Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

At the material time the applicant held the position of Head of ORG ( начальник PERSON юстиции Сахалинской области ) .

On an unspecified date an external audit commenced in the said ORG and embezzlement of budgetary assets was subsequently established .

On DATE criminal proceedings were instituted in this connection .

On DATE at TIME the applicant retained a lawyer .

On DATE at TIME the applicant was arrested and placed in custody . Being questioned as a suspect in the case , the applicant availed herself of the right to remain silent and applied for release on bail or subject to personal surety .

On DATE the investigator in charge refused to release the applicant , stating that , according to LAW , “ a measure of restraint could only be changed in the circumstances when it was no longer needed ” and that “ there were no such circumstances ” in the applicant 's case .

On DATE the applicant resigned from her position .

On DATE the investigator in charge remanded the applicant in custody . The order , which was approved by a deputy prosecutor of LOC , referred to the danger of the applicant 's absconding , the risk of her obstructing the establishment of the truth and influencing the witnesses who had been her subordinates , and to the gravity of the charges against her .

The applicant 's request to release her subject to the imposition of another measure of restraint was examined and refused by the investigator on DATE .

On DATE the applicant 's lawyer appealed to the court against the applicant 's pre - trial detention .

The application was examined by judge A. of the Yuzhno - Sakhalinsk Town Court ( “ the Town Court ” ) on DATE . At the hearing the applicant and her counsel reiterated their request for the applicant 's release in view of her poor health , the fact that she had family commitments and a good reference from her former place of work . The judge confirmed the lawfulness of the applicant 's remand in custody , having based this decision on “ the evidence in the applicant 's case file , proving that she might abscond or influence the witnesses if released ” .

According to the applicant , the evidence referred to by Judge PERSON was a transcript of an audio tape recording of telephone conversations of another suspect , PERSON During CARDINAL such conversation PERSON stated that “ on DATE PERSON will leave forever ” .

On DATE ORG ( “ the Regional Court ” ) upheld the decision of DATE on appeal .

Meanwhile , on DATE , formal charges of embezzlement and abuse of power had been brought against the applicant . Since the applicant 's counsel was unable to attend the police station that day , the investigating authorities appointed another lawyer to assist her . However , in the absence of her counsel , the applicant refused to read and sign the decision to charge her .

On DATE the applicant 's lawyer challenged the decision of DATE before the court , claiming that the applicant 's right to defence had been violated . He also requested the court to release the applicant pending trial .

On DATE judge A. of ORG disallowed the above complaint , having noted that the allegations advanced by the applicant 's representative had already been examined and rejected by the courts during the first judicial review of the applicant 's detention .

On DATE ORG set aside the above decision and discontinued the proceedings in respect of the complaint of DATE . The court noted , inter alia , that the applicant was entitled to appeal against the alleged infringement of her right to defence at the trial stage .

On DATE the regional prosecutor extended the applicant 's detention until DATE on the ground that she might flee the trial or put pressure on witnesses while at liberty .

On DATE the applicant challenged this order before the court , and requested to be released . She maintained , in particular , that she could not hinder the investigation or influence the witnesses , since the audit had terminated on DATE . The applicant also referred to poor conditions of her detention and deterioration of her health .

On DATE judge A. of ORG dismissed the applicant 's complaint as unfounded , with reference to the gravity of the charges , “ the applicant 's personality ” and “ the evidence in the applicant 's case file , proving that she might abscond or influence the witnesses if released ” . The judge also noted that the investigating authorities had produced a medical report stating that the applicant had no need of medical treatment .

In her appeal against the decision of CARDINAL DATE the applicant stated , inter alia , that Judge PERSON should have been disqualified from reviewing her detention , as this judge had already considered and rejected her applications for release on CARDINAL previous occasions .

On DATE ORG upheld the decision of CARDINAL DATE . With respect to the applicant 's argument concerning Judge PERSON , the court noted that the domestic law entitled a judge to examine a repeated complaint about the lawfulness of detention .

On CARDINAL DATE a deputy prosecutor of LOC refused the applicant 's request for release .

On DATE the applicant was charged with a number of additional counts relating to embezzlement , abuse of power and forgery .

On DATE the preliminary investigation was terminated and the applicant and her lawyer began studying the case file .

On DATE the regional prosecutor ordered the extension of the applicant 's detention until DATE .

The applicant appealed against the prosecutor 's decision , claiming that she was unable to obstruct the establishment of the truth or influence the witnesses , since the investigation had already terminated . She also referred to her poor state of health .

On DATE judge B. of ORG dismissed the applicant 's complaint , holding that her detention was “ in accordance with law ” and necessary in view of the seriousness of the charges and the applicant 's personality . The judge also took note of medical certificates produced by the applicant 's lawyer as well as the aforementioned medical report adduced by the investigating body , and found the applicant 's allegations that she was in poor health unsubstantiated .

On DATE ORG upheld the above decision on appeal . The court noted that the applicant was charged with a serious criminal offence and its severity alone could , according to LAW , permit her continued detention .

On DATE the applicant 's counsel lodged a complaint against the investigator in charge , requesting the court to order the applicant 's inpatient examination by an independent medical authority .

On DATE Judge PERSON of ORG declined jurisdiction to examine the complaint , stating that it fell within the competence of the prosecutor . This decision was upheld on appeal by ORG on DATE .

In the meantime , on DATE , the regional prosecutor extended the period of the applicant 's remand in custody until DATE .

On DATE the applicant appealed to the court against the prosecutor 's order . Her complaint was assigned to Judge PERSON of ORG .

The applicant sought the withdrawal of the judge . On DATE dismissed the challenge .

At the hearing on DATE the applicant and her defence counsel claimed that the preliminary investigation had been completed , that the applicant had finished studying her case file , and that therefore the investigating authorities had no reasons to believe that the applicant might flee or obstruct the establishment of the truth if at large . Moreover , the applicant posed no danger to the public and suffered from various health problems , which required proper medical treatment .

Having heard the parties , Judge PERSON found that the applicant should remain in custody , on account of the gravity of the charges and the risk of her absconding . The judge further rejected the applicant 's complaints about her health as groundless . This decision was upheld on appeal by ORG on DATE .

On DATE the investigator refused to release the applicant , making a general reference to the absence of any circumstances proving that her detention was no longer needed .

On DATE the applicant 's case was forwarded to ORG for examination .

On DATE Judge PERSON of ORG remitted the case for a further investigation and stated that the applicant should remain in custody in view of the seriousness of the charges .

The applicant appealed against the above decision in so far as it concerned her detention .

On DATE ORG dismissed the appeal .

Meanwhile , on CARDINAL DATE the deputy ORG had authorised the applicant 's detention until DATE . This order was served on the applicant on DATE .

On DATE the applicant challenged the extension of her custody period before ORG , complaining , in particular , that she had not been notified of the order of CARDINAL DATE in time .

DATE . At the hearing on DATE the applicant also referred to the poor state of her health and the absence of any risk that she might abscond or hinder the investigation , which was at an end . Her arguments were examined and rejected as unfounded . Having acknowledged the fact that the order of CARDINAL DATE had not been served on the applicant in due time , the court held that this fact did not affect the legal force of the extension order or the lawfulness of the applicant 's detention . It therefore ordered the applicant 's continued detention , with reference to the gravity of the charges against her . On DATE ORG upheld the first - instance decision .

On DATE the applicant requested the investigator to release her .

On DATE the investigator informed the applicant that there were no reasons to release her .

On DATE the case was again transferred to ORG for examination on the merits .

On DATE Judge PERSON of ORG scheduled a hearing in the applicant 's case and held that “ in view of the gravity of the charges [ against the applicant ] the measure of restraint applied to her should remain unchanged ” . The decision did not specify the time - limit for the applicant 's detention , nor did it refer to any other matters regarding the lawfulness of her detention .

On DATE the applicant appealed against the above decision in so far as it related to her detention . She claimed that DATE , when the period of her remand in custody had expired , and DATE her detention had had no basis in domestic law . She further complained that the court had ignored her submissions about the state of her health .

On DATE ORG dismissed the applicant 's appeal , finding that her detention was lawful . The court stated that the applicant had been charged with serious crimes , and could be detained on the sole ground of the dangerousness of those offences . With regard to the applicant 's argument concerning her detention DATE and DATE , the court noted that the applicant 's case file , including the indictment , had been transmitted to court on DATE , before the period of her remand in custody had expired . Accordingly , in the court 's opinion , the statutory provisions governing the time - limit for detention during the preliminary investigation had been complied with in respect of the applicant . The court further stated that , upon referral of the case to court , the first instance had taken its decision in due time , as prescribed by LAW .

The applicant 's further requests for release were rejected by ORG on DATE and DATE with a reference to the absence of any “ new grounds for altering [ the applicant 's ] measure of restraint ” .

On DATE the Yuzhno - Sakhalinsk Town Court , composed of Judge PERSON and CARDINAL lay assessors , convicted the applicant , along with another co - accused , of embezzlement , forgery and abuse of power , and sentenced DATE and DATE imprisonment and confiscation of her property .

On DATE ORG upheld the sentence , having lifted the charges against the applicant on CARDINAL counts with reference to a limitation period .

Thereafter the applicant applied unsuccessfully for a supervisory review .

On DATE the applicant was released on parole .

