No violation of Art. 6-1;No violation of Art. 8

Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE .

She is the mother of a daughter PERSON , born in wedlock on CARDINAL DATE .

On DATE the applicant filed a petition to be divorced from the child ’s father . In DATE she requested to be granted sole parental authority .

On DATE , during a hearing before the Pankow - Weissensee District Court ( Amtsgericht ) in proceedings relating to divorce and parental authority , both parents declared their consent to the child ’s temporary placement in a foster family . This measure was originally planned for a short period of time during which a court - appointed expert was to prepare his opinion on custody rights and aimed at preventing the child ’s welfare being jeopardised by serious tensions arising from her GPE divorce proceedings . According to the applicant ’s submissions , which are contested by the Government , she gave her consent only under the threat that the child would otherwise be permanently placed in a children ’s home .

On DATE S. was placed in the care of a foster family . According to the applicant ’s submissions , which are contested by the Government , the applicant was not informed about the foster GPE place of residence for DATE and was thus prevented from exercising access rights .

On DATE ORG ordered the preparation of an expert opinion on the questions of parental authority and access rights .

On DATE the expert PERSON submitted her expert opinion . She considered that the child PERSON suffered from a serious emotional disorder which had been caused by family tensions and that PERSON should be offered psychotherapy in order to overcome her traumata . The decision on custody and access rights should be suspended until the child had stabilised .

NORP In DATE a scheduled visiting contact with the applicant failed because of the child ’s objections . On DATE ORG suggested that visiting contacts with both parents should be suspended during the child ’s examination or should only take place with the expert ’s collaboration . By letter of DATE the applicant ’s counsel supported the proposal that both GPE access should be suspended in order to prevent the father from negatively influencing the child .

On DATE the applicant consented to the child ’s remaining with the foster family for the duration of the necessary psychotherapy , which she estimated at DATE .

On DATE , during the hearing on the GPE divorce , both GPE counsels unanimously declared that they presently did not lodge any motions regarding parental authority . The divorce was decreed on DATE .

On DATE staff members of ORG , of ORG and the expert PERSON discussed the child ’s therapy requirements . In the course of the discussion the ORG , whose recommendation was necessary for instigating therapeutic measures , convinced the expert that PERSON was not in need of psychotherapy .

On DATE the applicant filed a motion with the Pankow - Weissensee ORG with the aim to be granted regular access rights to her daughter . She declared that she presently did not wish to have the child ’s placement with the foster family terminated .

On DATE the ORG submitted its report . They considered that psychotherapy was currently not necessary , as the child ’s psychological situation had considerably improved and stabilised . It was proposed to instigate contacts between the child and her parents under psychotherapeutic or pedagogical guidance .

On DATE ORG , the applicant and PERSON ’s father agreed on CARDINAL initial visiting contacts under the supervision of a family assistant .

By letter dated DATE the applicant urged ORG to promote the proceedings .

On DATE ORG held a hearing in the presence of the applicant , the child ’s father and their counsels . The parties agreed that a supplementary expert opinion should be commissioned as to how visiting contacts could be instigated and the child ’s return prepared . ORG judge emphasised that visiting contacts should take place at least once per month in order to avoid further alienation .

On DATE ORG ordered the parents to advance the costs for the expert opinion . On DATE the applicant advanced her share of the costs . On DATE ORG , following the applicant ’s enquiry , informed her that the father had failed to advance his share of the costs . On DATE the applicant advanced the father ’s share of the costs .

On DATE ORG ordered the psychological expert PERSON to prepare an expert opinion on how parental authority , the child ’s residence and access to the child should be regulated .

On DATE the applicant urgently requested ORG to be granted parental authority and the right to decide on the child ’s residence with the aim to return the child to the applicant ’s household .

On DATE ORG informed the applicant that the outcome of the expert examination should be awaited .

On DATE the expert informed the court that the termination of the expert opinion had been delayed by an attempt to return the child to the applicant and announced that he would submit his opinion by DATE at the latest .

On DATE ORG received H. ’s expert opinion . Having on several occasions heard and examined both parents , the child S. , the foster family and ORG , the expert found that PERSON felt at ease within the foster family , where she was well taken care of and encouraged . The expert further noted that both parents were in principle able to raise the child . However , the child ’s relationship with her mother was seriously disrupted . An attempt gradually to return the child to the applicant had failed . Having initially agreed to visits , the child had been deeply disturbed by an TIME stay and expressed the wish not to visit her mother again . The expert concluded that the child ’s fears could be handled once she could rest assured to permanently remain in the foster family . The expert suggested that the child should remain in the foster family , that ORG should be granted the right to decide about the child ’s place of residence and that visiting rights with the parents should be limited to CARDINAL visit per month in order to allow the child to stabilise . The expert further stressed that PERSON was in need of psychotherapy .

On DATE the applicant requested to be granted parental authority and that the child be returned to her .

On DATE the child ’s father opposed the applicant ’s request and proposed to leave the child with the foster family .

On DATE ORG held a hearing in the presence of the applicant , the child ’s father , a representative of ORG , the child PERSON and the foster parents . All parties to the proceedings agreed that the child should be offered therapy without further delay . During the time of therapy , which was estimated at DATE , PERSON should stay with the foster family and the parents should be granted access at least once per month . The parties further agreed that no decisions should presently be taken on the pending motions on parental authority and the determination of the child ’s place of residence .

On DATE , DATE and DATE the applicant informed ORG that visiting contacts had failed due to the child ’s resistance and the foster GPE lack of cooperation . On DATE the applicant requested the court to give a decision on her motions .

On DATE the court informed the applicant that it did not serve the child ’s best interests to interfere with the current process of consolidation and asked the applicant if she requested the court to give a decision .

On DATE the applicant confirmed that she requested that a decision be given on her motions .

On DATE ORG judge heard the child S. who declared that she felt at ease with the foster family and wished to remain there . S. further stated that the DATE contacts with her mother were not good since she did not feel at ease with her , while the DATE contacts with her father were good .

On DATE the applicant requested ORG to appoint a curator ad litem to represent the child . On DATE ORG appointed a curator ad litem and requested ORG to report on the development of psychotherapy .

On DATE the child ’s curator informed the court that she would need DATE to prepare her submissions .

On DATE the applicant requested that a court decision be given immediately . On DATE the ORG judge informed the applicant that he awaited the curator ’s submissions .

On DATE the applicant informed ORG that psychotherapy had been terminated and complained about the conduct of the proceedings .

On DATE the child ’s curator submitted her statement to the court . She reported that S. wished to live with the foster family and was seriously opposed to contacts with her parents . The curator recommended that this wish be respected .

On DATE the court requested ORG to report on the child ’s present life circumstances and on the discontinuation of therapy .

On DATE ORG submitted a report by the psychologist PERSON dated DATE . According to ORG , it had not been able to submit the report earlier as the applicant had not given her authorisation for release of medical information .

In her comments , PERSON reported that her attempts to build up contacts with PERSON had failed due to the child ’s resistance to any such efforts . She had discontinued psychotherapy on DATE as a continuation of her efforts would be harmful for the child ’s development . The expert further noted that S. suffered from a trauma caused by the life circumstances in her family of origin and that she tried to distance herself from her parents . The expert further expressed the opinion that the proceedings had been burdened by a number of shortcomings . Under the present circumstances , the parents had to cope with the fact that it was in the child ’s best interest to remain with the foster family . However , it was essential for both the parents and the child that visiting contact were not discontinued completely .

On DATE ORG recommended that PERSON should stay with the foster family until reaching majority and that no contacts should be instigated against the child ’s wishes .

On DATE ORG proposed that the parents should abstain from making use of access rights for DATE and that contact should be carefully re - established afterwards .

On DATE the applicant rejected this proposal and submitted that recent visiting contacts between herself and her daughter had developed in a more positive way .

On DATE the Pankow - Weissensee ORG , following a hearing attended by the parents , the child ’s curator ad litem , CARDINAL representatives of ORG and the foster parents , withdrew parental authority from the parents and transferred it to ORG . Furthermore , visiting contacts between the child and her parents were suspended for DATE .

