Violation of Art. 6-1;Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

On DATE ORG ( Prokurator Rejonowy ) charged the applicant with receiving a bribe and detained him on remand in view of the reasonable suspicion that he had committed the offence in question . On DATE the prosecutor confronted the applicant with his co - suspect who had offered him a bribe , and ordered a search of the applicant ’s home . On DATE , on an appeal filed by the applicant , ORG ( PERSON ) quashed the detention order and released him under police supervision .

On DATE ORG lodged a bill of indictment with ORG . The indictment comprised CARDINAL counts charging CARDINAL co - defendants . CARDINAL of the applicant ’s co - defendants were indicted on charges of an attempt to traffic in women .

Subsequently , on an unknown date , ORG appointed a defence counsel for the applicant .

NORP The trial ended on DATE . The applicant was convicted as charged and sentenced to DATE imprisonment suspended for DATE and a fine . ORG exempted the applicant from paying the costs of the proceedings and court fees at first instance . It ordered ORG ( PERSON ) to cover the legal fees involved in his defence by the officially - appointed lawyer .

On DATE the applicant ’s lawyer filed an appeal with ORG ( FAC ) . ORG lodged his appeal at about the same time . The applicant filed a memorandum and produced documents in support of his arguments on DATE .

Later , ORG appointed a new defence counsel to assist the applicant in the appellate proceedings .

On DATE ORG heard the appeals . Both the applicant and his officially - appointed lawyer were present . The applicant asked the court to read out all the records of evidence heard from him during the first instance proceedings . The court declined to do so , pointing out that the appellate hearing was limited to the questions of fact and law which had been put forward by the parties in their appeals and oral pleadings . It found it unnecessary to read the voluminous records of the oral evidence taken from the applicant .

On DATE ORG upheld the first - instance judgment . It levied on the applicant a court fee of MONEY [ approx . CARDINAL ORG ] for examining his appeal and ordered him to pay MONEY [ approx . CARDINAL ORG ] as the costs of the appellate proceedings . The court ordered that the costs involved in the applicant ’s defence in the appeal proceedings be borne by ORG .

On DATE the applicant lodged a notice of cassation appeal with ORG and asked it to serve on him the written reasons for its judgment . He also asked ORG to appoint a new lawyer to assist him in the preparation of his cassation appeal . The relevant part of the application read :

“ The appeal proceedings were of a fictitious nature ... [ which was shown ] by the time foreseen by ORG for dealing with [ my ] appeal . [ That ] court foresaw TIME ... The appellate hearing was to start at TIME and the next case was to be heard at TIME ... In addition , as I learnt on DATE , ORG had replaced my previous defence counsel by someone else ... who – probably – did not know the case . ...

LAW stipulates that a cassation appeal must be filed and signed by an advocate . Since ORG deprived me of my [ previous ] officially - appointed lawyer , it should appoint another counsel for me . I therefore ask the court to appoint me such a lawyer and order him to file a cassation appeal on my behalf , in particular on the grounds mentioned in my pleading of DATE and on other grounds – such as breaches of the law committed by ORG – which I will later specify in my own separate cassation appeal . ... ”

On DATE the written reasons for the judgment of ORG were served on the applicant . On DATE the time - limit of DATE for lodging a cassation appeal began to run ( see also paragraph CARDINAL below ) .

On DATE ORG dismissed the applicant ’s request for free legal assistance in cassation proceedings . The court considered that the applicant had failed to prove that he could not afford such assistance . The relevant decision read :

“ In his application , received at ORG registry on DATE , the applicant asked this ORG to appoint a lawyer to assist him in filing a cassation appeal against the judgment of ORG of DATE .

The circumstances on which the applicant relies can not be considered as a basis for a finding that his family and financial situation , and his income , make it impossible for him to pay costs involved in appointing a lawyer of his own choice in order to have a cassation appeal filed . That [ view ] is based on the post previously held by the applicant and the income that he received from his employment .

Instruction : this decision – refusing an application for appointing a lawyer to assist in filing a cassation appeal – can not be appealed against . ”

That decision was served on the applicant on DATE .

The time - limit for lodging a cassation appeal expired on DATE .

In the meantime , on DATE , despite the court ’s instruction to the contrary , the applicant had appealed to ORG ( Sąd Najwyższy ) against the refusal to grant him legal assistance . He lodged the appeal through ORG .

By an order made on DATE , the President of ORG refused to proceed with the appeal because it was inadmissible in law . The applicant appealed to ORG , which , on DATE , upheld the contested order .

At the relevant time provisions of the Law of DATE – Code of Criminal Procedure ( ORG postępowania karnego ) ( “ the Code ” ) applied to proceedings before criminal courts . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .

Under LAW , an accused who had proved that he could not afford legal assistance ( i.e. that the costs of such assistance “ would entail a substantial reduction in his and his family ’s standard of living ” ) might ask the trial court to appoint him a defence counsel .

Article CARDINAL of the Code laid down the principle known as “ compulsory assistance of an advocate ” ( przymus adwokacki ) . That Article provided , in so far as relevant :

“ An accused must have a defence counsel [ of his own choice or officially appointed ] when a regional court is competent to deal with his case as a court of first instance . The counsel must take part in the main hearing ; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary . ”

Under LAW , the official appointment of a lawyer was valid as long as the proceedings lasted and , subject to explicit exceptions , an officially - appointed lawyer was also obliged to act on behalf of his client after the judgment became final . However , according to domestic practice which started after DATE ( the date on which a new cassation appeals procedure was introduced into the system of criminal justice ) , a lawyer had again to be officially appointed in cassation proceedings .

The conditions for exempting an accused from paying costs and fees involved in criminal proceedings , as well as from paying fees due for legal assistance , were laid down in LAW . That provision , in its relevant part , read :

“ The court DATE either in full or in part – exempt an accused or [ private or auxiliary ] prosecutor ( oskarżyciel prywatny lub posiłkowy ) from [ an obligation ] to pay back to the ORG costs of proceedings or to pay ... fees due for legal representation by an officially - appointed lawyer if there are grounds to consider that , given the family and financial situation and the income of the person concerned , the payment thereof would entail a disproportionate burden on him . ”

Legal fees of advocates were set out in the Ordinance of the Minister of ORG of DATE on Legal fees in proceedings before judicial authorities ( ORG w sprawie opłat za czynności adwokackie w postępowaniu przed organami wymiaru sprawiedliwości ) . That ordinance was subsequently repealed ; under a new ordinance , only minimum legal fees are stipulated and costs of legal representation are in principle determined freely in a contract between an advocate and a client .

Paragraph CARDINAL ( CARDINAL ) of the DATE Ordinance determined legal fees for defence in a criminal case before a regional court , a court of appeal and ORG at from CARDINAL to MONEY ( ORG ) for each instance . Legal fees for the preparation of a cassation appeal were determined at from MONEY ( paragraph CARDINAL ( CARDINAL ) ) .

Regardless of whether a person was represented by a court - appointed lawyer or by a lawyer of his own choice , legal fees involved in his defence were estimated under the rules set out in the DATE Ordinance .

As from DATE , i.e. the date on which the relevant provisions of the PERSON of DATE on LAW to LAW and Other Criminal Statutes entered into force , a party to criminal proceedings might lodge a cassation appeal with ORG against any final decision of an appellate court which had terminated criminal proceedings .

Article CARDINALa § CARDINAL of the Code provided , in so far as relevant :

“ A cassation appeal may be lodged only on the grounds referred to in LAW [ these included a number of procedural irregularities , such as , for instance , incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of the rules governing jurisdiction in criminal matters ; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself , etc . ] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach . No cassation appeal may be directed against the severity of the penalty imposed ( niewspółmierności kary ) . ”

Article CARDINAL of the Code stipulated :

“ CARDINAL . NORP Parties to criminal proceedings shall be entitled to lodge a cassation appeal .

A cassation appeal , which has been lodged by a party other than a prosecutor , shall be filed and signed by an advocate .

Notice of a cassation appeal must be lodged with the court that has given the [ relevant ] decision within DATE from the date on which such decision was pronounced . The appeal itself must be lodged within DATE from the date on which the decision , together with the reasons therefor , was served on the party concerned . ”

Paragraph CARDINAL of Article CARDINAL was later incorporated into LAW of LAW , which in similar terms lays down the principle of “ compulsory assistance of an advocate ” in cassation proceedings .

Article CARDINAL § CARDINAL of the Code provided that the court which had given the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with . If an accused ’s appeal was not filed and signed by an advocate , it had to be rejected on formal grounds . If such an appeal complied with the formal requirements , the case was referred to ORG .

Pursuant to paragraphs CARDINAL and CARDINAL of LAW , a single judge or , if the President of ORG so ordered , a panel of CARDINAL judges sitting as ORG , decided on the admissibility of a cassation appeal . If ORG found that the appeal was inadmissible , it made a decision “ not taking cognisance of the merits of the appeal ” ( postanowienie o pozostawieniu kasacji bez rozpoznania ) .


Preliminary objection dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant company , which has its seat of business in Ernstbrunn ( GPE ) , carries out cattle and pig slaughter , and is therefore liable to agricultural marketing charges , calculated on the basis of the number of animals slaughtered , to be paid to PERSON ( ORG ) under LAW ( Agrarmarktgesetz ) .

On CARDINAL DATE the ORG issued a payment order against the applicant company , ordering it to pay outstanding contributions for DATE and DATE in the amount of MONEY ( ORG ) and , in addition , imposing a surcharge for failure to pay , amounting to PERCENT of the unpaid contributions . The applicant company appealed against the order . It argued in particular that the above system was contrary to the rules of ORG on state aid . It also asked for oral hearings to be held on the appeal and also asked that the proceedings for enforcing the payment order be suspended .

The Federal Minister of Agriculture , Forestry , Environment and Water ( PERSON für Land- PERSON , PERSON ) , acting as the appeal authority , dismissed the applicant company ’s appeal on DATE without holding a hearing .

As regards the applicant ’s argument that the ORG contributions were levied for financing activities , the ORG quality programme , which was not in accordance with ORG law , the Federal Minister found that after the decision of ORG of DATE ( C(CARDINAL)CARDINAL ) , the applicant company was in a position to know precisely which charges it had to pay . In that decision ORG had expressed that it had no objection to the ORG programmes and quality mark registered as state aid NN CARDINALA/CARDINAL ( “ PERSON das ORG und das ORG ” ) , because that state aid was in accordance with the Common Market provided for in LAW establishing ORG . The Federal Minister referred further to ORG decision of DATE , no . PERSON , according to which also the levying of ORG contributions was in accordance with the relevant provisions of ORG law ( se § § DATE below ) . The Federal Minister further held that it had not been necessary to hold a hearing because a hearing was only held if a decision was taken by a panel on an appeal against the decision of a tax office or a regional directorate of finance , which was not the case here .

On DATE dismissed the request for suspension of the enforcement .

Thereupon the applicant company lodged complaints with ORG and ORG against the ORG decision . Before ORG the applicant company complained , inter alia , that the surcharge imposed violated its constitutional right to property . Before ORG the applicant company complained that the appeal authority was not a court within the meaning of the case - law of ORG which prevented it from having the lawfulness of the decision by ORG of DATE reviewed by ORG in proceedings under LAW . As regards the imposition of the surcharge the applicant company complained that the findings of fact were insufficient . In particular the authority had failed to establish whether the objective and subjective elements of the offence ( objektiven und subjektiven Tatbildvoraussetzungen ) had been met . Relying on LAW it complained further that no public hearing had been held and that no impartial tribunal established by law decided on the criminal charge against it ( “ es ist kein unparteiisches , auf ORG beruhendes ORG über den erhobenen strafrechtlichen PERSON eingeschritten ” ) . As the authorities imposing the surcharges had failed to hold an oral hearing , the applicant company asked ORG for a public hearing .

On DATE ORG declined to deal with the applicant company ’s complaint under LAW for lack of prospect of success .

ORG dismissed the applicant company ’s complaint on DATE and held as follows :

“ The present case does not differ in the questions of relevance to the decision from the one decided by ORG on DATE , no . CARDINAL . Pursuant to LAW reference is made to it .

For the reasons set out in that decision the breach of law complained of by the applicant company also does not exist in view of the present complaint , for which reason it can be dismissed without further proceedings in camera .

For the reasons set out in the decision referred to also LAW is of no relevance here . ”

The Federal Act Establishing the Market Regulation Institution “ GPE ” , ORG DATE ( Bundesgesetz über die Errichtung der Marktordnungsstelle “ GPE ” , BGBl MONEY DATE “ LAW ” ) defines “ GPE ( “ ORG ” ) ” as a corporate body under public law ( LAW paragraph CARDINAL ) . Its tasks comprise , inter alia , the promotion of agricultural marketing ( LAW paragraph CARDINAL ( CARDINAL ) ) .

According to LAW section CARDINALa AMA collects agricultural marketing charges ( ORG ) for the following aims : ( i ) promoting and securing the distribution of domestic agricultural and forestry products and related processed goods , ( ii ) opening up and maintaining markets for these products in GPE and abroad , ( iii ) improving the distribution of these products , ( iv ) promoting general measures for improving and maintaining the quality of these products ( in particular agricultural products ) and for providing relevant information to the consumer regarding the quality of the products and ( v ) promoting other marketing measures ( in particular by means of offering its services and bearing personnel costs ) .

ORG finances its activities by levying charges . Under Section CARDINALc in conjunction with sections DATE of LAW , inter alia , individuals and companies operating establishments for slaughtering and butchery of cattle , calves , pigs , lambs and sheep are liable to ORG for agricultural marketing charges . The duty to pay these charges arises at the time the animals are slaughtered ( LAW section LANGUAGE paragraph CARDINAL ( CARDINAL ) ) .

Section QUANTITY g of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) A debtor in respect of the charge has to submit a declaration of the charge due within the time - limit set out in section CARDINALf para . CARDINAL or CARDINAL , making use of a standard form provided for this purposes by ORG , in which he himself has to calculate , ... the charge to be paid ...

( CARDINAL ) If the debtor has not paid the charge at all , not paid in due time or not in the correct amount , ORG has to make an order for payment of the charge , issuing a formal written decision .

( CARDINAL ) If ORG establishes that the charge was not paid at all or not paid in the correct amount , it may increase up to double the amount due . In fixing the increased amount , it must be taken into account to what extent the debtor could be expected to be aware of the debt and whether the non - payment or insufficient payment had occurred for the first time or repeatedly . In cases of late payment ORG may impose default interest exceeding the base interest rate ( PERSON ) by PERCENT , unless this would constitute unacceptable hardship in the individual case . ”

The collection of the charges is incumbent on the ORG . Appeals against its declaratory decisions can be made to the Federal Minister for ORG . The ORG and the Federal Minister are tax authorities within the meaning of section CARDINAL para . CARDINAL of LAW ( Bundesabgabenordnung ) . The Federal Minister is also the superior supervisory authority ( LAW section CARDINALi ( CARDINAL ) ) .

Section CARDINAL of LAW provides that non - compliance with the duty to submit a declaration of the charges due or non - payment of the charges caused by untrue or incomplete statements is an administrative offence for which the district administrative authority may impose a fine of up to ORG CARDINAL,CARDINAL or imprisonment in default , unless the act constitutes a criminal offence falling within the jurisdiction of the ordinary criminal courts or is subject to more severe penalties according to other provisions of the administrative criminal law . The district administrative authority has to inform the ORG about the outcome of any such administrative criminal proceedings pending before it .

Section CARDINAL(CARDINAL ) of the Administrative Court Act provides :

" In so far as ORG does not find any unlawfulness deriving from the respondent authority ’s lack of jurisdiction or from breaches of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) ... , it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . "

Section CARDINAL(CARDINAL ) of the same LAW states that , save as otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision .

Section CARDINAL(CARDINAL ) provides that

" the ORG shall quash the impugned decision if it is unlawful

ORG by reason of its content , [ or ]

because the respondent authority lacked jurisdiction , [ or ]

on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

“ Every decision ( Erkenntnis ) must be reasoned . Insofar as questions of law have been clarified in the previous case - law , it is sufficient to refer to it . ”

If ORG quashes the impugned decision , " the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) " ( section CARDINAL(CARDINAL ) ) .

NORP In its decision of DATE , no . ORG decided on a complaint against a decision of the Federal Minister of ORG levying ORG contributions for DATE - that is for the period following ORG approval of the ORG state aid programme on DATE .

ORG found that the Federal Minister had decided correctly when he had dismissed the appeal against the imposition of ORG charges for DATE and had interrupted proceedings on contributions in respect of periods before that date , pending the outcome of proceedings before ORG concerning a similar question .

As regards the period after DATE ORG contributions were due because ORG had given its positive decision before that date . Insofar the appellant had argued that the decision of ORG was wrong and proceedings against that decision were pending before ORG found that , according to the case - law of ORG , an alleged unlawfulness of a state aid affected the levying of contributions for financing that state aid only under specific circumstances , namely if there was a direct link between the amount of state aid granted and the amount levied as contribution . Since this was not the case as regards the ORG contributions , any alleged irregularity of the state aid had no relevance for its financing . For the same reason there was also no breach of LAW establishing ORG ( now LAW on the functioning of ORG ) .

ORG also declined to hold an oral hearing in this case because the levying of parafiscal contributions , which was the subject mater of the proceedings at issue , did not involve the determination of a dispute on civil rights or obligations . Accordingly Article CARDINAL of the Convention did not require an oral hearing .

In a judgment of CARDINAL DATE ( G CARDINAL/CARDINAL ) ORG held :

" From the fact that it has been necessary to extend the reservation in respect of LAW to cover the procedural safeguards of LAW , because of the connection between those CARDINAL provisions , it follows that , conversely , the limited review ( die ( bloß ) nachprüfende PERSON ) carried out by ORG or ORG is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation . "


Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in the town of NORP .

On CARDINAL DATE the applicant was arrested and detained on suspicion of involvement in a murder . From that date and until the decision of DATE to discontinue the proceedings the applicant remained in custody .

NORP In DATE he was charged with several counts of murder , abduction , bribery , unlawful possession of firearms and participation in a criminal gang .

DATE and DATE various trial courts examined the applicant 's case on CARDINAL occasions , but each time they either returned it for an additional investigation or declined to examine it with reference to various reasons relating to jurisdiction .

By a decision of DATE ORG ( PERSON коллегия по уголовным делам NORP областного суда , “ the ORG ” ) discontinued the criminal proceedings against the applicant for lack of evidence of his involvement in the imputed crimes . The court ordered the applicant 's release and recognised his right to claim damages in connection with a wrongful prosecution .

The authorities placed the applicant in remand prison GPE ( NORP изолятор ИЗ-CARDINAL/CARDINAL , “ the remand prison ” ) of the town of NORP on DATE .

DATE and CARDINAL DATE the applicant was held in a detention facility in the town of ORG . Thereafter he was returned to the remand prison and stayed there until his release on DATE .

The parties presented different accounts of the conditions of detention in the remand prison .

The applicant 's cells were overcrowded . The detainees had to take turns to sleep because there was usually CARDINAL sleeping place for CARDINAL of them . There was almost no light in the cells because of the metal shutters on the windows , as well as no fresh air . The lack of air was aggravated by the detainees ' smoking and the applicant , a non - smoker , became a passive smoker . There was TIME of daily exercise . The applicant 's eyesight deteriorated and he developed respiratory problems . In DATE the average air temperature was QUANTITY which , combined with the high humidity level , caused skin conditions to develop . The sanitary conditions were below any reasonable standard . In particular , the cells were supplied with water for CARDINAL or TIME a day and on DATE there was no water supply at all . The lack of water caused intestinal problems and in DATE the administration had to announce quarantine in that connection .

The lavatory pan usually stank . It was separated from the living space by a partition which was QUANTITY high and offered no privacy . The cells were infested with bugs , lice , cockroaches and rats and the administration did nothing to disinfect the facility . The applicant contracted scabies on CARDINAL occasions . The quality of food was wholly unsatisfactory . The medical assistance was grossly inadequate . Finally , the applicant was usually convoyed by a prison officer with a dog , which he considered particularly humiliating .

In his observations the applicant submitted a number of statements from his acquaintance Mr S. and fellow prisoners PERSON and PERSON

In a statement dated DATE PERSON , who at the time was a police officer employed in the department of criminal investigations of the NORP ORG of the Interior of the town of ORG and frequently visited IZ-CARDINAL/CARDINAL for professional reasons , submitted that DATE he had personally witnessed overcrowding in that prison , lack of ventilation , lack of natural lighting , lack of hot water , and generally poor condition of the building and the cells . The statement mentioned specifically that cell no . DATE , in which the applicant was being held at the time , measured QUANTITY and held CARDINAL inmates .

In a statement dated DATE PERSON submitted that he had been detained in this prison along with the applicant in cell no . DATE . According to him , the detainees took turns to sleep , as there were CARDINAL sleeping places on CARDINAL level beds for CARDINAL people in the cell , which measured QUANTITY . The windows were covered at all times and the lights were on constantly . Many inmates smoked and no ventilation system was installed in the cell to evacuate the smoke . It was stiflingly hot during DATE and fresh water was only available TIME a day . The cell was infested with lice , cockroaches and rats . PERSON also submitted that cell no . DATE was situated in an annex building . All cells in that building were of the same size and measured QUANTITY . Cells nos . CARDINAL and DATE were of the same size as well . No special measures had been taken by the prison administration in respect of the mentioned problems at the time of his detention .

In a statement dated DATE PERSON submitted that DATE he had been detained in this prison along with the applicant , but in different cells . Mr M. confirmed that the prison had been constantly overcrowded , with the inmates taking turns to sleep . All the cells he occupied were unventilated and poorly lit , with limited access to water and inmates who smoked heavily . The cells were infested with various insects and the inmates were given poor quality food . PERSON also confirmed that cell no . DATE had been situated in an annex building and measured QUANTITY .

According to certificates issued on DATE by remand prison IZ – CARDINAL , the applicant was kept in CARDINAL cells described as follows : cell no . CARDINAL ( QUANTITY m , CARDINAL bunks , average population CARDINAL inmates ) , cell no . CARDINAL ( QUANTITY m , CARDINAL bunks , CARDINAL inmates ) , cell no . CARDINAL ( QUANTITY m , CARDINAL bunks , QUANTITY inmates ) , cell no . CARDINAL ( QUANTITY . m , CARDINAL bunks , CARDINAL inmates ) , cell no . CARDINAL ( QUANTITY m , CARDINAL bunks , CARDINAL inmates ) , cell no . CARDINAL ( QUANTITY m , CARDINAL bunks , QUANTITY inmates ) , cell no . CARDINAL ( QUANTITY m , CARDINAL bunks , QUANTITY inmates ) , cell no . CARDINAL ( QUANTITY . m , CARDINAL bunks , CARDINAL inmates ) and cell no . CARDINAL ( QUANTITY . m , CARDINAL bunks , CARDINAL inmates ) . The certificate concerning the number of inmates per cell contains handwritten and illegible notes with numbers of inmates .

Relying on a certificate issued by the remand prison administration on DATE , the ORG submitted that in each of the cells and at each period of his detention the applicant had been provided with an individual sleeping place , bedding and cutlery .

With reference to a report on the measurement of light levels issued on DATE by ORG PERSON исполнения наказаний , “ the supervision centre ” ) , the Government stressed that the light level in the cells ( in particular in cell no . CARDINAL ) had been above the required minimum . In DATE the metal shutters were removed from the windows . There was natural and combined extractand - input ventilation . According to the report on measurement of the microclimate factors carried out by the supervision centre on DATE , the average air temperature in the cells during the relevant period was between + CARDINALºC and + CARDINALºC. The humidity level was in conformity with the relevant requirements .

According to a certificate issued by the remand prison on DATE , there were no interruptions in water supply throughout the applicant 's detention , except for cases of routine repairs . In those situations the cells were provided with water from special reservoirs .

In a record produced on DATE the head of the remand prison attested that there had been no insects or rodents in the applicant 's cells . Another certificate issued by him on the same date specified that rat extermination in the remand prison common spaces had been carried out DATE . In addition , it was possible to exterminate rats in the cells on the inmates ' request but the applicant had failed to make any such requests .

A record produced on DATE by the remand prison further indicated that the applicant had addressed the medical unit with complaints concerning viral infections , gastritis , headache , dystonia , dyspepsia and contact dermatitis . On each occasion the applicant had been provided with the necessary medication . The contact dermatitis was an allergic reaction to an unspecified detergent .

According to the applicable domestic rules , the applicant was to make his claims for pecuniary and non - pecuniary damages separately in CARDINAL different courts .

NORP In DATE the applicant requested ORG to compensate him for pecuniary damage in connection with the criminal prosecution . In particular , he claimed lost earnings and legal costs .

On DATE ORG partly granted the applicant 's claims and awarded him MONEY ( ORG , MONEY ( ORG ) ) in lost earnings for the period of his prosecution from DATE and CARDINAL subsequent DATE . The amount was to be paid by ORG . The court established that the applicant 's wife had borne all the legal costs in connection with the criminal proceedings against him and dismissed the applicant 's claims in that respect . It advised the applicant that it was open to his wife to apply to the courts of ordinary jurisdiction to recover legal costs . By the same decision the court dismissed the rest of the applicant 's claims as unfounded .

On DATE ORG upheld this decision on appeal .

According to the applicant , the decision of DATE , as upheld on DATE , was enforced shortly after it had become final .

NORP In DATE the applicant lodged with the NORP ORG of Tula ( “ the ORG ” ) a civil action for non - pecuniary damages in connection with his unlawful prosecution and detention . He complained that he had been unlawfully held in detention without a court decision on the merits of the charges against him for DATE . Moreover , he alleged that the courts had failed to examine his complaints about unlawfulness of his detention and the fact that his case had been on several occasions remitted for an additional investigation .

The applicant further complained that the conditions of his detention had been appalling . He described in detail the measurements of the cells in which he had been detained and claimed that they had been overcrowded , that he had been afforded less than QUANTITY of personal space and had had to take turns to sleep . He further described in detail other conditions of his detention which he considered degrading and humiliating . The applicant stressed that the ORG had found a violation of LAW of inhuman and degrading conditions of detention in the PERSON case . He submitted that the appalling conditions of pre - trial detention in that case had not been an isolated situation and referred to the ORG 's admissions that “ ... for economic reasons , conditions of detention in GPE were very unsatisfactory and fell below the requirements set for penitentiary establishments in other member ORG ” .

The applicant also submitted that his unlawful prosecution and that he had been charged with particularly serious crimes had caused him mental and emotional suffering . The applicant finally noted that his suffering had been aggravated by the fact that it had been impossible for him to communicate with his family and relatives and participate in the upbringing of his children . He claimed RUB CARDINAL ( approximately ORG CARDINAL ) .

By a judgment of CARDINAL DATE ORG examined and allowed the applicant 's claims , ordering the treasury to pay the applicant RUB CARDINAL ( approximately EUR CARDINAL,CARDINAL ) .

On DATE ORG of ORG ( ORG коллегия по гражданским делам NORP областного суда ) quashed the judgment on the parties ' appeals and remitted the case to the first - instance court .

On DATE ORG again examined and allowed the applicant 's claims . The introductory part of the judgment referred in detail to the applicant 's submissions concerning the conditions of his detention . Then the court reasoned as follows :

“ Pursuant to Section CARDINAL of LAW , damage sustained by a citizen as a result of his unlawful conviction , criminal prosecution , unlawful application of measures of restraint , such as detention on remand or an undertaking not to leave a place of residence , unlawful imposition of an administrative punishment , such as arrest or correctional works , shall be compensated in full in accordance with the procedure prescribed by law by the ORG of GPE , and , where the law so provides , by the treasury of the subject of the Federation or the municipal treasury , irrespective of whether they occurred as a result of the misconduct of investigating officials , the prosecutor 's office or the courts .

Under LAW of LAW , if a citizen sustained non - pecuniary damage ( physical or psychological suffering ) as a result of actions violating his or her nonpecuniary rights or interests , and also where it is expressly provided for by law , the court may order the wrongdoer to pay him monetary compensation .

In assessing the amount of the compensation for non - pecuniary damage , the court takes into account the degree of the wrongdoer 's fault and all other relevant circumstances . The court must also take account of the intensity of physical and moral suffering relating to personal characteristics of the person who sustained the damage .

Under LAW of LAW , compensation of non - pecuniary damage to the citizen is effected irrespective of the wrongdoer 's fault if the damage was inflicted by [ the citizen 's ] unlawful conviction , prosecution , unlawful application of a measure of restraint , such as detention or an undertaking not to leave their place of residence , unlawful imposition of an administrative punishment in the form of arrest or correctional service and dissemination of information damaging to the [ citizen 's ] reputation .

Section CARDINAL of the Civil Code provides that in assessing the amount of compensation to be awarded , the court must take into account the nature of the physical and psychological suffering inflicted upon the victim , and also the degree of fault on the part of the wrongdoer in cases of fault - based liability .

The court assesses the intensity of the physical and psychological suffering on the basis of the factual circumstances in which the harm was caused and also the personal characteristics of the victim .

According to the record of arrest issued on DATE and the decision of DATE remanding [ the applicant ] in custody , the plaintiff was placed in custody .

The plaintiff 's place of residence was searched on DATE .

By a decision of DATE the prosecutor 's office of GPE charged the plaintiff with participation in a criminal gang , robbery , concerted and aggravated murder , abduction , bribery and unlawful possession of arms .

By a decision of DATE ORG terminated the criminal case against [ Mr ] PERSON ... with reference to LAW ( CARDINAL ) of LAW ( lack of corpus delicti ) . By the same decision the court lifted [ Mr ] PERSON 's measure of restraint , namely remand in custody , and recognised his right to rehabilitation .

The court has established beyond doubt that [ Mr ] PERSON 's unlawful prosecution and detention had caused him mental and emotional suffering , which is to be compensated by the ORG of GPE irrespective of the fault of the investigation and prosecution officials and in accordance with the procedure established by law . Examining the respondent 's argument that the applicant had failed to prove the alleged non - pecuniary damage , the court considers that the fact of [ the applicant 's ] criminal prosecution and lengthy detention had caused him mental and emotional suffering . The parties did not contest the unlawfulness of the plaintiff 's prosecution and detention , which is also confirmed by ORG decision to discontinue the criminal proceedings [ against him ] . Furthermore , the court finds unsustainable the defendant 's argument that ORG is not the appropriate defendant . The applicable legislation , in particular Articles CARDINAL and CARDINAL of LAW , provide that compensation for non - pecuniary damage in comparable situations is recoverable from ORG of GPE at the expense of the ORG of GPE .

In assessing the amount of compensation to be awarded for non - pecuniary damage the court takes account of the degree of a wrongdoer 's fault and other relevant circumstances , and also the intensity of the physical and moral suffering of a victim , factual circumstances which the harm was caused and personal characteristics of the victim . As to the amount of compensation , the court does not find it possible to grant [ the plaintiff 's ] claims in full , considering the amount claimed to be excessive and rejecting the plaintiff 's reference to several legal writers ' works as unsustainable .

Accordingly , taking into account the requirements of reasonableness and justice , the court considers it appropriate to order the defendant to pay [ Mr ] PERSON compensation for non - pecuniary damage in connection with his criminal prosecution and detention in the amount of RUR CARDINAL,CARDINAL [ approximately ORG CARDINAL,CARDINAL ] . ”

The parties appealed against the judgment . The applicant challenged the amount of the court award as insufficient and insisted on a larger sum . It appears that the respondent submitted , among other things , that the applicant had failed to substantiate his allegations concerning the allegedly appalling conditions of his detention . In his objections to the respondent 's appeal the applicant stressed that his submissions represented well - known facts and needed no proof , because they had been acknowledged by ORG in the PERSON case .

On DATE ORG examined and dismissed the parties ' appeals against ORG judgment . It appears that at the time of the appeal hearing the applicant was under criminal prosecution for extortion and was being held in detention . His counsel was present and made submissions to the appeal court on the applicant 's behalf .

The appeal decision referred to the applicant 's detailed submissions concerning the conditions of his detention . The court reasoned as follows :

“ It follows from the materials of the case and was established by [ this ] court that claimant PERSON was in detention from DATE to DATE . During that period his place of residence was searched .

By a decision of DATE ORG terminated the criminal case against [ Mr ] PERSON ... by reference to LAW ( CARDINAL ) of LAW ( lack of corpus delicti in his actions ) .

By the same decision the court lifted [ Mr ] PERSON 's measure of restraint , namely remand in custody , and recognised his right to rehabilitation .

Under LAW of LAW , if a citizen sustained non - pecuniary damage ( physical or moral suffering ) as a result of actions violating his or her non - pecuniary rights or interests , and also where it is expressly provided by law , the court may order the wrongdoer to pay him monetary compensation .

Under Section CARDINAL ( CARDINAL ) of LAW , damage sustained by a citizen as a result of his unlawful conviction , criminal prosecution , unlawful detention and so on , shall be compensated in full in accordance with the procedure prescribed by law by the ORG of GPE , irrespective of whether the damage occurred as a result of misconduct on the part of investigating officials , the prosecutor 's office or the courts .

Pursuant to LAW ( CARDINAL ) of LAW , the citizen is compensated for nonpecuniary damage irrespective of the wrongdoer 's fault if the damage was inflicted as a result of his unlawful conviction , criminal prosecution , unlawful detention or an undertaking not to leave a place of residence , applied as a measure of restraint , unlawful imposition of an administrative punishment in the form of arrest or correctional works .

When partly allowing [ Mr ] PERSON 's claims , the [ first - instance ] court correctly relied on the above - mentioned legal provisions and LAW of LAW of GPE and also correctly proceeded from the fact that plaintiff PERSON had been unlawfully prosecuted and unlawfully detained .

By decisions of DATE ORG discontinued criminal proceedings against [ Mr ] PERSON in accordance with LAW ( CARDINAL ) of LAW of GPE ( lack of corpus delicti in his actions ) .

Accordingly , the [ first - instance ] court 's judgment ordering ORG of GPE to pay plaintiff PERSON non - pecuniary damages in the amount of RUB CARDINAL is correct .

When resolving the dispute as to the amount of the compensation , the court correctly fixed it at RUB CARDINAL . It arrived at that conclusion in accordance with ORG CARDINAL ( CARDINAL ) and FAC of LAW and having taken into account specific circumstances in which the harm had been caused and evidence produced by the plaintiff and concerning the nature of physical and moral suffering inflicted on him as a result of his unlawful criminal prosecution and unlawful detention , and also the requirements of reasonableness and justice .

As to the plaintiff 's argument that , the [ first - instance ] court had refused to apply [ a particular method ] in calculating the amount of the award , it is unsustainable because , according to LAW , in each particular case the courts take into account particular circumstances in which mental and emotional harm had been caused , as well as the personal characteristics of the victim and the requirements of reasonableness and justice ” .

Article CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides that criminal proceedings should be terminated if there is lack of corpus delicti ( evidence of a crime ) .

NORP The right to rehabilitation is governed by LAW of the Code .

Article CARDINAL § CARDINAL ( CARDINAL ) provides that a person accused of or charged with a criminal offence , against whom the criminal proceedings were terminated for , in particular , the lack of corpus delicti , has the right to rehabilitation , i.e. the right to claim damages in connection with his criminal prosecution .

Article CARDINAL § CARDINAL establishes that the right to rehabilitation includes the right to claim pecuniary and non - pecuniary damages and also the entitlement to have one 's labour- , pension- , housing- and other rights restored .

Article CARDINAL § CARDINAL provides that the rehabilitated person is to address his or her claims for compensation for pecuniary damage to the body which issued the decision to discontinue the criminal proceedings against him or her .

Under LAW , a rehabilitated person may recover in compensation for pecuniary damage , among other things , ( a ) salary , pension and other payments of which he or she was deprived in connection with his or her criminal prosecution , ( b ) legal costs .

Article CARDINAL § CARDINAL provides that monetary claims for compensation for non - pecuniary damage in connection with a person 's criminal prosecution are brought before civil courts under the rules of civil procedure .

Articles CARDINAL and FAC of LAW provide that a person may claim compensation for non - pecuniary damage ( physical and psychological suffering ) sustained as a result of actions violating his or her personal nonpecuniary rights and interests . In assessing the amount of compensation to be awarded a court should take into account , in particular , the intensity of a person 's physical and psychological suffering , his or her personal characteristics and the particular circumstances in which the harm was caused .

Under Articles CARDINAL and CARDINAL of LAW , the ORG may be held liable for damage inflicted as a result of unlawful prosecution and detention irrespective of whether they occurred as a result of relevant officials ' misconduct .

Articles CARDINAL and CARDINAL § CARDINAL also provide that damage sustained by a person in connection with his unlawful prosecution and detention is recoverable from the ORG of GPE .

Rule DATE provided that all suspects and accused persons in detention had to be given , among other things : a sleeping place , bedding , including CARDINAL mattress , a pillow and one blanket ; bed linen , including CARDINAL sheets and a pillow case ; a towel ; tableware and cutlery , including a bowl , a mug and a spoon ; and clothes appropriate to the season ( if the inmate had no clothes of his own ) .

Rule CARDINAL stated that cells in pre - trial detention centres were to be equipped , among other things , with a table and benches with a number of seating places corresponding to the number of inmates , sanitation facilities , tap water and lamps to provide day - time and night - time illumination .

Rule CARDINAL provided that prisoners were to be given CARDINAL not meals a day , in accordance with the norms laid down by the Government of GPE .

Under Rule CARDINAL inmates had the right to have a shower at least once DATE for TIME . They were to receive fresh linen after taking their shower .

Rule CARDINAL provided that inmates could be visited by their lawyer , family members or other persons , with the written permission of an investigator or an investigative body . The number of visits was limited to CARDINAL per month .

The relevant extracts from ORG of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG 's mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps signiﬁcantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Speciﬁc mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it ﬁnds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG 's mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Largecapacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufﬁcient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates ﬁtted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”


The applicant , a NORP citizen born in DATE , is resident in GPE .

A. Particular facts of the case

In DATE , the applicant was practising as a solicitor in GPE , GPE . In DATE , he met PERSON at a ORG . PERSON proposed that he and the applicant go into business together at an office in GPE Street , GPE , GPE . PERSON was to provide the applicant with legal clerking services in return for receiving PERCENT of all monies received . This arrangement was started DATE .

Unbeknown to the applicant , PERSON recently had been released from prison following DATE sentence for conspiring to obtain property by deception and fraudulent trading .

In DATE , this fact was intimated to the applicant by a fellow solicitor . The applicant states that before he had an opportunity to confront PERSON , another solicitor bought the practice from him for the sum of £ MONEY . The applicant did not inform the purchaser of PERSON 's background .

Whilst working with the applicant , PERSON had forged the applicant 's signature on cheques causing losses of MONEY . In the subsequent arrangement , losses to members of the public amounted to MONEY .

After he had sold the practice , the police had occasion to question the applicant about his dealings with PERSON , and took a statement from him . No criminal prosecution ever occurred .

Following this , there was a civil action in ORG against PERSON and the solicitor to whom the applicant sold the business . In the course of this trial , the applicant gave evidence on oath about his involvement with PERSON .

Following this trial , in DATE ORG ( ORG ) wrote to the applicant . Correspondence passed between them .

On DATE , proceedings were issued against the applicant for professional misconduct . He eventually faced CARDINAL allegations :

that he had been guilty of conduct unbefitting a solicitor in that he established and operated a solicitor 's practice principally managed by an unqualified clerk in circumstances which were improper having regard to the extent of his knowledge of the said clerk and the supervision provided ;

ORG that he had been guilty of conduct unbefitting a solicitor in that , being in possession of information indicating that the said clerk was dishonest , having been convicted of serious offences of dishonesty and sentenced to a term of imprisonment , he failed to take any reasonable or sufficient steps to protect the profession or the public ; and

that he had been guilty of conduct unbefitting a solicitor and/or failed to comply with Rule CARDINAL of the Solicitors Practice Rules DATE and DATE ( fee sharing ) in that he established and operated a solicitor 's practice on the basis that the said unqualified clerk would be entitled to receive CARDINAL of the gross fees thereof to cover , inter alia , office overheads for which the said clerk was to be responsible .

The hearing of ORG ( SCT ) took place on DATE . The applicant represented himself . At the conclusion of the hearing the charges were found to be proved against him and he was fined a total of £ MONEY . In their written findings of CARDINAL DATE the ORG divided the sum between the CARDINAL charges .

On DATE , the applicant appealed to ORG of ORG . Correspondence began between himself and the court with regard to the length of time required for the hearing . The applicant 's estimation was for DATE hearing . The court allotted TIME .

The hearing was on DATE and lasted for TIME . The applicant had provided a skeleton argument and a lengthy list of authorities beforehand .

The issues raised on appeal were the same as those raised before the ORG . The applicant did not question the facts as found by the ORG , but claimed that all the evidence against him was technically inadmissible and therefore there was no case against him . The evidence consisted of the statement made to the police , the evidence given by the applicant in the civil trial and correspondence between the applicant and the ORG .

In ORG judgment of DATE , rejecting the applicant 's appeal and holding him liable in costs , the Lord Chief Justice held that the ORG had a discretion not to apply the strict rules of evidence . He observed that the applicant had also consented to the police evidence going before the FAC . Insofar as the applicant argued that the evidence given on oath in the civil proceedings should not have been used against him as it infringed his right to self - incrimination , Lord PERSON held that :

" [ the applicant ] is not being sued or prosecuted for any statement that he made in the witness box . He is the subject of ORG proceedings not as a result of what he said in the witness box but of what he did [ in relation to PERSON ] " .

On DATE , the applicant applied for leave to appeal to ORG . There was a brief hearing on DATE after which that application was rejected . Costs were awarded against him .

PERSON Relevant domestic law

Proceedings against solicitors are governed by LAW , as amended , and give the GPE the power to fine solicitors , suspend them from practice or to strike them off the ORG roll . The limits of the fines may be increased in line with inflation by secondary legislation . In DATE , the amount was limited to £ MONEY . In DATE , this was increased to £ MONEY . On DATE , the sum was increased to £ MONEY in respect of each offence proved against the solicitor . For the purposes of the LAW , the relevant date is that of the hearing .

Section CARDINAL(CARDINAL ) of the Solicitors Act DATE states that the fine is to be considered as if it was made by a ORG Judge . As with any civil debt , if the amount remains unpaid , the defaulter is liable to imprisonment on default for a period of DATE ( section CARDINAL(CARDINAL ) Debtors Act DATE ) . In the case of solicitors , this is also a breach of their position as an officer of the court under which they can be committed to prison under the discretionary ground in section CARDINAL of LAW .


The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and is currently detained in the Straubing correctional facility ( GPE ) . He was represented before the ORG by Mr O. PERSON , a lawyer practising in PERSON .

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

On DATE the applicant was remanded in custody ( vorläufig festgenommen ) on suspicion of attempted homicide . On DATE he was placed in pre - trial detention on the basis of an arrest warrant issued by ORG on DATE .

On DATE , at the public prosecutor ’s request , PERSON , a physician , gave an initial psychiatric expert opinion on the applicant , stating that the requirements of LAW ( diminished criminal liability – verminderte PERSON ) were met . However , he further stated that the requirements of LAW ( placement in an alcohol detoxification clinic GPE in einer GPE ) were not fulfilled .

On DATE the PERSON public prosecutor ’s office issued a bill of indictment indicating that , on account of his previous convictions , the applicant met the requirements for placement in compulsory confinement ( GPE ) under LAW of LAW ( see “ Relevant domestic law ” below ) .

On DATE the applicant ’s defence counsel requested access to the applicant ’s present and previous case files in order to prepare his defence . He stated that , in view of the applicant ’s possible placement in compulsory confinement , it was necessary to have access to the case files relating to his previous convictions . Furthermore , he requested an expert opinion on the question whether the requirements of LAW regarding compulsory confinement were met in the applicant ’s case .

On DATE the ORG opened the main proceedings ( Eröffnung des Hauptverfahrens ) .

On DATE it granted the defence counsel access to the file concerning the present case as well as those concerning CARDINAL previous convictions . The defence counsel received those files on DATE .

On DATE the ORG set the case down for hearing on DATE and summoned witnesses and PERSON to appear on that date .

On DATE the public prosecutor ’s office asked for an expert opinion on the question whether the requirements of LAW were met .

On DATE ORG requested the case files regarding the applicant ’s previous CARDINAL convictions . The court received CARDINAL of these files , CARDINAL of which contained only the judgments ( PERSON ) or sentence orders ( PERSON ) , but no other documents . The court was unable to obtain the other case files . On DATE the public prosecutor ’s office requested a supplementary expert opinion on the question whether the requirements for placement in compulsory confinement were met .

On DATE PERSON submitted his expert opinion to the public prosecutor ’s office . On DATE the defence counsel received a copy . It comprised CARDINAL pages , CARDINAL of which were dedicated to the expert ’s conclusion that the requirements of LAW were met . On DATE , DATE , the applicant ’s defence counsel also received the case files relating to the CARDINAL previous convictions .

On DATE the defence counsel requested the adjournment of the trial ( Aussetzung des ORG ) , relying on LAW ( b ) of the LAW . He argued that he had not had enough time to prepare the applicant ’s defence . The court rejected his request , stating that the defence counsel had known since the bill of indictment had been served that the issue of compulsory confinement would form the subject matter of the trial . Furthermore , it observed that there had been no change of circumstances ( ORG ) that might have justified an adjournment in accordance with LAW , paragraph ( CARDINAL ) , of LAW . It also pointed out that the expert opinion had been ordered at the applicant ’s request . The court further noted that the expert ’s written submissions had been much less important than his oral remarks during the hearing . The applicant ’s defence counsel also requested the taking of further evidence .

The trial was resumed on DATE . PERSON delivered his expert opinion and was questioned by the applicant ’s defence counsel . On a motion by the defence counsel , the court ordered a supplementary psychological expert assessment , to be carried out by a second expert , T.

On DATE the court ordered the CARDINAL experts to deliver their opinions on DATE . T. conducted a psychological assessment of the applicant on DATE and produced his written opinion on DATE .

During the last hearing on DATE , PERSON gave an oral presentation of his psychological assessment . PERSON then made supplementary statements regarding his own opinion and ORG ’s assessment . The applicant ’s defence counsel subsequently requested an additional expert opinion . His motion was CARDINAL pages long and included comments on PERSON ’s opinion . However , the court rejected the request as unnecessary , as it considered the expert ’s opinion convincing .

The court then closed the procedure for taking evidence and later delivered its judgment . It convicted the applicant of attempted homicide and of having caused grievous bodily harm by one and the same act ( versuchter Totschlag in GPE gefährlicher ORG and sentenced him to DATE and CARDINAL months’ imprisonment . Moreover , the applicant was placed in compulsory confinement . The court stated that the requirements of LAW were met , taking into consideration the applicant ’s present and previous convictions . It concluded that the applicant had to be considered dangerous and that placing him in compulsory confinement was a proportionate measure .

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

On DATE ORG refused to entertain a constitutional appeal by the applicant .

The Dangerous Habitual Offenders Act ( PERSON gegen gefährliche PERSON ) , which came into force on DATE , provides for certain correctional and preventive measures ( GPE der PERSON ) . These measures are not designed as punishment , but rather as an attempt to prevent future offences by reforming the offenders and thus preserving public order .

The measures are governed by Articles CARDINAL et seq . of LAW . They include placement in a psychiatric hospital , placement in a detoxification clinic ( GPE ) , compulsory confinement , supervision of conduct ( ORG ) , withdrawal of driving licence and prohibition on practising a certain profession . Article CARDINAL provides that the measure has to be proportionate to the offence committed and to the danger presented by the offender . Paragraph ( CARDINAL ) of LAW states that an offender may be placed in compulsory confinement if he has committed CARDINAL intentional offences each of which is punishable by DATE imprisonment and if he has been sentenced to CARDINAL GPE imprisonment for CARDINAL or more of these acts and poses a threat to public order .

Article CARDINAL reads as follows :

“ ( CARDINAL ) If a person is convicted of an intentional offence and is sentenced to CARDINAL GPE imprisonment , the court shall place the offender in compulsory confinement in addition to the sentence , if

NORP the offender has already been sentenced twice to DATE imprisonment for intentional offences before committing the new offence ;

NORP the offender has served a prison sentence of DATE for those previous convictions or has been detained as a correctional or preventive measure ; and

an assessment of the offender and his offences shows that he poses a threat to the general public owing to his inclination to commit serious offences , in particular those which inflict severe psychological and physical damage on the victims or which cause severe economic damage .

( CARDINAL ) If a person has committed CARDINAL intentional offences , each of which is punishable by DATE imprisonment , and has been sentenced to CARDINAL GPE imprisonment for CARDINAL or more of these offences , the court may , under the provision indicated in paragraph ( CARDINAL ) , point CARDINAL , above , place the applicant in compulsory confinement in addition to the sentence even in the absence of a previous conviction or deprivation of liberty ( paragraph ( CARDINAL ) , points CARDINAL and CARDINAL , above ) . ... ”

Paragraph ( CARDINAL ) of Article CARDINAL reads as follows :

“ If a prison sentence is served before placement in compulsory confinement , the court shall examine , towards the end of the sentence being served , whether the aim of the measure still requires placement in compulsory confinement . ”

Former Article GPE limited the length of compulsory confinement to DATE . It was amended by the Sixth LAW ( Sechstes Gesetz zur Reform des Strafrechts ) , which came into force on DATE , and the new Sexual and Other LAW ( Gesetz zur PERSON und anderen gefährlichen ORG ) .

Paragraph ( CARDINAL ) of the new Article CARDINAL reads as follows :

“ After DATE in compulsory confinement has been completed , the court shall declare the measure to be terminated , as long as there is no danger that the detainee will , owing to his inclination to crime , commit further serious offences which would risk inflicting severe psychological and physical damage on the victims . If the measure is considered to have been terminated , the detainee shall be placed under supervision of conduct . ”

Section CARDINAL of LAW to LAW states that the new Article GPE applies without any temporal limitations , and hence retrospectively . Article CARDINAL states that the court may examine of its own motion at any given time whether the execution of a measure of compulsory confinement could be suspended on probation , but it is required to do so at least every DATE .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .

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

As a seaman serving in LOC , the applicant was entitled to a reimbursement of his holiday travel expenses . His employer , a ORG meteorological enterprise , had defaulted on this obligation , and the applicant had to apply to a court .

On DATE ORG held for the applicant and awarded him MONEY . On DATE the enterprise paid this award to the applicant .

In separate proceedings , the applicant ’s trade union tried to bring a civil action on the applicant ’s behalf . Domestic courts found that the trade union had no authority to represent the applicant . The ﬁnal decision in this regard was given by ORG on DATE .

Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


CASE OF RAMAZANOVA AND OTHERS v. AZERBAIJAN

Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .

On DATE the applicants founded a public association named “ Assistance to ORG of the Homeless and Vulnerable Residents of Baku ” ( “ Evsiz və Məzlum PERSON Müdafiəsinə GPE PERSON ) . This was a non - profit organisation aimed at providing aid to the homeless and protection of their interests .

On DATE the applicants filed a request for the association 's state registration with ORG ( hereinafter also referred to as the “ Ministry ” ) , the government authority responsible for the state registration of legal entities . According to the Government , this request was filed on DATE . Under the domestic law , a non - governmental organisation acquired the status of a legal entity only upon its state registration by ORG .

On DATE the Ministry returned the registration documents to the applicants “ without taking any action ” , i.e. without issuing a state registration certificate or an official refusal to register the association . In the cover letter , ORG noted that the association 's charter did not comply with LAW , because it did not include a provision on the territorial area of the association 's activity .

The applicants redrafted the charter in line with the ORG 's comments and on DATE filed the second registration request , submitting a new version of the charter . On DATE the Ministry responded with another refusal , stating that the charter was once again not in compliance with the requirements of ORG . Specifically , it failed to provide for the terms of office of the association 's supervisory board , as required by LAW .

The applicants again revised the charter and on DATE submitted their third registration request .

Having not received any response to their third registration request for DATE , on CARDINAL DATE the applicants applied to ORG , complaining that the ORG “ evaded ” registering their organisation and asking the court to oblige the ORG to register it . They also demanded moral compensation in the amount of CARDINAL NORP manats ( NORP ) .

On DATE the ORG sent a letter to the court , informing that the documents were again returned “ with no action taken ” by the Ministry . This time the reason for declining the registration was the applicants ' failure to include in the charter the conditions for membership in the association , as required by LAW .

On DATE the ORG dismissed the applicants ' claim , finding nothing unlawful in the actions of ORG . The court found that the association 's charter had not been drafted in accordance with the requirements of the domestic law .

The applicants appealed . On DATE ORG upheld the district court 's judgment . On DATE ORG upheld ORG decision .

In the meantime , the applicants once again re - drafted the organisation 's charter according to the ORG 's latest comments and on DATE submitted their fourth registration request . Having not received a reply within the statutory DATE period , they filed a new lawsuit with ORG , claiming that ORG committed repeated procedural violations and unlawfully delayed the examination of their registration request .

NORP The representatives of ORG argued in the court that the examination of the applicants ' registration request was delayed due to the heavy workload of ORG .

On DATE ORG issued a procedural decision ( qərardad ) on “ leaving the claim without examination ” , i.e. declaring the applicant 's lawsuit inadmissible . The court noted that the applicants ' registration request was still pending examination with ORG and that the applicant had filed the lawsuit without exhausting extrajudicial resolution of the matter . On DATE ORG and on DATE ORG upheld this decision .

While the second lawsuit was still examined on appeal , the applicants , having not received any answer from ORG by DATE , filed another lawsuit , asking the court to provide legal interpretation as to whether ORG had a right under the domestic law to delay and decline registration multiple times , and to forward the matter of constitutionality of the ORG 's actions for the consideration of ORG . On DATE the ORG refused to admit the lawsuit , noting that the applicants ' previous lawsuit was still under consideration on appeal . It also noted that , under the domestic law applicable at that time , a petition to forward the case to ORG should be filed with ORG . By a final decision of DATE , ORG upheld this decision .

In DATE , DATE after the filing of the applicants ' fourth registration request in DATE , ORG again refused registration . It appears that , on a later unspecified date , having again redrafted the charter , the applicants re - submitted their registration request for the fifth time .

At the same time , the applicants filed a new lawsuit against the ORG 's latest refusal . On DATE the ORG refused to admit this lawsuit , because the applicants ' appeals in earlier lawsuits were still pending before the higher courts . By a final decision of DATE , ORG upheld this decision .

Finally , the applicants filed an additional - cassation appeal with the President of ORG , requesting the reopening of the proceedings and referral of the case to the ORG of ORG . By a letter of DATE , ORG President rejected the applicants ' request , finding no grounds for the reopening of the proceedings .

The applicants filed a constitutional complaint against the domestic courts ' judgments , claiming that a number of their constitutional rights had been violated . On DATE the ORG admitted their complaint for examination on the merits .

By a decision of CARDINAL DATE , ORG found that all the judgments and decisions of ORG , ORG and ORG were in breach of the judicial guarantees for protection of human rights and freedoms , as guaranteed by LAW . Specifically , ORG noted that , in the first set of judicial proceedings , the domestic courts failed to examine the applicants ' complaint thoroughly and assess the evidence objectively . In particular , in the first set of civil proceedings , the courts failed to thoroughly examine the issue of an alleged violation of ORG found that , thus , the domestic courts violated Articles DATE ( I ) of the LAW , providing for judicial guarantees of individual rights and freedoms , as well as a number of provisions of LAW . It further found that , in the subsequent judicial proceedings , the domestic courts likewise violated the same provisions of LAW .

The Constitutional Court quashed all the domestic judgments and decisions relating to the applicants ' case and remitted the case to the courts of general jurisdiction for a new examination . It specifically instructed them to examine the alleged violation of the applicants ' right to freedom of association guaranteed by LAW .

On DATE ORG , in response to the applicants ' fifth registration request , registered the association and issued a state registration certificate .

On DATE , ORG re - examined the applicants ' complaint concerning the unlawful actions of ORG and their claim of compensation in the amount of NORP CARDINAL,CARDINAL,CARDINAL for the alleged violation of their freedom of association . The court dismissed the applicants ' claims , noting that , by the time of the new examination of the case , the applicants ' association had already been registered and , therefore , the disputed matter had been solved . The court further held that the domestic law did not provide for compensation for moral damages in such situations .

On DATE ORG upheld the first - instance courts ' judgment . On DATE ORG upheld the lower courts ' judgments .

It appears that , thereafter , the applicants filed a new lawsuit , seeking acknowledgement of a breach of domestic law by ORG . On DATE ORG rejected this claim . Following an appeal , on DATE ORG found that the repeated delays by the relevant official of ORG in responding to the applicants ' registration requests had constituted a breach of requirements of LAW . The court awarded CARDINAL of the CARDINAL applicants in the present case , PERSON , PERSON and PERSON , collectively , the sum of CARDINAL NORP manats ( ORG ) , which approximately equals to MONEY ( ORG ) , as a compensation for moral damages . This amount was to be paid by the relevant official of ORG responsible for the delays in the association 's state registration .

“ I. Everyone has a right to freedom of association with others .

II . Everyone has the right to form any association , including political parties , trade unions or other public associations , or join existing associations . Free functioning of all associations shall be guaranteed . ... ”

“ I. Judicial protection of every person 's rights and freedoms shall be guaranteed .

II . Every person shall have a right to complain in the court about decisions and actions ( or omission to act ) of state authorities , political parties , trade unions and other public associations , as well as public officials . ”

“ I. The executive , legislative and judicial powers shall have the duty to guarantee and protect human rights and freedoms fixed in the LAW . ... ”

“ CARDINAL . The charter of a legal entity approved by its founders is the legal entity 's foundation document . ...

The charter of a legal entity shall define the name , address , procedure for management of activities and procedure for liquidation of the legal entity . The charter of a non - commercial legal entity shall define the object and purpose of its activities . ... ”

“ CARDINAL . A legal entity shall be subject to state registration by the relevant executive authority . ...

A violation of the procedure of a legal entity 's establishment or non - compliance of its charter with LAW of the present Code shall be the grounds for refusal to register the legal entity . ... ”

“ Upon receipt of an application for state registration from a legal entity or a branch or representative office of a foreign legal entity , the authority responsible for state registration shall :

- accept the documents for review ;

- within DATE , issue to the applicant a state registration certificate or a written notification of the refusal to register ; or

- review the documents resubmitted after rectification of the breaches previously existing therein and , within DATE , take a decision on state registration . ”

“ CARDINAL . ORG - governmental organisations may be established and carry out their activities with the all - NORP , regional , and local status . The area of activities of a non - governmental organisation shall be determined independently by the organisation .

Activities of all - NORP non - governmental organisations shall apply to the whole territory of GPE . Activities of regional non - governmental organisations shall cover CARDINAL or more administrative - territorial units of GPE . Local non - government organisations shall operate within CARDINAL administrative - territorial unit . ... ”

“ CARDINAL . NORP The issue of acquiring and termination of membership in a public association shall be determined by its charter . Charter of a public association shall guarantee the right to lodge a complaint , within the association and in court , regarding termination of membership . ... ”

“ CARDINAL . The state registration of non - governmental organisations shall be carried out by the relevant executive authority in accordance with the laws of GPE on state registration of legal entities .

Non - governmental organisations shall acquire the status of a legal entity only after passing the state registration . ”

“ CARDINAL . Non - governmental organisations can be refused registration only if there is another organisation existing under the same name , or if the documents submitted for registration contradict LAW , this law and other laws of GPE , or contain false information .

Decision on refusal of state registration shall be presented in writing to the representative of the non - governmental organisation , with indication of the grounds for refusal as well as the provisions and articles of the legislation breached upon preparation of the foundation documents .

Refusal of registration shall not prevent the organisation from resubmitting its registration documents after rectification of the breaches .

The decision on refusal of state registration may be challenged in court . ”

“ CARDINAL . The charter of a public association shall , in accordance with this law and other laws , define the structure and composition of the public association ; the competence , formation procedure and term of office of its managing bodies ; as well as the procedure for decision - making and representation of the public association . ... ”

“ CARDINAL . A grant is an assistance rendered pursuant to this law in order to develop and implement humanitarian , social and ecological projects , works on rehabilitation of destroyed objects of industrial and social purpose , of infrastructure in the territories damaged as a result of the war and disaster , programs in the field of education , health , culture , legal advice , information , publishing , sport , scientific research and design programs as well as other programs of importance for the state and public . A grant shall only be provided for a specific purpose ( or purposes ) .

A grant shall be provided in the financial and/or in any other material form . The grant shall be rendered gratis and its repayment in any form may not be requested . ... ”

“ CARDINAL . A grant beneficiary is a recipient in respect of a donor .

NORP The following may be a recipient :

- The NORP State in the person of the relevant executive authority ;

- Municipal authorities ;

- Resident and non - resident legal entities , their branches , representative offices and departments carrying out activity in GPE , whose main objective , according to their articles of association , is charitable activities or implementation of projects and programs that may be a subject of a grant , and which are not aimed at direct generation of profit resulting from the grant ; and

- Individuals in GPE . ... ”


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

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

The applicant was involved in an accident on DATE while driving an ice cream van . He sustained injuries to his neck and upper back . A fracture in the applicant ’s spine was diagnosed on DATE . An insurance company paid the applicant a DATE allowance pursuant to ORG ( tapaturmavakuutuslaki , lag om olycksfallsförsäkring ; DATE ) from DATE to CARDINAL DATE , and reimbursed medical expenses . The insurance company decided on DATE to cancel the DATE allowance as from DATE as it considered that the applicant ’s working capacity was reduced by CARDINAL PERCENT from that moment .

In DATE the applicant sought medical treatment for pain in his left shoulder , right leg and back as well as for pain and tactile disturbances in his right arm . Medical certificates regarded him as unfit to work from DATE to CARDINAL DATE and from DATE to DATE due to pain in his left shoulder and left knee , sciatic symptoms in his right side , compression of nerve roots in his right arm and whiplash injury .

The applicant applied for a DATE allowance and reimbursement of expenses as from DATE from the insurance company . On DATE the insurance company rejected the applicant ’s claims . It maintained that the distension of a spinal disc was not caused by the car accident . The company apparently considered that sciatic symptoms , which affected the applicant ’s lower limbs , were the principal reason for his incapacity to work as from DATE . It informed the applicant that it had transferred a medical doctor ’s opinion of DATE regarding some symptoms of sciatica to ORG ( vakuutusoikeus , försäkringsdomstolen ) which was examining a prior accident insurance claim regarding another accident on DATE .

The applicant appealed to ORG ( tapaturmalautakunta , olycksfallsnämnden ) . He also claimed continued payment of the DATE allowance from DATE , maintaining that the principal reason for his medical examination in DATE was the problem with his neck and right arm and not sciatica as the insurance company had held . The applicant appended CARDINAL medical opinions dated DATE and DATE respectively .

ORG rejected the application on DATE . It held that the accident on DATE had caused whiplash injury and a spinal fracture , for which the applicant had received compensation until DATE , after which time the injuries no longer entitled him to a DATE allowance . It further held that the applicant ’s incapacity to work after DATE was caused by muscular tension in the neck , nerve root problems in the right arm , pain in the left shoulder and left knee as well as sciatic symptoms in the right side of the body , none of which were caused by the accident on DATE . It finally maintained that the accident in question had not worsened the applicant ’s pre - existing back illness .

The applicant appealed to ORG repeating his claims . He argued that muscular tension in the neck , the nerve root problems in the right arm and pain in left shoulder were caused by the accident on DATE . He submitted a medical opinion dated CARDINAL DATE . The insurance company submitted its observations on the appeal and the applicant was invited to give a further response . On DATE the insurance company submitted an additional medical statement of DATE and a medical case history concerning the period from DATE . On DATE the applicant submitted an additional decision of CARDINAL DATE of the insurance company concerning his pension .

On DATE ORG issued its decision accepting the reasons given by ORG and held that the new evidence presented to ORG did not give rise to any changes in the assessment of the case .

The applicant sought leave to appeal to ORG . The leave to appeal was refused on DATE .

Section CARDINAL of ORG ( hallintolainkäyttölaki , förvaltningsprocesslag , ORG ) provides that an appellate body must ensure that the case is examined properly . Subsection CARDINAL provides that an appellate body must invite the production of any necessary further material of its own motion when the interests of justice , equality of arms or the nature of the case so require .

Section CARDINAL , subsection CARDINAL of the said LAW provides that a party must be afforded a possibility to give his / her opinions on submissions made by parties or received from other sources and on other material which may influence the outcome of the matter .

Section CARDINAL subsection CARDINAL of LAW ( laki vakuutusoikeudesta , lag om försäkringsdomstolen , CARDINAL ) , as in force at the relevant time , provided that a case before ORG was dealt with in a section that consisted of an insurance judge as a chairperson and CARDINAL legally trained persons as members , or when the case concerned medical issues , CARDINAL legally trained member and CARDINAL medical member . In addition , when needed , CARDINAL lay members participated in the panel making the decision . Since DATE , the proceedings before ORG have been governed by the new LAW ( vakuutusoikeuslaki , lag om försäkringsdomstolen , GPE ) .