Preliminary objection rejected (out of time);Violation of P1-1;Just satisfaction reserved

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

The applicants inherited plots of building land , located at PERSON and entered in the land register as folio CARDINAL , parcels CARDINAL , DATE , DATE , DATE and DATE , and folio CARDINAL , parcels CARDINAL , CARDINAL and CARDINAL respectively . Each of the applicants has a holding of CARDINAL .

By a decree of the “ Bank for the LOC ” ( ORG ) of DATE and CARDINAL decrees by the President of ORG of CARDINAL and DATE , a project to build low - rent housing and leisure structures on the applicants ' land was approved .

By CARDINAL decrees , adopted on DATE and CARDINAL May and DATE respectively , the President of ORG authorised possession under the expedited procedure of part of the applicants ' land , namely QUANTITY , for a maximum period of DATE , with a view to its expropriation , in order to begin construction of the low - rent housing and leisure structures .

On DATE , DATE and DATE the authorities took physical possession of the applicants ' land .

By a writ served on DATE , the applicants brought an action for damages before ORG against GPE .

They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation . They claimed a sum corresponding to the market value of the land and a sum for loss of enjoyment of the land .

During the proceedings an expert report and an additional report were submitted to the court registry on DATE and DATE respectively . According to the expert , a first section of the land had been irreversibly altered in DATE , and a second section in DATE , through the public works performed . The total market value of the occupied land in DATE and DATE was MONEY ( ORG ) , or ITL CARDINAL for each applicant . The expert assessed the compensation for possession of the land at ORG CARDINAL,CARDINAL,CARDINAL,CARDINAL , or ITL CARDINAL,CARDINAL,CARDINAL per applicant .

By a provisional judgment of DATE , ORG declared that the possession of the land , initially authorised , had become illegal as of DATE and DATE . It found that the land had been irreversibly transformed by the public works . As a result , in accordance with the constructive expropriation rule ( occupazione acquisitiva ) , the applicants had been deprived of their property , by virtue of its irreversible alteration , on the date on which the possession had ceased to be legal . In the light of those considerations , the court ordered the municipality to pay , as an advance , a sum equal to PERCENT of the market value of the land , namely ITL CARDINAL,CARDINAL,CARDINAL for each applicant , plus interest and adjustment for inflation , and compensation for occupation amounting to ITL CARDINAL,CARDINAL,CARDINAL for each applicant .

In the same judgment , the court ordered that the proceedings be continued in order to recalculate the final sum to be awarded to the applicants under PERSON no . CARDINAL of DATE , which had entered into force in the meantime .

On DATE the municipality paid the applicants the amounts due in application of the provisional judgment of DATE . Tax , at a rate of PERCENT , was deducted at source from these sums .

In a final judgment filed with the registry on CARDINAL DATE , the PERSON court upheld its provisional judgment of DATE and held that the amount of compensation calculated under PERSON no . CARDINAL of DATE corresponded to the amount already paid in application of the provisional judgment .

This final judgment became legal and binding on DATE .

Under NORP law , the expedited expropriation procedure enables the authorities to occupy land and build on it before the official expropriation . Once a scheme has been declared to be in the public interest and the plans adopted , the authorities may make an expedited possession order , for a limited period not exceeding DATE , in respect of the land to be expropriated ( section CARDINAL of Law no . CARDINAL of DATE ) . The order will lapse if physical possession of the land is not taken within DATE after its issue . Before the end of the authorised period of occupation , a formal expropriation order must be made .

The authorised occupation of land provides the right to compensation for occupation . In judgment no . CARDINAL of DATE , ORG recognised an immediate right of access to a court for the purpose of claiming compensation for occupation as soon as physical possession of the land occurs , without having to wait for a compensation offer from the authorities .

During DATE a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order . The NORP courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken . The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land .

There was a substantial divergence in the decisions of ORG over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully . Unlawful possession means possession that is unlawful from the start , in other words obtained without authority , or that is initially authorised but subsequently became unlawful , either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made .

Under CARDINAL line of case - law , the owner of land that had been possessed by the authorities did not lose ownership after the completion of the works in the public interest . However , he could not request reinstatement of the land ; his only remedy was to bring an action in damages for wrongful possession . No limitation period applied to such actions as the unlawful nature of the possession was continuing . The authorities could at any time issue a formal expropriation order . If they did so , the action in damages was transformed into a dispute over the compensation for expropriation , with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order ( see , among other authorities , the judgments of ORG nos . CARDINAL of DATE ; CARDINAL of DATE ; and DATE and CARDINAL of DATE ) .

Under a second line , the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest ( see , for example , ORG judgments nos . CARDINAL of DATE and CARDINAL of DATE ) .

Under a third line , an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly , that is to say on completion of the works in the public interest . He was PERSON entitled to claim damages ( see Court of Cassation judgment no . CARDINAL of DATE ) .

In a judgment of DATE , ORG , sitting as a full court , resolved the conflict between the lines of case - law and adopted the third solution . In so doing , it established the constructive - expropriation rule ( accessione invertita or occupazione acquisitiva ) . Under the rule , the public authorities acquire title to the land from the outset before formal expropriation if , after taking possession of the land and irrespective of whether such possession is lawful , the works in the public interest are performed . If , initially , the land is possessed without authority , the transfer of property takes place when the works in the public interest are completed . If the taking of possession was authorised from the outset , property is transferred on the expiry of the authorised period of possession . In the same judgment , ORG stated that , on a constructive expropriation , the owner is entitled to compensation in full as the acquisition of the land has taken place without title ( sine titulo ) . However , compensation is not paid automatically : the owner must lodge a claim for damages . In addition , the right to compensation is subject to a DATE limitation period that applies to actions in tort ; the starting - point is the date the land is irreversibly altered .

Initially , it was held that no limitation period applied , since possession of the land without title was a continuing unlawful act ( see paragraph CARDINAL above ) . In its judgment no . DATE , ORG stated that the right to compensation was subject to a DATE limitation period ( see paragraph CARDINAL above ) . Subsequently , ORG said that a DATE limitation period should apply ( judgment nos . DATE ) . On CARDINAL DATE the full court of ORG decided the issue finally , holding that the limitation period is DATE and starts to run from the date the land is irreversibly altered .

In this judgment , ORG held that the constructive expropriation rule was compatible with LAW in so far as the rule was rooted in a legislative provision , namely section DATE of the Civil Code governing claims in tort . Under this judgment , the fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under LAW , since the public interest in the preservation of works for the public good outweighed the individual 's interest , and therefore the latter 's interest in the right of property . ORG held that the application of the DATE limitation period laid down by LAW for claims in tort to actions for compensation was compatible with the LAW .

Recent developments in the case - law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions .

In its judgment no . CARDINAL of DATE , the PERSON stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts , as otherwise the judicial decision would be devoid of purpose .

In judgment no . DATE , ORG , sitting as a full court , said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset . In such cases , the owner retained title to the land and could claim restitutio in integrum . In the alternative , he could seek damages . The unlawful nature of the possession in such cases was continuing and no limitation period applied .

In judgment no . DATE , ORG , sitting as a full court , said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts . In such cases , therefore , the constructive - expropriation rule did not apply . The owner , who retained ownership of the land , was entitled to claim restitutio in integrum . If he brought an action in damages , that entailed a waiver of his right to restitution . The DATE limitation period started to run from DATE when the decision of the administrative court became final .

In judgment no . CARDINAL of DATE , ORG followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset .

In judgment no . DATE , ORG , sitting as a full court , reaffirmed that there was no transfer of property in the absence of a valid declaration that expropriation was in the public interest .

This case - law should be compared with Law no . CARDINAL of DATE ( see paragraphs CARDINAL - CARDINAL below ) and with LAW , which entered into force on DATE ( see paragraphs DATE below ) .

LAW of this PERSON provides :

“ Any person who owns land which is used for the construction of public buildings or social housing shall be entitled to compensation for damage sustained where the expropriation has been declared unlawful by a court decision which has become final , but such person may not claim restitution of his property . Further , such a person is entitled , in addition to compensation for damage , to sums payable in respect of monetary depreciation and to any other sums mentioned in LAW , such amounts being calculated from the date of the unlawful taking of possession . ”

DATE . Interpreting section CARDINAL of the DATE Law , ORG stated in a judgment of CARDINAL DATE ( no . CARDINAL ) :

“ In the impugned provision , the legislature has given preference , as between the owner 's interest in obtaining restitution of his unlawfully - expropriated land , and the public interest - in this case the allocation of such land for building public , low cost or subsidised housing - to this latter interest . ”

Under ORG DATE case - law on constructive expropriations , compensation in full , in the form of damages for the deprivation of the land , was due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession .

LAW of DATE ( LAW no . CARDINAL of DATE ) superseded that case - law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations . In judgment no . CARDINAL of DATE , ORG declared that provision unconstitutional .

Under Finance Law no . CARDINAL of DATE , which amended the provision that had been declared unconstitutional , compensation in full can not be awarded for dispossessions effected before DATE . In such cases , the compensation is equivalent to the amount of compensation as would have been payable on a formal expropriation in the most favourable scenario for the owner , plus PERCENT .

