Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

Mr PERSON , PERSON , PERSON and ORG are CARDINAL NORP nationals , born in DATE , DATE , DATE and DATE , and living in GPE and GPE , respectively . They were represented before ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

On DATE the ORG father brought an action in the GPE CARDINAL ORG ( obvodní soud ) for recovery of property pursuant to LAW .

The restitution proceedings terminated in a decision of ORG ( PERSON ) of DATE which was notified to the ORG representative on CARDINAL DATE .

On DATE the applicants applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


The applicant is an NORP national , born in DATE and living in GPE . He is represented before the Court by Mr D. Portinaro , a lawyer practising in GPE .

PERSON was the owner of an apartment in GPE , which she had let to GPE

In a writ served on the tenant on DATE , PERSON communicated her intention to terminate the lease and summoned the tenant to appear before ORG . By a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE and again on CARDINAL DATE and DATE , PERSON served notice on the tenant requiring him to vacate the LOC . On DATE , she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession , on DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL DATE and DATE . Each attempt proved unsuccessful , as PERSON was never granted the assistance of the police in enforcing the order for possession .

On DATE , the applicant became the owner of the apartment .

On DATE , he made a statutory declaration that he urgently required the premises as accommodation for himself .

On DATE , he served notice on the tenant requiring him to vacate the premises

On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession , on DATE , CARDINAL September CARDINAL , DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE , DATE and DATE .

Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

At DATE , the tenant spontaneously vacated the premises .

The relevant domestic law is described in the judgment ORG GPE [ ORG ] , no . CARDINAL , CARDINAL , § § DATE , ECHR - V.


Remainder inadmissible;No violation of Art. 5-3;Violation of Art. 6-3-d;Violation of Art. 6-1+6-3-b;Non-pecuniary damage - award

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in ORG .

On DATE PERSON . , on the instructions of the police , bought QUANTITY of cannabis from the first applicant . Following this , the first applicant was arrested by the police on suspicion of supplying drugs . The CARDINAL-hryvnia ( NORP hryvnias , ORG ) note given by the police to PERSON . to buy the drugs had been found on him . During a search conducted at the applicant 's house DATE QUANTITY of cannabis were revealed .

During pre - trial investigation the applicant confessed to selling drugs to PERSON . , whom he knew by her first name , and to keeping drugs at his house .

On DATE the applicant was released on an undertaking not to abscond .

On DATE the criminal case against the applicant was referred to ORG of Kharkiv ( ORG ) .

At DATE the first applicant was summoned to appear before the court on DATE . According to the applicant , he fell ill on DATE . DATE the doctor gave him a sick note .

On DATE , despite the fact that the second applicant had informed the court of the reasons for the first applicant 's absence , the court decided to replace the undertaking not to abscond with detention .

On DATE the first applicant was arrested , and on DATE he was brought before the judge , who rejected his request for release .

During the hearing of DATE the court rejected the applicant 's request for PERSON . to be summoned on the ground that in accordance with the law the buyer participating in a police drug test purchase operation should not be summoned to court .

On DATE the court rejected another request for release lodged by the first applicant .

On DATE ORG found the applicant guilty of supplying drugs and sentenced him to DATE imprisonment , with confiscation of his property . The court established that the applicant had bought cannabis from an unknown person on CARDINAL DATE and had kept it at home for selling . On DATE he sold some cannabis to Shch . and more cannabis was found at his home . The court noted that during the trial the applicant retracted his confession and first claimed that a certain PERSON had forced him to keep the drugs and that PERSON had taken them from him . Then the applicant denied completely that any drugs had ever been in his possession and stated that the police had planted money and drugs and forced him to confess . The court considered that despite this retraction the applicant 's guilt was confirmed by the body of evidence , including the written statements of PERSON . , as well as statements made at the hearing by police officers PERSON and PERSON , who had conducted the operation , and witnesses PERSON and PERSON who had been invited by the police to observe the operation . All of them confirmed that PERSON . had gone to the applicant with a banknote and come back with a small packet of a substance later established to be cannabis .

The applicant appealed against his conviction , complaining , among other things , that despite numerous requests on his behalf , PERSON . had not been summoned and questioned by the court and that it had not been proven that he had sold drugs to PERSON .

On DATE the ORG of Appeal changed the applicant 's sentence to a suspended CARDINAL of DATE . The court did not reply to the applicant 's complaint that witness PERSON . had not been questioned in court .

The applicant appealed in cassation , further complaining that Shch . had not been questioned in the court hearings .

On DATE ORG upheld the decision of the appellate court . No reply had been given to the applicant 's complaint that Shch . had not been summoned or questioned in the court hearings .

On DATE the second applicant attended ORG and informed Judge PERSON that the first applicant was ill . She was accompanied by CARDINAL other persons . According to the second applicant they were all invited to the judge 's office but he later asked them to leave his office , which they could not do because police officers were barring the exit . DATE the judge 's secretary drew up an administrative offence report on the second applicant . The report was passed to Judge PERSON . , who questioned the applicant , found her guilty of contempt of court and ordered her administrative arrest for DATE . In his decision Judge PERSON . noted that at TIME the second applicant entered the office of Judge PERSON with a “ support group ” consisting of PERSON , PERSON , PERSON , PERSON and PERSON in order to put pressure on the above judge in the criminal case against her son ( the first applicant ) and refused to leave the office when requested to do so by the judge , his secretary and the judicial police . The court found that the applicant had stayed in the office of Judge PERSON for TIME and prevented him from commencing the court hearings .

After the above decision the second applicant became unwell and was taken to hospital .

On DATE the Deputy President of ORG dismissed an extraordinary appeal by the second applicant against the decision of DATE ordering her administrative arrest .

On DATE the prosecutor of LOC requested the court to reduce the second applicant 's sentence on account of her state of health . This request was granted and the administrative arrest was replaced by a fine of FAC .

NORP The relevant provisions of the Code read , in so far as relevant , as follows :

Article CARDINAL - CARDINAL . Security measures for persons participating in criminal trials

“ Where there is a real threat to life , health , home , or property of those participating in criminal trials , such persons shall have the right to be protected by security measures

The right to be protected by security measures , where there are relevant grounds , shall be vested in :

a person who has reported a crime to a law - enforcement authority or otherwise participated in or contributed to actions to detect , prevent , stop , or solve a crime ... ”

Article CARDINAL - CARDINAL . Non - disclosure of information on a person being protected by security measures

“ Non - disclosure of information on a person in respect of whom security measures have been taken may be ensured by restricting the availability of any data on the person in the materials ( in petitions , statements and so on ) and also in reports on the investigative actions or records of the court hearings . Having decided to take security measures , the body of inquiry , investigator , prosecutor , or court ( judge ) shall make a reasoned decision to replace by a pseudonym the surname , name and patronymic of the person taken under protection . Afterwards , the procedural documents shall only refer to the pseudonym of the person , while his or her real surname , name and patronymic ( DATE , and place of his or her birth , his or her family situation , place of work , occupation or position , place of residence , and other personal details characterising the person concerned ) shall only be stated in the decision on the replacement of his or her personal details . A decision to that effect , which is not to be added to the case file , shall be kept separately by the authority in charge of the criminal case in question . If the surname of the person taken under protection is replaced by a pseudonym , the reports on investigative actions and other documents referring to real personal details of the person shall be replaced in the case file by copies in which his or her real surname is replaced by the pseudonym .

Information on security measures as well as on persons taken under protection thereby shall be restricted - access information . The rules laid down in paragraph CARDINAL of Article CARDINAL , Articles CARDINAL - CARDINAL and CARDINAL of this Code shall not apply to documents containing such information . ”

Paragraph CARDINAL of LAW provides as follows :

“ Contempt of court , which is defined as malicious avoidance of summons by a witness , victim , plaintiff or defendant ; or as a failure by the above persons or others to comply with the orders of the presiding judge ; or a violation of public order during a court hearing , or the committal by any person of acts which indicate blatant disrespect for the court or for the rules of court , shall be punishable by a fine of CARDINAL times the DATE minimum income of citizens or by administrative arrest for DATE . ”

Paragraph CARDINAL of Article CARDINAL of the LAW provides , among others , the following rights of a person who is brought to administrative liability :

“ A person placed under administrative liability shall be entitled to study case materials , to give explanations , to present evidence , to make requests ; to have the assistance of a lawyer ... during the examination of the case ... ”

The right to a lawyer in administrative offence proceedings is further guaranteed by LAW .

