Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance);No violation of Article 2 - Right to life (Article 2-1 - Death penalty) (Substantive aspect);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Death penalty);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant is a NORP national who was born in DATE and is currently being held in LOC ( GPE , ORG , GPE ) . Prior to his arrest he was the leader of ORG of Kurdistan ( “ the NORP ” ) .

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

On DATE the applicant was expelled from GPE , where he had been living for DATE . He arrived DATE in GPE , where the NORP authorities requested him to leave NORP territory within TIME and refused his application for political asylum . On DATE the applicant travelled to GPE in an aircraft that had been chartered by the NORP secret services . His application for political asylum in GPE was accepted by the PERSON , but the NORP Prime Minister did not implement that decision .

On DATE the applicant went to GPE where he made an application for political asylum . The NORP authorities initially detained him but subsequently placed him under house arrest . Although they refused to extradite him to GPE , they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave GPE . After spending either CARDINAL or DATE in GPE he returned to GPE , probably on DATE . The following day ( DATE ) the applicant was taken to GPE . He was met at FAC by officials from ORG and put up at the NORP Ambassador 's residence . He lodged an application with the NORP Ambassador for political asylum in GPE , but never received a reply .

On DATE ORG announced that PERSON had been on board an aircraft that had landed at GPE on DATE and had entered NORP territory accompanied by NORP officials without declaring his identity or going through passport control . The announcement added that the Minister of ORG had convened the NORP Ambassador in GPE in order to elicit information about the applicant 's identity . After initially stating that the new arrival was not PERSON , on being pressed by the NORP authorities the Ambassador had gone on to acknowledge that he was . The Minister of ORG had been informed by the NORP Ambassador that the authorities in GPE agreed to arrange for PERSON departure from GPE .

The NORP Minister of ORG also said that overseas NORP diplomatic missions had been the target of terrorist attacks and that the applicant 's presence in GPE constituted a major security risk . In those circumstances , ORG were surprised that GPE , a ORG with which it enjoyed friendly relations , could knowingly have put GPE in such a difficult position , exposing it to suspicion and the risk of attacks . Referring to the NORP Ambassador 's role in the events , ORG said that they had serious reservations about his credibility and had requested his immediate recall .

The NORP Minister of ORG added that the NORP authorities had played no part in the applicant 's arrest and had had no say in his final destination . The Minister had not been informed of any operations by NORP security forces at the time of the applicant 's departure and there had been no consultations between the NORP and NORP Governments on the subject .

On DATE of his stay in GPE , the applicant was informed by the NORP Ambassador after the latter had returned from a meeting with the NORP Minister of ORG that he was free to leave for the destination of his choice and that the GPE was prepared to accept him .

On DATE NORP officials went to ORG to take the applicant to the airport . The NORP Ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the Ambassador and the NORP officials ensued . In the end , the applicant got into a car driven by a NORP official . On the way to the airport the car in which the applicant was travelling left the convoy and , taking a route reserved for security personnel in the international transit area of FAC , took him to an aircraft in which NORP officials were waiting for him . The applicant was then arrested after boarding the aircraft at TIME

The NORP courts had issued CARDINAL warrants for Mr Öcalan 's arrest and a wanted notice ( “ red notice ” ) had been circulated by ORG . In each of those documents the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the ORG and of instigating various terrorist acts that had resulted in loss of life .

From the moment of his arrest the applicant was accompanied by an army doctor throughout the flight from GPE to GPE . A video recording and photographs taken of PERSON in the aircraft for use by the police were leaked to the press and published . In the meantime , the inmates of İmralı Prison were transferred to other prisons .

The applicant was kept blindfolded throughout the flight except when the NORP officials wore masks . The blindfold was removed directly the officials put their masks on . According to the Government , the blindfold was removed as soon as the aircraft entered NORP airspace .

The applicant was taken into custody at ORG on DATE . While being transferred from the airport in GPE to FAC he wore a hood . On photographs that were taken on the island of NORP in GPE , the applicant appears without a hood or blindfold . He later said that he had been given tranquillisers , probably at ORG in GPE .

From DATE onwards the applicant was interrogated by members of the security forces . On DATE a judge ruled on the basis of information in the case file that he should remain in police custody for a further DATE as the interrogation had not been completed .

The judges and prosecutors , who were from ORG , arrived on the island of ORG on DATE .

According to the applicant , CARDINAL lawyers instructed by his family sought leave from ORG on DATE to see him . They were told orally that only CARDINAL lawyer would be allowed access . Lawyers who went to GPE ( the embarkation point for the island of ORG ) on DATE were told by the administrative authorities that they could not visit the applicant . The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain - clothes police officers or at least with their tacit approval .

As soon as the applicant was detained , the island of ORG was decreed a prohibited military zone . According to the applicant , the security arrangements in his case were managed by a “ crisis desk ” set up at GPE . It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant . According to the Government , special measures were taken to ensure the applicant 's safety . He had many enemies who might have been tempted to make an attempt on his life . Likewise according to the Government , it was precisely for security reasons that lawyers were searched .

On DATE ORG at ORG questioned the applicant and took a statement from him as an accused . The applicant told the prosecutor that he was the founder of the ORG and its current leader . Initially , his and the ORG 's aim had been to found an independent NORP State , but with the passage of time they had changed their objective and sought to secure a share of power for the NORP as a free people who had played an important role in the founding of the LOC . The applicant confessed that village guards were a prime target for the ORG . He also confirmed that the ORG used violent methods against the civil population , in particular from DATE onwards ; he was personally opposed to such methods and had tried in vain to prevent their being used . He told the prosecutor that the warlords who wanted to seize power within the ORG had exerted some of their pressure on the NORP population ; some of them had been tried and found guilty by the ORG and had been executed with his personal approval . He acknowledged that ORG estimate of the number of those killed or wounded as a result of the ORG 's activities was fairly accurate ; that the actual number might even be higher ; and that he had ordered the attacks as part of the armed struggle being waged by the ORG . He added that he had decided in DATE to declare a ceasefire , acting on a request by the NORP President , PERSON , which had been conveyed to him by the NORP leader PERSON . The applicant also told the prosecutor that after leaving GPE on DATE he had gone first to GPE and then to GPE and GPE . When the latter CARDINAL countries refused to grant him the status of political refugee , he had been taken to GPE by the NORP secret services .

On DATE the applicant appeared before a judge of ORG , who ordered that he should be detained pending trial . The applicant did not apply to ORG to have that decision set aside . Before the judge he repeated the statement he had made to the prosecutor . He said that decisions taken within the ORG were submitted to him for final approval as founder and leader of the organisation . In DATE the ORG 's activities had been political . In DATE and DATE the ORG had organised armed attacks on the agalar ( major landowners ) . In DATE , after the applicant had gone to GPE , the ORG had begun its paramilitary preparations . Since DATE the ORG had carried on an armed struggle within GPE . The persons in charge in each province decided on armed actions and the applicant had confirmed the general plan for such actions . He had taken the strategic and tactical decisions for the organisation as a whole . The units had carried out the decisions .

On DATE after he arrived in GPE the applicant 's NORP lawyer , Mr PERSON , asked to visit his client . He was prevented by members of the security forces from leaving the premises of ORG and was subsequently arrested together with CARDINAL other lawyers .

On DATE the NORP authorities at FAC refused PERSON , PERSON and their partner Mr PERSON leave to enter GPE to visit the applicant , on the ground that they could not represent him in GPE and that PERSON past history ( she was suspected of having campaigned against GPE 's interests and of having taken part in meetings organised by the ORG ) gave rise to the risk of prejudice to public order in GPE .

On DATE the applicant was able to talk to CARDINAL of the QUANTITY lawyers who had asked to see him , Mr PERSON and Mr H. GPE . The first conversation took place in the presence of a judge and of members of the security forces wearing masks . The latter decided that it should not last longer than TIME . The record of that conversation was handed over to ORG . The applicant 's other representatives were given leave to have their authority to act before the ORG signed and to see their client later .

