Remainder inadmissible;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 6-2;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings were opened in connection with an offence of fraud committed by unidentified persons with a view to acquiring a flat in GPE by way of selling it on behalf of its deceased owner , an offence punishable under LAW of LAW Criminal Code .

On DATE the applicant was detained on suspicion of having committed that fraud and questioned as a suspect . He denied his involvement in the offence .

On DATE the investigating authorities filed a request with ORG of GPE ( “ the ORG ” ) to authorise the applicant ’s detention on remand .

On DATE ORG , composed of judge PERSON , granted the investigator ’s request and , with reference to CARDINAL of LAW , ordered the applicant ’s pre - trial detention , stating that he “ had committed a serious criminal offence punishable under the criminal law with a term of imprisonment of DATE ” and that the investigating authority had grounds to believe that he might abscond and obstruct the investigation , if at liberty . No time - limit for the detention was indicated in the decision .

On DATE the applicant ’s CARDINAL lawyers lodged an appeal on his behalf against the decision of DATE requesting the applicant ’s immediate release . They also complained of a violation of the presumption of innocence on account of ORG statement that the applicant “ [ had ] committed a serious criminal offence ” .

According to the Government , the appeal of CARDINAL DATE was received by ORG on DATE and then sent to ORG for further processing . The latter court scheduled a hearing for DATE . On DATE ORG received the applicant ’s request in which he expressed his wish to participate in person in the examination of his appeal . In the Government ’s submission , ORG had then to postpone the hearing until DATE to be able to comply with the applicant ’s request .

On DATE ORG dismissed the applicant ’s appeal and upheld the decision of DATE . It noted that , when authorising the applicant ’s detention on remand , ORG had taken into account the fact that the applicant was suspected of having committed a serious criminal offence and had reasonably concluded that the applicant might continue his criminal activity , if at large . ORG rejected the argument of the applicant ’s legal counsel that ORG had found the applicant guilty when stating in its decision of DATE that he “ [ had ] committed a serious offence ” . In this respect the appellate court noted that it was clear that this had been a “ technical error ” .

On DATE the applicant was formally charged with fraud punishable under LAW of LAW Criminal Code .

On DATE ORG , at the investigator ’s request , extended the applicant ’s pre - trial detention until DATE . It referred to the fact that the applicant had been charged with a serious offence and stated that , if at liberty , the applicant might flee from justice and obstruct the establishment of the truth .

On DATE ORG , at the investigator ’s request , further extended the applicant ’s pre - trial detention until DATE on the grounds that the investigation had not been completed and that a number of investigative actions were still to be carried out . The court rejected a request by the applicant ’s lawyers , who referred to the fact that the applicant had no previous criminal record and that he had psoriasis , to release the applicant on bail , which the applicant ’s father undertook to pay , or subject to an undertaking not to leave his place of residence . It stated that there were no grounds for revoking or altering the applicant ’s preventive measure , given that he had been charged with a serious ’s personality , there were reasons to believe that he might abscond , continue his criminal activity , threaten witnesses and obstruct the investigation . The applicant ’s appeal against this decision was dismissed by ORG on an unspecified date .

On DATE ORG extended the applicant ’s pre - trial detention until DATE . It stated , in particular , that the investigating authorities needed more time to complete the investigation , that the applicant had been accused of a serious criminal offence and that the nature of the charges against him and the fact that the other co - accused were suspected of having committed another serious crime made the court believe that , if released , the applicant might continue his criminal activity , abscond and obstruct the establishment of the truth .

On DATE ORG ordered that the applicant should remain in detention until DATE . The court referred to the same reasons and also to the complex nature of the criminal case against the applicant .

On DATE ORG further extended the applicant ’s detention until DATE referring to the same reasons . ORG upheld this extension on appeal on DATE .

On DATE ORG extended the applicant ’s pre - trial detention until DATE . In its decision the court relied on the seriousness of the criminal offence imputed to the applicant which was punishable under the criminal law by a term of imprisonment ranging CARDINAL . This decision was upheld on appeal by ORG on DATE .

On DATE ORG ordered that the applicant should remain in detention until DATE . It does not appear that the court gave any reasons other than those to which it had referred earlier .

On DATE the applicant ’s case file was remitted to ORG for examination on the merits .

By a decision of DATE ORG scheduled a hearing in the case and ordered that the applicant should remain in custody . No time - limit for this detention was indicated . The applicant ’s request for release was rejected on the ground that the initial decision ordering the applicant ’s detention had been taken in accordance with the requirements of Articles CARDINAL , CARDINAL and CARDINAL of LAW and that , at present , the court found no reason to revoke or change the applicant ’s preventive measure , given , in particular , the necessity to ensure the proper conduct of the criminal proceedings . The applicant ’s appeal against this decision was dismissed by ORG on DATE .

On DATE ORG extended the applicant ’s detention pending trial until DATE . It appears that the ORG gave similar reasons for its decision . On DATE ORG upheld this decision on appeal .

On DATE the Presidium of ORG quashed the court decisions of DATE and CARDINAL DATE in supervisory review proceedings because of a procedural shortcoming concerning the applicant ’s co - defendant and remitted the case for fresh consideration . It also ordered that the applicant ’s preventive measure should remain unchanged .

On DATE ORG further extended the applicant ’s detention pending trial until DATE , with reference to the absence of any grounds for revoking or altering the applicant ’s preventive measure in view of the seriousness of the charges against him , his personality and “ the circumstances which the court had taken into account when ordering the applicant ’s placement in detention , and which remained unchanged at present ” . In the ORG ’s submission , on DATE ORG upheld this decision on appeal .

In a judgment of DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE ORG upheld the applicant ’s conviction on appeal , having reduced his sentence to DATE and CARDINAL months’ imprisonment .

Since DATE , criminal - law matters have been governed by LAW ( Law no . CARDINAL of DATE , “ the Code ” ) .

“ Preventive measures ” include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( Article CARDINAL ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( Article CARDINAL ) . In exceptional circumstances , and when there exist grounds provided for by Article CARDINAL , a preventive measure may be applied to a suspect , taking into account the circumstances listed in LAW . If necessary , the suspect or accused may be asked to give an undertaking to appear ( LAW ) .

The Code makes a distinction CARDINAL types of remand in custody : the first being “ pending investigation ” , that is , while a competent agency – the police or a prosecutor ’s office – is investigating the case , and the second being “ before the court ” ( or “ pending trial ” ) , at the judicial stage .

A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of , or charged with , a criminal offence punishable by DATE imprisonment ( LAW ) . The time - limit for detention pending investigation is fixed at DATE ( Article CARDINAL ) . A judge may extend that period DATE ( LAW ) . Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .

From the time the prosecutor sends the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ pending trial ” ) . The period of detention pending trial is calculated up to the date on which the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .

If a convict wishes to participate in an appeal hearing , he or she should indicate that wish in the statement of appeal ( LAW ) .

Upon receipt of the criminal case and the statements of appeal , the judge fixes the date , time and place for a hearing . The parties shall be notified of the date , time and place of the hearing DATE before the scheduled hearing ( LAW and CARDINAL ) .

In its resolution no . CARDINAL of CARDINAL March CARDINAL “ On ORG of LAW ” , as in force at the relevant time , ORG noted with regard to the provisions of LAW of the LAW , that , when deciding on an extension of a defendant ’s detention pending trial , the court should indicate the grounds justifying the extension and its time - limit ( paragraph CARDINAL ) .

In its ruling no . CARDINAL-O - O of DATE , ORG noted that it had reiterated on several occasions ( rulings nos . CARDINAL , CARDINAL , CARDINAL-O and CARDINAL of DATE , CARDINAL DATE , DATE and CARDINAL DATE respectively ) that a court , when taking a decision under Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Russian Code of Criminal Procedure on the placement of an individual into detention or on the extension of a period of an individual ’s detention , was under obligation , inter alia , to calculate and specify a time - limit for such detention .