Under LAW , cases concerning administrative offences set forth in the first paragraph of LAW shall be decided within DATE .


Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , Mr PERSON , PERSON and PERSON , are NORP nationals who live in GPE PERSON . They were represented before the ORG by Mr J. Janas , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON of ORG .

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

NORP On DATE Tsar PERSON , then ORG , had issued a decree ( ukaz ) granting the inhabitants of the Rosochaty Róg village a profit à prendre which amounted to a right to fish from shore in the Wigry and GPE . The right was approved on DATE by ORG and entered in the NORP land register in DATE . The right to fish was enjoyed only by those peasants who had the right entered in their so - called “ liquidation tables ” , and after their death by their legal heirs .

In DATE GPE regained independence .

On DATE LAW was adopted ( ustawa wodna ) which introduced a general rule that all waters were public unless they constituted private property pursuant to the LAW or pursuant to special legal titles . Subsequently , further numerous legal acts were adopted aimed at nationalisation of waters .

The applicants are owners of land adjacent to LOC .

In DATE they filed a statement of claim with ORG ( PERSON ) against ORG in which they referred to the Tsar ’s decree of DATE , granting the inhabitants of the Rosochaty Róg village a profit à prendre which amounted to a right to fish in LOC . They stressed that the owners of the land adjacent to the lake had benefited from the right to fish in the lake until DATE , when the director of ORG had prohibited the applicants from fishing there .

On DATE the ORG delivered a judgment in which it found that since DATE the applicants had had a right to fish in the lake , which had not been revoked by any of the subsequent legal regulations . The court specified that the right was limited to the right to fish from the shore , without using boats or platforms . In addition , the fishermen had to respect the fish - protection periods .

On DATE ORG ( Sąd Apelacyjny ) upheld the firstinstance judgment . The judgment is final .

In DATE the applicants filed another statement of claim against ORG in which they asked the court to declare that their fishing rights comprised also the right to fish from a platform and while standing in the water .

On DATE the ORG gave judgment . It confirmed that the applicants had a right to fish for their own needs in LOC and that they could exercise that right from their land , from a platform or while standing in the water .

On DATE ORG upheld that decision .

On the defendant ’s appeal , on DATE ORG ( PERSON ) quashed both judgments and dismissed the claim . It held that since DATE at DATE when the new FAC had come into force - the applicants’ right to fish in LOC had expired . The court stressed that by virtue of sections CARDINAL and CARDINAL of that Act all waters in GPE had been nationalised . It further considered that nationalisation constituted a primary method of acquiring property so that ownership of the waters had been transferred to the ORG without any servitudes .

ORG , inter alia , found :

“ The lower courts omitted the consequences for the existence of the claimants’ fishing rights which follow from sections CARDINAL and CARDINAL of LAW .

In accordance with the unanimous opinion of the legal doctrine and of the jurisprudence this LAW led to nationalisation of waters . ( ... ) In line with the generally accepted approach the nationalisation constitutes a primary method of acquiring property which signifies that the title to property is transferred to the ORG free from any servitudes , unless the nationalisation act provides for an exception in this respect . ( ... )

Thus , it can be reasonably argued that private waters were nationalised free from any servitudes . Although , generally speaking , in the present case the right to fish encumbered the ORG object from the outset , nevertheless the primary goal of the nationalisation of waters ( rationalisation of their use ) argues in favour of the view that this nationalisation , a fortiori , led to the expiry of the property rights ( prawa rzeczowe ) encumbering ORG waters . Thus , even if the fishing rights had not expired earlier , they did so on the date of the entry into force of LAW . ”

The applicants subsequently filed a constitutional complaint . On DATE the Constitutional Court refused to examine it . The applicants appealed . On DATE ORG allowed their appeal and decided to consider their case .

The applicants subsequently filed a request with ORG , for the reopening of the proceedings that had been terminated on DATE .

On DATE , upon a question of law referred by the Ombudsman relating to fishing rights in other lakes , ORG adopted a resolution ( III CZP CARDINAL/CARDINAL ) and stressed that the fishing rights had been unenforceable since DATE ( see paragraph CARDINAL above ) .

On DATE ORG rejected the ORG request for reopening .

On DATE ORG issued a decision in which it discontinued the proceedings in the applicants’ case on formal grounds . It held that the constitutional complaint had not concerned an alleged unconstitutionality of a legal provision but rather a flawed application by ORG to the facts of the case . One of the judges in his dissenting opinion considered that even assuming that the applicants’ right to fish in LOC was a property right , it had been limited by LAW of DATE .

On DATE LAW was adopted ( ustawa o rybołóstwie ) . The LAW stipulated that the right to fish was linked to the ownership of the waters in question . In public waters the right belonged to the ORG .

By DATE CARDINAL of LAW ( prawo wodne ) all waters in GPE were nationalised . The LAW is no longer in force . Currently , the legal status of inland waters is regulated by LAW of DATE which entered into force on DATE .

Section CARDINAL ( CARDINAL ) paragraph CARDINAL of LAW ( ustawa o ochronie przyrody ) of DATE , as worded at the material time , provided that fishing was prohibited in natural parks , with the exception of areas specifically designated in the conservation plans . The LAW was amended and this provision repealed on DATE . LAW ( CARDINAL ) paragraphCARDINAL now provides :

“ Catching fish and other water - borne living organisms with the exception of areas specifically designated in the conservation plans [ is prohibited ] ” .

On DATE the ORG referred to ORG a question of law ( pytanie prawne ) as to whether the fishing rights granted in DATE ( to fish in certain PERSON lakes ) had expired in DATE with the adoption of the new LAW . The Ombudsman referred to the divergent practice of the domestic courts and ORG in examining such claims .

In its resolution of DATE ( III CZP CARDINAL/CARDINAL ) , adopted by a bench of CARDINAL judges , ORG dealt with this question . The court referred to LAW and concluded that the fishing rights granted in DATE had not expired in DATE . However , they had been unenforceable since the entry into force of LAW .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in FAC , a village in LOC . The President of the ORG has granted the applicant leave to present her own case . The respondent Government are represented by ORG , ORG at ORG .

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

The applicant had an interest - bearing account in ORG . In DATE , she brought a civil action against the bank because she considered that it had arbitrarily decreased the interest rate .

On DATE , ORG held against the applicant . On DATE , ORG quashed this judgment on appeal and remitted the case for a re - examination .

Having re - examined the case , on CARDINAL DATE the district court partly held for the applicant . On DATE , the regional court upheld this judgment on appeal . On DATE , the district court reopened the case due to discovery of new evidence and remitted the case for a re - examination .

Having re - examined the case , on DATE the district court , composed of CARDINAL professional and CARDINAL lay judges , partly held for the applicant . On DATE , the regional court upheld this judgment on appeal .

On an unspeciﬁed date , ORG applied for supervisory review of the judgments of DATE and CARDINAL DATE . He asked to quash the judgments because of errors of fact and law . On DATE , the Presidium of ORG quashed the judgments and remitted the case for a re - examination .

Having re - examined the case , on DATE the district court held against the applicant . On DATE , the regional court upheld this judgment on appeal .


No violation of Art. 6-1 and 6-3;Remainder inadmissible

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE .

The first applicant ( PERSON ) , had a school friend , PERSON , who was resident in the GPE .