ORG considered that the applicant was unable to accept the child ’s wishes and her present life circumstances within the foster family . She was , in particular , unable to accept that a parent - child relationship had developed between the child and her foster parents . Accordingly , she was unable to try to alleviate the conflict constantly arising from this situation . Taking into account the fact that the child was deeply rooted within the foster family , it would be potentially harmful for the child ’s well - being to remove her from there , as requested by the applicant .

ORG further considered that PERSON father had shown great understanding with regard to the child ’s needs and that he had given his consent to the child ’s remaining with the foster family . However , transferring sole parental authority to the father would distort the situation of conflict the child was exposed to and could jeopardise her psychological well - being . It followed that parental authority had to be withdrawn from both parents and transferred to ORG .

Finally , ORG considered that , taking into account the child ’s serious objections , the applicant ’s tendency to massively interfere with the child ’s life in the foster family and the need to stabilise and strengthen the child , access rights would very probably jeopardise the child ’s well - being and had to be suspended for DATE .

This decision was served on the applicant ’s counsel on DATE . On DATE the applicant lodged an appeal with ORG ( GPE ) . She emphasised that the child ’s placement in the foster family had been devised as a temporary measure and considered the measures taken by ORG to be disproportionate .

On DATE the child ’s curator submitted her comments . She considered that the child ’s persistent wish not to see her parents should be respected .

On DATE the child ’s father submitted his comments . He considered that the child should remain with the foster family , but requested to be granted DATE access rights .

On DATE ORG held a hearing in the presence of S. , her curator ad litem , her parents , the foster parents and a ORG representative .

Following the hearing , ORG quashed ORG decision , transferred sole parental authority to the child ’s father and granted the applicant visiting rights once per month for TIME each .

Referring to the opinion submitted by the court - appointed expert PERSON and to the comments submitted by the therapist PERSON , ORG considered that the relationship between the child and the applicant had to be regarded as problematic . The applicant ’s wish to remove the child from the foster family would cause the child serious psychological damage . All parties heard in the proceedings had confirmed that the child found a sense of security and stability in the foster family , where she had been living for DATE . The child had consistently expressed the wish to live with the foster family as a full family member .

ORG conceded that the alienation between the applicant and her daughter had to a substantial degree been caused by the period of time which had elapsed since her placement in the foster family , which was originally planned as a short - time measure . The proceedings could and should have been conducted in a considerably more stringent way . However , the decision had to be taken in accordance with the child ’s welfare , which was not defined by earlier shortcomings of the proceedings . The child ’s welfare required to assure her that she could remain with the foster family without having to fear that her stable life situation would change for reasons which she could not understand .

ORG noted , however , that the prerequisites of section DATE of LAW had not been met , as the child ’s father was able and willing to accept the child ’s wishes and to co - operate with both PERSON and the foster family . Accordingly , sole parental authority was to be awarded to him .

ORG finally found that there were no reasons to suspend the applicant ’s access rights . While the child S. , when heard by ORG , had confirmed that she did not have any interest in meeting her mother , she had also declared that she was ready to visit her once per month if the court proceedings and permanent hearings would come to an end . ORG considered DATE visits of DATE each necessary and sufficient to give the applicant and her child the possibility to get closer again . It also stated that the child was free to visit her mother at any other time if she should wish to do so .

On DATE the applicant lodged a complaint against ORG decision , in which she gave a full account of the proceedings before the civil courts and alleged that the impugned decision was disproportionate and violated her right to the enjoyment of her family life under LAW .

On DATE ORG requested the applicant ’s counsel to submit a copy of ORG decision dated DATE . On DATE the applicant ’s counsel submitted the requested document .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint for adjudication pursuant to the relevant provisions of that court ’s Rules of Procedure without giving any further reasons .

On DATE ORG ( PERSON ) ordered the applicant to contribute a specific amount to the costs incurred by the accommodation of her daughter in the foster family from DATE until DATE .

On DATE ORG ( Verwaltungsgericht ) rejected the applicant ’s complaint . On DATE FAC ( Oberverwaltungsgericht ) refused to grant the applicant leave to appeal .

If parents holding joint custody separate permanently , either parent may apply to be awarded full parental authority pursuant to section DATE of LAW . The family courts will follow this request if the other parent gives his or her consent or if it is to be expected that withdrawal of parental authority from CARDINAL parent and transferral to the other best serves the child ’s interests .

Pursuant to LAW of the LAW parental authority comprehends the right to order DATE who unlawfully deprives the parents or CARDINAL parent of their child – to have their child returned .

According to section DATE , a child is entitled to have access to its parents ; each parent is obliged to have contact with , and entitled to have access to , the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s well - being would be endangered ( section DATE ) .

Section DATE provides that in cases of a danger to the child ’s welfare the court shall order the necessary measures . Pursuant to section QUANTITY measures which entail a separation of the child from the parents are only permitted if the danger can not be averted by other means , including assistance by public authorities . The right of personal custody may only be withdrawn in its entirety if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger .

Section CARDINAL § CARDINAL of the Act on Non - Contentious Proceedings ( Gesetz über die Angelegenheiten der freiwilligen PERSON ) determines that in proceedings concerning a minor child , ORG may appoint a curator ad litem ( PERSON ) for that child to assist him or her if this should be necessary for the protection of his or her interests .

DATE . Pursuant to section CARDINAL § CARDINAL , the appointment of a curator ad litem is usually necessary where the child ’s interests conflict substantially with those of his legal representative , where the subject - matter of the proceedings concerns measures to be taken to avert a risk to the child ’s well - being involving a separation of the child from his or her family or the withdrawal of full parental authority or where the subject matter concerns the child ’s removal from the foster carer , spouse , partner or person entitled to access .


No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities)

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

The applicants were born in DATE and DATE respectively and live in the village of Dyshne - Vedeno , GPE .

The applicants are husband and wife . The first applicant is a housewife and the second applicant is retired . They have CARDINAL children . In DATE their son PERSON , born in DATE , was a student of the CARDINALth grade at school .

On DATE at TIME PERSON , with CARDINAL of his friends , were walking along FAC towards the village market . At the same time a convoy of NORP military vehicles was going down the street . The convoy included armoured personnel carriers ( APCs ) , with soldiers sitting on the hulls . CARDINAL of the servicemen raised his automatic rifle , took aim and shot at the applicants’ son . According to the applicants , it must have been a rifle fitted with a silencer because the other QUANTITY boys did not hear the shot and did not understand where it had been aimed , until PERSON , who took several more steps , fell on the ground in front of a house at FAC , where the head of the village administration lived .

PERSON was bleeding from the mouth and the chest area . He was immediately put into a car to be taken to the district hospital , but died in the car on the way . He had been wounded in the heart .

At the relevant time there were a lot of passers - by in the street , who called the local police , the military commander ’s office and the prosecutors office . Together they forced the convoy to stop and to go to the military commander ’s office . There the servicemen of the Dyshne - Vedeno temporary district police station ( ORG ) identified a warrant officer , PERSON . , who had allegedly shot at the boy . In the meantime he had climbed from the ORG into the hull of a ZIL-CARDINAL military truck . According to the applicants , the servicemen of the ORG searched the truck , and in a box containing canned meat found an AK CARDINAL.CARDINAL automatic rifle , with an ammunition magazine and a silencer . The rifle belonged to warrant officer PERSON .

On DATE ORG opened criminal investigation no . DATE under LAW paragraph CARDINAL of LAW into the murder of PERSON . The applicants were informed accordingly by a letter of DATE , which also stated that “ the person who committed the crime has been identified and detained ” and that the case file would be transferred for further investigation to the military prosecutor of military unit no . CARDINAL based in GPE ( the main NORP military base in GPE ) .

On DATE an inspection of the crime scene and of the military vehicles was carried out and PERSON , an eye - witness , was questioned . PERSON submitted that on DATE he , together with PERSON , S. , A. , Kh . and PERSON had been walking down FAC and that a military convoy had been moving towards them . He had seen a serviceman in an ORG who lifted a weapon fitted with a silencer , aimed it at FAC from a distance of QUANTITY and took CARDINAL or QUANTITY shots with it .

On DATE S. was questioned . He made a statement similar to that of E.

On DATE and DATE serviceman S - v . was questioned . He submitted that a magazine case with CARDINAL cartridges of CARDINAL PERSON calibre and a silencer had been found in PERSON . ’s backpack .