In judgment no . CARDINAL of DATE , ORG held that such compensation was compatible with LAW . However , in the same decision , it held that compensation in full , up to the market value of the land , could be claimed where the dispossession and deprivation of the land had not been in the public interest .

In judgments nos . DATE and DATE , ORG , sitting as a full court , again addressed the question of the constructive expropriation rule , with reference to the above CARDINAL judgments of ORG .

In view of the finding of a violation of LAW No . CARDINAL in the above cases , ORG affirmed that the constructive expropriation rule played an important role in the context of the NORP legal system and that it was compatible with the Convention .

More specifically , ORG – after analysing the history of the constructive expropriation rule – held that in view of the uniformity of the case - law in this area , the constructive expropriation rule should be regarded as entirely “ foreseeable ” as of DATE . For this reason , constructive expropriation must be considered as complying with the lawfulness requirement . ORG stated that possession of land having taken place without a declaration that it was in the public interest was not capable of transferring title to the ORG . As to compensation , it stated that , even if such compensation was lower than the damage sustained by the claimant , and , in particular , lower than the value of the land , the compensation due in the event of constructive expropriation was sufficient to guarantee a “ fair balance ” between the demands of the general interest of society and the requirements of the protection of the individual 's fundamental rights .

On an appeal seeking enforcement of a final judicial decision setting aside the declaration of public interest with regard to expropriation proceedings , and in view of the claimant 's request to obtain restitution of land that had in the meantime been occupied and altered , the Consiglio di Stato , in judgment no . CARDINAL/CARDINAL of DATE , delivered in plenary session , ruled on whether the irreversible alteration of the said land following the construction of “ public ” works could constitute a legal reason preventing restitution of the land . The PERSON answered this question in the negative . In so doing , it :

( a ) acknowledged that the case - law rule on constructive expropriation was lacking in respect of the need for legal certainty , with regard , inter alia , to the issue of identifying the date on which the public works must be considered “ completed ” and therefore on what date title had been transferred to the ORG ;

( b ) welcomed the ORG 's case - law , particularly the judgment in ORG v. GPE , by affirming that , faced with a request for restitution of property that had been unlawfully occupied and altered , the work performed by the public authorities can not , as such , constitute an absolute obstacle to restitution ;

( c ) interpreted LAW ( see paragraph DATE below ) to mean that failure to return a plot of land could only be accepted in exceptional cases , namely where the authorities invoked a particularly strong public interest in the preservation of the construction in question ;

( d ) affirmed , in this context , that constructive expropriation could not be regarded as an alternative ( “ una mera alternative ” ) to duly conducted expropriation proceedings .

On DATE Presidential Decree no . CARDINAL of DATE , amended by LAW no . CARDINAL of DATE , and which governs expropriation proceedings , entered into force . It codifies the existing provisions and case - law in this area . In particular , it codifies the constructive expropriation rule . From its entry into force , the Code , which does not apply to cases of occupation which occurred prior to DATE and is not therefore applicable to the instant case , superseded all previous legislation and case - law in the field of expropriation .

DATE . LAW provides that , in the absence of an expropriation order , or in the absence of a declaration stating that the expropriation is in the public interest , land that has been altered following the construction of public works passes into the ownership of the authorities which altered it ; damages are paid in consideration . The authorities may acquire a property even where the town planning documents or the declaration that the expropriation is in the public interest have been set aside . The owner may apply to the court for restitution of the land . The authorities in question may object . Where the court decides not to order restitution of the land , the owner is entitled to compensation .

In their observations on the merits , the ORG raised an objection , composed of CARDINAL limbs , that the application was out of time .

As to the first limb , the Government argued that the application was out of time in so far as it was lodged DATE after DATE , namely the date on which ORG provisional judgment of DATE became final .

The Government alleged that , through that judgment , ORG had decided on the issues concerning the transfer of ownership and the amount of compensation , calculated on the basis of the market value of the land .

In consequence , that judgment was the “ final domestic decision ” from which the DATE deadline laid down in LAW began to run .

With regard to the second limb , the ORG argued that the application had been introduced out of time in that the applicants complained that the amount of compensation had been calculated within the meaning of PERSON no . CARDINAL of DATE . According to the ORG , the DATE time - limit laid down by LAW had begun to run either on DATE , the date on which that PERSON entered into force , or on the date on which ORG judgment no . CARDINAL of CARDINAL DATE , by which the highest court had upheld the lawfulness of the provision in question , had been filed with the registry . In support of its allegations , the Government referred to the case of GPE v. GPE ( GPE v. GPE , ( dec . ) , no . PERSON , CARDINAL DATE ) .

The applicants opposed the ORG 's objection . With regard to the second limb , they noted in particular that the ORG had already rejected similar objections in several decisions on admissibility ( they cited , among other authorities , PERSON , no . CARDINAL/CARDINAL , ( dec . ) , CARDINAL DATE ; ORG and Others v. GPE , no . CARDINAL/CARDINAL , ( dec . ) , DATE ; and PERSON v. GPE , no . CARDINAL/CARDINAL , ( dec . ) , DATE ) .

As to the first limb of the objection , the ORG notes that it has already been rejected in its decision of DATE on the admissibility and that the Government were basing their objection on arguments that were not such as to call into question its decision on admissibility . In consequence , this limb can not be accepted .

With regard to the second limb of the objection , the ORG would recall that , according to LAW , “ any plea of inadmissibility must , in so far as its character and the circumstances permit , be raised by the respondent ORG in its written or oral observations on the admissibility of the application ... ” . The evidence before the ORG shows that that condition has not been satisfied in the instant case . The Government are consequently estopped from raising this objection . In the light of these considerations , the ORG considers that the second limb of the objection must be dismissed .

The applicants alleged that they had been deprived of their land as a result of its occupation in the absence of an expropriation order and compensation . In their opinion , this situation had infringed their right to the peaceful enjoyment of their possessions , as guaranteed by LAW No . CARDINAL , which provides :

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law .

The preceding provisions shall not , however , in any way impair the right of a ORG to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”

Referring to the judgments in LOC and GPE v. GPE ( no . CARDINAL , ECHR CARDINAL-VI ) and PERSON . v. GPE ( no . CARDINAL/CARDINAL , ORG ) , the applicants noted that the application of the constructive - expropriation rule to their case did not comply with the principle of the rule of law .

NORP In this regard , the applicants pointed out that the land in question had been occupied and altered without the adoption of an expropriation order . It was only because they had brought proceedings for damages before the domestic courts that they had been able to obtain a judicial decision declaring the occupation unlawful , a decision which had simultaneously had the effect of declaring them retrospectively deprived of their property .

With regard to compensation , for which the onus was also on the landowner to submit a claim , the applicants argued that it had not been capable of making good the unlawful act , as the amount awarded was far lower than the damage sustained .

The Government observed that the applicants had been deprived of their property by virtue of constructive expropriation , which implied that the expropriation procedure was based on a declaration stating that expropriation was in the public interest but had not been implemented as provided for by law , in that the possession of the land had taken place without the appropriate order and no expropriation order had been adopted .

In the absence of such an expropriation order , the applicants had in any event been deprived of their property through the construction of the works in the public interest and the irreversible alteration of the land entailed by it . According to the Government , this deprivation of property was merely the consequence of the constructive - expropriation rule as applied by ORG .

The Government alleged that this situation was in compliance with LAW No . CARDINAL .

Firstly , the public interest was involved , something that was not disputed by the applicants .

Second , the deprivation of property that resulted from constructive expropriation was “ provided for by law ” .

In this connection , the Government pointed out that , in PERSON v. GPE ( judgment of DATE , Reports CARDINAL ) the ORG examined a case of constructive expropriation that came within the scope of law no . CARDINAL of DATE from the point of view of a fair balance , and held , with regard to the law as such , that “ the legislature might reasonably choose to give preference to the interests of the community in cases of unlawful expropriation or occupation of land . Full compensation for the damage sustained by the proprietors concerned constitutes sufficient reparation ” ( PERSON , cited above , § DATE ) .

DATE . The Government noted that the ORG 's case - law had subsequently evolved , in that , in the next CARDINAL cases concerning constructive expropriation , it had found that the mechanism of constructive expropriation was incompatible with the requirement of lawfulness ( they referred to LOC and GPE , cited above , and ORG srl , cited above ) .

According to the Government , the constructive - expropriation rule should be considered as “ provided for by law ” , even if it had been developed through case - law in a “ civil - law ” rather than a “ common - law ” country .

In this regard , they noted that , in the CARDINAL judgments cited above , the ORG did not consider it necessary to decide in the abstract whether the role in the continental - law system of a rule , such as the constructive - expropriation rule , established by the courts is comparable to that of statutory provisions ( PERSON and GPE , cited above , § CARDINAL ) . ORG had observed that the NORP case - law had evolved and that a case - law rule did not bind the courts as regards its application ( PERSON and GPE , cited above , § CARDINAL ) .