NORP In DATE ORG ( “ LOC ; ORG ) of the Police was informed by the NORP authorities about a parcel containing cocaine , which had been dispatched in GPE and addressed to PERSON in GPE , GPE . On DATE the Chief Police Commissioner ( ORG ) authorised the covert surveillance of the parcel on the basis of section CARDINALb LAW . On DATE the parcel was intercepted by officers of the ORG . They opened the parcel and found that it contained , in particular , CARDINAL plastic bags containing a white powder substance hidden by twos in CARDINAL cases . The police experts tested the substance and established that it was cocaine . The officers replaced the drugs with a similar - looking substance .

On DATE the Chief Police Commissioner ordered the covert operation ( kontrola operacyjna w postaci podsłuchu pomieszczeń ) . It appears that the police placed a secret recording device in the parcel .

On DATE the parcel was delivered to PERSON She was a friend of PERSON ’s late mother . On DATE PERSON informed the first applicant that she had received a parcel from GPE addressed to PERSON The first applicant telephoned her friend who confirmed that she was expecting a parcel and asked the first applicant if she could keep it for her . The first applicant agreed .

On DATE the first applicant went to collect the parcel . She and PERSON partly opened it and found tee - shirts and cardboard cases containing chain necklaces . They did not find anything else in the parcel .

Subsequently PERSON took the parcel home , where she met her boyfriend Mr PERSON ( the second applicant ) . The applicants opened the parcel and examined its contents . Later on , they both left the flat to call PERSON from a phone box . The first applicant put all contents of the parcel in a plastic bag together with parts of the original parcel indicating the addresses of the sender and the recipient . Then the first applicant hid the plastic bag in her room .

On DATE at TIME the police arrested the applicants as they were leaving the flat . The officers then searched the flat . The first applicant , at the request of the officers , surrendered the plastic bag with all its contents . Examination of the contents revealed that in each of the CARDINAL cases containing chain necklaces were hidden CARDINAL transparent plastic bags containing a white powder substance . The applicants were charged with drug - trafficking offences .

On DATE ORG from ORG opened a criminal investigation into the alleged transfer of cocaine from GPE to GPE . He relied on classified material provided by the Chief Police Commissioner and the information gathered by the ORG officers .

On DATE ORG remanded the applicants in custody on reasonable suspicion that they had committed the drug - trafficking offences . It had regard to the evidence obtained so far in the case , in particular the ORG statements , the classified evidence , the expert reports and the results of the search . The court noted that the ORG statements contradicted the other evidence in the case . On DATE ORG decided to end the applicants’ detention and to release them on bail . The bail was paid on DATE and the applicants were released . The court imposed non - custodial preventive measures on them .

A significant part of the evidence gathered in the case was classified as confidential ( poufne ) . On DATE both applicants consulted the classified evidence and other evidence . They did not lodge any motions in respect of the evidence and did not make any comments on the investigation .

On DATE the prosecution filed a bill of indictment against the applicants with ORG . They were charged with trafficking in QUANTITY of cocaine . The prosecutor established the facts of the case on the basis of classified evidence , expert reports in chemistry and dactyloscopy , the results of the search of the flat and statements made by PERSON and her friend PERSON , and partly on the basis of statements made by the applicants .

Part of the case file and the written reasons for the bill were classified as it contained information covered by professional secrecy ( tajemnica służbowa ) . The prosecutor asked the court for the defendants and their counsel to be allowed to consult the reasons for the bill of indictment , in accordance with the rules laid down in ORG . Furthermore , invoking LAW § CARDINAL ( CARDINAL ) of LAW ( “ ORG ” ) , the prosecutor requested that the entire hearing be conducted in camera on account of the important ORG interests involved .

The first applicant had CARDINAL defence lawyers and the second applicant had CARDINAL . On CARDINAL and CARDINAL DATE respectively the applicants and their counsel consulted the bill of indictment in the secret registry of ORG .

On DATE the President of the ORG of ORG authorised the applicants , their counsel and the prosecutor to consult the record of the opening of the parcel , the transcript of the secret recordings and photographic evidence . On DATE counsel for the first and second applicants consulted those materials in the secret registry . They were informed that they would be criminally liable in the event of their failure to respect the confidentiality of the information .

The first hearing was set for DATE . At that hearing the court allowed the prosecutor ’s request to conduct the trial in camera , having regard to the important ORG interests involved as provided for in LAW § CARDINAL ( CARDINAL ) of the ORG . The ORG counsel did not object to the prosecutor ’s request . The court directed the persons present in the courtroom ( the applicants , their counsel and QUANTITY police officers ) that they were under an obligation to keep confidential all information disclosed during the hearing . The applicants and their counsel could consult the case file in the secret registry of the court .

ORG held CARDINAL hearings on the following dates : CARDINAL May , CARDINAL and DATE , DATE , DATE and DATE . ORG bench was composed of CARDINAL professional judge and CARDINAL lay judges .

At the first hearing , held on DATE , the applicants pleaded not guilty . They refused to testify , but answered some questions from the court and their counsel . The trial court heard as witnesses PERSON , PERSON and QUANTITY other persons , friends of the applicants , who had been arrested with them .

On DATE the trial court received a copy of the decision of ORG of DATE authorising the Chief Police Commissioner of CARDINAL DATE to order the secret recordings .

On DATE the court provided the applicants with the transcript of secret recordings , on which they refused to comment . At the hearing held on DATE the trial court heard the secret recordings made by the ORG . According to the applicants , the recordings were of very poor quality . The conversation between the first applicant and PERSON was completely incomprehensible , and only vague extracts of the conversation between the applicants could be heard , interrupted by noises and rattling .

At the hearings held on DATE and DATE the court heard ORG officers involved in the investigation , including those who had opened the parcel on DATE . The court authorised them to testify in respect of the facts covered by the duty of professional secrecy .

At the hearing held on DATE the first applicant requested the trial court to reverse its earlier decision to conduct the proceedings in camera . She submitted that as a consequence of that decision her defence rights had been limited because she had not been allowed to make notes from the file . Her counsel did not take a stand on the request , stating that it was the first applicant ’s personal view . The prosecutor objected to the request , claiming that the grounds for the decision to exclude the public remained relevant . He also argued that the first applicant ’s defence rights were duly respected as she could personally consult the classified part of the case file . ORG dismissed the request to reverse the earlier decision to conduct the proceedings in camera as the grounds originally invoked for that decision remained fully valid .

On DATE ORG gave judgment . It found the applicants guilty of having participated in the transit of cocaine through GPE in concert with other persons , and sentenced them to DATE and CARDINAL months’ imprisonment and a fine of ORG CARDINAL,CARDINAL . It further ordered them to make a payment of CARDINAL ORG to a local association fighting drug addiction and to reimburse the ORG ’s costs incurred in the proceedings . The written reasons for the judgment were classified as confidential and deposited in the secret registry of the court . The ORG counsel were informed accordingly and notified of their right to consult the written reasons . They filed an appeal without consulting the written reasons for the judgment .

When establishing the facts , ORG excluded the evidence obtained by means of the secret recordings ordered by the Chief Police Commissioner on DATE . ORG observed that the Police Commissioner ’s order had not been endorsed by a court within DATE as required by section QUANTITY of LAW . Accordingly , the evidence obtained on the basis of that order was unlawful and could not be used in the criminal proceedings against the applicants . On the other hand , ORG confirmed that the secret surveillance of the parcel and the replacement of the cocaine with an unspecified powder substance had been effected in accordance with LAW and the relevant Ordinance of the Minister of the Interior .

On the basis of the available evidence , in particular , various statements made by the applicants during the investigation and during the trial , ORG found that at the time when the parcel had been at their disposal the applicants had known that it contained drugs . The court found that the applicants had acted intentionally with a view to transferring the drugs through GPE to the GPE . Thus , their guilt had been sufficiently established .

