No violation of Art. 6-1;No violation of Art. 13;No violation of P1-1

The applicant leased LOC in a house owned by ORG podnik , a ORG owned company with registered office in LOC . He ran his business there . In DATE and DATE the applicant claimed that the relevant provisions of ORG of DATE ( Act No . DATE ) entitled him to purchase the part of the house which he leased .

On DATE the ORG for ORG decided that the applicant was not entitled , under LAW of DATE , to be given priority in purchasing the LOC leased by him .

On DATE the applicant filed an arbitration request claiming tht ORG podnik should be ordered to conclude a purchase contract with him under Act No . CARDINAL/CARDINAL in respect of the CARDINAL LOC leased by him and having the surface of QUANTITY respectively . The applicant further claimed that the purchase contract was to be determined pursuant to LAW Act No . DATE .

On DATE ORG ( GPE štátna arbitráž ) in ORG delivered a decision the operative part of which reads :

“ The defendant – ORG podnik , a ORG owned enterprise in ORG is obliged to conclude a purchase contract with [ the applicant ] who has leased CARDINAL LOC situated ... in the building located in LOC , PERSON DATE and having a surface area of CARDINAL and QUANTITY respectively . The purchase contract shall concern the above premises and is to be concluded under LAW ) of Act No . DATE within DATE from the final effect of this decision , it being understood that the purchase price will be determined pursuant to LAW Act No . DATE . ”

The decision acquired final binding effect on CARDINAL DATE .

On DATE the applicant concluded a purchase contract with ORG podnik and paid the purchase price . The contract comprised several premises the total surface area of which was QUANTITY and also real estate with a surface area of QUANTITY . Subsequently ORG podnik was placed in liquidation .

On DATE the liquidator claimed that the proceedings leading to the decision of ORG of DATE be re - opened . The liquidator argued that the requirements of ORG of DATE had not been met . On DATE ORG dismissed the request . The decision stated that the liquidator had submitted no new relevant facts which could not have been invoked in the original proceedings and that , accordingly , the statutory requirements for re - opening the proceedings had not been met .

On DATE the ORG declared the purchase contract of CARDINAL DATE void ex tunc at the initiative of ORG . ORG found that in the contract the parties had not explicitly agreed on the date of transfer of the ownership as required by the relevant law and that the lawyer of ORG podnik had exceeded his power in that he had also included in the contract premises which had not been leased by the applicant .

On DATE ORG upheld ORG judgment . ORG found that the contract did not specify the property in question with sufficient certainty and that this resulted in conflicts between the applicant and another person who had purchased the remaining part of the house from ORG podnik . With the consent of the parties ORG discontinued the proceedings in respect of the claim that ORG podnik and the applicant should restore to each other everything which had been the subject of the contract of CARDINAL DATE .

On DATE the applicant requested the ORG to enforce the decision delivered by ORG in GPE on DATE . He relied on LAW ) of Act No . CARDINAL/CARDINAL , Section CARDINAL(CARDINAL ) of LAW and LAW ) of LAW .

In DATE and in DATE the applicant submitted a new draft purchase contract for signature to the liquidator of ORG podnik with reference to the arbitration court ’s decision of DATE . On CARDINAL DATE the liquidator asked the applicant in writing to submit a supplement to the draft contract as well as an expert opinion .

On DATE the person who had purchased the other part of the house claimed that the co - ownership of the house be dissolved and that the share owned by ORG podnik be transferred to his ownership . On DATE the ORG granted the claim with reference to LAW and ordered the plaintiff to pay CARDINAL NORP korunas ( SKK ) to ORG podnik . The liquidator of the latter waived his right to appeal and the judgment became final on DATE . It was not served on the applicant as he was not a party to the proceedings .

On DATE the applicant requested the grant of an interim measure prohibiting ORG podnik from concluding any contracts for the transfer of the property in question . On DATE the ORG granted the request . On DATE ORG reversed the first instance decision as , at the time of its delivery , ORG podnik no longer owned the property .

On DATE the applicant complained about a violation of his property rights to ORG . On DATE the latter rejected the petition for lack of jurisdiction .

On DATE the applicant requested the ORG to consider the new owner of the house as defendant in the enforcement proceedings brought on DATE .

On DATE the ORG , responding to the applicant ’s above request of DATE , ordered the enforcement of the decision of ORG of DATE in that it imposed a fine of SKK CARDINAL,CARDINAL on the owner of the house with reference to LAW . ORG expressed the view that the obligation to conclude a purchase contract had passed ex lege to the new owner of the house following the transfer of ownership to him . The proceedings were discontinued so far as they concerned ORG podnik , as the latter no longer owned the property . The owner of the house appealed .

On DATE the ORG quashed ORG decision of DATE . ORG did not find it established that the obligation imposed by the arbitration court in DATE had been transferred to the new owner of the house . It therefore instructed the first instance court to ask the applicant and the liquidator of ORG podnik whether they agreed to a change of defendant . Failing such an agreement , there could be no change of defendant .

As to the merits of the applicant ’s claim for enforcement , ORG decision stated :

“ ... it is not possible to proceed pursuant to LAW or by any other means of enforcement of a decision where the decision to be executed imposes an obligation to make a certain declaration of intent [ prejav vôle ] within the meaning of Article CARDINAL(b ) of LAW ( for example to conclude a purchase contract ) . In such a case LAW is not applicable ... but LAW ) is to be applied , according to which final judgments imposing the declaration of intent replace such a declaration of intent . Accordingly , on the basis of such a judgment it is not possible to claim its judicial enforcement where the person concerned fails to comply with the obligation imposed , and it is not possible to have recourse to LAW ... ”

On DATE ORG dismissed the applicant ’s request for change of defendant as the liquidator of ORG podnik disagreed with the proposal . The statutory requirements for granting the applicant ’s request had thus not been met .

In a separate decision delivered on DATE ORG dismissed the applicant ’s request for enforcement of ORG decision of DATE . In particular , the ORG decision stated :

“ ... a decision relating to a declaration of intent may be relied on by the person at whose request it is made and is given effect to as a document reflecting a legal act , in accordance with the legal rules in force . The decision is submitted to the competent legal authority , where necessary , with a view to registering or making public the intent of the person against whom the proceedings have been brought . Such a decision may not be the subject either of judicial enforcement or of execution by an execution officer .

ORG decision of DATE ... can not be enforced as it lacks a material element of enforceability . Where proceedings concern a declaration of intent in respect of a contract , the operative part of the decision on the merits of the case must contain all essential elements of such a contract ... Where CARDINAL of such elements is omitted , the decision on the merits can not be enforced pursuant to ORG ) and such a shortcoming can not be remedied by any other means of enforcement .

In the present case [ the dispute concerns ] a purchase contract . The definition of the purchase price is , along with its object , CARDINAL of the essential elements of such a contract . Reference [ in ORG decision of DATE ] to LAW No . DATE does not mean that the [ vendor ’s ] declaration of intent which was to be replaced was sufficiently certain as required by LAW .

In the case under consideration it is LAW ) and not LAW which is applicable ... This means that on the basis of a judgment [ replacing the declaration of intent of a party ] ... it is not possible to claim judicial enforcement and it is not possible to proceed pursuant to LAW . ”

The applicant appealed . He argued , inter alia , that the arbitration court ’s decision of DATE had not replaced the declaration of intent of the defendant company but had obliged its representatives to conclude a contract with the applicant .

On DATE the ORG upheld ORG decisions of DATE . ORG noted that it was not possible to change defendants in the context of enforcement proceedings as a decision could be enforced only in respect of the person against whom it was delivered . The new owner of the house did not become the general successor to ORG podnik which still existed . By purchasing the house the new owner was not , therefore , liable for the original owner ’s contractual obligations .

As regards the applicant ’s request for enforcement of the arbitration court ’s decision of DATE , the ORG fully subscribed to the views expressed by the first instance court . In particular , ORG decision stated that a decision ordering a party to conclude a purchase contract replaced the intent of the vendor to do so . In respect of such decisions , Article CARDINAL(CARDINAL ) was relevant , according to which , once they were of binding and final effect , such decisions replaced the intent of the party concerned . Enforcement of such decisions under Articles CARDINAL ) and CARDINAL of LAW was excluded .

In DATE the applicant was ordered to move his business out of the LOC in question . On DATE the ORG ordered the applicant to pay SKK CARDINAL plus default interest to the owner of the premises as compensation for their prior use .

Pursuant to Article CARDINAL ) , courts may terminate co - ownership of property at the request of CARDINAL of the co - owners . When it is not practicable to divide the property , its ownership shall be transferred to CARDINAL or several co - owners for appropriate compensation . Practical use of the property should be borne in mind .

Article CARDINAL(CARDINAL ) provides , inter alia

Under LAW ) , the termination of co - ownership may not be detrimental to persons possessing rights attached to the real property concerned .

Under Article CARDINAL(b ) , a claim by way of judicial proceedings may concern the fulfilment of an obligation resulting from the law , from a legal relationship or from a violation of law .

Article CARDINAL ) and ( CARDINAL ) provides that a judgment is enforceable after the expiry of the time - limit set for complying with the obligation imposed by it or , when it does not impose an obligation , after it becomes final .

