Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

PERSON is a physicist by training and has dual NORP and NORP nationality . He was formerly the chairman and managing director of ORG ( ORG , " EVO " ) , a publicly owned company .

ORG On DATE , following a complaint lodged on DATE by the Deputy Minister of Defence , the prosecutor at ORG ) sought the opening of an investigation in respect of the applicant in connection with alleged offences of misappropriation and repeated fraud to the detriment of ORG , making false statements and incitement to misappropriation and fraud . In a further application of DATE the prosecutor sought an extension of the investigation to cover alleged offences of misappropriation by a civil servant in the performance of his duties .

ORG On DATE the investigating judge at ORG , after questioning the applicant , charged him on several counts of aggravated misappropriation by a civil servant in the performance of his duties , and making false statements . On DATE , by order no . CARDINAL , he remanded PERSON in custody with effect from QUANTITY DATE , the date of his arrest , on the grounds that there was sufficient prima - facie evidence of his guilt and that it was necessary to prevent him from absconding and to make sure that he did not commit further offences . On DATE ORG of ORG ( symvoulio plimmeliodikon ) ordered that he was to remain in detention on remand .

ORG On DATE the applicant applied for release on bail . DATE the investigating judge rejected this application on account of the seriousness of the charges against the applicant , the severity of the penalties which he risked and the danger that evidence not yet brought to the prosecuting authorities ' attention might be concealed . He noted in that connection that the accused had held an influential post at the head of a ORG undertaking and had contacts with civil servants who , at his instigation , might suppress documentary evidence and provide false certificates or make false statements . Moreover , PERSON had kept his NORP nationality and could thus go to GPE at any time . Lastly , his academic qualifications , his knowledge of languages and his professional experience would have made it easy for him to settle in a foreign country . There was accordingly a risk that the applicant might abscond .

ORG On DATE the investigating judge at ORG charged the applicant , in connection with the same investigation , with misappropriation and fraud relating to expenditure he had incurred and a number of contracts he had concluded on behalf of ORG with a NORP company . The judge in question then made a second order ( no . CARDINAL/CARDINAL ) remanding PERSON in custody .

ORG On DATE , still in connection with the same investigation , the same judge charged the applicant on a number of counts of aggravated misappropriation to the detriment of ORG , linked in particular to the payment of commissions during negotiations concerning arms sale contracts .

ORG On DATE a full court ( olomelia efetiou ) of ORG decided , LAW , to assign the investigation of the CARDINAL cases known as the " ORG cases " to a judge at ORG in order to complete the pre - trial procedure " as rapidly as possible " .

ORG On DATE ORG special investigating judge charged the applicant and a large number of his former colleagues on a number of counts of misappropriation by a civil servant in the performance of his duty . He also made a further order remanding the applicant in custody ( no . CARDINAL/CARDINAL ) , which was executed on DATE

ORG On DATE PERSON appealed against this order to ORG of ORG ( symvoulio efeton ) . He alleged that his continued detention infringed LAW para . CARDINAL of the LAW ( see paragraph CARDINAL below ) and that the order failed to give sufficient reasons .

In a decision ( voulevma ) of DATE ORG dismissed the appeal as out of time , since it had been lodged after expiry of the DATE period laid down in Article CARDINAL para . CARDINAL of the Code of Criminal Procedure .

ORG On DATE the investigating judge informed the applicant , in accordance with Article CARDINAL para . CARDINAL of LAW , that he had closed the investigation . On DATE the prosecutor sent the file to ORG so that it could decide whether to commit the applicant for trial ( see paragraph CARDINAL below ) .

ORG On DATE PERSON unsuccessfully applied for release on bail . ORG - before which he had in addition requested leave to appear in order to be able to reply to the prosecutor 's submissions - dismissed his application on DATE on the ground that the investigating judge 's decision was sufficiently reasoned and well - founded in law .

ORG In the meantime , on DATE , the principal public prosecutor at ORG had asked ORG to prolong PERSON 's detention for a further DATE period .

On DATE the applicant sought ORG leave to appear before it in order to present argument in support of his application for release . He emphasised that the legislation in force made no provision for the appearance of the parties and in particular of the accused or his counsel during the proceedings before investigating judges or indictment divisions ; this was a lacuna and a flaw in the legislation , stemming from the inquisitorial nature of the system and from the principle of confidentiality , which often ran counter not only to the accused 's defence rights but also to the interests of justice . While acknowledging that Article CARDINAL para . CARDINAL of LAW to that stage of the proceedings - did not contain any provision similar to that in LAW para . CARDINAL ( see paragraphs CARDINAL and CARDINAL below ) , he relied on the latter provision by analogy and on the fact that his detention had been prolonged beyond the DATE limit laid down in the LAW ( see paragraph CARDINAL below ) to support his contention that he should be allowed to appear before ORG .

In a decision of DATE ORG allowed the prosecutor 's application - after hearing him on DATE in the absence of the accused - and confirmed the prolongation of the applicant 's detention on remand . Neither the prosecutor nor ORG dealt with the applicant 's arguments concerning his application for leave to appear .

ORG On DATE and DATE Mr Kampanis complained of the length of his detention on remand to the prosecutor at ORG and the principal public prosecutor at ORG .

ORG On DATE he again requested his release . In support of his application he maintained that , if the correct legal classification were given to the offences of which he was accused , the length of detention on remand in respect of the offences referred to in the last CARDINAL detention orders ( see paragraphs CARDINAL above ) would have to be calculated from the date of his imprisonment under the first order , of DATE ( see paragraph CARDINAL above ) ; the continuation of his detention after DATE was therefore unlawful .

In a decision ( no . CARDINAL/CARDINAL ) of CARDINAL DATE ORG rejected the application on the ground that the offences cited in the second and third detention orders had each been constituted by a separate criminal act ( see paragraphs CARDINAL above ) .

ORG On DATE the applicant submitted a further application for release to ORG , before which the question of his committal for trial was then pending . He argued that his detention was based on the successive orders of DATE , DATE and CARDINAL DATE , each of which had fixed a new starting - point for calculating the length of detention , and that as a result he had remained in prison , without being committed for trial , for DATE and DATE , whereas the maximum period authorised under Article CARDINAL para . CARDINAL of the LAW was DATE or , in exceptional circumstances , DATE . Such a period , whose length , he argued , was due to the slow progress of the investigation , the splitting up of the alleged offences into separate sets of charges and the making of successive detention orders , was in breach of the Greek Constitution and of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention as interpreted by ORG and ORG . He also complained that ORG had not yet ruled on his complaint of a violation of the LAW , although he had already raised it several times . Lastly , he requested leave to appear with his lawyer in order to put forward his arguments .

ORG On DATE ORG heard the prosecutor , who expanded on the written submissions he had filed DATE .

ORG On DATE ORG dismissed PERSON applications ( decision no . CARDINAL/CARDINAL ) . It held that LAW neither specified what was a reasonable length of time for an accused to be held in pre - trial detention nor laid down a procedure for deciding whether to release him . On the other hand , these matters were specifically dealt with in Articles CARDINAL and CARDINAL of LAW and LAW para . CARDINAL of the LAW .

It noted that the accused had initially been detained for DATE under order no . CARDINAL of DATE and that at DATE he had been " released but only nominally " , since in the meantime CARDINAL further orders had been made against him , namely the order of DATE ( no . CARDINAL ) , extended by virtue of LAW para . CARDINAL until DATE ( and in respect of which the application concerned was now devoid of purpose ) , and the order of CARDINAL DATE ( no . CARDINAL/CARDINAL ) , which was still valid .

After examining the whole of the proceedings to date and referring in particular to its decision of CARDINAL DATE ( see paragraph CARDINAL above ) , it held that PERSON contention that some of the separate offences he had been charged with in fact constituted a single offence - and , in the alternative , that the separate offences alleged against him derived from a single criminal act - went to the merits of the charges and the legal classification of the offences in issue . ORG task under LAW para . CARDINAL of LAW was to determine at first and last instance whether the charges were lawful and whether there was a case to answer . It would therefore give a final decision on the questions raised by the applicant only after weighing all the evidence . It would then decide at the same time whether to prolong the detention or order the applicant 's release ( Article CARDINAL para . CARDINAL of the Code of Criminal Procedure - see paragraph CARDINAL below ) . The application for release of CARDINAL DATE , which had the same purpose and was based on the same evidence as the application of DATE , was accordingly premature and should be declared inadmissible .

Lastly , ORG held PERSON application for leave to appear in person to be ill - founded . On this point it followed the reasoning of the prosecutor , who had argued in his submissions of CARDINAL DATE that such an appearance " [ could ] be contemplated only where ORG [ was ] about to rule on the merits of the case or in those cases where it [ was ] specifically provided for by law ( ORG , judgment no . PERSON , PERSON , vol . DATE , p. CARDINAL ) " ( see paragraph CARDINAL below ) .

ORG In the meantime , on DATE , ORG , having before it the question whether to commit PERSON for trial ( see paragraph CARDINAL above ) , had heard the prosecutor , who had withdrawn after making his submissions . In a written submission of DATE he had applied for the applicant 's committal and prolongation of his detention under order no . PERSON ( see paragraph CARDINAL above ) . On DATE the applicant sought leave to appear before ORG .

