No violation of P1-1;No violation of Art. 14

The applicant left GPE for GPE in DATE . After his judicial rehabilitation in DATE he started living partly in GPE and partly in GPE . According to the applicant , he spent the major part of DATE in GPE . On DATE he registered his permanent residence at his friend ’s address in GPE . He remained registered at this address until DATE .

On DATE the applicant lodged a claim for restitution of his father ’s and uncle ’s property under LAW of DATE .

On CARDINAL DATE ORG dismissed the applicant ’s claim on the ground that at the relevant time he had not permanently resided within the territory of the former NORP and GPE as required by Section CARDINAL(CARDINAL ) of LAW .

ORG established that a registered letter sent on DATE could not be delivered as at that time nobody had lived at the applicant ’s address in PERSON . ORG had before it also a certificate in which the competent NORP authority confirmed that the applicant had registered his main abode ( Hauptwohnung ) in PERSON since DATE . The accompanying letter by the NORP vice - consul to GPE explained that , unlike in GPE , no distinction was made between permanent and temporary residence in GPE . The letter further stated that under NORP law the main abode was the place of residence preponderantly used by the person concerned in GPE , and that there was no obligation under NORP law to terminate its registration when a person spent the major part of DATE abroad . The vice - consul expressed the view that in case that the applicant ’s stay in GPE exceeded DATE a year , his residence there could , theoretically , be regarded as permanent within the meaning of ORG of DATE .

NORP In its decision ORG referred also to a police report according to which the applicant had not effectively established his permanent residence in GPE . ORG concluded , with reference to LAW CARDINAL ) and Section CARDINAL(CARDINAL ) of ORG of DATE and to the relevant case - law and administrative practice , that the applicant did not meet the permanent residence requirement .

On DATE the applicant requested ORG to review ORG decision . He alleged that since DATE he had resided at various places in GPE and submitted witness statements to this effect . The applicant further explained that several times a year he went to GPE where he was undergoing cancer therapy .

On DATE ORG upheld the administrative decision challenged by the applicant . It noted that by the date of expiry of the deadline for lodging his claim on DATE the applicant had not permanently resided within the former NORP and GPE as required by Section CARDINAL(CARDINAL ) of LAW .

ORG recalled , in particular , that under Section CARDINAL(CARDINAL ) of ORG of DATE citizens can not permanently reside at CARDINAL address at the same time . As the applicant failed to terminate the registration of his main abode in GPE prior to the registration of his permanent residence in GPE , his stay in the then GPE was to be regarded as temporary . Reference was made to the relevant case - law and to the practice of ORG .

ORG further held that the applicant had submitted no evidence indicating that his abode in GPE met the requirements of a permanent residence within the meaning of LAW ) of ORG . Moreover , a police report before the court indicated that the applicant ’s registration in PERSON had been of a formal nature .

On DATE ORG refused to re - examine the case as there was no remedy available against ORG judgment of CARDINAL DATE .

The relevant provisions of LAW of DATE ( PERSON o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku ) read as follows .

“ CARDINAL . Persons entitled to claim the restitution of property are nationals of the NORP and GPE with permanent residence within its territory whose land and buildings forming a part of an agricultural estate were transferred to the ORG or to other legal persons during the period between CARDINAL DATE and DATE in the manner set out in Section CARDINAL ) .

In case of decease , prior to the expiry of the time - limit laid down in LAW , of the person whose real property was transferred to the ORG or to other legal persons during the period between CARDINAL DATE and DATE in the manner set out in Section CARDINAL ) ... the following natural persons are entitled to restitution provided that they are nationals of the NORP and GPE and permanently reside within its territory : ...

c ) children ... of the persons mentioned in paragraph CARDINAL ...

e ) siblings of the persons mentioned in paragraph CARDINAL and , in case of decease of CARDINAL of the siblings , his or her children . ”

“ CARDINAL . Any claim for restitution of property under LAW shall be filed not later than on DATE ... The right to restitution of property shall lapse when the claim was not filed in time ... ”

The relevant provisions of ORG of DATE ( PERSON o hlásení a evidovaní pobytu občanov ) read as follows .

“ CARDINAL . A citizen ’s permanent residence is the place where he or she permanently lives , that is , as a rule , where his or her family or parents live , or the place where the citizen ’s home or occupation is located . ...

The stay of citizens permanently living abroad within the territory of GPE shall be considered as being temporary . ”

“ CARDINAL . Every citizen shall have his or her permanent residence registered ; citizens may not have permanent residence registered at CARDINAL place at the same time . ”

NORP In accordance with the established practice , the permanent residence requirement has not been complied with when a person fails to show that the registration of his or her permanent residence abroad was terminated before he or she registered as permanently residing on the territory of the former GPE or , as the case may be , on the territory of CARDINAL of its successor GPE .

NORP Under the practice of ORG , a person may register as permanently residing in GPE only after the termination of his or her permanent residence abroad . Otherwise the residence of such a person in GPE is considered as being temporary until the termination of the registration abroad .

In its decision no . QUANTITY of CARDINAL DATE , No . CARDINAL Cdo CARDINAL of DATE or No . CARDINAL Cdo CARDINAL of DATE ) .


Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON Kotsarenko , is a NORP national who was born in DATE and lives in the village of GPE , GPE , GPE . The respondent Government were represented by their Agent , Mr PERSON .

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

On DATE ORG awarded the applicant CARDINAL NORP hryvnyas ( ORG ) in salary arrears , to be paid by his former employer , a private company , PERSON ( “ the company ” ) .

The judgment in the applicant 's favour was not appealed against , became final and ORG instituted enforcement proceedings .