In their appeal , the applicants alleged breaches of several provisions of criminal procedure committed by the prosecution and the court , arbitrary assessment of evidence and disregard for the in dubio pro reo principle . They argued that the excluded evidence should have been omitted as the “ fruit of the poisonous tree ” , whereas the court had actually based the conviction on that evidence . Further , they submitted that the applicants’ right to defend themselves had been impaired because access to the classified evidence had been very difficult , and neither the applicants nor their lawyers had been allowed to make copies or notes of the written reasons for the judgment .

On DATE ORG held a hearing at which the prosecutor requested the court to conduct the proceedings in camera . The applicants’ counsel left the issue to the court ’s discretion . ORG decided pursuant to LAW ORG to allow the prosecutor ’s request since the examination of the appeal would not be possible without consideration of the classified evidence . ORG further decided to supplement the evidentiary material . It noted that the trial court had not determined the exact circumstances of the removal of the cocaine from the parcel and its replacement by a similar substance and decided , to this end , to hear QUANTITY police officers who had been involved in the covert interception of the parcel .

On DATE ORG held a hearing in camera . It heard evidence from CARDINAL police officers and established that the cocaine had been removed from the parcel and replaced with a similar substance by the police .

The prosecutor requested ORG to hear the secret recordings and argued that ORG had erred in excluding that evidence . ORG rejected that request , noting that it could not examine the relevant decision of ORG since the first - instance judgment had not been appealed against by the prosecutor ( reformatio in peius ) .

On DATE , after deliberations , ORG amended the judgment of ORG by changing the legal classification of the offence to CARDINAL of “ attempted ” transit of drugs ( usiłowanie nieudolne ) as the police had secretly removed the drug from the parcel and replaced it with a similar substance . It accordingly reduced the applicants’ sentence to DATE imprisonment . The judge rapporteur presented orally the main reasons for the judgment . The written reasons for the judgment were classified as confidential and could only be consulted in the secret registry of the court .

ORG confirmed that the applicants had taken part in the transit of cocaine through GPE . The first applicant had collected the parcel from the addressee and kept it in order to hand it over to a person indicated by PERSON .. She had also informed PERSON of the collection of the parcel . The second applicant had assisted the first applicant in the process .

ORG held , inter alia , as follows :

“ The applicants’ counsel are wrong to plead that the accused had no intention to take part in the transit of the drugs through GPE . This was sufficiently established by the [ admitted ] evidence , and in particular by the statements of the accused themselves . ( ... )

The applicants’ counsel are wrong to claim that the accused ’s right to defend themselves was restricted on account of the fact that part of the evidence was classified , or that the judgment was the result of the fact that the judges had retained in their mind the content of excluded evidence . Both those situations are a simple consequence of the application of the relevant regulations , namely the regulation regarding classified information and the [ regulation on ] judicial review of the legality of evidence . ...

The assertion that there was no equality of arms because part of the evidence was classified is incorrect . Such evidence was not withheld from the counsel , as they were able to consult it in the same manner as the prosecutor , and the restrictions on disclosure of classified material were equally applicable to both parties .

NORP ( ... ) The consultation of classified evidence meant accepting certain conditions , including the prohibition on taking notes on the contents of such evidence ; nonetheless those restrictions were not of such a nature that they could be considered to limit the rights of the defence . Counsel could memorise the content of the evidence they consulted , then use it , while respecting the requirements of confidentiality , either when pleading at the closed hearings or with due diligence in their written submissions . ( ... ) Those were then not limitations on the rights of the defence , but rather certain impediments in conducting the defence , in any case impediments of a minor degree . In ORG view , those limitations were necessary since part of the evidence was classified . If they [ those limitations ] were not applied , the interests protected by the regulation on classified information would be affected . [ Those limitations ] are present in every case concerning classified information , and thus alleging shortcomings in this respect does not concern just this particular case but relates generally to the principle of the determination of criminal charges based on evidence covered by the regulation on classified information . That would then be a claim of unconstitutionality in respect of the determination of such cases due to the limitation by that regulation of the constitutionally protected rights of the defence ( Article CARDINAL § CARDINAL of the LAW ) , which is far - reaching , unjustified and – for ORG – unconvincing . If those arguments ( or rather groundless assertions ) of the author of such allegations were to be shared , then the determination of cases involving classified material would be ruled out . ( ... ) . ”

ORG rejected the applicants’ claim that the trial court had based the conviction on the excluded evidence . In this respect it noted , inter alia :

“ The allegation that ORG ruling was influenced by the content of the excluded evidence , i.e. the evidence obtained secretly by the police and the explanations of the accused related to that evidence , is incorrect . Firstly , it is not uncommon in criminal proceedings that some evidence is removed from the scope of evidentiary material constituting the basis for a ruling . ( ... ) Ensuring that judges did not know the evidence that was excluded would mean extinguishing those procedural acts in which such evidence was examined , removing the records of such information from the files and restarting every trial before a different panel of the court . That would not be reasonable and it is not provided for by law . ( ... ) In other words , ORG examines whether the evidence ORG took as the basis for its ruling was sufficient for it to give the ruling or whether there was insufficient evidentiary basis for it . ORG considers that there was sufficient evidence to give the judgment , and thus the judgment [ of ORG ] has adequate evidentiary basis ( with CARDINAL reservation in respect of the presence of the drug in the parcel ) . The allegation that the judges [ of ORG ] were influenced by the content of excluded evidence had no significance for the content of the judgment . ”

The applicants lodged cassation appeals . The second applicant ’s lawyer submitted , inter alia , that ORG had not referred to the arguments raised in the appeals , that in its assessment of evidence the court had infringed the principles of impartiality , presumption of innocence and in dubio pro reo . They repeated their arguments , submitted to ORG , that the unlawfully obtained evidence , although eventually excluded by the first - instance court , had been presented during the trial as admissible evidence , which must have unfairly prejudiced the outcome of the proceedings . The defence also argued that since the evidence obtained by means of the secret recordings had been excluded at first instance , there had been no reason to hold the appeal proceedings in private .

On DATE ORG , sitting in camera in a single judge formation , dismissed the ORG cassation appeals , finding both of them manifestly ill - founded .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure sets out an exception to the principle that court hearings should be held in public . Article CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides for the court to order that all or part of the hearing be held in camera if a public hearing might disclose matters which should remain secret in the light of the ORG interests at stake .

Article CARDINAL § CARDINAL of the ORG stipulates that when a hearing is held in camera an accused may request that a person of trust of his choice be present at the hearing . That rule does not apply to cases where there is a risk of disclosure of a ORG secret ( LAW ) .

Article CARDINAL § CARDINAL of the ORG , which concerns the delivery of a judgment , provides :

“ If the case has been heard in camera because of important ORG interests , instead of written reasons , notice will be served to the effect that the reasons have been prepared . ”

The DATE Protection of Classified Information Act ( ustawa o ochronie informacji niejawnych ) establishes a comprehensive set of rules concerning , inter alia , definitions and categories of classified information , the authorities responsible for protecting classified information and the rules on access to it . Section CARDINAL § CARDINAL of the LAW provides for CARDINAL categories of classified information – state secret ( tajemnica państwowa ) and professional secret ( tajemnica służbowa ) . The latter information may be rated as confidential ( poufne ) or restricted ( zastrzeżone ) .

The Ordinance of the Minister of ORG of DATE on the handling of transcripts of questioning and other documents or items covered by state secrecy , professional secrecy or secrecy related to the exercise of a profession or function ( ORG z dnia CARDINAL czerwca DATE r. w sprawie sposobu postępowania z protokołami przesłuchań i innymi dokumentami lub przedmiotami , na które rozciąga się obowiązek zachowania tajemnicy państwowej , służbowej albo związanej z wykonywaniem zawodu lub funkcji ) entered into force on DATE .

The LAW provides that in accordance with the DATE ORG the president of a court or the head of the relevant prosecutor ’s office may classify a case file or particular parts of it as “ top secret " ( ściśle tajne ) , “ secret " ( tajne ) , “ confidential ” or “ restricted ” if it includes information classified as state secrets , professional secrets or secrets related to the exercise of a profession or function ( § § CARDINAL - CARDINAL ) .

