Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lived in GPE before his arrest .

The following facts are based on the documents produced by the parties and on the applicant ’s submissions in so far as they have not been disputed by the Government .

At TIME on DATE the applicant was arrested in LOC on suspicion of rape and placed in the interview room of the NORP police station . At TIME . , an investigator with the GPE district prosecutor ’s office , drafted an arrest record .

At TIME on DATE the applicant was taken out of the room into the corridor and told to hand over his underwear for examination by an expert . He replied that he was prepared to do that on condition that another pair of underwear was provided to him by the police or by his relatives .

TIME Mr M. , the head of the criminal investigation department , the police officer Mr F. and other police officers entered the interview room in which the applicant was locked , and started beating him with rubber truncheons . They handcuffed him and dragged him out of the room into the corridor .

The applicant was brought to the office of Mr M. where the following persons were also present : the investigator PERSON . , PERSON and CARDINAL other officers , a forensic police expert , and CARDINAL attesting witnesses , PERSON and PERSON , both residents of Uyskoye village .

The applicant was thrown on to the table face down and beaten on the back . His head struck the central unit of a computer . The officers forcibly removed his trainers , tracksuit bottoms and underwear , took the underwear away and told him to get dressed . The applicant refused to get dressed , because he was handcuffed and his tracksuit bottoms were torn .

NORP The officers PERSON him to the interview room and threw him on the table on his stomach . PERSON hit him on the back with a rubber truncheon , removed the handcuffs and then went out and locked the door .

F. returned TIME , put handcuffs on the applicant and took him again to PERSON ’s office where other officers were also present . The applicant was only wearing a T - shirt and socks .

The forensic expert attempted to take a hair sample from the applicant ’s groin using a comb . He was unsuccessful , and PERSON cut some hair with scissors .

The applicant was then laid on the table facing the desk and PERSON started clipping his fingernails . In the process the applicant ’s fingers began bleeding .

Once these procedures had been completed , the applicant was taken back to the interview room , which contained a table and CARDINAL chairs . The handcuffs were removed . He was still wearing only a T - shirt and socks .

The applicant remained there TIME , until TIME on DATE . At TIME he was transferred to a detention cell and given some clothing which his relatives had brought for him .

On DATE the applicant was taken to a doctor for an examination . While there he asked the doctor to record his injuries . The doctor refused , saying he had had no instructions in that respect .

On DATE the applicant was brought before a judge with a view to deciding on the question of detention on remand . During those proceedings the applicant described his injuries to the judge , who remanded him in custody but did not otherwise take note of the applicant ’s complaints .

On DATE the applicant complained to the GPE district prosecutor about the forceful removal of his underwear , beatings and the cutting of his fingernails . On DATE a deputy prosecutor heard him in person .

On DATE the deputy prosecutor refused to institute criminal proceedings on the basis of the statements from officers PERSON and PERSON and investigator PERSON . which read as follows :

“ It follows from M[. ] ’s statement that ORG refused to perform procedural acts voluntarily , struggled to break loose and accidentally struck his head against the computer . He was not intentionally beaten by anyone . After his fingernails had been removed and his groin shaven , PERSON was told to get dressed . He refused to get dressed . He was taken by the corridor to the detention wing . He was wearing a T - shirt and socks ...

F. explained that ... PERSON had refused to take part in procedural acts . He was held by the hands while his underwear was being removed . He broke loose and struck his head against the computer . He refused to get dressed ...

Zh . stated that ... PERSON had struck his head against the computer when his underwear was being removed . He did not make any threats against ORG . He said that if PERSON refused to hand over his underwear voluntarily , it would be taken by force because it was needed . PERSON refused to get dressed of his own will ... ”

The decision did not mention the applicant ’s version of the events .

NORP The applicant contested the refusal in court . On DATE ORG of GPE rejected his complaint , finding as follows :

“ Pursuant to LAW , the investigator may obtain samples from the suspect ... It follows from the statements by PERSON Zh[. ] , Mr F[. ] and [ the head of the ORG group ] Ms Z[. ] that they did not use any unlawful means on PERSON or made any treats against him ... ”

On DATE the ORG summarily upheld that decision on appeal .

At TIME on DATE the applicant was taken out of the cell – where he was detained on remand – into the corridor , where the investigators Zh . and PERSON and a nurse from the GPE emergency station were present .

The investigators told the applicant that they wanted to take a blood sample from him . The applicant refused to give blood in the absence of counsel .

At TIME investigator PERSON . visited the applicant in his cell . Counsel for the applicant was also present . The investigator showed him a copy of a decision that a blood sample should be taken for a comparative study , and asked the applicant to comply . The applicant refused to give blood voluntarily and counsel maintained that a sample could not be taken against his will .

TIME escort officers PERSON and NORP took the applicant out of the cell into an office where the investigator PERSON . , the nurse , and CARDINAL attesting witnesses , PERSON . and PERSON , were waiting for him . The investigator requested the applicant to give blood . The applicant refused . The investigator asked the escort officers to hold the applicant still but they refused , stating that it was beyond their call of duty . The nurse declined to take blood against the applicant ’s will . Thereafter , the applicant was brought back to his cell .

At TIME on DATE the applicant was taken from his cell and into the corridor . The investigators Zh . and PERSON , the head of the police station NORP and his deputy Is . , officers - on - duty PERSON . and PERSON , as well as the nurse , were waiting there for him . The applicant again refused to give blood .

The investigator ordered him to be handcuffed and the nurse tried to take blood , but could not get near enough to the applicant . The officers then threw him on the floor , face down with his hands behind his back . PERSON . sat on his neck , PERSON on his legs , and NORP and Is . held his hands . The nurse again attempted to use a syringe but , as he kept jerking his arms , she stopped .

The applicant complained to the district prosecutor , the internal security department of the police and the Ombudsman of the attempted taking of a blood sample by force . He did not receive any replies .

On DATE he lodged a complaint about a violation of his constitutional rights and ill - treatment with ORG .

ORG heard the applicant , the investigators Zh . and PERSON , and the officers Is . , PERSON . and PERSON and dismissed the applicant ’s complaint on DATE , finding as follows :

“ PERSON claimed ... that attempts to take a blood sample by force and the use of handcuffs had amounted to torture . LAW prohibits the use of torture . LAW defines torture as any act by which severe pain is inflicted on a person for obtaining a confession , punishing or intimidating him . The court did not see any evidence that severe pain had been inflicted on ORG on DATE , DATE or DATE , this followed from the statements by the witnesses and PERSON ’s own testimony . The use of handcuffs was permitted under LAW of ORG . As the witnesses stated in court , ORG had been handcuffed after he had started using obscene language against the nurse and police officers and jerking his hands , that is , they were used for putting an end to his unlawful conduct . Thus , the court finds no violation of ORG ’s constitutional rights because a blood sample was not taken , because he was not subjected to torture , and because the use of handcuffs was lawful . ”

On DATE ORG upheld that decision on appeal in a summary fashion .

Following his detention on remand , the applicant was placed in remand prison IZ-CARDINAL/CARDINAL . During the investigation of the criminal case against him , he was , on a number of occasions in the period from DATE to CARDINAL DATE , detained in the detention unit of the GPE police station , for a total duration of QUANTITY days .

Cells were equipped with beds made of sheet metal . No mattresses , blankets , pillows or bed linen were provided . There were no toilets inside the cells ; detainees were given buckets without covers or handles . Access to daylight and fresh air was limited . There was no opportunity for outdoor exercise ; the only light bulb was dim . No breakfast or dinner was served and the TIME meal was limited to a slice of bread and a bowl of soup .

The applicant complained to the prosecutor ’s office about the conditions of his detention at the LOC police station , lack of sleep and malnutrition . In addition , he repeated his complaint before ORG at the hearing on DATE .

On DATE the NORP prosecutor replied to the applicant that there had been numerous ( unspecified ) breaches of the legal requirements relating to the conditions of detention . By letter of DATE , the prosecutor additionally informed him that on DATE he had instructed the head of the NORP police station to remedy those breaches and to take disciplinary action against those responsible .

By a letter dated DATE , the regional police headquarters informed the applicant that mattresses and bed linen had been purchased and distributed to all inmates . They also stated that buckets with covers and handles were available in all cells and that TIME of outdoor exercise was possible on a DATE basis . Food was purchased from the local consumers’ union for a total amount of MONEY ( MONEY ) per person per day .

On DATE the deputy NORP prosecutor issued a formal requirement to the head of LOC police and the chief officer of GPE police station to remedy the violations of the laws relating to pre - trial detention of suspects and defendants . The prosecutor deputy noted that , in breach of the relevant laws and regulations , the detainees at the NORP police station were not provided with bedding , that the cells were not equipped with toilets or water taps , that cell no . CARDINAL was overcrowded , that there was no opportunity for outdoor exercise , and that food was distributed only once a day on weekdays and not provided at all at weekends .

On DATE the head of the LOC police reported to the GPE district prosecutor that his requirement had been examined and that the conditions of detention in the NORP police station had indeed fallen short of the statutory requirements . The deficiencies were largely due to insufficient funding from the federal budget . However , a renovation of the GPE police station at the expense of the regional budget was planned for DATE .

On DATE the chief officer of GPE police station also acknowledged , in his report to the GPE district prosecutor , that the conditions at the NORP police station were unsatisfactory but renovation would be carried out in DATE .

As indicated above , the applicant spent a total of DATE of his detention on remand in cells of the NORP police station . One of those occasions was on DATE when the applicant was brought to NORP police station from the remand prison at TIME The applicant was locked in cell no . CARDINAL .

Soon afterwards police officer PERSON told the applicant to leave the cell and follow him . The applicant refused to leave the cell without the investigator and counsel being present .

The chief officer of the police station , PERSON , accompanied by officers PERSON . , PERSON . and PERSON , entered the cell and ordered his subordinates to “ wrap him up ” and take him to the hospital for a medical check - up . The officers started dragging the applicant off the bed by the feet , hitting and punching him . Someone banged his head against the bed . He was handcuffed and taken out into the corridor . The applicant was shouting and swearing at the policemen .

The applicant wore socks but no shoes . He was dragged into the courtyard , pulled through the slush and puddles and placed into a prison van .

The applicant was brought to the hospital where a nurse put some questions to him . The applicant spotted investigator Zh . nearby and requested him to secure the presence of his counsel .

The applicant was then taken to the court - house . Counsel PERSON met him there and told him that a hearing concerning an extension of his detention period would now take place . The applicant replied that he would come to the hearing as he was : barefoot , wet and dirty , with blood from wounds on his forehead and face .

The escorting officers took the applicant into the hearing room . The applicant told the judge that he was ready to take part in the hearing , but drew the judge ’s attention to his lamentable appearance . The judge replied that “ nothing dramatic had happened ” and opened the hearing . At the close of the hearing the judge approved an extension of the authorised period of detention for a further DATE .

The applicant appealed , complaining in addition about the circumstances in which he had been brought to the hearing . On DATE the ORG rejected his appeal against the extension order but did not address the other complaints made .

Furthermore , on DATE the applicant complained to ORG that the hearing record made no mention of his complaint about the conditions in which he had been transported to the courthouse . On DATE a judge of ORG rejected his application for the correction of the hearing record , noting that “ all statements , questions and answers had been recorded exactly as they had been made by the participants to the hearing ” .

On DATE the applicant complained to the NORP prosecutor that the escorting officers had acted unlawfully .

On DATE the deputy prosecutor of the NORP district refused to institute criminal proceedings , finding as follows :

“ On DATE PERSON was escorted from remand prison no . IZ-CARDINAL/CARDINAL to the NORP police station for an extension of his authorised detention period . According to the applicable requirements of criminal law , a medical specialist must examine the detainee and determine whether he is fit to remain in custody . PERSON was invited to follow the escorting officers . He refused and insisted on seeing his counsel and the head of the police station .

Medical examination is not a procedural act , it does not require a separate decision by the investigator . It follows that there was no breach of the criminal procedure in respect of ORG .

The actions of the escorting officers in respect of ORG were lawful because he refused to go out of the cell , behaved aggressively and used obscene language against the policemen . By decision of CARDINAL DATE , a criminal case was instituted against ORG for insulting public officials . ”

According to the applicant , he challenged the deputy prosecutor ’s decision before ORG but he was not informed about the outcome of the proceedings . According to the Government , first ORG on DATE and then ORG on DATE had examined the deputy prosecutor ’s decision and upheld it as lawful and justified . However , the copies of the judicial decisions of those dates produced by the Government concerned the applicant ’s appeal against the deputy prosecutor ’s decision of CARDINAL DATE ( see paragraphs CARDINAL and DATE above ) and no other decisions issued on the same dates were submitted .

The applicant stood trial before ORG of LOC . The victim , PERSON , and the witnesses PERSON and PERSON . did not appear at the hearings and the prosecution requested that their pre - trial statements be read out . The court granted the request , overriding the applicant ’s objections , referring to reports by the police officers to the effect that they had moved home and their current whereabouts were not known .

The applicant ’s line of defence was that of consensual intercourse . He did not deny having had sex with PERSON , but maintained that all contacts had been voluntary . In his submission , it was of fundamental importance to have PERSON examined in open court .

The trial court examined in particular the following evidence :

– the pre - trial statement by the victim PERSON She stated that on DATE she had agreed to meet with her friend PERSON While waiting for him , she was drinking coffee and chatting with her friends , PERSON and PERSON . PERSON came at TIME and brought along CARDINAL friends , the applicant and his co - defendant . The QUANTITY girls were gone TIME . At TIME she fell asleep . In the morning she asked the applicant and his co - defendant to leave , but they refused . Instead , they beat her with a plastic bottle on the head , undressed her by force and repeatedly raped her . After they left , she fell asleep and only woke up at TIME on DATE .

– the pre - trial statements by the witnesses PERSON and PERSON . They stated that they had been visiting PERSON at her home on TIME of the events and had seen a very drunk PERSON come in late with CARDINAL friends . After a while they left and on the following day PERSON told them that she had been raped .

– the testimony from PERSON , PERSON grandmother . She testified that at the material time PERSON had rented a flat elsewhere and moved out . On DATE PERSON came in TIME , she was pale and shaking , but PERSON abstained from putting any questions to her . DATE PERSON said that she had been raped , without giving any details .

– the testimony from PERSON He testified that he used to date PERSON On DATE he got the news that the applicant and his co - defendant had been released from prison and they decided to celebrate . They came to the flat and got drunk with the girls . He spent TIME on the sofa together with PERSON and then got up very early and left for work .

– the testimony from the forensic expert PERSON She testified that the applicant ’s and his co - defendant ’s underwear bore traces of epithelium cells that could belong to a woman with Type A blood . No blood or skin cells were found in their nail clippings .

– the testimony from the forensic expert PERSON She stated that she had examined the victim PERSON on DATE and found superficial abrasions and bruises . The injuries had been inflicted DATE before the examination and they could have resulted from rape or other impact . No damage to the genital or anal area was detected .

– the testimony from the police officer PERSON who worked in the missing persons unit of the GPE district police . He stated that PERSON had been on the list of missing persons since DATE and that there were grounds to believe that she had been a victim of loan sharks to whom she had not repaid the debt . His report to the effect that he had gone to GPE to search for PERSON was untruthful , as he had never gone to GPE and as he had drafted the report “ just like that , with no real information ” because the investigator PERSON . had asked him to do so . He had been unable to locate PERSON . because she had moved out of the GPE village ; he had once seen PERSON but he did not know where she lived .

– the forensic biology reports prepared by the experts PERSON and S.

On DATE ORG found the applicant and CARDINAL co - defendant guilty as charged , finding as follows :

“ The materials of the pre - trial investigation and judicial inquiry support the finding that the defendant ORG is guilty of the offences of [ aggravated rape and non - consensual sexual intercourse ] . The defendant did not deny that he had engaged in sexual intercourse with PERSON on DATE ] in the day - time at the following address ... The findings of a forensic biology report ... corroborated the fact of sexual intercourse by PERSON and PERSON The following evidence confirms the non - consensual and violent nature of the intercourse between PERSON and PERSON : the statements by the victim PERSON made during the pre - trial investigation and read out in court ; the statements by the witnesses PERSON and PERSON . made during the pre - trial investigation and read out in court ; the testimony by the witness PERSON and the witness PERSON which were logical and consistent and which the court finds no reason to doubt . An indirect indication of the non - consensual and violent nature of the intercourse follows from the testimony of PERSON in the part in which he stated : ‘ PERSON said : Maybe you ’ve had enough sex for DATE ? PERSON replied : [ PERSON ] is a smart girl , she ’s got it right , - and took her to the GPE which implies the non - consensual nature of the intercourse between PERSON and K. Furthermore , the injuries found on PERSON ’s body – bruises on the outer surface of the hips , neck , shoulders and abrasions on the forearms – also confirm that ORG had had a sexual intercourse with her and forced her to perform oral sex on him ; the expert PERSON stated before court that the timing of injuries did not contradict the information on ORG ’s criminal acts [ sic ] and that such injuries might be the product of a non - consensual sexual intercourse ... The fact that the forensic study did not uncover any injuries to PERSON ’s genital or anal area does not exclude the possibility that sexual acts had been performed on PERSON ’s against her will ; the expert PERSON explained to the court that a forcible intercourse is possible without injuring the genitals or the anal opening and that she could not categorically exclude that there might be some indications of violent sexual intercourse . The scene of the offence ( a fourth - floor flat ) , the identity of the participants ( CARDINAL men , both recently released from penitentiary facilities , CARDINAL of them infected with tuberculosis , and a young woman ) , the number and frequency of sexual intercourse and violent acts demonstrate that the intercourse was carried out against the victim ’s will . ”

In addition , ORG found the applicant guilty of insulting QUANTITY police officers on DATE ( see paragraphs CARDINAL - CARDINAL above ) . The finding of his guilt was founded on the statements by the police officers . The court held that the application of handcuffs had been lawful because the applicant had refused to leave the cell .

The applicant was sentenced to DATE and CARDINAL months’ imprisonment in a high - security colony .

On DATE ORG issued CARDINAL separate decisions “ concerning breaches of law committed during the pre - trial investigation ” . The first decision related to a belated notification of the decision to prepare the forensic biology report : the report was requested on DATE but the applicant was only informed of it on DATE . The second decision concerned the report by the police officer PERSON , which stated that , further to a prosecutor ’s request , on DATE he had visited the registered residence of the victim PERSON in GPE and talked to the neighbours , but no one had seen her or knew her . According to the officer ’s testimony in court , he had never gone to GPE or talked to anyone there and that he had written the report “ just like that , with no real information ” . ORG considered this to be a gross violation of criminal procedure and requested the chief officer of the LOC police station to take measures and report back to the court .

NORP In his statement of appeal , the applicant submitted in particular that pre - trial written depositions by the victim and eyewitnesses had been read out in breach of the domestic law .

On DATE ORG rejected the appeal and upheld the conviction in substance . The appeal court found , in particular , that the first - instance court had taken “ sufficient measures ” to secure PERSON appearance .

Article CARDINAL of the Code of Criminal Procedure regulates the way in which samples may be obtained for a comparative study . The investigator may obtain samples of handwriting or body fluids from a suspect or defendant if it is necessary to check whether or not he or she has left traces in a specific place or on material evidence ( paragraph CARDINAL ) . It is prohibited to obtain samples by methods that endanger the individual ’s life and limb or diminish his honour and dignity ( paragraph CARDINAL ) . If necessary , samples can be taken by a specialist ( paragraph CARDINAL ) .

The Pre - Trial Detention Act , no . CARDINAL of DATE , provides that handcuffs may be used on a suspect or accused to put a stop to unlawful resistance on his part and to prevent him from escaping or from causing harm to others or himself ( section DATE ) .

LAW , no . CARDINAL-I of DATE , in force at the material time , sets out an exhaustive list of circumstances in which special means , including rubber truncheons and handcuffs , and firearms may be used .

Handcuffs may only be applied to overcome resistance offered to a police officer , to arrest an individual caught in the act of committing a crime and attempting to escape , and to bring arrestees to police stations , to transport and protect them if their behaviour allows the conclusion that they are liable to escape , cause harm to themselves or other individuals or offer resistance to police officers ( section CARDINAL § CARDINAL ( CARDINAL , DATE , DATE ) ) .

Rubber truncheons may only be used to fend off an assault on police officers or civilians , overcoming resistance offered to a police officer , or putting an end to mass breaches of public order or group actions that interfere with the functioning of transport , communications or organisations ( section CARDINAL § CARDINAL ( CARDINAL , CARDINAL , DATE ) ) .

The Code of Criminal Procedure provides that witnesses are to be examined directly by the trial court ( Article CARDINAL ) . Statements given by the victim or a witness during the pre - trial investigation can be read out with the consent of the parties in CARDINAL cases : ( i ) if there is a substantial discrepancy between those statements and the testimony before the court ; or ( ii ) if the victim or witness has failed to appear in court ( Article CARDINAL ) .

DATE . If a witness does not obey a summons to appear without a good reason , the court may order that the police or the bailiffs should bring him to the courtroom by force ( Article CARDINAL ) .


Preliminary objection allowed (ratione materiae)

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

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

In DATE the applicant and his spouse , PERSON , organised short - wave radio broadcasts from their home .

On DATE their broadcasting was terminated by the authorities . A number of searches were conducted in their flat .

On CARDINAL DATE criminal proceedings were instituted against Mr ORG .

On DATE ORG of LOC convicted Mr PERSON of forgery of a postal stamp and of having used it to send personal correspondence free of charge , and sentenced him to CARDINAL years’ imprisonment . ORG held , in particular :

“ The court finds untenable the argument of the accused [ Mr ] ORG that the postal stamp he took from the radio - technical school ... could not be used for sending correspondence free of charge [ since it ] was invalid according to Price List no . CARDINAL “ ORG ” , adopted by ORG and to Decree of ORG on Pricing no . CARDINAL of DATE [ in force from ] CARDINAL DATE [ ORG № CARDINAL « Тарифы и услуги связи ORG , утвержденный Министерством связи ORG введенный в действие с CARDINAL октября DATE г. PERSON от CARDINAL DATE г. № CARDINAL ] .

At the time of theft of [ the ] postal stamp and the subsequent sending of letters with [ the use of ] the stamp [ Mr ] PERSON did not know about the above - mentioned documents and his intent was directed at sending his [ personal ] correspondence free of charge , [ which he did ] repeatedly as corroborated by the ... evidence . ”

On DATE ORG upheld the judgment . The applicant served the sentence and was dismissed from his job with a ORG enterprise .

On DATE , in supervisory review proceedings , the ORG of ORG reversed Mr PERSON ’s conviction for forgery of a stamp , finding that it had been wrongful as there was no indication that a crime had been committed . The ORG held :

“ The letter of the Head [ of the ORG postal service ] of DATE contained in the case file makes clear that the stamp “ To be sent free of charge ” was used by the postal enterprises for correspondence between radio associations until DATE . [ After ] the entry into force on DATE of Price List no . CARDINAL “ ORG ” , correspondence free of charge between short - wave radio broadcasters was permitted only on the basis of postal receipt cards ... [ T]herefore , the stamp was no longer valid .

Having regard to the fact that ... the stamp [ could not be used to obtain profit unlawfully ] , the criminal case should be closed . ”

In DATE Mr PERSON brought proceedings seeking compensation for non - pecuniary damage sustained as a result of his wrongful conviction .

On DATE ORG dismissed the claim on the ground that at the time of the conviction there had been no provision in domestic law for claiming such damages .

On DATE ORG upheld the judgment on appeal .

On an unspecified date the applicant applied for the proceedings to be reopened on account of newly discovered evidence .

On DATE ORG dismissed the application .

On an unspecified date the applicant applied for supervisory review of the judgment of DATE and the ruling of DATE .

On DATE and DATE respectively ORG dismissed the applications .

Following the delivery of the ruling of DATE Mr ORG brought proceedings seeking compensation for pecuniary damage sustained as a result of his wrongful conviction within the framework of criminal proceedings .

On DATE ORG granted the claim and awarded damages in the amount of MONEY ( RUB ) and costs in the amount of RUB MONEY . On an unspecified date the Chairman of ORG lodged an application for supervisory review of the judgment .

On DATE the ORG of ORG quashed the judgment of DATE and remitted the case for a fresh examination by a different bench .

On DATE ORG of Arkhangelsk reclassified the proceedings as civil proceedings . On DATE ORG quashed the ruling of DATE and remitted the case for a fresh examination .

On DATE ORG awarded the applicant damages in the amount of RUB CARDINAL,CARDINAL.CARDINAL .

On DATE ORG quashed the judgment of DATE and remitted the case for a fresh examination .

On DATE the Lomonosovskiy District Court of Arkhangelsk awarded the applicant damages in the amount of RUB CARDINAL . Damages in the amount of ORG were awarded on DATE . Costs in the amount of RUB CARDINAL were awarded on DATE .

After the writs of execution were issued , the applicant transmitted them directly to the defendant , namely ORG of ORG .

The judgments of CARDINAL and DATE were executed on DATE . The judgment of DATE was executed on CARDINAL DATE .

“ If a person has sustained non - pecuniary damage ( physical or mental suffering ) as a result of actions violating his personal non - pecuniary rights or other non - material benefits enjoyed by citizens , and also in other instances provided for by law , the court may require the perpetrator to afford monetary compensation for the said damage . ”

“ Damage caused to an individual or a legal entity as a result of an unlawful act ( failure to act ) of ORG and local self - government bodies or of their officials , including as a result of the issuance of an act of a ORG or self - government body which is contrary to the law or any other legal act , shall be subject to compensation . The damage shall be compensated at the expense , respectively , of the treasury of GPE , the treasury of the subject of GPE or the treasury of the municipal authority . ”

“ CARDINAL . Damage caused to an individual as a result of his or her unlawful conviction , unlawful criminal prosecution , unlawful application , as a measure of restraint , of remand in custody or of a written undertaking not to leave a specified place and unlawful imposition of an administrative penalty in the form of arrest or corrective labour , shall be compensated in full at the expense of the treasury of GPE and in certain cases , stipulated by law , at the expense of the treasury of the subject of GPE or of the municipal authority , regardless of the fault of the officials of agencies of inquiry or preliminary investigation , prosecutor ’s offices or courts in the procedure established by law . ... ”

“ In instances where , in accordance with the present Code or other laws , the damage caused is subject to compensation at the expense of the treasury of GPE , the treasury of the subject of GPE or the treasury of the municipal authority , the respective financial agencies shall act on behalf of the treasury ... ”

“ CARDINAL . The grounds and amount of compensation payable to an individual for non - pecuniary damage shall be determined by the rules laid down in the present Chapter and in LAW .

Compensation for non - pecuniary damage shall be awarded irrespective of any award for pecuniary damage . ”

“ Compensation for non - pecuniary damage shall be awarded irrespective of the fault of the perpetrator , when :

... the damage is caused to a person as a result of his or her unlawful conviction , unlawful criminal prosecution , unlawful application , as a measure of restraint , of remand in custody or of a written undertaking not to leave a specified place , or unlawful imposition of an administrative penalty in the form of arrest or corrective labour . ”

“ CARDINAL . This article provides that compensation shall be paid to a victim of a miscarriage of justice , on certain conditions .

First , the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction . According to the definition contained in the explanatory report of ORG on the International Validity of Criminal Judgments , a decision is final “ if , according to the traditional expression , it has acquired the force of res judicata . This is the case when it is irrevocable , that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time - limit to expire without availing themselves of them ” . It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again . Likewise , this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or , on appeal , by a higher tribunal . If , however , in CARDINAL of the States in which such a possibility is provided for , the person has been granted leave to appeal after the normal time of appealing has expired , and his conviction is then reversed on appeal , then subject to the other conditions of the article , in particular the conditions described in paragraph CARDINAL below , the article may apply .

Secondly , the article applies only where the person ’s conviction has been reversed or he has been pardoned , in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is , some serious failure in the judicial process involving grave prejudice to the convicted person . Therefore , there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground . Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice . This is a matter for the domestic law or practice of the ORG concerned . The words “ or he has been pardoned ” have been included because under some systems of law pardon , rather than legal proceedings leading to the reversal of a conviction , may in certain cases be the appropriate remedy after there has been a final decision .

Finally , there is no right to compensation under this provision if it can be shown that the non - disclosure of the unknown fact in time was wholly or partly attributable to the person convicted .

In all cases in which these preconditions are satisfied , compensation is payable “ according to the law or the practice of the ORG concerned ” . This does not mean that no compensation is payable if the law or practice makes no provision for such compensation . It means that the law or practice of the ORG should provide for the payment of compensation in all cases to which the article applies . The intention is that GPE would be obliged to compensate persons only in clear cases of miscarriage of justice , in the sense that there would be acknowledgement that the person concerned was clearly innocent . The article is not intended to give a right of compensation where all the preconditions are not satisfied , for example , where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge . ”


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

The applicant was born in DATE and lives in GPE .

He is the owner of a flat in GPE , which he had let to GPE

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

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

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

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

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

Pursuant to LAW no . CARDINAL , the tenant asked ORG to set a new date for the enforcement of the order for possession . The date was set for DATE and then for DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance .

A new attempt of the bailiff to enforce the order for possession was set for DATE .

On DATE , the applicant recovered possession of the flat .

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


The applicants are Mr PERSON and his wife PERSON , respectively NORP and NORP / NORP nationals born in DATE and DATE , and also their CARDINAL children ( born in DATE indicated in brackets ) , all of whom are NORP nationals : PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) and PERSON ( DATE ) . The first applicant lives in GPE and the other applicants live in GPE , GPE . They are represented before the ORG by PERSON PERSON NORP Bjørnstad , a lawyer practising in GPE .

The facts of the case , as described mainly in the judgments of the national courts , may be summarised as follows .

Mr PERSON , the first applicant , is of ethnic NORP origin . During DATE of primary education in GPE he was taught in GPE . In DATE his father travelled to GPE and in DATE the first applicant joined him there , at DATE . DATE also his mother , sister and CARDINAL brothers followed . They were all granted a residence permit .

Following an introductory NORP course for foreigners in DATE , the first applicant joined a NORP secondary school , where he completed his studies after DATE . He then worked for DATE as an assistant in a car shop , DATE at a concrete factory and thereafter for DATE as an assistant warehouse manager in a furniture shop , until he was arrested in DATE .

In DATE the first applicant married the second applicant , PERSON . She arrived in GPE , DATE , in DATE . She obtained NORP citizenship in DATE but kept her NORP citizenship . While her parents remained in GPE , QUANTITY of her CARDINAL brothers and sisters are living in GPE . CARDINAL of them , a brother , is married to CARDINAL of the first applicant ’s sisters in GPE . The second applicant has worked as a cleaning assistant at a school for DATE . She has no education beyond the CARDINAL years’ primary schooling in GPE and a short course in NORP following her arrival in GPE .

On DATE , ORG ( lagmannsrett ) convicted the first applicant under LAW ) , cf . ( CARDINAL ) and ( CARDINAL ) of LAW for complicity in the importation of QUANTITY of heroin from GPE and for having acquired QUANTITY of the drug in DATE . It sentenced him to CARDINAL years’ imprisonment . CARDINAL other persons were convicted in relation to these offences , CARDINAL of whom was the first applicant ’s brother , PERSON . In its judgment ORG stated that the evidence did not clarify the whole context of the case , which was only the tip of an iceberg . The first applicant and his brother were not deemed to be the principal perpetrators , but they had received the drugs in GPE and found a place to keep them , following the directions of someone else . The first applicant was considered to have had a more important role than his brother in the operation . Unlike the brother , the first applicant had not previously been convicted . The third person convicted , also a NORP national , had travelled regularly between GPE and GPE and was found to have been put under considerable pressure , in particular from GPE , but also from ORG and PERSON in order to act as a courier in the transport of the drugs in question . Because of the pressure he had been put under , he had reported the matter to the police in GPE and had sought police protection . The police had not been able to help him but had advised him not to act as a courier . Despite this he had carried out the operation and had later informed the police of the quantity he had imported and where parts of the drugs could be found .

While serving his prison sentence , the first applicant took a DATE course in engineering and mechanics and a ½-year course in building . After being released in DATE , he gained employment as a manager in the welding department of a company .

On DATE LAW , referring to the criminal conviction , decided to order the first applicant ’s expulsion . The decision was subsequently replaced by a decision dated DATE of ORG ( PERSON ) , in accordance with the relevant provisions of the Aliens Acts DATE ( GPE of DATE No . CARDINAL ) . On appeal , ORG upheld the latter decision on DATE . The Ministry observed that , considering the case as a whole and having regard to the serious nature of the offence , the expulsion would not constitute a disproportionate measure vis - à - vis the members of the first applicant 's close family . The family could , if it so wished , reunite in GPE .

Subsequently the first applicant challenged the expulsion order before ORG ( byrett ) . He submitted , inter alia , that he felt like a NORP , that at present he had no links to GPE , which was only a holiday destination for him and his family , who wished to remain in GPE . By judgment of DATE , ORG upheld the decision by ORG . On appeal , this judgment was subsequently upheld by ORG , in a judgment of CARDINAL DATE .

By judgment of DATE , ORG ( PERSON ) upheld ORG judgment and rejected the first applicant ’s appeal . In his opinion on behalf of a unanimous court , Mr Justice PERSON stated :

" [ I]n cases of serious narcotics offences , the expulsion of foreigners must fall within ORG margin of appreciation , even though the expulsion , because of the expelled person 's links to the host country , will have a serious impact on him and his family .

There is no reason to doubt that the expulsion would constitute a heavy burden for [ the first applicant ] and his family . He , his wife and the children have resided in GPE for a long period , the children since their birth . However , … the family does not have its vital interests solely linked to GPE and should not be considered alien to NORP society . This is the case of [ the first applicant ] and his wife and also to a certain degree the children , who must be presumed to be or have become familiar with the NORP language and way of life , even if they live in GPE . There is no question here of such qualified attachment to the country of residence for the expelled person and his family and such a lack of ties to the country of origin as are described in ORG judgments in the cases of GPE and NORP .

It is not possible for ORG to have any firm opinion about whether the first applicant ’s close family would elect to continue living in GPE . But even though expulsion would entail that Mr Özturk be separated from his family , it does not follow that the expulsion would transgress the limits of LAW , when he has been found guilty of such a serious offence , with such damaging consequences to society , as in the present case .

ORG does not dispute that PERSON could be exposed to prosecution in GPE , where an indictment has been issued against him with respect to the exportation from GPE of the heroin in question in DATE ... From the point of view of criminal law , it concerns a different offence than that for which he was convicted in GPE . According to information obtained by the Attorney General via ORG in GPE about NORP penal practice in this area , the exportation of narcotic substances may be penalised with QUANTITY DATE imprisonment and a fine , assessed in the light of the quantity in question . In the event of heroin and certain other substances , the punishment may be doubled ; it may also be increased by PERCENT if the trial court finds that the trafficking is a part of organised crime . Punishment will normally be imposed even though the accused has been convicted and has served a sentence for the offence in another country , but will be deducted from that served in accordance with a judgment of the NORP court ... . In practice , prisoners are released after having served PERCENT when a sentence has also been served in another country . Therefore , according to what has been stated to the ORG , it is rare that , after deduction has been made of the sentence served in the other country , there will be anything left to serve in GPE . Moreover , it has been stated that the principle ne bis in idem , namely that punishment shall not be imposed twice for the same offence , is respected by NORP trial courts .

Against this background I find it clear that the possibility of PERSON being prosecuted in GPE could not lead to the finding of a violation of LAW . "

From DATE the first applicant was committed for examination to the psychiatric ward of ORG , GPE . According to a psychiatric report dated DATE , the applicant was above all disappointed and bitter about the authorities . He had stated that he might as well die as go to a NORP prison , but that he would not commit suicide until DATE of his deportation , possibly after his arrival in GPE . He was assessed as not being psychotic but moderately depressed . There was no psychiatric ground for his being committed to a psychiatric hospital .

In DATE the first applicant 's expulsion was put into effect .

His brother , ORG , had been expelled in DATE , whereas his other brother had died . His sister continued to live in GPE and obtained NORP citizenship . Their parents returned to GPE in DATE for health reasons and , because of their long absence from GPE , forfeited their residence permit .


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Procedural aspect);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

Mr PERSON ( “ the applicant ” ) was a NORP national , born in DATE , who lived in PERSON , GPE . On DATE , he died and the application was continued by his son Mr PERSON .

On DATE , the applicant filed an action against ORG seeking the annulment of a decision denying him the benefit of PERSON no . CARDINAL/CARDINAL , which provided for damages and certain facilities for persons persecuted by the NORP authorities DATE and DATE on ethnic grounds .

By a decision of DATE , ORG found for the applicant , ordering the defendant to award him the benefits provided for in the above - mentioned PERSON . The decision became final on DATE .

Accordingly , on DATE the commission responsible for the enforcement of PERSON no . CARDINAL/CARDINAL issued a new decision confirming the applicant ’s status as a refugee and consequently as a beneficiary of that PERSON from DATE ; the decision confirmed that , inter alia , the applicant was entitled to obtain priority free medical assistance and medicines , both when hospitalised and as an outpatient .

On DATE , the applicant was diagnosed with cancer and on DATE , he underwent surgery at ORG for the removal of a tumour on the right kidney . Following medical tests , it was established that the tumour had reached stage III and that the lung was also affected . According to the applicant , although he was hospitalised in the oncology ward , the medical staff failed to administer him specific oncological treatment and he was administered only perfusions with vitamins and normal saline solution .

In these circumstances , the applicant approached ORG .

On DATE , by a letter addressed to ORG , Dr GPE , an oncologist from ORG , confirmed a partial remission of the illness in the applicant ’s case , and therefore recommended that he continue being treated with ORG and PERSON , which he had started at his own expense in DATE . This recommendation was later reiterated in a letter of DATE , in which Dr. ORG also acknowledged that the Avastin medicine , which had been administered to the patient twice a week from DATE , had been “ procured and paid for in full by Mr. PERSON during the entire period of treatment ” .

NORP However , as he could not afford to continue indefinitely bearing the costs of the treatment , which was financially burdensome , the applicant notified ORG ( Casa Judeţeană de Asigurări de Sănătate Bihor – “ the ORG ” ) and ORG ( Direcţia de Sănătate Publică Bihor ) accordingly on CARDINAL and DATE respectively and sent numerous requests to ORG ( PERSON - “ the ORG ” ) , seeking to be granted the recommended drugs free of charge .

On DATE , through a local bailiff , he filed a notification with the ORG requesting , on the basis of the relevant legislation and supporting documents , that funds be made available for the drugs recommended by his oncologist , namely PERSON and Avastin . The notification read as follows in its relevant part :

“ I ask you to take into consideration that in case of failure to grant my request , you will incur civil and criminal liability for causing my death .... The director of ORG , PERSON , has confirmed to me that you have rejected my request . This fact is irrefutable proof of your guilt . ... Considering the urgent nature of the case , I request a solution within a maximum of DATE , any delay causing irreversible trauma , and after the expiry of that term , I shall be obliged to apply for an injunction in this regard and to initiate criminal proceedings because any refusal is tantamount to murder . I enclose the documents certifying my right and your obligation according to the PERSON governing the organisation of ORG , the sole institution able to guarantee my right to life on the ORG ’s behalf . ”

The applicant addressed numerous other petitions to the relevant institutions , including the Government of GPE , but to no avail .

NORP In addition , “ in order to illustrate the distress he was suffering ” the applicant informed the ORG that since he was unable to pay for the drugs , he had applied to ORG , on the basis of a recommendation made by PERSON , to be included in the experimental trials of ORG for a new drug called PERSON . On DATE , the applicant signed a contract with the aforesaid institution and started receiving treatment with ORG , which obliged him to be present at the clinic DATE . No other information regarding the execution of that contract was submitted .

On DATE the applicant brought a liability action against the ORG and the ORG , requesting ORG to order the defendants to provide him with the medicines PERSON and NORP free of charge and with priority for the period recommended by his doctors , as well as with any other drugs prescribed by his doctors ; he also asked to be reimbursed the cost of the drugs already paid for by him from DATE to date . He requested the court to notify the relevant institutions that their failure to do so would have the civil and criminal consequences of putting his life at risk .

By a judgment of DATE , ORG allowed the applicant ’s claims . On the basis of medical documents and an opinion which attested to a remission of the illness after the use of the drugs ORG and ORG taken together , the court ordered the ORG and the ORG to provide the applicant with the CARDINAL requested drugs free of charge and with priority for the period recommended by the doctors , together with any other medicines prescribed by the doctors ; it also ordered them to reimburse the applicant the cost of the medicines prescribed by the doctors borne so far by the applicant himself .

The court dismissed the ORG ’s defence that according to ORG no . CARDINAL the applicant could not be provided with NORP free of charge , in so far as the drug Avastin was not on the list of drugs available to outpatients and therefore could not be subsidised from ORG ( “ the ORG ” ) . The court argued that any list of medicines is susceptible of being amended all the time ; otherwise , the use of any new drug proved to have positive effects on the evolution of cancer would be impossible for CARDINAL or DATE after it became available owing to administrative barriers and logistical formalities meant to ensure that its cost could be reimbursed by the ORG ; this delay would have only negative repercussions for the health of the population . Furthermore , the court held that in so far as in the applicant ’s case there was no other drug available as a replacement for Avastin , and considering that failure to use it would have repercussions for the evolution of his illness , the ORG authorities should have made it possible to have ORG rapidly included on the list of reimbursable drugs .

The ORG and the ORG contested that judgment before ORG and ORG , mainly arguing that the first - instance court was asking them to reimburse the applicant the cost of medicines that were not included on the list of reimbursable drugs . For the same reason , ORG could not be provided free to the applicant .

On DATE , ORG and ORG dismissed the appeal and upheld the first - instance court ’s judgment . The court held that the appellants’ contention that the applicant had been treated free of charge with ORG ( the equivalent of ORG ) from DATE until DATE was not supported by evidence and , in any event , that period did not cover the entire time during which the applicant should have been provided with medication free of charge .

At the same time , noting that the Avastin had already been approved by ORG in DATE , the court considered that nothing prevented the appellants to have initiated legal procedures to have ORG included on the list of reimbursable medicines starting with that moment , especially having in mind that no other equivalent of Avastin with similar therapeutical effects was included on that list .

On DATE the applicant wrote to the ORG requesting the urgent enforcement of that final judgment , arguing that the remission of the illness had ceased and the illness had even worsened on account of the delays caused by the passivity of the ORG authorities . He also invoked LAW , requesting the protection of his right to life .

By a letter of DATE the applicant informed the ORG that the judgment had not been enforced ; moreover , he submitted that the ORG had no intention of complying with the final judgment , as proved by the fact that they had contested its enforcement and also lodged an extraordinary appeal , requesting that it be set aside ( see paragraphs CARDINAL - CARDINAL below ) .

He further stated that the drug PERSON had been replaced by ORG , which he had stopped taking in DATE as it caused side effects and because the medical tests showed that the cancer had spread since he had been taking that drug . The applicant also informed the ORG that on DATE the ordinary treatment with cytostatics had been stopped with no explanation .

The applicant also submitted the results of medical tests carried out during his treatment with ORG and PERSON , dated DATE , which confirmed that the disease was in partial remission , and blood test results dated DATE , after the treatment had ceased , which allegedly attested to an aggravation of the illness .

On DATE , the ORG contested the enforcement of the judgment of DATE , which had become final on DATE , alleging that the institution could not provide the applicant with the requested medicine , since it was not entitled to buy and sell drugs and medicine . Moreover , their relationship with pharmacies was CARDINAL of cooperation , and not CARDINAL of subordination , consequently they could not oblige them to provide the requested medicines to the applicant free of charge .

Concerning the applicant ’s pecuniary claims , the ORG considered that although the evidence submitted by the applicant proved that some medication had been bought from abroad , the amounts of money paid were unspecified , and thus they were not able to make any payment in that regard . The ORG also asked that the enforcement of the disputed judgment be suspended pending the contestation proceedings .

The applicant ’s son informed the ORG that those proceedings had ended on DATE , when the contestation was dismissed in a final judgment ; the ORG submitted that the pecuniary claims had become time - barred , while the obligation to provide the applicant with the medicine in question had been left without any object following the applicant ’s death .

The ORG also informed that their extraordinary appeal against the disputed judgment ( see paragraph CARDINAL above ) had also been dismissed by ORG and ORG

No copy of any judgment allegedly given in these proceedings was submitted .

Law no . CARDINAL/CARDINAL provides for damages for persons persecuted on ethnic grounds who are refugees from the territories occupied during the Second World War . LAW ( a ) provides that persons whose cases are regulated by sections CARDINAL “ shall benefit from priority free medical care and drugs , both as outpatients and when hospitalised . ”

Government decision no . CARDINAL amends decision no . CARDINAL regarding the approval for DATE of the list of drugs from which insured persons being treated as outpatients , with or without a personal contribution , could benefit on the basis of a medical prescription . The persons concerned by the special laws , who were entitled to free medication paid for by ORG , were entitled to full reimbursement of the cost of all the medicines included on the list . ORG was not included on the list .


The applicant was born in DATE and lives in LOC .

On DATE the applicant filed an action with ORG in which she sought a court order against third parties requiring them to remove an electricity cable they had installed on her land .

DATE and DATE CARDINAL hearings were held . An expert opinion was submitted to the court during that period .

As the parties were subsequently invited to settle the case , DATE and CARDINAL DATE the proceedings were stayed at their request in order to negotiate a settlement .

On DATE the ORG delivered a judgment dismissing the applicant ’s action . The applicant appealed on CARDINAL DATE .

At the appeal hearing of CARDINAL DATE ORG decided to stay the proceedings pending the termination of other proceedings for the establishment of the defendant ’s ownership of the land . Those proceedings ended on DATE with ORG decision rejecting the applicant ’s cassation appeal as inadmissible .

On DATE the proceedings were resumed upon the applicant ’s request of DATE .

On DATE ORG quashed the first - instance judgment and remitted the case for re - examination , indicating the need to obtain an expert opinion on the exact route of the electricity line across the land .

A hearing was held on DATE ; the court ordered the preparation of the expert opinion and ordered the applicant to pay the expert ’s fee within DATE .

DATE the applicant repeatedly sought exemption from payment of the expert ’s fee . She was ordered to pay the fee , failing which the evidence provided by the expert opinion would be excluded . The applicant failed to comply with the order .

On DATE ORG decided to omit the evidence contained in the expert opinion . It examined as evidence the case files of CARDINAL other sets of related proceedings and on that basis delivered a judgment dismissing the action .

On DATE ORG dismissed the applicant ’s appeal . The court agreed with the first - instance court that the defendant had the right of co - ownership to the plot on the date on which the proceedings were instituted and that the applicant ’s claim was accordingly inadmissible .

Articles CARDINAL et seq . of LAW ( kodeks cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”

Article CARDINAL of LAW , as applicable until DATE , provided for the following exception in cases where damage resulted from the issue of a decision or order :

“ CARDINAL . If , in consequence of the issue of a decision or order , a ORG official has caused damage , the ORG shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation , and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person .

NORP The inability to establish guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude ORG liability for damage if such proceedings can not be instituted in view of a [ statutory ] exception to prosecution or disciplinary action . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . While the relevant amendments have in essence been aimed at enlarging the scope of ORG liability for tort under LAW of LAW including the addition of a new LAW and the imposition on the ORG of tortuous liability for its omission to enact legislation ( the so - called “ legislative omission ” ; “ zaniedbanie legislacyjne ” ) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless otherwise provided for by other specific provisions . ”

NORP However , under the transitional provisions of LAW , LAW as applicable before DATE shall apply to all events and legal situations that subsisted before that date .

On DATE ORG ( PERSON ) dealt with CARDINAL constitutional complaints in which the applicants challenged the constitutionality of ORG CARDINAL and CARDINAL of LAW . They alleged , in particular , that those provisions were incompatible with LAW and CARDINAL § CARDINAL of the LAW .

On DATE the Constitutional Court gave judgment ( no . ORG CARDINAL/CARDINAL ) and held that LAW was compatible with LAW in so far as it provided that ORG was liable for damage caused by the unlawful action of a ORG official carried out in the course of performing his duties . It further held that even though LAW was compatible with LAW , it was contrary to LAW since it linked the award of compensation for such damage with the personal culpability of the ORG official concerned , established in criminal or disciplinary proceedings .

On DATE , the date on which ORG judgment took effect , Article CARDINAL was repealed . ORG opinion on the consequences of the repeal read , in so far as relevant :

“ The elimination of LAW from the legal system ... means that ORG liability for the actions of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the ORG liability laid down in LAW . This , however , does not rule out the application in the present legal system of other principles of ORG liability laid down in specific statutes and not necessarily only those listed in LAW . ”

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

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with LAW .

Article CARDINAL , in so far as relevant , reads as follows :

Article CARDINAL provides , in so far as relevant :

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

Article CARDINAL refers to proceedings that have been terminated and that do not fall under the transitional provision of Article CARDINAL in the following terms :

“ A party which has not lodged a complaint about the unreasonable length of the proceedings under LAW ) may claim – under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended . ”

Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage occurred . ”

DATE Act lays down the following transitional rules in relation to the applications already pending before the Court :

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

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”

Article CARDINAL of the Code of Civil Procedure of DATE provides , in so far as relevant :

“ An appeal to a second - instance court is available for decisions issued by a first - instance court and terminating the proceedings in the case ( ... ) ” .


Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 6-1+6-3-b;No violation of Art. 6-1+6-3-c (pleas of nullity);Violation of Art. 6-1+6-3-c (appeals);No violation of Art. 6-1;No violation of Art. 6-2;Not necessary to examine Art. 14+6;Not necessary to examine Art. 14+5-1-a;Not necessary to examine Art. 13;Costs and expenses partial award - Convention proceedings

The applicant worked as a judge in the NORP courts from DATE to DATE when he retired for health reasons . He then worked as a consultant for various practising lawyers in the area of GPE , including PERSON On DATE he presented himself before ORG ( GPE ) of GPE and confessed to having killed PERSON

Following his arrest , the applicant was detained in a psychiatric hospital in GPE in view of his mental condition and the risk of his committing suicide . He was subsequently detained in the LOC special institution for mentally deranged offenders .

On DATE the public prosecutor filed an indictment charging the applicant with murder under section CARDINAL of LAW ) and with illegal possession of a firearm under LAW of LAW ( GPE ) as well as with a number of fraud offences . It was alleged that financial difficulties had led the applicant to defraud PERSON and that the motive for the murder was his fear that these offences would be discovered . The prosecution requested that the applicant be committed to an institution for mentally ill criminals under LAW of LAW .

On DATE the applicant ’s trial commenced before a Court of Assizes of ORG sitting with a jury . He was represented by an official defence counsel , the court having refused his request to defend himself in person .

At the hearing the applicant retracted his confession which he claimed was the product of a psychotic aberration , alleging that PERSON had committed suicide in his presence . The trial was discontinued and the case was referred back to the investigating judge with a view to clarifying this new allegation .

A new trial began on DATE before ORG . On DATE the jury found him guilty of murder and unlawful possession of a firearm . The charges of fraud had earlier been dropped by the prosecution for want of evidence . The jury found that the applicant was criminally responsible and expressed the opinion that " the motive remains unknown , too many possibilities " .

The court , sitting with the jury , sentenced him to DATE imprisonment , the maximum determinate sentence possible under NORP law in a case of murder , and ordered him to be committed to an institution for mentally deranged criminals .

The applicant filed a plea of nullity ( PERSON ) with ORG ( Oberster Gerichtshof ) complaining , inter alia , that he had been denied the right to defend himself and that the trial had not been fair . His wife and mother filed a further plea of nullity as well as an appeal ( GPE ) challenging the length of the sentence and the commitment of the applicant to a special institution .

The public prosecutor also appealed against the sentence requesting that a life sentence be imposed because of the planning involved in the offence and the malicious way it was carried out . A further appeal against the decision to refer his claim for damages to the civil court was lodged by PERSON , the son of PERSON

On DATE ORG informed the Attorney General ’s office ( PERSON ) of the various remedies sought in the applicant ’s case and transmitted the file which included documents concerning these remedies introduced by the applicant , his relatives , the public prosecutor and the private party . The note mentioned the judge rapporteur ’s name and was signed by him .

The Attorney General ’s position paper on the nullity pleas ( croquis ) dated DATE was received by ORG on DATE . It ran to CARDINAL pages and considered in detail the various grounds of nullity invoked by the applicant and his mother and wife . The Attorney General expressed the view that ORG should hold a public hearing and reject these pleas . He did not make any submissions regarding the various appeals against the sentence .

The applicant applied to ORG on DATE for communication of the Attorney General ’s position paper , as did his defence counsel on DATE . However , these requests were not acted upon . There is no record in ORG that the applicant ’s counsel sought to inspect the file . The position paper was eventually served on counsel only on DATE ( see paragraph CARDINAL below ) .

On DATE Mr GPE ( the victim ’s son ) submitted a number of missing diary - sheets to ORG . During the trial the applicant had repeatedly requested the production of missing parts of PERSON diary as evidence that PERSON had intended to commit suicide . A motion to search Mr PERSON ’s home in this connection had been rejected by the trial court . Subsequently he had also introduced a civil action against Mr GPE to produce those documents .

On learning in the course of the civil action that parts of the diary had been submitted to ORG , the applicant unsuccessfully requested ORG on DATE to order a search of the home of PERSON whom he suspected of withholding further relevant documents . Copies of the diary - sheets submitted to ORG were later served on the applicant through ORG .

The applicant maintains that ORG carried out additional investigations concerning certain forged cheques . This , however , is denied by the Government .

Prior to the fixing of the date of ORG hearing , the judge rapporteur , as is customary in the procedure of the court , prepared a draft judgment which was included in the official file . The draft appeared to have been revised . The rapporteur generally followed the line developed in the Attorney General ’s position paper and proposed to reject the various pleas of nullity . The draft also dealt with the question of the diary - sheets .

It appears that members of ORG dealing with the case took part in preliminary deliberations ( Vorberatungen ) prior to the hearing and that statements by other members concerning the draft decision were placed on the file at some point before the hearing .

On DATE ORG fixed the hearing date for the pleas of nullity and the appeals for DATE .

The applicant received the summons to the hearing on DATE . The notification stated that at the hearing of the pleas of nullity the applicant , being incarcerated , could only appear through his official defence counsel in accordance with sections CARDINAL para . CARDINAL and CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung , " the Code "- see paragraphs QUANTITY below ) . At the hearing of the appeals he would not be brought to the court as the conditions of section CARDINAL para . CARDINAL of the Code were not satisfied ( see paragraph CARDINAL below ) . It was also ordered that the Attorney General ’s position paper should be sent to the applicant ’s official defence counsel and to the lawyer acting on behalf of his wife and mother .

On DATE the applicant , invoking Articles CARDINAL and CARDINAL ( article CARDINAL , article DATE ) of the LAW , petitioned ORG to be allowed to attend the hearing of the pleas of nullity in person , a right accorded to defendants who are not incarcerated . He relied on the right to defend himself in person , as guaranteed in Article CARDINAL para . CARDINAL ( c ) ( article DATE ) , and observed that he had consistently objected to his being represented by official defence counsel and that under section CARDINAL para . CARDINAL of the Code detained defendants were entitled to be brought to a hearing on an appeal against sentence . At the same time the applicant pointed out , inter alia , that no decision had so far been taken on his request for a copy of the Attorney General ’s croquis .

The petition was rejected by ORG on DATE and the decision notified to the applicant ’s counsel on DATE of the hearing ( DATE ) . The court noted that the applicant had not applied to be brought to the hearing of the appeals as provided for by section CARDINAL para . CARDINAL of the Code ( see paragraph CARDINAL below ) . It had no doubts concerning the constitutionality and conformity with LAW CARDINAL para . CARDINAL of the Code ( see paragraph CARDINAL below ) . It further stated that the applicant was not entitled to receive a copy of the Attorney General ’s croquis personally and that LAW had been observed since a copy of this document had been made available to his official defence counsel .

The hearing before ORG of the pleas of nullity and appeals was held on DATE in the absence of the applicant . He was represented by his official defence counsel . It began at TIME and closed at TIME The court heard submissions from the legal representatives of the parties and a representative of the Attorney General ’s office . Its deliberations following the hearing lasted TIME . A brief summary of the judgment was read out .

The court rejected the applicant ’s and his relatives’ pleas of nullity as well as the appeal brought by PERSON It allowed both the public prosecutor ’s appeal and , in part , the appeal brought by the relatives and sentenced the applicant to life imprisonment . It also annulled the order committing the applicant to a mental institution , thereby requiring him to serve his sentence in an ordinary prison .

" The court of first instance failed , ... , in assessing the sentence , to make adequate allowance for the special gravity of the accused ’s personal guilt taken together with the objective weight of the offence involved in ( intentionally ) killing a person in the particular circumstances of this case . After all , this treacherous crime - amounting practically to ‘ liquidation’ of the unsuspecting victim , who trusted the accused - and committed with the reprehensible intention of forestalling revelation of his own financial misdeeds , reflects such a negative attitude ( i.e. such baseness ) on the ORG The fact that the accused committed the crime when in an abnormal mental state and under its influence is not so important , and thus can not counterbalance the factors which tell against him in determining the sentence . The only response to the accused ’s criminal behaviour which is commensurate with his guilt is accordingly a sentence of life imprisonment . "

In the course of its judgment the court found that the rejection by the trial court of the evidentiary motion in connection with the diary - sheets did not impair the rights of the defence ( see paragraph CARDINAL above ) . It went on to find that the missing diary - sheets which had been submitted to the court would not have " been likely to be of any significance to the jury ’s verdict " .

The original ( GPE ) of ORG judgment shows that the rejection of the pleas of nullity was almost literally based on the judge rapporteur ’s draft decision prepared before ORG hearing ( see paragraph CARDINAL above ) .

It appears that the applicant is still detained in the LOC special institution for mentally deranged offenders .

First - instance judgments given by ORG of ORG can be challenged by a plea of nullity to ORG on specific grounds enumerated in LAW ( section CARDINAL para . CARDINAL and , as regards assize court judgments , section CARDINAL para . CARDINAL ) . The grounds in question include procedural defects and misapplication of the substantive criminal law in the finding of guilt and the determination of the sentence . In principle they do not relate to the evaluation of the evidence by the first - instance court and new facts and evidence can not be taken into account . ORG is bound by the facts and evidence established in the first - instance judgment unless it finds that no reasons have been given or that the reasons are insufficient , contradictory , or clearly incompatible with the contents of the file .

However the latter principles concerning the reasons for the court ’s findings do not apply to nullity proceedings in respect of jury verdicts in the assize courts . ORG task in such cases is mainly to control the acts of the bench and the presiding judge of the assize court examining , in particular , whether the trial has been conducted in a manner which complies with fundamental procedural principles , whether the right questions have been put and the right directions given to the jury . ORG may only verify whether the jury has provided unclear , incomplete or contradictory answers to the questions put to it . As in other cases it also supervises the correct application of the criminal law , but in so doing is bound by the jury ’s findings as to the facts .

In certain cases ORG may reject a plea of nullity without a public hearing ( section CARDINAL ( c ) of the Code ) . In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on appeals against sentence .

As regards the hearing on a plea of nullity section CARDINAL of the PERSON provides :

" CARDINAL . When the date of the public hearing is being fixed , the accused ... shall be summoned ...

If the accused is under arrest , the notice of the hearing given to him shall mention that he may only appear through counsel .

Section CARDINAL of the Code applies , in principle , the above rules to nullity pleas arising out of trials by jury .

However , if the hearing is a combined one on a plea of nullity and an appeal against sentence , an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea .

While legal defects in the sentencing procedure may also form the subject of a plea of nullity , the sentence as such can only be challenged by way of an appeal against sentence . It may concern both points of law ( in particular whether mitigating or aggravating circumstances have been correctly taken into account ) and factors relating to the assessment of the sentence . Where the substance of an appeal is examined a public hearing must normally be held .

As regards the personal appearance of the accused at appeal hearings , section CARDINAL para . CARDINAL , second sentence , of the Code provided at the relevant time :

" The provisions of sections CARDINAL and CARDINAL are applicable , mutatis mutandis , to the fixing of the date and the holding of the public hearing subject to the proviso that an accused who is not detained shall always be summoned and that an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter - statement or otherwise if his personal presence appears necessary in the interest of justice . "

ORG internal procedure is governed by ORG ( Bundesgesetz über den PERSON ) and Rules of Procedure ( PERSON ) adopted pursuant to section CARDINAL of this Act .

According to LAW , ORG normally sits in chambers composed of CARDINAL members , CARDINAL of them acting as the presiding judge , CARDINAL as judge rapporteur ( sections CARDINAL and CARDINAL , paras . CARDINAL and CARDINAL ) . LAW , last sentence , provides that the name of the judge rapporteur shall not be disclosed to the parties .

The relevant parts of section CARDINAL of ORG Rules of Procedure read as follows :

" ( CARDINAL ) ... the file has to be submitted to the judge rapporteur competent according to the assignment of cases .

( CARDINAL ) If the file is subsequently to be transmitted to the Attorney General ’s office , either for comments or motions or at their request for inspection before a decision , any documents in it from which conclusions might be drawn as to the content of ORG forthcoming decision or as to its deliberations ( draft decision of the judge rapporteur , comments by members of the ORG or other similar documents ) must be withheld unless there is a judicial order to the contrary .

( CARDINAL ) When the Attorney General ’s office has returned the file the judge rapporteur shall transmit it to the presiding judge for further action together with his draft decision .

( CARDINAL ) When a public hearing is fixed only the summons form shall be sent to the Attorney General ’s office for information . The file shall be transmitted only if there is a judicial order to this effect .

( CARDINAL ) If the Attorney General has submitted observations , copies of them must be served on the other parties to the nullity proceedings , not later than the fixing of the date of the public hearing , unless there is a judicial order to the contrary . "

Section CARDINAL para . CARDINAL of the Rules of Procedure provides that a record shall be prepared concerning every oral deliberation and vote . This record may be kept confidential in cases provided by law .

After the ORG ’s vote on the decision either the judge rapporteur or that member of the ORG whose draft was adopted must draw up the reasoning of ORG decision ( section CARDINAL para . CARDINAL ) . The presiding judge or his substitute , but not the judge rapporteur , must approve the text before it is sent out ( section CARDINAL para . CARDINAL) .


The applicant was born in DATE and lives in GPE .

In DATE he decided to move from GPE to GPE . He negotiated a real estate deal with a GPE - based agent .

On DATE the applicant withdrew from his bank accounts MONEY ( “ USD ” ) in cash and asked his acquaintance , B. , to deliver the money to GPE .

B. arrived in the Sheremetyevo-CARDINAL airport DATE . He failed to declare the money at the customs checkpoint and was charged with smuggling .

On DATE , ORG of GPE found B. guilty of smuggling under LAW and sentenced him to DATE suspended imprisonment . With regard to the money , the court said in the operative part of the judgment :

“ USD MONEY , deposited with ORG , are to be forfeited to the ORG as an object of smuggling . ”

In his appeal against the judgment , PERSON 's lawyer submitted that ORG had failed to indicate any legal ground for the conﬁscation order . He argued that the money had been included in the case - ﬁle as evidence and that no relevant law provided for its conﬁscation . Moreover , lawfully obtained assets were to be returned to their owners . PERSON 's lawyer also claimed that LAW did not provide for such a sanction as conﬁscation .

On DATE , ORG refused the appeal . With regard to the money , the court said :

“ USD MONEY , which was the object of the smuggling , was rightfully forfeited to the ORG . ”

On DATE a Deputy President of ORG lodged an application for supervisory review against the judgments . He claimed that the smuggled money could only be conﬁscated if proven to have been acquired criminally .

On DATE the ORG of ORG refused the application on the ground that a Ruling of the Plenary Supreme Court of the GPE issued in DATE permitted the conﬁscation of smuggled goods which had been attached to case - ﬁles as exhibits .

On DATE the Deputy President of ORG lodged another application for supervisory review claiming , among other things , that DATE was inconsistent with later superseding legislation . However , on an unspeciﬁed date the Deputy President of ORG withdrew his application .

Article CARDINAL of LAW of DATE , as in force from DATE to DATE , provided :

“ The carrying across the [ State ] border of considerable amounts of goods or other items ... in evasion of customs controls ... or without declaring [ them ] or with untrue declarations ... shall be penalised by imprisonment of up to ﬁve DATE ... and by forfeiture of the goods and other items carried across the border ... ”

Article CARDINAL of LAW of DATE ( “ CrC ” ) provides :

“ Smuggling , i.e. transportation across the customs border of GPE of considerable amounts of goods and other items ... without due customs control , or in evasion of such control , or with fraudulent use of documents or identiﬁcation means , or in violation of rules of declaration , shall be penalised by imprisonment of up to ﬁve DATE . ”

Article CARDINAL of LAW , as in force at the material time , provided :

“ Failure to declare or an inadequate declaration of goods ... carried across the customs border ... which disclose no appearance of smuggling ... shall be punished by a ﬁne of MONEY of the cost of the goods which are the object of the offence , with or without their forfeiture ... ”

The Code of Criminal Procedure of DATE ( “ CCrP ” ) , in force at the relevant time , provided as follows :

“ Exhibits include items which served as instruments of crime , or which have retained traces of the crime , or against which the crime was directed . [ Exhibits also include ] criminally acquired money and other valuables earned by crime , and any other items which can help detect the crime , establish factual circumstances , reveal the guilty or refute the charges or lessen the responsibility . ”

“ The destiny of exhibits used in criminal proceedings must be determined in a judgment ... , and :

instruments of the crime which belong to the accused shall be conﬁscated and passed to a competent agency or destroyed ;

NORP items prohibited for circulation shall be passed to a competent agency or destroyed ;

items of no value or use shall be destroyed or returned to interested persons or agencies if they so wish ;

NORP criminally acquired money and other assets shall be forfeited ; other items shall be returned to their lawful owners , or , if the owners are not established , shall become the ORG 's property . In the event of a dispute concerning the ownership of such items , the dispute shall be resolved in civil proceedings ;

documents which serve as exhibits shall be kept in the case ﬁle as long as the case ﬁle is archived or shall be passed to interested agencies ” .

The Ruling of the Plenary Supreme Court of the GPE no . CARDINAL of DATE ( “ the Ruling of the Supreme Court ” , “ the Ruling ” ) provides :

“ ... With a view to ensure a uniform and correct application of laws in proceedings concerning smuggling , ORG decides [ that ] : ...

NORP In accordance with the legislation in force , smuggled items must be forfeited as exhibits ... ”

Article CARDINAL - CARDINAL of LAW of DATE ( “ CivC ” ) provides :

“ In cases established by law , a person may be deprived of his property without compensation pursuant to a court judgment as a sanction for a crime or other offence ( conﬁscation ) ... ”

On DATE the ORG of ORG exercised supervisory review of the criminal case against a certain Mr PERSON , who had been convicted of smuggling a considerable amount of foreign currency into GPE . After conviction , the trial court returned the money DATE which had been included in the ﬁle as evidence – to its owner , PERSON . ORG overturned the judgment having found that the money should have been considered as an instrument of the crime and , as such , it should have been conﬁscated pursuant to LAW

On DATE , ORG held that LAW was constitutional , even though it permitted to conﬁscate instruments of crime , for example smuggled money , belonging to other than the accused . In particular , ORG said :

“ The rule set out in ... LAW ... helps GPE implement its international - law obligations in criminal proceedings , does not overrule criminal laws which permit conﬁscation as a punishment , and , hence , allows the procedural law to regulate conﬁscation with regard to [ international instruments on money laundering and crime control ] .

It is a [ criminal ] court ... who may determine the procedural status of [ smuggled items ] under LAW .... ”


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk

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

In DATE ORG of ORG instituted proceedings against the applicant ’s father and the applicant ’s uncle in ORG People ’s Court . The ORG sought confiscation of the house owned by them because there had been serious breaches of building regulations . The case was considered on several occasions . On DATE ORG ruled that the house should be confiscated . On DATE ORG upheld that judgment . Following that decision the house was confiscated .

The applicant ’s father died in DATE . In DATE ORG sold a part of the house ( “ the disputed property ” ) to PERSON

On DATE the ORG of ORG , upon an objection ( протест ) by its President , quashed the judgment of DATE and remitted the case to the same court for fresh consideration .

On DATE ORG dismissed a claim lodged by ORG of ORG .

On DATE the applicant and PERSON instituted proceedings against PERSON and ORG of ORG in ORG , seeking to have the above - mentioned contract of sale declared null and void and claiming ownership of the disputed property .

On DATE Mr K. , husband of PERSON , lodged a counterclaim , seeking recognition of ownership of the disputed property .

On DATE PERSON and PERSON . instituted proceedings against PERSON and PERSON , claiming ownership of the disputed property .

In the period from DATE to CARDINAL DATE the first - instance court scheduled CARDINAL hearings .

On DATE the court granted a request by the applicant ’s lawyer to suspend the proceedings on the ground that the applicant was undergoing treatment . After that date the next hearing was scheduled by the court only for CARDINAL DATE .

On DATE Ms. PERSON died . On DATE the court decided to suspend the proceedings until PERSON successors joined the proceedings .

On DATE the court decided to join PERSON as a defendant in the case . On DATE the court joined the consideration of the above proceedings .

Between DATE and DATE the court scheduled CARDINAL hearing .

DATE and DATE the court scheduled no hearings .

On DATE the court found against the applicant . In particular , the court found unsubstantiated the applicant ’s allegation that he could claim inheritance rights over the disputed property .

On DATE ORG upheld that judgment .

DATE and DATE the first - instance court and the court of appeal scheduled CARDINAL hearings . CARDINAL hearings were adjourned on account of the CARDINAL of the parties’ failure to appear or at their request .

On DATE ORG dismissed an appeal in cassation by the applicant .