The judgment remains unenforced .


The applicants [ PERSON Bent PERSON , Mr PERSON , PERSON , PERSON and PERSON ] are NORP nationals who were born in DATE , DATE , DATE , DATE and DATE respectively and live in LOC - la - Molière ( GPE ) . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

On CARDINAL DATE the first applicant ’s husband , who was the father of the other applicants , died when he was knocked down by a motor vehicle in a road accident .

The traffic police investigated the accident and heard evidence from witnesses , including the second applicant – the victim ’s son DATE who had given his address in GPE . However , the record of his statement to the judge did not include that piece of information , indicating merely that he had no fixed address in GPE .

The Fuengirola ( PERSON ) investigating judge opened a criminal investigation . In a decision of CARDINAL DATE he ruled that the facts did not disclose the commission of a major offence ( delito ) but , being of the view that a minor offence ( falta ) might have been committed , forwarded the case file to the appropriate district judge ( juzgado de distrito ) .

On DATE the Fuengirola district judge set the case down for trial on DATE . The applicants were summoned to the hearing by means of a notice published in ORG of the province of GPE . As they lived in GPE , they were unaware of the summons . The public prosecutor appeared in court and submitted that the defendant should be acquitted .

In a judgment of CARDINAL DATE the district judge acquitted the driver of the vehicle responsible for the accident , on the ground that there was insufficient evidence to establish his guilt . On DATE the judgment was published in the province ’s ORG . The applicants were not informed of the judgment .

The applicants received no news of the proceedings and , after enquiring about the case reference , applied in writing on CARDINAL DATE to be treated as parties to the proceedings and to be informed of their progress . On DATE the district judge refused their application , on the ground that the proceedings had been terminated on DATE ( the judgment delivered on CARDINAL DATE having subsequently become final as no appeal had been lodged ) .

The applicants lodged an application to set aside ( recurso de reforma ) and , in the alternative , an appeal , seeking to have the impugned judgment declared null and void under LAW of LAW .

In a decision of CARDINAL DATE , served on the applicants on DATE , the Fuengirola investigating judge ( who had inherited the duties of the former district courts ) dismissed the application to set aside and found against the applicants , but he did , however , inform them , as regards the proceedings in connection with the minor offence of negligence causing the death of a member of their family , that hearings had been held , the defendant had been acquitted by the district judge on DATE , notice of that judgment had been given through its publication in ORG , the judgment had become final on DATE and the proceedings had been terminated . The judge informed the applicants of their right to inspect the material in the file and directed that they should be sent copies of the documents they had requested . The appeal lodged in the alternative was also dismissed , pursuant to LAW , as the law made no provision for such a remedy .

On DATE , CARDINAL DATE and DATE the applicants sought enforcement of the decision of CARDINAL DATE , and on DATE they received a copy of the case file .

On DATE the applicants lodged an appeal , seeking to have the proceedings that had taken place after the case had been set down for trial by the Fuengirola district judge declared void under LAW of LAW . In a decision of DATE the Fuengirola investigating judge ruled that the appeal was inadmissible , as the judgment appealed against had become final , “ albeit without prejudice to the appellants’ right to apply to have the proceedings declared void by means of the appropriate procedure ” .

On DATE the applicants accordingly lodged an appeal with ORG ( recurso de amparo ) , alleging that there had been a breach of LAW ( right to a fair trial ) .

ORG submitted that their amparo appeal should be allowed on the ground that the investigating judge had not made any attempt even to ascertain the address of the victim ’s son who had made a statement , had not sought to trace the addresses of the other members of the victim ’s family , and had not tried to keep the applicants informed of the proceedings in issue by any other means . He invited the ORG to quash all the steps in the proceedings after the parties had been summoned to attend the trial .

In a judgment of CARDINAL DATE , however , ORG dismissed the appeal as being out of time , pointing out that by section CARDINAL ) of LAW , the amparo appeal should have been lodged within DATE of the service of the investigating judge ’s decision of CARDINAL DATE , in which the applicants had been informed of the course of the proceedings since the trial and of the defendant ’s acquittal , the notice given of the judgment through its publication in ORG , and the fact that the judgment had become final and the proceedings had been terminated .

ORG referred to its settled case - law , according to which the time allowed for lodging an amparo appeal began to run at the point when those persons who should have appeared as parties to the proceedings in the ordinary courts had had sufficient notice of the existence and content of the judgment which they wished to challenge ; that notice coincided with the service of the judgment . In the instant case , the relevant point in time had occurred on DATE , when the decision of CARDINAL DATE had been served on the applicants . In spite of the content of that decision , which had informed them of the course of the proceedings , of the defendant ’s acquittal , which had subsequently become final , and of the termination of the proceedings , the applicants had asked to inspect the case file and DATE after admittedly unjustifiable delays – had been sent the relevant documents and had then appealed against the acquittal , DATE after it had become final .

The Constitutional Court emphasised that by the time the applicants – assisted by a lawyer – had finally applied to it to protect their constitutional rights , their right of appeal had already lapsed . It added that they should have lodged an amparo appeal within the statutory period of DATE from the date on which they had been informed of the existence and content of the judgment which had brought the proceedings in the ordinary courts to an end . Submitting an application to set aside once a judgment had already become final neither extended the time allowed by section CARDINAL(CARDINAL ) of LAW for lodging an amparo appeal nor caused time to cease to run for that purpose . Nor could it be left to the appellants to determine the terminus a quo for themselves as they pleased .

