who had subsequently been detained for DATE . They had also tried to arrest the applicant ’s brothers . The family had therefore moved to stay with another uncle , but whilst there , CARDINAL of his brothers , ORG , had been shot and killed in DATE . The applicant had travelled to GPE with his mother and a younger brother where he had lived for DATE before travelling alone with an agent to GPE via GPE , GPE , GPE and GPE .

On DATE , CARDINAL social workers from ORG assessed the applicant as being significantly over DATE and in the region of DATE . In coming to that conclusion , they stated that they had considered his physical appearance , general demeanour , account of his life in GPE and GPE and his experiences during his travel to GPE .

On DATE , his application for asylum was refused by the Secretary of ORG , who considered that his account was vague and contradictory , and that it was not plausible that he would not be able to recollect any of the significant details of his life in GPE , his journey to GPE or the activities of his father . In particular , it was not accepted that his father was still politically active because it was implausible that the applicant would not be able to recollect any details of his father ’s activities given that he had remained in relatively regular contact with him . It was also not considered to be credible that the NORP authorities or any warlords would be interested in the applicant given , inter alia , the fact that he had not been politically active himself ; the length of time that had passed since his father had left GPE ; and the fact that he had lived in GPE without problems for DATE before leaving . It was also noted that his father had voluntarily returned on CARDINAL trip to GPE , undermining his claim that his father was at risk there due to his high profile . His claim that the death of his brother , FH , was related to his father ’s political activity was considered to be entirely speculative . His account of events in GPE was rejected because the details of the same were vague and because they contradicted the account that his brother had given at his appeal hearing in DATE . His credibility was considered to be undermined by his failure to claim asylum in GPE , GPE or GPE . Even taking his claim at its highest , it was considered that he could relocate within GPE to avoid any problems from warlords .

On DATE , the applicant ’s appeal was dismissed by an NORP Judge at the then ORG ( “ ORG ” ) . The Immigration Judge acknowledged that the applicant ’s brother ’s asylum appeal had been successful in DATE because the Adjudicator had accepted that his father had occupied a position of prominence and a high - ranking position within the ORG . Nevertheless , the Immigration Judge referred to the later ORG country guideline determination of SO and SO ( KhaD DATE members and family ) GPE CG [ DATE ] UKAIT CARDINAL ( see paragraphs CARDINAL below ) and found that there were differences between the claims of the CARDINAL brothers , including the fact that the applicant had never been involved in any political activity , whilst his brother had carried out some activities on behalf of their father which might have drawn the authorities’ attention to him . In addition , the Immigration Judge did not accept that their father continued to be politically active or to have a high profile in GPE , because the only evidence of any political activity related to events over DATE previously , prior to DATE , when the applicant had still been a small child , and politics and personnel in GPE had changed since that time . Even if his father had continued to be politically active , the Immigration Judge did not accept that the NORP authorities or warlords would have any adverse interest in the applicant , given his lack of political profile and education ; his age on leaving GPE ; the fact that he had only been a small child when his father had been politically active ; and recent political developments in GPE .

The Immigration Judge also made a series of adverse credibility findings against the applicant due to his vagueness when giving evidence ; his failure to claim asylum in safe countries en route to GPE , including GPE , GPE and GPE ; and the discrepancies between his account and that of his brother including , inter alia , the level of contact that had taken place between the various family members since their respective departures from GPE and whether or not one brother ORG had been shot . In particular , it was not accepted that SH would not have mentioned during his own asylum application that one of their brothers had been shot had such an event occurred . Even if his brother ORG had died , the Immigration Judge did not accept that he had been killed by the Mujaheddin , given that the applicant himself had stated that he did not know who had killed him but thought it was the Mujaheddin . The Immigration Judge considered that the applicant had used his age as a convenient cover whenever he did not know the answer to a question even though he had been age - assessed by social workers as being DATE . The Immigration Judge considered that it would have been expected that the applicant would have discussed matters with his family and would have had some awareness of his father ’s political activities .

Finally , the Immigration Judge did not accept that the level of indiscriminate violence in GPE , and in GPE in particular , reached a level such as to constitute a real risk to the applicant .

On DATE , his application for reconsideration was dismissed by a Senior Immigration Judge at the ORG because there had been no error of law .

On DATE , his application for reconsideration was dismissed by ORG because the appeal determination did not disclose any error of law . The findings of fact and the findings in relation to credibility were matters for the Immigration Judge having , as he had done , properly directed himself in relation to the law . The reasons for his findings were clear and carefully expressed .

Section CARDINAL(CARDINAL ) of the Nationality , Immigration and Asylum Act DATE ( “ the NIA Act CARDINAL ” ) , provides a right of appeal against an immigration decision made by the Secretary of ORG for ORG .

Until DATE , appeals in asylum , immigration and nationality matters were heard by the ORG .

From DATE , the then ORG replaced the former system of ORG and ORG ( “ ORG ” ) . Section CARDINAL of the Nationality , Immigration and Asylum Act DATE ( as amended by ORG , etc . ) Act DATE ) provided that a party to an appeal could apply to ORG , on the grounds that the ORG had made an error of law , for an order requiring the ORG to reconsider its decision on the appeal . ORG could make such an order if it thought that the ORG had made an error of law . At the relevant time , all applications for reconsideration went through a “ filter procedure ” , so that an application for reconsideration was first made to an authorised immigration judge of the ORG . If the immigration judge refused to make an order for reconsideration , the applicant could renew the application to ORG , which would consider the application afresh .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen . Section CARDINAL ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right .

Country guideline determinations of both the former ORG and ORG are to be treated as an authoritative finding on the country guidance issue identified in the determination , based upon the evidence before the members of the ORG or the ORG that determined the appeal . Unless expressly superseded or replaced by a later country guideline determination , country guideline determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence .

In the country guideline determination of SO and SO ( KhaD DATE members and family ) GPE CG [ DATE ] UKAIT CARDINAL , the ORG held that the issue of risk to persons having a connection with the ORG had to be considered by weighing up a number of factors including some personal to the individual . Furthermore , it could not be said that former membership of ORG ( “ KhaD ” - the secret service wing of the NORP PDPA regime in GPE until DATE ) or the ORG would generally suffice to establish a risk of persecution or treatment contrary to LAW on return unless an individual had personally crossed or had had “ concrete conflicts ” with people who were now in power . In that context , the ORG considered that past or present personal conflicts were more important than political conflicts . The ORG further held that in assessing whether family members of a PDPA and/or a NORP member would be at risk , there may be factors reducing or removing risk such as the death of the ORG / KhaD member , and the amount of time that had elapsed since his death .

In the country guideline determination of ORG ( LAW ) : Indiscriminate violence ) GPE CG [ DATE ] UKAIT CARDINAL , promulgated on DATE , the then ORG held that there was not in GPE such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would , solely by being present there , face a real risk which threatened the civilian ’s life or person , such as to entitle that person to the grant of humanitarian protection , pursuant to ORG ) and ORG .

Council Directive CARDINAL/CARDINAL/EC of DATE ( on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted : “ the LAW ” ) has the objective , inter alia , of ensuring ORG Member GPE apply common criteria for the identification of persons genuinely in need of international protection ( recital CARDINAL of the preamble ) .

In addition to regulating refugee status , it makes provision for granting subsidiary protection status . Article CARDINAL(e ) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin and who is unable , or , owing to such risk , unwilling to avail himself of the protection of that country .

“ Serious harm ” is defined in LAW as consisting of :

“ a ) NORP death penalty or execution ; or

b ) torture or inhuman or degrading treatment of an applicant in the country of origin ; or

c ) serious and individual threat to a civilian ’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict ” .

The Qualification Directive was transposed into domestic law by LOC .

NORP In DATE ORG issued ORG from GPE ( “ the DATE ORG Guidelines ” ) and set out the categories of NORP considered to be particularly at risk in GPE in view of the security , political and human rights situation in the country at that time .

With regard to persons associated with the former ORG , those PERSON stated the following :

“ ORG of GPE ( PDPA ) was formed in DATE by PERSON on ORG ideology due to domestic discontent and the absence of political freedoms . It believed in a CARDINAL - party , heavily secularized state , and was particularly intolerant of political opposition from its NORP rivals . The ORG eventually split into the Khalq ( People ) and ORG ( ORG ) branches . After the PERSON faction of the ORG deposed the ruling party through a coup carried out by its supporters in the military in DATE ( the Saur Revolution ) , it formed a government that was violently intolerant of political opposition . The NORP - supported PDPA government ’s attempts at forcible reform of polity and society resulted in a surge of support for its NORP rivals , who attempted to oust it with NORP support . In DATE , the CARDINAL factions reunited under NORP pressure and its name was changed to ORG . It collapsed in DATE when , following the Peshawar Accords , Mujaheddin troops entered GPE and the last President of a communist government in GPE , PERSON ( previously head of the secret service ORG ) had to seek refuge in a ORG - building in GPE where he stayed until he was killed by NORP troops entering GPE in DATE .

In DATE , a congress of ORG of GPE ( PDPA ) took place in GPE , which led to the creation of PERSON ( ORG ) , a party registered in DATE then comprising CARDINAL members . Former ORG members have also reportedly founded several other parties . Most recently , a new parliamentary group , ORG , was inaugurated on DATE as a broad coalition of former and current militia leaders , commanders from the anti - NORP resistance , ex - NORP leaders , and various representatives of social and ethnic groups .

Significant numbers of the former ORG of GPE ( PDPA ) DATE subsequently renamed ORG – members and former security officials , including ORG ( ORG ) , are working in the Government .

While many former ORG members and officials of the communist government , particularly those who enjoy the protection of and have strong links to influential factions and individuals in the current Government , are generally not at risk , some high - ranking members of the ORG continue to face a risk of persecution . Such risk depends on the individual ’s personal circumstances , including family background , professional profile , political links , and whether he or she has been associated , or perceived to be associated , with the human rights violations of the communist regime in GPE DATE .

Former PDPA high - ranking members without factional protection from NORP political parties , tribes or persons in a position of influence , who may be exposed to a risk of persecution , include the following :

• high - ranking ORG members , irrespective of whether they belonged to the ORG or PERSON faction of the party may be at risk if they are known and had a public profile . These encompass high - ranking members of ORG and their family members and secretaries of ORG in public institutions ; and

• former security officials of the communist regime , including ORG members , also continue to be at risk , in particular from the population – e.g. families of victims of KhaD ill - treatment – given their actual or perceived involvement in human rights abuses during the communist regime .

Former PDPA high - ranking members , or those associated with the commission of human rights violations during the former NORP regime , may also be at risk of persecution by mujaheddin leaders , and armed anti - Government groups . ”

On DATE , ORG issued updated ORG needs of ORG from GPE ( “ the DATE LAW ” ) . Those Guidelines observed , inter alia , under “ I. Introduction ” :

“ These Guidelines supersede and replace the DATE ORG from GPE . They are issued against a backdrop of a worsening security situation in certain parts of GPE and sustained conflict - related human rights violations as well as contain information on the particular profiles for which international protection needs may arise in the current context in GPE .

ORG considers that individuals with the profiles outlined below require a particularly careful examination of possible risks . These risk profiles , while not necessarily exhaustive , include ( i ) individuals associated with , or perceived as supportive of , ORG and the international community , including ORG ( ORG ) ; ( ii ) humanitarian workers and human rights activists ; ( iii ) journalists and other media professionals ; ( iv ) civilians suspected of supporting armed anti - Government groups ; ( v ) members of minority religious groups and persons perceived as contravening Shari’a law ; ( vi ) women with specific profiles ; ( vii ) children with specific profiles ; ( viii ) victims of trafficking ; ( ix ) lesbian , gay , bisexual , transgender and intersex ( PERSON ) individuals ; ( x ) members of ( minority ) ethnic groups ; and ( xi ) persons at risk of becoming victims of blood feuds .

In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties ORG considers that the situation can be characterized as CARDINAL of generalized violence in GPE , GPE , GPE , and parts of GPE and GPE provinces . Therefore , NORP asylum - seekers formerly residing in these areas may be in need of international protection under broader international protection criteria , including complementary forms of protection . In addition , given the fluid and volatile nature of the conflict , asylum applications by NORP claiming to flee generalized violence in other parts of GPE should each be assessed carefully , in light of the evidence presented by the applicant and other current and reliable information on the place of former residence . This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication .

ORG generally considers internal flight as a reasonable alternative where protection is available from the individual ’s own extended family , community or tribe in the area of prospective relocation . Single males and nuclear family units may , in certain circumstances , subsist without family and community support in urban and semi - urban areas with established infrastructure and under effective Government control . Given the breakdown in the traditional social fabric of the country caused by DATE of war , massive refugee flows , and growing internal migration to urban areas , a case - by - case analysis will , nevertheless , be necessary .

In light of the serious human rights violations and transgressions of international humanitarian law during GPE ’s long history of armed conflicts , exclusion considerations under LAW may arise in individual claims by NORP asylum - seekers . Careful consideration needs to be given in particular to the following profiles : ( i ) members of the security forces , including ORG agents and high - ranking officials of the communist regimes ; ( ii ) members and commanders of armed groups and militia forces during the communist regimes ; ( iii ) members and commanders of the ORG , PERSON and other armed anti - Government groups ; ( iv ) organized crime groups ; ( v ) members of NORP security forces , including the NDS ; and ( vi ) pro - Government paramilitary groups and militias . ”

Members of the former ORG and their families were not included within the potential risk profiles set out in DATE ORG .


Preliminary objection allowed (ratione temporis);Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The applicant was born in DATE and lives in GPE , GPE . He is the owner of the company AS Giga , with a registered office in GPE . The company has been involved in reconstructing the public heat supply of the city .

On DATE the GPE police initiated criminal proceedings against the head of ORG of ORG . The proceedings concerned the alleged abuse of his position in contracting a loan with ORG for reconstructing the city 's heat supply in an amount higher than approved and guaranteed by ORG . In the context of these criminal proceedings ORG ( GPE prokurör ) approved a search of the applicant 's company 's LOC on DATE in order to determine whether there were any original bookkeeping documents which might provide information with regard to the unauthorised use of the loan .

On DATE and DATE the GPE police searched the company 's LOC and seized respectively CARDINAL and CARDINAL files of documents , which comprised practically all of the company 's bookkeeping records from DATE . The documents seized were recorded by the files and not individually . The applicant estimates that their total number amounted to CARDINAL .

All seized files were placed in a separate room in ORG for examination by the ORG auditors , who were assisted by staff of the financial department of ORG .

On DATE the applicant filed a complaint with ORG alleging that the police search and seizure of documents had been unlawful . On DATE he complained also to ORG ( Riigiprokurör ) , submitting that the wholesale nature of the seizure and the failure to make an individual record of the seized items were inconsistent with the requirements of Articles CARDINAL and CARDINAL of LAW .

On DATE the police informed the applicant that he was free to consult the seized documents at the police station for the continued activities of his company .

On DATE ORG instructed the police to make a record of the individual characteristics of the seized documents and to return the documents irrelevant to the criminal investigation .

On DATE , in response to the applicant 's complaint , ORG informed him of his instructions to the police to correct the deficiencies in the recording of documents and pointed out that the police had given the applicant access to the documents with the possibility of making photocopies . The prosecutor also stated that his action was open to appeal to ORG .

On DATE the applicant filed a complaint with ORG . On DATE the police returned to the applicant 's company CARDINAL previously seized files .

By a letter of CARDINAL DATE the Deputy ORG informed the applicant that he had examined the complaint . He noted that the searches had been approved by the prosecutor , but acknowledged that , due to the large number of documents , their recording had been deficient . He further noted that ORG had ordered the police to remove the shortcomings . He accepted the measures of ORG and the reply issued to the applicant on DATE . It was also noted that the applicant was free to use the documents during their examination by the ORG auditors .

On DATE the applicant 's company filed a complaint with ORG ( Tartu Halduskohus ) asking it to declare unlawful the measures of ORG in connection with the inspection of the company 's records as well as the police search and seizure of documents .

By a judgment of CARDINAL DATE ORG dismissed both parts of the company 's complaint . Regarding the impugned police acts the court found that , according to LAW , it lacked competence to deal with complaints which fell under civil and criminal procedure . ORG could not interfere with criminal proceedings and examine the lawfulness of the acts of the bodies of preliminary investigation .

In an appeal against the judgment the applicant argued that the police had abused its powers and that its actions violated the provisions of LAW , LAW and the Convention .

On DATE ORG ( GPE ) confirmed the lack of competence to review police actions in criminal proceedings . It held that in the administrative proceedings it could not be examined whether the police , in effecting the search and seizures , had acted contrary to LAW , the LAW or the LAW . According to LAW , supervision over the lawfulness of measures taken by the police in the context of criminal proceedings rested with the public prosecutor , not with the administrative court . ORG quashed in part the judgment of the first instance court and terminated the administrative proceedings in respect of the complaint concerning the police actions .

On DATE ORG ( NORP ) refused to grant the company leave to appeal .

In the meantime , on DATE , the police decided to return CARDINAL previously seized files . The applicant refused in writing to accept them , stating that their seizure had not been documented and that the act of return did not describe each document individually .

On DATE these documents were sent to ORG ( ORG ) , where the applicant 's criminal case was pending ( see paragraph CARDINAL below ) . The applicant agreed to accept the documents in DATE .

Of the CARDINAL files seized from the applicant 's company on CARDINAL and DATE , CARDINAL files have been returned to the company . The applicant estimates that CARDINAL documents are still not returned .

On DATE , following the seizure of documents , the GPE police initiated criminal proceedings against the applicant on the suspicion of having misused his official position in the company .

On DATE the applicant was formally charged with misusing his position as well as with tax evasion and falsification of documents , but on DATE the charge concerning misuse of position was dropped .

On DATE a further charge of fraud was brought against the applicant .

On DATE the preliminary investigation was complete and the case was sent to ORG for trial .

By a judgment of CARDINAL DATE ORG convicted the applicant of the charges and imposed a suspended sentence of DATE and DATE imprisonment . It did find that in seizing of documents from the applicant 's company the preliminary investigation authorities had infringed upon the procedural requirements stipulated in LAW . In particular , they had seized documents which were not relevant as evidence in the criminal case , had failed to record the documents individually and had taken away entire files . This had hampered the preliminary investigation of the case as well as its examination by the court .

On DATE the applicant lodged an appeal against the judgement with ORG . He contended , inter alia , that the indiscriminate seizure of documents from his company AS Giga on DATE and DATE violated his rights of defence since he was deprived of the opportunity to submit necessary documents which were in the hands of the police .

By a judgment of CARDINAL DATE ORG rejected the applicant 's appeal on the procedure and upheld his conviction . As regards the procedure , it found that the seizure of documents was conducted in accordance with the requirements of LAW . The records contained a description of the seized files , their number and the number of pages therein . The documents were thus sufficiently individualised .

On DATE the applicant lodged an appeal with ORG , challenging his conviction as well as the procedure , claiming that the manner in which the seizure had been carried out had adversely affected his defence rights .

On DATE ORG upheld the judgments of the lower courts with regard to the applicant 's conviction . It acknowledged that in effecting the seizure of documents the procedural norms were not strictly followed , but found that such infringement was not substantial and did not hinder the thorough , complete and objective examination of the case or prevent the court from rendering a lawful and substantiated judgment . It considered that a detailed description of documents in the record of seizure was necessary only when they were used as evidence in the criminal case .

Article CARDINAL of the LAW guarantees everyone whose rights and freedoms are violated the right of recourse to the courts . Everyone has the right , while his or her case is before the court , to petition for any relevant law , other legal act or measure to be declared unconstitutional . The courts shall observe the LAW and shall declare unconstitutional any law , other legal act or measure which violates the rights and freedoms under LAW or which is otherwise in conflict with LAW .

Article CARDINAL of the LAW provides that everyone has the right to compensation for moral and material damage caused by the unlawful action of any person .

Article CARDINAL of the LAW stipulates that everyone has the right to the inviolability of private and family life . State agencies , local governments and their officials shall not interfere with the private or family life of any person , except in cases and pursuant to a procedure provided for by law in order to protect health , morals , public order , or the rights and freedoms of others , to prevent a criminal offence , or to apprehend a criminal offender .

Article CARDINAL of the LAW provides for the inviolability of the home . It stipulates that no one 's dwelling , real or personal property under his or her control , or workplace shall be forcibly entered or searched , except in the cases and pursuant to procedure provided for by law to protect public order , health or the rights and freedoms of others , to prevent a criminal offence , to apprehend a criminal offender , or to ascertain the truth in criminal proceedings .

The law provides that ORG office is an agency of the executive power , which is under the administration of the Minister of ORG and has the status of an independent agency . It supervises the lawfulness of the preliminary investigation in criminal cases as well as the lawfulness of the police activities . In the exercise of their duties public prosecutors are independent and act according to law and their convictions .

According to LAW , ORG is not competent to deal with claims and complaints which fall under civil and criminal procedure . LAW ) of the LAW provides that ORG is competent to deal with appeals against the organs of the executive ORG power or the legal acts or action by CARDINAL of its officials .

ORG has stated in respect of Article CARDINAL § CARDINAL(CARDINAL ) of the Code that legal acts and actions by ORG , as a Government official , can be appealed to ORG and , since an appeal against his / her decisions is not provided for in LAW , control of such acts and action falls within the competence of ORG . In exercising this function , ORG does not interfere with the criminal proceedings in question and does not exercise supervision over the lawfulness of the actions of the organs of preliminary investigation . The ORG examines only whether ORG dealt lawfully with the complaint submitted ( decision of ORG of DATE , PERSON DATE , CARDINAL , CARDINAL ) .

Under Article CARDINAL ) of the Code , the public prosecutor exercises his powers independently and is guided only by law .

According to LAW supervision of the lawfulness of activities of the organs of preliminary investigation rests with the public prosecutor .

Under paragraph CARDINAL of this Article the public prosecutor has the power , inter alia , to annul the unlawful and unfounded orders of investigators , to give written instructions to the investigators , to approve searches and to remove a investigator from further investigation if the investigator has acted unlawfully .

Paragraph CARDINAL provides that the written instructions of the Prosecutor are binding on the authorities carrying out preliminary investigation .

NORP Under Articles CARDINAL and CARDINAL of the Code , complaints regarding the activities of the police investigator and the police examiner are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed against to the higher level public prosecutor .

Article CARDINAL of the Code stipulates that if an investigator has sufficient reason to believe that in a certain room , location or in a person 's possession there might be items of significance to a criminal case he conducts a search to find them . A search may be conducted on the basis of the decision of an examiner or investigator and only upon the authorisation of the public prosecutor or his deputy . If an investigator knows the exact location of an item , which is of significance to a criminal case , he conducts the seizure of that item .

According to LAW , an investigator , in performing a search and a seizure , can take away only those items and documents which are relevant to a criminal case . Each seized item and document must be entered in a record indicating their exact amount , format , weight and individual characteristics .

Sub - chapter CARDINAL of LAW of the Code deals with the protection of personal rights . It cites specifically defamation ( LAW ) , protection of private life ( LAW ) and protection of a person 's name ( LAW ) .

Article CARDINAL paragraph CARDINAL of the LAW provides that a person has the right to demand termination of a violation of the inviolability of his or her private life and to demand compensation for moral and material damage caused thereby .

Paragraph CARDINAL lists CARDINAL acts which constitute a violation of the inviolability of private life , if performed without legal basis or against a person 's will . These acts include a ) entry into the dwelling or onto the property of a person ; b ) search of a person or of objects in his or her possession ; c ) use of a person 's manuscripts , correspondence , notes or other personal documents or information .

Paragraph CARDINAL stipulates that a court may also declare that an act not indicated in section CARDINAL violates the inviolability of a person 's private life if the intrusion is effected without a legal basis or against the person 's will .

LAW states that , in cases provided for by law , a person may also demand termination of the violation of his or her personal rights which are not specified in LAW as well as compensation for moral and material damage caused thereby .

According to LAW , measures for the protection of civil rights include : a ) recognition of rights ; b ) elimination of violations and prevention of further violations ; c ) restoration of the situation that existed prior to violation ; d ) compensation for damage .

Article CARDINAL paragraph CARDINAL of the LAW provides that moral damage caused to a person shall be compensated for by the person who caused the damage . The latter person is released from the obligation to compensate for moral damage if the person proves that he or she is not at fault for causing the damage .

Paragraph CARDINAL of this LAW states that if there has been a violation of personal rights , a court will decide on the basis of the facts of the case whether the violation caused any moral damage .

Paragraph CARDINAL stipulates that in determining the amount of compensation , a court shall take into account the extent and nature of the caused moral damage as well as the degree of fault of the person who had caused the damage .

In a civil case between CARDINAL individuals concerning eviction from a residence , in which the plaintiff had asked the competent civil court to declare his eviction unlawful , ORG held that in so far as the applicant 's action concerned the alleged violation of personal rights , his claim fell to be considered under ORG of LAW . LAW was not relevant in deciding on an action concerning the protection of personal rights . Although the request of the applicant to declare his eviction unlawful was not a civil claim which would fall under LAW , the question of lawfulness of the impugned measure was relevant in determining whether there had been a violation of personal rights ( judgment of ORG DATE , case no . II-CARDINAL/CARDINAL/CARDINAL ) .

In a case which concerned an action for damages against the Government in connection with a search by the police of the applicant 's home and the seizure of personal objects , ORG found that the claim fell to be considered under LAW . It held however , that there had been no violation of the inviolability of the applicant 's private life within the meaning of LAW as the search and seizure had been lawful under LAW and CARDINAL of LAW ( judgment of ORG of DATE , case no . II-CARDINAL/CARDINAL/CARDINAL ) .

In a case concerning a compensation claim for moral damage suffered as a result of the unlawful acts of the police , which included a search of the plaintiff 's personal belongings on suspicion of shoplifting , ORG found that the plaintiff 's personal rights had been violated and ordered the Government to pay damages . The court relied , inter alia , on LAW and Articles CARDINAL ( CARDINAL ) , CARDINAL , and CARDINAL ( CARDINAL ) and ( CARDINAL ) of ORG ( judgment of ORG DATE , case no . II-CARDINAL/CARDINAL/CARDINAL ) .

The civil courts have also considered claims of violation of personal rights presented , inter alia , in connection with unlawful detention and conviction , opening of prisoners ' correspondence and defamation .


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

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

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

On DATE the applicant was sentenced to CARDINAL years’ imprisonment and was committed to PERSON . Since that date he has been continuously detained in several penitentiary facilities in GPE , PERSON , PERSON , GPE , PERSON and PERSON . On an unspecified date the applicant was transferred to FAC where he is currently detained .

The parties gave partly differing accounts of the conditions of the applicant ’s detention .

The applicant maintained that throughout his detention he was held in overcrowded cells .

Without submitting the exact statistics , the Government acknowledged that during the applicant ’s detention in FAC he had spent DATE in a cell in which the statutory minimum size of CARDINAL m² per person had not been respected . The Government did not comment on the level of overcrowding in the remaining penitentiary facilities . More recently , the ORG also submitted that on an unspecified date , presumably in DATE , the applicant had been placed in a cell in which the statutory minimum standard of CARDINAL m² per person was respected . The applicant did not contest this submission .

The applicant lodged several complaints with the penitentiary authorities regarding the conditions of his detention . CARDINAL of them was considered well - founded .

The applicant brought a civil action in tort against ORG statio fisci PERSON to seek compensation for the infringement of his personal rights . On DATE ORG dismissed the applicant ’s claim . The applicant appealed . On DATE the applicant was requested to pay a basic court fee in the amount of ORG ( approximately EUR CARDINAL.CARDINAL ) . In reply , the applicant requested the court to exempt him from payment of the basic court fee arguing that he was detained and lacked financial resources . On DATE the court dismissed the applicant ’s request stating that he had already been exempted from paying most of the court fees . On an unspecified date ORG rejected the applicant ’s appeal on formal grounds . The applicant has not brought a civil action in respect of the remaining period of his detention .

( See PERSON and CARDINAL other applications v. GPE , no . CARDINAL/CARDINAL ) .


THE MUNICIPAL SECTION OF ANTILLY v. FRANCE

The applicant is LAW in the municipality of Argilly ( Côte - d’Or ) . It is represented before the ORG by PERSON , of ORG .

The community of ORG has existed since time immemorial and owns property ( forests , pastures , a town hall ) , its title to which is undisputed .

At the time of the French Revolution the municipality of Argilly was created , incorporating the community of ORG . In accordance with the law , the latter was established as a section of the municipality and remained the owner of the property it had owned previously .

On DATE ORG , which managed the section ’s property and rights , resolved to bid for a plot of farm land in the municipality of Argilly and within the municipal section of ORG .

On DATE the prefect of the Côte d’Or département applied to ORG to have the municipal section ’s resolution of CARDINAL DATE set aside .

In a judgment of DATE ORG set aside the resolution of DATE on the ground that the municipal section had no power to take a decision on the acquisition of land .

On DATE ORG applied to the ORG d’Etat to have that judgment varied or quashed . It firstly contested that it lacked jurisdiction to acquire real property . It further argued that the impugned judgment was confiscatory visà - vis the municipal section and consequently infringed LAW . It lastly alleged that it had not had a fair hearing , contrary to LAW .

On DATE the ORG d’Etat dismissed ORG application holding as follows :

“ The fact , asserted by [ the applicant municipal section ] , that it had not been possible , for want of sufficient financial resources to instruct a lawyer , for it to properly prepare its defence ... has no bearing on the lawfulness of the judgment being challenged .

The proceedings in ORG were adversarial , in accordance with the provisions of ORG , and it can not avail the applicant municipal section to pray in aid the provisions of LAW ... , which do not apply in the instant case .

... it follows [ from the provisions of LAW ] that the acquisition of property is not within the powers of the board of management of a municipal section .

The impugned judgment , which denied the [ applicant municipal section ] the right to acquire a parcel of land , did not infringe the rights it had over the property it owned ; the ground of appeal based on the judgment ’s violation of the LAW and of the provisions of LAW ... which protect the right of property accordingly fails . ”

NORP LAW ORG and regional authorities – Article CARDINAL

“ The local and regional authorities of the Republic are the municipalities , the départements and the overseas territories . Any other local or regional authority shall be created by law .

Those territories shall be freely administered by elected councils and under the conditions provided for by the law . ”

Municipalities Code – Book V – Interests specific to certain categories of inhabitant

LAW section

“ Any part of a municipality permanently and exclusively vested with property or rights distinct from those of the municipality shall constitute a municipal section .

A municipal section shall have legal personality . ”

“ The property and rights of the section shall be managed by the municipal council , the mayor and , in the cases provided for by Articles L. CARDINAL - CARDINAL , L. CARDINAL - CARDINAL , L. CARDINAL - CARDINAL , L.CARDINAL - CARDINAL , L CARDINAL - CARDINAL , L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL of this Code , by a board of management and its chairman . ”

The members of the board of management , who are to be chosen from among the persons eligible to stand for election to the municipal council of the municipality to which the municipal section belongs , shall be elected according to the same rules as the municipal councillors of municipalities with under CARDINAL inhabitants ...

The mayor of the municipality to which the municipal section belongs shall be a member of the board of management ex officio . ”

ORG “ Subject to the provisions of Article CARDINAL , the board of management shall decide on the following matters :

ORG entered into with the municipality to which it belongs or another municipal section ;

Sale , exchange or lease for DATE or more of the section ’s property ;

Change in the use of that property ;

Settlements and legal proceedings ;

Acceptance of gifts ;

Membership of a landowners’ association or any other financial pooling organisation ;

Setting up of a union of sections ; and

Appointment of representatives to represent the municipal section ;

The chairman of the board of management shall take the necessary steps to ensure the execution of those decisions .

COMPLAINTS

Relying on LAW , the applicant municipal section complained of not having had a fair hearing because it had not been possible for it to prepare its defence properly for want of sufficient financial resources , unlike the public authorities which had been its opponents in the proceedings . In its submission , that inequality of means amounted to a breach of the principle of the equality of arms .

NORP The applicant municipal section further considered itself the victim of a violation of its right to the peaceful enjoyment of its possessions as secured by LAW .


No violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 8 - Right to respect for private and family life;Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in Vratsa .

At TIME on DATE the applicant 's fiveyearold son was playing in the street and started spraying a neighbour , Mr PERSON , with water from a bottle . According to the findings of the national courts which examined the case later , PERSON asked him to stop . The applicant 's son did not heed his request . PERSON then took a fivecentimetrelong piece of tile and threw it at the applicant 's son , hitting him in the forehead and the left eyelid . The injuries suffered by the boy were a longitudinal wound on the left eyebrow measuring CARDINAL by QUANTITY and a bruised lower left eyelid measuring CARDINAL by QUANTITY . The applicant alleged that his son had in addition suffered psychological trauma .

On DATE the applicant , acting on behalf of his son , lodged with ORG ( PERSON районен съд ) a criminal complaint and a claim for damages against M.T. He alleged that M.T. had wilfully inflicted actual minor bodily harm on his son and requested that he be sentenced to DATE imprisonment and be ordered to pay CARDINAL old NORP levs ( ORG ) , plus interest , as compensation for his son 's pain and suffering .

At the first hearing , which took place on DATE , the court invited the parties to settle . PERSON expressed his regret and said that he was willing to reach a settlement with the applicant , but the latter refused . The court adjourned the case to allow the parties to call witnesses .

At the next hearing , held on DATE , the court again unsuccessfully invited the parties to settle . It heard LANGUAGE and CARDINAL witnesses and adjourned the case to allow the applicant to call CARDINAL more witnesses .

QUANTITY hearings , listed for DATE , CARDINAL DATE , DATE and DATE , failed to take place : the first because witnesses called by the applicant did not appear ; the second because the applicant , who was taking care of his sick son in hospital , and PERSON 's lawyer were absent ; the third because the applicant was ill and could not attend ; and the fourth because neither the applicant , who was ill , nor PERSON appeared . At the fourth hearing the court noted that PERSON had not given good reasons for his absence and ordered that he be compelled to attend the next hearing .

At the next hearing , on DATE , the court again invited the parties to settle , without success . It heard one witness and asked an expert to give an opinion on the exact extent of the injuries suffered by the applicant 's son . The applicant increased the claim for damages to ORG CARDINAL .

At a hearing held on DATE , in spite of the absence of the applicant 's lawyer , the court heard the expert and admitted his report in evidence . The applicant requested a neurological expert report on his son 's condition . The court refused his request and heard the parties ' closing arguments . In a judgment of DATE it found PERSON guilty of wilfully inflicting actual minor bodily harm on the applicant 's son , contrary to LAW ( see paragraph CARDINAL below ) . It sentenced him to DATE imprisonment , suspended . It awarded the applicant 's son ORG CARDINAL,CARDINAL , plus interest .

The applicant appealed to ORG ( PERSON окръжен съд ) , arguing that there had been material breaches of the rules of procedure , that the court had erred in assessing the facts and that the sentence was too lenient .

A hearing listed for DATE was adjourned as PERSON 's lawyer was busy with another case and could not attend .

At a hearing held on DATE the court unsuccessfully invited the parties to settle . It heard their closing arguments and reserved judgment .

On DATE ORG quashed the lower court 's judgment and remitted the case . It held that by proceeding on DATE in the absence of the applicant 's lawyer the lower court had committed a material breach of the rules of procedure . The court went on to say that the failure to question CARDINAL witnesses requested by the applicant and to appoint a neurological expert had led to an insufficient evidentiary basis .

NORP On remittal , ORG held a hearing on DATE . It heard M.T. The applicant reiterated his request for a neurological expert to be appointed and increased the claim for damages to LAW . The court ordered a medical report , to be drawn up by CARDINAL experts , and adjourned the case .

At the next hearing , which took place on DATE , the court heard a medical expert and CARDINAL witness , and admitted the expert 's report in evidence . The applicant requested a further expert report , to be drawn up by CARDINAL experts . The court granted his request .

QUANTITY hearings , listed for DATE and CARDINAL DATE , failed to take place , the first because the applicant was ill and the second because PERSON 's lawyer was attending a colleague 's funeral .

A hearing was held on DATE . PERSON asked the court to adjourn the case , as his lawyer was absent . The court refused his request , saying that the case had already been adjourned many times and that the request was an abuse of process . It heard the parties ' closing arguments and , in a judgment of DATE , found PERSON guilty of inflicting minor bodily harm on the applicant 's son . It sentenced him to DATE imprisonment and ordered him to pay the applicant 's son CARDINAL new NORP levs ( ORG ) , plus interest .

Both the applicant and PERSON appealed to ORG .

At a hearing held on DATE PERSON 's lawyer asked the court to discontinue the proceedings , as the applicable limitation period had expired . In a judgment of DATE ORG once again quashed the lower court 's judgment and remitted the case . It held that by proceeding in the absence of PERSON 's lawyer at the last hearing the lower court had infringed his defence rights . It had also failed to duly admit for examination the applicant 's increased claim for damages . The court went on to say that it could not rule on the merits of the case , as the limitation period had expired in DATE . However , it could not discontinue the proceedings on this ground , such matters falling within the exclusive jurisdiction of the firstinstance court . It therefore instructed that court to discontinue them .

NORP In a decision of DATE ORG discontinued the proceedings , noting that the limitation period had expired . The alleged offence had been committed on DATE , that is , CARDINAL and a DATE , which barred any further prosecution . Upon an appeal by the applicant , ORG upheld the decision discontinuing the proceedings in a judgment of DATE . A subsequent appeal by the applicant was dismissed by ORG ( NORP касационен съд ) on DATE .

Article CARDINAL § CARDINAL of the DATE LAW makes it an offence wilfully to inflict actual minor bodily harm , defined as an injury to health other than those specifically set out in Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Code , which deal with grievous and intermediate bodily harm . The maximum penalty on conviction is DATE imprisonment or compulsory labour . Aggravated actual minor bodily harm , which includes cases where it has been inflicted on a child under DATE , carries a maximum penalty of DATE imprisonment ( Article CARDINAL § CARDINAL ( CARDINAL ) of the Code ) .

Minor bodily harm is privately prosecutable ( LAW ) . The prosecution is thus brought directly by the victim of the offence and not by the public prosecutor ( LAW ( CARDINAL ) of LAW , superseded by LAW ( CARDINAL ) of LAW ) . In exceptional cases , where the aggrieved parties can not ensure the defence of their interests because of frailty or dependency on the alleged perpetrator , the public prosecutor may bring a prosecution in their stead or intervene in the proceedings ( Articles CARDINALa of the DATE Code and Articles CARDINAL of the DATE Code ) .

The law and practice concerning limitation periods for the prosecution of criminal offences have been described in DATE and CARDINAL of the ORG 's judgment in the recent case of GPE v. GPE ( no . CARDINAL , DATE ) .

The victim of a tort which is also a privately prosecutable criminal offence has the choice of bringing a claim against the alleged tortfeasor in the civil courts , or of making a civilparty claim in the context of criminal proceedings ( LAW , superseded by LAW ) .

Under LAW of LAW ( superseded by LAW ) , the examination of a civilparty claim should not lead to an adjournment of the criminal case . If the proceedings are discontinued the claim is not examined , but may be brought separately in a civil court ( LAW of LAW , superseded by LAW ) . The criminal court rules on the claim only when giving judgment on the merits of the criminal case , even if in that judgment it finds that the accused 's criminal liability has been extinguished ( LAW , superseded by LAW ; and реш. № CARDINAL от DATE г. по ORG № CARDINAL , ORG , PERSON ) .


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

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

In a final decision of DATE , ORG convicted the applicant of fraud , sentenced her to DATE imprisonment and awarded damages to the victim . The court did not address the argument that the offence had been pardoned by Decree no . CARDINAL/CARDINAL .

On DATE the applicant was placed in detention , where she remained until DATE .

In a final decision of DATE , ORG acting on an application of PERSON General ( recurs PERSON anulare ) , quashed the final decision of DATE and ended the criminal trial against the applicant on the ground that the offences committed had been pardoned . It upheld the remainder of the decision .

On DATE the applicant lodged an action with ORG , under Articles CARDINAL of LAW , seeking compensation from the ORG for the damage caused by the “ severe miscarriage of justice which had led to her illegal detention for DATE ” . She claimed CARDINAL NORP lei ( ROL ) .

The case was tried by CARDINAL courts , corresponding to CARDINAL levels of jurisdiction . The courts examined the case either under LAW ( “ ORG ” ) or under LAW . In her pleas the applicant invoked LAW supplemented by the ORG provisions above .

In a final decision of DATE ORG rejected the applicant ’s action . It considered that the facts of the case allowed for the application of LAW ORG as interpreted by ORG decision no . CARDINAL of DATE ( see paragraph CARDINAL below ) . However , it considered , for the first time , that the applicant should have brought her claims within DATE from the date on which her conviction had been quashed ( LAW ORG ) . As she failed to do so , her action was time - barred .

On DATE ORG delivered an attestation informing the applicant that her action had been rejected as timebarred .

On DATE the applicant obtained a copy of the final decision of CARDINAL DATE , after several unsuccessful attempts and complaints lodged with ORG and ORG concerning the unreasonable delay in the drafting of the court decision .

Decree no . CARDINAL/CARDINAL on the pardon of certain criminal offences and the reduction of various sentences reads as follows , in so far as relevant :

“ Criminal offences for which a sentence of up to DATE imprisonment has been imposed shall be pardoned . ”

The relevant provision on the pardon in the Criminal Code reads as follows :

“ ( CARDINAL ) The pardon extinguishes the criminal responsibility for the act committed ...

( CARDINAL ) The pardon does not affect ... the rights of the victim . ”

The relevant Articles of the Civil Code state as follows :

“ Any act committed by a person which causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence . ”

According to the provisions of LAW no . CARDINAL/CARDINAL the general time - limit for lodging an action for compensation is DATE from DATE when the damage occurred .

The relevant Articles of the ORG prescribe :

“ Anyone who has been convicted by means of a final decision is entitled to compensation from the ORG for any loss or damage sustained where after a retrial it is held in a judgment against which no appeal lies that he did not commit the offence in question or that no offence was committed .

Anyone against whom a preventative measure has been taken , and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph , also enjoys a right to compensation for damage sustained ... ”

“ ... The claim [ for compensation ] must be lodged within DATE from the date of the final acquittal or from the order discontinuing the proceedings . ”

In a decision of CARDINAL DATE , published on DATE in ORG , ORG , to which an objection had been submitted alleging that the first paragraph of LAW ORG was unconstitutional , ruled as follows :

“ Under LAW , the ORG is liable for damage caused by miscarriages of justice committed in criminal proceedings . It follows that the principle of the ORG ’s liability towards victims of a miscarriage of justice in a criminal trial must be applied to all victims of such a miscarriage . ... The ORG notes that the legislature has not brought the provisions of LAW into conformity with those of LAW . ... Consequently , bearing in mind that LAW provides for CARDINAL cases in which the ORG ’s responsibility for miscarriages of justice committed in criminal proceedings may be engaged , it follows that this restriction is unconstitutional , since LAW does not allow for any such limitation . ”