Violation of Art. 5-1;Not necessary to examine Art. 9;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants , PERSON , PERSON , PERSON , PERSON , PERSON Sales PERSON and Mr PERSON , were born in DATE respectively and live in GPE ( GPE ) .

At an unknown date in DATE ORG ( “ the LAW ” ) of the PERSON ( government ) of GPE received through ORG ( “ ORG ” ) , an association formed to fight against sects , a request for help from several people who alleged that members of their families had been ensnared by a group known by the name of ORG ( FAC ) . According to the NORP complaints , those who ran the ORG managed to bring about a complete change of personality in their followers , leading them to break off ties with their family and friends and inciting them to prostitution and other activities designed to obtain money for the organisation . The ORG infiltrated an officer into the ORG to check the truth of the complaints and , in the light of the findings , brought the facts to the attention of ORG at FAC , who forwarded the complaints and the information gathered to the judicial authorities . Acting on this information , GPE investigating court no . CARDINAL opened a preliminary investigation in DATE and ordered searches of the homes of members of the ORG , including the applicants . The searches took place on DATE and numerous people were arrested , including the applicants . After the applicants were arrested , they were transferred to the seat of the investigating court . In the light of information from GPE , an official at the FAC , which was confirmed by the prosecuting authorities , there was a danger that the members of the sect would react unpredictably if they were released , and might even commit suicide . The duty judge nevertheless decided to release the applicants but gave oral instructions to the police that those detained , including the applicants , should be handed over to their families , to whom it should be suggested that it would be as well to have them interned in a psychiatric centre , on a voluntary basis as regards the persons of full age , in order for them to recover their psychological balance . The judge in question confirmed his oral instruction in a decision of DATE . In that decision he also ordered the chief of the NORP police ( mossos GPE ) to interview and question all those detained during the searches who had subsequently been released .

Later , on the orders of ORG , ORG , the applicants were transferred to the LOC of the FAC . From there , on DATE , they were taken by members of the NORP police in official vehicles to a hotel QUANTITY from GPE , where they were handed over to their families with a view to their recovering their psychological balance . Once at the hotel , the applicants were taken to individual rooms under the supervision of persons recruited for the purpose , CARDINAL of whom remained permanently in each room , and they were not allowed to leave their rooms for DATE . The windows were firmly closed with wooden planks and the panes of glass had been taken out . While at the hotel the applicants were allegedly subjected to a process of “ deprogramming ” by a psychologist and a psychiatrist at the request of Pro Juventud . On CARDINAL and DATE , after being informed of their rights , they were questioned by ORG , the Assistant Director - General of Public Safety , aided by GPE , in the presence of a lawyer not appointed by the applicants . On DATE the applicants left the hotel .

As soon as they had regained their freedom , the applicants lodged a criminal complaint alleging false imprisonment , offences against the exercise of personal rights , falsification of documents , usurpation of functions and misappropriation of goods against GPE , C.T.R. and L.R.F. , the latter as Director - General of Public Safety , and against all other persons who had taken part in depriving them of their liberty . In the criminal proceedings thus instituted the prosecuting authorities filed submissions against the persons mentioned above accusing them of false imprisonment .

In a judgment of CARDINAL DATE ORG acquitted the accused , holding that the acts complained of had been prompted by a philanthropic , legitimate and well - intentioned motive and that there had been no intention of depriving the applicants of their liberty , so that the offence of false imprisonment was not made out .

The prosecution and the applicants lodged appeals on points of law , which were dismissed by ORG on DATE . In its judgment ORG held , inter alia :

“ … A detailed examination of the facts held to have been proved shows that there is no doubt that the appellants were placed in detention [ detención ] ( the expression ‘ administrative detention’ [ retención ] has no validity , since it is not defined in our legal order ) , but the detention took place with the sole aim – a very laudable and plausible DATE of avoiding worse evils than those complained of by the appellants , so that there was no unlawfulness strictly and properly understood . … Furthermore , that there was no unlawfulness , the criterion required by law , is all the plainer if it is borne in mind that it was the appellants themselves , together with the closest members of their families , who consented to undergo deprogramming tests which logically required them to be physically isolated initially . That isolation lasted for a very limited time and , it must be emphasised , with the agreement of those concerned and their families . … It can not be maintained , in order to argue the contrary , that the wishes of the persons who underwent deprogramming could only have been overridden by the members of their families after proceedings to establish incapacity , seeing that the position of those concerned called for immediate treatment , without any delay , as appears from the judgment under appeal , which refers to fears that the members of the sect might commit suicide .

In conclusion , the offence of false imprisonment can not be said to have been committed since , firstly , there was no intention on the part of the defendants to deprive anybody of his or her liberty and , on the contrary , their intention , which has been fully proved , was to prevent imminent and very serious harm befalling the persons concerned , such that the mens rea for the offence was lacking . In the second place , the requirement of ‘ ORG was lacking inasmuch as the GPE conduct was in keeping with what society and the legal order , taken as a whole , require in situations and at times such as those of the instant case . ”

The applicants lodged an appeal ( recurso de amparo ) with ORG . In their appeal they alleged violations of the right to religious freedom ( LAW ) , the right to liberty ( LAW ) , the right to freedom of movement ( LAW ) , the rights of the defence during their detention ( LAW ) and the right to a fair trial ( LAW ) . They asked ORG to quash the judgments of FAC and ORG , to order the officials complained of to pay MONEY as compensation for the damage sustained and to make a declaration to the effect that the PERSON of GPE was liable in default .

In the proceedings in the Constitutional Court Mr PERSON was held to have withdrawn on account of failure , through his own fault , to comply with a formal requirement .

On DATE ORG dismissed the amparo appeal . In section CARDINAL of the “ As to the law ” part of the judgment the court first examined a preliminary objection raised by ORG that appropriate remedies had not been used , namely a habeas corpus application or contentious - administrative proceedings , in the following terms :

“ ORG , while holding that a person in possession of a fundamental right could choose the most effective remedy for infringement of that right … , has also stated that that had to be understood ‘ subject , of course , to the possibilities afforded by each class of ORG .

Consequently , in order to resolve the issue raised by ORG , it would be necessary to determine what those possibilities were in the criminal courts . In the instant case , however , it is not necessary to do so since the appeal is being brought not against administrative acts but against judicial decisions . That being so , the issue is not – and can not be – whether or not use was made of an effective judicial remedy ( section CARDINAL(CARDINAL ) of the ORG [ LAW ] ) but whether the remedies afforded by the judicial process chosen ( section CARDINAL(CARDINAL)(a ) ORG ) have been exhausted , an issue that has not been canvassed and could not be since the appellants went to the highest court , ORG , which heard the appeal on points of law in the case . ”

That being said , ORG pointed out , firstly , that there was no fundamental right to have a person convicted and , secondly , that it could not protect fundamental rights by quashing final substantive judgments whereby defendants had been acquitted . It also pointed out that , according to its case - law , the LAW did not confer , as such , a right to secure criminal convictions of third parties . Furthermore , decisions of criminal courts were never decisions affecting fundamental rights of the prosecuting party . The court added that the decisions being challenged had not infringed any of the rights relied on by the CARDINAL remaining appellants , seeing that they were limited to declaring that the acts with which the defendants were charged did not amount to the offences for which they were being prosecuted .

Several provisions of LAW are relevant :

“ CARDINAL . Freedom of ideas , religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law .

No one shall be required to declare his ideological , religious or other beliefs .

NORP ... ”

“ CARDINAL . Everyone shall have the right to freedom and security of person . No one may be deprived of his liberty other than in accordance with the provisions of this LAW and in the circumstances and form provided by law .

NORP ...

Everyone who is arrested must be informed immediately , and in a manner he can understand , of his rights and of the reasons for his arrest and can not be required to make a statement . The assistance of a lawyer is guaranteed to persons detained in police investigations or criminal prosecutions , as provided by law .

A habeas corpus procedure shall be established by law for immediately bringing before a judge any person arrested unlawfully . ... ”

“ CARDINAL . Se garantiza la libertad ideológica , PERSON y las comunidades sin más limitación , en sus manifestaciones , que la necesaria para el FAC del orden público protegido por la ley .

ORG podrá ser obligado a declarar sobre su ideología , religión o creencias .

NORP ... ”

“ CARDINAL . Toda persona tiene derecho a la libertad y a la seguridad . ORG puede ser privado de su libertad , sino con la observancia PERSON en este artículo y en los casos y en la forma previstos en la ley .

NORP ...

Toda persona detenida debe ser informada de forma inmediata , y de modo que le sea comprensible , de sus derechos y de las razones de su detención , no pudiendo ser LOC a declarar . Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales , en los términos que la ley establezca .

La ley regulará un procedimiento de hábeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente . ... ”


The applicant , Ms PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr C. Lenz , a lawyer practising in GPE .

The applicant is mentally disabled since her birth . A curator has been appointed in DATE to take care of the administration of her property .

Following the death of the applicant ’s parents in DATE and DATE respectively , the tax authorities found out that her parents had not declared certain assets in the property tax returns concerning themselves and the applicant . Thereupon , ORG reassessed the property tax payable by the applicant , being their heiress , for DATE and fixed the default interest due pursuant to section ORG of LAW ORG , see ‘ Relevant domestic law’ below ) . The decision became final .

On DATE ORG rendered a leading decision concerning section CARDINAL no . CARDINAL of LAW ( Vermögensteuergesetz ) , which fixed the rates of property tax payable . It declared that the said section , in all its versions since DATE , was incompatible with the principle of equality before the law laid down in LAW . However , in order to secure budgetary planning and an equal tax assessment for past periods of time , it decided that the provisions of LAW continued to apply until DATE . The legislator was obliged to adopt a new regulation until then at the latest .

On DATE ORG ordered the applicant in her position as heiress to pay CARDINAL ORG ) in interest on the property tax evaded by her late parents DATE . It based its decision on section CARDINAL of LAW ( see ‘ Relevant domestic law’ below ) . The default interest already paid pursuant to section ORG of LAW for an overlapping period of time was deducted from the amount of interest charged ( section CARDINAL § CARDINAL of the said Code ) .

On DATE ORG dismissed the applicant ’s objections against this decision .

On DATE ORG fixed the tax payable by the applicant at DEM MONEY and dismissed the remainder of the applicant ’s action . It found that pursuant to section CARDINAL of LAW the applicant was liable to pay interest on property tax evaded by her deceased parents DATE . It found that CARDINAL of the applicant ’s parents had committed a tax evasion with in the meaning of section FAC of LAW ( see ‘ Relevant domestic law’ below ) within that period . As regards the property tax return for DATE , the court found that there was no proof of an intentional evasion of property tax . The declaration was returned by the applicant ’s curator , who had not intentionally made wrong statements and the applicant , being mentally disabled , did not participate in filing these submissions .

ORG further argued that interest on evaded property tax could still be fixed despite the fact that ORG , in its decision dated DATE , considered section CARDINAL no . CARDINAL of LAW to be unconstitutional . As ORG had ordered that the impugned section nevertheless continued to apply until DATE , the tax authorities could still fix property tax and order interest to be paid if such tax was evaded before that date .

ORG also found that ordering a heir to pay interest following the death of the testator who was guilty of tax evasion did not violate LAW . The heir was the beneficiary of this tax evasion because the testator ’s property , including the profits made on the offence , had passed to him or her . It argued that charging interest on evaded taxes pursuant to section CARDINAL of LAW could not be considered as a criminal sanction . The said section was merely aimed at absorbing profits obtained by the belated payment of the taxes evaded . Interest rate advantages were absorbed for the total period of time in which the amount of tax evaded was not yet paid . This was a longer period of time than the relevant period for which default interest had to be paid according to section ORG of LAW . However , the interest already fixed pursuant to section ORG of LAW was deducted from the amount of interest due under section CARDINAL of the said PERSON ( section CARDINAL § CARDINAL ) .

According to ORG , the present case was also distinguishable from the case of GPE , GPE and ORG v. GPE , in which this ORG rendered judgment on CARDINAL DATE ( Reports of Judgments and Decisions DATE ) . That case concerned a fine , that is , unlike the interest in the present case , a criminal sanction imposed on the heir for a tax evasion committed by the testator .

On DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded . It endorsed the reasoning of ORG concerning the implications of ORG decision dated DATE . It further agreed with ORG view that interest on evaded property tax was not a criminal sanction . This was illustrated , in particular , by the fact that the rate of interest payable on evaded tax pursuant to section CARDINAL of LAW and the rate of interest payable pursuant to section ORG of LAW was the same . Consequently , Articles CARDINAL and CARDINAL § CARDINAL of the Convention were not applicable to interest payable on evaded property tax .

On DATE ORG , without giving further reasons , refused to admit the applicant ’s constitutional complaint .

The rules on interest payable on tax claims are laid down in sections CARDINAL - CARDINAL of LAW .

Pursuant to section CARDINALa § CARDINAL of LAW , in its version in force at the relevant time , default interest is payable on supplementary claims of , inter alia , property tax . The period for calculation of the interest due starts DATE after DATE in which the tax arose and ends with the date on which the tax assessment takes effect ( section ORG § CARDINAL ) .

Section CARDINAL § CARDINAL of the Taxation Code provides that interest is payable on taxes intentionally evaded by the person to whose benefit the tax has been evaded . The time limit for calculation of the interest payable starts already when the tax evasion takes effect and ends only with the payment of the evaded taxes ( section CARDINAL § § CARDINAL and CARDINAL ) . Section CARDINAL § CARDINAL provides that interest already fixed pursuant to section ORG for an overlapping period of time is to be deducted from the interest payable .

According to section CARDINAL of LAW the rate of interest due pursuant to , inter alia , sections ORG and CARDINAL is MONEY of the amount of supplementary taxes charged per month .

Section CARDINAL of LAW provides that tax evasion , when committed intentionally , is a criminal offence which is punishable with up to DATE imprisonment or a fine .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE . She resides in the village of GPE , GPE . The applicant is the mother of Mr Abdula Edilov , born in DATE .

At the time of the events described below LOC resided with the applicant at CARDINAL , FAC in the village of LOC . According to the applicant , her son had participated in illegal armed groups during the first round of hostilities in GPE , but was then amnestied and did not take part in the second round of hostilities which started in DATE .

The following account of the events is based on a written statement by the applicant dated DATE ; a written statement by GPE dated DATE ; a written statement by GPE dated DATE and a written statement by PERSON dated DATE .

On DATE the applicant agreed with PERSON that she would go to the local market and that he would join her there later . The applicant left for the market while LOC stayed at home .

DATE on DATE a light coloured UAZ vehicle ( “ таблетка ” ) arrived at the applicant ’s house . CARDINAL armed men in camouflage uniforms and masks emerged from the vehicle . The applicant ’s neighbours GPE , GPE and FAC , who witnessed the arrival of the vehicle , inferred that those men were servicemen . CARDINAL servicemen stayed by the UAZ vehicle and the others rushed inside the applicant ’s house . Shortly thereafter the servicemen came outside , leading Abdula Edilov with them . He was wearing a T - shirt , black trousers and house slippers and was holding his hands behind his back . The servicemen threw the applicant ’s son inside the UAZ vehicle and drove in the direction of the checkpoint manned by NORP federal forces located on the bridge over LOC , on the eastern outskirts of PERSON . At the checkpoint the vehicle stopped for a while and then took the motorway in the direction of ORG . According to GPE , the windows in the ORG vehicle were not blacked out and when it drove away from the checkpoint there were CARDINAL servicemen in it . GPE inferred from that that several servicemen must have stayed at the checkpoint . GPE , GPE and PERSON could clearly see the route taken by the UAZ vehicle because the motorway leading to ORG was separated from FAC only by the LOC canal .

The applicant learnt about the abduction shortly after it had occurred . She immediately returned home and realised that her house had been searched because everything had been turned upside down .

The applicant then went to the checkpoint of the federal forces located at the bridge over LOC . According to her , the checkpoint was guarded by servicemen from the ORG unit of ORG ( “ the ORG ” ) . She told them that her son had been apprehended and that his abductors had passed through the checkpoint . The servicemen replied that their commander was absent and that her son would come back “ DATE if he was innocent ” or “ DATE if he was guilty ” .

NORP On DATE the applicant complained in person about the abduction of her son to the local police . A police officer named “ Yusup ” advised her to complain about the apprehension of LOC to various authorities and promised her that he would search for her son and find out who had arrested him and for what reason .

On DATE the applicant stayed at home in case the authorities came to question her about the circumstances of the abduction of her son , whilst her sister GPE . went to PERSON to complain about his abduction to various ORG authorities .

According to a written statement by PERSON . dated DATE , on CARDINAL or DATE GPE . and her husband heard over the radio that “ PERSON Edilov ” had been arrested on suspicion of having committed a terrorist attack in LOC of GPE and DATE she saw the same information on the federal news , accompanied by video footage of a man being led by CARDINAL servicemen . The video being very short , PERSON . was unable to discern whether the man was LOC , but she clearly heard his name being pronounced by the newsreader .

On an unspecified date in DATE the applicant learnt from a certain PERSON that her son was allegedly being held at the military base in GPE and in DATE a certain PERSON told the applicant ’s daughter - in - law that Abdula Edilov was being held at the Operational and ORG no . CARDINAL ( “ the ORB-CARDINAL ” ) in PERSON . The applicant went to PERSON to meet the head of the ORG , but the latter denied having detained her son .

In DATE an officer of a prison located in PERSON , in GPE , allegedly recognised FAC in a picture shown to him by the applicant and told her that her son had been detained in that prison DATE before and that he had then been taken away by officers of ORG ( “ the ORG ” ) .

The Government stated that at TIME on DATE a group of armed men in camouflage uniforms and masks , driving a UAZ vehicle , had abducted LOC from his home in GPE , GPE , and had taken him to an unknown destination .

By a letter of DATE the prosecutor ’s office of GPE ( “ the NORP prosecutor ’s office ” ) forwarded the complaint about the abduction of Abdula Edilov to the prosecutor ’s office of LOC ( “ the district prosecutor ’s office ” ) and instructed the latter authority to verify her submissions and to take the necessary measures .

On DATE the acting prosecutor of LOC forwarded the complaint about the abduction of LOC to the head of ORG of ORG ( “ the NORP ” ) and instructed the latter body to institute a criminal investigation and to take initial investigative steps , should there be grounds to do so .

On DATE the ORG launched a criminal investigation into the abduction of Abdula Edilov under LAW ( aggravated kidnapping ) . The case file was assigned the number DATE .

On DATE the applicant was granted victim status in the proceedings in case no . CARDINAL .

On DATE the NORP prosecutor ’s office replied to the applicant that it had examined her application for assistance in the search for her son and had studied case file no.CARDINAL . On DATE the investigation of the case had been entrusted to the district prosecutor ’s office which , on an unspecified date , had decided to suspend it owing to the failure to identify the perpetrators . However , that decision had been set aside as premature and unfounded and the district prosecutor ’s office had been instructed to take unspecified additional investigative steps aimed at identifying those responsible and locating the applicant ’s son .

By a letter of CARDINAL DATE the NORP prosecutor ’s office replied to the applicant ’s repeated requests for information , specifying that the investigation in case no.CARDINAL had been suspended on DATE because of the failure to identify those responsible for the abduction . The applicant was further informed that on DATE the investigation had been resumed and that the district prosecutor ’s office would inform her about any further developments .

On DATE the military prosecutor ’s office of ORG ( “ the ORG military prosecutor ’s office ” ) forwarded the applicant ’s complaint about the abduction of Abdula Edilov to the military prosecutor of military base no . DATE and instructed the latter body to examine it and to inform the applicant of any decisions taken . By a letter of CARDINAL DATE the military prosecutor ’s office of military base no . CARDINAL transmitted the applicant ’s complaint to the military commander of the Urus - Martanovskiy District for examination .

On DATE the applicant wrote to the district prosecutor ’s office . She described in detail the apprehension of her son and submitted that she had immediately alerted all the relevant ORG bodies to his abduction . She stressed that the abductors had passed through the checkpoint of the federal forces unhindered and had freely moved around in broad daylight . She pointed out that the district prosecutor ’s office had not apprised her of any developments in the investigation and requested to be updated in writing .

On DATE the district prosecutor ’s office replied to the applicant that criminal case no . DATE had been opened on DATE and that on DATE the investigation had been suspended owing to the failure to identify the culprits .

On DATE the applicant wrote to the military commander of the Urus - Martanovskiy District . She described the circumstances of her son ’s abduction by armed men in camouflage uniforms , who had arrived in a light - coloured UAZ vehicle without licence plates , and sought assistance in establishing his whereabouts . On DATE she wrote a letter along the same lines to the district prosecutor ’s office .

On DATE the district prosecutor ’s office replied to the applicant that on DATE the investigation had been suspended but that at the same time the PERSON had been instructed to activate the search for those responsible for the abduction of LOC .

By a letter of DATE the district prosecutor ’s office informed the applicant that on DATE it had resumed the investigation in case no . DATE .

On DATE the applicant wrote to the military prosecutor and the prosecutor of GPE , describing in detail the circumstances of the abduction of her son and stressing that his abductors had passed through the checkpoint of the federal forces unhindered and that her relatives had heard on the Chechen State radio and television that NORP servicemen had arrested LOC on suspicion of having committed terrorist attacks and had seen footage of him in a TV reportage . She also stated that the description of LOC clothes by the relative who had seen him on TV fully corresponded to the clothes he had been wearing at the time of his abduction . Lastly , the applicant stressed that she had passed on that information in all her applications to ORG bodies but they had disregarded it .

On DATE the district prosecutor ’s office replied to the applicant ’s query and informed her that on DATE the investigation in case no . DATE had been suspended owing to the failure to identify those responsible for the abduction of her son . At the same time operational and search measures aimed at establishing LOC whereabouts and identifying his abductors were under way .

On DATE the district prosecutor ’s office wrote to the applicant that on the same date the investigation in case no . DATE had been resumed .

On DATE the applicant complained to the district prosecutor ’s office about the procrastination of the investigation into the abduction of her son and the lack of any information on its progress . She reiterated all the circumstances of the abduction of PERSON and sought permission to have access to the case file and to make copies from it . She also requested that the investigation be resumed if it had previously been suspended .

On DATE and DATE the district prosecutor ’s office replied to the applicant that the investigators had taken all steps which could have been taken in the absence of persons to be charged with the abduction of her son and that they had found no grounds to resume the investigation . The letter further stated that the applicant would be entitled to have access to the case file once the investigation had been completed .

On DATE the district prosecutor ’s office replied to the applicant ’s query that operational and search measures aimed at establishing the whereabouts of her son were under way .

The Government submitted that they had provided a copy of the entire criminal file no . DATE . Some of the documents furnished by them were partly illegible ; most of the documents bore double numbering . The information contained in the documents submitted can be summarised as follows :

On DATE the ORG town prosecutor ’s office received a complaint by GPE about the abduction of LOC . The complaint bore a handwritten note dated DATE and reading “ to be transferred to the prosecutor ’s office of the Urus - Martanovskiy District ” .

On DATE the NORP prosecutor ’s office received a further complaint about LOC abduction , dated DATE .

By a letter of CARDINAL DATE ORG of the Interior ( “ the ROVD ” ) returned to the NORP the materials concerning the abduction of FAC , submitting that on CARDINAL and DATE the district prosecutor ’s office had instructed the latter authority to examine those materials and to decide on whether a criminal investigation should be launched . However , on DATE the ORG had simply sent those materials to the ROVD , without taking a formal decision on the matter .

On DATE the ORG opened a criminal investigation into the abduction of Abdula Edilov under LAW ( aggravated kidnapping ) . The case file was given the number DATE .

On DATE the ORG transferred criminal file no . DATE to the district prosecutor ’s office for investigation and on DATE the latter authority took charge of the investigation .

In their written explanations ( “ объяснение ” ) to the ROVD of DATE , GPE and PERSON stated that CARDINAL on DATE , in broad daylight , a group of CARDINAL armed persons wearing camouflage uniforms and masks had arrived at the applicant ’s house in a light - coloured UAZ vehicle ( “ таблетка ” ) . CARDINAL of the armed men had stayed in the car while others had gone inside the house . They had taken PERSON , who was handcuffed , outside , loaded him into their vehicle and left through the checkpoint , guarded by ORG officers from GPE . GPE , in the direction of PERSON .

In her written explanation of DATE the applicant submitted that she had learnt about the abduction of her son by armed masked men wearing camouflage uniforms and driving a UAZ vehicle from the neighbours on DATE .

On DATE the ORG granted the first applicant victim status and interviewed her . She submitted that on DATE she had gone to the market , where FAC had been supposed to join her . However , after TIME a neighbour had come and told her that her son had been abducted by armed men in camouflage uniforms driving a UAZ vehicle . After she had returned home she had found everything turned upside down . She also stated that FAC had owed a certain sum of money to a certain T. , with whom he had been involved in a traffic accident , and that her son had had no enemies .

When re - interviewed as a witness on DATE , GPE confirmed her previous account of the events . PERSON , a resident of PERSON interviewed on DATE , recounted the same circumstances concerning the abduction of FAC .

Re - interviewed on DATE , the applicant confirmed her earlier accounts of the events concerning the abduction of GPE and GPE , questioned on DATE , gave a similar version of the events .

On DATE the investigators questioned ORG as a witness . She stated that CARDINAL on DATE she had learnt from the applicant about the abduction of LOC . Together they had gone to the applicant ’s house , where everything had been turned upside down . The eyewitnesses had told them that armed persons wearing masks and camouflage uniforms and driving a UAZ vehicle without licence plates had searched the house , loaded FAC into their car and had left in the direction of ORG after having passed through the checkpoint located at the exit from PERSON . After a while there had been rumours that the applicant ’s son was detained in the CARDINALth department of ORG but GPE herself was not aware of the source of those rumours .

On DATE the investigators interviewed ORG as a witness . He submitted that in DATE in the village of GPE he had been involved in a car accident with a man he had not met before . The other man had recognised that he had been at fault and had offered to repair ORG ’s vehicle , but had failed to do so , and ORG had had to repair it himself . DATE after the accident ORG had heard that the other man had been abducted and had disappeared .

L.D. , re - interviewed as a witness on DATE , confirmed her earlier account of the events and FAC , questioned on DATE , gave a similar account of the circumstances of the abduction of the applicant ’s son .

On DATE the investigators re - interviewed the applicant . She stated , among other things , that her relative PERSON had seen a news report showing footage of FAC . In the applicant ’s submission , in DATE she had gone to a prison in PERSON and a prison guard to whom she had shown her son ’s picture had allegedly recognised him and told her that he had seen LOC in prison DATE .

On DATE and DATE the investigators interviewed the applicant ’s neighbours GPE and Z.P.T. as witnesses . They stated that they had learnt about the abduction of the applicant ’s son from the neighbours and that they had never told the applicant that LOC had been detained by ORG ( “ the ORG ” ) .

On DATE the district prosecutor ’s office requested the PERSON and the ROVD to inform it as to whether FAC was or had been held in those authorities’ detention facilities .

DATE the district prosecutor ’s office requested a number of ORG authorities , including ORG in GPE ( “ ORG of the ORG ” ) , to inform it whether they had information on the whereabouts of FAC and whether he had participated in illegal armed groups and had been criminally prosecuted or detained by those ORG bodies . In reply , the ORG authorities informed the district prosecutor ’s office that they had not arrested PERSON and had no information on his whereabouts .

By a letter of CARDINAL DATE ORG of the ORG informed the district prosecutor ’s office that they had not arrested PERSON and that , should they obtain information on his whereabouts , they would inform the latter authority accordingly .

On CARDINAL DATE the deputy prosecutor of the district prosecutor ’s office instructed the investigators in case no . DATE to carry out a crime scene inspection , identify and question the servicemen who had been on duty at the checkpoint on DATE of the applicant ’s son ’s abduction , verify information to the effect that NORP TV and radio channels had disseminated information on Abdula Edilov ’s arrest , identify and interview further witnesses to his abduction and take further investigative steps .

On DATE the investigators requested ORG and ORG to inform them whether they had disseminated information on GPE arrest by security forces on suspicion of terrorist activities . On DATE they instructed ROVD officers to take the investigative steps mentioned in the letter of CARDINAL DATE .

According to the ROVD report of DATE , ORG officers orally interviewed unspecified residents of PERSON and were unable to identify further witnesses to the abduction .

By their report of CARDINAL DATE the ROVD informed the district prosecutor ’s office that it was unable to identify the servicemen of the checkpoint on duty on DATE of GPE abduction “ because the servicemen worked in TIME shifts ” .

On DATE and DATE the district prosecutor ’s office requested a number of law - enforcement authorities , including ORG of ORG , to inform it as to whether they had information on the whereabouts of LOC , whether they had arrested him or had any “ compromising material ” ( “ компрометирующий материал ” ) concerning him .

On DATE and DATE the district prosecutor ’s office requested a number of hospitals in GPE to inform it as to whether LOC had applied to them for medical assistance . It follows from the relevant replies that he had not done so .

On DATE ORG of ORG informed the district prosecutor ’s office that operational and search measures carried out by ORG of the ORG had not enabled the abductors of FAC to be identified .

On DATE the State TV and ORG “ Vaynakh ” informed the district prosecutor ’s office that they had not disseminated any information concerning the abduction of LOC in DATE by unidentified persons .

DATE and DATE the district prosecutor ’s office reiterated its requests to a number of law - enforcement authorities and medical institutions for information on LOC whereabouts . In reply , those authorities submitted that they had no relevant information concerning the applicant ’s son .

On DATE the district prosecutor ’s office suspended the investigation into the abduction of PERSON owing to the failure to identify the perpetrators . It transpires that on DATE that decision was set aside by higher - ranking prosecutors ; the Government failed to furnish a copy of the related decisions .

Subsequently , the district prosecutor ’s office suspended the investigation in case no . DATE for failure to identify those responsible for the abduction on the following dates : DATE , DATE , DATE , DATE and DATE .

The documents submitted by the Government show that higher - ranking prosecutors set aside the decisions to suspend the investigation on the following dates : DATE , DATE , CARDINAL DATE and DATE .

In setting aside the decisions to suspend the investigation , the higher - ranking prosecutors indicated that their examination of the case file had revealed that the district prosecutor ’s office had conducted the investigation in a superficial manner and in breach of the relevant legislation , referring , among other things , to the fact that the investigators had failed to identify and interview the servicemen who had been on duty at the checkpoint through which the abductors had passed with LOC ; to identify all eyewitnesses to the abduction ; to identify and question the persons with whom PERSON had been in contact and who could have information on the reasons for his abduction ; to check the unidentified victims database and to verify the applicant ’s and GPE ’s submissions that LOC may have been detained at the ORG and that NORP TV and radio channels had disseminated information concerning his arrest . In that connection , on DATE , CARDINAL DATE and DATE higher - ranking prosecutors specifically issued “ written instructions ” ( “ письменные указания ” ) , requesting that the district prosecutor ’s office take the investigative steps in question .

DATE . On an unspecified date the investigation in case no . DATE was entrusted to the investigating department of ORG with ORG of GPE in GPE ( “ the investigating department ” ) .

On DATE the deputy head of the investigating department issued “ written instructions ” concerning case no . DATE . The document stated , in particular , that the investigating department was to resume the investigation into the abduction of LOC without delay and to carry out , among others , the following investigative steps :

- identify and interview the servicemen on duty at the checkpoint on DATE ;

- add to the case file information from registration logbooks concerning vehicles which passed through the checkpoint on DATE ;

- identify the detachments of security forces stationed at the material time in LOC and in the vicinity of the village of GPE and obtain information on the special operations carried out by them ;

- carry out a crime - scene inspection and compile a detailed sketch showing the location of the applicant ’s house and the checkpoint of the federal forces ;

- re - interview witnesses to the abduction in detail on the events of DATE , and ;

- interview the applicant on the source of her information concerning her son ’s alleged detention in the GPE in PERSON .

In the ORG ’s submission , the investigation of the disappearance of PERSON is ongoing .

On DATE the applicant complained to the Urus - Martanovskiy District Court ( “ the ORG ” ) about the ineffectiveness of the investigation into the abduction of her son and the investigator ’s refusal to grant her access to the case file and to allow her to make copies from it . In particular , she submitted that the circumstances of LOC abduction left no doubt that he had been apprehended by servicemen of the NORP military forces . However , the investigating authorities had not only delayed the investigation but also refused to provide her access to the case file . The applicant averred that the lack of information about the investigation prevented her from effectively challenging the decisions to suspend the investigation .

On DATE ORG found partly for the applicant . It found that the investigator ’s refusal to provide her with access to the case file was unlawful . The court noted at the same time that the applicant would only be entitled to make copies from the case file after the completion of the investigation . As regards the request for the investigation to be resumed , the court found that the investigators had questioned several witnesses and obtained information on LOC eventual arrest and detention from a number of law - enforcement authorities , including the ORG department in GPE . The investigation had not established who was responsible for the abduction of FAC and it had been suspended on numerous occasions on that ground , the latest such decision being dated DATE . The court stressed , however , that the investigation had not taken all possible steps to establish LOC whereabouts and identify his abductors . In particular , the investigators had failed to identify and question the officers of the federal forces who had been on duty at the checkpoint over LOC on the eastern outskirts of GPE in DATE . The court thus granted the applicant ’s request and ordered that the investigation be resumed .

By a letter of DATE the district prosecutor ’s office informed the applicant that it had resumed the investigation in case no . DATE .

On DATE the district prosecutor ’s office suspended the investigation .

On DATE ORG of GPE rejected the applicant ’s appeal against the decision of DATE .

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

On DATE the ORG of GPE published on its official site www.fsb.ru , in the section covering data obtained from its regional departments , the following information :

“ During DATE CARDINAL insurgents have been liquidated and wounded , CARDINAL captured in GPE

CARDINAL.CARDINAL.CARDINAL

GPE . DATE . INTERFAX

In the course of the special operations of the federal military and security forces in GPE [ conducted ] during DATE insurgents have lost CARDINAL men [ who have been ] killed and wounded , CARDINAL [ of them ] have been arrested with a view to establishing their involvement in illegal armed groups and in carrying out terrorist acts . In particular , according to the information of ORG in GPE , CARDINAL the majority of the special operations were conducted in the settlements of the LOC and GPE ( Alleroy , ORG , GPE , GPE , FAC , ORG ) and also in GPE , GPE and other villages .

During the same period of time a number of persons suspected of having committed terrorist acts in GPE were arrested ... PERSON , suspected of having carried out subversive acts against the federal forces in FAC , was arrested in the village of GPE ... ”


The applicant , Mr PERSON , is a NORP national who lives in PERSON in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE .

The applicant was the managing partner of the PERSON ( henceforward referred to as “ R - Company ” ) . In DATE the R - Company rented commercial LOC from another company ( “ the lessor ” ) , in order to operate its business . In DATE the R - Company became insolvent . By agreement of DATE the applicant acceded to the lease as from DATE . As from DATE the R - Company got into arrear with CARDINAL months’ rent . By letter of CARDINAL DATE the lessor sent ORG a request for payment . By letter to both ORG and the applicant of DATE the lessor terminated the lease without notice ( fristlose PERSON ) . By DATE the applicant had paid the arrears of rent .

The lessor lodged an action for eviction with ORG ( ORG ) , alleging that he had sent the applicant CARDINAL requests for payment on DATE and DATE . As the applicant contested this , ORG decided to take evidence by hearing the lessor ’s secretary as a witness .

By judgment of DATE ORG , following a public hearing , ordered the applicant ’s eviction from the LOC . That court found that the lessor had proved that he had posted the letters to the applicant . It did not attach credence to the applicant ’s claim that he had not received these letters .

By letter of DATE the applicant , who was represented by counsel , submitted his reasons for appeal , claiming that ORG assessment of the evidence was contrary to the case - law of ORG . According to the applicant , the mere fact that the witness had posted the letters to the applicant did not suffice to prove that he had actually received them . In this respect , he submitted several possibilities as to how the letters could have been lost before reaching their destination .

By letter of DATE ORG ( Oberlandesgericht ) informed the applicant of its intention to reject the appeal without a hearing pursuant to section CARDINAL § CARDINAL of the Code of Civil Procedure ( PERSON , see relevant domestic law below ) . It further invited the applicant to submit written comments within DATE .

ORG , following a preliminary assessment , found that the applicant ’s appeal lacked prospect of success . It considered that , according to the terms of the tenancy agreement , it would have been sufficient to inform the applicant about the arrear payments . The applicant had been duly informed by letter of CARDINAL DATE . Even though this letter had not been directed to the applicant , but to ORG , the applicant had undisputedly received it .

In any event , the appeal lacked prospect of success as ORG assessment of the facts had neither been contrary to the law nor to the case - law of ORG . The applicant had not submitted that ORG had wrongly established the facts .

By letter of DATE the applicant requested ORG to abstain from applying section CARDINAL § CARDINAL of the Code of Civil Procedure and to hold an oral hearing on his appeal . He stated that section CARDINAL § CARDINAL should only be applied if an appeal was manifestly ill - founded . Referring to the ORG ’s case - law , the applicant further pointed out that LAW granted a right to an oral hearing in appeal proceedings , which could only be dispensed with if this was justified by the special features of the proceedings involved . ORG had based its letter on different facts than ORG . Under these circumstances , it was necessary to hold a fresh oral hearing . The applicant further denied having gained any knowledge of the content of the letter of DATE , as he had transferred this letter unopened to ORG administrator in insolvency . He further maintained that ORG assessment of the evidence had not been in accordance with the law .

On DATE ORG , by unanimous decision , rejected the applicant ’s appeal pursuant to section CARDINAL § CARDINAL of the Code of Civil Procedure . ORG stated that the appeal had no prospect of success , that the matter at issue was not of fundamental importance , and that is was not necessary to allow the appeal in order to safeguard a consistent application of the law . It found , first , that section CARDINAL § CARDINAL did not require that an appeal was manifestly ill - founded . Notwithstanding , the applicant ’s appeal was manifestly ill - founded . ORG noted that the applicant had conceded having received the letter of CARDINAL DATE . By sending this letter , the lessor , who did not know about ORG insolvency , had taken the necessary steps to inform the applicant about the arrears of rent . It did not matter whether the applicant had gained knowledge of the content of that letter , as he had been in a position to do so .

Referring to the reasons set out in its letter of DATE , ORG confirmed that ORG assessment of the evidence had not been contrary to the law .

With respect to LAW , ORG found as follows :

“ This provision [ section CARDINAL § CARDINAL of the Code of Civil Procedure ] is closely linked to the examination of the admissibility of the appeal by the court , as can be seen in the context with section CARDINAL § CARDINAL . Accordingly , the applicant ’s references to LAW are not suited to compel the ORG to hold an oral hearing irrespectively of the appeal ’s prospect of success . Within the ambit of LAW , the necessity of an oral hearing in appeal proceedings does not arise , if only the admissibility of the appeal is at issue , if the applicant ’s grounds of appeal are irrelevant for the decision or if the appeal can adequately be dealt with on the basis of the content of the case - file ( see PERSON / Gummer , Commentary to LAW , DATE . , § CARDINAL , marginal note CARDINAL ) . It follows that LAW contrary to the defendant ’s point of view – does not require a public hearing in every case in which an appeal is not manifestly ill - founded , but leaves sufficient room for the application of section CARDINAL § CARDINAL of the Code of Civil Procedure . It does not require a specific degree of lack of prospect of success . ”

On DATE the applicant lodged a constitutional complaint alleging a violation of his rights under LAW and LAW . He further requested ORG to suspend his eviction from the business premises by interim measure .

By decision of CARDINAL DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s complaint for adjudication for lack of prospect of success . That court found that ORG interpretation of the law did not violate the applicant ’s constitutional rights . In particular , it neither violated the applicant ’s right that his case be adjudicated by the competent judge ( ORG gesetzlichen Richter ) , nor was the limitation of access to the appeal proceedings disproportionate .

This decision was served on the applicant ’s counsel on DATE .

According to the former Code of Civil Procedure , appeal proceedings against a decision given by a court of first instance allowed a complete review of both facts and law .

On DATE , reform legislation entered into force ( ORG ) , which was aimed at facilitating and thus expediting civil proceedings , inter alia by strengthening the position of the first instance courts and by unburdening second instance proceedings . Following this legislation , appeal proceedings are primarily devised as a means of controlling and rectifying errors made by the courts of first instance .

The relevant provisions as in force since DATE read as follows :

Section CARDINAL

Grounds of appeal

“ ( CARDINAL ) An appeal can only be lodged on the ground that the decision is based on a violation of the law ... or that the facts which are relevant according to section CARDINAL justify a different decision .

Section CARDINAL

Examination of admissibility , decision on rejection

“ ( CARDINAL ) ORG has to establish on its own motion whether the appeal is admissible ( statthaft ) and whether it has been lodged in accordance with the formalities and time - limits as prescribed by law . If any of these prerequisites is lacking , the appeal has to be rejected as being inadmissible . The decision is taken by court - order which is subject to an appeal on points of law .

( CARDINAL ) ORG promptly rejects the appeal by unanimous decision if it is convinced that

the appeal does not have prospect of success ,

the legal matter is not of fundamental importance and

the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the court of appeal .

The court of appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and has to give the appellant the opportunity to submit observations within a set time - limit . The decision pursuant to sentence one has to be reasoned , if the reasons for the rejection are not included in the letter of information pursuant to sentence CARDINAL .

( CARDINAL ) The decision given pursuant to paragraph CARDINAL , sentence one is not subject to an appeal . “

Section CARDINAL

Scope of examination by ORG

“ ( CARDINAL ) ORG has to base its hearing and decision on :

the facts established by the first instance court , unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts which warrant a fresh establishment ;

new facts , as long as it is admissible to consider these .

In case ORG rejects an appeal by judgment following an oral hearing , the appellant may , subject to certain provisions , file a request to be granted leave to appeal on points of law to ORG .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

In DATE he worked as a prosecutor at the GPE public prosecutor 's office . In the exercise of his functions , he had investigated a certain PERSON The latter had had dealings with Mr PERSON , a former NORP President , who at the end of his term of office had become a senator for life in accordance with LAW .

In DATE PERSON sent the applicant a fax and CARDINAL letters . He said he was making him a gift of the copyright in his written , telephone and oral communications with PERSON , “ including for the purposes of their stage and film exploitation ” ( “ anche ai fini di eventuale sfruttamento teatrale e cinematografico ” ) , “ by way of a very modest contribution towards the costs which [ he would ] be incurring for [ his ] transfer from GPE to GPE ” ( “ come modestissimo contributo alle spese che PERSON dovrà affrontare per il suo trasferimento da Palmi a GPE ” ) . PERSON also told the applicant that he was going to send him a small wooden horse and a tricycle “ for the leisure pursuits which [ he ] believe[d ] [ he was ] entitled to enjoy ” ( “ per quegli svaghi que credo abbia diritto a concedersi ” ) . Mr PERSON then actually sent the little wooden horse and the tricycle to the applicant together with a detective game called “ PERSON ” . With the parcel came the following message : “ Have fun , dear Prosecutor ! Best wishes , PERSON ” ( “ PERSON di svago , gentile PERSON ! PERSON ” ) .

NORP The applicant filed a complaint against PERSON , alleging that the communications and gifts described above had damaged his honour and reputation . Proceedings were then brought against PERSON for having insulted a public official .

On DATE PERSON was committed for trial before ORG . On DATE the applicant joined the proceedings as a civil party .

In the meantime , the President of the ORG had informed ORG that ORG ( ORG ... delle immunità parlamentari ) proposed that the ORG should declare that the acts of which PERSON was accused were covered by the immunity provided for in LAW .

By a resolution of DATE a majority in the ORG approved ORG proposal .

On DATE the applicant submitted a statement to the GPE public prosecutor and ORG in which he attacked the ORG 's resolution , observing that there was no discernible link between the acts of which PERSON was accused ( which he submitted ought to be construed as a personal quarrel with a prosecutor ) and the exercise of parliamentary functions . On that basis , the applicant alleged that the ORG , in applying DATE to circumstances not provided for in LAW , had encroached on the powers of the judiciary , and requested that the matter be referred to ORG to resolve the conflict of ORG powers .

By a judgment on DATE , the text of which was lodged with the registry on DATE , ORG ruled that Mr Cossiga had no case to answer “ pursuant to LAW .

ORG observed that it was for the ORG , whose resolutions were not subject to review by the courts , to determine whether the conditions listed in DATE were met . Moreover , it saw no need to raise a conflict of powers , given that the ORG 's decision was neither procedurally flawed nor manifestly unreasonable .

On DATE the applicant requested the GPE public prosecutor to appeal against the judgment of DATE . This was intended to pave the way for a conflict of ORG powers to be raised subsequently before ORG .

By a decision of DATE , the prosecutor rejected the applicant 's request . He observed that ORG did not have jurisdiction to quash the ORG 's resolution , but only to assess whether the ORG had exercised its power in an arbitrary fashion by improperly encroaching on the powers of the courts . However , the parliamentary papers revealed that the impugned resolution was based on the following reasons :

( i ) Mr PERSON had earlier criticised the investigations conducted by the applicant in a parliamentary question ;

( ii ) the acts of which PERSON was accused should be construed as polite and ironic criticism of that investigation ;

( iii ) NORP according to the case - law of the legislative chambers , the immunity provided for in LAW applied to any political opinion expressed by a member of ORG which could be regarded as an outward projection of parliamentary activity in its strict sense .

According to the GPE public prosecutor , those reasons were neither unreasonable nor manifestly arbitrary .

Article CARDINAL § CARDINAL of the LAW , as amended by LAW no . DATE , which abolished the need to obtain the consent of ORG in order to take proceedings against CARDINAL of its members , reads as follows :

“ Members of ORG shall not be required to account for the opinions they express or the votes they cast in the exercise of their functions . ”

ORG has held that a resolution of a legislative chamber stating that the behaviour of CARDINAL of its members comes within the scope of the above provision prevents any criminal or civil proceedings being brought or continued with the aim of determining the liability of the parliamentarian in question or securing reparation for the damage suffered .

NORP If ( usually at the request of the parliamentarian concerned ) such a resolution is adopted , it may not be quashed by the courts . However , if it considers that the resolution represents an unlawful exercise of the legislative chambers ' discretion , a court may raise a conflict of State powers before ORG ( see the DATE ORG judgment no . CARDINAL ) . The parties to the trial have no such right .

NORP The legislative chambers have adopted a broad interpretation of LAW , holding it to apply to opinions expressed outside ORG , even where they are divorced from parliamentary activity as such . This broad interpretation stems from the notion that political opinions expressed outside ORG represent an outward projection of parliamentary activity and come within the mandate given by the voters to their elected representatives .

When it considered the issue of conflicts of ORG powers raised by the courts , ORG first confined its scrutiny to the procedural lawfulness of parliamentary resolutions . It then progressively narrowed the scope of parliamentary immunity , thereby broadening the extent of its scrutiny over the compatibility of parliamentary resolutions with LAW of the LAW . In its judgment no . CARDINAL of DATE , it ruled that the expression “ parliamentary function ” ( funzione parlamentare ) could not be held to cover all the political activities of a member of ORG or the ORG , because “ such an interpretation ... would risk converting an immunity into a personal privilege ” . It added that “ it would not be right to establish any connection between a number of statements made during meetings , press conferences , television programmes ... and a parliamentary question subsequently addressed to the Minister of Justice ... To hold otherwise [ would amount to acknowledging ] that no parliamentarian may be held accountable for his or her statements , even if they are grossly defamatory and ... entirely divorced from parliamentary functions or activities ” .

In its later case - law , which can now be considered well - established , ORG held that in the case of opinions expressed outside ORG , it had to verify whether there was any connection with parliamentary activities . In particular , there must be a substantial connection between the opinions in question and a prior parliamentary activity ( see judgments nos . CARDINAL , DATE , DATE , DATE , and CARDINAL of DATE , ORG . CARDINAL and CARDINAL of DATE , and ORG . CARDINAL , DATE , DATE , DATE and DATE ) .

Article CARDINAL of the Code of Criminal Procedure provides :

“ The civil party may challenge , via the prosecution 's right of appeal , ... the acquittal judgment ... exclusively for the purpose of determining [ the accused 's ] civil liability ... ”


ORG At the time of the events giving rise to this case , Mr. PERSON , a NORP national born in DATE , was a student and resident in GPE .

ORG During refresher courses ( PERSON ) organised in DATE and DATE as part of ordinary military obligations , he was subjected to CARDINAL and CARDINAL days’ strict arrest for refusing to comply with Article CARDINAL bis of the service regulations , relating to hair - cuts .

ORG Shortly before DATE refresher course , the applicant received a registered letter from his unit commander instructing him to report for the course with a regulation hair - cut . He nevertheless presented himself on CARDINAL DATE with his hair longer than authorised and refused to obey the officer ’s verbal order to have it cut .

ORG On DATE , ORG ( auditeur militaire ) drew up a " bill of indictment " ( PERSON ) against Mr. PERSON , charging him with repeated insubordination and , subsidiarily , failure to observe service regulations ( Articles CARDINAL and DATE of LAW ) .

ORG On DATE , at the close of a public hearing , ORG no . CARDINAL delivered in public a judgment sentencing the applicant to CARDINAL days’ imprisonment for the CARDINAL offences .

Mr. PERSON ’s defence counsel had unsuccessfully requested ORG to decline jurisdiction on the ground that it lacked the independence and impartiality required by LAW ; he had also applied , in vain , for a supplementary enquiry into the futility , or indeed abusive nature , of the regulations on hair - cuts .

A copy of the decision was sent to the applicant on DATE .

ORG Having been duly informed by the grand juge ( President of ORG ) that he could appeal on points of law within TIME from delivery of the judgment , Mr. PERSON had immediately given notice of appeal to the Registrar ( section CARDINAL para . CARDINAL of ORG of DATE - " LAW " ) .

On DATE , within the prescribed period of DATE from service of the judgment , the applicant filed a memorial containing a " final " statement ( section CARDINAL para . CARDINAL of LAW ) of his grounds of appeal .

He submitted that the decision appealed against had infringed the law ( section CARDINAL para . CARDINAL , no . CARDINAL , of LAW ) by applying regulations that were incompatible with LAW article CARDINAL) of the LAW ; that ORG had not been composed in the manner prescribed by law ( ibid . , no . CARDINAL ) , CARDINAL of the CARDINAL judges being substitutes for the ordinary judges and the grand juge having been appointed by ORG ( auditeur en chef ) ; that ORG had erred in not declining jurisdiction to hear the case on the merits ( ibid . , no . CARDINAL ) , since the military courts were not tribunals within the meaning of LAW ) ; and that the refusal to order a supplementary enquiry had prejudiced the defence on decisive points ( ibid . , no . CARDINAL ) concerning the application of LAW article CARDINAL) and in particular paragraph CARDINAL ( article CARDINAL - CARDINAL ) thereof .

Mr. PERSON also drew the attention of ORG to the fact that it was not consonant with LAW ) to conduct proceedings entirely in writing ; he therefore requested it to hold CARDINAL hearing and to pronounce its judgment publicly .

ORG The grand juge transmitted the appeal to ORG , in his capacity as respondent ; the latter was entitled to " submit his observations " within DATE ( section CARDINAL para . CARDINAL of LAW ) , but chose not to do so .

The grand juge afterwards sent the appeal and the papers in the case , without appending " his report on the matters in dispute " ( ibid . ) , to the Chief Military Prosecutor .

The latter forwarded the documents to ORG . He could himself have filed observations if he had thought fit , but - like ORG and the grand juge - he confined himself to submitting that the appeal should be dismissed .

ORG The President of ORG requested a judge whom he had designated from amongst his colleagues to draft a report containing a reasoned proposal . This document was circulated , together with the papers in the case , amongst the other members . On DATE , ORG deliberated on the matter in camera and dismissed the appeal . It thus did not rule on the merits of the case ; according to the provisions then in force ( section CARDINAL of the CARDINAL Act ) , it could have done so only if the judgment had been quashed and the sole ground for the quashing had been misapplication of the law . This power ORG no longer enjoys ( see paragraph CARDINAL below ) .

The operative provisions of the judgment were immediately served on Mr. PERSON in writing . He received the full text on DATE ( section CARDINAL of the CARDINAL Act ) . The reasons covered CARDINAL pages and concerned mainly Mr. PERSON ’s submissions as to the incompatibility of the DATE Act with Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL) of the LAW . As to the composition of ORG , the judgment stated that the substitute judges had the same legal status as the ordinary judges , and that ORG had not infringed the law by appointing the grand juge - who had the status of an ordinary judge - to sit on the case , the ordinary president being unable to take part as he had had to deal with the matter at a previous stage as Military Prosecutor .

ORG At the time of the facts giving rise to the present case , military criminal procedure was governed by LAW ( see paragraph CARDINAL above ) . As regards the public character of the proceedings , this LAW drew a distinction according to the level of the court concerned .

ORG , which heard military - law cases at first instance , were required to give their decisions after holding public hearings and to pronounce their judgments in open court .

On the other hand , proceedings before ORG were conducted entirely in writing and its judgments were not delivered in public . Concerning the latter point , section CARDINAL of the Act laid down merely that " an extract " of the judgment had to be communicated to ORG , the accused and the grand juge .

ORG LAW was repealed by ORG of DATE ( " LAW " ) , which entered into force on DATE .

The existing system was maintained for proceedings before ORG , and was extended to ORG which were set up by the same statute .

As regards ORG , LAW provides that " There shall be no oral hearings " ( section CARDINAL para . CARDINAL ) . The LAW did , however , make CARDINAL innovations : in future , ORG was to deliver judgment in open court ( sections CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ) and could in no circumstances itself rule on the merits of the case .

ORG As was also the case in the past , the judgments of ORG are collected together DATE in a provisional form ( roneotyped ) . Anyone who can establish an interest may consult or obtain a copy of the full text on application to ORG or the military court registries .

If judgments contain features that are novel or of importance for the interpretation of the law , they are subsequently published in printed form .

The PERSON judgment of CARDINAL DATE appeared in DATE in volume CARDINAL ( covering DATE ) of the judgments of ORG , under the number CARDINAL .


Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

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

The applicant is an employee of ORG ( hereinafter - FAC ) . On DATE he suffered an industrial injury .

In DATE the applicant instituted proceedings in ORG against the ORG seeking compensation for the injury . On DATE the court found in part for the applicant .

On DATE the ORG of ORG allowed the protest lodged by the Deputy President of ORG and quashed the decision of DATE . The case was remitted for a fresh consideration to ORG .

On DATE ORG found that the applicant had been injured due to the fault of FAC and ordered it to pay him UAH CARDINAL,CARDINAL.CARDINAL in compensation and UAH CARDINAL of costs and expenses ( рішення Вугледарського міського суду PERSON області ) . The court also awarded the applicant a DATE allowance of UAH CARDINAL.CARDINAL in compensation for loss of earnings for DATE .

On DATE ORG instituted enforcement proceedings in respect of the judgment of DATE .

According to the Government , the judgment was fully enforced in instalments : during the periods of DATE and DATE the applicant received a total of UAH CARDINAL , and in DATE he received the remaining amount of the judgment debt ( UAH CARDINAL ) . The last payment took place in DATE . The applicant was also paid UAH CARDINAL for his legal expenses .

On DATE ORG terminated the enforcement proceedings as the judgment of DATE was enforced in full . The applicant never challenged the Bailiffs ' decisions of DATE . Nevertheless , he maintains that the debtor still owes him UAH CARDINAL .

NORP In DATE the applicant lodged a new claim with ORG of Donetsk against ORG ” ( NORP підприємство „ Донецька вугільна енергетична компанія ” ) , seeking compensation for the substantial delay in the enforcement of the judgment of DATE . Within the course of the proceedings the court appointed a forensic accounting expertise to calculate the amount of compensation due to the applicant . In their conclusions of DATE the experts mentioned , inter alia , that , out of the total amount of the judgment award , UAH CARDINAL remained unpaid .

On DATE the court partly allowed the applicant 's claim as , according to the domestic legislation then in force , untimely paid salary had to be recalculated if a price index had increased for CARDINAL % during the relevant period of delay in payment . The court also found that the applicant had sustained moral damage as the result of the lengthy non - enforcement of the judgment in his favour . The court awarded the applicant the total of UAH CARDINAL,CARDINAL.CARDINAL , including ORG CARDINAL in compensation for moral damage .

On DATE ORG of Donetsk instituted enforcement proceedings in respect of the judgment of DATE .

On DATE the enforcement proceedings were terminated in accordance with the PERSON of GPE “ On measures to ensure the stable operation of fuel and energy sector enterprises ” ( ORG заходи , спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу ORG ) .

The judgment of DATE remained unenforced .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by PERSON , ORG at ORG .

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

On DATE the Prefect of the Eastern Administrative District of GPE decided that balconies of a block of flats in which the applicant lived were dilapidated and should have been demolished for safety reasons .

On DATE the applicant appealed against the decision of CARDINAL DATE to ORG of GPE . He argued that the demolition of his balcony had been unlawful and violated the requirements of the law .

On DATE ORG adjourned the examination of the action and asked the applicant to clarify his claims DATE .

According to the Government , on DATE ORG sent a copy of the decision of DATE to the applicant . The ORG relied on a list of documents enclosed in the file of the applicant ’s case showing that the local post office had accepted the letter of DATE for delivery to the applicant . The applicant argued that he had not received the letter of DATE .

On DATE the applicant complained about the court ’s inactivity in his case . ORG received the complaints on DATE and DATE , respectively .

On DATE and DATE the President of ORG sent CARDINAL identical letters to the applicant informing him that on DATE ORG had suspended the adjudication of his action and granted him an extension until DATE for clarification of his claim . The President also noted that due to the fact that the applicant had not corrected the defects , his statement of claim with accompanying documents would be returned to him . The applicant alleges that he only received the letters of CARDINAL May and DATE on CARDINAL and DATE , respectively .

On DATE the applicant received a letter of DATE from ORG . ORG returned his statement of claim and accompanying documents because he had not complied with the decision of DATE .

On DATE the applicant complied with the instructions set out in the decision of CARDINAL DATE and resubmitted his complaint about the ORG ’s decision of CARDINAL DATE to ORG .

On DATE ORG dismissed the applicant ’s action . The judgment became final on DATE when ORG upheld it on appeal .

From DATE the applicant was a party to a dispute in which he attempted to challenge a ORG regulation of CARDINAL DATE concerning assessment of living surface in housing LOC .

On DATE ORG of GPE , in the final instance , dismissed the applicant ’s complaint .


Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient

NORP In DATE , at DATE , the applicant met a man ( “ X ” ) in GPE while attending a secretarial college . She fell in love with him and after some time they decided to get married .

NORP However , X ’s family was opposed to their marriage . In DATE X married another woman . The applicant continued to see him and to have sexual relations with him .

NORP In DATE the applicant and X were stopped by policemen while walking along a street . The policemen arrested the couple and detained them in custody as X was married .

NORP The applicant underwent a virginity examination while in custody . After DATE she was released from detention with the help of her family .

In DATE the applicant entered GPE illegally . In DATE the applicant went to GPE , from where she tried to fly to GPE via GPE using a forged NORP passport .

When the applicant arrived at the airport in GPE , the NORP police found her to be in possession of a forged passport .

On DATE the applicant was put on a plane for GPE . Following her arrival at FAC at TIME on DATE she was arrested by policemen on the ground that she had entered GPE using a forged passport . Her passport was sent for examination .

On DATE the applicant was transferred from a police station inside the airport to ORG of ORG . She was brought before the PERSON public prosecutor on the ground that she had entered GPE using a forged passport in contravention of LAW DATE . The public prosecutor ordered her release , finding she had not entered GPE of her free will . The applicant was handed over to ORG with a view to her deportation . When the applicant realised that she was going to be sent to GPE she told ORG that she was an NORP national . The applicant lodged an asylum application with ORG . The police rejected her application as it had been submitted out of time . The applicant was informed that under LAW she should have lodged her application for asylum within DATE of her arrival in GPE .

According to the applicant , she was held in detention at ORG until DATE . Thereafter , following the intervention of the GPE branch office of the ORG High Commissioner for Refugees ( ORG ) , she was accommodated at a hotel in GPE .

On DATE a staff member of the ORG , with the permission of the authorities , interviewed the applicant about her asylum request under the DATE LAW relating to ORG ( “ LAW ” ) . On DATE the applicant was granted refugee status by the ORG on the basis that she had a well - founded fear of persecution if removed to GPE as she risked being subjected to inhuman punishment , such as death by stoning , or being whipped or flogged .

On DATE the applicant lodged an application with ORG against her deportation . She also asked for a stay of execution of her deportation .

On DATE ORG dismissed the applicant ’s petitions on the ground that there was no need to suspend her deportation since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant .

On DATE ORG found that there was no actual risk of her being deported in view of the fact that she had been granted a residence permit pending the outcome of her application under LAW . The court found that it was not required to suspend the deportation order since no such order had yet been made .

Article CARDINAL of LAW provides , inter alia :

“ All acts or decisions of the authorities are subject to judicial review ...

If the implementation of an administrative act would result in damage which is difficult or impossible to compensate , and at the same time this act is clearly unlawful , a stay of execution may be decided upon , stating the reasons therefor ... ”

LAW states , inter alia :

“ ORG is the final instance for reviewing decisions and judgments given by administrative courts . It shall also be the first and last instance for dealing with specific cases prescribed by law . ... ”

DATE Code on the establishment and duties of tax courts , administrative courts and regional administrative courts ( no . CARDINAL ) provides , inter alia :

“ Administrative courts deal with :

( a ) actions for annulment

( b ) NORP administrative actions

( c ) ...

except for those actions which are within the competence of tax courts and those which should be dealt with by ORG as a first - instance court . ”

Article CARDINAL of the Act on ORG provides :

“ Final decisions rendered by the administrative courts and the tax courts , as well as final decisions rendered by ORG acting as a first - instance court may be appealed to and dealt with by ORG . ”

GPE has ratified LAW and LAW thereto . It has exercised the geographic preference option under LAW in order to limit the grant of refugee status to asylum - seekers from NORP countries . For humanitarian reasons , GPE issues temporary residence permits to asylum - seekers from non - NORP countries who are recognised by the ORG as refugees pending their resettlement in a third country by that organisation .

The Ministry of the ORG issued a regulation on DATE concerning asylum - seekers seeking asylum in GPE or who are to be resettled in a third country . According to this Regulation , foreign nationals arriving in GPE to seek asylum must submit their asylum application to the police within DATE of their arrival in GPE . Those who enter illegally are required to submit their application to the police at the border town nearest the point where they entered the country . Asylum - seekers entering the country legally may submit their application to the police in any city within DATE of their arrival .

A person who enters GPE illegally and does not apply to the NORP authorities within DATE of his or her entry can not be accepted as a refugee .

Asylum requests are examined by ORG . NORP asylum - seekers who receive a positive decision may then submit their cases to the ORG for resettlement . ORG considers the merits of an asylum application from the standpoint of GPE ’s obligations under LAW and has regard to the opinions of ORG and other relevant ministries and agencies . Foreigners whose requests are not accepted are liable to be deported by the local authorities .

An amendment was introduced to the DATE ORG in DATE . According to the amendment , the DATE period in which to lodge an asylum request has now been increased to DATE . Furthermore , an asylum - seeker whose application has been refused may now appeal within DATE of the refusal to the competent governorship . The appeal is to be assessed by the superior of the official who took the initial decision to refuse asylum .

In its DATE Annual Report , ORG concluded that judicial punishments amounting to torture or cruel , inhuman or degrading punishment continued to be reported . Flogging was reportedly imposed for a wide range of offences , at times in conjunction with the death penalty or a custodial sentence . An NORP woman , the co - accused of a foreign businessman , was reportedly sentenced to CARDINAL lashes in DATE after she was convicted of illicit sexual relations . It was unknown whether the sentence was carried out . In DATE an NORP national was acquitted after he escaped from the pit in which he had been buried to the waist in order to be stoned to death in the town of GPE . He had been sentenced to death for adultery .

The DATE Country Reports on ORG , released on DATE by ORG , mention , with reference to GPE , that harsh punishments are carried out , including stoning and flogging . LAW details the methods authorities should follow when conducting a stoning : “ The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil , he up to his waist and she up to a line above her breasts . ” According to press accounts , a man was stoned to death in DATE in the town of PERSON , which borders LOC . He was alleged to have killed CARDINAL of his own sons . Prior to the stoning , he received CARDINAL lashes . The first stone was cast by the judge who sentenced him to death . The law also allows for the relatives of murder victims to take part in the execution of the killer .


No violation of Art. 6;No violation of P7-4

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of the attempted rape of his flatmate . He was subsequently also charged with attempted murder .

On DATE ORG convicted the applicant of attempted rape and attempted murder ( Articles CARDINAL , CARDINAL and CARDINAL of the Russian Soviet Federative Socialist Republic ( “ RSFSR ” ) Criminal Code ) .

On DATE , on appeal , ORG of GPE quashed the conviction and remitted the case for a fresh examination . ORG instructed ORG to examine certain evidence .

On DATE ORG ordered a psychiatric expert examination of the applicant .

On DATE the applicant was diagnosed with schizophrenia .

On DATE ORG reclassified the charges as attempted rape and attempted murder with aggravating circumstances ( Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Criminal Code ) . It held that , on account of his mental disorder , the applicant was not responsible for the acts he had committed and ordered his compulsory treatment in a psychiatric hospital . The applicant did not appeal .

The applicant remained in hospital from DATE to DATE . After being discharged from hospital , he travelled to GPE .

On DATE the applicant applied to the Prosecutor - General requesting supervisory review of his criminal case . It appears that it was not his first request for supervisory review . The applicant stated , inter alia :

“ ... I repeat my request to you :

That the case ... against me be fully re - examined by a court ... ” .

On DATE the Deputy Prosecutor - General lodged an application for supervisory review of ORG decision of CARDINAL DATE .

On DATE ORG of GPE quashed the decision of DATE under the supervisory - review procedure and remitted the case for a fresh examination . ORG found that in the trial of DATE ORG had failed to comply with the instructions ORG had given in its decision of DATE . Furthermore , it had unlawfully held that the applicant had committed more serious acts than those of which he had initially been convicted on CARDINAL DATE .

On an unspecified date the case was set down for a hearing on the merits on DATE . It appears that the applicant was duly summoned . However , in a telegram addressed to the court he stated that he could not attend the hearing since he had no money to pay for the journey from GPE to GPE .

On DATE ORG found the applicant ’s failure to appear at the hearing unjustified as he had not appended any evidence of his alleged financial hardship to his telegram . It ordered his arrest .

On DATE the applicant was arrested in GPE pursuant to a request of the NORP investigative authorities . He was subsequently extradited to GPE . On DATE he was placed in FAC no . IZ-CARDINAL/CARDINAL .

According to the expert report , dated DATE , an in - patient psychiatric expert examination was required . The examination was ordered on DATE .

On DATE a written obligation not to leave his place of residence without permission was imposed on the applicant as a preventive measure .

On DATE ORG reclassified the charges of attempted rape as charges of disorderly behaviour ( LAW ) and discontinued the criminal proceedings against the applicant on account of the expiry of the statutory time - limit . It acquitted the applicant of the murder charges .

On DATE ORG upheld the judgment .

Section VI , LAW , of the DATE Code of Criminal Procedure ( Уголовно-процессуальный кодекс РСФСР ) , as applicable at the material time , allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure . The supervisory - review procedure ( Articles CARDINAL - CARDINAL ) was distinct from proceedings in which a case was reviewed in the light of newly established facts ( Articles CARDINAL - CARDINAL ) . However , similar rules applied to both procedures ( Article CARDINAL ) .

Article CARDINAL of LAW provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or , if it was not appealed against , once the time - limit for appealing had expired .

“ The grounds for quashing or varying a judgment [ on supervisory review ] are the same as [ those for setting aside judgments ( which have not become final ) on appeal ] ... ”

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

( i ) prejudicial or incomplete investigation or pre - trial or court examination ;

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

( iii ) a grave violation of procedural law ;

( iv ) misapplication of [ substantive ] law ;

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

Article CARDINAL of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator - General , the President of ORG of GPE or their respective deputies in relation to any judgment other than those of the Presidium of ORG , and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could seek the intervention of those officials to apply for such a review .

Article CARDINAL of LAW set a limitation period of DATE during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official . The period ran from the date on which the impugned judgment became enforceable .

Under Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure , a request for supervisory review was to be considered by the judicial board ( the ORG ) of the appropriate court . The court could examine the case on the merits , was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence .

The ORG could dismiss or grant the request . If the request was dismissed , the earlier judgment remained operative . If it granted the request , the ORG could decide to quash the judgment and terminate the criminal proceedings , remit the case for a new investigation , order reconsideration by a court at any instance , uphold a first - instance judgment reversed on appeal , or vary or uphold any of the earlier judgments .

LAW provided that the ORG could , in the same proceedings , reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’s advantage . If it found a sentence or legal classification to be too lenient , it was obliged to remit the case for reconsideration .