CASE OF DE JONG, BALJET AND VAN DEN BRINK v. THE NETHERLANDS

Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (victim);Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 14+5;Not necessary to examine Art. 13 and 18;Non-pecuniary damage - financial award

ORG Mr. PERSON , Mr. PERSON and Mr. PERSON Brink , who were born in DATE , DATE and DATE respectively , reside in the GPE . In DATE , after being drafted as conscript servicemen in ORG , they each refused , on account of their beliefs as conscientious objectors , to obey specific orders deriving from their obligation to perform military service . They were thereupon placed under arrest by their respective commanding officers for suspected offences against LAW ( Wetboek van Militair Strafrecht ) . They were kept in custody and referred for trial before a military court .

ORG The procedure for obtaining exemption from military service on the ground of conscientious objection is laid down in ORG ( Wet Gewetensbezwaren Militaire ORG ) and a Ministerial Decree of DATE .

Under the terms of the Ministerial Decree , if a request for recognition as a conscientious objector is lodged with the Minister of Defence within DATE of conscription the conscript will be given leave pending the decision . Where , on the other hand , active service has exceeded DATE , leave is not automatically granted in view of the need to investigate any possible abuse of the right to rely on ORG . In such cases , the commanding officer will first consult with the conscript service department at ORG .

Where military criminal proceedings have been instituted against a conscript serviceman who has applied for the status of conscientious objector , they may be stayed pending a decision by the Minister on the request ( section CARDINAL sub - section CARDINAL of ORG ) . The decision in this respect will depend upon the particular circumstances , having regard , inter alia , to the time that has elapsed between the conscription and the lodging of the request . Proceedings must , however , be stayed once ORG on Conscientious Objectors has commenced its enquiries ( section CARDINAL sub - section CARDINAL ) . After ORG has stated its opinion , the Minister may grant recognition as a conscientious objector ( section CARDINAL ) . The Minister ’s decision is subject to appeal ( section CARDINAL) . The entitlement to conduct criminal proceedings for failure to obey orders or military regulations or for failure to report for enlistment lapses automatically upon recognition of the accused ’s conscientious objection ( section CARDINAL ) .

Criminal procedure for the military land and air forces , including in particular the matter of arrest and detention on remand , is governed by the ORG and Air Force Code of Procedure ( Rechtspleging bij de Land - en Luchtmacht - " LAW " ) , as last amended on DATE . Offences under military criminal law , which applies equally to conscript servicemen such as the applicants and to volunteers , are tried at first instance before a Military Court ( PERSON ) . There may be an appeal to ORG ( PERSON ) and ultimately a ( cassation ) appeal on points of law to ORG ( PERSON ) of the GPE .

ORG Every officer and non - commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty ( LAW ) . The resultant detention is not to exceed TIME ( Article CARDINAL ) .

The commanding officer may order the suspect to be placed or kept in custody on remand if ( a ) there is a serious risk of absconding or ( b ) there are important reasons of public safety requiring immediate deprivation of liberty or ( c ) this is necessary in connection with the maintenance of military discipline among other servicemen ( DATE paragraph ) . Such a detention order may be made against a serviceman suspected of any offence set out in LAW or any offence in respect of which detention on remand is permitted under LAW , with the exception of those offences of which ORG takes no cognisance ( DATE paragraph ) . An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom , or is likely to be given a sentence of shorter duration than that of the detention on remand ( ibid . ) . Detention must be terminated once the grounds for it cease to exist ( LAW paragraph ) . All cases of detention exceeding DATE shall be reported by the commanding officer to the commanding general ( LAW paragraph ) .

Where detention has lasted DATE , the suspected serviceman may petition the competent ORG to fix a term ( liable to extension ) within which the commanding general must either decide whether the case is to be referred to a ORG or else terminate the detention . ORG has to rule on the petition without delay , after hearing the authority empowered to refer the case , the auditeur - militair ( see paragraph CARDINAL below ) and the suspected serviceman , who may have the assistance of an adviser ( LAW ) .

ORG If , after receiving the advice of the auditeur - militair and , " if possible " ( " zo mogelijk " ) , after the suspected serviceman has been heard , the commanding general or a senior officer ( hoofd officier ) designated by him to act on his behalf considers that the case should be tried by ORG , the serviceman shall be referred for trial before that ORG ( LAW ) . On the other hand , the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter ( LAW Regulation No . CARDINAL of ORG explained the effect of these provisions as follows ( translation from NORP ) :

" In military penal procedure , as distinct from civilian procedure , the decision to prosecute in a case is not taken separately by the prosecuting authority , the auditeur - militair , but by a military authority . That authority is the commanding general or the senior officer he has appointed to act on his behalf , i.e. the referring officer ... Thus , the auditeur - militair is merely an advisory body at this stage , although the obtaining of his advice and the giving of that advice by him are mandatory . "

Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody ; the grounds for detention set out in the second and fourth paragraphs of LAW ( see paragraph CARDINAL above ) apply pari passu ( Article CARDINAL ) . If , against the advice of the auditeur - militair , the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial , the auditeur - militair may take the matter to ORG ( Article CARDINAL ) . No appeal is provided for in the contrary case .

According to the Government , it has now become standard procedure to apply the above provisions of LAW in the following manner . Where detention on remand has been ordered , the suspected serviceman is always heard by the auditeur - militair and any referral to ORG takes place shortly thereafter , on DATE after the arrest . In view of the requirements of LAW , the auditeur - militair ’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in LAW fulfilled . Thus , the standard written form used by the auditeur - militair for the purposes of transmitting his advice to the referring officer contains , inter alia , a paragraph as to whether the suspect should " be released or be placed or kept in custody " . Practice has evolved to the point where the advice of the auditeur - militair is invariably followed and generally regarded as binding .

Detention maintained or ordered in the decision referring the serviceman for trial may not exceed DATE unless extended , by terms of DATE , by ORG at the request of the auditeur - militair ( DATE ) . Every accused detained by virtue of the referral decision must be heard by the officier - commissaris ( see paragraph CARDINAL below ) as speedily as possible and in any event within DATE of referral ; in this connection , the accused may be assisted by an adviser ( Article CARDINAL , first paragraph ) . Before extending detention , ORG must give the accused or his adviser the opportunity to submit argument ( Article CARDINAL , second paragraph ) .

As soon as the grounds for the detention cease to exist , release must be ordered ( LAW , first paragraph ) . In the period between referral and commencement of the trial , power to order release is exercisable by the auditeur - militair , or by ORG at the request of either the officier - commissaris or the detained serviceman himself ( Article CARDINAL , second paragraph ) . ORG , in deciding on such requests , will hear the auditeur - militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time ( DATE paragraph ) .

ORG If the accused is in custody at the first hearing , ORG will decide , after being addressed by the auditeur - militair , whether or not the nature and circumstances of the case require his continued detention during the trial ( LAW . The ORG may direct the accused ’s release from detention on remand at any later stage in the proceedings , either of its own motion or at the request of the auditeur - militair or the accused himself ( Article CARDINAL ) .

ORG The auditeur - militair has the function of prosecuting authority before ORG ( Article CARDINAL , first paragraph ) . No serving member of ORG may appear as auditeur - militair or substitute auditeur - militair ( LAW paragraph ) . The auditeur - militair and his substitute may be replaced by an acting auditeur - militair ( plaatsvervanger - LAW paragraph ) who may be a military officer , but such replacement was said by the Government to occur only in exceptional circumstances . Auditeurs - militair ( including substitutes and acting ones ) are appointed , and dismissed , by the Crown on a joint proposal from the Ministers of Justice and Defence ; they must possess a law degree ( LAW paragraphs ) . Under the terms of LAW , second paragraph , of LAW , they are obliged to comply with instructions given to them in their official capacity by the Minister of ORG . However , according to the Government , this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and , at least in DATE , no Minister of ORG has acted or interfered in a concrete case on the basis of LAW .

The auditeur - militair is bound by his oath to act honestly and impartially ( Articles CARDINAL and CARDINAL ) . He must attend the hearings of ORG ( Article CARDINAL ) but he does not take part in the ORG ’s deliberations . He is under a general duty to assist ORG , as well as the commanding general , with reports , observations and advice in relation to military justice when required to do so ( Article CARDINAL ) . He is not under the supervision of ORG or ORG in the discharge of his duties , save that ORG has the power to reprimand him should he fail strictly to observe statutory time - limits ( Article CARDINAL ) .

Attached to each Military Court is CARDINAL officier - commissaris who is in charge of the preliminary investigation of cases ( DATE ) . An officier - commissaris is an officer or former officer of the armed forces with the rank of captain or higher and is appointed for a fixed term of DATE by the commanding general ( ibid . ) . While he may at the same time be a member of ORG , this is not usually the case . His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary ( Articles CARDINAL , CARDINAL and DATE ) . A hearing by the officier - commissaris has the same force as a hearing by ORG ( Article CARDINAL ) . During his enquiries , he is under a duty to apply himself equally to discovering the accused ’s innocence and to obtaining proof or admission of guilt ( Article CARDINAL ) . Like the auditeur - militair , he is bound by his oath to act honestly and impartially ( Articles CARDINAL and CARDINAL ) .

ORG By virtue of LAW , the Convention forms part of and has primacy over domestic legislation , whether earlier or subsequent .

Under the ordinary criminal law , by virtue of LAW and following of LAW , compensation may be recovered for the consequences , both material and non - material , of wrongful detention . No comparable clauses are contained in LAW . On DATE , that is subsequent to the detention of Mr. PERSON and Mr. PERSON ( see paragraphs CARDINAL below ) , the Minister of ORG made an " interim provision " declaring LAW and following applicable by analogy to military criminal procedure , subject to a limitation period of DATE .

Before the Commission , the Government submitted that , quite apart from this , a claim in respect of matters allegedly contrary to the ORG could always be brought against the military authorities under LAW , which provides :

" Any unlawful act ( onrechtmatige daad)as a result of which damage has been inflicted on another person makes the person by whose fault ( door ORG schuld ) the damage was caused liable to pay compensation . "

Before the ORG , the ORG stated that compensation could only be recovered under Article CARDINAL for material loss suffered , but they referred to the additional possibility of seeking from the civil courts a declaratory judgment against the authorities that a period of detention had been unlawful . On the basis of such a judgment , the Minister of Defence would " in all likelihood " , on request by the person concerned , grant compensation for non - material damage .

The Government further explained that Article CARDINAL did not merely allow a litigant to sue for compensation : according to well - established case - law , the victim of an unlawful and continuing act may apply to the civil courts on the basis of Article CARDINAL for an injunction ; in circumstances of urgency , immediate interim relief may be sought in summary proceedings before the President of a ORG ( Articles CARDINAL and following of LAW ) . In cases of allegedly unlawful detention , recourse has been had to Article CARDINAL in summary proceedings so as to obtain a provisional court order for immediate release .

There is , however , no known case in which a serviceman held in custody on remand has relied on DATE to bring either an ordinary claim for financial reparation or an application under the summary procedure for a provisional order of immediate release .

ORG In DATE , these CARDINAL applicants were drafted as conscript soldiers in an infantry battalion , Mr. PERSON as from DATE and Mr. PERSON as from DATE This battalion was designated in DATE to leave on mission within DATE as part of ORG in the GPE . Fearing that they might be forced to use violence against other human beings , the applicants , on CARDINAL and DATE respectively , lodged applications with the Minister of Defence to be recognised as conscientious objectors ( see paragraph CARDINAL above ) . Pending examination of their requests , the applicants at first continued to perform their normal military duties . However , the Minister not having in the meantime relieved them from service by granting them leave under LAW of DATE ( ibid . ) , Mr. PERSON on DATE and Mr. PERSON on DATE refused to obey orders to participate in a military exercise .

ORG Each applicant was thereupon placed under arrest by his commanding officer ( LAW - see paragraph CARDINAL above ) , accused of the offence of insubordination contrary to LAW . The ground invoked for their arrest was the need to maintain discipline amongst other servicemen , having regard to their battalion ’s imminent mission in the GPE .

On DATE , they both appeared before the auditeur - militair . On DATE , in accordance with the advice of the auditeur - militair , the commanding general referred the applicants for trial before ORG and at the same time ordered their release ( Articles CARDINAL and CARDINAL of the Military Code - see paragraph CARDINAL above ) , criminal proceedings having been stayed as a result of ORG on Conscientious Objectors having commenced its enquiries into their requests to be recognised as conscientious objectors ( section CARDINAL sub - section CARDINAL of ORG - see paragraph CARDINAL above ) .

ORG On DATE , they appeared before ORG on Conscientious Objectors ( ibid . ) . On DATE , the Minister of Defence granted them the status of conscientious objectors and they were discharged from military service .

ORG On DATE , each of the applicants lodged a complaint with the divisional commander alleging unfair treatment by the commanding officer who had ordered the arrest . They submitted that the decisions taken against them under LAW were in breach of LAW paras . CARDINAL ( c ) and CARDINAL ( article CARDINAL - CARDINAL-c , article CARDINAL ) of the LAW . The divisional commander dismissed both complaints on DATE .

On DATE , the applicants addressed a request for compensation to the Minister of Defence , relying on Article CARDINAL para . CARDINAL ( LAW . On DATE , the Under Secretary of ORG rejected their request on the ground that there was no basis for compensation since none of the provisions of LAW had been violated in the circumstances .

Mr. van den Brink was forcibly drafted as a conscript soldier on DATE upon his failure to register in due time . On his arrival at a training centre , he was ordered by his commanding officer to take receipt of and put on a military uniform , but he persistently refused to do so . Being a " total objector " ( " totaalweigeraar " ) , he never submitted any request to be granted the status of conscientious objector ( see paragraph CARDINAL above ) .

ORG In view of his persistent refusal , the applicant was placed under arrest on DATE by his commanding officer ( LAW - see paragraph CARDINAL above ) , accused of the offence of insubordination contrary to LAW . The ground for his arrest was the need to maintain discipline amongst other servicemen , a repetition of the offence being feared . The decision to arrest him also took into account the fact that he did not wish to have recourse to ORG .

On DATE , Mr. van den Brink appeared before the auditeur - militair . On DATE , in accordance with the advice of the auditeur - militair , the competent senior officer referred him for trial before ORG , while deciding that he should be kept in custody on the same ground as before ( Articles CARDINAL , DATE and DATE , second paragraph , of LAW - see paragraph CARDINAL above ) .

ORG On DATE , the applicant was heard by the officier - commissaris ( LAW - see paragraph CARDINAL above ) . Acceding to a request made DATE by the auditeur - militair , ORG on DATE prolonged the detention for DATE ( LAW . ) . The ORG rejected the applicant ’s counter - arguments for immediate release grounded on LAW paras . CARDINAL ( c ) and CARDINAL ( article CARDINAL - CARDINAL-c , article CARDINAL ) of the Convention .

Subsequently , his detention on remand was regularly prolonged by ORG .

ORG The trial took place before ORG on DATE . By judgment of DATE , ORG convicted Mr. PERSON Brink and sentenced him to eighteen months’ imprisonment , the time spent in custody on remand to be deducted therefrom .

He thereupon appealed to ORG .

At a hearing on DATE , he requested his release , relying on LAW paras . CARDINAL ( c ) , CARDINAL and DATE and LAW ( article CARDINAL - CARDINAL-c , article CARDINAL , article DATE , article CARDINAL ) of the LAW . ORG rejected the request ; it held , inter alia , that Article CARDINAL para . CARDINAL ( c ) ( article QUANTITY ) had been complied with and that the lapse of time between his arrest on DATE and his appearance before the officier - commissaris on DATE came close to but did not exceed the limit drawn by LAW CARDINAL ( article CARDINAL ) .

On DATE , the applicant was convicted and sentenced to CARDINAL months’ imprisonment by ORG .

Mr. van den Brink then entered an appeal on points of law with ORG .

By a separate application to that ORG on DATE , he once more requested his release . He alleged a violation of the same ORG ( article CARDINAL - CARDINAL-c , article CARDINAL , article DATE , article CARDINAL ) of the Convention as in the court below . ORG dismissed the request on CARDINAL DATE ( PERSON , DATE , no . CARDINAL ) .

ORG Mr. PERSON Brink was released on DATE , after having served CARDINAL of his sentence .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

On DATE she brought proceedings against ORG of Belogorsk on account of a refusal by the latter to increase her child benefit payments according to a certain method of calculation and seeking compensation in respect of pecuniary damage . She also alleged that the ORG had not given her access to a number of documents concerning those payments .

By a judgment of CARDINAL DATE ORG dismissed her claims as unfounded . The applicant ’s representative lodged an appeal against the judgment on DATE .

The ORG scheduled a hearing for DATE . According to the Government , on CARDINAL DATE ORG dispatched summonses to the parties . The Government submitted a copy of the cover letter dated DATE and sent by ORG to ORG and the parties , including the applicant and her representative . The letter bore the outgoing number “ DATE ” and indicated that ORG was sending the case file to ORG and that the appeal hearing had been listed for DATE , at TIME The Government also submitted a copy of an excerpt from ORG outgoing correspondence log . The column entitled “ outgoing number ” contained the figure “ DATE ” , and that entitled “ sent to ” listed ORG , the applicant , her representative and the respondent . The date below that record read “ DATE ” .

On DATE ORG dismissed the applicant ’s appeal . Neither the applicant nor her representative was present . The judgment indicated that the appeal had been examined in a public session but did not specify whether the applicant or her representative had been notified of the hearing date .

On DATE the applicant ’s representative made an inquiry to ORG about the state of the appeal proceedings . On DATE ORG sent him a copy of the appeal judgment and indicated that he had been duly informed of the hearing date .

The Code of Civil Procedure of GPE ( “ the ORG ” , in force from DATE ) reads as follows :

“ CARDINAL . NORP Parties ... are to be summonsed to court by a letter sent via registered mail with an acknowledgment of receipt , a court summons with an acknowledgment of receipt , a telegram , by phone or fax or by any other means of communication which guarantees recording of the fact that the court summonses or notifications were received by the parties .

A court summons is CARDINAL of the forms of court notification . Parties are notified by court summonses of the date and place of a court hearing or of particular procedural actions ...

A summons or another form of notification is to be served on parties in such a way [ as to ensure ] that they have enough time to prepare their case and to appear at the hearing .

A court notification , addressed to a party , is to be sent to the address indicated by that party or his / her representative . If a party does not reside at the indicated address , the court summons may be sent to his or her place of work ... ”

“ CARDINAL . ORG summonses and other notifications are to be sent by mail or delivered by a person whom the court authorises to deliver them . The time of service is to be recorded as laid down by post office regulations or on a document which is to be returned to the court .

With a party ’s consent , a judge can serve him / her with summonses or notifications to be delivered to another party . A person authorised by the judge to deliver a court summons or another notification is to return a counterfoil of the summons or a copy of the notification bearing the addressee ’s signature recording receipt . ”

“ CARDINAL . A court summons ... to a person is to be served on him or her against his or her signature on a counterfoil of the summons , which is to be returned to the court ...

NORP If the current place of residence of an addressee is unknown , an entry to this effect is to be made on the court summons , showing the date and time of the attempted service and the source of the information . ”

“ Parties are to inform the court of any change in their address in the course of the proceedings . If no such notification is provided , court summonses or notifications are to be sent to the addressee ’s last known address and are considered to be delivered even if the addressee no longer lives or resides there . ”

“ When a defendant ’s place of residence is unknown , the court begins examination of a case once it has received information to that effect from the defendant ’s last known place of residence . ”

“ Parties to the case or the prosecutor may lodge an appeal statement within DATE after the judgment was delivered in the final form . ”

“ CARDINAL . Upon the receipt of the statement of appeal ... the judge shall :

CARDINAL ) send to the parties copies of the statement of appeal and the enclosed written documents not DATE after their receipt ;

CARDINAL ) notify the parties of the time and place of the appeal hearing ...

CARDINAL ) upon the expiry of the time - limit for appeal send the case file to the court of appeal ... ”

“ CARDINAL . If a party to the case fails to appear and there is no evidence that the party was duly summonsed , the hearing is to be adjourned ... ”


No violation of Art. 8;No violation of Art. 14;No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;No violation of Art. 7;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14+5;No violation of Art. 14+6;No violation of Art. 14+7

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

The applicant was born in DATE and lives in GPE .

The applicant claimed that her home had been in PERSON in northern GPE . The house concerned had belonged to the applicant ’s mother and was located on a large site with trees ( covering an area of QUANTITY ) ; it was registered under plot no . CARDINAL , sheet / plan CARDINAL . On DATE the applicant ’s mother had transferred it to Mr PERSON ( the applicant ’s brother ) by way of gift .

Since the DATE NORP intervention the applicant had been deprived of her home , which was located in the area under the occupation and control of the NORP military authorities , who had prevented her from having access to and using the property .

On DATE , the applicant joined an anti - NORP demonstration in the ORG area in GPE in which the applicants in the GPE and PERSON v. GPE ( see below ) and PERSON v. GPE ( ( merits ) , DATE , Reports CARDINAL-VI ) cases also took part .

According to the applicant , the demonstration of DATE was peaceful and was held on DATE of the NORP intervention in GPE in support of the missing persons and to protest against human - rights violations . In the course of the demonstration the applicant was seized by the hair and violently beaten on the head , back and bottom and assaulted by NORP military personnel and/or other personnel acting under NORP control . They continually grabbed hold of her breasts . She was dragged to a bus through a crowd that spat and swore at her and then taken to the so - called “ FAC ” with other women . On her arrival there the applicant was searched and forced to sit on the floor . The toilet facilities were filthy and she was refused water . CARDINAL ORG soldiers were present , but were not allowed to note down the names of the detainees . The crowd outside the garage was swearing , and shouting abuse and threats as well as throwing stones at the garage , some of which came through the roof .

On DATE the applicant was interrogated in the garage for TIME . She refused to sign a statement , which was written in NORP . The applicant and the other detainees were provided with food and at the same time were photographed and filmed by a television crew .

On DATE , the applicant was taken to court and remanded in custody for DATE . She was transferred to FAC , where she was kept in a cell with another woman . The conditions of detention were appalling and there were not enough beds for all the women detainees ; during the night she and the other detainees were harassed by the guards .

On DATE the applicant was taken to court to stand trial . She had no legal representation or proper interpretation ; she had not previously seen the exhibits which were produced at the trial . Outside the court a crowd had gathered and was constantly shouting .

On the DATE the court sentenced the applicant to CARDINAL days’ imprisonment and a fine of QUANTITY ( ORG DATE ( ORG ) ) , with DATE in prison in default of payment within TIME . After the trial she was taken back to the prison .

In the course of her detention , the guards constantly made a lot of noise both during DATE and at TIME , repeatedly entered the cells and turned on the lights . On CARDINAL occasions the applicant had to sign documents written in NORP in order to get her personal effects back . After an incident between the detainees and some NORP photographers , the applicant was hit by one of her guards and put in an isolation cell , which was filthy , dark , and very hot and had no ventilation . While in the cell , the applicant was attacked and beaten by one of the guards , receiving severe blows to the face , head and arms . Her arm was badly injured and she lost consciousness . She was visited by a person claiming to be a doctor who said that she needed treatment , but none was given . The applicant remained in the isolation cell until her release on DATE . She was examined by a ORG officer , who bandaged her arm ; she was then taken by bus to southern GPE .

In support of her claim of ill - treatment , the applicant produced CARDINAL medical certificates . The first was issued by Doctor PERSON , a pathologist practising in ORG , on DATE . It reads as follows :

“ PERSON visited me at my clinic on DATE after she was released by the NORP and complained of headaches , difficulty in moving her head and pain in the right lower part of the arm following violent twisting .

From the examination it was established that she had mild concussion , difficulty in moving her head and pain in the right lower part of the arm due to violent twisting .

She was advised to remain in bed for DATE .

She has since visited me several times complaining of dizziness and headaches . ”

The second certificate was a “ medical opinion ” issued on an unspecified date by Doctor PERSON , a specialist orthopaedic surgeon practising in GPE . It reads as follows :

“ The patient PERSON has been followed by me from DATE for various problems that have been troubling her since the ill - treatment she was subjected to in the prisons of the NORP - Cypriot pseudo - state in GPE .

The patient participated in an anti - occupation demonstration on DATE , and was arrested by the authorities of the pseudo - state . During her arrest as well as during her detention she was beaten and ill - treated by the above authorities .

She was released on DATE and was immediately taken to ORG to be examined by doctors and to be administered medical treatment .

On DATE she visited me in my clinic for further examination and treatment . She presented the following picture :

ORG to the head , concussion . The patient had diffuse haematomas to the head and mainly in her hair and was complaining of headache and dizziness . The patient seemed to be in a very bad shape and had a lot of phobias .

Contusion of the nape . The patient complained of pain and stiffness in the nape and the muscles of the nape were contracted . The movements of the head ( bending , extension and rotation ) were painful and limited and caused an aggravation of the headache and dizziness .

Contusion of the right forearm . The patient wore an elastic bandage on her right forearm and was complaining mainly of pain with movements in the extensor and flexor . I removed the bandage and she had a haematoma in the area of the round extensor .

For the orthopaedic problems of the patient I recommended anti - inflammatory , muscle relaxant and analgesic medicines . I put her forearm in a special sock and recommended that after the acute phase ( DATE ) she start doing exercise and swimming .

For her concussion I recommended that she avoid gazing fixedly and exposure to the sun .

The patient then returned to work on DATE , though still having problems resulting both from her contusions and her concussion , which however decreased in frequency with the passage of time .

Ever since then and until DATE the patient has been suffering mainly from pain in the neck , particularly in DATE . During these attacks she takes her medicines and the problems disappear . This is due to the weakness of the muscles of the nape caused to her old injury .

As regards the problems resulting from her concussion , her phobias and her psychological problems , she is being treated by a specialist colleague .

From an orthopaedic point of view , I recommend that she takes her medicines during attacks and that she swims in DATE in order to strengthen her muscular system . This will help her to have rarer and milder attacks of neck pain . ”

The applicant produced a photograph of herself with a bandage on her right arm . This photograph was allegedly taken on her return home after her release by the authorities of the “ GPE ” ( the “ GPE ” ) .

The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti - NORP sentiment . The demonstrators , supported by the NORP - Cypriot administration , were demanding that the “ GPE ” in GPE should be dismantled . Some carried NORP flags , clubs , knives and wire - cutters . They were acting in a provocative manner and shouting abuse . The demonstrators were warned in NORP and LANGUAGE that unless they dispersed they would be arrested in accordance with the laws of the “ GPE ” . The applicant was arrested by the NORP - NORP police after crossing the ORG buffer zone and entering the area under NORP - Cypriot control . The NORP - NORP police intervened in the face of the manifest inability of the NORP - Cypriot authorities and ORG in GPE to contain the incursion and its possible consequences .

No force was used against demonstrators who did not intrude into the “ GPE ” border area and , in the case of demonstrators who were arrested for violating the border , no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned . No one was ill - treated . It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing . Had the NORP police , or anyone else , assaulted or beaten any of the demonstrators , the ORG Secretary General would no doubt have referred to this in his report to ORG .

The applicant was charged , tried , found guilty and sentenced to a short term of imprisonment . She pleaded not guilty , but did not give evidence and declined to use the available judicial remedies . She was asked if she required assistance from a lawyer registered in the “ TRNC ” , but refused and did not ask for legal representation . Interpretation services were provided at the trial by qualified interpreters . All the proceedings were translated into NORP .

In his report of DATE on the ORG operations in GPE , the ORG Secretary General stated , inter alia :

“ A serious situation , however , arose in DATE as a result of a demonstration by NORP Cypriots in GPE . The details are as follows :

( a ) In TIME of DATE , some CARDINAL NORP Cypriot demonstrators , mostly women , forced their way into the ORG buffer zone in the ORG area of GPE . The demonstrators broke through a wire barrier maintained by ORG and destroyed an ORG observation post . They then broke through the line formed by ORG soldiers and entered a former school complex where ORG reinforcements regrouped to prevent them from proceeding further . A short while later , NORP - Cypriot police and security forces elements forced their way into the area and apprehended QUANTITY persons , CARDINAL of them women ;

( b ) The ORG school complex is situated in the ORG buffer zone . However , the NORP forces claim it to be on their side of the cease - fire line . Under working arrangements with ORG , the NORP - Cypriot security forces have patrolled the school grounds for DATE within specific restrictions . This patrolling ceased altogether as part of the unmanning agreement implemented DATE ;

( c ) In TIME of QUANTITY DATE , CARDINAL NORP Cypriots gathered at the main entrance to the ORG protected area in GPE , in which the ORG headquarters is located , to protest the continuing detention by the NORP - Cypriot authorities of those apprehended at PERSON . The demonstrators , whose number fluctuated CARDINAL , blocked all ORG traffic through this entrance until DATE , when the NORP - Cypriot authorities released the last QUANTITY detainees ;

( d ) The events described above created considerable tension in the island and intensive efforts were made , both at the ORG headquarters and at GPE , to contain and resolve the situation . On DATE , I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the ORG buffer zone as well as their responsibility to ensure that that area was not violated . I also urged the NORP - Cypriot authorities to release without delay all those who had been detained . On DATE , the President of ORG announced that he had conveyed to the representatives of all the parties , on behalf of the members of ORG , the ORG ’s deep concern at the tense situation created by the incidents of DATE . He also stressed the need strictly to respect the ORG buffer zone and appealed for the immediate release of all persons still detained . He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations . ”

NORP The applicant produced CARDINAL photographs taken at different times during the demonstration on DATE . Photographs CARDINAL to CARDINAL were intended to show that , notwithstanding the deployment of the NORP - NORP police , the demonstration was peaceful . In photographs CARDINAL , members of the NORP - NORP police are seen breaking up the ORG cordon . The final set of photographs show members of the NORP - NORP police using force to arrest some of the women demonstrators .

The NORP translation of the “ GPE ” GPE ORG judgment of CARDINAL DATE indicates that the applicant , together with CARDINAL other women , was charged with CARDINAL offences : entering “ GPE ” territory without permission ( contrary to sections CARDINAL , DATE and DATE of Law no . CARDINAL/CARDINAL – see paragraph CARDINAL below ) and entering “ GPE ” territory other than through an approved port ( contrary to subsections CARDINAL ) and ( CARDINAL ) of the Aliens and Immigration Law – see paragraph CARDINAL below ) .

The judgment was given in the presence of the accused and of an interpreter , who was reminded of his oath . The trial judge noted the following :

( i ) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “ GPE ” ;

( ii ) the public prosecutor called CARDINAL witnesses , whose statements were translated into NORP for the accused ’s benefit ;

( iii ) the witnesses ( mainly police officers on duty at the time of the demonstration ) declared that the accused had illegally entered the “ GPE ” buffer zone , shouted abuse at the NORP - Cypriot forces , resisted arrest by pulling and pushing ; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested ;

( vi ) the accused had been told that they could cross - examine witnesses in turn and , if they wished , choose one of their number to cross - examine the witnesses on behalf of all the accused ; however , they did not do so ; some of the accused , including the applicant , put questions to the prosecution witnesses ; most of the accused women did not make use of their right of cross - examination ;

( v ) the applicant made the following statement : “ I consider our arrest as illegal , because we were arrested while we were on a territory which , however you look at it , is NORP , by troops we do not recognise . We had come in peace , but were faced by violence , not by the NORP army , but by ORG , who until then we had considered as brothers ” ;

( vi ) some of the other women accused gave statements , declaring that the demonstration was peaceful , that they had not carried weapons and that they did not recognise the “ GPE ” as a valid ORG ;

( vii ) relying on the statements of the prosecution witnesses , the “ GPE ” ORG came to the conclusion that the accused had crossed the borders of the “ GPE ” at an unapproved entry point and without permission and had resisted by various means the ORG and NORP forces which had tried to stop them ; the statements made by some of the accused were mainly of a political nature and did not undermine the statements of the prosecution witnesses ;

( viii ) the prosecution had proved its case beyond reasonable doubt , so that the accused were guilty on both counts ;

( ix ) in deciding on the sentence , the “ GPE ” ORG had taken into account the seriousness of the offence and the fact that the accused had shown no remorse and continued to deny the validity of the “ GPE ” .

Section CARDINAL of LAW reads as follows :

“ Where CARDINAL or more persons assembled with intent to commit an offence , or , being assembled with intent to carry out some common purpose , conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace , or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly .

It is immaterial that the original assembling was lawful if , being assembled , they conduct themselves with a common purpose in such a manner as aforesaid .

When an unlawful assembly has begun to execute the purpose , whether of a public or of a private nature , for which it assembled by a breach of the peace and to the terror of the public , the assembly is called a riot , and the persons assembled are said to be riotously assembled . ”

According to section CARDINAL of LAW , any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for DATE .

Section CARDINAL of the Criminal Code provides :

“ Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour , and is liable to imprisonment for DATE , and his arm or weapons shall be forfeited . ”

According to LAW , it is an offence to carry a knife outside the home .

The relevant part of LAW , section CARDINAL of GPE states :

“ ( CARDINAL ) Any officer may , without warrant , arrest any person -

( b ) who commits in his presence any offence punishable with imprisonment ;

( c ) who obstructs a police officer , while in the execution of his duty ... ”

Section CARDINAL of Law No . CARDINAL/CARDINAL states :

“ ... Any person who enters a prohibited military area without authorization , or by stealth , or fraudulently , shall be tried by a military court in accordance with LAW ; those found guilty shall be punished . ”

Subsections CARDINAL ( CARDINAL ) and ( CARDINAL ) of the Aliens and Immigration PERSON read as follows :

“ CARDINAL . No person shall enter or leave the Colony except through an approved port .

Any person who contravenes or fails to observe any of the provisions of subsections ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding QUANTITY or to both such imprisonment and such a fine . ”


SEGI AND OTHERS & GESTORAS PRO-AMNISTIA AND OTHERS v. 15 STATES OF THE EUROPEAN UNION

The applicants are

– in the case of application no . CARDINAL : PERSON , an association based in GPE ( GPE ) and GPE ( GPE ) , and the association ’s CARDINAL spokespersons , PERSON , a NORP national , member of the NORP autonomous parliament , who lives in PERSON ( Guipuzcoa province ) , and Mr PERSON , a NORP national living in PERSON ( département of ORG ) ;

– in the case of application no . CARDINAL/CARDINAL : PERSON , an association based in PERSON ( Guipuzcoa province ) , and the association ’s CARDINAL spokespersons , Mr PERSON , a NORP national , currently detained in PERSON remand prison ( département of GPE ) , and Mr PERSON , a NORP national , currently a prisoner in Soto del Real Prison ( GPE ) .

The applicants were represented before the ORG by Mr D. Rouget , a lawyer practising in GPE .

( a ) DATE Segi ( meaning “ Continue ” ) was set up on DATE . At the constituent general meeting on that date it appointed as its spokespersons PERSON and Mr PERSON . They are authorised to act on the association ’s behalf and to represent it .

PERSON describes itself as the movement of NORP youth . It has members in all the provinces of the NORP lands in GPE and in GPE . Its aims are to campaign on youth issues and protect the NORP identity , NORP culture and the NORP language . It asserts that it works through democratic channels to ensure respect for fundamental rights , both collective and individual . It campaigns for the right to self - determination and a negotiated political solution to the NORP conflict . It fights for a fairer , more mutually supportive society by combating inequality and discrimination , racism , sexism and homophobia . It combats the oppression of youth , drug trafficking , social insecurity , poverty and violence against young people . It promotes the social , cultural and political expression of young people by organising events , rallies , festivals and concerts .

In a decision of DATE , central investigating judge no . CARDINAL at FAC in GPE ordered the suspension of the association ’s activities as a preventive measure on the ground that it was “ an integral part of the NORP terrorist organisation ORG - EKIN ” . In a decision of DATE he further ordered the detention pending trial of CARDINAL of the association ’s leaders , including the applicant PERSON , charged with terrorism - related activities punishable under LAW ; he referred to Common Position CARDINAL/CARDINAL/CFSP of ORG .

( b ) Gestoras Pro - Amnistía is a non - governmental organisation for the protection of human rights in the NORP lands , particularly those of political prisoners and exiles .

Mr PERSON and Mr PERSON have been appointed as its spokesmen .

In a decision of DATE , central investigating judge no . CARDINAL at FAC in GPE ordered the suspension of the association ’s activities as a preventive measure on the ground that it was “ an integral part of the NORP separatist organisation ORG ” . The association appealed .

Common Positions DATE

On DATE the representatives of the CARDINAL member GPE , meeting as ORG , adopted in the context of ORG ( CFSP ) the following CARDINAL common positions :

– Common Position CARDINAL/CARDINAL/CFSP “ on combating terrorism ” . This contains measures of principle to be taken by ORG and its member GPE to combat terrorism . LAW recommends that member GPE become parties as soon as possible to the international conventions and protocols relating to terrorism listed in an annex . These include ORG on the Suppression of Terrorism of DATE , which came into force on CARDINAL DATE ;

– Common Position CARDINAL/CARDINAL/CFSP “ on the application of specific measures to combat terrorism ” .

These CARDINAL common positions took effect on the date of their adoption . They were published in ORG of ORG ( OJEC ) on DATE .

Common Position CARDINAL/CARDINAL/CFSP is addressed to both ORG ( Articles CARDINAL and CARDINAL , relating to the freezing of funds , which affects the free movement of capital , a Community matter ) and the member LAW CARDINAL , relating to police and judicial cooperation in criminal matters , which is not a question for the Community ) . Article QUANTITY states that the common position applies to “ persons , groups and entities involved in terrorist acts ” who are listed in its annex . The names of both the applicant associations appear on the annexed list . However , according to the list , they are subject to LAW

LAW provides :

“ Member GPE shall , through police and judicial cooperation in criminal matters within the framework of LAW of LAW , afford each other the widest possible assistance in preventing and combating terrorist acts . To that end they shall , with respect to enquiries and proceedings conducted by their authorities in respect of any of the persons , groups and entities listed in the ORG , fully exploit , upon request , their existing powers in accordance with acts of ORG and other international agreements , arrangements and conventions which are binding upon member GPE . ”

ORG ( ORG ) no . CARDINAL of DATE “ on specific measures directed against certain persons and entities with a view to combating terrorism ” implemented ORG and CARDINAL of the common position as regards their provisions on the freezing of funds .

The provisions concerning a Common Foreign and Security Policy ( CFSP ) , designated as the second pillar of ORG , were introduced by LAW DATE , known as LAW ( “ LAW ” ) . They were modified on DATE when the member PERSON adopted LAW , which came into force on DATE . The CFSP is therefore at present provided for in Title V of LAW .

Under the CFSP the ORG , which consists of a representative of each member ORG at ministerial level , authorised to commit the government of that member ORG ( Article CARDINAL § CARDINAL of the LAW establishing ORG ) , takes various types of decision , particularly joint actions ( LAW ) and common positions ( LAW ) . These common positions define the approach of the ORG to a particular matter of a geographical or thematic nature . Member GPE must ensure that their national policies conform to the common positions .

LAW provides that decisions under the CFSP are to be taken by the representatives of the member GPE , either unanimously , under paragraph CARDINAL , or by a qualified majority , under paragraph CARDINAL . Where a member ORG declares that , for important and stated reasons of national policy , it intends to oppose the adoption of a decision to be taken by a qualified majority , no vote is taken . The ORG , acting by a qualified majority , may request that the matter be referred to ORG , for decision by unanimous vote .

In both cases , whether unanimity or qualified majority , the opposition of a single ORG prevents the taking of a decision under the CFSP .

CFSP decisions are therefore intergovernmental in nature . By taking part in their preparation and adoption each ORG engages its responsibility . That responsibility is assumed jointly by the GPE when they adopt a CFSP decision .

Police and judicial cooperation in criminal matters ( known as ORG and ORG – “ JHA ” or the third pillar ) is now provided for by LAW of LAW , as modified by LAW . In the context of such cooperation the ORG can take common positions and promote cooperation contributing to the pursuit of the objectives of the Union , using the appropriate form and procedures .

The Union ’s actions in the field of the CFSP and JHA have a strongly intergovernmental character . The instruments through which the CFSP is mediated are joint actions and common positions .

Common positions are intended to strengthen and improve the coordination of cooperation between the member GPE , which are supposed to apply and defend them . Adopted by ORG , they are ORG acts which require member GPE to conduct national policies consistent with the approach laid down by the ORG in a particular field . They are therefore not directly applicable , as such , in the member GPE , and their implementation requires the adoption by each member ORG of concrete domestic provisions in the appropriate legal form .

Decisions taken by the ORG representatives under the CFSP are not subject to judicial review within ORG , since by virtue of LAW is not empowered to review the lawfulness of decisions taken in the field of the CFSP .

A ORG and ORG issue may not be referred to ORG except in the form of a request for a preliminary ruling under the conditions laid down in LAW .


The applicant was born in DATE and lives in GPE .

On DATE CARDINAL plaintiffs brought an action in trespass against the applicant before ORG . After several hearings , a judgment was given on DATE . On CARDINAL DATE PERSON Regional Court quashed this decision and remitted the case .

In the resumed proceedings several hearings took place . On DATE ORG delivered a partial judgment . On appeal , on DATE ORG suspended the proceedings pending the adjudication of those claims which were unaffected by the partial judgment .

On DATE ORG held a hearing . On DATE it suspended the proceedings pending the termination , on DATE , of a related land registry dispute .

Upon the resumption of the case on DATE another hearing was held and an expert appointed . The expert opinion was submitted on DATE . DATE and DATE the proceedings were again suspended pending the termination of related administrative proceedings .

On DATE ORG adopted a partial judgment concerning damages . On appeal , on DATE ORG partly upheld the first instance decision while remitting some claims .

On DATE the first instance proceedings continued . Another expert was appointed who filed his opinion on DATE . On DATE and DATE further hearings took place .

On DATE the ORG gave judgment , finding partly for the plaintiffs . On appeal , on DATE ORG heard the parties and appointed an expert who filed his opinion on CARDINAL DATE .

On DATE ORG gave judgment . On DATE ORG dismissed the applicant 's petition for review .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He is represented before the Court by Mr J. Vyroubal , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , Mr V.A. Schorm , ORG .

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

On DATE the applicant ’s daughter brought proceedings for damages against the CARDINAL medical institutions before ORG ( okresní soud ) . She was represented before the court by the applicant .

DATE ORG took a number of procedural steps . On DATE and DATE respectively , it held CARDINAL hearings . DATE further procedural steps were carried out .

On DATE ORG held a hearing .

During the period from DATE the case of the applicant ’s daughter continued to be dealt with by the courts .

On DATE the applicant ’s daughter reached majority .

On DATE ORG held a hearing .

On DATE the applicant , acting in his daughter ’s name , withdrew the action as a consequence of delays in the proceedings . On DATE ORG discontinued the proceedings . Its decision became effective on DATE .


The applicant , ORG , is a NORP national , who was born in DATE and lives in GPE , GPE .

On DATE the applicant 's husband 's aunt died . On DATE ORG ( PERSON ) declared that CARDINAL family members ( amongst them the applicant 's husband ) were to inherit her estate . On DATE “ K.K. ” filed an application for distribution of the estate with ORG ( Sąd Rejonowy ) .

On DATE the court summoned the applicant to join the proceedings as her late husband 's successor .

The proceedings are pending before the second - instance court .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

“ CARDINAL . NORP Parties

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Violation of Art. 34;No violation of Art. 34;Remainder inadmissible

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and is currently serving a prison sentence at the Yenakiyeve Town Correctional Colony ( Prison ) No . DATE , GPE ( “ the LOC ” ) .

On DATE the applicant was arrested by the police on suspicion of burglary . According to the applicant , during his detention from CARDINAL to CARDINAL DATE and subsequent interrogations , which took place at the police station , he was subjected to various forms of ill - treatment , the aim of which was to extract a confession for grave crimes , including murder and burglary . The applicant maintained that he had received multiple bruises and abrasions on his head and body and that several ribs and teeth had been broken . The applicant did not have access to a doctor and the alleged injuries were not recorded .

On DATE the applicant was given access to an official defence lawyer , appointed by the authorities , who continued to represent him until the completion of the proceedings . On DATE the applicant was transferred to the ORG Town Temporary Detention Centre ( “ the Mariupol ITU ” ) .

On DATE the applicant was transferred to the ORG . CARDINAL ( “ the ORG GPE ” ) .

According to the applicant , he complained to the prosecutors that he had been ill - treated . His complaint was allegedly rejected as unsubstantiated by the Deputy Prosecutor of GPE on DATE and he did not challenge that decision before the courts . No copy of the decision was submitted to the ORG . The Government did not contest these submissions , though they provided a copy of the letter from ORG of DATE by which ORG had been informed , inter alia , that the applicant had not lodged any complaints with ORG claiming that unlawful investigation methods had been applied in his case ( see paragraph CARDINAL below ) .

In the course of his trial the applicant maintained his complaint of ill - treatment . In particular , the applicant alleged that his confession for having committed some of the crimes with which he had been charged had been obtained under duress . In his submissions before the courts the applicant referred to the decision of CARDINAL DATE , indicating where it was to be found in the domestic case file . While ORG of Appeal gave no reply to the applicant 's complaint , ORG , in its decision of DATE ( see below ) , held , in general terms , that there was no evidence that the applicant 's statements had been obtained in an arbitrary manner . The relevant parts of that decision read as follows :

“ ... ORG disagrees with [ his ] conviction , as , in his view , it is harsh , partial and unfair . [ According to him ] the case was heard with the accusatory inclination ; the force was used during [ his ] questioning ; [ he was ] questioned in a misleading manner ; [ and ] he did not organise a [ criminal ] group ...

Having heard the judge - rapporteur , the prosecutor ... having examined the case materials , and having discussed the arguments in the cassation appeals , the panel of judges concluded that the appeals shall not be allowed ...

There is no evidence that the statements of the convicted were obtained in a misleading or in any other unlawful manner .

On DATE the applicant was transferred to ORG . CARDINAL ( “ the GPE ” ) , where he was held at least until DATE , when he was transferred to ORG in which he is now serving his sentence . During his detention in GPE the applicant requested and subsequently received dental treatment on CARDINAL occasion and he also had his lungs x - rayed and examined in DATE and DATE . He did not request any other medical aid .

According to the applicant , the conditions of his detention in GPE were poor , he was not provided with food of adequate quality and there was a person with mental health problems detained in the same GPE building with him .

On DATE the pre - trial investigations in the applicant 's case were completed and the case was subsequently referred to ORG .

According to the applicant , in the course of the court proceedings , he asked for several witnesses to be called and examined on his behalf . He received no reply to his request .

On DATE ORG , acting as a court of first instance , found the applicant , together with CARDINAL other persons , guilty of crimes committed in DATE , including several counts of aggravated murder , burglary and sexual intercourse with a minor . The court sentenced the applicant to life imprisonment and confiscated all his property . The court based its judgment on the statements made before it by the defendants and their statements obtained during the pre - trial investigations in which they had confessed to having committed some of the crimes with which they had been charged ; the statements of QUANTITY victims and witnesses heard by the court and the written statements of CARDINAL other victims and witnesses obtained in the course of the pre - trial investigations ; and the reports of CARDINAL experts .

The applicant 's lawyer and the applicant himself lodged separate appeals in cassation with the same court .

The lawyer alleged that the first - instance court had erred in the assessment of evidence and had not applied the law correctly in the case .

The applicant complained that the first - instance court had failed to summon witnesses on his behalf or the expert on whose conclusions the applicant 's conviction of sexual intercourse with a minor had been based . The conclusions concerned the state of sexual development of the victim . In his appeal in cassation the applicant further alleged that the court had refused to take into account his allegations of torture during his detention and subsequent interrogations in DATE and that it had not examined his submissions concerning various procedural violations committed by the authorities in the course of the pre - trial investigations .

On DATE ORG partly amended the judgment of DATE . However , the applicant 's conviction and sentence remained unchanged . ORG found that the judgment had been well - founded and that there had been no procedural irregularities during the investigation or trial . ORG decision was communicated to the applicant on DATE .

On DATE the applicant sent his first letter to the ORG and the application form was received on DATE . In support of his application the applicant submitted copies of the court decisions in his criminal case , his lawyer 's appeal in cassation and several letters from the authorities which the applicant had received in reply to his complaints that his conviction had been unlawful .

In the letters , which the ORG received from the applicant in DATE , he alleged that the staff of GPE had often refused or substantially delayed the dispatch of his letters , including the application form , addressed to the ORG ; that they had refused to provide him with copies of the documents which he had intended to submit to ORG ( the applicant 's complaints and procedural requests made in the course of his trial and the courts ' replies to the applicant 's submissions ) ; and that they had put psychological pressure on the applicant asking him not to complain about the GPE authorities . The applicant maintained that , because of his application to the ORG , he was placed in a cell with a person suffering from the open form of tuberculosis . As a consequence , he was at risk of being infected with this disease .

On DATE the ORG invited the ORG to submit factual information with respect to allegations contained in the applicant 's letters to the ORG .

NORP By letter dated DATE , the Government informed the ORG that there had been no interference with the applicant 's correspondence . They submitted copies of GPE register of incoming and outgoing correspondence and the applicant 's written statements addressed to ORG , in which he had acknowledged that he had had no complaints against GPE authorities and that his letters had been dispatched without delay .

In his letters of CARDINAL DATE and DATE the applicant alleged that on CARDINAL DATE the deputy governor of GPE had told him to write such statements .

In his letter of CARDINAL DATE the applicant stated that in DATE , just before his transfer to ORG , an unspecified member of staff of GPE had made threats against him in order to prevent him complaining about the GPE authorities .

NORP By letter dated DATE , the ORG asked the applicant to submit documentary evidence in respect of his complaints under LAW and CARDINAL of the LAW . In particular , the applicant was invited to submit copies of his complaints made to the national authorities concerning the alleged illtreatment and copies of their replies to such complaints concerning the events of DATE , a copy of his appeal in cassation against the judgment of ORG of DATE and copies of his written requests to have witnesses examined by the latter court on his behalf .

NORP By letter dated DATE , the applicant asked ORG to send him copies of his appeal in cassation , the reports on his confrontation with QUANTITY police officers who had allegedly illtreated him , his complaint to ORG stating that he intended to submit those copies to the ORG in substantiation of his application and the latter 's reply .

In its reply of DATE , the court refused to provide copies of the requested documents because the applicant 's request had no basis in domestic law .

NORP By letter dated DATE , the applicant requested the same court to send him copies of his complaints to that court about the allegedly unlawful investigations in his case .

The applicant received no reply to his latter request .

On DATE the applicant sent a third letter to the court of appeal , requesting copies of the same documents from his case file . On DATE he received a reply from the deputy president of ORG . In that letter , he was informed that his request had been refused on the ground that , because his conviction had become final , he was entitled to receive copies only of the courts ' decisions in his criminal case . According to the deputy president of that court , no copies of other documents from the case file were allowed to be sent to the applicant .

On DATE the ORG invited the ORG to submit written observations on the admissibility and merits of the case ( see paragraph CARDINAL above ) . They were also requested to submit a copy of the applicant 's appeal in cassation and relevant documents concerning his complaints about the alleged ill - treatment to the national authorities , copies of their replies to such complaints , and copies of his written motions to have witnesses on his behalf examined by ORG .

On DATE the Government sent to the ORG their observations on the case and copies of the applicant 's appeal in cassation of CARDINAL August CARDINAL together with written amendments to his appeal dated CARDINAL DATE , copies of the applicant 's letters to the president of ORG of DATE requesting copies of documents from his case file , and a copy of the letter from ORG of DATE by which ORG had been informed , inter alia , that the applicant had not lodged any complaints with ORG claiming that unlawful investigation methods had been applied in his case . The ORG 's observations were subsequently forwarded to the applicant .

On DATE the applicant informed the ORG that he had found a lawyer to represent him in the proceedings before the ORG and asked for legal aid . On DATE the President of the ORG decided that legal aid should be granted to the applicant for his representation before the ORG . The lawyer prepared and submitted observations to the ORG on behalf of the applicant . By a letter of DATE , the applicant informed that he did not wish the lawyer to continue representing him before the ORG .

LAW of DATE ( repealed on DATE ) provided for the death penalty as an exceptional type of punishment for particularly serious crimes , including aggravated murder .

By a judgment of DATE , ORG held that the provisions of LAW concerning the death penalty were contrary to LAW . On DATE those provisions were changed by PERSON , the ORG , to the effect that the death penalty was replaced by life imprisonment . Before the changes of CARDINAL DATE , the maximum term of imprisonment under the LAW had been DATE .

Under LAW of DATE , an accused , a defendant , their defence lawyers or non - legal representatives may familiarise themselves with materials in the criminal case file at various stages of the proceedings until their completion ( Articles CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL of the Code ) . When studying the case file they are allowed to take notes .

According to section DATE of LAW of DATE , citizens have the right to ask the authorities to provide them with any official document , whether or not it concerns them , except in cases in which the law limits access to documents . Copies of the requested documents may be given against the payment of a fee ( section CARDINAL of the Act ) .

Regulations on case processing in courts of appeal and local courts of general jurisdiction , issued by ORG on DATE and DATE ( Order nos . CARDINAL and DATE ) , respectively , provide for a procedure through which persons taking part in court proceedings may familiarise themselves with case files . In particular , case files should be studied at a court 's LOC in the presence of a member of the registry . Copies of documents included in a file , court decisions which have entered into force and written information notes are issued by registry staff upon a written request and against the payment of a court fee . Upon approval by the president or deputy president of a court , a complete case file may be sent by post to those ORG bodies which are entitled by the law to request it .

The Internal Regulations of Penitentiary Institutions , approved by ORG for the Execution of Sentences on DATE ( Order no . CARDINAL ) , do not allow prisoners to keep any documents , other than copies of judgments in their criminal cases and correspondence concerning their application to ORG , DATE and CARDINAL to the Regulations ) . Further to amendments made to the Regulations on DATE , a prison administration is required to assist prisoners who wish to obtain copies of documents concerning their applications from the ORG bodies . When copies of such documents are received , prisoners should be allowed to keep them and , if appropriate , to join them to their applications to ORG ) . Under amended LAW , prisoners are to be provided with photocopying services against the payment of a fee .

A comparative survey of national legislation in CARDINAL of the member ORG demonstrates that while there are no specific regulations on prisoners ' access to their case files , other domestic legal provisions can be relied upon by prisoners to make a request for access to such documents . The most common provisions can be found in ORG . This is the case in CARDINAL of the surveyed member GPE , namely , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In CARDINAL member GPE , the relevant provisions can be found in Acts on ORG or ORG , as is the case for GPE , GPE , GPE , GPE and GPE . In another CARDINAL member GPE , namely , GPE , GPE , the GPE and GPE , ORG provisions provide the best way for a prisoner to request such documents . Finally , in CARDINAL member ORG , GPE , the relevant provisions can also be found in LAW .

Using CARDINAL or more of these legal provisions , a prisoner , who does not have a person to represent him or her outside the penitentiary institution , may have access to documents in a criminal case file once domestic proceedings have ended , usually by way of a written request to the court for photocopies of the relevant documents to be sent by post , or , as , for instance , in GPE , consultation of the file under supervision in prison . In the majority of the surveyed member GPE , the photocopies of the relevant documents would have to be paid for , although in some member GPE there is provision for an exemption for charges depending on the means of the prisoner ( such as in GPE ) .

The relevant extract from the Appendix to the Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on ORG , adopted on DATE , reads as follows :

“ ... Legal advice

CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings ... ”

According to legal commentary contained in the ORG publication of ORG ( DATE , p. CARDINAL ) , Rule CARDINAL is designed to assist prisoners by giving them access to legal documents which concern them . Where for reasons of security and good order it is not acceptable to allow them to keep those documents in their cells , steps should be taken to ensure that they are able to access them during TIME .