On DATE the second applicant was granted victim status in the criminal proceedings .

On DATE the automatic rifle was seized from PERSON . It was inspected together with other pieces of evidence .

On DATE PERSON . reported to ORG and admitted his guilt . He was questioned as a suspect on DATE . He was placed under the supervision of the commander of military unit no . DATE as a measure of restraint .

Later PERSON . retracted the statement he had made on DATE and apparently submitted that the bullets had ricocheted .

On DATE a forensic expert examination of the cartridges was completed .

On DATE , due to the lack of evidence required to bring charges , the investigating authorities suspended the investigation and lifted the measure of restraint in respect of PERSON .

On DATE ORG of GPE replied to the applicants’ request for information that the criminal investigation into their son ’s murder had been transferred to the military prosecutor ’s office , which was responsible for investigating crimes committed by servicemen . It was also stated that all further questions should be referred to the military prosecutor ’s office in GPE . On transfer , the case was given the number CARDINAL/CARDINAL/CARDINAL - CARDINAL .

On DATE , upon completion of his secondment in GPE , PERSON . arrived in the town of PERSON in the GPE region according to the order of the commander of military unit no . DATE .

On DATE the applicants were informed by a letter from the military prosecutor of military unit no . CARDINAL that on DATE the criminal investigation in respect of warrant officers PERSON . and S - v . of military unit no . DATE had been discontinued under LAW paragraph CARDINAL of LAW [ absence of corpus delicti ] . The case file was forwarded for further investigation to ORG of GPE .

On DATE the supervising military prosecutor quashed the decision to suspend the investigation .

On DATE the FAC district civil registration office issued a death certificate for PERSON , aged DATE , who had died on DATE from a gunshot wound to the heart .

On DATE and DATE serviceman PERSON was questioned . He submitted that upon his arrival at the crime scene his comrade had told him that he had seen a serviceman climbing from the ORG to the ORG truck in front of it . When PERSON had approached the truck , he had seen a serviceman hiding in the corner .

On DATE the second applicant and A. were questioned . A. made a statement similar to that of E.

On DATE another inspection of the crime scene was carried out and PERSON was again questioned . PERSON was questioned on the same date and submitted that a spent yellow cartridge case had been found at the crime scene . It had been handed over to police officers . On the same date an investigative experiment was conducted .

On DATE PERSON . was questioned . He submitted that after the convoy had stopped he had seen a serviceman hiding inside a car . The serviceman had a red face , blue eyes and was of medium height .

T - v . , apparently of the LOC military commander ’s office , who was questioned on DATE , stated that on DATE at TIME a patrol had come running to headquarters and reported that a military convoy had been stopped in FAC because a serviceman had shot a schoolboy . When T - v . arrived at the crime scene , he had been told that a serviceman had climbed from an ORG to a ORG vehicle where other servicemen had tried to hide him .

Serviceman I. , questioned on DATE , submitted that on DATE his fellow servicemen had told him that a serviceman from a convoy moving through ORG had killed a boy . When he had arrived at the crime scene , eye - witnesses indicated an ORG from which , according to them , shots had been fired . A serviceman had been acting agitatedly around the ORG . He had appeared to be nervous and had been holding an ORG CARDINAL.CARDINAL automatic rifle with no silencer . He had then gone to sit in the ZIL-CARDINAL truck . In the course of the search of the ORG truck officers of the LOC military commander ’s office had found a magazine of cartridges and a silencer .

Ts . , questioned on DATE and DATE , submitted that he had been present at the examination of PERSON body and had seen bullet wounds . A spent CARDINAL cartridge case had been found by T. and immediately handed over to the police officer who had conducted the inspection .

On DATE an investigative experiment concerning the audibility of shots fired from an ORG automatic rifle with a silencer was conducted .

On DATE , CARDINAL and DATE expert PERSON . was questioned .

On DATE a forensic examination of PERSON clothes was completed .

On DATE servicemen P. , PERSON and P - o were questioned . They submitted that after CARDINAL ORG automatic rifles with CARDINAL PBS-CARDINAL silencers , including the CARDINAL seized from ORG . , had been returned to the military unit , they had been used according to their purpose . They had not been repaired and no parts of them had been replaced either .

On DATE Sh - n , a serviceman that had formed a part of the military convoy , submitted that when the convoy had been moving he had seen a boy lying on the ground in the yard of a house . When the convoy had stopped , he had seen a serviceman sitting on the right side of the ZIL-CARDINAL truck removing a silencer from his automatic rifle . When the serviceman had left the car , there had been no silencer on his automatic rifle .

On DATE a forensic expert examination was completed .

On DATE a ballistic expert examination was completed .

On DATE serviceman O. was questioned . He submitted that in the convoy it was only special forces servicemen who had had PBS-CARDINAL silencers .

On DATE a forensic examination of PERSON body was completed .

On DATE PERSON . was charged with the offence and a decision to place him in custody was taken . However , since he was no longer in GPE , he was placed on the wanted list . The investigation was suspended on the same date on account of PERSON . ’s whereabouts being unknown .

On DATE a forensic expert ’s examination was completed .

On DATE the military prosecutor of military unit no . CARDINAL informed the applicants that the investigation had identified the suspect PERSON . , warrant officer of military unit no . DATE . However , the military unit had been relocated out of GPE without the military prosecutor ’s knowledge . Warrant officer PERSON . had absconded and on DATE had been placed on the wanted list .

By a letter dated DATE ( received by the applicant in DATE ) the military prosecutor of military unit no . DATE informed the applicants that the serviceman responsible for the murder of their son had been identified . He had been discharged from military service and had absconded . He had been searched for by the officers of the LOC police of LOC , where his residence was located . The letter further stated that on DATE the investigation had been suspended during the search . On DATE the investigation was resumed , and a request for a search to be carried out was forwarded to the authorities in GPE , where the suspect ’s parents resided .

On DATE the Chief Military Prosecutor ’s Office informed the applicants that the investigation into their son ’s murder had been reopened . The person suspected of the crime had absconded and had been placed on the federal wanted list .

On DATE ORG of ORG informed the applicants that on DATE the decision of CARDINAL DATE to suspend the proceedings had been quashed and the case file had been forwarded for further investigation to the military prosecutor of military unit no . DATE . The investigation was pending , and the applicants would be informed of the results .

After a number of stops and starts , the investigation was again resumed on DATE . PERSON . ’s whereabouts were established and it was also found that he had changed his name to PERSON was subsequently arrested , and on DATE the case was committed for trial to ORG .

DATE . On DATE the ORG dismissed PERSON . ’s ( PERSON ’s ) contradictory submissions that , firstly , it had not been him who had shot at GPE NORP and , secondly , that he had accidentally pulled the trigger when the vehicle he had been in had gone over a bump in the road . The court found that PERSON . ( PERSON ) had aimed at PERSON chest , found him guilty of murder and sentenced him to CARDINAL years’ imprisonment . PERSON . ( PERSON ) appealed .

On DATE the North Caucasia District Military Court upheld the judgment on appeal .

In DATE the second applicant brought a claim against ORG for compensation for non - pecuniary damage caused by the murder of his son by a serviceman .

On DATE ORG of GPE dismissed the claim . The court held , in particular :

“ As follows from the evidence in the case , the fact that [ the applicant ] was caused physical and moral suffering arose as a result of the fulfilment of duties by a serviceman of military unit no . DATE [ PERSON . ] ...

It is precisely [ this military unit ] which may be liable if [ its serviceman ] caused non - pecuniary damage when fulfilling [ his ] duties . ”

On DATE ORG upheld the judgment on appeal .

Subsequently , within the framework of the criminal proceedings against ORG . ( PERSON ) , the second applicant brought a civil claim for compensation for non - pecuniary damage in the amount of MONEY ( ORG ) before the criminal case against PERSON . was sent for trial .

In the hearing of DATE counsel for the second applicant withdrew the civil claim . He explained that the second applicant intended to file a claim for damages against the military unit where PERSON . ( PERSON ) had served within the framework of civil proceedings . The court accepted the withdrawal of the claim and specifically stated that it was open to the second applicant to file it within the framework of civil proceedings .