During the preliminary investigation from DATE , when the applicant was arrested , and DATE , when the trial began , the applicant had CARDINAL interviews with his lawyers . The dates and duration of those interviews were as follows : CARDINAL March ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME , TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) and DATE ( TIME ) .

According to the applicant , his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera . After the first CARDINAL short visits the applicant 's contact with his lawyers was restricted to CARDINAL visits a week , lasting TIME each . On each visit the lawyers were searched CARDINAL times and required to fill in a very detailed questionnaire . Likewise according to the applicant , he and his advisers were not allowed to exchange documents or take notes during these interviews . The applicants ' representatives were unable to give him either a copy of his case file ( other than the indictment , which was notified by the prosecution ) or any other material which would allow the applicant to prepare his defence .

According to the Government , no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their length . Apart from the first visit , which took place under the supervision of a judge and members of the security forces who were present in the same room as the applicant and his lawyers , the interviews were held in accordance with the provisions of LAW . In order to ensure their safety , the lawyers were taken to the island of ORG by boat after embarking at a private quay . Hotel rooms were booked for them near the embarkation point . Likewise according to the Government , no restrictions were placed on the applicant 's correspondence .

In the meantime , on DATE delegates of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( the “ CPT ” ) visited PERSON . In a letter of CARDINAL DATE to the representatives of ORG they indicated that the applicant was physically in good health and that he had said that he had not suffered any ill - treatment since his arrest . His cell was of a high standard . The ORG drew the ORG 's attention to the fact that the applicant 's solitary confinement and his limited access to the open air could affect him psychologically .

The last visit by the ORG delegates to PERSON , of which the applicant is the sole inmate , took place during their visit to GPE from DATE . The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed , table , armchair and bookshelves . It also had an air - conditioning system , washing and toilet facilities and a window overlooking an inner courtyard . The applicant had access to books , newspapers and a radio , but not to television programmes or a telephone . On the other hand , he received twice DATE medical checks by doctors and was visited by his lawyers once DATE .

According to the applicant , even before his trial began he was portrayed by a section of the media as a “ baby - killer ” . His statements made as an accused during the preliminary investigation were disclosed to the press even before they had been made available to his lawyers .

According to the ORG , the media and journalists had shown avid interest in the Öcalan case and all sorts of comments were made as to whether or not the applicant should be found guilty . The applicant 's lawyers brought an action against a journalist whom they considered to have libelled the applicant .

In an indictment submitted on DATE ( and joined to several others drawn up in the applicant 's absence by various public prosecutors ' offices DATE ) ORG at ORG accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory . He sought the death penalty under LAW .

The case file ran to CARDINAL pages and had been prepared by joining the files of CARDINAL sets of proceedings already instituted against the applicant by the various state security courts . The applicant 's lawyers were given access to the case file and the indictment on DATE . Since the judicial authorities had not been able to supply a copy of the file , the applicant 's lawyers had brought their own photocopier and finished copying the file on DATE . The prosecution had failed to place certain documents in it , such as those concerning the applicant 's arrest in GPE and transfer to GPE .

The first CARDINAL hearings held in GPE on DATE and DATE in the applicant 's absence were taken up with procedural matters , such as third - party applications to intervene in the proceedings and the measures to be taken for the hearings to be held on the island of ORG and for the attendance of the parties and the public at those hearings . According to the ORG , allegations that the lawyers were harassed by the police when they emerged from the first hearing in GPE on DATE are currently the subject of a criminal investigation .

ORG , composed of CARDINAL civilian and CARDINAL military judge , held QUANTITY hearings on the island of ORG from DATE to DATE and these were attended by the applicant . The applicant told the court , among other things , that he reiterated the statements he had made to the prosecutor and the judge . He confirmed that he was the most senior ORG agent , that he led the organisation and that he had instructed the members of the organisation to carry out a number of acts . He stated that he had not been ill - treated or insulted since his arrest . Furthermore , the applicant 's representatives argued that ORG could not be regarded as an independent and impartial tribunal within the meaning of LAW . The applicant stated that , for his part , he accepted the court 's jurisdiction .

The applicant said that he was willing to cooperate with ORG in order to bring to an end the acts of violence associated with the NORP question and he promised to halt the ORG 's armed struggle . He indicated that he wished to “ work for peace and fraternity and achieve that aim within GPE ” . He observed that , while he had initially envisaged an armed struggle for the independence of the population of NORP origin , that had been as a reaction to the ORG 's political pressure on that population . When circumstances had changed , he had altered his aim and limited his claims to autonomy or a recognition of the NORP ' cultural rights within a NORP society . He accepted political responsibility for the ORG 's general strategy but disclaimed criminal liability for the acts of violence which went beyond the ORG 's declared policy . In order to highlight the rapprochement between the ORG and the Government , he applied to have the ORG officials who had conducted negotiations with the ORG examined as witnesses for the defence . That application was refused by ORG .

The applicant 's lawyers ' applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by ORG on the ground that they were delaying tactics .

The applicant 's lawyers complained to ORG about the restrictions and the difficulties they were having in conferring with their client . Their request to be permitted to confer with him during lunch breaks was accepted by ORG at the hearing on DATE .

On DATE ORG ruled that the applicant was to be given access to the case file under the supervision of CARDINAL staff members and that the applicant 's lawyers were to be allowed to provide him with copies of documents from the case file .

The lawyers did not appear at the hearing on DATE . At their request , the transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on DATE . CARDINAL of the applicant 's counsel thanked ORG for having instilled an atmosphere of calm .

On DATE the prosecution made their final submissions . They sought the death penalty for the applicant , pursuant to LAW .

The applicant 's advisers requested a DATE adjournment to enable them to prepare their final submissions . ORG granted them DATE , the statutory maximum allowed .

On DATE GPE 's ORG amended LAW and excluded military members ( whether of the bench or of the prosecutor 's office ) from state security courts . Similar amendments were made on DATE to the PERSON on ORG .

At the hearing on DATE the judge appointed to replace the military judge sat for the first time on the bench of ORG . ORG noted that the new judge had already read the file and the transcripts , in accordance with LAW , and that he had followed the proceedings from the outset and had attended the hearings .

The applicant 's counsel opposed the appointment of the non - military judge owing to his previous involvement in the case . Their application for an order requiring him to stand down was dismissed by ORG .

Also on DATE the applicant 's counsel set out the applicant 's substantive defence to the charges .

On DATE , after hearing the applicant 's final representations , ORG found the applicant guilty of carrying out acts designed to bring about the secession of part of GPE 's territory and of training and leading a gang of armed terrorists for that purpose . It sentenced him to death , pursuant to LAW . ORG held that the applicant was the founder and principal leader of the unlawful organisation the ORG . The aim of the latter was to detach a part of the territory of GPE so as to form a NORP State with a political regime based on NORP - Leninist ideology . The court held that it had been established that , following decisions taken by the applicant and on his orders and instructions , the ORG had carried out several armed attacks , bomb attacks , acts of sabotage and armed robberies , and that in the course of those acts of violence CARDINAL of civilians , soldiers , police officers , village guards and public servants had been killed . The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment , having regard to , among other things , the very large number and the seriousness of the acts of violence , the CARDINAL of deaths caused by them , including those of children , women and old people , and the major , pressing threat to the country that those acts posed .

The applicant appealed on points of law against that judgment , which , on account of the gravity of the sentence , was in any event subject to review by ORG automatically .

In a judgment adopted on CARDINAL DATE and delivered on DATE ORG affirmed the judgment of DATE in every respect . It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again seeing that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement . ORG also pointed out that ORG was empowered by law to hold its hearings outside the area of its territorial jurisdiction , among other reasons on security grounds .