According to the applicant , from DATE until DATE she was kept in the temporary holding facility of ORG of the ORG ( изолятор временного содержания управления внутренних дел г. Южно-Сахалинска , “ the ORG ” ) . In support of that submission , the applicant enclosed the authorities ' letters dated CARDINAL and DATE respectively sent to her at the address of the ORG .

The applicant corroborated her account below with a written statement from CARDINAL her former inmates .

The ORG was situated in the basement of the LOC of ORG . Following her arrest the applicant was placed in a cell measuring CARDINAL x QUANTITY which was QUANTITY high . There were no windows in the cell , with the result that there was no natural light , nor any fresh air . The inside temperature did not exceed CARDINAL There was an iron sink and a cold - water tap , but the water pressure was very low . There was no toilet bowl or any other installation in the cell , and the applicant had to use the sink for her needs . The cell was overrun with mice , rats , lice , cockroaches and fungus .

The applicant was not allowed to take any toiletries or a change of clothes with her . She was not provided with any bedding and had to sleep on a plain wooden plank bed . During DATE of her detention the applicant was not given any food or drinking water .

On DATE , in the evening , the applicant was transferred to another cell which accommodated CARDINAL other inmates . The conditions in that cell were similar to those described above . It had no windows and was lit by a single CARDINAL-watt bulb . All the inmates except the applicant were smokers but the cell was ventilated only once DATE when the detainees were taken to shower .

There was a big aluminium tank with a capacity of QUANTITY in the cell . The tank , which had no cover , was used by the cellmates as a toilet . They stretched a piece of cloth over the top to try to reduce the smell . TIME the cellmates took the tank out of the cell to the common toilet and washed it in turn using a hose with cold water . The tank was never disinfected .

The applicant was not provided with any bedding until DATE , when she received it from her family , and slept on a wooden plank bed . The detainees were taken to shower no more than once a week ; they were not given soap or any other toiletries or a change of clean underwear . During the entire period of her detention in the ORG the applicant did not have even CARDINAL opportunity for exercise , due to the absence of the necessary facilities .

DATE . The applicant was allowed to receive food from her relatives , but , in her submission , she was hardly able to eat given that she had gastrointestinal problems and because of the poor sanitary conditions in the cell . The applicant , who suffered from heart , gastrointestinal and gynaecological conditions , was prohibited from receiving any medicines which she had been taking prior to her detention from her family with the result that her state of health deteriorated . CARDINAL , following the applicant 's complaints about aggravation of osteochondrosis , the ORG authorities called an ambulance and the applicant was given pain - relieving injections .

On DATE the applicant 's representative applied to the regional prosecutor 's office , requesting the applicant 's transfer into a separate cell .

In a letter of CARDINAL DATE the regional prosecutor instructed the head of ORG of the ORG to grant this request .

In their additional observations of CARDINAL DATE the ORG stated that throughout the entire period of her detention the applicant was held in remand centre IZ-CARDINAL/CARDINAL . They therefore provided no information relating to the applicant 's alleged detention in the ORG .

The exact period during which the applicant was held in remand centre ORG subsequently IZ-CARDINAL/CARDINAL ) in GPE ( СИЗО- DATE “ the IZ-CARDINAL/CARDINAL ” ) and the conditions of her detention there are disputed by the parties .

According to the applicant , on DATE she was transferred to the IZ-CARDINAL/CARDINAL , in which she remained until DATE . The applicant corroborated her account of the conditions in the remand centre with written statements by CARDINAL of her former cellmates , dated DATE and DATE .

In their observations of DATE the Government indicated that the applicant was detained in the ORG from DATE until DATE . In their additional observations of DATE the Government submitted that in the periods from DATE until DATE and from CARDINAL March CARDINAL until DATE the applicant was held in the IZ-CARDINAL/CARDINAL .

In their original observations , the Government based the account concerning the applicant 's conditions of detention on a number of certificates issued by the head of the IZ-CARDINAL/CARDINAL on DATE . In their additional observations , in reply to the ORG 's request that the description of the conditions of the applicant 's detention be corroborated with documentary evidence pertaining to the period when she had been detained in the IZ-CARDINAL/CARDINAL , the ORG submitted a number of certificates issued by the head of the remand centre on DATE , written explanations given on CARDINAL DATE by several warders who had served in the IZ-CARDINAL/CARDINAL at the relevant time , a copy of the applicant 's medical file , and photographs of the cells which had accommodated the applicant . The certificates either describe the present - DATE conditions in the cells in which the applicant was kept or report on various aspects of the applicant 's detention at the relevant period . The warders ' written statements concern the conditions of the applicant 's detention at the relevant period . The medical file is the only document issued during the applicant 's detention . It reflects the applicant 's medical history in the GPE .

DATE . According to the applicant , DATE and DATE she was held in cell no . DATE , then she was transferred to cell no . CARDINAL in which she spent DATE , in DATE she was placed in cell no . CARDINAL where she remained until DATE , then she spent DATE in cell no . DATE , and from DATE until DATE she was kept in cell no . DATE . The Government disputed this submission . CARDINAL of the certificates of CARDINAL DATE submitted by them states that from DATE until CARDINAL DATE the applicant was held in cell no . DATE , from DATE until DATE she was kept in cell no . CARDINAL , and from DATE until DATE she was kept in cell no . CARDINAL .

In the applicant 's submission , cell no . CARDINAL measured QUANTITY and was QUANTITY high . It was designed for CARDINAL detainees . The applicant shared this cell with CARDINAL inmates . Cell no . CARDINAL also measured QUANTITY and was designed for CARDINAL detainees . It held QUANTITY inmates . The applicant shared cell no . CARDINAL measuring QUANTITY and designed for CARDINAL detainees with another cellmate . Cell no . CARDINAL measured QUANTITY and was designed for CARDINAL inmates . It accommodated the applicant and CARDINAL more detainee . The applicant shared cell no . CARDINAL measuring QUANTITY with another detainee .

According to the Government , cell no . DATE measures QUANTITY , as indicated in a certificate of DATE , and QUANTITY , as indicated in a certificate of CARDINAL DATE . The cell is intended for CARDINAL detainees , whereas the applicant shared this cell with CARDINAL cellmates . Cell no . QUANTITY measures QUANTITY and is designed for CARDINAL detainees . In the ORG 's submission , the applicant was held there alone . Cell no . CARDINAL measures QUANTITY , according to a certificate of DATE , and QUANTITY , as stated in a certificate of CARDINAL DATE . The applicant shared this cell , which could accommodate CARDINAL detainees , with another cellmate .

According to the applicant , in each cell where she was kept there was a single window . In cell no . CARDINAL the window measuring QUANTITY was partly covered with glass and partly with plywood and always remained shut , therefore there was no natural ventilation . In cells FAC . CARDINAL , CARDINAL and DATE the windows were not glazed , whereas in cell no . CARDINAL the window , also measuring QUANTITY , was only partly glazed . The applicant submitted in respect of her detention in cell no . CARDINAL that the prison authorities had repeatedly refused to accept glass for the window from her husband and had not glazed the window before DATE following numerous complaints by the applicant to the regional prosecutor 's office . In the applicant 's submission , the windows in each cell were covered with metal grilles supplemented with “ eyelashes ” , which are metal strips covering the grille . From the outside the windows were covered with wooden shields , and therefore only refracted daylight could reach inside . Each cell was only illuminated with a single CARDINAL-watt bulb .

The Government submitted that during the entire period of the applicant 's detention the windows in all the cells had been glazed and had never been covered with plywood . The size of the windows – QUANTITY in cells CARDINAL . CARDINAL and DATE , and QUANTITY in cell no . DATE was sufficient to let in enough daylight to enable detainees to read . Each window had a vent which ensured proper natural ventilation of the cells . According to the Government , the shutters had been removed from the windows in the period from DATE . As regards artificial light , the Government submitted that each cell was illuminated with a bulb of CARDINAL- up toCARDINAL-watt in DATE and with a CARDINAL bulb in the night .

According to the applicant , she was the only non - smoker in the cells where all the other detainees smoked . There was no mechanical ventilation in any of the cells . The cells were damp , with concrete floors . In DATE the temperature in the cells did not exceed CARDINAL whilst in DATE it was stiflingly hot inside and the temperature reached CARDINAL - CARDINALoC. In the ORG 's submission , each cell was equipped with mechanical ventilation and the average temperature was maintained at the level of CARDINALoC with a humidity level of MONEY . They relied on a report reflecting the results of measurement on CARDINAL DATE of temperature and humidity level in cells CARDINAL . DATE , CARDINAL and CARDINAL of the IZ-CARDINAL/CARDINAL . The report was drawn up by a regional authority for hygiene and epidemiology and indicated that the temperature in the cells ranged CARDINAL and PERSON with the humidity level ranging CARDINAL and MONEY . The ORG accepted that at least for some time the applicant had had to share a cell with smokers , but insisted that she had not endured severe suffering in this connection , given that a cell had been QUANTITY high and had had natural and mechanical ventilation . They also submitted that on DATE , at the applicant 's request , she had been transferred to cell no . CARDINAL , where she was held alone , and DATE she was transferred to cell no . DATE , which she shared with a non - smoker .