ORG In a decision ( no . CARDINAL/CARDINAL ) of CARDINAL DATE , which ran to CARDINAL pages , ORG , after deliberating on DATE and CARDINAL DATE , committed the applicant and CARDINAL of his co - accused for trial at ORG sitting as a court of criminal jurisdiction and composed of CARDINAL judges ( PERSON efetio kakourgimaton ) . It indicted the applicant , as the chairman and managing director of a publicly owned company , on several counts of aggravated misappropriation and fraud , these being acts which constituted continuous offences . It also indicted him on a charge of making false statements in his capacity as a civil servant . It further held that the circumstances in which these crimes had been committed showed that PERSON was particularly dangerous , and accordingly ordered that his detention should continue .

With regard to the applications for leave to appear lodged by the applicant and his co - accused , ORG noted that the written submissions accompanying them were so comprehensive that oral clarification was not necessary . In addition , the pleadings lodged on their behalf after the prosecutor 's submissions adduced no new material and did not affect the assessment of the evidence . More particularly , with regard to the applicant , ORG held that , without breaching LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) , it could refuse to examine his application on the ground that it had been submitted on DATE , and therefore after the hearing of CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG On DATE PERSON again applied for release and for leave to appear in person . He repeated his argument that the length of his detention on remand was in breach of the LAW and LAW . He submitted that the starting - point of this period was the date on which he was first imprisoned in respect of CARDINAL of the acts constituting the continuous offence . Consequently , the period concerned had considerably exceeded the DATE limit laid down by the LAW and he should be released . In the alternative , he asked to be placed under judicial supervision under LAW para . CARDINAL of the Code of Criminal Procedure ( see paragraph CARDINAL below ) .

ORG On DATE ORG heard the prosecutor , who lodged the case file and the submissions he had drawn up DATE .

On DATE ORG held a hearing at which the applicant addressed the court , in the prosecutor 's presence . It appears from the record that he repeated in substance the arguments set out in his pleading of DATE . He was given until DATE to file further observations .

ORG In a decision ( no . CARDINAL ) of CARDINAL DATE ORG rejected the application . The CARDINAL orders remanding the applicant in custody , made on DATE and DATE by the investigating judge of ORG ( see paragraphs CARDINAL above ) , had lapsed on DATE and DATE respectively . PERSON 's position was now governed only by the order of CARDINAL DATE made by the special investigating judge of ORG ( see paragraph CARDINAL above ) . Consequently , the length of his detention had to be calculated from that date and not from the date on which the applicant was first imprisoned . ORG gave as the reasons for its decision the fact that there had been a number of separate offences each constituted by a separate criminal act , the need for a second investigation , the applicant 's refusal to co - operate and the complexity of the case , whose elucidation had required numerous audits in addition to the judicial investigation .

In a further decision ( no . CARDINAL ) , of CARDINAL DATE , ORG decided to prolong the applicant 's detention on remand for DATE .

ORG On DATE and CARDINAL DATE ORG dismissed PERSON 's appeals on points of law against the decisions of CARDINAL and CARDINAL DATE on the ground that no such appeal lay against those decisions ( Articles CARDINAL para . CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ) .

ORG The applicant was released on CARDINAL DATE . In the meantime , on DATE , the trial had begun before ORG , sitting with CARDINAL judges .

ORG On DATE ( judgment no . CARDINAL ) , at the end of a trial that had lasted DATE , the court found the applicant guilty on a number of counts of aggravated misappropriation and sentenced him to DATE imprisonment . It deducted from that term the period of DATE , DATE he had spent in detention on remand and fixed the outstanding term at DATE and DATE .

On DATE ORG , sitting with CARDINAL judges to hear an appeal lodged by PERSON against judgment no . DATE , held that the offences should be classified as less serious offences and reduced the sentence to DATE and DATE imprisonment , from which it deducted his detention on remand and his imprisonment up to that date ( from DATE to CARDINAL DATE ) . Lastly , it held that the ORG was under no duty to pay the applicant damages for the extra period during which he had been deprived of his liberty .

ORG Article CARDINAL para . CARDINAL of LAW provides :

" The maximum length of detention on remand shall be laid down by law and may not exceed DATE in connection with offences classified as serious crimes or DATE in connection with less serious offences . In very exceptional cases these maximum limits may be extended by DATE respectively by order of the competent ORG . "

ORG At the material time , LAW , which concerns the maximum limits of detention on remand , provided :

" CARDINAL . Where , during an investigation , detention on remand has lasted DATE in the case of offences classified as serious crimes , or DATE in the case of less serious offences , the investigating judge must within DATE send the principal public prosecutor at ORG a report setting out the reasons why the investigation has not been completed . The latter shall transmit the case file to the public prosecutor , who shall refer it to ORG . After hearing the parties or their counsel , who shall be given notice to appear CARDINAL before the deliberations , ORG shall give a final , reasoned decision on the question whether to prolong detention or release the accused .

In all cases , and including the period between the end of the investigation and the adoption of the final decision , detention on remand in respect of a single offence shall not exceed DATE where the offence is classified as a serious crime or DATE where it is a less serious offence . In exceptional circumstances the competent ORG may make a reasoned order or orders , against which no appeal shall lie , extending these limits by DATE respectively ...

Where a case is pending before the investigating judge and the accused 's detention on remand has been prolonged in accordance with paragraph CARDINAL of this Article , the investigating judge must transmit the file to the public prosecutor , DATE before the date on which the maximum period of detention on remand provided for in this paragraph is due to expire , together with a report stating the reasons why it is necessary to extend detention on remand . The public prosecutor shall forward the file and the above - mentioned report to ORG with his proposal . In all other cases the competent prosecutor must submit to ORG , CARDINAL before the date on which the maximum period of detention on remand provided for in this paragraph , or an extension period previously ordered , is due to expire , a proposal calling for the detention order to be either extended or rescinded .

Any uncertainty or disagreement about the maximum limits for detention on remand set out in the first and second paragraphs of this Article shall be determined by the competent ORG , which must give the accused notice to appear TIME beforehand . Either the accused or the prosecutor may appeal on points of law against the decision of ORG . "

This last paragraph was inserted by Law no . CARDINAL/CARDINAL , LAW of which gave it retrospective effect from DATE .

Article CARDINAL paras . CARDINAL and CARDINAL , as amended by PERSON no . CARDINAL of DATE , now provide as follows :

" CARDINAL . Where detention on remand has lasted DATE in the case of offences classified as serious crimes , or DATE in the case of less serious offences , ORG shall give a final , reasoned decision on the question whether to prolong detention or release the accused . To that end :

( a ) Where the investigation is still in progress , the investigating judge must , within DATE period mentioned above , send the principal public prosecutor at ORG a report setting out the reasons why the investigation has not been completed and transmit the file to the prosecutor at ORG , who shall communicate it within DATE to ORG . DATE at the latest before the latter 's deliberations the accused shall be given notice to appear , either in person or represented by his lawyer , whom he shall instruct by means of a letter countersigned by the prison governor . ORG shall give its decision after hearing the accused or his lawyer , if they are present , and the prosecutor . Where the investigation is being conducted by a judge of ORG pursuant to LAW , the decision shall be given by ORG .

( b ) After the end of the investigation , and within DATE period mentioned above , the prosecutor at the court in which the case is to be tried or at ORG ... must transmit the file , together with a reasoned proposal , to ORG which has jurisdiction pursuant to the provisions of the following paragraph . In other respects the provisions of sub - paragraph ( a ) shall apply .

In all cases , and until adoption of the final decision , detention on remand in respect of a single offence shall not exceed DATE where the offence is classified as a serious crime or DATE where it is a less serious offence . In exceptional circumstances these limits may be extended by DATE respectively by a reasoned decision , against which no appeal shall lie , of

( a ) ORG of ORG ... ;

( b ) ORG of ORG ... Where the investigation is pending before the investigating judge and the accused 's detention on remand has been prolonged in accordance with paragraph CARDINAL , the investigating judge must transmit the file to the prosecutor DATE before the date on which the maximum period of detention on remand provided for in this paragraph is due to expire . The prosecutor shall forward the file to ORG , together with a reasoned proposal , within DATE . In all other cases the competent prosecutor must submit to ORG having jurisdiction , CARDINAL before the date on which the maximum period of detention on remand provided for in this paragraph , or an extension period previously ordered , is due to expire , a proposal calling for the detention order to be either extended or discharged . In other respects the provisions of the previous paragraph concerning service on the accused of notice to appear and the obligation to hear the accused and the prosecutor shall apply . "

ORG Where there are concurrent offences constituted by the same act or where an offence has been committed by a number of acts carried out over a period of time ( continuous offence ) , the periods laid down in LAW are calculated from the date of the first order remanding the accused in custody for CARDINAL of the concurrent offences or for CARDINAL of the acts constituting the continuous offence ( Article FAC ) . On the other hand , where the accused is charged in respect of separate acts constituting separate offences , the time - limit for detention in respect of each of the offences concerned is specific and Article FAC is not applicable .

ORG Where the accused 's detention on remand is prolonged after his committal for trial , the competent ORG may place him under judicial supervision at his or the prosecutor 's request or even of its own motion ( Article CARDINAL para . CARDINAL ) .

ORG In accordance with LAW , the deliberations of indictment divisions are not public . Decisions are taken by a majority , after the prosecutor has been heard and has withdrawn ( LAW .

ORG The investigating judge must inform the parties when the investigation has been closed and transmit the case file to the prosecutor . The parties may then request the prosecutor - even orally - to provide them with a copy of the submissions he intends to make to ORG . If they make such a request , the prosecutor is required to serve notice on them within TIME inviting them to appear before him for that purpose . From that time onwards the parties may seek leave to appear in person before ORG . If , on the other hand , they do not request a copy of the submissions , the prosecutor is discharged from any obligation to serve notice on them . However , his written submissions are filed at the public prosecutor 's office and the parties may inspect them even if , in the meantime , the submissions have been sent to ORG ( Article CARDINAL ) .

ORG has held that an application for leave to appear in person must be lodged not later than the deliberations of ORG at which the prosecutor makes his submissions ( Court of Cassation , judgments ORG . CARDINAL/CARDINAL and PERSON ) .

ORG powers , after the end of the investigation , are governed by LAW , which provides :

" CARDINAL . ORG may ( a ) rule that there is no case to answer ; ( b ) permanently discontinue the criminal proceedings ; ( c ) suspend the criminal proceedings , but only for the crimes of murder , robbery with violence , extortion , theft ... or arson ; ( d ) order further investigative measures ; or ( e ) commit the accused for trial at the competent court .

On receipt of an application for leave to appear from CARDINAL of the parties , ORG must order the parties ' appearance so that they may provide in the presence of the prosecutor any necessary clarifications . It may , in addition , give counsel leave to present argument on the case orally . ORG may also make such an order or give such leave of its own motion . It may not reject an application for leave to appear except for precise reasons which must be explicitly set out in its decision . Where it orders the appearance of CARDINAL of the parties , it must also summon and hear the other ... "

The reasons for which indictment divisions may dismiss applications for leave to appear are a matter for their discretion and have been laid down in case - law . The Government cite in their memorial the examples of the danger of disorder , the risk of the accused 's escape or his ill - treatment at the hands of the public , the impossibility of a rapid transfer , etc . However , the majority of applications for leave to appear ( PERCENT , according to certain estimates ) are refused on the ground that the accused has had a sufficient opportunity to set out his arguments in his pleading . Nevertheless , it is established case - law that a rejection for reasons not explicitly set out is null and void under Article CARDINAL para . CARDINAL ( d ) .

ORG An ORG commits the accused for trial when it considers that there is sufficiently cogent evidence to support a charge alleging a specific offence ( Article CARDINAL ) . At the same time , if the accused is still detained , it decides whether he should remain in detention or be released ( Article CARDINAL para . CARDINAL ) .

ORG In judgment no . PERSON , to which the prosecutor referred in his submissions of CARDINAL DATE opposing PERSON 's application for leave to appear ( see paragraph CARDINAL above ) , ORG held :

" ... the accused 's right to seek leave to appear before ORG in order to clarify his argument exists ... , after the investigation has been closed and until adoption of the final decision , only in those cases specifically provided for by law , such as review of the length of detention on remand ( LAW ) . It follows that an application for leave to appear in person lodged by an accused person seeking to have his detention on remand terminated or to be placed under judicial supervision is inadmissible . Moreover , it was not possible under the previous legislation ... where ORG was considering an application for release ... That is evident more particularly from ( a ) the title under which LAW appears , namely ' ORG after the investigation has been closed ' , ( b ) the position of paragraph CARDINAL of that Article just after paragraph CARDINAL , which lists the circumstances in which ORG has to rule on the merits of a case , ( c ) the fact that whereas the appearance of the accused or their counsel is provided for by LAW which governs matters relating to the maximum limits of detention on remand - it is not provided for by ORG , CARDINAL , CARDINAL and CARDINAL ... , and ( d ) the purpose of Article CARDINAL para . CARDINAL ... , which gives each of the parties the opportunity to present argument to ORG clarifying , or providing further particulars of , the case before the court . But that opportunity is only conceivable where ORG has to rule on the merits of a case . Adversarial argument before ORG concerning an application to substitute judicial supervision for detention on remand is moreover inconceivable ... That being the case , the appeal before the court is not provided for by law and must be rejected as inadmissible . "


No violation of Art. 5-4;No separate issue under Art. 6-1

The applicant was born in DATE and lives in GPE .

On DATE the ORG ( PERSON für PERSON ) ordered the applicant 's pre - trial detention on suspicion of attempted sexual coercion ( geschlechtliche GPE ) . The court based the suspicion against the applicant on the statement of the victim , who had identified the applicant in an identity parade . Further , it considered that , given the applicant 's criminal record , there was a risk that he might commit another offence similar to the one of which he was suspected ( GPE ) .

On DATE the ORG , after a hearing held in the presence of the public prosecutor , the applicant and his defence counsel , ordered that the applicant 's pre - trial detention should continue . Referring to the testimony of the victim , it found that there was a reasonable suspicion against the applicant . Further , there was a risk that he might commit another offence similar to the CARDINAL of which he was suspected . The court stated that the applicant had CARDINAL previous convictions , mainly for property - related offences , but recently also for violent crimes . The court found that , in the light of the applicant 's recidivism and his character , the prolongation of his pre - trial detention was reasonable . The applicant appealed against this decision .

On DATE ORG ( Oberlandesgericht ) , sitting in private , dismissed the appeal and upheld ORG decision .

On DATE the ORG , after holding a hearing in the presence of the parties , dismissed an application for the applicant 's release and ordered the continuation of his pre - trial detention . The applicant lodged an appeal against this decision .

On DATE the applicant lodged another application for release . He stressed that there were no reasons to maintain his pre - trial detention .

On DATE the public prosecutor 's office ( Staatsanwaltschaft ) filed the bill of indictment . The applicant appealed against it .

On DATE ORG , having held a hearing in the presence of the parties , ordered that the applicant 's pre - trial detention should continue .

On DATE the applicant appealed against this decision . He submitted that there was no reasonable suspicion against him as the testimony of the only witness for the prosecution had been contradictory .

On DATE ORG , sitting in private , dismissed the applicant 's appeal against the bill of indictment and the appeals against ORG decisions of DATE and DATE . It found that there was no doubt about the credibility of the witness and that there was therefore a reasonable suspicion against the applicant . Further , it upheld ORG repeated finding that reasons for detention on remand ( GPE ) existed .

On DATE the applicant lodged a fundamental rights complaint ( Grundrechtsbeschwerde ) with ORG ( Oberster Gerichtshof ) against this decision . He submitted that there was no strong suspicion against him and that there were no reasons to maintain the detention on remand .

On DATE ORG , sitting in private , dismissed the complaint . It found that there was no doubt about the credibility of the witness and that reasons for the applicant 's detention on remand subsisted .

On DATE ORG , sitting with CARDINAL professional and CARDINAL lay judges , held a public hearing , convicted the applicant of attempted sexual coercion and sentenced him to DATE imprisonment .

On DATE ORG rejected the applicant 's plea of nullity .

On DATE ORG dismissed an appeal by the applicant , but allowed CARDINAL lodged by the public prosecutor and increased the term of imprisonment to DATE and DATE .

Article CARDINAL of the Code of Criminal Procedure ( Strafprozeβordnung ) establishes a system of periodic hearings for the review of pre - trial detention , which are to be conducted proprio motu . The relevant part of Article CARDINAL provides as follows :

“ CARDINAL . Decisions ordering or continuing detention on remand and decisions of the court of second instance continuing detention on remand shall not be effective for longer than a certain period ; the date of expiry shall be given in the decision . Prior to the expiry of the period of detention a hearing regarding the detention shall be held or the accused shall be released .

NORP The period of detention shall ,

( CARDINAL ) where detention on remand is ordered , be for DATE from the date on which the accused is arrested ;

( CARDINAL ) where the first decision is taken to continue detention on remand , be for DATE from the date of the decision ;

( CARDINAL ) where a further decision is taken to continue detention on remand , be for DATE from the date of the decision .

An accused who is held in pre - trial detention has to be assisted by counsel ( LAW ) . Copies of all documents relevant for assessing the suspicion or the reasons for the detention must be served on the prosecution and the defence free of charge before the first hearing ( LAW ) .

The relevant part of LAW provides :

“ CARDINAL . The investigating judge shall conduct the hearing regarding the detention ; it is not open to the public . The accused , his counsel , the public prosecutor and the probation officer shall be informed of the date of the hearing .

The accused shall be brought before the judge at the hearing , unless this is impossible because of illness . He shall be represented by counsel .

The court of appeal , when dealing with appeals against decisions of the investigating judge concerning pre - trial detention , takes its decision sitting in private pursuant to LAW .


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

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant instituted proceedings in the ORG of PERSON against ORG , the President , and the local department of ORG , seeking recovery of pension arrears and compensation for non - pecuniary damage . In her claim the applicant stated , in particular , that under LAW she was entitled to a pension equal to the amount of minimum living standard . However , her pension was lower than that standard effective at the relevant time .

On DATE the court rejected the applicant 's claim as unfounded , stating that the amount of her pension had been determined correctly under the pension legislation . On DATE and DATE respectively ORG and ORG upheld the decision of the first - instance court . Neither of the courts considered the applicant 's argument under LAW in respect of inconsistency of the amount of her pension with the minimum living standard .

The relevant domestic law is set out in the judgment case of PERSON v. GPE ( no . CARDINAL , LAW DATE , DATE ) .


KRSTEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicants , Mr PERSON ( “ the first applicant ” ) , Mr PERSON ( “ the second applicant ” ) , PERSON Ivanovska ( “ the third applicant ” ) , PERSON ( “ the fourth applicant ” ) , PERSON ( “ the fifth applicant ” ) , Mr PERSON ( “ the sixth applicant ” ) , Mr PERSON ( “ the seventh applicant ” ) , Mr Dimče Pop GPE ( “ the eighth applicant ” ) , Mr PERSON ( “ the ninth applicant ” ) , PERSON GPE ( “ the tenth applicant ” ) and Mr PERSON ( “ the eleventh applicant ” ) are all NORP nationals ( for personal details see the Annex ) . The first and ninth applicants are represented before the ORG by PERSON ; the second , third and fourth applicants by PERSON NORP GPE ; DATE applicants by Mr PERSON and the sixth , seventh and eighth applicants by PERSON V. PERSON , lawyers practising in GPE , PERSON and PERSON respectively . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicants were all members of the Government security forces either as police officers or reservists , with the exception of the second , third and fourth applicants , who are the next of kin of a deceased police officer .

Following the armed conflict that took place in the former GPE in DATE , the applicants brought civil proceedings against the ORG seeking compensation for injuries ( or death , in case of the second , third and fourth applicants ) sustained in the conflict . All the applicants were successful at first and second instance , receiving final decisions in which the courts ordered the ORG to pay damages under sections CARDINAL and CARDINAL of LAW ( see “ Relevant domestic law ” below ) . Only the eleventh applicant had his claim dismissed at both levels .

These decisions were reviewed by ORG by way of an appeal on points of law ( ревизија ) in respect of DATE applicants or by way of a request by the public prosecutor for the protection of legality ( барање за заштита на законитоста ) , in respect of the remaining applicants .

As to the outcome of the proceedings before ORG :

a ) ORG accepted the public prosecutor ’s request for the protection of legality , overturned the lower courts’ decisions and dismissed the compensation claims submitted by the following applicants :

i ) the first applicant ( Гзз.бр.CARDINAL/CARDINAL of DATE ) . The introductory part of this decision stated that it was taken after the court had heard oral evidence from the public prosecutor ;

ii ) the second , third and fourth applicants ( Гзз.бр. CARDINAL/CARDINAL and PERSON of DATE ) . According to the introductory part of this decision , it was taken in the absence of the public prosecutor ;

iii ) the fifth applicant ( Гзз.бр. CARDINAL of CARDINAL DATE CARDINAL).The decision was taken in the presence of the public prosecutor ; and

iv ) the ninth applicant ( Гзз.бр.CARDINAL/CARDINAL of DATE ) .

b ) In respect of the sixth , seventh and eighth applicants , ORG partly upheld the public prosecutor ’s request for the protection of legality and significantly reduced the award ( Гзз.бр. CARDINAL/CARDINAL of DATE ) . The introductory part of this decision stated that it was taken after the public prosecutor had presented his arguments .

c ) In respect of the tenth applicant , the court allowed the appeal on points of law by the ORG , overturned the lower courts’ decisions and dismissed his claim ( PERSON CARDINAL/CARDINAL of DATE ) and

d ) dismissed the eleventh applicant ’s appeal on points of law submitted against the first- and second - instance courts’ decisions of DATE and DATE , respectively ( Рев.бр. CARDINAL/CARDINAL of CARDINAL DATE ) . In these latter decisions , the lower courts had ruled that no responsibility could be attributed to the ORG for the injuries sustained by the eleventh applicant .

As established by the domestic courts , the first , fifth , ninth , tenth and eleventh applicants were injured , under different circumstances , in a fight while on duty as members of the Government security forces . The second , third and fourth applicants’ next of kin was killed in the fight .

ORG found that under section CARDINAL of LAW ( see “ Relevant domestic law ” below ) the LAW on special rights of the members of security forces and their families ( “ the DATE Act ” , see “ Relevant domestic law ” below ) , as the lex specialis , applied to the relations between the ORG and the applicants . LAW therefore suspended the application of LAW . However , since section DATE CARDINAL Act did not provide for a right to compensation , the general rules of compensation set forth in LAW should have applied to the applicants’ cases . The court ruled that the ORG could not , under those rules , be held responsible for the injuries which the applicants had sustained in a fight , unless it could be proved that this was not the case . Furthermore , no objective responsibility could be attributed to the ORG for the injuries which the applicants had sustained while on duty . Consequently , section CARDINAL of LAW could not apply to the applicants , as members of the security forces .

As regards the sixth , seventh and eighth applicants , the courts established that they had been injured while being transported in a military helicopter that had crashed after it had hit flagpoles while landing . ORG found the ORG responsible , under section CARDINAL of LAW , for the injuries that these applicants sustained in “ the accident ” .

Under LAW , ORG is the highest court that provides for the uniform application of laws by courts .

Section CARDINAL of LAW of DATE states that it applies to relations regulated by other laws in respect of issues not covered by those laws .

Section CARDINAL of LAW defines the different grounds for claiming civil compensation .

Section CARDINAL provides for the ORG ’s responsibility for any damage caused , inter alia , by a bodily injury sustained as a result of acts of violence or terror .

Under section CARDINAL , in the event , inter alia , of physical pain , mental anguish , disability , disfigurement or death of next of kin or fear , the court may award monetary compensation .

LAW defines the persons concerned , the special rights they are entitled to and procedures under which those rights may be attained . LAW provides the following special rights : the right to be employed ; the right to rent an apartment ; special rights regarding education ; the right to be exempted from paying medical services ; the right to a CARDINAL - off pecuniary allowance ; and the right to obtain a family pension .

The applicants submitted copies of final decisions in which the domestic courts , at CARDINAL levels of jurisdiction , had granted identical claims brought by colleagues of the applicants for injuries ( or death ) sustained in the armed conflict in DATE . According to the applicants , these decisions were not challenged by the public prosecutor and accordingly were not reviewed by ORG . They pre - dated the ORG cases ( Гж.бр.CARDINAL/CARDINAL ; GPE ; PERSON ; PERSON ; PERSON ; Гж.бр.CARDINAL/CARDINAL ; Гж.бр.CARDINAL/CARDINAL and Гж.бр.CARDINAL/CARDINAL ) .

They further submitted CARDINAL separate decisions by which ORG had dismissed the request of the public prosecutor for the protection of legality and ruled in favour of the applicants’ colleagues . In these cases , ORG held that an award should be made under LAW and not under LAW , given that the latter did not provide for a right to compensation . The first decision concerned colleagues of DATE applicants who had been injured in the same helicopter accident ( Гзз.бр.CARDINAL/CARDINAL of DATE ) . The second decision concerned a compensation claim by ORG reservists who , while being transported in civilian vehicles , had been attacked in DATE . Relying on the facts established by the lower courts , namely , that the convoy had not been properly guarded , ORG upheld the lower courts’ decisions awarding them compensation ( Гзз.бр.CARDINAL/CARDINAL and Рев.бр.CARDINAL/CARDINAL of DATE ) . In this latter decision , ORG excluded section CARDINAL of LAW from the list of provisions under which it established the ORG ’s responsibility .


The applicant is a non - profit - making association with its seat in GPE .

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

The applicant association has the aims of , inter alia , creating accommodation for socially disadvantaged persons , of speaking out for the concerns of socially disadvantaged persons , refugees and foreign workers , and of creating possibilities of encounter and exchange with these persons . In order to achieve these objectives it runs a house in GPE , which offers accommodation for socially disadvantaged persons in particular for young people and foreigners . The chairman of the applicant association is also living there .

On DATE , in the late evening , police officers carried out a control in this house .

On DATE the applicant association lodged a complaint with ORG ( Unabhängiger Verwaltungssenat ) alleging violations of ORG CARDINAL , CARDINAL and CARDINAL of the Convention and of ORG zum PERSON des Hausrechts ) .

ORG held hearings on DATE and CARDINAL DATE . It heard the chairman of the applicant association , the police officers who had carried out the control and the mayor of GPE as witnesses .

On DATE ORG partly rejected the applicant association ’s complaint as being inadmissible and party dismissed it as being unfounded .

Having regard to the evidence taken , it found the following facts established . Following a number of complaints from neighbours about illegally resident foreigners , the mayor of GPE requested ORG ( Bezirkshaupt - mannschaft ) to carry out a control under ORG ( Meldegesetz ) . The control was carried out in TIME of CARDINAL DATE . The police officers were let into the house by some of the inhabitants . The chairman of the applicant association criticised TIME of the control but did not otherwise object . He contributed to the smooth carrying out of the control in that he went around with the police officers , gave general information about the inhabitants ( e.g. about their country of origin ) , acted as a translator and helped to produce the required documents . The rooms within the house were opened upon request . The police examined whether the foreigners were legally resident by controlling their identity documents and residence permits , or by checking the status of their asylum proceedings . A search of the rooms was not carried out . The control was terminated within DATE .

ORG found that the applicant association , being a legal person , did not have a private and family life . Thus it could not rely on LAW . Moreover , it had not claimed , and there was no indication , of any interference with its right to respect for its correspondence . Accordingly this complaint had to be rejected as being inadmissible .

As regards the control , ORG noted that also a legal person could rely on ORG . However , the said LAW only applied where a search had been carried out . As the police officers were voluntarily granted access to the house as well as to each of the rooms within the house and , assisted by the applicant association ’s chairman , only controlled the documents of the inhabitants , the contested action could not be qualified as a search . ORG added that the protection afforded by LAW went further , in that it covered not only a search of LOC but any interference with the right to respect for one ’s home . In the present case the control was in conformity with LAW , in particular it had its legal basis in ORG ) and LAW ( Fremdenpolizeigesetz ) . Consequently , the complaint had to be dismissed as being unfounded .

Further , ORG found that the applicant association , as a legal person , could not rely on LAW and , therefore , rejected this complaint as being inadmissible .

Finally , as to the complaint under LAW , ORG found that the control at issue was not aimed at the applicant association but at the inhabitants of the housing project , who were not even necessarily members of the applicant association . Moreover , the control did not prevent the applicant association from pursuing its objectives . Even assuming that there had been an interference with the applicant association ’s freedom of association , it had to be regarded as necessary in the interests of public safety . Having regard to the short duration of the control , it was also proportionate . Thus , this complaint was also unfounded .

On DATE the applicant association lodged a complaint with ORG ) . It relied on LAW . It argued that the control carried out in its premises had to be qualified as a search and that it lacked a legal basis . Further , it relied on LAW , claiming that the search prevented it from pursuing its objectives .

On DATE ORG refused to deal with the applicant association ’s complaint for lack of prospects of success . It noted that the case was not excluded from the jurisdiction of ORG ( Verwaltungsgerichtshof ) . Subsequently the Constitutional Court , upon the applicant association ’s request , referred the case to ORG .

On DATE the applicant association , upon ORG request , supplemented its complaint . It repeated its argument that the control had to be qualified as a search which lacked a legal basis , and added that there had not been any reasonable suspicion that foreigners were illegally resident on the LOC .

On DATE ORG rejected the applicant association ’s complaint as being inadmissible . It noted that the association relied on the right to respect for its home . This was a constitutionally guaranteed right which ORG was not called upon to review . The decision was served on DATE .


Violation of Art. 3 (in case of expulsion)

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

DATE GPE is a remote kingdom in the GPE , which borders GPE and GPE . According to a census carried out in DATE , the current population is CARDINAL , of whom PERCENT are estimated to be ethnic NORP . The majority of ethnic NORP are NORP , while the PERSON , who account for PERCENT of the population , are predominantly NORP .

It is believed that the ethnic NORP ( sometimes referred to as GPE , meaning “ southerners ” ) settled in southern GPE in DATE and DATE . They were granted NORP citizenship by LAW of DATE . In DATE , however , a Government census led to the branding of many ethnic NORP as illegal immigrants . There were reports that many ethnic NORP who had previously been recognised as NORP were forced to sign “ voluntary migration certificates ” , thereby forfeiting their citizenship under NORP law . Local PERSON leaders responded with anti - government rallies demanding citizenship and inciting attacks against government institutions . DATE , CARDINAL ethnic NORP fled to refugee camps in GPE alleging ethnic and political repression .

Since DATE GPE has been ruled by the NORP hereditary monarchy . Although traditionally an absolute monarchy , in DATE the country has witnessed significant political reform . In DATE a draft of the country 's first constitution was unveiled , which introduced major democratic reforms . NORP elections for seats to the country 's first parliament were completed in DATE and the King ratified the country 's first constitution in DATE .

The refugee population are housed mostly in ORG - funded camps in eastern GPE . In DATE , after DATE of failed bilateral talks between the NORP and ORG to repatriate the refugees , many opted for third - country re - settlement with the help of ORG and ORG ( “ ORG ” ) . CARDINAL NORP refugees have now been resettled . GPE has offered to resettle CARDINAL refugees from GPE over DATE , and a number of other countries have volunteered to host a further CARDINAL . GPE , however , has not agreed to the repatriation of any of the refugees . Those who attempted to return to GPE illegally were returned to the refugee camps in GPE by NORP border police . Some refugees managed to cross the border into GPE in order to stage protests , but all were eventually sent back .

GPE 's transition to a constitutional democracy has not been an entirely smooth one . A wave of bombings rocked GPE in the run - up to the DATE parliamentary elections , and security forces believed that a number of insurgent groups from among the NORP refugees were responsible .

The applicant was born in DATE and lives in GPE . He is a NORP national who claims to be of NORP ethnic origin .

The applicant states that he was employed by ORG as an office assistant on DATE . On DATE , he was asked to produce a security clearance certificate ( SCC ) . He approached the domestic authorities for the SCC and was refused . He sought the SCC until DATE but was unable to obtain one .

NORP The applicant further states that on DATE , when he attended his village DATE census , he and his family were declared non - nationals and ordered to leave GPE immediately . When he refused to surrender his national identity card he was detained for DATE .

The applicant states that he was dismissed from his job with ORG on DATE because he did not have the required SCC . When he went to Thimphu , the capital of GPE , to challenge this decision he was told to return to his village and obtain papers concerning his status . He was refused these papers and harassed at checkpoints on his journey as he did not have an identity card .

He states that he was arrested on DATE for no reason and detained until DATE . During this period he alleges that he was beaten regularly with wooden sticks , kicked from behind while suspended upside down , and forced to undertake hard labour . There is no indication that he sustained any permanent scarring as a result . He was released after he had signed voluntary migration papers and was given an ultimatum to leave GPE within TIME . The applicant left GPE for GPE . He stayed there from DATE until DATE , when he travelled to GPE . He was met on arrival by his sister and brother - in - law , who had been granted asylum in GPE in DATE and are now NORP citizens . The applicant 's brother - in - law had been a human rights activist in GPE and had criticised the Government in the course of CARDINAL interviews with ORG .

The date on which the applicant claimed asylum in GPE was disputed in the subsequent domestic proceedings . The applicant stated that he claimed asylum on DATE , while ORG maintained that it was on DATE .

On DATE the Secretary of ORG for ORG refused the asylum claim . Although he accepted that southern NORP of NORP origin were the subject of discrimination , he did not accept that the applicant was of NORP origin . He also did not accept that the bank would have allowed the applicant to work for DATE without the required SCC . He noted that no evidence had been produced supporting the claim of arbitrary arrest or ill - treatment in detention . The applicant had left GPE through normal immigration channels on his own passport and the failure to seek leave to remain in GPE cast further doubt on his credibility .

The applicant appealed . The Special Adjudicator refused the appeal on DATE . He accepted that the applicant was ethnic NORP but held that that in itself was not sufficient to establish persecution . He did not accept the applicant had experienced the difficulties that he claimed . In particular , he noted that the applicant 's visa application stated that he was working for ORG rather than ORG , and contrary to his claim that he was detained between DATE and CARDINAL DATE , his bank book showed wage payments from his employer up to DATE . The Adjudicator further found that the applicant was not stateless : he had a valid NORP passport and there was no evidence to indicate that he had been declared a non - national .

The applicant appealed to ORG . The appeal was dismissed on DATE as the ORG held that the Adjudicator had been entitled to find as he did on the evidence before him and that no error of law had been made . The ORG also found that the question of statelessness would be resolved practically as ORG would not remove someone unless his home country would accept that he was a national .

Permission for leave to appeal to ORG was refused on DATE on the ground that the Adjudicator had not made any error of law when he found that the applicant 's evidence was unreliable and that he was not stateless .

On DATE the applicant made further representations to the Secretary of ORG . He referred to a report by the chair of ORG in GPE which detailed the persecution of ethnic NORP in GPE and argued that he risked prosecution under LAW DATE for denigrating GPE by claiming asylum . He further argued that this risk would be increased by his association with his brother - in law . Finally , he submitted that his passport was not proof of NORP nationality and that the NORP authorities would consider that he had forfeited nationality by living outside GPE since DATE .

On DATE the Secretary of ORG refused to consider the applicant 's representations as amounting to a fresh asylum claim . The asylum claim had been treated in confidence and no documentation obtained from the NORP authorities to effect the applicant 's return to GPE would indicate that the applicant had applied for asylum . In respect of the applicant 's brother - in - law , the Secretary of ORG noted that this claim had already been considered by ORG . The remaining points in the applicant 's representations were not significantly different from the material already considered and created no reasonable prospect of success .

On DATE the Government of GPE issued a travel document for the applicant which was valid for DATE and allowed him to travel from GPE . ORG attempted to remove him on DATE but a ORG injunction prevented the removal as the applicant 's legal processes were still outstanding . On DATE the Government of GPE issued a second temporary travel document to the applicant , which was also valid for DATE .

On DATE further representations were made to the Secretary of ORG which , inter alia , stated that the applicant 's parents had been expelled from GPE . On DATE , these representations were also rejected as not amounting to a fresh asylum claim since no evidence had been submitted in support of the applicant 's submissions .

On DATE an open letter from ORG was made available which set out the organisation 's concerns regarding the return of the applicant . It stated :

“ This is the first case of its kind of which the organisation is aware that such a travel document has been issued . It is assumed that this unique travel document has been issued because of a request from the GPE government . However , the very fact that [ the applicant 's ] case has been highlighted in this way puts his safety at particular risk were he returned to GPE . ”

Copies of email correspondence between the applicant 's representatives and ORG High Commissioner for Refugees confirm that the latter made representations to ORG on the applicant 's behalf in or DATE .

The applicant sought permission to apply for judicial review of the Secretary of ORG 's decision of CARDINAL DATE . Permission was refused on DATE as the application disclosed no arguable grounds for judicial review . The Deputy High Court judge also found that the applicant 's submission that he would be at greater risk on account of the travel document had not been made out .

Permission to renew the application to ORG was refused on DATE .

DATE , the applicant lodged an application before this Court . Removal directions for TIME were then deferred . On DATE the second travel document issued by ORG expired .

On DATE fresh removal directions were set for CARDINAL DATE . On DATE the President of the ORG to which the application was allocated decided to apply Rule CARDINAL of ORG and indicate to the Government of GPE that the applicant should not be expelled until further notice .

Appeals from decisions of the Secretary of ORG for ORG in asylum , immigration and nationality matters are now heard by ORG ( “ the ORG ” ) , which replaces the former system of ORG and ORG ( “ the ORG ” ) . Country guideline determinations of both the ORG and ORG are to be treated as an authoritative finding on the country guidance issue identified in the determination until expressly superseded or replaced by a later country guideline determination .

In the country guideline determination of DG ( Risk – NORP ) GPE CG [ DATE ] ORG CARDINAL , promulgated on DATE , the ORG accepted that persons of ethnic NORP origin were discriminated against in GPE but held that the discrimination did not amount to persecution . It did not , therefore , accept that the NORP minority were persecuted by reason of their NORP origins alone . Rather , each case had to be looked at on its own individual circumstances . In that particular case the claimant had argued that he was stateless , having been deprived of his citizenship by virtue of LAW DATE . The ORG found , however , that if the claimant was permitted to re - enter GPE , he would likely be treated in the same way as any other member of the NORP minority . It was not satisfied that he would not be recognised as a citizen of GPE .

Council Directive CARDINAL/CARDINAL/EC of DATE ( on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ) has the objective , inter alia , of ensuring ORG Member GPE apply common criteria for the identification of persons genuinely in need of international protection ( recital CARDINAL of the preamble ) . In addition to regulating refugee status , it makes provision for granting subsidiary protection status . Article CARDINAL(e ) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin . Serious harm is defined in DATE as consisting of : ( a ) death penalty or execution ; ( b ) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin ; or ( c ) serious and individual threat to a civilian 's life or person by reason of indiscriminate violence in situations of international or internal armed conflict . LAW was transposed into domestic law by the Refugee or Person in Need of International Protection ( Qualification ) Regulations CARDINAL .

IV . RELEVANT COUNTRY INFORMATION

ORG

The LAW was adopted on DATE . Country Information Reports pre - dating its adoption indicated that while the ORG 's human rights record was improving , the ethnic NORP minority were still subjected to discriminatory treatment . According to ORG on ORG in GPE , published on DATE , such treatment included the following : the requirement that all citizens wear the traditional dress of the ethnic majority ; the prohibition of political parties organized by ethnic NORP citizens ; the requirement that ethnic NORP meet very strict criteria to be considered “ genuine ” NORP and obtain citizenship and security clearances in the form of LAW ; and the requirement in southern GPE for ethnic NORP to perform a disproportionate amount of compulsory labour .

A report published by ORG on DATE and entitled “ Freedom in the World DATE GPE ” further stated that while the Government had made substantial progress on political reform over DATE , the ethnic NORP continued to face discrimination . The report indicated that :

“ Conditions for NORP speakers in GPE have improved somewhat , but several major problems remain . According to a DATE ORG report , ethnic ORG must obtain certificates verifying that they do not present a threat to the state in order to enter schools , receive health care , take government jobs , or travel within GPE or abroad . Schools in the south restrict even those NORP speakers with certificates . ”

For the ethnic NORP who remained in GPE , concerns related predominantly to the risk that those who could not obtain LAW would be unable to access employment and healthcare and in some cases would be declared non - nationals . On DATE ORG published a report entitled “ GPE 's Ethnic Cleansing ” , which reported that :

“ A NORP government census in DATE classified PERCENT of GPE 's current population as ' non - nationals ' , meaning that they are not only ineligible to vote , but are denied a wide range of other rights . An ethnic NORP non - national living in GPE told ORG , ' they do n't ask me to leave , but they make me so miserable , I will be forced to leave . I have no identification , so I can not do anything , go anywhere , get a job . ' ”

The DATE ORG report further recorded that :

“ The government restricted emigration and prohibited the return of citizens who left the country . The country 's citizenship laws state that persons who have left the country of their own accord , without the knowledge or permission of the government , or whose names are not recorded in the citizenship register maintained in ORG ( ORG ) , would not be considered citizens of the country . Some dissidents and human rights groups claimed that the law was created specifically to deny citizenship to ethnic - NORP . Human rights groups also allege that some ethnic NORP with relatives in the camps faced insurmountable bureaucratic challenges and were denied IDs for procedural reasons . As a result , these individuals were unable to participate in the election process . ”

ORG The first stage in GPE 's transition to a constitutional democracy was the election of CARDINAL candidates to ORG . The DATE elections were monitored by ORG , which published its final report on DATE . While the mission expressed concern that during the campaign period candidates were prevented from discussing citizenship and security clearance issues , it concluded that :

“ The election of CARDINAL ethnic NORP ( PERSON ) candidates was a positive sign for an inclusive ORG that can address issues of concern for the country 's minority citizens . ”

The LAW was adopted on DATE . Article CARDINAL grants all persons the right to life , liberty and security of persons ; the right not to be deprived of property except for a public purpose and on payment of fair compensation ; the right to equality before the law and to equal and effective protection of the law without discrimination on grounds of race , sex , language , religion , politics or any other status ; the right not to be compelled to belong to another faith by means of coercion or inducement ; the right not to be subjected to torture or to cruel , inhuman or degrading treatment or punishment ; the right not to be subjected to arbitrary or unlawful interference with his or her privacy , family , home or correspondence ; the right not to be subjected to capital punishment ; the right not to be subjected to arbitrary arrest or detention ; and the right to initiate legal proceedings to enforce these rights . Further rights and freedoms are guaranteed only to NORP citizens . These include the right to freedom of speech ; the right to freedom of thought , conscience and religion ; the right to vote ; and the right to freedom of movement .

However , the LAW further provides that notwithstanding the rights conferred by it , nothing in LAW prevent the ORG from imposing reasonable restrictions by law when it concerns the interests of the sovereignty , security , unity and integrity of GPE ; the interests of peace , stability and well - being of the nation ; the interests of friendly relations with foreign GPE ; the incitement to an offence on the grounds of race , sex , language , religion or region ; the disclosure of information received in regard to the affairs of the ORG or in discharge of official duties ; or the rights and freedom of others .

Citizenship of GPE is governed by LAW , which provides as follows :

Article CARDINAL

Citizenship

A person , both of whose parents are citizens of GPE , shall be a natural born citizen of GPE .

A person , domiciled in GPE on or before the Thirty - First of DATE and PERSON and whose name is registered in the official record of ORG shall be a citizen of GPE by registration .

A person who applies for citizenship by naturalization shall :

Have lawfully resided in GPE for DATE ;

Not have any record of imprisonment for criminal offences within the country or outside ;

Be able to speak and write PERSON ;

Have a good knowledge of the culture , customs , traditions and history of GPE ;

Have no record of having spoken or acted against the Tsawa - sum ;

Renounce the citizenship , if any , of a foreign ORG on being conferred NORP citizenship ; and

Take a solemn Oath of Allegiance to the LAW as may be prescribed .

The grant of citizenship by naturalization shall take effect by a ORG of ORG .

If any citizen of GPE acquires the citizenship of a foreign State , his or her citizenship of GPE shall be terminated .

Subject to the provisions of this LAW , ORG shall , by law , regulate all other matters relating to citizenship .

ORG on ORG in GPE , published on DATE , indicated that :

“ The transition to a parliamentary democracy helped the human rights situation to improve considerably ; however , there were continued difficulties with the regulation of religion , and some discrimination against the ethnic NORP minority . ”

The same report , under the heading ' ORG , stated that :

“ The constitution provides for the right to freedom of peaceful assembly and freedom of association , with the caveat that membership to associations that are " harmful to the peace and unity of the country " are excluded . In DATE , according to SAHRDC , a group of ethnic NORP staged a protest in PERSON as part of their continuing effort to pressure the government to resolve the NORP refugee problem in GPE . Police arrested the demonstrators and handed them to the LOC police of LOC in GPE . ”

Under the heading ' ORG , the report continued as follows :

“ The law provided for freedom of association , and the government permitted the registration of some political parties and organizations . However , the government did not permit political parties organized by ethnic NORP citizens . ”

Under the heading ' ORG , Internally ORG , and ORG , the report added :

“ The law does not address forced exile . Although the government officially does not use formal exile , there were CARDINAL ethnic NORP living in refugee camps in GPE and GPE after a government campaign in DATE forced them out of the country . While the government has agreed , in principle , to accept many into the country , they have declined requests to visit the refugee camps . In DATE many political dissidents freed under government amnesty stated they were released on the condition that they depart the country . The government denied this assertion . Many of those released subsequently registered at refugee camps in GPE , while some relocated to GPE .

The government restricted emigration and prohibited the return of citizens who left the country . The country 's citizenship laws state that persons who have left the country of their own accord , without the knowledge or permission of the government , or whose names are not recorded in the citizenship register maintained in ORG ( ORG ) , would not be considered citizens of the country . Some dissidents and human rights groups claimed that the government wrote the law specifically to deny citizenship to ethnic - NORP . Human rights groups also alleged that some ethnic NORP with relatives in the camps faced insurmountable bureaucratic challenges and were denied identification cards for procedural reasons . As a result , these individuals were unable to participate in the election process . ”

The Asian Centre for Human Rights was even more critical of the regime . In its “ LOC Human Rights Index DATE ” it reported that :

“ Despite the introduction of the first ever Draft Constitution providing limited CARDINAL - party democracy ... , GPE essentially remains a repressive regime run by the PERSON family . GPE officially discriminates against the minorities . A landlocked and closed country , little information on the human rights violations was available . ”

It further notes that :

“ The draft constitution does not provide any safeguard to preserve , protect and promote the arts , custom , knowledge and culture of the minorities . It has maintained deadly silence on providing any affirmative action programme for minorities . ”

Finally , ORG indicated , in a report entitled “ ORG Values DATE commenting on budding democracy in GPE ” , that while the LAW appeared to promise improvements , those living in the southern parts of GPE still met with discrimination .

The applicant submitted a number of expert reports prepared for the purposes of the domestic proceedings which considered the specific risk to him on return . In a report prepared on DATE , PERSON , a Professor of NORP and ORG at ORG ( ORG ) at ORG , indicated :

“ It is difficult to predict precisely what would happen to [ the applicant ] were he to be returned to GPE . I myself am not aware of any such case to date . The fact that the government of GPE is willing to facilitate his return to GPE by issuing a travel document should not be taken as an indication that he would be able to resume anything resembling his former life in that country , or even be able to remain in the country for very long .

GPE is small , thinly populated and bureaucratically centralized , and anonymity would be impossible . Wherever he went it would be widely and generally known that he was a returned asylum seeker and anti - national . Even those Lhotshampas who never left GPE face discrimination in the fields of employment , education , freedom of movement , and citizenship ... It is extremely difficult to imagine any meaningful rights or any real security being granted to an individual who left the country without permission , thereby forfeiting his citizenship , and subsequently spoke ill of the king 's and the government 's record on human rights , thereby committing treason . ”

In CARDINAL statements dated DATE and DATE , ORG indicated that it did not consider it safe to return the applicant to GPE . In particular , ORG had concerns about the sustained and cumulative discrimination against southern NORP which could amount to persecution and severe risk to the right to life . In addition , it was concerned that those who sought asylum in other countries and raised issues about human rights abuses in GPE while out of the country could face prosecution under LAW . In the second report , ORG raised an additional concern : namely , that the travel document issued to the applicant was the first of its kind , and it questioned why the Government would issue such a document when it had consistently denied the right to return of CARDINAL southern NORP evicted in DATE .

In a report dated DATE , ORG stated that it did not believe that the physical , legal or material security of the applicant could be guaranteed on return to GPE . The report noted that ethnic NORP faced ongoing and severe discrimination in all aspects of daily life in GPE , and there was reason to believe that those whose relatives had left GPE would be particularly targeted . On DATE a letter from ORG confirmed that a person who talked against King , country and Government was a “ non - national ” and committed an offence under LAW DATE which was punishable by life imprisonment .

In a letter dated DATE ORG emphasised that it had not been granted access to the areas of potential return in GPE , and as it would be impossible to monitor any returns process , it did not promote returns .

The applicant also submitted CARDINAL reports by PERSON , Co - ordinator of ORG ( GPE ) . The initial report is dated DATE , and the follow - up reports are dated DATE , DATE , DATE and DATE . In her report of DATE , PERSON noted that those southern NORP who had remained in GPE continued to suffer severe and sustained discrimination , amounting to persecution . In particular , she stated that since DATE access to government services , such as education , healthcare , and employment in public services , had all been dependent on producing a “ Non - Objection Certificate ” , a security clearance certificate from the police which confirmed that they had not spoken or acted against ORG , and did not have any relatives who had done so .

Ms Carnegie further stated , at paragraph CARDINAL , that :

“ The situation of those southern NORP remaining within GPE remains very insecure . Their citizenship status has been eroded in successive census exercises throughout DATE and into DATE . The nationwide census held in DATE and published in DATE show that of a total population of CARDINAL , CARDINAL are NORP citizens , whilst the remaining CARDINAL are said to be foreign nationals . There are growing concerns that this latter category , appearing for the first time in GPE 's population figures , may represent an effective ' de - nationalisation ' of many southern NORP remaining within GPE . ORG is currently issuing new citizenship identity cards to NORP nationals , and there are serious concerns that a large proportion of the southern NORP will be excluded from this process . Without such cards , they will be denied the right to vote and to enjoy by law the rights guaranteed by LAW . ”

With regard to the applicant 's situation , PERSON stated that the travel documents issued by the NORP government offered no guarantee that his nationality rights and other rights would be recognised on his return . It was not possible to determine exactly what the applicant 's fate would be , in the absence of a known precedent , but it was reasonable to conclude that he would be at significant risk as a failed asylum seeker for whom ORG had twice applied for travel documents .

Finally , PERSON considered the risk to the applicant under the DATE LAW . She concluded that were the applicant returned to GPE , he would face imprisonment , torture or inhuman or degrading treatment or punishment under ORG of DATE , which stated that whoever engaged or attempted to engage in treasonable acts against King , people or country , either within or outside GPE , should be punished with death or life imprisonment . Moreover , according to the LAW , whoever creates or attempts to create misunderstanding or hostility between the ORG and the people of GPE and people of any foreign countries with which GPE has peaceful and friendly relations shall be punished with imprisonment which may extend to DATE .

In her final report , dated DATE , PERSON was specifically asked to address the question of whether there had been any change in the treatment of the ethnic NORP in GPE following the adoption of the LAW . In her opinion , she stated that there had been no significant change following the adoption of LAW . Moreover , she believed that the clear distinction made in the LAW between rights afforded to “ all persons ” and rights afforded to “ citizens ” gave permission for the marginalisation and exclusion of non - citizens from the mainstream of society .

Finally , she referred to a DATE report by ORG entitled “ GPE : Land of Happiness for the Selected ” , in which the ORG indicated that Lhotshampas still living in GPE continued to face discrimination amounting to breaches of their civil and political rights as well as their social , economic and cultural rights . Consequently , the ORG did not believe that it was safe to return GPE to GPE as the ORG could not guarantee their physical , legal and material security .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

On DATE the applicant filed a petition for divorce with ORG . She also sought an interim maintenance award .

The applicant ’s husband failed to appear at a reconciliation meeting on DATE . The subsequent reconciliation meeting held on DATE failed . On that date the applicant ’s husband requested ORG that the case be transmitted to ORG due to his change of domicile . That request was dismissed on CARDINAL DATE . The appeal lodged by the applicant ’s husband was rejected .

On DATE and on CARDINAL DATE the applicant sought an increase of her interim maintenance award . She also requested the court to determine the way in which the spouses would occupy the matrimonial home .

On DATE ORG ordered the defendant to pay ORG CARDINAL per month to the applicant by way of interim maintenance . It also determined the issue of the spouses’ occupation of the matrimonial home . Both parties appealed against that decision . On DATE the ORG upheld the contested decision .

On DATE the applicant requested ORG to draw up an inventory of the assets located in the matrimonial home . On CARDINAL DATE ORG transmitted that request to ORG . On DATE the ORG quashed that decision . On DATE ORG again transmitted the case to ORG , finding that the latter court was competent in the matter of drawing up an inventory .

On DATE the applicant increased her maintenance claims . She also informed the court that the defendant had continuously failed to comply with the interim maintenance order of CARDINAL DATE and had prevented the applicant from occupying the matrimonial home as determined by the court in the same decision .

On an unspecified date in DATE or DATE the applicant ’s husband filed an application for an interim maintenance order against the applicant .

On DATE ORG convicted the applicant ’s husband of having prevented the applicant from entering their matrimonial home and fined him PLN CARDINAL . On DATE ORG upheld the first - instance judgment .

On DATE and DATE the applicant ’s husband requested the court to hear evidence from new witnesses , including some who lived in GPE . On DATE the President of ORG requested that CARDINAL witnesses who lived in GPE be heard by the court in GPE pursuant to the relevant agreement on legal cooperation between GPE and GPE .

On DATE the defendant requested that the judge who was hearing the case should withdraw from it . On DATE ORG dismissed his request . That decision was upheld on appeal on DATE .

In the meantime a new judge was assigned to hear the case .

On DATE ORG dismissed the defendant ’s application for an interim maintenance award . That decision was upheld on appeal on DATE .

On DATE the court heard evidence from the applicant and her husband .

ORG held CARDINAL hearings on the following dates : CARDINAL DATE ; DATE , DATE , DATE and CARDINAL DATE ; CARDINAL DATE , DATE , DATE , DATE , DATE , DATE and DATE ; CARDINAL DATE , DATE , DATE , DATE and DATE ; and DATE , DATE and DATE .

On DATE the ORG granted a divorce , finding that the defendant had been responsible for the breakdown of their marriage . It also ordered the defendant to pay maintenance to the applicant in the amount of ORG DATE and determined the issue of the occupation of the matrimonial home .

The defendant filed an appeal against that judgment . He also applied for exemption from payment of the court fees for the appeal proceedings . On DATE ORG dismissed the defendant ’s request . That decision was upheld on appeal on DATE .

Subsequently , the defendant again requested to be exempted from payment of the court fees . On DATE ORG dismissed his request . ORG upheld that decision on DATE .

On DATE ORG rejected the defendant ’s appeal against the judgment of CARDINAL DATE for failure to pay the relevant court fee .

On DATE the applicant requested ORG to make an enforcement order in her favour in respect of the judgment of DATE . On CARDINAL DATE ORG issued the enforcement order .

NORP The legal provisions applicable at the material time as well as matters of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG DATE in the case of PERSON v. GPE , no . ORG .


The applicant is a NORP citizen born in DATE and resident in GPE - le - Street . He is represented by ORG , solicitors practising in GPE - le - Street .

In DATE , QUANTITY girls at the applicant ’s school alleged that he had committed indecent assaults on them . The applicant then aged DATE was suspended from school pending investigation .

On DATE , the school informed the police of the allegations .

DATE and DATE , the police interviewed the CARDINAL complainants .

On DATE , the applicant was summoned to the police station . He was arrested on suspicion of indecent assault and caution . The police interviewed him in the absence of a legal representative but with his stepfather present . The police had asked whether they wanted a solicitor present but they stated that they did not . The applicant admitted to “ horseplay ” and actions amounting to indecent assault in respect of QUANTITY girls . The applicant was released pending further assessment of the case .

On DATE , the applicant attended the police station where Acting Inspector PERSON informed him that the police had decided to deal with him by way of a warning under section CARDINAL of LAW DATE . The Inspector did not ask the applicant if he consented to the warning and the applicant was duly warned regarding the allegations of all CARDINAL complainants . Neither the applicant nor his stepfather were advised by the police that a consequence of the warning was that the applicant would be required to sign onto ORG , which warning was required by paragraph CARDINAL of the guidance issued by the Secretary of ORG .

On DATE , NORP refused to sign the register .

On DATE , the applicant issued an application for judicial review of the decision to warn him under section CARDINAL , complaining effectively that he had been subject to a public declaration of guilt by an administrative process to which he had not consented .

On DATE , Mr Justice PERSON refused his application .

On DATE , ORG upheld his appeal and granted permission . The case was joined with the case “ U ” . Issues were raised , inter alia , under LAW , DATE and DATE of the Convention .

On DATE , following a hearing , ORG held that the imposition of the warning without informed consent or a waiver amounted to a prima facie breach of LAW and CARDINAL of the Convention . Lord Justice PERSON found the admissions made by NORP had been reliable and not made in response to any inducement and the police were entitled to rely on them for the purposes of applying the section CARDINAL scheme . As regards the failure of the police to obtain the applicant ’s informed consent to a warning , he did not consider that this rendered the decision to administer the warning unlawful under domestic law as the scheme under LAW did not require the young offender ’s consent . However , as regarded LAW , he found that the Secretary of ORG was right to concede that Article CARDINAL was engaged and that the police would have been entitled to decide not to prosecute and discontinue the proceedings . In the applicant ’s case though , he was required to subject himself to a procedure which had the effect of publicly pronouncing his guilt of the offence of indecent assault . That was the consequence of the final warning being recorded on ORG ( ORG ) and available to all those with access to it . This prima facie infringed Articles CARDINAL § CARDINAL and CARDINAL . The procedures for cautions and warnings did not have to breach LAW , being a sensible means of ensuring resources were not wasted and seeking to prevent youth re - offending . It was possible for a mechanism to be provided by which a person waived his right to have his case dealt with by a court ; this required informed consent and there was nothing in LAW requiring the police to proceed without the consent of the offender . The appropriate practice was to ensure that , before a reprimand or warning was administered , the offender and his parent , carer or appropriate adult should be told of the consequences and asked whether or not they consented to that course being taken . As there had been no informed consent in this case , there had been a breach of LAW and the decision had to be quashed .

The ORG certified CARDINAL points of general public importance to be referred to ORG .

On DATE , ORG overturned the ORG judgment . Lord PERSON found that there was nothing in the LAW which envisaged that the consent of the young offender be obtained and concluded that the only reasonable inference was that ORG had intended to dispense with such need for consent . He expressed doubt that LAW had been engaged , considering that arrest was not sufficient and that the applicant had neither been charged nor informed that criminal proceedings were likely . On the assumption that there had been a criminal charge , he thought that it was inescapable that it ceased to exist when a firm decision was taken by the police not to prosecute . The warning procedure did not involve any penal or punitive element . Further , the record on the ORG was far from a public announcement or declaration of guilt , access being limited to a relatively small number of police , prison and probation officers and agencies fulfilling public functions . Access to ORG Register was similarly controlled and in neither case did members of the public have access . Thus , he was of the clear opinion that the warning did not involve the determination of a criminal charge and his fair trial rights were not engaged . He did not consider that the scheme infringed LAW on the Rights of the Child ( DATE ) .

Without dissenting , PERSON and Lord PERSON expressed concern that the decision was inconsistent with children ’s rights under international law . PERSON thought that the system imposed consequences that could be explained away individually as preventative but cumulatively had seriously modified a child ’s legal status . She found , however , no public pronouncement of guilt and no determination of a criminal charge .

ORG DATE sets out the overall aim of the youth justice system to prevent offending and re - offending by children and young persons , inter alia , by diverting them from their offending behaviour before entering the court system . It replaced the system of cautions for children and young persons with a structured approach . Depending on the seriousness of the offence , a reprimand is normally given for a first offence and a final warning for a second offence ; thereafter the young offender should generally be charged . Following a final warning , the police have a duty to refer the young offender to a youth offending team in order to determine whether or not to provide an intervention programme . Neither a caution nor a reprimand / warning can be given unless the offender has admitted the relevant offence(s ) .

The critical difference between the informal system of cautions and the system of warnings was that a caution can only be given if the offender gives his informed consent to being cautioned . Neither the DATE Act nor the guidance issued by the Secretary of ORG makes any provision for consent .

Section CARDINAL provides , as regards reprimands and warnings :

“ CARDINAL . Subsections ( CARDINAL ) to ( CARDINAL ) below apply where-

( a ) a constable has evidence that a child or young person ( “ the offender ” ) has committed an offence ;

( b ) the constable considers that the evidence is such that , if the offender were prosecuted for the offence , there would be a realistic prospect of his being convicted ;

( c ) the offender admits to the constable that he committed the offence ;

( d ) the offender has not previously been convicted of an offence ; and

( e ) the constable is satisfied that it would not be in the public interest for the offender to be prosecuted .

( CARDINAL ) Subject to subsection ( CARDINAL ) below , a constable may reprimand the offender if the offender has not previously been reprimanded or warned .

( CARDINAL ) The constable may warn the offender if-

( a ) the offender has not been previously warned ; or

( b ) where the offender has previously been warned , the offence was committed DATE after DATE warning and the constable considers the offence to be not so serious as to require a charge to be brought ; but no person may be warned under paragraph ( b ) more than once .

( CARDINAL ) Where the offender has not been previously reprimanded , the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning .

( CARDINAL ) The constable shall –(a ) where the offender is under DATE , give any reprimand or warning in the presence of an appropriate adult ...

Section CARDINAL provides for the effects of reprimands and warnings , inter alia that where an offender has been warned the constable shall refer the person to a youth offending team who should assess them and arrange as appropriate for them to participate in a rehabilitation programme .

Where a child or young person has been warned or reprimanded in respect of an offence covered by the sexual offenders’ legislation , they become subject to the notification requirements . In the case of indecent assault , the offender will be registered for DATE ( the Sex Offenders Act CARDINAL , sections CARDINAL(CARDINAL ) and CARDINAL ) ) .

A reprimand or warning is not regarded as a conviction under domestic law .