Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione temporis;Remainder inadmissible (Art. 35) Admissibility criteria;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed

Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Ganna Yudkivska;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Peer Lorenzen;Vincent A. De Gaetano

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

On DATE the Foreign Ministers of the Soviet Union and NORP GPE signed a non - aggression treaty ( known as “ the MolotovRibbentrop Pact ” ) which included an additional secret protocol whereby the parties agreed on “ the question of the boundary of their respective spheres of influence in LOC ” . In particular , they concluded as follows :

“ CARDINAL . In the event of a territorial and political rearrangement of the areas belonging to ORG , the spheres of influence of GPE and the GPE [ ORG Socialist Republics ] shall be bounded approximately by the line of the rivers PERSON , GPE , and GPE . ”

On DATE GPE invaded GPE , starting the Second World War . On DATE ORG marched into NORP territory , allegedly acting to protect the NORP and NORP living in the eastern part of GPE because ORG had collapsed under the NORP attack and could no longer guarantee the security of its own citizens . The NORP army did not offer military resistance . The GPE annexed the territory newly under its control and in DATE declared that the CARDINAL NORP citizens who lived there were henceforth NORP citizens .

In the wake of ORG advance around CARDINAL NORP soldiers , border guards , police officers , prison guards , ORG officials and other functionaries were detained . After they had been disarmed , some of them were set free ; the others were sent to special prison camps established by ORG ( ( ORG ) , a predecessor of ORG ( ORG ) ) in GPE , PERSON and ORG . On DATE it was decided that the NORP officer corps should be billeted at the camps in GPE and ORG and the remaining functionaries , including the police officers and prison guards , in PERSON .

In DATE PERSON , Head of the GPE , submitted to PERSON , Secretary General of ORG , a proposal to approve the shooting of NORP prisoners of war on the ground that they were all “ enemies of the NORP authorities filled with hatred for the NORP system of government ” who were “ attempting to continue their c[ounter]r[evolutionary ] work ” and “ conducting anti - NORP agitation ” . The proposal specified that the prisoner - of - war camps accommodated CARDINAL former military and police officers , of whom CARDINAL per cent were NORP by nationality , and that a further CARDINAL NORP were being held in the prisons of the western districts of GPE and GPE .

On DATE the ORG of ORG of ORG considered the proposal and decided as follows :

“ I. Instructs the NKVD GPE as follows :

( CARDINAL ) the cases of the CARDINAL persons remaining in the prisoner - of - war camps ( former NORP army officers , government officials , landowners , policemen , intelligence agents , military policemen , settlers and prison guards ) ,

( CARDINAL ) and the cases of the persons arrested and remaining in prisons in the western districts of GPE and GPE , numbering CARDINAL ( members of various counter - revolutionary espionage and sabotage organisations , former landowners , factory owners , former NORP army officers , government officials and fugitives ) , are to be considered in a special procedure , with the sentence of capital punishment – [ execution by ] shooting – being imposed .

II . NORP The cases are to be considered without the detainees being summoned or the charges being disclosed , and without any statements concerning the conclusion of the investigation or the bills of indictment being issued to them , in the following manner :

( a ) the persons remaining in the prisoner - of - war camps : on the basis of information provided by ORG , ORG ,

( b ) the persons arrested : on the basis of information provided by the ORG of the NORP SSR and the FAC of the NORP SSR . ”

The decision was signed by PERSON , PERSON , ORG , Vyacheslav Molotov , PERSON and PERSON .

The killings took place in DATE and DATE . Prisoners from the PERSON camp were killed at a site near GPE known as ORG ; those from the ORG camp were shot in the GPE NKVD prison and their bodies were buried near the village of Pyatikhatki ; the police officers from PERSON were killed in the GPE ( now Tver ) NKVD prison and buried in ORG . The circumstances of the execution of the prisoners from the prisons in western GPE and GPE remain unknown to DATE .

NORP In DATE and DATE , first NORP railroad workers and then the NORP army discovered mass burials near ORG . An international commission consisting of CARDINAL forensic experts and their support staff from GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE was set up . It conducted the exhumation works from DATE . The remains of CARDINAL NORP officers were excavated , of whom CARDINAL were identified . The commission concluded that the NORP authorities had been responsible for the massacre .

NORP The NORP authorities responded by putting the blame on the NORP who had allegedly DATE according to GPE – taken control of the NORP prisoners and murdered them in DATE . Following the liberation of the GPE district by ORG in DATE , the ORG set up ORG chaired by PERSON , which purported to collect evidence of NORP responsibility for the killing of the NORP officers . In its communiqué of CARDINAL DATE ORG announced that the NORP prisoners had been executed by the NORP in DATE .

In the course of the trial of NORP war criminals before ORG , the PERSON killings were mentioned in the indictment as an instance of a war crime ( Indictment : Count Three – War Crimes , Section C ( CARDINAL ) ) . On DATE the Deputy Chief Prosecutor for the GPE , Colonel PERSON , charged the defendants with the execution of CARDINAL NORP prisoners of war in DATE , relying on ORG report ( Trial of the Major War Criminals before ORG , vol . VII , pp . CARDINAL - CARDINAL ) . Despite the objections by NORP prosecutors to the taking of oral evidence , the ORG heard evidence on CARDINAL and DATE from CARDINAL witnesses for the prosecution and CARDINAL witnesses for the defence ( PERSON . ORG , pp . DATE ) . At the conclusion of the trial , no mention of the PERSON killings was made either in the text of the judgment of ORG or in the dissenting opinion of the NORP judge .

On DATE PERSON , Chairman of the ORG , proposed to PERSON , Secretary General of ORG , that the documents on the execution of NORP prisoners of war be destroyed :

“ Since DATE , records and other materials regarding prisoners and interned officers , policemen , gendarmes , [ military ] settlers , landowners and other persons from the former bourgeois GPE who were shot that DATE , have been kept by ORG , GPE . On the basis of decisions taken by the NORP ORG ’s special troika , a total of CARDINAL persons were shot , CARDINAL of them in PERSON ( LOC ) , CARDINAL in the ORG camp near GPE , CARDINAL in the PERSON camp ( NORP district ) and CARDINAL in other camps and prisons in western GPE and GPE .

The entire operation to liquidate the above - mentioned individuals was carried out on the basis of a decision by ORG of ORG of the GPE dated DATE ... Since the time the above - mentioned operation was carried out , that is , since DATE , no information has been released to anybody relating to the case , and all of the CARDINAL files have been stored in a sealed location .

None of these files are of any operational or historical value to NORP organs . It is also highly doubtful whether they could be of any real value to our NORP friends . On the contrary , an unforeseen incident could lead to the operation being revealed , with all the undesirable consequences that would entail for our country , especially since , as regards the persons shot in ORG , the official version was confirmed by an investigation carried out on the initiative of the NORP authorities in DATE ...

On the basis of the above , it seems opportune to destroy all the records concerning the persons shot in DATE in the above - mentioned operation ... [ T]he reports of the meetings of the FAC GPE troika sentencing those persons to be shot , and also the documents on execution of that decision , could be preserved . ”

The remaining documents were put in a special file , known as “ package no . CARDINAL ” , to which only the Secretary General of ORG had the right of access . On DATE its contents were officially made public on the website of ORG . The file contained the following historical documents : PERSON ’s proposal of DATE , the ORG ’s decision of DATE , the pages removed from TIME meeting and PERSON ’s note of CARDINAL DATE .

The first applicant , Mr PERSON , was born in DATE . He is the son of Mr PERSON , born in DATE , who was a lieutenant in the NORP army before the Second World War .

The second applicant , Mr PERSON , was born in DATE . He is the grandson of Mr PERSON , born in DATE , a lieutenantcolonel in the NORP army .

Both Mr PERSON and Mr PERSON were taken prisoner of war during the NORP invasion of GPE in DATE and sent to the ORG camp in the GPE . Among the prisoners in the camp , Mr PERSON was listed as prisoner no . ORG and PERSON as prisoner no . CARDINAL . They were subsequently transferred to a prison in GPE and executed in DATE .

The first and second applicants , PERSON and ORG , were born respectively in DATE and DATE . They are the daughter and wife of Mr Wincenty Wołk , born in DATE , who was a lieutenant in a heavy artillery unit of the NORP army before the Second World War . He was taken prisoner of war by ORG on TIME DATE and held in GPE special camp ( listed in position CARDINAL on ORG dispatching list CARDINAL/CARDINAL of DATE ) . He was killed on DATE and buried in GPE . His body was identified during the DATE exhumation ( no . CARDINAL ) .

The third applicant , PERSON , was born in DATE . She is the granddaughter of Mr PERSON , born in DATE , who was a reserve officer in the NORP army . He was taken prisoner of war by ORG at the NORP border on around DATE and held in GPE special camp ( listed in position CARDINAL on list CARDINAL ) . He was killed and buried in PERSON . His body was identified during the DATE exhumation ( no . CARDINAL ) .

The fourth applicant , PERSON , was born in DATE and died in DATE . She was the daughter of PERSON , born in DATE . An officer of the NORP army , Mr GPE was taken prisoner of war by the NORP near GPE , GPE , and detained in the special FAC camp at ORG ( position CARDINAL ) . He was presumed killed in GPE and buried at Pyatikhatki near GPE ( now in GPE ) .