The Government alleged that determining the role of case - law in GPE was of great importance in this type of case . According to the Government , as the national case - law had created the constructive - expropriation rule , this rule should be considered as forming part of the positive law starting from ORG judgment no . DATE . Subsequent case - law had confirmed this rule and clarified certain aspects of its application . In addition , the rule had been recognised by PERSON no . CARDINAL of CARDINAL DATE and by LAW no . DATE .

DATE . In conclusion , the Government submitted that , as of DATE , the rules governing constructive expropriation were perfectly clear and accessible to all owners of land .

Turning to the quality of the law , the ORG asked the ORG to revert to its “ PERSON case - law ” and to consider that the mechanism of constructive expropriation , based on a court declaration finding unlawfulness , was compatible with LAW No . CARDINAL .

In this respect , the Government noted that the finding of unlawfulness by a court was the determining factor in the transfer of illegally occupied land into public ownership .

The Government defined constructive expropriation as the result of a systematic interpretation of the existing rules , intended to ensure that the general interest prevailed over the individual interest where public works had been performed ( alteration of the land ) and were in the public interest .

DATE . The authorities were obliged to compensate individuals . According to the Government , however , this compensation could be lower than the damage sustained by the claimant , and , in particular , lower than the value of the land , given that constructive expropriation met a collective interest and the unlawful act committed by the authorities concerned only the form , namely failure to follow the rules governing administrative proceedings . In addition , the Government noted that the compensation as capped by Law no . CARDINAL of DATE was in any event higher than that which would have been payable had the expropriation been carried out in due form .

In the light of these considerations , the Government concluded that the fair balance had been struck .

DATE . ORG reiterates that , in determining whether there has been a deprivation of possessions , it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of . Since the ORG is intended to safeguard rights that are “ practical and effective ” , it has to be ascertained whether the situation complained of amounted to a de facto confiscation ( see PERSON and PERSON v. GPE , judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , § CARDINAL ) .

ORG notes that , in applying the constructive expropriation rule , ORG considered the applicants as having been deprived of their property from the moment that the occupation of the land was no longer legal . In the absence of a formal expropriation order , the finding of unlawfulness by the court is the element which enshrines the transfer of the occupied property into public ownership . In those circumstances , the ORG concludes that ORG final judgment had the effect of depriving the applicants of their property within the meaning of the second sentence of LAW ( see PERSON and GPE , cited above , § CARDINAL , and ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINAL-VII ) .

In order to be compatible with LAW No . CARDINAL , such interference must be “ in the public interest ” , “ subject to the conditions provided for by law and by the general principles of international law ” and must strike a “ fair balance ” between the demands of the general interest of the community and the requirements of the protection of the individual 's fundamental rights ( see PERSON and PERSON , cited above , § CARDINAL ) . Furthermore , the issue of whether a fair balance has been struck “ becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary ” ( see PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § MONEY , ECHR DATE , and ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-I ) .

Accordingly , the ORG does not consider it appropriate to base its decision solely on the finding that the applicants did not receive full compensation ( see PERSON and GPE , cited above , § CARDINAL ) .

The first and most important requirement of LAW No . CARDINAL is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful . The rule of law , CARDINAL of the fundamental principles of a democratic society , is inherent in all Articles of the Convention ( see GPE , cited above , § DATE ) . The principle of lawfulness presupposes that the provisions of domestic law are sufficiently accessible , precise and foreseeable in their application ( see PERSON v. GPE , judgment of DATE , Series A no . CARDINAL-A , pp . CARDINAL , § DATE , and PERSON and PERSON v. the GPE , judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .

DATE . In the judgments ORG srl and PERSON and GPE , cited above , the ORG did not consider it necessary to decide in the abstract whether the role in the continental - law system of a rule , such as the constructive - expropriation rule , established by the courts is comparable to that of statutory provisions , as what counted – in any event – was that the legal basis met the criteria of accessibility , precision and foreseeability set out above . The ORG remains convinced that the existence as such of a legal basis is not sufficient to satisfy the principle of lawfulness and considers it useful to examine the issue of the quality of the law .

ORG takes note of the evolution of the case - law which has led to the development of the constructive - expropriation rule . It also notes that this rule has been transposed into legislation , such as Law no . CARDINAL of DATE , PERSON no . CARDINAL of DATE and , most recently , LAW . Nonetheless , the ORG does not overlook the fact that the rule has been applied inconsistently in the case - law . Indeed , this was the view of the PERSON ( see paragraph CARDINAL above ) , which , in its judgment no . DATE , adopted as a full court , recognised that the case - law 's constructive - expropriation rule had never given rise to stable , complete and foreseeable regulations .

ORG also notes inconsistencies between the case - law and the above - mentioned legislation . By way of example , the ORG notes that , whilst it is true that the case - law ruled out , from DATE , the application of constructive expropriation where the declaration that expropriation was in the public interest had been set aside , it is also true that LAW only recently provided that , in the absence of such a declaration , any land may enter into public ownership if a court decides not to order restitution of land that has been occupied and altered by the authorities .

In view of these factors , the ORG does not rule out the continuing possibility of an unforeseeable or arbitrary result for the individuals concerned .

ORG further notes that the constructive expropriation mechanism generally enables the authorities to bypass the rules governing expropriation , with the risk of an unforeseeable or arbitrary result for the owners concerned , irrespective of whether the unlawful nature of the situation existed from the outset or subsequently emerges . In any event , constructive expropriation is intended to confirm a de facto situation arising from unlawful acts committed by the authorities and to deal with the consequences for the owner and the authorities in the latter 's favour . Whether occurring by virtue of a case - law rule or a legislative text such as LAW of LAW , constructive expropriation can not therefore constitute an alterative to expropriation in due form ( see , on this point too , the PERSON position , paragraph CARDINAL above ) .

In this regard , the ORG notes that constructive expropriation enables the authorities to occupy a plot of land and to alter it irreversibly , with the result that it is considered as having entered into public ownership , without the adoption of a formal act declaring that transfer of ownership . In the absence of an act formalising the expropriation , adopted at the latest when the owner has lost all control of his or her property , the element enabling the occupied property to be transferred into public ownership and to achieve legal certainty is the finding of unlawfulness by a court , which is equivalent to a declaration of transfer of title . It is for the landowner concerned – who continues to be the formal owner DATE to apply to the competent court for a decision finding , where appropriate , unlawfulness accompanied by the performance of works in the public interest , the necessary preconditions for the owner to be declared retroactively deprived of his or her property .

In the light of the above , the ORG considers that the mechanism of constructive expropriation is not capable of ensuring a sufficient degree of legal certainty .

ORG further notes that constructive expropriation also enables the authorities to occupy and alter land without simultaneously paying compensation . Compensation must be claimed by the landowner concerned within a DATE limitation period , which begins to run from the date on which the court finds that the irreversible alteration of the land took place . This may lead to adverse effects for the persons concerned , and render futile any hope of compensation ( see PERSON and GPE , cited above , § CARDINAL ) .

Finally , the court notes that the constructive - expropriation rule enables the authorities to derive a benefit from their unlawful conduct , and that the price to be paid is PERCENT higher than in the case of expropriation in due form . In the ORG 's opinion , this situation is not such as to further the correct administration of expropriation proceedings and to prevent incidents of unlawfulness .

In any event , the ORG is required to verify whether the manner in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the LAW .

In the instant case , the ORG notes that , in applying the constructive - expropriation rule , the NORP courts considered the applicants to be deprived of their possessions as of the date on which the occupation was no longer authorised , since the conditions of unlawful occupation and the public interest of the works in question were both met . However , in the absence of a formal expropriation order , the ORG considers that this situation can not be considered as “ foreseeable ” , since it was only through the final decision – ORG final judgment once it had become final and binding DATE that the constructive - expropriation rule could be considered to have actually been applied and that the land 's entry into public ownership was endorsed . In consequence , the applicants did not have “ legal certainty ” concerning the deprivation of the land until DATE , the date on which ORG final judgment became final and binding .

ORG further notes that the situation in issue enabled the authorities to profit from an unlawful occupation of land . In other words , the authorities were able to take possession of the land in breach of the rules governing expropriation in due form , and , inter alia , without compensation being made available at the same time to the applicants .

As to compensation , the ORG notes that the retrospective application of LAW ( no . CARDINAL ) to the instant case had had the effect of depriving the applicants of full reparation for the loss sustained .

In the light of these considerations , the ORG considers that the interference complained of was not compatible with the principle of lawfulness and that it therefore infringed the applicants ' right to the peaceful enjoyment of their possessions .

It follows that there has been a breach of LAW No . CARDINAL .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

With regard to pecuniary damage for the loss of the land , the applicants claimed , firstly , the payment of a sum equivalent to CARDINAL of its market value , adjusted for inflation and with interest , and compensation for the occupation . Secondly , they claimed a sum corresponding to the increase in value of the land following the performance of the public works . The asked the ORG to commission an expert report in order to calculate the amount of the CARDINAL forms of compensation in question .

In addition , the applicants claimed the sum of ORG PERSON as reimbursement of the tax , deducted at source , payable on the sums awarded by the national court ( see paragraph CARDINAL above ) .

In respect of non - pecuniary damage , they claimed compensation of ORG CARDINAL,CARDINAL .

Finally , they claimed the sums of ORG CARDINAL,CARDINAL.CARDINAL , as reimbursement of the costs incurred before the national courts , and ORG CARDINAL , plus value - added tax ( VAT ) , as reimbursement of the costs incurred before the ORG .

With regard to pecuniary damage , the ORG argued that there was no necessity for a new expert report , given that the market value of the disputed land had already been assessed in the proceedings before the domestic courts . If the ORG were to calculate the pecuniary damage on the basis of the market value of the land , the ORG submitted that the applicants would be entitled to receive only a sum corresponding to the difference between that value and the amount of compensation calculated under the provisions of PERSON no . CARDINAL of DATE .

ORG . In addition , the ORG submitted that the applicants would not be entitled to any compensation relating to the increase in the land 's market value following the performance of public works and no compensation as reimbursement for the tax , deducted at source , paid on the sums awarded by the domestic court .

As to the non - pecuniary damage , the Government left the matter to the ORG 's discretion , while emphasising that the amount claimed by the applicants was excessive and that they had quantified such compensation in a vague and imprecise manner .

As to the costs incurred in the proceedings before the domestic courts , the Government submitted that the applicants had already obtained reimbursement of these at national level and argued that , in any event , the decision on reimbursement of those costs was a matter for the domestic courts alone .

Finally , with regard to the costs of the proceedings in GPE , ORG left the matter to the ORG 's discretion , while emphasising that the amount claimed by the applicants was excessive .

The ORG considers that the question of the application of Article CARDINAL is not ready for decision . Accordingly , it reserves that question and , in determining the further procedure , will have regard to the possibility of an agreement between the ORG and the applicants .


No violation of Art. 3;No violation of Art. 8;No violation of Art. 25-1

The applicants are Mr PERSON ( the first applicant ) , his wife PERSON ( the second applicant ) and their son PERSON , born in DATE ( the third applicant ) . All of the applicants are NORP citizens .

The first applicant came to GPE on DATE and applied the following day for political asylum . He was joined there by the second and third applicants on DATE .

On DATE the first applicant was interrogated by ORG ( polismyndigheten ) of GPE as to his reasons for requesting political asylum . As regards his background in GPE he provided the following information . In DATE he became a member of ORG . He joined ORG in DATE and remained a member after the coup ORG in DATE as a result of which the coalition Government of President PERSON was replaced by the regime under the Presidency of General PERSON . In DATE he also became a member of ORG ( ORG ) of which he was the secretary until DATE and worked to create opposition against the PERSON régime . In DATE he was arrested and taken to a military camp where he was detained for DATE . He joined the NORP in DATE . DATE he remained passive politically . In DATE he moved to ORG and became involved in distributing leaflets for ORG . He participated in many demonstrations and CARDINAL general strikes ( DATE and DATE ) . He was arrested in DATE and DATE for breaking a curfew . He was also arrested in DATE by agents of the ORG ( ORG ) for having entered a prohibited area on a bicycle . He was released after TIME . Apart from these incidents he had been left alone by the NORP police and military . He gave as his reasons for leaving GPE the fact that he could not keep his house in ORG where he lived with his family and his poor financial situation resulting from lengthy periods of unemployment . He was not able to pay his mortgage and chose to sell the house to avoid an enforced sale .

In a memorial to ORG ( statens invandrarverk - " the ORG " ) dated DATE the first applicant , through his legal counsel , commented upon the above interrogation . He stated that in DATE he had been arrested with CARDINAL friends and ill - treated . They were not allowed to sleep and were obliged to stand naked . CARDINAL of his friends was beaten on this occasion .

On DATE the ORG decided to expel the applicants and prohibited them from returning to GPE before DATE without the ORG ’s permission . It also rejected the ORG requests for declarations of refugee status and travel documents . ORG considered that the applicants had not invoked sufficiently strong political reasons to be considered as refugees under LAW ( utlänningslagen , DATE : CARDINAL ) or the DATE LAW relating to ORG .

The applicants appealed to the Government . The first applicant did not invoke any new circumstances . He pointed out that he did not receive all of the letters sent to him from GPE and could not therefore submit any documents from GPE in support of the appeal .

The appeal was rejected by ORG ) on DATE .

CARDINAL.The applicants then alleged to ORG that there were impediments to the enforcement of the expulsion order and requested that their case be referred to ORG . The first applicant was interrogated by ORG on DATE . He stated that he had new reasons to invoke in support of his application for asylum . He considered that he ran the risk of political persecution , torture and possibly death , if he returned to GPE , because of his continued involvement in GPE with a political group known as LOC ( FPMR ) - a radical organisation that had tried to kill General PERSON . He had started to work for this group after his arrival in GPE . He feared that his activities in GPE which began in DATE and included the distribution of leaflets to support political prisoners in GPE would be known to the ORG .

ORG decided on DATE to reject the ORG request and to enforce the expulsion decision by sending them by plane to GPE on DATE at TIME from FAC in GPE . An appeal against this decision was rejected by ORG on DATE . On DATE the applicants again requested that their case be transferred to ORG . On DATE ORG refused this request , and the applicants’ appeal against refusal was rejected by ORG . In his letter of appeal Mr PERSON , through a new legal counsel , stated that he had contributed signed articles in the FPMR newspaper ( ORG ) and had expressed himself critically about the regime in GPE . He also submitted a certificate by PERSON of the ORG support group dated DATE in which it was said that he and his family were politically active in the group . He further submitted copies of CARDINAL newspaper articles dated CARDINAL and DATE concerning a demonstration in LANGUAGE against the expulsion of the applicants . In these articles it was stated that Mr PERSON had hidden friends sought by the police in his house in GPE and that he was active for ORG in GPE .

The expulsion decision could not be enforced as planned since the applicants did not appear in time for the scheduled departure .

In a letter dated DATE to ORG the applicants again alleged that there were impediments to the enforcement of the expulsion order . On DATE Mr PERSON was interrogated by ORG in the presence of a new counsel . The official record of the interrogation contains the following passage ( translation from NORP ) :

" PERSON wishes especially to add to his statements the following information with regard to the punishments he has been subjected to in connection with his being held prisoner in GPE . Asked about the times and places of these imprisonments PERSON states that he was imprisoned the first time in GPE in DATE . He was arrested with all the others who were at the GPE office ( a large mining company ) on an occasion soon after the coup . They were taken to a military centre and badly treated . PERSON has not talked about this earlier because he was of the opinion that the police in GPE co - operate with the NORP police . He no longer holds this view .

Since the above - mentioned event lies far back in time PERSON was encouraged to begin his account by relating the most recent occasion on which he was subjected to persecution . He then stated that in DATE he was stopped when he was walking along a street called PERSON . It was then that CARDINAL men stepped out of a car and pulled him into a car which then drove to some sort of security building . During the journey he was hit in the ribs . He was taken down a long stairway and into some kind of investigation room . He was photographed after he had removed his clothes . He was hit , mainly on the head . He was hung up by his feet and photographed in this position . He was asked the whereabouts of PERSON but was unable to answer . PERSON was chairman of the free humanist thinkers . PERSON did not wish to relate more about the treatment on this occasion . He did however add that they told him that they were going to shoot him later the same day . He was blindfolded and after that he felt that someone was pressing the barrel of a weapon against his body but no shot was fired . Asked why they did this PERSON said that they gave as a reason that he was a NORP , which he has never been . After PERSON had been scared by the incident with the weapon he was released and after that was treated kindly by a man who was also present . The man told PERSON that things would be much better if he co - operated with the police . When asked if they were in a police station PERSON said that they were in a security building . They also mentioned to PERSON the names of the members of his family . At TIME he was driven away and was released after being held in custody for TIME . PERSON has not mentioned this incident earlier . Asked why he had not done so in spite of a number of police interrogations , numerous contacts with counsel and in spite of the fact that many documents with information about him had been submitted to the authorities , he replied that he had been betrayed many times earlier and he could not therefore trust anyone .

In DATE , he was somewhat uncertain about the exact date , PERSON was walking along a street in GPE after having attended a neighbourhood committee meeting . PERSON was on his way to catch a bus to GPE del Mar. CARDINAL men came in a car , threatened him with a knife against his throat and apprehended him . They were civilians in a civilian vehicle . They travelled in the direction of GPE del Mar. A black blindfold was placed over his eyes and then they took him out of the car and kicked him . PERSON protected himself as well as he could by putting his hands over his head and crotch . They insulted him too . They told him he should give up struggling against the Government . They said they knew of PERSON and that he ought to stop ; otherwise this could be DATE of his life . Even his family was threatened . These events took place in a building PERSON was taken to but he knows nothing about it because he was blindfolded . On this occasion he was subjected to torture through electric shocks against his testicles . He was even subjected to shocks by electrodes in the anus and testicles . After having been subjected to the above PERSON was driven a bit along the road between GPE and GPE del Mar before he was set free on this road . He was also near to being knocked down by a bus in connection with his being released from the car . The whole sequence of events took place within DATE TIME . DATE PERSON found his dog , DATE , dead under such circumstances that he suspected that it was the ORG or ORG [ ORG ] that lay behind it . The dog had been impaled on a metal fence that surrounded the house where PERSON lived . The conclusion PERSON drew was that he was subjected to this as a result of his activity in youth groups and friendship committees . PERSON had worked for a democratic development of GPE . Every time PERSON was arrested the ‘ police’ knew what he had been working for . The interrogation so far has been translated to PERSON who subsequently wished to point out that the committees were neighbourhood committees and not friendship committees and he also wanted to say that the reason why he did not trust anyone was just because the police knew so much about him when they held him in custody .