Under LAW ) , final judgments ordering a party to make a declaration of intent have the effect of such a declaration .

Article CARDINAL ) provides that courts may , in the context of enforcement proceedings , fine parties who fail to comply with obligations imposed by a decision which is to be enforced .

Pursuant to Article CARDINAL ) , the payment of a fine under the first paragraph of Article CARDINAL does not exempt the party concerned from liability for damage .

Under Article CARDINAL(CARDINAL ) , courts shall allow the party concerned to take steps with a view to restoring the previously existing conditions at the cost of the other party when the latter fails to comply with the obligation imposed by the decision to be enforced and thereby brings about a change in the situation . Courts may take appropriate measures with a view to assisting the party concerned in having the original situation restored .

Act No . CARDINAL/CARDINAL of CARDINAL DATE amends LAW . LAW provides that arbitration courts’ decisions remain enforceable unless the rights in question have lapsed .

Section CARDINALa(CARDINAL ) provides that a decision imposing an obligation other than the payment of a sum of money can be enforced by means of a fine of MONEY . Such fines can be imposed repeatedly .

The Business Code entered into force on DATE . Section CARDINAL(CARDINAL ) provides that legal relations which came into being prior to its entry into force and the rights resulting there from are governed by legal rules existing prior to the entry into force of LAW .

Section CARDINAL provides that real estate and buildings the ownership of which is to be transferred under this LAW are to be valued in accordance with the relevant price regulations .

Under Section CARDINAL(CARDINAL ) and ( CARDINAL ) , persons who , by DATE , leased premises the ownership of which is to be transferred have the right to purchase those LOC . In such a case , no public sale is to be held and the ORG organisation concerned shall conclude a purchase contract with the tenant .

Section CARDINAL(CARDINAL ) provides that the purchase price is to be determined pursuant to LAW Act No . DATE .

Act No . CARDINAL on ORG - owned company ( ORG o štátnom podniku ) was adopted on DATE . Under Section CARDINAL(CARDINAL ) , ORG - owned companies carry out their activities autonomously and on their own account . Section CARDINAL ) provides that ORG - owned companies are legal persons which take legal actions on their own behalf and incur liability for such actions . Under paragraph CARDINAL of LAW , ORG - owned companies do not assume liability for obligations of the ORG or of other persons . The ORG does not assume liability for obligations of a ORG - owned company unless the law otherwise provides .

In accordance with ORG case - law , judgments imposing an obligation to conclude a purchase contract replace the vendor ’s declaration of intent to conclude such a contract . There is , therefore , no reason for applying LAW in proceedings concerning the enforcement of such judgments ( Collection of opinions , conclusions , analyses and assessments of judicial practice , No . IV , p. CARDINAL ) .

Where a court ’s judgment is to replace the declaration of intent of a party to a purchase contract concerning real property , the contents of the contract has to be specified in the operative part of the judgment or a reference must be made therein to an attached written version of such a contract . Such contract thus becomes a part of the operative part of the judgment . Where the real property is not sufficiently specified and where the operative part of a judgment does not contain information about the purchase price , the judgment can not replace the declaration of intent of a party to conclude a purchase contract ( ORG and Standpoints of ORG , No . CARDINAL/CARDINAL ) .


Violation of Art. 6-1;Not necessary to examine under Art. 6-2;Not necessary to examine under Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Uşak .

On DATE the applicant was arrested by ORG of ORG on suspicion of membership of an illegal armed organisation , ORG of GPE ( “ the ORG ” , ORG ) and placed in custody .

In her statement of DATE the applicant declared that she aided and abetted the members of the PERSON and that she provided information to the PERSON members who were held in prison .

On DATE the applicant was brought before ORG at ORG and then before the judge , where she denied all the charges against her . She declared that her statement in police custody was taken under duress and that she had been given electric shocks . The judge ordered the applicant ’s detention pending trial .

On DATE ORG at ORG filed an indictment accusing the applicant of membership of an illegal terrorist organisation , aiding and abetting the organisation , providing information to its members who were imprisoned and participating in the demonstrations organised by the organisation .

On DATE the ORG convicted the applicant under LAW and sentenced her to DATE and QUANTITY months’ imprisonment .

On DATE the applicant appealed against this decision to ORG .

On DATE ORG upheld the decision of ORG .

On DATE ORG decision was deposited with the registry of ORG .

A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


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

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

On DATE the applicant was involved in a road accident in which a passenger in his car was killed . Subsequently , criminal proceedings against the applicant were opened . On CARDINAL DATE ORG ) preferred a bill of indictment against the applicant charging him with having caused death by negligence in particularly dangerous conditions under LAW and CARDINAL § CARDINAL of LAW ( fahrlässige PERSON besonders gefährlichen ORG ) , namely in a state of drunkenness .

On DATE ORG Bezirkshauptmannschaft ) summoned the applicant as he was suspected of having committed the administrative offence of driving a car in a state of drunkenness under LAW ( CARDINAL ) ( a ) of LAW ( Straßenverkehrsordnung ) .

On DATE the applicant admitted in his submissions to ORG that he had driven the car in a state of drunkenness , but stressed that ORG was not entitled to prosecute him for the administrative offence under LAW ( CARDINAL ) ( a ) of LAW , as criminal proceedings concerning the same issue were already pending . He relied on LAW .

On DATE and DATE the Ried Regional Court ( PERSON ) held hearings and , on the latter date , acquitted the applicant of the charges under LAW and QUANTITY as it had not been established that the applicant had caused the accident .

On DATE ORG issued a penal order ( PERSON ) against the applicant and fined him in the amount of ATS CARDINAL ( EUR CARDINAL.CARDINAL ) for having driven a car in a state of drunkenness on DATE .

On DATE the applicant appealed relying on LAW No CARDINAL . He did not request a hearing .

On DATE ORG ( Unabhängiger Verwaltungssenat – hereafter referred to as ORG ) , sitting with a single member , dismissed the applicant ’s appeal . It found that the present case had to be distinguished from the case of PERSON v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL-C , pp . DATE , § § CARDINAL ) as the records of ORG hearings disclosed that the court , acquitting the applicant , had accepted his defence that the passenger killed in the accident had caused the accident by grabbing the steering wheel . As it could not be established that the applicant had caused the accident , ORG had not anymore been called upon to consider the further question whether the applicant had actually been drunk . Accordingly , ORG decision did not infringe the applicant ’s rights under LAW . CARDINAL .

On DATE the applicant filed a complaint with ORG ) . He submitted that the ORG ’s decision had been based on an unconstitutional provision and had violated his rights under LAW No CARDINAL .

On DATE the ORG submitted observations in reply and repeated in essence the arguments of its decision of DATE .

On DATE ORG quashed the ORG ’s decision . Referring to its findings of DATE , it held that the decision in the applicant ’s case was based on an unconstitutional provision which excluded that LAW ( GPE ) be applied in road - accident proceedings . Section CARDINAL of the Code of Administrative Offences provides that , if the extenuating circumstances outweigh the aggravating circumstances , the fine imposed may be reduced to the CARDINAL of the statutory minimum fine .

On DATE the ORG requested the applicant to submit information on his financial situation by DATE . It further noted that the issue would be assessed on the basis of the file if he failed to comply with this request . The applicant did not respond .

On DATE the ORG , sitting with the same single member as in the first round of the proceedings , partly allowed the applicant ’s appeal and , applying LAW , reduced the fine to ORG CARDINAL,CARDINAL ( ORG CARDINAL.CARDINAL ) . It confirmed its previous finding of DATE concerning the issue under LAW .

On DATE the applicant filed a complaint with ORG . He pointed out that the ORG had failed to hold a hearing and that the decisions had not been pronounced in public . Further , he complained that the composition of the ORG had been unlawful and challenged the member of the ORG for bias , who had already decided on his appeal in the first round of the proceedings .

On DATE the ORG submitted observations in reply .

On DATE the applicant supplemented his complaint .

On DATE ORG dismissed the complaint . It found that ORG had first to consider whether the applicant had caused death by negligence and only then whether or not he had done so in particularly dangerous circumstances , i.e. in a state of drunkenness . Neither the records of the hearings nor the reasons of the shortened version of the acquitting judgment of ORG disclosed any indication that the court had actually considered the applicant ’s drunkenness . Therefore , the administrative authorities were free to prosecute the applicant for the administrative offence of driving a car in a state of drunkenness , which did not infringe LAW No . CARDINAL .

As regards the lack of a public hearing before the ORG , ORG found that the applicant had failed to file a request to this effect in both the first and second set of the proceedings and that his appeal only related to issues of law .

As regards the lack of a public pronouncement of the ORG ’s decision , ORG , referring to LAW ( Allgemeines Verwaltungsverfahrensgesetz ) , found that this complaint did not raise an issue under the angle of LAW .

As regards the alleged bias of the member of the ORG , it found that the mere fact that the same ORG member had decided on the applicant ’s appeal in DATE set of the proceedings did not disclose any appearance of partiality . In conclusion , there was no indication of unfairness of the proceedings .

On DATE the applicant requested that the case be transferred to ORG ( Verwaltungsgerichtshof ) .

On DATE ORG allowed this request .

On DATE ORG ordered the applicant to supplement his complaint . The applicant did so on DATE .

On DATE the ORG submitted observations in reply , on which the applicant commented on DATE .

On DATE ORG declined to deal with the applicant ’s complaint pursuant to LAW of LAW ( Verwaltungsgerichtshofsgesetz ) since the amount of the penalty did not exceed ATS CARDINAL and no important legal problem was at stake as ORG had already dealt with the issue under LAW No . CARDINAL . This decision was served on the applicant ’s lawyer on DATE .

Section CARDINAL of LAW DATE provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to , or higher than , QUANTITY or QUANTITY , respectively .

Section CARDINAL of the CARDINAL LAW provides , so far as relevant at the material time , that :

“ ( CARDINAL ) It shall be an administrative offence ( Verwaltungsübertretung ) , punishable with a fine of not less than ATS CARDINAL,CARDINAL and not more than ATS CARDINAL,CARDINAL or , in default of payment with CARDINAL to CARDINAL GPE imprisonment , for any person :

( a ) to drive a vehicle when under the influence of drink ( ... )

( b ORG administrative offence is not committed where : ( ... )

( c ) facts constituting an offence under sub - sections ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) also constitute an offence falling within the jurisdiction of the [ ordinary ] courts ... . ”

Under LAW of LAW , it is an offence , punishable by up to one years’ imprisonment , to cause death by negligence . Where the special circumstances of LAW § CARDINAL apply , the maximum possible sentence is increased to up to CARDINAL years’ imprisonment .

Section CARDINAL § CARDINAL applies where a person commits the offence ,

“ after allowing himself , even if only negligently , to become intoxicated ( ... ) through the consumption of alcohol , but not to an extent which excludes ( ... ) responsibility ( ... ) ” .

Under an irrefutable presumption applied by the criminal courts , a driver with a level of blood alcohol of QUANTITY or higher is deemed to be “ intoxicated ” for the purposes of LAW § CARDINAL .


Anatoly Kovler;George Nicolaou;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged an action before ORG ( “ the ORG ” ) against ORG seeking compensation for damage caused to his health .

The first hearing scheduled for DATE did not take place due to the parties ' failure to appear .

On DATE and DATE the applicant informed the court that he would not be available for a short period of time and requested that any scheduled hearings be postponed .

On DATE the applicant amended his claims , following which the hearing was adjourned to obtain additional evidence . Upon arrival of the respondent 's comments on the claim , on DATE the hearing was again adjourned to collect evidence .

On DATE the court granted the applicant 's request for assistance in obtaining certain documents from his former military unit and sent an inquiry .

On DATE the court postponed the hearing pending the applicant 's convalescence .

On DATE the applicant again amended the claims , following which the hearing was adjourned to obtain evidence from certain ORG bodies .

On DATE the court granted the respondent 's motion for adjournment of the proceedings pending the outcome of an inquiry at ORG that concerned compliance of relevant legal provisions with LAW . On DATE ORG ( “ the ORG ” ) dismissed the applicant 's application for supervisory review of the above decision .

The Government submitted that ORG had ruled on the relevant issues on DATE and DATE .

The proceedings were resumed on DATE . Following the parties ' failure to appear at CARDINAL hearings , on DATE the court left the claims without consideration . On DATE this decision was quashed for lack of proper notification of the parties , and the proceedings were resumed .

The proceedings were stayed from DATE to CARDINAL DATE pending the outcome of another inquiry with ORG , which was resolved on DATE .

After resumption of the proceedings the parties did not appear at CARDINAL hearings , and on DATE the court again left the claims without consideration .

In DATE and DATE the applicant requested that the above decision be quashed and amended his claims . The proceedings resumed on DATE .

DATE and DATE CARDINAL hearings were adjourned at the initiative of the respondent and for the public prosecutor 's default in appearance . The applicant in the meantime supplemented his claims and motioned for examination of the case in his absence .

On DATE ORG granted the applicant 's claims in part awarding him MONEY ( RUB ) in damages and RUB CARDINAL in DATE payments of disability pension .

On DATE ORG overturned the judgment for errors of fact and ordered a new hearing . The appeal court also issued a decision in respect of the president of ORG to reprimand him for breaches of procedural law and excessively long examination of the case . In particular , the appeal court pointed out that the applicant , or both parties , had not been duly notified of the hearings of CARDINAL DATE , DATE and DATE , CARDINAL DATE and DATE . It also noted the large interval between the hearings held in DATE and DATE .

NORP In DATE and DATE the applicant motioned for examination of the case in his absence .

On DATE the court adjourned the hearing to allow the respondent to obtain certain evidence .

On DATE ORG again granted the claims in part , awarding the applicant RUB CARDINAL in damages and RUB CARDINAL as DATE payments .

On DATE ORG upheld the judgment on appeal after correcting an arithmetical error .

Federal Law № CARDINAL-ФЗ of DATE ( in force as of CARDINAL DATE ) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment , the NORP citizens are entitled to seek compensation of the non - pecuniary damage . ORG CARDINAL-ФЗ adopted on DATE introduced the pertinent changes in the NORP legislation .

Section CARDINAL of LAW CARDINAL-ФЗ provides that everyone who has a pending application before ORG concerning a complaint of the nature described in the law has DATE to bring the complaint to the domestic courts .


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

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

In DATE the applicant ’s relatives brought proceedings claiming the distribution of real property which they jointly owned with the applicant .

On DATE ORG granted the claim . On DATE the ORG upheld the first instance judgment . The decisions became final .

On DATE ORG quashed , upon a complaint introduced by ORG , the relevant parts of the above judgments . ORG established that the lower courts had failed to apply the law correctly and that their decisions were erroneous . The case was sent back to ORG on DATE .

On DATE ORG stayed the proceedings , at the applicant ’s request , pending the outcome of a different set of proceedings . The proceedings concerning the preliminary issue ended by the delivery of ORG decision of DATE .

On DATE ORG discontinued the proceedings in respect of the other defendants as the plaintiffs had withdrawn their action . It decided to continue proceeding with the case to the extent that the action was directed against the applicant as the latter had not agreed that the proceedings be discontinued . The applicant claimed that the house in question be assigned to the claimants and that the latter should be ordered to pay him compensation for his share . He further claimed that the land in question be distributed among the owners and that his share be assigned to him in natura .

In the course of DATE ORG took further evidence with a view to establishing whether the land in question could be split into several plots .

On DATE ORG dismissed the action . It found that the claimants had lost standing in the case as they had transferred the property in question to other persons in DATE . On DATE the applicant appealed . He also challenged the ORG judges . On DATE the ORG excluded CARDINAL of the ORG judges from dealing with the case .

On DATE the ORG quashed the first instance judgment . It expressed the view that the transfer of property to other persons in DATE was void .

On DATE ORG refused to exclude ORG judge to whom the case fell to be examined .

On DATE ORG asked the defendants to submit further evidence . A hearing was held on DATE .

ORG heard the parties on DATE as well as on CARDINAL and DATE . On DATE it appointed an expert who was to submit an opinion within DATE . The expert failed to do so . On DATE the ORG therefore appointed another expert . As the latter had fallen ill , ORG appointed a third expert on DATE . On DATE ORG appointed another expert with a view to obtaining the opinion .

On DATE the vice - president of ORG dismissed the applicant ’s complaint about delays in the proceedings . The letter stated that ORG would be urged to ensure that the expert opinion be submitted as soon as possible .

On DATE the ORG heard the applicant . On DATE it stayed the proceedings . The decision stated that CARDINAL of the plaintiffs had died on DATE and that the proceedings would be resumed after the determination of his estate .

On DATE the applicant complained about , inter alia , delays in the proceedings to ORG . On DATE the latter invited the applicant to eliminate formal shortcomings in his submissions within DATE . In particular , the applicant was requested to substantiate the alleged violation of his rights , to inform ORG whether he had exhausted other remedies available and to appoint a lawyer representing him in the proceedings . On DATE ORG rejected the complaint as the applicant had failed to comply with the above request .

On DATE the FAC granted the applicant ’s claim for CARDINAL NORP korunas which he had lent to an individual . The judgment became final on DATE . The defendant failed to comply .

On DATE the applicant requested ORG to enforce the judgment by ordering the transfer of the relevant sum from the bank account of the debtor .

In DATE CARDINAL banks informed the court that the debtor had no account with them . On DATE the court discontinued the proceedings . The court noted that it was not in a position to establish in which bank the debtor had an account and that the applicant ’s lawyer had failed to cooperate with the court in this respect .

On DATE the applicant requested the Liptovský ORG to issue an interim measure ordering the debtor not to dispose of his car . On DATE ORG granted the request . It further ordered the applicant to lodge a claim for enforcement of the debt by selling the car before DATE .

The applicant made written submissions on DATE . As their contents was unclear , he was invited to bring them into conformity with the relevant provisions of LAW .

On DATE the applicant filed a formal request for enforcement of the debt by means of selling the defendant ’s car . On DATE ORG ordered the enforcement of the debt . A list of the defendant ’s property was to be established in that context . The file was transmitted to the enforcement officer on DATE . On CARDINAL DATE the enforcement officer drew up a record stating that the debtor was serving a prison sentence and that he no longer owned the car . On DATE ORG informed the applicant that the debt could not be enforced by selling the debtor ’s car . On DATE the president of ORG upheld this position and informed the applicant of the other possibilities of having the sum enforced .

On DATE the applicant claimed the enforcement of the debt by the sale of the defendant ’s real property . Subsequently the Liptovský ORG repeatedly asked the applicant to eliminate formal shortcomings in his claim . On DATE the applicant complied with the court ’s request .

On DATE the president of the FAC admitted that the court had not proceeded with the applicant ’s claim for enforcement for DATE . She explained that this was due to the heavy workload of the court .

On DATE ORG invited the applicant to pay the costs of the enforcement proceedings , and on DATE it ordered the enforcement of the amount due by selling the debtor ’s share in the real property . On DATE the judge appointed an expert with a view to establishing the value of the property in question .

On DATE the judge dismissed the opinion submitted by the expert as it had not been prepared in accordance with the court ’s instructions . The expert was instructed to submit a new opinion .

On DATE ORG informed the applicant that ORG had brought bankruptcy proceedings against the debtor on DATE . The enforcement proceedings brought by the applicant were thereby stayed ex lege pending the outcome of the bankruptcy proceedings . The applicant was informed that he could register his claim in respect of the debtor within DATE .

On DATE the Banská Bystrica Regional Court asked the applicant to substantiate his claim against the debtor in the context of the bankruptcy proceedings . The applicant complied on CARDINAL DATE . On DATE the ORG informed the applicant that his claim had been registered .

The letter further stated that ORG had lodged a criminal complaint against the debtor for non - compliance with his obligations in the context of the bankruptcy proceedings . The applicant was informed that the proceedings would be resumed after the examination of the complaint by the public prosecutor . On DATE the Liptovský Mikuláš convicted the debtor . The latter appealed .

The Banská Bystrica Regional Court held a hearing in the bankruptcy proceedings on DATE . The creditors were invited to submit any comments on the registration and classification of their claims within DATE .

On DATE the applicant complained about delays in the enforcement proceedings and the bankruptcy proceedings to ORG . On DATE the latter invited the applicant to eliminate formal shortcomings in his submissions within DATE . In particular , the applicant was requested to substantiate the alleged violation of his rights , to inform ORG whether he had exhausted other remedies available and to appoint a lawyer representing him in the proceedings . On DATE ORG rejected the complaint as the applicant had failed to comply with the request .

LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

LAW guarantees to everyone the right to own property and to enjoy its protection on an equal footing with other owners .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL/CARDINAL ( LAW ) , as amended with effect from DATE . In particular , Section CARDINAL ) provides that ORG may grant adequate financial compensation for non - pecuniary damage to a person whose rights or freedoms have been violated .

After DATE the ORG delivered a number of decisions in which it found a violation of LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation for non - pecuniary damage in respect of delays which had already occurred .

In its decision no . III ÚS CARDINAL/CARDINAL - CARDINAL of DATE ORG found a violation of the complainant ’s constitutional right to access to public functions and granted her CARDINAL NORP korunas in compensation for non - pecuniary damage . In its decision ORG recalled that it could not consider claims for pecuniary damages , such as compensation for lost income in the case at issue , when determining the amount of just satisfaction to be granted under LAW ) of LAW .

Section CARDINAL ) of Act No . TIME on the liability of the ORG for damage caused by a ORG organ ’s decision or by its erroneous official action ( ORG o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “ LAW ” ) renders the ORG liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions . A claim for compensation under this provision can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority , quantifies its amount , and shows that there is a causal link between the damage and the erroneous action in question .

A claim for damages is to be lodged with the competent central government authority . The latter ’s decision on it can be challenged before a court .

In accordance with the ORG practice , LAW does not permit granting compensation for damage of non - pecuniary nature with the exception of compensation for damage caused to a person ’s health which is governed by Regulation No . CARDINAL .


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

ORG . NORP The applicant was born in DATE .

On DATE she requested ORG in GPE ( PERSON ) to enter into a contract to provide her with telecommunication services and to install a telephone line in her apartment , submitting that it was justified in view of humanitarian reasons such as her old age and disability ( in particular , the fact that her mobility , sight and hearing were seriously impaired ) . She maintained that a total inability to communicate with the outside world in case of emergency was endangering her life .

On DATE the office replied that at the current stage of development of its services , installing a telephone line in her apartment was technically impossible , although ( time and progress in the necessary works permitting ) the request would be granted in the near future .

NORP Since no such contract had been concluded between the parties by DATE , on DATE the applicant sued ORG in GPE in FAC ( Sad Rejonowy ) , seeking a judgment ordering the defendant to enter into a contract for the provision of telecommunication services with her and to install a telephone line in her apartment . She also requested the court to exempt her from court fees and grant her legal assistance . In that respect she relied on a medical certificate describing her state of health .

On DATE the court , finding that FAC was competent to deal with the applicant ’s claim , referred her case to the latter court . The case was registered with ORG of that court on DATE . On DATE the court ordered the applicant to adduce , within DATE , evidence in support of her request for exemption from court fees and legal assistance .

On DATE the Wroclaw - Krzyki District Court granted the applicant a general exemption from court fees and legal assistance . Later , on CARDINAL DATE , it served the statement of claim on the defendant company , ordering it to submit a reply within DATE .

On DATE the trial court listed the first hearing in the applicant ’s case for DATE . During the hearing , the court established that a similar claim had been lodged by a person living in the same building as the applicant and registered under file no . ORG CARDINAL/CARDINAL with ORG of ORG . Apparently , that court had already ordered in those proceedings that expert evidence be obtained to establish whether it was technically possible to install a telephone line in the building . Considering that such expert evidence might be relevant for the outcome of the applicant ’s case , her lawyer requested the court to stay the proceedings . On DATE the defendant ’s lawyer lodged a similar request with the court . On DATE the court ordered that the proceedings be stayed until the termination of the case no . I C CARDINAL/CARDINAL .

In that latter case , on an unspecified date , ORG obtained a report from PERSON , a telecommunications expert , according to whom it was technically possible to install a telephone line in the building . On DATE the court gave judgment .

On DATE the applicant sent a letter to ORG , requesting it to proceed with the determination of her claim . She also stated that it was high time that her claim was decided as it had been submitted for adjudication in DATE and that both her age ( she was CARDINAL at the time ) and the state of her health called for a speedy resolution of the proceedings . The court deemed her letter to be a request for the proceedings to be resumed , to which it gave effect on DATE .

On CARDINAL DATE the court held a hearing . During that hearing the court decided to obtain evidence contained in the case - file of case no . I C CARDINAL . That case - file comprised material relating to a similar claim lodged by GPE , the applicant ’s grandson , who lived in the same building as she did . The court further ordered that evidence from GPE be heard and adjourned the trial to DATE .

After the trial date , on DATE , the court ordered that the material contained in the case - file of case no . IC CARDINAL/CARDINAL be obtained and taken into consideration .

On DATE ORG ( PERSON ) issued a decision granting the applicant the so - called “ domiciliary services ” ( uslugi pielegnacyjne ) in view of the fact that she suffered from sclerosis , her sight and hearing were seriously impaired , she was unable to attend to herself and needed care from third persons .

On DATE the court ordered that the applicant ’s lawyer submit , within DATE , a reply to a pleading filed by the defendant on an unspecified date . Later , on DATE , the court issued a reminder to the lawyer , ordering him to submit the reply in question within DATE .

On DATE , DATE and DATE the court made orders relating to certain - unspecified - procedural issues .

On DATE the court took evidence from the applicant at her home as it considered that , given her age and disability , she was unable to appear before it . Apparently , the court encountered certain difficulties in communicating with the applicant . DATE , on DATE , the court ordered the applicant ’s lawyer to submit a medical certificate stating whether the applicant was able to understand and lodge pleadings in her case .

On DATE the court ordered that evidence from an expert in telecommunications be obtained in order to establish whether it was technically possible to install a telephone line in the applicant ’s apartment . The expert submitted his report to the court on DATE . He concluded that even though installing a telephone line in the applicant ’s apartment had been technically possible since DATE , she had failed to comply with certain formal requirements for persons wishing to enter into a contract for telecommunication services , which had resulted in her being ineligible to enter into such a contract . In the expert ’s view , the applicant had not submitted documentary evidence demonstrating that priority should have been given to her application for the provision of telecommunication services . Moreover , at the relevant time ORG in PERSON had had to deal with many similar requests lodged prior to that of the applicant .

A copy of the report was served on the applicant on an unspecified date . Subsequently , on DATE , the court listed a hearing for DATE .

On DATE the applicant filed a motion with the court , challenging the impartiality of the expert . She submitted that the expert was a permanent employee of the defendant and had , therefore , an interest in supporting the arguments of her opponent . She requested the court to reject the expert ’s report and order that fresh evidence be obtained from another , objective expert . In the applicant ’s opinion , the expert ( who had been appointed at her expense ) had manifestly violated basic principles of professional conduct and payment of the fee for preparing his report had not been justified . The court should , therefore , either order the expert to pay back the fee or appoint another expert at its own expense .

On DATE the court ordered the applicant ’s lawyer to submit a medical certificate stating whether the applicant was able personally to give statements to and file motions with the court .

The next hearing was held on DATE . On DATE the court ordered that fresh evidence from another expert be obtained , but at the applicant ’s expense . On DATE the court requested experts at ORG to prepare a report within DATE .

On DATE the experts from the ORG submitted their report to the court . They concluded that during the period from DATE to CARDINAL DATE installing a telephone line in the applicant ’s apartment had been technically possible and , consequently , the defendant had had no reason for not entering into a contract for the provision of telecommunication services with the applicant .

Later , on an unspecified date , the applicant filed a pleading with the court , amending the statement of claim . On a further unspecified date the court served a copy of her pleading on the defendant .

On DATE the court held a hearing but adjourned the proceedings to DATE . However , in DATE a massive flood inundated the south - west of GPE , severely affecting PERSON and , as a result , the proceedings in the applicant ’s case were stayed ex lege on an unspecified date .

On DATE the Wroclaw - Krzyki District Court held a hearing and gave judgment dismissing the applicant ’s claim . The applicant appealed on DATE to ORG ( Sad Wojewódzki ) .

An appellate hearing was held on DATE . The court gave judgment DATE , granting the applicant ’s claim . Shortly afterwards , the applicant requested the appellate court to provide her with an enforcement order . The court informed her that she should lodge her motion with the court of first instance , which was competent to keep the records of the case in its archives and , if requested , provide the parties to the proceedings with a copy of the final judgment , together with an enforcement order .

Subsequently , on an unspecified date , the case - file was transferred to FAC . It was received at the court ’s registry on DATE .

In the meantime , on DATE , the applicant had requested PERSON District Court to provide her with an enforcement order . As of DATE , she had not received that order .

Section CARDINAL of the Code of Civil Procedure , which sets out a general principle known as the “ expedition of civil proceedings ” ( zasada szybkosci postepowania ) , provides :

“ NORP The court shall counteract delays in proceedings and shall - insofar as it is possible [ to do so ] without prejudicing the [ proper ] elucidation of the case - endeavour to determine the case at the first hearing held . ”

Section DATE of the Code of Civil Procedure , contained in Book Two , entitled “ Enforcement proceedings ” , provides as follows :

“ NORP The court shall examine a motion for an issue of an enforcement order promptly ; [ such a motion ] shall be examined within DATE from the date on which it has been lodged with the court . ”

Before a creditor can institute enforcement proceedings against a debtor , he or she must , as an indispensable statutory prerequisite , obtain a court order of enforcement ( Sections CARDINAL and CARDINAL of LAW ) . In practice , a court issues such a decision by stamping a copy of a final judgment with the set text of the order , which must be followed by the signature of a judge . No court session is held to examine a motion for the issue of an enforcement order .


Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

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

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

The applicant was a military serviceman .

On DATE ORG ( “ the Khabarovsk Court ” ) ruled in the applicant ’s favour . It declared certain actions of ORG Commissioner ( “ the Regional Commissioner ” ) unlawful . ORG further ordered the Regional Commissioner to appoint the applicant to a specific post , to send him for medical examination and to pay him certain monetary sums . The applicant was also granted monetary compensation for the nonpecuniary damage caused by the Regional Commissioner ’s unlawful actions .

On DATE ORG judgment was mainly upheld on appeal by ORG .

On DATE the applicant was appointed to the post pursuant to the judgments in his favour .

The Regional Commissioner invited the applicant to undergo the medical examination on DATE . The applicant failed to arrive to the hospital of ORG of the Interior for that purpose either on DATE or on any date thereafter .

The monetary compensation ordered by ORG judgment of DATE was fully paid to the applicant ’s account in several tranches in DATE and DATE .

On DATE FAC ( “ FAC ” ) again found for the applicant . It declared the Regional Commissioner ’s order on the applicant ’s discharge unlawful . ORG further ordered the Regional Commissioner to reinstate the applicant , to re - calculate his salary and to pay compensation to him and to give him DATE of paid leave . ORG judgment was upheld on appeal by ORG on DATE .

On DATE the applicant was formally re - instated by the Regional Commissioner pursuant to ORG judgment of DATE . The applicant was informed accordingly by the letter of the acting Regional Commissioner of DATE . He was also invited to report to the Regional Commissioner ’s office in order to comply with other formalities . The documents in question were handed over to the applicant on DATE .

As the applicant failed to arrive to his office , the Regional Commissioner on DATE decided to deposit the monetary award due to the applicant with a bank account which had been opened for that purpose with ORG .

On DATE the military officials attempted to hand down the corresponding documents to the applicant personally but he refused to take them . In DATE the applicant received the documents which had been mailed to him .

Relevant domestic law and practice are summarized , among many other judgments and decisions of the ORG , in PERSON and Others v. GPE , QUANTITY . CARDINAL , DATE and CARDINAL , § § DATE , CARDINAL DATE .


Lack of jurisdiction (new complaint);Violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

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

ORG On DATE he left GPE . He reached FAC on DATE via GPE and the GPE .

ORG He requested refugee status on CARDINAL DATE and was interviewed on DATE by ORG ) . On that occasion he stated that his uncle had been an active member of ORG ( " the ORG " ) and that his father and his brother , though not members of the ORG , had assisted his uncle and been executed on that account in DATE . Since then he and his family had been suspected of belonging to the ORG and taking part in acts of rebellion . His car had been confiscated and he had been assaulted , as was evidenced by a still - visible scar on his left forearm . He had left GPE through fear of being arrested and executed .

ORG On DATE ORG rejected the application , but on appeal by the applicant the Minister of the ORG reversed this decision on DATE and granted refugee status within the meaning of LAW ( see paragraph CARDINAL below ) . He considered that PERSON could not be required to return to his homeland , regard being had to his activities in an opposition group and the general situation in the country concerned . His statements , which appeared credible , gave grounds to fear that , in the event of his return to GPE , he would suffer persecution there within the meaning of LAW .

ORG On DATE ORG ( Bundesasylamt ) in GPE , acting pursuant to section CARDINAL ( CARDINAL ) ( CARDINAL ) of ORG ( see paragraph CARDINAL below ) , ordered the forfeiture of the applicant ’s refugee status . This decision followed a judgment of DATE in which ORG ( PERSON ) sentenced the applicant to CARDINAL and a half years’ imprisonment for attempted robbery ( versuchter ORG ) : together with an accomplice , PERSON had struck a passer - by in the face and attempted to steal his wallet .

ORG On DATE the Minister of the ORG dismissed an appeal by the applicant . He pointed out that under LAW ( CARDINAL ) ( CARDINAL ) of ORG a refugee lost refugee status if he committed a " particularly serious crime " within the meaning of Article CARDINAL para . CARDINAL of LAW . LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) showed that the legislature considered that expression to mean any offence punishable by a term of imprisonment exceeding DATE . Since attempted robbery was punishable by up to CARDINAL years’ imprisonment , the applicant had forfeited his refugee status and any other consideration relating to the correctness of his conviction or the situation in GPE was superfluous .

Mr PERSON contested this decision in ORG ( Verwaltungsgerichtshof ) , which set it aside on DATE . ORG held that the applicant ’s conviction for a particularly serious crime had only evidential relevance ; it could not be deduced therefrom that , ipso facto , the applicant constituted a danger to NORP society within the meaning of Article CARDINAL para . CARDINAL of LAW . Such a conclusion , which suspended the protection ( PERSON ) afforded by that LAW in spite of the continuing risk of persecution , could only be reached after the interests of the refugee and those of the host ORG had first been weighed against each other , the result being unfavourable to the former . The measure involved such a restriction of the refugee ’s personal rights ( persönliche Rechtssphäre ) that it had to be really necessary for one of the reasons set out in the provision concerned . In order to determine whether that was so , it was necessary to assess the future conduct of the person concerned , but in the present case the Minister had neglected to do so .

ORG On DATE the Minister of the ORG again ordered the forfeiture of PERSON refugee status . Referring to the Administrative Court ’s decision ( see paragraph DATE above ) , he first noted that the applicant had been found guilty of attempted robbery , a particularly serious crime within the meaning of Article CARDINAL para . CARDINAL of LAW . He went on to mention other measures taken against the applicant , namely a suspended sentence of CARDINAL months’ imprisonment and a fine of CARDINAL NORP schillings ( ORG ) for criminal damage ( ORG ) in DATE , a fine of ORG CARDINAL for threatening behaviour ( ungestümes ORG ) in a police station in DATE and a complaint by the police to the GPE public prosecutor alleging criminal damage in DATE . Although , taken separately , these offences did not represent any danger to society , taken together they nevertheless revealed a clear tendency to aggression . It could not therefore be excluded that the applicant might commit further offences in future , which made him a danger to society .

ORG On DATE ORG upheld the above decision , holding in particular that in carrying out an assessment of the applicant ’s dangerousness ( GPE ) the Minister had validly relied on events prior to his imprisonment .

ORG In the meantime , on DATE , ORG ) had issued an indefinite exclusion order ( unbefristetes PERSON ) against the applicant under LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) and ordered that after serving his sentence he was to be detained with a view to his expulsion ( Schubhaft ) . It noted that in view of the applicant ’s convictions and the seriousness of CARDINAL of the offences , namely attempted robbery , it could not be excluded that he would continue to offend . Therefore , in order to preserve public peace , order and security , and to prevent PERSON from committing crimes within the meaning of Article CARDINAL para . CARDINAL ( article LAW of LAW , it appeared to be essential to deport him , even though that measure incontestably constituted an interference ( ORG ) in his private life .

ORG The applicant appealed against the above decision on DATE , asking the authorities to find , under LAW of LAW , that his expulsion would contravene section DATE of the same Act ( see paragraphs CARDINAL and CARDINAL below ) . On DATE ORG dismissed the appeal , but reduced the period specified in the exclusion order against him to DATE . It considered that ORG had correctly weighed the conflicting interests and had had valid reasons to form the view that revoking the expulsion would have much more serious detrimental effects on the community than on PERSON . It further noted that the applicant could not yet be regarded as integrated into NORP society , as he had lived there for DATE and had been in prison since DATE . Nor did he have family or other links with the country . As for his occupational activities , these did not require any particular qualification and could therefore also be carried on abroad . Moreover , the applicant had been unemployed at the time of his arrest .

ORG After being released on parole ( bedingte PERSON ) , the applicant was taken into custody at the GPE police headquarters on DATE with a view to his expulsion .

ORG On DATE ORG ( Unabhängiger Verwaltungssenat ) upheld an appeal by PERSON against the above measure ( Schubhaftbeschwerde ) on the ground that , as ORG had extended the provisional measure indicated under Rule CARDINAL of its Rules of Procedure ( see paragraph CARDINAL above ) , deportation of the applicant before expiry of the DATE maximum period for detention of that type ( section CARDINAL of LAW ) seemed to be out of the question . The applicant was therefore released .

ORG On DATE Mr PERSON appeared before ORG with a view to the possible application of section CARDINAL of LAW ( see paragraph CARDINAL below ) . He asserted that the situation in GPE had deteriorated since his departure in DATE . He was a member of the PERSON clan , which at that time was being persecuted , especially by the generals in power . His clan , who lived QUANTITY to the north of GPE , had supported General PERSON , but had later withdrawn that support and since then had been on the run from him as well . He could therefore not return to the country without risking his life .

On DATE ORG declared the proposed expulsion of the applicant lawful ( zulässig ) . It took the view that , taken together , the offences he had committed revealed a tendency towards aggressive behaviour and even increasing aggressiveness ( steigendes PERSON ) , which did not stop short of violence against the person . It could therefore not be excluded that PERSON might commit other offences in future , so that he constituted a danger to the community within the meaning of LAW ( CARDINAL ) of LAW . That being the case , even the fact that he risked persecution in the event of his return to GPE could not make his deportation to that country unlawful .

ORG On DATE the ORG dismissed the applicant ’s appeal of DATE ( see paragraph CARDINAL above ) on the ground that there were no solid reasons to believe that on his return to GPE he might suffer treatment prohibited by LAW ( CARDINAL ) and ( CARDINAL ) of LAW . According to the established case - law of ORG , section CARDINAL ( CARDINAL ) contemplated only dangers and threats emanating from a ORG . Since the overthrow of President PERSON a civil war had been raging in GPE and all ORG authority ( staatliche PERSON ) had disappeared . Moreover , there was nothing to suggest that the applicant might be persecuted in GPE for CARDINAL of the reasons set out in section CARDINAL ( CARDINAL ) . Lastly , there would not be any breach of LAW para . CARDINAL ( article DATE ) of LAW either , since under section CARDINAL the mere fact that on returning to his home country an alien might be risking his life was not a sufficient bar to expulsion .

ORG On appeal by the applicant , ORG set aside the above decision on CARDINAL DATE . Thereupon ORG found on DATE that in GPE PERSON would be at risk of persecution for one of the reasons set out in LAW . On DATE it accordingly stayed his expulsion for a renewable period of DATE .

ORG Under LAW of DATE , as amended by LAW of DATE , a " refugee " is defined as any person who " owing to well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , is unwilling to avail himself of the protection of that country " .

LAW provides :

" CARDINAL . No Contracting State shall expel or return ( ‘ ORG ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgment of a particularly serious crime , constitutes a danger to the community of that country . "

ORG Under LAW ( CARDINAL ) ( CARDINAL ) of the DATE Right to LAW ( Asylgesetz ) , a refugee loses refugee status if the competent authority finds that the conditions set out in LAW para . CARDINAL of LAW relating to LAW ( see paragraph CARDINAL above ) are satisfied .

Section DATE LAW ( PERSON ) governs exclusion orders ( Aufenthaltsverbot ) . The first paragraph provides that an alien ’s exclusion must be ordered if certain facts give reason to believe that his presence in the country constitutes a danger to public peace , order and security or is incompatible with other public interests referred to in DATE . CARDINAL ( article LAW of LAW . Among the facts which are relevant for the purposes of section CARDINAL , subsection CARDINAL mentions a final decision by an NORP court imposing on the refugee concerned a custodial sentence of DATE .

ORG The first sentence of section CARDINAL ( CARDINAL ) provides for expulsion to be stayed for a renewable period of DATE at the request of the person concerned , or by the authorities of their own motion , where expulsion is prohibited under LAW or appears to be impossible in practice .

ORG Section CARDINAL forbids the expulsion of an alien to a State where there are solid reasons ( stichhaltige GPE ) to believe :

- that he will be exposed to the risk of inhuman treatment or punishment or the death penalty ( subsection CARDINAL ) ; or

- that his life or liberty will be at risk on account of his race , religion , nationality , membership of a particular social group or political opinion ( subsection CARDINAL , which refers to LAW para . CARDINAL of LAW ) .

The expulsion of an alien to a ORG where he would be at risk within the meaning of subsection CARDINAL is permitted only if , for weighty reasons , the person concerned constitutes a danger to the security of GPE or , having been convicted by a final judgment of a crime punishable by MONEY , a danger to society ( subsection CARDINAL , which refers to LAW para . CARDINAL of LAW ) .

No alien may be deported while a provisional measure requested by ORG is in force ( subsection CARDINAL ) .

ORG Under LAW the competent authority has to determine ( Bescheid ) , at the alien ’s request ( Antrag ) , whether there are solid reasons to believe that he would be at risk , within the meaning of LAW CARDINAL ( CARDINAL ) or ( CARDINAL ) , in a particular ORG named by him ( subsection CARDINAL ) .

Pending the final decision on the alien ’s request he may not be deported to the ORG in question . If he has been deported to another ORG the proceedings are discontinued for lack of object ( subsection CARDINAL ) .


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings)

Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

In DATE the applicant lived in GPE and was involved in the activities of NORP - ut - GPE ( “ ORG ” ) , a pan - NORP organisation banned in GPE . In DATE he moved to GPE , leaving behind his wife and QUANTITY children , born in DATE and DATE , in GPE .

On DATE the applicant was arrested in GPE on drug - related charges ( LAW ( “ the ORG ” ) ) . His NORP passport was confiscated upon arrest . On DATE the ORG of GPE sentenced him to imprisonment . After his release on DATE , the applicant arrived in GPE , where he started a relationship with a NORP national . It appears that she was residing in GPE unlawfully at the material time . They have CARDINAL minor children born in DATE and DATE .

On DATE ORG of ORG of GPE charged the applicant , in absentia , with attempting to overthrow the existing regime under LAW ( a and b ) of LAW ( “ the ORG ” ) .

On DATE the GPE regional prosecutor ordered the applicant ’s placement in custody and put his name on a search list .

On DATE the applicant was additionally charged with setting up a criminal group ( Article CARDINAL - CARDINAL of the ORG ) , producing and disseminating documents containing a threat to national security and public order ( LAW ( a and c ) of the ORG ) , and setting up , managing and participating in extremist , separatist , fundamentalist and other banned organisations ( Article CARDINAL of the ORG ) .

On an unspecified date his name was put on the international wanted list .

On DATE the applicant was arrested by the police in GPE as a person wanted by the NORP authorities . On DATE ORG submitted a formal request asking its NORP counterpart to extradite the applicant on criminal charges under ORG CARDINAL ( a and b ) , CARDINAL - CARDINAL , CARDINAL ( a and c ) and CARDINAL of the ORG . Relying on LAW ( “ the FAC ” ) , the NORP authorities provided assurances that the applicant would not be extradited to a third country without the consent of GPE , that he would not be prosecuted , tried or punished for an offence which was not the subject of the extradition request and that he would be able to freely leave GPE , once the court proceedings had terminated and the sentence served . On DATE ORG received the extradition request .

Thereafter , ORG carried out a preliminary check of the extradition request ( “ an extradition check ” ) ( see paragraph CARDINAL below ) . It can be seen from the information collected DATE by ORG ( “ the ORG ” ) , ORG ( “ the ORG ” ) and ORG , that the applicant was an NORP national who had not applied for NORP citizenship or temporary asylum or registered his residence in GPE . The said authorities saw no obstacle to his extradition to GPE . Moreover , on DATE the ORG submitted that the applicant was “ certainly a functionary ” of ORG and recommended that he be extradited .

On DATE the deputy Prosecutor General granted the extradition request and issued an extradition order in respect of the applicant . He referred to the charges brought against the applicant , according to which he had been a founding manager and financial supporter of ORG , had created a number of sub - groups of the said organisation in GPE and actively participated in the dissemination of its subversive materials , characterised as extremist , separatist and fundamentalist . The prosecutor decided to extradite the applicant on charges of setting up a criminal group and participating therein ( Article CARDINAL - CARDINAL and CARDINAL of the ORG ) and attempting to overthrow the existing regime and constitutional order ( LAW . He noted that the statute of limitations for those offences had not expired either in GPE or in GPE . The prosecutor further pointed out that , in line with LAW and LAW ( “ the CCrP ” ) , differences in the legal classification of the offences and their elements under NORP and NORP criminal law were not sufficient grounds for refusing extradition . Lastly , the prosecutor referred to the information provided by the ORG that the applicant was an NORP national who had not applied for NORP citizenship . The prosecutor concluded that there were no obstacles to his extradition to GPE .

On DATE the extradition order was served on the applicant .

On DATE the applicant sought judicial review of the extradition order , referring , inter alia , to a fear of torture and inhuman and degrading treatment , in particular , on account of his connections with ORG . The applicant ’s appeal was supported with his lawyer ’s claims of CARDINAL DATE and DATE that torture remained a widespread practice in GPE , according to reports of numerous international organisations and recent media publications .

On DATE the Saratov ORG upheld the extradition order , relying on the assurances issued by ORG that the applicant would be treated in strict compliance with internal procedural norms . It also referred to the dismissal of the applicant ’s request for refugee status by the ORG on DATE ( see paragraph CARDINAL below ) .

On DATE and DATE the applicant and his lawyer appealed . On DATE ORG of GPE set aside the judgment of DATE and ordered a new judicial review by the first - instance court .

On DATE ORG re - examined the case and annulled the extradition order of CARDINAL DATE , mainly because of inconsistencies and mistakes made in the comparative assessment of the relevant criminal offences under NORP and LANGUAGE law . In addition , the court made the following findings :

“ ... The allegation of a risk of ill - treatment should be dismissed because the case file contains written assurances made by the deputy Prosecutor General of GPE who affirmed that prosecution of the applicant would be in strict conformity with LAW ... The court has no reason to distrust these guarantees ...

Article CARDINAL of the NORP CCrP prohibits the extradition of a person who has been granted asylum in GPE on account of persecution in the requesting State because of his race , religion , citizenship , ethnic or social origin or political beliefs .

Prior to the date of the extradition order , [ the applicant ] had applied for refugee status and had subsequently sought judicial review of the refusal of such status in GPE . Such review proceedings have not been completed . Taking into account paragraph CARDINAL and CARDINAL of section CARDINAL of LAW , a person can not be extradited before a court decision has been taken on judicial review of a refusal of refugee status . Thus , the extradition order was premature , in breach of LAW ... ”

The applicant was released in the courtroom .

NORP The regional prosecutor ’s office appealed . On DATE ORG upheld the judgment of DATE .

In view of the above findings , the extradition case against the applicant was not pursued and his removal from GPE to GPE on that account became impossible .

From DATE to CARDINAL DATE the applicant was detained with a view to extradition .

On DATE the applicant was arrested by the police in GPE as a person wanted by the NORP authorities . He was placed in remand centre no . CARDINAL . According to the Government , the applicant made no allegation of a risk of ill - treatment in the event of his extradition to GPE .

On DATE , referring to LAW CCrP the deputy district prosecutor lodged an application asking ORG of Saratov to authorise the applicant ’s detention . Relying on LAW ORG , the district court granted this request and ordered the applicant ’s detention until DATE with a view to his extradition to GPE . The court observed that the applicant had been charged with offences punishable under LAW , CARDINAL - CARDINAL , CARDINAL - CARDINAL , DATE and CARDINAL of the ORG ; that the statute of limitations for the said offences had not expired either in GPE or in GPE ; that the applicant , an NORP national , had not registered his residence in GPE and had absconded there ; and that , given the state of the applicant ’s health , he was fit for detention . The applicant and his lawyer did not appeal against the detention order of CARDINAL DATE . It became final on DATE .

After receipt of the NORP extradition request and before the expiry of the time - limit set in the detention order of CARDINAL DATE , the deputy district prosecutor lodged an application asking the district court to extend the applicant ’s detention . On DATE the district court extended the applicant ’s detention until DATE . The court dismissed the applicant ’s argument that his detention would put his underage children in a difficult financial situation and that he had lodged an application for refugee status . The court concluded as follows :

“ Under LAW CCrP a preventive measure may be varied if it is no longer necessary or if the grounds justifying it ( see ORG and CARDINAL of the Code ) have changed . The available material does not disclose that any such grounds have changed in the present case ... ”

The applicant and his lawyer appealed on CARDINAL and DATE . On DATE ORG dismissed the appeals .

On DATE the district court examined a new extension request from the prosecutor and extended the applicant ’s detention until DATE . The court held as follows :

“ [ The applicant ] sought judicial review of the extradition decision against him ... Articles CARDINAL and CARDINAL of the ORG provide that a preventive measure may be varied if it is no longer necessary or if the grounds justifying it ( see Articles CARDINAL and CARDINAL of the Code ) have changed .

Extension of detention beyond DATE may be allowed only in respect of persons charged with serious and particularly serious criminal offences and only on account of the exceptional complexity of the case ... The available material discloses that the extradition order could not be enforced , where the previous detention order was in force , because the applicant had applied for judicial review of the extradition order . These are objective circumstances disclosing the particular complexity of the case . Thus , the extension term mentioned in the request is reasonable ... ”

On DATE and CARDINAL DATE the applicant and his lawyer appealed , seeking house arrest instead of detention in a remand centre . On DATE ORG upheld the detention order of CARDINAL DATE .

On DATE ORG ordered the applicant ’s detention until DATE , pending the re - examination of the extradition case by ORG .

On DATE ORG examined an extension request by the district prosecutor and issued a new detention order extending the applicant ’s detention to CARDINAL DATE pending judicial review of the extradition order . The court noted that LAW ORG allowed the extension of detention DATE in relation to serious and particularly serious charges and on account of the particular complexity of the case . The court was satisfied that the above conditions had been complied with in respect of the applicant . On DATE ORG upheld the detention order of CARDINAL DATE .

On DATE the applicant was released from detention .

On DATE or DATE the applicant lodged a request for refugee status with ORG of GPE ( “ the regional FMS ” ) .

On DATE he submitted an additional request , whereby he expressed a fear of being subjected to persecution and torture owing to his previous membership of ORG - ut - GPE . He referred to a number of international reports in support of his allegations .

On DATE , in an interview with a regional ORG officer conducted in the presence of his lawyer , the applicant submitted that he had left GPE for work - related reasons .

On DATE the regional ORG rejected the applicant ’s request for refugee status . The authority noted that the applicant had left GPE in DATE for economic reasons whereas criminal proceedings against him had not been brought until DATE in his country of origin . He had been prosecuted for having set up a criminal group , which was not a political crime under the ORG . Furthermore , the applicant had not lodged his application for refugee status until DATE . The ORG established that he faced no risk of persecution on account of his origin , religion , nationality or belonging to a particular social group . It concluded that the applicant did not wish to return to GPE so as to avoid prosecution for the crime with which he had been charged .

On DATE the applicant was informed of the above - mentioned decision and lodged a hierarchical appeal on DATE .

On DATE the FMS Central Office dismissed his appeal . The ORG referred to the decision of ORG of DATE to declare ORG a terrorist organisation and ban its activity in GPE . The ORG emphasised the applicant ’s involvement in ORG in DATE as a manager and financial supporter . It pointed out that in DATE at the latest the applicant had learnt from his brother that the GPE authorities had begun prosecuting ORG members . However , it was not until DATE that the applicant had submitted his request for refugee status . Hence , the ORG concluded that the applicant ’s fear of persecution was unsubstantiated .

On DATE the applicant appealed against the refusal to grant him refugee status to ORG of GPE . He reiterated his fear of being subjected to torture in the event of extradition to GPE and stated that the risk of ill - treatment had not been assessed by the ORG .

On DATE ORG upheld the decision of DATE on judicial review . Noting that the applicant had confirmed his involvement in ORG ’s activities DATE , the court also observed that after his arrest in DATE the applicant had made no official statement to NORP or NORP authorities distancing himself from ORG teachings or his previous participation in its activities . The court held as follows :

“ After his arrival in GPE the applicant did not apply for refugee status . He first alleged a risk of persecution in GPE and raised his wish to remain in GPE as a refugee after having been arrested following the request from the NORP authorities .

Neither following his arrival in GPE in DATE nor during criminal proceedings in DATE did he distance himself from ORG teachings or state his refusal to participate in its activities . He did not apply for refugee status when he learnt in DATE from his younger brother that his fellow ORG supporters were being looked for and tortured by the NORP authorities ...

Had the applicant ’s fears of persecution in GPE been truly justified , he would have immediately sought asylum in the country of his destination .