Without excusing or justifying the district judge ’s lack of diligence , ORG held that in view of its special nature as a remedy , the appeal should be dismissed as being out of time , but also drew attention to the remedies available for rectifying irregularities or malfunctions in the system of justice , noting that the facts of the case might “ provide an effective basis on which to seek redress for non - pecuniary damage sustained and compensation for the malfunctioning of the criminal - justice system ” .

“ CARDINAL . All contentions that proceedings should automatically be declared void or that formal irregularities have occurred in procedural steps such that conditions essential for the fulfilment of their purpose have not been satisfied or such that a defence effectively becomes impossible shall be raised by means of the appeals provided by law against the decision in question or by the other means laid down in procedural laws .

Without prejudice to the foregoing provisions and proprio motu , a judge or court may , before a final decision has been issued , declare void all or some of the steps in the proceedings , provided that no compensation is payable and that the parties have been consulted . ”


Christos Rozakis;Giovanni Bonello;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants , Mr PERSON , PERSON and ORG are NORP nationals who were born in DATE , DATE and DATE respectively and are currently serving prison sentences in GPE . The first and second applicants are married and the third applicant is the sister of the second applicant . The couple 's children have lived in GPE since the applicants were arrested in GPE . The applicants are represented before ORG by PERSON , a lawyer practising in GPE .

ORG were represented by their then Agent , PERSON . ORG were represented by their Agent , PERSON , President of ORG .

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

On an unspecified date in DATE the applicants were arrested in GPE .

On DATE the applicants were charged by the NORP authorities with illegally entering NORP territory , setting up and participating in a criminal organisation and drug trafficking .

On DATE ORG , sitting as a first - instance court with a bench of CARDINAL judges , found the applicants guilty and sentenced them to life imprisonment and to the payment of a fine that amounted to MONEY .

On an unspecified date in DATE , since their minor children and family were living in GPE , the applicants lodged a request with ORG pursuant to a DATE LAW between GPE and GPE on the transfer of sentenced persons ( “ the Bilateral Agreement ” ) , seeking to serve their prison sentence in an NORP prison . According to the applicants , in order to fulfil the requirements for their transfer to GPE they waived their right to appeal against the judgment that had led to their conviction .

On DATE and CARDINAL DATE ORG requested the NORP authorities to initiate proceedings for the transfer of the applicants to GPE . The standard text of the requests , in so far as relevant , read as follows :

“ I. We hereby inform you that [ the name of the applicant ] , an NORP national serving a sentence in [ the name of prison ] , has requested to be transferred to GPE to serve the remainder of the sentence .

II . ORG has no objection to the transfer of the sentenced person .

III . The following documents have been annexed for your information :

The application form of the sentenced person requesting the transfer .

Copies of the TIME and judgment of ORG of DATE .

Copies of the applicant 's waiver of the right to appeal against the above - mentioned judgment .

On an unspecified date , ORG requested ORG , LAW ( “ the LAW ” ) , to provide them with information about the legal consequences of the transfer of sentenced persons under that country 's criminal law .

Pursuant to the procedure provided for by LAW and LAW , it would appear that on DATE the NORP ORG initiated proceedings in LOC for the validation and enforcement in GPE of the judgment given by ORG .

On DATE the ORG , relying on ORG and LAW , considered that the sentences imposed by the NORP court were compatible with NORP criminal law and found that the applicants should serve the following sentences in GPE : DATE imprisonment for the first applicant and DATE imprisonment for the second and third applicants , in accordance with Articles CARDINAL and CARDINAL of LAW . Lastly , the court ordered that the applicants should pay the costs of the proceedings . The judgment became final on DATE .

It appears that on DATE ORG informed its NORP counterparts that there existed the possibility of conditional release for the applicants after serving CARDINAL of their sentence , provided that they had displayed good behaviour in prison . Consequently , on DATE ORG informed the applicants and ORG of its refusal to transfer the applicants on the ground that the sentences commuted by the NORP court were inferior to those imposed by the NORP court and thus incompatible with the gravity of their offence and with the short time they had spent in NORP prisons .

In DATE and DATE the applicants unsuccessfully requested that the NORP authorities transfer them to GPE in accordance with the transfer procedure .

It would appear that on DATE the second and third applicants sought leave to appeal out of time against the sentence of DATE . On DATE ORG ( Areios Pagos ) dismissed the appeals against the judgment that had led to their conviction as being time - barred .

On unspecified dates the applicants requested that ORG enforce the judgment of ORG that had converted their NORP sentence and proceed with their transfer to GPE .

On DATE the NORP Ministry of Justice informed the applicants ' family , without giving reasons , that the procedure for their transfer to GPE had been stayed .

On DATE the prosecutor at the ORG informed the applicants ' family of the refusal of ORG to transfer the applicants to GPE .

It appears that in DATE the applicants unsuccessfully requested that the NORP authorities transfer them to GPE in accordance with the transfer procedure .

LAW provides that GPE applies international law that is binding upon it .

Article CARDINAL , as in force at the material time , stated that a prisoner could be conditionally released after serving CARDINAL of the sentence , provided that his good behaviour and work had achieved the goal of educating him .

Article CARDINAL , as in force at the material time , provided that the organisation and initiation of narcotics trafficking was punishable by a maximum sentence of DATE imprisonment .

Article CARDINAL , as in force at the material time , provided that unlawful crossing of the border was punishable by a maximum sentence of DATE imprisonment .

Article CARDINAL of LAW provides for the conditional release of a life prisoner , after having served DATE imprisonment .

