The applicant , PERSON , is a GPE national , born in DATE and living in GPE . She is represented before the Court by Ms PERSON of Liberty , GPE . The respondent Government are represented by PERSON , ORG , GPE .

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

On DATE the applicant attended a demonstration organised by ORG ( " CAAT " ) in GPE . The demonstration had been arranged to coincide with an arms fair for the procurement of sales of arms and weapons at a military base TIME walk from the site of the demonstration .

The applicant , who is not a member of ORG , attended this demonstration to show her support . Shortly after TIME she left the site accompanied by a friend . The applicant and her friend were about to walk up a footpath but were told by a policeman not to proceed along the footpath as he believed it to be military land . The applicant then proceeded , with her friend , to walk along the road which led to the arms fair . A woman police constable told them that they could not go down that road as it was military land . The applicant replied that that road was a public highway . She was told that if she continued she would be arrested for breach of the peace . The applicant ’s friend turned back and the applicant continued alone . The applicant was arrested by the woman police constable at TIME The custody record log states :

" ... CARDINAL During demonstration prisoner was warned to stay away from certain areas of military land . She refused and was arrested to prevent a breach of the peace and for causing an obstruction . Detention authorised until such time as it is unlikely that a breach of the peace will occur and to obtain evidence by questioning and to preserve and secure evidence through other enquiries . "

The applicant was detained until TIME when she was released without charge .

She subsequently brought a civil action for wrongful arrest against the Chief Constable of GPE . The case was dismissed on DATE , the judge finding , inter alia , as follows :

" ... It is common ground that the plaintiff was told more than once that she would be arrested for breach of the peace . The ‘ whole ORG of the defence evidence was that this arose from a fear of contact between the demonstrators and those attending the exhibition , leading to a confrontation which sadly occurs that when those with strong views come up against those who practice what they find utterly offensive . Nor do I see in PERSON cross - examination anything to suggest that PERSON had not carried out the arrest on the basis of apprehending a risk of a breach of the peace involving violence .

The plaintiff had expressed an intention to proceed in the direction of the arms fair . It seems to me to make no difference that the plaintiff claims , as may well be the case , to be a lady of pleasant disposition , self - disciplined and with no wish to damage property or indulge in violence . In the judgment of the police arrest was appropriate . By definition , the police have to make judgments as to whether violence would occur . To PERSON , all the indications were that the precise purpose why her colleagues were on duty was about to be thwarted , giving rise to a risk of a violent confrontation which it was wished to avoid .

Nor do I accept that it was incumbent upon PERSON to enter into more detailed explanation of her basis for apprehending a breach of the peace . I bear in mind that the plaintiff ’s clear stance was that she was going along FAC , and that she was not to be deterred short of arrest ...

The authorities clearly show that the possibility of a breach of the peace must be ‘ real’ and it must be sufficiently close in proximity in time and place . There must be an anticipation of violence in the immediate future or a real risk of it occurring ...

I am reminded of everything I said earlier about the background . There was a high degree of security . The basis of the police operation was to keep the groups apart . Experience sadly shows that violent confrontations can take place ...

It seems to me that to ask who would apprehend a risk of violence from the nature of the characteristics of the plaintiff confuses the plaintiff personality to those known to her with the position as it would appear to the police at the time . They had not means of knowing whether the plaintiff was peaceful or not ...

It was entirely reasonable to proceed on the basis that the groups should be kept apart . Only arrest was an option for the police once the plaintiff had made clear her intention . In my judgment the risk of a violent confrontation was a very real one . The plaintiff was determined to proceed up FAC .

Mr ORG urges that the plaintiff ’s evidence was not clear as to her intention , and I accept this as far as she felt she was being restrained from using a public highway . I do not accept that she was unaware [ where the exhibition was ] , nor that she had a mixed purpose [ in continuing ] ...

My finding is that there was a very real , a high risk of violence . There was nothing in place or distance to suggest that [ the breach of the peace ] was not in sufficient proximity in place and time . It seems to me entirely coincidental whether [ the applicant ] was arrested CARDINAL , TIME from the arms fair , given that she had openly expressed an intention to proceed in that direction .

The relevance of the decision not to allow demonstrators to go on military land is that this was a decision to keep the groups apart , an operational requirement in the context of stopping demonstrators approaching close to the exhibition . I see nothing in the GPE evidence to suggest that PERSON considered an irrelevant or improper matter , or that she failed to consider all relevant circumstances .

Therefore I am persuaded that there was a reasonable and probable cause for arrest , and the case is dismissed ... "

The applicant was advised not to appeal : Counsel accepted that there was some prospect of an appeal court concluding that the risk of violence in the case was not sufficiently " real " to warrant arrest , but underlined that the test of whether there was a " real possibility " of violence inevitably leaves a great deal of discretion to the judge . He pointed out that unlike the case of PERSON ( PERSON v. ORG , see below ) , those who might have responded to the applicant ’s acts were not confined to trained personnel , and there was therefore every likelihood of an appeal judge taking the view that the trial judge was the person best placed to assess the factual context of the events .

Breach of the peace – which does not constitute a criminal offence ( NORP v. County ORG , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) – is a common - law concept dating back to DATE . However , as Lord PERSON , giving judgment in ORG in the case of NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL ) , remarked in DATE :

“ A comprehensive definition of the term ‘ breach of the peace’ has very rarely been formulated ... ” ( p. CARDINAL )

He continued :

“ We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault , an affray , a riot , unlawful assembly or other disturbance . ” ( p. CARDINAL )

In DATE , in a differently constituted ORG giving judgment in NORP v. Chief Constable of GPE and GPE , ex parte ORG ( [ DATE ] ORG Reports CARDINAL ) , which concerned a protest against the construction of a nuclear power station , Lord PERSON , Master of the Rolls , defined “ breach of the peace ” more broadly , as follows :

“ There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it . He is entitled by law peacefully to go on with his work on his lawful occasions . If anyone unlawfully and physically obstructs the worker DATE by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace . ” ( p. CARDINAL )

In a subsequent case before ORG ( PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , Mr Justice PERSON followed ORG , rather than ex parte ORG , in holding that there must be a risk of violence before there could be a breach of the peace . However , it was not essential that the violence be perpetrated by the defendant , as long as it was established that the natural consequence of his behaviour would be to provoke violence in others :

“ The conduct in question does not itself have to be disorderly or a breach of the criminal law . It is sufficient if its natural consequence would , if persisted in , be to provoke others to violence , and so some actual danger to the peace is established . ” ( p. CARDINAL )

In another case before ORG , PERSON and PERSON v. Director of Public Prosecutions ( [ DATE ] Justice of the Peace Reports CARDINAL ) , Lord Justice PERSON stated :

“ ... the court would surely not find a [ breach of the peace ] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course , it would be if the defendant ’s conduct was not merely lawful but such as in no material way interfered with the other ’s rights . A fortiori , if the defendant was properly exercising his own basic rights , whether of assembly , demonstration or free speech . ” ( p. CARDINAL )

A person may be arrested without warrant by exercise of the common - law power of arrest , for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace ( PERSON v. PERSON [ DATE ] Appeal Cases CARDINAL at CARDINAL ) . This power was preserved by ORG sections CARDINAL(CARDINAL ) and CARDINAL ) ) .


Violation of Art. 5-3;Violation of Art. 5-5;Remainder inadmissible

The applicant was born in DATE and lives in LOC .

On DATE a criminal case was opened into smuggling of consumer goods .

On DATE the applicant was arrested on suspicion of participation in a criminal enterprise , smuggling , customs duty evasion and fraud .

DATE the applicant was granted access to the materials in the case file .

On DATE the case was referred for trial before ORG of PERSON . According to the Government , the case materials comprised CARDINAL binders ; charges had been brought against CARDINAL individuals who had acted in conspiracy ; the witnesses ' list included CARDINAL prosecution witnesses from several cities in GPE , GPE , GPE , GPE and GPE , as well as CARDINAL witnesses and experts for the defence .

On DATE ORG held the preliminary hearing and fixed the opening trial date for DATE .

On DATE ORG ordered that the case be returned to ORG for correcting defects in the indictment against the applicant . That decision was set aside by ORG on DATE , which referred the case back to ORG .

NORP On DATE the trial resumed but it was subsequently stayed from DATE to DATE .

On DATE the applicant was released on bail .

According to the information provided by the parties and the elements available in the case - file to date , the criminal proceedings are still pending before the trial court .

On DATE ORG of GPE remanded the applicant in custody on the ground that he was charged with serious and particularly serious offences and could abscond or interfere with the investigation , without citing specific reasons for these findings . On DATE ORG upheld the decision on appeal .

On DATE , CARDINAL DATE , DATE and CARDINAL DATE ORG extended the applicant 's detention . Each time it referred , using a summary formula , to the gravity of the charge against the applicant and to “ grounds to believe that he would abscond or interfere with the criminal proceedings ” . On DATE , DATE , CARDINAL DATE and CARDINAL DATE ORG upheld the extension orders on appeal .

In the decisions of DATE and DATE ORG found as follows ( the same paragraph featured in both decisions ) :

“ [ The applicant ] is charged with crimes , including particularly serious crimes , punishable with DATE imprisonment . The factual circumstances of the offence imputed to [ the applicant ] call for the assumption that , once released , he would flee from the investigation and trial , re - offend or otherwise interfere with the criminal proceedings . In these circumstances , the [ first - instance ] court 's finding that any other , non - custodial preventive measure may not be applied to [ the applicant ] , appears justified . ”

ORG decision of CARDINAL DATE also contained the following passage :

“ The argument by the defence that the [ first - instance ] court did not take into account absence of any objective evidence of [ the applicant 's ] involvement in the commission of the imputed offence , is without substance because , in extending the applicant 's detention , the [ first - instance ] court did not make any findings as to the guilt of the accused or as to correctness of characterisation of the facts in law . ”

On DATE the applicant was moved to remand centre no . IZ-CARDINAL/CARDINAL in GPE .

On DATE ORG extended the applicant 's detention , referring to the gravity of the charges and the risk that he would interfere with the course of the trial because CARDINAL other defendants had gone into hiding .

On DATE ORG , by CARDINAL decision , ordered to extend the applicant 's and his co - defendant 's detention until DATE , holding as follows :

“ In deciding on extending the period of detention , the court takes into account that the measure of restraint in respect of [ the applicant and his co - defendant ] was imposed in accordance with ORG CARDINAL and CARDINAL of LAW as there existed sufficient grounds to believe that they would abscond investigation and trial or interfere with the criminal proceedings . The grounds justifying the application of the measure of restraint still persist to date . Positive references of the defendants and their medical ailments do not remove the grounds to believe that they can abscond because they are charged with particularly serious offences ” .

Counsel for the applicant filed an appeal . He submitted , in particular , that the first - instance court had failed to take into account the facts mitigating for the applicant 's release , such as the absence of a prior criminal record , positive references , a permanent place of residence , stable family connections with his wife , children and grandchildren , chronic ailments , and the long period of detention which had already exceeded DATE .

On DATE the Nizhniy ORG upheld on appeal the extension order of DATE , noting that the initial grounds justifying the holding of the applicant and his co - defendant in custody still obtained and that the defence had not put forward any arguments warranting a change in the preventive measure .

On DATE and DATE ORG granted further extensions of the applicant 's and his co - defendant 's detention , invoking CARDINAL grounds : that they were charged with particularly serious offences punishable with up to DATE imprisonment , and that the applicant had been initially arrested because the investigation had received information about his intention to abscond .

In the decision of CARDINAL DATE ORG found that :

“ ... if the preventive measure is replaced with a more lenient one , there exists a risk that the defendants would not appear at trial ; thus , only the custodial measure may ... ensure the protection of the interests of the ORG and society against crime and the possibility of a fair trial . ”

The decision of DATE employed a somewhat different wording which read as follows :

“ Another , more lenient preventive measure , such as bail , would not be able to ensure a fair trial in this particular case . For that reason the need to ensure an effective protection of the public interests – notwithstanding the presumption of innocence and long periods of detention of both defendants – justifies a departure from the principle of individual liberty . ”

On DATE and DATE ORG upheld , in a summary fashion , the above decisions .

On DATE the ORG granted the applicant 's and his co - defendant 's application for release on bail . It found that , although the risk of absconding still existed , with the passage of time that risk was no longer sufficient to justify a breach of the principle of individual liberty . The bail was set at MONEY ( MONEY ) . On DATE the applicant was released .

Since DATE detention matters have been governed by LAW ( Law no . CARDINAL of DATE ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention on remand ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( Article CARDINAL ) .

When deciding on a preventive measure , the court is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , re - offend or interfere with the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in custody “ during the investigation ” . The maximum permitted period of detention “ during the investigation ” is DATE but it can be extended for DATE . Further extensions for CARDINAL or DATE may be authorised only if the accused is charged with serious or particularly serious criminal offences ( Article QUANTITY ) .

From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ during the trial ” . The term of detention “ during the trial ” is calculated to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

The ORG or regional treasury is liable – irrespective of any fault by ORG officials DATE for the damage sustained by an individual on account of , in particular , unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody ( Article CARDINAL § CARDINAL of LAW ) .

A court may hold the tortfeasor liable for non - pecuniary damage incurred by an individual through actions impairing his or her personal non - property rights , such as the right to personal integrity and the right to liberty of movement ( Articles CARDINAL and CARDINAL of LAW ) . Non - pecuniary damage must be compensated for irrespective of the tortfeasor 's fault in the event of , in particular , unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody ( LAW ) .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE the applicant took part in the cleaning - up operation at the GPE nuclear disaster site . He was subsequently granted Category CARDINAL disability status and became entitled to various social benefits , including a PERCENT discount on housing charges .

In DATE the municipal housing maintenance authority lodged a claim against the applicant , seeking to recover unpaid housing charges .

On DATE the applicant counterclaimed , seeking compensation in respect of non - pecuniary damage . He insisted that he had paid the housing charges on time and in full . The amount of the charges paid had been calculated to include PERCENT discount to which he and his family were entitled .

On DATE the Justice of the Peace of the CARDINALth ORG of the Prikubanskiy District of Krasnodar partly found against the applicant and ordered him to pay outstanding housing charges . It rejected the applicant ’s counterclaim , finding that by law only he , but not his family members , was entitled to the discount .

The applicant appealed against the judgment . He challenged the first - instance court ’s assessment of the facts and application of the legal provisions .

On DATE the applicant ’s representative requested ORG to bring ORG into the proceedings as a third party . The court granted this request and suspended the proceedings .

NORP The appeal hearings were subsequently scheduled for DATE and DATE but did not take place due to the presiding judge ’s illness .

On DATE ORG upheld the judgment . The applicant received the summons on DATE and therefore neither he nor his representative could attend the hearing . The judgment ( определение ) contained a notice to the effect that no appeal lay against it .

On DATE the applicant requested the court to resume the appeal proceedings since he had been summoned to the appeal hearing on DATE belatedly .

On DATE ORG of Krasnodar heard the parties and rejected the applicant ’s request . The court established that the summons had been sent to the applicant on DATE , and there had been no evidence showing that the summons had reached him before the hearing on DATE . Nevertheless , according to civil procedural law , improper summoning is not a ground for a review of the case .

On DATE ORG rejected the applicant ’s request for supervisory review proceedings .

Under LAW , in force at the material time , parties to the proceedings are to be summoned to a hearing by a letter sent by registered mail with an acknowledgment of receipt , by court summons with an acknowledgment of receipt , by telegram , by phone or fax or by any other means which can guarantee a record of the fact that the summons was sent and was received by the party . Summons shall be served on the parties and their representatives in such a way that they have enough time to appear at the hearing and prepare their case .

According to LAW , an appeal court examines a case following rules of procedure in a first - instance court ; it can establish new facts and examine new evidence .

Article CARDINAL of the Instruction on the judicial workflow in district courts , approved by Order no . CARDINAL of ORG of ORG on DATE , provides that , summons and copies of procedural documents shall be sent by registered mail with an acknowledgement of receipt form


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was the owner of non - residential LOC with an area of QUANTITY situated in GPE ( “ the Premises ” ) . The ownership certificate relative to the Premises was delivered to the applicant on DATE and her ownership right was duly registered in official records .

Since DATE the Premises had been occupied by FAC no . CARDINAL of ORG ( “ FAC ” ) .

The applicant wrote numerous letters to ORG , ORG , ORG , ORG , and other public authorities , complaining of unlawful occupation of the Premises by FAC . In DATE and DATE , the applicant was informed by letters from ORG and ORG that FAC would vacate the Premises as soon as it was provided with other LOC by ORG .

On DATE the applicant lodged a lawsuit with the NORP ORG claiming that she was the lawful owner of the Premises and asking the court to order the eviction of FAC .

On DATE the ORG granted the applicant 's request . The court held that the applicant was the lawful owner of ORG on the basis of the ownership certificate of CARDINAL DATE and that there was no legal basis for the installation of FAC there . Moreover , the court stated that ORG should provide LAW with other LOC .

No appeals were filed against that judgment and , pursuant to domestic law , it became enforceable within DATE after its delivery .

According to the case file , DATE ORG offered the Police Station different premises . However the Head of FAC refused to move to those LOC stating that they were not suitable for a police station .

On DATE ORG allocated a plot of land for the construction of a building for FAC .

NORP In DATE ORG commenced an action against the applicant challenging the lawfulness of the applicant 's ownership rights in respect of the Premises . On DATE the ORG rejected the ORG 's claim . The court found that ORG had no right to lodge a claim concerning the Premises , that the time - limits provided for challenging the applicant 's ownership right in respect of the Premises had expired , and that the matter was res judicata as the applicant 's ownership had been confirmed by the judgment of DATE .

On DATE a criminal case was launched by ORG concerning the allegedly unlawful acquisition of the Premises by the applicant and her husband . On DATE the ORG authorised a search and seizure at the office of a company managed by the applicant 's husband . The case file does not contain any other material concerning subsequent developments and the results of this investigation and of the criminal case .

NORP Moreover , it appears from the case file that in DATE ORG for ORG lodged a civil action against the applicant alleging that her ownership had been unlawful . The case file does not contain any material on the results of this legal action .

As at the time of the ORG 's last communication with the applicant , the judgment of DATE remained unenforced .


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

Mr PERSON , a NORP national who was born in DATE , lives in GPE . At the material time , he was a deputy police sergeant .

On DATE an airport and border police squad based in GPE stopped a vehicle on the motorway between GPE and GPE . There were CARDINAL people inside , of whom CARDINAL did not have valid papers for entry into NORP territory .

The driver , PERSON Fall , admitted that he had assisted these CARDINAL to cross the border illegally .

He implicated the applicant , who was at that time serving at the GPE frontier post , alleging that he had allowed him to enter GPE in exchange for a payment of MONEY ( ORG ) and the promise of an imitation ORG watch .

On DATE the applicant was charged with accepting a bribe and remanded in custody .

In a judgment of DATE ORG acquitted Mr Guérin , rescinded the order for his detention and ordered his immediate release .

On DATE the prosecution appealed .

In a judgment of CARDINAL DATE the ORG - en - ORG , giving judgment in the applicant ’s absence , set aside the judgment at first instance and sentenced the applicant to CARDINAL years’ imprisonment .

On DATE the applicant requested a retrial .

The case was heard on DATE at a public hearing attended by Mr Guérin .

In a judgment of CARDINAL DATE the Aix - en - ORG of Appeal found the applicant guilty of accepting a bribe , sentenced him to CARDINAL years’ imprisonment , DATE of which were suspended , and issued a warrant for his arrest . Although the applicant had been duly informed of the date of delivery of the judgment , he was not present .

On DATE Mr Guérin was admitted to a psychiatric institution , where he stayed until DATE , when the police enforced the warrant for his arrest .

On DATE , acting through a lawyer with the right of audience in the Aix - en - Provence Court of Appeal , the applicant lodged an appeal on points of law within the time - limit of CARDINAL clear days laid down by LAW ( see paragraph CARDINAL below ) .

In his statement of the grounds of appeal the applicant ’s lawyer put forward CARDINAL arguments , CARDINAL procedural and CARDINAL substantive , concerning the elements of the offence . He also explained that “ as soon as he knew [ ORG decision ] , the appellant tried to commit suicide ” .

On the first point , he referred to the report adopted by ORG on DATE in the case of GPE v. GPE and pointed out that the Commission had referred to the ORG the question whether the relevant case - law of ORG was contrary to LAW .

On the second point , the lawyer stated that as the applicant lived in GPE he had not attended the hearing at which the judgment convicting him was delivered on account of the distance he would have had to travel and because he was very perturbed by the proceedings against him .

It would also have been materially impossible for him to comply with the warrant for his arrest in DATE between the reading of the judgment and the lodging of the notice of intention to appeal . Moreover , on learning that he had just been convicted , and immediately after instructing his lawyer to lodge an appeal on points of law , he had tried to commit suicide , and for that reason had been treated in a psychiatric institution from DATE to DATE . Having stayed in that institution throughout the period allowed for an appeal on points of law , it had been absolutely impossible for him to comply with the warrant voluntarily before lodging the appeal . Lastly , the arrest warrant had been executed on DATE at the clinic where the applicant remained at the disposal of the courts . The lawyer concluded in the following terms :

“ There is no doubt that in such conditions applying the case - law established in DATE in order to declare the appeal inadmissible would mean unjustly depriving Mr Guérin of the right to determination of his appeal . ”

In a judgment of DATE ORG declared the appeal inadmissible on the following grounds :

“ It is apparent from the notice of intention to appeal that the applicant lodged his appeal through an attorney at a time when he was liable to arrest under a warrant issued at the hearing on DATE , which was not executed until DATE . It follows from the general principles of criminal procedure that a convicted person who has not complied with a court order is not entitled to act through a representative in order to lodge an appeal on points of law . It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time . In the present case the appellant has not supplied evidence of any such circumstances . ”

In NORP law an appeal on points of law , which is an exceptional remedy , may be lodged by any person who has an interest in doing so and gives notice within the time - limit , against any judicial decision given at last instance .

Article CARDINAL of LAW , which lays down the formalities to be observed in connection with appeals on points of law , provides :

“ Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged .

It must be signed by the registrar and by the appellant himself or by an attorney ( avoué ) of the court which has given judgment or by a specially authorised agent . In the last - mentioned case , the authority to act shall be annexed to the document drawn up by the registrar …

Article CARDINAL of the Code of Criminal Procedure provides :

“ The prosecution and all parties shall have DATE after the date on which the impugned decision was given in which to lodge an appeal on points of law . ”

“ During the time allowed for an appeal on points of law and , where such an appeal has been lodged , until ORG delivers judgment , execution of the judgment of ORG shall be stayed , except in respect of orders concerning civil matters , and unless ORG upholds the warrant issued by the trial court pursuant to LAW , first sub - paragraph , or unless it issues a warrant itself under the same conditions and according to the same rules . ”

The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute , particularly in the interests of speedier and more effective punishment . That is the case where an arrest warrant has been issued by the trial court ( see , to that effect , PERSON , PERSON , GPE , CARDINALth edition , DATE , § MONEY ) .

“ If a person sentenced to a term of imprisonment of DATE has not surrendered to custody and has not obtained from the court which convicted him exemption , on or without payment of a surety , from the obligation to surrender to custody , his right to appeal on points of law shall be forfeit .

The memorandum of imprisonment or the judgment granting exemption shall be produced before ORG not later than the time when the case is called for hearing .

For his appeal to be admissible , it is sufficient for the appellant to establish that he has surrendered to custody at a prison , either in the place where ORG sits or in the place where sentence was passed . The governor of that prison shall admit him there on the order of ORG at ORG or of the head of the public prosecutor ’s office at the court of trial or appeal . ”

ORG has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible ( PERSON . crim . DATE , PERSON , p. CARDINAL ) . But the convicted person may give notice himself of his intention to appeal ( PERSON . crim . DATE , ORG . crim no . CARDINAL ) , subject to the provisions of LAW , reproduced above .

ORG considers that an appeal is admissible in the following CARDINAL situations :

( a ) where , instead of acting through a representative , the appellant signs the notice of intention to appeal in person ( PERSON . crim . DATE , ORG . crim . no . CARDINAL ) by reporting to the registry before the warrant has been executed ( PERSON . crim . PERCENT , ORG . crim . no . CARDINAL ) and accepting the risk of being arrested by mentioning his exact address in the notice ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON . Crim . DATE , ORG . crim . , p. CARDINAL , confirmed by a decision of CARDINAL DATE published in ORG , DATE , ORG . , p. CARDINAL ) ;

( b ) where , when acting through a representative , in accordance with LAW , he can prove that there were “ circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time ” ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ; PERSON . crim . CARDINAL DATE ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ) .


Violation of Art. 14+8;Pecuniary damage - award;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The first applicant ( “ the applicant ” ) , was born in DATE and lives in GPE . The second and the third applicant , PERSON and PERSON , the applicant ’s twin sons , were born in DATE and live in GPE .

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

In DATE the first applicant married a NORP citizen , who currently lives in GPE . The couple are raising CARDINAL children from the previous marriage of the wife and they have successfully claimed numerous allowances on their behalf . On DATE the wife gave birth to the second and third applicants . Both of them acquired NORP nationality by birth , through their father . At the material time , the mother held a residence permit ( tartózkodási engedély ) . She was granted a settlement permit ( letelepedési engedély ) in DATE .

On DATE the first applicant requested maternity benefit ( anyasági támogatás ) amounting to MONEY ( ORG ) from the GPE and GPE Regional Directorate of the NORP ORG in his own name and on behalf of his children .

On DATE ORG refused the applicant ’s claim . It pointed out that , in the light of the relevant provisions of Act no . CARDINAL of DATE on Family Support ( “ the LAW ” ) , only mothers , adoptive parents and guardians were entitled to the benefit in question . It also noted that the natural father might only apply for such an allowance if the mother were deceased . The first applicant appealed .

On DATE the NORP ORG dismissed his appeal . The ORG established that , pursuant to the LAW , only mothers with NORP citizenship might apply for maternity benefit . It further observed that the Act applies only to those non - NORP citizens who have obtained settlement permits ( letelepedési engedély ) , being either refugees or citizens of another Member State of ORG . It concluded that , since the applicant ’s wife did not fall into either of these categories , the claim had to be rejected , since the natural father was not entitled to such benefits .

On DATE the first applicant sought judicial review before the Pest County Regional Court . He argued that the legal background of the institution of maternity benefit , as well as the decisions of the competent NORP authorities , were discriminatory and contravened LAW and LAW .

On DATE ORG , finding that the administrative authorities’ decisions had been in compliance with the law , dismissed the applicant ’s claim . It held , inter alia , that the purpose of maternity benefit was to support the mother and not the entire family or the children , therefore the latter could not be considered to have suffered discrimination .

On DATE the applicant lodged a constitutional complaint with ORG . These proceedings are apparently still pending .

“ The Act shall be applied – unless an international treaty regulates otherwise DATE to those living on the territory of GPE , who

a ) are NORP nationals ,

b ) have obtained an immigration or settlement permit , and to those who have been recognised as refugees by the NORP authorities ,

c ) fall under the scope of Regulation ( ORG ) No CARDINAL/CARDINAL of ORG DATE on freedom of movement for workers within the ORG and DATE with the exception of the maternity benefit ( LAW ) DATE of the Regulation ( ORG ) No . CARDINAL on the application of social security schemes to employed persons , to self - employed persons and to members of their families moving within the Community , provided that such persons DATE with the exception of frontier workers – at the time of requesting the allowance have obtained a valid residence permit . ”

“ ( CARDINAL ) Persons entitled to maternity benefit after giving birth are :

a ) women who , during pregnancy , attended CARDINAL times – in case of premature birth , once DATE prenatal care ;

b ) adoptive parents , if the adoption was finally authorised within DATE of the birth ;

c ) the guardian , if the child – based on a final decision – was taken into his / her custody within DATE of the birth . ”

“ If the woman entitled to maternity benefit dies before it is paid , then it shall be paid to the father living under the same roof or , in the absence of such a person , to the guardian of the child . ”

“ A request for maternity benefit may be submitted within DATE of giving birth . ”


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

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

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

The applicant is a part - time farmer and ski instructor residing in PERSON , PERSON . He is entitled to allow his livestock to feed on grass on a certain plot of land , namely plot no . CARDINAL/CARDINAL of the PERSON land register which belongs to PERSON ( grazing rights – Weiderecht ) . That land is building land .

On DATE E. applied for a building permit for the construction of an underground car park on plot no . DATE .

On DATE the Mayor of PERSON , as the building authority , conducted an oral hearing on the site of the project . The applicant had not been summoned to that hearing . In the course of the hearing the applicant , who had appeared nevertheless , claimed that as a holder of grazing rights on the proposed building site he had to be considered a party to the building permit proceedings and objected to the construction project .

By decision of CARDINAL DATE the Mayor granted the building permit . He rejected the applicant 's objections as inadmissible because he was not a neighbour within the meaning of section CARDINAL of FAC ( GPE ) . He informed him that any dispute concerning the grazing rights had to be settled before the ordinary civil courts .

On DATE ORG ( PERSON ) dismissed the applicant 's appeal against that decision as inadmissible because the applicant was not a party to the building proceedings within the meaning of section CARDINAL of LAW .

On DATE the applicant lodged objections against ORG decision ( PERSON ) with the regional government . The applicant submitted that the decisions , whereby he had not been accepted as a party , were wrong . He claimed that section QUANTITY § QUANTITY of LAW , which explicitly accepted persons holding a right to build ( Bauberechtigte ) as parties in building permit proceedings , should be interpreted as also extending the status of a party to persons who were holders of other kinds of servitudes encumbering the land of third persons .

On DATE the regional government upheld the municipality 's decision . It found that the wording of section CARDINAL of LAW was clear and unambiguous and only conferred the status of a party on neighbours , namely persons who are the owners of land located at a specific distance from the proposed building project and persons who hold a right to build on the land at issue . As an obiter dictum , the regional government added that the legal situation of a person holding grazing rights was equally protected under civil law because , if a building permit infringed the civil rights of that person , a civil court could issue a prohibition on the carrying out of construction works .

On DATE the applicant lodged a complaint with ORG , reiterating the arguments that he had raised before the regional government . He did not lodge a complaint with ORG .

On DATE the regional government submitted its observations .

On DATE ORG dismissed the applicant 's complaint . It found that the building authorities and the regional government had correctly found that the applicant 's grazing rights did not confer on him the position of a neighbour within the meaning of section CARDINAL of LAW . The building permit proceedings solely had the purpose of establishing that there were no obstacles under public law ( the relevant building regulations ) against a planned building project , but the building authorities had no competence to examine and decide whether a planned building project interfered with private rights of third persons . On DATE this decision was served on the applicant 's counsel .

Section CARDINAL of FAC ( GPE ) reads as follows :

“ ( CARDINAL ) The applicant for the building permit and the neighbours are parties to the proceedings concerning the building permit .

( CARDINAL ) Neighbours are the owners of plots of land that are immediately adjacent to the building site , or where CARDINAL point of their borders is within a distance of QUANTITY from a point along the border of the building site . Moreover , those persons who have a right to build on such a plot of land are considered to be neighbours .

( CARDINAL ) ORG whose plots of land directly adjoin the building site , or where CARDINAL point of their borders is at a distance of QUANTITY from a point along the border of the building site , are entitled to claim non - compliance with the following provisions under LAW , to the extent that these provisions also serve to protect them :

a ) specifications of the land development plan in relation to protection against pollution ;

b ) fire - protection provisions ;

c ) specifications of the zoning plan with regard to building lines , border lines of buildings , the type of construction and its height ;

d ) provisions on distances under section CARDINAL ;

e ) in the event that a general zoning plan and a supplementary zoning plan or a zoning plan with the specifications of the general and the supplementary zoning plan do not exist , the absence of the requirements pursuant to section CARDINAL ( CARDINAL ) or LAW .

( CARDINAL ) Other neighbours are entitled to claim non - compliance with the provisions listed in letters a ) and b ) of paragraph ( CARDINAL ) , to the extent that those provisions also serve to protect them .

( CARDINAL ) If private - law objections are raised in the hearing on the building project , the authority shall strive , as far as possible , to achieve an agreement . If an agreement can be reached , this shall be documented in the report of the hearing . If no agreement is reached , the neighbour shall be referred to the ordinary legal recourse for his objections . These objections shall be expressly stated in the building permit . ”


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is a NORP national of NORP ethnic origin . She was born in DATE and lives in PERSON . She was represented before ORG by PERSON and PERSON , attorneys , who act in cooperation with DATE občianske a ľudské práva , a nongovernmental organisation with its registered office in ORG .

On DATE , during the delivery of her second child , the applicant was sterilised by means of tubal ligation at ORG Pasteur in PERSON , a public hospital under the administration of ORG .

Prior to her sterilisation the applicant had not given her informed consent to the intervention and it had not been approved by a sterilisation commission .

As a result of the intervention the applicant has suffered serious medical and psychological consequences , including medical side effects and problems with her husband .

On DATE the applicant lodged an action for protection of her personal rights with the ORG . Her claim was rejected on DATE . On DATE the ORG upheld the first instance judgment . The courts found that the applicant had been sterilised following her request . No shortcomings in the procedure had been established .

On DATE the applicant lodged a constitutional complaint . She relied , inter alia , on Articles CARDINAL , CARDINAL § DATE , DATE , DATE and CARDINAL of the Convention .

On DATE ORG found that ORG had breached the applicant ’s rights under LAW , in conjunction with Articles CARDINAL and CARDINAL . It quashed ORG judgment and instructed that court to re - examine the case . ORG further awarded MONEY ( ORG ) to the applicant as just satisfaction and ordered ORG to reimburse the applicant ’s costs . ORG dismissed the remainder of the applicant ’s complaint .

The judgment stated that ORG had failed to consider in an appropriate manner the facts of the case in the light of the applicant ’s arguments including those under the LAW and other international instruments . ORG instructed ORG to take further evidence with a view to establishing whether , and if so , when and in which circumstances the applicant ( i ) had requested sterilisation , ( ii ) had been informed about the consequences of such intervention , and ( iii ) had given informed consent to it . It expressly instructed ORG to examine the applicant ’s arguments from the viewpoint of her rights under LAW and CARDINAL of the Convention .

As to the alleged discrimination of the applicant , ORG held that it did not consider it necessary to examine the applicant ’s complaint under , inter alia , LAW as it considered primordial the alleged breach of LAW . Following its above decision ORG was obliged to take a position as to the alleged breach of the applicant ’s rights under international instruments . Finally , ORG expressed the view that LAW positive obligation to incorporate antidiscrimination principles and measures in their law . As such , it was not directly applicable by public authorities in individual cases .

The relevant domestic law , practice and international materials are set out in GPE v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE , and GPE , GPE and PERSON v. GPE ( dec . ) , no . CARDINAL , DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney

The first applicant , Mr PERSON , and the second applicant , PERSON PERSON , are both NORP nationals who were born in DATE and DATE respectively and live in Rīga .

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

On DATE at TIME the State police in ORG received a call from a private individual who informed them that thieves had broken into his ORG flat . According to reports drawn up DATE by QUANTITY police officers , a patrol team arrived at the address given TIME . They saw a man ( the first applicant ) running away . They apprehended him and found various items on him , which , it was discovered later , belonged to the owner of the flat . According to a report drawn up DATE by police officer ORG , who had attended the arrest of the first applicant , when apprehended the latter bore no visible injuries .

Questioned on DATE , a neighbour , PERSON , stated that she had seen the first applicant attempting to escape when the police arrived .

Following his arrest the first applicant was taken to ORG police station ( PERSON GPE pārvalde ) . At CARDINAL a.m. the applicant ’s arrest record was drawn up . On DATE , from TIME to CARDINAL a.m. , the first applicant was interviewed and denied any wrongdoing .

He was repeatedly questioned DATE , from TIME , and confessed to the crime , which he said he had committed with CARDINAL acquaintances . He stated that he had been in the back yard of the building when CARDINAL of his acquaintances had given him a bag containing the stolen items which the police later discovered on him .

On DATE ( at an unknown time ) the first applicant , who was represented by a lawyer , was brought before a judge of FAC and remanded in custody .

On DATE the first applicant was taken to FAC .

On DATE investigators questioned the CARDINAL individuals identified by the applicant , as well as another suspect , PERSON The latter confessed to having committed the theft together with the first applicant .

On DATE the prosecutor informed the first applicant at FAC that he was being charged with large - scale theft . The applicant confirmed in writing that he had no objections or comments to make . Interviewed by the prosecutor on DATE , the first applicant denied his guilt and asked for the questioning to be postponed because he felt ill .

The first applicant was repeatedly questioned by the prosecutor on DATE , and confessed to committing the crime , which he said he had committed with J.V. According to the record of the interview , the applicant stated that his earlier statements were false as far as the CARDINAL acquaintances were concerned ( see paragraph CARDINAL above ) because “ he had been subjected to duress at the police station ” . On DATE PERSON refused to provide a statement .

On DATE the co - accused , PERSON , alleged that his earlier statement had been given as a result of physical force used by the police . On DATE he lodged a complaint in this respect , which was forwarded to the ORG police for examination . On DATE the ORG police refused to institute criminal proceedings in relation to the alleged ill - treatment of J.V.

On DATE final charges were brought against the first applicant and the co - accused , PERSON The first applicant refused the assistance of a lawyer . On being questioned by the prosecutor , he maintained the statements he had given on DATE .

On DATE the Rīga City ORG decided to commit the applicant and his co - defendant for trial and to maintain their remand in custody . The first hearing was scheduled for DATE .

The first hearing was rescheduled for DATE because the judge was involved in other proceedings . The hearing was subsequently postponed until DATE because the co - defendant requested the assistance of defence counsel . The DATE hearing was rescheduled for DATE due to the absence of witnesses and the victim .

From DATE the Rīga City Centre District Court held a hearing . The first applicant asked the court to request a medical certificate attesting to his physical condition following the questioning during which he had confessed to the crime . The co - accused requested the court to call the doctor who had treated him after he was questioned at the police station . The court left both requests open pending termination of the court investigation , and remitted the criminal case to ORG for additional pre - trial investigation .

Following an appeal by the prosecutor , in DATE ORG revoked the decision and referred the criminal case back to the lower court for adjudication on the merits . The first applicant submitted an ancillary complaint to ORG in which he stated , inter alia , that during the pre - trial investigation he had been subjected to physical ill - treatment . On DATE the ORG decided to leave the complaint unexamined , on the ground that the impugned decision was not subject to an appeal .

In DATE the prosecutor asked ORG to transfer the criminal case to ORG which , according to the prosecution , had jurisdiction in the case . ORG refused the request , and in DATE the case was sent back to the district court . At the regional court ’s request ORG ruled in DATE that the criminal case was to be tried by ORG .

The hearing scheduled for DATE was postponed as witnesses and the victim failed to appear .

DATE the hearing was postponed due to the co - defendant ’s illness .

On DATE the Rīga City Centre District Court , after obtaining the first applicant ’s approval for the case to be examined in the absence of witnesses , began hearing the case . During the hearing the first applicant pleaded not guilty and alleged that he did not know PERSON and that he had provided incriminating statements only to avoid being physically ill - treated .

On DATE the Rīga City ORG found the first applicant guilty , and sentenced him to DATE and CARDINAL months’ imprisonment . The first applicant had already served this term in pre - trial detention and was immediately released . His co - defendant was acquitted for lack of evidence .

The court gave weight to the facts that the first applicant had never denied that he had the stolen items on him when he was arrested , and that this had been confirmed by ORG statements . Preferring to give credence to the statements the applicant had made during the pre - trial investigation , the court noted that the case file disclosed no evidence to support the allegations that during his questioning the first applicant had been ill - treated by police officers . Moreover , the first applicant had not raised any complaints in this regard .

The court also relied on the fact that during the pre - trial investigation the first applicant had twice confessed to the prosecutor that he had committed the offence . It noted that the first applicant had never complained about the activities of the prosecutor .

In his appeal the first applicant pleaded that the statements made during the pre - trial investigation had been obtained as a result of his ill - treatment by police officers .

The appellate hearing scheduled for DATE was postponed as the first applicant asked for witnesses to be summoned on his behalf .

On DATE the lower court ’s decision was upheld by ORG . According to the transcript of the hearing , police officer ORG stated that he did not remember either the first applicant or his arrest . On cross - examination by the first applicant , ORG confirmed that force had been used to apprehend the first applicant . A defence witness , PERSON , testified that she had seen police officers beating the first applicant on DATE . The prosecutor in response raised doubts as to whether the first applicant had been arrested in the circumstances alleged .

In the judgment the appellate court referred to the lower court ’s reasoning and stated in particular :

“ ... The case file bears no evidence that during the pre - trial investigation [ the first applicant ] had been ill - treated by police officers ; moreover [ the first applicant ] had confessed [ to the crime ] being questioned twice by the prosecutor , and [ the first applicant ] had never complained about ill - treatment by members of the prosecutor ’s office ” .

It further observed that the first applicant ’s guilt had been attested to by a considerable amount of other evidence , such as witness statements and material evidence . It also noted that self - incriminating statements or denial of guilt could not serve as the only grounds to establish or refute guilt . The court further recognised that the first applicant ’s pre - trial statements in relation to PERSON had been of a confusing nature and could not be used as proof of the guilt of his co - accused .

In his appeal on points of law the first applicant reiterated that his confession to the police officers had been obtained as a result of police ill - treatment . He also noted that he had not lodged an official complaint because of fear of retaliation by the police . On DATE the ORG of ORG , in a preparatory session , dismissed his appeal without examining it on the merits . The ORG remarked that the internal investigation of the alleged ill - treatment did not find that the applicant had been beaten up by police officers .

It appears from the materials in the criminal file that on DATE the first applicant asked the lower court to lift the detention order and stated that his confession to the offence had been obtained under duress . On DATE the second applicant asked the lower court to release her son and stated , inter alia , in general terms that her son ’s confession had been obtained by ill - treatment . On DATE the first applicant asked the judge of the lower court to request information about his state of health when he was admitted to FAC and testified before the prosecutor .

On DATE the second applicant , in a representation to the President of the Republic , asked the authorities to investigate the ill - treatment to which the first applicant had been subjected on DATE . She stated that when she had first seen her son in prison he had been severely beaten and had lost a front tooth ; his clothes were covered in blood . The lapse of time between the alleged ill - treatment and the complaint was explained by the first applicant ’s fear that he would be the victim of reprisals while in prison .

At the request of the head of the ORG police inquiry department ( NORP policijas izziņas pārvalde ) for information on whether the criminal file contained information revealing the unauthorised use of force against the first applicant , the judge of the lower court reported in DATE that no such information could be found in the criminal file .

The complaint was forwarded to ORG which , on DATE , refused to institute criminal proceedings . The decision , drawn up by investigator ORG , stated :

[ CARDINAL . ] Under questioning ... [ the first applicant ] explained that ... [ a]t the arrest the police officers had knocked him to the ground , kicked him and hit him with truncheons , as a result of which he had lost consciousness . He regained consciousness only in the police car ... During the interrogation he had been subjected not only to physical ill - treatment but he also received threats and psychological intimidation . During the interrogation many police officers participated in beating and kicking him , for an extended period of time , on the body and head ... In addition , a plastic bag was put over his head , so that [ the first applicant ] could not breathe . In his statement [ the first applicant ] alleged that he had been ill - treated by many police officers , but that he could not remember or identify any of them .

[ CARDINAL . ] In addition , in his statement [ the first applicant ] alleged that he had repeatedly complained to the prosecutor ’s office about police ill - treatment , which contradicts the information [ received ] from ORG [ according to which ] there is nothing to indicate ... that during the pre - trial investigation [ the first applicant ] had been subjected to ill - treatment by police officers or the prosecutor .

[ CARDINAL . ] When taken into the temporary detention unit of the ORG police station no injuries were identified on the [ first applicant ] , and he did not make any complaint , either about his health or about the behaviour of the police officers .

[ CARDINAL . ] [ The first applicant ] asked for medical assistance only on DATE in FAC : he was examined and bodily injuries were recorded ; on this basis on DATE ] a forensic medical examination was carried out . It appears from the report of [ the forensic medical examination ] that [ the first applicant ] had sustained the following bodily injuries : contusion on the right knee joint ; contusion on the back with haematoma ; bruises on both arms ( the number , localisation and characteristics of the bruises not described ) , which were considered to be minor bodily injuries causing only short - term health problems of DATE . It was impossible to establish the exact time the injuries had been sustained , but it could not be excluded that the injuries could have been inflicted on DATE .

[ CARDINAL . ] [ The police officer ] GPE stated that ... he had taken part in the arrest of [ the first applicant ] . He had not observed any visible bodily injuries on [ the first applicant ] , and he could not remember the first applicant complaining of health problems or about the activities of the police officers . If the first applicant had raised any complaint about his health he would have been transferred to a medical establishment .

[ CARDINAL . ] Accordingly ... it can be concluded that during the preliminary review of the complaint no objective confirmation was obtained as to the allegations that on DATE ... police officers had intentionally inflicted bodily injuries on [ the first applicant ] , as [ the latter ] complained about health problems only on DATE , whereas he was apprehended and questioned on CARDINAL June ” .

The Chancellery of the President and ORG were informed of the decision taken , and a copy of the decision was sent to the second applicant .

Following the second applicant ’s complaint of CARDINAL DATE , addressed to the President of the Republic , on DATE a superior prosecutor of ORG revoked the impugned decision and sent the case for additional investigation to the ORG police ( NORP policijas GPE pārvades GPE izmeklēšanas pārvalde ) on the ground that not all the facts and circumstances had been established when deciding whether to institute criminal proceedings in connection with allegations of ill - treatment . It appears that the prosecutor had issued specific instructions to the investigators .

On DATE , after obtaining statements from CARDINAL other police officers who had taken part in the arrest of the first applicant , the investigator GPE established that the police officers had used force in accordance with section CARDINAL of LAW , in that the first applicant had not complied with the ORG requests and had attempted to escape . The decision stated :

[ the former police officer ] ORG stated that he had apprehended [ the first applicant ] and since the latter ... had attempted to flee , he had caught [ the first applicant ] and knocked him down , and that as a result they had both fallen down . As the first applicant did not resist , there was no need to apply other means of force . ... [ A witness ] PERSON testified that she had seen the first applicant being apprehended from her window , and that many police officers had spent a long time beating [ the first applicant ] with truncheons and kicking him ...

... [ T]here are grounds to conclude that the assertions in PERSON ’s statements contradict the report of bodily injuries in the forensic expert ’s report [ of DATE ] ... and therefore there are grounds to call into question PERSON ’s statement that there had been prolonged beating [ of the first applicant ] ... in that the bodily injuries of [ the first applicant ] did not correspond to the [ above ] description .

... [ T]here are grounds to conclude that on DATE , when [ the first applicant ] was apprehended , the police officers acted in accordance with LAW , and the minor bodily injuries could have been inflicted while he was being apprehended , for , as noted by the police officers , [ the first applicant ] did not comply with their request , and attempted to escape . ”

NORP The decision was sent to the supervising prosecutor of ORG and to the second applicant .

On DATE the decision was upheld by a prosecutor attached to ORG . The prosecutor stated that in the course of an additional inquiry no further evidence substantiating the allegations was identified . The decision also noted that , considering the time that had passed since the alleged events , it was practically impossible to obtain new information which could confirm or deny the applicants’ version of the events . The decision was subject to appeal to ORG .

According to a medical report drawn up by the medical unit of FAC , on DATE the first applicant had complained of pain in the right knee joint and when urinating . He was diagnosed as having haematomas on his back ( measuring QUANTITY ) , on both arms ( from QUANTITY to QUANTITY ) and bruises on both arms ( QUANTITY ) . According to the medical records of DATE the applicant ’s left knee was tender and painful and he was diagnosed as having a urinary infection and bruises on his body . The medical records also stated that according to the applicant “ he had been beaten up when being arrested ” .

CARDINAL Following the first applicant ’s complaint of ill - treatment , on DATE a forensic medical expert assessment was carried out , which concluded that the bodily injuries ( an unspecified number and type of bruises on the left knee , arms and back ) were minor and would not cause health problems for DATE . The expert report could not determine the exact time the injuries had been inflicted on the first applicant , but it did not rule out the possibility that they had been inflicted on DATE .

According to the information provided by the Government , where a person showed signs of bodily injuries he had to undergo a medical examination before being admitted to a police temporary detention unit . However , the DATE period for the keeping of such documents had expired , and so that information as regards the first applicant was no longer available .

Under section CARDINAL , the basic duties of police officers include the conducting of investigations and necessary searches and other measures prescribed by the law in order to shed light on criminal offences and to identify their perpetrators .

Section CARDINAL provides a list of situations in which police officers are allowed to use physical force , such as when arresting and conveying individuals to police stations , as well as when restraining arrested , detained and convicted persons if they do not comply or if they resist police officers , or if there is reason to believe that they may escape or harm others or themselves ;

Section CARDINAL states that a police officer shall be liable for any unlawful action in accordance with the procedure specified by law . If a police officer has violated an individual ’s rights and lawful interests , the police authorities shall take measures to redress the violation and award compensation for damage caused .

It also states that a police officer must not carry out or support any activity related to torture or other cruel , inhuman or degrading punishment . No police officer may cite an order from a superior , or exceptional circumstances such as a state or threat of war , a threat to national security , internal political instability of the ORG or a state of emergency , to justify torture or other cruel , inhuman or degrading treatment or punishment .

According to paragraph CARDINAL ( the wording in force until DATE ) , the head of the police station reviews and decides on complaints about the actions of a police officer under his command . Such decisions are subject to appeal within DATE to a higher - level institution .

Pursuant to sections CARDINAL and DATE , the functioning of the police shall be under the control of ORG , the Minister for the ORG and local municipalities , within the scope of their competence . The lawfulness of police operations is supervised by ORG and subordinate prosecutors .

Section CARDINAL provides , inter alia , that courts and public prosecutors are obliged to initiate criminal proceedings if indications have been discovered that an offence has been committed .

Section CARDINAL provides that a public prosecutor performs supervisory functions , inter alia , by revoking unlawful and unreasoned decisions of the police , and other public prosecutors in subordinate positions , concerning criminal cases .

Pursuant to sections DATE and DATE , only evidence obtained , proved and assessed in accordance with this code may be used in determination of a case , and courts must freely and objectively assess the evidence and reach their own conclusions which are based on a full , complete and objective assessment of all the materials of the case and in accordance with law and justice . No evidence has any predetermined weight which would bind the court .

Section CARDINAL provides that defence counsel in a criminal case has the right to meet a suspect , an accused , or a defendant in private ; to submit evidence ; to lodge objections and submit requests ; to participate in the questioning of a suspect and the charging and questioning of an accused , as well as in other investigative actions following a request raised by the suspect , accused or defence counsel ; to participate in adjudication of a case ; and to lodge complaints against decisions adopted by the entity in charge of an investigation , a prosecutor or a court .

By virtue of section CARDINAL a prosecutor shall question the accused without delay following the bringing of charges . If immediate questioning is impossible , a record shall be drawn up explaining the reasons for the delay .

Section CARDINAL sets out a procedure for lodging complaints against the activities of investigators , under which a suspect , accused persons and their representatives and defence counsel may submit a complaint to a prosecutor about the activities of investigators and others . Complaints shall be submitted directly to a prosecutor or to the person whose activities are the subject of the complaint . ORG may be either written or oral . In the latter case the complaint shall be recorded by a prosecutor or an investigator and that record shall be signed by the complainant . An investigator shall forward the complaint , together with explanations , to a prosecutor within TIME .

Pursuant to section CARDINAL , a prosecutor shall decide on a complaint within DATE following the date of reception and shall notify the complainant of the outcome . If a complaint is rejected the prosecutor shall notify the complainant of the reasons . An investigator or the complainant may appeal against the prosecutor ’s decision to a higher - level prosecutor .

Section CARDINAL stated that complaints about a prosecutor ’s activities are to be submitted to a prosecutor at a higher level , and are to be decided on in accordance with the procedures provided by sections QUANTITY and CARDINAL .

NORP Under CARDINAL , a judgment can be examined by the cassation court only if it is vitiated by a material infringement either of criminal law or the law of criminal procedure . Section CARDINAL states , inter alia , that breaches of the provisions of LAW , which , inter alia , affected or could have affected the lawfulness , reasoning and fairness of a judgment , are serious infringements of LAW .

In accordance with section CARDINAL , a prosecutor shall supervise the execution of custodial sentences and the institutions in which individuals are detained as a result . Furthermore , section CARDINAL provides that a prosecutor shall , in accordance with the procedures prescribed by law , carry out an investigation if the information received concerns a crime or a violation of the rights and lawful interests of , inter alia , detainees . Paragraph QUANTITY states that a prosecutor has the duty to take measures required for the protection of rights and lawful interests of persons and the State , if the examination of the facts regarding the violation of law is assigned by , inter alia , the President of the Republic .

According to section DATE , when examining an application in accordance with the law , a prosecutor has the right : to request and to receive regulatory enactments , documents and other information from administrative authorities ... to order heads and other officials of ... institutions and organisations to carry out examinations , audits and expert examinations and to submit opinions , as well as to provide the assistance of specialists in examinations carried out by the prosecutor ; to summon a person and to receive from him / her explanations as to breaches of the law ... When taking a decision on a breach of law , the prosecutor , depending on the nature of the breach , has the duty ... to bring an action to the court , to initiate a criminal investigation or to initiate [ proceedings on ] administrative or disciplinary liability .

By virtue of LAW , if it is necessary to bring an illegal activity to a halt , to rectify the consequences of such activity or to prevent a violation , a prosecutor shall submit a submission in writing to the relevant undertaking , authority , organisation , official , or person .


The applicants , Mr PERSON and Mr PERSON , are GPE nationals , born in DATE and DATE respectively , who are both resident in PERSON ( GPE ) . They have resided in the GPE ( the Realm in LOC ) for DATE , but not for a period of DATE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE and DATE respectively the applicants requested ORG of GPE ( College PERSON en wethouders ) to include them in the electoral register for the elections of members of ORG of ORG on DATE .

By decisions of CARDINAL and DATE respectively ORG rejected their requests , as they had not been residents of the GPE for a period of DATE . Pursuant to Section CARDINAL § CARDINAL and CARDINAL sub A of LAW ( PERSON ) the applicants were thus not entitled to vote .

The applicants filed an appeal against these decisions with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) . The applicants alleged that ORG decisions were in breach of inter alia LAW No . CARDINAL , submitting the following argumentation . ORG is a co - legislature in matters concerning GPE ( hereinafter also referred to as : GPE political control over the establishment of general orders in council for GPE ( algemene maatregelen van rijksbestuur ) . ORG , of which ORG is a part , in fact also acts as a “ ORG ” , thus the elections of members of ORG of ORG imply also the elections of members of the “ ORG ” . In other words , the overlap between members of ORG and the ones of the “ ORG ” implies ipso facto an overlap in respect of the elections of members of ORG of ORG and the ones of ORG of the “ ORG ” .

By final judgment of DATE ORG of ORG dismissed the ORG appeal , holding inter alia the following :

“ CARDINAL.CARDINAL.CARDINAL . GPE is composed of CARDINAL autonomous countries , the GPE , GPE and GPE . The relations within GPE and the duties and responsibilities of the different countries are regulated in the LAW [ for GPE ; PERSON het FAC , hereafter referred to as “ the Charter ” ] , which does not provide for ORG . The CARDINAL countries each have their own parliamentary representative body . The legislative power concerning GPE matters is exercised by the legislature of GPE Articles DATE of the Charter lay down the legislative procedure , providing for control over , and influence on , the legislative process for the representative bodies of the GPE , GPE and GPE .

ORG are forwarded to the representative assemblies of GPE and GPE at the same time as they are introduced in ORG . These [ assemblies ] are empowered , prior to the PERSON being publicly debated in ORG , to examine the PERSON , to issue a written report thereon and to designate CARDINAL or more special delegates . Furthermore , the Ministers Plenipotentiary of the country in which the legislation is to apply – whose actions have to be accounted for in the representative assemblies of GPE and GPE – , are afforded the opportunity to attend the debate on the PERSON in ORG , to furnish information to the Upper and ORG , to propose amendments to the PERSON and to express their opinion on the PERSON before a final vote is taken . If , after the Minister PERSON has stated his or her opposition to the PERSON , ORG adopts it with a majority of CARDINAL of the number of votes cast , the proceedings shall be suspended and further discussions on the PERSON will take place in ORG . The same power is conferred on special delegates of the representative assemblies of GPE and GPE . Therefore , the LAW provides for a democratically legitimated contribution of the residents of the GPE , GPE and GPE on GPE legislation by the representative assemblies of the different countries , albeit that the contribution is not always organised in the same way in the countries . ( ... )

CARDINAL.CARDINAL.CARDINAL . It has been established that the appellants are eligible to vote in the elections of members of ORG . Therefore the rejection of their requests for registration does not constitute grounds to find a violation of the right laid down in LAW No . CARDINAL ( ... ) . That argument thus fails .

The appellants further argue that the rejection of their requests constitutes an unjustified difference in treatment , in breach of LAW . They are excluded as GPE nationals from the right to vote in the ORG elections , merely because they are residents of GPE , whereas GPE nationals who are also not resident of the GPE do have that right .

CARDINAL.CARDINAL.CARDINAL . This argument also fails . The legislature has chosen to grant the right to vote in elections for ORG also to GPE nationals who are not residents of the GPE , in order to guarantee that all GPE nationals have the right to vote for a representative assembly . In respect of residents of GPE it is not in dispute that they have the right to vote for the ORG of their country . GPE nationals who are not , or not any longer , residents of GPE are ineligible , or lose their eligibility , to vote in elections for ORG . In that respect the CARDINAL situations are not the same , so for that reason alone there is no unjustified discrimination , within the meaning of LAW . The fact that LAW grants the right to vote to GPE nationals who are residents of GPE and GPE and who have resided in the GPE for DATE , thereby enabling them to vote in the election of CARDINAL representative assemblies , is also not a circumstance which leads to the conclusion that there is an unjustified difference in treatment , within the meaning of the aforementioned provision . From the drafting history of Section CARDINAL of LAW ( Parliamentary Documents I , DATE , CARDINAL CARDINAL , nr . CARDINALb , p. CARDINAL ) it can be deduced that the legislature is of the opinion that a residence in GPE of DATE or more creates a tie with the GPE to such an extent , that it is justified to grant the right to vote in the election of members of ORG [ to this category of GPE nationals ] . The residents of GPE and GPE who comply with this criterion are therefore clearly distinguishable from those who have never resided in the GPE . As regards residents of GPE and GPE who have resided in the GPE for a period of DATE , it can not be held that the legislature could not reasonably have decided upon that criterion . ”

Apart from the proceedings above , the applicants also started proceedings against ORG of GPE concerning the rejection of their application for inclusion in the electoral list for the election of members of ORG on DATE . In the course of those proceedings , ORG of ORG made a reference for a preliminary ruling to ORG of ORG . On DATE ORG delivered its judgment ( Case C-CARDINAL/CARDINAL ) , which reads inter alia :

“ CARDINAL . While , in the current state of Community law , there is nothing which precludes the Member GPE from defining , in compliance with Community law , the conditions of the right to vote and to stand as a candidate in elections to ORG by reference to the criterion of residence in the territory in which the elections are held , the principle of equal treatment prevents , however , the criteria chosen from resulting in different treatment of nationals who are in comparable situations , unless that treatment is objectively justified .

§ PERSON Here , the relevant comparison is between a GPE national resident in GPE or in GPE and CARDINAL residing in a non - member country . They have in common that they are GPE nationals who do not reside in the GPE . Yet there is a difference in treatment between the CARDINAL , the latter having the right to vote and to stand as a candidate in elections to ORG held in the GPE whereas the former has no such right . Such a difference in treatment must be objectively justified .

§ QUANTITY At the hearing , ORG stated that LAW objective was to enable GPE nationals from the GPE residing abroad to vote , since those nationals are assumed still to have links with GPE society . However , it is also apparent from that ORG ’s explanations at the hearing that a GPE national who transfers his residence from GPE to a non - member country has the right to vote in the same way as a GPE national transferring his residence from the GPE to a non - member country , while a GPE national - resident in GPE does not have that right .

§ CARDINAL NORP In that regard , the objective pursued by the GPE legislature consisting in the conferment of the right to vote and to stand for election on GPE nationals who have or have had links with the GPE falls within that legislature ’s discretion as regards the holding of the elections . However , ORG has not sufficiently demonstrated that the difference in treatment observed between GPE nationals resident in a non - member country and those resident in GPE or GPE is objectively justified and does therefore constitute an infringement of the principle of equal treatment . ”

In DATE , GPE ( until then part of GPE ) obtained internal autonomy and became a country ( separate from GPE ) within GPE . The status of these countries and the relations between them and the GPE and towards the GPE as a whole is laid down in the Charter for GPE . LAW provides that the CARDINAL countries shall manage their internal matters independently . Therefore GPE has its own LAW ( Staatsregeling ) and its own Net and parliament , i d est the Parliament of Aruba ( GPE ) , which body has CARDINAL members , who are elected freely , by secret ballot and by means of proportional representation for a DATE term .

The legislature of the GPE consists of ORG and ORG ( the Monarch and ORG ) together .

Relevant ( excerpts of ) articles of the LAW for GPE ( as amended by GPE of DATE ) read as follows :

“ DATE

Legislative power in GPE affairs shall be exercised by the legislature of GPE Kingdom Bills shall be considered with due observance of the provisions of ORG CARDINAL to CARDINAL inclusive .

Article CARDINAL

The King shall forward ORG , at the same time as they are introduced in ORG , to the representative assemblies of GPE and GPE .

Article CARDINAL

The representative assembly of the country in which the legislation is to apply shall be empowered , before the PERSON is publicly debated in ORG , to examine the PERSON and to issue a written report thereon , if necessary within a fixed time - limit .

Article CARDINAL

NORP The Minister Plenipotentiary of the country in which the legislation is to apply shall be afforded the opportunity to attend the debate on the PERSON in ORG and to furnish such information to the ORG and ORG as he considers desirable .

NORP The representative assembly of the country in which the legislation is to apply may decide to designate , for the purposes of the debate on a particular PERSON in ORG , CARDINAL or more special delegates who shall likewise be empowered to attend the debates and furnish information .

The Ministers Plenipotentiary and the special delegates shall be empowered to propose amendments to a PERSON during the proceedings in ORG .

Article CARDINAL

NORP Before a final vote is taken on any GPE in the GPE and ORG , the Minister PERSON of the country in which the legislation is to apply shall have the opportunity to express his opinion on the PERSON . If , after the Minister PERSON has stated his opposition to the PERSON , ORG adopts it with a majority of CARDINAL of the number of votes cast , the proceedings shall be suspended and ORG shall consider the PERSON further .

NORP If the meetings of the GPE or ORG are being attended by special delegates , the power referred to in paragraph CARDINAL shall devolve upon the delegate designated for the purpose by the representative assembly .

Article CARDINAL

NORP GPE , GPE and GPE shall conduct their internal affairs autonomously .

NORP The interest of the GPE shall be a matter of common concern to the countries .

Article CARDINAL

NORP The representative assemblies shall be elected by GPE nationals who are residents of the country concerned and have attained an age to be determined by the countries , which should not exceed DATE . Each voter shall cast only CARDINAL vote . Elections shall be free and by secret ballot . In case of necessity the countries may impose restrictions . ...

NORP The countries may award to GPE nationals who are not residents of the country concerned the right to vote in elections for the representative assemblies ... ”

Section CARDINAL of LAW ( as amended on DATE ) reads as follows :

“ CARDINAL . Members of ORG of ORG shall be elected by persons who are GPE nationals on DATE and have attained DATE on polling DATE , with the exception of persons who have their lawful place of residence in GPE or GPE on DATE .

NORP This exception shall not apply to :

( a ) GPE nationals who have been resident in the GPE for DATE ;

( b ) GPE nationals who are employed in the GPE public service in GPE or GPE and their GPE spouses or partners and children , in so far as they have joint households . ”


The applicant is a national of GPE , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The applicant arrived in GPE on DATE and requested asylum . During lengthy interviews by the NORP authorities , he stated that since DATE he had worked actively to reveal police brutality and other misconduct by the police in GPE . In DATE he had founded an association called “ ORG ” and in DATE he had started another organisation called “ The Standing Committee on Law Enforcement Development ” . As a consequence of his activities , he had allegedly been subjected to systematic police persecution since DATE . By DATE the persecution had reached serious proportions . Allegedly , there had been serious attempts to injure him , he had been subjected to surveillance , his property had been destroyed and he had been attacked with chemical substances . His reports to the police authorities had been to no avail .

On DATE ORG ( ORG invandrarverk ) refused the applicant public legal counsel in the proceedings before ORG . The applicant appealed against this decision to ORG ( GPE ) .

The applicant ’s asylum application was rejected by ORG on DATE . ORG found that there was no evidence to show that the GPE police authorities had been persecuting the applicant . Thus , he was not in need of protection in GPE . The applicant appealed against this decision to ORG ( Utlänningsnämnden ) .

On DATE ORG upheld ORG decision not to award the applicant public legal counsel .

On DATE ORG refused the applicant public legal counsel in the proceedings before ORG . It appears that this decision was not appealed against by the applicant to ORG .

ORG decision not to grant the applicant asylum in GPE was upheld by ORG on DATE . ORG found that if the applicant had been subjected to the alleged maltreatment in GPE , it was the result of criminal acts committed by individuals and was not attributable to the ORG . No appeal lay against this decision .

Subsequently , against the same background as initially , the applicant submitted a new request for asylum to ORG and also applied for legal aid . On DATE the ORG refused the applicant public legal counsel and also rejected his new application for asylum . No appeal lay against either of these decisions .