Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

By an indictment of DATE , the applicant and his father were charged under LAW § CARDINAL ( sexual relations with a minor ) and CARDINAL ( sexual relations with a close relative ) of LAW ( straffeloven ) with having committed sexual offences during the periods from DATE respectively against the applicant ’s daughter , PERSON , who was born on DATE .

By a judgment of DATE , ORG ( lagmannsrett ) , sitting with CARDINAL judges and a jury , noted that the jury had answered the questions on the charges in the negative and therefore acquitted the applicant and his father . No appeal was lodged against the judgment , which consequently gained legal force .

Subsequently , on DATE , the applicant and his father filed a petition with the ORG requesting compensation under ORG CARDINAL and CARDINAL of the DATE LAW ( straffeprosessloven ) for pecuniary and non - pecuniary damage caused by the criminal proceedings against them . The father sought , in the alternative , compensation under ORG CARDINAL and CARDINAL .

In the compensation proceedings , ORG , sitting with the same judges as in the trial , received written pleadings but did not hold an oral hearing . By a decision ( kjennelse ) of DATE , it rejected the applicant ’s claim but awarded his father MONEY in compensation under ORG CARDINAL and CARDINAL .

In the introduction to its decision , ORG reiterated certain information derived from the criminal proceedings , notably the specific contents of the charges of sexual abuse , the jury ’s verdict and the acquittal by ORG .

As regards the applicant ’s claim , ORG stated , inter alia :

“ ORG notes that , pursuant to ORG CARDINAL or CARDINAL ... of LAW , it is a condition for obtaining compensation that it must be shown to be probable that the accused did not carry out the act which formed the basis of the charge . Accordingly , in order to award compensation it must be shown on the balance of probabilities that the accused did not commit the acts in respect of which he has been acquitted .

The High Court finds it probable that the victim [ L. ] , born on DATE , has been subjected to sexual abuse in the form of sexual intercourse . Reference is made to the medical examination carried out ... on DATE ...

[ L. ’s ] father and mother separated in DATE when the mother moved to GPE together with [ L. ] ... As a witness , the mother made statements about [ L. ’s behaviour ] before as well as after the separation . This could indicate that she has been subjected to sexual abuse . The child ’s behaviour resulted in the mother contacting the ... institute in DATE where [ L. ] underwent individual and family therapy , as did her mother and her cohabitant .

As a witness during the trial , PERSON , a psychologist , ... explained [ PERSON ’s ] behaviour . In the light of this and of talks and symbolic games with [ L. ] , PERSON concluded that there was no doubt that [ L. ] had been subjected to sexual abuse .

The question is therefore now whether on the balance of probabilities other persons than the defendants are behind the abuses . In this respect the judicial examinations of [ L. ] are of central importance and the witness evidence as to what [ L. ] has stated is significant . From the outset there had been no concrete information in this case about other offenders . [ L. ] has been subjected to judicial examinations CARDINAL times ... In connection with the first examination the judge recorded that no information had been submitted which could justify a concrete suspicion of sexual abuse having been committed against [ L. ] . During the second examination [ the applicant ] was mentioned in connection with a description of immoral sexual relations and during the third examination even the grandfather was mentioned . During the examinations the information was submitted , without spontaneity , in part under pressure from the examining judge , and in part through writing down names and events on pieces of paper .

According to the mother ’s and her partner ’s statements , [ L. ] had referred to both [ the applicant ] and the grandfather . It appeared as if the child had been under pressure to speak in order to enable the family to calm down . PERSON stated that [ L. ] , in the course of a realistic conversation , had referred to ‘ intrusions , pawing , threats and aggression by [ the applicant]’ and that she had spontaneously confirmed that abuse had taken place several times . She also appeared to have been agitated both during and after these conversations .

Considering the case as a whole , ORG does not find it shown on the balance of probabilities that [ the applicant ] did not engage in sexual intercourse with his daughter . ...

[ The applicant ’s ] claim for compensation is thus dismissed . In the light of this conclusion , there is no reason to order the reimbursement of his costs . ”

The applicant appealed against that decision to ORG ( PERSON ) . On DATE ORG of ORG ( Høyesteretts kjæremålsutvalg ) upheld ORG decision , stating , inter alia :

“ ORG has correctly taken as its starting - point the view that under Articles CARDINAL and CARDINAL ... of LAW it is a condition that it must be shown to be probable that the accused did not carry out the act which formed the basis for the charge against him and that this implies that on the balance of probabilities [ sannsynlighetsovervekt ] the accused did not commit the acts in respect of which he was acquitted . In this connection the ORG refers to [ its decision reported in ] PERSON DATE , p. CARDINAL , where the first voting judge stated , with the approval of the other judges , inter alia :

’Compensation pursuant to LAW , first sentence , must DATE when the accused is acquitted or the case against him is discontinued DATE cover the financial losses he has suffered if “ it has been shown to be probable [ gjort sannsynlig ] ” that he has not carried out the act which formed the basis for the charges . It is the accused who carries the burden of proof that he did not carry out the act . It is sufficient that it is more probable than not . I do not agree with counsel for the defence in that the accused has discharged the burden of proof where both alternatives , on the basis of the available evidence , appear to be equally likely . In this assessment the ordinary standards of evidence must apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the ability of the accused to show that he did not carry out the act . Given the manner in which the provision has been formulated , the situation may easily arise that an acquittal is not sufficient to justify a compensation claim where the accused is unable to discharge the burden of proof . I should like to stress that the refusal of a compensation claim does not imply that the previous acquittal is undermined or that the acquittal is open to doubt . The compensation claim must be determined on an independent basis and the rules of evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims . The legislator has as a starting - point opted for a solution whereby the financial burden caused by the institution of criminal proceedings which are discontinued or which end with an acquittal must be borne by the accused unless he is able to show that it is probable that he did not commit the act.’

ORG has found it probable that [ the applicant ’s ] daughter was subjected to sexual abuse ... Considering the case as a whole , ORG has further concluded that it has not been shown that on the balance of probabilities [ the applicant ] did not engage in sexual intercourse with his daughter . ORG finds no reason to depart from ORG assessment of the evidence , which is based on the judges’ participation at the trial hearing in this case , where it must be deemed vital that the court had the opportunity to hear directly the accused and the witnesses DATE something which ORG is not empowered to do ...

ORG accordingly finds that the evidence is not such as to fulfil the conditions for compensation under LAW ; nor , as a consequence , are the conditions for awarding damages under Article CARDINAL satisfied . ”

Under the NORP jury system , when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion , and no records are kept which could disclose that a negative answer as to the applicant ’s guilt was not unanimous . CARDINAL conclusions are possible in a criminal case – guilt or acquittal ( see Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW ) . There is no third alternative , such as that formerly known in some other NORP countries , where a criminal charge could result in the finding that there was not sufficient evidence to establish guilt .

Articles CARDINAL to CARDINAL of LAW provide for compensation where a person has been acquitted or the proceedings have been discontinued . The provisions read as follows :

“ If a person charged is acquitted or the proceedings against him are discontinued , he may claim compensation from the ORG for any damage that he has sustained as a result of the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge . If a sentence of imprisonment or other custodial sanction has already been served , any damage resulting from this shall be compensated without regard to what has been shown to be probable .

Compensation shall not be awarded where the person charged , by making a confession or otherwise , has wilfully instigated the prosecution or the conviction .

If he has otherwise contributed to the damage by negligence , the compensation may be reduced or dispensed with entirely . ”

“ Even if the conditions prescribed in LAW are not fulfilled , the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal proceedings whenever this appears to be reasonable in the circumstances . ”

“ If the conditions relating to compensation prescribed in ORG CARDINAL or CARDINAL are fulfilled , the court may , when special reasons so indicate , award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution . ”

In addition , there are certain formal conditions set out in Article CARDINAL for the submission and examination of a compensation claim made under ORG CARDINAL to CARDINAL :

“ Any claim for compensation or redress must be submitted not DATE after the person charged has been informed of the decision that finally settles the case . The provisions of LAW , first paragraph , shall apply correspondingly .

If the case has been concluded without any judicial examination of the evidence relating to the issue of guilt , the claim shall be submitted to a court of summary jurisdiction .

Otherwise the claim shall be submitted to the court that is to conduct or has last conducted any such trial . If the claim is submitted to the district court or the city court , but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing , the court of appeal shall also decide the question of compensation . When examining the claim , the court shall as far as possible sit with the same judges who decided the criminal case . In the court of appeal , lay judges or the selected jurors who join the court pursuant to LAW ) shall not take part unless the decision is made at the same court sitting as that at which judgment is given in the case . ”

Compensation after acquittal or discontinuation of the proceedings is not automatic and is not awarded unless the conditions in the above - cited ORG are met .

When compensation is awarded to persons who are considered innocent as they have been acquitted or the proceedings against them have been discontinued , Articles CARDINAL and CARDINAL are the general provisions and , de facto , the main provisions providing for compensation .

In the present case the applicant , unlike his father , did not seek compensation under ORG CARDINAL and CARDINAL . Instead , the applicant claimed compensation under the special provision in LAW , together with LAW . Under this provision , the ORG may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities . The liability of the ORG to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act with which he or she was charged . In the assessment of that probability , none of the other constitutive elements of a criminal offence , such as criminal intent , is in issue .

According to the case - law of ORG , the evidentiary standard applying in respect of liability to pay compensation under LAW differs from that applying to criminal liability . Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the impugned act , in compensation proceedings it is for the claimant to show that , on the balance of probabilities , it was PERCENT probable that he or she did not carry out the act that formed the basis of the charge . The requirement of proof in compensation cases may nevertheless be adjusted ( i.e. to PERCENT ) in the light of the claimant ’s ability to adduce evidence , especially where a long time has elapsed since the alleged criminal act . The competent court has to make a new assessment , independently of the acquittal , of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge .

It is not a requirement for obtaining compensation that the claimant should adduce new evidence . The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion .

In DATE ORG ) made a recommendation to ORG that ORG CARDINAL to CARDINAL of LAW be amended in a number of respects , including the abolition of the condition whereby the claimant had to prove that on the balance of probabilities he or she had not carried out the act giving rise to the charge . Nevertheless , the ORG was of the view that the provisions in force were not inconsistent with GPE ’s obligations under LAW , as interpreted by ORG in its case - law ( see PERSON GPE ( NORP Official Reports ) , “ Erstatning i anledning straffeforfølgning ” ( “ Compensation in connection with criminal proceedings ” ) , CARDINAL , pp . CARDINAL , DATE , DATE ) . On DATE a government bill was presented to ORG ( Ot.prp.nr.CARDINAL , DATE ) , proposing , inter alia , the repeal of that condition .


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

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

In DATE the PERSON company , i.e. a big NORP steel company , was taken over by the A. holding . On DATE , in the course of the negotiations preceding the take - over , PERSON , a businessman and president of the executive board of the A. holding , gave a written assurance that there would be no reduction in personnel at the NORP site of the PERSON company within DATE . On CARDINAL DATE the assurance was repeated in the records of a meeting between GPE , the executive manager of the PERSON company , staff representatives and representatives of several banks .

On DATE the ORG company announced staff cuts of CARDINAL employees , including CARDINAL dismissals to be carried out at the company 's NORP site .

On DATE the applicant , in his capacity as a member of parliament , namely as spokesperson for social affairs of ORG , issued a press release under the heading :

“ Massive Staff Cuts in GPE Alarming ” ( “ Massive PERSON in GPE bedenklich ” )

The press release included the following statement :

“ ORG 's plans which include staff cuts and the shut down of ORG 's NORP site constitute a clear breach of [ his ] promise given in public on the occasion of the takeover . ”

The above statement was reported in a number of DATE newspapers .

Thereupon , ORG brought injunction proceedings under LAW ) against the applicant with ORG ( ORG ) . He requested that the latter be prohibited from stating or repeating that he “ had broken his word with regard to his policy of no staff cuts as announced in DATE ” . He also requested that the statement be retracted and that this retraction be published in specified NORP DATE newspapers .

On DATE ORG granted the injunction . It ordered the applicant not to repeat the impugned statement and to publish a retraction in the newspapers requested at his own cost . The court found that , contrary to the applicant 's assertion , his statement was not a valuejudgment made in a political context , but a statement of fact , which jeopardised ORG 's reputation as a business man . In this respect , the court also noted that PERSON was not a politician and that , according to the written statement of DATE , the latter had only promised to make no staff cuts for DATE . Given the lack of precision regarding the time - frame it could not be assumed that the promise to make no staff cuts covered DATE . Thus , the allegation that ORG had broken his word , by announcing in DATE that he intended to dismiss employees , was not supported by evidence .

The applicant appealed against the injunction . He submitted that ORG had not assessed the relevant facts against the background of the economic development of the PERSON company and that the impugned statement constituted a value - judgment .

On DATE ORG ( Oberlandesgericht ) dismissed the appeal . It considered that ORG had correctly assessed the relevant facts . Observing in particular that the applicant had himself failed to make any reference to the economic situation of the PERSON company in the material press release , it found , with reference to that text , that the only question at stake was whether PERSON , by announcing staff cuts , had broken his word . In this respect , ORG confirmed ORG view that the impugned statement was a statement of fact . Referring to the written statement of DATE , according to which there would be no reduction in manpower for DATE , it considered that the claimant 's “ guarantee ” had lasted until DATE at the very most and concluded that the applicant had failed to prove his allegation .

On DATE the applicant introduced an extraordinary appeal on points of law ( außerordentliche Revision ) against ORG decision .

On DATE ORG ( Oberster Gerichtshof ) declared the extraordinary appeal inadmissible as it found that the qualification of the statement at issue as a statement of fact was in accordance with its previous case - law . This decision was served on the applicant on DATE .

Article CARDINAL of LAW ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows :

“ ( CARDINAL ) Everyone who has suffered material damage or loss of profit because of an insulting statement may claim compensation .

( CARDINAL ) The same applies if anyone disseminates statements of fact which jeopardise another person 's credit , gain or livelihood and if the untruth of the statement was known or must have been known to him . In such a case the retraction of the statement and the publication thereof may also be requested ... ”


Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13+6-1

The first applicant is a child born out of wedlock in DATE .

On DATE the first applicant and her mother ( “ the second applicant ” ) filed a civil suit against GPE ( “ the respondent ” ) , a very popular local singer , before ORG in GPE ( “ the ORG ” ) in order to establish paternity and obtain child maintenance .

DATE and DATE , CARDINAL hearings were scheduled , CARDINAL of which were held and another CARDINAL adjourned . During that time , though duly summoned , the respondent failed to appear in court on CARDINAL occasions .

On DATE and in compliance with an order issued by ORG , ORG conducted blood tests , having taken samples provided by the CARDINAL parties , and found that the probability that the respondent was the father of the first applicant was PERCENT and , as such , “ highly likely ” .

From DATE to CARDINAL DATE , on CARDINAL separate occasions , DNA testing was attempted but each time , unlike the applicants , the respondent , though duly summoned , failed to appear at the clinic where the appointment was scheduled .

On DATE ORG ruled in favour of the applicants . In so doing , it established the respondent 's paternity , partly granted the child maintenance requested and issued an interim maintenance order . In its reasoning , inter alia , the court relied on the findings of ORG , as well as the respondent 's failure to appear at the clinic in order to undergo a DNA test . Finally , it noted that the relevant legislation did not provide for a possibility to subject the respondent to a DNA test against his will and held that there was no evidence that would have justified the rejection of the applicants ' claims .

On DATE ORG adopted a supplementary judgment , granting the applicants ' request for statutory interest .

On DATE the respondent filed an appeal with ORG in GPE ( “ the ORG ” ) .

On DATE ORG quashed the judgments of ORG and remitted the case for a retrial . In its reasons , inter alia , it stated that the respondent had apparently been unable to attend the scheduled DNA tests but that he would now be willing to do so . The court added that the facts of the case concerning child maintenance also required further clarification .

From DATE to CARDINAL DATE , another QUANTITY hearings were scheduled before ORG , CARDINAL of which were adjourned and CARDINAL held . During that time , though duly summoned , the respondent failed to appear in court on CARDINAL occasions .

From CARDINAL DATE to DATE , on CARDINAL separate days , DNA testing was attempted but each time , unlike the applicants , the respondent , though twice duly summoned , failed to appear at the clinic where the appointment was scheduled .

On DATE the applicants complained about the delay to ORG .

On DATE the President of ORG informed the applicants that he had instructed the presiding judge in their case to proceed expeditiously .

On DATE ORG again ruled in favour of the applicants . In so doing , it established the respondent 's paternity , partly granted the child maintenance requested and issued an interim maintenance order . The reasons offered , for the most part , were identical to those contained in its prior ruling .

On DATE ORG issued a decision correcting an obvious error contained in its judgment .

On DATE the respondent filed an appeal with ORG .

On DATE ORG again quashed the decisions of ORG and remitted the case for a retrial . In its reasoning it held that the civil parties needed to be heard again , that the actual moment of conception of the first applicant needed to be determined precisely in order to find out whether the second applicant had sexual relations with the respondent at that particular time , and that the DNA test needed to be attempted yet again . The court further explained that , should the respondent again fail to be tested , ORG would need to address ORG in order to find out whether the fact that the first applicant was DATE when she was last tested ( in DATE ) meant that a new blood test might now be warranted . If so , following a new blood test and even in the absence of a DNA test , a new judgment should be rendered , due consideration being given to the respondent 's refusal to submit to a DNA test . The court concluded by stating that the facts of the case concerning child maintenance also required additional clarification .

The actual case file was not physically returned to ORG until DATE .

The first hearing thereafter was initially scheduled for DATE . In DATE , however , this hearing was cancelled by ORG itself , apparently without any reasons being specified .

On DATE ORG decided to request an expert medical opinion in line with the directions given by ORG .

On DATE the same court heard the second applicant as well as the respondent . In his statement , inter alia , the respondent denied being the biological father of the first applicant and expressly said that he would not accept being subjected to a DNA test .

On DATE ORG appointed a medical expert and requested an opinion in line with its decision of DATE .

On DATE the medical expert invited the parties in the case to attend a meeting scheduled for DATE . On the said date , the applicants appeared but not the respondent .

On DATE the medical expert provided his opinion .

On DATE , following the appointment of a new presiding judge in the case , ORG relieved the second applicant of her obligation to pay for the costs of the proceedings at issue . It stated , inter alia , that she was unemployed and unable to cover these costs without endangering the most basic needs of the first applicant .

On DATE ORG , inter alia , heard the parties to the proceedings , ordered them to provide the court with the relevant information concerning the maintenance sought and informed them that the DNA test was to be carried out on DATE and DATE , respectively .

Both applicants duly appeared on those dates but the respondent did not .

On CARDINAL DATE the applicants submitted the maintenance - related information requested . The respondent apparently failed to do so .

On DATE ORG adjourned the hearing which had been scheduled because it did not have all of the maintenance - related information at its disposal and a forensic expert , who had not been duly summoned , had failed to appear .

On DATE , ORG accepted the applicants ' motion to obtain additional maintenance - related information .

On DATE ORG adjourned the hearing scheduled for DATE because the forensic expert in question had been “ unavailable ” .

At the hearing held on DATE ORG finally heard this expert .

On DATE ORG issued a judgement finding that the respondent was indeed the first applicant 's natural father and , as such , obliged to pay MONEY ( “ RSD ” ) , MONEY ( “ ORG ” ) , DATE for her maintenance , as of DATE , together with the legal costs and the applicable statutory interest . In its reasoning , based on the relevant provisions of LAW , as well as bearing in mind the views expressed by ORG in its decision of CARDINAL DATE , ORG , inter alia , attached particular weight to the fact that the respondent had refused to be subjected to a DNA test , as the single most reliable way of confirming or refuting his paternity . Finally , the court noted that the second applicant was unemployed and indigent , which is why the respondent was ordered to pay the said child maintenance . The applicants were served with this judgment on DATE .

In DATE the respondent filed an appeal with ORG in GPE .

On DATE ORG , relying on LAW , upheld the impugned judgment but reduced the costs awarded to the applicants .

On DATE the respondent filed an appeal on points of law ( revizija ) . On CARDINAL DATE ORG confirmed the lower courts ' judgments as regards the respondent 's paternity and upheld the maintenance ordered in the amount of ORG CARDINAL DATE ( approximately ORG CARDINAL ) . At the same time , however , it quashed the said judgments in respect of the remainder of the maintenance awarded , as well as the costs , and ordered that these CARDINAL issues be re - examined by ORG .

In DATE the first applicant was diagnosed with asthma .

On DATE ORG confirmed that the second applicant was unemployed and secured her an internship at ORG in GPE . The ORG also accepted to pay the second applicant a total of ORG CARDINAL per month ( approximately EUR DATE ) for DATE .

The applicants further referred to numerous reports in the NORP media concerning the above proceedings , as well as their own and the respondent 's personal circumstances . Finally , the second applicant stated that the respondent , through his connections , made sure that she could not find work as a songwriter even though she had been successful in this field previously .

Article PERSON provided that all maintenance - related suits were to be dealt with by the courts urgently .

Under LAW all family - related disputes involving children must be resolved urgently . The first hearing must be held within DATE of the date when the claim was filed . First instance courts should conclude the proceedings following CARDINAL hearings , and second instance courts must decide on appeals within DATE .

Similarly , LAW defines all maintenance suits as “ particularly urgent ” . The first hearing must be held within DATE of the date when the claim was filed and the second instance courts must decide on appeals within DATE .

Article CARDINAL provides that an appeal on points of law ( revizija ) shall always be allowed in family disputes , unless this LAW states otherwise .

LAW entered into force on DATE , thereby repealing ORG . Further , LAW provides that it shall be applied to all ongoing judicial proceedings instituted prior to DATE , unless the competent court , in the specific proceedings at issue , had already adopted a first instance decision before that date .

Article CARDINAL provided that the courts were to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole , and taking into account the results of the overall proceedings .

Under Article ORG , the courts could also draw conclusions as to the facts of the case based on the application of the “ rules on the burden of proof ” .

In accordance with LAW , neither the plaintiff nor the respondent could be “ forced ” to appear in court or , indeed , give a statement . The court itself , however , could take into account the parties ' failure / refusal to do so and draw its own conclusions therefrom .

Finally , pursuant to ORG , parties could file an appeal on points of law ( revizija ) with ORG . They could do so under certain very specific conditions only and against a judgment rendered at second instance . This remedy , however , could not provide the parties with compensation for any procedural delay that may have occurred , nor could it have expedited the proceeding which had already been concluded before the lower courts .

The language of ORG CARDINAL , CARDINAL § CARDINAL and CARDINAL contained in this LAW corresponds to Articles CARDINAL , ORG and CARDINAL of LAW DATE referred to above .

Articles CARDINAL and CARDINAL § § CARDINAL , however , provide that every civil party shall state the facts in its favour and propose the supporting evidence , as well as actively attempt to challenge the other party 's factual and/or legal claims .

This Act entered into force on DATE , thereby repealing LAW DATE . LAW , however , states that an appeal on points of law shall be filed in accordance with the relevant provisions of LAW DATE whenever the proceedings at issue were instituted prior to DATE .

The relevant provisions of this LAW read as follows :

“ A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed , improper , or that there has been an [ untoward ] influence on their course and outcome . ”

“ The President of a higher instance court shall have the right to monitor the court administration of a lower instance court , and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court , if the latter omits to perform his [ or her ] duty .

The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation , information concerning any problems about trials and all information regarding the work of the court .

The President of a higher instance court may order a direct inspection of the work of a lower instance court . ”

“ When a party to a case or another person taking part in the proceedings files a complaint , the President of the court must , having considered it , inform the complainant about his [ or her ] views concerning its merits as well as any measures taken in this respect , within DATE of receipt of the complaint .

If a complaint was filed through ORG or through a higher instance court , the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect . ”

Under LAW , inter alia , the President of a court must ensure that the court 's work is carried out in a timely manner . He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within DATE , giving a decision and , if necessary , ordering that steps be taken to remedy the situation .

DATE , inter alia , provides that ORG shall supervise the work of the courts in terms of their timeliness . Should certain problems be identified , the Ministry shall “ propose ” specific measures to be undertaken within DATE .

“ ORG shall set up a ORG [ “ PERSON odbor ” ] ( “ the Board ” ) .

ORG shall be composed of CARDINAL ORG judges elected for DATE by the plenary session of ORG . ”

“ In response to a complaint or ex officio , ORG is authorised to oversee judicial proceedings and look into the conduct of individual cases .

Following the conclusion of this process , the ORG may initiate , before ORG , proceedings for the removal of a judge based on his [ or her ] unconscientious or unprofessional conduct , or propose the imposition of other disciplinary measures . ”

Article CARDINAL § CARDINAL provides that a legal entity ( “ pravno lice ” ) , which includes the ORG , is liable for any damage caused by CARDINAL of “ its bodies ” ( “ njegov organ ” ) to a “ third person ” .

Under Articles CARDINAL and CARDINAL of LAW , inter alia , anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of “ personal rights ” ( “ prava ličnosti ” ) may , depending on their duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .

The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) .

In a reservation contained in its instrument of ratification of the Convention and its Protocols , deposited with ORG DATE , the ORG stated that “ the provisions of LAW shall not apply in relation to the legal remedies within the jurisdiction of ORG and GPE , until the said ORG becomes operational in accordance with ORG DATE of LAW of ORG and GPE ( NORP list PERSON i PERSON , no . CARDINAL/CARDINAL ) ” .

This reservation was withdrawn by a letter dated DATE from ORG and GPE , registered at the Secretariat General on DATE .


The applicant is a NORP citizen , born in DATE and currently serving a life sentence in LOC , GPE .

A.

The applicant was convicted in a jury trial for a murder committed on DATE and sentenced to life imprisonment . The murder was not connected with the conflict in GPE .

Following the Good Friday Peace Agreement , which was part of the ongoing peace process in GPE , the Government passed GPE ( Sentences ) Act DATE , which includes provisions permitting the early release on licence of eligible prisoners convicted of scheduled offences ( those offences defined in emergency legislation enacted in response to terrorism ) .

B. Relevant domestic law and practice

Pursuant to the Northern Ireland ( Sentences ) Act DATE , a prisoner who has committed scheduled offences ( offences tried under emergency legislation relating to terrorism ) , is no longer the supporter of an organisation concerned in terrorism , on release would not be likely to support such an organisation or become involved in acts of terrorism and would not be a danger to the public , may apply to ORG , for a declaration that he is eligible for release ( section CARDINAL ) . Where life prisoners are concerned , the Commissioners , when granting a declaration must specify a day which they MONEY the completion of CARDINAL of the period which he would have been likely to spend in prison , which date is to be taken as the date of release , with certain exceptions ( section CARDINAL ) .


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Belarus);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the GPE authorities instituted criminal proceedings against the applicant on charges of extortion . On DATE the applicant was found guilty of extortion and sentenced to CARDINAL years’ detention in an open detention facility .

NORP In DATE the applicant escaped from the detention facility and arrived in GPE .

On DATE the NORP authorities issued an arrest warrant against the applicant in connection with his escape , which is a criminal offence in GPE .

On DATE the ORG for GPE ( in GPE ) opened criminal proceedings against the applicant for escape from the detention facility and for being an accomplice to an attempted murder by a group of people in DATE . This second accusation concerned LAW of LAW in conjunction with its LAW ( see paragraphs CARDINAL - CARDINAL below ) . On DATE , ORG ordered his detention and issued an arrest warrant .

On DATE the applicant was arrested in GPE and remanded in police custody . On DATE , the NORP authorities confirmed that the applicant was being prosecuted in GPE and asked the NORP authorities to arrest him pending the submission of a formal extradition request .

A NORP prosecutor applied to ORG of GPE seeking authorisation of the applicant ’s detention with a view to extradition . On DATE ORG granted this request and ordered the applicant ’s detention , referring to ORG and CARDINAL of LAW ( “ the CCrP ” ) and to LAW ( see paragraphs CARDINAL , DATE and DATE below ) . No limit on the duration of the applicant ’s detention was specified in the detention order . The applicant did not appeal .

On DATE ORG received an extradition request in respect of the applicant from the NORP authorities . It contained the following information :

“ The investigation has established that [ the applicant ] , acting with pre - meditation and in concert with PERSON . and ORG , assisted NORP in attempting to murder PERSON ... The victim remained alive ...

If extradited , [ the applicant ] would not be prosecuted or punished for any criminal offence other than those indicated in the extradition request ... He will not be subjected to torture , inhuman or degrading treatment or punishment ... The extradition request is not aimed at persecuting him for political reasons or on racial , religious or national grounds . The acts for which extradition is sought are not punishable by the death penalty ... ”

On DATE ORG examined a request from a prosecutor and extended the term of the applicant ’s detention until DATE , with reference to the statutory DATE period contained in LAW ORG , as well as to LAW CCrP and LAW of LAW . ORG relied on the following considerations :

( i ) the applicant was being prosecuted in GPE for a particularly serious offence for which the statutory limitation period had not expired ;

( ii ) a detention order had been issued by NORP authorities ; and

( iii ) the applicant ’s detention was necessary in relation to an “ extradition check procedure ” pending in relation to the extradition request from the NORP authorities .

NORP The detention order of DATE was upheld on appeal on CARDINAL DATE .

On DATE ORG issued an extradition order on the charges under LAW of LAW , in the following terms :

“ [ The applicant ] has been charged under Articles CARDINAL § CARDINAL and CARDINAL of LAW , in conjunction with its LAW He has been accused of assisting , in concert with others , PERSON in committing attempted murder ... ”

Extradition on the charges under LAW was refused . The extradition order does not contain an assessment of the risk of the applicant being subjected to inhuman or degrading treatment or punishment .

After the expiry of the previous detention order on DATE , on CARDINAL DATE ORG examined a request from a prosecutor and extended the applicant ’s detention until DATE . The court considered that the prosecutor ’s delay in applying for the extension did not impede the court ’s examination of the request and could not justify its dismissal .

On DATE ORG upheld the detention order of CARDINAL DATE .

In the meantime , the applicant sought judicial review of the extradition order of CARDINAL DATE before ORG . Several hearings were scheduled and adjourned because the applicant sought to obtain additional evidence , lodged refugee and temporary asylum applications and subsequently brought judicial review proceedings concerning those applications ( see paragraphs CARDINAL below ) , or because CARDINAL of his lawyers could not attend a court hearing . ORG considered that the outcome of the above applications and proceedings were relevant to the judicial review of the extradition order and that the review proceedings before it therefore required adjournment .

The applicant argued that he should not be extradited to GPE because he feared being subjected to ill - treatment and capital punishment there and because he was a follower of the PERSON movement .

On DATE ORG confirmed the extradition order . The court held as follows :

“ ... [ The applicant ’s ] application to the migration authority for temporary asylum does not affect the examination of the extradition order on judicial review . Such application , lodged after his arrest , should not affect the court ’s conclusions concerning the extradition order ...

As follows from the information provided by ORG , there is no information concerning any persecution in respect of [ the applicant ] in GPE for political , religious or other reasons .

As follows from LAW , the offence with which he has been charged in GPE is not punishable by the death penalty . ORG provided assurances that [ the applicant ] would not be prosecuted for any other offenses committed prior to extradition and would not be subjected to any proscribed form of ill - treatment or punishment ... ”

On DATE ORG upheld the judgment of DATE . The appeal court held as follows :

“ [ The applicant ’s ] arguments concerning persecution on political or religious grounds were properly examined and dismissed by the first - instance court ... Its judgment should not be set aside because the extradition order was issued before any final court decision on the refugee application ... ”

The DATE period of the applicant ’s detention was set to expire on DATE . Thus , having examined a prosecutor ’s request , on DATE ORG extended the applicant ’s detention to CARDINAL DATE , the date on which the maximum statutory detention period of DATE would be reached ( see paragraph CARDINAL below ) . The court noted that the applicant had lodged an application before the ORG ; that the ORG had indicated , under LAW , to the NORP authorities not to enforce the extradition order until further notice ; and that such indication remained in force . The court held as follows :

“ ORG ruling of CARDINAL DATE requires that detention of a person with a view to extradition should be determined under the procedure prescribed in LAW CCrP ... It provides that detention beyond DATE and until DATE may be ordered , in exceptional circumstances , in relation to an investigator ’s applications and in relation to particularly serious offences ... The present case discloses exceptional circumstances , taking into account the gravity of the charges ... ”

Apparently , the applicant did not appeal .

On DATE the applicant was released from detention on an undertaking not to leave his town of residence .

As stated in a letter of DATE signed by the representative of ORG , the applicant was married to a NORP national and they were raising a child in compliance with the “ NORP standards ” . The marriage ceremony had been religious and had followed the NORP rules . As indicated in another similar letter , the applicant had joined the PERSON movement in DATE and had been actively involved in the movement as a follower and a preacher .

The applicant applied for refugee status , stating that DATE he had distributed printed material in GPE about the PERSON movement and had practised and taught yoga . From DATE he had started to “ have problems ” with the NORP authorities because of his religion and related activities . He had been arrested on several occasions . In DATE he had wanted to open an educational institution in GPE , which would have taught the teachings of Bhaktivedanta Swami . In DATE he and his wife had been poisoned and his wife had been admitted to hospital . Thereafter , they had had to move to another town in GPE . Soon thereafter , a criminal case had been opened against the applicant and he had been sentenced to CARDINAL years’ imprisonment . He feared ill - treatment and the imposition of the death penalty on account of the criminal charges against him , if returned to GPE .

By a final decision of CARDINAL DATE ORG rejected the applicant ’s refugee application . The court considered that his allegations concerning criminal prosecution in the country of origin did not disclose any risk of ill - treatment ; he had not provided any evidence concerning any previous persecution or a risk of persecution on religious grounds ; DATE and his arrest in DATE he had not sought protection in GPE on any such grounds ; his application had thus been no more than a challenge to the extradition proceedings pending in respect of him .

In DATE the applicant applied for temporary asylum on similar grounds . His application was rejected by the migration authority on DATE . This refusal was confirmed by ORG on DATE , stating that :

“ LAW provides for capital punishment as an exceptional penalty . Such sentences are carried out . Conditions of detention are in line with generally acceptable standards ( see ORG , no . CARDINAL/CARDINAL of DATE ) . ORG indicates that the charges against the applicant do not entail the death penalty as a possible sentence . The ORG has no information about torture , ill - treatment , unlawful arrest , discrimination , persecution for racial , religious or social reasons in GPE ... The applicant has not provided convincing facts in support of his fear of being a victim of religious persecution in GPE . The criminal prosecution in respect of him has no connection to his claimed religious beliefs . He would be able to lodge an appeal against the trial judgment ... ”

The applicant did not seek judicial review of the above refusals .

Everyone has the right to liberty and security ( LAW ) . Detention is permissible only on the basis of a court order . The length of time for which a person may be detained prior to obtaining such an order must not exceed TIME ( LAW ) .

The term “ court ” is defined by LAW ( “ the CCrP ” ) of DATE as “ any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by LAW ” ( LAW ) . The term “ judge ” is defined by the ORG as “ an official empowered to administer justice ” ( LAW ) .

A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace , a regional court or ORG ( LAW ) .

LAW of the CCrP governs the application of preventive measures . Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by DATE imprisonment when it is impossible to apply a more lenient preventive measure ( LAW ) . A court request for remand in custody is submitted by an investigator ( следователь ) with the support of the head of the investigative authority or by the police officer in charge of the inquiry ( дознаватель ) with the support of a prosecutor ( LAW ) . A request for remand in custody should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned ( LAW ) . Appellate courts should examine appeals lodged against judicial decisions on remand in custody within DATE ( LAW ) . The period of detention pending the investigation of a criminal case must not exceed DATE ( Article CARDINAL § CARDINAL ) but may be extended DATE by a judge of a district court or a military court of a corresponding level . Further extensions DATE may be granted with regard to persons accused of serious or particularly serious criminal offences ( LAW ) . Extensions DATE may be granted on an exceptional basis with regard to persons accused of particularly serious criminal offences ( Article CARDINAL § CARDINAL ) .

A preventive measure can be applied with a view to ensuring a person ’s extradition in compliance with the procedure established under LAW ) .

Chapter CARDINAL of the CCrP ( Articles CARDINAL - CARDINAL ) governs the procedure to be followed in the event of extradition .

A court is to review the lawfulness and validity of a decision to extradite within DATE of receipt of a request for review . The decision should be taken in open court by a panel of CARDINAL judges in the presence of a prosecutor , the person whose extradition is sought and the latter ’s legal counsel ( LAW ) .

Article CARDINAL § CARDINAL lists the conditions under which extradition can not be authorised . Thus , the extradition of the following should be denied : a NORP citizen ( LAW ) or a person who was granted asylum in GPE ( LAW ) ; a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in GPE in connection with the same act for which he or she has been prosecuted in the requesting ORG ( LAW ) ; a person in respect of whom criminal proceedings can not be launched or a conviction can not become effective in view of the expiry of the statute of limitations or under another valid ground in LANGUAGE law ( LAW ) ; or a person in respect of whom extradition has been blocked by a NORP court in accordance with the legislation and international treaties of GPE ( Article CARDINAL § DATE ) . Finally , extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under LAW ( LAW ) .

In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a penalty for another criminal offence in GPE , his extradition may be postponed until the prosecution is terminated , the penalty is lifted on any valid ground or the sentence is served ( LAW § CARDINAL ) .

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to “ take measures ” in order to decide on the preventive measure in respect of the person whose extradition is being sought . The preventive measure is to be applied in accordance with established procedure ( Article CARDINAL § CARDINAL ) .

Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body , a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of GPE ( LAW ) .

Verifying the compatibility of section CARDINAL § CARDINAL of the Law on ORG in the GPE of DATE , ORG ruled that a foreign national liable to be expelled from GPE could not be detained for CARDINAL without a court order .

Assessing the compatibility of LAW of the CCrP with LAW , ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the absence of specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , which in the case of GPE was the procedure laid down in the GPE That procedure comprised , in particular , LAW ORG and the provisions in its LAW ( “ Preventive measures ” ) , which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests .

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or in excess of the time - limits fixed in the LAW .

The Prosecutor General asked ORG for official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person ’s detention with a view to extradition .

ORG refused the request on the grounds that it was not competent to indicate specific provisions of criminal law governing the procedure and the maximum periods for holding a person in custody with a view to extradition . That matter was within the competence of the courts of general jurisdiction .

The Constitutional Court reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention , in that it required a court to examine whether the arrest was lawful and justified .

ORG held that LAW , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE on the basis of a request for his or her extradition without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in LAW and within the time - limits fixed in the Code .

ORG dismissed as inadmissible a request for a review of the constitutionality of LAW of the ORG , stating that this provision “ does not establish maximum periods for custodial detention and does not establish the reasons and procedure for choosing a preventive measure , it merely confirms a prosecutor ’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused . Therefore the disputed norm can not be considered to violate the constitutional rights of [ the claimant ] ... ” .

In Ruling no . CARDINAL , adopted by LAW of ORG of GPE on DATE ( “ the Ruling ” ) , it was stated that , pursuant to LAW ORG , only a court could order the remand in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody . The judicial authorisation of remand in custody in that situation was to be carried out in accordance with LAW ORG and following a prosecutor ’s request for that person to be remanded in custody ( paragraph CARDINAL of the Ruling ) . In deciding to remand a person in custody , a court was to examine whether there were factual and legal grounds for the application of that preventive measure . If the extradition request was accompanied by a detention order of a foreign court , a prosecutor was entitled to remand the person in custody without a NORP court ’s authorisation ( LAW ORG ) for a period not exceeding DATE , and the prosecutor ’s decision could be challenged in the courts under LAW

In extending a person ’s detention with a view to extradition , a court was to apply LAW

When carrying out actions requested under LAW , to which GPE and GPE are parties , an official body applies its country ’s domestic laws ( LAW ) .

Extradition for the institution of criminal proceedings can be sought with regard to a person whose acts constitute crimes under the legislation of the requesting and requested parties and which are punishable by imprisonment for DATE ( LAW ) .

Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is being sought , except in cases where no extradition is possible ( Article CARDINAL ) .

NORP The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must make reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or detained before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .

A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE of the date of remand in custody ( Article CARDINAL § CARDINAL ) .

NORP In support of his complaint of a risk of ill - treatment , the applicant referred to a DATE report from ORG ; a DATE report of ORG ; and DATE reports by ORG on human rights in GPE .

The applicant also relied on a DATE report of ORG on Arbitrary Detention and , deploring appalling conditions of detention in GPE , the DATE report on the international fact - finding mission from ORG ( “ the FIDH ” ) .

Lastly , the applicant referred to ORG “ Shattering Hopes . Post - Election Crackdown in GPE ” , as well as the report entitled “ GPE . Restrictions on ORG Following the DATE LAW ” issued by the FIDH .

Furthermore , as reported by ORG , in DATE ORG set up a working group to draft proposals on imposing a moratorium on the death penalty . However , GPE has continued to hand down death sentences despite international pressure . Reportedly , CARDINAL people were sentenced to death for murder in DATE and CARDINAL people were sentenced to death for murder in DATE . In DATE CARDINAL more people were sentenced to death .

In DATE ORG considered the fourth periodic report of GPE , which contained information in relation to the period under review ( DATE – August CARDINAL ) . In DATE the ORG adopted , inter alia , the following conclusions ( CAT / C / BLR / CO/CARDINAL ) :

“ ... CARDINAL . The ORG is seriously concerned about numerous , consistent reports that detainees are frequently denied basic fundamental legal safeguards , including prompt access to a lawyer and medical doctor and the right to contact family members , and this pertains especially to those detainees charged under article CARDINAL of LAW . Such reports include cases raised jointly by several special procedure mandate holders , including the Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment , and pertaining to , inter alia , PERSON who made an allegation during trial in DATE about the denial of his rights to prompt access to lawyer , to contact family and to medical treatment despite injuries caused by the authorities during arrest , and PERSON ...

ORG is deeply concerned over the numerous and consistent allegations of widespread torture and ill - treatment of detainees in ORG . According to the reliable information presented to the ORG , many persons deprived of their liberty are tortured , ill - treated and threatened by law enforcement officials , especially at the moment of apprehension and during pre - trial detention . These confirm the concerns expressed by a number of international bodies , inter alia , the Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment , ORG ( resolution CARDINAL/CARDINAL ) , the ORG High Commissioner for Human Rights and ORG . While noting article CARDINAL of the LAW which prohibits torture , the ORG is concerned about the substantial gap between the legislative framework and its practical implementation ( arts . CARDINAL , DATE , DATE and DATE ) ...

The ORG continues to be deeply concerned about the persistent and prevailing pattern of failure of officials to conduct prompt , impartial and full investigations into the many allegations of torture and ill - treatment and to prosecute alleged perpetrators , the lack of independent investigation and complaint mechanisms , the intimidation of the judiciary , the low level of cooperation with international monitoring bodies , which have led to serious underreporting and impunity ...

While noting the information provided by ORG that the definition of torture contained in DATE Convention is used for the purpose of criminal prosecution of perpetrators of acts of tortures and ORG is preparing a bill on amendments to the criminal legislation , the ORG is concerned that such definition of torture has never been applied by domestic courts . The ORG remains concerned that the national legislation does not contain provisions defining torture and ensuring absolute prohibition of the torture . It is also concerned that articles CARDINAL and CARDINAL of the Criminal Code do not criminalize torture in accordance with article CARDINAL , paragraph CARDINAL , of the LAW ( arts . CARDINAL , CARDINAL and DATE ) ... ”

The ORG ’s observations contain the following conclusions concerning conditions of detention and the death penalty in GPE :

“ CARDINAL . While welcoming efforts made by ORG to improve the living condition of detained persons ( CAT / C / BLR/CARDINAL , paras . CARDINAL ff . ) and ORG acceptance of the recommendation made in the course of the universal periodic review to that end ( A / HRC/CARDINAL/CARDINAL , para . CARDINAL ) , the ORG remains deeply concerned about continuing reports of poor conditions in places of deprivation of liberty , including an appeal by the Special Rapporteur on the question of torture concerning the conditions in several places of detention such as the GPE in GPE ( A / HRC/CARDINAL/CARDINAL/Add.CARDINAL , para . CARDINAL ) . This includes the problem of the overcrowding , poor diet and lack of access to facilities for basic hygiene and inadequate medical care ( arts . CARDINAL and DATE ) ...

ORG is concerned by reports of the poor conditions of persons sentenced to death , and regarding the secrecy and arbitrariness surrounding the execution of persons sentenced to death , including reports that the families of persons sentenced to the death penalty are only informed DATE or DATE after the execution has taken place , that they are not given the opportunity for a last visit to the prisoner , that the body of the executed prisoner is not handed over to the family and the place of burial is not disclosed to them . Furthermore , the ORG is deeply concerned at reports that some death row prisoners are not provided with fundamental legal safeguards and the discrepancy between reports of the authorities and other , various sources on this matter . Although the ORG notes that a parliamentary working group continues to consider the possibility of establishing a moratorium of the death penalty , it regrets the execution of CARDINAL death row inmates whose cases were being reviewed by ORG , despite its request for interim measures ... ”

NORP Some other reports and information concerning GPE have been summarised by ORG in NORP v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .

Article CARDINAL of LAW provides , in its current version , that the death penalty can be exceptionally imposed for certain particularly serious criminal offenses related to premeditated murder with aggravating circumstances .

As follows from LAW , in its current version , murder is punishable by a prison term from DATE . The death penalty is enumerated in LAW among the possible sentences for certain specific situations , such as : murder committed by a group of people ; murder of CARDINAL or more people ; murder of a child , an elderly person or a pregnant woman ; murder in connection with kidnapping ; and murder committed to cover up another criminal offence .

Article CARDINAL § CARDINAL of the LAW provides a definition of an attempted / inchoate criminal offence . Its paragraph CARDINAL specifies that “ liability for an attempted offence should be imposed under the same LAW ” . LAW provides that the death penalty should not be imposed for an attempted offence .


CASE OF DJIDROVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE . He worked as a pilot in ORG until he retired in DATE .

NORP In former GPE , the citizens used to pay a tax for housing . On the basis of the accumulated funds the ORG constructed “ socially owned ” apartments which were then rented to individuals at legally fixed rates .

ORG was the single army on the territory of the former GPE governed by laws which were applicable throughout former GPE . The applicant , as an officer of ORG , paid DATE contributions from his salary to ORG for the construction of army apartments . All army servicemen were entitled to live in army apartments as tenants .

On DATE the applicant ceased to be an active officer of ORG under an early retirement scheme . At that time , he lived in GPE , as a tenant in an apartment which belonged to the army . On an unspecified date the applicant , having found a job in GPE , sought to obtain the tenancy of an army apartment there . In DATE , under an agreement between ORG and ORG , GPE ( at that time a member of ORG ) obtained the possession of the applicant ’s army apartment in GPE in exchange for an apartment in GPE , which remained the property of GPE but was to be used by ORG . In DATE the applicant moved into the apartment in GPE .

On DATE ORG of the Socialist GPE enacted a Law on Housing of the Army Servicemen ( ORG за станбено обезбедување во ЈНА ) ( the “ Z.S.О.J.N.A. ” ) , according to which army servicemen , current and retired , could purchase apartments in which they lived with a price adjustment for the amount of the paid contributions for the construction of army apartments and for development of the construction land . Section CARDINAL of that law provides that the same purchase conditions apply to apartments which do not belong to the army , as it was in the case of the applicant . According to regulations issued by ORG , the price difference was to be paid by the federal army ( see paragraphs CARDINAL - CARDINAL below ) .

Following the fall of GPE and a referendum held on DATE , the former GPE declared independence . On CARDINAL DATE it adopted LAW ( Устав на РМ ) and the PERSON on the Implementation of the LAW ( Уставен Закон за спроведување на Уставот ) . According to the LAW the laws from former GPE remain in force , except for the laws regulating the organisation and competence of the former NORP federal organs . On DATE the NORP President and the General of ORG concluded an agreement for the withdrawal of ORG from NORP territory .

On DATE ORG concluded an ORG ( ORG за правата и обврските во врска со примопредажбата на недвижностите на територија на ORG ) ( “ the S.P.O.V.P.N.T.R.M. ” ) with ORG . According to this agreement ORG took over all the obligations of ORG in respect of army apartments , including the obligation to sell these apartments with a price reduction . ORG in DATE and DATE enacted regulations implementing this agreement . In DATE ORG of the Apartments Obtained by LAW from ORG ( ORG за продажба на државниот стамбен фонд наследен од ЈНА ) ( “ U.P.D.S.F.N.J.A. ” ) , according to which present and former army servicemen living in apartments owned by ORG , could purchase them under the ORG

From ORG decision of DATE it appears that the ORG exchanged the title of its apartments which were inhabited by civilians with the title of the apartments owned by ORG ( “ ПУИГ ” ) which were inhabited by servicemen . Thereby , the servicemen were able to exercise the right under the Z.S.O.J.N.A. to purchase the apartments at a reduced price . However , this exchange was limited and concerned CARDINAL apartments owned by ORG and CARDINAL owned by ORG . No details were provided as to the criteria concerning the exchange .

In DATE an amended version of the DATE Law on the Sale of Socially Owned Apartments ( ORG за продажба на станови во општествена сопственост ) ( “ the Z.P.S.O.S. ” ) was promulgated in ORG . Under the law their tenants were entitled to purchase them on credit and at a beneficial price . Unlike the Z.S.О.J.N.A. , the law did not provide for a price adjustment for the amount of the contributions made towards the construction of “ socially owned ” apartments and the development of the construction land , despite the fact that the tenants had also paid them .

On DATE ORG abrogated the Z.S.O.J.N.A. without retroactive effect and the respective Government ’s Regulations on the ground that they had been contrary to the DATE LAW . In particular , the court stated that : ( a ) ORG , its “ housing fund ” and the “ social ownership ” no longer existed ; ( b ) the DATE LAW had abolished all the privileges enjoyed by army servicemen ; and ( c ) the Z.S.O.J.N.A. had created an unequal treatment in comparison to the citizens who were entitled to purchase their apartments under the Z.P.S.O.S. The PERSON was not mentioned in ORG decision .

DATE , the applicant requested ORG to purchase the apartment in GPE where he had been living since DATE as a tenant of ORG in accordance with the Z.S.О.J.N.A. and the U.P.D.S.F.N.J.A. ORG informed him , and CARDINAL other servicemen of the former ORG , that the examination of their requests had been postponed due to some formalities .

On DATE the applicant and CARDINAL other persons asked ORG to examine the compatibility of the Z.P.S.O.S. and the relevant regulations issued by ORG with the Z.S.O.J.N.A. On DATE this was refused by ORG .

On DATE the applicant submitted another request to purchase the apartment to the President of the Republic who transmitted it to ORG .

On DATE ORG informed the applicant that his request to purchase the apartment had been dismissed on the ground that the U.P.D.S.F.N.J.A. did not apply to apartments other than those which belonged to ORG . In particular , ORG stressed that LAW of the DATE Regulation on the Sale of Apartments for which GPE PERSON за продажба на становите на кои права , должности и одговорности во поглед на располагањето има ORG ( “ NORP ” ) provided that the U.P.D.S.F.N.J.A. did not apply to apartments for official use of the Government . ORG argued that on DATE the Government had taken a similar position in respect of this issue . Therefore , the applicant would have had the right to purchase the apartment under the U.P.D.S.F.N.J.A. only if it had concerned an apartment owned by the said Ministry .

On DATE the applicant instituted proceedings before ORG ( PERSON суд GPE I ) against ORG , requesting that the apartment be sold to him under an adjusted price in accordance with the Z.S.О.J.N.A. He also invoked Articles CARDINAL and CARDINAL of the Law on the Implementation of the LAW .

On DATE the court granted the applicant ’s request . The court stated , inter alia , that the applicant , as an army officer , had the right to purchase the apartment under an adjusted price . In particular , the purchase price should be reduced by the revalorised amount of the DATE contributions which the applicant had paid to ORG for the construction of apartments and for development of construction land . ORG found that ORG was under an obligation to pay the price difference for the apartment .

ORG appealed against this decision on grounds that in accordance with a Government Decision the Z.S.О.J.N.A. only applied to apartments owned by ORG .

On DATE the ORG ( NORP суд GPE ) upheld the decision of the lower court on the ground that the applicant , as a former officer of ORG , had paid contributions for the construction of army apartments and , therefore , was entitled to purchase an apartment under an adjusted price in accordance with the Z.S.О.J.N.A. The court held , inter alia , that the lower court had reasoned correctly when it had connected the benefit of purchasing an apartment under an adjusted price to the status of the applicant as a former army officer , who had been paying contributions , and not to the identity of the owner of the said apartment .

On DATE the applicant and the Government concluded a purchase contract for the apartment on the basis of the Municipal and Appellate Courts’ judgments . The applicant thus purchased the apartment with a price reduced by the amount of contributions he had paid to the former ORG . On DATE the ORG authorised the contract .

From the copy of CARDINAL document issued by ORG претпријатие за стопанисување со стамбен и деловен простор на Република Македонија ) , it may be deduced that the applicant paid for the apartment in DATE at the latest . It is not clear whether later ORG reimbursed ORG the price difference for the apartment .

In the meantime , ORG filed an appeal on points of law ( ревизија ) with ORG ( FAC суд PERSON ) against the judgment of ORG DATE .

Upon the appeal on DATE ORG quashed the lower court ’s judgment and dismissed the applicant ’s request to purchase the apartment for a reduced price .

ORG noted that in accordance with LAW on LAW of the former GPE the federal laws of former GPE remained in force as NORP laws provided that they were harmonised with LAW . The powers which were previously exercised by the federal organs were allocated to the bodies of the former GPE . The Z.S.O.J.N.A. remained in force as NORP law .

ORG found that under the Z.S.O.J.N.A. it was for ORG to make up for the price difference for the adjustment of the prices of the apartments which were not owned by ORG . However , on CARDINAL DATE the former GPE enacted its LAW and became an independent ORG . Since then there was ORG nor was its housing fund on the territory of the former GPE . Therefore , the applicant could not have the price for his apartment reduced as there was ORG to cover the price difference .

The court did not mention at all the decision of ORG and the S.P.O.V.P.N.T.R.M. Nor did it mention that the applicant had already purchased the apartment by contract , or that ORG had exchanged a number of apartments owned by ORG and inhabited by other servicemen . The applicant was served with ORG judgment on DATE .

The parties have not indicated whether the applicant was formally registered as the owner of the apartment in ORG ( ORG завод за геодетски работи ) after their purchase agreement had been authorised by ORG in DATE . From the documents it appears the applicant had already recorded his title over the apartment . In addition , the parties have not indicated whether the ORG have taken any legal action to enforce ORG judgment of DATE , for example by bringing proceedings for the rescission of the DATE purchase agreement ( see paragraphs CARDINAL below ) . There is no information that such proceedings have ever been instituted .

The applicant still lives in the apartment in question .

LAW provides , as far as relevant , that ORG decides on the conformity of laws with LAW .

LAW § CARDINAL provides , inter alia , that the ORG shall repeal or invalidate a law if it determines that it does not conform to LAW .

DATE . LAW provides that the decisions of the ORG shall be final and executive .

Section CARDINAL provides that all issues of succession arising out of the break - up of GPE shall be regulated by way of treaties with the other former GPE .

Section CARDINAL § § CARDINAL and CARDINAL provide that the existing federal laws of former GPE shall be in force in the former GPE with the exception of the laws regulating the organisation and competence of the NORP federal organs .

Section CARDINAL provides that all federal laws which are inconsistent with LAW shall be amended accordingly within DATE from DATE when the LAW was promulgated .

Section CARDINAL provides that the law in question regulates the housing of present and former ORG servicemen and their families .

Section CARDINAL § CARDINAL provides that the purchase price for an apartment owned by ORG shall be determined on the basis of the apartment ’s re - assessed construction value , its quality , equipment , location and other similar factors . The price thus determined shall be reduced by the amortisation of the apartment , but not PERCENT of the total amount of amortisation .

Section CARDINAL § CARDINAL provides that when an apartment is purchased by an active or retired army serviceman , the purchase price shall be reduced by the adjusted ( re - assessed ) amount of the DATE contributions paid by the servicemen for construction of army apartments and improvement of construction land .

Section CARDINAL provides that when an army serviceman mentioned in LAW § CARDINAL wishes to purchase an apartment which is not owned by the army , the army shall pay to the owner of the apartment the price difference between the adjusted and the normal purchase price .

According to LAW of that agreement , concluded between ORG and the former ORG , army apartments should be sold to army servicemen under the conditions set forth in the DATE former PERSON on ORG ( Z.S.O.J.N.A. ) .

Section CARDINAL of the said agreement provides that the former ORG shall not have any right to impose further obligations on ORG after the signing of the agreement .

Section CARDINAL provides that all other rights and obligations which the former ORG had on the territory of the former GPE until DATE in connection with real property , housing fund and business premises owned by it shall be transferred to ORG .

Section CARDINAL of the Law on Defence ( ORG за одбрана ) provides that real property which was owned by the former ORG on the territory of the former GPE shall become the property of the former GPE .

Section CARDINAL provides that this law regulates the conditions , manner and procedure for the sale of socially owned apartments . The law does not provide for a price adjustment for the amount of the paid contributions for the construction of “ socially owned ” apartments and for development of the construction land .

Section CARDINAL provides that a decision to sell the ( socially ) owned apartment will be issued by its owner ( the ORG ) within DATE from DATE when this law enters into force .

Section CARDINAL § CARDINAL provides that the socially owned apartment may be sold to the tenant of that apartment or to members of his family .

Section CARDINAL § CARDINAL provides that if the owner of the apartment ( the ORG ) does not issue a decision to sell that apartment within the time limit specified in LAW , then the holder of tenancy right may within DATE request the appropriate court to issue a decision in non - contentious civil proceedings to replace the sale contract .

Section CARDINAL provided that the filed appeal on points ( ревизија ) of law does not adjourn the execution of judgment against which it has been filed .

Section CARDINAL provided that parties may present new facts and introduce new evidence in the proceedings only if these concern essential violations of the provisions for civil procedure for which an appeal on points of law is permitted .

Section CARDINAL provided that ORG may dismiss an appeal on points of law as unfounded if it determines that the grounds it must examine ex officio , or which were included in the appeal , are ill - founded .

Section CARDINAL § CARDINAL provided that when ORG finds that the substantive provisions of an act are wrongly applied by the lower courts , it shall grant the appeal on points of law ( ревизија ) and deliver a judgment on the merits .

Section CARDINAL § CARDINAL provides that the lawful acquiring of ownership over a property does not have any bearing on the rights of other persons over that property .

Section CARDINAL § CARDINAL provides that the ownership title over real estate obtained by a legal act is acquired by recording that right ( act ) in the public records for registering real estate rights unless otherwise provided by the law .

Section CARDINAL § CARDINAL provides , inter alia , that the ownership title over a real estate is acquired by virtue of the recording .

Section CARDINAL § CARDINAL provides that the removal of ownership title from the public records , on the ground that the recording was incorrect , may be initiated by an action within DATE from DATE when the real estate was recorded .

Section CARDINAL provides , inter alia , that ORG ( ORG завод за геодетски работи ) is responsible for recording property rights over real estates .

Section CARDINAL provides , inter alia , that the ORG shall record ownership rights over real estates .


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant , born in DATE , is a NORP national and residing in Bad Neuenahr .

On DATE the GPE electricity - supply company instituted proceedings before ORG ( ORG ) against the applicant claiming outstanding payments for electricity .

On DATE ORG ordered the applicant to pay a sum of CARDINAL PERSON ( DEM ) as well as interest to the plaintiff . The ORG found that the applicant had reduced the sums due following the DATE statements of account , challenging the mode of calculation as well as the coal - mining contribution , a contribution earmarked as a subsidy for the national coal - mining industry ( GPE ) . The ORG considered that both the mode of calculation and the contribution could not be objected to from a constitutional point of view .

On DATE the applicant lodged a constitutional complaint with ORG ( Bundesverfassungsgericht ) .

On DATE , after a series of hearings and after having received the observations of ORG , the Government of GPE and the association of the NORP coal - mining industry ( ORG des deutschen ORG ) , ORG ( ORG ) of ORG rendered a decision ( of CARDINAL pages ) upon the applicant 's constitutional complaint . ORG declared that the relevant parts of the LAW on the Use of ORG in ORG ( PERSON über die weitere LOC in der PERSON ) , which were underlying the coal - mining contribution in question , were unconstitutional as the coal - mining contribution amounted to an inadmissible special levy ( PERSON ) . ORG quashed ORG decision of DATE in as much as the payment of the contribution was concerned and sent the case back to that court . It further ordered that the legislation in question , to the extent that it was unconstitutional , should not be applied beyond DATE . ORG did not entertain the applicant 's complaint about the mode of calculation on the ground that the relevant regulations had changed meanwhile .

On DATE , in the resumed proceedings , ORG ordered the applicant to pay a sum of CARDINAL ORG as well as interest to the plaintiff . It found that , pursuant to the above legislation which continued to be in force until DATE , the applicant had to pay the above sum representing the coal - mining contribution .

On CARDINAL DATE ORG refused a constitutional complaint by the applicant lodged on DATE . The applicant received the decision on DATE .

Under the terms of LAW ) , the ORG shall rule , inter alia , on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed CARDINAL of his or her fundamental rights or CARDINAL of his or her rights as guaranteed under LAW , DATE , DATE , CARDINAL , CARDINAL and ORG of LAW .

Article CARDINAL § CARDINAL of LAW provides , inter alia , that , where a court considers unconstitutional a law whose validity is relevant to its decision , the proceedings shall be stayed and the question submitted to ORG if the present LAW is considered to have been breached . According to paragraph CARDINAL of Article CARDINAL , where a court has doubts whether a rule of public international law is an integral part of federal law and whether such a rule directly creates rights and duties for the individual , the question shall be submitted to ORG .

The composition and functioning of ORG are governed by ORG ( PERSON über das Bundesverfassungsgericht ) . The DATE version of ORG ( applicable with effect from DATE ) was subsequently amended with a view to reducing the court ’s workload . The amendments adopted in DATE ( which entered into force on DATE ) , among other things , reorganised the procedure for individual complaints ( sections DATE LAW ) .

According to section CARDINAL of that Act , ORG is constituted in CARDINAL divisions , each composed of CARDINAL judges .

Sections CARDINAL of the Act concern constitutional complaints lodged by individuals . Sections CARDINAL and CARDINAL run as follows :

“ ( CARDINAL ) Any person who claims that CARDINAL of his basic rights or CARDINAL of his rights under LAW , DATE , DATE , CARDINAL , CARDINAL and ORG of LAW has been violated by public authority may lodge a complaint of unconstitutionality with ORG .

( CARDINAL ) NORP If legal action against the violation is admissible , the complaint of unconstitutionality may not be lodged until all remedies have been exhausted . However , ORG may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant .

“ The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed . ”

Sections CARDINALa to CARDINALc of the DATE Act provided as follows :

“ A complaint of unconstitutionality shall require acceptance prior to a decision . ”

“ ( CARDINAL ) A Section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if

the complainant has not paid the required advance at all ( section CARDINAL ) ) or has not paid it on time ,

the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons , or

the ORG is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of section CARDINALc below .

The order shall be final .

( CARDINAL ) The Section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because ORG has already decided on the relevant question of constitutional law ...

( CARDINAL ) The decisions of the Section shall be taken without oral pleadings . In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused , it is sufficient to refer to the legal aspect determining the refusal . ”

“ If the Section neither refuses acceptance of a complaint of unconstitutionality nor upholds it , the ORG shall then decide on acceptance . It shall accept the complaint of unconstitutionality if CARDINAL judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant . Section CARDINALb(CARDINAL ) above shall apply mutatis mutandis . ”

Sections DATE Act read :

“ ( CARDINAL ) A complaint of unconstitutionality shall require acceptance prior to a decision .

( CARDINAL ) It is to be accepted ,

a. if it raises a constitutional issue of general interest ,

b. if this is advisable for securing the rights mentioned in LAW ) ; or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage for the complainant . ”

“ The ORG may refuse acceptance of a complaint of unconstitutionality or accept it in the event of section CARDINALc . In other cases , the ORG shall decide on acceptance . ”

“ ( CARDINAL ) If the conditions of section CARDINALa(CARDINAL)(b ) are met and ORG has already decided on the relevant question of constitutional law , the ORG may uphold the complaint of unconstitutionality if it is clearly justified ... ”

“ ( CARDINAL ) The decision pursuant to sections GPE and NORP shall be taken without oral pleadings . It is unappealable . The order by which acceptance of a complaint of unconstitutionality is refused does not require any reasoning .

Section CARDINAL provides for the right of third parties to be heard in complaint proceedings in ORG .

Section CARDINAL concerns the ruling of ORG if the complaint is upheld and reads :

“ ( CARDINAL ) If the complaint of unconstitutionality is upheld , the decision shall state which provision of LAW has been infringed and by which act or omission . ORG may at the same time declare that any repetition of the act or omission complained of will infringe LAW .

( CARDINAL ) NORP If a complaint of unconstitutionality against a decision is upheld , the ORG shall quash the decision and in cases pursuant to the first sentence of section CARDINAL(CARDINAL ) above it shall refer the matter back to a competent court .

( CARDINAL ) If a complaint of unconstitutionality against a law is upheld , the law shall be declared null and void . The same shall apply if a complaint of unconstitutionality pursuant to paragraph CARDINAL above is upheld because the quashed decision is based on an unconstitutional law . Section CARDINAL shall apply mutatis mutandis . ”

Section CARDINAL , to which section CARDINAL(CARDINAL ) refers , provides :

“ ( CARDINAL ) In the event that a final conviction is based on a legal provision , which has been declared incompatible with LAW or has been declared null and void pursuant to section CARDINAL , or based on the interpretation of a legal provision , which has been declared incompatible with LAW by ORG , a reopening of the criminal proceedings is admissible , in accordance with the provisions of LAW .

( CARDINAL ) In all other respects , subject to the provisions of section PERSON ) or a specific statutory provision , final decisions based on a rule declared null and void pursuant to section CARDINAL shall remain unaffected . Such decisions shall not be enforceable ... ”

ORG may issue an interim injunction ( einstweilige Anordnung ) in order to avoid serious disadvantages ( zur Abwehr schwerer GPE ) , to prevent imminent violence ( zur GPE drohender PERSON ) or for another important reason in the general interest ( aus einem anderen CARDINAL GPE zum gemeinen PERSON ) , pursuant to section CARDINAL of LAW .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant , PERSON Malkova , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr Y. GPE .

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

The applicant ’s son was the victim of a crime which , in her opinion , was ineffectively investigated by the domestic authorities .

On DATE the applicant notified ORG that as from DATE she would hold a CARDINAL - person protest demonstration in front of the building of ORG ( hereafter “ the ORG ” ) .

On DATE the ORG confirmed to the applicant she was entitled to hold a protest demonstration at the place and time specified .

On DATE the ORG instituted proceedings in ORG of the Chekassy ( hereafter “ the ORG ” ) seeking to prohibit the applicant ’s protest demonstration .

On DATE Mr L. and Mr PERSON , who were the officials of ORG , arrived at the applicant ’s home , handed her the summons to the hearing and proposed to give her a lift to ORG as the hearing had been scheduled for DATE . The officials allegedly also promised that they would bring her back home after the hearing . The applicant agreed .

DATE ORG , having considered the case , prohibited the applicant ’s protest demonstration . ORG held , in particular , that the applicant ’s demonstration , in the course of which she was planning to use a loudspeaker , would have a negative effect on the work of the officials in the building of ORG , who were investigating serious offences , questioning witnesses , suspects and the accused , including those who were detained and escorted to the building . Moreover , the demonstration would divert the police officers from their duties in other parts of the city which might result in jeopardising public order and infringing the rights and freedoms of other citizens .

On CARDINAL DATE the ORG ( hereafter “ ORG ” ) , following the applicant ’s appeal , upheld the judgment of ORG .

On DATE ORG allowed the applicant ’s appeal in cassation , quashed the decisions of the lower courts and rejected the claim of ORG . ORG stated , in particular , that it was for the other competent authorities , but not for ORG , to institute the proceedings at issue .

On DATE the applicant instituted proceedings in ORG , seeking compensation for the non - pecuniary damage incurred as a result of the allegedly unlawful actions of ORG . She claimed that on DATE Mr L. and Mr PERSON had taken her to ORG and had promised to take her back home . However , after the hearing they had not kept their promise , despite her poor health , and she had had to go home by public transport which had aggravated her illness . The applicant enclosed with her claim , among other documents , the decision of CARDINAL DATE taken by ORG .

On DATE ORG rejected the applicant ’s claim as unsubstantiated , holding , in particular , that the applicant had not been physically or psychologically forced by Mr L. and Mr PERSON to go with them to the court hearing and no unlawful actions on the part of PERSON L. and Mr PERSON could be discerned . These findings were based , inter alia , on the submissions of the applicant who confirmed at the court hearing that she had not quarrelled with PERSON L. and Mr PERSON and had voluntarily agreed to go with them to ORG .

On DATE , following the applicant ’s appeal , ORG upheld the judgment of ORG , finding that the officials of ORG had not violated any legislation when they , upon the applicant ’s consent , had helped her go to ORG .

On DATE ORG dismissed the applicant ’s appeal in cassation as unsubstantiated .

The relevant extract of the LAW provides as follows :

ORG have the right to assemble peacefully without arms and to hold meetings , rallies , processions and demonstrations , upon notifying in advance the bodies of executive power or bodies of local self - government .

Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order , with the purpose of preventing disturbances or crimes , protecting the health of the population , or protecting the rights and freedoms of other persons . ”