The DATE LAW was adopted at a time when GPE was not a ORG to ORG and in many parts reflects the content of that instrument . It entered into force in respect of GPE on DATE . The preamble to the Agreement reads “ GPE and GPE , desirous of further developing cooperation in the field of criminal law , have agreed to conclude an Agreement for ORG ( ... ) . ”

Article CARDINAL states that “ both countries undertake to mutually assist with the transfer of sentenced persons in accordance with the provisions of this Agreement . ” Quite unlike LAW , LAW provides that the sentenced person may also request his transfer , in addition to the sentencing ORG or the administering ORG .

Under Articles CARDINAL and CARDINAL , a sentenced person may be transferred if the following conditions are met : ( a ) the criminal offence is punishable by the criminal law of the sentencing and the administering ORG ; ( b ) the sentencing judgment is final ; ( c ) the sentenced person is of sound mind ; ( d ) the sentenced person still has DATE of the sentence to serve ; and ( e ) the sentenced person has given his consent to the transfer .

Articles CARDINAL and CARDINAL provide for the grounds on which the transfer may be refused , for example if the sentenced person has not satisfied his obligations in terms of cash , fees , expenses or other penalties to which he is liable , and , if the maximum punishment imposed by the administering ORG is much lower than the one imposed by the sentencing ORG .

ORG entered into force in respect of GPE on DATE and in respect of GPE on DATE . LAW has not been signed or ratified to date by GPE and has been in force in respect of GPE from DATE .

The Preamble to LAW , in so far as relevant , reads :

“ ... Desirous of further developing international co - operation in the field of criminal law ;

Considering that such co - operation should further the ends of justice and the social rehabilitation of sentenced persons ;

Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society ; ... ”

The relevant provisions of LAW read as follows :

“ A sentenced person may be transferred under this Convention only on the following conditions :

a. if that person is a national of the administering ORG ;

b. if the judgment is final ;

c. if , at the time of receipt of the request for transfer , the sentenced person still has DATE of the sentence to serve or if the sentence is indeterminate ;

d. if the transfer is consented to by the sentenced person or , where in view of his age or his physical or mental condition one of GPE considers it necessary , by the sentenced person 's legal representative ;

e. if the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering ORG or would constitute a criminal offence if committed on its territory ; and

PERSON if the sentencing and administering GPE agree to the transfer . ”

If a transfer is requested , the sentencing ORG shall provide the following documents to the administering ORG , unless either ORG has already indicated that it will not agree to the transfer :

a. a certified copy of the judgment and the law on which it is based ;

b. a statement indicating how much of the sentence has already been served , including information on any pre - trial detention , remission , and any other factor relevant to the enforcement of the sentence ;

c. a declaration containing the consent to the transfer as referred to in LAW ; and

d. whenever appropriate , any medical or social reports on the sentenced person , information about his treatment in the sentencing ORG , and any recommendation for his further treatment in the administering ORG . ”

“ CARDINAL . The competent authorities of the administering State shall :

a. NORP continue the enforcement of the sentence immediately or through a court or administrative order , under the conditions set out in DATE , or

b. convert the sentence , through a judicial or administrative procedure , into a decision of that ORG , thereby substituting for the sanction imposed in the sentencing ORG a sanction prescribed by the law of the administering ORG for the same offence , under the conditions set out in LAW .

The administering ORG , if requested , shall inform the sentencing ORG before the transfer of the sentenced person as to which of these procedures it will follow .

The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions . ... ”

“ CARDINAL . In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority :

a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing ORG ;

b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction ;

c. shall deduct the full period of deprivation of liberty served by the sentenced person ; and

d. shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .

NORP If the conversion procedure takes place after the transfer of the sentenced person , the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure . ”

If CARDINAL or more Parties have already concluded an agreement or treaty on the transfer of sentenced persons or otherwise have established their relations in this matter , or should they in future do so , they shall be entitled to apply that agreement or treaty or to regulate those relations accordingly , in lieu of the present Convention . ”

“ ORG shall be kept informed regarding the application of this Convention and shall do whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of its application . ”

Paragraph CARDINAL of its explanatory report states that “ the Convention confines itself to providing the procedural framework for transfers . It does not contain an obligation on Contracting States to comply with a request for transfer ; for that reason , it was not necessary to list any grounds for refusal , or to require the requested ORG to give reasons for its refusal to agree to a requested transfer ” .


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

Mr PERSON GPE is the secretary of the municipal welfare agency ( ORG ) of the city of GPE , where he lives .

On DATE he applied to the Friuli - Venezia Giulia ORG ( “ the RAC ” ) for judicial review of a decision of his employer ’s board of governors , which , on DATE , in adopting the staff regulations , had assigned to him a level of remuneration lower than that to which he considered himself to be entitled on the basis of the collective agreements on contracts of employment negotiated at national level by the unions concerned ( accordi nazionali di lavoro del personale degli enti locali ) . He also contested the discrimination between himself and other employees , who were paid on the basis of the salary scales laid down in the contracts in question .

On DATE the ORG ordered the municipal welfare agency to file certain documents . In a judgment of CARDINAL DATE , the text of which was deposited with the registry on CARDINAL DATE , it dismissed the applicant ’s application as being ill - founded .

On DATE Mr ORG appealed to the Consiglio di Stato . On DATE ORG , which had by then succeeded the municipal welfare agency , lodged a counter - appeal . It contended , as a preliminary point , that the applicant ’s appeal was inadmissible for failure to comply with the time - limit ; as regards the merits , it argued that the appeal should be dismissed as being ill - founded .

On DATE the applicant filed an application for a date to be fixed for the hearing . On CARDINAL DATE he requested that the case be set down for an urgent hearing . In a judgment of DATE , the text of which was deposited with the registry on CARDINAL DATE , the PERSON dismissed the objection of inadmissibility and dismissed the applicant ’s appeal .


