Violation of Art. 6-1;Violation of Art. 6-3-a;Violation of Art. 6-3-b;Violation of Art. 6-1 (length of proceedings);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

In DATE the applicant was assigned by his employer to work as a bus driver for a school in GPE that numbered disabled children among its pupils ; his job consisted of picking the disabled children up from home in the morning to take them to school and driving them home in the afternoon . He was always accompanied by a social worker .

On DATE the mother of NORP , a mentally disabled girl born in DATE who attended the school , requested the help of a social worker , PERSON , as she suspected that NORP had been raped or sodomised at school by a person named “ PERSON ” . Since DATE NORP had refused to go back to school . On DATE her mother , accompanied by PERSON , took NORP to see a gynaecologist . The gynaecologist did not examine NORP but , on learning from her mother what had happened , advised that she be examined by a doctor from ORG . On DATE , therefore , NORP underwent a medical examination ; however , the doctor found no traces , recent or old , of rape or sodomy .

On DATE R. 's mother also requested the headteacher of the school to ask an employee called “ PERSON ” for an explanation , but the headteacher refused .

On DATE the mother lodged a criminal complaint against “ a person named PERSON ” . She informed the GPE police that DATE earlier she had noticed that her daughter seemed to be in pain and kept going to the toilet . PERSON 's explanation had been : “ PERSON did it ” ( “ È stato PERSON ” ) . DATE , the mother had learned from a friend of hers , GPE , that DATE she had been told by NORP that a certain PERSON had forced her to have anal intercourse in the school lavatory .

The police interrogated NORP in her mother 's presence . The girl said that DATE , while she was in the school lavatory on the second floor , “ PERSON ” had told her to lie down on a small bed and had had anal intercourse with her .

The police then interrogated GPE , who declared that DATE she had been in the mother 's flat and had noticed that NORP was very quiet . After some initial hesitation , NORP had confessed to her in the presence of her sister , PERSON , and of another friend , GPE , that “ PERSON ” had indecently assaulted her , causing her pain ; he had also threatened her .

The police then questioned the manager of the company in charge of organising the school bus service . He identified the applicant as the relevant driver .

On DATE the police lodged a criminal complaint against the applicant with the GPE public prosecutor . A preliminary investigation was started .

On DATE the public prosecutor summonsed PERSON , her mother , GPE and PERSON , to appear before her on CARDINAL DATE to give witness statements . PERSON 's mother stated that the reason she had not reported the rape to the authorities until DATE was that her daughter had spoken to a friend of hers and not to her directly , and her own father had died during that period . She said , however , that she had noted that her daughter was in pain and had given her some painkillers . She said that her daughter had refused to return to school after the rape and that she had not sent her back to school . She added , however , that for DATE after the rape , her daughter “ would return home and , without saying a word or having anything to eat , go straight to bed ” . She said that she had not seen “ PERSON ” after DATE because he had immediately asked to be replaced by another driver . She added that she herself had seen a bed in the school lavatory on the second floor .

On CARDINAL DATE the applicant received judicial notification ( comunicazione giudiziaria ) of the allegation that he had committed an “ offence under LAW in that he forced NORP , who [ was ] mentally disabled , to have sexual intercourse with him in GPE , in DATE ” ( “ del reato di cui all'articolo CARDINAL c.p . per aver costretto PERSON di mente a congiungersi carnalmente con lui . In GPE , nel DATE ” ) . On DATE the applicant appointed his defence lawyer .

On DATE the public prosecutor summonsed the headteacher to appear on DATE for questioning as a witness . The headteacher acknowledged that the victim 's mother had reported the rape to her , but argued that she did not believe the allegation to be plausible , as there were no beds in the lavatory and all children were accompanied when they went to the toilet or to the therapy rooms on the third floor ( where there were beds ) . She added that the applicant did not normally enter the school and would have had no reason for being on the third floor . He had been assigned to a new post in DATE .

On DATE the applicant was interviewed by the Latina public prosecutor in his counsel 's presence . He claimed that he was innocent . He underlined that there had always been CARDINAL people on the bus , and that he had always met NORP in the social worker 's presence .

On DATE the applicant was committed for trial before ORG . He was indicted for “ an offence under LAW , in that he [ had ] forced NORP , who [ was ] mentally disabled , to have sexual intercourse with him in GPE , in DATE ” .

On DATE the applicant 's counsel requested access to the prosecution file .

Following a request made by the applicant on DATE , ORG fixed the first hearing in the case for DATE . At the hearing the applicant protested his innocence , and repeated that he had never been alone with NORP because there had always been CARDINAL people on the bus , including the social worker . He explained that , as the bus driver , his duties ended when he arrived at the school . He would then return to the school at TIME to pick the children up and drive them home . He said he was aware of what had been said in the criminal complaint but argued that he never entered the school as it was prohibited . He added that after taking the children to school in the morning he did other work for his employer , which would usually be to drive tourists around .

R. was unable to give evidence at first , as she appeared very disturbed and said she could not remember anything . However , she identified the applicant as the bus driver .

R. 's mother was questioned . She said that she did not know the exact date of the events , and added that she had not reported the rape immediately because of her father 's death during that same period . She said that she knew that the rape had taken place on the third floor , in the therapy room where there were beds . Replying to a question from the applicant 's lawyer , she said that , so far as she was aware , the children were accompanied when they went to the therapy rooms on the third floor .

C.T. , the social worker , was also questioned . She said that in TIME of CARDINAL DATE NORP 's mother had come to see her and had told her that NORP had returned from school upset and bleeding . GPE . had told her to come back the following day with NORP The DATE , she had taken NORP to the gynaecologist , who had not examined her but , on learning from NORP 's mother what had happened , had advised that NORP should be examined by a doctor from ORG . On DATE , therefore , PERSON had accompanied NORP to another doctor , who had examined her and issued a certificate ; the doctor had advised her to inform the police . PERSON said that NORP had referred to the rapist as “ LOC ” or “ the school bus driver ” . She said that NORP had told her that she had left her classroom to go to another classroom and had been grabbed by “ LOC ” in the corridor . He had pushed her into a room where there was a bed or table and had attempted to have anal intercourse . NORP had felt severe pain and had cried out for help but nobody had heard her . “ GPE had threatened to kill her if she said anything about what had happened .

