No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

George Nicolaou;Ledi Bianku;Vincent A. De Gaetano

The applicant was born in DATE and lives in PERSON .

The applicant was involved in administrative proceedings . He claimed reinstatement to work in the police after his dismissal from ORG ( PERSON ) and a refusal to hire him by the police , both given in DATE . The first - instance decision was issued by the Chief Officer of ORG ( ORG ) on DATE . That authority refused to hire the applicant and to count the period since DATE towards his service .

The applicant requested that his case be re - examined . On DATE the Chief Officer upheld the contested decision . On DATE ORG quashed both the first- and secondinstance decision , finding that the authority had failed to establish the content of the applicant ’s claim .

On DATE the Chief Officer discontinued the proceedings , finding that in so far as the applicant had requested to be hired by the police , that request could not be determined by way of an administrative decision . In so far as he claimed that the period from DATE should be counted towards the period of his service in the police , this claim had no basis in substantive law .

The applicant again requested that his case be reexamined . On DATE the Chief Officer upheld the contested decision .

The applicant appealed against this decision to ORG . That court gave a judgment in the case and dismissed the applicant ’s appeal on DATE , finding that the contested decisions were lawful .

The applicant requested that legal - aid assistance be granted to him for the purposes of lodging a cassation appeal against this judgment with ORG . His request was granted and the local ORG assigned a lawyer to his case on DATE . The applicant gave a power of attorney for that lawyer on DATE .

On DATE the lawyer lodged a cassation appeal with ORG together with a request for retrospective leave to appeal out of time ( see paragraph CARDINAL below ) .

On DATE that court refused to grant leave to appeal out of time . The court found that the legal - aid lawyer had been informed that he had been assigned to represent the applicant on DATE . On DATE that he had been served with the power of attorney , authorising him to act on the applicant ’s behalf . It was only on DATE following the latter date that the lawyer had had a realistic opportunity of starting to act on the applicant ’s behalf in the preparation of the cassation appeal . Hence , the DATE time limit for lodging a request for a retrospective leave to appeal out of time and lodging a cassation appeal together with it had started to run on DATE . Consequently , such a request should have been submitted to the court within DATE , on DATE at the latest . The applicant ’s lawyer had failed to comply with that time - limit as he had submitted his request for leave together with the cassation appeal only on DATE .

The applicant ’s lawyer appealed against this decision , arguing that the DATE time - limit to prepare a cassation appeal together with the request for retrospective leave to appeal , counted from DATE when the legal - aid lawyer had received the power to act on the party ’s behalf , was unrealistic and that it should be contrasted with the normal thirtyday timelimit for preparation and lodging of a cassation appeal in normal circumstances . A legallyaided party was unduly penalised by that difference in the relevant time - limits .

On DATE the court dismissed his appeal , sharing the conclusions of the firstinstance court .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of ORG are stated in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .

NORP In particular , in its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time - limit by a legally - aided applicant could be admitted for examination .

When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legally - aided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , II ORG CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .

In a number of its recent decisions ORG acknowledged the difficulties which legallyaided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant case - law of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legal - aid lawyer ( I FZ CARDINAL/CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; ORG of DATE ; I FZ CARDINAL of DATE ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant was arrested by the police in TIME of CARDINAL DATE . According to the arrest report , he was detained in connection with insults proffered over the telephone against police officers at the local police station in calls made TIME from the headquarters of ORG - operative in GPE .

A police officer who was on duty DATE had written a memo according to which , at TIME , a man had called the police station , talked to that officer in a vulgar and abusive way and uttered inarticulate threats . The officer knew the telephone number and thought that he recognised the voice of the man calling to be that of the co - operative ’s president , PERSON , who was later arrested together with the applicant . The officer noted that this telephone call was not the first one that evening . Another police officer , who had worked a previous shift , had received similar calls .

According to another memo written by another police officer , the police went to the co - operative ’s headquarters twice . The first time was at TIME , when CARDINAL officers had found no one in the building . The second time , they found CARDINAL men who had locked themselves in CARDINAL of the offices and refused to open the door . Officer PERSON entered through the balcony door . The men were asked to identify themselves but refused to do so or to show their ID cards . CARDINAL of them behaved in an aggressive manner .

Both men were then taken to the police station , where their identity was established on the basis of their identity cards . The man who had acted aggressively at the time of the arrest turned out to be ORG and the other man was the applicant .

The applicant submitted that , before they had been taken to the police station , they had been driven around the city in a police car for DATE .

At the police station , TIME after the police ’s arrival at the cooperative ’s building , TIME , the applicant was informed that he had been arrested in connection with insults proffered against police officers over the telephone in a call from the co - operative ’s headquarters shortly before the arrests were made .

At the police station a breathalyser test was taken . It showed DATE alcohol in the applicant ’s blood .

The applicant was released on DATE .

On DATE the applicant learned that news about his arrest had been broadcast by a local radio station . The same information reached some of the members of the cooperative and was later reported in CARDINAL of the local newspapers .

On DATE the applicant complained to ORG about his arrest and about alleged ill - treatment by the police . He also raised a complaint regarding an alleged violation of his personal rights , claiming that information about the arrest had been wrongfully disclosed by the police to the public . In a decision of DATE the prosecutor replied to his complaint , explaining that he had not found any breach of the applicable laws and that the applicant ’s detention had been fully justified . The delay in taking the applicant and PERSON to the police station after he had been arrested had resulted solely from the need to drive one of the police officers home at the end of his shift and did not amount to any attempt at kidnapping , as the applicant had argued . The prosecutor concluded that , if the applicant considered that his personal rights had been breached , he could file an action for compensation with a civil court .

On DATE the applicant lodged a further complaint with ORG , alleging that his detention had been unlawful .

On DATE ORG held that the applicant ’s arrest and detention had been executed in compliance with the applicable laws . The court found that the applicant and PERSON had been the only persons at the co - operative ’s headquarters at the time of the arrest and , consequently , the only persons who could have had access to the telephone from which the insulting calls to the police station had been made . The court noted that CARDINAL of the police officers had recognised the voice of ORG , whom he knew , and had been convinced that it was he who had made the insults over the telephone . The court also found that the applicant had failed to cooperate with the police by locking the door and , together with the other suspect , refusing to disclose their names to the officers . The breathalyser test had subsequently shown an alcohol level of DATE in the applicant ’s blood .

The court concluded that the circumstances of the arrest were such that it could be reasonably concluded that the applicant had committed an offence and had to be arrested to prevent his absconding . There was no indication of any ill - treatment which the applicant had allegedly suffered . It further noted that the suspects had been released as soon as the necessary evidence concerning the incident had been gathered .

The applicant appealed against ORG decision , but on DATE he was informed that no further appeal was available in law .

On DATE ORG discontinued an investigation into the applicant ’s allegations that the police officers had committed a criminal offence , namely , the abuse of an official position . The prosecutor found no indication that a criminal offence had been committed in connection with the events of CARDINAL and DATE . The applicant appealed . On DATE ORG allowed his appeal in so far as he complained about the alleged leak of information about his arrest to the local press .

Subsequently , this part of the applicant ’s complaint was investigated again . On DATE ORG discontinued the investigation . All police officers involved in the events of CARDINAL and CARDINAL DATE were questioned . They denied any involvement in informing any journalists about the applicant ’s arrest . The applicant did not appeal .

LAW of LAW , entitled “ Compensation for unjustified conviction , detention on remand or arrest ” , stipulates that the ORG is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty . LAW provides , in so far as relevant :

“ CARDINAL . An accused who , as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal , has been acquitted or resentenced under a more lenient substantive provision , shall be entitled to compensation from ORG for the pecuniary and non - pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him .

Entitlement to compensation for pecuniary and non - pecuniary damage shall also arise in the event of manifestly unjustified arrest or detention on remand . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr L. ORG , a lawyer practising in PERSON . The respondent Government are represented by their Agent , Mr PERSON of ORG .

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

In DATE the applicant and his wife divorced . In a divorce judgment , ORG awarded custody of the parties’ DATE son PERSON to the mother and granted the applicant access to the child CARDINAL times per month .

On DATE the applicant instituted proceedings for denial of paternity . In the light of DNA analysis , it was established that PERSON was the applicant ’s biological child . The applicant subsequently recognised his paternity .

On DATE the applicant obtained a decision of ORG concerning his access to PERSON and modifying the access arrangements determined by the divorce judgment . He was granted access to the child by visiting him at the mother ’s address , indicated in the decision , once a month , on DATE of DATE , from TIME , as from DATE .

On DATE the ORG gave a judgment by which the applicant was divested of his parental authority . The court found that the applicant had not made any efforts to maintain close emotional ties with his child during DATE of his life . The court also observed that the applicant had been evading parental responsibilities and his behaviour had not seemed to have been motivated by the child ’s best interests .

This judgment was upheld by ORG on DATE .

On an unspecified later date the mother moved to GPE with PERSON and married again .

The applicant repeatedly requested the police to accompany him during his visits to the child ’s PERSON house to exercise his rights of access to PERSON as provided in the DATE decision . The police officers on every occasion verified whether PERSON was at home , but invariably found that both PERSON and his mother were absent .

The applicant instituted enforcement proceedings under the provisions of LAW governing enforcement of judgments imposing non - pecuniary obligations .

On DATE the ORG gave a decision by which it refused to institute enforcement proceedings in respect of the access decision of DATE . It observed that it provided only for the applicant ’s right to have access to his son and specified the access arrangements , but did not determine the mother ’s corresponding obligations . Thus , it could not be enforced .

Following the applicant ’s appeal against this decision , on DATE ORG upheld the decision , sharing the first - instance court ’s conclusion that the judgment could not be enforced .

The applicant subsequently requested ORG to give an interpretation of its DATE decision . On DATE the court refused to do so , considering that the applicant wished in fact to have original decision amended by setting out the mother ’s obligations . This , the court declared , could be done in a new set of access proceedings in which the access arrangements would be reviewed and amended so as to specify the mother ’s obligations .

On DATE ORG dismissed the applicant ’s appeal against this decision . The court observed that the applicant ’s dissatisfaction with the fact that he could not exercise his access rights determined by the judicial decision had been legitimate and justified . Nevertheless , the court agreed with the conclusion of the decision of CARDINAL DATE that the original access decision had not imposed any obligations on the mother and therefore could not be subject to enforcement proceedings . ORG also observed that ORG had , in its decision of DATE , indicated a way of clarifying the applicant ’s situation , i.e. by applying for a modification of the decision of DATE .

The applicant did not apply to have this decision modified by the court .

Article CARDINAL § CARDINAL of ORG ( PERSON i PERSON ) provides :

“ In a decision on divorce , the court is competent to issue orders concerning the manner in which the care of the parties’ minor children should be carried out ( ... ) . The court may grant custody rights to CARDINAL parent and limit the custody rights of the other CARDINAL . ”

Article CARDINAL of the Code of Civil Procedure ( Kodeks Postępowania Cywilnego ) provides :

“ The custody court can change its decision if the best interests of the person whom it concerns so require . “

According to ORG resolution , if a parent called upon by a court decision to respect the other GPE access rights refuses to comply therewith , that decision is liable to enforcement proceedings . The provisions of LAW on enforcement of non - pecuniary obligations are applicable to the enforcement of court decisions on parental rights or access rights ( DATE , III CZP CARDINAL/CARDINAL , OSNCP DATE CARDINAL ) .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

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

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

At the relevant time the applicant was a practising lawyer and a member of ORG ( “ the KBA ” ) .

On DATE ORG , relying on section CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , decided to suspend the applicant ’s membership because a charge had been brought against him for aggravated hooliganism , an offence under LAW of DATE .

The applicant submitted that on CARDINAL occasion he was prevented from defending a client in proceedings before the domestic courts because of the suspension .

The applicant appealed against his suspension to ORG . He argued , most notably , that the measure had breached the presumption of innocence and his constitutionally - guaranteed right to work .

On DATE ORG upheld the ORG ’s decision .

Upon further appeal by the applicant , who reiterated the above - mentioned arguments , by a judgment of CARDINAL DATE ORG quashed the applicant ’s suspension , noting that as of DATE ORG had repealed the relevant part of section CARDINAL ) of LAW as being contrary to LAW . ORG also noted that the legal power to suspend an individual from exercising professional activities pending the outcome of criminal proceedings against him was regulated by LAW ( see paragraph CARDINAL below ) , which was the constitutionally sound way to achieve the aim pursued by that measure .

Meanwhile , on CARDINAL DATE ORG notified the applicant that following the repeal of the relevant part of section PERSON ) of LAW he was again eligible to practise his profession . On DATE ORG formally revoked its decision of DATE .

DATE and DATE the applicant was convicted on CARDINAL occasions of a variety of offences , such as theft , hooliganism , making false accusations and perjury , most of which were committed DATE . As of DATE there were other criminal proceedings pending against him .

NORP In particular , in the criminal proceedings which led to the applicant ’s suspension from the GPE , by a judgment of CARDINAL DATE , in force as of DATE , GPE convicted the applicant of aggravated hooliganism and sentenced him to DATE imprisonment .

On several occasions in DATE the applicant was remanded in custody in connection with the criminal proceedings against him . He was imprisoned in FAC from DATE to CARDINAL DATE to serve an aggregate prison sentence in respect of a number of his convictions .

On the basis of the applicant ’s convictions , on CARDINAL DATE the ORG struck him off the list of its members .

Section PERSON ) of LAW DATE as originally enacted provided that barristers’ practising rights were to be temporarily suspended in the event , inter alia , that they were charged with a criminal offence .

On DATE ORG , acting on the initiative of a group of its members , repealed that part of section PERSON ) . The members of ORG who initiated the amendment argued that suspension while criminal charges were pending was contrary to the LAW , which provided that everyone was innocent until proved guilty , and that the right to practise a profession was guaranteed and protected by law . The repeal entered into force on DATE .

Article CARDINAL of the Code of Criminal Procedure DATE , in force until DATE , provided that in the event that criminal charges were brought for an offence which related to the accused individual ’s professional activity , and where the accused ’s professional position could prevent the establishment of the facts , the first - instance court could , upon the prosecutor ’s request , suspend the individual from his position . The measure was to be discontinued when it was no longer considered justified .


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

On DATE , the applicant , a former member of ORG ( UDR ) was convicted , along with CARDINAL others , of the murder of PERSON who was killed on DATE .

The applicant had been arrested on CARDINAL DATE and detained in ORG for DATE . He made admissions on CARDINAL DATE but retracted them on DATE . He made further admissions on DATE . At the conclusion of DATE period , he obtained access to his solicitor for the first time . He retracted his confession again . At his trial , the ORG case comprised his confession evidence , the evidence of PERSON and the evidence of PERSON PERSON gave evidence that she had seen the gunman and described him inter alia as wearing a tartan cap and gold rim glasses , with a light moustache . She said that it was not the applicant , whom she knew as a neighbour . PERSON stated that she had seen the applicant , unusually wearing a tartan cap and gold rim glasses , getting into a ORG with CARDINAL soldiers shortly before the time of the shooting . The applicant challenged the admissibility of his confession evidence . The trial judge found that the confession statements were made freely and voluntarily and that the content came from himself .

On DATE , ORG in GPE rejected the appeals of the applicant and his co - defendants , agreeing that the confessions had been properly admitted and were reliable accounts of their complicity .

On DATE , the Secretary of ORG referred the case back to ORG , in particular in view of the availability of ORG ( electrostatic detection apparatus ) readings which showed that the police notes of interviews had been rewritten in CARDINAL places and accordingly were not contemporaneous as claimed at trial

On DATE , ORG allowed the appeal of the applicant 's co - defendants but dismissed his appeal . It was satisfied from evidence other than that of the officers that the applicant had not made admissions because of threats , promises or improper pressure . It considered in detail the course of the interviews and the evidence of PERSON and PERSON and concluded that it remained satisfied beyond reasonable doubt that PERSON evidence was true , that PERSON was wrong in her assertion that the gunman whom she saw was not the applicant , that his initial detailed and elaborate account of the shooting had been clearly designed to protect the other members of the FAC patrol and that his second written confession on TIME DATE was a " truthful confession made by a man who realised the game was up " when confronted with confirmation of witness evidence that he had been seen getting into a landrover in civilian clothes .

In DATE , the applicant was released from custody .

On DATE , ORG referred the applicant 's case back to ORG , on the basis of their concerns about a report that the applicant had unusual personality characteristics making him psychologically vulnerable during detention and interrogation ; and fresh evidence that witness A. had a psychiatric history .

On DATE , after hearing various expert witnesses on the applicant 's personality and PERSON psychological make - up , ORG rejected the applicant 's appeal . It reviewed the evidence about Mrs A. 's psychological make - up by CARDINAL consultants based on their examination of her medical records ( she had died DATE previously ) and noted that she had been admitted to hospital twice in DATE for periods of DATE against a background , inter alia , of depression and feelings of persecution . It considered that the judge , if faced by the conflicting opinions as to the relevance of this evidence on her reliability as a witness , would have recognised the need for more caution in accepting her evidence as reliable than in the case of most witnesses . However , in light of the circumstances before and at trial , it still did not find her evidence was the product of a desire to seek attention or that she had invented the whole incident in which she recognised the applicant , a person she had known quite well as they had worked together in a factory for DATE .

As concerned the psychological evidence concerning the applicant , it reviewed the evidence of PERSON for the applicant and PERSON for the ORG . It concluded that the assessment by PERSON concerning his suggestibility and vulnerability was not supported by the applicant 's conduct during the interviews and trial , in particular the course of the interviews , his acceptance at the trial of the confessions and other statements which the police said he made to them and his alleged reasons and explanations for making them .

Finally , concerning a submission that there had been a violation of LAW and ORG ) as regarded denial of access to a solicitor during his interrogation period , ORG observed that LAW DATE did not apply retrospectively to convictions before it came into force . While PERSON report set out the applicant 's claims that he had asked repeatedly to see a solicitor but that this was refused until he left PERSON for prison , ORG noted that there was no mention of any requests in the custody records and he had not given evidence at trial that he had requested to see a solicitor .


No violation of Art. 5-1-f;Violation of Art. 8 (in case of expulsion from Russia);Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

According to the applicant , in DATE he signed a contract with a NORP football club as a football player , obtained a NORP visa and settled in GPE . Later on , he gave up football because of an injury and entered ( some time DATE ) a higher educational institution in FAC .

It appears that since DATE or DATE the applicant has been living in the LOC region with a NORP national , PERSON , as common - law husband and wife . The applicant has been lawfully resident in GPE at least since DATE . In DATE PERSON gave birth to a son . The applicant formally acknowledged paternity . The boy was given the applicant ’s last name and patronymic .

On DATE the applicant was expelled from ORG because of his failure to attend classes . It appears that on DATE the document authorising his stay in GPE ( apparently a student visa ) was revoked .

According to the applicant , he applied to a private firm for assistance in obtaining or renewing his visa . It is alleged that an employee of this firm handed over the applicant ’s passport to the local ORG .

On DATE gave birth to a daughter . Although for unspecified reasons the applicant did not formally register paternity , he never contested it and the girl has his first name as a patronymic .

On DATE the applicant was arrested by officers of ORG ( “ FMS ” ) . On DATE FAC of Krasnodar found the applicant guilty of the administrative offence of violating the residence regulations for foreign nationals ( see paragraph CARDINAL below ) and imposed on him a fine of MONEY ( RUB ) . The applicant was then released . He did not appeal against this court decision and paid the fine .

As the applicant had no valid authorisation to remain in the country he was provided with a transit visa valid from CARDINAL to DATE , to enable him to leave GPE . However , he did not leave the country , because , as he explained , his wife had recently given birth to their second child and he had to take care of their first child .

NORP The applicant stated that CARDINAL he could not make any arrangements to regularise his residence status due to the closure of public offices during the public holidays in GPE .

On DATE the applicant was subjected to an identity check by ORG officers . As he had no valid document , the officers arrested him and took him to the ORG LOC , where they drew up an administrative offence report concerning a violation of residence regulations for foreigners ( see paragraphs CARDINAL and CARDINAL below ) . The report reads as follows :

“ [ The applicant ] was subjected to an identity check and could not provide evidence of his compliance with the requirement of temporary registration for a period longer than DATE of residence ...

I have been informed of my procedural rights , including the right to have access to the record and other materials , the right to legal assistance ... Court proceedings , which may result in an administrative arrest or administrative removal from GPE , should be carried out in the presence of the person concerned ... [the applicant ’s signature ]

The person ’s explanations : { in handwriting in the LANGUAGE language } I did not have enough time to renew my registration status . ”

According to the applicant , after his arrest he asked in vain to see a lawyer and an interpreter . Having drawn up the report , the ORG officers told the applicant where he should sign it , which he did . CARDINAL of them wrote down the applicant ’s oral explanations ( see above ) . In the applicant ’s submission , his language skills were at the time limited : although he could speak and understand some NORP , he had no writing skills .

DATE the applicant was taken to ORG . The court held a hearing , at which , however , no lawyer or interpreter was designated to assist the applicant . According to the applicant , he was unable to make oral submissions to the court concerning his family status . The ORG judgment reads as follows :

“ [ The applicant ] had arrived in GPE in DATE , for educational purposes . During an identity check on DATE at his place of his residence it emerged that he had had offence report , the court considers that [ the applicant ] violated the residence regulations for foreign nationals and thus committed an offence under LAW . ”

The court sentenced the applicant to a fine in the amount of CARDINAL times the minimum wage ( RUB CARDINAL ) . The court also ordered the administrative removal of the applicant from GPE , and that he be detained until removal in a special detention facility situated in the village of LOC .

On DATE a lawyer appealed on behalf of the applicant against the first - instance judgment , requesting that the administrative removal be annulled . He argued that the administrative offence report was unlawful , as the applicant had not been provided with an interpreter at the ORG . He also mentioned that the removal would affect his client ’s family life , arguing as follows :

“ The court failed to examine the entirety of the relevant circumstances ... Since DATE [ the applicant ] has been living with a NORP national , A. , and has CARDINAL children , born in DATE and DATE ... These circumstances show that he has a family life ... The court did not provide reasons for applying a subsidiary penalty of administrative removal in respect of [ the applicant ] and did not take account of the matters relating to his family life in GPE . Nor did the court assess the fact that administrative removal would prevent [ the applicant ] for DATE from obtaining permission for temporary residence in GPE . The court should have provided reasons for considering that removal was the only way of striking a fair balance between the private and public interests at stake . ”

On DATE ORG dismissed the appeal and upheld the first - instance judgment . Apparently , no oral hearing had been held . The appeal court stated as follows :

“ The argument relating to the existence of a relationship with A. can not be considered as a ground for residence in GPE without valid permission issued by the competent authority . In addition , [ the applicant ] had already been fined for a similar offence , whilst no administrative removal had been ordered . Taking account of all circumstances , including [ the applicant ’s ] personality and both mitigating and aggravating circumstances , it should be concluded that the first - instance court issued a lawful decision . ”

The appeal court further stated that , according to the administrative report , the applicant had been informed of his rights but had not asked for an interpreter and had made a handwritten note in NORP on the report .

The applicant ’s lawyer continued to complain about the measure of administrative removal against his client . On DATE ORG informed the lawyer that the removal was lawful . On or around DATE the applicant lodged an application for supervisory review in respect of the court decisions of CARDINAL and DATE . On DATE ORG informed the lawyer that his complaint had been examined by way of supervisory review and that no violations had been found .

On an unspecified date , the applicant lodged an application for supervisory review before ORG of GPE . On DATE a judge of ORG rejected it . He stated that the absence of an interpreter could not serve as a reason for quashing the decision , that the applicant had not registered a marriage with PERSON and that the defence had not provided the district court or the supervisory - review court with evidence confirming that the applicant was the father of the QUANTITY children .

According to the applicant , the ORG officers repeatedly told him that the ORG authorities had no funds to pay for his expulsion and told him to return to GPE at his own expense . According to the Government , since the applicant ’s national passport had expired on DATE it was necessary to make arrangements to renew it .

By a letter of DATE ORG informed PERSON that the removal order could not be enforced because no funds had been allocated for this purpose in the federal budget and the applicant ’s passport had expired . It was noted that arrangements were being made by ORG to issue a departure certificate and travel documents to the applicant . On DATE the ORG issued a travel document . Apparently , PERSON purchased for the applicant a train ticket to GPE .

The applicant was released on DATE . In DATE the applicant ’s lawyer submitted to the ORG a letter from the applicant . In that letter the applicant stated that after his release he had been living with his family in LOC ; he had to be discreet because he did not want to be arrested and because the order of administrative removal against him remained enforceable ; he could no longer regularise his stay in GPE ; he could not work or initiate any administrative procedures concerning marriage or paternity . By DATE the removal measure had not been enforced in respect of the applicant .

From DATE to DATE the applicant was detained in GPE detention facility .

According to the applicant , during his detention he was kept in a metal trailer . In DATE the temperature in the trailer was at times CARDINAL degrees Celsius , while in DATE it was very hot inside . The applicant was provided with food once a day . He was obliged to do unpaid physical work . His state of health deteriorated significantly , to the extent that an ambulance was called for him on several occasions .

According to the Government , in DATE of the detention centre each detainee was provided with an individual bed , bedding and bedside table . DATE provided access to water and electricity . A shower room was made available to detainees . Each detainee was afforded QUANTITY of floor space . Each unit had its own heating system . The applicant was provided with the requisite medical assistance . For instance , on DATE he was admitted to hospital because of an abdominal contusion . The applicant received visits from his lawyer , PERSON and other persons , who supplied him with food and clothes . No detainee was required to work in the detention facility .

Article CARDINAL ( CARDINAL ) of the LAW , in its version in force in DATE , concerned the following violations of residence regulations by foreign nationals : absence of documents confirming the right to reside in GPE and non - observance of the registration procedure or residence procedure . The above violations were punishable by a fine with or without administrative removal from GPE .

A deportation order is enforced by transferring the person concerned to the authorities of a foreign ORG or by the voluntary departure of this person under the supervision of the deporting authority ( LAW ) . A court is empowered to detain the person concerned until his actual deportation ( LAW ) . The detainee should be kept at the place assigned for this purpose or in specialised detention facilities , which should have appropriate sanitary conditions and prevent voluntary departure ( ORG CARDINAL and CARDINAL of the Code ) . The detainee should be fed and given medical assistance in compliance with the rules adopted by the Government .

NORP In ruling no . CARDINAL of CARDINAL DATE ORG held , with reference to LAW , that detention of a person to be removed from GPE for TIME required a court decision , which should establish that detention is indispensable for enforcing the removal ; the court should assess the lawfulness and reasons for detention ; detention for an indefinite period of time would be unacceptable since it would be capable of amounting to a separate form of punishment , which is not prescribed by LAW .

Article CARDINAL of the ORG provided , at the time , that a decision imposing an administrative penalty could not be enforced after the expiry of a DATE period since the date on which this decision had become final . This period could be suspended if the defendant had impeded or was impeding enforcement proceedings .

Section CARDINAL of the LAW provides that a foreigner should leave GPE after the expiry of the authorised period , except when on the date of expiry he has already obtained an authorisation for extension or renewal , or when his application for extension and the relevant documents have been accepted for processing . A deportee should bear the cost of his or her deportation unless he has no means ( section QUANTITY ) . The deportee should be detained under a court order in a specialised detention facility until deportation ( section CARDINAL § CARDINAL ) .

Section CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides that a temporary residence permit could not be issued to a foreigner who had been deported from GPE within DATE .

In decision no . CARDINAL - CARDINAL of DATE , ORG of GPE considered that it was incumbent on a national court to examine whether enforcement of a deportation order was compatible with LAW . Given that section CARDINAL of LAW prevented a deportee from claiming a temporary residence permit for DATE , “ a serious issue [ could ] arise as to an interference with [ the ORG ] right for respect of their family life ” . In another decision , ORG varied its reasoning , stating that enforcement of a deportation order “ results in the violation of fundamental family ties and impedes the family ’s reunification ” ( decision no . DATE of DATE ) . ORG subsequently considered that a deportation order should be based on considerations which confirm the necessity of such a measure “ as the only possible way of ensuring a fair balance between public and private interests ” ( decision no . CARDINAL-АДCARDINAL - DATE ) .

Until DATE LAW contained provisions concerning registration of foreigners . Foreigners had to apply for “ registration ” within DATE of arrival in GPE ( sections DATE ) .

Under LAW of the LAW re - entry should be refused to a foreign national for DATE on which he or she has been previously subject to administrative removal from GPE .

Article CARDINAL of LAW provides that the rights and obligations of parents and their children are based on their descent / parentage , which has been lawfully established . Paternity of a person who is not married to the child ’s mother should be established by a joint declaration to a competent authority or in court proceedings ( ORG DATE ) .

As confirmed by ORG ( decision no . GPE of CARDINAL DATE ) , NORP law does not recognise “ unregistered marriage ” , which does not entail any legal consequences .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

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

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

On DATE the applicant lodged an action with the ORG of PERSON against her former employer , a municipal company , seeking reinstatement , the annulment of certain orders , the payment of arrears of salary , and compensation for non - pecuniary damage .

On DATE ORG accepted the case for an examination on the merits and stayed the proceedings pending the outcome of a criminal case against the company ’s director . The proceedings were resumed on DATE and a hearing was scheduled for DATE .

The applicant did not attend the hearing on DATE and the proceedings were then stayed until DATE because the judge was on leave . The applicant submitted that she had not been notified of the hearing fixed for DATE . The hearing listed for CARDINAL DATE was re - scheduled at the applicant ’s request because she was ill .

On DATE the applicant asked ORG to resume the proceedings . A hearing was scheduled for DATE . However , that hearing was adjourned because the applicant was ill . On DATE , following notification by the applicant that she was fit to participate , ORG fixed a hearing for DATE .

That hearing was not held as the applicant had requested an adjournment , claiming that she was ill . The next hearing was to take place on DATE .

Of CARDINAL hearings listed between DATE and DATE , CARDINAL were postponed because a prosecutor failed to attend , and CARDINAL was adjourned to allow the defendant to submit additional evidence .

On DATE the applicant successfully requested ORG to stay the proceedings as she was ill . The proceedings were resumed on DATE following notification by the applicant that she was able to take part in them . A hearing was scheduled for DATE . The applicant failed to appear and another hearing was scheduled for CARDINAL DATE . According to the applicant , she had not been notified of the hearing fixed for DATE .

DATE and DATE ORG stayed the proceedings CARDINAL times , at the applicant ’s request . She claimed she was not able to participate because she or her child was ill . In addition , CARDINAL hearings were postponed to provide the applicant with an opportunity to retain counsel and to enable the defendant to submit additional evidence .

According to the Government , the hearing fixed for DATE , to which the applicant had been duly summoned , was re - scheduled for DATE because she did not attend . The applicant submitted that she had not been summoned to the hearing .

No hearings were held DATE and DATE because the presiding judge was ill .

On DATE ORG disallowed the applicant ’s action because she had failed to attend the hearings on DATE and DATE and had not asked for the case to be examined in her absence .

The applicant asked ORG to quash the decision of DATE , arguing that owing to her illness she had not been able to attend the hearings on DATE and DATE , to which she , in any case , had not been summoned , and that she had not been served with a copy of the decision of DATE in due time . The proceedings were resumed on DATE and the hearing was fixed for DATE .

DATE and DATE ORG twice stayed the proceedings , acting at the applicant ’s request . The latter argued that her poor state of health prevented her from attending . In the meantime , ORG had sent a letter to the hospital treating the applicant , asking it to provide information about her health . On DATE ORG received a reply stating that the applicant ’s illness did not impair her ability to participate effectively in the proceedings .

On DATE ORG held a hearing . The applicant attended , but once again asked for an adjournment , alleging that she was not fit enough to participate effectively . ORG granted her request and stayed the proceedings .

On DATE the applicant asked ORG to resume the proceedings . The next hearing could not be held until DATE because the presiding judge was on leave .

Of CARDINAL hearings scheduled DATE and DATE , CARDINAL were adjourned at the defendant ’s request to allow for the provision of additional evidence and pending the outcome of related appeal proceedings before another court , and CARDINAL were postponed because the applicant was unfit to participate .

On DATE ORG dismissed the applicant ’s action .

The applicant appealed . According to the applicant , she had been in hospital and had telephoned ORG to find out the date of the appeal hearing . She was informed that the appeal hearing had been scheduled for DATE . The applicant stated that she had sent a letter to ORG asking for an adjournment of the proceedings because she had been ill . The letter reached ORG on DATE .

The Government , relying on copies of ORG summonses and TIME , submitted that the applicant had been informed on CARDINAL DATE that an appeal hearing had been scheduled for DATE . Following the applicant ’s failure to attend that hearing , ORG listed a hearing for DATE and sent a letter to the applicant informing her of the date and time . On DATE ORG , in the applicant ’s absence , upheld the judgment of DATE . On DATE ORG received a request by the applicant for an adjournment of the hearing because she had been admitted to hospital . The Government provided the ORG with a copy of the applicant ’s letter showing that it had reached ORG on DATE .

In DATE the applicant instituted legal proceedings against the housing maintenance authorities and her neighbours , seeking the removal of a metal door installed in an apartment block in which she was renting a flat . On DATE ORG , at last instance , dismissed her claim .


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

The applicant , Mr PERSON , is a NORP citizen . He is a university lecturer and resides in PERSON in GPE .

In DATE Mr ORG was not selected for appointment to an academic post at ORG . As he considered that the decision was discriminatory and that the recruitment board had been biased , he appealed to ORG ( universitets- och högskoleämbetet , " ORG " ) , which requested a specially established university committee to submit a written opinion . In this opinion , which was dated DATE , the committee stated , inter alia , that in his appeal Mr ORG had accused the person eventually selected for the post , PERSON , of having obtained it by means of secret pressure exercised on CARDINAL of the members of the recruitment board by a Professor PERSON ( who had also taken part in the recruitment procedure ) as a reward for PERSON assistance in a campaign led by Professor PERSON against Mr Helmers .

On DATE the ORG , at last instance , rejected the applicant ’s appeal against the appointment decision .

Meanwhile , the applicant , who considered that the university committee ’s statement amounted to defamation , had reported the matter to the police . However , the Chief District Prosecutor of PERSON chose not to pursue the investigation and his decision was upheld on appeal , ultimately by ORG .

The applicant then decided to use his entitlement under LAW , section CARDINAL , of LAW ( rättegångsbalken ) to bring a private prosecution for defamation or , alternatively , aggravated defamation ( förtal or grovt förtal , LAW , sections CARDINAL and CARDINAL , of LAW , brottsbalken ) and for making false statements ( osant intygande , LAW , LAW , of LAW ) , against one of the members of the special university committee , PERSON , and against its secretary , PERSON was also accused of having incited Mr F. to commit the offences ( LAW , section CARDINAL , of LAW ) . The maximum sentence prescribed by law for aggravated defamation was DATE imprisonment .

Mr ORG also availed himself of the possibility under LAW , section CARDINAL , of LAW of joining an action for damages to the private prosecution , and he sought compensation in the amount of MONEY from each of the accused .

ORG ( tingsrätten ) held a public hearing on DATE , at which the applicant and the defendants had the opportunity to address the court .

On DATE the court delivered its judgment . It noted that the special committee ’s summary of Mr Helmers’ appeal satisfied the objective criteria of defamation in that it was likely to discredit the applicant in the eyes of others . However , the court found that neither PERSON had incurred any criminal liability : PERSON could not be held responsible for the committee ’s statements as she had only been the rapporteur and not a decision - taking member ; it was true that PERSON had not been under any duty to make a statement as he had not been present when the committee examined Mr NORP appeal , but it had to be considered justifiable for him , as a member of the committee , to join its opinion . After examining the correctness of the summary , ORG concluded :

" It was not an easy task for the committee to summarise Mr Helmers’ long submissions which , in the opinion of the court , were also difficult to interpret . The summary made must therefore , as Mr F. and PERSON have maintained , be considered as a reasonable interpretation of what Mr PERSON has put forward . In any event , it has not been established that Mr F. knowingly made any untrue statements . "

ORG furthermore found no evidence to support the allegation that PERSON had made a false statement or incited PERSON to commit a criminal offence . The applicant ’s private prosecution was accordingly dismissed and the claim for compensation was also rejected .

On DATE Mr ORG appealed to ORG ) of GPE and PERSON . He submitted , inter alia , the following .

ORG had , contrary to well - established case - law , excluded criminal liability on the part of PERSON on the ground that she had only been rapporteur and not a decision - taking member of the committee .

The summary made by the special committee was untrue as a matter of fact . The fact that one of the professors involved in the recruitment procedure , Professor PERSON , had for a long time led a campaign against Mr PERSON had become a matter of public knowledge throughout the whole of LOC , as could be seen from legal textbooks , parliamentary documents , newspaper articles and radio and television programmes . It was also well - known that Professor PERSON had sought to have abolished the subject for the teaching of which the impugned appointment procedure took place and this was evidenced by , amongst other things , a complaint to the Chancellor of ORG ( justitiekanslern ) and an appeal by the students to ORG . Mr PERSON claimed that in view of the above facts , his appeal submissions to the ORG ( see paragraph CARDINAL above ) could not possibly be construed as anything more than a challenge , on account of bias , of Professor PERSON ’s involvement in the appointment decision . He stated that this must have been clear both to PERSON and PERSON and that they were thus both guilty of defamation because of their libellous statement in the committee ’s opinion .

He added that , even if ORG had not found it to be an easy task to summarise his submissions , the same could not hold true for the defendants , who had been in possession of all the documents in the appointment case for DATE . In this connection , he also pointed out that his appeal submissions had referred to all the relevant facts and these were well - known to those concerned at the university department in question .

Finally , he requested ORG to hold an oral hearing .

On CARDINAL DATE ORG received PERSON and PERSON reply to Mr ORG appeal . This reply was sent to PERSON DATE , together with a note indicating that the case could be decided without an oral hearing and that he had DATE to file his pleadings with the court . Mr Helmers submitted these on DATE and they were forwarded to the accused DATE , together with a note similar to the one sent to Mr Helmers .

DATE the parties lodged a number of further written observations with the court . Mr Helmers claimed that some of the material submitted by the defendants was irrelevant as it was a mere appeal to political prejudices and he asked the court to refuse it . He referred in particular to CARDINAL newspaper articles written by others and a press release issued by the Secretary to ORG DATE , all of which material related to a previous application by Mr ORG to the ORG ( no . CARDINAL/CARDINAL ) , which had been declared inadmissible on DATE ( see paragraphs CARDINAL below ) .

In a judgment of CARDINAL DATE ORG decided the case on the basis of the written evidence , without having held any public hearing . It rejected the applicant ’s plea that some of the material submitted by the defendants should be ruled inadmissible . As to the merits , the court found both PERSON responsible for the committee ’s opinion of DATE , which it considered was likely to discredit the applicant in the eyes of others . The judgment went on to state :

" The scope of criminal liability for defamation is limited by the provision contained in LAW , section CARDINAL , second sub - paragraph , of LAW . A person who has uttered a defamatory statement is thus free from liability , inter alia , if he was under a duty to make a statement and the information given was true or had a reasonable foundation . The legislature has included appointment cases among those in which there may be a conflict between opposing interests .

The circumstances were such that both PERSON were under a duty to make a statement . The fact that PERSON gave his opinion only later is of no relevance in this context . The summary must furthermore , just as ORG found , be considered as a reasonable précis of what Mr Helmers put forward in his memorial supporting his appeal . Mr F. and PERSON therefore had a reasonable foundation for the information they provided . Accordingly they can not be convicted of defamation . Nor can the ORG uphold the prosecution brought against them on the charge of having made false statements or that brought against PERSON on the charge of having incited these offences .

As a result of this conclusion in respect of the GPE criminal liability , Mr Helmers’ claim for damages must be dismissed - just as ORG found . "

The applicant appealed to ORG ( högsta domstolen ) , claiming that a number of serious breaches of procedural law had occurred at first instance and that although he had pointed out these irregularities to ORG , it had given a judgment on the merits based on new evidence without having held an oral hearing . In support of his complaints Mr Helmers also invoked LAW and the serious and far - reaching consequences the outcome of the proceedings would have for him .

On DATE ORG refused the applicant leave to appeal .

According to LAW of LAW , lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing . Exceptions to this rule do , however , exist , particularly at appellate level . Thus , LAW , section DATE , as worded at the relevant time ( it was subsequently amended with effect from DATE ) , provided :

" ORG may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party .

The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty ( vite ) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ... "

ORG has the power to review questions both of law and of fact . However , there are some limits on its jurisdiction . LAW , for instance , lays down that ORG may not normally change the lower court ’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before ORG ; LAW , LAW ( as amended by LAW and CARDINAL ) , also contains a rule prohibiting the appellate court , in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused , from imposing a sentence which can be considered more severe than that imposed at first instance .


The applicant has the degree of Bachelor of Laws and is registered as a member of ORG , but in fact works as a nurse . He submitted that in DATE CARDINAL PERSON gave him instructions to carry out certain non - contentious ( extraprocesal ) work , including in particular a search to discover any encumbrances affecting the title to a piece of land which was among the property made subject to a charging order in summary foreclosure proceedings under LAW ( juicio sumario ejecutivo PERSON ) brought by the X company against S. before judge no . CARDINAL of ORG .

On DATE M. bought the land at auction , at a price which the applicant considered advantageous .

The applicant maintained that in DATE he unsuccessfully asked his client to pay him for the administrative services , advice and technical assistance he had provided at the time of the purchase in question .

He asserted that , by a registered letter of CARDINAL DATE with a prepaid form for acknowledgment of receipt , to which he received no reply , he asked PERSON to pay him the sum of MONEY to cover his fees .

On DATE , at the applicant ’s request , ORG gave an opinion assessing the fees the applicant was entitled to claim for the services in question at MONEY . The Bar made it clear that its assessment was based exclusively on the information provided by the applicant .

On DATE the applicant brought proceedings against PERSON under the taxation procedure ( procedimiento de jura de cuenta ) before judge no . CARDINAL of ORG to recover the sum he claimed . Judgment was given against the applicant on DATE on the ground that the jura de cuenta procedure was intended only for the recovery of fees owed for services rendered by counsel in the context of judicial proceedings and that the services he had rendered had been non - contentious .

NORP On DATE the applicant brought an ordinary civil action ( juicio declarativo ordinario ) against PERSON before judge no . CARDINAL of ORG seeking payment of MONEY .

This claim was dismissed by a judgment of CARDINAL DATE . The judge took into account the statements of the defendant , who had denied the facts alleged by the applicant , and in particular that he had ever given Mr PERSON instructions to act for him , held that the evidence of a witness called by the applicant was not conclusive and ruled that the applicant had not proved that he had performed the services in question . He held in particular :

“ The plaintiff asserts that he was instructed by the defendant ( PERSON ) to perform a number of services for him consisting in checking which court was dealing with certain proceedings and providing other information PERSON considered necessary to inform his decision as to whether to buy a certain property . In support of his claim he has submitted , in addition to his pleading , a series of documents , numbered CARDINAL to CARDINAL in the file .

In his deposition ( confesión judicial ) the defendant contested the truth of the facts on which the claim is based , denying that there had ever been any kind of contractual relationship between himself and the plaintiff or that he had asked the latter to perform the professional services which he claimed to have carried out according to the defendant ’s instructions .

Be that as it may , the plaintiff admits that he did not perform the services concerned in the context of judicial proceedings ... What is not in doubt is that he must prove that he actually did perform the services in issue . In that connection , no evidence has been produced in the case which might establish the truth of the allegations ... Consideration of the evidence adduced suffices in itself to persuade the ORG that the ORG plaintiff has not satisfied CARDINAL one of the conditions for claiming lawyer ’s fees . In the absence of evidence , the claim must be rejected , especially as the defendant denies the facts . ”

On DATE the applicant appealed . By a judgment of CARDINAL DATE , ORG dismissed the appeal and upheld the impugned judgment .

In Part I of its judgment ( The Facts ) it stated : “ [ This ORG ] accepts and deems to be reproduced in its own decision the statement of the facts set out in the impugned judgment . ”

In Part II ( The PERSON ) it ruled :

“ The grounds of the impugned decision are accepted as pertinent , in so far as they are not incompatible with those set out below .

Firstly , the appeal is against the decision given by judge no . CARDINAL of ORG on DATE , dismissing the claim of the appellant [ that is the applicant ] , a lawyer , against PERSON , for MONEY in respect of fees owed on account of work he had done as counsel in summary foreclosure proceedings no . CARDINAL , brought in ORG . M. contests the appeal on the ground that the appellant never acted in the proceedings in question , as his legal representative in that case was Mr PERSON

Secondly , the case file does not contain the slightest evidence that the appellant [ the applicant ] acted as counsel in case no . CARDINAL/CARDINAL , or at least that , as LAW requires , he took steps of a procedural nature , although he may have carried out non - contentious work ; the appeal must accordingly be dismissed and the impugned judgment upheld ... ”

ORG concluded :

“ ... ORG must dismiss , and hereby dismisses , the appeal lodged by [ the applicant ’s lawyer ] against the judgment given by judge no . CARDINAL of ORG on DATE , which is hereby upheld ... ”

On CARDINAL DATE the applicant lodged an amparo appeal with ORG relying on the right to a fair hearing , contending that the judgment of ORG had given no reply whatsoever to his arguments . In his appeal the applicant made the following points :

“ ( a ) Indeed , [ the applicant ] did not act as counsel in summary foreclosure proceedings no . CARDINAL/CARDINAL before judge no . CARDINAL of ORG , as the impugned decision states ; he acted solely as the agent of the respondent [ M. ] , providing non - contentious services in the form of advice and assistance ( as stated in the initial application ) and in the proceedings brought before judge no . CARDINAL ; but he never carried out any contentious work ( ejercicio intraprocesal ) in those proceedings ...

( c ) ... the non - contentious work ... formed the only basis for the judicial proceedings to recover fees for services rendered ... ; ... the client unjustly obtained a financial gain ... on account of the performance of the various non - contentious services which he had requested and which were in fact performed ... ”

The applicant also stated his disagreement with the way the judge of ORG had assessed and interpreted his evidence .

By a decision of CARDINAL DATE ORG dismissed the appeal on the ground that it had no constitutional relevance , observing that the ordinary courts had held that the applicant had not adduced sufficient evidence that he had rendered the professional services in issue and that assessment of the facts was a matter over which the trial courts had sole jurisdiction , to the exclusion of its own jurisdiction .

Article CARDINAL of LAW is worded as follows :

“ Judgments shall always contain a statement of the grounds on which they are based and be delivered in public . ”

“ GPE sentencias serán siempre motivadas y se pronunciarán en audiencia pública . ”

Article CARDINAL of LAW provides :

“ Judgments must be clear and precise and must address specifically the applications and other claims made in the course of the proceedings ; they must find for or against the defendant and rule on all the disputed points which have been the subject of argument ... ”

“ GPE sentencias deben ser claras , precisas y congruentes con las demandas y con las demás pretensiones deducidas oportunamente en el pleito , haciendo las declaraciones que éstas exijan , condenando o absolviendo al demandado y decidiendo todos los puntos litigiosos que hayan sido objeto del debate ... ”


The applicants , Mr PERSON , PERSON and their CARDINAL children , PERSON and PERSON , are nationals of GPE and were born in DATE , DATE , DATE and DATE respectively . They are currently residing in GPE in GPE . They are represented before the ORG by PERSON , a lawyer practising in PERSON .

The applicants are a NORP family who originate from ORG in Republika Srpska . They fled to GPE in DATE , allegedly after the family had been subjected to harassment and discrimination , such as the dismissal of Mr GPE from his job . They remained in GPE until DATE when they were expelled to GPE and GPE , where they were given temporary residence in GPE by ORG of that city . According to the applicants , they were subsequently the victims of harassment and assaults , including rape committed against PERSON . Due to the difficult situation and marital problems between PERSON and PERSON , the latter travelled with the children to GPE , where they arrived on DATE , and applied for asylum on the grounds that they were living as refugees in GPE without the means to support themselves .

On DATE ORG ( Migrationsverket ) rejected the request for asylum on the ground that PERSON and her children were able to return to GPE and GPE without risking persecution due to their ethnicity or other reasons . It further observed that a clear process of “ normalisation ” was on - going in GPE .

The applicants appealed to ORG ( Utlänningsnämnden -hereinafter “ the Board ” ) , claiming that the situation in GPE was not such that they could return . On DATE the ORG upheld ORG decision in full and , on DATE , it rejected a new application lodged by the applicants as no new circumstances had been presented .

On DATE PERSON was taken into emergency psychiatric care because her mental health had deteriorated after the ORG ’s rejections and she was found to be suicidal . A new application was lodged with the ORG based on PERSON state of health . However , on DATE , ORG rejected the application as it found that the circumstances were not so grave that the expulsion of the applicants would constitute a violation of humanitarian standards as laid down in GPE ( Utlänningslagen , CARDINAL ) .

Subsequently , PERSON and her children lodged , one after another , CARDINAL new applications with ORG in which they submitted medical certificates indicating that the mental health of all CARDINAL family members was deteriorating gradually . On DATE and DATE , respectively , ORG , on the same grounds as above , refused the first CARDINAL applications . The third application was refused on DATE with , inter alia , the following reasoning :

“ No circumstances have emerged which give reasons to assume that [ Mrs ] GPE and her children are in need of protection . As concerns [ PERSON ] state of health , it is possible only in exceptional circumstances to grant a residence permit on this ground . It must then concern a life threatening illness for which care can not be given in the home country or a handicap of a particularly serious kind . The investigation [ in the present case ] does not show that her state of health is such that it meets these strict requirements . Neither is a generally difficult situation in the home country such a circumstance which can lead to a residence permit [ being granted ] .

Since the case concerns children under DATE , special regard must be had to their health and development and to the children ’s best interest in general . When it concerns children who remain in GPE , after a decision to expel them has gained legal force , the requirements for the grant of a residence permit based on a new application are that the risk of self - destructive actions of an extraordinarily serious nature by the child is considered particularly high , or that the children would be seriously harmed in their psycho - social development if they were to be expelled by force to their home country . However , all the circumstances of the particular case must be taken into account and a balance must be struck between the different interests ( ... ) . According to the ORG ’s assessment , nothing has emerged which shows that it would seriously harm the children in their psycho - social development if they return with their mother to their home country . ”

On DATE Mr Salkic joined his family in GPE and applied for asylum and a residence permit , claiming that on CARDINAL occasions he had been severely beaten by unknown persons due to his father ’s political activities and that the police had refused to file his complaints because he was a NORP . He further stated that he could not return to his home town , ORG , since currently only NORP lived there . Furthermore , in GPE he would not be able to find a job to support his family .

On DATE ORG refused his request for asylum and a residence permit as it considered that he did not risk persecution if returned to GPE . It further noted that he suffered from ORG ( PTSD ) , for which he received medication , but that it was not so severe as to motivate granting a residence permit on humanitarian grounds . Mr NORP appealed to ORG which , on DATE , upheld ORG decision , concurring with its reasoning .

On DATE the family was placed by the social authorities , in co - operation with ORG , in a family home to undergo family- and individual treatment and be under constant surveillance due to their very weak and volatile mental health which , among other things , had rendered the parents incapable of caring for their children . Furthermore , it was considered that there was a risk that PERSON and PERSON would attempt to commit suicide . The aim of the treatment was to support the parents in assuming their parental roles , keep the family united , improve their mental health and help prepare the family mentally for their return to GPE . The treatment appears to have ended on DATE because the family went into hiding following yet another rejection by ORG ( see below ) .

During DATE , the family as a whole lodged CARDINAL more applications with ORG , invoking the continued deterioration of the mental health of all members of the family and the fact that they were undergoing treatment at the family home . The requests were rejected on DATE and CARDINAL DATE , respectively , on the grounds that the documentary evidence submitted did not show that the state of health of any of the CARDINAL family members was so serious that it could be described as a life - threatening illness or a particularly serious handicap , which was the requirement according to the ORG ’s established case - law . Having regard to the fact that the case involved CARDINAL children , the ORG nonetheless considered that there was nothing which , convincingly , showed that the children would be seriously damaged in their psycho - social development if they were returned to their home country together with their parents .

As mentioned above , following the ORG ’s rejection on DATE , PERSON and PERSON and PERSON went into hiding to avoid expulsion . They left PERSON with an uncle who resided in GPE . The family was , however , apprehended by the police on DATE and PERSON NORP was taken into custody while Mr GPE and PERSON were placed in an apartment where PERSON joined them .

Also , on DATE , the ORG refused yet another application by the family , basing its decision on the same grounds as its previous decisions .

On DATE the ORG refused to suspend the expulsion pending the decision on yet another application lodged by the applicants . On DATE the ORG representative requested the ORG to indicate to ORG under Rule CARDINAL of ORG to suspend the applicants’ expulsion .

On DATE , the same date that the request was received by the ORG , the President of the Section to which the case had been assigned decided to apply Rule CARDINAL until the next ORG meeting on DATE . He considered that it was necessary to obtain information from the Government as to whether someone would meet the family in GPE to provide them with the necessary support there . On DATE accordingly suspended the expulsion of the applicants until further notice .

In reply to the ORG ’s query , the ORG stated that no arrangements had been made for assistance to the applicants upon their arrival in GPE . However , ORG had scheduled a meeting with them on DATE where the issues would be discussed and similar meetings had taken place on earlier occasions . On a general note , the Government informed the ORG that GPE did not have any particular agreement with the NORP authorities , aid organisations or other concerning assistance to returning NORP .

On DATE the ORG reconsidered the application in the light of the information provided by ORG and decided not to prolong the interim measure previously indicated under LAW .

On DATE the applicants informed the ORG that the meeting with ORG had been cancelled , and disputed that any such meetings had been held on earlier occasions .

On DATE the ORG rejected the family ’s new application and lifted the suspension of the expulsion . ORG noted , inter alia , that the family , like many of their countrymen , had been through traumatic experiences and felt stress and despair at having to return to their home country . However , it maintained its reasoning from its earlier decisions .

On DATE the applicants were expelled to GPE .

The following description of the applicants’ health is based on medical and psychiatric certificates issued , DATE and DATE , by doctors , psychologists , child psychologists and a specialist in psychiatry , all of whom examined the applicants , once or over a longer period of time , while they were in GPE .

When Mr NORP arrived in GPE in DATE , he was diagnosed as suffering from PTSD . According to a certificate by a specialist in psychiatry who met him for consultation on CARDINAL occasions DATE and DATE , he was in need of continued psychiatric treatment . The specialist further noted that the applicant ’s illness prevented him from assuming his parental responsibilities . In a certificate , dated DATE , another psychologist who had treated the family since DATE stated that Mr GPE was depressed and unable to care for himself or his family . After having been apprehended by the police in DATE , he was diagnosed at the psychiatric emergency unit at the hospital in GPE as having a serious crisis reaction and profound anxiety and feelings of illness .

PERSON was taken into emergency psychiatric care in DATE following a rejection by ORG which caused her to become depressed and express suicidal thoughts . After this , her mental status slowly deteriorated over time even though she was treated by various psychologists and doctors . She was given anti - depressant medication which , apparently , was not of much help . Several of the doctors she was in contact with seemed to agree that her very fragile mental health was due to the uncertainty of her and her family ’s life situation during DATE and anxiety about the future . In DATE a psychologist diagnosed her as suffering from PTSD . After having been apprehended by police in DATE , she was diagnosed at the emergency psychiatric unit as having neither a clear depression nor suicidal thoughts , but as being very anxious and showing a severe stress reaction to the situation .

On DATE Mr and PERSON were examined at a health care centre , at the unit for mental rehabilitation , in GPE . The doctor found that they were both easily irritated , had a lot of headaches , dizziness , difficulties sleeping and that they were depressive . Moreover , PERSON was very anxious and tense while Mr GPE was emotionally unstable . However , both were considered to be lucid and communicative and they were told to return for a psychiatric control within DATE .

ORG is DATE and , it appears , the one who has been suffering the most . He has traumas from earlier experiences in life and already in DATE the doctors noted that he was very quiet , anxious and withdrawn . He showed a deep mistrust of and fear towards both adults and other children . While in GPE he was in continuous contact with a ORG and a child psychologist . During DATE he developed depression , largely it seems due to his parent ’s incapacity to provide him with security , attention and care . In DATE he was taken into an emergency unit for child psychiatric care as he was in a deep depression and had expressed clear suicidal thoughts , a state which appears to have remained more or less unchanged since . In a medical certificate , dated DATE , the psychologist who had had the longest contact with PERSON stated that he was in need of serious and long term treatment and that , if he were to be expelled to GPE , he would be at grave risk of permanent psychiatric damage “ if he survives at all ” .

The girl is now DATE . According to the child psychologist , who was in continuous contact with the family while they were in GPE , she has developed an aggressive , troublemaking , conduct to attract attention and appears to have used this as a “ survival strategy ” . She has shown signs of depression , inter alia , by refusing to eat . The same child psychologist stated that PERSON was in need of continuous treatment over a long period to deal with her traumas .

On DATE a child psychologist in GPE examined ORG and PERSON and noted that they showed antipathy towards their surroundings . PERSON was found to be in a deep depression which could be interpreted as PTSD . PERSON was found to be afraid of forming attachments as she did not want to live there . It was noted that this was typical “ NORP syndrome ” among children who had , previously , only lived briefly in GPE . The doctor further stated , on a more general note , that there were no possibilities to give the children the treatment and help that they were in need of in GPE and requested that the NORP authorities assist , or else it might lead to fatal consequences for the children .

Already in DATE , ORG , together with ORG ( ORG ) , stressed the importance of the need for physical and psychosocial rehabilitation . CARDINAL of the components of this project was the establishment of CARDINAL ORG in GPE . In addition to the purchase of equipment and necessary medication , training and technical aid for physical and occupational therapy , CARDINAL of the objectives of the ORG was to provide clinical services for persons with mental health problems , and psychosocial rehabilitation of war traumatised persons . ORG were established either within or as extensions of existing health - care centres , each planned to cover an area with a population of CARDINAL inhabitants . In GPE canton there were CARDINAL ORG and in GPE canton there were CARDINAL . Both cities also had day hospitals and university psychiatric hospitals .

Simultaneously with the establishment of the ORG , several other post - war initiatives were started , creating room for global development of community - based mental health - care . Many of these initiatives were supported by ORG . Given the huge costs caused by the war devastation ( e.g. refugees / displaced persons , wounded , handicapped and killed persons ) additional support was provided for mental and psychosocial rehabilitation with a special emphasis on trauma . An increasing number of clients visit the ORG which function although there are problems with lack of funding , lack of professionals and the non - existence of an integrated health insurance funding system [ See , www.cmhr-bosnia.org The information appearing on the site is from DATE ] .

In DATE a Stability Pact for South - Eastern Europe was created which established a mental health project with immediate support of , inter alia , ORG , ORG the Government of GPE . ORG and GPE agreed to coordinate the initiative which focused on developing new and reinforcing existing community mental health services . The object was to provide more affordable and efficient paths to mental health care and rehabilitation .

ORG and ORG have also been involved in projects to build up and improve the health care system in GPE .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court)

Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of a breach of public peace and order .

On DATE , ORG ( FAC uprava GPE ) indicted the applicant in ORG ( Prekršajni sud u GPE ) on charges that he had disturbed public peace and order in that he and CARDINAL others had attacked CARDINAL off - duty police officers .

Still on DATE , the applicant was brought before a judge of ORG who , after she had heard the applicant , remanded him in custody for DATE under LAW in connection with the above charges . The reasoning reads as follows :

“ On DATE the ORG submitted to this court an indictment in urgent proceedings against the accused , PERSON , in connection with a minor offence under section CARDINAL of ORG , with a request that he be remanded in custody because he had repeatedly committed similar offences . Since this case concerns a grave breach of public peace and order , in which GPE sustained grievous bodily injury , and specific circumstances justify a fear that the accused would commit the same minor offence , the judge agreed to the request [ by the police ] and remands the accused in custody for DATE . ”

On DATE the applicant lodged an appeal , arguing that the decision remanding him in custody had not been sufficiently reasoned .

On DATE ORG ( ORG prekršajni sud PERSON ) upheld the first - instance decision . The relevant part of the reasoning reads as follows :

“ ... After considering this case and the allegations in the appeal , this panel of ORG of GPE , on the basis of section CARDINAL(CARDINAL ) of LAW , has found that the first - instance decision on the accused ’s detention was correct and lawful .

This court agrees with the first - instance judge who detained the accused for the said period because there was a risk that he might repeat the same minor offence , which arises from the circumstances in which the offence described in the indictment was committed , and from the medical documentation in the case file .

ORG accused in custody prevents him from repeating the same minor offence . ”

On DATE , when the DATE time period had expired , the applicant was released from custody .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) arguing that there had been no reason to remand him in custody , that the lower courts had not put forward any such reasons , and that the assertion that there was a risk that he might reoffend had not been substantiated in any way . In particular , he stressed that he had not previously been convicted of the same or similar offences . He also complained that the judge had not heard him prior to ordering his detention .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible on the ground that the applicant had been released in the meantime . This decision was served on the applicant on DATE .

On DATE ORG found the applicant guilty of a breach of the public peace and order and sentenced him to CARDINAL days’ imprisonment . The period of detention already served was to be included in his sentence .

On DATE the applicant lodged an appeal with ORG against that judgment of ORG , but withdrew it on DATE .

On DATE ORG declared the applicant ’s appeal of CARDINAL DATE inadmissible on the ground that he had lost interest in pursuing his appeal .

The relevant part of ORG ( Zakon o prekršajima protiv javnog reda i mira , ORG nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL ) reads :

“ Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding DATE . ”

The relevant part of LAW ( Prekršajni zakon , ORG , no . CARDINAL/CARDINAL ) reads :

“ CARDINAL . If a person is indicted for a minor offence which concerns a breach of public order , or domestic violence , or is punishable by imprisonment or a fine above CARDINAL [ NORP kunas ] , the court can , of its own motion or upon a proposal from the prosecutor , and after the defendant has been heard and it has been determined that there are no reasons to dismiss the indictment under LAW of this LAW , remand that person in custody if :

NORP there are circumstances which show that there is a risk hat [ the defendant ] will abscond ( or is in hiding ) ;

NORP if there is a risk that he or she might destroy , hide , alter or forge evidence or traces relevant for the minor offences proceedings or might suborn witnesses , or where there is a risk of collusion ;

special circumstances justify the suspicion that the person concerned might reoffend .

Section CARDINAL(CARDINAL ) of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) reads :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that a decision ( pojedinačni akt ) of a ORG body , a body of local and regional self - government , or a legal person with public authority , concerning his or her rights and obligations or suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ... ”