VAN DEN BORN-VAN DE WAL v. THE NETHERLANDS

The applicants are all GPE nationals .

Mr PERSON died on DATE . He will continue to be referred to hereinafter as an applicant , although it is now his heirs – having elected to pursue the proceedings in his stead DATE who have that status .

PERSON Born - van de Wal , PERSON , PERSON J. van den PERSON , PERSON , PERSON and PERSON Hoenstok are represented before ORG by Ms T. Spronken , a lawyer practising in GPE .

PERSON , PERSON , PERSON PERSON , PERSON , PERSON PERSON , Mr PERSON , Mr PERSON , PERSON GPE , PERSON and Mr PERSON are represented by PERSON , a lawyer practising in GPE .

PERSON - ten ORG , PERSON , PERSON GPE - van Oostveen and PERSON are represented by Mr PERSON , a lawyer practising in GPE .

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

The applicants are all widows or widowers ; as such , they all enjoyed pensions under the General Widows’ and LAW ( Algemene Weduwen- en Wezenwet ; “ AWW ” ) at the time when that Act was repealed .

On DATE the AWW was replaced by LAW ( PERSON ; “ PERSON ” ) ; it was this LAW which governed the applicants’ entitlement to a pension as a widow or widower thereafter .

For all the applicants , the entry into force of the new LAW led to a reduction of their pensions . Some lost their pensions altogether .

The ORG refers to PERSON v. the GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE , for a description of the relevant domestic law .


Violations of Art. 6-1;Violation of Art. 6-3-a and 6-3-b;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE , GPE region .

On DATE criminal proceedings were brought against the applicant , a police investigator . The investigating authority charged him with taking a bribe involving a large sum of money , aggravated by extortion , under LAW ( c ) and ( d ) of LAW , together with a number of other offences .

The applicant and his lawyer were present at the hearings before ORG .

On DATE the ORG delivered a judgment . In respect of the legal characterisation of the acts the applicant was found to have committed , it held as follows :

“ ... the court finds the classification of the acts of PERSON by the preliminary investigation authorities to have been erroneous and classifies his acts under LAW and CARDINAL § CARDINAL ( b ) of ORG [ Criminal Code of GPE ] . It was established that PERSON , through the abuse of official authority and with a view to misappropriating another ’s property , misled witness [ L. ] , claiming that he would forward her case to a court . He then fraudulently obtained MONEY from [ L. ] , via [ D. ] , having kept from [ NORP ] and [ L. ] the fact that the proceedings had already been terminated . Taking into account the amount that was stolen and the fact that PERSON had no real opportunity to dispose of the money , having been arrested at the scene , the court regards his acts as attempted misappropriation , through the abuse of official authority , of another ’s property , involving a large sum of money , since he committed all the acts necessary in order to misappropriate another ’s property and failed to complete the crime due to circumstances beyond his control . ”

The court convicted the applicant under LAW and CARDINAL § CARDINAL ( b ) of LAW , acquitted him on the remaining charges and sentenced him to DATE imprisonment and imposed a confiscation order .

According to the record of the hearing , after pronouncing the judgment the presiding judge explained to the applicant the procedure and time - limit for appealing against the judgment . He explained that convicted persons could participate in the examination of their case by an appeal body .

NORP The applicant appealed against the judgment . In particular , he complained that the court ’s classification of his actions had been erroneous . In his appeal against the judgment the applicant did not request that he be summoned to the hearing before the appeal court or that he be informed of the date of the hearing . Nor did he or his lawyer lodge a separate request to that effect .

On DATE ORG of GPE held an appeal hearing at which neither the applicant nor his counsel were present . ORG heard a prosecutor PERSON who argued that the judgment should be upheld . It examined the applicant ’s points of appeal , reviewed the judgment and found that the trial court had correctly established the facts based on the evidence examined by it and had given the correct legal classification of the acts which the applicant had been found to have committed . ORG upheld the judgment .

On an unspecified date in DATE the applicant was released on parole .

Under LAW ( “ the ORG ” ) , in force at the material time , the public prosecutor would state his or her opinion at an appeal hearing as to whether a judgment was lawful and wellfounded . Defence counsel could participate in the hearing . A decision about the defendant ’s participation at the hearing was taken by the appeal court . A defendant who appeared before the court was always entitled to give evidence .

In Decision no . CARDINAL of DATE , ORG of GPE declared LAW ORG incompatible with the LAW on the grounds that this provision enabled appeal courts to take a final decision where a defendant ’s request to attend the appeal hearing had been rejected and where a defendant had not been given an opportunity to study the materials of the hearing and communicate in writing his or her opinion on the issues raised before the appeal court .

Article CARDINAL of the ORG provided that persons who had submitted appeals were to be apprised of the appeal hearing if it was held before courts lower than ORG of GPE . If an appeal was to be examined by ORG , an appellant would be apprised of the appeal hearing if he or she had requested the court to do so in their appeal or observations on the appeal . Notification of the time of the hearing on appeal was to be displayed at the court not DATE before the hearing .

In Decision no . CARDINAL of DATE , ORG held that the provisions of LAW ORG could not serve as a basis for failing to inform persons entitled to appeal against judgments about the date of examination of their appeals by a court of any level .

Article CARDINAL of the ORG required that , at the beginning of an appeal hearing , the presiding judge should verify who was present and the court should decide whether to proceed with the hearing .