Without the presence of the interpreter or counsel , in accordance with ORG wishes , he stated that on the occasion when he was arrested by persons he thought were from the ORG in DATE he was also subjected to something else that he tried to suppress and which he finds very painful to talk about . After he had been tortured among other ways by electrodes in his anus and testicles , he was placed on a bed lying face down and his hands and feet were tied to bedposts . In this position CARDINAL or more men attacked him sexually . PERSON was at that point dazed from the previous treatment and can not therefore say with certainty if there was CARDINAL person . ( This section without the presence of the interpreter or counsel . PERSON can make himself understood in NORP . )

In addition PERSON has not been able to express the problems he has had as a probable result of the treatment he was subjected to . He has difficulties eating with cutlery made of metal . These problems manifest themselves with pains in his teeth on every occasion that his teeth come in contact with a metal object . This problem has become less intense but has been very intense earlier . It has thus been a question of CARDINAL different types of complaints . Firstly PERSON has experienced general pain in his teeth and secondly he has had problems with metal objects . PERSON first experienced the problem with his teeth after electric shock torture in DATE . He was subjected to this form of torture on a total of CARDINAL or CARDINAL occasions . After the torture in DATE PERSON also had many headaches . He has also noticed that since then he has had lapses of memory .

Otherwise PERSON has nothing more that he personally wishes to relate other than the above . When asked if he had anything to add on his political involvement he stated that he had already accounted for it but that he could now present new documents which support the previous statements . CARDINAL certificates were handed over . CARDINAL from PERSON , President of ORG in ORG , CARDINAL from PERSON , co - ordinator in the organisation of neighbourhood committees , as well as a certificate from ORG on the Rights of Young People .

The above was translated to PERSON who thereafter had no wish to refer to further details in the case . He has no objection to the above description ... . "

The first certificate referred to in the record was dated DATE and consisted of a statement by the President of ORG ( ORG ) in ORG . It stated that Mr PERSON took part in the activities of that institution until he left GPE and that his psychological and physical integrity would be threatened if he were to stay in his home country . It further indicated that he was obliged to leave the country for political reasons . A second certificate of DATE by an official of ORG ) in GPE stated that he was persecuted by the dictatorship from DATE to DATE . He was active in the socialist youth group where he was the representative and leader of the revolutionary society for ORG " Artesanos de las Letras " ( Writers and ORG ) in ORG . The certificate also stated that he had been arrested in GPE in DATE and twice in PERSON in DATE and DATE ; that he was threatened with death in GPE in DATE ; that in DATE and DATE he was arrested by civilians and severely beaten . A third certificate dated DATE by ORG on the Rights of Young People ) in ORG contained similar statements .

On CARDINAL DATE ORG referred the question of the enforcement of the expulsion order to ORG . On DATE ORG decided that Mr PERSON should report to the police twice a week because of the danger that he would evade enforcement of the expulsion . By letter of CARDINAL DATE he submitted a medical opinion dated DATE to ORG issued by PERSON , an assistant researcher at ORG at ORG . Mr PERSON stated that PERSON had declared that he had been ill - treated in prisons in GPE and that he had shown a deformation of his upper left collar - bone , a scar on his left upper arm and a scar on the left of his chest .

ORG referred the case to the Government on DATE , expressing the opinion that there was no impediment to the enforcement of the expulsion order . ORG found that Mr PERSON had the opportunity on several occasions to present his case to ORG and to it . However , on these occasions he had given contradictory information and had now radically changed his story . It concluded that even if it took into account the difficulties that a victim might have to describe what he had been subjected to there was no reason to believe his allegations .

On DATE Mr PERSON submitted a medical report to the ORG which had been prepared by a doctor of forensic medicine , PERSON . The report dated DATE stated , inter alia , as follows ( translation from NORP ) :

" The patient PERSON born on DATE has seen me on account of alleged torture in his home country . He has told a story which has been simultaneously interpreted and which is recorded in PERSON When examining the patient I have observed marks on the left collar - bone area and on the left upper arm which are referred to in the examination protocol ... .

In view of the above I make the following statement :

That the patient has said that he has been assaulted ; that he has , as objective evidence , shown , firstly , the marks of a collar - bone fracture following violence with a blunt instrument and , secondly , a typically rounded and colourless burn - mark on the inside of the left upper arm ( the wound has , according to forensic medical practice , the typical appearance of a burn caused by a hot pipe ) ; that he has subjective symptoms of troubles following genital torture , anal torture and sexual abuse in the anus ; that , when he describes this , he reacts , in my experience , in such a way ( crying , shaking ) that it has to be assumed that he has experienced this ; that , to summarise , nothing has been established which contradicts the assumption that PERSON has been subjected to such torture and sexual abuse as he alleges . "

Annex I gave the following information :

" The patient speaks about himself first and then about his father who was the secretary of ORG . They lived in the town of GPE in GPE . His father was arrested during the military coup in DATE and was brutally tortured and released after DATE . The patient was then DATE . He was also arrested and hit but , as he himself states , he was not directly tortured . They moved to the town of PERSON . The patient was also a member of ORG which is a party prohibited in GPE . The patient was persecuted during DATE . His own home was subject to a search in DATE . He was hit by the police and taken to a security building where his eyes were bandaged and he was hit by hands and was burnt on his left arm with a red - hot pipe . He participated in a demonstration against ... a coin which the ORG had introduced . He was arrested later and was tortured by electrification . In DATE he was subjected to such torture on his genitals . He was sodomised with an electrified rod which caused him great pain and one can see on the patient ’s face when he speaks of this torture that he was clearly in pain , he is near to tears . He was raped and sodomised several times which caused him to faint . He is very pained by telling this and his upper lip shakes and he perspires profusely . He has never told this to his wife and he now says ‘ I can not take it any more’ . The reaction is very typical of self - experienced humiliating sexual torture . Following a question the patient says that he has for a long time after this event had great problems of impotence . He thinks that it has been better in GPE . He takes vitamin E against these problems .

In DATE his dog was found dead , hanged on an iron fence which surrounded his house . There was a note stating that this would happen to all communists . It was signed by ORG which was the same as if it had been ORG . In DATE he therefore left GPE . I ask what would happen if he had to return to GPE . The patient is then very upset and says that he can not return and starts to cry ; he is convinced that they will arrest him at the airport and continue persecuting and torturing him . "

A further medical opinion was produced in evidence prepared by PERSON , a specialist in psychiatric diseases at ORG . That opinion , dated DATE , stated that , from the manner in which he presented his story and his reactions while telling it , there were strong indications that he suffered from a post - traumatic stress syndrome . PERSON found him to be considerably shaken and on the borderline of what he could tolerate .

The following description of the political activities of Mr PERSON was given by his lawyer in a letter to ORG of DATE :

" The appellant has been politically interested and active in different left - wing organisations ever since DATE and by DATE he was involved with ORG ( PERSON Izquierda Revolucionaria ) . During DATE he was active primarily in ORG . DATE he came into contact with people whom he believes belong to GPE PERSON . Together with these persons he has taken part in certain military activities .

As a result of his political work he was tortured in DATE , DATE , DATE , DATE , DATE and DATE . The reason why all these details are not found in the police interrogation is that the interrogation concentrated on events during DATE . However at the end of the interrogation it is mentioned that he had been tortured CARDINAL times .

When asked to account for his activity with the ‘ Front’ he stated the following : some time during DATE he made contact by chance with a person who was nicknamed the ‘ Gorilla’ because of his heavy build and hair growth . PERSON knew the PERSON from DATE when both of them were active in ORG . When they met again they had not seen each other for DATE but they immediately recognised each other . They met at a GPE meeting in a school in ORG which the Gorilla ’s daughters attended .

After a while his acquaintance with the Gorilla led to clear sabotage activities . The Gorilla held a senior post at the town ’s ORG . Hector has a knowledge of explosives after having worked in mining . Together they used explosive devices to destroy power lines around the town . They complemented each other well : the Gorilla indicated the targets and planned the operations , PERSON acquired the dynamite by travelling to the town of GPE where he has many childhood friends . He was able to buy dynamite from his friends who work in the mine . The dynamite was smuggled out by the workers . This activity continued until some time in DATE .

After this PERSON did not participate in any further sabotage operations since he felt he was under too much observation . However he believes that the PERSON continued the activities since they had a fairly large stock of dynamite . He has also read in the newspapers about power lines being sabotaged after he had discontinued the activity himself .

The Gorilla has tried in different ways to get him to participate in more advanced military projects . They have often discussed the possibility of trying to arm the populace and start a school for military training . They have drawn up detailed plans of how they would obtain weapons . These plans began as a discussion about ‘ how one could do even more ... ’ . Among other things concrete plans were drawn up on how to attack a carabineer barracks . The purpose of the attack would be to get hold of weapons which could later be used in other kinds of attacks . Nothing came of these plans because PERSON was arrested in DATE . During this arrest the police asked a wide range of questions ; inter alia , questions were asked about places which were to be meeting points for the participants in the attack . The attack against the carabineer barracks never took place . PERSON found out instead that another attack had been carried out against another carabineer barracks .

When asked to describe more details about the plan to attack , PERSON said that he and the Gorilla were to carry the stolen weapons to the churchyard and bury them there . When the time was right , the weapons were to be fetched from the churchyard by other persons .

The PERSON never mentioned Frente PERSON by name , but PERSON understood that the PERSON had a relatively central position in the organisation . The PERSON himself only mentioned that he was now active in ORG . As an example of the PERSON ’s central position PERSON mentioned that a short time before the assassination attempt against PERSON the PERSON asked PERSON if he would consider driving a lorry on a very important occasion . PERSON gave a hesitant reply and the suggestion was dropped . In retrospect PERSON has realised that it could possibly have been the vehicle that would be used on the occasion of the assassination attempt .

PERSON has not taken part in any direct military operations . On CARDINAL occasion however he was instructed to drive a lorry to a particular spot . He was to park the lorry there and then fetch another lorry . He was given no more information on that occasion . However this plan was cancelled for security reasons . Shortly thereafter PERSON read in a newspaper that an arms cache had been discovered right next to the place where he was to park the lorry .

DATE after he had met the Gorilla by chance , an old friend turned up with whom he had worked in a resistance cell in DATE in the town of PERSON . The friend immediately said that he was in trouble with the police and that he needed a place to hide . PERSON offered to give him shelter and they went straight back to PERSON ’s home . TIME CARDINAL other friends joined them , all CARDINAL armed with pistols . PERSON also thought he saw sub - machine guns of the kind used by the NORP police .

PERSON never found out why the friend was on the run ; as he said , ‘ it was better not to know ORG . DATE , on leaving PERSON ’s house , the friend was arrested . PERSON was informed of the arrest by an acquaintance who had previously seen PERSON with the friend who was in hiding . The CARDINAL other men fled from PERSON ’s house immediately .

After this PERSON moved to PERSON and supported himself as a construction worker . He remained in GPE between roughly DATE and DATE . He rented out his house through a fake owner and was informed that , shortly after , the house was searched and as a result of the search the tenants moved . The fake owner found new tenants to live in the house for the rest of the time . Since no further searches were carried out PERSON did not think it was dangerous to move back to ORG . Thus , in DATE , he returned there .

When asked about the numerous ‘ ORG occasions when he met people who can be assumed to belong to the ‘ Front’ , PERSON replied that he had also wondered about this . With regard to the Gorilla he felt it was pure chance that he met him . PERSON is more hesitant about the second friend . PERSON said that it could have been a chance encounter but that it could also have been a conscious attempt to bind him more firmly to the activities of the ORG . PERSON stated himself that because of his knowledge of explosives and as the owner of a remotely situated house he could be of interest to such an organisation as the ‘ Front’ .

When PERSON returned to ORG he felt he was being observed in different ways . He stated that he quite frequently encountered different types of salesmen who got in touch with him .

During CARDINAL of our conversations PERSON said suddenly ‘ there is something I have never talked about and something which I shall never PERSON . I insisted that he tell me . A psychological struggle took place which lasted TIME . I tried to maintain the initiative all the time and to motivate PERSON to tell his secret . PERSON defended his position and said ‘ I ’ll never say it , not even if I am expelled will I tell it . I ’ll only say it at the ORG .

Finally PERSON said that he had been in a poor state of mind for a long time in GPE and had taken large amounts of anti - depressants . After the torture of DATE his nerves have been strained to the point of breaking and because of the internal confession tradition in ORG he sought out the highest ranking leader in ORG with the rank of ORG President and told him everything .

He told him of his contacts with the PERSON and also about the CARDINAL other members of ORG whom he had introduced to the Gorilla . The conversations took place on several occasions . On the first occasion PERSON took the initiative and therefore related relatively little , then the ORG President took the initiative and obtained more details .

In DATE PERSON was arrested and tortured . When he left the torture chamber he tried to get in contact with the CARDINAL other members of ORG but they had both disappeared . He also tried to make contact with the Gorilla but he had also disappeared . PERSON is subjectively convinced that all CARDINAL are dead . He is also convinced that they have been killed as a result of his mistake in talking to the Grand President . PERSON believes that the ORG leader used his weak position and informed the Government about him and his friends .

PERSON can not say with certainty when the CARDINAL disappeared but says that the last time he met them was in DATE . The torture in DATE in combination with self - accusation at having caused the death of the PERSON and the CARDINAL NORP was a contributing factor to his leaving GPE a short while after that . "

Medical reports drawn up by doctors in DATE hospital dated DATE and CARDINAL DATE concerning the welfare of PERSON ( the third applicant ) were also submitted to the Government . These reports stated that PERSON had personality problems and would in all probability suffer serious psychological harm if expelled from GPE .

The first applicant also submitted a letter from the ORG High Commissioner for ORG for ORG dated DATE stating , inter alia , that :

" ... a person who has been exposed to torture will in most cases have lasting effects of both a physical and psychological / somatic nature . For this reason , we should operate neither with time limits nor with degrees of torture when assessing a torture victim ’s claim for refugee status . "

In a letter of CARDINAL DATE , ORG wrote :

" Therefore we would like to point out that we believe that Mr PERSON ... should be protected against return to his home country ; apart from the many mental / traumatic / humanitarian aspects involved , we are of the opinion that not only LAW , but in particular the CARDINAL LAW should be emphasised . "

On DATE Mr PERSON was taken into custody by ORG following a decision by ORG . The following day the Government ( ORG ) found that there was no impediment under LAW and CARDINAL of LAW to the enforcement of the expulsion order against the applicants .

On DATE the ORG decided not to stop the expulsion and on DATE Mr PERSON was expelled to GPE . His wife and son , however , went into hiding in GPE . Their present whereabouts is not known to the ORG .

In DATE the state of emergency was lifted and in DATE exiles were allowed to return to GPE . On DATE the NORP people voted in a plebiscite to reject the candidacy of General PERSON as President of the country . Presidential and congressional elections were then scheduled for DATE . Following negotiations between the ORG and opposition groups a referendum was held on DATE resulting in the adoption of various constitutional amendments designed , inter alia , to render the presidential and congressional elections more democratic and reduce the continued influence of the armed forces in civilian life .

The presidential election took place on DATE resulting in the election of Mr PERSON , a member of the former opposition ORG and leader of a CARDINAL alliance entitled " Coalition of Parties for Democracy " .

In DATE LAW ( DATE ) was published in the PERSON , the official gazette , thereby incorporating it into NORP law . The ORG also ratified in DATE LAW and other Cruel , Inhuman or Degrading Treatment or Punishment ( DATE ) and ORG and Punish Torture ( DATE ) although with reservations in both cases .

An ORG report of DATE , however , provides details of various cases of torture reported to ORG which allegedly occurred in DATE .

On DATE Mr PERSON arrived at the airport in GPE ( GPE ) , where he applied unsuccessfully for asylum . He was then put on a plane for GPE where he arrived on DATE . He did not have any identity documents and when he came to passport control he was taken aside and photographed . He was required to sign a declaration to the effect that he had been in GPE for financial reasons and that he promised not to engage in any political activities in GPE .

He remained in GPE from DATE and returned to his home in ORG . On CARDINAL and DATE he participated in political meetings , the latter in favour of the presidential candidate , PERSON . He alleges that on that occasion an unknown person approached him and threatened his family in GPE . During this period he claims that his brother - in - law was attacked in the street and badly injured by unknown persons . CARDINAL other brothers - in - law were stopped and searched by officials who asked them questions about him .

On DATE he left GPE for GPE and lived for a time in GPE . On DATE and CARDINAL DATE the ORG rejected requests from Mr PERSON to be allowed to return to GPE . Although he was able to attend the hearing before the ORG , his present whereabouts are unknown to it .

The Commission heard Dr PERSON as a witness on DATE . His evidence is summarised in detail in paragraphs CARDINAL of the Commission ’s report . He is an associate professor ( docent ) of forensic medicine ( rättsmedicin ) at ORG and also works with ORG assisting torture victims . He has DATE experience in assessing scars and wounds and has been working with allegations of torture from GPE since DATE .

PERSON testified that there was a very high probability that the first applicant ’s story was true having regard to his wounds ( injury to collar bone and burn mark ) and his reactions when recounting his story . He spoke with considerable reluctance of the sexual torture he had experienced and sweated profusely . PERSON considered that such a reaction indicated that he had really experienced such treatment . He also exhibited great fear at the prospect of returning to GPE . PERSON pointed out that victims of sexual torture are often so damaged that they are not prepared to talk about it even to their husbands or wives .

Following the expulsion of Mr PERSON the Government submitted a memorandum from ORG in GPE dated DATE which contains a report of an inquiry undertaken in accordance with a request from ORG for information regarding possible political activities of PERSON , and any political persecution to which he may have been exposed . The inquiry had been made on DATE by PERSON , Second Secretary at the ORG , during a visit to ORG , accompanied by , inter alia , the President of ORG . The report concludes that , as regards political activities , all the representatives of political parties who had been questioned had said that they do not know Mr PERSON . Neighbours who were questioned know him but were unaware of his involvement in any political activity .

In support of the above the Government have also submitted affidavits from ORG , ORG and the PERSON .

As regards possible political persecution , the Government have submitted an affidavit by the President of ORG in ORG , PERSON , obtained by ORG in GPE . It appears from the affidavit that Mr PERSON is not known to the ORG and that consequently no persecution directed against him is known . The affidavit further states that the ORG has at its disposal complete registers of those who have disappeared , who have been tortured and who have been imprisoned in the fifth region of GPE since DATE .

In the proceedings before ORG submitted a further affidavit from PERSON dated DATE in which she declared , inter alia , that Mr PERSON has no connections with any political party or with any trade union ; that there is no declaration registered at ORG in ORG regarding the detention of Mr PERSON ; that according to everyone who has been asked in the district where he lived he has never been politically active ; that in all the inquiries made directly with persons who have participated in clandestine activities , he is not known ; nor is he known by persons in prison in GPE for their role in similar activities ; that she was not aware of any explosions in ORG directed at railway lines and electric power lines which occurred in the period DATE as alleged by the first applicant ; that , following inquiries , he is not known by the various human rights bodies in FAC .

The Government also submitted an affidavit dated DATE by ORG FPMR which declared that Mr PERSON is not a representative of the organisation abroad and is not and never has been a combatant member of ORG . They further disclaimed all responsibility for any action he may have taken in the name of the FPMR .

The applicants have submitted a medical report drawn up by PERSON ( ORG , ORG ) following an examination of the first applicant in DATE . The report includes the following statement :

" As a conclusion one may state that Mr PERSON suffers a serious ‘ post - traumatic stress disorder’ instilled in him as a consequence of the torture and ill - treatment suffered in GPE in DATE . The exposure to high insecurity , and the return to his native land , has increased the pathological dimension of his sufferings , and if arrangements are not made for an adequate psychological and psychiatric treatment , he might suffer from a worsening of his mental disorder with unforeseeable consequences not only for him , but for his wife and child , the latter badly needing a father if CARDINAL reads carefully the report on the child . "

A further psychiatric report dated DATE was drawn up by PERSON following a detailed examination of the applicant in DATE . The report stated that the first applicant must have experienced " a stressful event of catastrophic proportions " . It concluded that he showed the " obvious stigmata of a post - traumatic stress disorder " .

The applicants have also submitted the following documents :

- a report dated DATE from a former Professor of Psychology at ORG , PERSON , currently researcher at ORG , GPE , which suggested that the first applicant might seek to resolve his problems by committing suicide ;

- a letter dated DATE from Mr PERSON ( NORP spokesman for the FPMR ) which stated that it was not only the members of the PERSON who risked their lives in GPE but also those who collaborated with the organisation . He further stated that the risk of torture , imprisonment or assassination still existed for ORG members during the present regime ;

- a NORP newspaper cutting of CARDINAL DATE describing an attempt to blow up a power line in a town QUANTITY outside ORG ;

- a letter dated DATE from staff at the third applicant ’s nursery school expressing the fear that his removal from GPE may cause him permanent harm .

LAW of DATE and Aliens Ordinance were in force until DATE when LAW of DATE entered into force . A new Aliens Ordinance was made under LAW .

Under LAW , a decision of expulsion by ORG could be appealed to the Government whose decision was not subject to appeal . The ORG ’s decision was then transferred to a ORG for execution . If the alien contended , inter alia , that he would be exposed to political persecution or be sent to a theatre of war , the matter would be referred to ORG CARDINAL and DATE ) unless the claims were manifestly ill - founded or did not merit consideration . If ORG decided not to refer this question to ORG , an appeal lay to ORG . If ORG decided against the alien , the decision could be appealed to the Government .

Under the DATE LAW competent authorities have a duty when deciding the question of expulsion to consider at the same time whether there is any impediment to the enforcement of the expulsion order .

DATE . The DATE Act contains transitional rules to be applied in cases submitted before DATE . In such cases the procedures applicable under LAW still apply . Most of the decisions in the present case have therefore been taken under LAW .

LAW reads :

" A refugee shall not without grave reasons be refused asylum in GPE when he has need of such protection .

For the purposes of this LAW , a refugee is a person who is outside the country of his nationality owing to a well - founded fear of being persecuted for reasons of race , nationality , membership of a particular social group , or religious or political opinion , and who is unable or , owing to such fear , is unwilling to avail himself of the protection of that country . A stateless person who for the same reason is outside the country of his former habitual residence and who is unable or , owing to such fear , is unwilling to return to that country , shall also be deemed a refugee .

For the purposes of this LAW , persecution is defined as indicated in subsection CARDINAL of this Section as being directed against the life or liberty of the alien or as being otherwise of a severe nature ( political persecution ) . "

Other relevant provisions of the DATE Act provide as follows :

" An alien who , although not a refugee , is unwilling to return to his home country on account of the political situation there , and is able to plead very strong grounds in support of this reluctance , shall not be refused permission to stay in this country if he is in need of protection here , unless there are special reasons for such denial . "

" An alien may be expelled if he is residing here without possessing the passport or permit required for residence in GPE .

Expulsion orders as provided in subsection CARDINAL are to be issued by ORG . If an application for a residence permit is rejected , ORG shall at the same time make an expulsion order unless there are very strong grounds to the contrary . "

" When a refusal - of - entry order or an expulsion order is put into effect , the alien may not be sent to a country where he risks political persecution . Nor may the alien be sent to a country where he is not safeguarded against being sent on to a country where he risks such persecution . "

" An alien referred to in LAW and pleading grave reasons for not being sent to his home country , may not in the enforcement of a refusal - of - entry order or an expulsion order be sent to that country or to a country from which he risks being sent on to his home country . "

" An alien intending to settle in this country or for any other reason to remain here in excess of the period referred to in LAW , subsection one , may not enter GPE until he has obtained a residence permit , unless :

he is exempted , by virtue of LAW , subsection CARDINAL , from the requirement of a residence permit ,

he is an alien as referred to in LAW , DATE or CARDINAL of LAW ( CARDINAL:CARDINAL ) ,

he intends joining a close relative who is permanently domiciled in GPE and with whom he has previously lived abroad , or ,

there is some other particularly important reason why he should be allowed to enter the country .

An alien , who has entered GPE without a residence permit or with a residence permit for a temporary stay only , may not be granted such a permit as long as he is present in this country or on account of an application made here , except in the cases specified in subsection one , paragraphs CARDINAL of this section . The aforesaid notwithstanding , an alien who has entered GPE as a visitor and has substantial reasons for prolonging his visit may be granted a residence permit for a specified period . "

Since DATE GPE has received CARDINAL NORP citizens , a large proportion of whom have been granted asylum . Visas have been required for travellers from GPE as of DATE . In view of political developments in GPE in DATE and DATE some refugees have returned voluntarily to take up political activities .

Rule CARDINAL of the Commission ’s Rules of Procedure reads :

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

An indication under Rule CARDINAL is only given where it appears that irreparable damage would result from the implementation of the measure complained of . This might be the case where expulsion or extradition is imminent and the applicant alleges that he is likely to be treated contrary to LAW and/or CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW in the receiving ORG . Normally Rule DATE would only apply to cases involving allegations of this nature . Further there must exist a certain degree of probability that a person would be subjected to treatment in breach of these provisions if sent to the country concerned . Evidence must thus be presented to the ORG which reveals the existence of such a risk .

When an application for interim measures is made it is brought immediately before the ORG or the President or Acting President if the ORG is not in session . A Rule CARDINAL indication is always limited in time . If the decision is taken by the President or Acting President , the indication will be limited until the GPE next sits . If it is taken by ORG , it is normally limited until its next session .

When the ORG or the President has applied Rule CARDINAL , the Secretary to the ORG will inform all the parties by telephone of the decision and confirm it by post or telefax . At the time of the first applicant ’s expulsion the Commission had been seised of CARDINAL requests for interim measures in expulsion ( as opposed to extradition ) cases . In CARDINAL of these cases an indication under Rule CARDINAL was given and complied with by the Contracting Parties concerned . In several cases concerning extradition the ORG has failed to comply with a Rule CARDINAL indication .

The application to the ORG was introduced on DATE and registered on DATE . On DATE , at TIME , the Commission decided to apply Rule CARDINAL of its Rules of Procedure in the following terms :

" The Commission ... decided ... to indicate to the Government of GPE ... that it was desirable in the interest of the Parties and the proper conduct of the proceedings before the Commission not to deport the applicants to GPE until the Commission had had an opportunity to examine the application during its forthcoming session from CARDINAL to CARDINAL DATE . "

The Agent of the Government was informed by telephone on DATE , at TIME , of the ORG ’s decision . At TIME the Commission confirmed the said indication by telefax .

Officials at ORG were informed of the ORG ’s indication at TIME on DATE . The matter was presented to the competent Minister at TIME . However , according to information given by the Government , the Minister could not take any action since the matter had already been decided by the Government and was pending before ORG .

On DATE , following a request from Mr PERSON , the ORG decided not to stay the enforcement of the expulsion . At that time the ORG was aware of the present application to the ORG and of the ORG ’s indication under Rule CARDINAL .

Mr PERSON was deported to GPE on DATE at TIME . His wife and their son went into hiding in GPE .

On DATE the ORG took the following decision under Rule CARDINAL of its Rules of Procedure :

" Having examined the parties’ submissions ORG decided to indicate to the Government , in accordance with Rule CARDINAL of its Rules of Procedure , that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport to GPE any of the applicants , who are still in GPE , until the Commission has had an opportunity to examine the application further during its forthcoming session DATE . In respect of Mr ORG , given the failure of the Government to comply with its earlier indication not to deport him to GPE , now indicates that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission , that the Government take measures which will enable this applicant ’s return to GPE as soon as possible . "

By letter of CARDINAL DATE the ORG informed the ORG that a request from the first applicant for permission to enter and remain in GPE was to be examined by ORG and that the question of the execution of the expulsion order in respect of PERSON and PERSON was pending before it . Consequently , the Government had , on DATE , decided to communicate the ORG ’s indication under Rule CARDINAL to ORG .

Following the hearing on DATE , the ORG decided to maintain its indication under Rule CARDINAL of its Rules of Procedure that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport the second and third applicants to GPE and that the Government take measures which would enable the first applicant to return to GPE as soon as possible .

On DATE the ORG decided , following the adoption of its report , not to prolong the Rule CARDINAL indication .

The applicants complained that the first applicant ’s expulsion amounted to a breach of LAW ) because of the risk that he would be tortured by the authorities . They also claimed that the expulsion of the third applicant would be in breach of LAW ) . In addition they complained that the separation of the family constituted a breach of LAW article CARDINAL) of the LAW . They further invoked Articles CARDINAL and CARDINAL ( article CARDINAL , LAW ) of the LAW .

The application was declared admissible on DATE as regards the ORG complaints under LAW and CARDINAL ( article CARDINAL , article CARDINAL) and inadmissible as regards the complaints under LAW ( article CARDINAL , LAW ) . ORG also retained for further examination the issues arising from the ORG ’s failure to comply with the Rule CARDINAL indications .

In its report adopted on DATE ( LAW ( article CARDINAL ) the Commission expressed the opinion that there had been no violation of LAW ) ( CARDINAL votes to CARDINAL ) or LAW article CARDINAL) ( unanimously ) but that there had been a failure to comply with LAW ( LAW ) in fine ( CARDINAL votes to one ) by not following the ORG ’s Rule CARDINAL request not to expel the first applicant . The full text of the Commission ’s opinion and of the separate opinions contained in the report is reproduced as an annex to the judgment .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE . In CARDINAL he obtained CARDINAL judgments against the authorities .

On DATE ORG awarded the applicant MONEY ( “ RUB ” ) in pension arrears against ORG . This judgment became binding on DATE , but was not enforced immediately . In CARDINAL , the bailiff ’s service ’s servicing bank had its licence suspended pending insolvency proceedings . On DATE the bailiffs made a bank transfer to the applicant , but the transfer failed because of a clerical mistake .

As the applicant believed that the bailiffs had caused the delay , on DATE he sued them for the judgment debt and non - pecuniary damages . After CARDINAL ﬁrst - instance hearings , CARDINAL appeal hearing , and CARDINAL supervisory - review hearings , on DATE ORG partly held for the applicant . It conﬁrmed the bailiffs’ fault , awarded RUB CARDINAL,CARDINAL.CARDINAL that included the original judgment debt adjusted for ination and costs , but rejected the claim for non - pecuniary damages .

Both the applicant and the bailiffs appealed against this judgment , but the applicant ’s appeal was not accepted because he had missed the time - limit . On DATE ORG upheld the judgment of DATE . The applicant and the bailiffs were absent from this hearing . Earlier the applicant had asked the courts to examine the case in his absence .

On DATE the bailiffs enforced the judgment of CARDINAL DATE .

On DATE ORG enforced the judgment of DATE .

Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

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

On DATE a massive fight between youngsters took place in the centre of PERSON in which a number of persons sustained injuries varying from slight to serious .

On DATE the applicant was questioned by the police as a witness at the hospital where he had accompanied a friend who had been injured in the fight .

In DATE and DATE the applicant was summoned by and appeared before the investigator on a number of occasions .

On DATE the applicant , having been questioned as a witness by the investigator , was detained on police premises on suspicion of armed hooliganism in respect of the events of DATE .

On CARDINAL DATE ORG of PERSON ( “ the Kyivskyy Court ” ) , in allowing the investigator 's application , remanded the applicant in custody and rejected a request by him to be placed instead under an undertaking not to abscond . The court gave as grounds for that decision the seriousness of the charges against the applicant , his mediocre character reference from the university where he was studying , his medical fitness for detention , and the risk that he might abscond or impede the investigation if at liberty . Although the management of the school from which he had graduated DATE and the authorities of the village where he had been living before his arrest gave the applicant positive character references , the court decided that they “ could not provide grounds for the rejection of the [ investigator 's ] application , as law - abiding behaviour is a requisite for life in society , and not an exception to the rule . ”

On DATE , in ORG of GPE ( “ ORG of Appeal ” ) , the applicant 's lawyer challenged the detention of his client , arguing that the applicant had a permanent place of residence , positive character references , suffered from Vitiligo ( a chronic disorder which causes depigmentation in patches of skin ) which could worsen in detention , and that he had no criminal record . He further noted that the applicant had always appeared voluntarily before the investigator and that his parents could pay bail for his release .

On DATE ORG rejected the appeal , referring to the seriousness of the charges brought against the applicant .

On DATE ORG extended the term of his detention to CARDINAL DATE on grounds of the necessity to complete the investigation , the seriousness of the charges and the inherent risk that the applicant would abscond , influence witnesses or reoffend .

On DATE the applicant was provided access to the case file .

On DATE ORG extended his detention to DATE following a request by the investigator , who maintained that the other co - accused needed more time to study the case file . The court rejected a request by the applicant to be released under an undertaking not to abscond , on grounds of the seriousness of the charges and the risk that he would abscond .

In DATE the investigation was completed and the applicant , together with the other co - accused , was committed for trial .

On DATE ORG of PERSON ( “ the ORG ” ) held a preparatory hearing during which the applicant again asked to be released under an undertaking not to abscond . He argued that all the evidence in the case had been collected by that time so there was no risk that he might tamper with it , that he had a permanent place of residence and well - established social networks , and that he had never hindered the investigation or attempted to abscond or reoffend . The court rejected the request with a final ruling , finding the preventive measure to be in compliance with the criminal procedural legislation .

In a judgment of DATE ORG found the applicant guilty of armed hooliganism , as well as of deliberately inflicting medium and grievous bodily harm , and sentenced him to DATE imprisonment .

On DATE ORG upheld that judgment .

On DATE ORG changed it , finding the applicant guilty of hooliganism without the use of arms and of deliberately inflicting medium bodily harm , and reduced the sentence to DATE imprisonment .

NORP The relevant provisions of LAW ( “ the ORG ” ) , as worded at the material time , read as follows :

“ Pre - trial detention during pre - trial investigations shall not DATE .

When it is impossible to complete the investigation within the period provided for in paragraph CARDINAL of this LAW and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure , [ the pre - trial detention ] may be extended :

DATE upon a request of or approved by the prosecutor supervising the compliance with law by the bodies of inquiry and investigation , by a judge of the court which applied the respective preventive measure ; ...

The term of pre - trial detention shall end on DATE the court receives the case file .

... After the completion of the investigation the case file shall be presented to the detained accused and his defence not DATE before the expiry of the pre - trial detention time - limit set under paragraph CARDINAL of this Article .

... If the accused and his defence received access to the case file [ in due time as noted above ] , but that time appeared insufficient , the respective term may be extended by a judge of an appellate court at the request of the investigator approved by ORG or his deputy , or at the request coming directly from the [ aforementioned prosecutorial officials ] . Where there are several co - accused held in pre - trial detention and if CARDINAL of them finds [ the term for the case file study ] insufficient , a request [ for its extension ] may also be applicable to the other coaccused who has / have completed his / their study of the case file , if his / their pretrial detention remains necessary and there are no grounds for changing that preventive measure . ... ”