Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, lack of jurisdiction);Violation of Art. 6-1 (independent and impartial tribunal);Not necessary to examine other complaint under Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

Mr PERSON is a NORP national and was born in DATE . He lives in GPE and works as a journalist .

On CARDINAL DATE a memorial ceremony was held in GPE for PERSON and CARDINAL of his friends , PERSON and PERSON . Together , they had started an extreme left - wing movement among university students at DATE . They were sentenced to death for seeking to destroy the constitutional order by violence and executed in DATE .

The applicant was invited to speak at the ceremony , but was unable to attend and sent the organising committee the following message to be read out in public :

“ Dear friends ,

Though ill health has prevented me from being with you , I did not want to miss this opportunity to salute you and to express my solidarity with the revolutionary cause .

GPE is based on negation of the rights of workers and NORP . Within the geographical boundaries of this country , any hint of human action , any aspiration for freedom , any claim to assert the rights of the workers and the NORP has always met with a reaction on the part of the rulers that has been ruthless in its denial and destruction . It has to be said that , because of their origins and historic traditions , the rulers have always distinguished themselves through a cruel militarism that is the product of their mediocrity , backwardness , and thirst for ever more money and , lastly , of the fundamental nature of the Republic and its subservience to imperialism . The more the structural crisis of the established order deepened , the more the ruling classes resorted to imperialism and militarism in their desire to bring it to an end .

The rulers , who had condemned the political and social lands of the country to sterile aridity and , in order to break any resistance and stifle any revolt by the masses , had put a chain of dependence around society ’s neck and imposed oppressive uniformity upon it , succeeded for DATE in keeping our people in the deep gloom of silence .

However , DATE revival , the action organised by dynamic social strata previously excluded from the political life of the country such as the workers , the intelligentsia and young people and , lastly , the revolutionary democratic resistance movement of DATE have helped to transform the history of the nation , and their profound influence can still be felt DATE .

A red hope is nascent in the tired barren hearts of the workers . A legend is born in the long history of defeat of the oppressed .

From now on , nothing and no - one will be the same !

In the face of the longstanding crisis of the established order , the quest for independence and freedom which at that time became ingrained in society ’s conscience , in the collective memory of the toiling masses , in the memory of the young and the intelligentsia and in the conscience of the workers henceforth constitutes a refuge for society . The spirit of resistance and revolt of DATE , a nightmare for the rulers , has been with the country for DATE . The socialist flag , which was borne aloft at the time and is representative of the only system capable of replacing the incumbent capitalist system , is still flying . From the seeds of liberation of the NORP people sown in DATE the guerrilla campaign in the mountains of GPE was born .

As for us , the rivers , streams , torrents and waterfalls that emerged from the sweeping waters of DATE , we are now flowing on toward the final release of mankind , across the plains formed by our class , our people and democracy into the ocean of liberty of a classless society . Like many PERSON [ a reference to PERSON , whose first name means “ the sea ” in NORP ] , we head towards the seas of freedom .

DATE , before ORG , on these fertile alluvia formed of our solidarity and unity in the struggle , we hail those who have been invited to the heavenly feast .

Hail , friends !

Hail to those who are marching ‘ ORG , Like many Denizes’ !

Hail to you ,

the rose LOC , the rose PERSON , the rose ORG ... the CARDINAL roses of Karşıkaya planted on the branch of my heart the CARDINAL roses of Karşıkaya planted in DATE of my tears with all their flowers of blood . ”

On DATE ORG at ORG ( “ ORG ” ) accused the applicant of disseminating propaganda against the unity of the NORP nation and the territorial integrity of the ORG . In order to request the application of section CARDINAL(CARDINAL ) of ORG ( Law no . ORG – see paragraph CARDINAL above ) , he relied on passages from PERSON message , which had been recorded when read out at the memorial ceremony ( these are the passages that appear in italics in paragraph CARDINAL above ) .

Mr PERSON pleaded not guilty before ORG , which sat as a chamber of CARDINAL judges , including a military judge . He did not dispute having drafted the message , but maintained that he had never intended to promote separatism .

On DATE ORG found the applicant guilty of the offence under section CARDINAL(CARDINAL ) of PERSON no . ORG and sentenced him to DATE , CARDINAL months’ imprisonment and a fine of MONEY ( TRL ) .

The judgment was delivered by a majority of CARDINAL to one , the military judge dissenting . The latter explained in his dissenting opinion that , in his view , the offence of disseminating separatist propaganda under section CARDINAL(CARDINAL ) of PERSON no . ORG had not been made out , but that there had been non - public incitement to commit a crime and , consequently , LAW ( see paragraph CARDINAL below ) should have been applied .

The other CARDINAL members of the chamber found that passages such as : “ ... From the seeds of liberation of the NORP people sown in DATE the guerrilla in the mountains of GPE was born ... As for us , the rivers , streams , torrents and waterfalls that emerged from the sweeping waters of DATE , we are now flowing on ... across the plains formed by our class , our people and democracy ... ” ( see paragraph CARDINAL above ) , amounted to separatist propaganda against the unity of the NORP nation and the territorial integrity of the ORG . In their view , the applicant ’s conviction was justified by the message – whose wording was not in issue – taken as a whole .

In a judgment of DATE , ORG dismissed an appeal by the applicant .

On DATE the applicant completed his prison sentence . However , as he had not paid the fine that had been imposed , he was kept in detention pursuant to section CARDINAL of LAW ( Law no . CARDINAL ) , being required to serve an additional day ’s imprisonment for every TRL CARDINAL due ( see paragraph CARDINAL below ) .

On DATE Mr PERSON paid the balance of the fine and was released .

On DATE Law no . CARDINAL of DATE came into force . Inter alia , it reduced the length of prison sentences that could be imposed under LAW no . ORG while increasing the level of fines ( see paragraph CARDINAL below ) . In a transitional provision relating to section CARDINAL , PERSON no . CARDINAL provided that sentences imposed pursuant to section CARDINAL of Law no . ORG would be automatically reviewed ( see paragraph CARDINAL below ) .

Consequently , ORG reviewed the applicant ’s case on the merits . On DATE it imposed an additional fine of GPE CARDINAL,CARDINAL,CARDINAL , with payment suspended . That decision became final on DATE .

Article CARDINAL of the Criminal Code reads as follows :

“ Non - public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months’ and CARDINAL years’ imprisonment and a ... fine of from CARDINAL MONEY .

A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions shall , on conviction , be liable to CARDINAL years’ imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by DATE .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

The Prevention of Terrorism Act ( Law no . CARDINAL of DATE ) , has been amended by PERSON no CARDINAL of DATE , which came into force on DATE . Sections CARDINAL and CARDINAL read as follows :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine . ”

" “ Persons convicted of the offences contemplated in the present law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served DATE of their sentence , provided they have been of good conduct .

The first and second paragraphs of section CARDINAL … of LAW ( Law no . CARDINAL ) shall not apply to the convicted persons mentioned above . ”

The PERSON of DATE contains a “ transitional provision relating to section CARDINAL ” that applies to the amendments which that law makes to the sentencing provisions of section CARDINAL of Law no . CARDINAL . That transitional provision provides :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE . ”

Law no . CARDINAL prescribes rules through , inter alia , the following provisions , regarding the collection of fines and automatic parole .

“ The term ‘ fine’ shall mean payment to the ORG of a sum fixed within the statutory limits ...

If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor ...

The sentence of imprisonment thus substituted for the fine may not exceed DATE … ”

“ … persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... ”

The relevant provisions of LAW concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where one of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW see paragraph CARDINAL above ) , or of disseminating separatist propaganda against the indivisible unity of the State ( section CARDINAL of Law no . CARDINAL – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence .

Furthermore , the Government submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the judgments of DATE ( no . CARDINAL ) and DATE ( no . CARDINAL ) ; DATE ( no . CARDINAL/CARDINAL ) , DATE ( no . CARDINAL ) , CARDINAL DATE ( no . PERSON ) , DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) ; DATE ( no . TIME ) , DATE ( no . CARDINAL ) , DATE ( no . GPE ) , DATE ( no . CARDINAL/ CARDINAL ) and CARDINAL DATE ( no . CARDINAL/CARDINAL ) .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of “ propaganda ” , CARDINAL of the constituent elements of the offence .

ORG were created by PERSON no . DATE of DATE , in accordance with LAW . That law was annulled by ORG on DATE . The courts in question were later reintroduced into the NORP judicial system by LAW . The relevant part of the statement of reasons contains the following passage :

“ There may be acts affecting the existence and stability of a ORG such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately . For such cases it is necessary to set up ORG . According to a principle inherent in our LAW , it is forbidden to create a special court to give judgment on a specific act after it has been committed . For that reason ORG have been provided for in our LAW to try cases involving the above - mentioned offences . Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence . ”

The composition and functioning of ORG are subject to the following rules .

NORP The constitutional provisions governing judicial organisation are worded as follows :

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . ”

“ Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW ”

“ ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .

The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor , shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .

Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .

Appeal against decisions of ORG shall lie to ORG .

“ Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... ”

Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG , provide :

“ In the capitals of the provinces of … ORG shall be established to try persons accused of offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security . ”

“ The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . ”

“ The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian … judges , the other members , whether regular or substitute , military judges of the first rank … ”

“ The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .

Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG … may not be appointed to another post or place , without their consent , within DATE …

If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation . ”

“ ORG shall have jurisdiction to try persons charged with

( d ) NORP offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,

( e ) NORP offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State – meaning both the national territory and its people DATE or against the free , democratic system of government and offences directly affecting the ORG ’s internal or external security .

“ ORG shall hear appeals against the judgments of ORG . ”

“ The rules governing the rights and obligations of … military judges appointed to ORG and their supervision … , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession …

The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors … and the files on any investigations conducted in respect of them … shall be transmitted to ORG . ”

“ A ORG may be transformed into a ORG , under the conditions set forth below , when a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG ”

The relevant provisions of ORG are worded as follows :

“ The aptitude of military judges … appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG ( Law no . CARDINAL ) .

( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members … shall be the Minister of State in ORG , followed by PERSON .

“ Members … of ORG belonging to ORG … shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG … ”

“ Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces …

The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors … ”

“ The rules governing the salary scales , salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers . ”

“ The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :

A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .

B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .

The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file … ”

“ When military judges … sit in court they shall wear the special dress of their civilian counterparts … ”

Article CARDINAL of LAW of CARDINAL DATE provides :

“ It shall be an offence , punishable by DATE imprisonment , to abuse one ’s authority as a civil servant in order to influence the military courts . ”

Under LAW of PERSON no . CARDINAL ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement .


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

The applicant , PERSON , is a NORP national who was born in DATE and lives in LOC . He was represented before ORG by Ms K. Petrusová , a lawyer practising in GPE .

On DATE the applicant , who was working as a car mechanic , was dismissed from his job with immediate effect for underperforming in his duties .

On DATE he brought an action requesting the court to find the dismissal invalid and the work contract still in effect .

On DATE the first hearing was held before ORG . As the parties failed to reach an agreement and requested a report concerning the service of the dismissal , the hearing was adjourned .

On DATE the applicant asked the court to summon his father and grandfather as witnesses .

On DATE he informed the court that he had changed his legal counsel .

On DATE the judge of ORG invited the applicant to indicate the whereabouts of the witnesses he had proposed to be heard . On DATE the applicant provided the information .

On DATE the ORG , whose assistance was requested because of its proximity to the witnesses , held a hearing and heard CARDINAL witnesses .

On DATE the applicant applied to supplement his action by claiming compensation for unpaid salary from DATE to DATE .

On DATE the applicant sent a letter to the president of ORG in which he complained that the court had not ordered a new hearing to conclude the proceedings .

On DATE the vice - president of ORG apologised for the delays and explained that they were caused by , among other things , the workload of the judge , difficulties with obtaining the report from the post office , and the assistance of ORG .

On DATE ORG rejected the applicant ’s application to supplement his action .

On DATE the applicant again complained to the presidents of ORG and ORG about the length of the proceedings .

On DATE the vice - president of ORG apologised to the applicant ; however , he found his complaint justified only with regard to the period from DATE .

On DATE ORG rendered a judgment in which it found the dismissal invalid as it had not been served in accordance with LAW . The judgment was served on the applicant on DATE .

On DATE a judge of ORG declined to rule on the defendant ’s appeal as ORG had not fully decided on the action .

On DATE the applicant lodged a constitutional appeal complaining that the proceedings before the lower courts had been lengthy .

On DATE , following a hearing , ORG supplemented the first judgment and determined that the work contract was still valid . The judgment was served on the applicant on DATE , following his complaint of CARDINAL DATE .

On DATE the applicant supplemented his constitutional appeal .

On DATE ORG rejected the applicant ’s constitutional appeal . It held that the proceedings had indeed been lengthy but at that stage it would be unreasonable and redundant to interfere .

On DATE ORG , following a hearing , upheld the first judgment and changed the supplementary judgment by holding that in the light of the wrongful dismissal the further validity of the working contract was self - evident .

On DATE both parties filed an appeal on points of law .

On DATE ORG quashed the second part of the judgment , remitted this issue to ORG and dismissed the remainder of the appeals .

On DATE ORG , following a hearing , upheld the supplementary judgment of ORG . The judgment became final on DATE .

On DATE the applicant claimed compensation under PERSON no . MONEY for non - pecuniary damage arising from the excessive length of the above proceedings , which he evaluated at CARDINAL NORP korunas ( CZK ) ( approx . CARDINAL ( ORG ) ) .

On DATE the applicant supplemented his initial claim by asking for compensation for pecuniary damage incurred as legal costs .

In a letter of CARDINAL DATE ORG acknowledged , referring to the case - law of the ORG , that the proceedings , which had lasted DATE , had been unreasonably lengthy and had suffered from administrative malpractice within the meaning of LAW of PERSON no . CARDINAL/CARDINAL . ORG concluded , however , that the acknowledgment of the delays represented sufficient satisfaction for non - pecuniary damage . As for pecuniary damage , the ORG rejected the claim for lack of any causal link .

On DATE the applicant brought a civil action for compensation in respect of pecuniary and non - pecuniary damage against the Ministry .

On DATE ORG dismissed the action finding that apart from during the period from DATE the courts had acted in reasonable time . The court further reasoned that labour disputes should be decided quickly owing to their consequences on the personal and social life of the claimants , but underlined that in the present case the invalidity of the dismissal had been pronounced already in DATE . The overall length was only slightly beyond the appropriate length and thus the acknowledgement of the violation of the applicant ’s right represented sufficient satisfaction .

On DATE ( served on CARDINAL March ) ORG upheld this judgment . It reiterated that , in the light of the actual complexity of the case , the length of the proceedings had been inappropriate but only to a small extent .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE ( ( dec . ) , no . CARDINAL , § § CARDINAL- CARDINAL , DATE ) .


The applicants , NORP citizens of GPE origin , are mother and daughter born in DATE and DATE , respectively . The first applicant , who works as a cleaning lady , is married to GPE , a NORP citizen of GPE origin born in DATE and currently detained in PERSON prison . GPE is the father of the second applicant .

GPE entered GPE in DATE where he obtained a residence permit ( GPE ) and worked as a manual worker and taxi driver . On DATE he married the first applicant in GPE who henceforth also obtained a residence permit . On DATE , their daughter , the second applicant , was born in GPE .

On DATE , GPE was remanded in custody .

On DATE ORG ( Strafgericht ) of the GPE of GPE - Landschaft sentenced GPE to DATE imprisonment and CARDINAL years’ prohibition to enter GPE on account of offences against LAW ( Betäubungsmittelgesetz ) . Upon , appeal , the Basel - Landschaft Court of Appeal ( Obergericht ) reduced the sentence to DATE imprisonment .

On DATE the Basel - Landschaft Aliens’ Police ( Fremdenpolizei ) decided not to prolong the residence permits of the applicants and FAC and ordered the applicants to leave GPE by DATE , whereas GPE was ordered to leave upon termination of his prison sentence .

The ORG appeal against this decision was dismissed by ORG ( NORP ) on DATE on the grounds that the applicants depended on public welfare , and as the conduct of GPE did not permit the conclusion that he was willing to integrate in GPE .

On DATE the Basel - Landschaft Administrative Court ( Verwaltungsgericht ) dismissed the applicants’ further appeal . The court noted that the applicants , if they returned to their home country , would in fact be separated from GPE However , in the court ’s opinion , their family life was already considerably limited in view of the prison sentence of GPE Given the public interest in an orderly implementation of the prison sentence , the applicants’ additional separation from GPE appeared insignificant ( geringfügig ) , particularly as they had the possibility of communicating by mail and telephone with him . The court furthermore confirmed the decision of the Basel - Landschaft Government according to which the refusal to prolong the applicants’ residence permit was based on S. CARDINAL § CARDINAL ( d ) of LAW ( Bundesgesetz über PERSON ) which envisaged a foreigner ’s expulsion if he or she depended continuously and substantially on public welfare .

The applicants filed an administrative law appeal ( Verwaltungsgerichts - beschwerde ) with ORG which the latter declared inadmissible on DATE . It noted that S. CARDINAL § CARDINAL ( b)(CARDINAL ) of ORG ( Organisationsgesetz ) only permitted administrative law appeals if the complainant could invoke an “ entitlement ” . In cases of family separation this required as a rule that CARDINAL of the family members had a “ consolidated right to stay ” ( gefestigtes PERSON ) in GPE , for instance on account of NORP nationality or of a right to domicile ( Niederlassungsbewilligung ) , which was not the case for the present applicants . The judgment continued :

“ The only basis for such a right could ... at most , be LAW ) , in that the family of applicants would provisionally be separated even more insofar as wife and child would have to leave GPE already before their husband and father is released from prison . However , for the applicants to live together as a family is in any event excluded until release from prison . The possible direct contacts between the detainee and his family will be limited until then to short visits in prison . Nevertheless , a right of the ( remaining ) family to stay in GPE merely to exercise such a limited right to visit the detained applicant , can not a priori be derived from LAW , a fortiori as this person only disposes of a ... residence permit rather than a consolidated right to stay , for which reason he can not convey any rights to residence upon his wife and child . The ( enforced ) stay due to detention on remand or a prison sentence , based on an order of criminal procedure or penal law , can not in itself provide a ‘ consolidated right to GPE within the meaning of the case - law to LAW . ”

Subsequently , ORG ( ORG für ORG ) ordered the applicants to leave GPE by DATE , whereas GPE was ordered to leave GPE upon release from detention .

The applicant ’s appeal against this decision was dismissed by ORG and Police ( Eidgenössisches Justiz- und Polizeidepartment ) on DATE .

According to LAW of LAW , “ everyone has the right to respect for his private and family life , his home and his communications by mail , post and telecommunications ” .

S. CARDINAL § CARDINAL ( d ) of LAW provides that a foreigner may be expelled from GPE , inter alia , “ if he , or a person for whom he has to care , continuously and substantially becomes a burden for public welfare ” .

S. CARDINAL § CARDINAL ( b ) ( CARDINAL ) of ORG states that an administrative law appeal shall be inadmissible in matters of the NORP police if it concerns the granting or the refusal of authorisations in respect of which federal law offers no entitlement .


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

Mr PERSON , a NORP citizen born in DATE , lives in GPE , where , at the material time , he was working as an engineer .

In DATE Mr PERSON had already filed a different application that led the ORG to find that the applicant ’s right of access to a court had been violated ( judgment of CARDINAL DATE , Series A no . CARDINAL ) .

ORG On DATE , during proceedings he had brought against officials of ORG Katikias - " the AOEK " ) , the applicant sent ORG of ORG ( PERSON ) a pleading in which he argued that the procedure followed by the relevant authorities in connection with the various legal proceedings he had brought left no doubt that there was bias in favour of the ORG ’s officials , and that the delays in the proceedings were plainly intended to ensure that the limitation period for the offences would run out .

ORG On DATE the public prosecutor at ORG ( Isageleas Efeton ) forwarded the pleading to the public prosecutor at ORG ) and recommended that the applicant should be charged with insulting the judiciary . On DATE the prosecutor at ORG ordered a preliminary investigation ( see paragraph CARDINAL below ) .

ORG On DATE Mr PERSON appeared before the investigating judge . He denied the charges and informed the judge that he intended to file a pleading by DATE . In the pleading , which he filed on DATE , he applied for several witnesses to be heard . CARDINAL witnesses were examined DATE and DATE . On DATE the investigating judge sent the file to the prosecutor .

ORG On DATE the prosecutor asked the investigating judge to complete the file by ordering the applicant to send him a number of court decisions mentioned in the pleading of CARDINAL DATE . On DATE Mr PERSON submitted those decisions , together with another pleading . On DATE the investigating judge forwarded these to the prosecutor .

ORG On DATE the prosecutor charged the applicant with insulting the judiciary and set the case down for trial on DATE by ORG sitting with CARDINAL judges ( PERSON ) . On DATE the applicant was summoned to appear before that court on DATE . On DATE he made an application under LAW to be examined by an indictment division , but this was refused by the prosecutor at ORG on DATE .

ORG On DATE ORG convicted Mr PERSON and sentenced him to CARDINAL months’ imprisonment , a penalty which was converted into a fine of CARDINAL drachmas per day . The applicant immediately appealed , thereby causing execution of his sentence to be stayed ( see paragraph CARDINAL below ) .

ORG On DATE ORG adjourned the case , but on DATE it allowed the appeal and quashed Mr PERSON ’s conviction .

ORG judgment and the record of the hearing were finalised ( katharographi ) on DATE and served on the applicant on CARDINAL DATE . On DATE the applicant applied to ORG to have them rectified and supplemented . On DATE the court ruled that the application was inadmissible on the ground that it had not been made within DATE of delivery of the judgment on DATE .

ORG Under Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , the prosecutor had a right of appeal on points of law against ORG judgment , to be exercised within DATE of the finalisation of that judgment . He did not , however , avail himself of that right , with the result that ORG judgment became final on CARDINAL DATE .

ORG On DATE the AOEK complained to ORG ( PERSON the ORG " ) of the various proceedings brought by Mr PERSON against the AOEK and some of its engineers . The chairman of the ORG ’s disciplinary board then initiated disciplinary proceedings against the applicant for improper conduct . On DATE the charges were drawn and a rapporteur appointed . On DATE the disciplinary board decided to adjourn the case as the chairman of the ORG , who had been called to give evidence , had not appeared . On DATE the disciplinary board suspended the applicant from practising his profession for DATE .

Mr PERSON was notified of that decision on DATE . On DATE he appealed to the ORG ’s ORG within DATE , thereby causing his suspension to be stayed ( see paragraph CARDINAL below ) . On DATE and CARDINAL DATE he wrote to the ORG requesting it to inform him of the outcome of his appeal . On CARDINAL DATE the ORG replied that the case was being considered by CARDINAL of the members of ORG acting as rapporteur and that a hearing would be held when he had submitted his report .

ORG By a letter of CARDINAL DATE the applicant was invited to attend ORG hearing on DATE . On DATE he challenged all the ORG ’s members and asked for the guarantees in LAW ( article CARDINAL ) to be respected at the hearing .

ORG On DATE ORG rejected that request . It allowed the appeal , however , and completely exonerated the applicant .

ORG On DATE Mr PERSON sought rectification of the decision of DATE . On DATE ORG answered the points raised by the applicant in his request but did not rectify its decision .

ORG Under LAW , criminal proceedings may be initiated of the authorities’ own motion following a report , a complaint or any other information indicating that an offence may have been committed .

ORG The public prosecutor is then required to order a preliminary investigation or to commit the accused for trial directly , where this is possible . If the complaint or report in question is without foundation , the public prosecutor takes no further action ( LAW ) .

ORG Where an appeal is lodged in accordance with the law and within the prescribed time - limit , execution of the judgment against which it has been brought is stayed ( ORG and CARDINAL ) .

ORG Under LAW , criminal proceedings end when the accused has been found guilty or innocent .

ORG Disciplinary proceedings in ORG are governed by the presidential decree of DATE and DATE , as amended by LAW no . CARDINAL/CARDINAL , and by PERSON no . CARDINAL/CARDINAL .

ORG LAW above - mentioned presidential decree provides that , at first instance , disciplinary offences by members of the ORG come under the jurisdiction of disciplinary boards .

ORG Under LAW para . CARDINAL , an appeal lies against disciplinary board decisions . Appeals must be lodged with ORG within DATE of notification of the decision in question . The appeal has a suspensive effect .

ORG Article DATE provides that disciplinary proceedings are separate from other proceedings and are not stayed on account of criminal proceedings . However , in exceptional circumstances , a disciplinary board may stay disciplinary proceedings until criminal proceedings have ended , while remaining free to give a decision that differs from the criminal court ’s judgment . Where there is a conviction in criminal proceedings , disciplinary proceedings that have led to an acquittal or a reprimand will be reopened .


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

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

On DATE the applicant asked ORG ( FAC ) for a judgment declaring that he had inherited his mother 's estate .

The proceedings were terminated on DATE , when ORG ( Sąd Najwyższy ) refused to deal with the applicant 's cassation appeal . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

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

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

Section CARDINAL reads , in so far as relevant :

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

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

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

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

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

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

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

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

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


Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , a NORP citizen born in DATE , was at the time of filing her application a delegate of ORG residing at ORG in GPE .

On DATE the Federal Attorney ( PERSON ) issued a warrant of arrest against the applicant on suspicion of having committed “ repeated assassination ( ripetuto assassinio ) , committed as a member of the terrorist group ‘ NORP and repeated participation in the preparation and implementation of ... attacks ( attentati ) ” , the details of which were then listed .

On DATE , DATE , the applicant was arrested in GPE in GPE and remanded in custody . On DATE she was transported to GPE where she arrived at CARDINAL . At CARDINALhCARDINAL she was questioned by police officers of the Federal Attorney ’s office ( Bundesanwaltschaft ) .

On DATE , an investigating judge of the GPE of GPE confirmed the detention on remand of the applicant . The decision noted that the suspicion was based on files of the NORP ORG security authorities and the NORP intelligence service , and that the applicant herself admitted having been a member of the PERSON group . In view of this membership , there was an urgent suspicion ( dringender Verdacht ) that she had participated in the various events . Furthermore , there existed a danger of collusion and of absconding . Thus , additional investigations were necessary . Moreover , the applicant , a delegate of ORG , was frequently abroad and had no permanent residence in GPE .

NORP The investigations were then conducted by the Federal Attorney ’s office .

On DATE the applicant was heard by the Federal Attorney ’s office . As from this date , the applicant refused to comment on the charges laid against her .

On DATE , DATE , the applicant filed a request with the Federal Attorney for release from detention . She submitted that she had withdrawn her statement that she belonged to the PERSON group , and that it did not transpire from the documents referred to by the investigating judge on DATE that she had been a member of this group . There were furthermore no documents which indicated that she had committed a criminal offence . A danger of collusion and of absconding could be excluded . The request was received by the Federal Attorney on DATE , DATE .

On DATE , DATE , the Federal Attorney dismissed the applicant ’s request . The decision was served on the applicant on DATE , DATE . According to the decision , the applicant was suspected of having participated , as a member of the PERSON terrorist group , in bomb attacks in DATE of NORP embassies in GPE and GPE and of a train in GPE . She was also suspected of having murdered a diplomat couple in GPE in DATE . These bomb attacks had occurred after CARDINAL members of the PERSON group had been arrested in GPE . The PERSON group transmitted a letter to ORG , threatening to commit the attacks if the CARDINAL members were not released . The applicant was suspected of having deposited this letter at ORG in GPE . After the time - limit mentioned in the letter had elapsed , the attacks were committed .

On DATE , DATE , the applicant was questioned by the Federal Attorney ’s office .

On DATE , DATE , the applicant asked for permission to consult the entire case file . The Federal Attorney ’s office refused the request on DATE , inter alia , in view of a danger of collusion .

On DATE , DATE , the applicant filed an appeal ( Beschwerde ) against the decisions of CARDINAL and DATE with ORG ( Anklagekammer ) of ORG ( PERSON ) , invoking LAW , DATE of the ORG and requesting release from detention and permission to consult the entire case file . The appeal was received by ORG on DATE , CARDINAL DATE .

On DATE , DATE , the President of ORG transmitted a copy of the appeal to the Federal Attorney who was requested to submit her observations by DATE , DATE . The Federal Attorney was further requested to send a copy of her observations directly to the applicant who , in turn , was requested to submit any observations by DATE , CARDINAL DATE .

On DATE the Federal Attorney filed her observations .

NORP The applicant filed her observations in reply on DATE , CARDINAL DATE . These observations were received by ORG on DATE , DATE .

On DATE , DATE , ORG dismissed the applicant ’s request . The decision was served on the applicant on DATE , DATE .

In respect of the applicant ’s complaint that she could not consult the entire case file , ORG found that the applicant had had knowledge of the essential documents . Moreover , she did not dispute the Federal Attorney ’s observations of DATE according to which the applicant had been able to read all incriminating documents when questioned .

NORP In its decision ORG further confirmed the suspicion that the applicant had committed the offences at issue , particularly as she herself had originally admitted membership in the PERSON group . The applicant had not withdrawn her statements , she had merely refused to speak to the authorities . ORG also assumed a danger of absconding and of collusion .

On DATE the applicant filed a further request for release which was granted by ORG in a decision dated CARDINAL DATE . The decision stated that the original suspicion directed against the applicant had not been confirmed ( erhärtet ) .

According to LAW ( Bundesstrafrechtspflegegesetz ) a person detained on remand may at any time file a request for release from detention . If the investigating judge or the Federal Attorney refuse the request , an appeal may be filed with ORG . According to LAW and CARDINAL of the LAW , the time - limit for filing the appeal is DATE .


LONGBOTTOM AND OTHERS v. THE UNITED KINGDOM

The applicants , Mr PERSON , Mr PERSON and Mr PERSON are NORP nationals who were born in DATE , DATE and DATE and live respectively in GPE , GPE and GPE . They were represented before ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG

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

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows’ benefits was made in or DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant applied again on DATE and his claim was rejected on DATE for the same reason . The applicant lodged an appeal on CARDINAL DATE . ORG reconsideration decision of DATE upheld the earlier decision and his appeal was further heard and adjourned by a tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant ’s wife died on DATE , leaving a child born in DATE . Following a telephone call and a letter to ORG , his claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant lodged an appeal on DATE . ORG reconsideration decision of DATE upheld the earlier decision and his appeal was further heard and adjourned by a tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . Following a telephone call and a letter to ORG , his claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant lodged an appeal . The ORG reconsideration decision of DATE upheld the earlier decision and his appeal was further heard and rejected by a tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .


Violation of Article 5 - Right to liberty and security

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in Ploieşti .

The LOC police started an investigation into allegations that the applicant had stolen petroleum products from his employer , an oil company .

On DATE , the applicant was apprehended by the police .

On DATE the prosecutor attached to ORG issued an arrest warrant against the applicant for DATE , until DATE . The prosecutor ’s order gave the following reasons for seeking the applicant ’s arrest :

“ the offence is punishable by DATE detention , and [ the applicant ’s ] continued liberty represents a threat to ordre public . ”

On DATE the applicant was brought before ORG in order to have the lawfulness of his committal for trial and of his pre - trial detention verified . The applicant ’s lawyer requested that the detention order be set aside and the applicant released , arguing , in particular , that the arrest warrant was unlawful and that the measure of placing the applicant in pretrial detention had been taken automatically and too easily , as there was no evidence that he had committed the offence in question .

On DATE ORG , considering that the reasons justifying the initial measure remained unchanged , ordered the applicant ’s detention in custody for DATE , namely until QUANTITY DATE . It noted that its decision was subject to appeal at the same time as the judgment on the merits of the case .

CARDINAL more hearings took place before ORG . Each time the applicant ’s pre - trial detention was extended for similar reasons to those of DATE , until the judgment on the merits was delivered . No further grounds were given by ORG .

On DATE the ORG convicted the applicant of aggravated theft and imposed a DATE suspended sentence .

The applicant was released from custody on DATE .

ORG dismissed an appeal lodged by the applicant and upheld ORG judgment in a final decision of DATE .

Meanwhile , on DATE , the applicant was dismissed from his job in application of LAW , as his detention had exceeded DATE . He found a new job on DATE .

The procedure for lodging complaints against preventive measures , including pre - trial detention , is described in DATE Code of Criminal Procedure ( see PERSON v. GPE DATE . ) , no . CARDINAL , DATE ) .

Under LAW , only the decision whereby the court takes , sets aside , replaces or ends a preventive measure can be appealed against independently from the judgment on the merits of the case , and this must be done within DATE of the date of the interlocutory judgment .

Persons who have been unlawfully detained can avail themselves of CARDINAL actions for damages described in LAW and in the Civil Code respectively .

The relevant LAW provides :

“ Anyone who has been convicted by a final decision is entitled to compensation from the ORG for any loss or damage sustained where , after a retrial , it is held in a judgment against which no appeal lies that he did not commit the offence in question or that no offence was committed .

Anyone against whom a preventive measure has been taken , and in whose favour a decision to discontinue proceedings or acquit has been given for the reasons listed in the preceding paragraph , also enjoys a right to compensation for damage sustained ... ”

In a decision of CARDINAL DATE , published on DATE in ORG , ORG , to which an objection had been submitted alleging that the first paragraph of LAW was unconstitutional , ruled as follows :

“ Under LAW , the ORG is liable for damage caused by miscarriages of justice committed in criminal proceedings . It follows that the principle of the ORG ’s liability towards victims of a miscarriage of justice in a criminal trial must be applied to all victims of such a miscarriage . ... The ORG notes that the legislature has not brought the provisions of LAW into conformity with those of LAW . ... Consequently , bearing in mind that LAW provides for CARDINAL cases in which the ORG ’s responsibility for miscarriages of justice committed in criminal proceedings may be engaged , it follows that this restriction is unconstitutional , since LAW does not allow for any such limitation . ”

LAW has been modified by PERSON no . CARDINAL . Its new version reflects ORG decision above .

The relevant Articles of the Civil Code provide :

“ Anyone who , through his own fault , causes damage to another shall be liable to make reparation for it . ”

“ Anyone who causes damage as a result of his own action , his failure to act or his negligence shall be liable for that damage . ”