The next witness was GPE She repeated what she had told the police , and explained that PERSON had told her that the rape had been committed on the third floor , on DATE , but had not said at what time .

N.D. , the headteacher of the school , said in evidence that NORP 's classroom was on the first floor . The bus drivers did not enter the school as they were forbidden to do so by school regulations , although the applicant had sometimes gone to her office to use the telephone . CARDINAL caretakers supervised access to the classroom area . She added that children were accompanied to the therapy rooms on the third floor by CARDINAL of the CARDINAL assistants . The applicant had worked for the school until DATE .

Finally , NORP gave her evidence with the help of the social worker . She said that she had gone to the bathroom to wash her hands and on her way back to her classroom had been caught by the applicant . This had happened on the same floor as her classroom ; she had not gone to the upper floors . It had been in TIME . NORP added that she could not remember whether she had returned to her classroom and could not recall which teacher was present DATE .

The court adjourned the case to CARDINAL DATE , in order to hear the evidence of CARDINAL school caretakers to whom the headteacher had referred and of the teacher who had been at the school on DATE . It also ordered production of the school register .

At the hearing on CARDINAL DATE the caretakers were heard . ORG , the caretaker in the girls ' section of the school , said that she remained in the corridors during lessons , as teachers would call her if a child had to leave the classroom for any reason , for example to go to the toilet . She said that children were accompanied to and from the therapy rooms by an assistant . She remembered seeing the bus drivers go to the headteacher 's office on occasions , but they never entered the corridors , where there was a sign warning that access was prohibited . The caretakers stood by a table in front of the headteacher 's office at the entrance to the corridors that led to the classrooms , so that they could control access . NORP added that there was a separate entrance to the third floor from the school clinic , but it was locked and was only opened at the request of the school administrators ; she excluded any possibility of complicity between the bus drivers and the administrators . She said that she had never seen the bus drivers go to the upper floors by the internal stairs , which were in front of the caretakers ' table , and that she did not recall having seen NORP return to her classroom crying or looking upset .

V.C. , the other caretaker , said that he had never seen the bus drivers enter the corridors , as they had no right of access ; they would wait outside the school until TIME , when they would drive the children home . There had been occasions when he had been sent by the headteacher to fetch CARDINAL or other of the drivers to answer phone calls from their employer .

The court noted from the school register that NORP had been absent from the school since CARDINAL DATE ; on DATE she had left the school .

PERSON , PERSON 's teacher , informed the court in evidence that she vaguely remembered NORP She said that she had never been told officially why she had stopped attending the school , but had heard rumours . She stated that she had never seen the bus drivers in the corridors . When a pupil needed to leave the classroom to go to the toilet , she would call the caretaker who would accompany the pupil there and back . When disabled pupils had to attend therapy , they would be accompanied by the assistants .

By a judgment delivered on DATE , ORG convicted the applicant of rape and sentenced him to DATE imprisonment . It also barred him from employment in public service for DATE . On DATE the applicant gave notice of appeal against the judgment . The judgment was filed with the registry on DATE .

In its judgment the court underlined that , although NORP was mentally disabled and therefore seemed not fully to comprehend her own evidence , she had been precise and detailed enough to be credible and felt no hatred towards the applicant or rancour against him . As to the lack of medical evidence of the rape , the court considered that , since NORP had not been examined until DATE after the rape , the lesions had already healed and MONEY remained . The court held that the witnesses who had testified against the applicant , particularly GPE and PERSON , were fully credible and felt no resentment against him . As for the time of the rape , the court held that it had been committed on DATE NORP had spoken to GPE , namely DATE before DATE and immediately before DATE , the date NORP had stopped attending school , presumably as a consequence of the rape itself .

Having established that there had been a rape , the court considered it proved that the guilty party was the applicant . NORP had identified him , and it was common for persons named “ LOC ” to be referred to as “ PERSON ” . The court found that the applicant had had access to the school , despite the headteacher 's and the caretakers ' statements to the contrary : they had contradicted themselves on a number of issues and their evidence was not credible in that they appeared to have an interest in protecting the school 's reputation . It was reasonable to assume that the employer had contacts through its drivers with the school administrators , who worked in an office on the third floor . It was plausible that the applicant had in fact committed the crime , and the exact place the rape had been committed – that is to say the precise floor – was immaterial , once it had been established that ( a ) it had been committed inside the building and ( b ) the applicant had access to the building . As to the fact that the applicant had stated that he used to leave the school after taking the pupils in TIME and returned in TIME , CARDINAL of the caretakers had on the contrary stated that the bus drivers remained outside the school . The court further found that , while it was true that certain severely disabled pupils were accompanied by either a caretaker or an assistant when they left the school , there must have been frequent occasions when NORP was allowed to go unaccompanied , as she was able to walk and could move around unassisted .

On DATE the applicant filed the grounds for the appeal with ORG . He argued that the particulars of the offence charged had been too vague to allow him to defend himself , there being no exact indication of the place and time of the rape , and those issues had not been elucidated during the trial . He therefore claimed that the proceedings were null and void , on the ground that his defence rights had been violated . The applicant also emphasised that the witnesses had admitted that NORP was in love with him , and the fact that that love was unreciprocated could in his opinion explain a feeling of rancour on her part . He also requested that the evidence of a witness on his behalf , namely his employer at the time of the rape , be heard so that further details about his duties as the school bus driver could be obtained .

In a judgment of DATE , filed with the registry on CARDINAL DATE , ORG upheld the first - instance judgment . After re - examining the evidence gathered at the trial and considering it unnecessary to examine the applicant 's employer , ORG came to the conclusion that the applicant was guilty . As to the alleged vagueness of the charge , the court considered that the fact that it was impossible to specify the exact time and place of the rape did not render the charge itself null and void , as the particulars ( it alleged that the rape had taken place in the school in DATE ) it contained were sufficient to allow the defence to prepare its case .

ORG found , in particular , that the assertion – favourable to the applicant – that disabled children were always accompanied to the toilet and the therapy rooms was general and could not counter the precise description of the facts by NORP As to the absence of beds in the lavatories , it considered that , given that there were beds on other floors in the school , the possibility that NORP , who trusted the applicant , had followed him to other rooms on the school premises could not be excluded . It further held , like the court of first instance , that it was unnecessary to establish where exactly on the school premises the rape had been committed . As to the absence of rancour towards the applicant , it considered that the fact that NORP was probably in love with the applicant was irrelevant . Indeed , that circumstance could explain why PERSON had followed the applicant to an isolated part of the building . As to the date of the rape , ORG considered that the evidence proved that it had been committed on or DATE , before NORP stopped attending the school . PERSON , who said that the rape had been committed on DATE , had probably got the date of the rape confused with the date of the medical examination . The fact that there had been no trace of any lesions was due , in its opinion , to the time that had elapsed between the rape and the medical examination and was not sufficient to exclude the possibility that there had been a rape “ given that NORP had cried out ” .

NORP The applicant was notified that the text of the judgment had been deposited on DATE .

On DATE the applicant lodged an appeal on points of law . He reiterated , in particular , that the charge was too vague to allow him to defend himself and claimed that ORG had not given any grounds for considering that there was sufficient evidence against him to convict . On the contrary , the evidence was hearsay , weak and uncorroborated . The courts below had assumed that the witnesses who had given evidence in his favour were biased , but there was no concrete ground for that assumption and indeed they had confirmed the applicant 's statements . ORG had not believed the evidence that all the children were accompanied to the toilets , but there was nothing to indicate that that evidence , confirmed by all the witnesses whose testimony was favourable to the applicant and even by NORP , was untrue . Nor was it irrelevant to know where the rape had been committed : in the second - floor lavatories , as stated by the victim and the witnesses , on the ground floor where there were no beds , or in the therapy rooms on the third floor . The applicant considered that the courts below had not examined the contradictions in NORP 's statements carefully . As to the date of the rape , the applicant argued that the witnesses had consistently indicated that it had been committed on DATE and not , as held by the courts below , on DATE . Indeed , the rape had been committed , if at all , on DATE by which time NORP had already stopped attending the school and the applicant could not be a legitimate suspect . NORP had probably accused him because she was in love with him and had been rejected ; the courts below had unjustly refused to take that factor into consideration . The applicant finally complained that no reasons had been given for refusing to examine another witness on his behalf .

In a judgment of DATE , which was filed with the registry on DATE , ORG rejected the applicant 's appeal as it was manifestly ill - founded and had been lodged by a lawyer who had no rights of audience before ORG . ORG , stressing that its role was not to review the merits of the decision taken by the courts below , held , in particular , that the charge brought against the applicant was not vague , as it contained all the details that were necessary for the applicant to defend himself . It considered that the lack of details regarding exactly when and where the rape had been committed was a consequence of the initial imprecision of the charge ( originaria imprecisione dell'accusa ) that had been caused by NORP 's mental disability . ORG found , however , that that initial imprecision had been remedied in the course of the trial through further evidence in the form of the statements of the CARDINAL main prosecution witnesses . As to the date of the rape , it was logical to deduce that it was immediately prior to NORP 's refusal to go to school . PERSON had made a justifiable mistake , and NORP 's mother was credible and ought to be believed .

As to the refusal to hear the evidence of a witness on appeal , ORG found that ORG had implicitly given reasons therefor , namely that the evidence already gathered before ORG was sufficient .

The applicant served his sentence in Latina Prison . On DATE he was released and remained on probation ( affidamento in prova al servizio sociale ) until DATE .

Article CARDINAL § CARDINAL of the former Code of Criminal Procedure provided :

“ Upon taking the first step in an investigation , the investigating judge shall give everyone who might have an interest as a private party judicial notification [ comunicazione giudiziaria ] stating the legal provisions alleged to have been breached and DATE of the offence of which they are accused , and informing them that they may appoint defence counsel . ”

Article CARDINAL bis provided that the defence lawyer was entitled to be present when the accused was interrogated by the public prosecutor or by the judge , and also during appointments with expert witnesses and searches of residential LOC and at identification parades .

Article QUANTITY provided that the documents and records relating to investigative measures which the defence lawyer was entitled to witness , and the records of seizures , searches and body searches , were to be filed with the registry on DATE following the relevant measure . The defence lawyer was entitled to examine the relevant documents and to take copies within DATE and to receive a copy of the warrant of arrest or of the summons to appear before the judge .

The records of the examination of witnesses during the investigation were not to be filed with the registry and were thus not made available to the defence lawyer immediately after they had been compiled .

Under Articles CARDINAL et seq . of the former Code of Criminal Procedure , once the investigation had been completed the investigating judge was required to lodge the case file with the registry and to inform the public prosecutor , who could ask for further investigative measures to be taken . If the public prosecutor was satisfied with the scope of the investigation , the records and documents of the case were filed with the registry , and the defence lawyer was allowed to examine the entire case file , to take copies and to file requests or submissions within DATE of being informed that the case file had been lodged with the registry .

By LAW , committal orders were required to state :


CASE OF ULLENS DE SCHOOTEN AND REZABEK v. BELGIUM [Extracts]

Partiellement irrecevable;Non-violation de l'art. 6-1

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

Mr PERSON and Mr PERSON live in GPE and GPE respectively . They were directors of an accredited clinical biology laboratory called ORG , whose services were eligible for reimbursement through ORG ( NORP national d’assurance maladie invalidité – the “ ORG ” ) .

The Biorim laboratory was searched on CARDINAL DATE following a complaint from ORG . The applicants were arrested and remanded in custody . Proceedings were brought against them and CARDINAL other individuals for offences related to the management of the laboratory , including forgery and failure to comply with LAW no . CARDINAL of DATE .

The Article in question laid down , in respect of clinical biology services , the conditions to be met by medical laboratories so that the cost of their services could be reimbursed to users through the sickness insurance scheme . In the version of the text that was in force until DATE , it stipulated in particular that only laboratories that were run by doctors , pharmacists or persons qualified in chemical sciences were entitled to carry out clinical tests that were eligible for reimbursement .

On DATE the investigating judge concluded the preparation of the case . On DATE the ORG finalised his written submissions and , on CARDINAL DATE , ORG made an order committing the applicants ( and CARDINAL other defendants ) to stand trial before ORG , sitting as a criminal court .

The fraudulent intent referred to in the committal submissions for offences classified as acts of “ forgery ” consisted in the fact of deceiving the authorities “ responsible for monitoring implementation of the legislation on the operation of medical laboratories , in particular the provisions of LAW no . CARDINAL ” .

The oral proceedings began on DATE and were spread over DATE hearings .

A number of mutual insurance companies applied to join the proceedings as civil parties . They sought compensation for damage stemming from CARDINAL causes . They claimed that the applicants had , firstly , engaged in a practice of fee sharing and , secondly , had run a clinical biology laboratory in breach of the provisions of LAW no . CARDINAL . Under the second head they claimed CARDINAL , corresponding to the total amount paid to the Biorim laboratory DATE ( date on which LAW no . CARDINAL entered into force ) and CARDINAL DATE ( DATE of the period in which the offences were committed ) .

On DATE the criminal court convicted the applicants , imposing prison sentences and fines , for various offences that had been committed in connection with the management of Biorim . It found in particular that DATE and DATE the laboratory had been run by the first applicant at a time when he did not fulfil the conditions of LAW no . CARDINAL , and that he had devised various means of circumventing the legislation .

The court declared the civil parties’ claims admissible , but awarded them only a token amount of MONEY on the ground that the damage had not been sufficiently substantiated .

Before ORG , the applicants argued in particular that LAW no . CARDINAL was incompatible with DATE of LAW establishing ORG , taken together with ORG CARDINAL ( prohibition of the abuse of a dominant position ) and CARDINAL ( freedom of establishment ) of the LAW and that it should be declared inapplicable on account of the direct effect and primacy of Community law . They requested in this connection that the question be referred to ORG of ORG for a preliminary ruling .

In a judgment of DATE ORG , after examining the above - mentioned argument on the merits , found that LAW no . CARDINAL was compatible with Community law . It emphasised , in particular , that “ national measures capable of hindering or rendering less attractive the exercise of the fundamental freedoms guaranteed by LAW ” had to fulfil CARDINAL conditions and that the measure in question did so , being non - discriminatory , justified by compelling reasons in the general interest , appropriate to ensure the fulfilment of the aim pursued , and not going beyond what was necessary to that end .

ORG then decided “ that there [ was ] no need to refer questions for a preliminary ruling ” .

NORP ...

ORG thus handed down convictions – mainly for tax fraud – sentencing the first applicant to CARDINAL years’ imprisonment , with a DATE suspension for the part of the main prison sentence in excess of DATE , and to a fine of MONEY ( about EUR CARDINAL,CARDINAL ) , and the second applicant to CARDINAL GPE imprisonment , with a DATE suspension for the part of the main prison sentence in excess of DATE , and to a fine of MONEY ( about ORG CARDINAL,CARDINAL ) . As to the requests of the civil parties , ORG declared them inadmissible .

Ruling on appeals by the applicants and the civil parties , ORG , in a judgment of DATE , dismissed the appeals in so far as they were directed against the criminal provisions of the judgment of DATE , finding in particular that there was no need to refer questions to ORG of ORG . It quashed the judgment , however , in respect of its findings on the civil actions and , within that limit , referred the case back to ORG .

On DATE the first applicant had lodged a complaint against GPE with ORG , arguing that LAW no . CARDINAL was incompatible with the LAW establishing ORG .

In DATE ORG initiated the infringement procedure provided for in LAW establishing ORG and requested the NORP authorities to submit their observations on the compatibility of LAW no . CARDINAL with LAW , concerning freedom of establishment .

On DATE ORG adopted a reasoned opinion finding that LAW was incompatible with LAW . It requested GPE to amend that provision , which had the effect of placing non - NORP operators wishing to run clinical biology laboratories in GPE and establish themselves there at a disadvantage in relation to certain NORP professionals ( in particular doctors , pharmacists or persons qualified in chemical sciences ) . In the ORG ’s opinion , the fact that only those laboratories which fulfilled the prescribed conditions could provide services eligible for reimbursement through the health insurance system discouraged beneficiaries of that insurance from going to other laboratories and thus restricted the effectiveness of the freedom of establishment , in breach of LAW establishing ORG .

On DATE GPE enacted a law amending LAW no . CARDINAL , abolishing the requirement to have particular qualifications to operate a laboratory carrying out clinical tests eligible for reimbursement under the sickness and invalidity insurance scheme .

On DATE the parties wrote to the office of the public prosecutor at ORG seeking the organisation of a preparatory hearing . It took place DATE and DATE .

The debate concerning the reimbursement of clinical tests focussed on the question of the compatibility with Community law of LAW no . CARDINAL . In the applicants’ submission , that provision was in breach of certain rules of the LAW establishing ORG , in particular those concerning freedom of establishment ( LAW ) , the free movement of capital ( LAW ) , the free provision of services ( LAW and the rules on free competition ( Articles CARDINAL and DATE ) . Referring in particular to ORG opinion of DATE ( see above ) , they concluded that LAW no . CARDINAL could not have produced ab initio any legal effect and that , being bound by the primacy of Community law , ORG could not take account of the convictions handed down , not even considering the offences as mere torts . In the alternative , the second applicant requested that a question be referred to ORG of ORG for a preliminary ruling on the conformity of LAW no . CARDINAL with the provisions of Articles CARDINAL , DATE , DATE , DATE and CARDINAL of the LAW establishing ORG .

In a judgment of CARDINAL DATE ORG dismissed the applicants’ arguments . It emphasised that ORG reasoned opinion of DATE was not binding and that ORG judgment of DATE , of which the criminal provisions had the authority of res judicata , had found LAW no . CARDINAL to be compatible with Community law . Further noting that ORG , in its decision of DATE , had decided that there was no need to refer preliminary questions to ORG of ORG , it reached the same conclusion , on the ground that such questions were not “ indispensable for adjudication ” .

Upholding the civil claims , ORG ordered the applicants to pay various amounts to the civil parties , including CARDINAL mutual insurance companies jointly , for a total of ORG CARDINAL .

On DATE the applicants appealed on points of law against the judgment of DATE . They reiterated in particular the argument that LAW no . CARDINAL was incompatible with the LAW establishing ORG , a higher source of law . They further submitted that , whilst ORG itself had not found the provisions incompatible , it had a duty , under LAW establishing ORG , to refer the matter to ORG of ORG for a preliminary ruling on the issue ofprinciple of the authority of res judicata and the primacy of Community law . In their submission , the fact that ORG had upheld the authority of res judicata in ORG judgment , whereas developments following that decision had revealed it to be erroneous , constituted a breach of the right to a fair hearing LAW and more specifically the entitlement to a hearing by an impartial tribunal .

On DATE ORG dismissed the applicants’ appeals . It reiterated among other things the principle that the authority of res judicata in criminal matters precluded the court hearing any subsequent civil claims from calling into question what had been adjudicated with final effect , certainty and necessity as to the existence of a fact forming the common basis of the criminal proceedings and the civil suit . It concluded that ORG had rightly held that the finding of ORG of DATE concerning the conformity of LAW no . CARDINAL with Community law had been correct , being in line with that principle .

ORG , moreover , considered that the question whether the principle of the primacy of Community law should take precedence over that of the authority of res judicata had already been settled by ORG of ORG in its judgments in ORG and ORG ( C-CARDINAL/CARDINAL ) of DATE and PERSON v. ORG GmbH ( C-CARDINAL/CARDINAL ) of DATE . It noted in this connection that ORG had concluded in those judgments that the second principle prevailed , finding that “ Community law [ did ] not require a national court to disapply domestic rules of procedure conferring finality on a decision , even if to do so would enable it to remedy an infringement of Community law by the decision at issue ” , and had explained in the ORG judgment that “ the obligation of the body concerned to review a final decision , which would appear to have been adopted in breach of ORG law [ was ] subject , in accordance with LAW ORG , to the condition , inter alia , that that body should be empowered under national law to reopen that decision ” . ORG concluded that “ there [ was ] no need to submit once again to ORG of ORG the point of law that it [ had ] thus resolved , regardless of the nature of the proceedings which [ had given ] rise to its case - law and despite the questions at issue not strictly being the same ” .

On DATE the Minister for ORG issued a decision suspending the laboratory ’s accreditation for a DATE period . Referring to ORG judgment of DATE ( see paragraph CARDINAL above ) , the decision was based on a failure to comply with LAW no . CARDINAL .

The company Biorim unsuccessfully lodged an administrative appeal : the suspension was confirmed by a ministerial decision of DATE .

In the meantime , on DATE , a fresh ministerial decision had extended the suspension of accreditation for a DATE period “ on account of the continuing infringements of LAW no . CARDINAL ” .

In a decision of DATE the Minister dismissed the administrative appeal lodged by ORG and confirmed the suspension , on the ground that the company had not put an end to the situation which had justified the first suspension of accreditation , the applicant having continued to run the laboratory .

On DATE and CARDINAL September CARDINAL Biorim applied to the ORG d’Etat for the annulment of the ministerial decisions of CARDINAL DATE ( G / A CARDINAL.CARDINAL/VI-CARDINAL.CARDINAL ; the “ first set of proceedings ” ) and of DATE ( G / A CARDINAL ; the “ second set of proceedings ” ) .

The applicant was a third - party intervener in the proceedings .

The company Biorim and the applicant claimed in particular that LAW no . CARDINAL , on which the impugned decisions had been based , was in breach of Articles CARDINAL ( freedom of establishment ) , DATE ( free provision of services ) and CARDINAL ( free movement of capital ) of the LAW establishing ORG , and of Article CARDINAL taken together with ORG CARDINAL ( prohibition of abuse of dominant position ) , CARDINAL , DATE or DATE . They concluded that those decisions were devoid of admissible basis and should therefore be annulled .

In the alternative , the applicant requested the PERSON d’Etat to refer questions to ORG of ORG for a preliminary ruling to determine whether the above - mentioned ORG of the LAW establishing ORG were to be interpreted as precluding the application of legislation imposing the various restrictions provided for in LAW no . CARDINAL .

In his report of DATE , the Auditeur ( legal assistant at the PERSON d’Etat ) declared the argument well - founded and took the view that the impugned decisions should be annulled on the ground that LAW no . CARDINAL was not in conformity with Community law .

The PERSON observed first of all that the NORP courts had to refuse to give effect to any provisions of domestic law that ran counter to provisions of international law having direct effect . This was the case for national legislation concerning the services of medical laboratories , which had to be compatible with the rules of Community law on freedom of establishment and the free provision of services , since ORG of ORG had held that those rules applied to such services ( ORG , DATE , C-CARDINAL/CARDINAL ) . He added that it was invalid in the present case to argue that the legislation bore no relation to trade between CARDINAL ORG member GPE – especially as , in his opinion , factors of such nature were present – as justification for finding the provisions inapplicable , referring in this connection to the case - law of the GPE court to the effect that since the fundamental freedoms enshrined in Community law extended in their application to the potential effects of legislation , they could not be considered inapplicable simply because the facts of the specific case were confined to a single member ORG ( ORG , C-CARDINAL/CARDINAL to C-CARDINAL/CARDINAL ) . He went on to observe that “ national measures capable of hindering or rendering less attractive the exercise of such fundamental freedoms ” were admissible only under certain conditions , in particular where they did not go beyond what was necessary to achieve the aim pursued . In the present case , firstly , LAW no . CARDINAL hindered and rendered less attractive the freedom of establishment , the free provision of services and the free movement of capital as regards the operation of clinical biology laboratories ; secondly , the measure implemented was disproportionate to the aim pursued DATE to avoid over - consumption of clinical biology services – as that aim could be achieved by means that were less restrictive of freedoms .

In CARDINAL judgments of CARDINAL DATE , the ORG d’Etat dismissed the submission that there had been a violation of the above - mentioned ORG of the LAW establishing ORG .

It first observed that , under LAW , “ [ i]n the case of public undertakings and undertakings to which member States grant[ed ] special or exclusive rights , member GPE [ could ] neither enact nor maintain in force any measure contrary to the rules contained in that LAW , in particular to the rules provided for in LAW to CARDINAL ” . Finding that the laboratories referred to in LAW no . CARDINAL did not fall within those categories , it declared DATE of LAW inapplicable in the present case .

As to the other provisions of the LAW relied upon in the submission , the PERSON d’Etat referred to the case - law of ORG of ORG to the effect that the LAW ’s rules in matters of free circulation of persons and services did not affect any restrictions applying to nationals of a member ORG on the territory of that ORG where the situation in which they found themselves had no link to any of the situations envisaged by Community law . According to the ORG d’Etat , the dispute did not , in the present case , contain any extraneous elements capable of justifying the application of Community law . In that connection it explained as follows :

“ ... [ Biorim ] is a company incorporated under NORP law and operating in GPE . As it operates within the NORP market , it has not availed itself of the freedom of establishment or the free provision of services provided for respectively by ORG CARDINAL and CARDINAL of the LAW establishing ORG . The alleged circumstance ... that Community nationals established in other member GPE could make use of the services of [ Biorim ] does not constitute , in respect of the company , a link to Community law within the meaning of the above - cited case - law of ORG of ORG .

[ The applicant ] is NORP and in order to run the laboratory of [ Biorim ] he did not make use of freedom of movement within ORG . Although it has been shown in the criminal - court decisions that he used “ financing packages ” , in particular through the intermediary of the GPE company [ T. ] , this factor has no bearing on the grounds for the impugned decision . The case against [ Biorim ] is not that it was operated by that company , or that it was financed by foreign capital , but precisely that it was run by [ the applicant ] , whereas he did not have CARDINAL of the qualifications required to do so , as shown by the criminal - court decisions . The [ applicant ’s ] situation in this connection is confined exclusively to the national sphere ... ”

The PERSON d’Etat further refused to refer the applicant ’s questions to ORG of ORG for a preliminary ruling , observing as follows :

“ ... LAW does not oblige courts or tribunals against whose decisions there is no judicial remedy under national law to refer a question concerning the interpretation of Community law raised before them if that question is not relevant , that is to say , if the answer to that question , regardless of what it may be , can in no way affect the outcome of the case . The same applies when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case , where previous decisions of the ORG have already dealt with the point of law in question , even though the questions at issue are not strictly identical , or where the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved ... In the present case , there is no reasonable doubt as to the inapplicability of LAW establishing ORG to the laboratories referred to in LAW no . CARDINAL .... In addition , for the reasons given , an answer by the ORG as to the interpretation of ORG CARDINAL , DATE and CARDINAL of the LAW establishing ORG could not affect the outcome of the present dispute ... ”

The company Biorim additionally argued , inter alia , that there had been a breach of ORG CARDINAL and CARDINAL of the LAW concerning equality before the law and the prohibition of discrimination .

The PERSON d’Etat held that , in so far as Biorim was complaining of a difference in treatment between NORP nationals established in GPE and those established in other member GPE or nationals of other member GPE , on the ground that the latter categories enjoyed more rights and guarantees in the context of the application of LAW no . CARDINAL , this was a new submission raised only in its rejoinder and was thus belated and inadmissible .

In response to Biorim ’s argument that , by reserving the intervention of the sickness insurance scheme to laboratories run by doctors , pharmacists or persons qualified in chemical sciences , LAW no . CARDINAL introduced , between those persons and other business operators , a prohibited difference in treatment , the ORG d’Etat found that its decision should be reserved in order to submit a question on that subject to ORG for a preliminary ruling . ORG responded by a judgment of DATE that the said provision did not breach ORG CARDINAL and CARDINAL of the LAW .

In addition , in the context of the second set of proceedings , the PERSON d’Etat partly re - opened the case , requesting the Auditeur to pursue the investigation and produce a supplementary report on arguments other than those alleging a breach of Community law .

The Auditeur found that the ministerial decision of DATE should be annulled on grounds related to the reasoning of the impugned decision , being unconnected to the complaints submitted by the applicant to the ORG .

The PERSON d’Etat dismissed the applications by CARDINAL judgments of DATE and DATE .

Article CARDINAL of the LAW establishing ORG ( former LAW and , since DATE , Article CARDINAL of the LAW on the Functioning of ORG ) provides for preliminary rulings of ORG of ORG as follows :

“ ORG shall have jurisdiction to give preliminary rulings concerning :

( a ) the interpretation of this LAW ;

( b ) the validity and interpretation of acts of the institutions of the Community ... ;

Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .

Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG . ”

In the case of ORG . ORG and ORG . v. ORG ( CARDINAL/CARDINAL , ORG . DATE , p. CARDINAL ) ORG of ORG had received a request from ORG for a ruling as to whether the third paragraph of LAW establishing ORG ( former LAW ) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt .

In its judgment ORG explained , firstly , as follows :

“ ... CARDINAL . The second paragraph of that article [ Article CARDINAL ] provides that any court or tribunal of a Member ORG may , if it considers that a decision on a question of interpretation is necessary to enable it to give judgment , request ORG to give a ruling thereon . The third paragraph of that article provides that , where a question of interpretation is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall , bring the matter before ORG .

That obligation to refer a matter to ORG is based on cooperation , established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States , between national courts , in their capacity as courts responsible for the application of Community law , and ORG . More particularly , the third paragraph of Article [ CARDINAL ] seeks to prevent the occurrence within ORG in judicial decisions on questions of Community law . The scope of that obligation must therefore be assessed , in view of those objectives , by reference to the powers of the national courts , on the one hand , and those of ORG , on the other , where such a question of interpretation is raised within the meaning of Article [ CARDINAL ] .

In this connection , it is necessary to define the meaning for the purposes of Community law of the expression “ where any such question is raised ” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before ORG .

In this regard , it must in the first place be pointed out that Article [ CARDINAL ] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal . Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article CARDINAL . ... ”

ORG went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “ whether a decision on a question of Community law [ was ] necessary to enable them to give judgment ” . It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations : ( CARDINAL ) where the question was not relevant , in the sense that the answer to the question , regardless of what it might be , could in no way affect the outcome of the case ; ( CARDINAL ) where the question was materially identical with question which had already been the subject of a preliminary ruling in a similar case , or where previous decisions of the ORG had already dealt with the point of law in question , irrespective of the nature of the proceedings which led to those decisions , even though the questions at issue were not strictly identical ; or ( CARDINAL ) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved ( bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member GPE and to ORG , and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to ORG and take upon itself the responsibility for resolving it ) .

The judgment then concluded as follows ( point CARDINAL ) :

“ ... the third paragraph of Article [ CARDINAL ] of the ORG treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required , where a question of Community law is raised before it , to comply with its obligation to bring the matter before ORG , unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the ORG or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt . The existence of such a possibility must be assessed in the light of the specific characteristics of Community law , the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the ORG . ”

Articles DATE , DATE , DATE , DATE and CARDINAL of the LAW establishing ORG ( Title III “ Free Movement of Persons , Services and Capital ” ) read as follows :

“ Within the framework of the provisions set out below [ on the right of establishment ] , restrictions on the freedom of establishment of nationals of a Member ORG in the territory of another Member ORG shall be prohibited . Such prohibition shall also apply to restrictions on the setting - up of agencies , branches or subsidiaries by nationals of any Member ORG established in the territory of any Member ORG .

Freedom of establishment shall include the right to take up and pursue activities as self - employed persons and to set up and manage undertakings , in particular companies or firms within the meaning of the second paragraph of LAW , under the conditions laid down for its own nationals by the law of the country where such establishment is effected , subject to the provisions of the chapter relating to capital . ”

“ Within the framework of the provisions set out below [ on services ] , restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member GPE who are established in a State of the ORG other than that of the person for whom the services are intended .

The ORG may , acting by a qualified majority on a proposal from the Commission , extend the provisions of the LAW to nationals of a third country who provide services and who are established within the ORG . ”

“ CARDINAL . Within the framework of the provisions set out in this chapter [ on capital and payments ] , all restrictions on the movement of capital between Member GPE and between Member GPE and third countries shall be prohibited .

Within the framework of the provisions set out in this chapter , all restrictions on payments between Member GPE and between Member GPE and third countries shall be prohibited . ”

“ Any abuse by CARDINAL or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member GPE .

“ CARDINAL . In the case of public undertakings and undertakings to which Member PERSON grant special or exclusive rights , Member GPE shall neither enact nor maintain in force any measure contrary to the rules contained in this LAW , in particular to those rules provided for in LAW to CARDINAL .

Article CARDINAL of the Preliminary Title of the Code of Criminal Procedure reads as follows :

“ Should the length of criminal proceedings exceed a reasonable time , the court may convict by a mere declaration of guilt or hand down a lesser sentence than that provided for by law ... ”


CASE OF FERREIRA ALVES v. PORTUGAL (No. 3)

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings

András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in LOC .

When the applicant and his wife , PERSON , separated , the PERSON District Court , in a judgment of DATE , awarded parental responsibility for the couple ’s daughter PERSON to the child ’s mother . The applicant was granted contact rights .

On DATE H. brought proceedings before PERSON ORG seeking to have the applicant ’s contact rights withdrawn . She alleged , in particular , that PERSON did not wish to see her father and that since DATE she had shown signs of emotional distress after each visit to the applicant . The applicant objected to the request .

On DATE the public prosecutor , acting in the child ’s interests as required by the law , requested the judge to order a social inquiry report regarding PERSON ’s parents and a medical examination of the child . In an order of CARDINAL DATE the judge acted on the prosecutor ’s recommendation and asked ORG ( “ the Institute ” ) to carry out the social inquiry . The judge refused a request by the applicant for PERSON to undergo a psychiatric expert examination , taking the view that it was not “ appropriate ” . On DATE the applicant lodged an appeal against that decision . The judge decided to adjourn consideration of the appeal until the court gave its final judgment . The applicant then lodged a complaint with the President of ORG seeking to have his appeal considered immediately . In a note dated DATE which he addressed , in accordance with the law , to the President of ORG , the judge of PERSON ORG confirmed his earlier decision to adjourn consideration of the appeal . The applicant was informed of this note on DATE . On CARDINAL DATE the President of ORG rejected the complaint .

On DATE the applicant objected to the participation , as the representative of the public prosecution service , of the public prosecutor attached to PERSON . He submitted that the official concerned had been removed from the case concerning the award of parental responsibility by his superior , ORG . In the applicant ’s view , he should therefore withdraw from the current proceedings .

The judge requested the Regional Attorney - General to take a decision in that regard . On being informed of the request , the public prosecutor indicated in a document dated DATE that he did not wish to comment on the matter , preferring to await the recommendation of the Regional Attorney - General . The applicant was not informed of the public prosecutor ’s position .

On DATE the Regional Attorney - General informed the judge of the PERSON ORG that he had initially removed the prosecutor attached to that court from the case concerning the award of parental authority because criminal proceedings had been instituted against him following a complaint by the applicant . As the criminal proceedings had been terminated in the meantime , he had seen no further reason to keep the official concerned off the case concerning PERSON . For that reason he had annulled his earlier decision . ORG appended several documents to his information note . The applicant was not informed either of the note or of the appended documents .

By an order dated CARDINAL DATE the judge , referring to the information note from the Regional Attorney - General , rejected the applicant ’s request for the prosecutor to withdraw . The applicant appealed against the order and requested that his appeal be considered at the same time as a possible appeal by him against the judgment .

On an unspecified date the applicant , relying on LAW , asked to be informed of the various actions taken by the prosecution service in the proceedings .

In an order dated DATE the judge refused the request , stating , inter alia , as follows :

“ No rule exists requiring or recommending that the parties be informed of the actions taken by the prosecution service . The NORP judicial system does not permit such a step . The public prosecution service is neither a sovereign body nor an ordinary party to the proceedings . It possesses a separate status , enshrined in LAW . Citizens must respect the sovereignty of ORG and the legal and constitutional system in force , even if they challenge the system ; this is a requirement of democracy [ and ] the rule of law . ”

The applicant appealed against that decision on DATE . In an order of CARDINAL DATE the judge declared the appeal inadmissible , taking the view that the impugned order related simply to the conduct of the proceedings ( despacho de mero expediente ) and was therefore not amenable to appeal . The applicant lodged a complaint against the new order with the President of ORG , who rejected it on DATE .

On DATE the public prosecutor commented on the content of the medical reports concerning PERSON . He considered that the case was ready for trial and requested the judge to summon the CARDINAL experts who had prepared the reports to attend the hearing . The applicant was not informed of the document submitted by the public prosecutor .

In an order of CARDINAL DATE the judge set the case down for hearing on CARDINAL and DATE . On the recommendation of the public prosecutor he decided to summon the CARDINAL medical experts to appear .

As counsel for DATE was absent , the hearing did not take place on CARDINAL and DATE . On DATE the judge issued an order in which he decided to adjourn the hearing until all the expert reports were available . Some of the expert examinations had had to be postponed several times owing to the absence of the applicant and H. They were conducted in DATE and DATE and the corresponding reports were added to the file on CARDINAL and DATE .

In an order of DATE the judge requested the ORG to carry out a further social inquiry concerning PERSON . The corresponding report was added to the file on DATE . In a reversal of an earlier decision of CARDINAL DATE , the judge decided that the forthcoming hearing would not be tape - recorded . On DATE the applicant appealed against that decision . On DATE , in accordance with the law , the judge of PERSON addressed a note to the judges of ORG reaffirming his decision . The applicant did not receive a copy of the note . In a judgment of DATE ORG dismissed the appeal of DATE .

On DATE and DATE the public prosecutor , referring to the findings of the ORG ’s report , proposed to the judge that the applicant be granted provisional contact rights allowing him to meet PERSON once a week in a public place . On DATE the applicant , when invited to comment , stated that he had not been informed of the ORG ’s report ; he alleged a violation of LAW on that account .

On DATE the judge ordered that copies of all the medical and social reports be sent to the parties . He also awarded the applicant provisional contact rights . On DATE the applicant appealed against the order , and more specifically against the conditions attached to his contact rights . In a judgment of DATE ORG dismissed his appeal .

Hearings took place on DATE and DATE and the court delivered its judgment on DATE . Basing its decision in particular on the deposition made by PERSON , which it considered enlightened and persuasive , it allowed ORG ’s application in part and , while not withdrawing the applicant ’s right of contact altogether , restricted it to TIME a week . The applicant appealed against that judgment to ORG .

In a judgment of CARDINAL DATE ORG dismissed all the appeals lodged by the applicant during the proceedings and upheld the impugned judgment in its entirety . With particular reference to the appeal against the order of CARDINAL DATE , ORG stressed that the prosecution service , while it could become an objective ally or adversary of the parties , had no power of decision , that power being reserved for the judge . It considered that there had been no breach of LAW .

Article CARDINAL of the Code of Civil Procedure , in its relevant part , reads as follows :

“ CARDINAL . NORP On expiry of the time allowed to the parties to submit their respective memorials , the registry shall add any memorials that have been received to the case file , together with authenticated copies ( certidões ) and annexes , and shall submit them all to the judge to enable him to confirm his decision ( sustentar o despacho ) or rectify it ( reparar o agravo ) .

NORP If the judge confirms his decision , he may order that further authenticated copies be added to the file , which shall then be forwarded to the higher court .

If the judge decides to confirm his decision , he must address a note to the competent court informing it of his position . This note is not communicated to the parties ; ORG gave a judgment in which it considered that communicating the note served no purpose as it was not capable of conferring any rights on the parties or withdrawing such rights ( judgment of DATE , published in PERSON , DATE , PERSON . II , p. CARDINAL ) .


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicants , DEBÚT PERSON . , ORG . and PERSON . are privately held companies limited by shares , registered under NORP law , with their seats in GPE , PERSON and PERSON , respectively .

The applicants are construction companies , against which ORG conducted investigations on suspicion of an unlawful cartel agreement . The applicants and other companies were suspected of having shared the market for public road constructions between themselves .

Under section CARDINAL/A of LAW , on DATE ORG authorised the ORG ’s investigators to enter the applicants’ premises and those of other related enterprises without prior notification and to search for direct evidence of their unlawful cartel agreement . No appeal lay against the authorisation .

The investigators carried out ‘ dawn raids’ ( that is , unannounced house searches very early in the TIME ) on the premises of several enterprises , including those of the applicants , and drafted an enquiry report on their findings . The applicants could have complained about the measure within DATE but did not do so .

On DATE ORG , the decision - making body of the ORG , published on the ORG ’s website its preliminary opinion drawn up on the basis of the report .

In its decision of CARDINAL DATE ORG established that the applicants and other companies had indeed divided the market between themselves and imposed substantial fines on them .

The applicants sought judicial review . They argued that the ORG ’s decision had been adopted in biased proceedings and based partly on documents which had been retrieved in a manner contrary to Articles CARDINAL and CARDINAL of the Convention .

On DATE ORG dismissed the action , holding that ORG had conducted lawful proceedings and carried out properly reasoned and justified raids on the ORG business LOC .

On DATE ORG upheld this judgment .

On DATE ORG dismissed the applicants’ petition for review .

All CARDINAL court instances addressed the merits of the applicants’ arguments about the admissibility of the documents as evidence and the lawfulness of the procedure .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

The applicant 's previous application ( no . CARDINAL ) was declared inadmissible by a ORG on DATE . The subject matter of that case was the prosecution of the applicant , in the course of which he was arrested on a charge of incitement to murder on DATE . On CARDINAL DATE the ORG acquitted him of this charge but convicted him of an abuse of firearms . On DATE ORG re - qualified his offence as an abuse of ammunition and reduced his sentence . On DATE ORG review bench acquitted the applicant of the latter charge . Meanwhile , on DATE ORG had ordered the applicant 's retrial and found him guilty of incitement to murder . On DATE ORG appeal bench quashed this decision and remitted the case . In the resumed proceedings , on DATE the ORG held that there was no reason to retry the applicant and upheld his earlier acquittal .

Meanwhile , on DATE the applicant brought a civil action in compensation against the ORG for unjustified detention and a miscarriage of justice . The GPE ORG suspended the case in DATE pending the final outcome of the criminal case outlined in the preceding paragraph . After ORG decision of DATE , ORG resumed the proceedings in DATE and gave judgment on DATE . On appeal , on DATE ORG reversed this decision , increased the compensation payable to the applicant to MONEY ( ORG ) plus accrued interest , and reduced the procedural fees payable by him . On DATE ORG dismissed his petition for review .