Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1

András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants , PERSON ( “ the first applicant ” ) , PERSON PERSON ( “ the second applicant ” ) , PERSON ( “ the third applicant ” ) , Mr PERSON Kržić ( “ the fourth applicant ” ) , Mr PERSON ( “ the fifth applicant ” ) , Mr PERSON ( “ the sixth applicant ” ) , PERSON ( “ the seventh applicant ” ) , PERSON Rosić ( “ the eighth applicant ” ) , Mr PERSON ( “ the ninth applicant ” ) , Mr PERSON ( “ the tenth applicant ” ) , Mr Milan Vukelić ( “ the eleventh applicant ” ) , PERSON PERSON ( “ the twelfth applicant ” ) , Mr PERSON ( “ the thirteenth applicant ” ) , Mr LOC ( “ the fourteenth applicant ” ) , Mr PERSON ( “ the fifteenth applicant ” ) , Mr PERSON ( “ the sixteenth applicant ” ) , PERSON ( “ the seventeenth applicant ” ) , PERSON ( “ the eighteenth applicant ” ) , Mr ORG ( “ the nineteenth applicant ” ) , Mr PERSON ( “ the twentieth applicant ” ) , Mr PERSON ( “ the QUANTITY applicant ” ) , Mr PERSON ( “ the QUANTITY applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , PERSON PERSON ( “ the DATE applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , Mr PERSON ( “ the CARDINAL applicant ” ) , PERSON PERSON ( “ the DATE applicant ” ) , Mr PERSON ( “ the thirtieth applicant ” ) and Mr PERSON ( “ the CARDINAL applicant ” ) are all NORP nationals .

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

The applicants were all members of ORG ( GPE sindikat inženjera vazduhoplovstva ORG ) .

Following a strike , on DATE their union and their employer , ORG , concluded an agreement whereby the latter accepted to pay all union members a certain benefit while the former promised to discontinue the strike and refrain from any legal action .

On DATE the Director General of ORG , a public corporation founded by the respondent ORG , ordered that the necessary calculations be made and the payment of the benefit be effected immediately .

NORP Since this decision would appear not to have been implemented , on DATE the applicants , as part of a group of CARDINAL persons , filed a single civil claim against ORG with ORG ( PERSON opštinski sud ) in GPE , seeking payment of the benefit in question ( ranging from CARDINAL up to approximately CARDINAL , “ ORG ” , respectively ) .

The total number of plaintiffs subsequently dropped to CARDINAL . ORG thereafter decided to separate the proceedings for each of the remaining plaintiffs , and ordered them to re - submit their individual claims . The plaintiffs , including the applicants , complied .

Certain applicants were successful before ORG ; others were not . However , all the applicants were unsuccessful at second - instance before ORG in GPE whose decisions they received on the following dates :

- the first applicant on DATE ;

- the second applicant on DATE ;

- the third and fourth applicants on DATE ;

- the fifth applicant on DATE ;

- the sixth applicant on DATE ;

- the seventh applicant on DATE ;

- the eighth applicant on DATE ;

- the ninth applicant on DATE ;

- the tenth applicant on DATE ;

- the eleventh applicant on DATE ;

- the twelfth applicant on DATE ;

- the thirteenth applicant on DATE ;

- the fourteenth applicant on DATE ;

- the fifteenth applicant on DATE ;

- the sixteenth applicant on DATE ;

- the seventeenth applicant on DATE ;

- the eighteenth applicant on DATE ;

- the nineteenth and DATE applicants on CARDINAL DATE ;

- the twenty - first and CARDINAL applicants on DATE ;

- the twenty - second applicant on DATE ;

- the CARDINAL applicant on DATE ;

- the CARDINAL applicant on DATE ;

- the CARDINAL applicant on DATE ;

- the CARDINAL applicant on DATE ;

- the CARDINAL applicant on DATE ;

- the DATE applicant on DATE ;

- the thirtieth applicant on DATE ; and

- the CARDINAL applicant on DATE .

In its reasoning in the applicants ' cases , ORG held , inter alia , that the Director General of ORG had not been authorised to grant payment of the benefit at issue in the absence of an explicit governmental authorisation .

In another CARDINAL separate cases , for the same reasons , ORG also ruled against the plaintiffs .

NORP However , in CARDINAL other judgments , rendered DATE and DATE , ORG decided in favour of the applicants ' colleagues , notwithstanding the fact that their claims were based on the same facts and concerned identical legal issues . In its reasoning in these other cases , ORG explained , inter alia , that ORG had had to comply with the agreement of CARDINAL DATE , as well as the decision of its Director General of DATE .

On DATE ORG adopted a “ legal opinion ” ( pravno shvatanje ) affirming the reasoning described at paragraph CARDINAL above .

On DATE the applicants filed a request urging ORG to proceed in accordance with LAW see paragraph CARDINAL below ) , that is to seek guidance from ORG ( PERSON ) on how to deal with a large number of cases , including their own , wherein ORG had already ruled inconsistently .

On DATE ORG rejected ORG request made to this effect on DATE . In so doing , it noted , inter alia , that Article CARDINAL was inapplicable because in a number of cases at issue ORG had already ruled as the final instance , and stressed that it was up to the said court to harmonise its own case - law .

On DATE ORG ( ORG ) rejected the motion for abstract review ( inicijativa za ocenu zakonitosti ) filed by ORG , requesting to have the agreement of CARDINAL DATE and the Director General 's decision of CARDINAL DATE declared unlawful . The court explained that it had no jurisdiction ratione materiae given that the impugned documents could not be qualified as general acts ( opšti akti ) within the meaning of LAW ( see paragraph CARDINAL below ) .

In the meantime , ORG lodged several separate counterclaims against the applicants , seeking that the said agreement and the Director General 's decision be declared null and void . Ultimately , however , all of these claims would appear to have been rejected on various procedural grounds .

CARDINAL of separate cases such as the applicants ' seem to be still pending at first or second instance .

Article CARDINAL § CARDINAL of the LAW provided , inter alia , that everyone “ shall be entitled to the equal protection of his or her rights in a suit before a court of law ” .

This LAW was repealed in DATE , which is when LAW , published in ORG no . CARDINAL , entered into force .

NORP The relevant provisions of the LAW read as follows :

“ Everyone shall have the right to ... [ a fair hearing before a ] ... tribunal ... [ in the determination ] ... of his [ or her ] rights and obligations ... ”

The Constitutional Court shall decide about :

the compliance of general acts [ opštih akata ] adopted by organisations exercising delegated public powers ... with the LAW and the laws .

“ A constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed . ”

“ The Constitutional Court shall have CARDINAL judges who shall be elected or appointed for DATE .

CARDINAL judges of the Constitutional Court shall be elected by ORG , another CARDINAL shall be appointed by the President of the Republic , and another CARDINAL shall be appointed at the general session of ORG ...

ORG shall elect CARDINAL judges of ORG from among CARDINAL candidates proposed by the President of the Republic , the President of the Republic shall appoint CARDINAL judges of ORG from among CARDINAL candidates proposed by ORG , and the general session of ORG shall appoint CARDINAL judges from among CARDINAL candidates proposed at the general session by ORG and ORG . ”

“ The Constitutional Court shall adjudicate by the majority of votes cast by all judges of ORG . ”

In accordance with LAW the LAW shall be deemed constituted when CARDINAL of the total number of judges have been elected or appointed .

The relevant provisions of this LAW read as follows :

“ The decisions of the Constitutional Court shall be final , enforceable and binding . ”

“ The Constitutional Court shall have its Rules of Procedure ... which shall regulate , in greater detail , the organisation ... [ and the functioning of ORG ] ... as well as the proceedings ... [ before it ] ... ”

“ ... [ T]he ORG shall have a Registry .

The organisation , the tasks , and the functioning of the Registry shall be regulated , in greater detail , by ... ORG . ”

“ A constitutional appeal may be lodged against an individual decision or an action of a ORG body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the LAW , if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law .

A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant 's right to a trial within a reasonable time . ”

“ A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the LAW has been violated or denied by an individual decision or an action of a ORG body or an organisation exercising delegated public powers . ”

“ A constitutional appeal may be lodged within DATE of receipt of the individual decision or the date of commission of the actions ... [ in question ] ... ”

“ When ORG finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by LAW , it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time .

The decision of ORG accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body , in accordance with the law . ”

“ ... [ An applicant who has obtained a ORG decision in his or her favour ] .. , may lodge a compensation claim with ORG in order to reach an agreement in respect of the amount ... [ of compensation to be awarded ] ...

If ORG does not rule favourably in respect of a compensation claim or fails to issue a decision within DATE from the date of its submission , the applicant may file a civil claim for damages before the competent court . If only partial agreement has been achieved , a civil claim may be filed in respect of the remainder of the amount sought .

The composition and operation of ORG shall be regulated by the Minister of Justice . ”

“ A constitutional appeal may also be lodged against ... [ the individual decision or action in question ] ... if this decision ... [ has been adopted ] ... or this action has been undertaken between the date of promulgation of the LAW and the date of entry into force of this LAW . ”

... [ In this case a constitutional appeal may be lodged ] ... within DATE as of the date of entry into force of this Act ”

“ The Constitutional Court shall , within DATE as of the date of entry into force of this Act , adopt its Rules of Procedure and ... [ further regulate the organisation and functioning of its Registry ] ... ”

The Minister of ORG shall , within DATE as of the date of entry into force of this Act ... [ regulate the composition and the operation of ORG ] ... ”

These Rules , inter alia , contain the necessary details as regards the processing of appeals lodged with ORG .

LAW and LAW on its implementation were both promulgated in DATE .

By DATE CARDINAL of the total number of ORG judges had been elected or appointed ( see paragraph CARDINAL above ) .

LAW entered into force on DATE .

The Rules of Procedure of ORG , published in ORG no . CARDINAL , entered into force on DATE . Minor textual corrections thereof were published in ORG no . CARDINAL of DATE .

By DATE ORG had considered CARDINAL appeals alleging individual human rights violations , and had found breaches in CARDINAL of cases concerning , inter alia , access to court , detention , length of proceedings , and various procedural fairness issues ( see http://www.ustavni.sud.sr.gov.yu/sudska_praksa/uzalbe.php ) .

The first decisions on the merits of the appellants ' complaints , including the very first decision establishing a violation of the LAW , had been adopted on DATE ( ibid . ) , and were published in ORG no . CARDINAL of DATE .

Where appropriate , ORG had , in a number of cases , quashed decisions adopted by the lower courts , as well as ORG , ordered that the excessively protracted judicial proceedings be concluded as soon as possible , and held that financial compensation for the damage suffered by the appellant had been warranted .

By CARDINAL DATE ORG had awarded damages in CARDINAL cases where ORG had already found a violation and held that adequate compensation was called for .

Article CARDINAL § CARDINAL provides , inter alia , that all parties shall be entitled to the equal protection of their rights .

Article CARDINAL provides that when a court 's decision in a pending suit rests on the prior resolution of a preliminary legal issue , the court itself may rule on this issue , as well as the main claim , unless the relevant legislation provides otherwise . The court 's decision as regards the preliminary issue , however , shall only be legally binding in respect of the ongoing judicial proceedings .

Article CARDINAL provides , inter alia , that , in principle , legal costs and expenses shall be divided proportionately between the parties , based on the measure of their success in the proceedings . Should a party lose the case entirely , that party shall be obliged to pay all the legal costs and expenses incurred .

Article CARDINAL provides that when there are many cases pending at first instance raising the same preliminary legal issue , the court of first instance shall , either ex officio or at CARDINAL of the parties ' requests , be entitled to institute separate proceedings before ORG , petitioning the latter to resolve the issue in question . The lawsuits pending at first instance shall be stayed in the meantime .

Articles CARDINAL § CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL provide that the Public Prosecutor shall , ex officio or in response to a party 's specific proposal , within DATE , have the right to lodge a ORG against a final civil court decision , should it transpire that the decision in question was “ based on the parties ' unlawful dispositions ” ( nedozvoljeno raspolaganje stranaka ) , i.e. those undertaken in breach of the “ binding provisions of domestic law , public order or the rules of morality ” ( prinudni propisi , javni poredak i pravila morala ) . Should the Public Prosecutor refuse to lodge a request of this sort , the party who had urged him to do so shall , within DATE , have the right to file its own ORG with ORG .

Article ORG provides that a case which has been concluded by means of a final court decision may be re - opened , at the interested party 's request , if the preliminary legal issue , within the meaning of LAW , was subsequently resolved in a different manner by the competent State body . Article CARDINAL further provides that a case may be re - opened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .

This Act entered into force in DATE , thereby repealing LAW DATE .


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE the applicant divorced .

On DATE she lodged with ORG ( Sąd Rejonowy ) a claim for division of matrimonial property consisting of a family house in GPE and a right to a flat in a housing - co - operative in GPE .

DATE and DATE , ORG scheduled CARDINAL hearings , CARDINAL of which were adjourned and CARDINAL expert report was obtained .

On DATE the court issued an interim order ( zarządzenie tymczasowe ) securing the applicant ’s claim . On DATE the defendant appealed against the making of the order . On DATE the court amended its order .

At a hearing held on DATE the ORG gave a preliminary decision ( postanowienie wstępne ) on the parties’ respective shares in the matrimonial property .

The applicant and the defendant appealed on DATE and DATE , respectively .

On DATE ORG ( PERSON ) amended the preliminary decision and dismissed the defendant ’s appeal . His cassation appeal was rejected on DATE on procedural grounds .

On DATE the court ordered that an expert report be obtained . The report was submitted on DATE .

On DATE the court held a hearing .

On DATE the court ordered that the third expert report be obtained .

At a hearing held on DATE the applicant ’s lawyer made a friendly - settlement proposal . The court stayed the proceedings .

On DATE ORG resumed the proceedings and delivered a partial decision ( postanowienie częściowe ) in the case , concerning the composition of the matrimonial property . The defendant appealed against this decision . On DATE ORG rejected the defendant ’s appeal .

The proceedings are still pending .

On DATE the applicant lodged with ORG a complaint under LAW on 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 ” ) .

She sought a ruling declaring that the length of the proceedings before ORG had been excessive and an award of just satisfaction in the amount of MONEY ( ORG ) ( approx . CARDINAL ( ORG ) ) .

On DATE ORG dismissed her complaintin the part alleging . , to ORG . The court observed that the proceedings had indeed been lengthy but it was the applicant ’s husband who had been responsible for the delay in examination of the case . The court categorically stated that ORG was not responsible for the protracted length of the proceedings .

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


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in NORP .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZTi .

On DATE the applicant instituted civil proceedings against ZTi in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained .

On DATE and CARDINAL DATE the applicant lodged preliminary written submissions .

On DATE and DATE he made requests that a date be set for a hearing .

Of the CARDINAL hearings held on DATE and on DATE , neither was adjourned at the request of the applicant .

During the proceedings , the court appointed a medical expert .

At the last hearing , the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) .

On DATE the court dismissed the applicant ’s appeal .

The judgment was served on the applicant on DATE .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant bought a store together with a plot of land from ORG ( plot A ) .

As the owner of the above real estate , as well as of plots B and C , ORG was burdened with a landed servitude ( lični realni teret ) in favour of third persons , requiring their life - long maintenance ( doživotno izdržavanje ) .

On the basis of the above contract , however , the servitude in question , being tied , inter alia , to plot A , was partly transferred to the applicant as its new owner .

On DATE the applicant and ORG concluded a court - certified amendment to the contract of DATE . ORG thereby accepted to reimburse the applicant for any payments made in connection with the said servitude . This entitlement was itself constituted as a separate landed servitude ( easement , stvarni realni teret ) tied to plots B and C and established in favour of the applicant as the current owner of plot A , as well as any future owners thereof .

On DATE the applicant filed a request with ORG nepokretnosti ) in ORG , seeking registration of his easement .

On DATE ORG rejected the applicant ’s request , stating that the registration sought could not be granted in view of the relevant domestic law .

On DATE the applicant appealed against this decision .

On DATE the applicant supplemented his appeal with an expert opinion provided by a well - known domestic legal expert , according to whom the applicant ’s entitlement of CARDINAL DATE was an easement and , as such , had had to be registered by ORG . The expert , retained by the applicant , further noted that the rights of the third persons in question remained unaffected , thus implying that their consent was not needed .

On DATE the legal branch of ORG ( ORG geodetski zavod - sector za pravne poslove ) confirmed the impugned decision of ORG . It stated that the applicant had not offered any proof that the third persons in question had agreed to the arrangement reached on DATE and DATE . It also noted that no judicial review by means of an administrative dispute was possible .

Both ORG and ORG are administrative authorities and , as such , part of the respondent ORG ’s executive branch of government .

Articles CARDINAL , CARDINAL § DATE provide that this Act shall regulate , inter alia , the registration of specified real estate - related legal entitlements , including landed servitudes ( realni tereti i službenosti ) . Such entitlements shall be deemed constituted upon their registration .

Article DATE provides that registration of such entitlements may , inter alia , be granted on the basis of a legally valid contract .

Article CARDINAL § CARDINAL provides that no judicial review , by means of an administrative dispute , of a registration - related decision issued by ORG shall be possible .

Article CARDINAL provides , inter alia , that a landed servitude shall be deemed constituted upon its registration , i.e. entry in the relevant land register ( modus acquirendi ) .

Article CARDINAL § CARDINAL provides that all second instance decisions issued in accordance with “ this Act ” shall be subject to judicial review by means of an administrative dispute .

This Act entered into force on DATE , thereby repealing LAW DATE .

Article CARDINAL provides that final administrative decisions granting certain rights or imposing certain obligations may be annulled , cancelled or amended only in situations envisaged by this LAW . ORG clarified that this provision implies that only administrative decisions granting certain rights or imposing certain obligations may be considered final ( Uvp II CARDINAL of DATE ) .

Articles CARDINAL - CARDINAL set out the details as regards the possible recusal of civil servants who are authorised to decide in individual administrative matters .

Articles CARDINAL provides that a civil servant ( državni službenik ) shall be obliged to act in accordance with the LAW , the applicable legislation and the rules of his profession , as well as to adhere to the principles of impartiality and political neutrality . A civil servant shall further , in the course of his work , desist from expressing or asserting any political beliefs .

Article CARDINAL provides that civil servants shall be accountable for the legality , quality and efficiency of their work , respectively . No one shall be allowed to influence them in the performance of their duties .

Article CARDINAL provides , inter alia , that a civil servant shall be obliged to execute a verbal order issued by his superior except if he considers that the order in question is contrary to the law or the relevant professional rules or that its execution may “ cause harm ” . A civil servant shall be obliged to execute a repeated written order of his superior issued to the same effect . He shall , however , be obliged to refuse the execution of a verbal or a written order whose execution would amount to a punishable offence . In a situation of this kind the civil servant in question shall be obliged to report the entire matter , by means of a written submission , to his authorised supervisor .

Articles DATE , CARDINAL and CARDINAL - CARDINAL provide details as regards the recruitment of civil servants as well as the termination of their employment . Article CARDINAL § CARDINAL provides that civil servants shall , in principle , be employed on a permanent basis .

This Act entered into force on DATE , thus repealing earlier legislation regulating the status of civil servants .

Relevant sections of this report read as follows :

“ Pending the adoption and full implementation of new laws , the NORP administration remains overstaffed but at the same time suffers from a shortage of qualified personnel and undue political interference , which affects both institutional and policy continuity .

In the context of the reform strategy , ORG adopted the ... Law on Public Administration and ORG ... ”

“ CARDINAL.CARDINAL.CARDINAL . Public administration

The legal framework providing for public administration reform ( ORG ) is largely in place in GPE and administrative capacities are generally well developed , in particular at central level . A Strategy for ORG was adopted by the Government in DATE and supplemented by an Action Plan covering the period DATE ...

The implementation of the Strategy is making slow progress ...

ORG .. [ , ] adopted in DATE , regulates the position of employees in the public administration . The PERSON was subsequently amended to establish educational requirements for civil servant posts , aimed at increasing professionalism and reducing the risk of political influence and nepotism ... A significant number of appointments for senior civil servant positions are still pending . Selection procedures are not applied uniformly and , in the absence of criteria for final recruitment decisions , managers still have excessive discretionary powers when choosing candidates from lists prepared by the ORG selection panels . Competence and professionalism in appointments at management and lower levels in the administration need to become the rule ...

A ORG was established in DATE , in charge of ... internal advertising and public competitions for non - management jobs ... and overseeing the general professional training programme for civil servants . A Strategy for the professional training of civil servants for the period DATE was adopted in DATE ... However , only a small percentage of civil servants , and in particular a very small percentage of managers , takes part in this training . Induction training is not provided . ”


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings

The applicant company , “ ORG ” ( hereinafter “ the applicant ” ) , is a joint venture enterprise , based in the town of GPE in GPE , GPE .

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

The applicant manufactures goods using recycled scrap metal purchased in GPE , bearing a PERCENT VAT rate . The major part of the applicant ’s production is exported from GPE at a CARDINAL LOC rate . The applicant is thereby entitled to a refund of the VAT due on the price of the scrap metal . Under the Law on Value - Added Tax ( see the Domestic Law part below ) such a refund should be made within DATE period following the applicant ’s submission of the relevant calculations to the local tax administration . If the refund is delayed , compensation is payable . Both payments ( the refund and compensation ) are made by ORG upon the submissions of the relevant tax authority .

NORP Since DATE , the VAT refund to the applicant has been systematically delayed due to the failure of ORG to confirm the amounts involved . For the same reason , the applicant could not receive compensation for the delayed GPE refund .

Since DATE , the applicant has complained to ORG and ORG about the failure of ORG to issue certificates for the VAT refunds on time . However , these authorities found no illegalities in the actions of ORG , whilst recognising the existence of the ORG ’s debts to the applicant .

The applicant also complained to ORG and ORG , without any result .

In its letter of DATE , the applicant claimed that further obstacles had arisen in running its business , including new discriminatory legislation , transport controls by the police , and judicial proceedings against its employees for defamation instituted by ORG .

Since DATE , the applicant has instituted a number of proceedings , CARDINAL so far , in ORG against ORG and ORG in order to receive compensation for the delayed refund of the VAT .

In the proceedings during DATE , the applicant requested the court to oblige ORG to confirm the amounts of compensation due to the applicant . The court found for the applicant and ordered the tax administration to issue the requested confirmation for the amounts claimed .

In the proceedings during DATE , the applicant changed the subject of its claim and requested the courts to award it the amounts of the ORG refund and compensation directly . ORG and ORG both opposed the claims ; the former on the basis of an alleged lack of competence in ORG refunding , the latter on the basis of the impossibility of refunding any GPE without prior confirmation of such an amount by ORG . The court found for the applicant and awarded the claimed amounts in its decisions DATE . It confirmed the applicant ’s right to compensation for the various delayed ORG refunds .

The court decisions given DATE were executed within periods ranging from DATE to DATE and DATE . The oldest decision that remained unenforced in DATE , according to the applicant , was given on DATE .

In its further correspondence , the applicant maintained that ORG claimed that the court decisions given in its favour should not be directly enforceable , but would require the prior confirmation of the awarded amounts by ORG .

On DATE the applicant lodged a claim with ORG against ORG of ORG and ORG for their refusal to enforce the judgments rendered by the said court in DATE and DATE ( see the annex ) and for a proposal to convert the amounts awarded by the above judgments into loan bonds with a DATE term .

On DATE the court found for the applicant and ordered the defendants to enforce the impugned judgments .

The applicant maintained that , as of DATE , the amount of the ORG debt to the company confirmed by court decisions was UAH CARDINAL ( around EUR CARDINAL ) .

The collection and refunding of value - added tax ( ORG ) is regulated by ORG . LAW provides that both the sale of goods in GPE and the export of goods from GPE are subject to taxation . Under LAW law , the former is taxed at a PERCENT rate , whereas the latter is taxed at PERCENT .

NORP The procedure to establish the amount of NORP due or to be refunded is regulated by Articles CARDINAL and CARDINAL , which provide as relevant :

“ CARDINAL . The procedure to establish the amount of tax to be paid into the budget or to be used as compensation from the budget , and the terms of settlements within the budget

The amount of tax to be paid into the budget or refunded from the budget shall be determined as the difference between the total amount of tax obligations , which commence with any sale of goods ( works , services ) within the reporting period , and the amount of tax to be credited during the reporting period .

Payment of the tax shall be made not later than DATE that follows the reporting period .

The tax payer shall submit a tax declaration to the local body of ORG tax services ...

CARDINAL.CARDINAL.CARDINAL . Where ... the amount determined by subparagraph CARDINAL of this LAW is negative , it shall be refunded to the tax payer from the ORG budget of GPE within DATE following the reporting period . ...

Amounts that are not so refunded to the tax payer ... shall be considered a budget debt . Interest at PERCENT of the basic rate of ORG shall be charged on that debt from the moment it arises and for the whole period of its validity , the repayment date inclusive . The tax payer is entitled at any moment after commencement of the budget debt to apply to a court with an action to collect the budget funds and establish the liability of the officials responsible for the untimely refund of overpaid taxes . ...

CARDINAL.CARDINAL.CARDINAL . Amounts of value - added tax are included in the ORG budget and shall first be used for budget refunds of value - added tax according to this PERSON . ... Where the amount of budget receipts obtained from the payment of value - added tax ... does not cover the amount subject to refunding ... , funds from other [ ORG budget ] resources ... shall be used for such compensation . ...

A tax payer that performs export operations ... and files calculations for export compensation ... may receive such compensation within DATE from DATE of submitting such calculations . ...

Export compensation shall be provided within DATE , following DATE of the filing of export compensation calculations .

In case the tax payer fails to submit the calculation of export compensation within the established terms , export compensation shall not be provided and the amounts of such compensation shall be taken into account when calculating the tax payer ’s future tax obligations ... Calculations of export budgetary compensation shall be submitted together with the declarations for the corresponding reporting period . ”

According to the Procedure for the Refund of Value Added Tax , adopted by the joint decree of ORG of GPE and ORG of ORG of GPE No . CARDINAL on DATE , the ORG refund is made by ORG of GPE on the basis of a confirmation by the tax authorities or a court decision . The ORG refund shall be made within DATE after the tax authority has submitted the confirmation of the amount claimed .


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

The applicant was born in DATE and is currently residing in GPE . He is an officer in ORG .

On DATE Mr PERSON filed a criminal complaint against the applicant , stating that in DATE the latter , in his capacity as officer , had forced CARDINAL recruits to give him money . On DATE , however , PERSON withdrew his complaint , considering that the ORG version was not credible .

In an order of CARDINAL DATE , the PERSON investigating judge committed the applicant for trial , commencing on DATE before the Cosenza ORG on a charge of extortion .

A number of hearings took place . They were postponed either by reason of legitimate impediment of the applicant , or because of witnesses’ absence , or finally because of lawyer ’s strikes . On DATE the CARDINAL recruits were examined . On DATE and CARDINAL DATE , PERSON and CARDINAL other witnesses were examined .

In a judgment of CARDINAL DATE , filed with the registry on DATE , the Cosenza ORG acquitted the applicant . This decision became final on DATE .


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

The facts of the case , as submitted by the applicant and as they appear from the documents , may be summarised as follows .

The applicant ’s company and another company ( “ T ” ) were business partners . Following an application by the applicant ’s company to that effect , T ’s assets were seized by ORG ( maistraatti , magistraten ) decision in DATE . T appealed . The seizures were upheld by ORG ( hovioikeus , hovrätten ) decision of CARDINAL DATE .

However , in separate civil proceedings , ORG ( käräjäoikeus , tingsrätten ) of GPE , by its decision of CARDINAL DATE , lifted CARDINAL of the seizures . By its judgment of CARDINAL DATE , ORG ruled in favour of the applicant ’s company , ordering T to pay compensation .

On DATE ORG upheld the judgment and overturned ORG decision of CARDINAL DATE , i.e. it ordered that T ’s assets be seized .

Subsequently , ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal . The date of the decision is unspecified , but the decision was referred to in a judgment of DATE by ORG of Espoo .

Following an application of DATE by a company ( “ TM ” ) , owned by the owner of T , winding - up proceedings were instituted against the applicant ’s company before ORG of Helsinki . As TM did not pursue its application , the case was removed from the docket on DATE . This data allegedly remained in the credit information index .

The business of the applicant ’s company dropped , allegedly due to the fact that winding - up proceedings had been instituted against it . Subsequently , on DATE , the applicant himself lodged an application with ORG that his company be wound - up .

On DATE the applicant and others commenced an action for damages against CARDINAL counsel , among others , who had represented T and TM in the above - mentioned proceedings .

By its judgment of DATE ORG of Espoo , having held several hearings and heard witnesses , rejected the action .

The applicant appealed . According to ORG judgment , he filed CARDINAL supplementary submissions during the period from DATE to DATE . He also requested that ORG hold an oral hearing . On DATE ORG , without an oral hearing , rejected the applicant ’s appeal .

On DATE ORG refused the applicant leave to appeal .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violations of Art. 13;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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

On DATE the applicant was arrested on suspicion of drug trafficking .

On DATE the applicant was charged under LAW with the unlawful purchase and possession of QUANTITY grams of opium . On DATE the Prosecutor of the Voroshilovskiy District of GPE - on - PERSON remanded the applicant in custody . The Prosecutor referred to the applicant ’s criminal record and the risk of his committing other crimes .

On DATE the applicant was also charged under ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL , and CARDINAL § CARDINAL of LAW with kidnapping , unlawful entry into a home and extortion . The case was joined to the case concerning drug trafficking .

On DATE , DATE and CARDINAL DATE the applicant ’s detention was extended until DATE , DATE and DATE respectively , in accordance with LAW . Consideration had been given to the gravity of the charges against the applicant and information about his personality , including his criminal record .

On DATE the prosecution dropped the charges of kidnapping , unlawful entry into a home and extortion for lack of proof .

On DATE the supervising prosecutor approved the bill of indictment and the case against the applicant was sent to ORG of PERSON - on - PERSON for trial .

On DATE ORG of PERSON - on - PERSON convicted the applicant under LAW and sentenced him to DATE imprisonment . On an unspecified date the conviction became final . The case file contains no further information as to when the applicant completed his sentence .

On DATE the Prosecutor of the Rostov Region quashed the decision of CARDINAL DATE , and on DATE the charges under ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL , and CARDINAL § CARDINAL of LAW were again brought against the applicant . The prosecutor , having considered the applicant ’s criminal record and the gravity of the charges , decided that he should be detained pending trial .

On DATE , DATE , DATE and DATE the applicant ’s detention was extended until DATE , DATE and DATE and DATE respectively . Each time , consideration was given to the applicant ’s criminal record , the gravity of the charges against him and his active role in a gang .

On DATE the case against the applicant was sent to ORG for trial .

On DATE the Rostov ORG scheduled the opening date of the trial and ordered that the preventive measure “ should remain unchanged ” in accordance with Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure .

On DATE the Rostov ORG convicted the applicant and sentenced him to DATE months’ imprisonment taking into account that he had not fully served a sentence handed down by the judgment of DATE . On DATE , however , ORG of GPE quashed the judgment on appeal and remitted the case for a retrial . ORG held that the preventive measure applied to the applicant “ should remain unchanged ” .

On DATE the Rostov ORG scheduled the opening date of the trial and ordered that the preventive measure “ should remain unchanged ” .

On DATE the Rostov ORG convicted the applicant and sentenced him to CARDINAL GPE imprisonment , but on DATE ORG of GPE quashed the conviction on appeal and remitted the case for a retrial . ORG held that the preventive measure applied to the applicant “ should remain unchanged ” .

On DATE the Rostov ORG listed the new trial hearing for DATE and ordered that the preventive measure applied to the applicant “ should remain unchanged ” .

On DATE the Rostov ORG extended the applicant ’s detention until DATE . It found as follows :

“ The defendants [ the applicant and CARDINAL other persons ] are charged with kidnapping , illegal deprivation of liberty , burglary and other crimes .

They have been in custody : ... , [ the applicant ] – since DATE , ...

The Prosecutor requested that the GPE detention be extended by DATE .

Having examined the Prosecutor ’s request , having heard the parties to the proceedings , the court considers it necessary to extend the GPE detention by DATE , that is , until DATE inclusive , because they are charged with serious and particularly serious criminal offences .

Under Articles CARDINAL , CARDINAL of the Russian Code of Criminal Procedure , the GPE detention on remand is extended by CARDINAL ( DATE , that is , from DATE to CARDINAL October CARDINAL . ”

On DATE ORG upheld the extension order , finding that it was sufficiently justified .

On DATE and DATE and DATE , DATE , CARDINAL DATE and DATE ORG extended the applicant ’s detention until DATE , DATE , DATE , DATE , DATE and DATE respectively . The wording of the above decisions was identical to that applied in the decision of DATE .

NORP The applicant appealed against each of the above extension orders to ORG arguing that the extension orders were not sufficiently reasoned and that the court had not taken into consideration his individual situation . On DATE , DATE , DATE , DATE and DATE and DATE respectively , ORG upheld the above decisions on appeal .

In the meantime , on DATE the Rostov ORG , composed of presiding judge PERSON . and lay judges PERSON and PERSON , extended the applicant ’s detention until DATE . The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant . The applicant again appealed against the extension to ORG .

On DATE , that is after the applicant ’s conviction by ORG ( see paragraph CARDINAL below ) , ORG of GPE discontinued the examination of the applicant ’s appeal because he had been convicted in the meantime by ORG .

In addition to appealing against the detention extension orders the applicant on a number of occasions in DATE applied to have the preventive measure changed to a written undertaking not to leave the town . Among his arguments were the rather extended period of time he had spent in detention , his family ties ( CARDINAL minor children and a disabled mother ) and his poor health .

On DATE , DATE , DATE and DATE and CARDINAL DATE the Rostov ORG dismissed the applicant ’s requests . The court ’s reasoning was the gravity of the charges against him . The applicant appealed against all of these decisions to ORG .

In CARDINAL decision of DATE , that is after the applicant ’s conviction by ORG ( see paragraph CARDINAL below ) , ORG of GPE rejected all the appeals as follows :

“ The defendants [ the applicant and CARDINAL other persons ] are charged with various crimes , including particularly serious crimes .

In the course of the proceedings the court dismissed the above requests .

In their appeals the defendants and lawyers ask for the above decisions to be quashed .

Having examined the material and the arguments put forward in the appeals , the court finds that the appeal proceedings are to be discontinued , since at the present time the examination of the case has been completed by the pronouncement of the sentence ... ”

As regards the trial proceedings in the period from DATE to CARDINAL DATE , the case was adjourned on CARDINAL occasions . In particular , QUANTITY hearings were adjourned at the request of the applicant and his co - defendants , who wished to study the case file or the records of the hearings ; QUANTITY hearings were adjourned due to requests by the applicant and his co - defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file ; QUANTITY hearings were adjourned due to the illness of the representatives and their failure to appear before the court , and QUANTITY hearings were adjourned due to the illness of the co - defendants or following their complaints concerning their health .

On DATE the Rostov ORG , composed of presiding judge PERSON . and lay judges PERSON and PERSON , convicted the applicant of fraud , kidnapping , extortion , robbery , deprivation of liberty , unlawful entry into a home and stealing official documents , and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE ORG of GPE comprising CARDINAL judges upheld the judgment on appeal , but reduced the applicant ’s sentence to CARDINAL years’ imprisonment . CARDINAL of the judges of ORG had previously examined the applicant ’s case on appeal on DATE ( see paragraph CARDINAL above ) and had also examined , on DATE , the appeal against the decision of DATE to extend the applicant ’s detention until DATE ( see paragraphs CARDINAL above ) . CARDINAL other judge had previously examined the applicant ’s case on appeal on DATE ( see paragraph CARDINAL above ) .

As indicated above the applicant was arrested on DATE . From DATE to CARDINAL DATE the applicant was held in detention facility GPE of GPE - on - PERSON ( ORG ИЗ-CARDINAL/CARDINAL г. PERSON ) . Throughout this period the applicant was held in CARDINAL different cells .

According to the ORG ’s observations of CARDINAL DATE , the cells where the applicant was held measured from QUANTITY ( the punishment cell ) to QUANTITY , and provided an average space of CARDINAL per person . The design capacity of the cells was not exceeded .

Windows in the cells , measuring CARDINAL - CARDINAL.CARDINAL by QUANTITY , were covered with white - painted metal screens , which were removed in DATE . The cells were illuminated with QUANTITY filament lamps .

All cells were ventilated by a system of exhaust ventilation . In the summertime the window panes were removed in order to provide better access to fresh air . The cells were equipped with a heating system providing an adequate temperature in line with sanitary norms . The average temperature during DATE was maintained at QUANTITY , and during DATE at QUANTITY .

The cells were equipped with wash basins , hot and cold water taps and lavatory pans elevated QUANTITY above the floor and separated from the main area by a QUANTITY - high brick partition . The arrangement of lavatory pans assured the detainees privacy when using them .

The cells were equipped with potable water tanks . The quality of the drinking water was regularly checked by the facility ’s medical staff . Besides , the detainees were allowed to use electric kettles .

In each cell the applicant had an individual bed and was provided with bedding ( a mattress , a blanket , a pillow , CARDINAL bed sheets and a pillow slip ) .

NORP The cells were also equipped with cupboards for food storage , tables and benches .

The applicant could take a TIME shower once a week . After each shower , he received fresh bedding . He was given food CARDINAL times a day in accordance with the established legal norms . The quality of the food was monitored on a regular basis by the medical staff of the detention facility . On DATE when the applicant was taken to court , hot food was delivered to the courthouse .

The applicant was allowed a DATE TIME outside walk . The exercise yards were equipped with benches and shelters .

The authorities ensured that regular and additional CARDINAL - off disinfections and disinfestations were carried out in the detention facility .

Upon admission to the detention facility the applicant was examined by a general practitioner , psychiatrist and surgeon , who found his health to be satisfactory . During the detention period the applicant made requests for medical assistance on several occasions , complaining of headaches and general weakness . Following the medical check - ups he always received appropriate treatment . In DATE the applicant complained of an earache and was diagnosed with left - side exudative pleurisy . From DATE to CARDINAL DATE he received treatment in the prison hospital .

In support of their observations the Government provided several certificates issued by the director of IZ-CARDINAL/CARDINAL on DATE and DATE , CARDINAL DATE and DATE , an uncertified and undated table on the number of persons detained in different cells at the same time as the applicant in DATE , the results of a laboratory examination of the microclimate of the cells ( illumination , temperature , relative air humidity and air circulation ) , the results of bacteriological tests following water and sanitary inspections of the detention facility conducted in DATE , statements by wardens ( although not dated ) and persons currently detained in GPE , a copy of the applicant ’s prison card stating that he had been provided with bed sheets , cutlery and clothes , as well as a number of certificates concerning the food ration during the relevant period .

The applicant did not dispute the size of the cells as submitted by the Government . He claimed , however , that the number of detainees considerably exceeded the design capacity of the cells and that the detainees had to sleep in shifts .

The windows in the cells were either heavily barred ( cells CARDINAL . CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE ) , or covered with metal screens ( cells CARDINAL . DATE and CARDINAL ) , or entirely absent ( cells CARDINAL . CARDINAL , DATE and DATE ) . The metal screens were still in place in DATE .

The arrangement of the bunks in CARDINAL or CARDINAL tiers left the detainees very limited space and access to daylight . The artificial light in the cells was on around the clock , and disturbed the applicant ’s sleep .

The lavatory in the corner of the cell , which had no flush system , was elevated above the floor and separated by a CARDINAL partition from the wash basin , but not from the living area . The latter CARDINAL standards had been set by the “ Directives on Planning and Constructing Pre - Trial Detention Facilities of the GPE Ministry of the Interior ” , approved on DATE .

The applicant was never provided with any toiletries .

On DATE when the applicant was taken to the courthouse he received no food , since he was taken from his cell before breakfast and brought back after dinner . No food ( hot meal or dry ration ) was served to the applicant in the courthouse . On DATE the applicant was also deprived of outside walks and showers .

The exercise yard was very small and unequipped for physical exercise . The walls of the yard were covered with “ shuba ” , a sort of abrasive concrete lining designed to prevent detainees from leaning against them .

The cells swarmed with cockroaches and bedbugs . Occasionally the detainees were taken to the “ blind ” cell no . CARDINAL ( with no windows , lavatory or water taps ) except for CARDINAL or CARDINAL of them who stayed behind and treated the cell against bedbugs using a heating lamp or a torch made of newspapers , and against cockroaches using cockroach poison sent to the detainees by their relatives .

In support of his statements the applicant produced written depositions by CARDINAL former cellmates , PERSON , PERSON and PERSON They stated , in particular , that in DATE cell no . CARDINAL , measuring QUANTITY , had housed CARDINAL inmates at any one time ( Mr PERSON ’s deposition ) , and that in DATE cell no . DATE , measuring QUANTITY , had housed CARDINAL inmates ( Mr GPE ’s deposition ) or CARDINAL ( Mr GPE ’s deposition ) . They also testified that they and the other detainees had slept in shifts .

The Government did not contest that the applicant ’s former cellmates were held in the same detention facility as the applicant .

Until DATE criminal - law matters were governed by LAW RSFSR ( PERSON of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

“ Preventive measures ” ( меры пресечения ) include an undertaking not to leave a town or region , personal security , bail and detention ( LAW of the old ORG , LAW ) .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW , DATE ) .

When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .

NORP Before DATE , detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment or if they had previously defaulted or had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

The Codes distinguished CARDINAL types of detention : the first being “ pending the investigation ” , that is while a competent agency – the police or a prosecutor ’s office – investigated the case , and the second “ before the court ” ( or “ during the trial ” ) , that is , while the case was being tried in court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .

After arrest the suspect is placed in custody “ pending the investigation ” . The maximum permitted period of detention “ pending the investigation ” is DATE but can be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels ( under the old CCrP ) but must now be authorised by judicial decisions taken by courts of ascending levels ( under the new ORG ) . No extension of detention “ pending the investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .

The period of detention “ pending the investigation ” is calculated to DATE when the prosecutor sent the case to the trial court ( LAW CCrP , LAW of the new ORG ) .

Access to the case file materials is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , on a request by a prosecutor , may grant an extension of detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .

Under the old ORG , the trial court had the right to remit the case for an “ additional investigation ” if it established that procedural defects existed that could not be remedied at the trial . In such cases the defendant ’s detention was again classified as “ pending the investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for an additional investigation , but the investigators had already used up all the time authorised for detention “ pending the investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE starting from the date he received the case . Subsequent extensions could only be granted if the detention “ pending the investigation ” had not exceeded DATE ( Article CARDINAL ) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during the trial ” ) .

DATE the old ORG set no time - limit for detention “ during the trial ” . On DATE a new LAW was inserted which established that the period of detention “ during the trial ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant ’s release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with a particularly serious criminal offence .

DATE . The new ORG establishes that the term of detention “ during the trial ” is calculated from the date the court received the file and to the date the judgment is given . The period of detention “ during the trial ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

Under the old ORG , the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee ’s counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee ’s release ( LAW ) .

An appeal to a higher court lay against the judge ’s decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( see paragraph DATE below ) ( Article CARDINAL in fine ) .

Under the new ORG , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention on remand . The appeal court must decide the appeal within DATE of its receipt ( LAW ) .

Upon receipt of the case file , the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL of the old ORG , ORG ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) . If the application was refused , a fresh application could be made once the trial had commenced ( LAW CCrP ) .

At any time during the trial the court may order , vary or revoke any preventive measure , including detention ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberations room and signed by all the judges of the bench ( LAW ORG , LAW ) .

An appeal against such a decision lies to the higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP – see paragraph DATE below ) .

NORP Under the old CCrP , within DATE of receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to return the case for an additional investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court with jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ( предварительное слушание ) ; or ( CARDINAL ) to fix a date for trial ( LAW ) . The trial must begin DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .

The duration of the trial is not limited .

DATE . Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE of its receipt . In exceptional circumstances or in complex cases or in proceedings before ORG this time - limit could be extended by DATE ( Article CARDINAL ) . No further extensions were possible . The new ORG establishes that the appeal court must start the examination of the appeal DATE after its receipt ( Article CARDINAL ) .

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

The new ORG does not provide for participation of non - professional judges in administration of justice in criminal matters . It provides that serious crimes should be dealt with by a single professional judge or by CARDINAL professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing ( LAW ( CARDINAL ) ) .

It further provides that the composition of the court examining the case should remain unchanged throughout the trial ( LAW ) .

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

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

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

Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘ because they know that all complaints usually pass through the colony ’s GPE .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


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

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

On DATE the applicant instituted proceedings against the local housing authority ( житлово-експлуатаційна дільниця № CARDINAL) , seeking his reinstatement and compensation for salary arrears and non - pecuniary damage .

On DATE the GPE ORG of Poltava ( hereinafter “ the ORG ” ) found against the applicant .

On DATE ORG ( hereinafter “ the Regional Court ” ) upheld this decision .

On DATE the ORG of ORG , following the protest of ORG lodged upon the applicant ’s request ( протест заступника прокурора ORG області ) , quashed all previous decisions and remitted the case for a fresh consideration on the ground that the first instance court ’s reasoning was insufficient .

On DATE the ORG found against the applicant .

On DATE ORG quashed this decision stating that the first instance court had failed to give appropriate consideration of the facts . The case was remitted for a fresh consideration to ORG of PERSON ( hereinafter “ the ORG ” ) .

On DATE and CARDINAL DATE the Poltava ORG of Appeal and ORG , respectively , upheld this decision .


The applicant was born in DATE and lives in Radom .

The applicant was arrested on DATE on suspicion of extorting protection money from an escort agency . By a decision of CARDINAL DATE given by ORG the applicant and other suspects were detained on remand . On DATE the applicant ’s lawyer appealed against the decision of CARDINAL DATE . His appeal was dismissed by a court on DATE .

On DATE the ORG dismissed the applicant ’s lawyer ’s appeal of DATE against the detention decision , considering that a number of witnesses had given evidence incriminating all the suspects . On DATE the ORG ordered the applicant to undergo psychiatric observation .

On DATE the ORG prolonged the applicant ’s detention on remand until DATE , considering that the charges against the applicant were of a serious nature and that they had been supported by the evidence gathered in the proceedings . The court pointed out that the investigation had not yet been completed and that the group the applicant belonged to had brought improper pressure upon the witnesses to change their testimony .

On DATE an expert opinion on the state of the applicant ’s mental health was issued .

On DATE ORG dismissed the applicant ’s lawyer ’s appeal of DATE against the decision of CARDINAL DATE prolonging the applicant ’s detention on remand . The court emphasised that there was a strong likelihood that the applicant might obstruct the proper course of the proceedings by inciting the witnesses to give false testimony . The court also stated that the applicant ’s case did not disclose any of the grounds for release provided by LAW .

On DATE the ORG prolonged the applicant ’s detention on remand until DATE . It found that in view of the seriousness of the offence he was charged with , the strong probability of his guilt and the danger that he ( or another member of the group ) would exert additional pressure on the witnesses , the applicant ’s detention was warranted . The court also pointed to the necessity of taking further evidence .

On DATE the ORG dismissed the applicant ’s lawyer ’s request that the preventive measure be replaced by a more lenient one , considering that the grounds on which the detention on remand had been ordered had not ceased to exist . On DATE the ORG dismissed the lawyer ’s appeal against this decision , relying on the grounds previously invoked by the courts .

By a decision of CARDINAL DATE the ORG prolonged the applicant ’s detention on remand until DATE . The court was of the opinion that the applicant ’s detention was justified by the strong probability of his guilt , the necessity to obtain further evidence and the risk of pressure being brought to bear on the witnesses . On DATE the applicant ’s lawyer appealed against this decision . On DATE the ORG upheld it , referring to the seriousness of the offence in question and the complexity of the case . The court remarked that the negative effect of the continuing detention upon his family situation was not such as to call for his release .

On DATE the bill of indictment was lodged with the ORG against the applicant and CARDINAL co - accused .

The court held hearings on CARDINAL , DATE and DATE . It heard the co - accused and several witnesses .

The hearing fixed for DATE was adjourned due to the absence of the lawyer representing CARDINAL of the co - accused . On DATE another hearing was held . The court heard CARDINAL witnesses .

At the hearing of DATE the applicant lodged an application for release . The court refused , considering that his detention was justified by the existence of strong evidence of his guilt , the nature of the charges against him and a risk of interference with witnesses in order to influence their testimony . Moreover , conditions for release referred to in LAW were not satisfied . The hearing was then adjourned in view of the absence of the applicant ’s lawyer .

On DATE the applicant appointed a new lawyer to represent him .

On DATE , in a separate set of criminal proceedings , the applicant was sentenced by ORG to DATE imprisonment and a fine . He served his sentence DATE and DATE .

The hearing scheduled for DATE was adjourned following a request of CARDINAL of the lawyers . On CARDINAL May and on DATE the court held hearings . At the hearing held on DATE the court dismissed the applicant ’s request for release , referring to the gravity of the charges against him and considering that his case did not disclose any of the grounds for release provided by LAW . The hearing was adjourned due to the absence of CARDINAL of the co - accused .

Hearings fixed for CARDINAL and QUANTITY DATE and CARDINAL and DATE were cancelled for various reasons , mostly because of the absence of defence lawyers . On DATE the court held a hearing and heard CARDINAL witnesses . The hearing scheduled for DATE was adjourned because of the illness of CARDINAL of the lawyers . The court dismissed the applicant ’s request for release , considering that his continuing detention was necessary to ensure the proper conduct of the proceedings and that there were no grounds for releasing the applicant under LAW .

On DATE the ORG requested ORG to prolong the applicant ’s detention until DATE , submitting that from CARDINAL DATE until DATE hearings had been fixed but CARDINAL out of them had in fact been held . The adjournments had been ordered mainly due to the absence of defence counsel . The co - accused and CARDINAL witnesses had been heard until then , nevertheless CARDINAL witnesses remained to be examined . On DATE ORG granted ORG request , pointing to the complexity of the case and concluding that the delay in the proceedings could not be attributed to ORG .

The hearing scheduled for DATE and DATE were adjourned due to the absence of CARDINAL of the co - accused and the illness of some lawyers . On DATE the court held a hearing and heard CARDINAL witnesses . The court did not allow the applicant ’s request for release . The hearing scheduled for DATE was adjourned due to the absence of some of the lawyers .

On DATE the ORG lodged a request with ORG to prolong the applicant ’s detention until DATE . The court submitted that hearings had been held on DATE and on DATE . The hearings scheduled on DATE , DATE , DATE and DATE had been adjourned or cancelled because of the illnesses of the accused and the defending counsel . The court had heard CARDINAL witnesses , but CARDINAL other witnesses were still to be examined and the continuing detention was necessary to ensure the proper conduct of the proceedings . On DATE ORG , relying on the grounds given above , prolonged the applicant ’s detention . However , the limit of the duration of the detention was set at DATE and not at DATE as ORG had requested .

The hearing held on DATE was adjourned due to the absence of CARDINAL of the co - accused .

On DATE the ORG refused to release the applicant , observing that he had failed to indicate any new relevant circumstances in the case .

The hearing scheduled for DATE was adjourned as one of the co - accused was ill .

The hearing scheduled for DATE was adjourned because of the illness of the judge rapporteur .

The hearing held on DATE was adjourned as CARDINAL of the co - accused failed to attend .

On DATE the ORG again requested ORG to prolong the applicant ’s detention on remand . On DATE ORG granted this request and prolonged the applicant ’s detention on remand until DATE . ORG observed that a number of hearings had not been held due to the absence of either the co - accused or their defence counsel . Moreover , the composition of the court had to be changed owing to the illness of the presiding judge . The case was complex and multi - layered and the charges of a serious nature . In addition , some of the accused had contributed to the overall length of the proceedings by lodging motions with the court . In these circumstances , even though the proceedings in the case had been lengthy , ORG could not be held responsible for this delay .

On DATE the court decided to issue an arrest warrant in respect of the co - accused who had kept failing to attend hearings .

The hearings fixed for DATE and QUANTITY DATE were adjourned due to the absence of CARDINAL of the co - accused .

On DATE , as a result of the change in its composition , the court recommenced the examination of the case . The co - accused did not agree to continue the proceedings with new judges . The court decided to exclude CARDINAL of the co - accused who would not appear at the hearings . The court adjourned the hearing due to the absence of some of the lawyers .

On DATE and DATE the court held hearings . It heard the co - accused and CARDINAL witnesses . On DATE the court adjourned the hearing as the applicant ’s lawyer and other co - accused did not appear .

On DATE the applicant was released under police supervision .

NORP On DATE the court gave a judgment by which the applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment .

At the material time , LAW listed as preventive measures , inter alia , detention on remand , bail and police supervision . LAW , which set out general grounds justifying the imposition of preventive measures , provided as follows :

“ Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Furthermore , LAW allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures . Detention on remand was regarded as the most severe preventive measure . LAW provided as follows :

“ A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen , which justify quashing a given measure or replacing it with one that is either more or less severe . ”

Article CARDINAL of the Code provided :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of these measures are considered adequate . ”

Article CARDINAL of the Code , before it was amended on DATE , provided insofar as relevant :

“ Detention on remand may be imposed if :

there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent domicile , or

there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means , or

the accused was charged with a commission of a criminal offence or acted as a habitual offender , as provided for by LAW , or

the accused was charged with the commission of an act which constituted significant danger to society . ”

Pursuant to LAW ” Code , if there were no special considerations to the contrary , detention on remand should not be imposed or should be lifted , if it involved danger to life or limb or entailed particular hardship for a suspect or his family .

Until DATE , when LAW was amended , NORP law did not set any statutory time - limits concerning detention on remand in court proceedings , but only in respect of the investigative stage .

Article CARDINAL of LAW , as applicable after DATE , provided , insofar as relevant :

“ CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning ordinary offences . In cases concerning serious offences this period may not exceed DATE .

In cases where it is particularly justified ORG may , upon the request of the court competent to deal with the case ( ... ) prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”

Subsequently , point CARDINAL was extended to include also “ other significant circumstances , which could not be overcome by the organs conducting the proceedings ” .