The case file , other documents or items classified as “ top secret ” , “ secret ” or “ confidential ” are deposited in the secret registry ( kancelaria tajna ) of a court or prosecutor ’s office ( § CARDINAL ) .

The ORG provides that classified files , documents or items shall be made available to parties , counsel and representatives only at the order of a court ( the president of a court ) or the head of the relevant prosecutor ’s office ( § CARDINAL.CARDINAL ) .

§ CARDINAL of the Ordinance prohibits the making of copies of and taking of notes from classified files and documents .

A person authorised to consult the classified documents is notified of the obligation to respect secrecy and the prohibition on making copies and notes , and swears in writing to keep the information received confidential ( § CARDINAL ) .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants , Mr PERSON , Mr PERSON , PERSON , Mr PERSON and ORG , are NORP nationals , who were born in DATE , DATE , DATE , DATE and DATE respectively and live in PERSON .

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

The applicants were employees of a private company ( “ the company ” ) and were entitled to receive invalidity benefit . Since the company stopped paying them benefit in DATE , the applicants jointly brought an action against it , seeking payment of benefit arrears and requiring the former to pay the benefit for the rest of their lives .

On DATE the ORG ruled in favour of the applicants . It ordered the company to pay each of them invalidity benefit for DATE to DATE as follows : CARDINAL Moldovan lei ( MDL ) ( MONEY ( ORG ) ) to Mr PERSON ; MDL CARDINAL ( ORG CARDINAL ) to Mr PERSON ; MDL CARDINAL ( ORG CARDINAL ) to PERSON ; MDL CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL ) to Mr PERSON ; and MDL CARDINAL ( EUR CARDINAL ) to ORG . It also ordered the company to recalculate their respective benefits periodically and to pay it for the rest of their lives . On DATE the court issued enforcement warrants . The company ’s appeal was dismissed on DATE by ORG and on DATE by the final judgment of ORG .

The enforcement warrants were sent to the bailiff on DATE .

DATE the applicants lodged numerous complaints with various authorities about the non - enforcement of the judgment in their favour . In its replies ORG informed the applicants about the actions taken by ORG to enforce the judgment . On several occasions a bailiff made enquiries of ORG , ORG and ORG about the company ’s assets . He was informed that the company held numerous bank accounts which had been frozen by ORG , that the company did not have any real estate and that it owned several vehicles , later found to have been dismantled and allegedly to be of no value .

In order to enforce the judgment in favour of the applicants , on DATE a bailiff seized a building , which , according to a certificate of CARDINAL DATE issued by ORG , belonged to a third company . On DATE a court annulled the sale by auction of that building .

On DATE the company proposed to pay to each applicant MDL CARDINAL ( ORG CARDINAL ) , but they refused the offer .

On DATE a bailiff seized CARDINAL items of the company ’s machinery and arranged for their sale at auction . On DATE a third party bank ( “ the bank ” ) sought annulment of the bailiff ’s actions on the ground that the machinery had been mortgaged by the company in DATE in order to guarantee a loan . Although the company ’s machinery was auctioned on DATE , following a request from the bank , on DATE the ORG annulled the auction . On DATE ORG ordered a stay of the enforcement proceedings in respect of the seized machinery , relying on a judgment of ORG of DATE by which a judicial dispute between the company and the bank had been determined in favour of the latter .

By judgments of CARDINAL DATE and DATE ORG dismissed a third party bank action for the institution of insolvency proceedings against the company , relying on the company ’s financial report for DATE and its DATE report for DATE , revealing assets worth MDL CARDINAL ( ORG CARDINAL ) and MDL CARDINAL ( ORG MONEY ) , respectively .

On DATE a bailiff made an enquiry of ORG ( “ NORP ” ) and was informed that the company had been inactive since DATE and held no assets and that on DATE the company ’s accounting records had been destroyed by fire .

On DATE the company became the subject of insolvency proceedings and all enforcement proceedings against it were suspended .

On an unspecified date in DATE the applicants brought an action against ORG and complained that the measures taken to enforce the judgment in their favour were inefficient . By a decision of DATE ORG upheld their action and held that ORG had failed to take effective action to enforce the judgment in favour of the applicants and ordered it to seize the company ’s assets recorded in the financial reports of DATE ( see paragraph CARDINAL above ) .

On DATE a representative of the company informed the bailiff in charge of the enforcement about a change of the company ’s address and about the fact that it did not possess any assets in LOC . According to a report drawn up by a bailiff on DATE the company was not located at the newly indicated address .

On DATE and DATE a bailiff requested ORG , ORG , ORG and ORG for assistance in enforcing the judgment in favour of the applicants . According to the information from ORG ( “ the GPE ” ) the company owned CARDINAL trucks , and on DATE ORG ordered the traffic police to search and to seize the vehicles . The decision however remained inoperative .

On DATE the applicants lodged with ORG a complaint against the bailiff ’s failure to comply with the decision of ORG of DATE . They also sought MDL CARDINAL ( ORG CARDINAL ) each in compensation for pecuniary and non - pecuniary damage suffered as a result of the inefficiency of the bailiff ’s actions . On DATE ORG dismissed their complaint on the ground of lack of jurisdiction ratione materiae and instructed them to initiate contentious proceedings against the bailiff .

On DATE the applicants complied with the court ’s ruling and initiated contentious proceedings against the bailiff . On DATE , ORG dismissed their action on the ground of res judicata , referring to the decision of ORG of DATE .

In the meantime , in DATE , a bailiff seized PERCENT of the company ’s shares in the statutory capital of a third company as well as CARDINAL items of machinery . In DATE and DATE he requested ORG of criminology and judiciary ( “ the Institute ” ) to evaluate the seized shares and assets . On both occasions the ORG refused to comply with the bailiff ’s request , stating that it had to be paid for the valuation in advance and that it had not been provided with certain documents . On DATE the Institute informed the bailiff that it could not comply with the request to evaluate the shares since it did not have qualified personnel for that purpose .

On DATE a private company performed an evaluation of the shares and machinery . It estimated the value of the latter at MDL CARDINAL ( ORG CARDINAL ) , but the shares could not be evaluated since it did not have qualified personnel .

On several occasions a bailiff requested the creditors of the company , including the applicants , to bear the fees for the announcement of an auction . On DATE an auction to sell the machinery took place but there were no buyers .

On DATE a bailiff fixed another date for the auction . Since the debtors , including several ORG authorities , did not comply with the bailiff ’s request to bear the fees for the announcement of the auction , it has not taken place to date .

On an unspecified date in DATE a bailiff enforced a DATE judgment in favour of the company , according to which it had to be paid by private third parties MDL CARDINAL ( ORG CARDINAL,CARDINAL ) . Since the company had debts worth MDL CARDINAL ( EUR CARDINAL ) , on DATE a bailiff distributed the amount recovered from the third parties between several of the company ’s creditors , including Mr PERSON , PERSON and PERSON Ion Nedin , who received MDL CARDINAL ( EUR CARDINAL ) , MDL CARDINAL ( EUR CARDINAL ) and MDL CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL ) , respectively .

On DATE a bailiff evaluated PERCENT of the company ’s shares in the statutory capital of the third company at MDL CARDINAL ( ORG CARDINAL ) and seized it . The company ’s appeal against the bailiff ’s decision was dismissed on DATE . On DATE , the third company appealed against the bailiff ’s decision of DATE . The outcome of the proceedings is unknown .

On DATE a bailiff issued a decision according to which the following amounts were to be distributed to the applicants : MDL MONEY ( EUR CARDINAL ) to Mr PERSON ; MDL CARDINAL ( ORG CARDINAL ) to Mr PERSON Gorbatii ; MDL CARDINAL ( ORG CARDINAL ) to PERSON ; MDL CARDINAL.CARDINAL ( EUR CARDINAL ) to Mr PERSON ; and MDL CARDINAL ( EUR CARDINAL ) to Mr Petru Anin .