The appeal courts considered , on the basis of the materials in the case file and newly submitted materials , whether a first - instance judgment was lawful and well - founded . They were not bound by the grounds of the appeal and exercised a full review of the case ( LAW ORG ) .

Under Articles CARDINAL - CARDINAL of the ORG appeal courts could decide to dismiss the appeal and uphold the judgment , to quash the judgment and remit the case for a new investigation or for a fresh trial , to terminate the criminal proceedings or to vary the judgment . It could reduce the sentence or amend the legal classification to the defendant ’s advantage . If it found the sentence or legal classification to be too lenient , it could quash the judgment only if an appeal on such grounds had been filed by the prosecutor or the victim . Acquittals could be quashed on appeal at the request of the prosecutor , the victim or the acquitted person .

Article CARDINAL of the ORG

Grounds for quashing or varying judgments [ on appeal ]

“ The grounds for quashing or varying a judgment on appeal shall be as follows :

( i ) prejudicial or incomplete inquest , investigation or court examination ;

( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;

( iii ) a grave violation of procedural law ;

( iv ) improper application of [ substantive ] law ;

( v ) discrepancy between the sentence and the seriousness of the offence or the convicted person ’s personality . ”

Article CARDINAL of the ORG required the court to examine the case on the basis of the charges brought against the defendant . The charge could be amended by the court provided that such amendment did not aggravate the situation of the defendant or violate his right to defend himself . If the amendment entailed a violation of the defence rights , the court had to remit the case for additional investigation . It did not have powers to prefer a more serious charge or a charge based on substantially different factual circumstances . The court could continue the trial if the amendment related only to the deletion of certain counts or aggravating circumstances .

An official who DATE personally or through an intermediary – receives a bribe in the form of money , shares or other property or benefits for acts ( or omissions ) in the interest of the bribe - giver , provided that such acts are within the competence of the official or the official can facilitate the performance of such acts by virtue of his position , commits a criminal offence ( LAW ) . The same acts , if they are aggravated by extortion ( Article CARDINAL § CARDINAL ( c ) ) or involve a large sum of money ( LAW ( d ) ) , are punishable by DATE imprisonment , which may be accompanied by a confiscation order .

Article CARDINAL § CARDINAL provides that fraud , that is theft of others’ property or acquisition of rights to others’ property by way of deception or abuse of confidence , is a criminal offence . LAW ( b ) specifies that a fraud involving a large sum of money is punishable by DATE imprisonment , which may be accompanied by a confiscation order .


Violation of Article 5 - Right to liberty and security

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and taken into custody on suspicion of membership of an organised criminal gang and involvement in kidnapping on behalf of that organisation . On DATE he was remanded in custody .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant and twentyone other persons on the above - mentioned charges .

On DATE the criminal proceedings against the applicant and the CARDINAL other accused commenced before ORG . CARDINAL hearings were held in total . Throughout the proceedings the applicant ’s lawyer repeatedly requested that the applicant be released during trial , but those requests were dismissed at the end of each hearing by way of an interim decision using an identical expression , namely “ having regard to the nature of the offence with which he is charged and the state of the evidence ” .

On a number of occasions the applicant ’s lawyer objected to the interim decisions of ORG extending the applicant ’s detention , and in each case the objections were further dismissed by ORG using the aforementioned identical expression .

On DATE ORG convicted the applicant as charged and sentenced him , in total , to DATE and CARDINAL months’ imprisonment .

On DATE ORG held a hearing and upheld the first - instance court ’s judgment in respect of the applicant ’s membership of an organised criminal gang , but quashed the judgment in respect of the sentence imposed on the applicant for kidnapping .

On DATE the case was referred back to ORG .

On DATE ORG decided to release the applicant pending trial . He was accordingly released DATE .

On DATE ORG convicted the applicant as charged and sentenced him to imprisonment for , in total , DATE , DATE and DATE .

The case is still pending before ORG .


No violation of Art. 2;Violation of Art. 3;Not necessary to examine Art. 5-1;Not necessary to examine Art. 6-1;No violation of Art. 10;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , Mr PERSON , a NORP citizen of NORP origin , was born in DATE and lives in GPE . Prior to the events in question , he had been employed as a journalist for the newspaper PERSON .

The facts in the case are disputed .

It was not disputed that in DATE , during a visit to his family in the hamlet of GPE , the applicant was arrested , on suspicion of threatening village guards , by gendarmes under the command of Officer PERSON and taken to PERSON gendarmerie headquarters .

The applicant alleged that his arrest took place on TIME DATE , whereas the Government claimed that it occurred on CARDINAL DATE .

He was held at Derinsu until DATE .

He alleged that during his time in custody there he was detained in a cell without any lighting , bed or blankets , in CARDINAL temperatures , and fed with only bread and water . He claimed to have been assaulted in his cell by gendarmes , including Officer PERSON . He stated that he would have died of cold had his CARDINAL brothers not been permitted to enter his cell on TIME CARDINAL DATE and wrapped him in extra clothing .

The Government denied that PERSON had been ill - treated . They stated that it would have been impossible for the temperature in the security room to have dropped below freezing - point , since it was situated in the centre of the building and surrounded by other units heated by coal - burning stoves . They also denied that his brothers had been allowed to join him there .

On TIME , the applicant was taken to PERSON district gendarmerie headquarters . He was released on DATE .

He alleged to have been tortured at PERSON , through the application of cold water , electric shocks and beatings , with the purpose of forcing him to sign a confession statement . He claimed that the district gendarmerie commander , PERSON , threatened him with death if he returned to the area .

The Government contested that any ill - treatment had taken place .

Prior to being released , PERSON was brought before the public prosecutor , PERSON .

It was not disputed that he complained to PERSON of having been tortured and ill - treated at both PERSON and PERSON . The applicant claimed in addition that he had handed Mr PERSON a wet piece of cloth with which he had been blindfolded while being hosed with water . Mr PERSON recorded these allegations , but took no further action in relation to them .

ORG and Prosecutors consequently decided to commence an investigation into the reasons for Mr PERSON ’s inaction , which led to disciplinary proceedings being launched against him . During the hearing before ORG confirmed that these proceedings had not yet been concluded .

Mr PERSON returned to ORG on DATE . He did not see a doctor after his release . DATE he lodged a complaint about his treatment with ORG , which advised him to make an application to the Commission .

Since the offence with which the applicant was charged ( see paragraph CARDINAL above ) fell within the competence of ORG ( see paragraph CARDINAL below ) , a PERSON public prosecutor issued a decision of non - jurisdiction and referred the case to ORG .

Following a hearing on DATE , the applicant was acquitted on DATE .

Following the Commission ’s communication to the Government on DATE of Mr Tekin ’s application , ORG ( International Law and ORG ) contacted the public prosecutor ’s office in GPE on DATE , informing it of the applicant ’s complaints . A preliminary investigation was opened .

Officer PERSON was questioned in connection with Mr PERSON ’s allegations by a public prosecutor in DATE district on DATE , at the request of the PERSON public prosecutor , PERSON .

Mr PERSON issued a decision of non - prosecution in relation to officers ORG and PERSON on DATE , on the grounds that there was no evidence that they had ill - treated or threatened PERSON , other than the latter ’s unsubstantiated allegations .

However , this decision was not made final following the intervention of ORG , which took the view that PERSON should be given the opportunity to file an appeal against it . Furthermore , because of the identities of the defendants and the nature of the allegations against them , ORG considered that the alleged offences might fall within the scope of the PERSON on the Prosecution of Civil Servants , over which the public prosecutor had no jurisdiction ( see paragraph CARDINAL below ) .

A decision of non - jurisdiction was subsequently issued by the PERSON public prosecutor ’s office on CARDINAL DATE and the case was referred to ORG .

In this connection , on DATE , a statement was taken from Commander PERSON by a gendarmerie lieutenant - colonel .

ORG submitted its summary investigation report to the office of the GPE provincial governor on DATE . On DATE , this report was referred to ORG ( see paragraph CARDINAL below ) . The latter decided , on DATE , that , due to lack of evidence , officers ORG and ORG were exempt from public prosecution .

This decision was subject to an automatic appeal to ORG ( see paragraph CARDINAL below ) . The latter confirmed the decision of non - prosecution .

The Commission conducted an investigation into the facts , with the assistance of the parties . It accepted written material , including witness statements , reports about GPE , documents relating to the applicant ’s detention at GPE and PERSON gendarmerie headquarters and to the investigation on the domestic level into the applicant ’s allegations , and a floor plan of PERSON gendarmerie headquarters . In addition , CARDINAL delegates of the Commission heard the oral evidence of CARDINAL witnesses in GPE on DATE and a further hearing took place before the ORG in GPE on DATE . The witnesses included the applicant , his father , Hacı PERSON , officers PERSON and PERSON , and CARDINAL neighbours of the applicant ’s father , PERSON , PERSON and ORG , who alleged to have spoken to the applicant shortly after his release .

ORG had requested the attendance of the public prosecutors PERSON , PERSON and PERSON ( the latter was the public prosecutor at ORG ) , but none of them appeared to give evidence .

The Commission was unable to determine the date of the applicant ’s arrest or the precise details of his treatment in custody . However , cautiously evaluating the evidence , the ORG was satisfied that the applicant had been kept in a cold and dark cell and blindfolded and treated in a way which left wounds and bruises on his body in connection with his interrogation .

Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces .

CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - east GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .

The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW

“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”

LAW makes it a criminal offence :

( a ) to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ,

( b ) to issue threats ( LAW ) ,

( c ) to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) .

For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to the PERSON on the Prosecution of Civil Servants . Thus , any public prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to ORG . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG .


NORP The applicant newspaper published a series of articles in DATE , criticising the authorities of GPE for their actions in respect of the break - away region of GPE ( “ GPE ” or “ FAC , see ORG and Others v. GPE and GPE [ ORG ] , no . CARDINAL , ECHR DATE ... ) and reproducing harsh criticism of ORG by certain TIME and NORP leaders .

The applicant published the articles under the following headlines :

“ ORG of GPE has annexed GPE and [ FAC ] to ORG and GPE ” , “ There shall be no meeting ... ” , “ ORG acknowledged that the withdrawal of NORP troops from [ FAC ] may affect stability in the region ” , “ That ’s why ORG is what it is , or a holy place is never empty ” , “ The black list ” , “ A Nobel Prize for the leader ” , “ If the person disappears , there will be no problem ? ” , “ So is it a blockade or ORG conditions ? ” , “ One does not choose one ’s neighbours ” , “ [ FAC ] is much closer to ORG conditions than GPE ” and “ Mission impossible ” .

NORP In these articles , the applicant reproduced , literally or in a summary , or commented upon declarations by GPE , NORP and FAC authorities in respect of the negotiation process between GPE and FAC , as well as economic , ( geo-)political , social and other issues . In a number of these articles the actions and declarations of high - ranking NORP officials were harshly criticised . The applicant emphasised , however , that it did not call for any violent or unlawful act and , in the impugned articles , expressly qualified such expressions as “ to annihilate ” ( “ убрать ” ) as meaning “ political annihilation [ of FAC leader ] ” .

