Violation of Art. 11;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient

András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky

The applicants are CARDINAL NORP nationals ( see Appendix ) .

The applicants were creditors , together with CARDINAL other individuals , of an insolvent private company . Since they were unable to obtain their outstanding claims , they intended to hold a series of demonstrations DATE and DATE in front of the Prime Minister ’s private residence in GPE . The applicant submitted photographs of the scene of the proposed events . According to these photographs , the Prime Minister ’s house is situated on a CARDINAL - lane road in a residential area composed of villas . Across the street from that property , between parked cars and the fence of another villa , there is a footpath parallel to which is a strip of grass which is QUANTITY wide . The applicant stated that the participants in the planned demonstrations intended only to occupy this pedestrian zone .

The first applicant , PERSON ( “ the applicant ” ) , was the main organiser of the events . He notified ORG as prescribed by the law . On DATE the police prohibited the demonstrations . The applicant sought judicial review . On DATE ORG quashed the decision and remitted the case to the police .

In the resumed proceedings , the police again prohibited the demonstrations on DATE . The applicant sought judicial review . ORG dismissed his action on DATE .

In the meantime , the applicant and CARDINAL other private individuals – according to the applicant ’s submissions , “ disguising themselves as tourists ” – appeared before the Prime Minister ’s house . The police were also present , but since the applicant informed them that they did not intend to “ demonstrate ” , they were not prevented from walking in front of the Prime Minister ’s house and they then left the scene undisturbed . They did not cause any hindrance or inconvenience to the traffic or other pedestrians .

Subsequently , the applicant notified the police of another demonstration planned for DATE for the same reasons and at the same spot . The planned number of demonstrators was DATE . The head of ORG , relying on LAW no . III of DATE on ORG ( “ the LAW ” ) , prohibited the event on CARDINAL DATE .

NORP The police were of the view that the pavement was not wide enough to secure the necessary space for the demonstrators and other pedestrians at the same time . Therefore , in order to prevent possible accidents and confrontations between the demonstrators and passers - by , it would be necessary to close CARDINAL the street . They pointed out that on the street in question CARDINAL bus services operated on a regular basis and that on CARDINAL DATE , All Saints’ Day , the traffic was expected to be heavier since many people would visit cemeteries DATE . The police , therefore , having obtained the expert opinion of ORG , held that the demonstration would cause a disproportionate hindrance to the traffic , which could not be secured by alternative means . The applicant sought judicial review .

On DATE ORG dismissed the applicant ’s action . It established that the police decision had been in compliance with the law and in particular with LAW .

Subsequently , the applicants intended to organise other demonstrations limited to QUANTITY persons . On DATE the applicant notified the police that on DATE , DATE , DATE and in TIME DATE demonstrations were to take place , again in front of the Prime Minister ’s house . On CARDINAL DATE the head of ORG prohibited these events .

The police reiterated that the pavement was not wide enough to secure the necessary space for the demonstrators and other pedestrians at the same time . Therefore , in order to prevent possible accidents and confrontations between them , CARDINAL the street would need to be closed . It pointed out that on the street in question CARDINAL bus services operated on a regular basis and , in DATE , the traffic was expected to be heavier since many people left for the ski resorts around GPE via that street . It added that there was also a possibility of heavy snowfalls and that it would be difficult to secure alternative routes .

The police , therefore , obtaining the expert opinion of ORG , held that the demonstrations would cause a disproportionate hindrance to the traffic , in particular to the buses , which could not be secured by alternative means .

The applicant sought judicial review . He stated that his aim was to hold peaceful , silent demonstrations lasting TIME . The only ‘ ORG planned was to stand in line in front of the Prime Minister ’s house , with CARDINAL participants .

On DATE ORG dismissed the applicant ’s motion . It established that the police decision had been in compliance with the law and the Convention .

On DATE ORG officially informed the applicant that on DATE no buses would be running after TIME

The LAW of GPE no . DATE as amended ) provides , in so far as relevant , as follows :

“ GPE acknowledges the right to peaceful assembly and secures its free exercise . ”

NORP The relevant provisions of Act no . CARDINAL of DATE on ORG ( “ the LAW ” ) read as follows :

“ ( CARDINAL ) The exercise of freedom of assembly shall not constitute a crime or an incitement to crime ; moreover , it should not result in the infringement of the rights and freedoms of others . ”

“ The organisation of an event held in the public domain shall be notified to the competent police headquarters according to the place of the event , and in GPE to ORG , DATE prior to the planned date of the event . The obligation to notify the police lies with the organiser of the event . ”

“ ( CARDINAL ) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts , or the circulation of traffic can not be secured by another route , the police may ban the holding of the event at the place or time indicated in the notification , within TIME of receipt of the notification by the authority . ”

“ ( CARDINAL ) No appeal shall lie against the decision of the police , but the organiser may seek judicial review of the administrative decision within DATE of its notification . ”

“ ( CARDINAL ) The police shall disperse the event if the exercise of the right to freedom of assembly contravenes subparagraph CARDINAL of section CARDINAL or if the participants appear at the event ... in possession of arms , or if an event subject to prior notification is held without notification , ... or despite a decision banning the event . ...

( CARDINAL ) If an event is dispersed , the participants may seek judicial review within DATE with a view to the establishment of the illegality of the dispersal . ”


CASE OF KUOLELIS,  BARTOSEVICIUS AND BUROKEVICIUS v. LITHUANIA

No violation of Article 6 - Right to a fair trial;No violation of Article 7 - No punishment without law;No violation of Article 9 - Freedom of thought conscience and religion;No violation of Article 10 - Freedom of expression -{General};No violation of Article 11 - Freedom of assembly and association;No violation of Article 14 - Prohibition of discrimination

András Baka;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze

The applicants are NORP nationals born in DATE , DATE and DATE , respectively . At the time of lodging their applications , the first and third applicants were detained at the PERSON prison in GPE and the second applicant was living in that city .

The historical and political background to the present case was set out in the judgments of the domestic courts referred to below and may be summarised as follows .

On DATE PERSON ’s GPE ( hereafter sometimes also referred to as the “ GPE ” ) signed a non - aggression treaty with PERSON ’s GPE ( the “ Molotov - Ribbentrop Pact ” ) . According to a secret additional protocol approved by the parties on DATE and amended on DATE , GPE had been attributed to the sphere of interest of the GPE in the event of a future territorial and political rearrangement of the territories of these then independent countries . Following an ultimatum to allow an unlimited number of NORP troops to be stationed in the NORP countries , on DATE the NORP army invaded GPE . The Government of GPE was removed from office , and a new government was formed under the direction of ORG of GPE ( hereafter “ the ORG ” ) , the GPE ’s only party . On DATE GPE completed the annexation of GPE by adopting an act incorporating the country into the GPE , with GPE being called the “ GPE ” ( the “ GPE ” ) . The Government of the ORG was appointed and controlled by ORG of GPE ( “ the CPL ” ) , a regional branch of the ORG .

In DATE there was considerable social pressure in GPE , as in other east NORP countries , for the democratisation of political life . As a result of the newly introduced freedom of expression in GPE , massive political movements were formed in GPE , condemning the annexation of the country , asserting the need to construct a new society based inter alia on NORP identity and values , and emphasising the need to restore the ORG ’s independence .

On DATE ORG of the GPE passed a ORG on ORG of the NORP - German Non - aggression DATE . It denounced that treaty as illegal and invalid ever since its signature . It noted that the territorial divisions into NORP and NORP spheres of influence had been contrary to the sovereignty and independence of several other countries , such as GPE . This was followed by LAW ORG on DATE denouncing the unlawful incorporation of GPE into the GPE in DATE .

By DATE , the ORG had decided to split from the ORG . The new ORG immediately declared its support for NORP independence and a multi - party political system . In the meantime , a minority of former ORG members created a new party , ORG ( ORG / ORG ) . According to its political programme , CARDINAL of its goals was to maintain GPE as part of the GPE .

The first independent parliamentary elections under NORP rule took place in GPE on DATE . No member of ORG was elected to ORG ) .

On DATE the newly elected ORG adopted the LAW on the Re - establishment of ORG , which declared GPE to be an independent , sovereign ORG again and asserted that GPE ’s incorporation into the GPE had been null and void . ORG also reinstated certain provisions of LAW of DATE , and adopted LAW , setting out the constitutional principles of ORG ( paragraphs CARDINAL - CARDINAL below ) . On DATE , ORG approved the Government of GPE and proclaimed the validity of all previous legislation and legal acts which were compatible with LAW .

GPE repeatedly pressured GPE to renounce its independence and , on DATE , demanded the cancellation of the DATE laws and then immediately imposed an economic blockade for the failure to comply . As a compromise , on DATE ORG adopted the ORG on ORG between GPE and ORG , announcing that , until DATE , it would not adopt new political legislative acts during preliminary parliamentary consultations between the CARDINAL countries , once they began . The GPE did not respond ; so , according to the respondent Government , the ORG did not come into effect .

On DATE ORG announced the temporary suspension of the actions and decisions flowing from the legislation of DATE , subject to the start of negotiations with GPE . It thereby sought to resolve the issues arising out of the re - establishment of the independent ORG ( see paragraph CARDINAL below ) . However , again , according to the Government , the suspension never took effect as GPE did not formally respond to the NORP authorities .

On DATE a meeting with the leaders of GPE was held at the FAC in GPE . The then President of GPE , Mr PERSON , refused to lift the economic blockade because he did not accept that a “ moratorium ” was possible in respect of the LAW on the Re - establishment of ORG . On DATE ORG appealed to ORG of the GPE , requesting that the illegal annexation of CARDINAL DATE be denounced , and that GPE ’s name be deleted from GPE .

On DATE ORG adopted a statement suspending the legal actions stemming from the LAW on the Re - establishment of ORG , subject to formal negotiations with GPE ( paragraph CARDINAL below ) . However , such negotiations never materialised and the conditional moratorium was denounced by ORG on DATE ( paragraph CARDINAL below ) . The moratorium , which any way , according to ORG , had been inoperative , did not affect the lawfulness of the LAW itself .

On DATE Article CARDINAL of LAW was amended to prohibit activities , inter alia , undermining the constitutional order of GPE , as distinguished from the previous prohibition on anti - NORP activities ( paragraph CARDINAL below ) .

On DATE President PERSON publicly required ORG to “ reinstate immediately the legal force of the GPE and ORG in GPE . ”

On DATE the ORG sent an ultimatum to ORG , ordering it to comply with the declaration of the GPE President . Failing that , ORG announced that it would create the “ ORG ” ( NORP nacionalinio gelbėjimo komitetas ) , “ which would take care of matters concerning the future of the ORG . ” On DATE ORG denounced the activities of this ORG as illegal , anti - constitutional , anti - state and criminal . It warned those involved that they would be held responsible in accordance with the laws of GPE .

DATE , the NORP army conducted military operations against ORG . NORP troops forcibly occupied the buildings of ORG , the GPE television tower , the NORP public television and media headquarters and the ORG train station . NORP troops also tried to take the seat of ORG and other authorities . Massive crowds from the local population came to the defence of the institutions of GPE . CARDINAL NORP civilians were killed and over a CARDINAL injured as a result of the conflict with the NORP army during TIME DATE .

On DATE a nation - wide plebiscite was organised in GPE , whereby the public was requested to reply to the question whether they supported the following statement : “ ORG is an independent and democratic Republic . ” DATE of those who participated in the referendum answered in the affirmative . On DATE ORG adopted a law which stated that the notion that “ ORG is an independent and democratic Republic ” was a basic constitutional principle of the country .

On DATE there was an attempted coup in GPE . The self - proclaimed “ ORG ” declared that President PERSON was suspended from his duties , nominated itself as the sole ruling authority and imposed a state of emergency in certain regions of the GPE . This coup ended in failure within DATE .

In the immediate aftermath of the GPE coup , in the course of DATE and DATE , the new ORG gained diplomatic recognition , inter alia from the GPE , ORG and GPE . The GPE was the CARDINALth State to recognise GPE as a subject of international law and a sovereign ORG , as defined in its “ fundamental acts of CARDINAL DATE ” . It renounced the DATE PERSON which had incorporated GPE into the GPE .

As regards the activities of ORG , ORG on DATE ORG had dismissed an application for the registration of the “ ORG ” , as it had been deemed to have aims which were incompatible with LAW . On DATE ORG issued the ORG on the activities of ORG in GPE . Thereby it confirmed the illegality of ORG and took steps to ensure its dissolution and the restoration of property which had been seized by that organisation and its subsidiaries whilst under the protection of the NORP military . According to the Government , until the NORP armed forces started to retreat after the failed putsch in GPE , it had not been possible to take effective measures against that organisation .

In DATE , the first criminal case was instituted in relation to an intervention by the NORP military against a protest meeting . Several offences were investigated . In the course of DATE , a total of CARDINAL other criminal cases were instituted against various members of or collaborators with ORG concerning their alleged attempts forcibly to overthrow the democratically elected authorities of GPE and their breach of the sovereignty of the ORG . Originally CARDINAL defendants had been envisaged , but several had fled to GPE and GPE , from where extradition was refused despite efforts made by NORP officials during visits to those countries . This lack of interstate cooperation impeded the investigation . CARDINAL people were tried ultimately , including the applicants , who had been executives of ORG and were suspected of subversive activities . The CARDINAL cases were subsequently joined in CARDINAL set of criminal proceedings . These proceedings became known in GPE as the “ DATE case ” , a reference to the tragic events during TIME of DATE ( paragraph CARDINAL above ) .

The first applicant was questioned several times as a witness in the aftermath of the failed GPE coup of DATE . On DATE he was arrested and interrogated in a detention centre as a suspect . He was released on bail on DATE , with a written undertaking not to leave the country . He was imprisoned after his conviction at first instance ( paragraph CARDINAL below ) .

On DATE it was decided to lay charges against the second applicant under LAW and CARDINAL of LAW . He was not remanded in custody , but had to provide a written undertaking not to leave the country . He was imprisoned after his conviction at first instance ( paragraphs CARDINAL - CARDINAL below ) .

The third applicant was indicted as a suspect in a criminal case which had been instituted on DATE . As he had fled , an arrest warrant was issued for him on CARDINAL DATE . He alleged that , on an unspecified date in DATE , he was kidnapped in GPE by the NORP authorities and unlawfully brought back to GPE . On DATE he was detained on remand until his subsequent conviction ( paragraphs DATE below ) .

The pre - trial investigation was concluded on DATE . From DATE until DATE , the first and second applicants had access to the case file . The third applicant had access to the case file from DATE until DATE .

In the course of the preliminary investigation , CARDINAL witnesses and CARDINAL purported victims were questioned . Moreover , CARDINAL expert examinations of various kinds were carried out . CARDINAL searches were conducted and CARDINAL seizures executed . According to the Government , attempts were made to destroy certain relevant materials and parts were found burnt . Time was needed to determine their contents . A significant part of the materials were in the NORP language , which necessitated translations . Furthermore , interpretation was required in the interrogation of several defendants .

On DATE the bill of indictment was confirmed with regard to CARDINAL co - defendants , including the applicants . The case consisting of CARDINAL volumes of evidence was sent to ORG for trial .

The trial started on DATE . The following day until DATE the prosecutors read out the bill of indictment , which alone comprised CARDINAL volumes . There were DATE of interruption due to the applicants’ ill - health .

On DATE , CARDINAL May , DATE , CARDINAL DATE and DATE and CARDINAL DATE , the trial was adjourned due to the state of health of certain other co - accused .

From DATE to DATE , the trial was adjourned due to the deterioration of the third applicant ’s health .

On DATE the court granted CARDINAL requests from purported victims for forensic medical examinations .

From DATE until DATE , the court was closed for the judicial holidays .

On DATE , DATE , DATE , DATE and DATE to DATE , the trial could not proceed due to the illness of CARDINAL or other of the defendants , or because of the absence of certain witnesses .

On DATE , DATE , CARDINAL - CARDINAL DATE , DATE to DATE , CARDINAL DATE to DATE and DATE , the trial was adjourned in view of the poor health of CARDINAL or other of the defendants .

From DATE , the trial was adjourned in view of the failure of CARDINAL of the defence lawyers to appear .

From DATE until DATE , the case was adjourned pending the judicial holidays .

From DATE until DATE , the case was adjourned at the request of the third applicant and his counsel for the preparation of the defence .

DATE , the court further adjourned the trial at the request of the third applicant and his lawyers , in order to prepare the defence to a modified charge .

From DATE , the parties were given an opportunity to reply to each other ’s questions .

On DATE , DATE , DATE and DATE and DATE , CARDINAL and DATE , DATE and DATE to DATE , the trial was adjourned in view of the illness of CARDINAL or other of the defendants or their legal representatives .

From DATE to DATE , the applicants made their final remarks before the trial court .

During the trial , CARDINAL witnesses and CARDINAL purported victims had been questioned .

According to information about the case submitted by the respondent Government , the proceedings involving NORP military personnel , including several accused who had fled and whose extradition was refused by the GPE , were still pending on DATE . Moreover , CARDINAL people who had suffered damage as a result of the NORP military intervention in DATE have applied for compensation .

DATE . On DATE ORG adopted a judgment in the case , consisting of CARDINAL pages . The applicants and their official defence counsel were present at the hearing .

In its judgment ORG mentioned the historical and political background to the case ( see paragraphs CARDINAL above ) , underlining that the ORG and ORG had been opposed to the democratisation of public life in GPE , and had only sought to maintain the status quo of NORP rule . During the period in question , from the LAW on the Re - establishment of ORG until the failed GPE coup of DATE , the ORG had been a very powerful organisation in view of its control over NORP security and the interior , as well as the military forces stationed on the territory of GPE and elsewhere . The ORG had used ORG to support its policing and military capabilities in GPE , targeted at stripping the legitimate Government of GPE of its powers . The ORG and ORG , being aware that their ideas were supported by only a small minority of the NORP population , had made attempts violently to overthrow the democratic regime . The applicants , the then senior executives of ORG , were found personally to have taken decisions or engaged in acts attesting to their involvement in the attempted coups . In particular , the following acts of the applicants were established by the trial court :

( i ) The first applicant had occupied the position of Secretary of ORG of ORG ; the second applicant had been a member of ORG of the CPL / CPSU and Director of the radio station “ NORP GPE ” ; the third applicant had been First Secretary of ORG of ORG .

( ii ) On DATE ORG had founded the “ ORG ” ( ORG piliečių komitetas ) , with the aim of stripping ORG of its powers , disobeying legislation passed by ORG , and reinstating the force of LAW and other NORP laws . The first and the third applicants had been members of the presidium of ORG .

( iii ) On DATE , on the initiative of the third applicant , the “ ORG ” ( ORG partinis komitetas ) had been founded for the purpose of creating independent police units under the authority of ORG .

( iv ) In DATE , on the initiative of the third applicant and other members of ORG , the so - called “ ORG ” ( Laisvųjų verslininkų asociacija ) had been created with the aim of co - ordinating the activities of the GPE economic structures based in GPE , as an alternative to the acting Government of GPE .

( v ) In DATE the applicants had established the radio station “ NORP GPE ” on the premises of ORG , forcibly occupied by NORP troops .

( vi ) On DATE the “ ORG ” had established “ Workers’ ORG ” ( darbininkų draugovės ) , their publicly proclaimed goal being “ to disobey unlawful forcible acts [ aimed at ] liquidating the socialist regime and unlawfully separating GPE from the GPE ” .

( vii ) On DATE ORG had organised the “ ORG ” ( NORP demokratinių jėgų kongresas ) , the third applicant being its President .

( viii ) In DATE the third applicant had presented to his ORG superiors in GPE a plan for “ GPE Presidential Rule ” in GPE . The third applicant had also been involved in organising various meetings and strikes in order to achieve the execution of that plan . Following which , on DATE President PERSON publicly required ORG to “ reinstate immediately the legal force of the GPE and ORG in GPE . ”

( ix ) On DATE ORG had sent an ultimatum to ORG , ordering it to comply with the declaration of the GPE President . Failing that , ORG had announced that it would create the “ ORG ” ( NORP nacionalinio gelbėjimo komitetas ) , “ which would take care of matters concerning the future of the ORG . ”

( x ) In addition to the ultimatum of DATE , ORG had made CARDINAL public declarations during the period from DATE , urging the forceful overthrow of the Government and the other authorities of independent GPE . The first and the third applicants had been responsible for preparing those declarations , whilst the second applicant had been responsible for disseminating them in the media .

( xi ) During the NORP ORG ’s invasion of the NORP public media headquarters and other buildings in GPE from DATE ( see paragraph CARDINAL above ) , the third applicant had actively collaborated with the ORG and the GPE authorities , inciting them to use military force , with the help of vigilantes , against the unarmed civilian population which had assembled to defend NORP independence around these buildings . The third applicant had therefore been an accomplice of the officers of ORG , who had murdered CARDINAL NORP civilians , severely injured QUANTITY people , and caused medium or mild bodily harm to QUANTITY persons . All the victims and the types of the injuries sustained during the confrontations during TIME DATE were listed in detail in the judgment . The applicants were also convicted in respect of the unlawful occupation of LOC .

( xii ) CARDINAL of the applicants’ co - defendants , PERSON , had been considered to be the founder of and main participant in ORG , which had been particularly active during the attempted coup of DATE . The first and the second applicants had also been held to have participated in the activities of this ORG by disseminating various public declarations on its behalf through the radio station “ NORP GPE ” . Those declarations had urged the forceful overthrow of the legitimate Government of GPE .

( xiii ) On DATE ORG had adopted a decision on the so - called ORG , declaring its creation and actions to be “ anti - constitutional , subversive and thus illegal . ”

( xiv ) Following the events of DATE , the applicants had continued unlawfully to occupy several buildings with the assistance of ORG , including the NORP public television and media headquarters in GPE .

( xv ) On DATE the ORG had unsuccessfully tried to organise a referendum on GPE ’s stay within the GPE , the third applicant having been particularly active in the matter .

( xvi ) The applicants had continued their subversive activities within ORG up until the failed GPE coup in DATE .

( xvii ) ORG was thus recognised as an anti - state organisation within the meaning of LAW as then in force ( see paragraph CARDINAL below ) . Similarly , ORG , ORG , ORG , the radio station “ NORP GPE ” , ORG , ORG and ORG were also recognised as such organisations , ORG having set up or controlled all of them .

( xviii ) As regards the first applicant , the court concluded that , in his capacity as the Secretary of ORG of ORG , he had publicly urged the forceful overthrow of the lawful Government of GPE and the abolition of the sovereignty of ORG , between the LAW on the Re - establishment of ORG and the failed coup in GPE in DATE . It was also found that the first applicant had obstructed the functioning of the democratically created institutions of independent GPE , and had participated in the activities of the anti - state organisations mentioned above .

The first applicant was convicted of offences under LAW of the then LAW ( publicly urging the forceful overthrow of the sovereignty of the State ) and LAW ( the creation of and participation in the activities of anti - state organisations ) . He was sentenced to CARDINAL years’ imprisonment .

As regards the second applicant , the court concluded that , in his capacity as a member of ORG of the CPL / CPSU and Director of the radio station “ NORP GPE ” , he had participated in the activities of anti - state organisations DATE and DATE . He had been responsible for broadcasting various transmissions , urging inter alia the forceful overthrow of the lawful Government of GPE and the abolition of the sovereignty of ORG .

The second applicant was convicted of an offence under the then LAW and sentenced to CARDINAL years’ imprisonment . He was acquitted of sabotage ( LAW ) .

As regards the third applicant , the trial court concluded that , in his capacity as First Secretary of ORG of ORG , he had participated in the activities of anti - state organisations , and had obstructed the functioning of the institutions of independent GPE DATE and DATE . He had also publicly urged the forcible overthrow of the lawful Government of GPE and the abolition of the sovereignty of ORG . It was further found that he had urged that NORP troops be used against the unarmed civilian population during the events of DATE , thus being responsible for the death of and injuries to the victims of those events .

The third applicant was convicted of offences under Articles DATE and CARDINAL of LAW . He was also convicted of complicity in aggravated murder and causing various types of bodily harm during the events of DATE ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , in conjunction with LAW as then in force ) . He was sentenced to CARDINAL years’ imprisonment , but acquitted of sabotage .

The other CARDINAL co - defendants were also convicted .

On DATE ORG amended the applicants’ conviction under LAW insofar as it related to their activities in ORG and its subsidiary organisations DATE and DATE . ORG found that , prior to the legislative amendment of DATE , LAW dealt with the activities of anti - NORP organisations , and could not be applied by analogy to the activities of anti - NORP organisations . However , in view of the legislative amendment , criminal responsibility was thereafter clearly established by Article CARDINAL for actions directed against the sovereignty of ORG ( see paragraph CARDINAL below ) . The court therefore held that the domestic criminal law did not provide for criminal responsibility on the ground of the ORG membership of ORG until DATE , and that they could only be convicted for their activities within that party and other anti - state organisations after that date .

The appellate court also quashed the third applicant ’s conviction insofar as it related to complicity in causing medium and mild bodily harm ( Articles CARDINAL and CARDINAL of the then Criminal Code , in conjunction with LAW ) in view of the expiry of the statutory time - limit for bringing criminal proceedings in respect of those offences . His conviction remained insofar as it related to his being an accomplice to aggravated murder and causing serious bodily harm ( Articles CARDINAL and CARDINAL of the then Criminal Code , in conjunction with Article CARDINAL ) .

The first and the third applicants’ convictions under LAW of the LAW and their sentences remained unchanged . The second applicant ’s sentence was reduced to DATE and CARDINAL months’ imprisonment .

The Court of Appeal otherwise confirmed a substantial part of the first instance court ’s findings and held that , under international law , the new Government of GPE had had legitimate authority as of DATE over the territory of GPE , and that the occupation and annexation by GPE for DATE had been annulled as of DATE . The later recognition of this fact by foreign States merely acknowledged the existing reality . The fact that it took the new Government time to replace the previous NORP structures of the ORG did not imply any continued dependence on the GPE . However , the applicants , being leading anti - state activists and communist party executives , had unlawfully sought to overturn ORG and re - instate NORP power .

On DATE ORG dismissed the ORG cassation appeals . That decision was final .

The first applicant ’s attempts to obtain release on licence were to no avail . It seems he was eventually released on DATE . On an unspecified date the second applicant was also released from prison after having served his sentence . The third applicant was released on DATE .

The Act on the Re - establishment of ORG was worded as follows :

“ ORG , expressing the will of the Nation , decrees and solemnly proclaims that the execution of the sovereign powers of ORG , abolished by a foreign force in DATE , is re - established , and henceforth GPE is again an independent ORG .

The Act of Independence of DATE of ORG [ ORG ] of CARDINAL DATE on the re - established democratic State of GPE have never lost their legal effect , and constitute the constitutional foundation of ORG .

The territory of ORG is whole and indivisible , no constitution of another State being effective on it .

The State of GPE stresses its adherence to the universally recognised principles of international law , recognises the principle of the inviolability of borders , as formulated in LAW of the Helsinki Conference on Security and Co - operation in LOC of DATE , and guarantees human , civic and ethnic community rights .

ORG , expressing sovereign power , by this LAW begins to realise full State sovereignty . ”

On DATE , by the PERSON on the Re - instatement of LAW of CARDINAL DATE , ORG restored certain essential provisions of the original NORP LAW , thereby discontinuing the effect of LAW of DATE and LAW of DATE .

On DATE ORG adopted LAW pagrindinis įstatymas ) , setting out the constitutional principles of the newly restored ORG of GPE . In particular , this PERSON referred to GPE as a sovereign democratic republic , the power being vested in the people and exercised by ORG , the ORG and the judiciary . Moreover , it provided that all earlier laws and legal acts continued to be in force as long as they were not incompatible with the new LAW . It remained valid ORG until DATE .

On DATE ORG decided that all the authorities of the GPE and the ORG and any public institution on the territory of GPE fell under the jurisdiction of GPE . By these provisions , as well as by LAW of DATE , ORG were empowered to exercise full control over all institutions on the territory of the country .

On DATE ORG . CARDINAL - CARDINAL suspending the implementation of acts and decisions originating in the laws passed on DATE , subject to and pending official negotiations with the GPE . The ORG was to come into effect at the start of negotiations . However , by ORG No . CARDINAL dated DATE , it was declared null and void with immediate effect .

DATE . It was replaced by a Statement of CARDINAL DATE , announcing a DATE extendable moratorium on the LAW on the Re - establishment of ORG , and the legal acts stemming from that legislation , to start when negotiations with the GPE would be underway :

“ ORG ,

Expressing and continuing to express the sovereign powers of ORG , re - establishing the independent ORG GPE , and seeking interstate negotiations between GPE and ORG for the purpose of the execution of all those powers ,

Declares , from the start of such negotiations , a moratorium of DATE on the LAW on the Re - establishment of an ORG of GPE ; that is , it suspends the legal actions stemming from that LAW .

The start of negotiations between GPE and the GPE , their aims and conditions , shall be determined by a special protocol of the parties’ authorised delegations .

ORG can extend the moratorium or revoke it . The moratorium automatically loses force with the breakdown of negotiations .

If , as a result of any other events or circumstances , ... ORG will not be able to execute normally the functions of ORG government , the moratorium will lose force at the same time . ”

On DATE ORG adopted the Law on Political Parties , which confirmed that the political parties of other GPE and parties operating outside the framework of LAW would be considered illegal . LAW provided that such parties could not obtain the necessary registration . Political parties would be accepted for registration only in “ the interests of the consolidation of the independent and democratic State of GPE ” .

On DATE the Statement ( moratorium ) of CARDINAL DATE was denounced by ORG , and was not referred to again in official documents . Taking into account the fact that the GPE delegation did not agree to sign a protocol for the start of interstate negotiations , ORG renounced the principles laid down for that procedure , including the conditional moratorium . It envisaged the possibility that negotiations could nevertheless start without signing a protocol , but only if the sovereignty of ORG were not violated .

In view of the response given by the majority of the NORP population in a nation wide referendum , on DATE ORG adopted a law stating that the notion that the “ NORP State is an independent and democratic republic ” was a basic constitutional principle .

On DATE ORG adopted a decision “ on the so - called ORG ” , in which it declared its creation and actions to be “ anti - constitutional , subversive and thus illegal . ”

On CARDINAL DATE ORG adopted a decision confirming the illegality of ORG .

The applicants were convicted under LAW which had been adopted by ORG on DATE , and which continued to apply to the territory of GPE , with numerous amendments , until the entry into force of a new LAW on CARDINAL DATE .

On the basis of LAW DATE , the provisions of LAW ( hereafter the “ LOC ) were deemed to apply following the re - establishment of GPE ’s independence as long as those provisions were compatible with that legislation ( see paragraph CARDINAL above ) .

DATE . DATE dealt with issues of complicity .

Article CARDINAL of the ORG punished anti - NORP agitation and propaganda . It penalised , inter alia , especially serious crimes against GPE and the propagation of NORP , defamatory fiction . By a legislative amendment of CARDINAL DATE , which came into force on DATE , Article CARDINAL of the ORG was rephrased , specifying the criminalisation of acts directed against the sovereignty of GPE . Paragraph CARDINAL of that Article punished such acts , if committed at the request of a foreign ORG or organisation , with CARDINAL years’ imprisonment .

Article CARDINAL of the ORG prohibited the creation of and active participation in anti - NORP organisations with a view to preparing or committing especially serious crimes against the ORG . Following the legislative amendment of DATE , LAW was rephrased to prohibit participation in acts aimed at disturbing the public or social order established by LAW ) , to limit the sovereign powers of ORG or to separate any part of its territory by force .

Prior to these amendments to LAW , on DATE the PERSON on the Rehabilitation of Persons Repressed for Resistance to the Former Occupying Regimes was adopted by ORG . Thereby those persons who had been convicted under the previous anti - NORP version of Articles DATE and CARDINAL of the ORG were declared innocent in the eyes of GPE and their civil rights restored to them .

Article CARDINAL of the ORG punished acts of aggravated murder .

Article CARDINAL of the ORG punished acts causing serious bodily harm .

ORG monitored the Human Rights situation in GPE , which process included a visit by a delegation to that country and a meeting with the third applicant in FAC . The Rapporteur commented afterwards in his report of DATE ( AS / PERSON ) that :

“ CARDINAL . The main conclusion to be drawn is that justice can not be used as a means of mastering recent history , concerning which very little research exists . There is a great danger of inspiring and feeding a desire for revenge in the national conscious and unconscious , thus bringing about new injustices .

For example , it is impossible to determine the degree of independence , and hence the responsibility , of a provincial NORP party leader before historical research has been done to assess the decision - making autonomy and the real powers of such an official under the NORP party system that prevailed in the former GPE . ”


Violation of Art. 5-3;Not necessary to examine Art. 6-2;No violation of Art. 8

The applicant said that his name was PERSON and that he was born in DATE in GPE ( GPE ) . However , according to ORG ( Oberlandesgericht ) , his real name was PERSON and he was born in DATE in GPE ( GPE ) .

On DATE the applicant , who had enjoyed political refugee status in GPE since DATE , was arrested at the NORP border on suspicion of being a member of a terrorist organisation ( Article CARDINALa of LAW ) and of forging documents ( LAW ) .

On DATE the investigating judge at ORG ( ORG ) issued a warrant for the applicant 's detention pending trial . The applicant remained in custody until DATE .

On DATE ORG started a judicial investigation into the activities of the applicant and CARDINAL other leaders of the ORG ( ORG of Kurdistan ) .

NORP On DATE ORG of ORG made an order for the main proceedings , which included CARDINAL other charges against members of the ORG , to begin .

The proceedings had been brought against DATE accused and concerned CARDINAL murders and CARDINAL abductions , the structure of the terrorist organisation and a further CARDINAL murders that had been committed within the organisation .

The trial began on DATE and ended on DATE after DATE in court .

At the hearing on DATE the public prosecutor asked ORG to inform the applicant , in accordance with LAW , that the charges he was facing could entail a conviction for murder ( LAW ) and for his activities as a leader ( PERSON ) of a terrorist organisation ( LAW ) .

By a decision of DATE , ORG ruled that the accused , PERSON , faced convictions for being a member of a terrorist organisation and for murder , but not for his activities as a leader of that organisation .

CARDINAL defendants were no longer involved in the proceedings : CARDINAL defendants had been discharged in DATE CARDINAL owing to the minor nature of the charges ( PERSON ) , the other because of unfitness to stand trial ( PERSON ) DATE while in DATE CARDINAL others had fled the country and CARDINAL had been convicted of separate offences .

While the applicant was in detention pending trial , his correspondence with his lawyer was monitored under powers contained in Article CARDINAL § CARDINAL of LAW ...

NORP In a CARDINAL-page judgment of DATE ORG convicted the applicant of being a member of a terrorist organisation and sentenced him to DATE imprisonment ( LAW ) . It found that he had been one of the founders of the ORG in DATE , had set up units in GPE and GPE and had been in charge of recruitment in those countries .

It added that in DATE the applicant had led armed resistance in GPE until he was deposed by PERSON , after being accused of incompetence and authoritarianism . Subsequently he had been assigned to the ORG 's NORP headquarters in GPE with PERSON , who was later to become the main prosecution witness ( GPE ) against him .

ORG said that from DATE the applicant had been a member of the executive committee of the ORG , with responsibilities for , inter alia , surveillance and intelligence . At executive committee meetings he had proposed to identify and collect information on groups within the ORG that were hostile to Öcalan , to combat them , liquidating them if necessary . He had also helped to compile lists of persons to be liquidated .

In a judgment of DATE ORG dismissed the applicant 's appeal , holding that the judgment of ORG did not contain any errors of law that had operated to his detriment .

On DATE the applicant lodged a constitutional appeal with ORG ( Bundesverfassungsgericht ) , in which he alleged in particular a violation of LAW on the ground that he had not been brought to trial within a reasonable time , and that his correspondence had been monitored unlawfully .

On DATE a CARDINAL - member committee of ORG refused to examine the appeal .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure lays down that remand prisoners may communicate in writing and orally with their lawyers .

The first sentence of Article CARDINAL § CARDINAL of LAW reads as follows :

“ If the accused is in custody and the investigation concerns an offence under LAW [ membership of a terrorist organisation ] , access to written or other documents must be refused unless the sender agrees to their first being examined by a judge ... In cases in which correspondence has to be monitored ... adequate measures shall be taken to avoid written or other documents being handed over at meetings between prisoners and their lawyers . ”

The purpose of the exception set out in Article CARDINAL § CARDINAL of LAW is to prevent prisoners suspected of an offence under LAW from continuing to work for the terrorist organisation to which it is alleged they belong and contributing to its survival ( ORG , ORG no . CARDINAL , p. CARDINAL ) .

Article CARDINALa of the Code of Criminal Procedure provides that the judge with responsibility for such surveillance measures is the judge of the district court where the prison is located and that he or she shall not have , and may not be assigned , conduct of the investigation and shall keep the information thus obtained confidential , unless it concerns a serious or very serious offence , such as an offence under LAW CARDINAL or CARDINAL of LAW .


The applicant , Mr PERSON , was born in DATE and lives in GPE ( GPE ) . He has double nationality ( NORP and NORP ) .

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

On DATE the applicant was arrested in GPE in execution of a warrant issued by ORG on DATE . The applicant had been sentenced in GPE to DATE months’ imprisonment for drug smuggling and money laundering .

A hearing before ORG was scheduled for DATE . On that occasion the applicant was assisted by a lawyer and an interpreter .

By an order of DATE , ORG validated the applicant ’s arrest and placed him in detention with a view to extradition . It observed that the NORP authorities had declared their intention to apply for the applicant ’s extradition according to LAW between GPE and GPE ( signed on DATE and ratified by NORP law n CARDINAL of CARDINAL DATE ) . Taking into account the fact that the applicant had absconded for DATE , ORG considered that a restrictive measure was necessary to prevent him from fleeing pending trial . This decision was served on the applicant on DATE in its NORP version only .

In the meantime , on DATE , the applicant was heard by a magistrate of ORG . He declared that he did not accept extradition to GPE .

On DATE the applicant personally introduced a claim for immediate release before ORG . This claim , drafted in NORP , was based on LAW , according to which the provisional arrest of a person to be extradited should be revoked if an extradition request was not lodged with the competent executive authority within DATE time - limit .

By an order of DATE , ORG dismissed the applicant ’s claim . It observed that on DATE the NORP authorities had filed with ORG a request for the applicant ’s extradition . The time - limit laid down in Article PERSON of LAW had therefore been complied with . This order was served on the applicant on DATE .

On DATE the applicant appealed on points of law . He alleged that the term “ executive authority ” contained in LAW could not be understood as a reference to ORG , and considered that the request for his extradition should have been lodged with ORG or with ORG itself . He also maintained that there was no evidence that the extradition had actually been requested .

On CARDINAL , CARDINAL , DATE , DATE and DATE , as well as on DATE , DATE and DATE , the applicant personally lodged a number of claims , drafted in LANGUAGE , with ORG . Invoking inter alia LAW , CARDINAL § CARDINAL , QUANTITY ( a ) and ( d ) of the LAW , he alleged that his arrest and detention were tantamount to torture or inhuman treatment , that none of the official documents concerning his deprivation of liberty had been translated into LANGUAGE and that he should be immediately released . He also observed that the doctor attached to the prison was unable to deal with his nerve , back and chronic ulcer problems and requested a visit from a specialised doctor , assisted by an interpreter , or a transfer to a private hospital for clinical tests . The applicant also requested the attendance and examination of a number of witnesses who could have testified that GPE wished to punish him by reason of his political beliefs .

On DATE the applicant , relying inter alia on Articles CARDINAL § CARDINAL ( b ) , ( c ) and ( e ) and CARDINAL of the Convention , requested permission to defend himself in person , to have adequate time and facilities for the preparation of his defence , to have the free assistance of an interpreter and not to be discriminated against on grounds of language and national origin .

By an order of CARDINAL DATE , ORG declared the applicant ’s claims inadmissible as they had been drafted in a foreign language . It observed that , according to the relevant provisions of LAW ( hereinafter the “ ORG ” ) , a person should be assisted by an interpreter at the trial hearing and that the only material which should be translated was that addressed to the person to be extradited or made in front of him or her by the authorities . No free translation was provided when , as in the present case , the person to be extradited was addressing , almost on a DATE basis , various different claims to the judicial authorities . In any case , the person to be extradited was entitled , under NORP law , to the assistance of an NORP - speaking lawyer and/or to the consular assistance of his or her own ORG . On DATE this decision was served on the applicant in its NORP and LANGUAGE versions .

On DATE the applicant appealed on points of law to ORG against the order of CARDINAL DATE , which he considered to be discriminatory in nature and based on a misinterpretation of the ORG and the Convention . He also alleged that he had never been offered consular assistance from ORG . The result of this appeal is not known .

In the meantime , on DATE the applicant personally introduced a claim , drafted in NORP , before ORG . He requested the appointment of a lawyer , the assistance of an interpreter and the translation of LAW ( hereinafter , the “ CC ” ) , of the ORG and of all the documents received up to then .

By an order of DATE , ORG rejected this claim , pointing out that the applicant had already been provided with an LANGUAGE translation of all the relevant legal acts and that an interpreter had been appointed for the hearing on extradition scheduled for DATE . It also observed that the applicant was already assisted by a lawyer of his own choosing , who had a thorough knowledge of the NORP language . NORP law did not provide for the translation of the ORG or the ORG . This decision was served on the applicant in LANGUAGE .

The hearing scheduled for DATE was postponed . On DATE , ORG requested the NORP authorities to provide evidence showing that the charges against the applicant were not time - barred .

The hearing on the extradition request before ORG was scheduled for DATE . A copy of the summons for trial was served on the applicant in its LANGUAGE version . At the public hearing the applicant declared that the real aim of the extradition was to persecute him because of his political opinions .

By a judgment of DATE , filed with the registry on CARDINAL DATE , ORG ruled in favour of the applicant ’s extradition in relation to the charge of financial transaction of goods originating from drug trafficking . It observed that the applicant had been convicted in GPE ( on the basis , inter alia , of his confession ) only for that crime and not , as wrongly indicated in the order of DATE , for drug trafficking . As to the merits of the request , ORG noted that , according to the relevant provisions of LAW , the NORP authorities had provided a copy of the applicant ’s conviction and of the subsequent warrant for his arrest , a full description of the facts for which the extradition was requested and of their legal qualification in the NORP system . Moreover , nothing in the file showed that the extradition was aimed at persecuting the applicant on racial , religious or political grounds . As regards the alleged time - bar on the charge , it appeared from the documents produced by the NORP authorities that GPE law prohibited the execution of a penalty only if the formal accusation was made DATE after the date on which the offence had allegedly been committed . However , the crime for which the applicant ’s extradition was requested had been committed on DATE , while the formal indictment had been issued on DATE . Therefore , the DATE time - limit had not expired .

On DATE , this judgment was served on the applicant in its NORP and LANGUAGE versions .

The applicant appealed on points of law .

By an order of DATE , ORG scheduled the hearing for DATE and appointed a legal representative . This order was served on the applicant in NORP on DATE .

On DATE the applicant requested ORG to appoint an interpreter for the hearing of DATE . The proceedings were subsequently adjourned until DATE . The applicant alleges that on that date he was refused the assistance of a lawyer and/or of an interpreter .

By a judgment of DATE , ORG rejected the applicant ’s appeal .

On DATE the applicant requested ORG to declare that the extradition procedure was null and void , as he had been denied the assistance of a legal representative and an interpreter . The result of this claim is not known .

On DATE ORG granted the GPE extradition request .

On DATE the applicant was extradited to GPE , where he was imprisoned until DATE , having served his sentence with remission .


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

The applicant was born in DATE and lives in GPE .

The applicant is the owner of a flat in GPE , which he had let to A.R.

In a registered letter of CARDINAL DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .

In a writ served on the tenant on CARDINAL DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before ORG .

By a decision of CARDINAL DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .

On DATE , the applicant served notice on the tenant requiring her to vacate the premises .

On DATE he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on CARDINAL DATE .

DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the applicant recovered possession of his flat .

The relevant domestic law is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


The applicant , Mr Vyacheslav PERSON , is a NORP national who was born in DATE and lives in ORG . The respondent Government were represented by their ORG , PERSON and Mr Y. GPE .

On DATE ORG ( Новогродівський міський суд PERSON області ) awarded the applicant CARDINAL hryvnyas ( ORG ) in salary arrears against the private company СJSC “ Vuglevydobutok ” ( “ the Company , ” GPE акціонерне товариство “ Вуглевидобуток ” ) . This judgment was not appealed against and became final in DATE .

On DATE ORG ( “ ORG , ” PERSON державної виконавчої служби PERSON міського управління юстиції PERSON області ) refused to initiate the enforcement proceedings owing to the lack of territorial jurisdiction and instructed the applicant to apply to ORG ( “ PERSON , ” PERSON державної виконавчої служби LOC міського управління юстиції PERSON області ) .

Having never submitted the enforcement writ to ORG , the applicant appealed to court , alleging that the institution of the enforcement proceedings in PERSON would have been futile , as the ORG ’s major assets were located in ORG .

On DATE ORG rejected these claims , having noted that that the ORG ’s headquarters were located in PERSON and that contrary to the applicant ’s assertions it had no assets in ORG .

On DATE the ORG ( the “ ORG ” , PERSON суд PERSON області ) upheld this judgment .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

On DATE the Donetsk Regional Commercial Court ( Господарський суд PERSON області ) initiated bankruptcy proceedings against the Company and on DATE declared it bankrupt , having appointed Mr L. as a trustee to run the liquidation program .

On DATE the applicant re - submitted the enforcement writ to ORG , who returned it instantly , having instructed the applicant to submit it to the trustee in bankruptcy .

On an unspecified date the applicant requested the ORG to facilitate the enforcement of the judgment given in his favour .

On DATE the applicant challenged the trustee ’s alleged omissions in enforcing the judgment before ORG . On DATE the court rejected his complaints . It found that the trustee had acted in good faith , but the enforcement was impeded by the ORG ’s lack of funds , caused , inter alia , by the failure of the ORG and the ORG - owned mining companies ( ДВАТ шахта “ GPE CARDINAL ” and ДВАТ шахта “ ORG ” ) to pay off their debts .

On DATE the ORG of Appeal quashed this judgment and remitted the case for a fresh consideration , having found that the first - instance court ’s analysis was superficial and unsupported by documentary evidence .

The ORG has no further information about the proceedings .

As of DATE the judgment of CARDINAL DATE remained unenforced .

The relevant domestic law is summarised in the judgments of ORG v. GPE no . CARDINAL , § § CARDINAL , DATE and ORG v. GPE , no . GPE , § § CARDINAL - CARDINAL , CARDINAL DATE ) .


Isabelle Berro-Lefèvre;Mark Villiger;Renate Jaeger

The applicant was born in DATE and lives in Lohne . He is a dentist and member of ORG ( ORG ) ( “ the ORG ” ) , the self - governing body of the contractual dentists practising in GPE . The ORG is responsible for , inter alia , entering into contracts with public health insurers on behalf of its members , checking costs claimed by its members , distributing reimbursements for contractual work paid by public health insurers , and allocating the effects of austerity measures in the public health sector among its members .

On DATE the applicant brought an action against ORG , a public health insurance company , before ORG ( “ the ORG ” ) , seeking assistance in the institution of compensation proceedings for alleged mistreatment of his mother during hospitalisation preceding her death caused by cardiac arrest at DATE .

On DATE ORG dismissed the action .

On DATE the applicant appealed . ORG ( “ ORG of appeal ” ) held oral hearings on DATE and on DATE . It dismissed the appeal on the last - mentioned date , holding that the respondent had sufficiently assisted the applicant by commissioning an expert opinion and declaring the applicant 's further complaints inadmissible because they had not been raised before ORG .

On CARDINAL DATE the applicant lodged a constitutional complaint .

On DATE ORG declared the applicant 's constitutional complaint inadmissible without giving further reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE he brought an action against the ORG before ORG which suspended the proceedings at the parties ' request on DATE .

On DATE the ORG modified the impugned decision , stipulating that the applicant was entitled to PERSON ( ORG ) of the DEM CARDINAL,CARDINAL.CARDINAL claimed .

On DATE ORG dismissed the action after having rescheduled an oral hearing at the applicant 's request . The applicant 's requests for rectifications of the judgment and the transcript of the hearing were to no avail . His attempts to institute criminal proceedings against the presiding judge were unsuccessful .

On DATE ORG dismissed the applicant 's appeal .

Furthermore , the applicant unsuccessfully pursued inactivity and constitutional complaint proceedings before ORG and ORG .

On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE , stipulating that he was entitled to CARDINAL,CARDINAL.CARDINAL MONEY ( ORG ) of the ORG CARDINAL,CARDINAL.CARDINAL claimed .

On DATE he brought an action against the ORG before ORG , which rejected the claim on DATE .

The applicant appealed before ORG .

On DATE ORG declared the applicant 's constitutional complaint that ORG had taken no action manifestly inadmissible as clearly insufficiently substantiated and imposed a fine of ORG CARDINAL,CARDINAL for abuse of process ( CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG dismissed the applicant 's request for rectification ; the applicant 's appeal against that decision was to no avail .

On DATE the ORG provisionally determined the applicant 's remuneration as a contractual dentist for DATE . According to the decision the applicant was entitled to DEM CARDINAL,CARDINAL.CARDINAL of the DEM CARDINAL,CARDINAL.CARDINAL claimed .

On DATE he brought an action against the ORG before ORG , which granted the action in part on DATE .

On DATE the applicant appealed before ORG .

On DATE the ORG rendered a final decision which supplanted the impugned decision .

On DATE ORG dismissed the appeal . On DATE , DATE and CARDINAL DATE ORG dismissed challenges for bias against CARDINAL of its judges ; the applicant 's appeals for the right to be heard against these decisions were to no avail . On DATE ORG dismissed the applicant 's requests for rectification of the judgment and the transcripts .

On DATE ORG refused leave to appeal on points of law .

On DATE the ORG , in applying a decision of its council on the allocation of the effects of austerity measures for contractual dentists among its members , provisionally deducted DEM CARDINAL,CARDINAL.CARDINAL from the amount claimed by the applicant in respect of his remuneration as a contractual dentist for DATE .

On DATE he brought an action against the ORG before ORG which was dismissed on DATE .

On DATE the ORG amended the impugned decision .

On DATE ORG suggested a friendly settlement .

On DATE the ORG replaced the impugned decision .

On DATE ORG dismissed the appeal as inadmissible . On DATE it dismissed the applicant 's request for rectification and as inadmissible the applicant 's appeal for the right to be heard . The applicant 's challenges for bias against CARDINAL judges were unsuccessful , as were his appeals for the right to be heard against these decisions .

On DATE the ORG provisionally determined the applicant 's remuneration as a contractual dentist for DATE , stipulating that he was entitled to DEM CARDINAL,CARDINAL.CARDINAL of the DEM CARDINAL,CARDINAL.CARDINAL claimed .

On DATE the applicant appealed before ORG , which dismissed the applicant 's appeal on DATE .

The applicant appealed before ORG . On DATE ORG stayed the proceedings and resumed them on DATE . On CARDINAL DATE it dismissed the applicant 's appeal .

On DATE the ORG dismissed the applicant 's request for a hardship allowance for DATE .

DATE . On DATE the applicant made an unsuccessful administrative complaint .

On DATE the applicant brought an action against the ORG before ORG , which dismissed the action on DATE .

On DATE the applicant appealed before ORG , which dismissed the appeal on CARDINAL DATE , after having previously dismissed the applicant 's challenges for bias against CARDINAL judges and his appeals for the right to be heard against these decisions .

On an unspecified date the applicant made an administrative complaint which was dismissed on DATE .

On DATE ORG declared the applicant 's constitutional complaint that ORG had taken no action manifestly inadmissible as clearly insufficiently substantiated , and imposed a fine of ORG CARDINAL for abuse of process ( CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG dismissed the applicant 's request for rectification ; his appeal against that decision was to no avail .

On DATE ORG dismissed the applicant 's appeal against the judgment of CARDINAL DATE .

On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE . According to the decision the applicant was entitled to payment of ORG CARDINAL,CARDINAL.CARDINAL of the ORG CARDINAL,CARDINAL.CARDINAL claimed .

On DATE the ORG determined the applicant 's remuneration as a contractual dentist for DATE , stipulating that he was entitled to ORG CARDINAL,CARDINAL.CARDINAL of the GPE claimed .

On DATE the applicant made an unsuccessful administrative complaint . On DATE he brought an action against the ORG before ORG , which dismissed the action on DATE .

On DATE ORG declared the applicant 's constitutional complaint that ORG had taken no action inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .

DATE . On CARDINAL DATE ORG dismissed the applicant 's appeal .


The applicant was born in DATE and is currently in ORG after periods in other prisons , including PERSON . He is suffering from Aids , which he says he contracted in DATE , DATE before he was sent to prison .

On DATE a warrant was issued for the applicant 's arrest in connection with a number of serious offences . On DATE ORG convicted him of murder , attempt , armed robbery , and the false imprisonment and kidnapping of minors aged DATE and of adults . It sentenced him to DATE imprisonment , of which a minimum of DATE were to be served . On DATE he received an DATE sentence from ORG for attempted escape from lawful custody and assault . On DATE ORG convicted him of false imprisonment followed by mutilation , murder and attempted armed robbery . It sentenced him to DATE imprisonment , with a minimum of DATE to be served .

On DATE ORG of ORG ordered that the sentences imposed by the CARDINAL ORG should run concurrently in part , with the overall sentence not to exceed the statutory maximum of DATE . The minimum period to be served was increased to DATE . The applicant will now become eligible for parole on DATE .

He has been held in various prisons . At the time his application was lodged , he had been in ORG since DATE .

In DATE it was decided to transfer him to ORG on the grounds that : “ This transfer will enable family ties to be maintained with his partner , as the prisoner 's condition appears to warrant ” .

According to information supplied by the ORG , the applicant lodged an application for a pardon on medical grounds on DATE with the support of an association called LAW Up . ORG asked ORG at ORG to appoint a medical expert to report on the applicant 's condition and life expectancy , and to advise whether his condition and current or foreseeable treatment were compatible with his detention in prison or in a special facility .

The Government stated that the application was turned down on DATE , after the applicant had refused to agree to a medical examination or to allow the expert access to his records .

While in FAC the applicant made an initial application for his sentence to be suspended under LAW , a provision that had only recently been introduced .

The judge responsible for the execution of sentences ordered a medical report advising , inter alia , on the applicant 's condition , whether he was suffering from an illness that compromised his chances of survival and whether his condition was permanently incompatible with his continued detention .

The expert , PERSON , lodged his report on DATE . After stating that the applicant had refused to undergo an examination and that the report was based solely on the medical records , he noted that the infection had spread and that the applicant 's condition had deteriorated , in particular because he had refused all treatment for DATE . He added :

“ His condition necessitates his total , unfailing commitment to take his medication regularly and to undergo regular biological tests to assess how he is responding to treatment and whether the illness has been stabilised . All opportunistic infection must be warded off . The promiscuous nature of the prison environment makes it a source of such infection . The current increase in the viral load means that the prognosis is very poor and , and unless the patient responds to treatment , things may deteriorate very rapidly . ”

Dr B. also noted that mentally the applicant was opposed to and refused all medical treatment and regular monitoring . He said in conclusion :

“ Mr PERSON chances ( of survival ) can be regarded as compromised . While it is neither possible , nor realistic , to predict the future , the following remarks may be made on the basis of the information in the medical records :

Despite having had no treatment for DATE and the increase in his viral load , Mr ORG has not had any major life - threatening problems of infection requiring highly specialised care in a special facility .

The treatment Mr PERSON is required to take is oral , simple and can be administered in a prison environment . Monitoring is the responsibility of a medical team that is aware of the problem and composed of prison doctors and specialists in infectious diseases of the highest order .

No one can safely predict what Mr PERSON attitude will be and whether he will agree to treatment in a particular environment .

Although I have not been able to examine PERSON , having read the voluminous file and DATE medical records and having questioned prison staff , I consider that his condition is currently compatible with continued detention . It will always be possible , if he so wishes and if his symptoms worsen , for him to be re - examined at DATE , at which point the opinion of a psychiatrist should also be sought . ”

Following his transfer to ORG , the applicant made a fresh application to ORG on DATE for an order suspending his sentence .

In an order of CARDINAL DATE , the judge responsible for the execution of sentences requested medical reports from PERSON

In his report of CARDINAL DATE , PERSON noted :

“ Mr PERSON is carrying a serious disease : Aids . The diagnosis has been confirmed by the biological analyses ( serology , viral and lymphocyte TCARDINAL count ) and by the existence of other diseases , so called communal diseases , in association with HIV .

The disease was contracted DATE . Mr PERSON himself says that it dates from DATE and openly admits that he refused treatment until DATE .

The prognosis , whether in the short , medium or long - term , is grim . The specific treatment is onerous and can only be administered – with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure . This is the crux of the matter . In view of the seriousness of Mr PERSON condition and his disorders , which may be described as severe borderline syndrome , what is the solution ? On CARDINAL point , we entirely agree with the prisoner : he must be admitted to hospital for an assessment of the Aids position and its potential evolution and a check on the associated diseases : mycosis of the digestive tract , cutaneous mycosis , neuropathy and particularly tuberculosis . Although the tuberculosis appears to have been cured , in the United States Aids patients with tuberculosis are kept in permanent quarantine , as the NORP specialists consider that they are unable to cure tuberculosis in Aids patients and that the risk of infection is too high . That concern needs to be addressed .

All things considered , Mr PERSON is able to tolerate detention in prison provided he is kept under strict medical supervision .

Detention in a hospital would , however , be more compatible with his condition . Beyond the short term , that is to say the assessment of the potential evolution of the diseases , the question of compatibility will need to be reviewed , it being borne in mind that , since we are dealing with diseases that are severe , infectious and fatal , continued treatment outside the current setting would be risky . ”

Dr F. said in conclusion :

“ PERSON is receiving treatment for a confirmed case of Aids . He has also been treated for tuberculosis . These diseases , related illnesses ( mycosis , various infections , neuropathy ) and severe psychopathy require assessment and his admission to hospital .

The treatment he is receiving in detention in PERSON is entirely appropriate , compatibility with detention is reasonable under medical supervision , but it would be more coherent for him to be treated in hospital . ”

In his report of CARDINAL DATE , PERSON gave the following answers to questions he had been put by the judge :

“ ... ORG Seriousness of the illness and prognosis

PERSON has been infected by the Aids virus , category ORG under the GPE classification . He has had opportunistic complications that have been treated . He will shortly have been receiving treatment for DATE , starting with a bitherapy which proved ineffective after DATE followed by tritherapy , which was effective , but was suspended DATE in DATE owing to neurological complications .

DATE he began quadritherapy in GPE but stopped taking his medication for a period of DATE .

He resumed treatment in DATE following the reappearance of adenopathy and a genital infection , but this has produced no results as he has refused treatment since DATE . Since his transfer to PERSON , the situation has got worse and the level of TCARDINAL has decreased .

There is a risk of death in the short to medium term .

CARDINAL/ Treatment required

The quadritherapy started DATE is no longer effective . The patient is due to attend ORG for medical treatment which has become more onerous as a result of his poor general health . A more thorough examination is needed and can only be performed in a special facility . There is virtually no other treatment left to offer Mr PERSON against the Aids virus , beyond the detection and treatment of other opportunistic infections , in particular , of the digestive tract ...

CARDINAL Whether his condition is compatible with detention in prison or requires special treatment that is only available in hospital

PERSON condition is no longer compatible with detention in prison and requires treatment that is only available in hospital .

CARDINAL/ Whether he is suffering from a disease that compromises his chances of survival

Yes , PERSON is suffering from a disease that compromises his chances of survival in the short to medium term .

CARDINAL/ Information and observations that may assist the court

If the position concerning the viral load and TCARDINAL continues to deteriorate , complications may develop ( lymphoma , pneumopathy , toxoplasmosis , ORG infection or dementia ) . The hospital assessment will afford more detailed information on the evolution of the illness . Unforeseeable intercurrent lethal complication is possible . ”

The judge also ordered a psychiatric report , which stated that the applicant was not suffering from a mental disorder amounting to insanity warranting psychiatric treatment , but had presented since childhood emotional imbalance marked by personality organisation with characteristic psychopathic traits which was not incompatible with continued detention . It was further noted that the applicant remained of dangerous criminal propensity and that , owing to his refusal to receive any psychotherapeutic treatment , there was no point in offering him such treatment in detention or making it a condition of a suspended sentence , since his active participation was the only guarantee of possible success .

The Paris Regional Parole Court met on DATE . In a judgment delivered that DATE , it ordered the applicant 's sentence to be suspended on the grounds that it had been established by CARDINAL concurring expert reports that he was suffering from a disease that compromised his chances of survival and was thus eligible for a suspended sentence .

ORG appealed against that judgment , which ORG quashed on DATE for the following reasons :

“ ... a medical report dated DATE shows that the treatment for the diseases from which PERSON is suffering is onerous and can only be administered ' DATE with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure ' . The practitioner adds : ' This is the crux of the matter ' and that detention remains ' compatible with his condition ' . Another medical expert , in a report lodged on DATE , states that the treatment which PERSON must take is ' simple and can be administered in a prison environment ' .

Lastly , the impugned decision notes that a psychiatric expert has stated that PERSON remains of ' dangerous criminal propensity and that his ' active participation ' in the treatment is the only guarantee of possible success , ' in view of the way his personality is structured ' .

In these circumstances , it does not appear appropriate to suspend the sentence and the impugned decision must be reversed . ”

In a letter of DATE , the applicant 's lawyer was advised by a member of the ORG d'État and ORG whom he had contacted that , by virtue of LAW , no appeal lay against a decision of ORG , unless it could be shown that it had acted in excess of its authority , which did not appear to be the position in the applicant 's case .

Legislation introduced on DATE transferred responsibility for treating prisoners to the public hospital service . Medical treatment for prisoners is thus provided by medical structures within the prisons ( consultation and outpatient care units ) directly affiliated to the local public hospitals that are to be found in the vicinity of each prison ( Article NORP CARDINAL of LAW ) .

A prisoner 's state of health may be taken into account in deciding whether he or she should receive a pardon from the NORP President ( Articles CARDINAL and CARDINAL of the LAW ) or be granted parole under LAW of LAW .

Further , the Rights of Patients and Quality of the Health Service Act of DATE inserted a new LAW into LAW which enables an application to be made for suspension of sentence on medical grounds .

An Act of DATE brought issues relating to parole within the sole jurisdiction of the ordinary courts and , in particular , the judge responsible for the execution of sentences . It also created CARDINAL new bodies , ORG and ORG .

The relevant provisions of LAW now provide :

“ Irrespective of the type of sentence or the length of sentence still to be served , suspension [ of sentence ] may also be ordered , for a period that not need be specified , for convicted persons who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention , other than persons in respect of whom a hospital order has been made owing to mental disorder .

Suspension may be ordered only if CARDINAL medical experts state in separate , concurring reports that the convicted person comes within CARDINAL of the categories referred to in the preceding sub - paragraph .

The judge responsible for the execution of sentences shall have jurisdiction to suspend the sentence , in accordance with the procedure set out in LAW , if the custodial sentence passed is for DATE or less or if , irrespective of the initial sentence , the period still to be served is DATE or less .

In all other cases , ORG shall have jurisdiction to suspend the sentence , in accordance with the procedure set out in LAW .

The judge responsible for the execution of sentences may at any time order medical reports on a convicted person whose sentence has been suspended under this LAW and reinstate it if the conditions on which the sentence was suspended have not been complied with ... ”

The regional parole court shall have power to grant , adjourn , refuse or revoke measures relating to parole that are not within the jurisdiction of the judge responsible for the execution of sentences in a reasoned decision on an application by the convicted person or the principal public prosecutor , after consulting the Execution of Sentences Consultative Board .

A regional parole court shall be attached to each court of appeal and be composed of a divisional president or judge of the court of appeal , who shall preside , and CARDINAL judges responsible for the execution of sentences within the jurisdiction of the court of appeal , including CARDINAL from the court with jurisdiction for the prison in which the convicted person is being held if the decision concerns a grant or refusal of parole or an adjournment .

The functions of the public prosecutor shall be performed by the principal public prosecutor or CARDINAL of his or her advocates - general or deputies and those of the registry by a registrar from the court of appeal .

The regional parole court shall give its ruling in a reasoned decision following an adversarial hearing in private at which it shall hear the submissions of the prosecution and the observations of the convicted person and , if applicable , his counsel .

The convicted person or the prosecution may appeal to ORG against a decision of the regional parole court within DATE after being notified of it . Such decisions shall be provisionally enforceable . However , an appeal by the principal public prosecutor within TIME after receiving notification shall operate to stay execution of the decision until ORG has given its ruling . The ORG shall examine the case DATE after the appeal , failing which the appeal will be void .

The ORG shall be composed of the President of ORG or a judge of that court appointed as his or her representative , who shall preside , CARDINAL judges from the seat of the court , a representative of the national association for the rehabilitation of convicted offenders and a representative of the national association for victim support . The functions of the prosecution shall be performed by ORG at ORG . The ORG shall give its ruling in a reasoned decision against which there shall be no right of appeal whatsoever . The hearing shall be held and the decision given in private , after the court has heard the observations of the convicted person .

The arrangements for implementing this Article shall be determined by decree . The decree will specify where the adversarial hearing which the regional parole courts are required to hold will be held when it concerns convicted prisoners . ”

The system has been changed by LAW of DATE which came into force on DATE . Henceforth , the relevant decisions are to be taken by the judge responsible for the execution of sentences and a new court , the court responsible for the execution of sentences .

In a judgment of CARDINAL DATE concerning the application of the aforementioned LAW , DATE ) , ORG stated :

“ The principal public prosecutor argued that DATE in view of the seriousness and impact of a conviction for crimes against humanity – the court of appeal was not entitled to decide that PERSON [ Papon ] 's age and condition made it unlikely that suspending his sentence would prejudice public order , without first examining whether there were external factors that needed to be taken into consideration . That argument must fail .

Article CARDINAL - CARDINAL - CARDINAL sub - paragraph CARDINAL ... , which enables a custodial sentence to be suspended for a period that not need be specified , irrespective of the type or length of sentence , in respect of convicted prisoners who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention , does not lay down any conditions as to the nature of the offences for which sentence has been passed or risk of prejudice to public order . ”

According to figures published in an article in the ORG newspaper on DATE , CARDINAL prisoners had had their sentences suspended since the entry into force of the Act of DATE : “ In DATE , CARDINAL applications for suspension of sentence were granted , CARDINAL were refused and CARDINAL were being examined . At the same time , there were CARDINAL non - suicide related deaths in custody in DATE ” .

The appendix to the ORG provides , inter alia :

“ I. Prison Aspects

NORP The general principles

Prisoners with terminal HIV disease should be granted early release , as far as possible , and given proper treatment outside the prison . ”

Reference should also be made to Recommendation no . R ( CARDINAL ) CARDINAL of ORG to member GPE concerning the ethical and organisational aspects of health care in prison .