According to the ORG , the second applicant did not file any civil claims before FAC .

Despite specific requests made by ORG on QUANTITY occasions , the Government did not submit a copy of the entire investigation file concerning the murder of PERSON . However , after the application had been declared admissible they submitted an update on the progress of the investigation , copies of judicial decisions and TIME of the hearings , which contained a detailed description of the investigative actions and ORG statements . The ORG stated that the documents submitted contained detailed information concerning the conduct of the investigation and the trial and , should the ORG require any additional documents , it should specifically request them .

Until DATE criminal - law matters were governed by LAW RSFSR . On DATE the old Code was replaced by LAW ( CCP ) .

Article CARDINAL of the ORG provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the lawfulness and grounds of the impugned decisions .

Article CARDINAL of the ORG enshrines the rule that information from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation .

LAW of GPE , Part II , in force since DATE , provides for a right to claim non - pecuniary damage . LAW provides grounds for compensation of non - pecuniary damage .


CASE OF INFORMATIONSVEREIN LENTIA AND OTHERS v. AUSTRIA

Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The first applicant , an association of co - proprietors and residents of a housing development in GPE , comprising CARDINAL apartments and CARDINAL businesses , proposed to improve the communication between its members by setting up an internal cable television network . The programmes were to be confined to questions of mutual interest concerning ORG rights .

On DATE the first applicant applied for an operating licence under LAW , see paragraph CARDINAL below ) . As ORG and ORG ( Post- PERSON ) had not replied within the DATE time - limit laid down in LAW ) , the association applied to ORG ( Generaldirektion für die Post- PERSON ) , attached to ORG ) .

ORG rejected the application on DATE . In its view , Article CARDINAL para . CARDINAL of LAW guaranteeing the independence of broadcasting ( GPE über die GPE der ORG , " LAW " , see paragraph CARDINAL below ) had vested in the federal legislature exclusive authority to regulate this activity ; it had exercised that authority only once , by enacting the PERSON on ORG ( Bundesgesetz über die PERSON ORG , see paragraph CARDINAL below ) . It followed that no other person could apply for such licence as any application would lack a legal basis . Furthermore there had been no violation of LAW ) of the Convention since the legislature - in its capacity as a maker of constitutional laws ( PERSON ) - had merely availed itself of its power to set up a system of licences in accordance with the third sentence of paragraph CARDINAL ( article CARDINAL ) .

Thereupon the first applicant complained to ORG of a breach of LAW ) ; the court gave judgment on DATE .

It took the view that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph CARDINAL in fine and paragraph CARDINAL of Article CARDINAL ( article CARDINAL , article LAW ) ( PERSON ) . Accordingly , an administrative decision could infringe that provision only if it proved to have no legal basis , or its legal basis was unconstitutional or again had been applied in an arbitrary manner ( in denkunmöglicher Weise an[ge]wendet ) . In addition , LAW had instituted a system which made all activity of this type subject to the grant of a licence ( ORG ) by the federal legislature . This system was intended to ensure objectivity and diversity of opinions ( ORG ) , and would be ineffective if it were possible for everybody to obtain the requisite authorisation . As matters stood , the right to broadcast was restricted to ORG ( ORG , ORG ) , as no implementing legislation had been enacted in addition to the law governing that organisation .

Contrary to its assertions , the first applicant had in fact intended to broadcast within the meaning of the constitutional law , because its programmes were to be directed at a general audience of variable composition . The broadcasting law therefore provided a legal basis for the decision in issue .

Consequently , ORG rejected the complaint and remitted it to ORG .

On DATE ORG in substance adopted the grounds relied on by ORG and in its turn dismissed the first applicant ’s claim .

From DATE to DATE the second applicant elaborated a project for the setting up , with other persons , of a private radio station in GPE . He subsequently gave up the idea after a study had shown him that according to the applicable law as interpreted by ORG he would not be able to obtain the necessary licence . As a result he never applied for CARDINAL .

The third applicant , an NORP association and a member of the ORG européenne des radios libres ( ORG ) , plans to establish a radio station in southern LOC in order to broadcast , in NORP and LANGUAGE , non - commercial radio programmes , whose makers already operate an authorised mobile radio station in GPE .

In DATE ORG applied for a licence . Its application was refused by ORG and ORG on DATE and by ORG in GPE on DATE . On DATE , on the basis of its own case - law ( see paragraph CARDINAL above ) , ORG dismissed an appeal from that decision .

The fourth applicant is a shareholder of an NORP company operating a commercial radio which broadcasts to GPE and he wishes to carry out the same activity in that country . However , in view of the legislation in force , he decided not to make any application to the appropriate authorities .

The fifth applicant is a private limited company incorporated under NORP law . On DATE it asked ORG and ORG to allocate it a frequency so that it could operate a local radio station which it hoped to launch in GPE . On DATE its application was rejected , a decision confirmed on CARDINAL DATE by ORG and on DATE by ORG , which based its decision on its judgment of DATE ( see paragraph CARDINAL above ) .

According to LAW , " the right to set up and operate telecommunications installations ( Fernmeldeanlagen ) is vested exclusively in the federal authorities ( GPE ) " ( LAW para . CARDINAL ) . The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations ( Article CARDINAL para . CARDINAL ) . No licence is required in certain circumstances , including the setting up of an installation within the confines of a private property ( DATE ) .

The Ministerial Ordinance of DATE concerning private telecommunications installations lays down inter alia the conditions for setting up and operating private telecommunications installations subject to federal supervision . According to the case - law , it can not however constitute the legal basis for the grant of licences .

According to LAW DATE guaranteeing the independence of broadcasting ,

Broadcasting shall be governed by more detailed rules to be set out in a federal law . Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting , the diversity of opinions , balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph CARDINAL .

Broadcasting within the meaning of paragraph CARDINAL shall be a public service . "

The Law of DATE on ORG established ORG with the status of an autonomous public - law corporation .

It is under a duty to provide comprehensive news coverage of major political , economic , cultural and sporting events ; to this end , it has to broadcast , in compliance with the requirements of objectivity and diversity of views , in particular current affairs , news reports , commentaries and critical opinions ( Article CARDINAL para . CARDINAL ( CARDINAL ) ) , and to do so via CARDINAL television channels and CARDINAL radio stations , CARDINAL of which must be a regional station ( Article CARDINAL ) . Broadcasting time must be allocated to the political parties represented in the national parliament and to representative associations ( Article CARDINAL para . CARDINAL ) .

A supervisory board ( ORG ) rules on all disputes concerning the application of the above - mentioned law which fall outside the jurisdiction of an administrative authority or court ( Articles CARDINAL and DATE ) . It is composed of CARDINAL independent members , including CARDINAL judges , appointed for terms of DATE by the President of the Republic on the proposal of ORG .

On DATE ORG decided that LAW of DATE ( see paragraph CARDINAL above ) did not cover " passive " broadcasting via cable , in other words the broadcasting in their entirety by cable of programmes picked up by an aerial . Consequently , the mere fact that such programmes originated from a foreign station and were directed principally or exclusively at an NORP audience could not constitute grounds for refusing the licence necessary for this type of operation .

On DATE a PERSON on regional radio stations is to enter into force ( NORP , PERSON ( ORG ) no . CARDINAL/CARDINAL ) . It will allow the authorities under certain conditions to grant private individuals or private corporations licences to set up and operate regional radio stations .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and is currently in custody .

On DATE a group of persons , allegedly including the applicant , entered the house of a certain S. and burgled it .

On DATE the police instituted an investigation into the burglary . In the course of the investigation , charges were brought against several persons and proceedings were pending against them in parallel .

On DATE the applicant stole a car belonging to a certain PERSON and was involved in a collision . He was caught by the police on DATE and criminal proceedings were instituted against him .

DATE the applicant was charged with car theft .

On DATE the applicant ’s detention on remand on account of the car theft charge against him was authorised by ORG ( “ the ORG ” , which was apparently joined to ORG after an administrative reform ) .

By DATE the pre - trial investigation was completed and the applicant ’s car theft case was transferred to ORG for examination on the merits .

On DATE the court , having found out that criminal proceedings on other charges were also pending against the applicant ( i.e. burglary charges , of which the applicant claims to have been unaware ) , remitted the car theft case to the investigator to be joined to the burglary case and investigated further . The court also confirmed the applicant ’s further detention on remand .

On DATE , after ORG had decided to join the applicant ’s car theft and burglary cases , the applicant attempted to commit suicide in protest . There were further attempts to commit suicide on DATE and DATE , in response to the court ’s allegedly unlawful acts . On several occasions the applicant went on hunger strike .

On an unspecified date the investigator , having taken over the remitted case , joined the CARDINAL cases against the applicant .

On DATE the applicant was formally charged with burglary .

By DATE the pre - trial investigation was completed and the applicant ’s case in respect of the car theft and burglary charges was transferred to ORG for examination on the merits .

On DATE the victim and witnesses failed to appear before the court . The court rescheduled the hearing and ordered that their attendance at the next court hearing be secured by the authorities ( prosecutor and police ) . The next CARDINAL court hearings were also rescheduled for the same reason , extending the proceedings by DATE . On DATE and CARDINAL DATE and DATE the court complained to the authorities about their failure to enforce its instructions to secure attendance at its hearings . It noted , inter alia , that delays in the examination of a case lengthened the detention of the accused in the GPE , which was overcrowded and had poor sanitary conditions .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . It also ordered that his detention be continued pending the appeal proceedings . According to the applicant , the judgment was given in his and his lawyer ’s absence and he was informed of it only on DATE .

On DATE the ORG partly allowed the applicant ’s appeal , quashing the judgment relating to the burglary charge and remitting it for retrial , and reducing his sentence to DATE for car theft . When the applicant complained that he had been deprived of an opportunity to complete his last appeal , the court found that he had waived his right as he had failed to take several opportunities provided by the lower court . With respect to the applicant ’s complaint that the judgment had not been pronounced in his presence , the court noted that initially the judgment had been pronounced in the applicant ’s absence as the applicant had refused to be present in the courtroom ; however , on DATE the applicant had been taken to the courtroom once again and the judgment had ultimately been pronounced in his presence .

On DATE ORG of GPE dismissed a cassation appeal by the applicant . As the applicant had appealed against the sentence , ORG did not examine the remitted part of the case but limited its examination to the challenged part alone . The applicant received that decision on DATE .

NORP The applicant further attempted to have his case reviewed under the extraordinary procedure but was unsuccessful .

On an unspecified date ORG resumed examination of the burglary charge against the applicant .

From DATE to DATE all CARDINAL court hearings were rescheduled owing to the applicant ’s lawyer ’s and other defence lawyers’ failure to appear before the court . Later , for the same reasons , the hearings were rescheduled CARDINAL times , delaying the proceedings by DATE more . In addition , on numerous occasions the witnesses and other participants also failed to appear and the court ordered that their attendance at the following hearing be secured by the police .

On DATE a forensic handwriting examination was ordered , in order to check the authenticity of the applicant ’s signatures on several procedural documents . The report was completed by DATE .

On DATE , referring to the above report , the court found that the applicant ’s signature had been forged on a number of crucial procedural documents drawn up at DATE , and accordingly remitted the case for additional investigation . On the same date the court issued a special ruling ( окрема постанова ) informing the local prosecutor and the head of the police that it was the investigator who had forged the applicant ’s signature and that criminal proceedings should therefore be brought against him .

On DATE the investigator discontinued the proceedings against the applicant for lack of proof of his guilt . According to the applicant , he found out about that decision only after receipt of the ORG ’s observations .

According to the ORG , the applicant was held in the GPE from DATE to CARDINAL DATE , from DATE to DATE , from DATE , from DATE to DATE and from DATE . From DATE to DATE the applicant was held in ORG . CARDINAL . DATE the applicant was held in FAC CARDINAL . From DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in FAC . DATE .

According to the applicant , however , in the periods from CARDINAL to CARDINAL DATE and from DATE he was detained in a temporary detention centre ( ORG тимчасового тримання ) , and from DATE to DATE he was detained in correctional colonies CARDINAL . CARDINAL , where he underwent medical treatment .

On DATE the applicant was released on parole .

On DATE , being suspected of having committed a new crime , the applicant was arrested again .

According to the applicant , in the temporary detention centre the detainees were fed only once a day and the lights were not switched off at TIME . The poor conditions of detention prevented him from keeping basic standards of personal hygiene and preparing his defence .

As to the GPE , in the cell where the applicant was held on DATE space was limited to QUANTITY per person ( later , in reply to the Government ’s observations , the applicant explained that the cell , in which CARDINAL detainees were held , measured QUANTITY , QUANTITY of which was taken up by a toilet and washstand ) , the lighting remained on at TIME , there was a concrete floor , which the applicant considered unacceptable , and he had no facilities to prepare his defence . The GPE authorities did not provide him with basic necessities , normal medical assistance , press or audiovisual media , gym facilities or the right to have private correspondence . The applicant accepted that after his suicide attempts ( see paragraph CARDINAL above ) his life had been saved by the GPE ’s medical personnel .

According to the applicant , prison vans were overcrowded , the detainees’ room in ORG lacked normal standards of detention and detainees were not fed .

As a result of the above conditions of detention , the applicant ’s state of health has deteriorated . In particular , he suffers from chronic prostatitis , thrombophlebitis and a venereal disease .

According to the ORG , cells in the GPE are equipped with basic furniture , toilets separated from the living space , sufficient artificial light , and windows and ventilation that let in sufficient fresh air and daylight . The detainees are fed in compliance with the requirements of the domestic legislation , and allowed daily TIME walks and TIME uninterrupted sleep a day . Each of them has access to a bath once a week for TIME . The GPE has its own library open to the detainees .

The GPE cells in which the applicant was held measured MONEY per person . Upon arrival , he was provided with a bunk and basic necessities .

According to the outline of the applicant ’s medical record submitted by the ORG , upon arrival at the GPE the applicant also underwent a medical examination . It was established as a result that in DATE he had been diagnosed with chronic prostatitis and in DATE ( but before his arrival ) he had had a craniocerebral trauma . Later , in DATE , the applicant was diagnosed with syphilis . In DATE he underwent medical treatment for his prostatitis in a correctional colony . On DATE the applicant was examined by a dermatovenereologist and diagnosed with active chronic mycotic urethritis ( хронічний трихомонадний уретрит в стадії загострення ) . On DATE , after proper treatment , no pathology was revealed . The applicant was prescribed further treatment for his prostatitis on DATE and DATE .

On DATE the applicant brought a civil action against the GPE , seeking compensation for the inappropriate conditions of his detention , among other things .

On DATE the Prymorskyy District Court of Odessa dismissed the applicant ’s claim on account of his failure to rectify its procedural shortcomings within the time - limit allotted by the court .

NORP The applicant appealed against that decision but on DATE the NORP ORG of Appeal dismissed his appeal as having been lodged without a request for renewal of a missed statutory time - limit .

According to the applicant , on DATE he submitted a written complaint concerning the conditions of his detention to a prosecutor who visited the GPE .

According to the applicant , on DATE , in the course of the criminal proceedings against him , he brought an action before GPE ( no copy is available and no details are specified ) claiming a violation of his rights as a result of a miscarriage of justice . On DATE he repeated his application , but received no reply .

The applicant initially submitted only a few documents to the ORG in support of his complaints . He contended that the authorities had not provided him with copies of any other documents .

On DATE ( followed by a reminder on DATE ) ORG requested the applicant to provide copies of all the court decisions taken in his case(s ) after DATE , as well as proof of the alleged ill - treatment .

In his reply of CARDINAL DATE the applicant stated that he was unable to provide the requested copies . He explained , in particular , that on DATE , following the ORG ’s request , he had sent a letter to ORG requesting copies of the court decisions taken in his case within the specified period . On DATE the applicant was informed that ORG had sent his case file to the prosecutor . The applicant then complained to the prosecutor , but he never received the requested documents . In his letters to the domestic authorities the applicant did not refer to the ORG ’s request ; nor is it apparent from the available documents that the ORG ’s request was appended to his letters .

The applicant further explained that he had also requested the GPE authorities to provide him with copies of his medical file ( no copy of his request is available ) . The authorities gave him access to the file but refused to make copies for him , stating that they could be given only to legal entities .

