The applicant , born in DATE , is an NORP national residing in GPE . In the proceedings before the ORG he is represented by Mr. PERSON , a lawyer practising in GPE .

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

The applicant is the father of CARDINAL children , who were born out of wedlock in DATE and DATE , respectively .

On DATE the Office for Youth and Family ( ORG für ORG , acting on behalf of the applicant ’s children , filed a request with ORG ( Bezirksgericht ) that the DATE amount of maintenance to be paid by the applicant be raised from NORP schillings ( ORG ) CARDINAL to ORG CARDINAL per child as of DATE . The applicant made a number of submissions opposing this request .

On DATE the applicant requested that the DATE amount of maintenance be reduced to ORG CARDINAL per child as of DATE . He also requested legal aid . Subsequently , he requested that the amount be reduced to ORG CARDINAL per child . On DATE the applicant requested that he be released from his maintenance obligations for DATE .

According to the Government the applicant was heard in an informal manner on DATE . According to the applicant no such informal questioning took place . He submits that on that date he only handed in documents relating to his legal aid request .

On DATE the ORG decided that the applicant had to pay ORG CARDINAL in DATE maintenance per child for DATE . It reserved its decision as regards DATE , noting that further examination was necessary .

On DATE the applicant filed an appeal . He submitted that ORG had disregarded his submissions and had failed to hear him . In particular , it had failed to take into account that , following his separation from the mother of his children , he had moved to an apartment which he had to renovate . The costs for this renovation had to be deducted from his income when calculating his maintenance obligations . Further , transport costs for reaching his work place , a newspaper publisher , which could during TIME shifts only be reached by taxi , also had to be deducted .

On DATE ORG ( PERSON für Zivil - rechtssachen ) quashed ORG decision and referred the case back to it .

ORG noted that , according to constant case - law , necessary costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations , if CARDINAL parent , upon separation , had left the common apartment and its furniture to the other parent and the children . It appeared from the file that the applicant and the mother of his children had lived together until DATE . The applicant ’s submissions that , subsequently , he had moved to another apartment which he had to renovate , thus , needed to be examined . In this respect ORG ordered ORG to hear the applicant in person and to request him to submit documentary evidence in support of his submissions . Further , it ordered ORG to establish whether the applicant was unable to reach his workplace by public transport and , if so , what extra costs he incurred .

On DATE ORG ordered the applicant to submit the said evidence .

On DATE the applicant handed in documents including , inter alia , the tenancy agreement relating to the apartment at issue . According to the Government he was informally questioned by a court clerk ( GPE ) on that occasion . The applicant submits that no such questioning took place .

On DATE ORG heard the mother of the children and the applicant ’s father as witnesses . According to the Government the latter was heard at the applicant ’s request . The applicant submits that his father was heard at the request of the children ’s mother .

On DATE ORG appointed Mr. PERSON as expert and ordered him to file an opinion as regards the DATE income the applicant could have achieved as of DATE .

On DATE the expert submitted his opinion , whereupon ORG on DATE requested to applicant to make comments , which he submitted on DATE .

On DATE and again on DATE ORG dismissed the applicant ’s applications for a time - limit to be set for ORG decision ( PERSON ) . It noted that , according to the file , ORG had not yet heard the applicant on the question whether he had to acquire and to furnish an apartment following his separation from the mother of the children concerned and as to the costs incurred . ORG also noted the applicant ’s submissions that he had on DATE handed in the required documents and had been heard by a court clerk . However , there were TIME in the file . In any case , such an informal hearing could not serve as a basis for establishing the relevant facts and could , therefore , not substitute a formal hearing . The applicant should in fact have applied for a time - limit to be set for his being summoned to a hearing . As this hearing was necessary for the examination of the case , the matter was not yet ready for decision . Thus , his requests for a time - limit to be set for the taking of a decision could not be granted . In any case , ORG noted that , in view of the duration of the proceedings , ORG was called upon to summon the applicant speedily to a hearing and to give a decision without further delay .

On DATE ORG issued a new decision . It upheld its decision of DATE as regards the applicant ’s maintenance obligations for DATE and further ordered him to pay varying amounts of maintenance for DATE and the first trimester of DATE as well as from DATE . All these amounts exceeded the DATE amount of ORG CARDINAL per child which the applicant had had to pay previously .

ORG noted that it based its findings relating to the applicant ’s actual or potential income on the file , the submissions of the parties and the expert opinion . The children ’s maintenance claims had to be calculated as a certain percentage of the applicant ’s income . It dismissed the applicant ’s submissions that the costs for renovating his apartment had to be deducted from his income . In this respect the ORG relied on the statements of the witnesses heard , namely the children ’s mother and the applicant ’s father , whom it considered to be credible . It noted that , according to them , the apartment in which the applicant was now living , had been transferred to the applicant ’s mother upon her divorce from his father . It had been fully equipped and had not necessitated renovation . Moreover , the applicant had already used this apartment since DATE . As regards his income for DATE , when he had worked at a newspaper publisher , ORG accepted that an amount of ORG DATE had to be deducted as extraordinary transport costs for reaching his workplace .

Finally , ORG , referring to ORG decision of DATE , which had ordered it to hear the applicant and to request further documentary evidence , noted that the applicant had presented himself in court and had , after discussion of the factual and legal issues of the case , handed in the required documents .

On DATE the applicant filed an appeal . He complained in particular that ORG had failed to summon or hear him . Further , he contested , in general terms , the credibility of the witnesses heard by the ORG . He claimed he had lived with the mother of his children until DATE . Following their separation he had moved to his present apartment , which had been in an extremely bad state , not even having the necessary sanitary equipment , and he was thus bound to carry out considerable renovation works .

On DATE ORG , sitting in camera in the absence of the applicant , partly upheld his appeal . It confirmed the applicant ’s maintenance obligations for DATE , but reduced his maintenance obligations for DATE and the first trimester of DATE on the ground that he had been either on sick leave or unemployed during this period and had taken up new employment within a reasonable time . His maintenance obligations , thus , could not be based on the potential income established by the expert , but had to be based on the amount of the social security benefits he actually received . Further , the ORG confirmed the applicant ’s maintenance obligations for DATE , but quashed the decision as regards maintenance from DATE and referred the case back to ORG as the applicant had again become unemployed in DATE .

ORG dismissed the remainder of the applicant ’s appeal . It recalled that costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations , if CARDINAL parent , upon separation , had left the common apartment and its furniture to the other parent and the children . ORG found in particular that , according to the results of the second set of proceedings , the applicant had not acquired his present apartment following his separation from the mother of his children . His father had rented the apartment in DATE , had transferred it to the applicant ’s mother in DATE in the course of divorce proceedings and the latter had assigned her rights to the applicant who had the apartment at his disposal at least as of DATE . Costs for the renovation of an apartment which became periodically necessary were , according to the case - law , not deductible from income for the purpose of calculating maintenance obligations . In the present case , the costs for the renovation of the apartment had not been caused exclusively by the applicant ’s separation from the mother of his children and by his leaving the common household . As the applicant no longer claimed that he had only acquired the apartment subsequently to this separation , it was not necessary to hear him as regards the costs of renovating the apartment at issue . Moreover , he had presented himself at ORG and had submitted documentary evidence . In connection with the other results of the proceedings , this evidence formed a sufficient basis for the decision .

On DATE the applicant filed an appeal on points of law . He complained in particular that ORG had , despite explicit orders of ORG , failed to summon or hear him and that ORG had arbitrarily ignored its earlier decisions when dismissing his appeal .

On DATE ORG ( Oberster Gerichtshof ) rejected the applicant ’s appeal on points of law , finding that it did not raise any important legal issue within the meaning of S. CARDINAL § CARDINAL of the Non LAW ( Ausserstreitgesetz ) .

In further proceedings , the applicant requested on DATE that his maintenance obligations be reduced retroactively as of DATE to ORG CARDINAL DATE per child . Later , he requested further reductions . He invoked again the costs of renovating his apartment , as well as a change in his financial situation . In a first decision of DATE the ORG fixed the applicant ’s maintenance obligations as of DATE . On DATE the ORG changed its decision and reduced the applicant ’s maintenance obligations as fixed by the decisions of DATE and DATE for DATE . The amounts fixed for the different periods varied according to the applicant ’s financial situation . Further , without giving any specific reasons , the court found that an amount of ORG DATE for renovating the applicant ’s apartment had to be deducted from his income when calculating his maintenance obligations . It does not appear from the file whether these proceedings are still pending .


Violation of Art. 3;Violations of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born on DATE and lives in GPE .

On DATE a certain Mr PERSON was arrested on suspicion of membership of the ORG . The following day the applicant was arrested in GPE upon information allegedly given to the police by PERSON PERSON . According to that information , the applicant was a member of the ORG . Following his arrest the applicant was placed in police custody .

The applicant was questioned by police officers on DATE . In a written statement prepared by the police and signed by him , the applicant was quoted as having stated that he was a member of the ORG and that he had had a number of meetings with several of its members , including NORP PERSON . CARDINAL day PERSON had told the applicant that he had asked a certain PERSON to provide financial assistance to the ORG but that PERSON PERSON had refused . PERSON had then asked the applicant to help him set fire to a vehicle owned by PERSON . This they had done TIME with the help of CARDINAL other persons . The applicant also added that had he not been arrested , he would have taken part in further activities on behalf of the ORG .

On DATE PERSON identified PERSON and another person as the persons who had asked him to give money to the ORG . He did not know whether it had been the same QUANTITY persons who had subsequently set fire to his vehicle and shop .

On DATE police officers took the applicant and CARDINAL other persons , including PERSON , to the street where PERSON vehicle had been set on fire .

On DATE the applicant and CARDINAL other persons who had been arrested as part of the same police operation were taken to the GPE branch of ORG , where they were examined by a doctor . According to the medical report drawn up DATE , the applicant ’s body did not bear any signs of ill - treatment .

DATE the applicant was taken to ORG , where he was questioned by a prosecutor and then by a judge who ordered his detention in prison pending the introduction of criminal proceedings against him . In the statement drawn up by the prosecutor the applicant was quoted as having stated that he was a sympathiser but not a member of the ORG . He had set fire to the vehicle together with CARDINAL other persons . In the statement drawn up by the judge , however , the applicant was quoted as having stated that he had set fire to the vehicle on his own .

When questioned by the police , and subsequently by the prosecutor and the judge , the applicant was not represented by a lawyer .

On DATE the prosecutor at ORG filed an indictment with that court , charging the applicant and QUANTITY other persons with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory . According to LAW in force at the time , the punishment stipulated for this offence was the death penalty ( see Relevant Domestic Law and Practice below ) .

A preparatory hearing was held on DATE by ORG ( hereinafter “ the trial court ” ) . CARDINAL of the CARDINAL judges on the bench was an army officer .

At the first hearing , held on DATE , the applicant was present but not represented by a lawyer .

During the second hearing , held on DATE , the applicant was still not represented by a lawyer but was questioned by the trial court . The applicant told the trial court that his childhood friend PERSON had told him DATE that he had been selling newspapers and that CARDINAL of his customers had refused to pay . PERSON had then suggested “ teaching that customer a lesson ” . TIME the applicant and PERSON had arrived outside a big building . Mr PERSON had poured some petrol on the street outside the building from a jerry can and set fire to it . The applicant himself had not set fire to any vehicle and he did not know PERSON .

The applicant also told the trial court that , while detained in police custody , he had been given electric shocks , sprayed with pressurised water and beaten with a truncheon ; the soles of his feet had also been beaten . He had then signed the statements implicating him in the offences with which he was subsequently charged . As regards the statements taken from him by the prosecutor and the judge on DATE , the applicant stated that the prosecutor and the judge had only asked him his date of birth ; he had not made any statements before them . The applicant also denied that the police had taken him to the place where he had allegedly set fire to a vehicle ( see paragraph CARDINAL above ) . The applicant ’s request for release was rejected by the trial court DATE .

During the third hearing held on DATE , a lawyer representing some of the applicant ’s co - accused informed the trial court that she would also be representing the applicant . During the same hearing PERSON also gave evidence as a witness and stated that PERSON had never asked him to give money to the ORG . A vehicle owned by him had been set on fire but he did not think PERSON had done it .

The applicant was subjected to a limited visiting regime in the prison and did not have the opportunity to have open visits with his family .

The applicant did not attend CARDINAL of the subsequent CARDINAL hearings held at DATE intervals . Requests for his release made by his lawyer were all rejected by the trial court . The lawyer argued that there was no evidence against the applicant other than that obtained under ill - treatment .

In the course of the CARDINALth hearing , which was held on DATE in the applicant ’s absence but with the attendance of his lawyer , the prosecutor asked the trial court to try the applicant for the offences of membership of an illegal organisation and causing damage to property , and not for the offence with which he was charged in the indictment ( see paragraph CARDINAL above ) . The trial court rejected the request for the applicant ’s release .

The applicant ’s lawyer did not attend the CARDINALth hearing held on DATE . During the CARDINALth hearing , on DATE , the lawyer argued that , on account of the testimony given to the trial court by Mr PERSON on DATE ( see paragraph CARDINAL above ) , there was no evidence showing that the applicant had committed the offences with which he was charged .

The lawyer did not attend the CARDINALth hearing , held on DATE , because she had other business before ORG . The applicant made his own defence submissions and repeated his allegations of ill - treatment in police custody . He also asked to be released . This request was rejected by the trial court .

On DATE the trial court found the applicant guilty of membership of an illegal organisation and of setting fire to a motor vehicle , and sentenced him to DATE , DATE and CARDINAL days’ imprisonment . The trial court considered that the statements given by the applicant in police custody and the statements given by his co - accused showed that the applicant was a member of the illegal organisation and that he had set fire to the vehicle .

The applicant appealed . On DATE ORG quashed the applicant ’s conviction . The case was remitted to the trial court for a retrial .

On DATE the trial court held a preparatory hearing in the retrial . CARDINAL of the CARDINAL judges on the bench was a military officer .

CARDINAL hearings were held DATE and DATE . The applicant ’s lawyer attended CARDINAL of these hearings , that on DATE , whereas the applicant attended CARDINAL hearings . During the CARDINALth hearing , held on DATE , the military judge was replaced by a civilian judge in accordance with the legislation which had entered into force in the meantime ( cf . Öcalan v. GPE [ ORG ] , no . MONEY , § § DATE , ECHR CARDINAL ) .

On DATE a police chief informed the trial court that , contrary to the allegations , no vehicle belonging to PERSON had been set on fire .

A CARDINALth hearing was held on DATE . The applicant was present but his lawyer was not . During the hearing PERSON gave evidence before the trial court and stated that his vehicle had not been burned . No one had asked him to give money to the ORG . When asked by the trial court to explain the inconsistencies between the statement he had made to the police on DATE ( see paragraph CARDINAL above ) and his testimony , PERSON stated that he had not told any such things to the police ; he had had to sign whatever was written in the statement drafted by the police officers .

During the same hearing the applicant reiterated that he did not know Mr PERSON and had not set fire to any vehicle . He pointed out that he had been arrested at DATE with no evidence against him , and asked to be released . This request was rejected by the trial court .

The applicant but not his lawyer attended the CARDINALth hearing , held on DATE .

In the course of the CARDINALth hearing , held on DATE in the absence of the applicant ’s lawyer , the trial court was presented with a letter drafted by the applicant ’s cell - mates . The letter states that “ [ the applicant ] has serious psychiatric problems . His treatment is being overseen by a psychiatric hospital in GPE . He is unable to live without the assistance of others and his health is deteriorating . As such , he is unable to attend the hearings and he refused to attend DATE ’s hearing . We felt the need to send you this letter because we have found out that his lawyer has not been attending the hearings ” .

According to a medical report prepared by the prison doctor on DATE which was appended to the cell - mates’ letter , the applicant had been taken to a psychiatric hospital on DATE and returned to the prison on DATE .

The applicant ’s mother also attended this hearing and informed the trial court of the applicant ’s serious psychiatric problems . She asked for the applicant to be released from the prison . During the same hearing the prosecutor asked the trial court to acquit the applicant of the charge of arson ( LAW ) but to convict him of the offence of membership of an illegal organisation ( LAW ) .

Nevertheless , the trial court ordered the applicant ’s continued detention in prison and referred him to a psychiatric hospital with a view to establishing whether he had the necessary criminal capacity ( doli capax ) at the time of the alleged commission of the offence .

On DATE the prison doctor reported on the problems which the applicant had been suffering in prison . According to this report , the applicant had attempted suicide in DATE by taking an overdose . In DATE he had set himself on fire and suffered extensive and serious burns . He had spent DATE in hospital where he was treated for his injuries . During that time in hospital he had also received medication for depression . Following his return to the prison his treatment for the burns had continued for DATE . His body still bore burn marks .

On DATE the applicant ’s psychological health had deteriorated and he was taken to hospital , where he stayed for DATE . His health had deteriorated even further following his return from the hospital and he was now refusing to speak to anyone .

The prison doctor concluded in his report that the situation in the prison was not compatible with the applicant ’s treatment . The applicant needed to spend a considerable time in a specialised hospital .

During DATE hearing , held on DATE , PERSON , CARDINAL of the applicant ’s legal representatives named above ( see paragraph CARDINAL ) , submitted a power of attorney to the trial court and informed that court that she was taking over the applicant ’s representation . Ms ORG argued in her written observations submitted to the trial court DATE that the applicant had only been DATE at the time of his arrest . GPE was a ORG to ORG on the Rights of the Child . Article CARDINAL CARDINAL of that Convention recommended that the GPE Parties establish procedures and institutions specifically for children charged with criminal offences . Indeed , juvenile courts existed in GPE . However , the applicant had been charged with an offence falling within the jurisdiction of ORG and , as such , the domestic law prevented him from being tried by a juvenile court . Had the applicant been tried before a juvenile court , he would not have been kept in police custody for DATE , a lawyer would have been appointed to represent him and his case would have been concluded within a short time .

NORP The lawyer added that the ill - treatment to which the applicant had been subjected in police custody , coupled with his long detention in prison , had been too much to bear for a child of his age . He had attempted to take his own life on CARDINAL occasions . He was still suffering from serious psychiatric problems and he found it difficult to attend the hearings . The lawyer asked for the applicant to be released so that he could receive medical treatment .

The lawyer also informed the trial court that the applicant had not been taken to the hospital despite the court order of DATE ( see paragraph CARDINAL above ) . The same day the trial court ordered the applicant ’s release from prison on bail .

The applicant attended the CARDINALth hearing , held on DATE and informed the trial court that , although he had gone to the hospital for a medical examination , the hospital authorities had refused to examine him as he had no official letter of referral . The trial court issued a new order of referral .

The applicant was examined at a psychiatric hospital on DATE . According to the report pertaining to that examination , other than the CARDINAL instances referred to above ( see paragraph CARDINAL ) , the applicant had made another attempt to kill himself , by slashing his wrists , in DATE . The extensive burn marks on his arms and body were still visible . His psychological complaints had started during his detention in prison and had worsened in the course of the time he spent there . DATE and DATE he had been treated in hospital for “ major depression ” . His psychological problems were now in remission . It was concluded in the report that the applicant had not been suffering psychological problems at the time of the commission of the offence and that his current mental state did not affect his criminal responsibility .

In its CARDINALth hearing , held on DATE , the trial court acquitted the applicant of the arson charge but found him guilty of membership of an illegal organisation and sentenced him to DATE and CARDINAL months’ imprisonment . The trial court stated that the statements made by the applicant in police custody , and then before the prosecutor and the judge at the end of his police custody , had been decisive in reaching the conclusion that he was a member of the illegal organisation . In those statements the applicant had described the “ various activities ” in which he had been involved . The trial court also concluded that the applicant had been involved in the printing and distribution of illegal leaflets .

The applicant appealed . On DATE the prosecutor at ORG submitted his written observations to that court and asked for the applicant ’s conviction to be upheld . These observations were not communicated to the applicant or to his lawyer .

In her detailed appeal submissions the applicant ’s lawyer pointed out that the only evidence put forward by the prosecution in support of the allegation that her client was a member of the illegal organisation had been the allegation concerning the burning of a vehicle . As established by the trial court , however , no such incident had occurred and the owner of the vehicle had made no such complaint . There was no place in the NORP legal system for abstract concepts such as “ various activities ” ( see paragraph CARDINAL above ) . For any activity to be relied on in evidence , it should have been set out clearly and supported with adequate evidence . Furthermore , the trial court ’s judgment was silent as to why and how it was concluded that the applicant had been involved in the printing and distribution of the illegal organisation ’s leaflets . The lawyer also reiterated her arguments concerning the applicant ’s age and her references to LAW on the Rights of the Child ( see paragraph CARDINAL above ) .

On DATE ORG upheld the applicant ’s conviction .

According to the information provided to the ORG by the applicant ’s lawyer , in DATE the applicant left GPE for GPE , where he was subsequently granted refugee status .

Article CARDINAL of LAW as it stood at the material time provided that :

“ Anyone committing an act designed to subject the ORG or a part of the ORG to the domination of a foreign ORG , to diminish its independence or to impair its unity , or which is designed to remove from the administration of the ORG a part of the territory under its control shall be liable to the death penalty . ”

“ Any person who , with the intention of committing the offences defined in sections CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL or CARDINAL , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than DATE years’ imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”

Article CARDINAL of the Criminal Code provided :

“ Any person who destroys , demolishes , spoils or damages property owned by another person shall , upon the complaint of the aggrieved person , be sentenced to not less than one and not more than three years’ imprisonment ... ”

According to paragraph DATE , if the offence in question was carried out using inflammable or explosive material and if the property in question was a motor vehicle , the sentence to be imposed varied DATE .

At the material time LAW no . CARDINAL of DATE , amending the legislation on criminal procedure , provided that , with regard to offences within the jurisdiction of ORG , any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE .

Article CARDINAL of the Code of Criminal Procedure as it stood at the material time stipulated that , from the time of their arrest , persons under the age of CARDINAL should be given the assistance of an officially assigned legal representative without having to ask for it . According to LAW no . PERSON , however , LAW was not applicable to persons accused of offences within the jurisdiction of ORG .

According to LAW ( Law No . CARDINAL of DATE ; repealed and replaced by Law No . DATE of DATE on ORG ) , only juvenile courts had the power to try persons under DATE . According to the last paragraph of that LAW , however , even children under the age of CARDINAL charged with offences falling within the jurisdiction of ORG were to be tried before those courts rather than before juvenile courts .

DATE of Law No . CARDINAL also stipulated that minors could only be detained on remand in prisons specially designed for them . In places where no such prisons existed , minors were to be kept in a part of a normal prison separate from where adults were detained . For the purposes of this PERSON the term “ minor ” means persons who were DATE at the time when the offence was committed .

Article CARDINAL ( b ) of ORG ( dated DATE ) stipulated that detainees under the age of CARDINAL were to be kept separately from other detainees . Under LAW , detainees had the possibility to “ inform prison governors , prosecutors and ORG of their complaints and requests ” .

Pursuant to the PERSON on the Protection of the Child , which on DATE replaced the above - mentioned PERSON on the Establishment , Duties and Procedures of ORG , persons DATE can only be tried before juvenile courts . However , if the prosecuting authorities allege that the offence with which the juvenile is charged was committed jointly with adults , the juvenile may be tried before the ordinary criminal courts together with those adults .

The United Nations Convention on the Rights of the Child DATE ( hereafter , “ the FAC ” ) , adopted by ORG of ORG on DATE , has binding force under international law on GPE , including all of the member ORG .

LAW states :

“ For the purposes of the present Convention , a child means every human being below DATE unless , under the law applicable to the child , majority is attained earlier . ”

Article PERSON ) states :

“ In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration . ”

Article CARDINAL(a ) and ( b ) provides :

“ GPE Parties shall ensure that :

( a ) No child shall be subjected to torture or other cruel , inhuman or degrading treatment or punishment . Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons DATE .

( b ) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest , detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time

( c ) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person , and in a manner which takes into account the needs of persons of his or her age . In particular , every child deprived of liberty shall be separated from adults unless it is considered in the child ’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits , save in exceptional circumstances ;

( d ) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance , as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent , independent and impartial authority , and to a prompt decision on any such action . ”

Article CARDINAL provides as relevant :

“ CARDINAL . DATE States Parties recognise the right of every child alleged as , accused of , or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’s sense of dignity and worth , which reinforces the child ’s respect for the human rights and fundamental freedoms of others and which takes into account the child ’s age and the desirability of promoting the reintegration and the child ’s assuming a constructive role in society .

To this end ... the GPE Parties shall , in particular , ensure that :

( b ) Every child alleged as or accused of having infringed the penal law has at least the following guarantees :

( ii ) To be informed promptly and directly of the charges against him or her , and , if appropriate , through his or her parents or legal guardians , and to have legal or other appropriate assistance in the preparation and presentation of his or her defence ;

( iii ) To have the matter determined without delay by a competent , independent and impartial authority or judicial body in a fair hearing according to law , in the presence of legal or other appropriate assistance and , unless it is considered not to be in the best interest of the child , in particular , taking into account his or her age or situation , his or her parents or legal guardians ;

( iv ) Not to be compelled to give testimony or to confess guilt ; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality ;

( vii . ) To have his or her privacy fully respected at all stages of the proceedings .

The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child : GPE ( CARDINAL/CARDINAL/CARDINAL(CRC / C/CARDINAL/Add.CARDINAL . ) ) provides as follows :

“ CARDINAL . ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern . The ORG is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country . Concern is also expressed at the long periods of pre - trial detention and the poor conditions of imprisonment and at the fact that insufficient education , rehabilitation and reintegration programmes are provided during the detention period .

The ORG recommends that the ORG party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the LAW , in particular articles CARDINAL , DATE and DATE , as well as with other relevant international standards in this area , such as ORG for ORG ( the Beijing Rules ) and LAW for ORG ( ORG ) , with a view to raising the minimum legal age for criminal responsibility , extending the protection guaranteed by ORG to all children up to DATE and enforcing this law effectively by establishing juvenile courts in every province . In particular , it reminds ORG that juvenile offenders should be dealt with without delay , in order to avoid periods of incommunicado detention , and that pre - trial detention should be used only as a measure of last resort , should be as short as possible and should be no longer than the period prescribed by law . Alternative measures to pre - trial detention should be used whenever possible . ”

The recommendation of ORG on social reactions to juvenile delinquency ( no . R ( CARDINAL ) , adopted on CARDINAL DATE at the CARDINALth meeting of ORG , insofar as relevant , reads as follows :

“ Recommends the governments of member states to review , if necessary , their legislation and practice with a view : ...

NORP to exclude the remand in custody of minors , apart from exceptional cases of very serious offences committed by older minors ; in these cases , restricting the length of remand in custody and keeping minors apart from adults ; arranging for decisions of this type to be , in principle , ordered after consultation with a welfare department on alternative proposals ... ”

DATE of the European Social Charter DATE regulates the right of mothers and children to social and economic protection . In that context , ORG noted in its Conclusions XVII-CARDINAL ( DATE , GPE ) that the length of pre - trial detention of young offenders was long and the conditions of imprisonment poor .

In the report pertaining to its visits carried out in GPE DATE , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) expressed its serious misgivings “ as regards the policy of having juveniles ( i.e. DATE ) who are remanded in custody placed in adult prisons ” ( ORG ) CARDINAL EN , publication date : CARDINAL DATE ) .

In its report prepared in respect of its visits conducted in GPE DATE ( ORG ( DATE ) CARDINAL ) , the ORG stated the following :

“ [ ORG the reports on its visits in DATE and DATE , the ORG has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults . A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate . The facts found in the course of the DATE visit have only strengthened those misgivings . Here again , the laudable provisions of ORG circular of DATE ( “ the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes , aptitude intensive games and sports activities ” ) have apparently had little practical impact . ”

According to ORG , the juvenile justice system is still in its infancy in GPE in DATE . Judges were learning about child - sensitive detention centres , alternative dispute resolution and due process for children in conflict with the law .


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

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

Under the terms of a tenancy commencing from DATE , the applicant lived in a house owned by his son . The latter lived in GPE , and the property was managed by his mother , the applicant 's estranged wife , under a power of attorney granted to her by the son .

In DATE the applicant submitted a claim for housing benefit to the local authority , which was refused as follows :

“ I regret to inform you that I can not award Housing Benefit because , in my opinion , you do not have a true liability to pay rent . Regulation CARDINAL [ see below ] ... covers this matter . The basis on which I have made this decision is as follows :

i. You have been unable to provide a rent book or written statement of your current rent arrears .

ii . There is no indication that your landlord has taken any formal action to recover the property due to non - payment of rent . It is unusual for a landlord to allow rent arrears to accrue for this length of time without taking action .

iii . You appear to have lived ' rent free ' in the property DATE , when your tenancy commenced .

Moreover , even if a liability to pay rent did exist it could be argued that your situation as a tenant has been created primarily in order to obtain ORG Regulation CARDINAL ( CARDINAL ) ... covers this matter . ”

The applicant appealed to an adjudicator who refused the appeal , holding , in accordance with LAW of ORG , LAW DATE ( “ section CARDINAL ” : see below ) , that the applicant was not legally required to pay rent . The applicant appealed to ORG ( “ HBRB ” ) . The ORG heard evidence from the applicant and his estranged wife and dismissed the appeal on DATE , holding under LAW that the applicant 's liability to pay rent had been created to take advantage of the housing benefit scheme .

The applicant , acting as a litigant in person , applied for leave to seek judicial review of this decision , and was initially refused . He appealed to ORG , which held that it was arguable that the ORG had failed properly to apply the burden of proof in favour of the applicant . ORG therefore granted leave to apply for judicial review .

On DATE Mr Justice PERSON in the High Court quashed the ORG 's decision and remitted it to the ORG for re - determination . He held that , although the ORG had purported to be acting under LAW , the reasons given in support of the decision suggested that the ORG believed that the applicant was not under a liability to pay rent . Moreover , the reasoning of its decision appeared , wrongly , to place the burden of proof on the applicant . He also commented that the ORG had not adequately considered certain evidence which supported “ ... a reasonably cogent case in favour of the existence of a genuine tenancy , ie a true or genuine liability to pay rent ” .

On DATE , after a hearing on DATE at which the applicant had refused to present his case , the ORG again rejected the applicant 's claim for housing benefit , finding under LAW that “ there was ample evidence that the purported rental agreement did not establish a genuine liability to pay rent ” .

The applicant sought judicial review . He contended that the ORG was under an obligation to follow the comment in PERSON Justice PERSON 's judgment that he had a “ reasonably cogent case ” , and thus grant his claim for housing benefit . He was granted leave on DATE , on the ground that the ORG 's decision did not set out the evidence on which it had based its finding that the applicant was under no legal obligation to pay rent .

On DATE HBRBs ceased to exist and were replaced by new statutory Appeal Tribunals , which had no councillor members ( see statement of domestic law below ) .

On DATE the local authority applied to ORG for a stay of the judicial review proceedings . The ORG had withdrawn its decision of CARDINAL DATE and had offered to pay the applicant 's reasonable costs and rehear and re - determine his claim for housing benefit . The applicant opposed the stay because he believed that the ORG should undertake to grant his application for housing benefit .

On DATE Mr Justice PERSON ordered the stay because there was no purpose in continuing the proceedings : the local authority had already offered everything the applicant could have hoped to achieve through judicial review . He explained that , under LANGUAGE law , a court on an application for judicial review of a decision by a body such as the ORG could only quash the ORG 's decision , if wrong in law , but could not substitute its own decision as to whether housing benefit should be granted . Even if Mr Justice PERSON 's judgment could be interpreted as finding that the applicant was under a genuine obligation to pay rent , ORG had no power to make such a finding , but could only remit the case to the ORG for a fresh determination .

The applicant appealed to ORG . His appeal was refused on DATE , on the ground , inter alia , that :

“ ... [ the applicant ] misreads Mr Justice PERSON 's judgment and indeed , as I think , partly misunderstands the nature of judicial review proceedings . Judicial review proceedings - at least these judicial review proceedings - are concerned with the decision - making process and not with the actual decision made . In the circumstances of housing benefit , ORG has set up a structure for determining whether it should be paid and to whom , and that structure does not involve decisions by the court . The court is concerned to review the process and the reasoning , but not to make the decision ... . ”

On DATE ORG refused the applicant leave to appeal to ORG .

The local authority then referred the applicant 's claim to the new statutory Appeal Tribunal ( see paragraphs CARDINAL and CARDINAL of the statement of Domestic Law , below ) , without , however , first informing the applicant or seeking his consent . The case was listed for hearing on DATE , but in a letter dated DATE the applicant withdrew the appeal .

Housing benefit is payable to people on low incomes by the local authority . By CARDINAL of ORG , LAW DATE ,

“ ( CARDINAL ) A person is entitled to housing benefit if :

( a ) he is liable to make payments in respect of a dwelling in ORG which he occupies as his home ... ”

Regulation CARDINAL of ORG ( General ) Regulations DATE provides :

“ ( CARDINAL ) The following persons shall be treated as if they were not liable to make payments in respect of a dwelling :

( a ) a person who resides with the person to whom he is liable to make payments in respect of the dwelling ... ;

( b ) a person whose liability to make payments in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme except someone who was , for any period within DATE prior to the creation of the agreement ORG giving rise to the liability to make such payments , otherwise liable to make payments of rent in respect of the same dwelling . ”

At the relevant time , a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department . If the benefit was refused the claimant was entitled to a review of the decision , first by the local authority itself , then by a ORG , which comprised CARDINAL elected councillors from the local authority .

After the coming into force of LAW CARDINAL , the compatibility of HBRBs with LAW became open to challenge in the domestic courts . In PERSON ( NORP on the application of ) v. ORG [ DATE ] EWHC Admin CARDINAL , the Secretary of ORG conceded that the ORG lacked the appearance of an independent and impartial tribunal . The determination of the central issues of fact in the case depended on an assessment by ORG as to whether the claimant was telling the truth . ORG found that judicial review proceedings were insufficient to remedy the problem , since ORG could not “ cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it [ had ] no jurisdiction to reach its own conclusion on the primary facts ; still less any power to weigh the evidence ” .

On DATE HBRBs ceased to exist . They were replaced by a new system in which determinations of the kind previously made by HBRBs are now made by a new statutory Appeal ORG . Members of such Appeal Tribunals do not include councillors .

Under the transitional provisions contained in Regulation CARDINAL(CARDINAL ) of ORG ) ( Transitional and Savings ) Regulations DATE , any decision which would fall to be made by a ORG but for the coming into force of the new system should be made by ORG . In the PERSON case , which involved a decision by the ORG before the new system became operative , the relief granted was the quashing of the ORG 's decision and an order remitting the case to an ORG under the transitional regulations .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person;Security of person);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The first applicant , Mr Turko PERSON , is a NORP national who was born in DATE . His application was brought on his own behalf and on behalf of his close relatives : his father Mr Saidalvi Saidsalimovich Luliuyev , born in DATE ( the second applicant ) ; the first applicant 's brothers , PERSON , born in DATE , and Mr ORG , born in DATE , and his sister PERSON , born in DATE ( the third to fifth applicants ) ; PERSON parents , PERSON and Mr PERSON ( the sixth and the seventh applicants ) ; and her brothers , PERSON , PERSON . PERSON and Mr S.S.G. ( the eighth to tenth applicants ) , who requested that their names should not be disclosed . The applicants live in GPE , GPE .

PERSON , born in DATE , lived together with the second applicant and their children ( the first , the third , the fourth and the fifth applicants ) in PERSON . She worked as a nurse and a kindergarten teacher ; at the time of her abduction she also traded fruit at the local market . The second applicant worked in the law - enforcement bodies and subsequently as a judge ; in DATE he became the chairman of a district court in GPE . He has since ceased to work in the judiciary .

The facts surrounding the abduction and killing of the applicants ' relative , PERSON , as submitted by the parties , are set out in LAW and CARDINAL below . A description of the materials submitted to ORG is contained in Part B.

On DATE PERSON , along with her CARDINAL cousins , PERSON and PERSON , went to the market place at FAC in the northern part of ORG .

DATE TIME an armoured personnel carrier ( ORG ) appeared at the market . It was accompanied by CARDINAL other vehicles , an LOC truck and an ORG all - terrain vehicle . A group of servicemen , wearing camouflage uniforms and masks and armed with machine guns , disembarked from the vehicles . The servicemen detained several persons , mostly women , put sacks over their heads and loaded them into the ORG . PERSON and her CARDINAL cousins were among those detained .

Someone apparently called the police from LOC of the Interior ( PERSON ) , which was situated QUANTITY from the scene . When the police appeared and tried to interfere , the military started shooting in the air with a machine gun , and then drove away . The deputy chief of the district administration was also present at the scene and he attempted to question the servicemen about their official affiliation and their mission at the market , but he was told only that they were “ lawfully carrying out a special operation ” . Having received this explanation the officials left the site .

Later in the afternoon the second applicant learned from neighbours about PERSON arrest . At TIME he went to the market place and then to PERSON , which had already been notified of the incident . It was also known that , in addition to PERSON and her cousins , CARDINAL other person , Mr PERSON , was detained on DATE .

From DATE the applicants , primarily the second applicant , searched for PERSON and her cousins until their bodies were found in DATE ( see LAW below ) . On numerous occasions the second applicant applied to various authorities , requesting information about their whereabouts . In particular , he contacted the prosecutors at various levels , ORG ( ORG ) , various departments of ORG , ORG and the NORP President 's ORG in GPE . The family members also petitioned the authorities , the media and public figures ; they personally visited detention centres and prisons in GPE and further afield in the northern GPE .

These attempts yielded little result . The official bodies could not clarify the circumstances of PERSON disappearance . Occasionally they would forward the applicants ' requests to ORG or to ORG .

On DATE the second applicant was called for an interview at ORG . He was asked to elaborate on the circumstances of his wife 's disappearance , with regard to which he had requested an investigation .

On DATE ORG forwarded the applicant 's complaint and the transcript of his interview to ORG , with a request to make official enquiries and verify whether any ORG authority had taken PERSON and her relatives into custody .

On DATE the ORG instituted criminal proceedings under LAW part QUANTITY of LAW kidnapping . Investigation case file no . DATE was opened . The applicants ' family was informed accordingly on DATE . DATE the case was adjourned , but the applicants were not informed of this and only found out about the adjournment later . None of the family members was questioned during DATE .

On DATE the Chief of the Leninskiy VOVD informed the acting head of ORG for GPE that PERSON , PERSON and PERSON were not listed among the detained persons in LOC . On DATE the military commander of LOC of PERSON informed ORG for GPE that the said persons had not been detained by the district military commander 's office .

On DATE the applicants were informed by ORG of the ORG that PERSON and her relatives PERSON and PERSON had not been detained on DATE by law - enforcement bodies , including the ORG and forces from ORG . No information was available about them .

On DATE the second applicant applied to ORG . He complained about the decision to adjourn the investigation and raised , inter alia , the following points : he had not been granted victim status and had not been formally questioned , no attempts had been made to establish the whereabouts of the missing persons and no other investigative actions had taken place . He referred to certain witness statements identifying the hull number of the ORG in which the women had been taken away ( allegedly CARDINAL ) and requested that the location of the vehicle in question be established . He made a number of other requests , in particular to give testimony as a witness and to have the husbands of the CARDINAL other missing women questioned , and to ask the ORG and ORG about “ special operations ” carried out in PERSON on DATE . In reply , ORG informed the applicants that the decision to adjourn the investigation had been quashed and the case had been forwarded to ORG for further investigation .

On DATE ORG stated in reply to the second applicant 's complaint that the criminal investigation into the kidnapping of PERSON and her cousins had been taken under the special control of the ORG . The letter further stated that “ specific measures had been undertaken to intensify the investigation and to solve the circumstances of the crime . ”

On DATE the second applicant was granted victim status in the criminal proceedings concerning the kidnapping of PERSON ( case no . DATE ) .

On DATE ORG sent a progress report in several cases to the NORP President 's ORG in GPE . Case no . DATE concerning the “ kidnapping in PERSON at FAC of N. Luluyeva , PERSON , PERSON and PERSON ” was mentioned as being investigated by ORG under the “ special control ” of ORG .

On an unspecified date in DATE the Deputy Head of ORG sent a letter to ORG of GPE . He related the disappearance of PERSON and other women , stating that they had been detained by unidentified servicemen from the federal forces . He further alleged that the investigation by the local prosecutors had proved ineffective and therefore requested that the case be transferred to ORG for investigation .

On DATE ORG informed the second applicant that additional questions had been put to the witnesses and enquiries about the missing persons had been sent to all departments of the ORG in GPE , to the ORG , to the military prosecutor of military unit no . DATE , and to the military commander of ORG . It was also mentioned that the possible involvement of “ certain detachments of the power structures ” ( “ силовых структур ” ) in the kidnapping of the women was being investigated .

On DATE the ORG office informed the second applicant that the investigation into the kidnapping of PERSON had been adjourned under LAW of LAW ( ORG ) for failure to identify the culprits .

On DATE news came through that a mass grave had been uncovered in “ PERSON , an abandoned holiday village on the outskirts of PERSON , less then QUANTITY from GPE , the headquarters of the NORP military forces in GPE . CARDINAL bodies , dumped in the village , had been collected and transferred to a temporary location in ORG belonging to ORG ( Emercom ) .

On DATE a forensic examination was performed on the bodies .

On DATE PERSON brother and CARDINAL other relatives went to the Emercom premises and identified the QUANTITY bodies as those of PERSON , PERSON and PERSON . As the bodies were in an advanced stage of decomposition they could only be identified by their earrings and clothes . A relative who saw the QUANTITY women on DATE confirmed that the clothes and the earrings were the same as those worn by the deceased on DATE . The relatives who took part in the identification also noted that the individuals had been blindfolded .

On DATE , adhering to the religious custom that bodies be buried as soon as possible , the relatives sought permission to transfer the bodies for burial to the village of GPE , situated QUANTITY from ORG . On DATE the ORG issued a note permitting the transportation of the bodies of PERSON , born in DATE , PERSON , born in DATE and PERSON , born in DATE , from ORG to the villages of PERSON and ORG , LOC , for burial .

The burial took place on DATE in DATE . The applicants and other members of the family came to PERSON and took part in the funeral , but none of them saw the bodies .

The discovery of the mass grave was reported in the media and became a subject of CARDINAL special reports by the human rights NGOs PERSON ( DATE ) and ORG ( DATE ) . Both NGO reports stated that , of the identified bodies in the mass grave , CARDINAL or DATE belonged to persons previously detained by the NORP forces , and specifically mentioned the case of PERSON . The latter report also stated that the remaining bodies DATE over DATE had been buried on DATE without any further announcements , thus preventing their further identification and examination .

On DATE ORG informed the applicants that further investigation of case no . DATE would be conducted by that ORG . It informed the applicants that the investigation was seeking to identify the culprits and that any further information would be communicated to them in due course .

On DATE the civil registration office of ORG issued death certificate no . CARDINAL for PERSON , born in DATE . The date and place of death were recorded DATE , GPE .

On DATE ORG of ORG issued a medical death certificate in respect of PERSON , born in DATE . It recorded the date and place of death DATE , PERSON , PERSON . With reference to a forensic examination , it indicated that the death had resulted from homicide and was caused by a gunshot wound to the head . The circumstances of the death were described as the “ period of hostilities ” .

On DATE a forensic report was drawn up following an examination on DATE . It established that PERSON death had been caused by a multiple comminuted skull fracture , the exact origin of which could not be identified , but which was inflicted by a blunt solid object applied with strong impact . It stated that the death had occurred DATE before the discovery of the corpse .

On DATE the head of the village administration of PERSON issued a certificate confirming that on DATE PERSON body was buried in the village cemetery , with all costs borne by the applicants ' family .

On DATE ORG interviewed ORG , PERSON , about progress in the investigation of crimes committed in GPE by the federal troops . The Prosecutor stated that the circumstances of the deaths of QUANTITY persons whose bodies had been discovered in DATE on the outskirts of ORG were still being investigated , and that CARDINAL bodies had been identified by their relatives and buried . He further pointed out that “ there were no eyewitness reports that federal troops were responsible for the murders ” and therefore the main probability being explored by the investigation was that the mass burial had been organised by rebel fighters .

On DATE ORG , in reply to a request by the applicants ' legal counsel , PERSON , for an update on file no . DATE , wrote that “ a number of actions were being undertaken by the investigative authorities to identify [ the murderers ] ” .

In DATE the first applicant complained to ORG . He indicated that the ongoing investigation would not be effective so long as it sought to prove that the abduction and murder had not been committed by military servicemen . He recalled that the persons who had abducted PERSON and other women had been driving an ORG – a vehicle which only the military could have possessed – and that the hull number of the ORG had been noted . He further stated that the body had been discovered within the security zone of the LOC military base , which was under the strict control of the military authorities . Finally , he complained that the families had not received any substantive information about the investigation .

On DATE the PERSON requested ORG to grant victim status in the proceedings to the first applicant and to provide an update on the investigation .

On DATE ORG informed the first applicant that proceedings in criminal investigation no . DATE had been resumed and that he would be informed of further developments .

On DATE investigation of the criminal case was again adjourned due to a failure to identify the culprits .

On DATE the Deputy Prosecutor of the Chechen Republic quashed this decision and forwarded the case for further investigation .

In DATE the investigation into PERSON death was adjourned and resumed CARDINAL times . Every time it was resumed the supervising prosecutors gave detailed orders to the investigators as to what measures were to be taken . In particular , the instructions of DATE required that a special commission be set up to investigate the case and ascertain whether any military officials had been involved in the crime ; that officers earlier involved in the investigation be questioned and that several other witnesses , including women street cleaners , be questioned . The instructions of CARDINAL DATE contain further orders , such as to find out to which military detachment the ORG hull number CARDINAL belonged , but it also ordered that the instructions of DATE be carried out .

During that period several witnesses were questioned , including the applicants and the investigator PERSON who was originally in charge of investigating case no . DATE . It was established that on DATE of PERSON detention the Sofrino interior security troops of ORG had been carrying out a special operation at FAC , PERSON . It was also established that the hull number of the ORG in which PERSON and her relatives had been taken away was CARDINAL . However , in reply to the official request , the PERSON interior security troops denied that there was an ORG with this hull number at their disposal . The enquiry to the military prosecutor 's office as to which military detachment had operated ORG no . CARDINAL did not yield any result . Likewise , the ORG driver and the ORG officer originally involved in the investigation could not be identified .

At present the investigation continues . It has not yet identified the persons or the military detachment responsible for the abduction and murder of PERSON and others , and no one has been charged with the crimes .

In order to be able to assess the merits of the applicants ' complaints and in view of the nature of the allegations , the ORG requested the ORG to submit a copy of the complete criminal investigation file in the present case . Before the case was declared admissible the ORG submitted CARDINAL documents out of CARDINAL , having refused to provide the rest on the grounds of confidentiality .

After the case was declared admissible the ORG did not repeat the request for the entire investigation file but demanded specifically the documents concerning the adjournment and resumption of the investigation , the supervising prosecutors ' orders and the examination of PERSON body . The Government were also asked about the progress of the investigation and were invited to submit any relevant documents . They were also asked to identify the military unit which was present in FAC , PERSON , on TIME CARDINAL June CARDINAL , to give the names and ranks of its crew members and to identify the ORG which was present . In reply , the Government submitted the specified documents and provided the investigation progress report prepared by ORG , which contained a summary of the investigative steps taken in DATE .

The documents submitted by the ORG can be summarised as follows :

On DATE a prosecutor from ORG opened criminal investigation file no . DATE into the abduction on DATE at TIME of PERSON and other persons by unidentified armed men , dressed in camouflage and driving an ORG without hull numbers . His report further stated that , according to eye - witnesses , officers from the nearby Leninskiy VOVD arrived at the scene and attempted to interfere , but were shot at by the armed men . Requests for information , forwarded to the local bodies of the interior , the ORG and the military commanders ' offices , had proved ineffective .

On DATE an investigator from the Leninskiy VOVD examined the site at FAC where PERSON and other women had been detained . The investigators did not find anything noteworthy .

In DATE an investigator from ORG questioned PERSON husband , the second applicant , as a victim in the criminal case . The second applicant stated that early on TIME CARDINAL DATE PERSON , together with her CARDINAL cousins , PERSON and PERSON , went to the GPE market in PERSON to sell cherries . At TIME on DATE another relative , ORG , who had travelled with PERSON , came to his house and told him that in the TIME , while selling cherries , she saw an ORG in the market and noted that PERSON and other women were forced inside by armed men dressed in camouflage and wearing masks . According to ORG , other people tried to intervene , but the armed men shouted in NORP that they were conducting a special operation and shot above their heads with submachine - guns . Servicemen from NORP then arrived , but they were also shot at with a machine gun . Someone from the PERSON asked them who they were and one of the masked men showed him an identity card . ORG further told him that servicemen from the ORG also arrived , but they were not allowed to approach . Another person in civilian clothes arrived and showed his identity card to one of the armed persons . They exchanged a few words and the man walked away . The ORG with the detainees left . ORG had immediately returned to ORG to tell the second applicant about his wife 's detention .

The second applicant further explained that he had immediately gone to PERSON to establish his wife 's whereabouts . He had personally visited all the district departments of the interior in PERSON , the ORG office and the military commander 's office , but no authority acknowledged his wife 's detention . Some servicemen who were at that time serving in LOC on mission from the PERSON region were his acquaintances since he had previously worked in the police force in that region , and in DATE the head of the criminal police informed him that the hull number of the ORG which had driven away his wife was CARDINAL . The policemen from the PERSON assured him that they were doing everything possible to find his wife .

In the period from DATE investigators from ORG questioned several eye - witnesses to the events of DATE and relatives of other persons who had been detained and “ disappeared ” on DATE . The total number of persons detained is not apparent from the documents submitted , but it must be CARDINAL .

Witness B. , an employee of the district administration , stated in DATE that at DATE TIME on DATE he was walking past the NORP VOVD building and heard shooting nearby . Then he saw policemen running from the NORP building towards the noise . QUANTITY away he noted a group of men wearing camouflage uniforms and balaclava masks , armed with sub - machine guns and portable grenade - launchers . The policemen from the VOVD , also armed with machine - guns , were standing across from them . The witness approached the armed men and produced his identity card ; one of the masked men , the senior member of the group , told him that they were conducting a special operation and would call later at the LOC district military commander 's office to explain . They did not have any signs or markings on their camouflage and did not introduce or identify themselves . The witness noted an ORG standing nearby , but could not identify it .

The family of PERSON , who had been detained with PERSON , was questioned in DATE and again in DATE about the circumstances of his detention . His daughter testified that at TIME on DATE a friend 's wife came in and asked her father to help her find her husband . Her father left with that woman and had not been seen since . At TIME she went outside to get water and saw a group of servicemen wearing masks and a group of people who were shouting something about them driving away women . Then a group of policemen arrived and the servicemen shot in the air . The military left in an ORG ; the witness did not notice any men in civilian clothes on the hull or any numbers . She recalled that someone told her that the servicemen had been waiting in the courtyard of a nearby house since TIME on TIME . PERSON wife testified on CARDINAL occasions in DATE that she had been contacted by persons who did not tell her their names out of fear for their lives , and who told her that her husband had been detained in a ground pit at the GPE military base . CARDINAL man told her that he had been detained alongside her husband and saw him badly beaten . It was allegedly her husband who had asked the man to contact his family .

PERSON , questioned in DATE , testified that on DATE she witnessed how PERSON and CARDINAL women were arrested in an ambush operation in her friends ' flat in FAC . The leader of the operation group questioned the witness but she was then released . He also told her that he was from the ORG and that they were looking for the owner of the flat because “ some of their guys had been killed there ” . She described the leader of the operation group as a NORP male , and said that the men in the group were armed with sub - machine guns and wore unmarked camouflage .

PERSON . stated in DATE that she had learnt from her sister 's husband that in DATE her sister , PERSON . , had been detained by servicemen at the market in ORG , along with other women who were trading there , and that there had been no news of them since . The family continued to search for ORG everywhere , but without any results . On DATE . was granted victim status in the proceedings concerning her sisters ' disappearance .

On DATE a forensic expert prepared a report based on the description of the crime - scene in “ GPE where , from DATE , CARDINAL bodies bearing signs of violent death were discovered ( the description of the site was not submitted to ORG ) . CARDINAL body was identified as that of PERSON . The crime - scene report was quoted as follows : “ the following clothes were discovered on the corpse : a blue cardigan and a printed dress . The bones of the extremities , chest and pelvis are intact . The right frontal part of the head has an extensive defect to the bone , the bone lamella is totally missing . Skin is mummified , yellowish - brown in colour , solid to the touch ” .

The expert was asked to answer questions concerning the possible reasons for and time of PERSON death . The expert concluded that it appeared that the death had occurred DATE prior to the discovery of the body , and had resulted from an extensive wound to the front of the head , which had caused massive deformation to the frontal part of the skull .

In DATE investigators questioned several officers who , at the material time , were serving in the PERSON , PERSON , on mission from other regions of GPE . They recalled having opened a search file in respect of PERSON and other women , but the search had not produced any results . They could not recall if the hull number of the ORG which had taken away the women was known to the investigation authorities .

Officer PERSON was questioned in DATE and gave submissions reflected in the progress report prepared by ORG , cited below .

At the ORG 's request , the Government provided the following update on the investigation , covering the period from DATE to DATE :

“ On DATE the [ acting Deputy of ORG ] by his decree quashed the decree to suspend the preliminary investigation in the criminal case no . DATE of DATE and the preliminary investigation was reopened . After reopening proceedings in the case [ CARDINAL persons including the former military commandant of the Town of Grozny ] , were interviewed as witnesses . Moreover , a number of [ actions were commissioned ] to establish witnesses of the committed crime .

On DATE the victim , PERSON , was again interviewed and he stated that in the course of the search for his relatives he had been assisted by [ the ] officers of the [ Department ] of ORG , [ Mr PERSON ] , [ Mr PERSON . ] and the operating officer by name of “ PERSON ” . Moreover , the search was conducted [ by ] an officer of the [ ORG ] by surname of “ Balandin ” . Mr PERSON has learned from the above persons that the driver of the [ APC ] with the hull number CARDINAL was a serviceman by name of “ Fedyakin ” . Mr PERSON did not give his consent to have the corpse of his wife exhumed . The corpse was examined earlier . The forensic medical examination established the violent nature of PERSON death .

On DATE the [ ORG ] of GPE [ was commissioned ] to interview [ Mr PERSON ] as a witness . He stated that in DATE he had been detached to the Town of Grozny to serve as an operating officer of [ the ] criminal investigations department . Pursuant to the fact of abduction of PERSON , sisters PERSON and Mr PERSON measures had been taken with a view to establish persons who had committed the abduction . In particular , the hull number of the [ APC ] , in which the abducted had been taken away , had been established . It turned out impossible to establish the surname of the driver of that armoured personnel vehicle . According to [ the ] received information special measures on FAC during the indicated period of time were conducted by the PERSON brigade of internal troops of the [ ... ] Ministry of the ORG . During his second duty trip to GPE in DATE he learned that the corpses of the abducted persons had been found and identified .

On DATE the Military [ ORG ] of FAC [ was commissioned ] to carry out several investigative actions to check the information that the crime had been committed by [ the ] servicemen of the regiment no . CARDINAL of the ORG brigade of internal troops of the [ ... ] ORG . According to the reply received from the commanding officer of the military unit no . CARDINAL ( the PERSON brigade of internal troops of the [ ... ] ORG ) a serviceman by surname of Fedyakin is not listed among the personnel of the unit and an [ ORG ] with the hull number CARDINAL is not listed among the vehicles of the unit . The military unit no . CARDINAL did not include regiment no . CARDINAL . The military unit comprises CARDINAL operational battalions and not regiments .

On DATE an inquiry concerning [ the ] officer of the [ ORG ] PERSON was sent to the Head of ORG of the [ ORG ] . The criminal case - file was added with the reply of the Deputy Head of ORG of the [ ORG ] , according to which an officer PERSON is not listed among the personnel of the ORG .

The preliminary investigation in the case was repeatedly suspended . On DATE the [ Deputy of ORG ] by his decree quashed the decree to suspend the preliminary investigation . Pursuant to LAW of LAW of GPE , the directives were issued to eliminate inconsistencies in the testimony of the witness [ PERSON ] , to establish women who were cleaning the territory near the commandant 's office of LOC of the Town of Grozny and who allegedly heard shouts coming from [ APCs ] , to interview Mr. PERSON . PERSON again .

On DATE the preliminary investigation in the case was suspended pursuant to LAW ) of LAW of GPE ( in view of non - establishment of the person to be prosecuted as the accused [ of the abduction ] ) .

On DATE the Deputy [ Prosecutor ] of LOC of the Town of Grozny by his decree quashed the decree to suspend the preliminary investigation in the criminal case and the preliminary investigation was reopened . On DATE a fresh inquiry requesting the information on whereabouts of PERSON was sent to the Head of ORG of the [ ORG ] . On DATE an inquiry requesting the information on whereabouts of [ the ] officer of the [ Department ] of the ORG , [ Mr PERSON ] , and [ an ] operating officer by name “ PERSON ” was sent to the Head of ORG of the Interior of the Town of Grozny . On DATE a fresh [ commission request ] was sent to the [ ORG ] of ORG of GPE to interview [ Mr PERSON ] . On DATE the military [ ORG ] of the military unit no . CARDINAL [ was commissioned ] to establish a military unit equipped with an [ APC ] with the hull number CARDINAL . At present , the investigation in the case is in progress . ”

Until DATE criminal - law matters were governed by LAW the NORP Federalist Socialist Republic . From DATE the old Code was replaced by LAW ( CCP ) .

The DATE ORG required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first report on the relevant facts ( Articles CARDINAL , CARDINAL - CARDINAL ) . Where an investigating body refused to open or terminated a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed to a higher - ranking prosecutor or to a court ( Articles CARDINAL and CARDINAL ) .

Criminal investigation is now carried out under the supervision of a prosecutor whose powers include giving detailed instructions to the investigating authorities as to what measures should be taken to investigate the case ( LAW ) of the new ORG ) .

DATE . Under the old ORG , during criminal proceedings persons who had been granted victim status could submit evidence and file applications , have full access to the case file once the investigation was complete , challenge appointments and appeal decisions or judgments in the case . At an inquest , the close relatives of the deceased were to be granted victim status ( LAW . Similar provisions are contained in the new ORG .

Article CARDINAL of the new ORG establishes the rule of the impermissibility of disclosure of data from the preliminary investigation . Under part CARDINAL of that Article , information from the investigation file may be divulged with the permission of a prosecutor or investigator and only 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 . Divulging information about the private life of participants in criminal proceedings without their permission is prohibited .

Article CARDINAL of the old ORG provided for a criminal investigation to be adjourned if no suspect in a crime could be identified . Similar provisions are set out in LAW CARDINAL(CARDINAL ) of the new ORG .

Article CARDINAL part CARDINAL of the Code of Civil Procedure ( Гражданский процессуальный PERSON РСФСР ) , which was in force until DATE , provided that courts had to suspend consideration of a case if it could not be considered until another set of civil , criminal or administrative proceedings had been completed .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

The ORG authority lodged a criminal complaint against the applicant with the GPE State Attorney ’s ORG on DATE , alleging that he had committed CARDINAL murders . The applicant was arrested on DATE and placed in pre - trial detention .

By a judgment of CARDINAL DATE ORG acquitted the applicant and he was released . On DATE , however , ORG quashed the first - instance judgment and ordered a retrial .

On DATE the GPE State Attorney ’s ORG indicted the applicant in ORG on CARDINAL counts of murder . The applicant was tried in his absence because his whereabouts were unknown to the authorities . On DATE he was found guilty of all CARDINAL counts of murder and sentenced to DATE imprisonment . This judgment was upheld by ORG on DATE , likewise in the absence of the applicant .

An international arrest warrant was issued in respect of the applicant . He was arrested in GPE on DATE , extradited to GPE on DATE and was placed in pre - trial detention in GPE on that date .

On DATE the criminal proceedings against the applicant were reopened .

On DATE ORG ordered the applicant ’s pre - trial detention under LAW § CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW . The applicant ’s pre - trial detention was regularly extended on the same grounds .

The ORG confirmed its previous verdict on DATE , sentencing the applicant to CARDINAL years’ imprisonment . On DATE it extended the applicant ’s detention until DATE or until the judgment entered into force .

The applicant lodged an appeal against the decision extending his detention . It was dismissed by ORG on DATE .

The first - instance judgment was upheld by ORG on DATE in its capacity as an appeal court . On DATE the applicant lodged a further appeal with ORG , in its capacity as a court of third instance .

On DATE the applicant lodged with ORG an application for the detention order against him to be lifted . He argued that the maximum statutory detention period where an appellate judgment had been adopted and against which an appeal was allowed was DATE . That period had expired on DATE . He therefore asked for his release . On DATE the ORG dismissed the complaint without addressing the issue raised by the applicant .

The applicant ’s subsequent constitutional complaint of CARDINAL DATE was declared inadmissible on CARDINAL DATE on the grounds that the impugned decision was not an act within the meaning of section CARDINAL of LAW . This decision was served on the applicant on DATE .

In the meantime , on DATE the ORG extended the applicant ’s detention under LAW of LAW for DATE , i.e. until DATE . On DATE the applicant lodged an appeal , arguing that the maximum period for which he could be detained had expired . This appeal was dismissed by ORG on DATE . The relevant part of that decision reads :

“ ORG , as the court of second instance , considers that the first - instance court correctly established that in the present case the conditions for the extension of the overall detention of the accused , PERSON , under LAW had been satisfied , and thus extended his overall detention for a further DATE .

In a non - final judgment of ORG of DATE ... the accused PERSON was found guilty ... and sentenced to DATE imprisonment . That judgment ... was upheld by a judgment of ORG on DATE ... against which the accused lodged an appeal . In view of the sentence given , the detention of the accused is obligatory under LAW of LAW .

The accused was in detention DATE and DATE ( DATE ) and also since DATE , so that the maximum period of detention [ applicable to him ] , being DATE under LAW ) of LAW , was set to expire on DATE . Since the accused was , inter alia , convicted of the criminal offence of aggravated murder ... [ which is ] punishable by DATE imprisonment , a court may , under LAW , extend his overall detention for DATE [ of the term referred to in DATE and CARDINAL of paragraph CARDINAL of Article CARDINAL of LAW ] , that is to say for DATE .

Therefore , ORG finds that the extension of the accused ’s detention for DATE by the first - instance court was well founded and lawful ...

The accused ’s submissions based on LAW in which he argued that his detention had to be lifted because DATE had passed since the second - instance judgment was adopted are also unfounded . ORG considers that where , as in the present case , a first - instance judgment and a second - instance judgment against which an appeal is allowed have been adopted within the time - limit for detention under LAW , the overall duration of detention may be extended LAW CARDINAL § CARDINAL of the Code of Criminal Procedure , and after that time - limit expires , it may still be extended under LAW . ”

The applicant then lodged a constitutional complaint , whereby he reiterated the arguments from his appeal as regards the issue of the lawfulness of his detention . On DATE ORG dismissed the complaint , endorsing the reasoning of ORG .

On DATE ORG in its capacity as a court of third instance upheld the applicant ’s conviction . Thus it became final and enforceable .

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide as follows :

“ ( CARDINAL ) Until the adoption of a first - instance judgment , pre - trial detention may last for a maximum of :

DATE for offences carrying a statutory maximum sentence of CARDINAL PERSON imprisonment ;

DATE for offences carrying a statutory maximum sentence of CARDINAL years’ imprisonment ;

DATE for offences carrying a sentence of DATE imprisonment ;

DATE for offences carrying a sentence of long - term imprisonment .

( CARDINAL ) In cases where a judgment has been adopted but has not yet entered into force , the maximum term of pre - trial detention may be extended for CARDINAL of the term referred to in CARDINAL of paragraph CARDINAL of this provision until the judgment becomes final , and for CARDINAL of the term referred to in DATE and CARDINAL of paragraph CARDINAL of this provision .

( CARDINAL ) Where a first - instance judgment has been quashed on appeal , following an application by the ORG Attorney and where important reasons exist , ORG may extend the term of detention referred to in DATE of paragraph CARDINAL of this provision for DATE and the term referred to in DATE and CARDINAL of paragraph CARDINAL of this provision for DATE .

( CARDINAL ) Following the adoption of an appellate judgment against which an appeal is allowed , detention may last until the judgment becomes final , for a maximum period of DATE .

( CARDINAL ) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison , but for no longer than the duration of his prison term . ”

NORP The relevant part of the guidelines adopted at a meeting of ORG on DATE and published by ORG , reads :

Where a first - instance judgment and a second - instance decision quashing the first - instance judgment were adopted within the time prescribed for detention under LAW of the CPP , the overall duration of detention may be extended LAW CARDINAL § CARDINAL of the CPP and after the expiry of that period also under LAW of the CPP .

The overall duration of detention under LAW of the CPP is to be extended only after the time - limit prescribed in LAW has expired , irrespective of whether the first - instance court has adopted a fresh judgment in the retrial proceedings .

The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed according to the criminal offence the accused was found guilty of , even where the ORG Attorney has filed an appeal on any grounds .

Where a first - instance judgment or a second - instance judgment against which an appeal is allowed have been adopted within the time - limits set by LAW , the overall duration of detention may be extended under LAW of the CPP . After the time - limit set by that LAW , detention may be extended under LAW of the CPP .

Where a first - instance judgment or a second - instance judgment against which an appeal is allowed have been adopted within the time - limits set by LAW , the overall duration of detention may be extended LAW CARDINAL § CARDINAL of the CPP . After the time - limit set by that Article expires , detention may be extended under LAW of the CPP , after the expiration of the time - limit under LAW of the CPP .

Where a second - instance decision against which an appeal is allowed has been adopted within the time - limit set by LAW , the overall duration of detention may be extended under LAW of the CPP , after the expiration of the time - limit set by LAW .

Where a second - instance decision against which an appeal is allowed has been quashed within the time - limit set by LAW , the overall duration of detention may be extended under LAW of the CPP , after the expiration of the time - limit set by LAW .

Where a second - instance decision against which an appeal is allowed has been quashed within the time - limit set by LAW , the overall duration of detention may be extended under LAW of the CPP .

ORG practice as regards the interpretation of Article CARDINAL of the Code of Criminal Procedure may be found in its case - law .

It ’s decision no . II CARDINAL Kr CARDINAL/CARDINAL - CARDINAL of DATE reads in its relevant part as follows :

“ ... ORG has established that the accused , PERSON , has been detained since DATE on the basis of LAW ) of LAW procedure ( “ CPP ” ) and that the maximum period of detention under LAW ) of the ORG expired on DATE . Since the appeal decision quashing [ the first - instance judgment ] was adopted on DATE , the detention during the appeal proceedings from the adoption of the first - instance judgment on DATE was based on the time - limits set by LAW .

Therefore , the statutory requirements for extending the accused ’s detention for DATE under LAW of the ORG have been satisfied ... ”

The relevant part of decision no . II CARDINAL Kr CARDINAL/CARDINAL - CARDINAL of DATE reads :

“ The accused , ORG , has been detained since DATE and the maximum period of detention under LAW ) and LAW ( “ CPP ” ) expires on DATE .

The criminal proceedings are currently pending at third instance . The first - instance judgment of ORG was quashed by this court . After that , a fresh first - instance judgment was adopted , which was upheld by a judgment of ORG of DATE ... by which the accused was sentenced to long - term imprisonment for DATE on account of CARDINAL criminal offences of aggravated murder ... Under LAW ) and § CARDINAL of the ORG , the maximum period of detention is DATE and DATE , as the criminal offence in issue is punishable with long - term imprisonment . That period expires on DATE . Since the proceedings in which the first - instance judgment has been quashed are still pending , the accused ’s detention may be extended for DATE . ”


Preliminary objection rejected (incompetence ratione temporis, non-exhaustion);Violation of Art. 6;Non-pecuniary damage - claim dismissed;Costs and expenses - claim dismissed

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

On DATE he was arrested on suspicion of having attempted to steal a car and on DATE was remanded in custody .

The trial took place on DATE , DATE and DATE before ORG ( Sąd Rejonowy ) . ORG heard as witnesses the owner of the car and his neighbour as well as the police expert , who confirmed that the door lock had been tampered with in an attempt to open it . The court also considered as evidence a bag containing instruments , which could have been used to open the car lock . The bag had been found in the close vicinity of the applicant at the time of his arrest . The applicant was present during the trial . According to the Government the applicant had chosen not to be represented by a lawyer .

On DATE ORG convicted the applicant of attempted theft and sentenced him to CARDINAL GPE imprisonment . It found the evidence of the witnesses to be exhaustive and logical and their statements consistent .

The applicant filed an appeal against this judgment with ORG ( Sąd Wojewódzki ) . He maintained in particular that the first - instance court had disregarded his explanations and had only attached weight to the prosecution evidence . He also requested that his accomplice and the CARDINAL policemen who had arrested him be heard as witnesses and that he be brought from prison to the hearing before ORG .

On DATE ORG refused the applicant ’s request to be brought before it , considering that his presence was unnecessary , since he had already given a detailed account of the events at his trial before ORG . Moreover , in his written statement of appeal he had set out at length his complaints in respect of the contested conviction . Furthermore , in its view he had sufficient time to submit further observations in writing , if he wished to do so .

On DATE , after a hearing at which the public prosecutor , but not the applicant , was present ( see paragraph CARDINAL below ) , ORG dismissed the applicant ’s appeal .

ORG had heard the prosecutor ’s submissions to the effect that the judgment of the lower court should be upheld , and it considered that ORG had thoroughly assessed the evidence and had carefully considered the applicant ’s guilt , as shown by the fact that the applicant had been acquitted on CARDINAL of CARDINAL charges . ORG found that the evidence given by the applicant was inconsistent and motivated by his wish to avoid conviction . Moreover , the applicant had failed to request ORG to hear further evidence . It noted that the applicant had only submitted a request to have the policemen who had arrested him heard when lodging his appeal . However , ORG considered it unnecessary to hear the witnesses as the other evidence presented to ORG was sufficient to prove the applicant ’s guilt .

The relevant provisions of LAW in force at the material time read as follows :

“ An accused , who does not have a lawyer of his own choice , may request the assistance of an officially appointed lawyer if he proves that he is not able to incur the costs of defence without detriment to himself and his family . ”

“ A court of appeal shall conduct a hearing when examining a case … ”

“ A hearing shall be held irrespective of whether the parties are present . However , a hearing shall not be held if the public prosecutor is absent … ”

“ If a case is to be examined at a hearing , the court may order an accused , who is detained , to be brought to the hearing . ”

“ CARDINAL . An appellate court can not take evidence .

However , the court can exceptionally take evidence at a hearing … if it would expedite proceedings … ”

The Code of Criminal Procedure provided at the material time for CARDINAL - instance proceedings . Regional courts considered , inter alia , appeals against judgments of district courts . Only remedies of an extraordinary character were available against a judgment given by a regional court in appeal . Since then LAW has been amended and now provides for cassation proceedings in respect of judgments of appellate courts .

Article CARDINAL of the Code of Criminal Procedure prohibits an appellate court from increasing a sentence imposed by a trial court if the appeal was lodged by a defendant .

LAW DATE provides that the prosecution service is composed of ORG and subordinate public prosecutors . Public prosecutors are independent in carrying out their duties . However , they are under an obligation to follow the instructions of higher ranking prosecutors .

In a declaration of DATE , deposited with the Secretary General of ORG by the NORP Minister for ORG , GPE recognised the jurisdiction of the ORG in the following terms :

“ The Government of GPE , pursuant to LAW , opened for signature in GPE on DATE , declares that it recognises , for a period of DATE with effect from DATE , as compulsory ipso facto and without special agreement , on condition of reciprocity on the part of the other Contracting Parties , the jurisdiction of ORG in all matters concerning the interpretation and application of the aforementioned Convention .

The validity of this Declaration may be renewed by tacit agreement for periods of DATE , if ORG , by notification to the Secretary General of ORG , does not denounce this LAW by giving at least six months’ notice before the expiry of the first period or of the subsequent periods . ”