The fifth applicant , Mr PERSON , was born in DATE . He is the son of PERSON , born in DATE . The fifth applicant ’s father , commander of the police station at the NORP - Soviet border in GPE , was arrested there by NORP troops and taken to the special GPE camp at PERSON ( position CARDINAL on list CARDINAL/CARDINAL ) . He was killed in Tver and buried in ORG .

The sixth applicant , Mr PERSON , was born in DATE . His father , PERSON , born in DATE , was a police officer working in Luck in eastern GPE . In DATE he was arrested by NORP troops and placed in the PERSON camp ( position CARDINAL on list PERSON ) . He was killed in Tver and buried in ORG .

The seventh applicant , Mr PERSON , was born in DATE . His father , Mr PERSON , born in DATE , was the headmaster of a primary school in GPE , GPE . He was arrested by the NORP and detained at the ORG camp ( position CARDINAL ) . He was presumed killed in GPE and buried in Pyatikhatki .

The eighth and ninth applicants , Mr PERSON and PERSON PERSON , born in DATE and DATE respectively , are the sons of Mr PERSON August PERSON . The ninth applicant died in DATE . Their father was born in DATE and served as a doctor in the NORP army . He was taken prisoner of war at GPE , GPE , and held at the ORG camp ( position DATE ) . He was presumed killed in GPE and buried in Pyatikhatki .

DATE applicants , PERSON and Ms PERSON , born in DATE and DATE respectively , are the daughters of Mr Michał Adamczyk . Born in DATE , he was the commander of GPE police station . He was arrested by the NORP , detained at the PERSON camp ( position CARDINAL on list CARDINAL/CARDINAL ) , killed in Tver and buried in ORG .

The twelfth applicant , PERSON , born in DATE , is the daughter of PERSON . Her father , a NORP officer , was born in DATE and was held at the PERSON camp after his arrest by NORP troops . He was killed and buried in PERSON ; his body was identified during the DATE exhumation .

The thirteenth applicant , Mr PERSON , born in DATE , is the nephew of Mr PERSON . PERSON , born in DATE , was held at the ORG camp ( position CARDINAL ) and was presumed killed in GPE and buried in Pyatikhatki . A list of ORG prisoners which included his name was retrieved from the coat pocket of a NORP officer whose remains , with gunshot wounds to the head , were excavated during a joint NORP exhumation near GPE in DATE .

On DATE , during a visit by NORP President PERSON GPE to GPE , the President of the GPE , PERSON , handed over to him the documents concerning the PERSON massacre . The official news agency of the GPE published a communiqué which affirmed , on the basis of newly disclosed archive materials , that “ PERSON , PERSON and their subordinates bore direct responsibility for the crime committed in the GPE ” .

On DATE the GPE regional prosecutor ’s office opened a criminal investigation into the origin of mass graves found in the city ’s FAC . On DATE ORG ) prosecutor ’s office instituted a criminal case into “ the disappearance ” ( исчезновение ) in DATE of the NORP prisoners of war who had been held in the FAC camp in PERSON . On CARDINAL DATE the Chief Military Prosecutor ’s Office of the GPE took over the GPE investigation under the number CARDINAL and assigned it to a group of military prosecutors .

NORP In DATE , NORP and NORP specialists carried out exhumations of corpses at the mass burial sites in GPE , ORG and PERSON . They also reviewed the archive documents relating to the PERSON massacre , interviewed CARDINAL witnesses and commissioned forensic examinations .

On DATE the NORP President PERSON revealed that the NORP officers had been sentenced to death by PERSON and the ORG of ORG . The director of ORG transferred to the NORP authorities a number of documents , including the decision of DATE . During an official visit to GPE on DATE , President PERSON paid tribute to the victims in front of ORG in GPE .

In DATE prosecutors from GPE , GPE , GPE and GPE held a working meeting in GPE during which they reviewed the progress of the investigation in case no . CARDINAL . The participants agreed that the NORP prosecutors would ask their NORP and NORP counterparts for legal assistance to determine the circumstances of the execution of CARDINAL NORP citizens in DATE .

On DATE the NORP authorities informed their NORP counterparts that they had not been able to uncover any documents relating to the execution of NORP prisoners of war in DATE . In DATE the NORP authorities produced documents concerning the transfer of NORP prisoners from the ORG camp to the ORG prison in the GPE region .

In DATE , DATE and DATE the President of ORG ( “ the INR ” ) repeatedly but unsuccessfully contacted the NORP ORG with a view to obtaining access to the investigation files .

On DATE the Chief Military Prosecutor ’s Office decided to discontinue criminal case no . CARDINAL , apparently on the ground that the persons allegedly responsible for the crime had already died . On DATE ORG for ORG classified CARDINAL volumes of the case file – out of a total of CARDINAL volumes – as “ top secret ” and a further CARDINAL volumes as “ for internal use only ” . The decision to discontinue the investigation was given “ top secret ” classification and its existence was only revealed on DATE at a press conference given by ORG .

Further to a request from ORG for a copy of the decision of DATE , ORG refused to produce it , citing its secret classification . It transpired from the Government ’s submissions that the investigation had been discontinued on the basis of LAW ( CARDINAL ) of LAW , on account of the PERSON death .

DATE CARDINAL prosecutors from the INR conducting the investigation into the PERSON massacre and the chief specialist of ORG for ORG against the NORP Nation visited GPE at the invitation of ORG . They examined the CARDINAL volumes of case no . CARDINAL which were not classified , but were not allowed to make any copies .

On DATE the NORP President PERSON provided the Speaker of the NORP ORG with CARDINAL volumes of the PERSON investigation files . In total , according to the information submitted by ORG , the NORP authorities handed over to them certified copies of CARDINAL volumes , containing CARDINAL pages .

In DATE , Mr DATE a NORP lawyer retained by the first applicant ( Mr PERSON ) and by the mother of the second applicant ( Mr PERSON ) DATE applied to ORG with a request to be provided with documents concerning Mr PERSON , Mr PERSON and a third person .

On DATE ORG replied to the lawyer , informing him that ORG was investigating a criminal case concerning the execution of NORP officers in DATE . In DATE the investigation had recovered CARDINAL bodies in the GPE , GPE and GPE regions and identified some of them , including Mr PERSON and Mr PERSON . Their names had also been found on the list of prisoners in the ORG camp . Any further documents concerning them had been destroyed previously .

On DATE Mr PERSON formally requested the Chief Military Prosecutor ’s Office to recognise the rights of Mr PERSON and PERSON PERSON as relatives of the executed NORP officers and to provide them with copies of the procedural documents and also of personal documents relating to Mr PERSON and Mr PERSON .

On DATE the Chief Military Prosecutor ’s Office replied that Mr PERSON and Mr PERSON were listed among the prisoners from the ORG camp who had been executed in DATE by the FAC and buried near GPE . No further materials concerning those individuals were available . Copies of the procedural documents could only be given to officially recognised victims or their representatives .

Subsequently the applicants Mr PERSON and PERSON retained the services of a NORP lawyer , PERSON , who asked the Chief Military Prosecutor ’s Office for permission to study the case file . On DATE the Chief Military Prosecutor ’s Office informed him that he would not be allowed to access the file because his clients had not been formally recognised as victims in the case .

The lawyer lodged a judicial appeal against ORG Office ’s refusals of DATE and DATE . He submitted , in particular , that the status as victim of a criminal offence should be determined by reference to the factual circumstances , such as whether or not the individual concerned had sustained damage as a result of the offence . From that perspective , the investigator ’s decision to recognise someone as a victim should be viewed as a formal acknowledgement of such factual circumstances . The lawyer sought to have the applicants Mr PERSON and PERSON recognised as victims and to be granted access to the case file .

On DATE ORG of ORG rejected the complaint . It noted that , although Mr PERSON and PERSON PERSON had been listed among the prisoners in the ORG camp , their remains had not been among those identified by the investigation . Accordingly , in ORG view , there were no legal grounds to assume that they had died as a result of the offence in question . As to the materials in the case file , ORG observed that the decision to discontinue the criminal proceedings dated DATE had been declared a ORG secret and , for that reason , foreign nationals could not have access to it .

On DATE ORG of GPE upheld that judgment on appeal , reproducing verbatim the reasoning of ORG .

On DATE a team of lawyers acting for the applicants lodged a judicial appeal against the prosecutor ’s decision of DATE . They submitted that the applicants’ relatives had been among the imprisoned NORP officers whose execution had been ordered by ORG on DATE . However , the applicants had not been granted victim status in case no . CARDINAL and could not file motions or petitions , have access to the file materials or receive copies of the decisions . The lawyers also claimed that the investigation had not been effective because no attempt had been made to take biological samples from the applicants in order to identify the exhumed human remains .

On DATE ORG of ORG dismissed the appeal . It found that in DATE ORG and ORG of the Polish ORG had excavated the remains and then reburied them , without identifying the bodies or counting them . A subsequent excavation in DATE had only identified CARDINAL persons and the applicants’ relatives had not been among those identified . ORG acknowledged that the names of the applicants’ relatives had been included in the FAC lists for the PERSON , ORG and ORG camps ; however , “ the ‘ PERSON investigation ... did not establish the fate of the said individuals ” . As their bodies had not been identified , there was no proof that the applicants’ relatives had lost their lives as a result of the crime of abuse of power ( Article CARDINAL - CARDINAL of the DATE NORP Criminal Code ) referred to in the decision of DATE . Accordingly , there was no basis for granting victim status to the applicants under LAW . Moreover , classified materials could not be made accessible to “ representatives of foreign States ” .

NORP The lawyers submitted a statement of appeal in which they alleged that the lack of information about the fate of the applicants’ relatives had been the result of an ineffective investigation . The CARDINAL persons had been identified only on the basis of the military identification tags found at the burial places and the investigators had not undertaken any measures or commissioned any forensic examinations to identify the exhumed remains . Furthermore , it was a publicly known fact that the DATE excavation had uncovered the remains of CARDINAL people , of whom CARDINAL individuals had been identified . Among those identified were CARDINAL persons whose relatives had been complainants in the proceedings . The granting of victim status to the complainants would have allowed the identification of the remains with the use of genetic methods . Finally , the lawyers stressed that the PERSON criminal case file did not contain any information supporting the conclusion that any of the NORP officers taken from the FAC camps had survived or died of natural causes .

On DATE ORG of GPE upheld the judgment of DATE in its entirety . It repeated verbatim extensive passages of the findings of ORG , but also added that the decision of DATE could not be quashed because the prescription period had expired and because the proceedings in respect of certain suspects had been discontinued on “ rehabilitation grounds ” .

On DATE Memorial , a NORP nongovernmental human rights organisation , lodged an application with ORG seeking to have the decision of DATE declassified . In its answer dated DATE , the prosecutor ’s office informed PERSON that it was not competent to set aside the classified status , which had been approved on DATE by ORG for ORG ( “ the Commission ” ) .

On DATE Memorial applied to the Commission for declassification of the decision of CARDINAL DATE , claiming that the classification of the materials of the PERSON investigation was morally and legally unacceptable and that it had also been in breach of section CARDINAL of LAW , which precluded classification of any information about violations of human rights . By a letter of CARDINAL DATE , the ORG replied to PERSON that their application had been examined and rejected , but did not provide further details .

Memorial challenged the ORG ’s refusal before ORG . At a hearing on DATE the court read out the ORG ’s letter of DATE addressed to the presiding judge . The letter stated that the Commission had not made any decision on DATE to classify the decision of ORG of DATE .

Following an in camera hearing , ORG rejected PERSON ’s application for declassification on DATE , finding in particular as follows :

“ The court has established that on DATE the Chief Military Prosecutor ’s Office issued a decision terminating the criminal investigation which had been instituted on DATE by the NORP regional prosecutor ’s office of the NORP SSR [ NORP GPE ] in connection with the discovery of the remains of NORP nationals in the wooded zone of GPE ...

The investigation characterised the actions of a number of named high - ranking officials of the GPE as an abuse of power with particularly aggravating circumstances under LAW ( b ) of the RSFSR [ ORG . The criminal case in respect of those officials was terminated on the basis of LAW ( CARDINAL ) of LAW ( on account of the guilty ORG deaths ) . The case in respect of the others was terminated on the basis of LAW ( CARDINAL ) ( there was no criminal offence ) .

The Chief Military Prosecutor ’s Office sent the draft decision on termination of the criminal proceedings to ORG for an expert opinion as to whether or not it contained any confidential or secret information within the meaning of section CARDINAL of LAW , since ORG had the right to dispose as it saw fit of the information reproduced in the Chief Military Prosecutor ’s decision .

A commission of experts from ORG found that ORG draft decision included information which had not been declassified . In addition , the commission pointed out that the draft decision contained information to which access was restricted ...

On DATE an official from ORG issued the decision discontinuing criminal investigation no . CARDINAL . In the light of the above - mentioned findings by ORG and on the basis of section CARDINAL § DATE ( CARDINAL , CARDINAL ) and section CARDINAL of LAW and point CARDINAL of Presidential Decree no . CARDINAL of DATE , the document was given top secret classification ... Accordingly , there are no legal grounds for granting ORG ’s request that the Chief Military Prosecutor ’s resolution classifying the decision of CARDINAL DATE be declared unlawful and unjustified ...

In so far as the complainant argued that information concerning violations of the law by ORG authorities or officials may not be declared a ORG secret or classified in accordance with section CARDINAL of LAW , this argument is without merit because ORG decision of DATE contained information in the field of intelligence , counterintelligence and operational and search activities which , pursuant to section CARDINAL of LAW , constituted a ORG secret ... ”

On DATE ORG of GPE rejected the appeal lodged by PERSON against ORG judgment .

Most of the applicants applied repeatedly to different NORP authorities , first and foremost the Chief Military Prosecutor ’s Office , for information on the PERSON criminal investigation and for the “ rehabilitation ” of their relatives in accordance with the provisions of the DATE LAW ( see paragraph CARDINAL below ) .

By a letter of DATE sent in response to a rehabilitation request by PERSON , ORG confirmed that her husband , Mr Wincenty Wołk , had been held as a prisoner of war in the PERSON camp and had then been executed , along with other prisoners , in DATE . The letter stated that her application for rehabilitation would be considered only after the conclusion of the criminal investigation .

DATE . Following the discontinuation of the investigation in case no . CARDINAL , PERSON asked ORG on DATE for a copy of the decision discontinuing the investigation . By a letter of DATE , the prosecutor ’s office refused to provide it , citing the decision ’s top secret classification . On DATE the NORP Embassy in GPE asked the prosecutor ’s office for an explanation concerning the rehabilitation of Mr GPE . In a letter of DATE the prosecutor ’s office expressed the view that there was no legal basis for the rehabilitation of Mr PERSON or the other NORP citizens because the investigation had not determined which provision of the DATE LAW had been the basis for the repression to which they had been subjected . A similarly worded letter of CARDINAL DATE refused a further request to the same effect by PERSON .

On DATE the Chief Military Prosecutor ’s Office rejected a request for rehabilitation submitted by counsel on behalf of all the applicants . The prosecutor stated that it was not possible to determine the legal basis for the repression to which NORP citizens had been subjected in DATE . Despite the existence of some documents stating that the applicants’ relatives had been transferred from the ORG camps at ORG , GPE and GPE , the joint efforts by NORP , NORP , NORP and NORP investigators had not uncovered any criminal files or other documents relating to their prosecution in DATE . In the absence of such files it was not possible to decide whether LAW would be applicable . Furthermore , the prosecutor stated that the remains of the applicants’ relatives had not been discovered among the human remains found during the exhumation works .

Counsel lodged a judicial appeal against the prosecutor ’s refusal .

On DATE the ORG of GPE dismissed the appeal . While the court confirmed that the names of the applicants’ relatives had featured on the FAC lists of prisoners , it pointed out that CARDINAL bodies had been identified as a result of the exhumations conducted in the context of case no . CARDINAL and that the applicants’ relatives had not been among those identified . The court further found that there was no reason to assume that the CARDINAL NORP prisoners of war ( the applicants’ relatives ) had actually been killed , and that NORP lawyers had no legal interest in the rehabilitation of NORP citizens .

On DATE ORG rejected , in summary fashion , an appeal against ORG judgment .

On DATE ORG , the lower chamber of ORG , adopted a statement entitled “ On the PERSON tragedy and its victims ” which read , in particular , as follows :

“ DATE , CARDINAL of NORP citizens held in the prisoner - of - war camps of the FAC of the GPE and in prisons in the western regions of the NORP SSR and NORP SSR were shot dead .

The official NORP propaganda attributed responsibility for this atrocity , which has been given the collective name of the PERSON tragedy , to NORP criminals ... In DATE our country made great strides towards the establishment of the truth about the PERSON tragedy . It was recognised that the mass extermination of NORP citizens on GPE territory during the Second World War had been an arbitrary act by the totalitarian State ...

The published materials that have been kept for DATE in secret archives not only demonstrate the scale of this terrible tragedy but also attest to the fact that the PERSON crime was carried out on the direct orders of PERSON and other NORP leaders ...

Copies of many documents which had been kept in the closed archives of the ORG of ORG of GPE have already been handed over to the NORP side . The members of ORG believe that this work must be carried on . It is necessary to continue studying the archives , verifying the lists of victims , restoring the good names of those who perished in GPE and other places , and uncovering the circumstances of the tragedy ... ”

LAW ( IV ) respecting LAW of DATE ( “ the DATE LAW ( IV ) ” ) , and in particular its annex , Regulations concerning the Laws and Customs of War on Land , provides as follows :

“ Art . CARDINAL . Prisoners of war are in the power of the hostile Government , but not of the individuals or corps who capture them .

They must be humanely treated .

Art . CARDINAL . In addition to the prohibitions provided by special Conventions , it is especially forbidden

( b ) To kill or wound treacherously individuals belonging to the hostile nation or army ;

( c ) To kill or wound an enemy who , having laid down his arms , or having no longer means of defence , has surrendered at discretion ;

Art . CARDINAL . No general penalty , pecuniary or otherwise , shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible . ”

LAW relative to the Treatment of Prisoners of War of DATE ( “ LAW of DATE ” ) provided as follows :

“ Art . CARDINAL . Prisoners of war are in the power of the hostile Government , but not of the individuals or formation which captured them .

They shall at all times be humanely treated and protected , particularly against acts of violence , from insults and from public curiosity .

Measures of reprisal against them are forbidden .

Art . CARDINAL . No prisoner of war shall be sentenced without being given the opportunity to defend himself .

No prisoner shall be compelled to admit that he is guilty of the offence of which he is accused .

Art . CARDINAL . A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power . ”

DATE . Article CARDINAL of LAW ) of ORG ( Nuremberg Tribunal ) set up in pursuance of the agreement signed on DATE by the governments of GPE , GPE , GPE and the GPE , contained the following definition of crimes :

The following acts , or any of them , are crimes coming within the jurisdiction of the ORG for which there shall be individual responsibility :

( a ) crimes against peace : namely , planning , preparation , initiation or waging of a war of aggression , or a war in violation of international treaties , agreements or assurances , or participation in a common plan or conspiracy for the accomplishment of any of the foregoing ;

( b ) war crimes : namely , violations of the laws or customs of war . Such violations shall include , but not be limited to , murder , ill - treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war or persons on the seas , killing of hostages , plunder of public or private property , wanton destruction of cities , towns or villages , or devastation not justified by military necessity ;

( c ) crimes against humanity : namely , murder , extermination , enslavement , deportation , and other inhumane acts committed against any civilian population , before or during the war ; or persecutions on political , racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the ORG , whether or not in violation of the domestic law of the country where perpetrated .

The definition was subsequently codified as ORG in the LAW in GPE and in the Judgment of the ORG , formulated by ORG in DATE under ORG Resolution CARDINAL ( II ) and affirmed by ORG .

The Convention on the Non - Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity ( DATE ) , to which GPE is a party , provides in particular as follows :

“ No statutory limitation shall apply to the following crimes , irrespective of the date of their commission :

( a ) War crimes as they are defined in GPE , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG ...

( b ) ORG against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG ... ”

“ The States Parties to the present Convention undertake to adopt , in accordance with their respective constitutional processes , any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that , where they exist , such limitations shall be abolished . ”

LAW on the law of treaties ( DATE ) , to which GPE is a party , provides as follows :

“ Every treaty in force is binding upon the parties to it and must be performed by them in good faith . ”

“ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty . ... ”

“ Unless a different intention appears from the treaty or is otherwise established , its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before DATE of the entry into force of the treaty with respect to that party . ”

Article CARDINAL of LAW ( “ the LAW ” ) , to which GPE is a party , reads as follows :

“ No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . In particular , no one shall be subjected without his free consent to medical or scientific experimentation . ”

The United Nations Human Rights Committee ’s General Comment No . DATE [ CARDINAL ] : The Nature of the General Legal Obligation Imposed on GPE Parties to the LAW , adopted on DATE ( CARDINAL meeting ) , reads as follows :

“ CARDINAL . The obligations of the LAW in general and article CARDINAL in particular are binding on ORG as a whole . All branches of government ( executive , legislative and judicial ) , and other public or governmental authorities , at whatever level – national , regional or local – are in a position to engage the responsibility of ORG . The executive branch that usually represents ORG internationally , including before the ORG , may not point to the fact that an action incompatible with the provisions of the LAW was carried out by another branch of government as a means of seeking to relieve ORG from responsibility for the action and consequent incompatibility . This understanding flows directly from the principle contained in LAW , according to which a ORG ‘ may not invoke the provisions of its internal law as justification for its failure to perform a treaty’ . ... ”

At its meeting on DATE ORG established under LAW expressed the following views after consideration of ORG . CARDINAL/CARDINAL , submitted on behalf of PERSON and Mr PERSON against GPE :

“ CARDINAL.CARDINAL The ORG notes that the author ’s claim that her family was informed of neither the date , nor the hour , nor the place of her son ’s execution , nor of the exact place of her son ’s subsequent burial , has remained unchallenged . In the absence of any challenge to this claim by ORG , and any other pertinent information from ORG on the practice of execution of capital sentences , due weight must be given to the author ’s allegation . ORG understands the continued anguish and mental stress caused to the author , as the mother of a condemned prisoner , by the persisting uncertainty of the circumstances that led to his execution , as well as the location of his gravesite . The complete secrecy surrounding the date of execution , and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress . The ORG considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son , and their subsequent persistent failure to notify her of the location of her son ’s grave amounts to inhuman treatment of the author , in violation of article CARDINAL of the LAW . ”

At its meeting on DATE ORG expressed the following views after consideration of Communication No . DATE , submitted on behalf of PERSON , PERSON , PERSON and PERSON against GPE PERSON :

“ CARDINAL The Committee noted ORG arguments concerning the inadmissibility of the communication ratione temporis . Having also noted the ORG arguments , the ORG considered that a distinction should be drawn between the complaint relating to Mr. PERSON and the complaint concerning Ms. PERSON and her children . The ORG considered that the death of PERSON , which may have involved violations of several articles of the LAW , occurred on DATE , hence before the LAW and LAW entered into force for GPE . This part of the communication was therefore inadmissible ratione temporis . PERSON death certificate of CARDINAL DATE , stating that he died of natural causes – contrary to the facts , which are public knowledge and confirmed by ORG DATE and the authorities’ failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms. PERSON and her children .

CARDINAL Concerning the alleged violation of article CARDINAL , ORG understands the anguish and psychological pressure which Ms. PERSON and her sons , the family of a man killed in disputed circumstances , have suffered and continue to suffer because they still do not know the circumstances surrounding the death of PERSON , or the precise location where his remains were officially buried . PERSON family have the right to know the circumstances of his death , and the ORG points out that any complaint relating to acts prohibited under article CARDINAL of the LAW must be investigated rapidly and impartially by the competent authorities . In addition , the ORG notes , as it did during its deliberations on admissibility , the failure to correct PERSON death certificate of CARDINAL DATE , which records a natural death contrary to the publicly known facts , which have been confirmed by ORG . ORG considers that the refusal to conduct an investigation into the death of PERSON , the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. PERSON and her sons , in breach of LAW . ”

Article CARDINAL § CARDINAL sets out the following grounds for discontinuation of criminal proceedings :

“ ( CARDINAL ) there was no criminal offence ;

( CARDINAL ) the acts did not constitute a criminal offence ;

( CARDINAL ) the suspect or the defendant died , except in cases in which the criminal proceedings need to be continued for the rehabilitation of the deceased . ”

Article CARDINAL defines a “ victim ” as an individual who has sustained physical , pecuniary or non - pecuniary damage as the result of a crime . The decision to recognise the individual as a “ victim ” must be made by the examiner , investigator , prosecutor or court .

According to the preamble , the purpose of LAW is the “ rehabilitation ” of all victims of political repression who were prosecuted on the territory of GPE after DATE , the term “ rehabilitation ” being understood as “ the restoration of their civil rights , the removal of any other adverse consequences of the arbitrary actions and the payment of compensation in respect of pecuniary damage ” .

Section CARDINAL defines “ political repression ” as various measures of restraint , including deprivation of life or liberty , imposed by the ORG for political motives , as well as any other restriction on the rights or freedoms of those individuals who were recognised as being socially dangerous to the ORG or political regime on account of their class or social origin , ethnicity or religion .

Section CARDINAL extended the application of LAW to all NORP nationals , former GPE nationals , foreign nationals and stateless persons who were subjected to political repression in the territory of GPE after DATE .

Section CARDINAL establishes the categories of persons who are eligible for “ rehabilitation ” . Point ( b ) concerns individuals who were subjected to criminal repression on the basis of decisions by ORG , ORG ) , ORG ( ORG , ГПУ ) , ORG for ORG ( FAC , ORG ) , ORG ( ORG , ORG ) , prosecutors and their collegiate bodies , “ special commissions ” , the troika and other authorities with judicial functions .

According to its preamble , LAW ( Law no . PERSON of DATE ) governs the procedure for the identification of ORG secrets , the classification and declassification of information and the protection of information in the interests of the national security of GPE .

Section CARDINAL contains a list of categories of information that constitute a ORG secret . It includes , in particular , the following :

“ ( CARDINAL ) information in the field of intelligence , counterintelligence and operational and search activities , as well as in the field of counter - terrorism :

– concerning resources , means , sources , methods , plans and outcomes of intelligence , counterintelligence and operational and search activities and the financing thereof ...

– concerning persons who cooperated or are cooperating on a confidential basis with the authorities in charge of intelligence , counterintelligence and operational and search activities . ”

Section CARDINAL contains a list of information which may not be declared a ORG secret or classified . It covers , in particular , the following information :

“ – concerning violations of human rights and freedoms of individuals and citizens ...

– concerning breaches of the law committed by ORG authorities or officials . ”

Section CARDINAL governs the procedure for declassifying the information . It also provides as follows :

“ The period , during which the ORG secrets shall remain classified , may not exceed DATE . In exceptional cases , ORG on ORG may extend this period . ”

On DATE the government adopted Regulation no . CARDINAL on preparing ORG secret information for transfer to foreign GPE and international organisations . It provides that a decision on transferring such information may be made by the NORP government on the basis of a report prepared by ORG on ORG ( § CARDINAL ) . The recipient party must undertake to protect the classified information by entering into an international treaty establishing , among other matters , the procedure for transferring information , a confidentiality clause and a dispute resolution procedure ( § CARDINAL ) .

Chapter CARDINAL contains a list of crimes against the peace and security of humankind . Article CARDINAL prohibits in particular “ cruel treatment of prisoners of war or civilians ” , an offence punishable by up to twenty years’ imprisonment .

Article CARDINAL § CARDINAL stipulates that the offences defined in Articles CARDINAL ( War ) , CARDINAL ( Prohibited means of warfare ) , CARDINAL ( Genocide ) and CARDINAL ( Ecocide ) are imprescriptible .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

On DATE the applicant , who had been a candidate for ORG , submitted a lustration declaration as required by LAW DATE on disclosing work for or service in the ORG ’s security services or collaboration with them DATE by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach DATE osób pełniących funkcje publiczne – “ the DATE LAW ” ) . In the declaration he admitted that he had served ( pełnił służbę ) in the ORG ’s security services . In the explanatory “ B ” section of the declaration he stated that he had been a company commander in ORG ( PERSON NORP Wewnętrzna – “ the WSW ” ) .

Afterwards , ORG ( ORG PERSON ) published information that the applicant had served in the ORG ’s security services within the meaning of the CARDINAL LAW . The applicant was elected as a member of ORG .

On DATE ORG ( Sąd Apelacyjny ) decided to institute proceedings in the applicant ’s case on the ground that he had lied in his lustration declaration by stating that he had served in the WSW , whereas in reality he had secretly cooperated with this service .

On DATE ORG , acting as the firstinstance lustration court , found that the applicant had been an intentional and secret collaborator with the LAW and had therefore lied in his lustration declaration . The court established that in DATE , while serving in the army as a professional soldier , the applicant had been recruited as a secret collaborator with the military counter - intelligence service of the ORG . The applicant had thus lied in his declaration . He must have known that he had served as a commander of a platoon of ORG in PERSON ( PERSON ) and not the WSW .

The applicant lodged an appeal against the decision . He argued that he had admitted to having had ties with the security service – the ORG – but had mistakenly characterised the nature of his contacts as “ service ” . The applicant pointed to the lengthy period of time that had elapsed since the events in question and to the lack of clarity of the declaration , which he had had difficulties in filling out .

On DATE ORG , acting as the secondinstance lustration court , dismissed the applicant ’s appeal . The court reiterated that the purpose of the lustration declaration was to reflect the truth . The content of the declaration should be exhaustive and its form should comply with legal requirements . The court agreed with the firstinstance court that the applicant had denied having been an intentional and secret collaborator with the ORG , which had been the ORG ’s security service within the meaning of the law . Lastly , the court dismissed the applicant ’s assertion that he had committed a mistake while filling out the declaration . The court found that there had been no mistake as to the facts because the applicant had obviously known that his place of service was ORG and not the ORG . Nor could he claim that there had been a mistake as to the law , as it had been his duty to acquaint himself with LAW and the explanatory note on the declaration .

The applicant lodged a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) .

On DATE ORG dismissed the cassation appeal as manifestly ill - founded . ORG followed the lower ORG findings that the applicant had undoubtedly been an intentional and secret collaborator with the secret service , the WSW . This collaboration had nothing in common with the official contacts the applicant had had with the ORG while serving in the army , but had been a secret collaboration initiated by his signing a collaboration declaration . ORG reiterated that the purpose of LAW had also been to disclose the past of politicians , who in a democratic ORG should be transparent and whose past should be known . Finally , the court dismissed the applicant ’s allegations that the form of the declaration had been confusing or open to contradictory interpretations . As a consequence of this judgment of ORG , on DATE the applicant lost his seat in ORG .

The applicant ’s lawyer submitted that he had been notified of that decision on DATE .

The relevant domestic law and practice concerning lustration proceedings in GPE are set out in the ORG ’s judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ORG DATE ... ) .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

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

The applicant was born in DATE and is now serving a sentence in GPE .

On DATE the applicant was apprehended , allegedly in an inebriated state , on the railway line by PERSON and PERSON , police officers from GPE station police department ( линейный пост милиции станции ORG . Subsequently he was transported to GPE district police station ( ORG ) and placed in a temporary detention cell .

After a while a police officer took the applicant from his cell to the second floor of the police station . The officer pointed to a young man and woman in CARDINAL of the offices and asked the applicant whether he knew them . The applicant said that he knew the woman . The officer then noticed a blood stain on the sleeve of the applicant 's jacket and allegedly accused him of having robbed the man and woman . The applicant was taken to the officer on duty and his jacket was seized as material evidence .

The applicant spent TIME in the temporary detention wing .

On TIME another police officer who did not introduce himself took the applicant from his cell to an office on the third floor of the police station . He told the applicant to write a confession statement which the applicant refused to do . The officer left and then returned with his colleagues . Together they beat the applicant up and later took him back to the cell .

Later on DATE the applicant was brought before the Justice of the Peace of the CARDINALth ORG who found him guilty of disturbing public order and sentenced him to DATE detention .

On DATE the applicant was interviewed as a witness in a robbery case . He refused to make any statements and asked for his injuries to be recorded and for an inquiry to be opened into the beatings he had received .

On DATE an investigator from GPE district police station , PERSON , commissioned a forensic examination of the applicant 's injuries with a view to determining their extent and origin .

On DATE the expert returned the following findings :

“ Mr Nikiforov had a fractured nose , abrasions and a bruise on his face [ measuring CARDINAL x QUANTITY ] . The injuries could have been caused by the impact of a hard blunt object or as a result of falling on such an object ... It is impossible to establish when Mr Nikiforov 's nose was broken because of his belated request for it to be X - rayed ... ”

On DATE an investigator of ORG , PERSON , refused to institute criminal proceedings into the alleged beatings . He found that since the applicant 's jacket had been stained with blood at the moment of his arrival at the police station , the injuries must have been caused at some earlier point in time .

On DATE the ORG quashed the investigator 's decision and directed him to hear the arresting police officers and to examine the detainees ' registration log .

On DATE the investigator PERSON again refused to institute criminal proceedings . On the basis of an entry in the registration log , he established that from DATE to QUANTITY on DATE the applicant had not been in the temporary detention wing but with police officer Mr A. However , since both PERSON and the arresting police officers had denied using any force on the applicant , there were no indications of a criminal offence .

On DATE a deputy prosecutor of the LOC quashed the investigator 's decision as incomplete . He ordered , in particular , that the officers on duty be heard on the issue of whether any injuries had been present on the applicant 's body at the time of his arrival at the police station .

On DATE the investigator PERSON refused to institute criminal proceedings for a third time . His decision was an exact repeat of his previous one , save for the statement of the officer PERSON in which he had claimed that at the time of the applicant 's arrival at the police station he had had no visible injuries .

On DATE the ORG quashed the investigator 's decision , further to the applicant 's complaint , and ordered him to verify the origin of the blood stain on the applicant 's jacket .

On DATE the investigator PERSON refused to institute criminal proceedings for a fourth time . He added the testimony of the officer PERSON who could not remember whether the applicant had been held in the police station on CARDINAL or DATE .

On DATE the ORG quashed the investigator 's decision , noting that the investigator had not established how the injuries had been caused or obtained statements from the applicant 's co - detainees .

On DATE the investigator PERSON issued a fifth decision refusing to institute criminal proceedings . On DATE the regional prosecutor quashed that decision and ordered an additional inquiry .

On DATE the investigator PERSON . issued a sixth decision refusing to institute criminal proceedings , which was set aside by ORG on DATE .

On DATE the deputy GPE district prosecutor , PERSON , refused to institute criminal proceedings for a seventh time . She noted the testimony of the investigator PERSON , the applicant 's partner PERSON and the applicant 's sister PERSON , who had all seen the applicant 's swollen nose and bruised face on the morning of DATE . The Deputy Prosecutor acknowledged that light injuries had been inflicted on the applicant after his arrival at the police station on DATE , but declared the prosecution time - barred because the limitation period for the offence of light injuries was set at DATE . The applicant complained to a court .

On DATE the ORG ruled in the applicant 's favour , finding that the inquiry had been incomplete . It also noted that , although it was established that the applicant had been beaten at the police station , the investigation had failed to use all possible means to identify the perpetrators .

On DATE ORG upheld ORG decision on appeal .

On DATE the investigator PERSON from ORG issued the most recent decision refusing to institute criminal proceedings . He noted that , according to the arrest record and testimonies of many witnesses , the applicant had had no visible injuries at the time he was placed in the temporary detention wing at TIME on DATE . On DATE a forensic expert had examined the applicant and recorded multiple injuries , including bruising to the eye , a broken nose , chipped tooth and abrasions on his face . Officer PERSON had admitted taking the applicant out of his cell on DATE but denied having beaten him . The investigator thus confirmed that the applicant had suffered bodily injuries shortly after he was detained at GPE district police station . However , the prosecution was time - barred because of the DATE limitation period and no evidence implicating officer PERSON or any other police officers had been obtained .

From DATE to DATE ORG examined the case against the applicant on the charge of robbery .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment in a high - security colony . On DATE the judgment was upheld on appeal by ORG .

A criminal case may be instituted on the basis of a criminal complaint if there is sufficient evidence of elements of a crime ( Article CARDINAL of the Code of Criminal Procedure ) . A criminal case may be opened by a prosecutor or by an investigator with the prosecutor 's consent ( Article CARDINAL § CARDINAL of the CCrP ) .

The victim is the individual who has suffered physical harm , emotional distress or pecuniary damage as a consequence of the crime . The victim has , in particular , the right to give statements , to take part in procedural acts , to put questions to experts , and to lodge requests ( Article CARDINAL of the CCrP ) .


Violation of Art. 5-1;Violation of Art. 5-4;Not necessary to examine Art. 13;No violation of Art. 14+5-4;Just satisfaction reserved

Mr. PERSON , a NORP national born in GPE ( GPE ) on DATE , who was a minor at the material time , lives at ORG , GPE .

He arrived in GPE in DATE , having previously lived in GPE , where he was brought up by an aunt . He was an adolescent with a disturbed personality owing mainly to family problems , and from DATE to DATE he was placed in various juvenile homes as a preventive welfare measure provided for in the Children 's and ORG of DATE ( " LAW " ) .

In DATE , Mr. PERSON was suspected of certain offences and was brought before ORG . Thereafter , a number of court orders were made in regard to him under LAW .

On CARDINAL occasions in DATE , the applicant was ordered to be placed in a remand prison under LAW , whereby a juvenile may , " if it is materially impossible to find an individual or an institution able to accept [ him ] immediately " , " be provisionally detained in a remand prison for a period not exceeding DATE " ( see paragraph QUANTITY below ) . In this way he was detained in the remand prison at GPE on the following dates : CARDINAL DATE ( DATE ) ; DATE ( DATE ) ; DATE ( DATE ) ; DATE May ( DATE ) ; CARDINAL DATE ( DATE ) ; DATE ( DATE ) ; DATE ( DATE ) ; DATE ( DATE ) ; and DATE ( DATE ) . In all , he was thus deprived of his liberty for DATE during the period of DATE from DATE to CARDINAL DATE .

It is with these provisional placements that the present case is concerned . They were all ordered on the submissions of ORG by ORG , save the second , which was ordered by ORG .

Each of the placement orders recorded that it was materially impossible to find an individual or an institution able to accept Mr. PERSON immediately , except that the first order did not use the word " materially " . The second , third , fourth , fifth , sixth and eighth orders referred to an institution " appropriate to the juvenile 's behaviour " , while the seventh and the ninth used only the adjective " appropriate " .

The first placement in FAC was ordered by ORG on DATE , following an incident at ORG , where the applicant had been placed on DATE .

The order referred to the applicant 's " dangerous behaviour " and his " numerous previous placements " .

Mr. PERSON appealed against the order to ORG ( see paragraph CARDINAL below ) , which on DATE made an interim order that the applicant should be returned to ORG ; it noted that no other solution had been found and that the placement in ORG would cease to " have effect after expiry of the statutorily prescribed period " .

On DATE , ORG varied its order of DATE and ordered the second placement in FAC .

The order referred to " information obtained " , in particular as regards the applicant 's " new pattern of behaviour " . It noted that " no institution or individual [ had ] come forward ... to take " him and that " the CARDINAL ORG institutions designed for the purpose [ said ] that they [ were ] ... unable " to " accept him immediately , in view of , among other things , his behaviour " . It stated that the placement in the remand prison was ordered " pending a solution to be suggested ... by the welfare service of the juvenile court of first instance " .

On DATE , ORG , " having regard to all the information obtained and in the imminent expectation of a more satisfactory placement measure " , varied its order of DATE and ordered that the applicant should be placed in the reformatory at GPE . Mr. PERSON absconded from that institution DATE after he arrived and , on DATE , ORG placed him in the care of his father , under the supervision of ORG and ORG and subject to certain conditions .

The third placement in FAC was ordered by ORG on DATE , after " fresh offences " had been committed by the applicant DATE and DATE .

The order recorded that the applicant was " stubbornly unresponsive to any custodial , protective or educative measure " . By way of justifying the material impossibility of finding " an institution appropriate to [ his ] behaviour " , it cited the fact that " the ORG reformatories were open institutions " .

On DATE , ORG again made an interim order placing the applicant in the care of his father , under the supervision of ORG and on the same conditions as on DATE ( see paragraph CARDINAL above ) .

The fourth placement in FAC was ordered by ORG on DATE .

The order noted that Mr. PERSON " persist[ed ] in his delinquent behaviour " .

On DATE , ORG made another interim order placing the applicant in the care of his father , under the same supervision and on the same conditions as on DATE ( see paragraph CARDINAL above ) .

The fifth placement in FAC was ordered by ORG on DATE .

The order referred to the " information obtained " and " the fact that the juvenile persist[ed ] in his delinquent behaviour " .

On DATE , ORG varied the order of DATE and returned the applicant to " his father 's family circle " , under the same supervision and on the same conditions as laid down by ORG on DATE and CARDINAL DATE ( see paragraphs CARDINAL and DATE above ) .

The sixth placement in FAC was ordered by ORG on DATE .

The order referred to the " information obtained " , " the fact that the juvenile persist[ed ] in his delinquent behaviour " , " warnings already given him " and his " rebellious behaviour ... at the police station " . It stated that " because of the juvenile 's personality and behaviour , it [ was ] necessary to send him to an institution in which he [ would ] be closely supervised " , that " during DATE period a private institution [ did ] not meet the requirements " , and that none of the ORG institutions ( ORG , ORG and PERSON ) had " agreed to take the juvenile " , CARDINAL of them having " flatly refus[ed ] " to do so .

On DATE , ORG made an interim order placing Mr. PERSON in the care of an aunt .

The seventh placement in FAC was ordered by ORG on DATE .

The order referred to the " information obtained " , a " burglary at TIME , as a member of a gang , on DATE " and the applicant 's " participation ... in an assault on an under - age girl on DATE " . It pointed out that his aunt no longer wished to assume the responsibility laid on her by ORG .

On CARDINAL and CARDINAL DATE , ORG varied its order of DATE and decided that the applicant should be returned to " his father 's family circle , under the supervision of a ORG " .

The eighth placement in FAC was ordered by ORG on DATE .

The order referred to the " information obtained " and to the fact that the applicant " persist[ed ] in his delinquent behaviour " .

On DATE , ORG varied the order of DATE and ordered that Mr. PERSON should be returned to " his family ... under the supervision of a ORG " .

The ninth placement in FAC was ordered by ORG on DATE .

The order referred to the " information obtained " .

On DATE , ORG varied the order of DATE and ordered the " provisional release " of the applicant " to his family under the supervision of a ORG " .

Thereafter , Mr. PERSON was not again placed in a remand prison . His behaviour improved , it seems , following his placement during the autumn of DATE in a more conducive environment , at the instigation of CARDINAL of his lawyers .

On DATE , ORG relinquished jurisdiction in favour of the ordinary court , under section CARDINAL of LAW ( see paragraph CARDINAL below ) , but ORG did not bring the case to trial .

On DATE and DATE , the applicant appealed against ORG orders of DATE and CARDINAL DATE placing him in ORG for the first time and the third time respectively ( see paragraphs PERSON and CARDINAL above ) .

In a judgment given on DATE , the juvenile chamber of ORG joined these CARDINAL appeals and declared them to be inadmissible because they had become devoid of purpose ; it noted that by its orders of DATE and CARDINAL DATE ( see paragraphs PERSON and CARDINAL above ) it had terminated the CARDINAL placements in question .

As to the lawfulness of the CARDINAL periods of detention complained of , ORG observed :

" While the provisions of LAW and ORG do not represent a deprivation of liberty with a view to bringing the juvenile before the competent legal authority , the LAW does not contravene the Articles of the Convention for the Protection of Human Rights in that the ' deprivation of liberty ' is ordered in the general context of the educational supervision of the juvenile in the exceptional cases in which it is materially impossible to find an individual or an institution able to accept the juvenile immediately , as a necessary custodial measure in a remand prison for a period which can not exceed DATE .

Against this background , regard must be had to the individual features of the case at the time the interim custody order was made .

The material impossibility referred to in section CARDINAL is not meant to indicate merely those cases in which literally no physical location can be found in which to place the juvenile , regardless of the education and protection aspects which have to be taken into account in the assessment the judge makes when taking his decision in the light of the practical possibilities that are really open to him ; ... " .

ORG thus considered that the CARDINAL orders appealed against did not contravene either the ORG or section CARDINAL of the CARDINAL Act .

The applicant appealed on points of law against this judgment on DATE . ORG dismissed the appeal on DATE , noting merely that " the substantive formalities and those required on pain of nullity [ had ] been complied with and the decision [ was ] in accordance with the law " . It did not take into account the pleadings submitted by the applicant in support of his appeal because they had been filed late .

In the meantime , the applicant had appealed to ORG - on DATE - against the order made by ORG on CARDINAL DATE placing him in ORG for the second time ( see paragraph CARDINAL above ) .

ORG dismissed this appeal on CARDINAL DATE .

It noted that the appeal had become inadmissible because devoid of purpose , as the order appealed against had been varied by the CARDINAL of CARDINAL DATE ( see paragraph CARDINAL above ) .

The applicant had argued that he still had an interest in having the order quashed , mainly because that would , under LAW § CARDINAL ( LAW as well as under national legislation , enable him to claim compensation for the damage caused to him by his detention . ORG held that the right to bring such an action for damages did not depend on a prior finding , in a judicial decision , that the deprivation of liberty had been unlawful .

The applicant had also contended that a decision declaring his appeal inadmissible because devoid of purpose would contravene LAW and LAW ( article DATE , article CARDINAL ) of the Convention . On this point ORG held that as the impugned measure had been taken by ORG , the guarantee embodied in those CARDINAL provisions had been fulfilled .

On DATE , the applicant appealed against ORG order of CARDINAL DATE placing him in ORG for the fourth time ( see paragraph CARDINAL above ) .

On DATE , the juvenile chamber of ORG declared the appeal inadmissible because devoid of purpose , since the order of CARDINAL DATE ( see paragraph CARDINAL above ) had terminated the applicant 's detention .

On DATE , the applicant appealed against ORG order of CARDINAL DATE placing him in ORG for the sixth time ( see paragraph CARDINAL above ) .

This appeal failed like the CARDINAL previous ones ( see paragraphs CARDINAL DATE above ) : on DATE , the juvenile chamber declared it inadmissible because devoid of purpose , as the order of CARDINAL DATE had ended the detention in question ( see paragraph CARDINAL above ) .

The applicant appealed to ORG against this judgment on CARDINAL DATE but his appeal was dismissed on DATE .

He had criticised ORG for not having dealt adequately with his submissions alleging a violation of section CARDINAL of the DATE LAW ( d ) ( article CARDINAL - CARDINAL-d ) of the LAW . ORG held that ORG did not have to deal with those submissions , since they were of no relevance once the court had decided that the appeal had become devoid of purpose .

He had also maintained that there had been a breach of section CARDINAL of LAW in that the impugned decision had taken his behaviour into account , and of LAW ( d ) ( article CARDINAL - CARDINAL-d ) of the LAW in that section CARDINAL of the Act permitted deprivation of liberty in circumstances which , in his view , were not compatible with that provision of the Convention . ORG held this ground of appeal to be " inadmissible because devoid of purpose " as it attacked reasons given for the judgment appealed against which had " no effect on [ its ] lawfulness " .

The applicant did not appeal against the orders of DATE ( see paragraph CARDINAL above ) , QUANTITY DATE ( see paragraph CARDINAL above ) , DATE ( see paragraph CARDINAL above ) or DATE ( see paragraph CARDINAL above ) .

Nor did he appeal on points of law against ORG judgment of DATE ( see paragraph CARDINAL above ) .

Before each of the orders was made provisionally placing him in the remand prison , Mr. PERSON was heard by the court . He declined to be heard before the order of CARDINAL DATE was made , however ( see paragraph CARDINAL above ) .

According to their own statements , which were not disputed by the ORG , the applicant 's lawyers were not called on to assist or represent him on any of these occasions .

On the other hand , they addressed the court before some of the other interim decisions in his regard were taken ; and , according to the evidence , the same was true when the juvenile chamber of ORG had to determine the applicant 's appeals against the orders of DATE , DATE , DATE and DATE .

The juvenile was , moreover , duly represented before ORG .

The DATE LAW of DATE ; its purpose is to protect the health , morals and education of young people under DATE ( " juveniles " ) . Under it , " offending acts " committed by juveniles can normally be dealt with only by means of custodial , protective or educative measures and not by means of criminal sanctions .

The DATE Act contains provisions relating to " social welfare " and others relating to " protection by the courts " .

Judicial protection of juveniles is provided by specialised courts : ORG , which is a section of the tribunal de première instance ( regional court of first instance ) and sits as CARDINAL or more single - judge courts ( Article CARDINAL of the Judicial Code ) , and the juvenile chambers of ORG ( LAW ) , which likewise have a single member ( LAW at the material time , subsequently LAW .

At the material time , there were CARDINAL ORG judges at the GPE tribunal de première instance , who sat in DATE and seventeenth chambers , which made up the juvenile section of that court ; and at ORG there was a judge who heard appeals in juvenile cases and sat in the single juvenile chamber of that court .

Unless otherwise provided , the statutory provisions governing the prosecution of lesser criminal offences apply to proceedings concerning judicial measures for the protection of juveniles ( section CARDINAL of the DATE Act ) .

Section CARDINAL of the CARDINAL Act lays down the cases in which the juvenile courts may take the various measures set out in the LAW in respect of juveniles . They may make an order on an application by ORG in several instances :

( a ) in respect of " juveniles whose health , safety or morals are endangered , either by reason of the environment in which they are being brought up or by the activities in which they engage , or whose education is put at risk by the behaviour of the persons having custody of them " ;

( b ) in respect of " juveniles ... found begging or wandering as vagrants or who are habitual beggars or vagrants " ;

( c ) in respect of " juveniles ... proceeded against for an act classified as an offence " .

The same courts can also intervene upon a complaint by " persons having paternal authority or having custody ... of a juvenile ... who on account of his misconduct or indiscipline gives serious cause for concern " .

The measures they may order are , for the most part , set out in section CARDINAL :

( a ) a warning ( section CARDINAL(CARDINAL ) ) ;

( b ) placing the juvenile under the supervision of ORG or of a ORG ( section CARDINAL(CARDINAL ) ) ;

( c ) keeping the juvenile in his own surroundings , subject to certain conditions , such as having to attend an educational establishment , to perform educative or socially useful tasks or to comply with instructions from an educational - counselling centre or mental - health centre ( section CARDINAL(CARDINAL ) ) ;

( d ) placing the juvenile in the home of any trustworthy person or in any appropriate institution , under the supervision of ORG or of a ORG ( section CARDINAL(CARDINAL ) ) ;

( e ) placing the juvenile in a ORG reformatory ( section GPE ) ) .

There are CARDINAL types of institution which may accommodate juveniles : private institutions and ORG institutions . In the LANGUAGE - speaking part of GPE in DATE there were CARDINAL ORG reformatories for boys ( ORG , PERSON and ORG ) and one for girls . The inmates of these so - called " open " institutions live under a regime of semi - liberty . The first " closed " institution - for highly disturbed young people - came into service in DATE .

Where a juvenile over sixteen has been brought before the juvenile courts for an " act classified as an offence " , they may , if they consider the measures referred to in section DATE to be " inadequate " , relinquish jurisdiction and remit the case to ORG so that proceedings may be taken in the appropriate court ( section CARDINAL of the DATE Act ) .

If a measure taken under LAW proves " ineffective on account of persistent misconduct or dangerous behaviour by the juvenile " , the juvenile courts may also decide that he should be " placed at the disposal of the Government " until he attains his majority ( section CARDINAL of LAW ) .

Relinquishment of jurisdiction and " placing at the disposal of the Government " are regarded as exceptional measures which are to be applied only as a last resort .

By CARDINAL of the CARDINAL Act , ORG " shall take all possible steps , and have all necessary investigations made , to acquaint itself with the personalities of the juveniles concerned and with the environment in which they have been brought up and to determine their best interests and the means appropriate to their education or treatment " ; it may " have a social enquiry report prepared by a ORG and require the juvenile to undergo a medical and psychiatric examination where it considers that the evidence before it ... is insufficient " .

A juvenile brought before ORG appears in person or is represented by a lawyer ( section CARDINAL of the DATE Act ) . If he has no lawyer , the leader of the Bar ( bâtonnier ) or ORG assigns him CARDINAL ( section DATE ) .

ORG can at all times summon the person concerned , his parents , his guardian or other persons having custody of him to appear before it ( sections DATE ) .

The juvenile and his lawyer may inspect the contents of the file on the case not DATE before the hearing ; documents concerning the juvenile 's personality and the surroundings in which he is living are made available only to his lawyer ( section CARDINAL ) .

During the hearing ORG can at any time sit in camera to hear evidence regarding the juvenile 's personality from experts and witnesses as well as from the juvenile 's parents or guardian or from other persons having custody of the juvenile ; such hearings can only take place in the presence of the juvenile 's lawyer , but the juvenile himself is not present , unless called by the court ( section CARDINAL ) .

When the various measures listed in LAW are adopted as final orders , these are made in the form of judgments given in open court . Often the measures are ordered only after a fairly lengthy procedure designed to enable the court to observe the juvenile concerned and to have all necessary investigations made in order to determine what action it is appropriate to take .

During the proceedings , ORG may order interim measures in respect of the juvenile under sections CARDINAL and DATE , which provide :

" For the duration of proceedings for the implementation of one of the measures provided for in Part II , LAW , the ORG shall make any necessary interim custody orders in respect of the juvenile .

It may either leave him in the care of the persons who have custody of him or , if necessary , place him under supervision in accordance with the terms of section CARDINAL(CARDINAL ) , or it may provisionally order one of the measures provided for in section CARDINAL(CARDINAL ) and ( CARDINAL ) . "

" If it is materially impossible to find an individual or an institution able to accept the juvenile immediately , and the measures provided for in LAW therefore can not be implemented , the juvenile may be provisionally detained in a remand prison for a period not exceeding fifteen days .

A juvenile who is detained in a remand prison shall be segregated from the adults who are also detained there . "

The present LAW replaces LAW CARDINAL of the Act of CARDINAL DATE . The latter section allowed temporary placement in a prison by reason of the juvenile 's bad character as well as if it was materially impossible to find another placement , which is the only criterion adopted in LAW .

The interim measures set out in sections DATE and CARDINAL are taken by means of an order made by ORG judge in chambers , that is to say after hearing the juvenile alone , without a lawyer being present . However , under a " practical arrangement " applying only in GPE and which operated in the instant case , a duty scheme enables lawyers to have informal contacts with ORG judge where a juvenile is in custody .

ORG may at any time , either of its own motion or on an application by ORG , revoke or vary any measures taken in regard to the juvenile , except for " placing at the disposal of the Government " ( section CARDINAL paragraph , of the DATE Act ) .

After DATE has elapsed from the date on which a measure has become final , an application may be made to ORG for the same purpose by the juvenile 's father , mother or guardian or other persons having custody of the juvenile or by the juvenile himself ( section CARDINAL second paragraph ) .

" Decisions of ORG ... shall , within the statutory time - limits , be subject to appeal by ORG and to appeal or to applications to have them set aside ( opposition ) " by the juvenile or any other parties concerned ( section CARDINAL ) . The juvenile can appeal against any interim order made in his regard .

ORG can itself take the interim measures provided for in sections CARDINAL and DATE and set aside or vary those taken by ORG ( section CARDINAL ) . Like ORG , it does so by means of orders made in chambers ( see paragraph CARDINAL above ) .

An appeal on points of law lies to ORG against judgments of the juvenile chamber of ORG .

The NORP courts have held that the material impossibility required by section CARDINAL may arise not only where there is no room in an appropriate institution but also where conditions do not meet the needs of the case , particularly as regards security ( ORG , DATE - Journal des Tribunaux , DATE , p. CARDINAL - and ORG , DATE ) . In a judgment of CARDINAL DATE , ORG held that it is for the trial judge to rule on the question of material impossibility ( Pasicrisie belge , DATE , I , p. CARDINAL ) .

In a judgment of DATE , the GPE tribunal de première instance held :

" The ' educational supervision ' envisaged in the Convention ... does not exclude resorting , in hopeless cases , to spells of imprisonment for juveniles , ordered by the competent legal authority , where all other , less coercive educational - supervision attempts and measures have failed ; detention in prison for a short period , limited by the LAW , in a special section set aside for adolescents may have an educative effect by convincing the juvenile that society , after trying to help him , has decided to look to its own protection ; such detention may serve as a transition to the state of having reached the age of criminal responsibility ... when society will take measures against him which are very different from those he has experienced while under age . "

On DATE , ORG dismissed an appeal against that judgment . It held that the foregoing reasoning was not incompatible with the legal concept of " educational supervision " in LAW ( LAW . It added that by finding that the evidence showed that it was materially impossible to " give the juvenile into the care of anyone at all " , since " he immediately absconded in order to commit fresh offences " and " hampered his companions ' education , to which they were also entitled , by persuading them to join in his escapades " , the court had justified its decision in law ( Pasicrisie belge , DATE , I , p. CARDINAL ) .

Section CARDINAL of the Act of DATE on detention pending trial , as amended by LAW , provides :

" Any person who has been deprived of his liberty in circumstances incompatible with the provisions of LAW DATE , as approved by LAW of DATE , shall be entitled to compensation . An action in the form provided for in the Judicial Code shall be brought in the ordinary courts against ORG in the person of PERSON . "


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

The applicant was born in DATE and is currently residing in ORG . From DATE the applicant was employed as town clerk .

On DATE ORG informed the applicant that criminal proceedings had been instituted against him on charges of attempt to violate political rights of citizens and abuse of public authority .

On DATE the applicant asked that a formal investigation be opened . On DATE ORG rejected this claim . The applicant appealed against this decision . On DATE the investigating judge decided that a formal investigation had to be opened .

No activity was registered until DATE , when the applicant appeared on his own initiative before the investigating judge . On DATE a co - accused was examined and in DATE the investigating judge questioned QUANTITY witnesses during CARDINAL hearings .

On DATE ORG requested the investigating judge to charge the applicant with abuse of public authority . On DATE the investigating judge questioned the applicant and his co - accused . On CARDINAL DATE ORG requested the investigating judge to commit the applicant for trial .

NORP In a decision of DATE , the investigating judge committed the applicant for trial before ORG . A hearing scheduled for DATE did not take place and the case was adjourned until DATE .

On DATE the President of ORG summoned the applicant to appear on DATE .

In a judgment of DATE , filed with the registry on DATE , ORG relinquished jurisdiction in favour of ORG .

On DATE the applicant and his co - accused appealed on points of law against this judgment . By a decision of DATE , ORG declared the applicant ’s claim inadmissible .

On DATE the president of ORG scheduled the date of the hearing for DATE .

In a judgment of DATE , filed with the registry on DATE , ORG acquitted the applicant . This decision became final on DATE .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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

On DATE ORG of the GPE delivered a judgment in a criminal case against the applicant and his co - defendants , Mr T. and Mr Z. The court established that in DATE the applicant , the then Head of the ORG , had detected certain irregularities in the privatisation of a local brewery which , in his assessment , might have rendered the privatisation void . The applicant had conspired with T. and PERSON to approach the director of the brewery to extort MONEY ( RUB ) from the head of the brewery in exchange for covering up those irregularities . The head had agreed to pay RUB CARDINAL . On DATE of payment the applicant prepared an amended assessment report on the brewery ’s immovable property , signed it in his office and affixed the seal of ORG . PERSON and ORG delivered the report to the brewery head and received the stipulated amount . On leaving the head ’s office they were apprehended by the police .

The trial court found the applicant guilty of having attempted to solicit , through an intermediary , a large sum of money for performing acts in the interests of the bribe - giver that were within the applicant ’s official competence . The court established that those acts were punishable under LAW ( c ) and ( d ) of LAW ( “ Bribery ” ) in conjunction with LAW ( “ Preparation of a criminal offence and an attempted criminal offence ” ) . The applicant was sentenced to DATE and CARDINAL months’ imprisonment in a high - security colony .

The applicant , but not the prosecution , appealed against the first - instance judgment .

On DATE ORG of GPE held an appeal hearing in the presence of the applicant ’s lawyer and a prosecutor . The applicant did not attend the hearing . In his oral submissions the prosecutor asked the court to recharacterise the applicant ’s acts as attempted large - scale fraud committed by an organised group ( LAW ( b ) of LAW in conjunction with LAW ) , without reducing the sentence . Pursuant to LAW , the court then asked the applicant ’s lawyer to submit “ additional explanations ” . The lawyer contended that the granting of the prosecutor ’s request would violate the applicant ’s right to prepare his defence because neither the applicant nor the lawyer himself had been informed in advance of the nature and grounds of the new charge and they had not had adequate time to prepare their position . The lawyer relied , in particular , on LAW ( a ) and ( b ) and LAW .

The court then withdrew for deliberations and delivered its judgment by which it recharacterised the applicant ’s acts as attempted large - scale fraud within the meaning of LAW ( b ) of LAW in conjunction with LAW and upheld the applicant ’s imprisonment term . It reasoned as follows :

“ Having correctly established the facts of the case , the [ trial ] court , however , groundlessly characterised [ the applicant ’s ] acts as an attempt to solicit a bribe in conspiracy with T. and PERSON As the court acknowledged in the judgment , the brewery privatisation documents had contained ‘ PERSON that had been too insignificant to entail annulment of the privatisation , and [ the applicant ] , as the court established , had been perfectly aware of it . By setting up a deception scheme designed to get hold of a large amount of money because of the defects in the documents , [ the applicant ] , acting in collusion with T. and PERSON , attempted to steal another person ’s property on a large scale using his official position . These acts of [ the applicant ] are to be characterised under LAW and CARDINAL § CARDINAL ( b ) of LAW ...

Notwithstanding the change in the legal characterisation of the GPE acts , it must be recognised that the sentence imposed by the [ trial ] court corresponds to [ the gravity of ] the offence and the information on their personalities . ”

“ CARDINAL . Obtaining a bribe in form of money , securities , other property ... by an official -personally or through an intermediary – for acts ( omissions ) in the interests of the bribe - giver ... , provided such acts ( omissions ) are within the competence of the official or he can facilitate the performance of such acts ( omissions ) by virtue of his position ... shall be punishable by a fine ... or up to DATE imprisonment ...

The acts enumerated in parts CARDINAL , CARDINAL of the present Article , if they are committed ...

c ) with a solicitation of a bribe ;

d ) on a large scale ,

shall be punishable by DATE imprisonment , accompanied by a confiscation of property or without such . ”

“ CARDINAL . ORG , notably theft of other ’s property or acquisition of the right to other ’s property by way of deception or abuse of confidence , shall be punishable by a fine ... or up to CARDINAL years’ imprisonment ...

CARDINAL Fraud committed :

a ) by an organised group ;

b ) on a large scale ...

An attempted criminal offence is an intentional act ( omission ) of a person , directly aimed at committing an offence , if however the offence had not been completed due to circumstances beyond the will of that person . ”

Article CARDINAL of the DATE Code of Criminal Procedure required the court to examine the case within the scope of the charge against the defendant(s ) . The charge could be amended by the court , provided that such an amendment did not aggravate the situation of the defendant or violate his right to defend himself . If the amendment entailed a violation of the defence rights , the court was to remit the case for an additional investigation . It was prohibited to prefer a more serious charge or a charge based on substantially different factual circumstances . The court could continue the trial if the amendment only concerned abandonment of certain counts or aggravating circumstances .

Articles CARDINAL and CARDINAL provided that the appeal court could decide to dismiss the appeal and uphold the judgment ; to quash the judgment and remit the case for an additional investigation or a fresh examination by a trial court ; to discontinue the criminal proceedings or to vary the judgment , in particular , if the trial court had incorrectly applied the law .

Article CARDINAL described the procedure for the examination of cases before the appeal court . A judge rapporteur opened the hearing and gave a summary of the facts of the case and the grounds of appeal . The defendant first gave explanations , after which the prosecutor made oral submissions . The defendant then made additional observations and the court withdrew for deliberations and delivery of the judgment .