On DATE the Prosecutor General of GPE initiated court proceedings against the applicant in ORG . The applicant was accused of “ endangering , through its publications , national security and territorial integrity together with public safety and order in GPE ” , by “ lending open support to the unconstitutional regime of the self - proclaimed [ FAC ] , promoting the separatist ideas expressed by its leaders and misrepresenting the essence of legal actions of GPE authorities and international organisations in solving the problems of the regions to LOC . ORG illustrated his request with CARDINAL examples of phrases from the impugned articles , namely :

“ The lack of legal balance between the [ FAC ] and GPE , as a recognised ORG , allows the latter to approach the negotiations from a position of superiority and dictatorship , which is the main reason for the slow pace of the negotiation process ” ; “ In the circumstances of an ongoing political , diplomatic and economic blockade of FAC by GPE we consider impossible a meeting between the Presidents of MRT and GPE ” .

Since the applicant ’s publications , while formally presented as an exercise of the right to inform the public , were contrary to LAW ( see below ) and the applicant had been warned against continuing to violate the law , the court was requested to order the closure of the newspaper .

On DATE ORG accepted the claims of ORG and ordered the closure of the newspaper . The court recalled the submissions of the parties and cited the applicable domestic law . It referred in its judgment to the headlines listed in paragraph CARDINAL above and stated that it considered the articles to have :

“ exceeded the limits of publicity set out in LAW and endangered the territorial integrity of GPE , national security and public safety and created the potential for disorder and crime , violating LAW . ”

The court also stated that systematic violations of LAW could be sanctioned with the closure of a newspaper LAW ( see below ) .

NORP In response to the applicant ’s arguments the court found that :

“ LAW ] provides for freedom of expression ... ( § CARDINAL ) but the exercise of this freedom carries with it duties and responsibilities , and may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law ( LAW ) ” .

The court did not specify which expression or phrase constituted a threat and gave no further detail . It added that the articles did not represent a fair summary of public statements by public authorities and thus could not be immune from liability under LAW ( see paragraph CARDINAL below ) . The court found that ORG had contacted the publisher before initiating the proceedings , as required by law . The applicant was ordered to pay court fees of CARDINAL NORP lei .

NORP The applicant appealed , arguing that it had simply informed the public about current events and about the Government ’s attitude and actions towards the authorities of the FAC . It relied on LAW , LAW and LAW .

On DATE ORG upheld that judgment , repeating the arguments of the lower court . The court found , inter alia , that :

“ the lower court correctly assessed the facts and rejected the [ applicant ’s ] objections . ... It was correctly decided that no violation of LAW had been committed , since although that LAW provides for the right to freedom of expression , it carries with it duties and responsibilities and its exercise is subject to such formalities , conditions , restrictions or penalties as are prescribed by law ” .

The court rejected the applicant ’s submission that the economic courts were not competent to examine a freedom of expression case since it had been registered as a joint - stock company . It also rejected the submission that ORG had not followed the proper pre - trial procedure and was not competent to initiate the relevant proceedings .

On DATE ORG upheld the CARDINAL judgments . It also essentially repeated the reasoning of ORG and found that the applicant :

“ has exceeded the limits of restrictions on freedom of expression , determined in LAW , through some of the publications annexed to the file which undermine national security , territorial integrity and public safety , the protection of order and the prevention of crime ” .

The newspaper was subsequently re - registered under the name “ Kommersant - Plus ” .

Article CARDINAL of the LAW reads as follows :

“ LAW and of expression

( CARDINAL ) Each citizen is guaranteed freedom of thought , of opinion , as well as freedom of expression in public through words , images or through other available means .

( CARDINAL ) Freedom of expression shall not harm the honour or dignity of others or the right of others to have their own opinion .

( CARDINAL ) The law prohibits and punishes the contestation and defamation of the ORG and the nation , calls to war and aggression , national , racial or religious hatred , and incitement to discrimination , territorial separatism , or public violence , as well as other expression which endangers the constitutional order . ”

The relevant provisions of LAW of DATE ( Law no . CARDINAL ) read as follows :

“ DATE .

Publishers of periodicals ... shall have a discretion as to the documents and information they choose to publish , but shall have regard to the fact that , since it carries with it duties and responsibilities , the exercise of these freedoms is subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society , in the interests of national security , territorial integrity or public safety , for the prevention of disorder or crime , for the protection of health or morals , for the protection of the reputation or rights of others , for preventing the disclosure of information received in confidence , or for maintaining the authority and impartiality of the judiciary .

Article CARDINAL

... ( CARDINAL ) The court shall adopt a decision to end the activity of a newspaper or a news agency in the case of systematic violation of the present Act .

Article CARDINAL

The founders , publishers and journalists shall not be held responsible for imparting information , if it :

is part of official documents and statements of the public authorities ; or

textually reproduce public statements or fairly summarise them ”


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE ORG expropriated a plot of land belonging to the applicants . A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicants when the expropriation took place .

On DATE the applicants filed an action with ORG of First - instance requesting additional compensation . On DATE the First - instance court awarded them additional compensation plus interest at the statutory rate .

On DATE ORG quashed the judgment of ORG of First - instance , finding that the amount awarded was too high .

On DATE ORG awarded the applicants additional compensation of CARDINAL NORP Liras ( GPE ) ( MONEY ( ORG ) ) plus interest at the statutory rate applicable at the date of the court ’s decision , running from DATE , the date on which the title deed to the land had been transferred . The judgment of the court became final on DATE .

On DATE the authorities paid the applicants the sum of TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL ( approximately EUR CARDINAL ) , including interest .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .