Violation of Art. 5-3;Violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE . He is currently serving a prison sentence at ORG ) ( ORG CARDINAL ) ( “ the Colony ” ) .

On DATE the applicant was arrested by the police on suspicion of causing grievous bodily harm to NORP According to the police , on DATE the applicant broke into NORP 's house and attacked him with a knife as he was sleeping . NORP received wounds to the left side of the chest , the left forearm and the left knee . As NORP resisted the attack , the applicant pulled back . The applicant stayed at the scene of the crime and called the police and an ambulance .

On DATE the applicant was questioned by the police concerning the incident . The applicant was not assisted by a lawyer during his questioning .

On DATE the applicant was officially charged with aggravated hooliganism ( LAW of LAW ) .

For an unspecified period before DATE the applicant was assisted by a lawyer of his own choosing , Mr N.

On DATE the investigations were completed and the case was referred to ORG ( PERSON районний суд PERSON області ) for trial .

At a preliminary hearing on DATE the court decided to remit the case for additional investigation .

On DATE the additional investigation was completed and the case was sent to the same court .

On DATE Tarasha Court granted the applicant leave to be defended in the proceedings by his mother , who was not a lawyer .

DATE and DATE the court held several hearings on the merits of the case and ordered a psychiatric examination of the applicant , which was completed by DATE . In the course of the court proceedings during the aforementioned period and during the ensuing investigations the applicant was assisted by a lawyer of his own choosing , PERSON

On an unspecified date the prosecutor taking part in the proceedings requested the court to remit the case for additional investigation , stating that there was evidence that the applicant had committed a more serious crime than the one with which he had been charged .

On DATE the court found that the criminal qualification of the applicant 's actions was incorrect and remitted the case to the prosecutors for additional investigation . On CARDINAL DATE ORG ( PERSON суд PERSON області ) dismissed an appeal by the applicant 's lawyer against that decision , holding that the reasons for the remittal were based on the case materials and the prosecutor 's request . The decision of ORG did not suggest that it was subject to a further appeal .

On DATE the prosecutors brought new charges against the applicant , accusing him of attempted murder for hooligan motives and of unlawful entry into a private residence ( Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) , and CARDINAL § CARDINAL of LAW ) . CARDINAL of the possible sanctions under LAW was life imprisonment .

On DATE the case was referred to ORG for trial .

On an unspecified date a new lawyer , PERSON , appointed by the applicant , joined the proceedings before that court .

On DATE the court found the applicant guilty of unlawful entry into a private residence and aggravated hooliganism and sentenced him to DATE imprisonment .

On DATE ORG quashed the judgment of DATE , holding that ORG had wrongly assessed evidence and misapplied substantive law in the case . It decided to remit the case to the same court for fresh consideration .

In DATE the applicant appointed a new lawyer to assist him , PERSON , the other lawyers , PERSON and PERSON , having ceased to represent the applicant for unspecified reasons .

On DATE ORG remitted the case for additional investigation , finding that the prosecutors had failed to establish the motive for the applicant 's actions on DATE .

On DATE ORG upheld the ruling of DATE . In the proceedings before ORG the applicant was represented by his mother .

On DATE and DATE , respectively , the applicant was allowed to familiarise himself with the decisions of DATE and DATE . No copies of those decisions were given to him .

According to the Government , on DATE the case was received by the prosecutors , who started additional investigations . The applicant submitted that the case had been received by the prosecutors on DATE .

In the course of the additional investigations the prosecutors questioned several witnesses and ordered an expert examination of the knife with which the applicant had attacked the victim . The examination was completed on DATE .

On DATE a lawyer , PERSON , was appointed by the prosecutors to assist the applicant in the proceedings . According to the applicant , PERSON did not assist him at all .

On DATE the applicant was questioned by the prosecutors concerning the issues raised before the expert examining the knife . It is unclear whether the lawyer PERSON was present during the applicant 's questioning .

On DATE the investigators brought new charges against the applicant , following a requalification of his actions on DATE . The applicant was accused of attempted murder for mercenary motives and robbery accompanied by infliction of grievous bodily harm ( Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) , and CARDINAL § CARDINAL of LAW ) .

On DATE the additional investigations were completed and on DATE the case was sent to ORG for trial .

On DATE the court held a preliminary hearing in the case , which the applicant 's lawyer failed to attend .

On DATE ORG found the applicant guilty of attempted murder for mercenary motives and of robbery accompanied by infliction of grievous bodily harm . The applicant was sentenced to DATE imprisonment , which was to be calculated from DATE , with confiscation of all his property . He was also ordered to pay CARDINAL NORP hryvnias ( ORG ) to NORP in compensation and ORG CARDINAL.CARDINAL to a hospital in which NORP had been treated .

The court based its judgment partially on the statements of the applicant made before it and his statements obtained during the pre - trial investigations , the statements of the victim , an eyewitness and CARDINAL other witnesses heard by the court , and reports from CARDINAL experts .

The court noted that the applicant did not deny that he was involved in the incident , though his submissions concerning it during various stages of the proceedings differed substantially .

By a separate ruling of DATE , ORG found that the persons responsible for the pre - trial investigations had not complied with the requirements of promptness , objectivity and completeness , because of which the case had been remitted for additional investigation on CARDINAL occasions . It ordered the prosecutors to adopt relevant measures in respect of those irregularities .

The applicant 's mother , acting on his behalf , and the applicant himself , lodged separate appeals in cassation with ORG . They alleged that ORG had erred in its assessment of the evidence and had wrongly applied the law in the case , that the pre - trial investigations had not been completed in due time , that the applicant had not been given accurate information concerning the charges against him , that his right to defence had been violated as no lawyer had been appointed to assist him from the beginning of the additional investigations in DATE , and that because of this the applicant had not had sufficient time to prepare his defence .

According to the applicant , the lawyer appointed for him by the authorities did not assist him in the preparation of his appeal in cassation .

On DATE ORG upheld the judgment of DATE , finding , inter alia , that the applicant 's right to defence had not been violated .

Following his arrest on DATE , the applicant was placed in Tarasha Police Preliminary Detention Centre ( ORG тимчасового тримання ORG області ) ( “ the ORG ” ) .

On DATE Tarasha Court remanded the applicant in custody in view of the pending criminal investigations against him and ordered his placement in ORG ізолятор ORG з питань виконання покарань в м. ORG області ) ( “ the GPE ” ) . The court found that the applicant was accused of a particularly serious crime ( aggravated hooliganism ) punishable by the deprivation of liberty for a term of over DATE and that if the applicant remained at liberty he might seek to evade investigation and trial and obstruct the establishment of the truth in the case .

By a decision of CARDINAL DATE , the maximum period of the applicant 's detention was extended for DATE . ORG put forward similar reasons for the applicant 's continued detention as were contained in its decision of DATE .

Subsequently , the applicant 's continued pre - trial detention was ordered by ORG decisions of DATE , CARDINAL DATE and DATE and DATE , and of ORG of DATE and DATE , according to which that there were no grounds for changing the preventive measure applied in respect of the applicant .

For the same reasons , the applicant 's requests of CARDINAL DATE , DATE and DATE for release from detention raised at court hearings in his case were rejected by ORG on DATE and DATE and by ORG on DATE respectively . On DATE ORG refused to consider the applicant 's appeal against the decision of DATE , holding that procedural decisions adopted in the course of a trial , including decisions concerning preventive measures , were not subject to appeal .

The applicant 's request for release , which he had lodged with ORG on DATE , was not considered on the merits , the applicant having been informed by a letter from that court that the matter had already been determined in its decision of DATE .

The applicant 's requests for release were mainly based on the following arguments : after the incident on DATE the applicant had not tried to run away and had made no attempts to obstruct the collection of evidence or to destroy it ; the charges against him were groundless ; he was detained for a long period of time after his arrest in DATE ; and he had health problems for which he could not receive adequate treatment while in detention . In his submissions before the courts , the applicant suggested that he could be released on an undertaking not to abscond .

Relying on the same arguments , the applicant appealed against the decision of CARDINAL DATE ( see paragraph CARDINAL above ) . In its decision of CARDINAL DATE ORG acknowledged the applicant 's appeal , though it did not elaborate on the matter .

According to the applicant , on DATE he lodged with ORG an appeal in cassation against the decisions of DATE and CARDINAL DATE , though this was not considered by the courts . The applicant did not provide a copy of his appeal in cassation . The ORG submitted that the applicant had not appealed in cassation against the decisions of CARDINAL DATE and CARDINAL DATE .

The applicant was detained in the ORG until DATE , when he was placed in the GPE . On DATE he was transferred to the Colony .

According to the applicant , on DATE he became ill and was seen by an ambulance paramedic , who was not competent to establish a diagnosis or prescribe treatment . The applicant raised this matter before ORG in CARDINAL of his requests for release , but to no avail . The applicant provided no further details of the incident on DATE .

During his detention in the GPE and the LOC the applicant underwent medical checks , including X - ray examinations and blood tests , on DATE , DATE , DATE and DATE , CARDINAL May , DATE and DATE , and DATE . There were no serious health issues noted by the doctors examining the applicant .

The applicant requested medical assistance on CARDINAL occasions , namely on DATE and DATE and DATE . He was diagnosed with bronchitis and periodontitis , for which he was treated by doctors .

On DATE the applicant was examined by a medical panel composed of a prison doctor , a general practitioner , a dentist and a psychiatrist . They concluded that the applicant was “ practically healthy ” and that his state of health had not deteriorated since his arrival at the Colony . An additional medical examination of the applicant on DATE confirmed those conclusions .

According to the applicant , in the ORG he was at risk of contracting tuberculosis , as prisoners suffering from that condition were detained in the same building as the applicant , though on another floor . He also stated that DATE the building had not been sufficiently heated and he had had no warm clothes . The applicant alleged that the light in the ORG was inadequate , but provided no further details .

The relevant provisions of the LAW read as follows :

“ Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law ... ”

The relevant extracts from LAW participating in the proceedings , their rights and obligations ) read as follows :

“ Participation of a defence lawyer in the inquiry , pre - trial investigations and trial by the first - instance court is compulsory :

( CARDINAL ) from the moment of the person 's arrest or when he or she is [ officially ] charged with a criminal offence carrying a penalty of life imprisonment ... ”

The relevant extracts from LAW ) , as worded at the material time , read as follows :

“ A body of inquiry shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed , subject to the existence of CARDINAL of the following grounds :

CARDINAL ) NORP that the person was discovered whilst committing the crime or immediately after committing it ;

CARDINAL ) NORP that eyewitnesses , including victims , directly identify that person as the one who committed the crime ;

CARDINAL ) NORP that clear traces of the crime are found on the body of the suspect , or on his clothes , or in his home .

If there are other data constituting grounds for suspecting a person of having committed a crime , he may be detained only if he has attempted to escape , or if he has no permanent place of residence , or if the identity of the suspect has not been established .

Within TIME of the arrest the body of inquiry shall :

CARDINAL ) NORP release the arrested person if the suspicion that he has committed the crime has not been confirmed , or the [ maximum ] term of detention following arrest has expired , or if the arrest was carried out in violation of the requirements provided for in parts CARDINAL and CARDINAL of this Article ;

CARDINAL ) NORP release the arrested person and select a non - custodial preventive measure ;

CARDINAL ) NORP bring the arrested person before a judge with a request for his placement in custody ...

The suspect 's detention following arrest shall not last CARDINAL TIME ... ”

“ The procedure for short - term detention of persons suspected of committing a crime shall be determined by the [ relevant ] regulations ... ”

“ ... If the suspect has been arrested or placed in custody ... he shall be questioned immediately , or , if an immediate questioning is not possible , within TIME of his arrest ... ”

“ An investigator may arrest and question a person suspected of having committed a crime according to the procedure provided for in Articles CARDINAL , CARDINAL - CARDINAL , and CARDINAL of the Code ... ”

The relevant extracts from LAW ( Preventive measures ) read , as worded at the material time , as follows :

“ Preventive measures shall be applied in respect of a suspect , accused , defendant or convict with the aim of preventing attempts to abscond from the investigation or trial , to obstruct the establishment of the truth in a criminal case or to pursue criminal activities , and in order to ensure the execution of procedural decisions .

Preventive measures shall be applied if there are sufficient grounds to consider that the suspect , accused , defendant or convict will try to abscond from the investigation or trial , or evade complying with procedural decisions , or obstruct the establishment of the truth in a criminal case , or pursue criminal activities .

If there are not sufficient grounds to apply a preventive measure , the suspect , accused , defendant or convict shall be required to give a written undertaking to appear when summoned by the person conducting the inquiry , the investigator , prosecutor , or the court , and to inform them of any change of his place of residence .

In the case of the application of a preventive measure in respect of a suspect , he shall be [ officially ] charged within DATE of the date the preventive measure was applied . If no charges are brought [ against him ] within that period , the preventive measure shall be lifted . ”

“ The preventive measures shall be as follows :

CARDINAL ) a written undertaking not to abscond ;

CARDINAL ) a personal surety ;

CARDINAL ) NORP the surety of a non - governmental organisation or labour collective ;

CARDINAL - CARDINAL ) NORP bail ;

CARDINAL ) placement in custody ;

CARDINAL ) NORP supervision by the command of a military unit .

The arrest of a suspect is a temporary preventive measure applied on the grounds and according to the procedure provided for in Articles CARDINAL , CARDINAL , and CARDINAL of the Code . ”

“ In deciding on the application of a preventive measure , in addition to the circumstances specified in LAW , such circumstances as the gravity of the crime of which the person is suspected or with which he is charged , his age , state of health , family and financial status , type of activity , place of residence and other circumstances relating to the person shall be taken into consideration . ”

“ Placement in custody , as a preventive measure , shall be applied in cases concerning criminal offences carrying a penalty of DATE imprisonment . In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law provides for a punishment of DATE imprisonment ... ”

“ Detention during a pre - trial investigation shall not DATE .

When it is impossible to complete the investigation within the period provided for in part CARDINAL of this LAW and there are no grounds for discontinuing the preventive measure or replacing it with a less restrictive measure , [ the term of pre - trial detention ] may be extended :

( CARDINAL ) for DATE upon a request approved by the prosecutor supervising the compliance with the laws of the bodies of inquiry and investigation , or at the same prosecutor 's [ request ] , by a judge of the court which ordered the application of the preventive measure ;

( CARDINAL ) for DATE upon a request approved by ORG , ORG , regional prosecutors , GPE and PERSON prosecutors , and prosecutors of equal rank , or on the same prosecutor 's [ request ] in cases concerning serious and particularly serious crimes , by a judge of the court of appeal ;

( CARDINAL ) for DATE - upon a request approved by ORG and his Deputy , or at the same prosecutor 's [ request ] in particularly complex cases concerning particularly serious crimes , by a judge of ORG of GPE ;

In each case , when it is impossible to complete the investigation within the periods specified in parts CARDINAL or CARDINAL of this Article and there are no grounds for changing the preventive measure , the prosecutor supervising compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges . In such an event , the part of the case relating to criminal offences or episodes of criminal activity the investigation of which has not been completed shall be disjoined from the proceedings pursuant to the requirements of LAW and completed in accordance with the general rules .

The term of pre - trial detention shall be calculated from the moment when the person was placed in custody , or , if his placement in custody was preceded by his arrest [ within the meaning of LAW ] , from the time of the arrest . The term of pre - trial detention shall include time during which the person has undergone inpatient expert examination in a psychiatric medical institution of any type . If the person is repeatedly placed in custody within the framework of the same proceedings ... or if new charges are brought against him , the time the person has spent in detention before this shall be taken into account when calculating the term of pre - trial detention .

The term of pre - trial detention shall end on DATE the court receives the case file . If the case is withdrawn from the court by the prosecutor pursuant to LAW , the running of the time shall resume on DATE on which the prosecutor receives the case .

The materials of the criminal case in which the investigation has been completed shall be given to the detainee and his defence no later than a month before the expiry of the maximum term of detention set by part CARDINAL of this Article .

If the time - limit for providing the accused and his defence with the case materials is not complied with ... the accused shall be released immediately after the expiry of the maximum term of detention set by part CARDINAL of this Article . In such a case , the accused and his defence shall continue to be entitled to familiarise themselves with the case materials .

If the time - limit for providing the accused and his defence with the case materials is complied with ... but the time allowed for the accused and his defence to familiarise themselves with the case materials appears to be insufficient , the maximum term of detention set by part CARDINAL of the LAW may be extended by a judge of the court of appeal at the investigator 's request approved by ORG or his Deputy , or upon the same prosecutor 's or his deputy 's request . If there are several accused held in detention and the period provided for in part CARDINAL of this LAW appears to be insufficient for CARDINAL of them to familiarise himself with the case materials , such a request may be submitted in respect of an accused who has already familiarised himself with the case materials , provided it remains necessary to keep that person or persons in detention and there are no grounds for the application of another preventive measure .

If the case is returned by the court to the prosecutor for additional investigation , the term of pre - trial detention shall be calculated from the time the case is received by the prosecutor and shall not exceed DATE . Further extension of that term shall be ordered in accordance with the procedure and within the limits provided for in part CARDINAL of this LAW , and the time the accused was held in detention before the referral of the case to the court shall be taken into account .

If the term of pre - trial detention ... provided for in parts CARDINAL and CARDINAL of this LAW has ended and if this term was not extended in accordance with the procedure laid down in the LAW , the body of inquiry , investigator or prosecutor shall immediately release the person from detention .

Governors of pre - trial detention centres shall immediately release from detention accused persons in respect of whom no court resolution extending the term of pre - trial detention has been received on DATE of expiry of the term of pre - trial detention provided for in parts CARDINAL , CARDINAL , and CARDINAL of this Article . They shall accordingly notify the person or authority before whom the case is pending and the prosecutor supervising the investigation . ”

“ Placement in custody , as a preventive measure , shall be applied only pursuant to a reasoned resolution of a judge or ruling of a court ...

A preventive measure may be replaced by another preventive measure or lifted by the body of inquiry , investigator , prosecutor , judge or a court in accordance with part CARDINAL of the Article .

A preventive measure may be changed or lifted if there is no need for it to be applied ... ”

“ A judge shall issue a resolution and a court shall issue a ruling on the application , discontinuation or change of a preventive measure ...

In the resolution ( ruling ) on the application or change of a preventive measure ... reasons for its application or change shall be mentioned ... In the resolution ( ruling ) discontinuing the application of a preventive measure reasons shall be mentioned ...

The person concerned shall be immediately notified of the resolution ( ruling ) ... At the same time the person shall be informed about the procedure and time - limits for challenging the resolution or ruling . ”

“ At the stage of pre - trial investigation a non - custodial preventive measure shall be selected by a body of inquiry , investigator [ or ] prosecutor .

If a body of inquiry [ or ] investigator considers that there are grounds for ... placement in custody [ it or ] he shall , with the prosecutor 's consent , submit a request to the court . The prosecutor is entitled to submit a similar request . When considering the matter the prosecutor shall familiarise himself with all the material containing grounds for placement in custody , check whether the evidence was lawfully obtained and whether it is sufficient to bring charges [ against the suspect ] .

The request shall be considered within TIME of the arrest of the suspect or accused .

If the request concerns placement in custody of [ a suspect or accused ] who is at liberty , the judge shall have the power ... to issue a warrant for [ his ] arrest and escort to the court . In such case , the detention shall not exceed TIME , or , if the person concerned is outside the locality in which the court operates , [ the detention ] shall not exceed TIME from the time the arrested person was brought to the locality .

Upon receipt of the request , the judge shall study the material in the criminal case file submitted by the body of inquiry , investigator [ or ] prosecutor , question the suspect or accused , and , if necessary , obtain explanations from the person dealing with the case , hear the prosecutor , [ and ] the defence lawyer if [ the latter ] has appeared before the court , and deliver a resolution :

CARDINAL ) refusing the preventive measure , if there are no grounds for its application ;

CARDINAL ) ordering placement in custody ...

Having refused ... to place the suspect [ or ] accused in custody , the court shall have the power to apply a non - custodial preventive measure to him or her .

The judge 's resolution may be appealed against to the court of appeal by the prosecutor , suspect , accused , his defence or representative within DATE of its delivery . The introduction of an appeal shall not suspend the execution of the judge 's resolution .

If it is necessary to study further the personal circumstances of the arrested person or to establish other circumstances relevant for the question of the application of a preventive measure ... the judge shall have the power to extend the applicant 's detention for CARDINAL or , at the request of the suspect or accused , DATE ... ”

“ When there are no grounds for changing the preventive measure or if it is impossible to complete the investigation of the case in the part relating to proven charges , an investigator , upon the relevant prosecutor 's approval , or the same prosecutor , shall apply to the court with a request for an extension of the term of pretrial detention . The request shall contain reasons , in connection with which it is necessary to extend the term , circumstances which must be examined , evidence that the detainee committed the crime [ of which he or she is accused ] , and grounds for the necessity to maintain the preventive measure .

The request for extension of the term of the person 's pre - trial detention shall be submitted to the court :

( CARDINAL ) in the event of an extension of the term of pre - trial detention for DATE not later than five days before the expiry of the term of the person 's detention ;

( CARDINAL ) in the event of an extension of the term of pre - trial detention for DATE not later than fifteen days before the expiry of the term of the person 's detention ;

( CARDINAL ) in the event of an extension of the term of pre - trial detention for DATE not later than twenty days before the expiry of the term of the person 's detention ;

( CARDINAL ) in the event of an extension of the term of pre - trial detention for the accused and his defence to familiarise themselves with the case materials not DATE before the expiry of the maximum term of pre - trial detention ;

Having received the request , the judge shall examine the materials of the criminal case ; if necessary , [ the judge shall ] question the accused , the investigator , hear the prosecutor , the defence if [ the latter ] has appeared [ before the judge ] , following which [ the judge ] shall issue a resolution extending the term of pre - trial detention , if there are grounds for this , safe in the case envisaged in paragraph CARDINAL of Article CARDINAL of the Code , or [ the judge ] shall refuse its extension .

The prosecutor , suspected , accused or his defence or legal representative may lodge an appeal against the resolution of the judge within DATE of its delivery . Such an appeal shall not suspend the execution of the judge 's resolution . The resolutions issued by judges of a court of appeal and of ORG shall not be subject to an appeal ... ”

The relevant extracts from LAW ( Preliminary consideration of the case by the judge ) read as follows :

“ The judge shall examine ... the following matters :

( CARDINAL ) whether there are grounds for changing , discontinuing or applying a preventive measure ;

“ Preliminary consideration of a case shall be performed by a single judge with the compulsory participation of a prosecutor . Other persons taking part in the proceedings shall also be informed DATE of the preliminary hearing , though their failure to appear shall not prevent [ the judge ] from considering the case ... ”

“ In the course of preliminary consideration of a case the judge ... shall issue a resolution remitting the case for additional investigation if there were [ procedural shortcomings ] ... in the course of institution of the proceedings , inquiry or pre - trial investigation , without rectification of which the case may not be admitted for trial .

... The judge may also remit a case for additional investigation if there are grounds for charging the accused with a more serious crime ... or with a crime with which he or she was not charged earlier ...

In the resolution the judge shall state reasons for remitting the case for additional investigation ... In the same resolution [ the judge ] shall decide on the preventive measure in respect of the accused .

The parties may lodge an appeal with a court of appeal , or if the case has already been considered by a court of appeal acting as a first - instance court , [ the parties may lodge ] an appeal in cassation with the court of cassation against the resolution within DATE of its delivery . ”

“ Having decided to commit [ an accused ] for trial , the judge shall resolve the following issues :

( CARDINAL ) concerning the appointment of a defence lawyer , if his or her participation in the case is compulsory ;

( CARDINAL ) concerning the change , discontinuation or application of a preventive measure ;

The relevant extracts from LAW ( General provisions on judicial consideration ( trial ) ) read as follows :

“ In the course of consideration of a case the court may issue a ruling changing , discontinuing or selecting a preventive measure in respect of a defendant , if there are grounds for this .

The procedure for selecting detention as a preventive measure shall be governed by the relevant provisions of LAW of the LAW . ”

“ A case may be remitted for additional investigation on the ground of incompleteness or wrongfulness of the pre - trial investigations only if such incompleteness or wrongfulness can not be remedied [ in the trial ] .

The question concerning the remittal of a case for additional investigation shall be determined by a reasoned ruling of the court or a resolution by the judge ...

The relevant extracts from LAW ( Consideration of the case on appeal ) , as worded at the material time , read as follows :

“ An appeal may be lodged against :

( CARDINAL ) judgments adopted by local courts which have not entered into force ;

( CARDINAL ) resolutions adopted by local courts concerning the application or nonapplication of forced measures of an educational or medical nature ;

An appeal may also be lodged against :

( CARDINAL ) NORP rulings ( resolutions ) adopted by a local court discontinuing the proceedings in a case or remitting a case for additional investigation ;

( CARDINAL ) separate rulings ( resolutions ) adopted by a local court ;

( CARDINAL ) other resolutions of local courts in cases envisaged by the LAW . ”

“ The following persons are entitled to lodge an appeal :

( CARDINAL ) a convict , his legal representative and defence concerning the part of the case relating to the interests of the convict ;

( CARDINAL ) an accused whose case has been remitted for additional investigation , his legal representative and defence , concerning the reasons and grounds for the remittal of the case for additional investigation ;

( CARDINAL ) NORP other persons in cases envisaged by the LAW . ”

“ A court of appeal shall consider the case on DATE determined by the firstinstance court ... ”

Having considered appeals against the decisions envisaged in part CARDINAL of Article CARDINAL of the code , a court of appeal [ has the power to ] :

( CARDINAL ) adopt a ruling leaving the ruling or resolution without any changes and dismissing appeals , quashing the ruling or resolution and remitting it to the court of first instance for fresh consideration ... changing the ruling or resolution ;

( CARDINAL ) NORP dopt a ruling while quashing the first - instance court 's ruling or resolution in full or in part . ”

“ Judicial decisions listed in part CARDINAL of Article CARDINAL of the Code shall be reviewed on appeal in accordance with the requirements of this Chapter ... Appeals lodged against resolutions of a judge delivered pursuant to ORG CARDINAL - CARDINAL , CARDINAL - CARDINAL , CARDINAL , CARDINAL , [ and ] CARDINAL of the Code shall be considered not DATE of its arrival at the court of appeal . [ Case ] material pertinent to the consideration of such appeals shall be obtained promptly on demand .

The relevant extracts from LAW proceedings ) , as worded at the material time , read as follows :

“ The [ following decisions ] may be reviewed in cassation :

( CARDINAL ) NORP judgments , rulings and resolutions of a court of appeal which it has adopted acting as a court of first instance ;

( CARDINAL ) udgments and resolutions of a court of appeal adopted on appeal .

Judgments and resolutions of [ local ] ... courts and rulings of a court of appeal concerning those judgments and resolutions may also be reviewed in cassation . ”

“ The persons listed in LAW may lodge an appeal in cassation against the judicial decisions envisaged in part CARDINAL of Article CARDINAL of the Code .

[ The following persons ] are entitled to lodge appeals in cassation against the judicial decisions envisaged in part CARDINAL of Article CARDINAL of the Code :

“ An appeal in cassation ... against the judicial decisions envisaged in part CARDINAL of Article CARDINAL of the Code shall be scheduled for a hearing in cassation within DATE of its submission to the court of cassation , an appeal in cassation ... against the judicial decisions envisaged in part CARDINAL of Article CARDINAL of the Code – within DATE of the delivery of a ruling admitting the case for consideration in cassation . ”

“ Having considered a case in cassation , the court of cassation shall adopt one of the following decisions :

( CARDINAL ) a decision leaving the judgment , resolution or ruling unchanged and dismissing appeals in cassation ;

( CARDINAL ) a decision quashing the judgment , resolution or ruling and remitting the case for additional investigation or fresh trial or consideration on appeal ;

( CARDINAL ) a decision quashing the judgment , resolution or ruling and discontinuing the proceedings ;

( CARDINAL ) a decision changing the judgment , resolution or ruling .

The relevant extracts from LAW , as worded at the material time , read as follows :

“ Detainees have the right to :

defence in accordance with the legislation on criminal procedure ;

The above provisions were amended on DATE and read as follows :

“ Detainees have the right to :

defend their rights and interests in person or through the assistance of a defence lawyer from the moment of the arrest or placement in custody , as well as to be informed during the placement in custody of the reasons and causes for that placement in custody , to challenge [ the reasons and causes ] before the court , to receive in writing an explanation of the provisions of Articles CARDINAL , DATE , DATE , DATE , DATE , DATE , and CARDINAL of the LAW of GPE , of this section and of other rights of detainees established by law , including the right to defend their rights and interests in person or through the assistance of a defence lawyer from the moment of the arrest ( placement in custody ) , the right to refuse to testify before a defence lawyer arrives ;

The relevant extracts from the Resolution of the Plenary Supreme Court read as follows :

“ CARDINAL . ... Resolutions of local courts remitting cases for additional investigation and rulings [ adopted by ] courts of appeal [ concerning such resolutions ] , as well as rulings of courts of appeal quashing judgments of local courts and remitting cases for fresh investigation or trial shall not be reviewed in cassation ( according to the procedure envisaged by Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) , as they do not , as such , hinder further proceedings in cases . ”


The applicant is the ORG , a limited liability company with its seat in GPE ( GPE ) . It is represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicant is the owner and publisher of the DATE magazine “ News ” .

In its issue no CARDINAL/CARDINAL the magazine published articles reporting on a planned demonstration against racism and the ORG ’s policy , and articles about Mr PERSON , ORG and , at that time , Chairman of ORG ( ORG ) , commenting , inter alia , on his role in the ongoing process of the creation of the new ORG ( Bundesregierung ) after the election of ORG ( PERSON ) in DATE . On the front page it placed a photomontage picturing PERSON symbolising the devil : horns attached to a bald head on a blazing red background . This picture was accompanied by the following text sequences :

“ Arch - enemy PERSON , how he plans to come into power ” and

“ The Demonstration : Who opposes him ” and

“ How he further tries to set fire ”

On DATE Mr PERSON brought compensation proceedings against the applicant company claiming compensation under section CARDINAL of LAW ( Mediengesetz ) for defamation . He argued that the photomontage , picturing him as devil , constituted offences under LAW . Further he requested supplementary measures under LAW , such as the publication of a notice that proceedings under LAW had been opened and the publication of the judgment .

On DATE the ORG ( PERSON ) , without having held a hearing , ordered the applicant company to publish the following notice :

“ Notice pursuant to sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) LAW :

In its issue CARDINAL from CARDINAL DATE the periodical ‘ News’ published on the front page a portrayal of the claimant as devil . Alongside the following headlines were published : ‘ Arch - enemy PERSON , how he plans to come into power’ ; ‘ The Demonstration : Who opposes him.’ ; and ‘ How he further tries to set fire.’

The claimant Dr. PERSON filed an application under LAW because of this front page against the defendant , the Verlagsgruppe News GmbH.

The proceedings are pending . ”

On DATE the applicant company filed an appeal . It stressed that the photomontage on the front page had to be considered in connection with the articles in the magazine , in which it had reported on a planned demonstration and its supporters against the ORG ’s and Mr PERSON ’s policy , against racism in general and against Mr PERSON ’s political position . Further it submitted that the photomontage was easily recognisable as a caricature and that the fundamental message of the publication had been that PERSON PERSON was the “ political arch - enemy ” for many NORP people . The impugned publication had therefore been a value judgment . Finally , the applicant company referred to the ORG ’s PERSON v. GPE judgment ( no.CARDINAL ) of CARDINAL DATE ( Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) , in which the ORG found that the limits of acceptable criticism are wider with regard to a politician acting in his public capacity than in relation to a private individual .

On DATE ORG dismissed the applicant company ’s appeal .

On DATE the ORG , after having held a hearing , sentenced the applicant company to a fine of ORG CARDINAL,CARDINAL and ordered it to publish this judgment in its magazine . It found that the average reader had related the photomontage to the negative characteristics of the devil . The incriminated publication had constituted a debasing denunciation as Mr PERSON had been equated with the evil . However , no factual basis could have been deduced from the accompanying headlines .

On DATE ORG ( Oberlandesgericht ) , after having held a hearing , partly allowed the applicant ’s appeal on points of law and fact ( GPE wegen PERSON ) and the appeal against sentence ( GPE wegen PERSON ) and reduced the fine to ORG CARDINAL . It found that the incriminated publication did not constitute an equalisation with the character of the devil . However , it was placed as eye - catcher on the front page and constituted a striking exposure of Mr PERSON , in which he was described as debased and publicly ridiculed . Further it found that the photomontage could not be regarded as a caricature . Although the limits of acceptable criticism were wider with regard to a politician acting in his public capacity than in relation to a private individual , defamation was prohibited . Balancing Mr PERSON ’s personal interest against the rights of the applicant company under LAW , it found that a politician too was entitled to have his reputation protected , particularly if the debasing picture , taking into account its luridness , had served primarily the company ’s business interests ( the issue CARDINAL/CARDINAL of the magazine “ News ” reached the highest sales volume ever ) . In this case it found that the personal interest in protecting a person ’s reputation outweighed the right secured by LAW as the emphasis of the publication was put on the personal insulting statement . Therefore , the court concluded that the objective elements of the offence of defamation within the meaning of LAW of LAW had been met . Referring to the LAW v. GPE ( no . CARDINAL ) judgment of CARDINAL DATE ( Series A no . CARDINAL ) , it found that the photomontage on the front page had to be considered separately from the reports in the magazine as , in any case , its impact had overlaid all potential factual references . The accompanying headlines had not provided a factual basis for the incriminated photomontage and freedom of expression could not justify the personal insulting statement committed by the publication .

According to LAW , compensation claims may be made either in criminal proceedings against the publisher or , failing such criminal proceedings , in separate proceedings .

If a publication in the media , viewed objectively , constitutes , inter alia , an insult under LAW of LAW , the insulted person may claim compensation for non - pecuniary damages from the media owner , pursuant to section LAW .

Section CARDINAL of LAW , in so far as relevant , reads as follows :

“ CARDINAL . Anyone who , in public or in the presence of several others , insults , mocks , mistreats or threatens to mistreat a third person , shall be liable to imprisonment not exceeding DATE or a fine ... unless he is liable to a more severe penalty under another provision . ... ”

Upon request of the insulted person under section CARDINAL § CARDINAL of LAW , the competent court has to order the publication of a notice to the effect , that compensation proceedings under LAW are pending , if it is to be presumed that the requirements for compensation will be met . If the defendant does not comply with the order to publish the notice , the plaintiff may request the court to impose a fine which can not exceed ATS CARDINAL per published edition of the defendant ’s magazine ( section QUANTITY of LAW ) .

In the case of an insulting statement , the amount of damages payable can not exceed ORG CARDINAL ( section QUANTITY of LAW ) . When fixing the amount to be awarded , the competent court has to give particular consideration to the effect of the insulting publication and the economic situation of the media company .


Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

Flats represented PERCENT of the pre - war housing stock of GPE ( around CARDINAL housing units out of CARDINAL ) . By local standards , they were a particularly attractive type of home , equipped with modern conveniences and located in urban centres . Practically all flats were under the regime of “ social ownership ” – a concept which , while it does exist in other countries , was particularly highly developed in the former ORG ( “ the SFRY ” ) . They were generally built by socially owned enterprises or other public bodies for allocation to their employees , who became “ occupancy right holders ” . All citizens of the SFRY were required to pay a means - tested contribution to subsidise housing construction . However , the amount an individual had contributed was not amongst the legal criteria taken into account in the waiting lists for allocation of such flats .

The rights of both the allocation right holders ( public bodies which nominally controlled the flats ) and the occupancy right holders were regulated by law ( LAW DATE , which is still in force in GPE ) . In accordance with this LAW , an occupancy right , once allocated , entitled the occupancy right holder to permanent , lifelong use of the flat against the payment of a nominal fee . When occupancy right holders died , their rights transferred , as a matter of right , to their surviving spouses ( indeed , spouses held occupancy rights in common ) or registered members of their family households who were also using the flat ( sections DATE and CARDINAL of this Act ) . In practice , these provisions on transfer meant that occupancy rights originally allocated by public bodies to their employees could pass , as of right , to multiple generations for whom the initial employment - based link to the allocation right holder no longer existed . Occupancy rights could be cancelled only in court proceedings ( section QUANTITY ) on limited grounds ( sections CARDINAL , CARDINAL and DATE of this Act ) , the most important of which was failure by the occupancy right holders to physically use their flats for their own housing needs for a continuous period of DATE , without justified grounds ( such as , military service , medical treatment , prison sentence , or temporary work elsewhere in the SFRY or abroad ) . Although inspections were foreseen to ensure compliance with this requirement ( section CARDINAL of this Act ) , occupancy rights were rarely , if ever , cancelled on these grounds prior to the DATE - CARDINAL war . Moreover , on DATE ORG annulled the inspection provisions .

Following its declaration of independence on DATE , a brutal war started in GPE . CARDINAL people left their homes as a consequence of “ ethnic cleansing ” or generalised violence . As a rule , they fled to areas controlled by their own ethnic groups . All parties to the conflict quickly adopted procedures allowing the flats of those who had fled the territory under their control to be declared “ abandoned ” and allocated to new occupancy right holders . While the alleged rationale for the allocation of “ abandoned ” properties was to provide humanitarian shelter to displaced persons , particularly attractive properties – typically urban flats DATE were commonly awarded to the military and political elites . In some cases , occupancy rights were cancelled pursuant to the aforementioned section CARDINAL of LAW DATE , because of failure by the occupancy right holders to use their flats for a continuous period of DATE . In most cases , however , the authorities applied legislation specially enacted for those purposes : GPE DATE , GPE , LAW DATE , LAW DATE and GPE .

The concept of “ social ownership ” was abandoned during the DATE - CARDINAL war . As a result , socially owned flats were effectively nationalised .

On DATE the General Framework Agreement for Peace in GPE ( “ the GPE Peace Agreement ” ) entered into force . Pursuant to that Agreement , GPE consists of CARDINAL Entities : ORG and PERSON . In the immediate aftermath of the war , legislation on abandoned property remained in force in both Entities and reallocation of flats continued nearly unabated , which further reinforced ethnic separation .

All such legislation was repealed in DATE under international pressure . Initially , however , in GPE only those who could prove that they were genuine refugees or displaced persons were entitled to return to their pre - war homes ( former section CARDINAL(CARDINAL ) of ORG . The vague terms of this provision left broad discretion to the housing authorities and reportedly led to abuses . The High Representative therefore repealed it in DATE . Nevertheless , as a result of strong resistance of the military of ORG ( see decision CH/CARDINAL/CARDINAL et al . of ORG of DATE , § CARDINAL ) , a similar restriction remained in force as regards military flats ( section CARDINAL of this Act ) . While this was done on the pretext of creating a pool of flats which could be used to house destitute war veterans and their families , the domestic ORG held that there was no evidence that the property was necessarily being used for this stated purpose ( see , for example , its decision CH/CARDINAL/CARDINAL et al . of DATE , § CARDINAL ) . ORG maintained , in its third - party submissions to that ORG , that many high - ranking military officials in ORG GPE whose housing needs were otherwise met had nevertheless been allocated military flats , in direct contravention of domestic legislation , and that ORG GPE had CARDINAL unclaimed military flats at its disposal to pursue the legitimate aim of housing war veterans without the need to reach out for claimed ones ( see decision PERSON . of ORG of DATE , § CARDINAL ; see also ORG submissions in decision CH/CARDINAL/CARDINAL et al . of ORG of DATE , § CARDINAL ) .

The JNA , the armed forces of the SFRY , nominally controlled QUANTITY flats in GPE until the DATE - CARDINAL war .

On DATE the JNA members were offered the opportunity to purchase their flats at a discount on their market value ( see LAW ) . On DATE GPE and GPE put on hold the sale of military flats on its territory ( see the Suspension on the Sale of Flats Decree DATE ) . The Decree was respected in what is DATE GPE , and those who had purchased military flats located in that Entity could not register their ownership and remained , strictly speaking , occupancy right holders ( a purchase contract does not of itself transfer title to the buyer under domestic law ) . Since the Decree was ignored in what is DATE PERSON , those who had purchased military flats in that Entity became their registered owners .

During the war , the local armed forces ( namely , the ORG , ORG and ORG forces ) assumed the nominal control of all non - privatised military flats on the territory under their respective control . Although on DATE those forces merged into the armed forces of GPE , non - privatised military flats are still under the nominal control of ORG see “ Relevant domestic law and practice ” below ) .

The dissolution of the SFRY was a gradual process which took place in DATE ( see Opinion No . CARDINAL of ORG of ORG on the Former GPE of DATE ) . GPE declared its independence on DATE . It was recognised by ORG and GPE on DATE and admitted to membership of ORG on DATE .

On DATE ORG , acting under LAW , demanded that all units of the JNA and all elements of ORG either be withdrawn from GPE , or be subject to the authority of ORG , or be disbanded and disarmed with their weapons placed under effective international monitoring ( see Resolution CARDINAL ) . While the JNA formally withdrew from GPE on DATE , the ORG Secretary General and ORG for the former GPE ( “ the ORG ” ) , a ORG court of law dealing with war crimes that took place during the conflicts in the LOC in DATE , later established that JNA members born in GPE actually remained there with their equipment and joined the ORG forces and only those born in GPE and GPE left and joined the LAW forces ( see the ORG Secretary General 's report of DATE , ORG , LAW , and the ORG judgment in the PERSON case , IT-CARDINAL - CARDINAL-A , § DATE , DATE ) .

The ORG has also held that the ORG forces were to be regarded as acting under the overall control of and on behalf of ORG and that hence , even after DATE , the armed conflict in GPE between the local NORP and the central authorities of GPE must be classified as an international armed conflict ( see the ORG judgment in the PERSON case , IT-CARDINAL - CARDINAL-A , § § CARDINAL - CARDINAL , DATE , and the ORG judgment in the PERSON case , IT-CARDINAL - CARDINAL-A , § § DATE , DATE ) . It has arrived at a similar conclusion as regards the relationship between neighbouring GPE and ORG ( see the ORG judgments in the PERSON case , IT-CARDINAL - CARDINAL-T , § § CARDINAL - CARDINAL , DATE , and ORG , § § CARDINAL - CARDINAL , DATE ) .

ORG ( “ the ICJ ” ) , the principal judicial organ of ORG , has arrived at a different conclusion in the LAW ( GPE and GPE ) case . It held that despite much evidence of direct and indirect participation by the LAW forces , along with the ORG forces , in military operations in GPE , the acts of those who committed genocide at GPE can not be attributed to GPE under the rules of international law of ORG responsibility ( see the judgment of CARDINAL DATE , § § CARDINAL - CARDINAL ) .

The applicant was born in GPE in DATE . He lives in GPE .

Being a lecturer at a military school in GPE , the applicant was allocated a military flat there in DATE .

On DATE he bought the flat pursuant to LAW . Although he had paid the full purchase price on DATE ( in the amount of MONEY ) , the local authorities refused to register his title ( see paragraph CARDINAL above ) .

On DATE the military school was transferred from GPE ( initially to Sombor and then to GPE ) . On DATE the applicant decided to leave GPE and to continue lecturing at the same military school .

On DATE the applicant made an application for the restitution of his flat in GPE . On DATE his application was rejected pursuant to section CARDINAL of ORG .

On DATE the competent ORG upheld the first - instance decision of CARDINAL DATE .

On DATE the applicant lodged an application with ORG , a domestic human - rights body . He relied on Articles CARDINAL , CARDINAL and CARDINAL of , and LAW No . CARDINAL to , the Convention .

On DATE ORG , on an application for judicial review , quashed the administrative decisions of DATE and CARDINAL DATE for procedural reasons and remitted the case for reconsideration .

On DATE the restitution commission set up by Annex CARDINAL to ORG , before which the applicant pursued parallel proceedings , held that the applicant was neither a refugee nor a displaced person within the meaning of Annex CARDINAL and declined jurisdiction .

On DATE the competent housing authorities refused once again the applicant 's application for restitution pursuant to section CARDINAL of ORG .

On DATE the applicant lodged an application for judicial review . On DATE ORG stayed the proceedings under an instruction from the legislature of ORG .

On DATE ORG GPE formally allocated the disputed flat to PERSON . PERSON , a former member of the ORG forces . It would appear , however , that PERSON . PERSON had lived in that flat even before , since DATE .

On DATE ORG ( which had succeeded ORG in DATE ) found a violation of LAW because of the length of the restitution proceedings and awarded the applicant MONEY for non - pecuniary damage in this connection . Having established the excessive length of the restitution proceedings , ORG held that they did not constitute an effective remedy which would have to be used as a condition for the examination of the applicant 's substantive complaints . In accordance with domestic jurisprudence , it considered that although the purchase contract of DATE had not of itself transferred title to the impugned flat to the applicant , it had conferred on him valuable personal rights ( that is , the rights to occupy the flat and to be registered as owner ) amounting to “ possessions ” within the meaning of LAW No . CARDINAL to the LAW . ORG further held that the situation complained of ( that is , the applicant 's inability to repossess the flat and to register his title to it ) undoubtedly amounted to a continuing interference with the peaceful enjoyment of his “ possessions ” . While assessing the proportionality of the interference , ORG held that the applicant 's service in the VJ forces after the DATE - CARDINAL war demonstrated his disloyalty to GPE . Taking into consideration also the serious shortage of housing units and compensation to which the applicant was entitled , ORG concluded that the interference was justified . It therefore found no violation of LAW No . CARDINAL to the Convention and considered it to be unnecessary to examine the discrimination and LAW complaints .

On DATE ORG quashed the decision of DATE and remitted the case to ORG for reconsideration .

On DATE ORG upheld the administrative decision of DATE .

The applicant has not been allocated a flat in GPE , but receives from the NORP authorities a rent allowance in the DATE amount of MONEY ( ORG ) . It would appear that he has not applied for compensation pursuant to section CARDINALe of the Privatisation of Flats Act DATE ( see paragraph CARDINAL below ) .

On DATE all purchase contracts concluded under LAW DATE were declared void . As explained in paragraph CARDINAL above , this affected flats in GPE only .

On DATE the domestic ORG held that a contract to purchase a military flat , although it had not of itself transferred title to the buyer , conferred on the buyer valuable property rights ( that is , the rights to occupy the flat and to be registered as owner ) which constituted “ possessions ” for the purposes of LAW No . CARDINAL to the Convention . It then found a breach of that Article and ordered GPE to restore the legal validity of all such contracts ( decision CH/CARDINAL/CARDINAL et al . ) .

On DATE ORG amended LAW DATE and ORG . While all such contracts have since been regarded as legally valid , CARDINAL categories of buyers are not entitled to repossess their flats and to register their title ( see section DATE of the Privatisation of Flats Act DATE and section CARDINAL of ORG . First , those who served in foreign armed forces after the DATE - CARDINAL war . Since those who were granted a refugee or equivalent status in a country outside the former SFRY are exempted , the restriction affects only those who served in the forces of the successor ORG and , in reality , almost exclusively those who served in the LAW forces referred to in paragraph QUANTITY above . The second category is those who acquired an occupancy or equivalent right to a military flat in a successor State of the SFRY . At present , people falling into those categories are only entitled to the refund of the amount paid for their flats in DATE plus interest at the rate applicable to overnight deposits ( see section DATE of the Privatisation of Flats Act DATE , as amended on DATE ) . Previously the compensation was calculated differently : the value of a flat was to first be calculated at a rate of approximately ORG QUANTITY , the age of the flat was to then be taken into consideration with the depreciation of PERCENT of its value for DATE .

On DATE ORG considered the amended legislation to still be discriminatory and in conflict with LAW No . CARDINAL to the Convention . It ordered ORG to register the applicants as owners , regardless of their service in foreign armed forces ( decision CH/CARDINAL/CARDINAL et al . ) . The relevant part of that decision ( § CARDINAL ) reads as follows :

“ It could potentially be reasonable and necessary to bar persons serving in a foreign army from the exercise of certain rights ; however service in a foreign army is not a basis for stripping a person of an otherwise valid property contract . ”

ORG , which had succeeded ORG in DATE , followed that approach in decisions ORG of DATE and CH/CARDINAL/CARDINAL of CARDINAL November CARDINAL , but on DATE it decided to depart from that jurisprudence ( decision CH/CARDINAL/CARDINAL et al . ) . It regarded those who had served in foreign armed forces after the DATE - CARDINAL war as disloyal to GPE and held that it was hence justified to strip them of their purchase contracts . The same approach has subsequently been applied in numerous follow - up cases .

On DATE ORG held in a similar case ( also concerning the purchase of a socially owned flat before the DATE - CARDINAL war which had not been followed by the registration of ownership ) that a legally valid purchase contract , although it had not of itself transferred title to the buyer , conferred on the buyer valuable property rights ( notably the right to be registered as owner ) which constituted “ possessions ” for the purposes of LAW No . CARDINAL to the Convention ( see decision CH/CARDINAL/CARDINAL and CH/CARDINAL/CARDINAL of DATE ) .

NORP On DATE ORG held that a tenancy right of limited duration on a military flat in GPE should not be regarded as equivalent to occupancy right for the purposes of the restitution legislation .

Since DATE it has no longer been possible to acquire occupancy rights in GPE ( see section CARDINAL(CARDINAL ) of LAW DATE ) . From that date until DATE members of the armed forces had the opportunity to acquire a tenancy right of unlimited duration on a military flat . Since DATE they have only had the right to acquire a tenancy right of limited duration .

ORG was initialled at a military base near GPE , GPE , on DATE . It entered into force on DATE when it was signed in GPE , GPE . It put an end to the DATE - CARDINAL war in GPE .

The relevant part of ORG ) reads as follows :

“ All refugees and displaced persons have the right freely to return to their homes of origin . They have the right , in accordance with ORG to ORG , to have restored to them property of which they were deprived in the course of hostilities since DATE and to be compensated for any such property that can not be restored to them . Any commitments or statements relating to such property made under duress are null and void . ”

The relevant part of ORG ) provides :

“ All refugees and displaced persons have the right freely to return to their homes of origin . They shall have the right to have restored to them property of which they were deprived in the course of hostilities since DATE and to be compensated for any property that can not be restored to them . The early return of refugees and displaced persons is an important objective of the settlement of the conflict in GPE . The Parties confirm that they will accept the return of such persons who have left their territory , including those who have been accorded temporary protection by third countries . ”

“ Any returning refugee or displaced person charged with a crime , other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former GPE since DATE or a common crime unrelated to the conflict , shall upon return enjoy an amnesty . In no case shall charges for crimes be imposed for political or other inappropriate reasons or to circumvent the application of the amnesty . ”

The Agreement on Succession Issues was the culmination of DATE of intermittent negotiations under the auspices of ORG on the former GPE and ORG ( appointed pursuant to LAW to ORG ) . It entered into force between GPE and GPE , GPE , GPE ( succeeded in DATE by GPE ) , “ the former GPE ” and GPE on DATE . The provision concerning occupancy rights reads as follows :

“ Domestic legislation of each successor ORG concerning dwelling rights ( ' stanarsko pravo/ stanovanjska pravica/ станарско право ' ) shall be applied equally to persons who were citizens of the SFRY and who had such rights , without discrimination on any ground such as sex , race , colour , language , religion , political or other opinion , national or social origin , association with a national minority , property , birth or other status . ”

The relevant principles , endorsed by ORG on ORG in DATE ( E / CN.CARDINAL/Sub.CARDINAL/CARDINAL/CARDINAL ) , are the following :

“ CARDINAL.CARDINAL The Principles on housing and property restitution for refugees and displaced persons articulated herein are designed to assist all relevant actors , national and international , in addressing the legal and technical issues surrounding housing , land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes , lands , properties or places of habitual residence .

CARDINAL.CARDINAL The Principles on housing and property restitution for refugees and displaced persons apply equally to all refugees , internally displaced persons and to other similarly situated displaced persons who fled across national borders but who may not meet the legal definition of refugee ( hereinafter ' refugees and displaced persons ' ) who were arbitrarily or unlawfully deprived of their former homes , lands , properties or places of habitual residence , regardless of the nature or circumstances by which displacement originally occurred . ”

“ CARDINAL.CARDINAL All refugees and displaced persons have the right to have restored to them any housing , land and/or property of which they were arbitrarily or unlawfully deprived , or to be compensated for any housing , land and/or property that is factually impossible to restore as determined by an independent , impartial tribunal .

DATE States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice . The right to restitution exists as a distinct right , and is prejudiced neither by the actual return nor non - return of refugees and displaced persons entitled to housing , land and property restitution .

“ CARDINAL.CARDINAL Everyone has the right to the peaceful enjoyment of his or her possessions .

GPE shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles of international law . Whenever possible , the ' interest of society ' should be read restrictively , so as to mean only a temporary or limited interference with the right to peaceful enjoyment of possessions . ”

“ MONEY should ensure that the rights of tenants , social - occupancy rights holders and other legitimate occupants or users of housing , land and property are recognized within restitution programmes . To the maximum extent possible , GPE should ensure that such persons are able to return to and repossess and use their housing , land and property in a similar manner to those possessing formal ownership rights . ”

“ CARDINAL All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process . Compensation may be monetary or in kind . States shall , in order to comply with the principle of restorative justice , ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible , or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution , or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation .

GPE should ensure , as a rule , that restitution is only deemed factually impossible in exceptional circumstances , namely when housing , land and/or property is destroyed or when it no longer exists , as determined by an independent , impartial tribunal . Even under such circumstances the holder of the housing , land and/or property right should have the option to repair or rebuild whenever possible . In some situations , a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice . ”

The relevant part of the ORG reads as follows :

In the light of the above , the ORG calls on member states to resolve post - conflict housing , land and property rights issues of refugees and IDPs , taking into account the Pinheiro Principles , the relevant ORG instruments , and Recommendation Rec(CARDINAL)CARDINAL of ORG .

Bearing in mind these relevant international standards and the experience of property restitution and compensation programmes carried out in LOC to date , member states are invited to :

ensure that previous occupancy and tenancy rights with regard to public or social accommodation or other analogous forms of home ownership which existed in former communist systems are recognised and protected as homes in the sense of LAW and as possessions in the sense of LAW to the Convention ;

ensure that the absence from their accommodation of holders of occupancy and tenancy rights who have been forced to abandon their homes shall be deemed justified until the conditions that allow for voluntary return in safety and dignity have been restored ;


Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13

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

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

At the material time the applicant , her husband , Mr PERSON , born in DATE , and their CARDINAL children lived in flat no . CARDINAL at CARDINAL FAC , ORG , in GPE . Mr PERSON was disabled as he had had one leg amputated .

At TIME on DATE several armoured personnel carriers ( “ APCs ” ) and ORG vehicles arrived at FAC and TIME armed men wearing camouflage uniforms and masks got out of the vehicles . They broke down the door of the GPE ' flat and entered . The men did not identify themselves but the applicant believed that they belonged to the NORP military because they spoke unaccented NORP and had blue eyes .

The servicemen searched the flat and took money in the amount of MONEY , certain personal items and books on ORG . Then they dragged Mr PERSON out of the bed , forced him onto the floor and beat him . Meanwhile some of them ordered the applicant to go into the kitchen . She obeyed ; once in the kitchen she grabbed a knife , but the servicemen threatened to shoot her unless she dropped it . The men tied the applicant up with adhesive tape and threw her on to the floor . Then they took with them Mr PERSON , who was wearing only his underwear , and left .

The applicant 's neighbour , PERSON , looked through the window and saw masked men in camouflage uniforms dragging out the QUANTITY - naked Mr PERSON . She rushed to the GPE ' flat and found the applicant tied up with adhesive tape and her children crying . After PERSON had untied the applicant they rushed into the street , but heard only the sound of the vehicles . The applicant has enclosed a written statement by PERSON to corroborate her account of the events .

The DATE relatives of PERSON . A. , who lived in the neighbouring district of ORG , came to see the applicant . She had never met them before and believed that her husband did not know PERSON . A. either . They said that PERSON PERSON . A. had also been abducted the previous might by armed men in APCs and asked her whether she had any information about the captives . The applicant replied that she had no information . The applicant has not furnished any statements by the relatives of PERSON . A. concerning the latter 's alleged abduction .

According to the Government , on DATE ORG received from ORG of GPE the applicant 's request to take measures to find her husband , PERSON PERSON , taken on DATE to an unknown destination by unidentified men in camouflage uniforms armed with automatic weapons and who had ORG vehicles .

On DATE the applicant , requesting assistance in the search for her husband , reported his abduction to various ORG agencies , such as the prosecutors ' offices of ORG and GPE , ORG of GPE and ORG .

On DATE ORG informed the applicant that her complaint had been forwarded to ORG .

On DATE ORG informed the applicant that an investigation into her husband 's kidnapping had been instituted on DATE under LAW of LAW ( “ aggravated kidnapping ” ) . The decision to institute the investigation stated , inter alia :

“ On DATE at TIME unidentified men armed with automatic weapons in masks and camouflage uniforms , having broken down the entrance door , entered apartment no . CARDINAL at ORG street , house CARDINAL , building CARDINAL in LOC and forcibly took [ Mr ] PERSON , born in DATE , residing at the above stated address , to an unknown destination . ”

On DATE ORG granted the applicant victim status in case no . DATE . It appears that she was questioned on DATE . According to the Government , she stated that on TIME she had been woken up by noise from the stairwell . She had got dressed and when she had approached the door she had heard her neighbour telling somebody not to break down the door . She had wanted to go out and see what was happening , however at that moment armed men wearing camouflage uniforms and masks had broken down the door and burst into the apartment . Without giving any explanations they had searched the apartment . They had put adhesive tape on her mouth , tied up her hands and feet and thrown her on to the kitchen floor . Then , having taken some minor personal things , books on ORG , subha ( NORP prayer beads ) and money in the amount of RUB CARDINAL they had left , taking her husband with them . When she ran outside she saw an ORG and a UAZ vehicle with its lights off going towards the veterinary clinic . She has had no information about her husband since .

On an unspecified date PERSON was questioned . According to the Government she submitted that on TIME she had heard noise and had gone out to the stairway enclosure . There she had seen somebody breaking down the door between the lobby and the staircase . She had said not to break down the door as she would open it herself . However , unknown persons had broken down the door and entered . They were armed men in masks with automatic guns . CARDINAL of them had said to her in NORP “ Stand back ! ” and had closed the door to her apartment . She had heard them breaking down the door of the GPE ' apartment . When she looked out into the street she saw a man in camouflage uniform with an automatic weapon sitting there . Then she opened the door again and saw an armed man in a mask who noticed her and turned towards her . She got frightened and closed the door . Then she heard the noise in the stairway enclosure and went to the kitchen window to see what was going on in the yard . There she saw a group of CARDINAL men in camouflage uniforms walking fast towards ORG . CARDINAL of them were carrying Mr PERSON . There was nobody else in the street . She left her apartment and went to see the applicant to find out what had happened . The applicant told her that those men had been looking for her husband . They had tied her up but had not touched the children .

On DATE ORG informed the applicant that the investigation into her husband 's kidnapping had been stayed for a failure to identify those responsible .

On DATE and DATE ORG informed GPE of the NORP President in GPE for LAW and the applicant that an investigation in case no . DATE had been instituted on DATE .

On DATE ORG informed the applicant that the investigation in case no . DATE had been stayed for a failure to identify those responsible and that investigative measures were being taken to resolve the crime .

On DATE the applicant was again questioned . According to the Government , she submitted no new information .

On DATE the investigating authorities sent instructions to district prosecutors in GPE to intensify search measures .

On DATE the applicant asked ORG to clarify what stage the investigation into her husband 's kidnapping had reached . She further requested that , if the proceedings had been stayed , the decision to suspend the investigation be quashed .

On DATE PERSON . , the applicant 's neighbour , was questioned . According to the Government , she stated that on TIME of the abduction she had been woken up by the noise . However , she had noticed nothing else and had fallen asleep again . TIME she had learned that Mr PERSON had been abducted .

On DATE Mr B. , another neighbour of the applicant , was questioned . According to the Government , he submitted that he was living with his ex - wife in the apartment next to the GPE . On DATE she had been woken up by loud noise in the stairway enclosure . He had thought that it was thieves , but his wife had said that it was servicemen . She had asked him not to go out and had gone to the window herself . They had heard noise from apartment no . CARDINAL but had not been able to understand what was going on there . In TIME everything had calmed down and they had gone to apartment no . CARDINAL to find out what had happened . There in the kitchen he had seen the applicant who had said that the armed men in camouflage uniforms had taken away her husband . His wife had confirmed that she had seen armed men in camouflage uniforms .

On DATE ORG informed the applicant that the decision to suspend the investigation in case no . DATE was compatible with domestic law and thus there were no reasons to quash it .

On DATE PERSON , who apparently also lived in Bogdana Khmelnitskogo Street , was questioned . According to the Government , she stated that she had no close relationship with the GPE . She had learned about the abduction DATE from her neighbours . PERSON , questioned on the same date , made a similar statement .

On DATE PERSON , the applicant 's neighbour , was questioned . According to the Government , she submitted that on TIME she had been woken up by the noise . She had opened the door to the balcony and had called out to the applicant since she had thought that the noise had been coming out from their apartment . She had heard no reply and had gone down to the applicant 's apartment . There she had seen the applicant who had just been untied by her daughter . PERSON had learned that armed men had taken away Mr PERSON .

On DATE , the applicant 's daughter , was questioned . According to the Government , she stated that on the night of CARDINAL DATE she had been woken up by a horrible noise . Her DATE brother had also woken up and they had got frightened and started to cry . The armed people burst into their apartment . CARDINAL of them ordered her to stop crying and to calm down her brother . They had left in TIME . Then she had heard her mother calling her . PERSON had gone to the kitchen and found her mother there , tied up with adhesive tape . PERSON had untied her , and her mother had run outside . PERSON had not seen her father being taken away .

On DATE the applicant requested ORG of GPE that she be permitted to copy the investigation file , at her own expense .

On DATE the applicant requested ORG of GPE to help her find her husband , who had been kidnapped by armed men in camouflage uniforms .

On DATE ORG of GPE denied the applicant access to the case file , giving the reason that the investigation had not been completed .

On DATE ORG informed the applicant that the investigation into her husband 's kidnapping had been resumed and invited her to visit their LOC on DATE for additional questioning as a victim .

On DATE Mr A. , Mr PERSON 's brother , was questioned . According to the Government , he submitted that he had learned of his brother 's abduction from his cousin . He had been surprised because DATE before his brother had visited him and they had been planting apple trees together .

On DATE the investigation in case no . DATE was again suspended ; the applicant was not promptly informed of the decision .

On DATE the applicant requested ORG to inform her of recent developments in the investigation and to allow her access to the case file .

On DATE she repeated the request .

According to the ORG , in the course of the investigation measures were taken to establish the whereabouts of Mr PERSON and to identify the perpetrators . In particular , requests for information were sent to Departments of the ORG and prosecutors of different levels in GPE and PERSON , ORG in GPE , the NORP penitentiary and passport - visa authorities , ORG and other bodies . As a result of those measures it was established that Mr PERSON had not been detained by ORG authorities and had not been placed in either remand or administrative detention facilities . He was not found in hospitals , nor was his body to be found in any morgue either . No special operations were being conducted by the federal forces in PERSON on the date in question . The investigation did not establish that servicemen were involved in the crime . Operational search measures were being taken in the criminal case .

The Government provided documents related to the investigation on CARDINAL pages , including copies of the decisions to institute the investigation and to grant the applicant victim status and of notifications sent to he application concerning the institution , suspension and resumption of the investigation . The Government enclosed no transcripts of questioning and no other documents concerning the investigative measures allegedly taken .

On DATE the applicant lodged a complaint with ORG of Grozny . She requested that the decision on suspension of the investigation be quashed and that the investigators ' inactivity be found unlawful .

On DATE the applicant requested ORG of Grozny to inform her whether the complaint of CARDINAL DATE had been examined .

On DATE ORG of ORG dismissed the applicant 's complaint having found that the investigators had taken all requisite measures to resolve the crime .

On DATE the applicant appealed against the court 's decision .

On DATE ORG of GPE dismissed the applicant 's appeal , finding no flaws in the investigation .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


Violation of Article 8 - Right to respect for private and family life

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and is currently serving a sentence in ORG no . DATE .

According to the applicant , he was detained and ill - treated in police custody from DATE . There are no further details or documents .

In TIME of DATE the applicant , together with another person , was arrested by the NORP police unit of ORG in flagrante delicto on the scene of a robbery and car hijacking . As it would later be confirmed by CARDINAL eye - witnesses ( see paragraph CARDINAL below ) , the applicant attempted escaping from and showed resistance to the police .

According to the applicant , he pleaded guilty to several counts of robbery under torture . He alleged in particular that he had been heavily beaten with rubber truncheons , hanged with his arms twisted behind him and administered electric shocks .

On DATE the applicant signed the arrest report in confirmation that his procedural rights had been explained to him .

On DATE the applicant was taken to ORG , where a doctor examined him and made a note that he had a bruise under his left eye .

On DATE the investigator submitted to ORG ( Комінтернівський районний суд – “ the PERSON Court ” ) a motion on the applicant 's detention as a preventive measure pending trial . The investigator noted that the applicant was suspected of having committed serious crimes ( CARDINAL counts of robbery with violence on CARDINAL , DATE and DATE ) , had no permanent place of residence and had a criminal record , and thus could hinder the investigation or abscond if at liberty . According to the investigator , the applicant had fully admitted his guilt .

On DATE ORG remanded the applicant in custody , having upheld the investigator 's reasoning .

On DATE ORG extended the term of the applicant 's detention to DATE , having referred to the necessity to complete the investigation .

On DATE the applicant was committed for trial .

No further documents concerning the applicant 's detention are available in the case file .

While having raised a general complaint about the conditions of his detention , the applicant did not describe them until in response to the information submitted by the Government .

According to the information provided by the Government , from DATE to CARDINAL DATE the applicant had been held in CARDINAL different cells , the smallest of which had measured QUANTITY ( the applicant had spent DATE there , sharing with another inmate ) , while the largest one had measured QUANTITY ( where he had stayed for DATE , sharing with QUANTITY other inmates ) . Each of the cells had a toilet separated from the living area , sufficient natural and artificial light , operational heating , ventilation , water supply and sewage system .

As it transpires from a note by the ORG PERSON administration issued on an unspecified date , disinfection , disinsection and rat extermination were regularly carried out on the GPE premises .

The Government provided CARDINAL colour photos of the cells the applicant had been detained in . The photos showed that the cells were clean and looked as if they had been repaired not long before the photos had been taken . They had sufficient natural light ; the lavatories were separated from the living area and appeared to be clean .

The applicant contested the accuracy of the information submitted by the Government in so far as the number of inmates per cell was concerned and alleged that there had been more detainees in the cells than indicated by the Government . He also alleged that he had not been detained in the cells shown in the photos .

On DATE the NORP ORG of Odesa ( PERSON районний суд – “ the Malynovskyy Court ” ) , to which the case had been transferred from ORG on an unspecified date , found the applicant guilty of CARDINAL counts of robbery with violence , committed on CARDINAL , DATE and DATE by a group of persons acting in concert , and sentenced him to DATE imprisonment with confiscation of all his personal property . The court based its findings , inter alia , on the testimonies of the victims of all CARDINAL instances of robbery , medical reports concerning the injuries they sustained during those robberies , as well as material evidence ( certain items seized from the applicant and recognised by the victims as the stolen ones ; CARDINAL knives , a hammer and a sack discovered in the car , which the co - defendants had left immediately before their arrest ) . The court also heard CARDINAL eye - witnesses of the applicant ' 's face noted on DATE might have been sustained in the course of his fight with the police prior to his arrest .

On DATE the ORG ( GPE суд GPE області ) upheld that verdict .

The applicant appealed in cassation , alleging that his conviction was not based on solid evidence . The cassation appeal did not contain any allegation of ill - treatment in police custody .

No information about the final outcome of the proceedings has been provided by the parties . However , it appears from the case file that ORG found against the applicant .

The applicant 's letters to the ORG dated DATE , CARDINAL May , DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE , as well as DATE , CARDINAL DATE and DATE , were accompanied by cover letters , signed by the Governor of the Odesa GPE , which contained a brief summary of their contents ( for example : “ Please find attached a complaint by the accused , GPE , concerning his rights and the conduct of the investigation in his case ” , “ ... concerning his case and actions of the police officers ” , “ ... concerning the judge 's actions ” , “ ... concerning the defence of his rights ” , “ ... concerning the withdrawal of his case ” , etc . ) .

The first page of each of the CARDINAL letters from the applicant to the ORG bore the GPE stamp with the dispatching date noted in handwriting ( CARDINAL of those had been sent before DATE , the other CARDINAL on various dates after DATE see paragraph CARDINAL below ) .

From DATE ORG requested the applicant CARDINAL times to submit documents in substantiation of his complaints under Articles CARDINAL and CARDINAL of the Convention .

Each of the requests was followed by a letter from the applicant , in which he noted that : there were no copying facilities in the GPE and that he would copy the documents by hand ; the facts of his case were self - explanatory ; the prospects of GPE 's accession to ORG were poor given the alleged violations in his case ; and the witnesses allegedly required protection for unspecified reasons . The applicant made no explicit reference to the ORG 's requests .

The applicant 's letters reached the ORG on average DATE following their dispatch .

The case file contains copies of CARDINAL stamped certificates issued by ORG to the PERSON administration in confirmation that it had accepted correspondence from detainees ( including the applicant ) to be sent to ORG . It also contains copies of extracts from the GPE logbooks of incoming and outgoing correspondence and “ correspondence delivery acts ” signed by the ORG officials .

DATE and DATE ( with the exact date not documented due to a technical mistake ) , the ORG received a ten- page letter from the applicant dated DATE , in which he outlined his vision for the reform of penitentiaries in GPE with a view of improving the conditions of detention . It was accompanied by a cover letter from the PERSON administration dated DATE , according to which its registered number was CARDINAL - CARDINAL-G-CARDINAL . The case file contains a copy of a post office receipt of DATE for the dispatch , inter alia , of letter CARDINAL - CARDINAL-G-CARDINAL from Mr Glinov .

By a letter of CARDINAL DATE , which reached ORG on DATE , the applicant sought the withdrawal of his application referring to “ ... the failure [ of the PERSON administration ] to forward [ his ] letter to ORG in CARDINAL pages ; a partial change of the charges against [ him ] on DATE ; a ruling of the court and ... the intense pressurising by the authorities ... ”

On DATE the ORG sent a letter to the applicant informing him that his application had been struck out of the list by decision of ORG on DATE .

On DATE the ORG informed the applicant about the restoration of the application to the list of cases and its communication to the respondent Government on DATE .

Following the communication of the application to the ORG , the applicant 's correspondence with the ORG continued , with some of his letters bearing the GPE stamp ( see paragraph CARDINAL above ) .

Section CARDINAL of ORG , before it was amended on DATE ( with the amendments having entered into force on DATE ) , had provided for monitoring by the administration of detention centres of applications , complaints and letters of detainees , with an exception of correspondence with the ORG and with the prosecutor , which could not be monitored .

By the amendments of DATE to the above LAW , the list of exceptions was extended to include correspondence with the ORG .

ORG and Pre - trial ORG , approved by Order no . CARDINAL of ORG of DATE , elaborates the above provision as follows :

“ CARDINAL . ... Correspondence of prisoners and detainees with the Ombudsman of the Verkhovna Rada of GPE , ORG , as well as with other relevant international organisations of which GPE is a member or participant , authorised persons of those international organisations or prosecution authorities , shall not be subject to censorship and shall be dispatched or handed to the prisoner or detainee within TIME . ...

Prisoners or detainees shall personally and in the presence of the inspector seal the envelopes with correspondence addressed to the Ombudsman of the Verkhovna Rada of GPE , ORG , as well as to other relevant international organisations of which GPE is a member or participant , to authorised persons of those international organisations or prosecution authorities . Prisoners or detainees shall personally and in the presence of the inspector open letters received from the Ombudsman of the Verkhovna Rada of GPE , ORG , as well as from other relevant international organisations of which GPE is a member or participant , from authorised persons of those international organisations or from prosecution authorities . ... ”

Article CARDINAL of LAW in Proceedings of ORG , ratified by GPE on DATE and in force for it since DATE , reads as follows :

“ CARDINAL . The Contracting Parties shall respect the right of the persons referred to in paragraph CARDINAL of Article CARDINAL of this Agreement to correspond freely with the Commission and the ORG .

As regards persons under detention , the exercise of this right shall in particular imply that :

a ) if their correspondence is examined by the competent authorities , its despatch and delivery shall nevertheless take place without undue delay and without alteration ;

b ) such persons shall not be subject to disciplinary measures in any form on account of any communication sent through the proper channels to the ORG or the ORG ;

c ) such persons shall have the right to correspond , and consult out of hearing of other persons , with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the ORG , or any proceedings resulting therefrom .

In application of the preceding paragraphs , there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a NORP society in the interests of national security , for the detection or prosecution of a criminal offence or for the protection of health . ”