It was not in dispute between the parties that each cell was equipped with a sink and a lavatory pan , that cold running water was available around the clock and that the detainees were also regularly provided with drinking water . The ORG also submitted that detainees were provided DATE with hot water for hygienic purposes . As regards the toilet , the applicant submitted that it had had no flush system and the inmates washed it with water from a bucket . The Government stated that the toilet in cells FAC . DATE , CARDINAL and DATE had a flush system which filled with water run from a tap . The applicant also submitted that during the period of her detention in cell no . CARDINAL the toilet was not disinfected even once .

According to the applicant , the lavatory pan was separated by a partition from the sink but not from the living area and dining table . The detainees ' attempts to separate the toilet from them with curtains made of sheets were suppressed by the prison authorities . In the ORG 's submission , the sanitary installations were separated from the living area with a partition which was QUANTITY high and offered privacy . The photographs show that the lavatory pan is separated from the living area by a thick partition and that in cells CARDINAL . CARDINAL and DATE there is also a curtain in front of the pan .

According to the applicant , the cells were overrun with cockroaches , mice and rats . The Government stated that all the cells were disinfected twice a month during DATE and once DATE in DATE .

The parties did not dispute the fact that throughout the period of the applicant 's detention in the IZ-CARDINAL/CARDINAL she had had a personal sleeping place . According to the applicant , she was provided with a mattress , although it was of poor quality , and was allowed to take her own warm blanket , pillow and bed linen . The Government insisted that the prison authorities had provided the applicant with bedding , including a mattress , a pillow , a semi - woollen blanket , CARDINAL sheets , CARDINAL pillowcases and a towel , and that she had signed for these in a register of provision of detainees with bedding . They did not submit the document relied on . A certificate of CARDINAL DATE indicates that the relevant documentation can not be provided , since the time - limit for its storage does not exceed DATE . According to the Government , the bed linen was changed DATE .

The parties further agreed that the applicant was allowed to take a shower once DATE for TIME . The applicant alleged , however , that she had to wash herself , along with CARDINAL other detainees , using wash - basins in a room measuring QUANTITY which adjoined another room measuring QUANTITY . The latter room was equipped with CARDINAL showers . According to her , the cellmates were provided with QUANTITY of soap per week .

According to the applicant , the detainees were allowed exercise less than once a day for a period of TIME . During the period of her detention in cell no . CARDINAL she was taken for outdoor exercise on CARDINAL occasions into a courtyard measuring MONEY . At the same time CARDINAL detainees were walking in the courtyard . Each walk lasted TIME . The Government insisted that the applicant was allowed to take a walk DATE for TIME during TIME .

In the applicant 's submission , the scarce meals were of poor quality , but the prison authorities only allowed her to receive bread and flour products , sugar and tea from her family . She was not allowed to receive any dairy products , fish , meat or juices , which , according to the applicant , she needed in view of her gastrointestinal problems , or any other products such as jam or honey . According to the ORG , the applicant , like all the other detainees , was provided with meals CARDINAL times a day and received a well - balanced menu . In particular , she received daily QUANTITY of cereals , QUANTITY of noodles , QUANTITY of meat , QUANTITY of fish , QUANTITY of fats , QUANTITY grams of seed - oil , QUANTITY of sugar , QUANTITY of potatoes , QUANTITY of vegetables and QUANTITY of bread . A certificate of CARDINAL DATE states that the relevant documentation can not be provided , as it had been destroyed .

According to the applicant , before her placement in custody she had been suffering from heart , gastrointestinal and gynaecological conditions . In support of her submissions , she relied on medical documents confirming that she had undergone treatment in respect of those conditions in DATE . In particular , a certificate issued in DATE states that in DATE the applicant was diagnosed with hypertension and ischaemic heart disease and a certificate of DATE confirms that the applicant had her gall bladder removed in DATE . There is also a certificate stating that the applicant was diagnosed with hysteromyoma .

The applicant further submitted that her health had deteriorated during her detention . In particular , she started suffering from gastritis , conjunctivitis , myopia and contracted a facial dermatological disease , demodicosis . The applicant adduced a copy of an extract from her medical file dated DATE and medical documents of CARDINAL DATE and DATE confirming the presence of those diseases . In the applicant 's submission , when in custody she repeatedly complained to the authorities about her poor state of health and requested an independent medical examination . She submitted copies of her written requests to various authorities .

NORP In particular , on DATE the applicant requested the head of the IZ-CARDINAL/CARDINAL that she receive an independent medical examination .

On DATE the applicant complained to the regional prosecutor that the medical examinations carried out in the IZ-CARDINAL/CARDINAL were inadequate , that her medicines had been taken away and that the authorities had failed to have her independent medical examination carried out . She also complained that she had to share a cell with CARDINAL other detainees , all of them smokers , and that although the cells were severely infested with cockroaches the prison authorities made no attempts to exterminate them .

In a letter of CARDINAL DATE the regional prosecutor 's office informed the applicant about regulations which provided that medicine prescribed to suspects should be kept by a duty officer and taken by patients in the presence of that officer . In respect of the applicant 's request to order an independent medical examination , the letter stated that there was no such obligation on the authorities . Lastly , the applicant was invited to address her complaints concerning sanitary conditions in the cell to the administration of the GPE or to the administration of ORG .

In her complaint of CARDINAL DATE concerning the extension of her pre - trial detention ( see paragraph CARDINAL above ) the applicant referred , inter alia , to poor conditions of her detention , stating that she was being kept in a poorly lit cell with smokers , that her sight had deteriorated , that her medicines had been seized and that she had not received adequate medical treatment and had been refused an independent medical examination .

On DATE the applicant sent another complaint to the regional prosecutor , in which she again mentioned the authorities ' failure to have her independent medical examination carried out and complained of deterioration of her sight , high blood pressure and aggravation of her health problems .

In DATE the applicant suffered from an inflammatory condition on her face which , according to her , proved to be demodicosis . In her submission , the treatment she received from prison doctors was ineffective . On CARDINAL and DATE the applicant sent complaints to the head of the regional ORG and the regional prosecutor in which she informed them that she was in need of urgent professional medical treatment for her acute facial condition , which could not be administered to her in the remand centre , and requested that she either be examined by specialists in connection with that condition , or admitted to a hospital for inpatient treatment .

On DATE the applicant complained in writing to the head of the IZ-CARDINAL/CARDINAL that there was no adequate medical assistance in connection with her heart condition and that medicines for injection and syringes which had been delivered by her family members had been taken away . She also mentioned that the cell in which she was being held was never ventilated .

On DATE the applicant , with reference to her heart , gastrointestinal and gynaecological problems and the deterioration of her health in detention , requested the Yuzhno - Sakhalinsk Town Court to order an independent medical examination . On DATE the applicant forwarded a similar request to the head of the IZ-CARDINAL/CARDINAL .

On DATE the head of the IZ-CARDINAL/CARDINAL sent a written request to ORG to allow an independent medical examination of the applicant .

According to the applicant , despite numerous requests , she had no proper medical treatment and her medicines were taken from her by the prison authorities . In DATE the prison authorities accepted from the applicant 's relatives medicines for treatment of heart diseases and disposable syringes . However , according to the applicant , she was not administered any injection until DATE after her numerous complaints to the authorities . In the ORG 's submission , all the medicines received by the prison authorities from the applicant 's relatives were delivered to the applicant , except for medicines for injection and syringes .

A copy of the applicant 's medical file made during her detention in the GPE submitted by the Government reveals the following .

On DATE , on the applicant 's arrival at the remand centre , she underwent a medical examination which established that she was fit . During the examination the applicant stated that her gall bladder had been extracted and complained of pain in the small of her back . She made no other complaints .

On DATE a duty paramedic attended the applicant in the cell , at her request . The officer took the applicant 's blood pressure .

On DATE , upon the applicant 's complaint of slight headaches and some bleeding from the ears , she was examined by a general practitioner and diagnosed with vegetative - vascular dystonia . The applicant was prescribed and administered medication .

On DATE the applicant was received by the head of the IZCARDINAL/CARDINAL medical office in connection with her complaint that her medicines had been taken away . Some of the medicines were returned to her . The head of the medical office also took the applicant 's blood pressure .

On DATE the applicant was examined by a medical commission of ORG of ORG , including a general practitioner and a surgeon . She complained of pain in the right pre - costal area and constipation . The applicant was diagnosed with biliary dyskinesia and prescribed pain - relieving medicines . Her general state of health was found to be satisfactory .

On DATE the applicant 's blood pressure was measured .

On DATE the applicant refused to undergo a gynaecological examination by a gynaecologist from the city maternity and gynaecology hospital , stating that the person assigned to carry it out was incompetent . She insisted on an independent gynaecological examination as well as examinations by a dermatologist and an ophthalmologist .

On DATE the applicant was examined by the head of the ophthalmological department of the regional hospital , diagnosed with slight myopia and prescribed glasses .

On DATE the applicant was examined by a duty paramedic in connection with the inflammation of her face . She was diagnosed with allergic dermatitis and prescribed antihistamine pills and ointment .

DATE the applicant was examined by a psychiatrist in connection with her complaints of insomnia and itching and eruptions on her face . The doctor concluded that she was “ almost fit ” .

NORP On CARDINAL DATE the applicant was examined by a duty paramedic in connection with her complaints of nausea , weakness and shooting pains in the heart area . She was diagnosed with presumed cardio neurosis and prescribed relevant treatment .

On DATE , upon the applicant 's complaint to the effect that she was unable to take part in a court hearing scheduled for DATE because of her poor physical condition , she was examined by a general practitioner who concluded that she was fit .

On CARDINAL DATE the applicant was examined by a dermatologist in connection with her complaint of eruptions on her face . She was diagnosed with allergic dermatitis and prescribed antihistamines , vitamins and ointments .

On DATE the applicant was examined by a general practitioner who diagnosed her with presumed osteochondrosis and premenopausal syndrome and prescribed relevant treatment .

On DATE the applicant was examined by the head of the IZCARDINAL/CARDINAL medical office , who concluded that her dermatological condition was satisfactory .

DATE the applicant was examined by a dermatologist who also confirmed that she was fit .

On DATE the applicant had a conversation with the head of the IZ-CARDINAL/CARDINAL medical office as regards the administration of medicines for treatment of heart disease received from the applicant 's family members . The applicant was invited to undergo an electrocardiographic monitoring necessary prior to the administration of that medicine , but she refused the monitoring , stating that the device was outdated .

On DATE the applicant was attended and examined by the head of the Tselitel medical centre , who concluded that the applicant was suffering from premenopausal syndrome and suggested that she undergo treatment with hormonal medicines .

On DATE the applicant was examined by a general practitioner , who diagnosed her with influenza and administered relevant treatment .

On DATE the applicant was examined by a general practitioner , who found that she had post - cholecystectomy syndrome . She was prescribed relevant treatment .

On DATE the applicant was examined by a duty paramedic as she stated that she had been on hunger strike since DATE . The paramedic weighed the applicant and took her blood pressure . Her physical condition was found to be satisfactory .

On DATE a general practitioner examined the applicant , took her blood pressure and , at the applicant 's request , prescribed her the medicines which had been delivered by her family members .

On DATE the applicant was examined by a general practitioner and diagnosed with influenza . Relevant treatment was prescribed .

On DATE the applicant was examined by a duty paramedic in connection with her complaint of headaches and weakness . The paramedic found that she had vegetative - vascular dystonia and recommended relevant treatment .

On DATE a general practitioner diagnosed the applicant with acute laryngotracheitis and prescribed relevant treatment .

On DATE the applicant was attended and treated by a general practitioner in connection with pharyngitis and vegetative - vascular dystonia .

On DATE the applicant was examined by a general practitioner , diagnosed with acute tracheobronchitis and prescribed relevant treatment .

On DATE the applicant was attended and treated by a general practitioner in connection with protracted tracheitis . On DATE the general practitioner again examined the applicant and recommended that the treatment be continued .

On DATE the applicant was examined by a general practitioner and diagnosed with follicular tonsillitis . Relevant treatment was prescribed . On DATE she was attended by a duty paramedic who recommended that she continue with the treatment .

During the period of her detention in remand centre IZ-CARDINAL/CARDINAL the applicant underwent fluorography examinations on CARDINAL occasions ; the examination disclosed no pathologies .

On DATE the investigator in charge ordered the seizure of the applicant 's flat pending trial .

On DATE a deputy regional prosecutor rejected the applicant 's complaint against the investigator 's order .

On DATE the applicant applied to a court , stating that the flat in question was the only housing for her family and therefore was immune from seizure .

On DATE the Yuzhno - Sakhalinsk Town Court found in the applicant 's favour and lifted the seizure .

On DATE , on an appeal by the regional prosecutor , ORG quashed the above judgment and remitted the case to the first - instance court .

It appears that , following the applicant 's conviction , on DATE , ORG lifted the seizure of the applicant 's flat in a separate set of proceedings . The court noted that this apartment was the permanent place of residence for the applicant 's family and was not subject to confiscation .

On DATE ORG discontinued the proceedings on the applicant 's action of DATE , since she had waived her claims .

Article CARDINAL ( Taking into custody ) provides that taking into custody as a measure of restraint may be imposed in cases concerning criminal offences punishable by law with DATE imprisonment . The LAW also refers to a number of serious criminal offences , including embezzlement , and provides that in respect of persons charged with those offences , taking into custody as a preventive measure may be applied on the sole ground of the danger presented by the criminal offence committed .

Article CARDINAL ( Periods of detention ) provides that the duration of detention during the investigation of criminal cases may not exceed DATE . This period may be extended by a relevant prosecutor to DATE , and further detention can be authorised by a regional prosecutor ( or a prosecutor of equal rank ) to up to a maximum of DATE . Extension of detention beyond DATE is allowed in exceptional cases only with regard to persons charged with serious criminal offences , and can be authorised by a deputy Prosecutor General for a period of DATE , and by ORG for a period of up to one and a half years . Further extension of detention is not allowed : the person must be released immediately .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant is the owner of a flat in GPE , which had been let to GPE

In a writ served on the tenant on DATE , the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .

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

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

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

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

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

On DATE , the applicant repossessed the premises .

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


The applicant , ORG , is an NORP national , who was born in DATE and currently lives in GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE . At the time she lodged the application , she was serving her term of imprisonment .

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

On DATE she was arrested by the police on suspicion of fraud . At the police station , she was searched and interrogated . She was allegedly forced to make false accusations against herself , as dictated by the police officers . Furthermore , she was asked to sign a document regarding her arrest . She refused to sign the document as , being a NORP speaker , she was unable to read and understand the text of the document properly . CARDINAL of the police officers signed the document on her behalf .

On DATE the local court issued an order for her detention on remand . Throughout the period of detention , the applicant was not provided with a lawyer of her choice and received communications solely in NORP , a language of which she allegedly understands PERCENT . She was also refused the assistance of an interpreter .

On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment . She was convicted of fraud under ORG CARDINAL and CARDINAL of LAW .

The applicant appealed against this decision to ORG . She claimed that ORG decision failed to reflect the factual elements of the case ; nor did it take into account the mitigating circumstances . Claiming that the decision was unfair , she asked ORG to reconsider the judgment .

On DATE ORG upheld ORG decision as regards the finding of a guilt , but reduced the applicant ’s term of imprisonment to DATE . The applicant did not agree with this outcome and lodged a cassation appeal before ORG . Claiming total innocence , she asked for acquittal .

On DATE ORG dismissed the applicant ’s request and upheld ORG decision . It held that ORG conclusions were in accordance with the law and that the decision was fair and justified . ORG found no legal grounds for changing the Appeal Court ’s decision .

The applicant lodged an additional appeal asking reconsideration of her case by ORG Plenary . She insisted that she had not committed any crime and that she should be acquitted .

On DATE the Chairman of ORG rejected the applicant ’s request and refused to bring the case to the Plenary ’s consideration . The Chairman stated that all decisions of the appeal and cassation courts were based on and taken in accordance with the law . There was no legal ground either to quash or confirm and , furthermore , no point in bringing the case before the Plenary .


CASE OF KRUMPEL AND KRUMPELOVA v. SLOVAKIA

Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicants are spouses . They were born in DATE and DATE respectively and live in GPE .

NORP In DATE the applicants concluded a contract with PERSON , the owner of a building company . PERSON undertook to sell a plot of land to the applicants and to build a family house for them . The applicants paid CARDINAL NORP korunas ( SKK ) to PERSON

M. failed to comply with the contract . The applicants therefore revoked it on DATE .

On DATE the applicants sued the company of ORG before PERSON . On DATE the court discontinued the proceedings as the applicants had not paid the court fee .

NORP In DATE criminal proceedings were brought against PERSON as he was suspected of fraud . The applicants declared that they wished to claim damages from PERSON in the context of the criminal proceedings .

On DATE the applicants sued PERSON for damages before ORG . On DATE ORG discontinued the proceedings . The decision stated , with reference to LAW of ORG , that the applicants had also claimed damages in the context of the criminal proceedings against PERSON and that those criminal proceedings were pending . On DATE an appellate court dismissed the applicants’ appeal .

In the meantime , on DATE , a public prosecutor froze property of ORG ’s company , the value of which corresponded to SKK CARDINAL , with a view to securing the claims of CARDINAL aggrieved persons .

On DATE CARDINAL PERSON ’s mother returned SKK CARDINAL,CARDINAL to the applicants . In a written statement of CARDINAL DATE PERSON admitted his debt in respect of the applicants .

NORP In DATE the charges against M. were enlarged to comprise economic offences which had no bearing on the applicants’ claim and which the accused had allegedly committed in the context of the dissolution of the former NORP and GPE .

Following the enlargement of the charges against PERSON his bank account was blocked in the context of the criminal proceedings .

The Government submitted that the sum blocked amounted to SKK CARDINAL .

The applicants submitted , with reference to an article published in a DATE , that ORG had given his consent , in DATE , to unblock the account in which approximately SKK CARDINAL millions had been deposited . The article further states that most of the money had subsequently been transferred abroad . In another article published in the same weekly ORG confirmed that he had intended to start disciplinary proceedings against ORG in that regard . However , the prosecutor had resigned from his post .

On DATE ORG indicted PERSON before ORG . On DATE ORG returned the case to the public prosecutor for further investigation .

On DATE , the applicants made a written submission to ORG which was dealing with the criminal charges against ORG interpreted the submission as a civil claim for damages and transferred it to ORG .

A new indictment against PERSON was filed with ORG on DATE . The indictment concerned numerous offences and , in addition to PERSON , CARDINAL other persons .

On DATE the criminal judge decided to deal separately with several aspects of the case , including those which were relevant for the determination of the applicants’ claim .

On DATE a ORG judge informed the applicants , in reaction to their above submission of DATE , that criminal proceedings against PERSON were still pending and that LAW prevented the court from dealing with a civil action for damages in the same case . The applicants were invited to inform the court whether they maintained their action and were instructed how to rectify formal shortcoming in their submission .

In a letter of CARDINAL DATE the applicants replied that their above letter of DATE had been meant for the judges dealing with the charges against PERSON and that they were aware that they could not have separate civil proceedings for damages brought against PERSON as the criminal proceedings against him were still pending .

In the meantime , on DATE , the applicants complained to ORG about a violation of their right to a hearing without unjustified delay .

On DATE the Považská Bystrica ORG judge informed ORG about the contents of her above letter to the applicants of CARDINAL DATE . No reference was made to the applicants’ reply of DATE .

On DATE ORG dismissed the complaint as being manifestly ill - founded . The decision states :

“ It follows from ... the submission of ORG that , at present , proceedings are pending before it upon the initiative of the [ applicants ] ... The subject - matter of those proceedings is the claim for damages against [ M. ] which the applicants have also submitted in the context of the criminal proceedings before ORG . The applicants therefore have , provided that they overcome the obstacle of litis pendens and bring their [ civil ] action in compliance with the formal requirements as instructed by ORG , a different effective remedy at their disposal in the context of proceedings before a civil court ...

In ORG view , an action for damages is an effective remedy in respect of [ the applicants ] , as a [ civil ] claim for compensation by persons who have suffered damage may form the basis of their own case in respect of which ( unlike persons who join criminal proceedings with a claim for damages ) they enjoy the guarantee of ... a hearing without undue delay ...

It follows that the alleged failure of ORG to proceed with [ the criminal case against PERSON ] speedily can have no bearing on the applicants’ constitutional right to a hearing without undue delay ... In the circumstances , it is the applicants’ claim for damages which is to be considered as their case ; determination of such a claim is not the purpose of the criminal proceedings and , in addition , the applicants can claim damages before a civil court provided that they comply with the statutory requirements ... ”

On DATE ORG convicted PERSON in proceedings concerning the charges which were not related to the ORG claim . PERSON was sentenced to CARDINAL years’ imprisonment and the court ordered him to compensate MONEY to ORG . The convicted persons appealed and the proceedings are pending before ORG .

NORP ORG is expected to start determining the remaining charges against PERSON ( which concern fraud in respect of CARDINAL individuals including the applicants ) in the course of DATE .

Article CARDINAL ) and ( CARDINAL ) provides , inter alia , that a person who has suffered damage , as a result of a criminal offence , can claim compensation from the accused person and request that the court , in a judgment convicting the accused person , order the latter to compensate for such damage .

NORP In criminal cases falling within the jurisdiction of regional courts , the court decides , according to the nature of the matter under consideration , whether or not an injured person should be allowed to participate in the proceedings ( LAW ) ) . Such decision is taken , as a rule , at the main hearing . In accordance with ORG case - law , an injured party may be prevented from participating in the proceedings for important reasons only , for example where it is required for protection of a ORG secret .

Article CARDINAL(CARDINAL ) provides that a claim for damages may be secured , up to an amount corresponding to the estimated damage , on the property of the accused where a justified fear exists that compensation for damage caused as a result of an offence will be jeopardised or rendered difficult .

Pursuant to LAW ) , where a court convicts the accused person of an offence as a result of which damage to third persons was caused , it shall , as a rule , order the convicted person to compensate for such damage , provided that the relevant claim was filed in time .

Under LAW ) , a criminal court shall refer a person claiming damages to a civil court where the evidence available is not sufficient for determining that claim or where the taking of further evidence exceeding the scope of the criminal case is required and the criminal proceedings would be thereby unduly prolonged .

Article CARDINAL of the Code of Civil Procedure provides that , once proceedings have been brought , no other judicial proceedings can be instituted in the same matter .

In accordance with ORG practice under this provision , the filing of a claim for damages in the context of criminal proceedings is to be considered as the bringing of proceedings , within the meaning of the relevant provisions of LAW , and it constitutes an obstacle of litis pendens where a civil action is filed after the corresponding claim has been submitted in the context of criminal proceedings ( ORG Decisions and Opinions , CARDINAL , p. CARDINAL ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr M. Ekimdjiev , a lawyer practising in GPE . The respondent Government were represented by PERSON , co - agent of ORG .

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

At TIME on DATE the applicant and another person were arrested in the home of a person who had called the police indicating that the CARDINAL were trying to steal from his car . After his arrest the applicant was taken to the regional police department in GPE , where he was placed in police custody for twentyfour TIME .

The applicant alleges that when he was brought to the police department , several police officers started to shout at him , to kick his legs and to hit him in the stomach and in the kidneys . When he said that “ [ he did not ] know about any thefts ” , CARDINAL police officer started to beat his head and back with a rubber hose . The others joined him with truncheons . Then the applicant was thrown to the ground and kicked .

The applicant further submits that at TIME he was brought for questioning to a room on the third floor of the police department . When he denied involvement in the commission of the alleged thefts the CARDINAL officers who were questioning him began to hit him with wooden bats . He sustained blows all over his body , fell on the floor and tried to hide under a table . The CARDINAL officers then started kicking him . CARDINAL kick in the face allegedly broke CARDINAL of his teeth .

DATE , CARDINAL DATE , criminal proceedings were opened against the applicant . The investigator who opened the proceedings ordered that the applicant be placed in pre - trial detention . Thereafter the applicant was transferred to a pre - trial detention facility , upon the admission to which he was examined by a paramedic . According to the report drawn up by the paramedic , the examination took place at TIME The paramedic noted that the applicant did not state that he had any ailments and stated that he had no medical complaints . The applicant signed the report . The applicant alleges that in fact the paramedic refused to describe his injuries , because he was not sure whether they had been sustained while the applicant had been in police custody or before that .

The applicant alleges that in DATE he had to ask his relatives to provide him with analgesics , as his jaw had swelled and he was experiencing pain in the area of the broken teeth .

Finally , the applicant alleges that , since the medical facilities in the pretrial detention centre and in the prison , where he was transferred on DATE , lacked the necessary material , the broken teeth could not be treated and had to be removed .

In an undated written statement , apparently prepared for the purposes of the proceedings before the ORG , the person who was arrested with the applicant on DATE and co - accused with him submits that the applicant and himself were beaten by police officers immediately after their arrest . He also submits that he was later refused examination by a doctor . A police officer with whom he talked DATE told him that the applicant had also been seriously beaten . Lastly , he submits that at a confrontation on an unspecified date he saw that the applicant was “ swollen and blue ” and that the applicant had told him that he had been beaten in room no . CARDINAL on the third floor of the police department .

The documents in the case file indicate in that CARDINAL confrontation between the applicant and his coaccused took place on DATE .

A medical certificate issued by a GPE dental clinic on DATE indicates that on DATE the applicant underwent surgical treatment for an abscess of the soft tissues of the upper jaw .

A medical certificate issued by the prison authorities on DATE indicates that the applicant underwent extraction of teeth roots as follows : root of the CARDINALth upper left tooth extracted on DATE ; root of the CARDINALth lower right tooth extracted on DATE ; roots of the CARDINALth and CARDINALth upper left teeth extracted on DATE ; roots of the CARDINALth and CARDINALth upper right teeth extracted on DATE ; and root of the CARDINALrd upper right tooth extracted on DATE .

On DATE , after he was acquainted with the charges against him , the applicant was questioned by an investigator in the presence of counsel . He stated that he understood the charges and wished to exercise his right to remain silent . He did not make any reference to being illtreated after his arrest .

When the applicant was questioned by the same investigator on DATE , he stated the following : “ PERSON [ the applicant ’s coaccused ] and I were taken to the police station . Beside PERSON I got a licking as well . ” The applicant , who was assisted by counsel during the questioning , did not elaborate on that statement and did not provide any further details .

On DATE the applicant ’s father filed an appeal against the applicant ’s pretrial detention with ORG , with a copy to ORG . The appeal was returned , as it was not filed by the detained person or a duly authorised representative . On the second page of the document the applicant ’s father stated as follows : “ ... according to our son , as well as to other sources , ... he had been illtreated on the third floor , room no . CARDINAL , where he had been beaten by [ S.B. ] and another police officer , because he would not admit of having thieved ” .

Section CARDINAL(CARDINAL ) of LAW , as in force at the material time , read , as relevant :

“ ... police [ officers ] may use ... force ... when performing their duties only if they [ have no alternative course of action ] in cases of :

NORP resistance or refusal [ by a person ] to obey a lawful order ;

NORP arrest of an offender who does not obey or resists the police authorities ;

NORP attack against citizens or police [ officers ] ; ... ”

Section CARDINAL(CARDINAL ) provided that the use of force had to be commensurate to , inter alia , the specific circumstances and the personality of the offender . Section CARDINAL(CARDINAL ) imposed upon police officers the duty to “ protect , if possible , the health ... of the persons against whom [ force was being used ] ” .

Articles CARDINAL , CARDINAL and CARDINAL of LAW ( “ the ORG ” ) make it an offence to cause a light , intermediate or severe bodily injury to another . LAW ) provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties the offence is an aggravated one . This offence is a publicly prosecutable one LAW ) .

Article CARDINAL of the ORG makes it an offence for an official to engage , in the course of or in connection with the performance of his or her duties , in illegal coercive action towards an accused in order to extract a confession . This offence is likewise publicly prosecutable .

Under NORP law criminal proceedings for publicly prosecuted offences can be opened only by the decision of a prosecutor or of an investigator ( LAW ( “ the ORG ” ) ) . The prosecutor or the investigator must open an investigation whenever he or she receives information , supported by sufficient evidence , that an offence might have been committed ( Articles CARDINAL , CARDINAL and CARDINAL of the ORG ) . During the relevant period the ORG provided that if the information to the prosecuting authorities was not supported by evidence , the prosecutor had to order a preliminary inquiry ( verification ) in order to determine whether the opening of a criminal investigation was warranted ( LAW .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

“ ORG in GPE brought a civil case against the applicant before ORG . It sought a judgment obliging her to sell to the co - operative a number of plots of land which had been de facto occupied by the co - operative for a long period of time .

By a judgment of DATE the ORG dismissed the claim . It held that the applicable provisions of LAW provided for an obligatory sale of land occupied de facto by housing co - operatives only where a co - operative had erected buildings thereon . In the present case , the plaintiff co - operative had built roads and parking areas on the land concerned .

NORP The plaintiff cooperative appealed .

By a judgment of CARDINAL DATE ORG allowed the appeal , quashed the first - instance judgment and remitted the case . It was of the view that the first - instance court had erred in the application of LAW of the Co - operatives Act . It had wrongly held that an obligatory sale could be ordered to the benefit of a housing co - operative only with respect to land owned by third parties on which a co - operative had had houses built . The court was of the opinion that such a sale could also be ordered when a co - operative had built infrastructures other than houses .

Judge PERSON sat on the bench of ORG as judge rapporteur .

The applicant ’s case was subsequently examined again . The Opole Regional Court allowed the plaintiff ’s claim and ordered the applicant to sell QUANTITY . metres of land to the co - operative . It found that the plaintiff co - operative had built a housing estate in the vicinity of the applicant ’s land and also partly on her land . Parking areas and roads had been built on the land belonging to the applicant . Section CARDINAL of ORG operatives LAW provided for the compulsory sale of privately owned land occupied de facto by co - operatives .

NORP The applicant appealed . She argued that the court had erred in applying the substantive law in her case . LAW provided for a claim for compulsory sale only where ORG had built houses on privately owned land . The legal interpretation of this provision by the court breached the principle that exceptions had to be interpreted narrowly . She further argued that the judgment ordering her to sell her land was in breach of LAW No . CARDINAL to the Convention .

On DATE ORG dismissed the appeal , endorsing the legal view expressed in the judgment of CARDINAL DATE .

The applicant lodged a cassation appeal against this judgment with ORG . She reiterated the same argument which she had already raised in her appeal and emphasised that the courts had erroneously interpreted substantive law in her case . She submitted that section CARDINAL of ORG operatives LAW allowed for a compulsory sale of privately owned land only where a co - operative had built houses on it . The court had erred in that it held that this provision should , by analogy , also be applied to roads , parking areas and similar infrastructure . This interpretation resulted from the functional interpretation of this provision according to which its purpose was to make it possible for housing co - operatives to acquire ownership of land owned by third parties . Thus , the courts had held that it would be inconsistent with that object and purpose to allow a claim for a compulsory sale order against the owner only with respect to the land on which houses had been built . The applicant argued that this approach , which disregarded the literal and clear text of the provision concerned and resorted instead to a functional interpretation , was unlawful .

She also invoked LAW No . CARDINAL to the Convention and submitted that her property rights had been excessively and unlawfully restricted by the compulsory sale order .

The cassation appeal was examined by ORG sitting in camera on DATE . Judge PERSON ( see paragraph CARDINAL above ) , who had in the meantime been promoted to ORG , sat on the bench . The court was of the view that the gist of the cassation appeal concerned the interpretation of section CARDINAL of ORG operatives LAW and that the case turned on the interpretation to be given to this provision . It agreed with the legal view expressed on both occasions by ORG and dismissed the applicant ’s cassation appeal .

By a judgment of CARDINAL DATE the Opole ORG awarded the applicant compensation in the amount of ORG CARDINAL,CARDINAL for the use of her land by the local energy company which had in the past built installations ( a pipeline ) on her land . The company appealed .

By a judgment of DATE ORG quashed the first - instance judgment and dismissed the applicant ’s claim .

The applicant lodged a cassation appeal with ORG , complaining that the electricity company had been using her property for DATE without paying any compensation .

By a decision of DATE , served on the applicant ’s lawyer on DATE , ORG refused to accept her cassation appeal for examination .

Article CARDINAL of the Code of Civil Procedure lists the grounds on which a cassation appeal ( skarga kasacyjna ) can be lodged . It reads , in so far as relevant , as follows :

“ CARDINAL . The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Article CARDINAL of the Code of Civil Procedure provides that a request for re - opening of civil proceedings can be based on invalidity of proceedings caused , inter alia , by an improper composition of the court or on the participation of a judge who was disqualified by law from sitting on the bench .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lived in GPE . In DATE the applicant died and his sister , PERSON , indicated that she wished to pursue the case .

On DATE the applicant was apprehended at the GPE border crossing point on suspicion of drug trafficking . On DATE the applicant 's car , which he had been driving at the time , was seized together with his belongings , documents and money which were in it . The customs officers refused to compile an inventory of objects seized from the applicant . Subsequently , ORG transferred the car to a private company called Forum for storage .

On DATE ORG sentenced the applicant to DATE imprisonment for drug trafficking and confiscated all of his property .

On DATE ORG modified that judgment , sentencing the applicant to DATE imprisonment , suspended , without confiscation .

On DATE the applicant approached Forum to ask for the return of his car . When the car was returned , the applicant noted that it had been seriously damaged and lacked several parts , the documents and belongings had been torn up and his money had disappeared . According to the company , ORG had transferred the car in that condition on DATE .

On DATE the applicant instituted proceedings in ORG against ORG seeking compensation for pecuniary and non - pecuniary damage and stating that the defendant had failed to comply with its obligation to keep his property undamaged and without loss .

NORP On DATE the court partially allowed the applicant 's claims and awarded him part of the compensation claimed .

On DATE ORG quashed that judgment and remitted the case for fresh consideration to the same court .

On DATE ORG rejected the applicant 's claims as unsubstantiated .

On DATE the prosecutor 's office initiated criminal proceedings against CARDINAL customs officers , PERSON , following a request from the applicant in which he alleged that these persons were responsible for the damage to his car and belongings .

On DATE the Presidium of ORG quashed the judgment of CARDINAL DATE at the request of the prosecutor 's office and remitted the case for fresh consideration to the first - instance court .

On DATE ORG suspended the civil proceedings pending the outcome of the criminal proceedings against Mr PERSON and PERSON

The criminal investigation in the criminal case against PERSON and Mr C. is still pending .

On an unspecified date following the applicant 's death , his mother , PERSON , and daughter , PERSON , joined the civil proceedings as the applicant 's successors . They are represented before the domestic court by PERSON , the applicant 's sister .

According to PERSON , in DATE the hearings in the civil case in question resumed and the case is currently pending before the first instance court .


The applicant is a NORP national , born in DATE and living in GPE .

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

A.

On DATE , CARDINAL and DATE , the police of PERSON searched the LOC of the applicant ’s limited liability company PERSON and his home . The warrant indicated that the search was to take place at the address of the aforementioned company , on the premises of “ other companies ” at the same address and at the applicant ’s home address . The search also concerned the company ’s computers . It aimed at collecting evidence relating to an aggravated fraud and a book - keeping offence suspected to have been committed by the applicant DATE and DATE . Certain material was seized , of which a record was drawn up . On DATE , part of the seized material was returned to the applicant .

On DATE , the applicant lodged a petition with ORG ( eduskunnan oikeusasiamies , riksdagens ombudsman , hereinafter “ the Ombudsman ” ) concerning the search on CARDINAL and DATE . He requested that the ORG investigate whether the economic crime investigators of ORG had acted in accordance with law and good practice . Furthermore , he requested that the ORG take proper action in order that the police be held liable for the legal consequences . He stated that the police seized , for the purpose of copying , CARDINAL files with personal documents , of which CARDINAL had been returned . He drew attention to the dates indicated in the search warrant . He stated that , although not mentioned in the search warrant , he had been informed orally that the suspicions concerned aiding and abetting economic crime involving PERSON , a company he had been advising as an accountant and tax adviser .

The applicant ’s petition contained CARDINAL subheadings regarding the search and seizure . Firstly , he complained that the investigators had misbehaved . Secondly , he submitted that the seized documents did not pertain to the crime under investigation . As an example , he gave a private letter to the secretary of a political party , dated DATE . Thirdly , he maintained that CARDINAL of the police officers had read correspondence , sent by telefax , between himself and his lawyer , dated in DATE and in DATE . Furthermore , that officer had perused his calendar for DATE and his notebook . Fourthly , he stated that the police had seized , by copying , a considerable amount of computerised information , which was not relevant to the crime under investigation . Lastly , he pointed out that the seized material was required for his DATE business . He requested that the ORG order the police to return all the seized material and to destroy all the copies thereof .

In DATE , the ORG asked the officers concerned , and their superiors , to give their comments on the petition . He received their answers by DATE . According to the statement given by ORG of ORG , the goal of the search had been to find documents and bookkeeping material relating to an economic crime under investigation . The material did not contain any documents which could not be seized and used as evidence . One of the officers had read a telefax message between the applicant and his lawyer “ in order to verify that it concerned only the trial pending ” against the applicant at the time and not “ the offence under investigation ” . Moreover , the lawyer in question had not been assisting the applicant before the court during the then pending trial . The telefax had not been seized .

By DATE , the rest of the seized material was returned to the applicant .

On DATE , the applicant supplemented his petition to the ORG with a written statement given by an officer of ORG . On DATE , the officer had questioned the applicant as a witness in a case involving CARDINAL companies other than the company mentioned in the search warrant . The officer confirmed that he had then presented to the applicant written material that the officers of ORG had obtained , on DATE , during the search of the applicant ’s office “ relating to another pre - trial investigation ” . ORG The applicant submitted that the use of the seized material in connection with other investigations was not acceptable . He maintained , referring to the Niemietz v. GPE case ( ORG v. GPE judgment of DATE , Series A no . CARDINAL-B ) , that the seizure amounted to a violation of his human rights . He further complained that since the search had been reported in local DATE papers , his commissions had reduced , causing considerable financial losses to his business . He renewed his request concerning , firstly , a charge of an offence in office and , secondly , the destroying of the seized material .

The applicant was charged with aiding and abetting an offence of debtor ’s dishonesty and a bookkeeping offence . The court proceedings started on DATE . He was acquitted on both counts .

On DATE , the Deputy ORG , referring to the comments made by the officers concerned and their superiors , found no reason to suspect that the measures taken in connection with the search and seizure had been either unlawful or otherwise incorrect . Therefore , she found that the petition did not require any further steps on her part .

The applicant has not challenged the seizure before the court of first instance under LAW , LAW , of ORG DATE ( pakkokeinolaki , tvångsmedelslagen CARDINAL/CARDINAL , hereinafter “ LAW ” , see relevant domestic law ) . He has also not instituted any proceedings concerning a claim for damages as he has stated that he is not yet able to estimate the amount of the possible damages .

B. Relevant domestic law and practice

Under chapter CARDINAL , section CARDINAL , of LAW , an object may be seized where there are reasons to presume that it may serve as evidence in criminal proceedings . According to chapter CARDINAL , section CARDINAL , a record shall be kept of the seizure . The purpose of the seizure and the measures taken shall be duly recorded and the seized objects listed therein . According to chapter DATE , section CARDINAL , a seizure shall be rescinded as soon as it is no longer necessary . The seizure shall also be rescinded if no charges are brought for the offence leading to the seizure within DATE of the date of the seizure of the object . Under chapter CARDINAL , section CARDINAL , a search may be carried out for the purpose of finding the object to be seized or investigating a circumstance relevant to the offence . It is necessary that there be reason to suspect that an offence has been committed for which the most severe penalty provided is imprisonment for DATE .

LAW , section CARDINAL , of LAW reads as follows :

( translation from NORP )

“ At the request of a person whom the case concerned , the court shall decide whether the seizure shall remain in force . A request that has been submitted to the court before its examination of the charges shall be considered within DATE from its reception by the court . ... A court decision on seizure shall be subject to separate appeal . ”

According to section CARDINAL of the Pre - trial LAW , the material accumulated during a pre - trial investigation shall be collected in a file , if this is considered necessary for further consideration of the case . The file shall include the interrogation records as well as documents and recording assumed to be of importance . It shall also indicate the measures taken during the investigation and any material not included in the file .

Under LAW ( Suomen Hallitusmuoto , ORG ) anyone whose rights have been infringed and who has suffered damage as a result of an illegal act , or by the negligence of a civil servant , is entitled to prosecute the civil servant , or demand that he or she be prosecuted , and to claim damages ( Article CARDINAL ) .

According to the DATE LAW ( rikoslaki , strafflag ) , a civil servant who , by intent or neglect or carelessness , acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment , if the act or omission is not insignificant , having regard to the damage caused and other circumstances ( chapter DATE , section CARDINAL and CARDINAL ) .

Under LAW ( vahingonkorvauslaki , skadeståndslag CARDINAL ) proceedings may be brought against the ORG in respect of damage resulting from fault or neglect by its employees in the performance of their duties ( chapters CARDINAL and DATE ) .

According to rule CARDINAL of the ORG to the Ombudsman ( GPE oikeusasiamiehen johtosääntö , Instruktion för riksdagens justitieombudsman CARDINAL ) , if the ORG receives a petition against a public official or authority concerning a matter falling within his area of competence , he or she is to carry out an investigation . If the ORG suspects that the person or authority concerned has committed an unlawful act or default calling for his intervention , he or she must inform and hear that person or authority . The ORG , however , has no power to quash or amend decisions made by administrative or judicial authorities . The most severe measure the ORG can use is to bring criminal charges , or order criminal charges to be brought , before a court against any public servant within his jurisdiction for misconduct in office . This measure is used relatively seldom ( CARDINAL out of CARDINAL decisions in DATE , none out of CARDINAL decisions in DATE ; see the Reports of ORG on his activities in DATE , p. CARDINAL , and in DATE , p. CARDINAL ( PERSON oikeusasiamiehen kertomus toiminnastaan , PERSON justitieombudsmans berättelse över sin verksamhet ) ) . Clearly illegal or improper conduct may lead to a reprimand by the ORG ( CARDINAL in DATE and DATE , see the above - cited Reports ) . The ORG may also express critical views of the impropriety of the conduct of an authority or public servant , for future reference on a matter .


Violation of Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention and domestic proceedings

The applicants , CARDINAL in all , are NORP nationals of NORP origin , born in DATE respectively , and are living in GPE ( GPE ) . The second applicant is the first applicant ’s father , the third applicant his mother and the fourth applicant his uncle . On DATE ORG filed a bill of indictment against the applicants charging them with rape under section CARDINAL § CARDINAL of LAW , coercion and deprivation of liberty . The public prosecutor stated that since DATE the first applicant had been the fiancé of PERSON Their future marriage had been arranged by their respective fathers . After the death of PERSON ’s father in DATE , ORG considered herself no longer bound by the promise of betrothal given by her father . She told this to the first applicant and his parents who , however , refused to accept her change of mind .

NORP Ever since the death of PERSON ’s father the second applicant regularly brought ORG by car to her place of work and drove her home again after work . On DATE , around TIME , the second applicant , accompanied by the first and third applicant , picked up PERSON and brought her to the home of the fourth applicant . The second applicant told her that she was going to have sexual intercourse with the first applicant . He also told her that if she resisted she would be held by the second and fourth applicants and that the third applicant would force her legs apart . She was accompanied to the bedroom . The first applicant attempted to have sexual intercourse with her , but this attempt failed because of ORG ’s resistance . Thereupon , the first applicant requested the third applicant to help him . The third applicant tied PERSON ’s hands with adhesive tape and stuck a strip of adhesive tape over her mouth . She then held F.D.s arms while the first applicant had intercourse with PERSON Thereafter , PERSON was constrained to spend the rest of DATE with the first applicant in the house .

The second and third applicants phoned her mother and told her that ORG had been kidnapped by them and that she should not contact the police , otherwise PERSON would be killed . Nevertheless , PERSON ’s mother informed the police about the incident . Around TIME was allowed to phone her mother . Soon afterwards police officers arrived at the house and arrested CARDINAL applicants .

On DATE the applicants’ trial was held before ORG . The applicants , assisted by counsel , Mr. PERSON , maintained their innocence and claimed that PERSON had accompanied them voluntarily in order to become closer acquainted with the first applicant ’s uncle and that , on this occasion , she had had sexual intercourse with the first applicant of her own free will . No violence whatsoever had been used against her . The court heard the applicants and several witnesses , including the victim , her mother and a doctor who had examined the victim at the hospital . PERSON repeated to the court the statements she made to the police and the investigating judge , but added that her family and the applicants’ family had meanwhile settled the matter and that she had received a payment of CARDINAL ORG from the applicants’ family .

On DATE ORG convicted the applicants of rape under LAW § CARDINAL of LAW and of deprivation of liberty . The first and second applicants were also convicted of aggravated coercion . The first applicant was sentenced to DATE imprisonment , the second applicant to DATE , the third applicant to DATE and the fourth applicant to DATE of imprisonment . In its judgment , the court described the course of the events in the same terms as in the bill of indictment .

As regards the classification of the offence in law , the court found that from the facts established it was apparent that ORG had been exposed to and had been threatened with acts of serious violence . It therefore had to convict the applicants of rape under LAW of LAW .

On DATE the applicants filed pleas of nullity ( PERSON - beschwerde ) and appeals against sentence ( PERSON ) . The applicants complained , inter alia , that their conviction for rape had gone beyond the terms of the indictment ( PERSON ) as they were convicted of rape under section CARDINAL § CARDINAL of LAW while the bill of indictment had charged them with rape under LAW of LAW . In the applicants’ submission , if ORG had been of the opinion that the public prosecutor ’s indictment had not corresponded to all the elements of the case it should have given the public prosecutor the opportunity to amend the indictment . This would at the same time have given the applicants the opportunity to react to the amendment and to dispute the existence of any aggravating circumstances .

On DATE ORG rejected the ORG appeal under section CARDINALd § CARDINAL of the Code of Criminal Procedure without holding a hearing . As regards the complaint that the judgment had exceeded the terms of the indictment with respect to the charge of rape , ORG found that a ground of nullity could only be made out if the applicants had been found guilty of an offence which had not been the subject matter of the indictment . The subject matter of an indictment was a specific act or event which , in the eyes of the public prosecutor , had brought about a punishable result . If , on the basis of the evidence taken , the event which formed the basis of the indictment had , in certain details , occurred in a manner different from that assumed by the prosecution , the court had to apply the correct law to the established facts even if the result was that the legal qualification then applied differed from the one made by the public prosecutor .

It was only where the taking of evidence showed a course of events which was entirely different from the events described in the indictment such that it could no longer be considered covered by the terms of the indictment , that a conviction would pre - suppose the prior amendment of the indictment . In the present case , the act with which the applicants were charged was identical to the established facts as set out in the judgment . The trial court had merely come to a different legal qualification on the facts . However , this did not exceed the terms of the indictment ( PERSON ) . Moreover , the different legal qualification given to the offence was not in breach of the LAW . It was the main purpose of LAW ( d ) of the LAW to achieve equality of arms between the prosecution and the defence . However , it could not be considered that a legal qualification in the judgment which differed from the one in the indictment infringed this or any other provision of the LAW . ORG remitted the ORG appeal against sentence to ORG .

On DATE ORG dismissed the ORG appeal and confirmed the sentences fixed by ORG .

Section CARDINAL of LAW ) reads as follows :

“ CARDINAL . Anyone who compels another person , by use of serious violence or threats of immediate serious danger to life or limb , to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of DATE . Rendering unconscious also qualifies as use of serious violence .

Anyone who , except for the case under paragraph CARDINAL , compels another person , by use of violence , deprivation of liberty or threats of danger to life or limb , to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of DATE .

If the violence resulted in serious bodily harm to the victim , or if the victim has endured great pain for a prolonged period or has been particularly humiliated , the perpetrator of the offence shall be punished by imprisonment of DATE in the case of paragraph CARDINAL and by imprisonment of DATE in the case of paragraph CARDINAL . If the violence resulted in the death of the victim the perpetrator of the offence shall be punished by imprisonment of DATE in the case of paragraph CARDINAL and by imprisonment of DATE in the case of paragraph CARDINAL . ”

Under LAW the remedies against a judgment by a chamber of ORG are , on the one hand , a plea of nullity ( PERSON ) and , on the other , an appeal against sentence ( GPE ) . A plea of nullity has to be addressed to ORG while an appeal against sentence has to be addressed to ORG . Section CARDINAL enumerates exhaustively the various grounds for nullity which can be invoked in a plea of nullity . They comprise such elements as participation of an excluded judge ( S. CARDINAL § CARDINAL ( CARDINAL ) ) , lack of proper assistance by a defence counsel ( S. CARDINAL § CARDINAL ( CARDINAL ) ) or breach of a provision of LAW for which the sanction of nullity is expressly provided for ( S. CARDINAL § CARDINAL ( CARDINAL ) . Moreover , it is a ground for nullity if , due to incorrect interpretation , an inapplicable legal provision has been applied to the act underlying a judgment ( s. CARDINAL § CARDINAL ( CARDINAL ) ) . In a plea of nullity the assessment of evidence by ORG can not be challenged unless in the judgment the assessment of evidence is not set out , or if it is unclear , illogic , or in contradiction to the case file ( S. CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) .


Violations of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

PERSON was born in DATE and lives in GPE . PERSON was born in DATE and lives in GPE .

On DATE the applicants were injured in a car accident in GPE . The accident resulted in the premature birth of their son , who sustained in utero injuries in the accident . The son died in hospital in GPE ( GPE ) on DATE . The perpetrator of the accident had taken out insurance with the insurance company Wiener ORG PERSON ( “ WA ” ) .

On DATE the applicants instituted civil proceedings against GPE in the then ORG , Velenje Branch ( PERSON sodišče v PERSON , ORG ) , seeking damages of CARDINAL NORP tolars for the injuries sustained in the car accident and the non - pecuniary damage sustained following the death of their son .

On DATE Mr PERSON , a professor at ORG GPE , delivered an expert opinion in the case at the request of GPE . He stated that the NORP courts had no jurisdiction to examine the applicants ' claims . At the time , PERSON was a work colleague of PERSON .

On DATE WA lodged preliminary written submissions arguing that the case was not within the court 's jurisdiction . They attached the opinion prepared by PERSON to the submissions , which were included in the file and served on the applicants .

On DATE Mr PERSON was appointed as a justice at ORG ( PERSON sodišče ) .

On DATE ORG , Velenje Branch , held a hearing .

On DATE and CARDINAL DATE the applicants lodged preliminary written submissions contesting PERSON opinion and GPE 's arguments .

On DATE a decision dated CARDINAL DATE , the date on which the hearing was held , was served on the applicants . The court decided that the case was not within its jurisdiction , but made no explicit reference to PERSON PERSON 's opinion .

On CARDINAL DATE the applicants lodged an appeal with ORG ( PERSON sodišče v PERSON ) .

On DATE the Convention took effect with respect to GPE .

On DATE , on a request by ORG , the first - instance court delivered a supplementary decision concerning the costs of the proceedings .

On DATE the applicants appealed against the decision concerning costs .

On DATE ORG dismissed both applicants ' appeals .

On DATE the applicants lodged an appeal on points of law with ORG sodišče ) against the decision of DATE .

On DATE ORG dismissed the appeal on points of law against the judgment of CARDINAL DATE and rejected the appeal against the decision of CARDINAL DATE as inadmissible .

On DATE the applicants lodged a constitutional appeal with ORG ( PERSON sodišče ) . In their appeal , they made no reference to PERSON opinion .

On DATE PERSON was appointed as a justice at ORG .

On DATE ORG declared the appeal inadmissible as manifestly ill - founded . PERSON was the president of the CARDINAL - judge bench which examined the admissibility of the case and PERSON ORG was also a member of that bench . The applicants learned of the composition of the panel on DATE , the date on which the decision was served on them .

The relevant provision of LAW ( PERSON ) reads as follows :

“ Everyone has the right to have any decision regarding his or her rights , obligations and any charges brought against him or her made without undue delay by an independent , impartial court constituted by law .

Only a judge appointed pursuant to rules pre - established by law and in accordance with normal judicial practices shall try such a person . ”

NORP The relevant provisions of LAW ( Zakon o ustavnem sodišču ) read as follows :

“ In deciding on a particular case , ORG may disqualify a judge of ORG by applying , mutatis mutandis , the applicable reasons for disqualification in court proceedings .

The following shall not serve as reasons for disqualification from the proceedings :

- participation in legislative procedures or in adoption of other general acts ( including those issued for exercise of public powers ) that have been challenged prior to election as a judge of ORG ,

- expressing a scientific opinion on a legal matter which may be relevant for the proceedings . ”

“ Immediately after a judge of ORG learns of any reasons for his or her disqualification in accordance with the preceding section , he or she must cease ... work on the case and notify the president of ORG . ”

“ A request for disqualification may be submitted by the parties to the proceedings up until the start of a public hearing , if such hearing is due to be held , or until DATE in camera session of ORG at which the matter is to be decided . The request must be substantiated .

The judge of ORG whose disqualification is sought shall have the right to comment on the statements in the request , but may not participate in the decision on his or her disqualification . The Constitutional Court shall decide in camera upon the disqualification of a judge . If the number of votes for and against is equal , the president shall have the casting vote . ”

“ Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a state body , local body or statutory authority may lodge a constitutional appeal with ORG , subject to compliance with the conditions laid down by LAW . ... ”

“ A constitutional appeal may be lodged only after all legal remedies have been exhausted .

Before all special legal remedies have been exhausted , ORG may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act . ”

“ A decision on whether to accept a constitutional complaint and begin proceedings shall be taken by ORG , sitting in a CARDINAL - judge bench , at an in camera session ... ”

The relevant provisions of LAW ( Zakon o pravdnem postopku ) read as follows :

“ A judge or a lay judge shall be prohibited from exercising judicial functions :

( CARDINAL ) if he or she is a party to the civil proceedings , is a representative or an advocate of a party ... or was heard as a witness or an expert in the same proceedings ...

( CARDINAL ) if he or she participated in the same proceedings before a lower court ...

( CARDINAL ) if other circumstances raise doubt about his or her impartiality . ”

“ The parties to the proceedings may also seek the disqualification of a judge .

A party must seek the disqualification of a judge or a lay judge as soon as he or she learns of the reason for disqualification , but no later than by the end of the hearing in the competent court or , when no hearing was held , by the time the decision is rendered .

In the disqualification request , the party must state the circumstances on which his or her request for disqualification is based . ”

“ As soon as a judge or a lay judge learns of the request for his or her disqualification , he or she must cease any activity in the proceedings concerned ; if the challenged is lodged under point CARDINAL of section DATE , he or she may continue examination of the case .

If a judge is disqualified in accordance with point CARDINAL of section QUANTITY , the procedural activities he or she performed after the request for disqualification was lodged shall have no legal effect . ”