On DATE Mr PERSON and PERSON received MDL CARDINAL,CARDINAL.CARDINAL ( ORG CARDINAL ) and MDL CARDINAL ( ORG CARDINAL ) , respectively .

The judgment of DATE in favour of the applicants has not been fully enforced to date .

The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) ) .


Violation of Art. 6-1;Violation of Art. 6-2;Non-pecuniary damage - award

Anatoly Kovler;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE . He is currently serving a sentence in correctional facility ZhKh–CARDINAL/CARDINAL in the village of ORG , GPE .

On an unspecified date criminal proceedings were instituted against the applicant on charges of abuse of powers by a public official , aggravated bribery and forgery .

On DATE the applicant was arrested and placed in custody on suspicion of aggravated murder and robbery .

On DATE the applicant was officially charged with aggravated murder and robbery .

On DATE the applicant was convicted of abuse of powers , aggravated bribery and forgery and sentenced to DATE imprisonment .

On DATE , whilst the pre - trial investigation into the murder and robbery was pending , the ORG local television company , ORG , broadcast the Na grani ( “ On the Edge ” ) programme which contained an interview with PERSON , an investigator from the prosecutor 's office of LOC ( “ the prosecutor 's office ” ) , who informed the public that the applicant had committed a series of offences . In particular , he stated that :

“ The murder was committed while the investigation into bribery and abuse of power [ with which the applicant had been charged ] had been pending for a sufficiently long time and it was possible to refer the case to a court . And we found out that PERSON had committed a second , more serious , crime – a murder , connected to the robbery and attack . ”

On DATE the applicant lodged a civil claim against the prosecutor 's office and ORG . Referring to LAW , he sought compensation for non - pecuniary damage resulting from the alleged violation of the presumption of innocence .

On DATE ORG the district court ” ) held a hearing in the applicant 's presence and decided that it could not examine the claim while the criminal proceedings against the applicant were pending , because it was essential to know the outcome of those proceedings in order to determine whether the disseminated information was true or false . Therefore , the district court ordered the proceedings to be suspended .

On DATE ORG upheld the decision of DATE .

On DATE ORG convicted the applicant of murder and robbery and sentenced him to DATE imprisonment . On CARDINAL DATE the judgment became final .

On DATE the district court informed the applicant that the proceedings in respect of his defamation claim had been resumed and a hearing had been scheduled for DATE . The court asked the applicant if he wished to continue with his claim , and requested him to submit written explanations .

In his reply of DATE the applicant modified his statement of claims , withdrew the claim against ORG and affirmed his wish to continue with his claim against the prosecutor 's office . He also asked the court to examine the case in his presence .

On DATE the district court held the hearing in the applicant 's absence . It does not appear from the case materials that it examined the applicant 's request to appear in the courtroom . Having studied the applicant 's written submissions and having heard the representative of the prosecutor 's office , it rejected the claim . According to the Government , the representative of the prosecutor 's office advanced no new arguments against the claim during the hearing . The district court found that the impugned statement had been based on facts which had subsequently been established in the court judgment of DATE . With regard to arguments by the applicant that the investigator was not entitled to publicly state that the applicant was guilty until this had been proved according to law , the court said that , by the date of the broadcast , the applicant had already been charged with murder and robbery , which , under LAW , was possible only if sufficient evidence existed . The issue of the applicant 's absence was addressed in the district court 's decision as follows :

“ The plaintiff was not present at the hearing because he had been sentenced ... to DATE imprisonment ... The court received [ the plaintiff 's ] written comments about the claim made ... ”

The applicant appealed against this judgment . He claimed , inter alia , that the principle of equality of arms had been breached , as the court had refused to summon him and hear him in person .

On DATE the applicant , then detained in the correctional facility in GPE , was notified of the time and place of an appeal hearing in his defamation case .

On DATE ORG held an appeal hearing in the absence of the parties and upheld the judgment of DATE with minor changes . The appeal judgment , in so far as relevant , read as follows :

“ ... [ the district ] court ensured PERSON 's participation in the hearing of DATE although the laws on civil procedure in force do not require the court to ensure the presence in a courtroom of persons kept in custody or sentenced to imprisonment .

[ The district ] court duly notified PERSON of the date of the hearing . The plaintiff sent to the [ district ] court his written comments on the nature of his claims . The reasons given in those comments were studied and duly assessed by the [ district ] court . ”

Article CARDINAL of the LAW of the Russian Federation provides that everyone accused of committing a crime shall be considered innocent until his guilt is proved according to the rules fixed by the federal law and confirmed by the sentence of a court which has come into legal force .

Article CARDINAL of the NORP Civil Code provides that compensation for non - pecuniary damage is payable only when physical or moral damage has been inflicted on a person through actions which violate his or her rights .

By virtue of ORG CARDINAL and CARDINAL of LAW , a court may hold a session outside the courthouse if , for instance , it is necessary to examine evidence which can not be brought to the courthouse .

On several occasions ORG of GPE has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts . It has consistently declared the complaints inadmissible , finding that the contested provisions of LAW and LAW did not , as such , restrict the convicted person 's access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided by law . If necessary , the hearing may be held at the location where the convicted person is serving his or her sentence or , alternatively , the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant 's submissions or carry out any other procedural steps ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE , and no . CARDINAL of DATE ) .


Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr Željko PERSON , is a NORP national who was born in DATE and is currently serving a prison term in LOC . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On an unspecified date an indictment was brought against the applicant in ORG ( Županijski sud u ORG ) on charges of murder and attempted murder . The applicant was placed in pre - trial detention in GPE and was legally represented by a lawyer from GPE .

On an unspecified date PERSON , a lawyer practising in PERSON , GPE , was also appointed by the authorities to represent the applicant . All witnesses gave evidence before ORG in GPE ( ORG ) in the presence of PERSON

In a judgment of ORG of DATE the applicant was found guilty of murder and attempted murder and sentenced to PERCENT years’ imprisonment .

In the proceedings the trial court heard evidence from medical and ballistic experts and read the statements of CARDINAL witnesses who had given evidence before ORG . The relevant part of the judgment reads :

“ Under LAW ) of LAW this court has decided to read the evidence given before an investigating judge of ORG , GPE and GPE , by the witnesses GPE , GPE , ORG , GPE , ORG , GPE , ORG GPE , GPE and the injured party GPE , because these witnesses live in the territory of GPE and GPE and , although properly summoned , failed to appear at the hearing , and because summonses for the witnesses GPE , GPE and GPE could not be served on them . ”

The first - instance judgment was upheld by ORG ( PERSON ) on DATE and DATE . On DATE the applicant lodged a constitutional complaint concerning the grounds for his detention , the quality of his legal representation and the assessment of the facts by the national courts . The applicant ’s constitutional complaint was declared inadmissible on CARDINAL DATE on the grounds that it was incomplete because the applicant had failed to cite the exact provisions of the LAW which he deemed to have been violated in the criminal proceedings against him .

The relevant part of LAW ( Ustav PERSON , ORG no . CARDINAL of DATE ) reads as follows :

“ In the determination of ... any criminal charge against him or her ... a suspect , defendant and accused person have the right to ... question ... prosecution witnesses ... ”

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , which has determined his or her rights and obligations , or a suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ...

If there is provision for another legal remedy in respect of a violation of the constitutional rights [ complained of ] , a constitutional complaint may be lodged only after that remedy has been exhausted .


CASE OF ALBERT AND LE COMPTE v. BELGIUM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The present case was referred to ORG by ORG ( " the Commission " ) . The case originated in CARDINAL applications ( nos . CARDINAL and CARDINAL/CARDINAL ) against GPE lodged with the ORG in DATE and DATE by CARDINAL NORP nationals , Dr. PERSON and Dr. PERSON .

ORG On DATE , the ORG constituted to examine the case relinquished jurisdiction in favour of ORG ( Rule CARDINAL of the Rules of Court ) . By a judgment of CARDINAL DATE , the latter held that there had been a breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW in that ORG ) had not heard the applicants’ cases ( in NORP : " causes " ) publicly and had not pronounced its judgment publicly . It found , on the other hand , that there had been no violation of that LAW ) as regards the applicants’ other complaints , and no violation of LAW and CARDINAL ( article CARDINAL , LAW ) with respect to Dr. PERSON ( Series A no . DATE , paras . CARDINAL and DATE of the reasons and points CARDINAL , CARDINAL and DATE of the operative provisions , pp . CARDINAL and CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL - CARDINAL ) .

ORG At the hearings of DATE , counsel for Dr. PERSON had asked the ORG , in the event of its finding a breach of the LAW , to afford his client just satisfaction under LAW ) . He had , however , expressed the view that the question was not yet ready for decision . ORG , for their part , had requested the ORG to defer ruling on this point in the absence of any indication from Dr. PERSON or his counsel .

In its judgment of DATE , the ORG reserved the question and referred it back to ORG CARDINAL para . CARDINAL of the Rules of Court ( ibid . , paras . CARDINAL of the reasons and point CARDINAL of the operative provisions , p. CARDINAL ) . On DATE , ORG invited the ORG to submit , within DATE , its written observations , including notification of any friendly settlement at which ORG ( " the Government " ) and the applicants might have arrived ( Series A no . DATE , p. CARDINAL ) .

ORG On DATE , the President granted an extension of this time - limit until DATE

On DATE , the Secretary to ORG , acting on the Delegates’ instructions , transmitted to the Registrar a copy of a note drafted by Dr. PERSON lawyer . The note , which was dated DATE and referred to a similar document filed in the case of ORG , PERSON and ORG ( judgment of DATE , Series A no . DATE , pp . CARDINAL , para . CARDINAL ) , contained CARDINAL series of claims .

( a ) First , Dr. PERSON sought the adoption by the Government of measures providing partial reparation in the form of

( i ) " the complete and effective expunction of all the sanctions imposed on him , both disciplinary and penal " ;

( ii ) the withdrawal of a circular issued by the Minister of ORG , prohibiting all dispensing chemists in GPE from making up prescriptions written by the applicant on and after DATE .

( b ) Second , Dr. PERSON claimed

( i ) " as compensation for the prejudice suffered " , an award of CARDINAL BF per annum since the striking of his name from the register of the ORG ;

( ii ) reimbursement of the costs incurred before ORG and the Convention organs , to be calculated by applying " the same criteria and scales as those utilised in ORG judgment of DATE , the amounts remaining the same " ( Series A no . DATE , pp . CARDINAL and CARDINAL , paras . CARDINAL , DATE and DATE ) .

The Delegates , for their part , confined themselves to referring to their memorial of CARDINAL DATE in the case of ORG , PERSON and ORG and to the judgment of DATE in that case . They left it to the ORG ’s discretion to afford just satisfaction , on the basis of those documents .

ORG By LAW DATE , the President directed that the Agent of the ORG should have until DATE to submit his observations . At the Agent ’s request , he extended this time - limit until DATE .

The Government ’s reply was received at the registry on DATE .

ORG On DATE , the Deputy Secretary to ORG informed the Registrar that Dr. PERSON was claiming no more than a token award of MONEY for non - pecuniary damage .


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

The applicant , who was born in DATE , is currently detained in FAC .

On DATE N. and C. were arrested by carabinieri from PERSON ( GPE di GPE ) and found to be in possession of cocaine .

On DATE and DATE ORG was questioned , initially by the carabinieri , and subsequently by the PERSON public prosecutor ( PERSON ) . He said that he had obtained part of the drugs from C. for his own use ; the remainder belonged solely to C. He added that on DATE of their arrest , C. had accompanied him to certain people ’s homes to try to buy drugs . After TIME meal they had gone to the applicant ’s home . The applicant had said that he was prepared to supply them with QUANTITY of cocaine to be delivered DATE , as he was not willing to accept deferred payment and could not go out after TIME to get the drugs .

N. was questioned by the carabinieri as someone who was helping them with their inquiries ( “ persona che puó riferire circostanze utili ai fini delle indagini ” ) , not as an accused . For that reason , he was not assisted by a lawyer . However , the PERSON public prosecutor subsequently decided that ORG should be regarded as a “ suspect ” ( “ indagato ” ) , and therefore questioned him in that capacity .

By an order of CARDINAL DATE the PERSON investigating judge committed the applicant , PERSON and CARDINAL other suspects , PERSON and PERSON , for trial before ORG for drug trafficking . A. was also accused of unlawful possession of an offensive weapon . Separate proceedings were instituted against ORG for possession of drugs .

At the hearing on DATE , ORG was called to give evidence as a person accused in connected proceedings ( “ imputato in procedimento connesso ” ) . However , he chose to remain silent as he was entitled to do by virtue of LAW of LAW ( hereafter , “ the ORG ” ) .

NORP The lawyers acting for the accused argued that LAW ORG was unconstitutional since it was incompatible with Articles CARDINAL and CARDINAL of LAW – which guaranteed the equality of citizens before the law

and the right to defend oneself at all stages of the proceedings DATE and LAW . They observed in particular that , as construed by ORG , LAW ORG laid down that if a person accused in connected proceedings exercised his right to remain silent , the court could read and use any statements made by him to the public prosecutor or to the investigating judge during the investigation . As a result , the accused was deprived of any opportunity of examining that person or of having him examined .

On DATE ORG dismissed as manifestly unfounded the objection that the provision was unconstitutional and ordered that the record of the statements made by ORG to the public prosecutor should be read out . It noted that the statutory right to remain silent was intended to protect an accused , who could not be required to make statements that could be used in evidence against him . Further , the rule that statements made during preliminary investigations could be read and used had been established by ORG itself in its judgment no . CARDINAL of DATE .

In a judgment of DATE , which was lodged with the registry on DATE , ORG sentenced the applicant to DATE and QUANTITY months’ imprisonment and a fine of MONEY ( MONEY ) . C. , A. and ORG were also given prison sentences ranging DATE .

ORG noted at the outset that the main evidence against the accused was the statements which ORG had made to the public prosecutor , since the statements made to the carabinieri were inadmissible under LAW ORG . It also observed that having regard to ORG ’s personality and the spontaneity and precision with which his statements had been made , his depositions should be regarded as credible . ORG noted that ORG had recognised a photograph of the applicant and had given an accurate description of his home and the route followed to get there . In addition , the applicant already had previous convictions under the drug - trafficking legislation and was under judicial supervision ( sorveglianza speciale ) . He was prohibited from leaving his home after TIME , and that was a possible explanation for his unwillingness to go out after TIME Furthermore , the amount of cocaine found in ORG ’s possession showed that ORG had contacts with drug dealers and meant that ORG account of his visit to the applicant ’s home was probably true . It also confirmed that the negotiations that had started were genuine .

On DATE the applicant appealed to GPE di ORG . He contested , inter alia , the reliability of ORG ’s statements and complained that they had been made in breach of the adversarial principle and in the absence of a judge or of the defendants’ lawyers .

In a judgment of DATE , PERSON ORG followed in substance the arguments set out in the order of DATE . It upheld the decision of the court below concerning the applicant , while reducing ORG ’s sentence .

On DATE the applicant and his co - accused appealed to ORG . T. relied , inter alia , on LAW ( d ) of the LAW contending that ORG statements should have been declared inadmissible in evidence .

In a judgment of DATE , which was lodged with the registry on CARDINAL DATE , ORG dismissed the appeals of the applicant and his co - accused , holding that the grounds given by ORG for its decision on all the disputed issues relating to the drug - trafficking count had been reasonable and correct . It overruled the impugned decision with regard to A. ’s conviction for being unlawfully in possession of an offensive weapon and remitted the case to ORG .

The Court of Cassation observed among other things that LAW ( d ) of the LAW concerned “ the examination of witnesses , who ... are required to tell the truth , not the examination of the accused , who are entitled to defend themselves by remaining silent or even by lying ” . Further , since all GPE that were party to the LAW had an obligation by relevant domestic legislation to regulate the examination of witnesses , it was “ obvious that ... when a witness refused to give evidence , statements made to the public prosecutor ... had to be produced for the court ’s file ” .

The circumstances in which statements made by an accused or co - accused before trial may be admitted in evidence are set out in LAW ORG .

As initially worded , the first paragraph LAW ORG provided that statements made by an accused before trial could by admitted in evidence by the trial court if the accused failed to appear or refused to repeat the statement .

On the other hand , the second paragraph of LAW concerned statements made before trial by persons accused in connected proceedings . Unlike the position under the first paragraph , the second paragraph did not permit the trial court to admit such statements in evidence if the accused exercised his right to remain silent .

In its judgment no . CARDINAL of DATE , ORG declared the second paragraph of LAW on the ground that , as the statements referred to therein could not be admitted in evidence at trial if the accused in connected proceedings remained silent , there was an unjustified difference in treatment between those statements and statements of the type referred to in the first paragraph . ORG thereby enabled trial courts to admit statements made by a co - accused in connected proceedings , irrespective of whether the person against whom they were being used had been given the opportunity of examining the maker of the statement or of having him examined at any stage in the proceedings . Furthermore , ORG made no reference to the procedural safeguards embodied in LAW or to the criteria established by the ORG ’s case - law .

By PERSON no . CARDINAL of DATE ORG amended LAW with a view to making it consistent with the adversarial principle . In substance , statements made by a co - accused or by an accused in connected proceedings could no longer be used against another person without his consent if the maker of the statement exercised his right to remain silent .

NORP However , in its judgment no . CARDINAL of CARDINAL DATE ORG again declared LAW , this time in its entirety . It held that precluding the trial court from admitting such statements in evidence if the maker remained silent entailed a risk that the court would be deprived of evidence that could assist it in reaching its decision , a risk that was dependent solely on the decision of the maker of the statements .

Following that decision ORG adopted LAW no . CARDINAL of DATE whereby the principle of a fair trial was embodied in the LAW itself . LAW , as now worded , reads :

“ CARDINAL . Jurisdiction shall be exercised through fair proceedings , conducted in accordance with rules of procedure .

All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court . The right to be tried within a reasonable time shall be guaranteed by law .

NORP In criminal proceedings , the law shall guarantee that the person accused of an offence shall be informed promptly and in confidence of the nature and grounds of the charge against him ; that he shall have adequate time and facilities for the preparation of his defence ; that he shall be given an opportunity before the court to examine or to have examined anyone giving evidence against him , to obtain the attendance and examination of any defence witnesses on the same conditions as witnesses called by the prosecution and to obtain the production of any other evidence in his favour ; and that he will have the assistance of an interpreter if he can not understand or speak the language used at the trial .

The principle of adversarial process shall be observed during criminal proceedings with regard to the examination of evidence . An accused ’s guilt can not be established on the basis of statements made by a person who has freely and wilfully eluded examination by the accused or his lawyer .

Rules shall be made governing the circumstances in which adversarial examination of the evidence shall be dispensed with either because the accused has consented , or because there is due evidence that such examination is objectively impossible or that there has been unlawful conduct . ”

In PERSON no . CARDINAL of DATE , the NORP parliament clarified how the amended LAW would apply to trials under way . In particular , the former rules continue to apply in certain circumstances .

Further , a consolidating bill implementing that constitutional amendment was adopted by ORG on DATE . Among other things , this implementing legislation amends LAW by providing that if the maker of statements made before the trial exercises his right not to answer questions , his statements will , as a general rule , be admissible in evidence if the parties agree . However , the former rules will continue to apply in at least some circumstances to trials that are under way .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in GPE . He used to work as a security guard in a security van for ORG , a private bank in GPE .

On DATE , on their return from CARDINAL of the branches of the bank , the applicant and his CARDINAL colleagues working in the same van realised that a sum of money ( approximately MONEY ) was missing .

On DATE the applicant was questioned by the police and on DATE the ORG prosecutor filed an indictment formally charging the applicant and his CARDINAL colleagues with the offence of breach of trust .

On DATE , while the criminal proceedings against the applicant and his colleagues were in progress , Law No . DATE entered into force . Law No . DATE provides for the suspension of criminal cases in respect of certain offences committed before DATE .

On DATE ORG considered the following :

“ ... [ the applicant ] has committed the offence of breach of trust . Nevertheless , the offence was committed before DATE and it thus falls within the ambit of LAW . DATE . It is accordingly decided not to convict [ the applicant ] but to suspend the proceedings in accordance with LAW . CARDINAL ”

On DATE the applicant appealed against ORG decision , arguing that if the proceedings had not been postponed his innocence would have been proved .

On DATE ORG decided that ORG decision was not appealable because it was not a decision containing a definitive conclusion . It considered , however , that the applicant ’s appeal could be examined as an “ objection ” and forwarded it to ORG prosecutor for the necessary action to be taken .

On DATE ORG examined the objection and rejected it .

On DATE lawyers representing ORG lodged a claim with ORG for the return of the missing money from the applicant and the CARDINAL colleagues who had been working with him on DATE it went missing .

On DATE ORG ordered the applicant and his CARDINAL colleagues to repay the missing money to the bank together with the “ highest rates of interest applicable ” . It considered , on the basis of ORG decision of DATE , that the applicant and his colleagues had “ committed the offence ” in question and embezzled the money . The applicant appealed against the decision and drew ORG attention to the fact that he had not been convicted of any offence by ORG , which , in fact , had decided to suspend the proceedings .

ORG quashed the decision in so far as it concerned the rate of interest applicable . On DATE ORG decided , in line with ORG decision , that a lower rate of interest should apply . An appeal lodged against that decision by the applicant was rejected by ORG on DATE .

On DATE the applicant ’s contract of employment was terminated by his employer . The applicant and his CARDINAL colleagues brought a case against the bank before ORG claiming compensation for their dismissal .

On DATE ORG rejected the applicant ’s claim for compensation for his dismissal . It stated as follows :

“ The case concerns the compensation claim for the dismissal of the plaintiffs who worked for the respondent bank and who , instead of bringing [ a sum of ] money they had collected from CARDINAL of the bank ’s branches back to their branch of the bank , embezzled it ... According to ORG decision of DATE , the plaintiffs committed the offence of breach of trust that the proceedings were suspended in accordance with Law No . DATE ... ”

The applicant appealed against the decision , arguing that the criminal proceedings against him had been suspended by ORG . He further argued that the proper course of action for ORG would have been to collect its own evidence , hear witnesses , and reach its conclusion on the basis of that evidence .

On DATE ORG quashed ORG decision of DATE . It held that ORG decision had suspended the proceedings and not convicted the applicant . ORG had erred in rejecting the applicant ’s claim without hearing any of the witnesses proposed by him or obtaining expert reports , or even examining ORG case file .

On DATE ORG reiterated its decision of DATE . In the opinion of ORG , the applicant had caused financial losses to the bank by embezzling the money and knew that his employment had been terminated because of that . Any expectation on the part of the applicant of receiving compensation for his dismissal would therefore damage confidence in the judiciary and , for that reason , ORG could not adhere to ORG decision of CARDINAL DATE .

On DATE an appeal lodged by the applicant against ORG decision was rejected by ORG , which considered that ORG decision was in accordance with its decision of CARDINAL DATE . This decision was communicated to the applicant on DATE .

Law No . DATE , in so far as relevant , provides as follows :

“ CARDINAL . In respect of offences committed before DATE which are punishable by a maximum prison sentence of DATE :

- where no criminal investigation has been commenced or no indictment has been filed , institution of prosecution shall be suspended ;

- where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final , adoption of a definitive finding on the merits shall be suspended .

If the person concerned is detained on remand , he or she shall be released . Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached .

In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached , a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed . If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached , no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated .