Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicants , a family of CARDINAL , are NORP nationals who were born in DATE , DATE , CARDINAL and DATE , respectively , and are currently in GPE .

s , may be summarised as follows .

The first applicant arrived in GPE and applied for asylum and a residence permit on DATE . Before ORG ( Migrationsverket ) , he claimed that he had been a major in the NORP army and had witnessed how other officers were involved in illicit smuggling of weapons . He had reported it to his superiors with the result that he had been assaulted and threatened but no investigation had been instituted . A colonel , who had been involved in the smuggling , had threatened to kill the first applicant or have him committed to a psychiatric clinic . To protect his family , he had divorced his wife and moved out of their common home . In DATE he had resigned from the military and had commenced a civil employment . DATE the colonel had contacted him and had wanted him to take part in some form of illegal activity failing which he would be killed . Out of fear , the first applicant had left the country . He submitted a copy of a referral to a psychiatric clinic for forced hospitalisation , dated DATE , and a medical certificate stating that he had been hospitalised because of concussion and was exempt from work for DATE , dated DATE .

On DATE the other applicants came to GPE and joined the first applicant ’s request for asylum and residence permits . The second applicant stated that she had chosen to remain in GPE with the children when the first applicant left the country as she had considered that his problems did not concern them . However , in DATE , the colonel had come to their home and had threatened her and had searched their home and , DATE , CARDINAL men had come to their home and had assaulted her . The men had said that they had been sent by the colonel . The second applicant claimed that she and the children had received more threats , by telephone calls and anonymous letters , and had therefore also decided to leave the country . Because of the assault , she was suffering from anxiety and depression .

The children were also heard by ORG and they stated that they felt fine , that they had not had any problems in their home country and that they did not know why they had come to GPE .

On DATE ORG rejected the ORG request . It found that the family ’s problems emanated from individual persons and not from the NORP authorities and that the family therefore should have exhausted all means to seek protection from the authorities against the aggressors . As they had failed to do so , they had not shown that they were in need of protection in GPE . ORG found no other grounds on which to grant the family leave to remain in GPE , even having regard to the fact that the case involved CARDINAL children .

The applicants appealed to ORG ( Migrationsdomstolen ) , maintaining their claims and adding that the first applicant had reported the smuggling to several authorities within the military in his section and region . A review of the weapons in the unit , carried out on the basis of his report , had not shown any irregularities but he had been threatened with court martial for slander . Consequently , since his reports had led to nothing except threats against himself and his family , it was clear that the authorities protected each other and that the applicants could not count on help or protection from the NORP authorities . Moreover , the first applicant alleged that he had also received several summonses to appear before the police . These had been sent to his address in GPE , proving that some persons were still looking for him and that the family would not be safe in GPE . He submitted CARDINAL summonses in which he was called to appear before the police on DATE , DATE and DATE , respectively . He stated that these had been sent to him by the second applicant ’s sister in GPE .

The second applicant also submitted a medical certificate , dated DATE , by PERSON , psychologist , and PERSON , psychiatrist and chief physician , at ORG in GPE . The certificate stated that the second applicant was suffering from ORG ( PTSD ) following an assault in DATE . She was taking antidepressants and consulted a psychologist on a regular basis which had improved her condition . It further noted that she was doing an internship at a hospital as a paediatrician ( her profession in GPE ) which was going well .

On DATE ORG rejected the appeal . It first seriously questioned the authenticity of the summonses invoked as they were only copies and lacked a case number . Moreover , CARDINAL stated that the first applicant was called as a witness and the others did not state why he was called . None of the summonses mentioned that he was suspected of having committed any crime . Furthermore , the court observed that the family had not reported the threats to the authorities and that the second applicant had not reported the assault . Thus , they had not made probable that the NORP authorities neither could nor would help or protect them against those individuals threatening them . Consequently , the court concluded that the applicants were not in need of protection in GPE . Moreover , it considered that the second applicant’Sweden .

Upon further appeal , ORG ( Migrationsöverdomstolen ) , on DATE , refused leave to appeal .

The applicants were then called to a meeting with ORG on DATE to prepare for their return to GPE .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .

Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in GPE ( LAW , section DATE CARDINAL Act ) . During this assessment , special consideration should be given to , inter alia , the alien ’s state of health . In the preparatory works to this provision ( Government Bill CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for the grant of a residence permit .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) .

According to LAW DATE everyone lawfully within the territory of GPE has the right to move freely and choose his or her place of stay or residence . Moreover , the PERSON on the right of NORP citizens to liberty of movement and freedom to choose the place of temporary and permanent residence within GPE ( no . CARDINAL-I , adopted on DATE , hereafter “ the DATE LAW ) guarantees the right for NORP citizens to liberty of movement and freedom to choose their place of residence but requires a person to apply for residence registration at a new address within DATE of moving ( Sections CARDINAL , CARDINAL and DATE ) . This is done by submitting an identity document , an application form and a document showing the legal basis for residence at the indicated address , such as a rent contract or the consent of the flat - owner ( LAW for registration of temporary and permanent residence of NORP citizens , no . CARDINAL , of CARDINAL DATE ) . For more details , please , see PERSON v. GPE ( no . CARDINAL , § § DATE , ORG DATE ... ) .

Furthermore , LAW stipulates that cancellation of a registration at a previous place of residence is carried out by the relevant bodies , either upon a citizen ’s application for a registration at a new place of residence or upon his application for cancellation of registration at the previous place of residence . If by the time of registration at a new place of residence , he or she has not cancelled the registration at the previous place of residence , the registration authority ( at the new place of residence ) is under an obligation to notify , within DATE , the registration authority at the person ’s previous place of residence so that it can be cancelled .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

George Nicolaou;Ledi Bianku;Vincent A. De Gaetano

The applicants Mr PERSON and Mr Jan Sztuka were born in DATE and in DATE respectively and live in PERSON .

On DATE the prosecution lodged a bill of indictment with the ORG - Koźle District Court ( Sąd Rejonowy ) . PERSON , GPE , GPE and ORG were charged with fraud and embezzlement .

On an unspecified date DATE and DATE the applicants joined the proceedings as a civil party and lodged a claim for compensation against the defendants ( powództwo adhezyjne ) .

The bill of indictment was only read out on DATE . In DATE hearings were adjourned or cancelled due to various reasons ( the health problems of CARDINAL of the accused , illness of a defence lawyers , maternity leave of CARDINAL of the trial judges , etc . ) .

On DATE the Kędzierzyn - Koźle District Court acquitted GPE , GPE and PERSON of all charges . On DATE the court discontinued the proceedings in respect of PERSON , who had died in DATE . As regards the applicants’ civil claims , they were left without examination .

On DATE the applicants appealed against the first - instance judgment .

On DATE the Opole ORG upheld the challenged judgment .

On DATE the applicants lodged with the Opole ORG a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

On DATE the ORG dismissed the applicant ’s complaint stating that there were no significant periods of unjustified inactivity for which the ORG had been responsible . The court held that the case no . PERSON was a complex one . There were CARDINAL co - accused , who faced numerous charges . CARDINAL witnesses needed to be heard . Furthermore , the duration of proceedings was extended due to ORG ’s health problems , which necessitated many hearings to be postponed , and due to a maternity leave of one of the trial judges .


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

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

The applicant is an employee of ORG and a trade - union representative elected by the council employees .

In DATE , in his capacity as a trade - union representative , the applicant asked the mayor to grant him CARDINAL ORG paid leave for trade - union activities for DATE . That request was turned down by the mayor . The applicant sought judicial review of that decision by ORG which , in a judgment of DATE granted his application , quashed the impugned decision and made a declaration that he was entitled to the requested paid leave . Following an exchange of correspondence between the applicant and the mayor , the latter granted the applicant the requested leave on DATE but required him to account for his time . By a memorandum dated CARDINAL DATE the applicant stated that he had spent the time he had been allocated studying new legislation on trade - union elections and its consequences on collective bargaining . On DATE the mayor decided to deduct CARDINAL days’ pay from the applicant ’s wages for the time he had spent studying the legislation on trade - union elections , on the ground that it had been spent in his own interest rather than in that of the staff he represented . The mayor considered that the applicant should have used his own time if his aim was personal development . If , on the other hand , he wished to improve his vocational skills , he should have attended CARDINAL of the courses available .

The applicant sought judicial review of that decision , considering that it ran counter to the right to trade - union freedom guaranteed by LAW . In a judgment of DATE ORG dismissed his application , holding that studying provisions of trade - union law was a private activity that could not be carried out at the taxpayer ’s expense . It said , inter alia :

“ All this occurred in the context of appalling relations between the council and its employee , who had devoted his time over DATE to making scores of applications for judicial review on the most tenuous of grounds or on the slightest pretext , thereby demonstrating the lack of any common ground between the parties . That situation left the applicant dissatisfied and ill at ease with his work and his output was no more than the bare minimum . In the tense , antagonistic climate that prevailed between colleagues who were duty bound to cooperate and serve the general interest , the sole solution is to apply the law to the letter ... In that regard , it is clear that Mr PERSON has no absolute right to paid leave from work to allow him to train and learn about recent legal issues ... That is a private activity that should not be conducted at the taxpayer ’s expense . ”

The applicant lodged an appeal against that judgment , in which he relied on Articles CARDINAL ( right to a fair trial ) and CARDINAL ( right to trade - union freedom ) of the LAW . By a decision of DATE , ORG dismissed the appeal as being unfounded , holding that ORG had applied the legislation without undermining the essence of the fundamental right to trade - union freedom .

LAW no . CARDINAL/CARDINAL of CARDINAL DATE on ORG , the Determination of Working Conditions and Staff Participation in Public Authorities provides that staff representatives shall be granted a number of ORG paid leave for trade - union activities . According to the applicant , the Act did not specify the trade - union activities for which paid leave was available .


Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - financial award

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

The applicant at the material time was performing contractual military service in a military unit in GPE . On DATE he was examined by ORG in GPE ( военно-врачебная комиссия ORG г. PERSON ) and found fit for military service . The only illness recorded was mild myopia of the left eye .

On DATE , at TIME , the applicant was taken by police officers to ORG ) to be questioned , apparently as a witness , in connection with an investigation of an incident of violent hooliganism .

The applicant submits that during his stay in the police station from CARDINAL to DATE he was continuously beaten by CARDINAL police officers who were trying to coerce him to confess of having committed the above offence .

NORP The police officers punched the applicant in the area of his left ear and neck . They pushed him down on the floor , kicked him and hit him with a chair - leg . During the beatings the police officers threatened the applicant that a harsh sentence would be imposed on him and that they would physically abuse and sodomise him .

On DATE , the police officers tied the applicant up and started to punch him in his face and body and hit him with a chair - leg . They undressed the applicant and tried to seat him with his naked rear on a bottle which they put on the floor , whereupon the applicant agreed to their demands and wrote a confession letter . Furthermore , it appears that there was no transcript of the applicant 's arrest drawn up throughout the whole duration of his stay in custody .

On DATE , at TIME , the applicant was handed over to CARDINAL fellow servicemen who accompanied him to his military unit . Upon arrival in his unit the applicant reported to the chief of the headquarters ( начальник штаба ) . At TIME the applicant was examined by a doctor of the medical unit . The doctor 's report contained , inter alia , the following conclusions :

“ ... A scabbed abrasion of skin , CARDINAL x QUANTITY , and a yellow - green bruise are displayed on the left ear . Palpation of the left part of the body is painful . Yellow - green bruises are displayed on the right side and in the middle of the anterior surface of the chest , QUANTITY and QUANTITY . [ P]alpation of the anterior surface of the chest is painful . Diagnosis : Soft tissue bruises on the head and body . ”

It appears that on DATE the applicant was examined by the head of the medical unit who confirmed the findings made in the doctor 's report and entered them into the applicant 's medical chart .

Following the transfer of the criminal case against the applicant to the relevant Military Prosecutor 's Office , it appears that the applicant complained orally to the investigator dealing with his case about the ill - treatment in police custody and presented copies of the above medical report and medical chart . It appears , however , that his complaints remained unexamined .

On DATE the applicant 's counsel and his father complained in writing to ORG ( прокурор г. PERSON ) that , at the time of his arrest , the applicant had on him certain personal belongings which had not been returned to him and requested that these belongings be returned . They also submitted that following his arrest the applicant had been ill - treated and coerced to confess by police officers , including police officer S.

Copies of this complaint were also forwarded to ORG and ORG ( прокурор PERSON Дагестан и PERSON ) . It appears that no reply was received to this complaint . It further appears that the applicant 's counsel and his father lodged numerous similar complaints with various prosecutor 's offices .

NORP By letter of DATE the applicant 's father was informed by ORG ( ORG прокуратура Краснознаменного Северо-Кавказского регионального управления ) that the allegations of ill - treatment were being examined in an objective and thorough manner in the course of the court proceedings ( see below ) .

NORP By letter of CARDINAL DATE the applicant 's father was informed by ORG of FAC ( NORP прокурор NORP гарнизона ) that his complaint about the applicant 's ill - treatment had been forwarded to the head of ORG .

On DATE the applicant 's counsel and his father inquired with the Derbent Town Prosecutor about the destiny of their complaint of DATE . The applicant alleges that no reply was received to this inquiry .

The Government submitted that the applicant 's requests concerning his complaint of DATE were examined by the domestic authorities repeatedly in DATE and DATE . They referred to a copy of the decision of the Derbent Town Prosecutor of DATE which read as follows :

“ ... ORG , at request of ORG of GPE , carried out an inquiry of the arguments set out by PERSON in his application to ORG concerning the violations of his rights and lawful interests by the policemen of FAC during his detention [ ... ] DATE .

The inquiry established that on DATE ORG had instituted criminal case No CARDINAL on suspicion of [ robbery ] and that on DATE [ the applicant ] had been apprehended in this connection .

Investigator [ ... ] A. O. , in charge of the case , submitted that [ ... ] during the investigative actions [ the applicant ] had never complained about the ill - treatment by the policemen of the Derbent Town Police .

PERSON and PERSON who had arrested [ the applicant ] submitted that [ ... ] during his stay in the building of the PERSON Town Police no physical or mental coercion had been used and that [ the applicant ] had never made any such complaints .

The parents of [ the applicant ] confirmed his arguments about the ill - treatment by the policemen .

According to the records of the ORG [ ... ] [ the applicant ] had not addressed himself to that institution during the period DATE .

From the judgment of ORG [ of CARDINAL DATE ] it follows that [ the applicant 's ] arguments about the coercion by the policemen were examined during the examination of the case but were rejected by the court as unfounded .

By decision of DATE the Deputy of the ORG refused to institute criminal proceedings on account of allegedly unlawful actions in respect of [ the applicant ] with reference to [ lack of evidence of a crime ] in the actions of PERSON , PERSON

This decision was quashed by ORG on DATE and the case was remitted for an additional inquiry .

's ORG were complied with fully . In particular , additional interviews of [ the applicant 's parents , relatives and neighbours ] took place . All of them confirmed that they had had hearsay knowledge of the allegations of torture from the applicant . The [ applicant 's ] Chief of ORG submitted that during [ the applicant 's ] detention he had been away on mission and that during their first subsequent meeting he had noticed no signs of violence . As regards [ the applicant 's ] fellow servicemen , at the moment of the additional inquiry their location could not be established .

[ It was apparently impossible to interview the applicant because he changed his residence and moved from ORG to GPE ] .

From the report of the medical unit of [ the applicant 's ] military unit dated DATE it follows that he had had [ certain injuries ] the origins of which [ the applicant ] and his relatives and neighbours , on the basis of [ the applicant 's ] allegations , explained by the police violence during [ the applicant 's ] detention . This was , however , not confirmed by the policemen . It was impossible to interview the applicant because his residence could not be established . It was equally impossible to examine the registry of the persons detained in the Derbent Town Police at the relevant time , the registry of those interviewed and to carry out some other investigative actions because of a serious lapse of time from the time of events in question and the destruction of the relevant documents [ ... ] .

The analysis of the available documents shows that the inquiry had failed to obtain sufficient data confirming the arguments of [ the applicant ] concerning violence by the policemen , apart from the medical report [ of DATE ] and the submissions of the relatives and neighbours which should be assessed critically because of [ the conflict of interests ] . The medical report and the submissions of the above persons are insufficient for the prosecution of policemen . In addition , [ the applicant 's ] arguments were examined by ORG [ ... ] and declared unfounded . ”

While the applicant was in police custody , the investigating authority conducted an identification parade with the participation of the applicant , CARDINAL other persons and CARDINAL attesting witnesses . Following the line - up the applicant was identified as CARDINAL involved in the incident of violent hooliganism .

On an unspecified date , the applicant was charged with hooliganism committed by a group of people .

On DATE the case was brought before ORG ( ORG гарнизонный военный суд ) , presided over by judge NORP

The applicant submits that the presiding judge NORP tried to extort a bribe from his father , promising to acquit him in return . It appears that the applicant 's father paid the amount demanded by the judge but the judge later changed his mind and demanded more money . The applicant 's father refused to pay additional money and demanded that the judge return the amount already paid which led to a conflict between them .

In the proceedings before ORG the applicant complained in detail about the ill - treatment during the police custody and submitted that his confession had been made under duress .

NORP The court heard CARDINAL police officers who had been present at the time when the applicant wrote his confession , all of whom denied using physical force against the applicant . They stated that the applicant had made his confession voluntarily .

It further heard the doctor who had examined the applicant on DATE and the head of the medical unit who confirmed their previous findings .

The court also heard the servicemen who had accompanied the applicant from the police station following his release . PERSON submitted that the applicant had had injuries and that he had told them , on their way to the military unit , about having been ill - treated in police custody . PERSON , on the other hand , denied these allegations .

The court further heard the chief of the headquarters to whom the applicant reported upon his arrival at the military unit who stated that he had not noticed any injuries on the applicant 's face from a distance of QUANTITY . The chief of the headquarters and the commander of the military unit submitted in court that the applicant reported to them about having been ill - treated in police custody .

The applicant further challenged the results of the identification parade as inadmissible evidence . The court dismissed this challenge . In doing so , the court took into account the testimonies given by both victims who stated that they had clearly seen the applicant 's face at the time of the incident , they had immediately and without hesitation recognised his face , constitution and height during the line - up and that the investigator had not made any hints to them .

The first victim added that the other participants had not had a substantially different look from the applicant , while the second victim stated that nobody had ever persuaded her to testify against the applicant . The court finally heard the CARDINAL other participants of the line - up and CARDINAL of the attesting witnesses who confirmed these statements .

On DATE ORG found the applicant guilty as charged and imposed a DATE suspended sentence of imprisonment .

As to the applicant 's allegations of ill - treatment , the court found :

“ According to the entry in the medical file of [ the applicant ] and the medical report following his examination of DATE , [ the applicant ] was found to have bruises on the left helix , the right and the middle zone of his chest .

Witnesses A. , PERSON and PERSON policemen of the Derbent Town Police – stated that no physical or mental coercion had been used in respect of [ the applicant ] , the latter voluntarily told them that on DATE at TIME [ ... ] he took part in the beating of the victim and in particular punched him once on the back .

Having assessed [ the applicant 's ] statements about the beatings by the policemen of the ORG as well as the statements of the commander of the military unit , the [ ... ] chief of the headquarters , the head of the medical unit , the court reaches the conclusion that they are partial .

The statements by [ serviceman PERSON ] who said that [ the applicant ] on DATE during the trip to the military unit in ORG car had told him [ about the coercion by the policemen ] were fully refuted by serviceman PERSON , who accompanied [ the applicant ] and [ serviceman ] PERSON in the said car .

[ Serviceman ] S. in this respect stated that during that trip in ORG car at the relevant time no such talk had taken place between [ the applicant ] and PERSON and that he had seen no traces of violence on [ the applicant 's ] face .

Having analysed the statements [ of serviceman S. ] and having compared them to all other evidence in the case , the court finds them objective and unbiased .

[ The doctor ] gave the evidence that during the examination of the [ applicant 's ] body he had discovered the bruises on the chest and the helix . This fact , even though it was supported by the medical report , was questioned by the statements of the chief of headquarters and serviceman S.

[ The applicant ] failed to submit persuasive evidence establishing the causal link between [ his ] injuries and the actions of policemen A. , PERSON and PERSON who had been accused of beating to prove in court [ this ] version of events .

As to the applicant 's identification , the court found on the basis of the witness testimonies given in this respect that the identification had been conducted in compliance with the law .

On DATE the President of ORG ( председатель ORG суда ) pardoned the applicant on the basis of an amnesty act adopted by ORG on DATE .

On DATE the applicant lodged an appeal against the judgment of CARDINAL DATE .

In his appeal he complained in detail about the ill - treatment in police custody . He also briefly indicated that his identification had been conducted in flagrant violation of the law and that the court 's dismissal of his counsel 's motion , seeking to exclude the results of the identification as inadmissible evidence , had been unfounded .

On DATE ORG ( Северо-Кавказский окружной военный суд ) dismissed the applicant 's appeal . The court found , inter alia , the applicant 's statement that his confession had been made under physical ill - treatment unsubstantiated . The court also dismissed the applicant 's allegations of unlawfulness of his identification .

According to applicant , on DATE he lodged a supervisory review complaint in which he outlined all of his previous arguments , including the complaint about the alleged ill - treatment with the President of ORG .

On DATE the President rejected the complaint as groundless and refused to institute supervisory review proceedings .

Article CARDINAL § CARDINAL of the LAW provides that no one may be subjected to torture , violence or any other cruel or degrading treatment or punishment .

Section CARDINAL § CARDINAL ( f ) of the Criminal Code penalises an act of torture with a sentence of DATE imprisonment .

Under LAW § CARDINAL ( a ) and ( c ) of the LAW the abuse of official power with the use of violence or entailing serious consequences is punishable by DATE of imprisonment .

Under LAW and CARDINAL of the DATE Code of Criminal Procedure ( in force until DATE ) , a criminal investigation could be initiated by a prosecutor ex officio or at the request of a private individual .

Where an investigating body refused to open or terminated a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed to a higher - ranking prosecutor or to a court ( Sections CARDINAL and CARDINAL ) .


Preliminary objection dismissed (incompatibility ratione personae, non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

After the applicant 's husband had died in DATE , she instituted proceedings in which she claimed her widow pension .

By a decision of DATE , the social insurance authority dismissed her request .

On DATE ORG dismissed her appeal against this decision . On DATE ORG dismissed her further appeal .

The appellate court observed that the findings of fact made by the social insurance authority were correct . The applicant and her husband had de facto separated in DATE . He had been living since then with another woman . The applicant had not been receiving any maintenance payments from him . When he had fallen ill , she had not been taking care of him and she had been informed of his poor health only in DATE . The court considered that the lower court had not erred when it assessed the testimony of CARDINAL witness , who had submitted that the couple had been living together , as not being credible . The appellate court concluded that the legal requirements for granting a widow pension were not complied with .

The applicant requested that legal aid for the purposes of lodging a cassation appeal with ORG be granted to her and her request was allowed . The court requested ORG to assign a lawyer to the case and advocate PERSON was so assigned on DATE .

The copy of the judgment of the appellate court was served on GPE on DATE .

By a written opinion of CARDINAL page and CARDINAL dated DATE PERSON advised the applicant that , in his view , a cassation appeal against the judgment of the appellate court did not offer reasonable prospect of success . He referred to the written grounds of the judgment of the appellate court by which that court had explained why the applicant had not complied with the requirements of the applicable law , and considered that in the light of the evidence examined by the courts , there were no grounds on which to argue that the second - instance judgment was in breach of the law . Consequently , he did not draw up the cassation appeal .

The opinion contained the following paragraph :

“ I would like to stress that the judgment of ORG DATE was served on me on DATE ( sic ) DATE and that the DATE time - limit for the lodging of a cassation appeal expires on DATE . ”

On DATE the applicant had a meeting with the lawyer at his office . He gave her his opinion and informed her that he saw no grounds on which to prepare a cassation appeal in her case . On the same occasion the applicant was served with the copy of the appellate court 's judgment with its written grounds .

DATE LAW , insofar as relevant , reads :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ... ”

“ By means of a statute , associations may be created within a profession in which the public repose confidence , and such professional associations shall concern themselves with the proper practice of such professions in accordance with , and for the purpose of protecting , public interest . ”

Pursuant to LAW , a court should give all necessary procedural instructions to a party acting without a lawyer and , in particular should indicate the consequences of that party 's acts or failures to act .

Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family 's standard of living .

Pursuant to LAW , persons exempted from the court fees may request that legal aid be granted to them . The court will then request the relevant ORG or ORG to assign an advocate or a legal adviser to the claimant 's case .

At the material time , a party to civil proceedings could lodge a cassation appeal with ORG against a judicial decision of a second - instance court which terminated the proceedings .

Under Article CARDINAL § CARDINAL of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within DATE from the date on which the decision with its written grounds was served on the party concerned . Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected .

Article CARDINAL of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law by its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Article CARDINAL specified the requirements of a cassation appeal . It read in its relevant part :

“ § CARDINAL . A cassation appeal should include :

CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;

CARDINAL ) NORP an indication of the grounds for the cassation appeal ;

CARDINAL ) NORP arguments showing that its examination would be justified ;

CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . ”

Article CARDINAL read as follows :

“ A second - instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time - limit or which is inadmissible on other grounds ( ... ) . ”

The reasons justifying the examination of a cassation appeal by ORG could be inferred a contrario from Article CARDINAL of LAW of Procedure which , as applicable at that time , read , in its relevant part :

“ CARDINAL . ORG may refuse to entertain the cassation appeal , if :

i ) there is no appearance of any significant legal issue in the case ,

ii ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case law ,

iii ) the appeal is manifestly ill - founded .

Paragraph CARDINAL shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law . ”

In its judgment of DATE ORG examined a number of constitutional complaints in which the complainants argued essentially about certain provisions of LAW , also insofar as they regulated the conditions that cassation appeals had to comply with .

The ORG observed , inter alia , that certain terms describing the conditions which cassation appeals had to meet under Article CARDINAL et seq . of the LAW ( “ important legal issue ” , “ provisions raising serious doubts or causing discrepancies in the courts ' case law ” , “ arguments showing that examination of the cassation appeal would be justified ” ) were drafted in the broadest terms . It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of the NORP courts .

Article CARDINAL of LAW of DATE , as amended , reads , insofar as relevant :

“ CARDINAL . The Bar is established to provide legal assistance , co - operate in protecting a person 's rights and freedoms as well as to formulate and apply the law .

The Bar is organized as a self - governing association .

An advocate whilst executing his / her professional duties is accountable only to the law . ”

Article CARDINAL of the LAW provides as follows :

“ The general tasks of the professional ORG are as follows :

CARDINAL ) NORP creation of conditions for the performance of the Bar 's statutory tasks ,

CARDINAL ) NORP representation of the Bar and protection of its rights ,

CARDINAL ) NORP supervision over the observance of the rules regulating the practice of the profession ,

CARDINAL ) development of professional skills and training of advocates ,

CARDINAL ) determination and promotion of professional ethics and ensuring their observance ,

CARDINAL ) management ( ... ) of the Bar 's assets . ”

Article CARDINAL of the Act reads :

“ CARDINAL . An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party . Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local ORG , and in situations where time is of the essence , by the PERSON of that ORG .

In cases where legal assistance is granted on the basis legal regulations concerning legal aid , only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance . ”

Under LAW of the LAW , an advocate shall provide legal aid services in the jurisdiction of a court where he or she has its office .

Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by ORG . They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court .

Under LAW adopted by ORG on DATE , when an advocate , either privately hired by the client or appointed under legal aid scheme , considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view , the lawyer shall give notice of termination of the power of attorney terminate the representation , or notify the refusal to the body which appointed him or her .

In DATE ORG issued a resolution in reply to a legal question whether a legal aid lawyer could refuse to lodge a cassation appeal . It replied to the question in the positive .

NORP The court observed that issues involved in the legal aid concerned not only proper administration of justice , but also touched on human rights , and a right of access to a court in particular . Nevertheless , there was no comprehensive and coherent regulation of legal aid available under NORP law .

The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism . However , a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole , mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure . In particular , the scope of legal aid lawyers ' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure . This was so partly because the essential body of law concerning civil procedure had been enacted in DATE , while the provisions on mandatory legal representation for the purposes of the cassation appeal had been introduced in DATE , when this new kind of appeal had been created .

As a result , the scope of legal aid lawyers ' obligations to provide a party to the proceedings with “ legal aid ” in civil proceedings was unclear . In particular , the provisions on the lawyers ' legal aid obligations in connection with cassation proceedings before ORG lacked clarity . The court noted that the judicial practice regarding the application of relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case - law of the NORP courts .

The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law . It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client 's wishes . The role of a legal aid lawyer had rather to be understood as obliging him or her to provide legal advice to the party , including as to the prospects of success offered by a cassation appeal against a given judgment .

The constitutional role of ORG , the highest judicial authority , was also an argument in favour of a conclusion that a legal aid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail . In case of a disagreement between the party and the lawyer , it was open to the party to complain to the local Bar under LAW . The Bar could then appoint a new lawyer who could lodge a cassation appeal , requesting at the same time to be granted leave to appeal out of time under LAW . It was true that the practice of ORG was not coherent in that in some cases it had been rejecting such requests and in other it accepted them . However , it did not prevent the parties from having recourse to this course of action .

Pursuant to LAW , a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed timelimit ; this measure shall be performed simultaneously with lodging the request .

Article CARDINAL CARDINAL of the Code of Civil Procedure reads , insofar as relevant :

“ CARDINAL . If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case , the court correspondence shall be served on these persons . ”

Pursuant to the case - law of ORG , if a party to civil proceedings is represented by a lawyer , the procedural timelimits set by LAW start to run on DATE of the service of judicial decisions on him or her ( III CRN CARDINAL/CARDINAL ; I ORG , CARDINAL ) .

ORG has adopted LAW in ORG .

Its Article CARDINAL provides that a lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is his or her duty not only to plead his or her client 's case but also to be his or her adviser .

A lawyer 's function therefore lays on him or her a variety of legal and moral obligations , sometimes appearing to be in conflict with each other , towards the client , the courts and other authorities before whom the lawyer pleads his or her client 's case or acts on his or her behalf ; the legal profession in general and each fellow member of it in particular ; the public for whom the existence of a free and independent profession , bound together by respect for rules made by the profession itself , is an essential means of safeguarding human rights in face of the power of the state and other interests in society .

Pursuant to Article CARDINAL.CARDINAL.CARDINAL of the LAW , a lawyer shall advise and represent his or her client promptly , conscientiously and diligently .

Under Article CARDINAL a lawyer shall not be entitled to exercise his or her right to withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prejudice being suffered by the client .

This recommendation , insofar as most relevant , reads :

“ CARDINAL . No litigant should be prevented from being assisted by a lawyer . The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided . Where , having regard to the nature of the matter involved , it would be desirable , in order to facilitate access to justice , for an individual to put his own case before the courts , then representation by a lawyer should not be compulsory . ”

The Recommendation , in its most relevant parts , provides :

“ Recalling that in addition to the right of access to the law and to justice provided for in LAW , the other provisions of the LAW and particularly Articles CARDINAL , CARDINAL and DATE are equally applicable to the very poor , as are the other legal instruments of ORG such as LAW ;

Considering that this recommendation is intended to improve , especially with regard to the very poor , existing legal advice and legal aid systems , and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed .

Recommends that the governments of member states :

ORG access to the law for the very poor ( “ the right to the protection of the law ” ) by :

b. promoting legal advice services for the very poor ;

Facilitate effective access to the courts for the very poor , especially by the following means :

c. recognising the right to be assisted by an appropriate counsel , as far as possible of one 's choice , who will receive adequate remuneration ;

e. simplifying the procedure for granting legal aid to the very poor , [ ... ] ”

The ORG provides , inter alia :

“ ORG , under the terms of Article CARDINAL.b of the Statue of the Council of Europe , [ ... ]

Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms ; [ ... ]

Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers ,

Recommends the governments of member PERSON to take or reinforce , as the case may be , all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation .

All necessary measures should be taken to respect , protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public , in particular in the light of the relevant provisions of LAW .

All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers ,

Lawyers should be encouraged to provide legal services to persons in an economically weak position .

Governments of member GPE should , where appropriate to ensure effective access to justice , ensure that effective legal services are available to persons in an economically weak position , in particular to persons deprived of their liberty .

Lawyers ' duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds . ”


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . The respondent Government were represented by their Agent , Mr PERSON , of ORG .

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

DATE and DATE the applicant concluded with ORG ( the ORG ) contracts of lease concerning CARDINAL farms and on DATE a contract permitting use of another farm . The total land in his possession amounted to over CARDINAL ha .

On DATE the ORG terminated all contracts with the applicant without notice , on the grounds of his alleged failure to pay the rent for DATE . The stocktaking was to take place on DATE . The information about the termination of the contracts and the date of the stocktaking was served on the applicant ’s authorised representative . On DATE the ORG officials took over the property , in the presence of the applicant ’s representative , and the applicant was immediately evicted from all the farms . He was not present .

On DATE the applicant lodged a claim for repossession of the farms against the ORG . He claimed that his right to the peaceful enjoyment of possessions had been infringed because of an unlawful and hasty eviction . It was disputed by the parties whether the authorised representative had informed the applicant about the fact and date of taking over the property by the ORG and whether the applicant had consented to it . The amount of the rent in arrears was also in dispute .

On DATE the ORG dismissed the claim . The court referred to LAW . ORG established that the authorised representative , having informed the applicant by phone about the stocktaking and the impending eviction and with the applicant ’s consent , had allowed the ORG officials to proceed with the taking over of the property . The applicant had allegedly confirmed his consent in writing . The representative had been empowered to carry out a wide range of legal and factual acts on the applicant ’s behalf . Therefore , ORG concluded that the interference had not been unlawful , as the applicant had been aware of and consented to all the actions of the ORG officials .

ORG further established that the applicant had not fulfilled properly his obligations arising from the lease contracts and at the material time had had serious financial problems . Moreover , at the time of the court ’s judgment the applicant had not been working , lived on a small pension and all his immovable property had been seized by creditors . Therefore , the court considered that if it had made the repossession order in respect of the farms concerned , such an order would be in contradiction to LAW . This provision stipulated that no one could exercise his or her right in a manner , which would contradict its “ socioeconomic purpose ” or the “ principles of community life ” . In his present financial condition the applicant could not ensure the proper management of the agricultural property of such a considerable size and value . Also , at the time of the judgment , the ORG was no longer in possession of the property previously leased by the applicant , as some farms had meanwhile been leased to other persons and some had been sold .

The applicant appealed . On DATE ORG dismissed the appeal . However , the court emphasised serious shortcomings committed by the lower court in the assessment of the evidence . The court found that the evidence in the possession of ORG “ absolutely ” did not justify a conclusion that the applicant had been aware of and had consented to the stocktaking of the property in question and to his eviction . The testimony of the authorised representative could not have reasonably led to such a conclusion . He had clearly testified that he had only spoken to a secretary , not to the applicant himself , and informed her that the applicant should come to the farm , without explaining the reason . Thus , the applicant could not have given his consent during the alleged phone conversation . Further , there was nothing in the applicant ’s letter relied on by the lower court that would indicate his written consent to the stocktaking and eviction . Moreover , the scope of the power of attorney given to the representative did not authorise him to give the farms away . The infringement of the applicant ’s possession was , therefore , unlawful and violated LAW .

Nonetheless , the court dismissed the appeal , as it agreed with the final conclusion of ORG judgment regarding the application of LAW . Restoring de facto possession of the property to the applicant at that time would have been , according to the court , contradictory to the “ socioeconomic purpose ” of the applicant ’s right . It would also breach the so - called “ principles of community life ” . The applicant was in a difficult financial situation and the farms had already long been in the possession of various third parties to whom the ORG had either sold or leased them . Hence , after DATE that had passed since the infringement of the applicant ’’ property rights . For these reasons , and regardless of the infringement of the applicant ’s rights as a result of his eviction in DATE , his repossession claim had to be dismissed . The length of the proceedings and reasons for which they had taken so long were of no importance at this point .

No cassation appeal was available .

The applicant instituted several civil proceedings against the ORG . Most of them were unsuccessful ( for example , the courts found some of his claims time - barred ) .

In DATE the applicant lodged a compensation claim against the ORG for damages resulting from unlawful termination of lease contracts .

On DATE ORG delivered a judgment awarding the applicant MONEY ( approx . CARDINAL EUR at the relevant time ) . The court found that the termination of the lease contracts had not been justified by the circumstances and had not been carried out in accordance with the relevant law . Consequently , the applicant had sustained loss , equal to the average profit from an agricultural farm during the period for which the contracts had been concluded .

The ORG appealed . The appeal proceedings are pending . No hearing has been scheduled yet .

The Polish Civil Code , Book CARDINAL entitled Ownership and Other Property Rights , provides for various property - like rights for a possessor in Title IV : Possession . The relevant Articles read , as far as relevant :

The possessor of property is both the person who actually controls the property as an owner ( an autonomous possessor ) and the person who actually controls the property as a usufructuary , the holder of a lien , a lessee , or a tenant or who has other rights associated with certain control over another person ’s property ( a dependent possessor ) .

Possession shall not be wilfully infringed even if the possessor acted in bad faith .

§ CARDINAL . The possessor can claim the restoration of the previous state [ repossession of the property ] and abstention from infringements against the person who wilfully infringed possession as well as against the person who benefited from the infringement occurred . That claim shall not be dependent upon the good faith of the possessor not upon the compliance of possession with the law ...

§ CARDINAL . The [ repossession ] claim shall expire if not pursued within DATE from the date of infringement .

CARDINAL of the introductory provisions of the Polish Civil Code , Article CARDINAL , reads as follows :

A person may not exercise his or her right in a manner which would contradict its socioeconomic purpose ( społeczno - gospodarcze przeznaczenie prawa ) or the principles of community life ( zasady współżycia społecznego ) . Such act or omission on the part of the person entitled shall not be considered as the exercise of that right and shall not be protected by law .


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

H.K. , the applicant ’s brother , had been a member of the NORP resistance troops of the underground ORG ( ORG ) , commonly referred to as the “ NSZ ” . The ORG had been founded in DATE and , originally , formed partisan forces fighting the NORP during the Second World War . At DATE the ORG ’s command , considering that the defeat of the NORP was inevitable , decided that the main enemy was the communist GPE and ordered that , from that time on , the ORG should direct its attacks against ORG and the NORP communist partisan forces . After the liberation of GPE , some of the ORG members took refuge in the LOC , while others , after being ordered not to attack ORG directly , established an underground resistance movement against the communist government . On DATE PERSON was convicted by ORG ( PERSON ) in connection with , inter alia , his membership of the ORG , which was considered an “ illegal organisation established with the aim of subverting the political and legal system of the ORG ” . He was sentenced to DATE imprisonment and then served his sentence . He was released on an unspecified date . On DATE he was shot dead by a militia officer .

On DATE the applicant lodged an application under section CARDINAL ) of the PERSON of DATE on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for GPE ( Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu PERSON ) ( “ the DATE LAW ) with ORG ( Sąd Wojewódzki ) , seeking to have his late brother ’s conviction of DATE declared null and void . Shortly afterwards , the court decided that the applicant ’s request would be examined together with a similar application , which had been lodged by the widow of a co - defendant of his brother on DATE .

On DATE the applicant ’s lawyer asked the court to set a date for a hearing as soon as possible , submitting that his client was an elderly person suffering from various ailments and that the court should therefore give priority to his case .

On DATE the applicant ’s lawyer again asked ORG to fix a date for a hearing , maintaining that his previous application for the proceedings to be accelerated had been to no avail and that the period of total inactivity on the part of that court had , in the meantime , exceeded DATE .

On DATE the Deputy Chief Judge of ORG of ORG informed the applicant that CARDINAL similar applications had been lodged with that court during DATE . This had created inevitable organisational problems because the judges of ORG were doubly overburdened : by the number of criminal cases which they had to deal with as their normal work and by the extra work arising from the significant number of cases concerning applications for wrongful convictions to be declared null and void . Moreover , as far as possible , the court was giving priority to applications lodged by living victims of repression and , therefore , it had to postpone the examination of those lodged on behalf of deceased victims . However , and in any event , there was no possibility of clearing the existing backlog within DATE .

On DATE ORG listed a hearing in the applicant ’s case for DATE . On that date the court annulled the conviction of CARDINAL DATE insofar as it concerned the charges relating to activities regarded as having been aimed at achieving independence for GPE . Since no party to the proceedings appealed within the statutory time - limit of DATE , the first - instance decision became final on DATE .

The PERSON of DATE on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for GPE sets out rules concerning the conditions under which certain politically - motivated convictions rendered from DATE to CARDINAL DATE can be declared null and void , and provides for the ORG ’s civil liability for such convictions .

At the material time the relevant part of section CARDINAL(CARDINAL ) of the DATE Act provided :

“ Convictions or other decisions rendered by the NORP judicial , prosecuting or extra - judicial authorities during the period ... from DATE to CARDINAL DATE shall be declared null and void if the offence with or of which the person concerned was charged or convicted related to activities undertaken by him with the aim of achieving independence for GPE , or if the decision in question was taken on the ground that he had undertaken such activity . The same applies to persons convicted of resisting the collectivisation of farm land and compulsory contributions of foodstuffs . ”

The relevant part of section CARDINAL , as applicable at the material time , read :

“ CARDINAL . A conviction or decision [ referred to in LAW ) ] shall be declared null and void on an application lodged by [ one of the following persons ] : the ORG , the Minister of ORG , a prosecutor , a victim of repression or any person authorised by law to lodge an appeal on his behalf ; where a victim of repression has since died , or he has left the territory of GPE , or is mentally ill , such an application may be lodged by any of his close relatives : ... siblings or spouse , or by an association of persons persecuted for activities undertaken by them with the aim of achieving independence for GPE .

NORP The court shall determine the case at a hearing on the basis of the case - file of the organ which made the original decision . It may , where necessary , obtain additional evidence .

A party entitled to file an application under paragraph CARDINAL shall be entitled to appeal against a decision on whether or not the original decision should be declared null and void .

Unless otherwise provided , the provisions of LAW shall apply by analogy to the proceedings [ relating to applications under paragraph CARDINAL ] ; however , a prosecutor must participate in the hearing . A victim of repression [ and other persons entitled under paragraph CARDINAL to lodge an application ] or , with the court ’s leave , other persons may participate in the hearing . The hearing shall be recorded in TIME . ”

On DATE the CARDINAL LAW was amended to the effect that its provisions from that date on became applicable to persons who had been persecuted or convicted for political reasons by the Stalinist NORP authorities by virtue of an agreement concluded on DATE between ORG ( PERSON ) and the government of the GPE . Under that amendment , only ORG was competent to deal with applications lodged by this group of repressed or wrongly convicted persons . Later , on DATE , the DATE Act was again amended ; this time to the effect that all regional courts could deal with applications lodged by such persons . The second amendment took effect on DATE .


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

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

The applicants were born in DATE and live in Bad Neuenahr .

On DATE Apartment CARDINAL , QUANTITY Turda Street , GPE , the applicants’ property , was seized by the ORG under Decree no . CARDINAL/CARDINAL , with payment of compensation , following their decision to leave the country . In appears from the file that the applicants received CARDINAL NORP Lei in compensation .

On DATE the ORG company , a ORG - owned company responsible for the management of property belonging to the ORG , sold the flat to the then tenants , under PERSON no . LANGUAGE .

On DATE ORG , by a final decision , allowed an action by the applicants , annulled the seizure as being unlawful and ordered restitutio in integrum .

On DATE ORG ordered restitutio in integrum of the apartment and on DATE informed the ORG company of this .

On DATE ORG , by a final decision , dismissed the action lodged by ORG and joined by the applicants against both the ORG company and the former tenants of the apartment , to have the sale declared null and void . The court considered that the sale had complied with the provisions of PERSON no . NORP and had been made in good faith . It also stated that the applicants would receive compensation under PERSON no . CARDINAL/CARDINAL .

On DATE and DATE the applicants claimed restitution in kind of the apartment under the PERSON no . CARDINAL/CARDINAL governing immovable property wrongfully seized by the ORG . So far they have not received any answer .

On DATE ORG dismissed an application ( recurs PERSON anulare ) by PERSON , acting at the instance of the applicants , to have the judgment of DATE quashed on the grounds that it was contrary to the provisions of LAW No . CARDINAL of the Convention and to the principle of legal certainty . The court considered that the sale had been made in good faith and observed that the principle of legal certainty had not been infringed , as the sale had preceded the final judgment which ordered restitutio in integrum and , moreover , the former tenants had not been parties in that set of proceedings , therefore the final judgment was not opposable by them .

NORP The relevant legal provisions and jurisprudence are described in the judgments GPE v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALVII ) ; PERSON and Others v. GPE ( no . MONEY , § § DATE , ORG CARDINALVII ) ; ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) ; and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .


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

The applicant was born in DATE and is currently detained in the Tekirdağ F - Type Prison .

On DATE the applicant was taken into custody within the context of a police operation carried out against an illegal organisation , namely the TKP / ML – TIKKO ( ORG - Marxist ORG and ORG ) .

On DATE the applicant was brought before a single judge at ORG who ordered his detention on remand .

On DATE the public prosecutor at ORG filed a bill of indictment against QUANTITY persons , including the applicant who was charged with membership of an illegal organisation under LAW .

On DATE the case brought against the applicant and his co - accused before ORG of ORG was joined with another case which had been pending before ORG of ORG .

During the subsequent CARDINAL hearings DATE and DATE , ORG , relying on the state of the evidence , the nature of the offence , and the duration of his detention , refused to release the applicant .

In the meantime , on DATE the applicant escaped from prison . On DATE he was arrested and sent back to prison .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

On CARDINAL DATE ORG quashed the judgment of DATE and remitted the case file to the first - instance court .

On DATE ORG ordered the applicant 's release pending trial .

By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished . Subsequently , ORG of ORG acquired jurisdiction over the case .

While these proceedings were pending under file no . CARDINAL , on DATE the applicant was taken into police custody in connection with a new crime . On DATE he was detained on remand .

On DATE the GPE public prosecutor filed a new bill of indictment with ORG , charging the applicant under LAW with attempting to undermine the constitutional order . The proceedings commenced before the CARDINALth chamber of ORG under file no . PERSON .

On DATE the CARDINALth Chamber of ORG rendered its judgment in case no . CARDINAL/CARDINAL in respect of some of the accused . It disjoined the case against the applicant and decided to join it to the new proceedings brought against the applicant pending before the same court under file no . PERSON .

On DATE the CARDINALth Chamber of ORG decided to join the case ( file no . PERSON ) to another pending before it ( file no . CARDINAL ) .

During the subsequent hearings , ORG rejected the applicant 's release requests having regard to the state of the evidence , the nature of the offence and the risk of the applicant absconding .

According to the information in the case file , the criminal proceedings against the applicant are still pending before the CARDINALth Chamber of the Istanbul Assize Court under file no . CARDINAL . The applicant is currently in detention on remand .


The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , PERSON and PERSON , lawyers practising in GPE . The second applicant is ORG ( ADEDY ) . It was represented before ORG by Ms ORG Tsipra and Mr PERSON , lawyers practising in GPE .

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

The first applicant is a member of ORG and since DATE has been on the scientific staff of ORG . On that date she commenced employment under a private - law contract for an initial DATE period and subsequently on an indefinite basis . Her pay was governed by LAW . CARDINAL/CARDINAL and CARDINAL/CARDINAL on the salary rules applicable to public servants and public - sector employees . On DATE she was seconded to the central department of ORG ( PERSON ) , a corporate body governed by public law .

The second applicant is a trade union organisation representing several unions of public - sector workers employed on a permanent basis or under private law by the ORG , corporations governed by public law and the local and regional authorities . Its main aim is to defend the economic , social and professional interests of public - sector workers , including with regard to pension issues .

On DATE Law no . CARDINAL/CARDINAL , entitled “ Protection of the national economy – Urgent measures to respond to the financial crisis ” was published in ORG ... The PERSON reduced the pay of persons working in the public sector – irrespective of their employment status – by a percentage ranging from PERCENT , notwithstanding any other specific or general legislation , collective agreement , arbitration ruling or individual agreement or contract ( section CARDINAL ) . It established a new pay ceiling for all persons working in the public sector ( section CARDINAL ) and set out the government ’s DATE revenue policy . The above - mentioned reductions were to apply retrospectively from DATE and DATE .

On DATE the Minister of Finance and the Governor of ORG , representing GPE , and ORG Commissioner for ORG , signed a memorandum of understanding . This document set out in detail the measures comprising a DATE programme drawn up by the NORP authorities after consultation with ORG , ORG and ORG . It stated , inter alia , that “ [ i]ncomes and social security policies need to buttress the fiscal adjustment effort and restoration of competitiveness . Realigning incomes to sustainable levels is necessary to assist fiscal correction , support a reduction in inflation well below the euro area average , and improve price and cost competitiveness on a lasting basis ” . Further on , the document stated as follows :

“ The government is committed to fairness in the distribution of the adjustment burden . Our resolve to protect the most vulnerable in society from the effects of the economic downturn was taken into account in the design of the adjustment policies . In consolidating government finances , larger contributions will be raised from those who have traditionally not carried their fair share in the tax burden . With regard to the reduction in public wages and in pensions , the minimum earners have been protected : [ as regards ] pension reductions : The elimination of DATE and CARDINALth pensions is compensated , for those receiving CARDINAL a month , by introducing a new flat bonus of € CARDINAL a year . The benefit reduction is weighted toward the higher pension earners . Wage bill reductions . DATE CARDINALth wage payments will be eliminated for all employees . To protect the lower income segment , here too , for those receiving CARDINAL a month , a flat bonus payment of € MONEY a year per employee will be introduced , which will be financed through cutting salary allowances for higher income segments . ”

On DATE Law no . DATE on measures to implement the euro area / IMF financial stabilisation mechanism for GPE was published , essentially ratifying the memorandum of understanding with regard to relations between GPE and the euro area Member GPE . LAW reduced public - sector pay by a further PERCENT . LAW increased the rate of ORG and the special consumption taxes .

On DATE and CARDINAL DATE the Finance Minister signed CARDINAL agreements : the “ ORG between certain LAW and ORG ( as Lenders ) and GPE ( as Borrowers ) and ORG ( as ORG ) ” , and the “ ORG - by Arrangement ” .

Under LAW . CARDINAL/CARDINAL and DATE the first applicant , who had been receiving a gross DATE salary of MONEY ( ORG ) ( leaving her with a net salary of ORG CARDINAL,CARDINAL.CARDINAL ) had her special allowance reduced by PERCENT from DATE and her “ GPE ” allowance cut by PERCENT . The latter was subsequently abolished altogether , together with the “ DATE ” allowance and the holiday allowance . More specifically , the first applicant ’s gross salary had been made up of a basic salary of ORG CARDINAL , a family allowance of EUR CARDINAL , a graduate allowance of ORG DATE and a special allowance of EUR MONEY . The last of these allowances had been set at ORG CARDINAL on DATE but was reduced by PERCENT on DATE and by a further PERCENT on DATE . With the entry into force of Law no . DATE , the applicant ’s DATE , GPE and holiday allowances were stopped since her total DATE pay exceeded ORG CARDINAL,CARDINAL ... .

Law no . CARDINAL/CARDINAL reduced the amount of these allowances for public - sector retirees and abolished them altogether for those under DATE .

On DATE the applicants and other individuals applied to ORG : the first applicant applied for judicial review of her pay statement , while the second applicant sought judicial review of the adverse impact which the above - mentioned laws would have on its PERSON financial situation . The persons lodging the applications alleged that the laws in question were in breach of the LAW and of various international instruments including LAW .

On DATE ORG , sitting as a full court , rejected the applications for judicial review ( judgment no . CARDINAL/CARDINAL , finalised on DATE ) . ...

On DATE an administrative decision adopted under PERSON no . TIME ( laying down rules on pensions , salary scales , appraisal , the creation of a reserve of posts and other measures to implement the public finances medium - term strategic plan ( DATE ) ) cut the applicant ’s salary by a further LAW , bringing her net DATE salary to ORG CARDINAL,CARDINAL.CARDINAL .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant , PERSON , is a NORP national who was born in DATE and lives in LOC . He is represented before the ORG by PERSON , from PERSON . ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG Attorney .

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

The applicant was born in DATE and lives in Šmartno pri Litiji .

On DATE the applicant was driving a truck near FAC . He was stopped by the police on suspicion of having loaded the cargo in breach of applicable road traffic rules . The police asked the applicant to weigh the truck but he then started to unload it , explaining that he had been so instructed by his superior . The police found that the applicant had committed a minor offence under section CARDINAL § § CARDINAL of FAC on account of his non - compliance with police instructions to weigh the truck , and they imposed a fine of MONEY ( ORG ) . On DATE written notice of the payment order issued by the police was sent to the applicant , who received it on CARDINAL DATE .

On DATE the applicant lodged a request for judicial review which read as follows :

“ Grounds for request

My request is based on the principle of the presumption of innocence as provided in LAW and ORG , CARDINAL , DATE , DATE and CARDINAL of the LAW .

Explanation

Section CARDINAL of LAW states the following : a person who is accused of a minor offence shall be presumed innocent until their guilt is established by a final decision . LAW in its LAW states the same . In my case there was no final judgment and therefore the second payment order issued has no legal value . I will soon have a whole collection of payment orders and decisions by which mistakes were corrected .

The police can not and should not be a body deciding on minor offences ( see LAW ) . The charges of a criminal offence can , in accordance with LAW , be decided only by a judge .

A time - limit for appeal or a request for judicial review is not compatible with LAW . It should also be indicated whether the time - limit concerns working or calendar days . An appropriate time would be DATE , since the ORG also needs DATE to send you documents if you request them .

You are charging me with an offence which you have not specified or explained clearly and about whose consequences you have submitted no evidence . As a citizen , I am not required to know the paragraphs and articles of FAC . In any event , I do not know what I am charged with . You should present evidence concerning the consequences . I claim that I was driving in accordance with the regulation . The accuser must submit clear material or written evidence , therefore I request you to do the following :

- submit documents concerning the measuring device and the evidential method required by the law on standardisation ( a - tests , measuring sheets , a judicial decision proving that the results obtained by this device can be used as evidence ) ;

- submit a judicial decision proving that the results obtained with this device or with this measuring or evidential method can be used as evidence in court ;

- submit documents proving that the person that handled the measuring device is authorised and publicly certified to do the measuring or use the evidential method ;

- provide evidence proving material or any other damage resulting from the incriminated offence ;

- findings of the police are not evidence .

The payment order has been issued and signed by an authorised person – a police officer .

The LAW states in DATE that only the judge can adjudicate .

I am interested in the following :

- is the person employed at ORG

- has he completed a legal education

- does he have a bar exam

- is he a judge .

If he does not fulfil the above conditions , his activities are not in compliance with LAW . Since the police belong to the executive branch of power ( LAW ) they can not and should not punish and can not act as an authority in respect of a minor offence , since this is not recognised by LAW .

The LAW in its LAW clearly regulates the proceedings concerning these charges . Since the proceedings so far have not complied with LAW , I have to inform you about LAW .

Under LAW of LAW the police shall operate in accordance with LAW .

Since the present case also concerns a violation of fundamental human rights and freedoms , I request you to properly examine this request .

Request

I propose that the payment order be annulled and that the proceedings be conducted in accordance with the LAW . ”

On DATE ORG rejected the applicant ’s request . The court found at the outset that the applicant had lodged “ a standardised request for judicial review ” in which he had made only general accusations and alleged that provisions of the LAW had been breached . In particular , the court found that the applicant had not clearly stated why the police ’s findings were false and had not indicated that he had not committed the alleged offence . His generalised statements did not raise any doubts as to the facts as established by the police . The court then summarised the findings by the police , which it found had been correctly established . As regards the alleged procedural violations , the court , referring to the relevant provisions of LAW ( “ ORG ” ) , noted , inter alia , that the police were authorised to decide on the minor offence in question by applying summary proceedings and the police officers had authority to conduct the proceedings . It also noted that the time - limit for lodging a request for judicial review was provided for in the legislation . The court also noted that the applicant , who possessed a driving licence , should have been aware of the regulations contained in FAC . Lastly , the court found that the police had correctly applied the law to the facts of the case and imposed a fine prescribed by law . The applicant was ordered to pay ORG CARDINAL for the costs of the proceedings .

On DATE the applicant lodged a constitutional appeal , alleging a violation of fair trial guarantees – in particular , that any fine should be imposed by a judicial and not by a police procedure ; that he had been charged and convicted by the police ; and that the guarantees enshrined in Articles CARDINAL ( right to judicial protection ) , CARDINAL ( right to public trial ) and CARDINAL ( defence rights ) of the LAW had not been provided to him . In addition , he complained that no ordinary appeal lay against ORG judgement .

On DATE ORG dismissed the constitutional appeal . It relied on point CARDINAL of the first paragraph of section CARDINALb read together with point CARDINAL of the second paragraph of section DATE of LAW . The decision was served on the applicant on DATE .

For the relevant domestic law and practice see NORP v. GPE ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE .

In addition , section CARDINAL of FAC ( Official Gazette no . CARDINAL/CARDINAL , implemented on DATE ) reads as follows :

“ ( CARDINAL ) A police officer can order that a vehicle be weighed if he suspects that the load which it carries has been loaded in breach of the regulation concerning road traffic . The driver must allow the vehicle to be weighed ...

( CARDINAL ) A fine of CARDINAL NORP tolars ( SIT ) shall be imposed on a driver who acts in breach of the police order mentioned above .

( CARDINAL ) A fine of CARDINAL SIT [ ORG CARDINAL ] shall be imposed on a company or an individual entrepreneur , if the driver acts in breach of the police order mentioned in the first paragraph of this section , the person in charge should be punished by a fine of CARDINAL SIT . ”