ORG indicates that persecution must be distinguished from punishment for a common law offence . Persons fleeing from prosecution or punishment for such an offence are not normally refugees . It should be borne in mind that a refugee is a victim – or potential victim – of injustice , not a fugitive from justice ( paragraph CARDINAL ) ...

The applicant has not adduced convincing arguments concerning religious or political persecution ... ”

On DATE the applicant applied for temporary asylum . It was refused on DATE .

On CARDINAL DATE ORG upheld the judgment of DATE , refusing the applicant refugee status . Endorsing the reasoning of the first - instance court , the appeal court added the following :

“ ORG affirms its attachment to their obligations in relation to protecting human rights . The NORP legislation provides that every citizen has freedom of religion . Article CARDINAL of LAW protects equality of citizens before the law irrespective of gender , race , national language , religion , faith or social origin ...

The court dismisses as unconvincing the arguments relating to the individualised status of the applicant on account of criminal prosecution in GPE . Neither during his residence in GPE nor immediately after his arrival in GPE did the applicant seek asylum . He first expressed his fears of persecution in GPE after his arrest because his name had been added to the international wanted list ...

Taking into account ORG and Criteria for Determining Refugee Status ( paragraph CARDINAL ) , in order to be considered a refugee , a person must show well - founded fear of persecution . Discrimination may turn into persecution when it becomes impossible to carry out work in specific areas , to receive education or if other freedoms protected in democratic societies are limited ... The applicant has not substantiated any facts concerning unlawful persecution ... ”

By a letter of CARDINAL DATE , ORG of the ORG High Commissioner for Refugees ( UNHCR ) Representation informed the applicant ’s lawyer that the ORG had determined that the applicant met the criteria set out in its Statute in connection with LAW A of the DATE Convention relating to LAW . It had been ascertained that the applicant was outside his country of nationality owing to well - founded fear of being persecuted by the authorities of his country for reasons of his religion and imputed political opinion and , owing to such fear , was unable to return to GPE , where he might be exposed to torture and other inhuman or degrading treatment or punishment . Therefore , the ORG considered that the applicant was eligible for international protection under its mandate .

Everyone has a right to liberty and security ( LAW ) . Detention is permissible only on the basis of a court order . The length of time for which a person may be detained prior to obtaining such an order must not exceed TIME ( LAW ) .

The term “ court ” is defined by LAW ( “ the CCrP ” ) of DATE as “ any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by LAW ” ( LAW ) . The term “ judge ” is defined by the ORG as “ an official empowered to administer justice ” ( LAW ) .

A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace , a regional court or ORG ( LAW ) .

LAW of the CCrP governs the application of preventive measures . Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A court request for detention is submitted by an investigator ( следователь ) with the support of the head of the investigative authority or by a police officer in charge of the inquiry ( дознаватель ) with the support of a prosecutor ( LAW ) . A request for detention should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned ( LAW ) . Second - instance courts should examine appeals lodged against judge ’s decisions on detention within DATE ( LAW ) . The period of detention pending investigation of a criminal case must not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level . Further extensions DATE may be granted with regard to persons accused of serious or particularly serious criminal offences ( LAW ) . Extensions DATE may be granted as an exception with regard to persons accused of particular serious criminal offences ( Article CARDINAL § CARDINAL ) .

A measure of restraint can be applied with a view to ensuring a person ’s extradition in compliance with the procedure established under LAW ) .

Chapter CARDINAL of the CCrP ( Articles CARDINAL - CARDINAL ) governs the procedure to be followed in the event of extradition .

A court is to review the lawfulness and validity of a decision to extradite within DATE of receipt of a request for review . The decision should be taken in open court by a panel of CARDINAL judges in the presence of a prosecutor , the person whose extradition is sought and the latter ’s legal counsel ( LAW ) .

Article CARDINAL § CARDINAL lists the conditions under which extradition can not be authorised . Thus , the extradition of the following should be denied : a NORP citizen ( LAW ) or a person who was granted asylum in GPE ( LAW ) ; a person in respect of whom a conviction became effective or criminal proceedings were terminated in GPE in connection with the same act for which he or she has been prosecuted in the requesting ORG ( LAW ) ; a person in respect of whom criminal proceedings can not be launched and a conviction can not become effective in view of the expiry of the statute of limitations or under another valid ground under LANGUAGE law ( LAW ) ; or a person in respect of whom a NORP court established obstacles to extradition , in accordance with the legislation and international treaties of GPE ( LAW ) . Finally , extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under the ORG ( LAW ) .

In the event that a foreign national , whose extradition is being sought , is being prosecuted or is serving a penalty for another criminal offence in GPE , his extradition may be postponed until the prosecution is terminated , the penalty is lifted on any valid ground or the sentence is served ( LAW ) .

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to “ take measures ” in order to decide on the preventive measure in respect of the person whose extradition is being sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .

Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body , a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of GPE ( LAW ) .

Verifying the compatibility of section GPE ) of the Law on the Legal Status of Foreign Nationals in the GPE of DATE , ORG ruled that a foreign national liable to be expelled from NORP territory could not be detained for CARDINAL without a court order .

Assessing the compatibility of LAW of the CCrP with LAW , ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the absence of specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is the procedure laid down in the GPE That procedure comprised , in particular , LAW and the norms in its LAW ( “ Preventive measures ” ) , which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests .

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or in excess of the time - limits fixed in the LAW .

The Prosecutor General asked ORG for official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person ’s detention with a view to extradition .

ORG refused the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of the courts of general jurisdiction .

The Constitutional Court reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention as such , in that it required a court to examine whether the arrest was lawful and justified .

ORG held that LAW CCrP , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE on the basis of a request for his or her extradition without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in the ORG and within the time - limits fixed in the LAW .

ORG dismissed as inadmissible a request for a review of the constitutionality of LAW of the ORG , stating that this provision “ does not establish time - limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure , it merely confirms a prosecutor ’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused . Therefore the disputed norm can not be considered to violate constitutional rights of [ the claimant ] ... ”

In Ruling no . CARDINAL , adopted by LAW of ORG of GPE on DATE ( “ the Ruling of CARDINAL DATE ” ) , it was stated that , pursuant to LAW ORG , only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody . The judicial authorisation of placement in custody in that situation was to be carried out in accordance with LAW of the ORG and following a prosecutor ’s request for that person to be placed in custody ( paragraph CARDINAL of the Ruling ) . In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure . If the extradition request was accompanied by a detention order of a foreign court , a prosecutor was entitled to remand the person in custody without a NORP court ’s authorisation ( LAW ORG ) for a period not exceeding DATE , and the prosecutor ’s decision could be challenged in the courts under LAW

In extending a person ’s detention with a view to extradition a court was to apply LAW

On DATE ORG Office issued Direction no . CARDINAL concerning the “ extradition check ” procedure for dealing with requests for extradition . According to the Direction , district and town prosecutors should interview a person who has been detained with a view to extradition , submit the interview record to ORG within TIME and take measures to ensure this person ’s placement in custody for TIME . Having received confirmation from the requesting State of their intention to seek extradition , these officials should take measures for authorising the person ’s detention , in compliance with GPE ’s international treaties and the applicable national legislation . These public officials should also interview the detainee in order to ascertain the purpose of his arrival in GPE , his residence , nationality and intention to seek asylum in GPE ; to verify the authenticity of the documents relating to his identity and nationality ; and to verify the existence and veracity of information relating to the possible refusal or postponement of extradition . The information and documents collected during the extradition check should be submitted , within DATE of the person ’s arrest , to the regional prosecutor .

GPE is a party to the LAW relating to LAW , adopted on DATE by ORG on the Status of Refugees and Stateless Persons convened under ORG resolution CARDINAL ( V ) of CARDINAL DATE . LAW reads as follows :

“ CARDINAL . No Contracting State shall expel or return ( “ refouler ” ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

NORP The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgment of a particularly serious crime , constitutes a danger to the community of that country . ”

In DATE ORG High Commissioner for Refugees issued an ORG on GPE under LAW relating to LAW ; it provides the following clarification [ internal footnotes are omitted ] :

“ CARDINAL . The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal , including deportation , expulsion , extradition , informal transfer or “ renditions ” , and non - admission at the border in the circumstances described below . This is evident from the wording of Article PERSON ) of the DATE Convention , which refers to expulsion or return ( refoulement ) “ in any manner whatsoever ” . It applies not only in respect of return to the country of origin or , in the case of a stateless person , the country of former habitual residence , but also to any other place where a person has reason to fear threats to his or her life or freedom related to CARDINAL or more of the grounds set out in the DATE Convention , or from where he or she risks being sent to such a risk .

The principle of non - refoulement as provided for in Article PERSON ) of LAW does not , as such , entail a right of the individual to be granted asylum in a particular ORG . It does mean , however , that where GPE are not prepared to grant asylum to persons who are seeking international protection on their territory , they must adopt a course that does not result in their removal , directly or indirectly , to a place where their lives or freedom would be in danger on account of their race , religion , nationality , membership of a particular social group or political opinion . As a general rule , in order to give effect to their obligations under LAW and/or DATE LAW will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures . ”