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

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

The applicant is director and sole shareholder of the company with limited liability “ J.F.A.M. ORG ” , which in turn is the sole shareholder of CARDINAL other companies ; “ ORG ” and “ ORG ” . These CARDINAL companies form CARDINAL unit for the purposes of the determination of turnover tax ( omzetbelasting ) and corporation tax ( vennootschapsbelasting ) .

In DATE , ORG ( PERSON ) carried out an inspection of the business administration of the above CARDINAL companies . This inspection was closed after possible fiscal offences had been found . ORG ( LOC Inlichtingen- en ORG ; “ FIOD ” ) then started a fiscal criminal investigation . At some unspecified point in time , a declaration of discontinuance of criminal proceedings within the meaning of LAW ) was issued , i.e. a statement to the effect that the case had ended without the institution of any further criminal proceedings .

In DATE , the fiscal authorities - apparently on the basis of information received that ORG would pay out overtime in the form of travel allowances - announced a fiscal inspection of the business administration of this and the affiliated companies . PERSON , an official of the fiscal authorities , inspected these administrations at the premises of the ORG accountancy firm . This inspection took place during DATE in DATE and DATE as well as on DATE and DATE . During the inspection of the administration , PERSON of the companies accountancy firm asked PERSON on several occasions whether he had found any particularities , which PERSON denied .

On DATE , the ORG entered the premises of ORG and the CARDINAL ORG accountancy firm , where they searched for and seized the business administration of ORG

At some unspecified point in time , the applicant was summoned to appear on DATE before ORG ( Arrondissementsrechtbank ) on charges of , inter alia , tax evasion and forgery .

In its judgment of DATE , following adversarial proceedings , ORG convicted the applicant of tax evasion and forgery and sentenced him to TIME of community service . It further imposed a CARDINAL months’ prison sentence , suspended pending a probation period of DATE and payment of a fine in the amount of MONEY ( NLG ) . Both the applicant and the prosecution filed an appeal with ORG ( Gerechtshof ) .

On DATE , in the presence of the applicant and his lawyer , a hearing was held before ORG in the course of which ORG heard the applicant and , at the request of the defence , CARDINAL experts . At having heard the parties’ final pleas , ORG closed the trial proceedings and informed the parties that it would pronounce its judgment on DATE at TIME .

On DATE , ORG gave judgment in public . The applicant himself was not present at the reading out of ORG judgment in abridged form , i.e. not containing a statement of the contents of the means of evidence on which it had based the applicant ’s conviction .

In its judgment , ORG quashed the judgment of DATE , convicted the applicant of tax evasion and forgery and sentenced him to TIME of community service . ORG further imposed a CARDINAL months’ prison sentence , suspended pending a probation period of DATE and payment of a fine of NLG CARDINAL .

ORG rejected the argument raised by the defence that the prosecution should be declared inadmissible on the ground that the fiscal authorities had abused their authority ( “ détournement de pouvoir ” ) in that the fiscal authorities’ powers of inspection had been exercised for obtaining evidence for use in criminal proceedings thus denying the applicant guarantees under criminal law . According to the text of the abridged judgment , it held on this point :

“ It has been argued by the defence that the information obtained from Mr PERSON and others was not preceded by a cautioning < i.e. a warning that such information could be used in criminal proceedings>. However , it has not been established during the trial proceedings that , in the context of the inspection < of the business administration > , either a < cautioning > declaration within the meaning of LAW has been made or that Mr PERSON and others were summoned to provide information in writing . Therefore it can not be said that the accused has been denied any guarantees ( under criminal law ) . The short delay , as pointed out by the defence , between the closure of the inspection of the administration and the searches do not lead to another conclusion . With this , and unlike the situation in other cases where DATE fiscal > inspection runs simultaneously with a criminal investigation , a clear distinction has been made for the accused of < fiscal > inspection activities and criminal investigation activities entailing the application of coercive measures . ”

On DATE , the prosecution filed an appeal in cassation with ORG ( PERSON ) .

On DATE , the applicant addressed a letter to ORG , which reads :

“ On DATE , your ORG has pronounced judgment in my case . My lawyer has requested you on DATE to send him a complete version of the judgment ( het uitgewerkte arrest ) , because I consider filing an appeal in cassation against the judgment , but this is dependent on the reasons and contents of the judgment .

To date I have not received the complete version of the judgment .

I had wanted to contact my lawyer about this , but he can not be reached as he is staying abroad and will only be back in his office on DATE . As from DATE I myself will be gone for DATE to LOC .

As the complete version of the judgment is still not available , I wish to inform you that I am filing an appeal in cassation against the judgment < of the ORG of Appeal>. I herewith refer to the contents of my lawyer ’s letter of DATE in which he already informed you of my intention to file an appeal in cassation although making this dependent on the reasons and contents .

I reserve myself the right , when I have taken notice of the reasons , to withdraw this appeal in cassation after I have been able to confer further about this with my lawyer upon my return .

DATE I request you to take good notice of my request and to confirm me at the address given below the institution from my side of an appeal in cassation ? ”

On DATE , the applicant was provided with the complete version of the judgment of DATE . His attention was drawn to the fact that the time - limit for filing an appeal in cassation had expired on DATE .

The elements that had been added to the abridged version of the judgment of DATE were the means of evidence on which the applicant ’s conviction was based , i.e. fiscal declarations made by or on behalf of the companies concerned , and statements taken from the applicant , CARDINAL employees of ORG , a fiscal investigation officer involved in the investigation at issue , and fiscal officials having processed DATE declarations made by or on behalf of the companies concerned .

On DATE , the applicant was notified of the fact that on DATE the prosecution had filed an appeal in cassation against ORG judgment of DATE

On DATE , the prosecution withdrew its appeal in cassation .

In its judgment of DATE , ORG noted that the applicant ’s appeal in cassation had been filed on DATE and held that , since the applicant had attended the trial proceedings before ORG in person , his appeal in cassation was therefore inadmissible .

Pursuant to LAW , hereinafter referred to as “ ORG ” ) , a judgment must contain the means of evidence as well as the pertinent facts and circumstances on which a conviction is based .

According to LAW ORG , the court must deliver the judgment within DATE following the closure of the trial proceedings , but it may confine itself to pronouncing judgment in abridged form , i.e. not containing the means of evidence and the pertinent facts and circumstances on which a conviction is based .

According to LAW , a complete version of the judgment has to be prepared where the convicted person or the public prosecutor lodges an appeal against the judgment . In that case the text of the means of evidence and the pertinent facts and circumstances must be included in the judgment within DATE when the person concerned is detained in connection with the facts in issue or , if that is not the case , within DATE . The case - file , including the complete judgment , must subsequently be transmitted to the appeal court .

According to LAW , a judgment must be signed within TIME after its delivery by the judges who have examined the case . A judgment in abridged form is signed in that form and , as soon as this has happened , the accused or his counsel are able , according to LAW , to inspect it as well as the official records of the trial hearings .

A complete version of the judgment may also be made available upon request of the accused or his lawyer within DATE after delivery of the judgment , unless this request is devoid of reasonable interest ( Article CARDINALc § § CARDINAL and CARDINAL ORG ) .

Under LAW ORG , both an accused and the prosecution may file an appeal in cassation against a judgment of a ORG . Such an appeal is limited to procedural conformity and points of law .

Pursuant to LAW ORG , an appeal in cassation must be filed within DATE after the delivery of the final decision by a trial court where the trial proceedings have been conducted in the presence of the accused .

If only the prosecution has filed an appeal in cassation , the accused must be notified of this fact ( LAW ORG ) . An accused may file a subsidiary appeal in cassation ( incidenteel beroep in cassatie ) within DATE after receipt of this notification ( LAW ORG ) . Such a subsidiary appeal is limited to the scope of the principal appeal , i.e. the appeal lodged by the prosecution . In case the principal appeal is declared inadmissible or when it is withdrawn , the subsidiary appeal will not be examined .

Upon receipt of the case - file at ORG , the Registrar of the ORG shall notify the appellant in cassation and the adversary party accordingly ( LAW ) . According to LAW ORG , an accused who has filed an appeal in cassation must submit his complaints in cassation ( cassatiemiddelen ) within a delay of DATE after the serving of the notification referred to in LAW .


Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

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

Pursuant a contract concluded in DATE , the applicant advanced CARDINAL karbovantsi to the ORG - owned “ ORG ( ORG PERSON ) for construction of a residential house for his family . According to the text of the contract , the remainder of the funds were to be borrowed from the GPE bank . The contract did not specify whose responsibility it was to apply for the loan . Neither party secured the loan or otherwise financed the remainder of the construction costs .

The plot of land located at the address specified in the construction contract was never formally assigned to the applicant . In DATE the municipality allocated the applicant a plot for the construction of a house at a different address . He used this plot for growing vegetables .

In DATE the unfinished house , located at the address specified in the construction contract , was allocated to the NORP family , who had advanced funding for the construction of a house in DATE . Having invested their personal funds , the NORP family continued the construction and moved into the house .

By DATE ORG was privatized , its shares having been distributed between employees and other private persons , and transformed into a collective agricultural enterprise ( ORG сільськогосподарське підприємство ) .

In DATE the applicant instituted civil proceedings in ORG ( PERSON міський суд GPE республіки ORG ) , seeking to oblige ORG to fulfil the contract , namely , to finish the construction of the house located at the address specified in it . The NORP family were summoned to the proceedings as a third party .

ORG lodged a counterclaim , seeking to have the contract with the applicant annulled .

On DATE the court awarded the house , allocated to the NORP family , to the applicant and dismissed ORG counterclaim . This judgment was not appealed against , became final and the enforcement proceedings were instituted to effect the house transfer to the applicant .

The NORP family refused to leave the house , referring to the lack of any decision in respect of their rights , particularly , on reimbursement of their investments and provision of an alternative residence . The applicant instituted separate eviction proceedings against the NORP family .

On DATE , while the eviction proceedings were still pending , the Presidium of ORG of GPE ( “ ORG of the ARC ” ; ORG PERSON ) quashed the judgment of DATE , following a supervisory protest lodged by the Deputy Prosecutor of GPE and remitted the case for a fresh consideration . The court instructed the first - instance court to explore further whether the applicant could claim entitlement to the house at the address in question , particularly , in view of the unclear contractual language concerning an obligation to obtain a bank loan for construction and considering that the applicant had also been allocated a plot of land for construction under a different address .

DATE the proceedings were suspended at the applicant ’s request in view of his business trip .

In DATE the applicant amended his claims , seeking punitive damages from FAC in addition to the house transfer and joining his eviction claims to the main proceedings .

On DATE the court dismissed the applicant ’s claims and the Farm ’s counterclaim . It found that the NORP family had lawfully obtained the house in issue and that the applicant ’s house was due to be located at another address . The court also dismissed ORG counterclaim . The applicant appealed in cassation .

On DATE ORG of the ARC quashed this judgment , having found the first - instance court ’s analysis insufficient , particularly as regards the legal nature of the construction contract and the parties’ obligations to secure a bank loan , and assumed jurisdiction over the case , referring to its complexity and delay in resolution .

On DATE ORG of the ARC found that an expert assessment was necessary to establish the value of the disputed house and the applicant ’s contribution in the new hryvnya currency and according to the current prices . The court obliged the defendant to pay for the assessment .

In DATE ORG was reorganized , CARDINAL entities , ORG “ FAC ” ( “ the Zaricnhy Cooperative ” ; ORG виробничий кооператив « PERSON ) and the “ K.P.A ” CJSC ( ORG Селянська промислова артіль ORG ) having subsequently emerged on its basis .

As the fee for the expert assessment commissioned by the court remained unpaid owing to the defendant ’s reorganization and financial difficulties of the emerging entities ( i.e. , ORG bank account had been blocked by the authorities ) , on DATE ORG ordered to advance the respective payment from its own budget .

In DATE the expert assessment was completed and the proceedings were resumed . ORG of the ARC determined that ORG was ORG successor in respect of the obligations vis - à - vis the applicant and summoned it into the proceedings .

In DATE the applicant altered his claim . He informed the court that , having obtained other lodging , he was no longer interested in the construction of a house and demanded termination of the contract and compensation of damage .

The defendant amended its counterclaim , advancing new justifications for the annulment of the contract .

On DATE ORG of the ARC annulled the contract , having found that its provisions did not comply with the law applicable at the material time . Based on the findings of the expert assessment , it awarded the applicant against ORG hryvnyas ( ORG ) as the equivalent to his investment into the construction and ORG CARDINAL in court fees . The applicant appealed in cassation to ORG , seeking a higher payment .

On DATE ORG heard the case on the merits and upheld the judgment of CARDINAL DATE .

On an unspecified date the enforcement proceedings were instituted to collect the debt due to the applicant pursuant the judgment of CARDINAL DATE . On DATE the ORG bailiffs forwarded the enforcement writ to the trustee in bankruptcy , owing to the fact that the debtor had been declared bankrupt and subject to liquidation . The applicant did not inform the ORG whether and to what extent the judgment had been eventually enforced .

In DATE the CARDINAL members of the applicant ’s family obtained privatization certificates entitling them to privatize a share of the ORG property . The applicant alleges that they were unable to invest these certificates in a satisfactory manner on account of the unlawful conduct of the authorities .

In DATE the applicant had several arguments with post - office employees concerning the procedure of sealing and stamping his correspondence to the ORG . In addition , a delivery slip concerning one of his registered letters to the ORG was lost .

In DATE ORG allegedly failed to produce at the applicant ’s request a document certifying that he had been formerly employed by ORG .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and resides in the town of GPE , GPE region , GPE .

The applicant instituted proceedings in the ORG of GPE against ORG No . CARDINAL - a ORG - owned enterprise - to recover salary arrears .

On DATE the ORG found in favour of the applicant ( ORG городского суда PERSON области ) and awarded her ORG CARDINAL,CARDINAL.CARDINAL . On DATE ORG ( PERSON исполнительной службы Новогродовского городского управления юстиции ) initiated the enforcement proceedings .

NORP In DATE ORG was reorganised and became a structural subdivision of ORG . As the latter thereby became the debtor , in DATE the enforcement proceedings were transferred to the ORG ( PERSON исполнительной службы Селидовского городского управления юстиции ) .

In DATE the applicant instituted proceedings in the ORG of GPE against ORG for failure to enforce the court decision in her favour . On DATE ORG rejected the applicant ’s claim , finding that no fault had been committed by ORG . The court stated that ORG had acted properly in taking steps to enforce the decision of DATE . However , by a number of decisions of ORG of GPE , ORG had been prohibited from selling the property of ORG , due to the bankruptcy proceedings which had been initiated against the company . The court also stated that , according to the PERSON on the Introduction of a Moratorium on the Forced Sale of Property , on DATE a ban on the forced sale of assets belonging to undertakings in which the ORG held PERCENT of the share capital had been introduced . On DATE ORG upheld the decision of the first instance court of DATE . The applicant appealed in cassation to ORG . The proceedings are still pending .

In DATE the applicant has received ORG CARDINAL,CARDINAL.CARDINAL , the rest of the debt remains unpaid .

The applicant instituted proceedings in the ORG against the Selidovskiy ORG claiming compensation for material and moral damage caused by a lengthy non - enforcement of the judgment in her favour . On DATE the court found against the applicant . On DATE ORG of GPE upheld this judgment . On DATE the ORG provided the applicant a time - limit until DATE for lodging her cassation appeal in compliance with procedural requirements prescribed by law . The parties did not submit any further information about these proceedings .

NORP The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


The applicant was born in DATE and lives in PERSON .

The applicant worked as a prosecutor . On DATE he was charged with bribe - taking and on CARDINAL DATE ORG found him guilty and sentenced him to DATE imprisonment . By a final judgment of CARDINAL DATE ORG acquitted him and ordered his immediate release : he claimed to have been released DATE . The overall period of his detention amounted to DATE .

The applicant brought an action against ORG and his employer seeking payment of compensation for pecuniary and non - pecuniary damage arising from his unlawful prosecution and detention .

On DATE the ORG ruled in his favour and stated that there had been a violation of his right to liberty . The court awarded him CARDINAL Moldovan lei ( MDL , the equivalent of MONEY ( ORG ) at the time ) in compensation for pecuniary damage and MDL MONEY ( EUR CARDINAL at the time ) in compensation for non - pecuniary damage . The defendants appealed .

On DATE the ORG partially upheld the appeal , reduced the award of compensation for pecuniary damage to MDL CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL at the time ) and awarded another MONEY ( ORG , the equivalent of ORG CARDINAL,CARDINAL.CARDINAL at the time ) and MONEY ( ORG ) in respect of costs and expenses incurred during the proceedings . ORG upheld the award of compensation for non - pecuniary damage . The defendants lodged an appeal in cassation .

By a final judgment of DATE ORG partially upheld the appeal in cassation and reduced the award of compensation for non - pecuniary damage to MDL CARDINAL ( ORG CARDINAL,CARDINAL at the time ) .

On DATE the Prosecutor General lodged with ORG a request for annulment of the above - mentioned judgments and for a reduction in the amount of damages .

On DATE ORG upheld ORG request for annulment and quashed the above - mentioned judgments . ORG adopted a new judgment and reduced the award of compensation for non - pecuniary damage to MDL CARDINAL ( ORG CARDINAL,CARDINAL at the time ) . It also ordered the re - opening of the proceedings in respect of the amount of compensation for pecuniary damage . On DATE the applicant received MDL CARDINAL .

Following the re - opening of the proceedings , on DATE ORG ruled in favour of the applicant and awarded him ORG at the time ) in respect of pecuniary damage . The remainder of the judgment provided the same as the judgment of ORG of DATE . On DATE the judgment was enforced .

The relevant domestic law was set out in PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE .


Violation of Art. 6-1;Violation of Art. 13

Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the city of GPE , GPE .

On CARDINAL DATE the applicant was dismissed .

On DATE the applicant instituted proceedings in the ORG of Odessa ( “ the ORG ” ) against her former employer , seeking recovery of salary arrears and other payments owed to her , and compensation for failure to observe the correct procedure for her dismissal .

On DATE the proceedings in the case were suspended pending the outcome of another set of proceedings concerning the applicant 's reinstatement .

The next hearing was scheduled for DATE .

On DATE ORG found against the applicant .

On DATE the same court declared her appeal inadmissible owing to its procedural shortcomings .

On DATE the NORP Regional Court of Appeal ( “ the ORG of Appeal ” ) quashed that ruling and declared the appeal admissible .

On DATE ORG quashed the judgment of DATE and referred the case back for fresh consideration . On the same date the court adopted a separate ruling , drawing the attention of the President of ORG to the length of the proceedings in question .

On DATE ORG again found against the applicant .

On DATE ORG quashed that judgment and rendered a new one , finding in part for the applicant . It awarded the applicant CARDINAL NORP hryvnias ( ORG , CARDINAL ) in salary arrears and other payments and ORG CARDINAL,CARDINAL ( QUANTITY ) in compensation for non - pecuniary damage . On DATE the court adopted another separate ruling , drawing the attention of the President of ORG to the length of the proceedings in question .

The applicant appealed in cassation against the judgment of DATE . On DATE ORG , sitting as a cassation court , upheld that judgment .


The applicant , Mr PERSON , is a NORP and NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG . The Government of GPE did not make use of their right to intervene ( Article CARDINAL § CARDINAL of the Convention ) .

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

The applicant ’s parents owned a house with land in GPE CARDINAL . In DATE the whole family failed to return from a stay in GPE and remained abroad without the consent of the NORP authorities . In a judgment of CARDINAL DATE , ORG ( obvodní soud ) convicted in absentia the applicant ’s father , his mother and himself of deserting the Republic ( opuštění republiky ) , sentenced them to imprisonment and ordered the confiscation of all their property . On DATE the house was sold by the NORP State to PERSON and PERSON , with the right to use the land .

On DATE the applicant ’s father filed an action for the restitution of the confiscated property , pursuant to ORG , against PERSON and her daughter . On DATE he died . The rights of the applicant and his mother over his estate were confirmed in inheritance proceedings .

On DATE CARDINAL of the defendants died . On DATE ORG stayed the restitution proceedings pending the outcome of inheritance proceedings . On DATE the inheritance proceedings were closed .

On DATE ORG resumed the restitution proceedings . On DATE the court decided that the applicant could continue with the restitution case alone , his mother having died on DATE . After joining the restitution proceedings , the applicant learnt that he had been adopted DATE after his birth and that his biological parents had been of NORP origin . He also discovered that his adoptive mother had been tortured in NORP concentration camps and that , as a consequence , she could not have children . According to the applicant , this news caused him enormous mental suffering and distress .

In a judgment of DATE ORG dismissed the applicant ’s restitution action .

On DATE ORG ( městský soud ) upheld this judgment in respect of the merits , but quashed ORG decision concerning the court fees and returned this matter to ORG for further consideration .

It appears that the restitution proceedings are still pending .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


PERSON , a NORP citizen , was born in DATE and currently lives in GPE ( GPE ) .

On DATE , while she was driving on a road covered with ice and snow in GPE , her car veered onto the other side of the road hitting CARDINAL car and then colliding with a second driven by PERSON , who sustained serious injuries .

On DATE the GPE police magistrate ’s office ( GPE ) sent the file to the district attorney ’s office ( PERSON ) for further investigation as to whether the applicant had negligently inflicted serious physical injury contrary to LAW ( see paragraph QUANTITY below ) .

On DATE ORG ( GPE ) sent the file to the district attorney ’s office for further investigations as to whether any offences had been committed under LAW ( see paragraph CARDINAL below ) .

On DATE the district attorney ’s office returned the case file concerning the party injured in the accident to the police magistrate ’s office . It contained a medical certificate stating that the injuries were serious . On CARDINAL DATE the police magistrate found that there was no case for the injured party to answer ( ORG ) . On CARDINAL DATE he convicted the applicant of an offence under sections DATE and CARDINAL of ORG of failing to control her vehicle , as she had not adapted her speed to the road conditions ( PERSON infolge PERSON der PERSON an die ORG ) and sentenced her to a fine of MONEY ( CHF ) . He found in particular that on DATE the road had been covered with ice and snow and that the applicant 's car had veered onto the other side of the road hitting CARDINAL car before colliding with a second .

On DATE the district attorney ’s office issued a penal order ( Strafbefehl ) fining PERSON CHF CARDINAL,CARDINAL for negligently causing physical injury contrary to LAW in respect of the injuries sustained by PERSON as a result of the collision between his vehicle and the applicant ’s .

NORP The applicant challenged that order in ORG ( Bezirksgericht ) , which on DATE reduced the fine to CHF CARDINAL . It held in particular :

“ The police magistrate who imposed the fine ( NORP ) referred to by the applicant had to examine the situation within the context of proceedings concerning a minor criminal offence ( PERSON ) , so that by virtue of the non bis in idem principle there is no doubt that no further prosecution for a minor criminal offence can be brought on the basis of the same incident . However , the fact that investigations in this type of proceedings are summary and limited in scope means that offenders on whom only a fine has been imposed may , if a more thorough investigation is needed in view of legal or factual considerations , also be prosecuted on the same facts for a serious crime or other major offence . In such cases , the original decision and sentence are quashed . ”

The court went on to quash the LAW fine imposed on CARDINAL DATE and said that any part of that fine that had already been paid was to be deducted from the fine it was imposing , the latter fine thus being reduced to CHF CARDINAL .

The applicant appealed to ORG ( Obergericht ) , which on DATE dismissed the appeal holding , inter alia :

“ It is necessary to consider what conclusions are to be drawn from the police magistrate ’s error regarding the question in issue . It is clear that in his decision of CARDINAL DATE he made a finding only in respect of the applicant ’s failure to control the vehicle , but not in respect of the resulting physical injuries suffered by the victim … However , in determining whether LAW had been followed , the police magistrate had the power and duty to consider all the facts before him and to rule on them exhaustively under the criminal law ; his failure to remit the case file , even though possibly serious physical injuries had been caused by negligence , does not necessarily mean that the decision of the police magistrate is invalid – that decision stands . It has not been submitted , and does not appear from the file , that the decision in issue contains serious defects requiring that it be quashed in its entirety in any event . ”

ORG subsequently upheld the decision to deduct CHF CARDINAL from the CHF CARDINAL fine , considering that the applicant ought not to be punished more severely than she would have been if both offences had been dealt with together in a single set of proceedings .

PERSON appealed against that decision on grounds of nullity ( GPE ) to ORG ( Kassationsgericht ) of the GPE of GPE and to ORG . On DATE ORG declined to consider her appeal .

The applicant then filed a public - law appeal with ORG against that decision .

On DATE , ORG dismissed both the applicant 's public - law appeal and her appeal on grounds of nullity . In its latter decision ORG held that it had to be assumed that when on CARDINAL DATE the police magistrate had imposed a fine on PERSON , he had been unaware that PERSON had sustained serious injuries , as otherwise he would have had no jurisdiction to impose a fine and would have had to return the file to the district attorney ’s office . ORG concluded that ORG had nevertheless avoided the effects of punishing an offender twice for the same offence by taking into account the CHF CARDINAL fine imposed by the police magistrate when “ determining the amount of the new fine ” ( bei der Bemessung der neuen Busse ) .

Article CARDINAL of LAW Criminal Code provides :

“ CARDINAL . Anyone who negligently causes damage to the physical integrity or health of another shall , on a complaint , be liable to imprisonment or a fine .

NORP If the injury is serious , the offender shall be prosecuted even in the absence of a complaint . ”

Subsection CARDINAL ) of ORG provides , inter alia , that drivers shall remain in control of their vehicles at all times so as to fulfil their obligations to drive carefully . Under section CARDINAL , drivers must adapt the vehicle 's speed to conditions .


CASE OF KHACHATRYAN AND OTHERS v. ARMENIA

Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicants were born in DATE , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE , PERSON , the villages of ORG and PERSON , ORG and GPE , GPE .

The applicants are GPE ’s Witnesses who were eligible for call - up .

Following the entry into force of LAW on DATE , the applicants applied to the authorities asking to perform alternative labour service instead of military service . It appears that their requests were granted and the applicants were assigned to various institutions to perform the service , such as hospitals , nursing homes and dispensaries . The applicants allege that , while performing the service , they realised that the alternative labour service was not a truly civilian service .

In DATE and DATE the applicants wrote letters to the directors of the institutions where they were individually serving stating that , since the alternative labour service was in reality under the control of the military , they could not continue to serve in good conscience . They requested that LAW be modified so that they could serve in a genuine civilian alternative service . After filing these letters , all applicants left the service .

On DATE criminal proceedings were instituted under Article CARDINAL § CARDINAL of LAW ( ORG ) in respect of DATE applicants on account of their joint abandonment of the civilian institution where they were performing alternative labour service .

On the same date criminal proceedings were instituted under Article CARDINAL § CARDINAL of the ORG in respect of the seventeenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service .

On DATE criminal proceedings were instituted under Article CARDINAL § CARDINAL of the ORG in respect of the first , second , fifth , twelfth , thirteenth , sixteenth and nineteenth applicants on account of their abandoning the civilian institutions where they were performing alternative labour service . These proceedings were divided into individual sets of proceedings in respect of each of these applicants on DATE .

On DATE the first , fifth , thirteenth and sixteenth applicants were formally charged under LAW § CARDINAL of the ORG .

On DATE the Gegharkunik Regional Court examined the investigator ’s motion seeking to have them detained on the grounds that they had committed an offence under LAW and could abscond . ORG decided to grant this motion , stating that the imputed acts fell into the category of crimes of medium gravity and taking into account their nature and degree of dangerousness . The applicants were present at the respective hearings . These decisions were subject to appeal to ORG within DATE .

On DATE the investigator decided to modify the charges against the applicants by bringing a new charge under LAW on the ground that , pursuant to LAW of LAW , persons performing alternative labour service bore equal liability for the unauthorised abandonment of the place of service to that borne by servicemen performing compulsory military service .

On DATE and DATE the prosecutor approved the indictments under LAW ORG and the cases were transferred to ORG for examination on the merits .

On DATE the fifth , thirteenth and sixteenth applicants filed a motion with ORG , arguing that LAW was not applicable to their cases , since they were not servicemen , and seeking to have the proceedings terminated .

On DATE ORG decided to remit the cases for further investigation upon the prosecutor ’s motions in order to clarify , inter alia , which norms of criminal law had been breached by the imputed acts and whether the applicants could be considered as subjects of a military crime as defined by LAW , taking into account that it applied only to servicemen . ORG stated that the applicants’ detention was to remain unchanged .

On DATE the applicants filed motions with ORG , seeking to be released . They argued that they had fully cooperated with the investigating authority , had always appeared whenever summoned , had never obstructed the investigation , had never committed an offence and had never made any attempts to abscond .

On DATE and DATE the first , fifth , thirteenth and sixteenth applicants lodged appeals against the decisions of CARDINAL and DATE , seeking to have the proceedings terminated and to be released . They argued that LAW was not applicable to their cases since they were not servicemen . The acts committed by them were not a criminal offence , since at the material time the ORG did not prescribe any penalties for the unauthorised abandonment of the place of alternative labour service . In spite of this , they were charged and detained which violated their right to liberty . The criminal law required that all offences be incorporated into the ORG , so the reliance on LAW of LAW had been unlawful . The applicants further raised the same arguments as in their motions of DATE . They invoked , inter alia , LAW ( c ) and CARDINAL of the Convention .

On DATE the Criminal and Military Court of Appeal decided to dismiss the first applicant ’s appeal and to uphold ORG decision in its part remitting the first applicant ’s case for further investigation . ORG found that the investigating authority had failed to clarify whether the first applicant could be considered as a subject of an offence against military rules . Therefore it was necessary to do so in the course of further investigation . Similar decisions were taken in respect of DATE applicants on CARDINAL and DATE .

At the same time , ORG decided to grant the ORG appeals in their part concerning their release from detention . As regards the first and thirteenth applicants’ detention , ORG found that the grounds envisaged by LAW ORG ) necessitating their detention were absent . In particular , before abandoning their places of service the first and thirteenth applicants had informed the prosecutor of their addresses and had not made any attempts to abscond during DATE of the investigation . They had never obstructed the proceedings and there were no grounds to believe that they would commit another offence . In such circumstances , the first and thirteenth applicants had shown proper behaviour during the proceedings and it was no longer necessary to keep them in detention .

As regards the fifth and sixteenth applicants’ detention , ORG found that ORG had provided no reasons for leaving the detention unchanged , despite the fact that there were no grounds to keep the fifth and sixteenth applicants in detention .

On DATE , DATE and DATE the applicants lodged appeals on points of law against these decisions , which were dismissed by ORG on DATE and DATE .

On DATE the second , twelfth and nineteenth applicants were formally charged under LAW § CARDINAL of the ORG .

On DATE the Gegharkunik Regional Court granted the investigator ’s motion seeking to have them detained on the same grounds as in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) . The applicants were present at the respective hearings . These decisions were subject to appeal to the Criminal and Military Court of Appeal within DATE .

On DATE the charges against the applicants were changed to LAW , with reliance on LAW of LAW . The indictments under that Article were approved on CARDINAL and DATE and the cases were transferred to ORG for examination on the merits .

On DATE the applicants filed a joint motion with ORG , arguing that LAW was not applicable to their cases , since they were not servicemen , and seeking to have the proceedings terminated and to be released .

On DATE ORG found the applicants guilty under LAW and sentenced them to DATE and CARDINAL months’ imprisonment .

On DATE they lodged appeals against their conviction , in which they argued that the acts committed by them were not punishable under criminal law and had not been qualified correctly since they were not servicemen . They sought to be acquitted and released from detention .

On DATE the Criminal and Military Court of Appeal , upon the prosecutor ’s motion , quashed the twelfth applicant ’s conviction and remitted the case for further investigation on the same grounds as in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) . ORG stated that the twelfth applicant ’s detention was to remain unchanged .

On DATE the nineteenth applicant filed a motion with the Criminal and Military Court of Appeal , arguing that his detention was unjustified and seeking to be released .

On DATE ORG quashed the nineteenth applicant ’s conviction and remitted the case for further investigation on the same grounds as in the twelfth applicant ’s case ( see paragraph CARDINAL above ) . ORG stated that the nineteenth applicant ’s detention was to remain unchanged . A similar decision was taken by ORG in the second applicant ’s case on DATE .

On DATE the second , twelfth and nineteenth applicants filed motions with ORG , raising the same arguments as in the motions filed in DATE applicants’ cases ( see paragraph CARDINAL above ) and seeking to be released .

On DATE , DATE and DATE the applicants lodged appeals on points of law against the decisions of CARDINAL , DATE and DATE , raising arguments similar to those raised in the appeals lodged on CARDINAL and DATE in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) .

On DATE applicant was released from detention upon a written undertaking not to leave .

On DATE ORG dismissed the nineteenth applicant’

On DATE the second applicant was released from detention upon a written undertaking not to leave .

On DATE ORG dismissed the second and twelfth applicants’ appeals on points of law .

On DATE the seventh and ninth applicants and on DATE the sixth and eighth applicants were formally charged under LAW of the ORG .

On DATE the Gegharkunik Regional Court granted the investigator ’s motion seeking to have the seventh and ninth applicants detained on the same grounds as in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) . Similar decisions were taken in respect of the sixth and eighth applicants on DATE . The applicants were present at the respective hearings . These decisions were subject to appeal to ORG within DATE .

On DATE the charges against the applicants were changed to LAW , with reliance on LAW of LAW . The joint indictment under that LAW was approved on DATE and the case was transmitted to ORG for examination on the merits .

On DATE the applicants filed a motion with ORG , seeking to have the criminal proceedings terminated and to be released .

On DATE ORG found the applicants guilty under LAW and sentenced them to CARDINAL GPE imprisonment .

On an unspecified date they lodged a joint appeal , in which they argued that the acts committed by them were not punishable under criminal law and had not been qualified correctly since they were not servicemen .

On DATE the Criminal and Military Court of Appeal quashed their conviction and remitted the case for further investigation on the same grounds as in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) . It further added that criminal liability could be imposed only if the committed act contained all the elements of an offence . Both the investigating authority and ORG had failed to clarify whether the applicants could be considered as subjects of military offences under Articles CARDINAL and CARDINAL of the ORG , taking into account that only servicemen could be considered as such subjects pursuant to LAW . As regards the applicants’ detention , ORG found that it was to remain unchanged , since the grounds for their detention had not ceased .

On DATE the applicants lodged a joint appeal on points of law , raising arguments similar to those raised in the appeals lodged on CARDINAL and DATE in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) .

On DATE the applicants filed a joint motion with ORG , seeking to be released , raising the same arguments as in the motions filed on DATE in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the appeal on points of law . ORG ordered , however , that the applicants be released on the same grounds as in DATE applicant ’s case ( see paragraph CARDINAL above ) .

On DATE criminal proceedings were instituted under Article CARDINAL § CARDINAL of the ORG in respect of the fourteenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service .

DATE . On DATE the applicant was formally charged under Article CARDINAL § CARDINAL of the ORG .

On DATE the PERSON and Nor ORG of GPE granted the investigator ’s motion seeking to have the applicant detained , finding that he could abscond , obstruct the proceedings and avoid serving his penalty . The applicant was present at this hearing . This decision was subject to appeal to ORG within DATE .

On DATE the prosecutor approved the indictment under LAW and the case was transmitted to ORG for examination on the merits .

On DATE the applicant filed a motion with ORG , arguing that LAW was not applicable to his case , since he was not a serviceman , and seeking to have the criminal proceedings terminated or to be released .

On DATE ORG decided to remit the case for further investigation upon the prosecutor ’s motion for the same reasons as in the other applicants’ cases . ORG replaced the applicant ’s detention with a written undertaking not to leave and ordered his release , stating that his behaviour during the trial provided grounds to believe that he would not abscond or commit another crime .

On DATE the applicant lodged an appeal against this decision , seeking to have the proceedings terminated since he was not a serviceman and the act committed by him was not criminally punishable .

On DATE the Criminal and Military Court of Appeal dismissed the appeal , finding that there was a need to carry out further investigation .

On DATE the applicant lodged an appeal on points of law which was dismissed by ORG on DATE .

On DATE criminal proceedings were instituted under Article CARDINAL § CARDINAL of the ORG in respect of the fifteenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service .

On DATE the applicant was formally charged under Article CARDINAL § CARDINAL of the ORG .

On DATE the GPE and ORG of GPE granted the investigator ’s motion seeking to have the applicant detained , finding that there were sufficient grounds to believe that he could abscond , obstruct the investigation and commit another offence . The applicant was present at this hearing . This decision was subject to appeal to ORG within DATE .

On DATE ORG decided to remit the case for further investigation upon the prosecutor ’s motion for the same reasons as in the other applicants’ cases . ORG stated that the applicant ’s detention was to remain unchanged .

On DATE the applicant filed a motion with ORG , raising the same arguments as in the motions filed by other applicants and seeking to be released .

On DATE the applicant lodged an appeal against the decision of CARDINAL DATE , seeking to have the proceedings terminated and to be released . He raised the same arguments as in the appeals lodged on CARDINAL and DATE in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) .

On DATE the applicant was released from detention upon a written undertaking not to leave .

On DATE the Criminal and Military Court of Appeal dismissed the appeal , finding that there was need to carry out further investigation .

On DATE at TIME the seventeenth applicant was arrested in connection with the criminal proceedings against him .

DATE . On DATE he was formally charged under LAW § CARDINAL .

On DATE at TIME the applicant was brought before Judge A. of the GPE and ORG of GPE who , after having heard him , decided to grant the investigator ’s motion seeking to have him detained , finding that the applicant , if he remained at large , could obstruct the investigation and abscond . This decision was subject to appeal to ORG within DATE .

On DATE the prosecutor approved the indictment under LAW and the case was transmitted to ORG for examination on the merits .

On DATE ORG found the applicant guilty under LAW ORG and sentenced him to DATE and CARDINAL months’ imprisonment .

On an unspecified date the applicant lodged an appeal .

On DATE the applicant filed a motion with the Criminal and Military Court of Appeal , arguing that his detention was unjustified and seeking to be released .

On DATE the Criminal and Military Court of Appeal quashed the applicant ’s conviction and remitted the case for further investigation upon the prosecutor ’s motion for the same reasons as in the other applicants’ cases . ORG stated that the applicant ’s detention was to remain unchanged .

On DATE the applicant lodged an appeal on points of law , seeking to have the proceedings terminated and to be released . He raised the same arguments as in the appeals lodged on CARDINAL and DATE in the first , fifth , thirteenth and sixteenth applicants’ cases ( see paragraph CARDINAL above ) .

DATE . On DATE the applicant filed a motion with ORG , raising the same arguments as in the motions filed by other applicants and seeking to be released .

On DATE ORG dismissed the applicant ’s appeal on points of law , finding that ORG decision was well - founded . ORG ordered , however , that the applicant be released on the same grounds as in DATE applicant ’s case ( see paragraph CARDINAL above ) .

On DATE separate sets of criminal proceedings were instituted under LAW in respect of the third and eighteenth applicants on account of their unauthorised abandonment of the civilian institutions where they were performing alternative labour service .

On DATE applicants made written undertakings not to leave .

On DATE they were formally charged under Article CARDINAL § CARDINAL .

On DATE similar criminal proceedings were instituted in respect of the fourth applicant .

On DATE he was formally charged under Article CARDINAL § CARDINAL and made a written undertaking not to leave .

On DATE ORG found the third and eighteenth applicants guilty under LAW and sentenced them to CARDINAL years’ imprisonment . They were taken into custody .

On DATE the ORG found the fourth applicant guilty under LAW and sentenced him to DATE and CARDINAL months’ imprisonment . He was taken into custody .

On DATE the third applicant lodged an appeal , seeking to be acquitted and released from detention since he was not a serviceman and the act committed by him was not criminally punishable . On unspecified dates DATE applicants also lodged appeals .

On DATE the third and fourth applicants filed motions with ORG , arguing that the acts committed by them had not constituted a criminal offence at the material time and seeking to have the proceedings terminated and to be released .

On DATE the eighteenth applicant filed a motion with ORG , arguing that his continued detention was unjustified and seeking to be released .

On DATE the third and fourth applicants filed similar motions .

On DATE ORG quashed the third and fourth applicants’ convictions and remitted the cases for further investigation upon the prosecutor ’s motions for the same reasons as in the other applicants’ cases . ORG stated that their detention was to remain unchanged .

On DATE the eighteenth applicant filed CARDINAL more motions with ORG , arguing that the act committed by him had not constituted a criminal offence at the material time and seeking to have the proceedings terminated and to be released .

On DATE ORG quashed the eighteenth applicant ’s conviction and similarly remitted the case for further investigation . ORG stated that his detention was to remain unchanged .

On DATE the third and fourth applicants lodged appeals on points of law against ORG decisions of DATE ( see paragraph CARDINAL above ) , seeking to have the proceedings terminated and to be released .

On DATE the third and fourth applicants filed motions with ORG , seeking to be released .

On DATE a similar appeal and motion were lodged by DATE applicant .

On DATE ORG dismissed the applicants’ appeals , finding that ORG decision was well - founded . ORG ordered , however , that they be released on the same grounds as in DATE applicant ’s case ( see paragraph CARDINAL above ) .

On DATE separate sets of criminal proceedings were instituted under LAW in respect of the tenth and eleventh applicants on account of their unauthorised abandonment of the civilian institutions where they were performing alternative labour service .

On DATE the applicants were formally charged under Article CARDINAL § CARDINAL and made written undertakings not to leave .

On DATE the Malatia - Sebastia District Court of GPE decided to remit the applicants’ cases for further investigation upon the prosecutor ’s motion for the same reasons as in the other applicants’ cases .

NORP The applicants’ appeals against these decisions were dismissed by the Criminal and Military Court of Appeal and ORG on CARDINAL and DATE and CARDINAL DATE and DATE respectively .

On DATE the Gegharkunik Regional Prosecutor decided to terminate the criminal proceedings against the first applicant on the ground that the offence in question was of medium gravity , he had spent DATE in detention and the act in question had ceased to be dangerous for society .

On DATE ORG decided to quash this decision and to terminate the proceedings for the lack of corpus delicti , with reference to LAW ( CARDINAL ) of the ORG . ORG found , in particular , that at the material time the ORG did not prescribe an offence for the act of unauthorised abandonment of the place of alternative labour service and such an offence was incorporated in the ORG only by the amendments introduced on DATE ( see also paragraphs CARDINAL - CARDINAL below ) . ORG apologised to the first applicant and informed him that it was open to him to claim compensation pursuant to LAW ORG .

Around the same period , identical decisions were taken in respect of all the other applicants .

On various dates in DATE and DATE , DATE and DATE the applicants instituted civil proceedings against ORG , seeking pecuniary and non - pecuniary damages in connection with the criminal proceedings against them , including their detention . The claims for pecuniary damage included alleged transportation and medical costs , expenses related to food parcels and lost earnings .

On various dates in DATE , DATE , DATE and DATE the GPE and ORG of GPE examined and dismissed all the applicants’ claims , finding the claims for pecuniary damage to be unsubstantiated . As regards the claims for non - pecuniary damage , these claims were dismissed because NORP law did not provide such a form of compensation .

On various dates in DATE , DATE , DATE and DATE the applicants lodged appeals .

On various dates in DATE , DATE , DATE , DATE and DATE ORG decided to dismiss the appeals and to uphold the judgments of ORG .

NORP On various dates in DATE and DATE and DATE the applicants lodged appeals on points of law , which were declared inadmissible by ORG for lack of merit on DATE and CARDINAL DATE .

The relevant general and other provisions read as follows :

“ CARDINAL . Criminal legislation of GPE consists of this Code . New laws which envisage criminal liability shall be incorporated into LAW . ... ”

“ The only ground for criminal liability is the commission of an offence , that is of an act which has all the features of corpus delicti envisaged by criminal law . ”

“ CARDINAL . Only criminal law determines whether an act is criminal and punishable , as well as its other criminal and legal consequences .

NORP The application of criminal law by analogy is prohibited . ”

“ CARDINAL . Evasion of regular military service , military training or draft , in the absence of lawful grounds for exemption from such service , shall be punishable by a penalty in the amount of CARDINAL times the minimum wage , or by detention for a period not exceeding DATE or imprisonment for a period not exceeding DATE . ”

The relevant provisions of LAW of the ORG , entitled “ Offences Against the Military Service Rules ” , as in force at the material time , read as follows :

“ CARDINAL . The subjects of offences against the military service rules envisaged by this LAW are the persons who serve in the armed forces of GPE and in other forces of GPE on the basis of conscription or a contract , as well as , during training sessions , the persons liable for military service . ”

“ CARDINAL . Unauthorised abandonment of the military unit or the place of service by a serviceman performing military service on the basis of conscription or a contract ... for a period not exceeding one month [ or ] CARDINAL or more times within DATE , each time for a period from DATE , shall be punishable by detention for a period not exceeding DATE or placement into a disciplinary battalion for a period not exceeding one year .

The [ act ] envisaged in [ paragraph CARDINAL ] of this LAW , if the unauthorised absence lasted longer than DATE , but for the purpose of temporary evasion from military service , shall be punishable by imprisonment for a period not exceeding DATE .

The [ act ] envisaged in [ paragraph CARDINAL ] of this LAW , if committed by a group of people with prior agreement , shall be punishable by imprisonment from DATE . ”

“ CARDINAL . Desertion , that is unauthorised abandonment of the military unit or the place of service for the purpose of definitive evasion from military service , as well as the failure to report for service for the same purpose , shall be punishable by imprisonment for a period not exceeding DATE . ... ”

On DATE the Government presented to ORG a draft law , proposing to introduce an amendment in LAW which prescribed a penalty for evading military service , by inserting into the phrase “ military service ” the words “ or alternative ” . The Explanatory Note to the draft law stated that the adoption of LAW violated the principle of equality of all before the law because persons evading alternative service remained unpunished in contrast to those who evaded regular military service .

This law was adopted by ORG on DATE and entered into force on DATE ( Law ORG ) .

On DATE the Government presented another draft law to ORG , proposing to introduce another amendment to LAW by adding a new provision , namely LAW , that would make punishable the act of unauthorised abandonment of the place of service by a person performing alternative labour service . The Explanatory Note to the draft law stated that there were currently up to QUANTITY criminal cases pending before the courts in which charges were brought under LAW . The ORG was adopted before LAW and naturally it could not prescribe a penalty for the unauthorised abandonment of the place of service by persons performing alternative labour service .

This law was adopted by ORG on DATE and entered into force on DATE ( PERSON ) .

The relevant provisions of the ORG , as in force at the material time , provide :

“ CARDINAL . Criminal proceedings may not be instituted and criminal prosecution may not be carried out , while instituted criminal proceedings must be terminated , if : ... ( CARDINAL ) the act lacks corpus delicti ; ... ”

“ CARDINAL . A person shall be considered to be acquitted if criminal prosecution or criminal proceedings against him were terminated on ... the grounds envisaged by [ , inter alia , LAW ) ] of this LAW or if he was acquitted by a court judgment .

An acquitted person shall be ... entitled to claim full compensation of pecuniary damage caused as a result of unlawful arrest , detention , indictment and conviction , taking into account the possible lost profits . ... ”

“ CARDINAL . The court , the prosecutor , the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may : ( CARDINAL ) abscond from the authority dealing with the case ; ( CARDINAL ) obstruct the examination of the case during the pre - trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings , by concealing or falsifying materials significant for the case , by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means ; ( CARDINAL ) commit an act prohibited by criminal law ; ( CARDINAL ) avoid criminal liability and serving the imposed sentence ; and ( CARDINAL ) hinder the execution of the judgment . ”

The relevant provisions of the Civil Code provide :

“ CARDINAL . NORP The person whose rights have been violated may claim full compensation for the damage suffered , unless the law or a contract envisages a lower amount of compensation .

Damages are the expenses borne or to be borne by the person , whose rights have been violated , in connection with restoring the violated rights , loss of his property or damage to it ( material damage ) , including lost earnings which the person would have gained in normal conditions of civil circulation , had his rights not been violated ( lost income ) . ... ”

“ CARDINAL . Damage caused as a result of unlawful conviction , [ unlawful ] criminal prosecution , [ unlawful ] imposition of a preventive measure in the form of detention or a written undertaking not to leave , and [ unlawful ] imposition of an administrative penalty shall be compensated in full , in a procedure prescribed by law , by GPE , regardless of the fault of the officials of the body of inquiry , the investigating authority , the prosecutor ’s office or the courts . ... ”

NORP The relevant provisions of the LAW , with their subsequent amendments which were introduced on DATE and entered into force on DATE , read as follows :

“ CARDINAL . Alternative service , within the meaning of this LAW , is the service replacing the compulsory fixed - period military service which does not involve the carrying , keeping , maintenance and use of arms , and which is performed both in military and civilian institutions .

Alternative service includes the following types : ( a ) alternative military [ service , namely ] military service performed in the armed forces of GPE which does not involve being on combat duty , and the carrying , keeping , maintenance and use of arms ; and ( b ) alternative labour [ service , namely ] , labour service performed outside the armed forces of GPE .

The purpose of alternative service is to ensure the fulfilment of a civic obligation before the motherland and society and it does not have a punitive , depreciatory or degrading nature . ”

“ CARDINAL . An NORP citizen , whose creed or religious beliefs do not allow him to carry out military service in a military unit , including the carrying , keeping , maintenance and use of arms , may perform alternative service . ”

“ CARDINAL . Persons performing alternative labour service shall bear liability for violations of the law and crimes , as well as for pecuniary damage caused to the state , on general principles , according to a procedure prescribed by law .

Persons performing alternative labour service shall bear equal responsibility for the unauthorised abandonment of the place of service to that borne by servicemen performing compulsory military service , according to a procedure prescribed by law [ Note : this paragraph was repealed on DATE ] . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);Non-pecuniary damage - award

The applicant is a child born out of wedlock on DATE . On DATE the applicant and her mother filed a civil suit against ORG before ORG ( PERSON ) in order to establish paternity .

At the hearing on DATE ORG pronounced judgment by default against the defendant . The adoption of such a judgment , however , is expressly prohibited by ORG o braku i porodičnim odnosima DATE , DATE , DATE , DATE , DATE and DATE ) in “ civil - status matters ” ( statusni sporovi ) . On DATE the defendant appealed against that judgment .

At the hearing on DATE ORG annulled its own judgment . The next hearing was scheduled for DATE .

Meanwhile , ORG filed a motion accusing the presiding judge of bias , which was allowed on DATE by the President of ORG . Consequently , on DATE the case was transferred to another judge .

NORP The hearing scheduled for DATE was adjourned owing to the absence of ORG 's counsel .

The hearing scheduled for DATE was adjourned as ORG 's counsel had died .

At the hearing on DATE PERSON 's new counsel argued that the applicant 's mother had had relations with persons other than FAC at the relevant time ( exceptio plurium concubentium ) and invited the court to summon several witnesses .

At the hearing on DATE CARDINAL witnesses were heard , as the other witnesses failed to appear .

At the next hearing on DATE the court ordered a DNA blood test . The appointment at the relevant clinic was scheduled for CARDINAL DATE , but PERSON failed to appear .

The next appointment was scheduled for DATE , but PERSON informed the court that he would be absent from DATE until DATE .

On DATE the court ordered another appointment for the blood test , which was scheduled for DATE , but PERSON again failed to appear .

On DATE the court ordered a fourth appointment , scheduled for DATE , but ORG informed the court that he would be absent DATE .

On DATE the court ordered a fifth appointment , scheduled for DATE , and once again PERSON failed to appear .

The next hearing scheduled for DATE was adjourned as ORG did not appear .

At the hearing on DATE the court heard testimonies from the parties and scheduled the sixth appointment for the DNA tests for DATE , at which ORG failed to appear .

The next hearing , scheduled for DATE , was adjourned , as ORG did not appear .

On DATE the court concluded the trial .

On DATE the applicant 's counsel received ORG judgment of DATE establishing the defendant 's paternity and granting the applicant maintenance . The first - instance court found that the fact that the defendant had been avoiding DNA tests supported the applicant 's claim . On DATE ORG appealed against the judgment .

On DATE ORG ( Županijski sud u GPE ) quashed the first - instance judgment and remitted the case for retrial . The appellate court found that the first - instance court had failed to establish all the relevant evidence and that PERSON 's paternity could not have been established primarily on his avoidance of DNA tests . It ordered the first - instance court to hear several witnesses who , as alleged by ORG , had had intimate relationships with the applicant 's mother during the critical period .

On DATE and DATE the applicant requested the President of ORG to speed up the proceedings .

The hearings scheduled for DATE and DATE in ORG were adjourned because PERSON and his counsel did not appear .

At the hearing on DATE CARDINAL PERSON 's counsel accused the presiding judge of bias .

On DATE the court of first instance concluded the trial and gave judgment , establishing the defendant 's paternity and granting the applicant maintenance . It found that ORG 's avoidance of DNA tests corroborated the applicant 's mother 's testimony that PERSON was the applicant 's father .

On DATE the applicant filed an appeal against the first - instance judgment , objecting to the amount of maintenance ORG would have to pay her . PERSON also appealed against the judgment .

It appears that the proceedings are currently pending before the appellate court .

Section CARDINAL of LAW ( Zakon o građanskom postupku – Official Gazette nos . CARDINAL/CARDINAL , GPE and CARDINAL ) provides that courts are to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole and taking into consideration the results of the overall proceedings .

Section CARDINAL(CARDINAL ) of LAW on LAW ( which entered into force on DATE – “ the LAW ” ( PERSON o PERSON ) ) reads as follows :

“ ORG may , exceptionally , examine a constitutional complaint prior to exhaustion of other available remedies , if it is satisfied that a contested act , or failure to act within a reasonable time , grossly violates a party 's constitutional rights and freedoms and that , if it does not act , a party will risk serious and irreparable consequences . ”


The applicant was born in DATE and lives in GPE .

In DATE the applicant turned DATE . Prior to that date she was in receipt of long - term incapacity benefit ( ORG ) , a benefit payable to people incapable of work who satisfy the eligibility criteria . She had qualified for the rate of MONEY ( GBP ) DATE . She was also paid GBP CARDINAL per week in disability living allowance ( ORG ) and GBP CARDINAL in ORG care . At DATE , which is the date of entitlement to the State pension for women , she ceased to be eligible for ORG . In its place she became entitled to draw her state retirement pension which , based upon her contribution record , entitled her to ORG CARDINAL.CARDINAL per week ( PERCENT of the maximum rate as she had only contributed for DATE out of CARDINAL ) . She continued to draw ORG . As a result , the applicant claimed that she was some GBP CARDINAL.CARDINAL per week worse off as a result of her transition from ORG to the State pension .

The applicant complained to ORG concerning the differential treatment but was informed that nothing could be done .

The National Insurance Act DATE , which first established the basis for the national social security scheme in GPE , set out a system of funding under which all employers and the majority of the working population , whether employed or self - employed , are liable to pay compulsory national insurance ( “ NI ” ) contributions into ORG ( ORG ) . This legislation has since been replaced , most recently , by the consolidating provisions of ORG DATE ( “ SSCBA DATE ” ) and ORG DATE .

Section CARDINAL(CARDINAL ) of the SSCBA sets out the various classes of NI contribution . Of these , the largest category is Class CARDINAL contributions which consist of earnings - related contributions paid by employers and employees . Such contributions are levied as a percentage of earnings which varies according to the employee ’s earnings band . The ORG scheme is financed on a “ pay as you go ” basis , that is , current NI contributions fund current benefits : thus an individual ’s contributions fund not his or her own benefits but those of others ( NORP ( PERSON ) v. Secretary of ORG [ DATE ] CARDINAL All ER paras . CARDINAL - CARDINAL ) .

Primary Class CARDINAL contributions to NI cease to be payable on attainment of the ORG retirement age ( section PERSON ) of the SSCBA ) .

The ORG is currently the sole source of funding for payment of state retirement pensions as well as a number of other benefits , including ORG . Topping up into the fund by way of ORG Grant is possible in times of shortfall but has not occurred since DATE .

The Social Security ( Incapacity for work ) Act DATE amended LAW so as to include provision for the payment of ORG from DATE . LAW provides , as relevant :

“ ... ( CARDINAL ) Subject to the following provisions of this section , a person who satisfies either of the following conditions is entitled to short - term incapacity benefit in respect of DATE of incapacity for work which forms part of a period of incapacity for work .

( CARDINAL ) The conditions are that -

( a ) he is under pensionable age on DATE in question and satisfies the contribution conditions specified for short - term incapacity benefit in Schedule CARDINAL , Part CARDINAL , paragraph CARDINAL ;

( CARDINAL ) In any period of incapacity for work a person is not entitled to short - term incapacity benefit for DATE .

( CARDINAL ) Where a person ceases by virtue of subsection ( CARDINAL ) above to be entitled to short - term incapacity benefit , he is entitled to long - term incapacity benefit in respect of any subsequent day of incapacity for work in the same period of incapacity for work on which he is not over pensionable age . ”

IB is a contributory benefit funded out of NI contributions , designed to compensate a person for financial loss as a result of their inability to work due to ill - health or disability . It is therefore available throughout the assumed working life . As a result the period of entitlement is directly linked , for men and women , to the period of entitlement ( if any ) to receive the ORG retirement pension . When an individual reaches State pension age any entitlement to such a pension takes the place of ORG . A full basic retirement pension pays ORG per week , while the standard rate of ORG is GBP CARDINAL .

At the relevant time , section CARDINAL of ORG DATE defined “ pensionable age ” as :

“ ( a ) DATE , in the case of a man ; and

( b ) DATE , in the case of a woman ” .

Women in GPE therefore become eligible for a State pension at DATE , whereas men are not eligible until CARDINAL .

Section CARDINAL of the Pensions Act DATE provides for the equalisation of State pension ages for men and women to DATE . GPE pension age for women will increase gradually from DATE and the equalisation will be complete in DATE . At the same time , the age until which women are liable to pay national insurance contributions will gradually increase in line with the increase in GPE pension age .

Council Directive CARDINAL/CARDINAL/EEC of DATE provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security . However , in LAW provides for derogation in the matter of “ the determination of pensionable age for the purposes of granting old - age and retirement pensions and the possible consequences thereof for other benefits ” .

NORP In its judgment in Case C-CARDINAL/CARDINAL PERSON and Others [ DATE ] ECR I-CARDINAL , ORG ( ECJ ) ruled that where , pursuant to LAW , a Member State prescribed different pensionable ages for men and women for the purpose of granting old - age and retirement pensions the scope of the permitted derogation defined by the words “ possible consequences thereof for other benefits ” was limited to the forms of discrimination existing under other benefits schemes which were necessarily and objectively linked to the difference in pensionable age . That was the position where such forms of discrimination were objectively necessary to avoid disturbing the financial equilibrium of the social security system or to ensure coherence between the retirement pension scheme and other benefit schemes .

In Case C-CARDINAL/CARDINAL Secretary of ORG v. PERSON [ DATE ] ECR I-CARDINAL , the ECJ considered the predecessor of ORG , namely invalidity allowance and invalidity pension ( both contributory benefits paid from NI contributions until pensionable age or until the cessation of any deferment in pension ) . It found that the measures were justified by both considerations of financial equilibrium and overall coherence and that the discrimination was necessarily linked to the difference in pensionable age for men and women , inter alia as invalidity benefit was designed to replace income from occupational activity and was replaced by a retirement pension at the age at which the recipients would in any event stop working .

The derogation was not however held to justify pension - aged linked discrimination in a number of benefits e.g. in NORP v. Secretary of ORG , ex parte PERSON [ DATE ] ORG , the ECJ held that the provision of DATE fuel allowances for the elderly was not necessarily linked to the difference in the statutory age of retirement for men and women and in NORP v. Secretary of ORG ex parte PERSON [ DATE ] PERSON , the ECJ found that the discrimination in age entitlement to free prescriptions was not objectively justified to ensure coherence between the retirement pension system and the regulations concerning prescriptions and was not necessarily linked to the difference DATE for men and women .

In Case C-CARDINAL/CARDINAL The Queen v. Secretary of ORG , ex parte ORG [ DATE ] ECRCARDINAL - CARDINAL ( “ the ORG case ” concerning a reference for a preliminary ruling from the High Court relating to the differing contribution periods applicable to men and women determined according to pensionable age ) , the ECJ found that :

LAW had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old - age and retirement pensions and also forms of discrimination which are necessarily linked to that difference ;

Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where , having regard to the financial equilibrium of the national pension system in the context in which it appears , it can not be dissociated from a difference in pensionable age ;

In view of the advantages allowed to women by national pension systems , in particular as regards statutory pensionable age and length of contribution periods , and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from DATE to the next in respect of those periods , the ORG legislature intended to authorise the progressive implementation of that principle by LAW and that progressive nature could not be ensured if the scope of the derogation authorised by LAW were to be interpreted restrictively .