As to the merits , ORG had regard to the fact that the applicant was the founder and chairman of the ORG . It referred to the latter 's aim and activities , namely that it sought the foundation of a NORP State on a territory which GPE should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces and industrial LOC and tourist facilities in the hope of weakening the authority of the ORG . The ORG also had a political front ( the ERNK ) and a military wing ( the ORG ) , which operated under its control . Its income was derived mainly from “ taxes ” , “ fines ” , gifts , subscriptions and the proceeds of armed robberies , gun - running and drug trafficking . According to ORG , the applicant led all CARDINAL of these groupings . In his speeches at party conferences , in his radio and television appearances and in the orders he had given to his activists , the applicant had instructed his men to resort to violence , indicated combat tactics , imposed penalties on those who did not obey his instructions and incited the civilian population to translate words into deeds . As a result of the acts of violence carried out by the ORG from DATE up until the applicant 's arrest ( in all , CARDINAL armed attacks , CARDINAL bomb attacks , CARDINAL armed robberies and CARDINAL kidnappings ) CARDINAL civilians , CARDINAL soldiers , CARDINAL policemen and CARDINAL village guards had died .

ORG held that the ORG , founded and led by the applicant , had represented a substantial , serious and pressing threat to the country 's integrity . It ruled that the acts of which the applicant was accused matched those which constituted the offence laid down in LAW and that it was not necessary , in order that that provision should apply , for the applicant – the founder and chairman of the ORG and the instigator of the acts of violence committed by that organisation DATE to have used a weapon himself .

In DATE Article CARDINAL of the LAW was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war or for acts of terrorism .

By PERSON no . CARDINAL , which was published on DATE , ORG resolved , inter alia , to abolish the death penalty in peacetime ( that is to say except in time of war or of an imminent threat of war ) by amending the relevant legislation , including LAW . As a result of the amendments , a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison .

In a letter to ORG , the Government declared : “ PERSON no longer faces the execution of the death penalty as finalised on DATE by the judgment of ORG ” .

By a judgment of DATE ORG commuted the applicant 's death sentence to life imprisonment . It ruled that the offences under LAW of which the applicant was accused had been committed in peacetime and constituted terrorist acts .

ORG ( ORG , PERSON ) , a political party with representatives in ORG , applied to ORG for an order setting aside certain provisions of PERSON no . MONEY , including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences . ORG dismissed that application in a judgment of DATE .

On DATE CARDINAL trade unions – ORG and ORG ( representing teachers ) DATE which had intervened in the criminal proceedings on behalf of their deceased members , appealed on points of law against the judgment of DATE by which the applicant 's death sentence had been commuted to life imprisonment . They argued that the ORG 's activities in south - east GPE should be regarded as constituting “ an imminent threat of war ” . Those proceedings are still pending .

Before the LAW was amended on DATE , Article CARDINAL provided that ORG were composed of a president , CARDINAL other regular members and CARDINAL substitute members . The President of ORG , CARDINAL of the regular members and CARDINAL of the substitute members were appointed from among civilian judges , and the other regular member and substitute member were appointed from among military judges .

As amended by PERSON no . CARDINAL of DATE , LAW provides :

“ ... ORG shall be composed of a president , CARDINAL other regular members , a substitute member , a ORG and a sufficient number of Public Prosecutors .

The president , CARDINAL regular members , a substitute member and ORG shall be appointed from among judges and public prosecutors of the first rank and public prosecutors from among public prosecutors of other ranks . Appointments shall be made for DATE by ORG , in accordance with procedures laid down in special legislation . Their terms of office shall be renewable ... ”

The necessary amendments concerning the appointment of the judges and prosecutors were made to PERSON no . CARDINAL on ORG by Law no . CARDINAL of DATE . By the terms of provisional LAW no . CARDINAL , the terms of office of the military judges and military prosecutors in service in ORG were to end on the date of publication of that PERSON ( DATE ) . By provisional section CARDINAL of the same PERSON , proceedings pending in ORG on the date of publication of the PERSON were to continue from the stage they had reached by that date .

Article CARDINAL of LAW provides :

“ Anyone committing an act designed to subject the ORG or a part of the ORG to the domination of a foreign ORG , to diminish its independence or to impair its unity or which is designed to remove from the administration of the ORG a part of the territory under its control shall be liable to the death penalty . ”

The fourth paragraph of LAW ( as amended by PERSON no . CARDINAL/CARDINAL of DATE ) provides that any person who has been arrested or in respect of whom a prosecutor has made an order for him or her to remain in police custody may challenge the measure in question before the appropriate district judge and , if successful , be released . In proceedings in ORG ( governed by PERSON no . CARDINAL of DATE ) LAW applies only as it was worded before the amendments of DATE , when it did not provide any right of appeal to persons arrested or held in police custody on the orders of a prosecutor .

Section CARDINAL of Law no . CARDINAL on ORG or Held in Detention without Due Cause provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons :

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... ”

Article CARDINAL of the Code of Criminal Procedure provides that , in principle , anyone arrested or detained pending trial may speak with his legal representative in private , without any need for the latter to have an authority to act . As regards the procedure in proceedings before ORG , LAW is applicable only as worded prior to the amendments made on DATE . That version provides that a member of the state legal service may be present at meetings between the accused and his or her lawyer before the criminal proceedings have commenced .

Protocol No . CARDINAL to the Convention provides ( LAW : “ The death penalty shall be abolished . No one shall be condemned to such penalty or executed . ” LAW Protocol No . CARDINAL provides :

“ A ORG may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war ; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions . The ORG shall communicate to the Secretary General of ORG the relevant provisions of that law . ”

Protocol No . CARDINAL has been ratified by CARDINAL of the CARDINAL member ORG and signed by all GPE , most recently on DATE by GPE . Only GPE , GPE and GPE have not yet ratified LAW .

Protocol No . CARDINAL to the LAW , which provides for the abolition of the death penalty in all circumstances , was opened for signature on DATE . The LAW No . CARDINAL reads :

“ The member ORG signatory hereto ,

Convinced that everyone 's right to life is a basic value in a NORP society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings ;

Wishing to strengthen the protection of the right to life guaranteed by ORG signed at GPE on CARDINAL DATE ( hereinafter referred to as ' the Convention ' ) ;

Noting that Protocol No . CARDINAL to the Convention , concerning the Abolition of the Death Penalty , signed at GPE on DATE , does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war ;

Being resolved to take the final step in order to abolish the death penalty in all circumstances ,

Have agreed as follows ... ”

LAW No . CARDINAL states :

“ The death penalty shall be abolished . No - one shall be condemned to such penalty or executed . ”

In accordance with LAW it shall “ enter into force on DATE following the expiration of a period of DATE after the date on which CARDINAL member ORG have expressed their consent to be bound by the LAW . ”

In Opinion No . CARDINAL ( DATE ) of ORG of ORG on LAW to LAW concerning the abolition of the death penalty in all circumstances the ORG recalled :

“ ... its most recent resolutions on the subject ( Resolution CARDINAL ( DATE ) on LOC : a death penalty free continent , and Resolution CARDINAL ( DATE ) on the Abolition of the death penalty in ORG states ) , in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right , that to life itself , and that capital punishment has no place in civilised , democratic societies governed by the rule of law ” ( paragraph CARDINAL ) .

The ORG further noted :

“ The second sentence of LAW still provides for the death penalty . It has long been in the interest of the ORG to delete this sentence , thus matching theory with reality . This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions ” ( paragraph CARDINAL ) .

LAW issued by ORG on DATE reads :

“ Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty ; in the event of such a sentence being imposed , it may not be carried out . ”

By its CARDINAL of CARDINAL DATE on Safeguards guaranteeing protection of the rights of those facing the death penalty , ORG of ORG set out a series of standards to be observed by GPE which retained capital punishment .

LAW provides as follows :

“ Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial , at least equal to those contained in LAW , including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings . ”

In a number of cases involving application of the death penalty , ORG observed that if the due process guarantees in LAW were violated , a sentence of death which was carried out would not be in conformity with LAW which delineates the circumstances when it is permissible to give effect to the death penalty .

In the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ) , the ORG stated as follows :

“ [ T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the LAW have not been respected constitutes ... a violation of article CARDINAL of the LAW . As the ORG noted in its general comment CARDINAL ) , the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the LAW implies that ' the procedural guarantees therein prescribed must be observed , including the right to a fair hearing by an independent tribunal , the presumption of innocence , the minimum guarantees for the defence , and the right to review by a higher tribunal ' . ”

Similar observations were made by ORG in the case of PERSON v. GPE ( Communication no . CARDINAL/CARDINAL , DATE , ORG . ORG . no . DATE , [ A/CARDINAL/CARDINAL ] , at DATE ] ) ) and PERSON v. GPE ( Communication no . CARDINAL , ORG . CCPR / C/CARDINAL/D/CARDINAL/CARDINAL [ DATE ] ) .

In an Advisory Opinion on “ The right to information on consular assistance in the framework of the guarantees of due process of law ” ( Advisory Opinion OC-CARDINAL/CARDINAL of DATE ) ORG examined the implication of the guarantees of a fair procedure with LAW , which permitted the death penalty in certain circumstances . It stated :

“ CARDINAL . It might be useful to recall that in a previous examination of LAW to the Death Penalty , Advisory Opinion OC-CARDINAL/CARDINAL of DATE , Series A No . CARDINAL ) the ORG observed that the application and imposition of capital punishment are governed by the principle that ' [ n]o one shall be arbitrarily deprived of his life ' . Both LAW require strict observance of legal procedure and limit application of this penalty to ' the most serious crimes ' . In both instruments , therefore , there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it .

This tendency , evident in other inter - NORP and universal instruments , translates into the internationally recognised principle whereby those GPE that still have the death penalty must , without exception , exercise the most rigorous control for observance of judicial guarantees in these cases . It is obvious that the obligation to observe the right to information becomes all the more imperative here , given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive . If the due process of law , with all its rights and guarantees , must be respected regardless of the circumstances , then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake : human life .

NORP Because execution of the death penalty is irreversible , the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result . ”

In its GPE , PERSON and PERSON and GPE judgment of DATE , ORG stated :

“ Taking into account the exceptionally serious and irreparable nature of the death penalty , the observance of due process , with its bundle of rights and guarantees , becomes all the more important when human life is at stake ” ( at § MONEY ) .


CASE OF SHCHERBININ AND ZHARIKOV v. UKRAINE

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

The applicants were born in DATE and DATE respectively and live in PERSON , the GPE region . They are former employees of ORG ( “ the Mine , ” ДП шахта LOC ” ) .

On DATE , CARDINAL and DATE ORG ( Краснолуцький міський суд PERSON області ) ordered the Mine to pay ORG CARDINAL,CARDINAL.CARDINAL , ORG DATE and ORG CARDINAL respectively in salary arrears and various payments to the first applicant .

On CARDINAL and DATE ORG ordered the Mine to pay ORG CARDINAL,CARDINAL.CARDINAL and ORG DATE , respectively , in salary arrears and various payments to the second applicant .

All of the above judgments became final and the enforcement writs were transferred to ORG ( “ the Bailiffs , ” PERSON виконавчої служби ORG міського управління юстиції ) for enforcement .

On DATE ORG ( “ ORG , ” Господарський суд PERSON області ) initiated bankruptcy proceedings against the Mine and introduced a moratorium on payment of its debts .

On DATE ORG declared the Mine bankrupt and ordered its rehabilitation , which was to be completed by DATE .

In DATE the first applicant received the debts due to him by the judgments of DATE and DATE . As regards the debt due to him by the judgment of DATE the first applicant received it in several instalments , the last payment being made on DATE .

On DATE the second applicant received the debt due to him by the judgment of DATE . The debt due to him by the judgment of CARDINAL DATE was paid to him in several instalments , the final one being made on CARDINAL DATE .

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


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

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

NORP In DATE the applicant instituted proceedings in ORG against his employer , ORG ( DATE PERSON ) , for different payments due to him . On DATE the court awarded the applicant CARDINAL NORP hryvnas ( ORG ) ( рішення Волновахського районного суду ) .

In DATE ORG ( відділ державної виконавчої служби PERSON районного управління юстиції PERSON ORG ) initiated enforcement proceedings .

NORP In DATE the applicant instituted proceedings in GPE of GPE against ORG for the non - enforcement of the judgment in his favour . On DATE the court found for the applicant and ordered ORG to enforce the judgment in question .

DATE the judgment of DATE was enforced in full .

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


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

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

In the beginning of the DATE ’s the applicant owned and ran several private limited companies . He was also employed in a leading position in a private limited company , called ORG , which was not owned by him .

On DATE the applicant was arrested and charged with bribery . A search was carried out at his home and office , during which CARDINAL files were seized . On DATE ORG of GPE ( ORG ) remanded the applicant in custody . He , a cosuspect N , who was the managing director of ORG , and CARDINAL witnesses were heard , subsequent to which on DATE the applicant was released . On DATE the applicant was informed that he was also suspected of instigating a breach of trust . During DATE the investigation authorities went through various documents and heard witnesses and , on DATE , the preliminary investigation report , which ran to CARDINAL pages , was communicated to the applicant who was given until DATE to submit comments and request additional investigative measures . At the applicant ’s request , the time - limit was extended until DATE and he was re - heard on DATE . N was also re - heard .

On DATE the prosecution submitted an indictment to ORG containing CARDINAL counts . The first count concerned bribery alleging that the applicant in DATE , representing a private limited company , bought shares on CARDINAL occasions from and via N in the company ORG . The shares were sold at a price exceeding the real value by MONEY ( SEK ) , equivalent to MONEY ( ORG ) , in order to procure an improper profit for ORG was charged with taking the bribe . The second count concerned instigating a gross breach of trust , alleging that the applicant had made N grant the applicant ’s private limited company an irregular loan from ORG to pay the bribe . The loan was covered up by misleading book - keeping . By granting the loan , N abused his position as managing director of ORG , to the detriment of his principal , and he was also charged with a gross breach of trust .

On DATE ORG invited the applicant to state within DATE what evidence he wished to submit . The information was submitted by the applicant on DATE , DATE .

On DATE ORG scheduled the hearing to be held on DATE . On DATE N requested that the hearing be adjourned . The applicant did not object . Instead the hearing was held on DATE during which the applicant , N and CARDINAL witnesses were heard and extensive written material submitted .

By judgment of DATE , ORG convicted the applicant and N , in accordance with the indictment , pursuant to LAW ( brottsbalken ) chapter DATE , chapter DATE and chapter LAW . However , as regards the second count , it did not consider that the circumstances were sufficiently serious to be qualified as “ gross ” . The applicant and N were each sentenced to DATE imprisonment .

On DATE , the applicant appealed against the judgment to ORG ( Hovrätten för Nedre Norrland ) . N also appealed .

On DATE ORG scheduled a hearing for CARDINAL and DATE . On DATE , N requested that the hearing be adjourned as he wished to call a new witness who would be in GPE at that time . The applicant informed the court that he too wished to call that witness . Their request was granted and the hearing rescheduled for CARDINAL and DATE . On DATE the prosecutor submitted the records from interviews held by the police with this witness . The following day , N requested that the hearing be adjourned as he did not have sufficient time to go through the new documentation . The applicant and the prosecutor did not object and , accordingly , the hearing was re - scheduled for CARDINAL and DATE . During the hearing the applicant , N , and CARDINAL witnesses were heard and extensive written material submitted , including new material submitted by the applicant and a statement from an expert witness relied on by N.

On DATE the judgment was upheld by ORG , which stated inter alia :

“ The penal value of the crimes of which [ the applicant and N ] have been found guilty clearly exceeds DATE imprisonment . No personal circumstances with regard to [ the applicant and N ] have emerged which constitute sufficient reasons for choosing any other sanction than imprisonment . As the district ORG has found , both of them shall therefore be sentenced to imprisonment .

Certainly , between the commission of the crimes and the sentencing , a longer period of time has elapsed than appears justifiable by reference to the nature and scope of the crimes . However , even in view of this and of what has further emerged in the case , ORG finds that the sentences determined by ORG appear well balanced . ”

On DATE the applicant and N requested leave to appeal to ORG ) . In the period DATE and DATE , the applicant and N were granted a number of extensions of the time - limits to submit their grounds of appeal . The applicant submitted his grounds of appeal on DATE . The applicant claimed that he completed his appeal on DATE . The Government claimed that the applicant did not complete his appeal until DATE . It is undisputed , however , that he submitted his claim for legal costs on the latter date . N completed his appeal on CARDINAL DATE and submitted his claim for legal costs on DATE . On DATE ORG refused leave to appeal .


Violation of Art. 13+3;Remainder inadmissible;Non-pecuniary damage - award;Just satisfaction reserved (2nd applicant)

Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

On DATE the first applicant arrived at GPE airport by plane from GPE ) , having transferred in GPE . Immediately after his arrival , he applied for asylum . For the whole period of his stay in GPE , he was held at the reception centre for asylum seekers at GPE airport .

NORP In his application for asylum he submitted that in GPE he had participated in a teacher ’s strike and that subsequently police had come looking for him at home so he had had to flee . He feared that if returned to GPE , he would be detained or even murdered . In a subsequent interview he specified that he had fled GPE with the help of an employee of ORG , who also secured the assistance of a policeman .

On DATE ORG ( odbor azylové a migrační politiky ministerstva vnitra ) dismissed his asylum application as manifestly unjustified ( zjevně nedůvodná ) under section CARDINAL(CARDINAL)(e ) of LAW without examining its merits , stating that the first applicant had arrived from GPE , which was considered a safe third country .

The first applicant applied for judicial review which , however , in cases rejected under section CARDINAL(CARDINAL)(e ) of LAW , did not have a suspensive effect . On DATE he requested that those proceedings be terminated , which ORG ( městský soud ) did on DATE .

On DATE ORG and ORG ( referát cizinecké a pohraniční policie ) ordered the first applicant to leave the country by DATE . As the applicant did not comply with the order , ORG instituted administrative expulsion proceedings against him .

In the context of those proceedings ORG interviewed the first applicant on DATE . He reiterated that he could not return to his home country because he could be killed or injured there and would most likely be imprisoned . He submitted that he had been one of the initiators of a student demonstration in which several participants were killed . ORG also requested , as required by law , an opinion of ORG as to whether there were any obstacles to the applicant ’s removal . On DATE the ORG replied in the negative , stating that the first applicant was facing expulsion to GPE , which was a safe country .

On DATE the ORG and ORG issued an administrative expulsion order ( správní vyhoštění ) ordering the first applicant to leave the country within DATE and prohibiting him from entering GPE for DATE . It held that the first applicant had stayed in GPE without a valid visa after his asylum request had been rejected .

On DATE ORG and ORG ( ředitelství služby cizinecké a pohraniční policie ) rejected the first applicant ’s appeal , upholding the reasoning of the ORG and ORG . The first applicant received this decision on DATE .

On CARDINAL DATE at TIME and without prior notice , the first applicant was removed from GPE by plane via GPE . Later on , while the first applicant was in police custody in GPE , his lawyer managed to contact him by telephone , but he refused to provide any information about his treatment in detention .

The first applicant is currently living in GPE .

On DATE the second applicant arrived at GPE airport by plane from GPE ) with a transfer in GPE . He was denied permission to board a plane to GPE and , subsequently , applied for asylum . During his stay in GPE , the applicant was held at both the reception centre for asylum seekers at GPE airport and the detention centre in FAC .

In his application for asylum he submitted that his father had been an active member of an opposition political party , Union for GPE , and had been detained and killed in DATE . After the death of his father , the applicant had created ORG and became its president . He had continued to have contact with members of the opposition and his association had supported the trade unions . In DATE a conflict began between the Government and trade unions and ORG had started looking for him .

On DATE ORG dismissed the second applicant ’s asylum request under section CARDINAL(CARDINAL)(e ) of LAW without examining its merits , holding that the second applicant had arrived from GPE , a safe third country .

The second applicant applied for judicial review and requested a suspension of the legal force of the administrative decision . He argued that according to ORG , it was GPE that should process his request for asylum and not GPE . Consequently , the ORG should have considered the merits of his application .

On DATE ORG ( krajský soud ) upheld the administrative decision not to grant the second applicant asylum . It agreed with the reasoning that the second applicant had arrived from GPE , which is a safe third country , and that he should have asked for asylum there . The court did not deal with the second applicant ’s request for suspension of the legal force of the decision . The judgment was served on the second applicant on DATE . Having been removed from GPE before the expiration of the statutory time - limit , he did not appeal on points of law .

On DATE ORG and ORG ordered the second applicant to leave the country by DATE . As the second applicant did not comply with the order , the Police instituted administrative expulsion proceedings against him .

In the context of those proceedings ORG held an interview with the second applicant on DATE in which he reiterated his fears of returning to GPE . It also requested , as required by law , an opinion of ORG whether there were any obstacles to the second applicant ’s expulsion . On DATE the ORG replied in the negative , stating that the second applicant was facing expulsion to GPE , which was a safe country .

On DATE the ORG and ORG issued an expulsion order against the second applicant prohibiting him from entering GPE for DATE and ordering him to leave the country within DATE . It held that the applicant had stayed in the country without a valid visa .

On DATE the Prague Aliens and ORG rejected the second applicant ’s appeal , sharing the opinion of the ORG and ORG . The second applicant was notified on DATE .

On CARDINAL DATE at TIME and without prior notice , he was removed from GPE by plane via GPE . His lawyer was not informed about the removal beforehand and has not managed to reach the second applicant since then .

On DATE the second applicant had signed a power of attorney for Mr PERSON , who is representing him in the proceedings before the ORG , authorising him to take any legal action relating to his expulsion , including preventing the expulsion , and to make any claims arising from the situation , including , if necessary , representing him before the courts .

NORP Under section CARDINAL(CARDINAL)(e ) an application for asylum had to be rejected as manifestly unjustified if the applicant arrived from a country which GPE considered to be a safe third country or a safe country of origin , unless it was proven that in a particular case this country could not be deemed to be safe .

Section CARDINAL stipulated :

“ CARDINAL . an action against the decision of the Ministry concerning asylum shall be filed within DATE of the serving of the decision .

Within DATE of the serving of the decision , an action may be filed against the decision on asylum

a ) which rejects the application as manifestly unjustified , ...

The filing of an action under subsections CARDINAL and CARDINAL has a suspensive effect , except in the case of an action against termination of the proceedings pursuant to section CARDINAL or an action against a decision under section CARDINAL(CARDINAL)(e ) and ( f ) .

( CARDINAL ) The proceedings on an action fall within the jurisdiction of the regional court ...

( CARDINAL ) The lodging of an appeal on points of law against the decision of the regional court on the action against the decision made by ORG in the matter of asylum pursuant to subsections ( CARDINAL ) and ( CARDINAL ) shall have a suspensive effect . ”

Under section CARDINAL ) the police , within the framework of making a decision on administrative expulsion pursuant to section CARDINAL or section CARDINAL , are obliged to request from ORG a binding opinion as to whether the alien ’s departure is possible ( section CARDINAL ) . Under subsection ( CARDINAL ) the ORG will issue its binding opinion without delay .

Section CARDINAL(c ) ruled out judicial review of a decision on administrative expulsion if prior to the proceedings on expulsion the alien had been staying in the territory unlawfully . This provision was repealed by ORG as unconstitutional in its judgment of DATE ( Pl . ÚS CARDINAL/CARDINAL ) .

Section CARDINAL regulates obstacles to an alien departing from the territory of GPE :

( CARDINAL ) An alien ’s departure shall not be permitted if there is reason to believe that , if returned to the state of which he is a citizen , or , in the case of a stateless individual , to the state in which he last held permanent residence , he would be in real danger of serious harm as defined in subsection ( CARDINAL ) below and that , due to this danger , he is either unable or unwilling to accept protection from the state of which he is a citizen or in which he last held permanent residence .

( CARDINAL ) For the purposes of this LAW , serious harm is understood to be :

a ) the imposition or execution of a death penalty ;

b ) torture , or inhuman or degrading treatment or punishment ;

c ) serious threat to life or human dignity due to unwarranted violence in situations of international or internal armed conflict ; or

d ) if the alien ’s departure would be in conflict with GPE international obligations .

The ORG has described the situation in GPE in GPE v. GPE ( dec . ) , no . CARDINAL , DATE . The following documents pertain to the situation there at the time relevant for the present application .

“ CARDINAL . On DATE , the Secretary - General stated that he was deeply concerned by the killings of CARDINAL students during the demonstrations on DATE . He underlined the need for the non - violent resolution of disputes and called on the authorities to exercise restraint .

On DATE , the Secretary - General stated that he was gravely concerned at the excessive use of force resulting in the loss of life in clashes in GPE . He strongly urged the Government to carry out investigations into the killings with a view to bringing those responsible to justice , and to take the necessary measures to ensure the safety of all citizens throughout the country . He urged the parties to engage in dialogue in order to find a peaceful resolution to the dispute .

On DATE , the High Commissioner for Human Rights condemned the reported killing of civilians in GPE DATE before , and recalled that fundamental human rights can not be curtailed even in a state of emergency . DATE , the Secretary - General reiterated his grave concern over the worsening political and security situation in GPE , and stated that he deplored the continued loss of lives and the wanton destruction of property . He urged the Government and the security forces to exercise maximum restraint and to scrupulously uphold the rule of law and respect for human rights , and he urged the labour leaders to refrain from inciting violence and the destruction of property .

In DATE , the Special Rapporteurs on the right to freedom of opinion and expression and on the question of torture drew the ORG ’s attention to the general strike , which began on DATE in GPE , in protest against the Government and its management of the country . During the strike CARDINAL persons were killed , many were injured and CARDINAL were arrested . ”

During the discussion in ORG , ORG admitted that “ a lack of political will has affected the implementation of national and international legislation on human rights . That deficiency has led to serious and massive human rights violations by successive Governments . Denunciations and complaints , linked to political instability and lack of security , have resulted in massive uprisings and general disputes . ... Human rights violations , which commenced in DATE , have continued up to DATE . ”

In DATE and DATE the GPE ORG on ORG reported serious human rights abuses in GPE including killings and ill - treatment of student demonstrators by security forces , arbitrary arrests and intimidation of citizens during general strikes and inhuman and life - threatening prison conditions . The reports also noted instances when persons suspected of inciting violence during the general strike were detained for DATE and after release without any charges were repeatedly harassed by security officers and threatened in anonymous phone calls .

At the same time the reports noted that political detentions rarely exceeded DATE and those persons were generally extended more protection than other detainees due to the NGO and media attention their cases attracted .

According to ORG DATE report NORP security forces used excessive force against demonstrators , arbitrary detention and killings by security forces were reported and torture and other ill - treatment of protesters and detainees were widespread in DATE :

“ Against the background of a serious economic crisis , GPE ’s CARDINAL principal trade unions , supported by the main opposition parties , called a general strike in DATE . ... President PERSON ... attempted to suppress the movement by force . Throughout DATE , at the beginning of the movement , members of the security forces shot at peaceful demonstrators , killing CARDINAL of people and injuring others . Despite this use of force and the arrest of some civil society leaders and trade unionists , the general strike continued and in DATE the trade unions demanded the appointment of a consensus government .

In DATE ... , clashes between the demonstrators and the security forces increased and a state of emergency was declared on DATE . ...

In DATE , members of the armed forces took to the streets in the capital , GPE , and other towns , demonstrating and firing into the air . CARDINAL people were killed and others were injured by stray bullets .

ORG was established in DATE ‘ charged with conducting investigations into grave human rights violations and offences committed during the strikes of DATE and DATE and DATE CARDINAL’ . CARDINAL of people , including demonstrators and employees of a private radio station , were arrested for short periods of time by the security forces during the general strike . Some were tortured in custody . ”

ORG also reported on a particular case of a member of ORG who was arrested twice in DATE : “ He was beaten with rifle butts and police officers walked on him and kicked him in the chest while he was handcuffed with both arms behind his back . Officers tied both his elbows behind his back and inserted a baton between his arms , pulling on it at regular intervals to increase the pain . ”

In its DATE report “ The Perverse Side of Things ” Human Rights Watch documented cases of serious torture in detention facilities and reported that “ Security forces and other government officials in GPE routinely violate some of the most basic civil and political rights , including the inherent right to life , freedom from torture , freedom of expression , freedom of assembly , and the right to a trial within a reasonable period . These violations are committed against individuals accused of common crimes as well as those persons security forces perceive to be government opponents . ”

In a note released on CARDINAL DATE “ ORG Under Martial Law ” it reported that NORP security forces were using martial law declared on DATE as an excuse to terrorize ordinary ORG and , under the guise of re - establishing law and order , were acting like common criminals , beating , robbing and brutalizing the population they were supposed to protect .


The applicant is an NORP citizen , born in DATE and residing in GPE . At the material time the applicant was a civil servant in ORG serving as a member of the diplomatic corps . Since DATE the applicant is retired .

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

DATE the applicant was assigned to the NORP embassy in GPE as “ LOC ” , i.e. a diplomat who may be called upon to represent the Ambassador . In DATE , after having returned to GPE , he applied for a hardship allowance ( PERSON ) for the time of his service in GPE which was granted to him on DATE by ORG ( Verwaltungsgerichtshof ) . His requests to have the case reopened were rejected on DATE .


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

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

On DATE the applicant brought an action against his former employer , a municipal enterprise , claiming his reinstatement in the post and damages . On DATE the applicant amended his claims and sought to obtain certain documents from the respondent company .

On DATE the Chaunskiy District Court of the Chukotka Region dismissed the applicant ’s action . On DATE the ORG set aside the judgment and remitted the case for a fresh examination .

In DATE and DATE the applicant amended his claims , reiterated his claim for documents from the respondent and asked the court to call witnesses . On DATE ORG granted the applicant ’s claims in part . On DATE ORG quashed the judgment and remitted the case for a re - trial .

NORP In DATE and DATE the applicant amended his claims . On DATE ORG found for the applicant . The court reinstated him and awarded him MONEY ( RUB ) on account of leave payment , RUB CARDINAL for salary arrears and inflation losses , and RUB CARDINAL in respect of non - pecuniary damage . On DATE ORG remitted the case for a new examination in the part of leave payment and upheld the remainder of the judgment .

On DATE the applicant received RUB CARDINAL as awarded by the court and another payment of RUB MONEY .

On DATE ORG awarded the applicant RUB CARDINAL in leave payment . The judgment was not appealed against and became final on DATE .

On DATE the bailiffs’ office opened enforcement proceedings . On DATE ORG instructed the bailiffs’ office to collect RUB CARDINAL,CARDINAL.CARDINAL from the respondent company because due to a mistake the applicant had already received RUB CARDINAL .

On DATE the bailiffs’ office closed the enforcement proceedings . They held that the judgment could not be enforced because the respondent had no property or funds ; on DATE the enterprise had been restructured so that its assets had been transferred to the municipality .

The judgment of CARDINAL DATE was enforced in full on DATE .

The Civil Code defines ORG and municipal unitary enterprises as a special form of legal entities that do not exercise the right of ownership in respect of the property allocated to them by the property owner ( LAW ) . The ORG or municipal authority retains ownership of the property but the enterprise may exercise in respect of that property the right of economic control or operative management ( LAW ) .

The manager of a unitary enterprise is appointed by , and reports to , the owner ( LAW ) . The owner has the right to restructure or liquidate the enterprise . The owner ’s consent is required for any transaction that may lead to encumbrance or alienation of the property .

The owner of an enterprise having the right of economic control is not liable for the enterprise ’s debts unless the owner has caused insolvency of the enterprise or violated the procedure for its liquidation ( Article CARDINAL § CARDINAL ) . Such enterprise may be declared insolvent in accordance with the insolvency procedure applicable to private companies .

The owner of an enterprise having the right of operative management is liable for the enterprise ’s debts in case of insufficiency of their funds ( Article CARDINAL ) . Such enterprise may not be declared insolvent ( DATE ) .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She was represented before the ORG by PERSON G. ORG and PERSON , lawyers practising in GPE .

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

In DATE the applicant , assisted by legal counsel , applied for disability benefits under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE Act ” ) . She claimed that she was in need of assistance for TIME and had extra expenses in the amount of MONEY ( SEK ) per year following operations which had removed part of her intestines . She submitted certificates from a medical doctor and a dentist .

By a decision of DATE ORG ( försäkringskassan ; hereinafter “ the Office ” ) of GPE granted her a disability allowance as from DATE . The ORG found that she was in need of assistance for TIME and accepted additional costs amounting to SEK CARDINAL,CARDINAL per year . Added together , these items corresponded to an allowance of PERCENT of a basic amount geared to the price index ( basbelopp ) .

The applicant appealed to ORG ( länsrätten ) of GPE , maintaining that she was entitled to an allowance of PERCENT of the basic amount . She submitted that she had further expenses due to her handicap which she had previously failed to state and that the total amount of the extra expenses was SEK CARDINAL,CARDINAL . She further claimed that she should be given an allowance as from DATE .

On DATE ORG held an oral hearing in the case . At the hearing , the applicant claimed that her extra expenses amounted to SEK CARDINAL,CARDINAL and the ORG stated that it accepted SEK CARDINAL,CARDINAL thereof .

By a judgment of DATE the court rejected the applicant 's appeal in so far as it concerned the period from DATE . It found that SEK CARDINAL,CARDINAL could be accepted as extra expenses for the applicant , but that these expenses and her need of assistance , taken together , did not make her eligible for an allowance with a higher amount than the one granted by the Office . As regards the period before DATE , the court referred the matter back to the ORG for a decision . It appears that no appeal was made against the court 's judgment .

On DATE the ORG granted the applicant a disability allowance of PERCENT of the basic amount for DATE – November CARDINAL . In so doing , it accepted extra expenses for that period amounting to SEK CARDINAL,CARDINAL and thus considered that some of the extra expenses fixed by ORG had not existed before DATE .

The applicant appealed against this decision and claimed an allowance of PERCENT , alternatively PERCENT , of the basic amount for DATE – November CARDINAL . She also requested that the ORG be ordered to explain its decision in several respects .

On DATE ORG rejected the request for explanations from the ORG . It noted that the applicant 's appeal had been communicated to the ORG which thus had been given an opportunity to submit comments . The court further ordered the applicant to complete her appeal by DATE .

The applicant made submissions to the court on DATE . She further requested that ORG hold an oral hearing in order to have clarified certain factual issues in the case . In this connection , she maintained that the ORG had failed to give satisfactory answers to her questions .

By a judgment of DATE ORG found partly in favour of the applicant and granted her a disability allowance of PERCENT of the basic amount for the period at issue , DATE – DATE . The court considered that the circumstances relating to that period , in all important respects , were the same as for the period examined in the judgment of DATE . On the basis of a medical certificate submitted by the applicant , it further found that the extra expenses which the ORG had not accepted for the period in question had in fact existed since DATE . As regards the applicant 's claim that she was entitled to PERCENT of the basic amount , the court found no reason to change the assessment made in its earlier judgment .

By the judgment ORG further rejected the applicant 's request for an oral hearing . It noted that it had ordered the applicant to make her final submissions in the case and that it had already held an oral hearing on DATE in the case concerning benefits for the period starting in DATE . As the circumstances in that case had been essentially the same and as the court had drawn the same conclusions with regard to the applicant 's entitlement to benefits for the CARDINAL periods in question , the court found a hearing unnecessary in the case at hand .

The applicant appealed to ORG ( kammarrätten ) in GPE and complained about ORG decision not to hold an oral hearing . She further claimed that , if the appellate court were to examine the case on the merits , it should hold an oral hearing .

On DATE the appellate court refused the applicant leave to appeal . On DATE ORG ( Regeringsrätten ) also refused her leave to appeal .

According to chapter CARDINAL , section CARDINAL of LAW , a person who is ill or handicapped is entitled to disability benefits , provided that , before reaching DATE , he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses . The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation . It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses . According to guidelines issued by ORG ( Riksförsäkringsverket ) , the total DATE costs of all extra needs due to the disability should come to PERCENT of the basic amount in order to make the individual eligible for an allowance . If the total costs reach or exceed that level , the individual is , pursuant to chapter QUANTITY , section CARDINAL of LAW , entitled to an DATE allowance corresponding to CARDINAL , DATE or PERCENT of the basic amount , depending on the level of the total costs . In DATE , when the applicant lodged her application with the ORG office , the basic amount was SEK CARDINAL .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG .

The procedure in the administrative courts is governed by the provisions of ORG , ORG ; hereinafter “ the DATE LAW ) . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party 's request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party 's understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


Violation of Art. 14+P1-1;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national born in DATE , lived in GPE ( GPE ) from DATE until DATE . Since then he has been living in GPE ( GPE ) .

ORG The applicant worked in GPE , with interruptions , from DATE until DATE . From then until DATE periods when he was unemployed alternated with periods when he was certified unfit for work for medical reasons , and he was in receipt of the corresponding benefits .

From DATE to CARDINAL DATE he received an advance on his retirement pension in the form of unemployment benefit . When his entitlement expired he applied to ORG ( GPE ) on DATE for an advance on his pension in the form of emergency assistance ( Antrag auf Gewährung eines Pensionsvorschusses in Form der Notstandshilfe ) .

ORG On DATE the agency rejected the application on the ground that the applicant did not have NORP nationality , which was one of the conditions laid down in section CARDINAL ( CARDINAL ) ( a ) of the DATE LAW ( GPE - see paragraph CARDINAL below ) for entitlement to an allowance of that type .

Mr PERSON appealed against the above decision to ORG ( PERSON ) . He argued in particular that the distinction drawn by the section in question between NORP citizens and foreign nationals was unjustified , unconstitutional and contrary to LAW ) .

ORG On DATE ORG found against the applicant and upheld the impugned decision . It emphasised that not only did he not have NORP nationality , but in addition his case did not fall into any of the categories where exemption from that condition was provided for ( see paragraph CARDINAL below ) .

ORG On DATE the applicant applied to ORG ) , alleging a violation of LAW ) , Articles CARDINAL para . CARDINAL and CARDINAL of the Convention ( article DATE , article CARDINAL) and LAW Protocol No . CARDINAL ( PCARDINAL - CARDINAL ) .

ORG On DATE , after considering the application in camera , ORG declined to accept the case for adjudication ( Article CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) , giving judgment in the following terms :

" The applicant alleged the breach of rights guaranteed by LAW in accordance with LAW CARDINAL ( article CARDINAL ) of LAW , LAW No . CARDINAL to the Convention ( PCARDINAL - CARDINAL ) , and LAW ( article CARDINAL) . Regard being had to ORG established case - law relating to these rights , the application is so unpersuasive as to the existence of the alleged violations or the infringement of any other right guaranteed by the LAW or the infringement of another right through the application of an unlawful general provision , that with regard to the alleged violations to be considered by ORG it does not have sufficient prospects of success . In addition , the case is not excluded from the jurisdiction of ORG [ Verwaltungsgerichtshof ] . "

ORG therefore referred the case to ORG ( Article CARDINAL para . CARDINAL of LAW see paragraph CARDINAL below ) .

ORG On DATE ORG asked PERSON to expand on his application .

ORG On DATE the applicant did so , complaining of an infringement of his legal right to obtain an advance on his pension in the form of emergency assistance , in accordance with the relevant provisions of LAW . He requested ORG to set aside the decision of ORG of DATE as unlawful by reason of its content ( section CARDINAL ( CARDINAL ) ( i ) of LAW ( Verwaltungsgerichtshofsgesetz ) - see paragraph CARDINAL below ) and to suspend the proceedings and refer the case to ORG for consideration of the constitutionality of section CARDINAL ( CARDINAL ) ( a ) of LAW .

ORG On DATE ORG , sitting in camera , ruled that it did not have jurisdiction to deal with such an application and rejected it ( section CARDINAL ( CARDINAL ) of LAW - see paragraph CARDINAL below ) . It noted that the application , as expanded by PERSON , referred solely to the constitutionality of LAW ( CARDINAL ) ( a ) of LAW . It further noted that the applicant had asked ORG to refer the case to ORG for consideration of the constitutionality of a statute , but ruled that it was established that such questions came under the jurisdiction of ORG ( Article CARDINAL para . CARDINAL , first paragraph , of LAW - see paragraph CARDINAL below ) , which , moreover , had already ruled on the issue .

ORG In the DATE version , which was applicable at the material time , the relevant provisions of LAW ( GPE ) were worded as follows :

" ( CARDINAL ) Unemployed persons who have applied for an invalidity insurance benefit ... may receive an advance in the form of unemployment benefit or emergency assistance ... provided that , in addition to the capacity to work and availability for work , the other conditions for the award of the benefit concerned are satisfied ... "

" ( CARDINAL ) Unemployed persons who have exhausted their entitlement to unemployment benefit or maternity leave may be granted emergency assistance , at their request .

( CARDINAL ) For a grant to be made , the unemployed person must

( a ) possess NORP nationality ;

( b ) be fit for work and available for work ; and

( c ) be in urgent need .

( CARDINAL ) The requirement of NORP nationality is not applicable to persons who have been uninterruptedly resident in the present territory of GPE since DATE , or to persons who were born after that date in the present territory of GPE and have subsequently been uninterruptedly resident there .

( CARDINAL ) There is urgent need where the unemployed person is unable to provide for his essential needs .

( CARDINAL ) Emergency assistance can not be granted unless the unemployed person applies for it within DATE of exhausting entitlement to unemployment benefit or maternity leave . "

" ( CARDINAL ) If long - term labour - market conditions are favourable to specific categories of unemployed persons or in specific regions , the Federal Minister of ORG may , after consulting the organisations representing employers and employees , exclude those categories or regions from entitlement to emergency assistance .

( CARDINAL ) The Federal Minister of ORG may authorise the grant of emergency assistance to unemployed persons who are nationals of another State where that ORG has a benefit equivalent to NORP emergency assistance which is payable to NORP citizens in the same manner as to its own nationals .

( CARDINAL ) The Federal Minister of ORG may , after consulting the organisations representing employers and employees , authorise the grant of emergency assistance to unemployed persons who do not have NORP nationality and have not been granted assistance under paragraph CARDINAL , on condition that during DATE of the application for emergency assistance they have been employed in GPE for not DATE with compulsory payment of unemployment insurance contributions . In order to calculate this period of DATE , no account shall be taken of periods when the person concerned was in receipt of unemployment benefit ( or emergency assistance ) . Authorisation may be given for a specific period and in respect of specific categories of unemployed persons . "

ORG Emergency assistance is assistance paid to persons who are no longer entitled to unemployment benefit , in order to guarantee them a minimum income . Entitlement to emergency assistance continues for as long as the person concerned is in need , even though payment itself is granted for a maximum period of DATE , which must be renewed . The amount can not exceed the amount of the unemployment benefit to which the person concerned would otherwise be entitled , nor may it be PERCENT of the amount of that benefit .

The amount of unemployment benefit is established in accordance with the recipient 's income and it is financed partly from the unemployment insurance contributions every employee has to pay ( section CARDINAL of LAW ) and partly from various governmental sources .

ORG Since DATE , after amendment of the text and a change of numbering , sections CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL ( CARDINAL ) and ( CARDINAL ) have read as follows :

( CARDINAL ) Emergency assistance may not be granted unless the unemployed person applies for it within DATE of exhausting entitlement to unemployment benefit or maternity leave . To this period shall be added periods of rest within the meaning of section CARDINAL ( CARDINAL ) and periods of self - employed work , paid employment not covered by unemployment insurance or training which has occupied a preponderant part of the unemployed person 's time . "

" ... ( CARDINAL ) The following categories of persons may claim emergency assistance under the same conditions as unemployed persons having NORP nationality :

refugees within the meaning of LAW relating to LAW , signed at GPE on DATE ;

stateless persons within the meaning of LAW relating to ORG , signed at GPE on DATE ;

persons born in the present territory of GPE who have subsequently been normally resident there uninterruptedly ;

persons who have been normally resident in the present territory of GPE uninterruptedly since DATE ;

foreign nationals , in so far as that is provided for in bilateral agreements or international treaties ;

holders of exemption certificates or assimilated persons , within the meaning of paragraph CARDINAL ;

displaced persons in possession of an identity document issued by an NORP authority ;

resettled persons from GPE and the Val Canale [ Südtiroler- und ORG ] .

( CARDINAL ) After exhaustion of entitlement to unemployment benefit or maternity leave , the following categories of persons shall be granted emergency assistance , for a period of DATE , or special emergency assistance , for the period laid down in section CARDINAL(CARDINAL ) :

persons who , at the time of their application for emergency assistance , can produce a valid exemption certificate , within the meaning of ORG , issued in the version in force at the time of issue ;

persons who do not have NORP nationality but who , at the time of their application for emergency assistance , nevertheless satisfy the conditions for an exemption certificate , and to whom such a certificate has not been issued on the sole ground that their occupation is not covered by ORG . "

ORG By Article CARDINAL para . CARDINAL of LAW , when an application ( Beschwerde ) is made to it , has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the LAW or has applied regulations ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law .

Article CARDINAL para . CARDINAL provides :

" Up to the time of the hearing ORG may by means of a decision [ ORG ] decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The court may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . "

Paragraph CARDINAL of Article CARDINAL is worded as follows :

" Where ORG considers that the impugned administrative decision has not infringed a right within the meaning of paragraph CARDINAL and the case is not excluded from the jurisdiction of ORG by Article CARDINAL , ORG , at the applicant 's request , must refer the application to ORG so that it may determine whether the impugned decision has infringed CARDINAL of the applicant 's other rights . "

ORG By LAW para . CARDINAL of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .

Section CARDINAL ( CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz ) provides : " Applications upon which . on account of ORG manifest lack of jurisdiction , it is not appropriate to adjudicate , or which are manifestly barred as res judicata or for lack of the right to bring proceedings , shall be rejected , without further proceedings , by a decision taken in closed sitting . "

Section CARDINAL ( CARDINAL ) of LAW provides :

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

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

By section DATE ( CARDINAL ) ,

" The Administrative Court shall quash the impugned decision if it is unlawful

by reason of its content , [ or ]

because the respondent authority lacked jurisdiction ,

[ or ]

ORG on account of a breach of procedural rules , in that

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

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

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

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