No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE . He was suspected of having participated in an organised criminal gang .

On an unspecified date ORG , who was a NORP national allegedly involved in procuring prostitution , filed a criminal complaint concerning his abduction and robbery .

On DATE ORG was heard by the prosecutor . He testified that he had been abducted , severely beaten and robbed by several men who had demanded protection money based on the income of foreign prostitutes working under his supervision . ORG had identified the applicant as CARDINAL of his attackers from a photograph .

On DATE ORG identified the applicant during an identity parade . On DATE the applicant and ORG were confronted . During the confrontation ORG reiterated that he had been severely beaten and robbed by the applicant and his accomplices who had demanded protection money from him . The applicant claimed to be innocent . He stated that he knew ORG because he had seen him several times in front of a bar frequented by prostitutes .

On DATE ORG was summoned to testify as a witness in the case . The summons sent to his NORP address was returned with the information that ORG was resident in GPE . It appears that subsequently the authorities were unable to locate ORG . The investigation was adjourned in order to obtain evidence from another NORP national ( GPE ) by means of legal assistance from the NORP authorities .

On DATE the applicant was arrested on suspicion of having kidnapped and robbed ORG in DATE , while acting in an organised criminal gang led by ORG . He was charged accordingly and detained on remand on DATE .

On DATE the applicant was served with the written grounds for his statement of charges . The document stated that in light of the evidence gathered during the investigation , particularly the testimonies of ORG ( another victim ) and ORG , there was a reasonable suspicion that the applicant had participated in the abduction and robbery of ORG .

Simultaneously , in DATE , the police were still trying to trace ORG in order to summon him for further questioning . It appears that he had not returned to GPE and that he had changed his place of residence in GPE . An arrest warrant had been issued for him in a different criminal case in which he was a suspect . On DATE ORG decided to summon ORG for questioning . On the same date ORG was arrested and transported for questioning .

On DATE the applicant ’s counsel submitted his power of attorney to ORG . On DATE a copy of that document was transmitted to ORG .

On DATE ORG heard ORG . ORG undertook to appear before ORG on DATE to give evidence .

On DATE ORG requested the ORG to hear ORG , pursuant to LAW CARDINAL § CARDINAL of the Code of Criminal Procedure ( “ the ORG ” ) . The prosecutor justified his request by the risk that it might not be possible to hear ORG at the trial and submitted that the latter ’s testimony would be important for the outcome of the case . ORG had been heard by the prosecutor on several occasions during the investigation . However , his whereabouts were not established until DATE . ORG had not been residing at the address indicated to the authorities in DATE and his current address in GPE remained unknown . The prosecutor ’s request also contained a list of suspects and their defence counsel , including the applicant ’s counsel .

On DATE ORG granted the prosecutor ’s request to hear ORG on DATE and decided to notify the applicant , the other co - accused and their counsel of the hearing .

On DATE ORG informed the applicant ’s counsel that he and his client could consult the case file of the investigation from DATE and that the date for the final consultation was fixed for DATE .

The applicant submitted that his counsel had not been notified about the hearing scheduled for DATE but that he had learned about it by chance and had appeared at it . The ORG maintained that the applicant ’s counsel had been duly informed .

On DATE a judge of ORG heard ORG . The hearing was video recorded . The applicant ’s counsel requested that the hearing be adjourned on the grounds that he had not had the opportunity to consult the case file of the prosecution , at least as regards the part concerning the previous statements of ORG . The prosecutor opposed those requests and submitted that the case file had not been made accessible due to the need to protect the witness . The prosecutor acknowledged that the case file would be made accessible to all authorised persons as from the DATE . The court refused the request for adjournment since it was not competent to decide on the issue of access to the case file of the investigation without the prosecutor ’s prior permission . The counsel maintained that hearing the witness without his having consulted the case file would in effect prevent him from defending his client . The court decided to proceed with the hearing of ORG . The applicant , his counsel and some of the other co - accused left the courtroom in protest .

During the hearing ORG described the events in which the applicant and his associates had been allegedly involved . He stated that he recognised the applicant as one of the persons who had committed the alleged offences . Subsequently , he replied to questions put by the prosecutor and CARDINAL of the accused .

On DATE the prosecution filed a bill of indictment with the ORG . The applicant was charged with having participated in a criminal gang and with having abducted , deprived of liberty and robbed ORG on DATE . Other members of the same criminal gang were charged with extortion , robbery , kidnapping and profiting from prostitution .

The trial started in DATE and the court held in total CARDINAL hearings up to CARDINAL DATE . The trial court made several attempts to summon ORG to the hearings with the assistance of the police . It also sought the assistance of the NORP embassy in GPE in tracking down ORG . All efforts failed . At the hearing held on CARDINAL DATE the trial court decided to show the video recording of the hearing of DATE at which ORG had given his testimony .

On DATE ORG convicted the applicant of having participated in an organised criminal group and of having abducted , deprived of liberty and robbed ORG . ORG and other members of the gang were also convicted . The applicant was sentenced to CARDINAL years’ imprisonment and a fine . The court based its judgment to a decisive extent on the testimony of ORG , who had identified the applicant and the other coaccused as the persons who had abducted him .

NORP The trial court underlined that ORG had been heard at the preparatory stage of the proceedings pursuant to LAW request , having regard to the risk that it might not be possible to hear him at the main hearing . ORG was a NORP national and did not have a permanent abode in GPE . The court had unsuccessfully attempted to summon him to appear at the main hearing , but the police ’s efforts to locate him had been in vain . The court noted that the applicant ’s counsel had requested permission to consult the case file and to adjourn the hearing of ORG ; however that request was refused in view of the prosecutor ’s objection . In this respect the trial court found that the applicant and his counsel had freely forfeited the opportunity to put questions to ORG . In the court ’s view , even without knowledge of the case file , they could have put questions to the witness in relation to the content of his testimony .

On DATE the applicant ’s counsel lodged an appeal against the judgment . He complained , relying on LAW , that the applicant ’s defence rights had been breached in that the trial court and the prosecutor had deprived him of the opportunity to have access to the case file of the prosecution prior to the only hearing of the main witness . He maintained that he could not have put questions to the witness without knowing the content of the file , in particular the ORG previous testimony . In that way he was deprived of a possibility to pinpoint major differences in the statements of ORG given at various stages of the investigation . The applicant ’s counsel submitted that the case file had been ready before DATE , as all investigative actions , except for the hearing of ORG , had already been completed . The applicant ’s counsel argued that this had made the whole trial unfair and that the prosecutor ’s actions had amounted to a deliberate hindering of his procedural rights . Moreover , the authorities had allowed ORG to leave the country by releasing him and returning his passport although he had committed other offences . Lastly , the applicant ’s counsel pointed to certain factual inconsistencies in the statements of ORG related , inter alia , to the date of the alleged abduction as well as the applicant ’s role in it .

On DATE ORG dismissed the appeal . It noted that the testimony of ORG was the key evidence for the applicant ’s conviction . With regard to the allegations that the applicant ’s defence rights had been breached , ORG established that the applicant and his counsel had been duly summoned and had appeared at the hearing of ORG . It reiterated that the decision whether to allow access to the case file at the investigation stage of the proceedings lay with the prosecutor , and that ensuring the confidentiality of the materials at that stage had been important for the outcome of the investigation . It was for this reason that the ORG authorised the applicant ’s counsel to examine the case file only at the final stage of the investigation . The fact that the applicant and his counsel were to take part in the hearing of the witness did not make it obligatory for the prosecutor to allow them access to the case file . The prosecutor had noted during the court session on DATE that the accused would be progressively allowed to examine the case file as from DATE .

The Court of Appeal further noted that it transpired from TIME of the hearing that the applicant ’s counsel had requested the adjournment of the hearing with a view to consulting all the evidence in the case file . However , granting such a request would have resulted in a significant delay . It was therefore reasonable for the prosecutor to have refused leave on account of concerns for ORG ’s safety , having regard to the fact that some members of the gang were still at large and that the testimony of that witness was the key evidence in the case . In those circumstances ORG found that the court had not acted in bad faith when it went ahead with the hearing of ORG in accordance with LAW ORG .

ORG observed that had the applicant ’s counsel considered it necessary to consult the statements of ORG made during the investigation prior to the hearing of ORG , and knowing the date fixed for that hearing , he should have filed the relevant request in advance in order to enable the prosecutor to rule on the request . However , the applicant ’s counsel failed to do so and thus deprived himself of the possibility to appeal against the prosecutor ’s refusal .

Moreover , had the applicant ’s counsel been present at the hearing of ORG , nothing would have prevented him from putting questions to the witness on the basis of the information he had obtained from his client or with respect to the contents of the ORG testimony given at the hearing . ORG concluded that there had been no violation of LAW in the case , and the trial court had correctly found that the counsel and the accused had the right , but not the obligation , to participate in the hearing of a witness carried out under LAW of the ORG . By leaving the courtroom they had waived their right to participate in the hearing of the witness . Further , ORG considered in detail the issue of the alleged lack of consistency in ORG ’s statements with regard to the applicant ’s role in the abduction ; however , it rejected them as illfounded .

On DATE the applicant ’s counsel lodged a cassation appeal with ORG . He raised similar complaints to those set out in his appeal , maintaining that his lack of knowledge of the content of the case file had made the applicant ’s defence illusory .

On DATE ORG dismissed the cassation appeal as manifestly ill - founded .

Article CARDINAL § CARDINAL of the CARDINAL Code of Criminal Procedure reads as follows :

“ If there is a danger that the witness can not be heard at the hearing , a party or the prosecutor or other body conducting proceedings may submit a request to have the witness heard by a court . ”

Article CARDINAL § CARDINAL of the Code concerns access to the file during investigation . It provides :

“ Unless otherwise provided by law , during the preparatory proceedings parties , defence counsel and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the preparatory proceedings . With the permission of a prosecutor and in exceptional circumstances access to the files in the preparatory proceedings may be given to another person . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She is represented before the ORG by Mr M. Rachkovskiy , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by PERSON , former Representative of ORG at ORG .

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

At DATE the applicant had bone tuberculosis . A resident of PERSON ( a town in LOC ) , in DATE she was assigned disability status and started to receive a disability allowance . In DATE the applicant reached retirement age , and on her request the disability allowance was replaced with an old - age pension .

Considering the pension inadequate , in DATE the applicant asked ORG of GPE to oblige the ORG to upgrade it . On DATE the court rejected the applicant ’s request , because her pension had been calculated in accordance with the law . On CARDINAL DATE ORG upheld this judgment on appeal .

In DATE and DATE the applicant applied to ORG . She attacked the LAW insofar as it allowed pensions below the established subsistence level . The court considered these applications beyond its competence because they required a factual assessment of the applicant ’s welfare and suggested legislative improvements .

In DATE the applicant moved from NORP to GPE .

During her life in NORP in TIME , the applicant ’s DATE income included :

– a pension ( MONEY ( RUB ) ) ;

– social aid ( RUB CARDINAL ) ; and

– compensation for limited ability to work ( RUB CARDINAL ) .

In addition , she enjoyed the following benefits :

– PERCENT discount on utility bills ;

– free public urban and suburban transport ;

– PERCENT discount on interurban rail and air transport ;

– PERCENT discount on telephone and radio bills ;

– free medical assistance ;

– PERCENT discount on medical prescriptions ;

– free sanatorium treatment ; and

– free suburban and interurban transport to the place of the treatment .

Once the applicant received an indigence aid of RUB CARDINAL . The applicant ’s family also benefited from the discount on utility bills . On her request , part of the benefits were monetised .

During her life in GPE from DATE TIME , the applicant ’s DATE income included :

– a pension ( RUB CARDINAL ) ;

– social aid ( RUB CARDINAL ) ;

– PERCENT discount on utility bills ;

– free medical assistance ;

– free dental prosthetics ( except precious metals and cermets ) ; and

– free suburban and interurban transport to the place of treatment .

Once the applicant received an indigence aid of RUB CARDINAL . On her request , part of the benefits were monetised .

In GPE each region has its own subsistence level ( прожиточный минимум ) . In LOC and GPE these levels are fixed by LOC Law no . CARDINAL of DATE and GPE ’s Law no . CARDINAL of CARDINAL DATE respectively .

In LOC in CARDINAL–CARDINAL the subsistence level for pensioners was RUB CARDINAL per month . In GPE in CARDINAL the subsistence level for pensioners was RUB CARDINAL per month . There was no special subsistence level for disabled pensioners .


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

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

On DATE the applicant lodged a compensation claim with ORG ( Sąd Rejonowy w Warszawie ) .

The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

On DATE the Law of CARDINAL DATE 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 ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

“ CARDINAL . NORP Parties

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE ( GPE ) . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE Pölten ( GPE ) .

The applicant is the owner of a house in GPE ) . In DATE the applicant ’s neighbour , PERSON , applied for a building permit for a new barn . On DATE the Mayor ( Bürgermeister ) of PERSON granted the building permit . In the following following DATE built the barn .

On DATE , after a hearing , the Mayor granted both a retroactive permit for certain modifications of PERSON project and the permit to use the building ( Benützungsbewilligung ) .

On DATE the applicant , who had not been summoned to this hearing , appealed against the permit to use the building and submitted that the new building did not comply with the building permit . In particular she submitted that , because the barn was too close to her land , more rainwater and snow than before was deposited on her land which had adversely affected the soil and her house .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal . The applicant filed a further appeal ( PERSON ) against this decision .

On DATE ORG quashed the decision for procedural reasons .

On DATE ORG again dismissed the applicant ’s appeal . It found that the applicant had no locus standi in the proceedings concerning the permit to use the building .

On DATE ORG ( PERSON ) allowed the applicant ’s further appeal , quashed the decision and remitted the case to ORG . It found that the applicant had locus standi as the proceedings were also related to a modification of the building permit . Furthermore , it found that the neighbour ’s building did not comply with the building permit and that the permit to use the building was therefore unlawful . Finally , it stated that PERSON had to apply for a new building permit as regards the parts of the barn which had not been built in conformity with the building permit granted .

On DATE ORG , implementing ORG decision , allowed the applicant ’s appeal of DATE .

On DATE PERSON applied for a new building permit . The applicant lodged objections against this project .

On DATE the Mayor held a hearing .

On DATE the Mayor granted the building permit . On CARDINAL DATE the applicant appealed against this decision . She submitted that the building permit was unlawful and that the legal adviser , who had assisted the Mayor during the hearing , had been biased .

On DATE ORG dismissed the applicant ’s appeal . It found that there was no indication that the legal adviser had been biased .

On DATE the applicant filed a further appeal .

On DATE ORG allowed the applicants further appeal , quashed the decision and remitted the case to ORG . It found that LAW CARDINAL ( GPE ) would be applicable to PERSON application for a building permit and not the previous version of the building act . Moreover , it found that PERSON ’s application was insufficient and , therefore , the building permit unlawful . On that basis ORG had to dismiss PERSON ’s application . If PERSON would not properly apply for a building permit , proceedings for a demolition order had to be considered . Moreover , it stated that it was not necessary to deal with the complaint about the unfairness of the proceedings as ORG decision should be quashed following this decision .

On DATE the applicant lodged a complaint with ORG against this decision . She complained , inter alia , that ORG had wrongly interpreted the transitional provision of LAW DATE . Since the proceedings had already been pending when this LAW came into force , the former LAW should have been applicable . This complaint had no suspensive effect .

On DATE ORG , implementing the ORG decision of DATE , quashed the Mayor ’s decision of DATE .

The applicant filed a further appeal against this decision , as she considered that ORG had misinterpreted the decision of ORG .

On DATE ORG allowed the applicant ’s appeal , quashed the decision of CARDINAL DATE and remitted the case to ORG . It found that the latter had to take a decision on the merits and was not allowed to remit the case to the Mayor . Further it repeated its finding that LAW DATE was applicable in the proceedings at issue . The applicant filed a complaint with ORG against this decision .

On DATE ORG dismissed the applicant ’s complaints against ORG decisions of DATE and CARDINAL DATE .

On DATE PERSON withdraw the application of DATE for the building permit and informed the Municipal authorities that he would file a new application for a retroactive building permit for the barn .

The Government submits that PERSON has , at an unspecified date , filed a new request for a building permit . The applicant submits that she was not aware of such proceedings .

Article CARDINAL of LAW , in its relevant part , reads as follows :

“ An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty . An action for breach of the duty to decide is inadmissible in administrative criminal proceedings , except private prosecutions and prosecutions in respect of tax offences . ”


András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

The applicants , ORG and ORG , are NORP citizens who were born in DATE and DATE , respectively , and live in GPE . They were represented before the ORG by Mr PERSON and Mr GPE , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

In DATE the property which is at issue in this case was nationalised pursuant to ORG DATE , which provided for the nationalisation of all property belonging to foreign nationals .

On DATE the applicants filed a property claim with ORG against the local authorities . The applicants claimed that their predecessor had bought the disputed property in DATE from PERSON , a NORP citizen , and that therefore that property could not have been nationalised . The disputed fact in the case was the actual existence of the purchase contract , as it had allegedly been destroyed .

In the claim form , they assessed the monetary value of their claim at MONEY ” ( YUR - approximately CARDINAL,CARDINAL NORP marks ( ORG ) at the time ) .

On DATE the court ruled in favour of the applicants . That decision was upheld by ORG on DATE .

At the request of the Attorney General of GPE , on DATE ORG ( " ORG " ) quashed the judgments of DATE and DATE and remitted the case for a retrial .

On DATE the applicants extended their claim to the ORG .

On DATE ORG ruled against the applicants . That decision was upheld by ORG on DATE .

On DATE ORG rejected the ORG appeal on points of law on the ground that they had failed to assess the monetary value of their claim in the claim form .

The Government did not dispute the facts submitted by the applicants . However , they provided additional information concerning the proceedings before ORG , as follows .

On DATE the applicants applied for the reopening of the proceedings before ORG .

On DATE ORG accepted their application and quashed its decision of DATE . At the same time , it decided on the merits of the applicants’ appeal on points of law and dismissed it as manifestly ill - founded .

The ORG representative was served with ORG decision on DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr O. , was born in DATE . He is a national of GPE where he is currently living . He is known to the GPE authorities under this and CARDINAL other identities . He was represented before the ORG by Mr PERSON and PERSON , who are both lawyers practising in GPE .

CARDINAL .

On DATE the applicant entered the GPE , where on DATE he applied for asylum . He stated , inter alia , that he had left his passport and identity card behind in GPE and that he had travelled as a stowaway on a ship to the GPE . His parents and CARDINAL siblings as well as CARDINAL - siblings were all living in GPE . He stated that , on account of his ORG origin , he had been discriminated against in GPE where , moreover , his father , his oldest brother and one of his sisters had encountered problems from the side of the NORP authorities . He had also left GPE because of problems encountered on CARDINAL occasions from the side of relatives of his fiancée . They objected to the applicant ’s intended marriage .

Noting that the applicant did not hold any travel documents and had not immediately applied for asylum upon his arrival in the GPE , and finding that no credence could be attached to his asylum account , the Deputy Minister of ORG ( ORG ) rejected the applicant ’s asylum request on DATE . The applicant did not avail himself of the possibility to appeal against this decision , which thus became final . Although under a formal obligation to leave the country , the applicant continued to reside illegally in the GPE .

The applicant was arrested on DATE and detained on remand on suspicion of , inter alia , participation in a criminal organisation pursuing the aim of prejudicing GPE by providing assistance to enemy forces who are conducting a holy war against – amongst others – the GPE ; and which organisation is further involved in drug - trafficking , forgery of documents , providing third persons with forged documents , and/or ordering or inciting others to commit criminal offences . These suspicions were based on the content of various intelligence reports drawn up by the GPE national security agency ( ORG ; “ ORG ” , succeeded on DATE , pursuant to the DATE Intelligence and Security Services Act ( FAC inlichtingen- en veiligheidsdiensten ) , by ORG ( Algemene Inlichtingen- en ORG ; “ ORG ” ) ) .

The applicant and a number of co - accused were subsequently formally charged and summoned to appear before ORG ( rechtbank ) in order to stand trial . In its judgment of DATE , ORG acquitted the applicant of all charges , finding that these had not been legally and convincingly proven , and ordered the applicant ’s release from pre - trial detention . The hearing of DATE during which ORG judgment was delivered was attended by an official of the NORP mission in the GPE .

NORP The prosecution initially lodged an appeal against this judgment but withdrew it on DATE , before the trial proceedings on appeal had commenced .

On DATE , the applicant filed a second application for asylum in the GPE . He stated , inter alia DATE contrary to what he had previously asserted DATE , that he had taken his passport , personal identity card and declaration of nationality with him to the GPE in DATE and that , for the purposes of possibly obtaining a NORP residence title , he had later sent his passport to GPE where CARDINAL of his brothers was living . He had not submitted these identity documents in the proceedings on his first asylum request in order to prevent his immediate removal from the GPE . On this passport , issued in DATE shortly before his departure , he had travelled by plane from GPE to GPE from where DATE following brief stays in GPE and GPE DATE he had eventually travelled by train to the GPE where he had applied for asylum .

His new asylum request was based , inter alia , on the criminal proceedings that had been taken against him in the GPE . The applicant claimed that these proceedings had attracted the attention of the NORP authorities as illustrated by the presence of an official of the NORP mission during the GPE trial . Despite the fact that he had been acquitted , his relatives in GPE continued to be questioned about him . Further emphasising the general situation in GPE , the applicant submitted that he feared treatment in breach of LAW as he was a person marked for life as a terrorist .

On DATE , immediately after his release from pretrial detention following his acquittal , the applicant was placed in GPE detention for expulsion purposes ( vreemdelingenbewaring ) .

In a letter of DATE sent to the applicant ’s lawyer , ORG ( GPE Branch ) stated that it was likely that the applicant had attracted the negative attention of the NORP authorities on account of the nature of the suspicions that had arisen against him in the GPE . As the NORP authorities had been engaged since DATE in a campaign of oppression directed against all persons suspected of having links with religious groups considered “ extremist ” and as ORG received regular reports of torture of persons detained in GPE , it feared that the applicant ’s expulsion to GPE could expose him to a risk of treatment proscribed by LAW .

On DATE , the Minister for ORG ( Minister PERSON Integratie ; “ the Minister ” ) rejected the applicant ’s second asylum application , but withdrew this decision on DATE .

On DATE , an individual official report ( ambtsbericht ) on the applicant was drawn up by the ORG . According to this report , the applicant was involved in a network of extremist NORP engaged in the material , financial and logistic support of international jihad , as well as in the propagation of , planning of and incitement to use violence for the purposes of such jihad .

On DATE ORG of The GPE sitting in GPE concluded that the applicant should have been released from GPE detention on DATE . The applicant was released on DATE .

On DATE the applicant filed an appeal with ORG ( rechtbank ) of GPE against the Minister ’s failure to determine his second asylum application . On DATE , ORG accepted the applicant ’s appeal and ordered the Minister to determine the applicant ’s asylum request within DATE .

In a fresh decision taken on DATE , the Minister again rejected the repeat asylum request , finding that it had not been established that the applicant , if expelled to GPE , would be exposed to a risk of treatment proscribed by LAW . The applicant filed an appeal with ORG of GPE on DATE .

On DATE , following a hearing held on DATE , ORG of The GPE sitting in GPE accepted the applicant ’s appeal , quashed the decision of CARDINAL DATE and ordered the Minister to take a fresh decision within DATE . ORG rejected the Minister ’s request to take into account the effects of the military coup d’état in GPE of DATE in which the regime of President PERSON had been overthrown , including reports in the press that after this coup many opposition members had returned to GPE and that many detainees , including NORP extremists , had been released . Although ORG accepted that the regime change could , as such , be seen as a new fact or circumstance which could be taken into account in accordance with article CARDINAL of LAW ( Vreemdelingenwet DATE ) , it also found that the Minister had failed to indicate in a targeted and concrete manner what consequences this should entail in respect of the appeal at hand . Furthermore , it did not find that the effects of the regime change had become fully crystallised yet . Consequently , the requirement of article CARDINAL § DATE LAW that new facts and circumstances can only be taken into account if relevant to the decision at issue was not met in the instant case . ORG therefore decided to ignore what had happened on or after DATE in GPE .

ORG further agreed with the parties that the appeal concerned a repeat request within the meaning of article CARDINAL:CARDINAL of LAW which should be based on relevant newly emerged facts or altered circumstances . It held that the applicant ’s arrest and prosecution on charges of participation in a terrorist organisation in the GPE , his acquittal by ORG and the public attention these proceedings had attracted were new facts unknown on DATE when the applicant had filed his first asylum request . The question which remained was whether these new facts warranted a revision of the negative decision on that first asylum request . On the basis of the contents of ORG letter of DATE and other materials concerning the suppressive attitude of the regime of the NORP President PERSON as regards NORP extremists , ORG found that there were sufficient concrete indications that the NORP authorities , in particular since DATE , pursued an increasingly repressive policy towards perceived NORP fundamentalists . It could therefore not be considered excluded that the applicant would risk persecution within the meaning of the DATE LAW . ORG further accepted as sufficiently plausible that the NORP authorities had become aware of the suspicions that had arisen against the applicant in the GPE . Also noting that the most recent official report ( ambtsbericht ) on PERSON had been drawn up by the Minister of Foreign Affairs as long ago as DATE , ORG concluded that the Minister ’s conclusion in the impugned decision lacked adequate reasoning on specific points . Having reached this conclusion , ORG did not find it necessary to examine and determine the parties’ arguments on the ORG individual official report on the applicant of DATE .

On DATE the Minister filed an appeal with ORG of ORG ) .

On DATE , ORG accepted the Minister ’s appeal , quashed ORG judgment of DATE and rejected the applicant ’s appeal against the Minister ’s decision of CARDINAL DATE . Referring to the general principles under LAW as defined by ORG in its judgments in the cases of PERSON and Others v. GPE , ( judgment of DATE , Series A no . CARDINAL ) and ORG v. the GPE , ( no . CARDINAL , DATE ) , ORG held :

“ The [ asylum ] application , rejected in the above - cited decision of DATE , was based on the claim that [ the applicant ] must now fear that , in view of the criminal trial proceedings taken against him , the NORP authorities have become aware of the suspicions having arisen against him in the GPE as to his involvement in a terrorist organisation and that this is not altered by the fact that he has been acquitted .

[ ORG considers that ] , even if such awareness has to be assumed to exist , the Minister did not have to find – on the basis of the [ applicant ’s ] mere reference to the suspicions having arisen against him , the subsequent prosecution which ended in his acquittal and speculation about the possible consequences of this upon his return to his country of origin – that it had been established by the [ applicant ] that he , if expelled , would be exposed to a real risk of being subjected to treatment within the meaning of LAW . The general information submitted by the [ applicant ] concerning the attitude of the NORP authorities towards terrorism offers no basis for the conclusion that the Minister was incorrect in finding no reasons for considering that the criminal proceedings will lead to asylum - related problems . It was not for the Minister to demonstrate that this alleged risk did not in fact exist . The appeal succeeds . ”

No further appeal lay against this decision .

On DATE the Minister informed the applicant of the intention ( voornemen ) to declare him an undesirable alien entailing the imposition of an exclusion order ( ongewenstverklaring ) , as the applicant was considered to pose a threat to national security , which conclusion was based on an individual official report drawn up on the applicant by the ORG on DATE , according to which the applicant was involved in a network of extremist NORP involved in the material , financial and logistic support of international jihad , and in the propagation of , planning of and incitement to use violence for the purposes of such jihad . According to a subsequent official ORG report of DATE , this information remained pertinent .

On DATE , the applicant filed written comments on the intention with the Minister , arguing inter alia that such an exclusion order would be in violation of his rights under LAW and that the intended decision to impose an exclusion order lacked adequate reasoning . The applicant relied , inter alia , on a letter dated DATE from ORG ) , stating that the applicant , given his past , was at risk of being arrested and tortured if returned to GPE .

At the time of the introduction of the application , these proceedings were still pending before the Minister . No further information about these proceedings has been submitted to the ORG .

NORP In DATE , the applicant was expelled from the GPE to GPE . He travelled on his own , authentic and valid passport which had been issued for all countries in PERSON ( GPE ) in DATE . In DATE , the validity of this passport had been prolonged in PERSON by DATE . The applicant had applied for that prolongation by correspondence .

The applicant arrived unaccompanied in GPE . He passed the passport and customs control with the help of a related customs officer who had been informed of the arrival by the applicant ’s family . This customs officer shepherded him through the checkpoints as the border guards were allegedly on alert for the applicant and would have arrested and questioned him . Since his return to GPE , the applicant has been living in hiding in order to avoid persecution by the NORP authorities .

Until DATE , the admission , residence and expulsion of aliens were regulated by the DATE LAW ( Vreemdelingenwet ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ( Vreemdelingencirculaire ) . LAW ( PERSON ) applied to proceedings under LAW , unless indicated otherwise in this LAW .

On DATE , the DATE LAW was replaced by QUANTITY . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW . Unless indicated otherwise in the CARDINAL LAW , the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence .

Under LAW of QUANTITY , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,

he or she is a refugee within the meaning of the LAW relating to LAW DATE , or

he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

Article CARDINAL of LAW provides that an applicant must adduce newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) if a repeat request is filed following a decision in which the original request is , either totally or partially , rejected . When no such facts or altered circumstances have been adduced , the administrative authority may reject the new request with reference to the decision on the original request . Article CARDINAL thus embodies the res iudicata principle in administrative law . Nevertheless , an exception has been made in this particular area of the law , in that an alien may adduce exceptional facts and circumstances relating to him or her personally , on the basis of which the new request may be assessed outside the framework of article CARDINAL . In the case of a repeat asylum application in which the risk of treatment contrary to LAW is also invoked , an assessment by the court outside the framework of article CARDINAL:CARDINAL is therefore possible .

On DATE , ORG issued “ PERSON : The country ’s situation , including the human rights situation and the political situation ( DATE ) ” . It reads , in so far as relevant ( references omitted ) :

“ In DATE , a military coup d’état led by Colonel PERSON " put an end to the totalitarian practices " of President PERSON , who had been in power since DATE . ORG for Justice and Democracy ( Conseil militaire pour la justice et la démocratie , ORG ) , headed by Colonel PERSON , DATE runs the country . ...

In DATE , Colonel PERSON allowed " a general , full and complete amnesty to all NORP condemned for political crimes or offences , in order to permit them to participate in the work of building the country in complete freedom " . However , DATE " NORP " have been imprisoned since DATE ; accused of being part of terrorist cells , they have not been given a trial as of DATE . “

On DATE , ORG published the “ query response ” entitled “ Mauritania : National identity documents in use in GPE , including the passport , identity card , birth certificate and marriage certificate ; description of those documents ; procedures for obtaining those documents ( DATE ) ” , which reads in respect of passports ( references omitted ) :

“ Passport

In correspondence , the First Counsellor at the Embassy of Mauritania ... indicated that the NORP passport is issued by the national security branch . In order to obtain a passport , a person must submit a valid birth certificate and recent police record and report in person to receive his or her passport . No additional information on the documents that a person must produce or on the procedures he or she must follow to obtain a NORP passport could be found among the sources consulted by ORG within the time constraints for this Response .

According to the First Counsellor at the Embassy of GPE , a passport is valid for DATE and contains the following information : the holder ’s given name , family name , date and place of birth ; the card ’s period of validity ; the name of the issuing authority ; and a photograph .

ORG provides information on CARDINAL types of NORP passports . The first type has a CARDINAL - digit number , preceded by a letter . The number appears as perforations at the top of all pages and is printed on the first page . Other information on the passport includes the following :

Passport CARDINAL

validity DATE , page CARDINAL

a CARDINAL extension possible

booklet c. CARDINAL x CARDINAL mm / CARDINAL x CARDINAL in .

CARDINAL pages

laminate pages CARDINAL and CARDINAL , clear laminate , sewn in

photo glued , with an ink stamp .

The second type of passport has a CARDINAL - digit number , preceded by a letter . The number appears as perforations at the top of all pages and is printed on the first page under the title . Other information about the passport includes the following :

Passport CARDINAL

validity DATE , page CARDINAL entry ‘ It expires on’

extension possible

booklet c. CARDINAL x CARDINAL mm / MONEY in .

CARDINAL pages

laminate pages CARDINAL and CARDINAL , matt laminate with print , sewn in

photo glued , with an ink stamp .

No information on why PERSON has two types of passports could be found among the sources consulted by ORG within the time constraints for this Response . ... ”

The DATE Report on International Religious Freedom for DATE on GPE , released by ORG on DATE and covering the period DATE and DATE , states in its relevant part :

“ The constitution establishes the country as an NORP republic and recognizes ORG as the religion of its citizens and the state . However , a military junta took power on DATE , overthrew the elected president , dissolved parliament , suspended parts of the constitution , and formed a transitional government . The transitional government maintained laws regarding human rights and religious freedom and made some advances in both areas . ...

Following the DATE crackdown on NORP activists , the former government closed a number of NORP - funded and LOC - funded NORP schools and charities . These organizations remained closed at the end of the period covered by this report . The former government also closed an NORP charity association in DATE for its alleged connections to local NORP activists . The government - funded ORG , and Research ( ORG ) , remained open and fully funded .

From DATE , the former government detained approximately CARDINAL NORP , including NORP leaders PERSON and ORG PERSON , who it claimed were tied to terrorism . On DATE , the former government charged CARDINAL with membership in unrecognized groups or for inciting violence and making harmful political statements at FAC . The former government released CARDINAL others , leaving CARDINAL in prison ( CARDINAL of whom had been charged ) . A majority of the arrests appeared to be based on alleged political activities rather than religious beliefs . The transitional government released CARDINAL of the CARDINAL NORP soon after assuming power , and on DATE , released an additional QUANTITY for lack of evidence , leaving CARDINAL in prison . CARDINAL prisoners escaped DATE , leaving CARDINAL in prison . The transitional government stated that it had sufficient evidence to hold the remaining DATE for terrorist activities and was preparing its case against them at the end of the reporting period .

Unlike in the previous reporting period , there were no reports of former or transitional government officials searching FAC , seizing Qur’anic texts or arresting FAC officials . As in the previous reporting period , both the former and transitional governments restricted the use of mosque loudspeakers exclusively for the call to prayer and DATE service , in accordance with a DATE law that prohibits the use of mosques for any form of political activity , including the distribution of propaganda and incitement to violence . ...

Excluding the NORP previously mentioned , there were no additional reports of religious prisoners or detainees . ”

On DATE , ORG released the “ DATE Country Reports on Human Rights Practices – Mauritania ” , which states inter alia :

“ PERSON , with an estimated population of CARDINAL , is a highly centralized NORP republic governed by President PERSON , whose DATE ] inauguration highlighted the country ’s first successful transition to democracy in its DATE of independence . President PERSON replaced Colonel PERSON , who had taken power in the DATE coup that ended the CARDINAL-year presidency of Maaouya PERSON Taya . The presidential elections were judged free and fair by international and national observers . The civilian authorities generally maintained effective control of the security forces . ... ”


The applicant was born in DATE and lives in GPE . He is currently detained in FAC .

On DATE the applicant was arrested by the police on suspicion of having assisted an offender who was being sought pursuant to a “ wanted ” notice . He was subsequently brought before ORG ( Prokurator Rejonowy ) and charged with having intentionally impeded the apprehension of an arrestable offender . The actual offender had been charged with homicide . The prosecutor applied to ORG ( Sąd Rejonowy ) for the applicant to be detained pending the investigation .

On DATE ORG , after hearing evidence from the applicant , remanded him in custody for DATE in view of the reasonable suspicion that he had committed the offence with which he had been charged . The court also considered that , given that the applicant had not confessed and that the evidence given by him contradicted the material gathered by the prosecution , there was a fear that he would induce witnesses to give false testimony or would otherwise obstruct the proper course of the proceedings .

The applicant ’s appeal against the detention order , as well as his further appeals against decisions prolonging his detention and all his subsequent repeated applications for release and appeals against refusals to release him , were unsuccessful . In his applications and appeals , he argued that the charge against him was based on unreliable and contradictory evidence . He referred to his personal circumstances , in particular his age ( he was DATE at that time ) .

In the course of the investigation , on DATE , the applicant was charged with attempted homicide and CARDINAL counts of armed robbery . The decision setting out the charges against the applicant was further amended on CARDINAL occasions .

DATE and DATE the courts prolonged the applicant ’s pre - trial detention on CARDINAL occasions . The relevant decisions were given , respectively , by ORG ( PERSON ) on DATE and DATE , ORG ( Sąd Apelacyjny ) on DATE , DATE and DATE and ORG ( Sąd Najwyższy ) on DATE . ORG prolonged the applicant ’s detention until DATE .

In all those decisions the courts relied on a strong suspicion that the applicant had committed the offences with which he had been charged , which was supported by evidence from witnesses and experts . They attached importance to the serious nature of those offences and the likelihood of a heavy sentence being imposed on the applicant . They further considered that the need to secure the proper conduct of the investigation , especially the need to verify evidence from the suspects and witnesses , justified holding him in custody .

In the course of the proceedings , the courts informed the prosecutor and the applicant ’s lawyer about the dates of the sessions concerning the review of the applicant ’s pre - trial detention . Nevertheless , the applicant ’s lawyer failed to appear at the sessions .

NORP The representatives of the prosecution participated in all court sessions relating to the prolongation of the applicant ’s detention and were invited to state their position as to the necessity of keeping the applicant in custody .

In the meantime , the relevant penitentiary court had ordered that the applicant serve a sentence of imprisonment imposed in other criminal proceedings . He served that sentence from DATE ( the date of his arrest in the present case ) to DATE .

At a session held on DATE , at which the applicant ’s lawyer was present , ORG prolonged the applicant ’s detention until DATE , repeating the grounds that had been given in the previous decisions and DATE more particularly – relying on the need to secure and supplement evidence gathered in the investigation . That decision and the reasons therefor were upheld on appeal on DATE at a session at which the applicant ’s lawyer was present .

On DATE the applicant was indicted before ORG on charges of attempted homicide , armed robbery , burglary and having intentionally impeded the apprehension of an arrestable offender . The bill of indictment comprised CARDINAL accused . In all , CARDINAL charges were brought against them . The principal accused , a certain PERSON , was charged with CARDINAL counts of homicide , CARDINAL counts of attempted homicide , several counts of incitement to homicide and several counts of armed robbery . The prosecution asked the court to hear evidence from CARDINAL witnesses .

On DATE ORG ordered that the applicant and his CARDINAL co - defendants be kept in custody until DATE . The court referred to a strong likelihood that he had committed the serious offences with which he had been charged and stressed that a heavy penalty might be imposed on him . It considered that the severity of the anticipated penalty could by itself be a sufficient ground for continuing the detention in order to secure the proper course of the proceedings . In that context , the court added that both the gravity of the charges and the applicable sentence justified the conclusion that the defendants , if released , would obstruct the trial for fear of having that sentence executed .

Subsequently , the case was referred to ORG , within whose territorial jurisdiction the offences in question had been committed .

On DATE ORG , under LAW CARDINAL of the Code of Criminal Procedure , ordered that the applicant be kept in custody until DATE . It reiterated the grounds previously given for his detention . On DATE ORG , ruling on the applicant ’s appeal , upheld the decision and added that it should be based on LAW since the applicant ’s detention had already exceeded the statutory time - limit of DATE laid down in that provision , it being immaterial that during most of that period he had served the earlier sentence of imprisonment . ORG fully shared the lower court ’s view that there were valid grounds for the applicant ’s detention .

The applicant ’s detention was subsequently prolonged under LAW on many occasions .

The relevant decisions were given on the following dates .

On DATE ORG ordered that the applicant be held in custody until DATE . On DATE that court ordered his continued detention until DATE but then amended its decision and set the deadline for DATE . This was due to the fact that after DATE only ORG could prolong his detention beyond the term laid down in LAW of LAW .

On DATE ORG prolonged the applicant ’s detention until DATE . On DATE it prolonged his detention until DATE . On DATE it ordered that the applicant be kept in custody until DATE . The next decision was given on DATE ; it extended the applicant ’s detention until DATE . It was followed by the decision of DATE , whereby the ORG prolonged the applicant ’s detention until DATE .

All the decisions reiterated the grounds previously given for the applicant ’s detention , most notably the reasonable suspicion of his having committed the offences in question and the severity of the anticipated penalty which , in the ORG opinion , justified keeping him in custody to secure the proper conduct of the proceedings . ORG also held that the proceedings had not been unduly protracted and that the frequent adjournments had been caused by events for which ORG could not be held responsible .

All appeals and applications for release filed by the applicant – who repeatedly contested the factual basis for the charges against him and invoked the principle of the presumption of innocence – were to no avail .

In the meantime , the court held a number of hearings scheduled for various dates , some of which were cancelled or adjourned due to the absence of the applicant ’s co - defendants , some of whom had been released , or the fact that the defendants still in detention had not been brought to trial from prison . As of DATE , the trial court had heard evidence from CARDINAL witnesses .

On DATE the ORG gave judgment . The applicant was convicted and sentenced to DATE imprisonment . He appealed . The applicant ’s detention was subsequently prolonged on CARDINAL occasions .

On DATE ORG upheld the impugned judgment . The applicant failed to inform ORG whether he lodged a cassation appeal with ORG .

NORP Neither during the proceedings nor after their termination did the applicant make use of domestic remedies for the excessive length of judical proceedings under LAW June CARDINAL 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 Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) .

Article CARDINAL § CARDINAL provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision concerning the prolongation of detention on remand is to be taken .

A more detailed rendition of 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 are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL 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 cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § CARDINAL , ORG CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINALVIII .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

At the time of introduction of the application the applicant was pregnant and intended to give birth at her home , rather than in a hospital or a birth home . However , in view of CARDINAL ) of Government Decree no . CARDINAL ( GPE . ) , any health professional assisting a home birth runs the risk of conviction for a regulatory offence and , indeed , CARDINAL such prosecution has taken place in DATE . In the applicant 's view , while there is no comprehensive legislation on home birth in force in GPE , this provision effectively dissuades health professionals from assisting those wishing home birth .

The LAW provides as follows :

“ ( CARDINAL ) Everyone living in the territory of GPE has the right to the highest possible level of physical and mental health .

( CARDINAL ) GPE shall implement this right through institutions of labour safety and health care , through the organization of medical care and the opportunities for regular physical activity , as well as through the protection of the urban and natural environment . ”

“ ( CARDINAL ) GPE shall implement the right to social support through the social security system and the system of social institutions . ”

Section CARDINAL(CARDINAL ) of ORG provides that a patient 's right to self - determination can be restricted only as prescribed by law . According to section CARDINAL(CARDINAL ) , it is the free choice of a patient to accept or reject certain treatments . Under section CARDINAL(CARDINAL ) , a competent patient may reject medical treatment unless this endangers the life or limb of another person .

Section CARDINAL(CARDINAL ) of Government Decree no . CARDINAL ( GPE . ) , as in force in the relevant period , provides that a health professional who carries out activities within his or her qualifications without a licence , or carries out such activities in a manner which is not in compliance with the law or the licence , is punishable with a fine of MONEY .

Act no . CLIV of DATE ( adopted on DATE ) on LAW provides as follows :

“ Section CARDINAL ) of LAW [ DATE ] shall be completed with [ the following provision ] :

« ( v ) [ The Government shall ] determine [ in a decree ] the professional rules and conditions governing birth outside an institution and the causes excluding the possibility of such birth . ORG ”

“ ... Although risk assessment may be appropriately performed by trained birth attendants their advice about the place of birth , made on the basis of such assessment , is not always followed . Many factors keep women away from higher level health facilities . These include the cost of a hospital delivery , unfamiliar practices , inappropriate staff attitudes , restrictions with regard to the attendance of family members at the birth and the frequent need to obtain permission from other ( usually male ) family members before seeking institutional care ... Often , high and very high risk women do not feel ill or show signs of disease , so they give birth at home , attended by a family member , by a neighbour or by a TBA ...

However , a properly attended home birth does require a few essential preparations ... [ T]ransport facilities to a referral centre must be available if needed . In practical terms this means that community participation and revolving funds are necessary to enable transport to be arranged for emergencies in areas where transportation is a problem .

In some developed countries birth centres in and outside hospitals have been established where low - risk women can give birth in a home - like atmosphere , under primary care , usually attended by midwives . In most such centres electronic fetal monitoring and augmentation of labour are not used and there is a minimum use of analgesics . An extensive report about birth centre care in the GPE described care in alternative birth centres in and outside hospitals ... Experiments with midwife - managed care in hospitals in GPE , GPE and GPE showed that women 's satisfaction with such care was much higher than with standard care . The number of interventions was generally lower , especially obstetric analgesia , induction and augmentation of labour . The obstetric outcome did not significantly differ from consultant - led care , though in some trials perinatal mortality tended to be slightly higher in the midwife - led models of care ...

In a number of developed countries dissatisfaction with hospital care led small groups of women and caregivers to the practice of home birth in an alternative setting , often more or less in confrontation with the official system of care . Statistical data about these home births are scarce . In an NORP study data were collected which suggested that the selection of low - risk pregnancies was only moderately successful . In planned home deliveries the number of transfers to hospital and the rate of obstetric interventions was low . Perinatal mortality and neonatal morbidity figures were also relatively low , but data about preventable factors were not provided ...

The GPE is a developed country with an official home birth system . The incidence of home deliveries differs considerably between regions , and even between large cities . A study of perinatal mortality showed no correlation between regional hospitalisation at delivery and regional perinatal mortality ... A study conducted in the province of GPE , compared the “ obstetric result ” of home births and hospital births . The results suggested that for primiparous women with a low - risk pregnancy a home birth was as safe as a hospital birth . For low - risk multiparous women the result of a home birth was significantly better than the result of a hospital birth ... There was no evidence that this system of care for pregnant women can be improved by increasing medicalization of birth ...

So where then should a woman give birth ? It is safe to say that a woman should give birth in a place she feels is safe , and at the most peripheral level at which appropriate care is feasible and safe ... For a low - risk pregnant woman this can be at home , at a small maternity clinic or birth centre in town or perhaps at the maternity unit of a larger hospital . However , it must be a place where all the attention and care are focused on her needs and safety , as close to home and her own culture as possible . If birth does take place at home or in a small peripheral birth centre , contingency plans for access to a properly - staffed referral centre should form part of the antenatal preparations . ”


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

Following the financial crisis in the former ORG , as well as the subsequent collapse of the banking system in DATE , in DATE , and DATE GPE , as well as the respondent ORG itself , adopted specific legislation accepting the conversion of foreign currency deposits in certain banks , including the PERSON and the PERSON in GPE , into a public debt . The legislation set the time - frame ( DATE ) and the amounts , including interest , to be paid back to the LOC former clients ( see paragraphs DATE below ) . The DATE legislation also explicitly provided that judicial enforcement proceedings instituted on the basis of judgments in respect of the said banks were to be discontinued ( “ obustavljeni ” ; see paragraphs CARDINAL and CARDINAL below ) .

The applicants are Mr. PERSON ( the first applicant ) , a LOC national who was born in DATE and lives in GPE , GPE , and Mr PERSON ( the second applicant ) , also a LOC national who was born in DATE and lives in GPE .

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

On DATE ORG ( PERSON ) in GPE rendered a judgment in favour of the applicant , ordering the GPE to pay him : ( i ) NORP ( “ DEM ” ) on account of his foreign - currency savings ; ( ii ) the accompanying interest based on the DEM sight deposit rate ( domicilna kamata na deviznu štednju po viđenju ) ; and ( iii ) MONEY ( “ YUD ” ) for legal costs .

On DATE ORG ( PERSON ) in GPE upheld this judgment and on DATE the applicant obtained an enforcement order ( rješenje o izvršenju ) .

On DATE the Montenegrin Ombudsman ( PERSON ljudskih prava i sloboda ) , following the applicant ’s enquiry , informed him that pursuant to the DATE legislation all judicial proceedings relating to the “ old - foreign currency savings ” , including enforcement proceedings , had to be discontinued , and that the payment of these savings was instead regulated by LAW on the Citizens’ Foreign - Currency Savings DATE ( see paragraphs DATE below ) .

On DATE ORG confirmed that the enforcement of the judgment rendered in favour of the applicant had been discontinued , just like the enforcement of all the other judgments relating to the old foreign - currency savings . At the same time the applicant was advised to seek the payment of his savings in accordance with the LAW on the Citizens’ Foreign - Currency Savings DATE .

There is no information in the case file as to whether the applicant actually did so .

On DATE ORG in GPE rendered a judgment in favour of the applicant , ordering the PERSON in GPE to pay him : ( i ) DEM CARDINAL,CARDINAL.CARDINAL and DATE on account of his foreign - currency savings ; ( ii ) the accompanying interest based on the bank ’s sight deposit rate ( u visini kamatne stope koju tužena obračunava na devizne štedne uloge po viđenju ) ; and ( iii ) YUD CARDINAL for legal costs . On an unspecified date thereafter this judgment became final , and on CARDINAL DATE the applicant obtained an enforcement order against the PERSON .

On an unspecified date insolvency proceedings were initiated in respect of the PERSON , but on DATE the applicant ’s claim ( potraživanje ) was recognised by the PERSON ’s insolvency administrator ( stečajni upravnik ) . On DATE the applicant ’s claim was converted into CARDINAL , CARDINAL .

On DATE the applicant collected the amount statutorily envisaged for DATE ( see paragraph CARDINAL below ) .

On DATE the applicant renewed his request for enforcement of the above judgment , this time in respect of the respondent ORG .

DATE and DATE the enforcement judge ( izvršni sudija ) issued CARDINAL enforcement orders in favour of the applicant . All CARDINAL orders were later quashed by a CARDINAL - judge panel ( vijeće ) of ORG on the grounds that the ORG had only accepted to gradually pay back the deposits in accordance with the LAW on the Citizens’ Foreign - Currency Savings DATE . No instantaneous payment of the entire amount was , therefore , legally possible .

Articles CARDINAL , CARDINAL , DATE and CARDINAL provided that all foreign - currency savings deposited with the “ authorised banks ” , including the GPE and the PERSON in GPE , before DATE were to become public debts .

Under LAW responsibility in that respect was to be fully honoured by DATE through the payment of specified amounts , plus interest , and according to a certain time - frame .

Article CARDINAL provided that , as of the date of this Act ’s entry into force ( DATE ) , “ all pending lawsuits , including judicial enforcement proceedings , aimed at the collection of the foreign currency covered by this Act shall be discontinued ” .

This Act repealed the LAW described above . In doing so , however , it explicitly acknowledged as part of public debt all deposits previously recognised as such . It modified the time - frame for honouring the debt in question ( from DATE to DATE ) and specified amended amounts , plus interest , to be paid DATE . The DATE amounts were ORG CARDINAL,CARDINAL in DATE , ORG CARDINAL in DATE and ORG CARDINAL in DATE , while the exact amount of the remaining instalments was to be calculated applying a geometrical progression rate of PERCENT and a corresponding coefficient for DATE , the coefficients themselves also increasing DATE . The minimum such amount could not be less than LAW .

Article CARDINAL reaffirmed that “ all lawsuits aimed at the collection of the foreign - currency savings covered by this LAW , including judicial enforcement proceedings , shall be discontinued . ”

This Act entered into force on DATE . It was subsequently amended on CARDINAL occasions , but these amendments concerned peripheral issues unrelated to the ORG above - described status .

Article CARDINAL , inter alia , defines “ foreign - currency savings ” as all foreign currency deposited by natural persons with CARDINAL of the “ authorised banks based in the territory of GPE ” as recognised as a public debt of GPE ( see paragraphs CARDINAL and CARDINAL above ) .

Pursuant to LAW as of the date of this LAW ’s entry into force GPE shall assume the obligations of the authorised banks towards natural persons in respect of their foreign - currency savings .

Article CARDINAL explicitly provides that GPE shall also assume the obligations of the banks in respect of which insolvency proceedings were initiated .

Articles DATE and CARDINAL provide that GPE shall honour this debt by DATE and specify the amounts , and interest , to be paid DATE in CARDINAL . The DATE amounts were ORG CARDINAL in DATE and ORG CARDINAL in DATE , while the exact amount of the remaining instalments shall be calculated applying a geometrical progression rate of PERCENT and a corresponding coefficient for DATE , the coefficients themselves also increasing DATE . The minimum such amount may not be less than LAW should the instalment be less than that .

Pursuant to LAW , the banks’ clients may , in advance of the said time - frame and under certain conditions , make use of their deposits converted into Government bonds in order to pay taxes , buy ORG property or take part in the privatisation of ORG - owned businesses .

Under Articles CARDINAL and CARDINAL former clients of the banks in question can also sell the said bonds to other natural or legal persons . Such trading is exempt from property taxation and capital gains taxation .

Articles CARDINAL § CARDINAL and CARDINAL LAW provide that the Government of GPE shall adopt additional technical regulations concerning the bonds in question .

This Act entered into force on DATE and its amendments on DATE .


Violation of Article 5 - Right to liberty and security

Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

At the material time she was a judge in a first - instance court in GPE . CARDINAL sets of criminal investigations were started against her , on suspicion of having repeatedly falsified official documents in the exercise of her duties , as part of an organised group , with the aim of illegally obtaining title to various properties in the centre of GPE .

NORP Under the provisions of Law no . CARDINAL/CARDINAL on ORG , the applicant was automatically suspended from her post during the criminal trial .

On DATE she was dismissed from her post by an order of ORG ( PERSON ) for manifest professional unfitness . On DATE the decision was endorsed by the President of the Republic and on DATE it was upheld by ORG and ORG ( former ORG ) , upon an appeal by the applicant .

On DATE the prosecutor at ORG started the criminal investigations against the applicant .

On DATE the applicant was arrested for DATE , on the orders of the prosecutor , in connection with the criminal investigations against her .

The applicant appealed against the arrest order on the grounds that it did not satisfy the domestic - law requirements or those set forth in LAW .

On DATE ORG upheld the arrest order . It found that the evidence in the file disclosed a reasonable suspicion that she had committed the offences she was accused of . It considered that her actions , which were contrary to public policy , had been aggravated by the fact that the applicant had been a judge at the time .

On DATE ORG upheld the order by CARDINAL votes to CARDINAL . The third judge expressed his separate opinion that there were no grounds for arresting the applicant .

On DATE ORG extended the applicant 's pre - trial detention by DATE , upon a request by the prosecutor . It found that :

“ the reasons invoked – in the light of the complexity of the case which requires that the prosecutor take the investigative measures indicated in his request – constitute sufficient justification under LAW seq . of LAW . ”

On DATE ORG upheld the abovementioned interlocutory judgment .

On DATE ORG extended the applicant 's detention on the ground that the applicant 's release would be contrary to public policy , given the seriousness of the offences she was accused of and the risk of generating society 's mistrust in the judicial system .

On DATE ORG reduced the new term of detention to DATE .

On DATE ORG extended the detention for a further DATE on the ground that the reasons invoked for the arrest still existed .

On DATE ORG reduced the duration of detention to DATE again .

On DATE ORG extended the detention by DATE on the same grounds , in order to allow the prosecutor to finalise the investigations . On DATE ORG upheld the interlocutory judgment .

On DATE ORG dismissed a new request by the prosecutor for another extension of the applicant 's pre - trial detention , from DATE to DATE . It found that the reasons that had justified the taking of the measure did no longer exist . It noted that the applicant had been suspended from her position and pointed out that the alleged danger in terms of public policy should not be assessed in abstract terms . It also noted that the prosecutor had not made progress with the investigations after the applicant 's arrest and had not carried out the procedural measures for which he had repeatedly sought an extension of the detention .

On DATE ORG reversed the decision on the ground that the documents in the file justified the extension .

On DATE ORG rejected , on the same grounds as before , another extension request .

On DATE ORG reversed the interlocutory judgment again .

In the following interlocutory judgments in the case ORG did not examine the applicant 's detention , as she had been “ arrested in connection to other criminal proceedings ” ( point B below ) .

On DATE the applicant was committed to stand trial along with several other persons . The prosecution examined some forty witnesses , documents were transferred from various authorities and several expert reports submitted .

The Court of Appeal gave judgment on DATE , convicting the applicant of abuse of power and forgery and sentencing her to DATE imprisonment . The applicant 's sentence was increased to DATE imprisonment on appeal ( decision of CARDINAL DATE of ORG ) and became final on DATE .

NORP The applicant was released from prison on CARDINAL DATE .

On DATE the applicant was arrested by the prosecutor at ORG in connection with criminal investigations against her . The prosecutor justified his order on the grounds that the criminal offence that she had been accused of was punishable by a term of imprisonment of DATE and that her continued freedom would run counter to public policy .

On DATE the applicant was brought before ORG for examination of her appeal against the arrest order .

On DATE ORG delivered its interlocutory judgment ; it upheld the arrest order in the following terms :

“ Under the terms of the last paragraph of LAW , the court may quash the arrest order ... only if it finds that the measure was illegal .

However , in the case at hand , the [ applicant 's ] arrest meets the conditions set forth in LAW and the criteria in LAW , to ensure the proper administration of criminal proceedings ; therefore the [ applicant 's ] complaint against the arrest order seems illfounded and shall be dismissed .

Concerning the request for conditional release from arrest , in accordance with Articles CARDINAL and CARDINAL § CARDINAL of the Code of Criminal Procedure , the prosecutor decides on such a request during the prosecution phase and the court that examines the merits of the case deals with the request made during the criminal trial .

Therefore , the court does not have the power to examine the request , in so far as the case is currently in the prosecution phase , under the prosecutor 's exclusive supervision . ”

The court also found that the prosecutor had the power to issue the arrest order , and dismissed the applicant 's complaint to the contrary .

On DATE ORG upheld the interlocutory judgment , in particular on the ground that the reasons that had justified the imposition of the preventive measure still existed and thus the applicant 's continued detention was legal .

On DATE ORG extended the detention for DATE , at the prosecutor 's request . It found that :

“ the reasons invoked for taking the measure still exist , with regard to the nature of the offence , the circumstances of the facts and the consequences produced .

Moreover , the extension of the pre - trial detention is necessary , given the complexity of the case , which requires an examination of several witnesses , various expert investigations , gathering of documents from the authorities and confrontations . ”

On DATE ORG dismissed the applicant 's appeal and upheld the above interlocutory judgment .

On DATE ORG dismissed another request by the prosecutor and refused to extend the applicant 's detention for DATE . It noted that the prosecutor had already gathered the evidence and could not justify the need for continuing the applicant 's detention ; it also found that as the applicant had been dismissed from her post , there was no longer a public - policy issue .

On CARDINAL DATE ORG reversed the above decision and extended the detention by DATE to allow the prosecutor to gather more evidence , as he had requested .

On DATE the applicant was committed for trial by the prosecutor , on charges of abuse of power and forgery , in respect of facts similar to those under investigation in the above - mentioned criminal file ( described at A above ) .

On DATE ORG dismissed a further extension request by the prosecutor and ordered the applicant 's release as it considered that the reasons for her detention did no longer exist .

DATE ORG reversed the decision ; it held that ORG had not given reasons for its decision and that the applicant 's release would still be contrary to public policy in that she had apparently committed several similar offences . It therefore extended the detention pending trial by DATE .

On DATE ORG extended the applicant 's detention by DATE on the ground that :

“ as the reasons that justified the taking of this measure still exist , releasing her would be highly contrary to public policy and would harm the investigations . ”

On DATE ORG declared inadmissible an appeal lodged by the applicant , on the ground that a decision extending detention was subject to appeal at the same time as the judgment on the merits of the case .

On DATE , CARDINAL and DATE and CARDINAL and CARDINAL DATE ORG extended the detention for further terms of DATE , with the same justification . On DATE , DATE and DATE ORG declared the applicant 's respective appeals inadmissible . On DATE and DATE ORG upheld on the merits the interlocutory judgments delivered by ORG .

A request by the applicant for conditional release was also dismissed by ORG , on DATE .

On DATE ORG gave judgment in the case . It convicted the applicant of abuse of power and forgery and sentenced her to DATE and DATE imprisonment . In a final decision of CARDINAL DATE ORG upheld the conviction but reduced the sentence to DATE and DATE imprisonment .

The relevant provisions of LAW concerning pre - trial detention and its extension are set forth in PERSON GPE , no . CARDINAL , § MONEY , ECHR CARDINALVI ( extracts ) . The procedure for lodging complaints against preventive measures , including pre - trial detention , is described in ORG v. GPE , no . CARDINAL , § § DATE , DATE .


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

On DATE the applicant company sued a different company for a sum of money before ORG . In DATE the applicant company paid the court fee . In DATE it modified its claim .

ORG held the first hearing on DATE . On DATE the defendant company submitted its observations . On DATE , DATE and DATE the case was adjourned at the request of the defendant ’s representative .

The second hearing was held on DATE . In DATE and DATE the applicant company asked for the proceedings to be accelerated .

On DATE the case was assigned to a different judge . A hearing which was scheduled for CARDINAL DATE was adjourned at the request of the defendant ’s representative . Another hearing was scheduled for DATE .

On DATE ORG dismissed the applicant company ’s request about the duration of the proceedings . It held that , despite a shorter period of inactivity , there had been no significant delays in the proceedings in breach of LAW and its constitutional equivalent . The decision stated that the applicant company had modified its action , that it had submitted documentary evidence in the course of the proceedings , and that it had also limited the court in scheduling of hearings .

Further hearings before ORG were held on DATE and CARDINAL DATE . On DATE it delivered a judgment against which the defendant appealed on DATE .

The file was submitted to the ORG on DATE . On DATE the court of appeal quashed the first - instance judgment . The decision was served on parties on DATE .

On DATE the applicant asked for the case to be proceeded with . Hearings before ORG were scheduled for DATE and DATE . They were adjourned at the request of the defendant ’s representative .

ORG heard the parties on DATE . Subsequently the parties submitted documentary evidence . Another hearing was held on DATE . In DATE and DATE the parties submitted further observations and evidence . ORG scheduled a hearing for DATE .

On DATE the Government informed the ORG that the proceedings were pending .


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

On DATE the applicant , as a member of the public , took part in a public hearing which was held before ORG ( Najvyšší súd ) in an unrelated matter . For his private use , the applicant intended to make an audio recording of the hearing . He was however forbidden to do so by the President of the ORG and subsequently lodged a complaint of the prohibition with ORG .

In a letter of DATE , in response to the applicant ’s complaint , the President of ORG observed that the applicant had had the chance of taking part in the hearing and thus of receiving information about the case . In his view the prohibition on recording had not injured the applicant ’s right to receive and impart information .

On DATE the applicant lodged a petition ( podnet ) under LAW § CARDINAL of the LAW with ORG ( Ústavný súd ) . He challenged the prohibition on recording and the response to his complaint about it and argued that they constituted a violation of his right to seek , receive and impart information guaranteed under LAW and CARDINAL of the LAW . The applicant also invoked LAW of LAW CARDINAL § CARDINAL of the Convention .

On DATE ORG found a violation of the applicant ’s above rights . In its finding ORG expressed the view that the right to seek , receive and impart information afforded legal protection also to the possibility of obtaining information actively . It was for each individual to decide how he would exercise the said right and whether , in exercising it , he would apply technical means of audio or video recording in order to store , process and disseminate the information obtained .

On the one hand it was true that taking measures in order to secure the orderly conduct of court proceedings was within the discretionary power of the president of the court ’s chamber . However , on the other hand , to forbid recording which did not disturb the course of the hearing would exceed such discretion . In the present case there was no indication or allegation that the applicant ’s intended recording would disturb the hearing . There was therefore a violation of LAW .

As to LAW , the Constitutional Court observed that its application in respect of recording court hearings had not yet been tested . The lacking Convention standard had therefore to be substituted by a domestic standard . ORG was of the view that there was accordingly a violation of LAW as well .

On DATE the applicant brought an action against ORG in the Bratislava I ORG ( ORG súd ) . On DATE the applicant provided further and better particulars through the intermediary of a lawyer who represented him from then on throughout the proceedings .

In reliance on ORG finding the applicant argued that the prohibition of recording was wrongful . He maintained that it had caused him nonpecuniary damage and claimed an amount of money by way of just satisfaction . The applicant based the claim alternatively on LAW ( Law no . PERSON . ) and on the provisions of LAW concerning protection of personal integrity . In the latter case the applicant also claimed an apology .

On DATE , following a hearing held on DATE , ORG dismissed the action . In so far as the applicant invoked LAW , it was held that it guaranteed no right to compensation in respect of nonpecuniary damage . As no pecuniary damage had been asserted , the relevant part of the action was unfounded . It was further held that liability for damage caused by erroneous official conduct was governed exclusively by LAW as the lex specialis . LAW as the lex generalis did not apply to it and the State did not have the standing to be sued under its provisions .

On DATE , following a hearing held on DATE , ORG ( PERSON súd ) upheld the part of the judgment of CARDINAL DATE concerning the dismissal of the action in so far as it had been based on LAW . It concurred with ORG view that the said legislation provided for no right to compensation in respect of nonpecuniary damage . ORG however quashed the contested judgment as being premature and lacking adequate reasoning in so far as it concerned the applicant ’s claim under LAW .

In a judgment of DATE ORG ordered that ORG apologise to the applicant for the violation of his rights found by ORG . It was held that the ORG , in the person of ORG , had the standing to be sued in the case . The prohibition of the recording constituted an interference with the applicant ’s personal integrity within the meaning of LAW , in particular with an element of his personal liberty . As found by ORG the prohibition was wrongful , and directly causally linked to the interference with the applicant’ ’s wishes . In view of these considerations and the fact that the applicant was involved as a private citizen and not as for example a journalist , the gravity of the interference was diminished . The applicant challenged the judgment by an appeal disputing the interpretation of the relevant legal rules by ORG . In particular , he maintained that his entitlement to financial compensation was sui generis , and that it was based on the violation of his fundamental right as such and that the requirement of “ diminishment of dignity or position in society ” therefore did not apply to his case .

On DATE ORG upheld ORG judgment of DATE fully endorsing its legal reasoning . No appeal lay against ORG judgment and it became final and binding on DATE .

On DATE the applicant who was represented by a lawyer lodged a complaint under LAW with ORG . He argued that he had not received a fair trial in the proceedings in his action of DATE in that the courts had failed to assess his claim for financial compensation in the light of all the relevant evidence . They consequently drew incorrect conclusions and arbitrarily dismissed the claim while failing to support the dismissal by an adequate reasoning .

On DATE the ORG sitting in camera pursuant to LAW of LAW ( Law no . CARDINAL/CARDINAL ORG . , as amended ) held a preliminary examination of the complaint following which it declared it inadmissible as being manifestly ill - founded . It was observed that the applicant was in fact challenging legal conclusions of general courts which did not correspond to his wishes and which ORG had no jurisdiction to review unless contrary to constitutional principles . No such contradiction had however been established .