Under LAW of the Pre - trial LAW , during the investigation and trial suspects may be held in a GPE ( temporary detention centre ) or in a prison that serves as a GPE . Exceptionally suspects may be kept in an ORG ( cells for short - term detention in police stations ) . If a convicted person is under investigation in respect of another offence , he or she may be held in the disciplinary detention unit of the correctional colony . LAW provides that suspects who have been convicted of a different offence must be separated from other detainees .

The Correctional Labour Code provided that a convicted person should normally be held in the same custodial institution ( LAW ) . Under LAW , a person who was sentenced to imprisonment in a colony could be temporarily held in a GPE or prison in connection with different criminal proceedings , as a witness ( for DATE with the authorisation of the prosecutor ) or as a suspect , in accordance with the general rules governing detained suspects under LAW .

The Code on Enforcement of Criminal Sanctions replaced LAW .

Article CARDINAL of this PERSON provides that convicted persons must be sent to serve their sentence within DATE after the conviction becomes final .

Article CARDINAL of the Code provides that the convicted person can remain in the GPE or be temporarily transferred from a prison or a colony back to the GPE for investigative activities or to put him / her on trial ( for a different offence ) or for the purposes of proceedings against a third party .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , PERSON , is a NORP national who was born in DATE and lives in LOC , a town in LOC . ORG ( “ the Government ” ) were represented by PERSON PERSON , former Representative of GPE at ORG .

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

A retired serviceman , the applicant sued his command for the provision of a flat and discharge allowance .

By a judgment of DATE , amended on appeal on DATE , ORG of FAC ordered the command to provide the applicant out of turn with a flat located at his last place of service and meeting statutory norms , and to pay him the discharge allowance due . This judgment became binding on DATE , but has not been fully enforced .

On an unspecified date the command paid to the applicant the discharge allowance .

On DATE the command offered the applicant a flat of CARDINAL m² in GPE , but the applicant refused this offer because he considered the flat too small .

On DATE ORG clarified the judgment 's mode of enforcement . According to the court , the command had to give to the applicant 's family a flat to be allocated to the command by federal authorities , or to pay to the applicant 's family a housing subsidy allocated to the command by federal or local authorities .

In DATE and DATE the command offered to the applicant CARDINAL other flats , but he refused them too . In DATE the command offered the applicant a flat under the ORG “ ORG ” , but the applicant refused this offer .

On bailiffs ' requests , in CARDINAL courts several times adjourned the enforcement because the applicant had refused the command 's offers , and because no other flats were available .

Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


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

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .

A.

The applicant arrived in GPE in DATE where he remained in a camp for refugees until DATE . Then he was transferred with the aid of the ORG to GPE , where he was granted asylum .

On DATE the applicant was arrested in GPE for a series of larceny allegedly committed in that country in DATE . He was detained on remand until DATE , when he was released on bail by the indictment chamber of ORG ( simvulio PERSON ) of GPE , which was competent to hear the case at first instance because of the nature of the offences . However , the court ordered that the applicant should remain in GPE until his trial .

On DATE the indictment chamber of ORG considered that there could be no serious suspicion that the applicant had committed the offences he had been charged with because at the relevant time he was in GPE , as it transpired from a series of official documents produced by him . It authorised the applicant to leave GPE .

On DATE the applicant was acquitted by ORG ( Efetio ) of GPE .

B. Relevant domestic law

The Code of Criminal Procedure provides as follows :


Violation of Art. 6-1;Violation of Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE ( “ the former GPE ” ) .

On DATE the applicant was accused of having committed the offence of the unauthorised production and possession of narcotics and poisonous substances DATE , contrary to LAW as in force at the material time .

According to the ORG , a witness using the fictitious name of “ PERSON ” was examined for the first time on DATE , having been contacted by the police in connection with their investigation into the applicant ’s criminal activities . The witness stated , inter alia , that “ she want[ed ] to testify because she kn[ew ] what heroin c[ould ] do and that she want[ed ] ORG to be free of drug dealers ” and that “ for great fear for her own life she w[ould ] testify provided that anonymity w[ould ] be granted to her , because after the police had detained most of former dealers , the PERSON threaten[ed ] that if anybody w[ould ] ‘ rat’ on the dealers and they w[ould ] find it , they w[ould ] ‘ annihilate’ him or her ” .

The applicant stated that the record of the interview in his criminal file was not a statement signed by the witness , but a so - called official record ( úřední záznam ) drawn up and signed by the police officer afterwards . He further maintained that it was not clear from that record whether “ PERSON ” had been examined or whether the report had been drawn up before or after the applicant was charged . He contended that such a record could not be used as evidence for the prosecution .

NORP In the course of the pre - trial proceedings the applicant denied his guilt , stressing that he was a heroin addict and that the drugs found in his possession were for his own use only . “ PERSON ” and another witness , using the fictitious name of “ PERSON ” , were questioned by ORG ( okresní úřad vyšetřování ) on DATE . The applicant ’s lawyer attended the interview , the applicant not being present . Witness “ PERSON ” said :

“ ... as for PERSON , I am not familiar with his surname , I got in touch with him some time in DATE ... my boyfriend , who is also a drug addict , sent me to see him .

I wish to correct the facts concerning the individual named PERSON . As I have already said , I am not familiar with his surname . I know , or more precisely , I remember the forename : my boyfriend sent me to ORG in GPE and told me to find a certain PERSON in order to get QUANTITY of heroin . ...

As for PERSON , I was still buying narcotics ... from him ... DATE . I do not remember seeing him since then . As for his description , I can say that he is CARDINAL cm tall , slim with short dark blond hair ... and I recall that he wore ORG and a dark jacket . ”

NORP In reply to a question put by the applicant ’s lawyer , the witness said that she was giving evidence as an anonymous witness because she owed money for drugs . In reply to a question put by the investigating officer as to whether the persons to whom she owed money had ever threatened or beaten her , she replied that a NORP to whom she had owed money for drugs had beaten her up and that there had been similar incidents .

She was shown a photograph album with CARDINAL photographs and was asked to examine them . She stated :

“ ... I do not know the name of the person in photograph no . CARDINAL ... I was buying narcotics from him ... in LOC in Trnovany some time after DATE ... ; he then moved to LOC near the railway station . It was some time in DATE when I last saw him . ”

NORP In reply to a question put by the applicant ’s lawyer , “ PERSON ” said that “ PERSON ” from whom she had bought heroin DATE was not among the individuals in the photographs . In reply to the investigating officer ’s question as to whether she knew somebody called “ Jura ” or FAC and whether he was in any of the photographs , she answered :

“ I am not familiar with the name “ Jura ” , but rather ORG . I have the impression that I was buying heroin from somebody like him ; I ’m sure I was buying heroin from him in ORG in Trnovany ; it was some time in DATE , DATE or DATE , I do not know precisely . ... I think that must be him in photograph no . CARDINAL . ”

According to the applicant , the chronology of the examination of “ PERSON ” was as follows : the witness was asked about PERSON and therefore she started to speak about a person called PERSON first . She described him and , after that , she was shown the photograph album and then incidentally mentioned that she knew most of the persons shown in the photographs including the applicant . The official record of the interview stated that “ PERSON ” was questioned about PERSON , alias “ PERSON or “ Džuro ” , during the examination of DATE , and that she identified “ NORP ” as being the individual in photograph number CARDINAL .

Interviewed on DATE , witness “ PERSON ” stated :

“ I know quite a lot of PERSON and I can definitely speak about the person concerned - I know him by his nickname PERSON .

I know that he was here DATE , then he left and reappeared some time at DATE . He was selling heroin for DATE in the ORG gambling club in Trnovany ; ... he moved to ORG near the railway station for a while . I could buy CARDINAL g of heroin altogether from him ... I last saw FAC DATE , so some time in DATE or at DATE ... As for his description , I can say that he was DATE , CARDINAL cm tall , slim , with short dark blond hair . ... ”

When presented with a photograph album , “ PERSON ” stated :

“ I clearly recognise the person in photograph number CARDINAL : it is FAC from whom I was buying heroin in the ORG gambling club in ORG , in FAC and near the railway station from DATE to DATE or DATE ”

The applicant ’s lawyer asked the witness why he was so afraid and why he wished to remain anonymous . The witness stated that PERSON were a temperamental people , that they had threatened him when he had wanted to buy drugs from someone else and that he had been concerned about the safety of his family . To the lawyer ’s further question whether the person in photograph number CARDINAL had ever threatened him , the witness replied in the negative . In reply to the lawyer ’s last question , “ PERSON ” said more precisely that he had bought heroin from the man in photograph number CARDINAL after the New Year , most recently around DATE .

The police case file was sent to ORG ( okresní státní zastupitelství ) , which on DATE filed an indictment against the applicant with ORG ( okresní soud ) . The prosecutor charged the applicant with having distributed heroin in ORG during the period DATE and DATE , with having sold CARDINAL packets each containing QUANTITY of heroin to “ PERSON ” and with having sold the same drug to “ PERSON ” . The prosecutor suggested that the CARDINAL anonymous witnesses as well as witnesses PERSON and PERSON give evidence at the trial and that the police records on the photograph - based recognition of the applicant be read out .

On DATE the applicant ’s trial began in ORG . The applicant entered a plea of not guilty .

The record of the hearing shows that , under LAW ( “ the ORG ” ) , the presiding judge heard the anonymous witness “ PERSON ” outside the courtroom and out of sight of the applicant and his counsel , who were able to put questions to the witness through the presiding judge . The witness stated that the applicant was the person who had sold drugs to him and that he had bought heroin from the applicant some time in DATE . In his testimony , the witness also stated that he was cured and was no longer addicted to any drug . In reply to several questions put by the applicant ’s lawyer , the witness stated that the applicant had sold drugs DATE . He had then disappeared and had started selling them again in DATE . He also said that he had been buying drugs from the applicant during a DATE period in DATE and that he had seen him selling heroin to other people during DATE . He described the applicant as a man of CARDINAL in height , slim , with straight dark hair . He added that , unlike at present , he had not been good at recalling the colour of hair at that time . In reaction to the anonymous witness ’s testimony , the applicant claimed that it was not true .

The court then read out the witness statements of PERSON and PERSON , an expert report and other written evidence . It adjourned the proceedings until DATE with a view to summoning “ PERSON ” .

Another hearing was held on DATE . It was recorded that the investigating authorities had reported by telephone that , at the time of the hearing , “ PERSON ” could not be found at her home . The proceedings were therefore adjourned until DATE . The police were instructed to conduct a search to find out whether the witness was staying at her home address .

According to the record of the hearing of DATE , ORG read out the police reports of CARDINAL and DATE on the unknown whereabouts of “ PERSON ” . In accordance with LAW ( a ) of the ORG , her witness statement from the pre - trial police records was read out . In reaction to the witness ’s testimony , the applicant claimed that he had not been in GPE at the relevant time .

In a judgment given on DATE , the court found the applicant guilty of the unauthorised production and possession of narcotics and poisonous substances , and sentenced him to CARDINAL years’ imprisonment , as well as expulsion from GPE for an unlimited period of time . It held that , from DATE to DATE , the applicant had been selling heroin in “ small envelopes ” . He had sold CARDINAL “ envelopes ” of heroin to “ PERSON ” , and on a number of occasions during this time he had also sold heroin to “ PERSON ” .

The applicant maintained that he had not been in GPE at the relevant time and that the drugs found in his possession had been for his personal use .

The ORG based its finding of guilt exclusively on the testimonies of the CARDINAL anonymous witnesses . It stated that the confidentiality of their identities prior to their interview in order to safeguard their security was justified under LAW of the ORG , having regard to the seriousness of the offence at issue and the witnesses’ fear of testifying in open court .

ORG stated that anonymous witness “ PERSON ” had stated that he had bought CARDINAL “ envelopes ” of heroin from the applicant and that he had recognised the latter from photographs , both in the pre - trial proceedings and at trial , as the person who had been selling heroin not only to him , but also to other persons .

As regards “ PERSON ” , the court referred to the police report stating that the witness could not be found at her place of residence and that the search for her had been unsuccessful . It mentioned that she had testified in the pre - trial proceedings in the presence of the applicant ’s lawyer and had said that she had been buying heroin from the applicant , whom she had recognised from photographs .

The court also had regard to a photocopy of the applicant ’s passport , finding that he had arrived in GPE on DATE from GPE . According to the expert psychiatric report , the applicant was , inter alia , a drug addict who should have been aware of the dangerousness of his criminal activity for society and could have controlled his conduct . An expert examination of the substance found on the applicant indicated that it was heroin .

The court , having assessed all the relevant evidence , held that the testimonies of the anonymous witnesses were trustworthy and consistent and that they incriminated the applicant . It also stated that the witness “ Jan Novotný ” had recognised the applicant in both the trial and pre - trial proceedings . It concluded that the evidence adduced by the applicant - the copy of his passport and a plane ticket showing that he was not in GPE for most of the period during which he was alleged to have committed the offence - was not sufficient to rebut the strength of the case against him . It seems that the court did not rely on the witness statements of PERSON and S.

On DATE the applicant appealed , claiming that he had not committed any criminal offence and that the heroin found in his possession had been for his personal use only . He also challenged the ORG reliance on the testimonies of the anonymous witnesses whose statements had been misused to his detriment . The applicant further complained of the failure of both the investigating authorities and ORG to resolve material contradictions in the statements of the anonymous witnesses .

On DATE the PERSON Regional Court ( krajský soud ) dismissed the applicant ’s appeal , finding his objection to the use of anonymous testimony unsubstantiated . It noted that both anonymous witnesses had been interviewed in the pre - trial proceedings and that the statement of “ PERSON ” had been read out because she could not be located at her home address . The court further noted that witnesses PERSON and PERSON had refused to testify at trial .

The court found that , owing to the nature of the criminal activity , the witnesses had been recruited from among drug users and drug addicts , who were “ much more vulnerable ” . It concluded that the concerns which the CARDINAL anonymous witnesses had expressed to the investigating authorities had resulted in the correct procedural steps being taken , in accordance with LAW ORG , including the decision to interview them under fictitious names .

As regards the inconsistency in the ORG statements , ORG stated that witness “ PERSON ” had recognised the applicant from the photographs as the person from whom she had bought heroin , but had not known his name . She had described a drug dealer whom she had known by the name “ LOC and who had not corresponded to the description of the applicant . The court held that the testimony given by witness “ PERSON ” had not been contradictory and that he had repeatedly described from whom , where and when he had bought heroin . He had usually seen the applicant in a smoke - filled gambling hall under subdued lighting and had not been concentrating on remembering details of the applicant ’s appearance , but rather on obtaining drugs . The court held that his inability to describe the correct hair colour “ did not play an important role ” . It fully endorsed ORG findings of fact and law .

On DATE the applicant lodged a constitutional appeal ( ústavní stížnost ) , claiming a violation of his rights as guaranteed by LAW ( d ) of the LAW . He alleged that there had been no legal basis for the use of the anonymous witness testimony and that the authorities had put the defence at a substantial disadvantage , contrary to the principle of equality of arms . He complained that his conviction had been based solely on the testimonies of anonymous witnesses .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal as unsubstantiated . It held that statements by anonymous witnesses could only be used in evidence if the principle of subsidiarity was observed , namely if there were no other means of ensuring the safety of a witness and any limitation on the rights of the defence had been minimised . The court recognised that there was a conflict between , on the one hand , the constitutional right to defend oneself and , on the other hand , the need to protect the health and life of witnesses . It held that this conflict could be resolved only on the basis of the principle of proportionality .

ORG did not accept the applicant ’s allegation that the anonymous witness procedure had been misused to his detriment . It held that , to the extent that defence rights might found that , according to official police records , the CARDINAL anonymous witnesses had been interviewed in the presence of the applicant ’s lawyer , who had had the opportunity to question them . The court concluded that , having regard to the photograph - based recognition of the applicant before the pre - trial authorities , as well as before the trial court , no doubt could be cast on the legality and fairness of the proceedings . It held that any disadvantages under which the defence might have operated did not give rise to a question of unconstitutionality , as it was the content of the ORG evidence rather than their identity that was relevant , notwithstanding the fact that the courts had not provided sufficient reasons for having adopted the procedure laid down in ORG CARDINAL and CARDINAL of the ORG .

On DATE the Minister of ORG lodged a complaint in the applicant ’s favour , alleging a breach of law ( stížnost pro porušení zákona ) . He based his complaint on the following grounds :

“ ... [ the courts ] did not sufficiently offer the necessary guarantees to ensure a fair trial as [ the applicant ’s ] lawyer could not see both anonymous witnesses during their interviews in order to learn their identity ,

the prosecuting authorities did not examine the question whether it was necessary to conceal the identity of the witnesses ,

before the decision to conceal the identity of the witnesses was taken , the defence was never given an opportunity to raise objections concerning their credibility or the justification of the alleged threats against them which might justify their anonymity ,

the courts did not specify ... that they knew the true identity of both witnesses and found that the accused represented a serious threat to the life and liberty of both anonymous witnesses ,

[ the applicant ’s ] lawyer could not verify the credibility of the anonymous witnesses and their statements , and the courts did not do so either ,

inadequate conditions during the identification of the accused from photographs deprived the witnesses of their credibility , and

the conviction of the accused was based exclusively on the statements of the anonymous witnesses . ”

In a decision of CARDINAL DATE ORG ( PERSON ) dismissed the complaint , relying on and sharing the legal opinions of ORG . It added that LAW ORG did not provide for the right of counsel to see anonymous witnesses and to be informed of their identity . The Minister ’s CARDINAL specific arguments in this connection had therefore been submitted contra legem .

Article CARDINAL § CARDINAL provided that anyone who manufactured , imported , exported , transported , or kept or acquired for a third party , narcotics or poisonous substances , without authorisation , would be punished by imprisonment of DATE or by a fine .

Under LAW of the ORG , where the circumstances indicated that a witness or a person close to the witness ran an obvious risk of bodily harm or other serious danger of interference with his / her fundamental rights in testifying , and when it was not possible to ensure the effective protection of the witness in another manner , the authorities were required to take measures to prevent the visual identification of the witness . The witness ’s name and surname as well as his / her other particulars were not recorded in the statement , but were kept separate from the criminal file and known only to the authorities . The witness had to be informed of the right to have one ’s identity concealed and to sign the statement using a fictitious forename and surname , by which the person would subsequently be identified . If the reasons for concealing the witness ’s identity and for separating the witness ’s particulars ceased to exist , that information would be attached to the criminal file and the witness ’s identity would no longer be concealed .

Under LAW , the president of the division was to ensure that any witness who had not yet testified did not attend the interview of the defendant or of other witnesses . If there was any doubt that the witness would not testify truthfully in the presence of the defendant , or if the witness or persons close to him or her were at risk of bodily harm , death or any other serious danger , the president of the division was required to take appropriate measures to ensure the safety or to conceal the identity of the witness , or to order the defendant to leave the courtroom while the witness was being questioned . However , once having returned to the courtroom , the defendant had to be informed of the content of the witness ’s testimony and be given the opportunity to comment on it , and , without meeting the witness in person , might put questions to the witness through the president of the chamber . When the witness ’s identity was to remain confidential , the president of the chamber was required to take measures in order to prevent the true identity of the witness being revealed .

Article CARDINAL § CARDINAL provided that when a witness whose identity had been concealed was examined at trial , the court , acting of its own motion , was required to take all necessary steps with a view to verifying the witness ’s credibility .

Article CARDINAL § CARDINAL provided , inter alia , that prior to examination , the identity of a witness and his or her relationship to the accused , if any , had to be ascertained . The witness was to be advised that he or she had the right to refuse to give testimony and , if need be , to proceed under LAW . The witness was also to be warned to tell the truth and nothing but the truth . At the same time , instructions had to be given on the importance of the testimony with regard to the general interest and on the criminal law consequences of perjury . The second paragraph provided , inter alia , that at the beginning of the examination , the witness would be asked about his or her connection with the case at issue and any relationship to the parties and ,

if need be , about other circumstances that might be important for ascertaining his or her reliability .

The plenary assembly of ORG declared unconstitutional the version of ORG CARDINAL § CARDINAL and CARDINAL of the ORG then in force . It held that the criteria for assessing whether the use of anonymous witnesses was constitutional and in line with the principle of subsidiarity were as follows : first , anonymity may only be granted if the witness can not be provided with reliable protection in any other way ; secondly , any constraints on the exercise of the rights of the defence resulting from the hearing of evidence from anonymous witnesses must be kept to a minimum .

In this case , the court found the criminal proceedings unfair because the appellant ’s identification had been based on photograph albums alone and the witness had not described the appellant prior to the identification procedure . Concerning the use of anonymous witnesses , ORG concluded that the trial court had not verified the credibility of the witnesses as required by LAW ORG . The trial court had only declared that the witnesses had no “ outstanding accounts ” with the appellant and hence there was no reason for them to take revenge against him and to incriminate him falsely . Such a declaration could not in itself mean that the trial court had complied with LAW ORG . It should have examined and verified the relationship between the witnesses and the appellant , checked the latter ’s objections to their credibility and produced all necessary evidence , for example the full transcript of the criminal records of the witnesses , the reports of the local police and administrative authorities on the reputation of the witnesses , and the expert psychological reports on the witnesses , under LAW ORG . ORG quashed the decisions of both the trial and appellate courts .

The Appendix to Recommendation No . R ( CARDINAL ) CARDINAL of ORG , concerning the intimidation of witnesses and the rights of the defence , includes the following passage :

“ ... CARDINAL . Anonymity should only be granted when the competent judicial authority , after hearing the parties , finds that :

– the life or freedom of the person involved is seriously threatened or , in the case of an undercover agent , his / her potential to work in the future is seriously threatened ; and

– the evidence is likely to be significant and the person appears to be credible .

Where appropriate , further measures should be available to protect witnesses giving evidence , including preventing the identification of the witness by the defence , for example by using screens , disguising the face or distorting the voice .

When anonymity has been granted , the conviction shall not be based solely or to a decisive extent on the evidence of such persons .

Where appropriate , special programmes , such as witness protection programmes , should be set up and made available to witnesses who need protection . The main objective of these programmes should be to safeguard the life and personal security of witnesses , their relatives and other persons close to them .

Witness protection programmes should offer various methods of protection ; this may include giving witnesses and their relatives and other persons close to them a change of identity , relocation , assistance in obtaining new jobs , providing them with bodyguards and other physical protection .

Given the prominent role that collaborators of justice play in the fight against organised crime , they should be given adequate consideration , including the possibility of benefiting from measures provided by witness protection programmes . Where necessary , such programmes may also include specific arrangements such as special penitentiary regimes for collaborators of justice serving a prison sentence . ”

Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at the domestic level following judgments of ORG , adopted by ORG on DATE , provides as follows :

“ ... Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms ( hereinafter “ the Convention ” ) ;

Noting that under LAW ( “ the LAW ) the Contracting Parties have accepted the obligation to abide by the final judgment of ORG ( “ the ORG ” ) in any case to which they are parties and that ORG shall supervise its execution ;

Bearing in mind that in certain circumstances the above - mentioned obligation may entail the adoption of measures , other than just satisfaction awarded by ORG in accordance with LAW and/or general measures , which ensure that the injured party is put , as far as possible , in the same situation as he or she enjoyed prior to the violation of the Convention ( restitutio in integrum ) ;

Noting that it is for the competent authorities of the respondent ORG to decide what measures are most appropriate to achieve restitutio in integrum , taking into account the means available under the national legal system ;

Bearing in mind , however , that the practice of ORG in supervising the execution of the ORG ’s judgments shows that in exceptional circumstances the re - examination of a case or a reopening of proceedings has proved the most efficient , if not the only , means of achieving restitutio in integrum ;

ORG , in the light of these considerations , the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve , as far as possible , restitutio in integrum ;

II . Encourages the Contracting Parties , in particular , to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re - examination of the case , including reopening of proceedings , in instances where the ORG has found a violation of the LAW , especially where :

( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue , which are not adequately remedied by the just satisfaction and can not be rectified except by re - examination or reopening , and

( ii ) the judgment of the ORG leads to the conclusion that

( a ) the impugned domestic decision is on the merits contrary to the LAW , or

( b ) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of . ”