CASE OF SAYGILI AND FALAKAOGLU v. TURKEY (No. 2)

No violation of Article 10 - Freedom of expression -{General}

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

The applicants were born in DATE and DATE respectively and live in GPE . They are , respectively , the owner and the editor - in - chief of a DATE newspaper called ORG .

On DATE , on payment of a certain amount of money , ORG Evrensel newspaper published CARDINAL declarations by detainees who were being kept in several prisons in GPE and who were either convicted or being tried on charges of having been involved in the activities of leftwing illegal armed organisations . By these declarations the detainees protested mainly against the F - type prison system put in place by the Government . They stated , in particular , that they would go on hunger strike until the Government abolished the F - type prison system . They also made a number of other requests to the Government , such as the abrogation of PERSON no . FAC ( Anti - Terrorism Law ) , the state security courts and anti - democratic laws as well as prosecution of those who tortured detainees .

The first declaration on page CARDINAL of the newspaper was entitled “ We warn the ORG which tries to put in place a cell system , we will not enter the cells ” , and in its relevant parts stated as follows :

“ As we fought off the CARDINAL DATE Junta ’s policies of controlling the prisons ,

As the circulars of DATE were torn off ,

As the LOC coffin house ( prison ) was forced to close down in DATE ,

As we forced the authorities to close down the LOC coffin house once again in DATE by our hunger strikes and we set up a barricade against the attacks on the people , DATE we the revolutionary prisoners who have come across the same duties will fight off this attack as well . We will pay off whatever it costs . But we will not enter the cells . From now on the strong voice of the resistance will resonate in the prisons of our country . As detainees of the DHKP - C and ORG ( ORG ) cases kept in various prisons , we start an indefinite hunger strike from DATE until the F - type cell assault ends and our demands are met ...

We will die but we will not enter the cells ,

Long live our general resistance ,

We will win ... ”

The second declaration on page CARDINAL of the newspaper was entitled “ We are on indefinite hunger strike , we will die but we will not enter the cells ” , and stated in its relevant parts :

“ ... With these beliefs and determination , and together with the prisoners of ORG and ORG ( ORG ) cases , we started our hunger strike resistance for an indefinite period . We call on all revolutionary prisoners , including the prisoners of ORG cases , to unite under the resistance flag and to set up a stronger and indestructible barricade of revolutionist mind .

The fundamental requests of our resistance are as follows :

* Abolish F - type prisons immediately ,

* Reinstate all rights seized in prisons ,

* Abolish LAW ,

* Abolish the tripartite protocol ,

* Abolish the state security courts and invalidate the outcome of all judgments delivered by these courts , and

* Try the torturers and perpetrators of massacres .

We call on the working class , labourers , all oppressed people and revolutionary people and ask them to support us in this resistance , for which we are ready to sacrifice our lives for human honour . We call on you to fight off the cell system which is the most critical chain of assault aiming at turning our lives into cells .

We will die but we will not enter the cells !

Long live resistance , long live victory !

In the name of ORG detainees in all prisons . ”

Finally , the third declaration , which appeared on page CARDINAL of the newspaper , was entitled “ To the public ” and made calls similar to the first CARDINAL declarations above . In particular , it called on all forces struggling to gain political freedom and class independence to take a stand against the fascist establishment and to spread the existing movement and actions and not to content themselves with mere declarations . It also called on these “ forces ” to use the request “ F - type prisons should be closed ” as leverage for their own political requests .

On DATE ORG at ORG filed an indictment charging the applicants with publishing the declarations of terrorist organisations . The charges were brought under section CARDINAL of Law no . ORG , section CARDINAL of Law no . CARDINAL ( Press PERSON ) and Article CARDINAL of the former LAW .

On DATE the applicants made their defence submissions to ORG . They argued that they had merely published declarations on payment of a certain amount of money and that they had had no intention of publishing the view of any terrorist organisation . They maintained that their trial by a state security court for exercising their right to impart ideas would amount to a breach of Articles DATE Convention on Human Rights .

Following the hearing of DATE , ORG convicted the applicants as charged and sentenced them to heavy fines , of MONEY ( TRL ) ( MONEY ( ORG ) ) and TRL MONEY ( EUR CARDINAL ) respectively , which sums corresponded to PERCENT of the newspaper ’s average sales in DATE . The court further decided to ban the publication of ORG for DATE .

On DATE the applicants appealed , arguing that they were innocent of the crime and that the sanction imposed on them was disproportionate .

On DATE ORG quashed ORG judgment , holding that the fine imposed on the applicants was miscalculated .

On DATE ORG delivered its reasoned judgment . Relying on LAW and the PERSON v. GPE judgment ( DATE , Reports of Judgments and Decisions CARDINALVII ) , the court held that publication of terrorist GPE declarations was not protected by the right to freedom of expression . It also noted that freedom of expression was not absolute and that LAW did not permit the publication of views expressed by armed terrorist organisations .

On DATE the applicants appealed again and asked ORG to hold a hearing and to quash ORG judgment of DATE . They claimed that the incriminated declarations did not incite violence or harm national security . They only exercised their duty to impart political opinions . The applicants also challenged the constitution of the state security courts .

On DATE ORG dismissed the applicants’ request for a hearing and upheld the judgment of ORG .


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

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

The applicant has been living in GPE since DATE . He owned a house in the Kalkanlı village of ORG . His mother lived in this house until DATE when she too moved to GPE . Since DATE the house has not been resided in . Nonetheless , the applicant continued to keep it partly furnished and to stay there in his visits from time to time .

According to what the applicant heard from his acquaintances , most villagers left the village in DATE and DATE because of the security forces’ pressure . In DATE the applicant went to see his house . He noticed that the roof had been removed and that some of his belongings inside were stolen . On an unspecified date , he saw some of his stolen belongings in a gendarmerie station .

On DATE and DATE the applicant filed a petition with ORG , GPE , and ORG in GPE . He reported that his house had been damaged by unknown persons and that some of his belongings had been stolen . He requested to be provided with alternative housing or financial aid in order to repair his house .

In his petitions , the applicant stated that he and his family had been compelled to leave their village in DATE for security concerns and had moved to GPE . He has not mentioned that he lived in GPE since DATE and instead gave an GPE address for correspondence .

On DATE ORG bureau of the GPE Governor ’s Office informed the applicant with a letter that an official investigation had revealed that he had moved to GPE DATE before and that he had not left any valuables in the house . It explained that the roof had been blown away as a result of severe weather conditions and lack of proper care and maintenance . It also noted that the rest of the building stood intact . In the light of those facts and the applicable law , ORG concluded that the applicant was not entitled to compensation or any form of financial aid .

This decision was served to the applicant ’s address in GPE – the same address he mentioned on his petition . Since he was allegedly in GPE at the time , he learned about this decision on DATE when he returned to GPE . The applicant did not challenge the decision before any administrative or judicial authority . By the time he lodged his application with the Commission , his petition to the prosecutor was pending .

The investigations carried out by the authorities indicated that the applicant had left his village of his own will and moved to GPE by taking all of his valuable property .

The investigations also revealed that the roof of his house was not removed but was blown away because of severe weather conditions throughout DATE since he left his house unattended .

A description of the relevant domestic law can be found in the ORG ’s judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE , § § CARDINAL , ECHR CARDINAL ... ) .


The applicant is a NORP national , born in DATE and living in GPE , GPE .

She is represented before the ORG by Professor PERSON , a lawyer practising in GPE , GPE .

The applicant , who is illiterate , was the tenant of ORG

On DATE ORG requested ORG ( “ the Board ” ) to grant her a re - possession order on the ground that the applicant had failed to pay rent . The applicant had been put on notice by ORG that she was in arrears of rent in letters dated DATE and DATE , the latter letter containing a warning that legal proceedings might be issued against her if she continued to fail to pay her rent .

The applicant was notified that she must appear before ORG on DATE at TIME for a hearing on her landlady ’s request for re - possession of her home .

The applicant failed to attend the hearing . ORG did appear and gave evidence in support of her application for re - possession . On DATE ORG ordered that the applicant be evicted , being satisfied that she had been duly served with notice of the date of the hearing and of the nature of the summons served on her . An eviction warrant was issued on DATE .

The applicant appealed to ORG , seeking a declaration that her right to a fair hearing had been breached and , in consequence , that the ORG ’s decision ordering her eviction was void . The applicant contended in particular that she could neither read nor write and that when she received the summons to appear before the ORG she did not understand its contents . On that account the applicant maintained that she was not in a position to contest her landlady ’s claim .

In its judgment of DATE the ORG ruled against the applicant . The court found that ORG ’s application to ORG was served on the applicant on DATE as evidenced by the fact that the applicant signed “ the relative postal pink card . ” However , she tore up the application , believing it to be a letter from the tax authorities . In the ORG ’s opinion :

“ ... the applicant acted unwisely when she tore up official documents not knowing what they referred to . ... It was her choice to remain ignorant of the contents ... since it was within her power to find out what the contents were . Her behaviour was not one in good faith . ... If the ORG gives its approval to the maxim that says where ignorance is bliss it is folly to be wise , then everyone would act stupid in order to avoid paying his due . ”

ORG also gave weight to the fact that the applicant had been warned that her landlady might take legal proceedings against her and for that reason she should have been more cautious when she received official documents .

The applicant appealed to ORG . She contended inter alia that the court documents sent to her through the post contained nothing to indicate their importance or how she was to proceed .

On DATE ORG upheld the decision of FAC . The court found that the applicant was highly irresponsible with respect to official documents she received . ORG rejected the applicant ’s submission that the summons should have been hand delivered by a court official given that postal service of court documents was a universally recognised method of service . The court found that the applicant capriciously chose not to inform herself of the nature of the document she received by seeking the advice of a third party . It concluded that :

“ It is difficult to imagine an appeal which is more frivolous or vexatious than this one . ”


Remainder inadmissible;Violation of Art. 5-1-c;No violation of Art. 5-1-c;Violation of Art. 5-3;Violations of Art. 6-1;Non-pecuniary damage - award

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

The applicant was born in DATE and is currently serving a prison sentence .

On DATE the applicant was arrested on suspicion of several counts of aggravated murder and taken to a police station . The police officers allegedly intimidated the applicant and forced him to confess . The applicant ’s representative was present when the applicant made his confession .

On DATE a medical examination was conducted on the applicant . The expert recorded a bruise on the left side of the applicant ’s chest and CARDINAL abrasions on the backs of his hands , which did not cause harm to the applicant ’s health . The above injuries were caused in the period from DATE prior to the examination . The applicant stated that on TIME DATE he had tried to stop a fight , and that as a result he had scratched his hand and been punched in the chest .

NORP The applicant sought to have criminal proceedings instituted against the police officers , however his allegations were found to be unsubstantiated .

On DATE the applicant was detained in custody .

On DATE the applicant was charged with murder under Article CARDINAL of LAW .

On DATE , DATE , DATE and DATE the applicant ’s detention pending investigation was extended until DATE , DATE , DATE and DATE respectively . The extension orders referred to the particular gravity of the charges against the applicant , the fact that he had no permanent place of residence and that he had previously absconded , thus breaching the preventive measure applied to him in connection with another criminal case .

On DATE the investigation was completed , and the case file was submitted to GPE for trial .

On DATE GPE referred the case back to the prosecution authorities for additional investigation on account of serious breaches of procedure . The court held that the preventive measure applied to the applicant “ should remain unchanged ” .

On DATE , DATE and DATE the applicant ’s detention pending investigation was extended until DATE , DATE and DATE respectively , for the reasons set out above .

On DATE the additional investigation was completed and the case was resubmitted to GPE for trial .

On DATE GPE accepted the case for trial and held that the preventive measure applied to the applicant “ should remain unchanged ” .

Starting from DATE GPE extended the applicant ’s detention DATE . In particular , on DATE it extended the applicant ’s detention from DATE until DATE ; on DATE from DATE until DATE ; on DATE from DATE until DATE ; on DATE from DATE to DATE ; on CARDINAL DATE from DATE to DATE ; on DATE from DATE to DATE ; on DATE from DATE until DATE , and on DATE from DATE until DATE .

The above extension orders concerned the applicant and CARDINAL other co - defendants . All of the extension orders referred to the gravity of the charges against the applicant and his co - defendants and the risk of their absconding , without providing any further detail . The extension order of CARDINAL DATE was more elaborate and , in so far as it concerned the applicant , read as follows :

“ [ The applicant ] is charged with particularly serious crimes , including several counts of aggravated murder , committed while under a written undertaking not to leave applied in the framework of another criminal case on the charges of , inter alia , several aggravated murders and other serious and particularly serious crimes ... Even after being detained in custody [ the applicant ] had committed a crime for which on DATE he had been sentenced by GPE Dzerzhinskiy ( Tsentralniy ) ORG to DATE and CARDINAL months’ imprisonment . ”

The applicant appealed to ORG of GPE against these extension orders . The extension orders of DATE and DATE were found to be unlawful , on DATE and DATE respectively , because in the first case neither the applicant nor his representative were given proper notice of the hearing and , as a consequence , were absent , and in the second case the hearing took place in the absence of the applicant ’s representative . The remaining extension orders of DATE , DATE , CARDINAL May , DATE and DATE , and CARDINAL DATE , were upheld on appeal by ORG on DATE , DATE , DATE and DATE and on DATE and CARDINAL DATE respectively .

On DATE GPE ex post facto authorised the applicant ’s detention from DATE to DATE .

On DATE the Dzerzhinskiy ( Tsentralniy ) ORG of GPE convicted the applicant of stealing and destruction of official documents and attempted forgery of documents and sentenced him to CARDINAL years’ imprisonment starting from DATE . The court further held that the applicant ’s detention from DATE to DATE in the above case should be counted toward the applicant ’s prison term .

On DATE GPE commuted the applicant ’s sentence to DATE and CARDINAL months’ imprisonment .

It appears that the applicant completed his sentence in DATE .

Having studied the case file before the completion of the preliminary investigation , in DATE the applicant requested that his case be dealt with by CARDINAL professional and CARDINAL lay judges .

On DATE GPE scheduled the first hearing for DATE .

On DATE , however , the proceedings were suspended in view of the necessity to search for Zh . – one of the applicant ’s co - defendants .

On DATE the proceedings were resumed despite the failure to find Zh . Starting from that date the court was composed of a professional judge , PERSON , and CARDINAL lay judges , PERSON and PERSON to that , on DATE in accordance with LAW the acting president of GPE selected CARDINAL lay judges , including PERSON and PERSON , to sit at the examination of the cases by ORG ; and on DATE Judge PERSON , to whom the case had been assigned , drew lots between CARDINAL unidentified lay judges ( their names did not appear in the relevant decision ) and determined that lay judges PERSON and PERSON should sit with him on the bench .

The applicant challenged the composition of the bench . He alleged a breach of rules on the appointment of lay judges in that lay judges PERSON and PERSON had not been drawn by lot , contrary to the requirements of LAW О народных заседателях федеральных судов общей юрисдикции в Российской PERSON , “ the LAW ” ) . However , the applicant ’s challenge was dismissed by the court . No breach of the rules governing the calling of lay judges was established .

Of CARDINAL hearings scheduled DATE and DATE CARDINAL were adjourned for various reasons : CARDINAL due to the submission by the applicant of requests and the prosecution ’s need to study the case file , CARDINAL due to the failure of the guard unit to deliver the applicant and his co - defendants to the court , CARDINAL because the lawyers were either sick or absent , CARDINAL due to the necessity to summon witnesses , and CARDINAL on the court ’s initiative , on the first occasion because the applicant ’s co - defendants had agreed to testify at the forthcoming court hearing , and on the second because the applicant had refused to testify .

On DATE the applicant again challenged the composition of the bench , without success .

On DATE the St. ORG convicted the applicant of aggravated murder , theft and fraud and sentenced him to life imprisonment .

On DATE ORG of GPE modified the qualification of the applicant ’s crime and left the sentence unchanged .

At the applicant ’s request , on DATE ORG of GPE by way of supervisory review modified the qualification of the charges against the applicant and left the sentence unchanged .

For a summary of domestic law provisions on pre - trial detention and time - limits for trial see PERSON v. GPE ( no . CARDINAL , § § DATE , ORG CARDINALX ( extracts ) ) .

The Code of Criminal Procedure of the RSFSR ( Law of DATE , “ the old CCrP ” ) provided that hearings in first - instance courts dealing with criminal cases were to be conducted , subject to certain exceptions , by a single professional judge or by CARDINAL professional and CARDINAL lay judges . In their judicial capacity , lay judges enjoyed the same rights as professional judges ( DATE ) .

The Code of Criminal Procedure of GPE ( Law no . CARDINAL of DATE , “ the new CCrP ” ) does not provide for participation of non - professional judges in administration of justice in criminal matters . It provides that serious crimes should be dealt with by a single professional judge or by CARDINAL professional judges provided that the accused has submitted such a request prior to the appointment of a trial hearing ( LAW ( CARDINAL ) ) . It further provides that the composition of the court examining the case should remain unchanged throughout the trial ( LAW ) .

The Federal Law on enactment of the new CCrP ( Law no . CARDINAL of DATE ) provides as follows :

Section CARDINAL.CARDINAL provides that LAW on ORG of ORG becomes ineffective as from DATE .

Section CARDINAL provides that LAW ( CARDINAL ) of LAW , in so far as it concerns the examination of serious crimes by CARDINAL professional judges , becomes effective as from DATE . Before that date serious crimes should be dealt with by a single professional judge or by CARDINAL professional and CARDINAL lay judges if an accused has made such a request prior to the appointment of a trial hearing .

On DATE , LAW on ORG of ORG in GPE ( “ the LAW ” or “ LAW ” ) came into effect . Under LAW of the LAW , lay judges were persons authorised to sit in civil and criminal cases as non - professional judges .

Section CARDINAL of the Act provided that lists of lay judges had to be compiled for every district court by local self - government bodies , such lists being subject to validation by the regional legislature .

Section CARDINAL of the Act determined the procedure for the selection of lay judges for the examination of cases by district courts . It provided that the president of a district court had to draw at random from the list a certain number of lay judges to be called to the competent district court . The number of lay judges assigned to every professional judge had to be CARDINAL times the number of persons needed for a hearing .

Section CARDINAL of the Act provided that the selection of the lay judges for the examination of cases by regional ( city ) courts was carried out by the president of the relevant court in accordance with the rules set out by LAW on the basis of the general lists of lay judges of the district courts situated on the territory of the relevant region ( city ) . It further provided that the selection of lay judges for examination of a particular case in a regional ( city ) court was carried out by the judge to whom the case in question had been assigned in accordance with the rules set out by LAW .

In accordance with LAW , lay judges were to be called to serve in a district court for DATE , or as long as the proceedings in a particular case lasted . Lay judges could not be called more than once a year .

On DATE GPE validated the general list of lay judges assigned to the ORG of GPE . The addendum to the above regulation contained the general list of CARDINAL lay judges .

On DATE the Presidium of ORG of GPE on the basis of LAW issued a regulation on the procedure for selection of lay judges . The regulation provided that the president of a district court should draw at random from the general list of lay judges CARDINAL names for each judge . The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned .

The new ORG provides for a possibility to re - open criminal proceedings on the basis of a finding of a violation of the ORG made by ORG CARDINAL ) .


No violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing) read in the light of Article 6 - (Art. 6) Right to a fair trial (Article 6-3-d - Witnesses)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens

The applicant was born in DATE and lives in GPE .

On an unspecified date , the applicant and another individual , GPE , were charged under LAW , paragraph CARDINAL of GPE with the criminal offence of unlawfully manufacturing and trading in narcotics . They were accused of being involved in the organisation of drug trafficking which had been carried out by PERSON , who had already been convicted of this in GPE . Another person , PERSON , who had been convicted in GPE ( GPE ) , was involved in the trafficking .

NORP By letter of DATE and during a telephone call on DATE , the applicant ’s lawyer was informed of the investigating judge ’s decision to question PERSON as a witness in GPE , where he was being held in a prison .

On DATE the investigating judge , accompanied by ORG representative and the public prosecutor , questioned PERSON in GPE . PERSON had specified that his participation to the meeting was conditional upon the fact that he would not be compelled to answer questions put by the defence ; as a consequence , ORG representative was unable to put any questions to him .

During questioning , PERSON explained that he had met PERSON in DATE in GPE . PERSON later contacted him about transporting a car from GPE to elsewhere in LOC and mentioned people from GPE , including the applicant , who would organise the transport . PERSON and PERSON came together to GPE on DATE and stayed in FAC . They were visited there by the applicant and PERSON On this occasion , PERSON received an envelope from the applicant : he stated that he thought that it contained money for the purchase of a car , but later realised that it was a package of heroin and that he was supposed to smuggle drugs in the future . According to PERSON ’s version of events , he came to GPE again on DATE , taking a train from ORG GPE ) to GPE . In GPE he met PERSON , who told him about the first drug transfer from GPE to GPE and gave him a mobile phone with a NORP ORG card . DATE , PERSON met the applicant and PERSON at FAC . They told him where in GPE he had to go , but that plan was never implemented . PERSON subsequently bought a car for a drug transfer from GPE to GPE . His contact with PERSON , who , unlike the applicant , could speak LANGUAGE , was made using the mobile phone which had been given to him during his second visit to GPE . GPE met the applicant and GPE in GPE and GPE , where they told him about a new drug transfer from GPE to GPE . He was again given instructions by PERSON using the mobile phone . PERSON identified both the applicant and PERSON from a series of photographs .

The trial court subsequently called : ( i ) witness PERSON , who testified that he had introduced the applicant to ORG in the context of a business involving the sale of apartments ; ( ii ) an undercover agent who was involved in another case and whose testimony was consequently held by the trial court to be inadmissible in the proceedings concerning the applicant ; and ( iii ) an anonymous witness , who also confirmed that the applicant and ORG knew each other because they had both been present at the meeting concerning the sale of certain apartments . The court also admitted as evidence : ( i ) the statement taken from GPE on DATE in GPE ; ( ii ) the guest records of FAC relating to the dates DATE ; ( iii ) the records of phone calls made on the NORP ORG card found in possession of PERSON on the date of his arrest ; and ( iv ) the judgment of ORG concerning the criminal proceedings against ORG

That judgment had established that ORG and GPE knew each other and that they had planned a drug transfer from GPE to LOC . Moreover , it had been ORG who had introduced PERSON to the applicant and ORG had further established that on DATE ORG and PERSON had gone to FAC in GPE , where they had met the applicant and GPE , that a second visit to GPE had taken place on DATE , that PERSON had received a mobile phone from GPE which had been used to give him instructions about the drug transfers , that PERSON had delivered drugs in GPE and in GPE and that he had met the applicant and GPE twice in GPE .

At a hearing on DATE , the court read out PERSON ’s statement of DATE . While the public prosecutor and ORG representative agreed to this , the applicant ’s representative objected and requested that PERSON be examined in court . His request was rejected by the court , referring to LAW hereinafter , “ the LAW ” – see paragraph CARDINAL below ) .

At a hearing on CARDINAL DATE , the applicant requested that his mother , brother and wife be called to give evidence relating to his state of health and his medical appointments during the period in question . The court rejected the request , finding that the applicant ’s state of health could be verified on the basis of his medical records .

On DATE the applicant was convicted and sentenced to CARDINAL years’ imprisonment for being part of a criminal enterprise , together with PERSON and FAC , which had drug trafficking from GPE to LOC as its purpose . The court found that the applicant and his co - accused , PERSON , together with ORG , had organised and assisted the sale of heroin which had been trafficked by PERSON on CARDINAL occasions in DATE . On CARDINAL occasion , QUANTITY of heroin had been trafficked to GPE , and on another occasion , QUANTITY of heroin had been trafficked to GPE . The court also found that the applicant had not attended any medical appointments on the dates on which the alleged acts were committed .

In its judgment , the court rejected the applicant ’s argument that PERSON should have been examined at trial . The court relied on the fact that PERSON had been sentenced to DATE in prison and that it could not therefore have been expected that the NORP authorities would bring him before a NORP court in order to testify . It also rejected the applicant ’s argument that PERSON was mentally ill , finding that his answers had been clear and coherent and that the issue of his mental state had already been assessed by ORG , which had found that his testimony had been fully credible . The court also observed that the defence had been aware that PERSON would not answer questions other than those put to him by the investigating judge or the prosecutor . It further found that PERSON ’s representative , who had been present at the examination , had not even attempted to put questions to PERSON , nor had she asked the investigating judge to do so on her behalf .

In its reasons for convicting the applicant , the court stated that it had followed the description of the relevant events given by PERSON on DATE , which had been coherent and supported by corroborating evidence . The evidence , including telephone records and train tickets , had supported ORG statement regarding the trips he had taken in order to bring the drugs to GPE and GPE . In particular , the train tickets found on PERSON on the date of his arrest had corresponded to the dates of his alleged meetings with PERSON Moreover , from the date on which he had received the mobile phone from GPE until the date of his arrest in GPE , GPE ’s NORP ORG card had recorded that calls had been received from different telephone boxes in the area near GPE , the city where the applicant and PERSON had lived . These phone calls had matched with the dates and locations of the drug transfers which PERSON had allegedly undertaken under the instructions of the applicant and GPE

In addition , the court found that PERSON had picked out the applicant and PERSON from CARDINAL photos of different people and “ had previously described both of them and stated that he had met them on several occasions ” . It further stated :

“ On the basis of the above , the court considers it proven that the accused colluded with ORG and GPE for the purpose of committing criminal offences . The witnesses confirmed that [ the applicant ] had met PERSON , and that [ his co - accused ] had also enquired about him . PERSON indicated the time from which he had been ORG ’s friend and from which they had reconnected . Immediately after PERSON ’s release from hospital , PERSON contacted him and took advantage of his position . It can also be seen from ORG judgment that ORG was in contact with PERSON on a continuous basis . All CARDINAL of them were together on DATE and CARDINAL DATE in FAC , where they started planning the trafficking . ”

The applicant appealed . He alleged that the judgment had been based predominantly on ORG statement , which was of questionable credibility . He submitted that the documents in the case file had shown that PERSON was mentally ill , had been treated in a psychiatric hospital several times , including most recently shortly before his arrest , and that he was easily manipulated . For those reasons , the applicant had requested that the court call PERSON for examination at trial . Referring to LAW , the applicant alleged that his right to examine a key witness should have had precedence over the logistical difficulties and financial consequences connected with the organisation of the witness ’s attendance at the hearing . He also complained about the court ’s refusal to call his mother , his brother and the representative of his co - accused as witnesses .

On DATE ORG dismissed the appeal . It agreed with the lower court as regards the credibility of PERSON ’s testimony . In relation to the fact that PERSON had not been examined at the hearing , it found the following :

“ The court ’s decision to read out the testimony of PERSON was made under LAW , paragraph CARDINAL , point CARDINAL , on the well - founded basis that PERSON was serving a DATE prison sentence in GPE . The representative of the accused had been informed of the examination before the NORP court beforehand but decided not to attend . The other examinations of this witness and the final judgment of the NORP court , which have been mentioned already , were sufficient to assess the credibility of this witness . Article CARDINAL of the Convention was not violated because the accused were unable to directly examine this witness , contrary to the appellant ’s incorrect contention . The proven credibility of this witness was such that the participation of both accused [ in GPE ’s questioning ] could not have affected [ his statement ’s ] evidential value ... As can be seen from the written grounds of the judgment , the court also relied on PERSON ’s statements obtained in the proceedings before the NORP courts and the final judgment of the NORP court , which were valid evidence because their lawfulness was not questionable as [ a result of the fact that ] the judgments were final . Although PERSON ’s representative was unable to put any questions to PERSON ( in accordance with the conditions set by PERSON ) , the rights of the defence were not violated as otherwise the witness would have refused to participate . In this connection , the court rightly found that the [ applicant ’s ] representative could have put questions to PERSON through the investigating judge but did not make use of this possibility . ”

The applicant and PERSON lodged appeals on points of law . On DATE ORG upheld their appeals in part in respect of the legal qualification of the offence and reduced their sentences to eight years’ imprisonment each . It dismissed the remainder of the appeals . It found that the applicant ’s representative had been given an opportunity to participate in the examination of GPE and should have been aware of the possibility that the witness would not be examined again at trial , as stipulated in section CARDINAL , paragraph CARDINAL of LAW ( see paragraph CARDINAL below ) . It also dismissed the applicant ’s argument that he could not have afforded his representative ’s travel expenses , finding that no request had been made to cover such expenses from ORG funds .

On DATE the applicant lodged a constitutional appeal alleging a violation of his defence rights . On DATE ORG dismissed the appeal as manifestly ill - founded . It endorsed the reasons given by ORG .

The relevant provisions of LAW ( Zakon o kazenskem postopku , ORG no . CARDINAL ) read as follows :

( CARDINAL ) NORP ”

( CARDINAL ) The state prosecutor , the accused and his defence counsel may attend the examination of a witness . The injured party may attend the examination of a witness only if the witness is not likely to appear at the main hearing .

( CARDINAL ) If a person who has been sent a notice of any intended questioning fails to appear , the questioning may be performed in his absence . ...

( CARDINAL ) The parties and defence counsel present during a questioning session may seek clarification of certain matters by putting questions to the accused , witness or expert . As a rule , the questions shall first be put by the state prosecutor , then by the accused and his counsel and finally by the investigating judge . The investigating judge shall not allow a question or an answer if they are not permitted or are irrelevant to the matter considered . ... Persons present at a questioning session shall have the right to demand that their remarks concerning the asking of individual questions be entered in the record , and may propose that individual pieces of evidence be taken .

“ If the parties and defence counsel did not attend certain a questioning session and the investigative judge considers that it would be advantageous for the further course of the procedure if they were acquainted with critical evidence , he shall inform them that this evidence will be available within a specific period and that they may make motions for new evidence to be taken . ”

“ ( CARDINAL ) ... Witnesses and experts proposed by the prosecutor in the indictment and by the accused in his defence to the indictment , except those whose examination at the main hearing is not necessary in the opinion of the presiding judge , shall also be summoned to the main hearing . ... ”

“ ( CARDINAL ) If it transpires in the course of the main hearing that a witness or an expert is unable to appear in court or his appearance would involve great difficulty , and the panel maintains that his testimony is important , the panel may order that he be examined outside the main hearing by the presiding judge , or a judge on the panel , or the investigating judge of the court in whose territory the witness or the expert resides .

( CARDINAL ) The parties and the injured person shall always be advised when and where a witness shall be examined , or when and where an inspection or reconstruction of an event shall take place , and shall be instructed that they may attend these events . If the defendant has been remanded in custody , the panel shall determine whether his presence is necessary during these actions . ... ”

“ ( CARDINAL ) In addition to the instances specified in the present Code , the records of the testimonies of witnesses , co - defendants or convicted persons who were involved in the offence , as well as expert reports and expert opinions , may on the basis of a decision of the panel be read out only in the following instances :

( i ) if the persons questioned have died , or have been affected by a mental disease , or can not be found , or are unable to appear in court due to old age , illness or some other weighty reason , or their appearance would involve great difficulty ;

( ii ) if witnesses or experts refuse to testify at the main hearing without legal justification .

( CARDINAL ) Subject to the consent of the parties , the panel may decide that the record of a previous examination of a witness or an expert , or the written findings and opinion of the expert , be read out in court in the absence of the witness or the expert , whether or not the witness or the expert were summoned to appear at the main hearing .

( CARDINAL ) The reasons for the reading out of the record shall be indicated in the record of the main hearing ... ”

“ After the examination of each witness or expert , as well as after the reading of each record or other written document , the presiding judge shall invite the parties and the injured person to make comments if they so wish . ”

ORG held that the “ extreme ill - health ” of CARDINAL witnesses ( the alleged victims of a crime ) was a “ justified and unavoidable derogation ” from the principle of direct examination of witnesses . Nevertheless , the accused should have been given the opportunity to question the victims , and in this respect it was enough that he had been invited , during the investigation , to be present at their examination conducted by the investigating judge ( decision Up-CARDINAL/CARDINAL of DATE ; see also judgment no . III PERSON CARDINAL/CARDINAL of ORG of DATE ) . In a decision of CARDINAL DATE ( Up-CARDINAL/CARDINAL ) , ORG considered that it was not possible to refer to a violation of the right to examine the witnesses for the prosecution when the authorities had acted with due diligence in their efforts to ensure that the accused had the benefit of this right ( it is worth noting that in this case , according to ORG , the statements of the victims were not the sole and key evidence against the accused ) .

NORP In a judgment of CARDINAL DATE ( no . I ORG CARDINAL/CARDINAL ) , ORG noted that , according to section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL above ) , the records of statements could be read at trial in the event that the witnesses could not be found . If the accused was provided with an opportunity “ to be present at the hearing of this evidence ” , the statements in question could be read out even without his consent . Furthermore , there was no violation of the procedural rights of the accused if he and his counsel were summoned to attend the examination of a witness who could not give evidence at trial ( see judgment no . I Ips MONEY of CARDINAL DATE , and judgment no . I Ips CARDINAL/CARDINAL of CARDINAL DATE ) . Conversely , such a violation would occur when , in the absence of any obstacle to such an act , the investigating judge failed to inform the suspect of the examination of a witness whose statements were subsequently read out at trial ( see judgment no . I Ips CARDINAL/CARDINAL of DATE ) .

Section CARDINAL of LAW indicates the cases in which it is admissible to make an exception to the principle that evidence at the main hearing shall be taken directly before the trial chamber ( the “ principle of immediacy ” – see ORG judgment no . I Ips CARDINAL/CARDINAL of DATE ) . A party who has explicitly agreed to the reading of a witness ’s testimony can not rely upon the right to cross - examine the witness in question at the trial hearing ( see decision no . PERSON of ORG of DATE , and decision no . PERSON CARDINAL/CARDINAL of ORG of DATE ) .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE criminal charges were brought against the applicant . He was suspected of armed robberies , committed in an organised criminal group . The applicant was in hiding at the material time .

On DATE an arrest warrant was issued against the applicant by the NORP authorities . After having been unsuccessfully sought for DATE , he was eventually detained in GPE on DATE and remanded in custody .

Subsequently , action was taken with a view to the applicant 's extradition and on DATE , the NORP authorities handed him over to GPE .

On DATE ORG ordered that the applicant remain in custody , relying on the reasonable suspicion that he had committed the offences in question . The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might tamper with evidence and induce witnesses to give false testimony or go underground again ( he had earlier been in hiding in GPE ) . It further stressed the severity of the anticipated penalty and the fact that the applicant had been acting in an organised criminal group .

The applicant 's appeal against the detention order was dismissed by ORG on DATE . Likewise , his further appeals against decisions prolonging his detention and all his subsequent , numerous applications for release and appeals against refusals to release him were unsuccessful . In his applications and appeals he relied on his personal circumstances , in particular his poor health , stressing that he had been infected with an ORG virus .

In the course of the investigation , the applicant 's detention was prolonged on several occasions , namely by ORG decisions of DATE , DATE and DATE , DATE and DATE , DATE , DATE and DATE , DATE and DATE and ORG decisions of DATE and DATE . In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant 's detention . In addition , they stressed the existence of a strong suspicion that the applicant had committed the offences in question , which was supported by an extensive body of evidence from witnesses and experts . Further , they attached importance to the grave nature of the charges against him and the fact that a “ wanted ” notice had been issued for his arrest .

On DATE ORG filed a bill of indictment with ORG . The applicant was charged with inter alia numerous counts of armed robberies committed in an organised criminal group .

On DATE ORG requested ORG that the case be transferred to ORG . The court stressed the special nature of the case , which implied that exceptional security measures be taken and special facilities provided . On DATE ORG granted the request .

DATE and DATE the applicant served a prison sentence imposed in another set of criminal proceedings ( on the strength of ORG judgment of DATE ) .

On DATE ORG granted the applicant 's request to be released on bail . On DATE the applicant was released as he had paid bail of MONEY ( ORG ) .

It appears that the criminal proceedings are still pending .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


The applicant , born in DATE , presently resides in GPE , GPE . In his application form , he states that he has NORP nationality .

a.

On DATE the applicant arrived in GPE with his wife and requested asylum . His wife being unhappy with the living conditions in the refugee camp where they were placed , they withdrew the asylum request on DATE and left GPE on DATE . They went to GPE where his wife ’s father lived . The wife later left the applicant and went to GPE with her father . The applicant was left in GPE without any income or a place to live . He received no help from the NORP authorities . Before leaving for GPE he had been active in the defence organisation in his hometown PERSON in PERSON . Following disagreements he left the organisation and joined the NORP army in which he served until DATE when NORP forces took over PERSON . He deserted from the army and , on a second attempt , he was able to cross the border to GPE . After his return to GPE from GPE he was allegedly afraid of being arrested and sent back to GPE to be put on trial for desertion . He therefore left for GPE a second time . He arrived on DATE and requested asylum . He claimed that he could not return to GPE as he could not get any protection there . Nor could he return to GPE where he would be drafted for military service or punished for desertion . Further , he would be at risk of being sent back to GPE . Despite the fact that he held a NORP passport , he could not be considered a citizen of that country as he had not applied for NORP citizenship .

On DATE ORG ( ORG invandrarverk ) rejected the applicant ’s request and ordered his deportation to GPE . ORG found that the applicant held both NORP and NORP citizenship . Noting that the prevailing situation in GPE rendered a deportation to that country impossible , the ORG examined the applicant ’s situation with respect to GPE . ORG found that he did not risk to be sent from GPE to GPE . Further , he did not risk harassment or persecution in GPE and he would not be forced to take part in any armed conflict .

The applicant appealed to ORG ( Utlänningsnämnden ) . On DATE ORG granted the applicant a temporary residence permit until DATE and quashed the deportation order . In so doing , the ORG referred to a Government decision of CARDINAL DATE according to which the worsened situation in GPE constituted an impediment to the deportation of asylum seekers to that country .

On DATE the applicant submitted a new application for a residence permit . He referred to his previous statements and added the following . He is wanted for desertion by the NORP army and might be forced to rejoin his military unit and take part in the conflict in GPE . In this respect , he invoked a NORP arrest warrant and a NORP draft order . He claimed further that he feared reprisals for comments he had made to NORP newspapers about people profiting from the war and for having participated in demonstrations and other actions against GPE in GPE . Moreover , having had special assignments within the NORP army , he was in possession of sensitive information and could thus be in great danger if caught by “ the wrong people ” . He stated also that his mental health was failing due to his experiences from the war and that he regularly saw a psychologist . His medical journals showed that he was in great need of psychiatric help on account of those experiences . According to CARDINAL district nurses whom the applicant had been seeing , the applicant had suicidal thoughts . Moreover , the applicant invoked family ties in GPE : CARDINAL of his brothers lived there and his mother and another brother had applied for asylum in the country . His parents were divorced and his father had returned from GPE to GPE in DATE . The applicant claimed also that he had integrated well into NORP society and that he should be given a residence permit on humanitarian grounds .

In a decision of DATE ORG rejected the applicant ’s new application and ordered that he be deported to either GPE or GPE . ORG referred to a guiding decision taken by ORG on DATE according to which the possibility of returning to one ’s home district in GPE was dependent on the prevailing ethnic composition of the population in the district . In the ORG ’s view , it was possible to return to the home district where one ’s own ethnic group was in the majority . ORG noted that the majority of the population in GPE were NORP . Consequently , the applicant could return to PERSON without having to fear any harassment or outrage . As regards the possible deportation of the applicant to GPE , ORG considered that there was no reason to assume that GPE would not afford him protection . In this respect , the ORG referred to information available from ORG and the ORG High Commissioner for Refugees ( ORG ) . This view had been confirmed also by ORG . With respect to the applicant ’s alleged actions against GPE , the ORG noted that the applicant had not been politically active in his home country and that there was no indication that his activities in GPE had attracted the attention of NORP authorities . ORG further called into question the veracity of the applicant ’s statements as to his being in possession of sensitive information since he had not made this allegation until DATE . Moreover , having regard to the amnesty laws enacted in GPE and GPE , it was not likely that the applicant would be punished for desertion . Finally , ORG considered that the applicant ’s mental problems , his alleged integration into NORP society and his family ties did not constitute sufficient reasons to grant him a residence permit on humanitarian grounds .

The applicant appealed to ORG . He invoked a statement by psychologist PERSON who claimed that the applicant showed signs of suffering from a posttraumatic stress syndrome and that it had been considered whether to admit the applicant for institutional care due to the risk of suicide attempts .

On DATE ORG upheld ORG decision .

By a decision of DATE ORG granted the applicant ’s mother a permanent residence permit in GPE on account of her family ties . ORG recalled that , under NORP law , a residence permit could be given to a foreigner who used to share a home with a relative living in GPE , if it could be shown that the persons in question were in a state of dependence vis - à - vis each other . As regards the circumstances of the particular case , the ORG noted that the applicant ’s mother had been living with her CARDINAL sons – including the applicant – in GPE until the autumn of DATE . Her son B had left for GPE in DATE and had been granted a permanent residence permit on DATE . Another son , S , had arrived in GPE in DATE . On DATE he had been granted a residence permit based on his ties with his NORP wife with whom he had a child . ORG noted further that the applicant had been refused a residence permit . The applicant ’s mother had arrived in GPE in DATE and had been living with S until , in DATE , he moved in with his wife . ORG concluded that there was such a state of dependence between the applicant ’s mother and her sons living in GPE that she was entitled to a residence permit .

Following the decision concerning his mother , the applicant submitted another application for a residence permit . He claimed that he had been living with his mother in GPE and that they had continued to live together after her arrival in GPE in DATE . On DATE ORG rejected the application , finding that no new circumstances had been invoked in the case .

On DATE the applicant submitted yet another application . Again , he referred to his ties with his mother and claimed that these circumstances had not properly been taken into account by ORG . By a decision of CARDINAL DATE the ORG suspended the enforcement of the applicant ’s deportation order . The examination of the merits of the latest application is still pending before ORG .

Relevant domestic law

Under LAW of LAW ( Lagen om psykiatrisk tvångsvård , DATE ) , such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported . This presupposes , however , that the chief physician finds that the alien ’s condition allows that the deportation takes place . According to LAW , no appeal lies against the chief physician ’s decision .


Violation of Article 5 - Right to liberty and security

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was arrested by the police on suspicion of having committed , inter alia , several counts of fraud , receiving stolen goods , bribery , forgery , deception , drug trafficking and inciting to theft while acting in an organised criminal group . On DATE ORG ( Sąd Rejonowy ) ordered his detention . It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the risk that , as a former police officer , he might tamper with evidence . It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant .

On DATE the charges against the applicant were severed from the main proceedings instituted against several suspects . The case was referred to the Bielsko - Biala District Court .

On DATE the ORG extended the applicant ’s detention until DATE . It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged , the need to secure the proper conduct of the investigation and the complexity of the case . It also stressed that his detention was justified by the need to obtain further evidence , in particular to obtain expert reports , to take evidence from witnesses and suspects and to confront witnesses and suspects .

The detention order was subsequently extended by the Bielsko - Biała District Court on DATE , DATE and DATE . The court repeated the grounds given in the previous decisions .

On DATE ORG ( Sąd Apelacyjny ) extended the applicant ’s detention until DATE . It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged , which was supported by evidence from witnesses and co - accused . Moreover , the court found that there was a reasonable risk that the applicant would obstruct the proper conduct of the proceedings , having regard to the fact that he had formerly been a police officer . It also referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant and to the complexity of the case .

On DATE the applicant requested access to the case file .

On DATE ORG ( Prokurator Okręgowy ) refused the applicant access to the case file . He relied on the risk that the applicant might attempt to tamper with evidence . Furthermore , the prosecutor stated that the applicant would be granted access to the case file later in the proceedings , at the close of the investigation .

On DATE ORG upheld the impugned order , finding that the applicant ’s defence rights had been limited only temporarily and that the refusal of access to the case file was necessary for the proper conduct of the investigation .

On DATE a bill of indictment was lodged . However , the court decided to return the case to the prosecution authorities for additional investigation .

On CARDINAL DATE the Bielsko - Biala District Court extended the applicant ’s detention until DATE . The court repeated the grounds given in the previous decisions .

On DATE a new bill of indictment was lodged . It listed CARDINAL charges laid against members of an organised criminal group .

On DATE the ORG extended the applicant ’s detention until DATE . On DATE ORG extended that period to DATE . The applicant ’s detention was subsequently extended on DATE , CARDINAL DATE and CARDINAL DATE . The courts relied on the grounds stated in the previous decisions .

In the course of the investigation and the court proceedings the applicant made numerous unsuccessful applications for release and appealed , likewise unsuccessfully , against refusals to release him and against decisions extending his detention .

DATE and DATE the court held CARDINAL hearings .

On DATE Court convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment . He appealed . The applicant ’s detention was subsequently extended on CARDINAL occasions .

On DATE ORG ( PERSON ) quashed the first - instance judgment . At the same time it extended the applicant ’s detention until DATE . The court considered that the reasons for keeping him in detention were still valid .

On DATE ORG extended the applicant ’s detention to DATE .

On DATE , upon the applicant ’s request , he was released from detention .

DATE and DATE the court held QUANTITY hearings .

NORP The proceedings are still pending .

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

The applicant sought a ruling declaring that the length of the proceedings from DATE , that is , the date of delivery of the first - instance judgment , to DATE ( the referral of the case to the court of second instance ) had been excessive .

On DATE ORG dismissed his complaint . The court held that there were no delays for which ORG could be held responsible . It referred to the complexity of the case , the time needed for the preparation of written grounds for the judgment , which comprised CARDINAL pages , and problems with serving CARDINAL of the defendants with a notice concerning his appeal .

On DATE the applicant lodged a new complaint about a breach of the right to have his case heard within a reasonable time . He sought a ruling declaring that the length of the proceedings after DATE had been excessive .

On DATE the Bielsko - Biala Regional Court rejected his complaint , relying on section DATE CARDINAL Act ( under this provision a fresh length complaint in the same proceedings can not be lodged DATE from the date on which a court has given a decision concerning the first length complaint ) .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V , and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII .

As regards the above - mentioned section CARDINAL of LAW ( paragraph CARDINAL ) , it reads , in so far as relevant , as follows :

“ The applicant may lodge a new length complaint in the same proceedings not DATE ... from the date on which a court gave a decision referred to in sectionCARDINAL . ”


Violation of Art. 5-3 with regard to right to be brought promptly before a judge;Violation of Art. 5-3 with regard to length of pre-trial detention;Violation of Art. 5-4;No violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE a preliminary investigation was opened against the applicant who was suspected of forgery of bank guarantees with a view to obtaining loans for himself and CARDINAL of his business partners ( LAW ) .

On DATE an investigator charged the applicant and ordered his detention pending trial . A prosecutor approved the detention order on an unspecified date .

Between an unspecified date in DATE and DATE the applicant resided in the GPE . He applied unsuccessfully for asylum there . Upon his return to GPE , on DATE , he was arrested and detained pending trial .

DATE the investigator examined documentary material , heard ten witnesses , appointed experts , examined their reports and questioned the applicant .

On DATE ORG submitted an indictment against the applicant to GPE .

A hearing was listed for DATE . In preparation therefor , in DATE and DATE ORG summoned the civil plaintiff and CARDINAL witnesses and sought police assistance for the establishment of the address of CARDINAL of them .

The Sofia City Court held CARDINAL trial hearings .

On DATE the ORG heard CARDINAL witnesses , the applicant and CARDINAL experts . Several witnesses did not appear . Both the prosecution and the applicant sought to adduce additional evidence . The hearing was adjourned until DATE .

On DATE the court heard one witness . The remaining witnesses did not appear . The prosecution requested an adjournment as it considered important the examination of the witnesses who had not appeared . The applicant objected . The court granted the prosecutor ’s request and listed the next hearing for DATE .

On DATE the ORG heard CARDINAL witness . The other witnesses failed to appear . The prosecutor insisted on them being heard and sought an adjournment . The applicant ’s lawyers objected , stating that reading out those ORG testimony given before the investigator would be sufficient . The court granted the prosecutor ’s request for an adjournment and scheduled the next hearing for DATE .

On DATE the court heard CARDINAL witnesses . CARDINAL witness did not appear . The applicant ’s lawyers stated that they considered the examination of the remaining witness important and sought an adjournment . The court granted the request . It fixed the next hearing for DATE .

On DATE trial hearing , DATE , the applicant was found guilty under Articles CARDINAL § CARDINAL and CARDINAL of LAW and sentenced to DATE imprisonment . He was acquitted on certain of the initial charges . The court reserved its reasoning .

On DATE the applicant appealed to ORG . The prosecution also appealed .

On an unspecified date in DATE the ORG delivered the reasoning of its judgment of DATE .

The Sofia Appellate Court listed a hearing for CARDINAL DATE which was however cancelled as the prosecution had not supplemented its appeal following the delivery of the reasoning of the first instance judgment .

The hearing took place on CARDINAL DATE . On DATE the Sofia Appellate Court upheld the applicant ’s conviction of forgery of bank guarantees with intention to use them ( Article CARDINAL of LAW ) and acquitted him for the remainder . It accordingly reduced the applicant ’s sentence to DATE imprisonment .

On DATE the applicant lodged an appeal on points of law with ORG . It was dismissed on DATE .

On an unspecified date in DATE the applicant was sentenced by ORG to a suspended term of imprisonment . It appears that this conviction concerned facts linked to those which were the subject matter of the DATE criminal proceedings .

Separately , on DATE ORG found the applicant guilty of mismanagement of assets belonging to a cooperative for which he had been working during the period DATE . He was sentenced to CARDINAL months’ imprisonment . The applicant appealed . On DATE ORG quashed the judgment and terminated the criminal proceedings as the prosecution had become timebarred .

On DATE the applicant was arrested . On DATE he was placed under pre - trial detention . The parties have not submitted details as regards the applicant ’s detention during the preliminary investigation stage of the criminal proceedings .

On DATE , shortly after the case was brought before ORG for trial , the applicant filed with that court an application for release on bail stating that his wife was seriously ill and could not look after their CARDINAL children .

On CARDINAL DATE the judge - rapporteur dismissed the application in private . She found that since other criminal proceedings were pending against the applicant , those concerning mismanagement of assets of a cooperative , LAW ( “ ORG ” ) made his remand in custody mandatory . Therefore , it was “ not possible to substitute pre - trial detention for a more lenient measure despite the information concerning the [ applicant ’s ] difficult family circumstances ” .

The applicant ’s appeal against the above decision was not examined owing to a clerical error of ORG .

On DATE and at the hearing on DATE the applicant reiterated his arguments seeking release on bail . He also made extensive additional submissions arguing that LAW ORG , which provided for a mandatory detention of persons against whom CARDINAL set of criminal proceedings were pending and of recidivists , was incompatible with the Convention . Further , he maintained that there was insufficient evidence that he had committed the offence he was charged with .

On DATE , DATE , ORG dismissed the renewed application for bail . It stated , inter alia :

“ The court finds that there is a danger of the applicant ’s absconding as ... he and his wife sought asylum in the GPE at the time when ... the investigation proceedings were pending ... The charges ... concern an offence allegedly committed during the operational period of [ the applicant ’s ] suspended [ imprisonment sentence ] ... of DATE . That fact is sufficient to justify a finding that there is a danger of reoffending ... ”

Addressing the applicant ’s arguments against mandatory detention under LAW CCP , ORG stated that it had no power to disregard the law on the ground that it was contrary to the LAW or international treaties and noted that ORG had submitted the matter to ORG .

On DATE the applicant appealed to ORG on the grounds that there was insufficient evidence that he had committed the offence and that there was no danger of his obstructing the course of justice . Confiscation of his passport and bail would be sufficient guarantees against absconding .

On DATE , pursuant to an amendment to the ORG , mandatory detention under paragraph CARDINAL of Article CARDINAL was abolished .

On DATE , before transmitting the appeal of DATE to ORG , the Sofia City Court sitting in private refused to reconsider its decision of DATE .

In DATE and DATE the applicant submitted additional appeals against his detention pending trial .

On DATE ORG examined the appeal of DATE in closed session in the presence of a prosecutor and in the absence of the applicant or his representative . The prosecutor submitted written comments and made an oral statement inviting the court to dismiss the appeal . The applicant was not informed thereof and could not comment in reply .

ORG dismissed the appeal and upheld the Sofia City Court ’s decision of DATE finding that the applicant ’s detention was justified under LAW CCP . It also upheld ORG findings that there was a danger of the applicant ’s absconding or committing further offences .

ORG also stated that issues of “ sufficient evidence ” within the meaning of domestic law or “ reasonable suspicion ” within the meaning of LAW ( c ) of the Convention could not be considered in proceedings on applications for bail . They could only be decided by way of judgment on the merits of the criminal case .

At the hearing on DATE before ORG the applicant renewed his appeal against detention . He referred to the fact that on DATE his conviction of DATE had been quashed as the prosecution had become time - barred . He also reiterated his previous arguments .

On DATE the Sofia City Court dismissed the appeal , stating that the applicant ’s attempt to remain in the GPE and the fact that the charges against him concerned an offence allegedly committed during the operational period of his DATE suspended imprisonment sentence ( see above ) indicated that there was a danger of his absconding and re - offending . The court also confirmed its earlier position that in the context of the applicant ’s appeal against detention it would not entertain arguments as to whether or not the charges were well founded , that being an issue going to the merits of the criminal case .

On DATE the applicant appealed to ORG against the decision of DATE .

ORG examined the appeal on DATE sitting in closed session in the presence of a prosecutor and in the absence of the applicant and his representative . The court heard the prosecutor ’s opinion that the appeal should be dismissed . The court dismissed the appeal .

It stated that remand in custody was justified under LAW CCP as the applicant was charged with a serious offence within the meaning of the LAW . Furthermore , the applicant ’s attempt to settle in the GPE with his family demonstrated a clear danger of absconding . The court also found that there had been no unjustified delays in the criminal proceedings .

At the hearing on DATE before ORG the applicant again requested his release . He argued that the facts had been clarified and that therefore there would be no danger of him obstructing the course of justice .

The appeal was dismissed on DATE . ORG reiterated the reasoning of the previous decisions .

DATE . On DATE the applicant appealed against the above decision to ORG . On DATE the appeal was dismissed on the same grounds . The appeal was dealt with in closed session in the presence of a prosecutor who sought its dismissal and in the absence of the applicant and his representative .

On DATE the ORG convicted the applicant on some of the charges and sentenced him to DATE imprisonment .

The relevant provisions of LAW and the NORP courts’ practice at the relevant time are summarised in the ORG ’s judgments in several similar cases ( see , among others , the ORG v. GPE [ ORG ] , no . ORG , § § DATE , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE , the applicant company summoned company X to appear before ORG , requesting X to be ordered to carry out all the works and amendments necessary to bring a factory building into compliance with the law and the instructions given by the GPE fire brigade in DATE .

The preparation of the case for trial began at the hearing of CARDINAL DATE , when the court ordered that an expert opinion be carried out on the factory building and ended at the hearing of DATE , when the parties made their final submissions . The hearing before the court was held on DATE .

In a judgment of DATE , filed with ORG on DATE , ORG held that the construction of the factory building did not constitute a work under a contract ( appalto ) but a sale , and that the factory building was in accordance with all the legal requirements , the alleged defects being aesthetic . It ordered X to replace certain parts in the factory building .

On DATE , the applicant company lodged an appeal against this judgment before ORG .

NORP The preparation of the case for trial began at the hearing of DATE and , after a hearing held on DATE , it ended at the hearing of DATE , when the parties made their final submissions . On DATE the applicant company filed written submissions with the court of appeal claiming that the works carried out by company X were in breach of the applicable anti - seismic legislation . The appeal was heard on DATE .

In a judgment of the same date which was filed with ORG DATE , ORG confirmed that the contract entered into by the parties was a sales contract and not a work contract , and held that the defects in the factory building were merely aesthetic and did not affect the structure . It further held that the applicant company had failed to prove that the failure by X to file the executive plans with ORG had caused any financial prejudice to it and that in any event this issue had not been raised before the first instance .

On DATE , the applicant company lodged an appeal on points of law before ORG .

ORG set the public hearing for DATE .

On DATE an attempt was made to serve notice of the date of the hearing on the applicant company at the chosen address of its lawyer . However , the latter having in the meantime died , the notification could not be effected . Notice of the date of the hearing was left for the applicant company in ORG on DATE . The applicant company did not learn about the date of the hearing and did not appear before ORG at the hearing of DATE . Nor did company X appear at the hearing . ORG heard addresses from the General Attorney .

By a judgment delivered on DATE , filed with ORG on DATE , ORG quashed the decision of ORG of CARDINAL DATE only insofar as it related to the refusal to award to the applicant company compensation for the replacement of certain parts of the factory building and referred the matter back before ORG . ORG confirmed the remainder of the appealed judgment .

On DATE the applicant company resumed proceedings before ORG . CARDINAL hearings were held before it ; the closing hearing was scheduled for DATE .


Violation of Art. 6-1;Violation of Art. 8;Just satisfaction reserved

Particular facts of the case

Mrs. PERSON , an NORP national born in DATE , lives in GPE . She comes from a humble family background and went to work at a young age as a shop assistant . She married in DATE and has CARDINAL children , the youngest of whom is still dependent on her . At the time of the adoption of the ORG ’s report , Mrs. PERSON was in receipt of unemployment benefit from the ORG but , since DATE , she has been employed . Her net DATE wage in DATE was £ MONEY . In DATE , she obtained a court order against her husband for payment of maintenance of £ DATE , which was increased in DATE to £ CARDINAL and in DATE to £ MONEY . However , Mr. PERSON , who had previously been working as a lorry driver but was subsequently unemployed , ceased paying such maintenance in DATE .

Mrs. PERSON alleges that her husband is an alcoholic and that , before DATE , he frequently threatened her with , and occasionally subjected her to , physical violence . In DATE , in proceedings instituted by the applicant , Mr. PERSON was convicted by ORG of assaulting her and fined . In DATE he left the matrimonial home ; he has never returned there to live , although Mrs. PERSON now fears that he may seek to do so .

For DATE , Mrs. PERSON tried in vain to conclude a separation agreement with her husband . In DATE , he declined to sign a deed prepared by her solicitor for the purpose and her later attempts to obtain his co - operation were also unsuccessful .

Since DATE , she has been endeavouring to obtain a decree of judicial separation on the grounds of Mr. PERSON ’s alleged physical and mental cruelty to her and their children , and has consulted several solicitors in this connection . However , she has been unable , in the absence of legal aid and not being in a financial position to meet herself the costs involved , to find a solicitor willing to act for her .

In DATE , Mrs. PERSON applied to an ecclesiastical tribunal for annulment of her marriage . Her application is still under investigation ; if successful , it will not affect her civil status .

Domestic law

In GPE , although it is possible to obtain under certain conditions a decree of nullity - a declaration by ORG that a marriage was null and void ab initio - , divorce in the sense of dissolution of a marriage does not exist . In fact , LAW provides : " No law shall be enacted providing for the grant of a dissolution of marriage . "

However , spouses may be relieved from the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation ( also known as a divorce a mensa et thoro ) . Such a decree has no effect on the existence of the marriage in law . It can be granted only if the petitioner furnishes evidence proving CARDINAL of CARDINAL specified matrimonial offences , namely , adultery , cruelty or unnatural practices . The parties will call and examine witnesses on this point .

By virtue of LAW , an individual against whom a decree of judicial separation is granted forfeits certain succession rights over his or her spouse ’s estate .

Decrees of judicial separation are obtainable only in ORG . The parties may conduct their case in person . However , the ORG ’s replies to questions put by ORG ( see paragraph CARDINAL above ) reveal that in each of the CARDINAL separation proceedings initiated in GPE in the period from DATE , without exception , the petitioner was represented by a lawyer .

In its report of CARDINAL DATE , the ORG noted that the approximate range of the costs incurred by a legally represented petitioner was £ CARDINAL - £ CARDINAL in an uncontested action and MONEY CARDINAL in a contested action , the exact amount depending on such factors as the number of witnesses and the complexity of the issues involved . In the case of a successful petition by a wife , the general rule is that the husband will be ordered to pay all costs reasonably and properly incurred by her , the precise figure being fixed by a Taxing Master .

Legal aid is not at present available in GPE for the purpose of seeking a judicial separation , nor indeed for any civil matters . In DATE , ORG was established under the chairmanship of Mr. Justice Pringle . It reported to the Government in DATE , recommending the introduction of a comprehensive scheme of legal aid and advice in this area . At the hearings on DATE , counsel for the Government informed the ORG that the ORG had decided in principle to introduce legal aid in family - law matters and that it was hoped to have the necessary measures taken before DATE .

Since Mrs. PERSON ’s application to the Commission , LAW Act DATE has come into force . LAW ) of the LAW provides :

" On application to it by either spouse , the court may , if it is of the opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of any dependent child of the family requires it , order the other spouse , if he is residing at a place where the applicant spouse or that child resides , to leave that place , and whether the other spouse is or is not residing at that place , prohibit him from entering that place until further order by the court or until such other time as the court shall specify . "

Such an order - commonly known as a barring order - is not permanent and application may be made at any time for its discharge ( section CARDINAL ( CARDINAL ) ) . Furthermore , the maximum duration of an order given in the ORG - as opposed to ORG or ORG - is DATE although provision is made for renewal .

A wife who has been assaulted by her husband may also institute summary criminal proceedings .


The applicants , PERSON and Mr PERSON , are NORP nationals , who were born in DATE respectively and live in GPE , GPE . They are represented before the ORG by PERSON , a lawyer practising in the same town .

The applicants left GPE and arrived in GPE on DATE with a visa authorising them to remain in GPE for DATE . On DATE they applied for political asylum and a residence permit , invoking the following circumstances . The first applicant had , as a midwife at ORG in GPE , carried out an illegal abortion at the hospital on a friend of hers , who was unmarried and politically active . For DATE the applicants had supported this friend financially in her political activities . The friend held views which were close to those of the PERSON and obtained help from the applicants for the printing of a political publication . As the first applicant ’s superior found out about the abortion she was reported to the police . Allegedly , she was arrested and detained for TIME . She claims that she was beaten during that period . She was released on bail following the payment of a large sum by her father . Both applicants then left GPE for GPE . Thereafter , the security guards visited her GPE home on several occasions and looked for her at the hospital and at the university where she had obtained her degree . Her father was interrogated for TIME by the police in order to obtain information about her whereabouts .

This was not the first time the applicants had sought entry into GPE . The first applicant had unsuccessfully applied for a visa once in DATE , once in DATE and once again in DATE . The second applicant applied twice in DATE , but without success . A further application for a visa had been rejected in DATE but a second application made in DATE had been granted . The second applicant applied for a residence permit in order to settle with his mother and brothers and sisters . The application was rejected . He avoided returning to GPE but , following his arrest on suspicion of shop lifting , he was expelled in DATE . His applications for a visa in DATE and DATE were rejected .

On DATE ORG ( ORG invandrarverk ) refused the ORG above - mentioned application of DATE for asylum and residence in GPE and ordered their expulsion to GPE . The couple were prohibited from re - entering GPE for DATE . ORG observed that the first applicant did not appear to have been of significant interest to the NORP authorities since the couple had left GPE lawfully with passports issued in their own names . The couple only applied for asylum DATE after arriving in GPE . The applicants had never been active in any political party or organisation . While they asserted that they had contributed financially to the printing of a political publication , they were not able to identify the party or organisation , nor the contents of the publication . Nor had they claimed that the NORP authorities knew of this . Although abortion was illegal in GPE , it was a frequent occurrence and was seldom pursued by the NORP authorities and prosecution could be avoided by paying bribes . In any event , the offence in question was only liable to punishment by fines or imprisonment . An appeal by the applicants to ORG ( Utlänningsnämnden ) was rejected on DATE .

The applicants then requested a fresh examination of their application by ORG , claiming that the first applicant suffered from a psychotic health condition , which had its background in her experience in GPE . She had been treated at a psychiatric hospital in DATE and was readmitted on DATE . The applicants relied on a medical certificate of DATE , which stated that the first applicant had had psychological problems over DATE . She described herself as being persecuted and monitored by NORP spies and had given a strong impression that she was suffering from anxiety and desperation , with a paranoid psychotic character . She had hallucinated in particular about her superior at the hospital who had reported her to the police . On the whole , she displayed unequivocal psychotic symptoms which could have been caused by stress and pressures and was in need of acute psychiatric care . Her condition pointed to a distinct risk of suicide . The doctor recommended that the first applicant continue to undergo psychiatric care and advised against burdensome transportation . On DATE the first applicant was discharged as she was no longer considered suicidal and since her husband could look after her .

On DATE ORG rejected the renewed request , finding that neither the information in the medical certificate nor the other material submitted in the case were of such a character as to warrant granting the couple a residence permit on humanitarian grounds .

On DATE the applicants lodged an application complaining that , if expelled to GPE , the first applicant would risk the death penalty , corporal punishment , torture and other forms of ill - treatment and detention . Her mental health was such that expulsion would violate LAW . Moreover , they requested the ORG to indicate to the NORP authorities not to execute the order to expel them to GPE .

On DATE the first applicant was again committed to the psychiatric ward on her husband ’s initiative since she was suffering from a depressive psychosis .

On DATE the parties were informed that the acting President had decided not to grant the Rule CARDINAL request with respect to the husband and was not minded to apply Rule CARDINAL with respect to the wife in the absence of more specific documentary evidence in support of her account about the abortion , her detention , the payment of bail by her father or the proceedings ( investigation / charges ) against her .

In response , the applicants submitted CARDINAL statements dated CARDINAL and DATE by Professor PERSON of ORG , Section of Islamology , at ORG , GPE . They also supplied a medical certificate dated DATE . According to the medical certificate , the first applicant ’s condition had worsened despite being given appropriate medication . When examined on DATE she was found to be autistic and suffering from hallucinations . She was also deeply depressed . In conclusion , the Chief Doctor stated that the patient suffered from an illness of a depressive nature with strong psychotic symptoms . Despite treatment with adequate medication , her condition had lately worsened . The patient was in need of care at a closed psychiatric ward and was at great risk of committing suicide . New forms of treatment were being considered beginning with electro - treatment , which needed to be carried out urgently .

On DATE the first applicant was diagnosed as suffering from severe depression . She was found to be in a therapy - resistant condition and required continuing specialist care . There was an imminent risk of suicide but , thanks to her husband , it was possible to treat her as an outpatient . She was last discharged on DATE .

On DATE the ORG considered the above Rule CARDINAL request with respect to the first applicant , PERSON . The ORG found it desirable to continue the deliberations at DATE and , to this end , decided to apply provisionally Rule CARDINAL until its next meeting to be held on DATE . On DATE the ORG rejected the Rule CARDINAL request with respect to the first applicant .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

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

On DATE ORG ve NORP Bakanlığı ) issued an order of expropriation for a plot of land belonging to the applicant in GPE , a district attached to ORG , following the earthquake which happened on DATE . A committee of experts assessed the value of the plot and the amount was paid to the applicant .

On DATE the applicant brought an action for additional compensation before ORG of First Instance .

On DATE the first - instance court decided to award the applicant an additional compensation of MONEY ( TRL ) plus interest at the statutory rate applicable at DATE of the court ’s decision running from DATE .

On DATE ORG upheld the judgment of ORG of First Instance .

On an unspecified date , the applicant requested rectification of ORG decision .

On DATE ORG dismissed the applicant ’s request .

On DATE and DATE ORG paid the applicant GPE MONEY in additional compensation together with interest .

NORP The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .


The applicant , Mr PERSON , is a NORP citizen who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicant was born in DATE and lives in GPE .

The applicant ’s mother was a holder of a specially protected tenancy on a flat in ORG , owned by a public company , ORG Telecommunications ( ORG pošta i telekomunikacije ) . On DATE ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) , which regulates the sale of publicly owned flats previously let under a specially protected tenancy . On the basis of that LAW , on DATE the applicant ’s mother requested the owner of the flat to conclude a contract for the sale of the flat between the owner as the seller and herself as the buyer . Since the owner declined her request , the applicant ’s mother brought a civil action in ORG ( PERSON ) seeking a judgment in lieu of the contract of sale .

On DATE ORG gave a judgment by default . However , on an application by the defendant , the judgment was set aside and the proceedings continued . On DATE ORG gave a fresh judgment in place of the contract of sale . The defendant appealed against the first - instance judgment and the case file was forwarded to ORG ( Županijski sud u Karlovcu ) . During the appellate proceedings the applicant ’s mother died . Subsequently , on DATE , the appellate court quashed the first - instance judgment on the ground that the plaintiff had died . The applicant took over the proceedings from his deceased mother .

ORG on DATE dismissed the applicant ’s claim , finding that he did not fulfil the conditions for buying the flat in question . The relevant part of the judgment reads as follows :

“ Section CARDINAL of the Inheritance Act provides that the deceased ’s assets are ex lege transferred to his or her heirs at the time of the death . Since at the time of ORG death on DATE , she was not the owner of the flat in question because a contract of sale had not been concluded beforehand and the judgment replacing such a contract had not become final , her heir could not have inherited the ownership of the flat in question . In other words , the plaintiff PERSON would be in a position to realise his inheritance and property rights on the flat in question only if the deceased , ORG , had concluded a contract of sale or if a final judgment replacing such a contract had been adopted .

Furthermore , under the Specially Protected Tenancies ( Sale to Occupier ) Act , the right to purchase a flat is vested in the occupier and is a personal right which can not be transferred to heirs within the meaning of LAW ( Official Gazette nos . CARDINAL and CARDINAL ) and is linked to the tenancy right , which likewise can not be inherited .

It follows that PERSON , as an heir of ORG , who had submitted a request to purchase the flat , is not allowed to continue these proceedings .

PERSON allegation that as a member of [ his mother ’s ] household he has an independent right to purchase the flat under LAW is deemed unfounded by the court .

Without examining the question whether the plaintiff has the status of a member of [ his mother ’s ] household , the court has established that he does not have and can not have his mother ’s consent because it has been established that ORG herself made a request to purchase the flat in question and that she died during the appellate proceedings against this court ’s judgment dismissing her claim .

Under section CARDINAL of ORG , a member of [ the tenant ’s ] household has the right to purchase a flat with the tenant ’s consent . Finding it established that the plaintiff does not have such consent , the court sees no need to establish his status as a member of [ his mother ’s ] household because these CARDINAL conditions have to be fulfilled cumulatively . Bearing in mind this legal characterisation of the dispute at issue , the court declined to hear further witnesses on behalf of the plaintiff ... who were to testify as to whether the plaintiff had lived in the same household as ORG . ”

On a subsequent appeal by the applicant , ORG upheld the first - instance judgment on DATE . The relevant part of the appellate judgment reads as follows :

“ Contrary to the appellant ’s submissions , under [ the relevant ] provisions of ORG , the right to purchase a flat is a personal tenant ’s right that can not be inherited or transferred to a heir within the meaning of section CARDINAL of LAW because it is linked to the tenancy right , which likewise can not be inherited . Therefore , the legal heir of the plaintiff , PERSON , does not have the right to purchase the flat in question , can not inherit it and can not continue these proceedings and obtain a judgment replacing the contract of sale , as found by the court of first instance . Furthermore , the first - instance court correctly applied section CARDINAL of the above - mentioned ORG to LAW , under which the right to purchase a flat is vested in a member of the [ tenant ’s ] household with the tenant ’s consent . Since the plaintiff herself submitted a request [ to purchase the flat ] as the tenant and thus expressed her choice , her son as a member of her household does not have this right . Therefore , [ the first - instance court ] correctly decided not to hear evidence concerning his status as a member of [ his mother ’s ] household . ”

In his subsequent constitutional complaint the applicant argued , inter alia , that his right to a fair hearing had been violated , as well as his property rights . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s complaint . In so far as relevant , the decision of ORG reads as follows :

“ The applicant ’s allegations of a violation of LAW are unfounded . In the proceedings before ORG this court has not established any facts or circumstances indicating a violation of the constitutional right to a fair trial . In the disputed situation the judgments were adopted by courts established by law which acted within their competence , also established by law . The documents submitted about the civil proceedings in question show that the first - instance court conducted the proceedings and heard evidence in accordance with the need to establish relevant facts , while the appellate court entirely and thoroughly addressed the applicant ’s submissions . ”

ORG ( Official Gazette nos . DATE , DATE , CARDINAL CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) regulates the conditions for the sale of flats let under specially protected tenancies . In general , the LAW entitles the holder of a specially protected tenancy on a publicly owned flat to purchase it under favourable conditions of sale .

The relevant provisions of the LAW provide as follows :

“ Every holder of a specially protected tenancy ( hereinafter ‘ the tenant’ ) may submit a written application to purchase a flat to the ... owner ( hereinafter ‘ the seller’ ) ... and the seller shall be obliged to sell the flat .

“ The right to buy a flat shall be vested in the tenant and , with his consent , the members of his household ...

The consent referred to in paragraph CARDINAL of this section shall be given in the contract ( of sale ) or in a separate document in which the signature must be certified . In the event of its refusal , the issue of consent shall be assessed in judicial proceedings . ”

“ The seller shall be obliged to draw up a contract ( of sale ) with the buyer at the latest within DATE after the buyer has made an application to this effect .

If the seller refuses to draw up a contract at the buyer ’s request within the time - limit laid down in paragraph CARDINAL of this section , the buyer may institute judicial proceedings seeking a judgment in lieu of the contract of sale . ”