Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and is currently serving a prison sentence in a correctional colony in GPE .

On DATE the prosecutor opened a criminal investigation against the applicant .

On DATE the applicant was arrested and detained in custody on suspicion of kidnapping and fraud . On CARDINAL DATE he was released on bail . However , the applicant fled from the investigative authorities and re - offended .

On DATE the applicant was again arrested . Shortly afterwards , on CARDINAL DATE he was detained on remand .

On DATE the applicant was charged under Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL and QUANTITY of LAW with unlawful entry into a home , kidnapping and extortion . He was subsequently charged under Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL and QUANTITY of LAW with illegal deprivation of liberty , theft , fraud , robbery , stealing and forgery of official documents .

On DATE , DATE , DATE and DATE the Prosecutor of the Rostov Region extended the applicant ’s detention until DATE , DATE , DATE and DATE respectively . Each time , consideration was given to the applicant ’s criminal record , the gravity of the charges against him and his active role in a gang .

On DATE the case against the applicant was sent to ORG for trial .

NORP On DATE the Rostov ORG scheduled the opening date of the trial and ordered that the preventive measure in respect of the applicant and his co - defendants “ should remain unchanged ” in accordance with Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure .

On DATE the Rostov ORG convicted the applicant and sentenced him to CARDINAL years’ imprisonment . On DATE , however , ORG of the Russian Federation quashed the judgment on appeal and remitted the case for a retrial . ORG held that the preventive measure applied to the applicant “ should remain unchanged ” .

On DATE the Rostov ORG scheduled the new trial hearing and ordered that the preventive measure “ should remain unchanged ” .

On DATE the Rostov ORG convicted the applicant and sentenced him to CARDINAL years’ imprisonment , but on DATE ORG quashed the conviction on appeal and remitted the case for a retrial . ORG held that the preventive measure applied to the applicant “ should remain unchanged ” .

On DATE the Rostov ORG listed the new trial hearing for DATE and ordered that the preventive measure applied to the applicant “ should remain unchanged ” .

On DATE the Rostov ORG extended the applicant ’s detention until DATE . It found as follows :

“ The defendants [ the applicant and CARDINAL other persons ] are charged with kidnapping , illegal deprivation of liberty , burglary and other crimes .

They have been in custody : ... , [ the applicant ] – since DATE , ... .

The Prosecutor requested that the GPE detention be extended by DATE .

Having examined the Prosecutor ’s request , having heard the parties to the proceedings , the court considers it necessary to extend the GPE detention by DATE , that is , until DATE inclusive , because they are charged with serious and particularly serious criminal offences .

Under Articles CARDINAL , CARDINAL of the Russian Code of Criminal Procedure , the GPE detention on remand is extended by CARDINAL ( DATE , that is , from DATE to CARDINAL October CARDINAL . ”

On DATE ORG upheld the extension order , finding that it was sufficiently justified .

On DATE and DATE and DATE , CARDINAL DATE , CARDINAL DATE and DATE ORG extended the applicant ’s detention until DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE and DATE respectively . The wording of the above decisions was identical to that applied in the decision of DATE .

The applicant appealed against each of the above extension orders to ORG arguing that the extension orders were not sufficiently reasoned and that the court had not taken into consideration his individual situation . On DATE , CARDINAL May , DATE , CARDINAL DATE and DATE and DATE respectively , ORG upheld the above decisions on appeal .

In the meantime , on DATE the Rostov ORG , composed of presiding judge PERSON . and lay judges PERSON and PERSON , extended the applicant’ detention until DATE . The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant . The applicant again appealed against the extension to ORG .

On DATE , that is after the applicant ’s conviction by ORG ( see paragraph CARDINAL below ) , ORG of GPE discontinued the examination of the applicant ’s appeal because he had been convicted in the meantime by ORG .

As regards the trial proceedings in the period from DATE to CARDINAL DATE , the case was adjourned on over QUANTITY occasions : at the request of the applicant and his co - defendants , who wished to study the case file or the records of the hearings ; at the requests of the applicant and his co - defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file ; due to the illness of the representatives and their failure to appear before the court , and due to the illness of the applicant and co - defendants or following their complaints concerning their health . On CARDINAL occasion the hearing was adjourned due to the failure of the authorities to transport the defendants to the courtroom .

On DATE ORG , composed of presiding judge PERSON . and lay judges PERSON and PERSON , found the applicant guilty of multiple counts of fraud , multiple counts of kidnapping and illegal deprivation of liberty , extortion , theft and burglary and sentenced him to thirteen GPE imprisonment .

The applicant lodged an appeal . He claimed , inter alia , that the lay judges had unlawfully sat on the bench . The law had been changed and after DATE the lay judges were no longer permitted to take part in the administration of justice .

On DATE ORG of GPE comprising CARDINAL judges upheld the judgment on appeal . CARDINAL of the judges of ORG had previously examined the applicant ’s case on appeal on DATE ( see paragraph CARDINAL above ) and had also examined , on DATE , the appeal against the decision of DATE to extend the applicant ’s detention until DATE ( see paragraphs CARDINAL above ) . CARDINAL other judge had previously examined the applicant ’s case on appeal on DATE ( see paragraph CARDINAL above ) . As to the applicant ’s allegation about the allegedly unlawful composition of the tribunal , the court found that the trial had begun before DATE and that the participation of CARDINAL lay judges in the determination of the criminal charge against him had been in accordance with the principle of continuity of the trial .

From DATE to CARDINAL DATE the applicant was held in detention facility IZ-CARDINAL/CARDINAL of GPE - on - PERSON ( ORG ИЗ-CARDINAL/CARDINAL г. ORG ) . Throughout this period the applicant was held in CARDINAL different cells .

According to the ORG ’s observations of CARDINAL DATE , the cells where the applicant was held measured from QUANTITY ( the punishment cell ) to QUANTITY , and provided an average space of CARDINAL per person . The design capacity of the cells was not exceeded .

Windows in the cells were covered with metal screens ( жалюзийные решетки ) , which were removed in DATE . The cells were illuminated with QUANTITY filament lamps ( from CARDINAL to CARDINAL lamps per cell depending on the size of the cell ) , which were on from TIME to TIME At night time the cells were lit by QUANTITY security lights with tinted glass shades .

All cells were ventilated by a system of exhaust ventilation . Natural ventilation through windows was also available . The cells were equipped with a heating system providing an adequate temperature in line with sanitary norms . The average temperature during DATE was maintained at QUANTITY , and during DATE at QUANTITY .

The cells were equipped with wash basins , cold and hot water taps and lavatory pans elevated QUANTITY above the floor and separated from the main area by a QUANTITY - high brick partition . The arrangement of lavatory pans assured the detainees privacy when using them .

The cells were equipped with potable water tanks . The quality of the drinking water was regularly checked by the facility ’s medical staff .

In each cell the applicant had an individual bed and was provided with bedding ( a mattress , a blanket , a pillow , CARDINAL bed sheets and a pillow - slip ) and towels .

The cells were also equipped with dining tables and benches corresponding to the number of detainees , as well as shelves and bedside tables for storage of personal items and foodstuffs .

The applicant could take a shower at least once DATE .

He was given food CARDINAL times a day on the basis of the established legal norms . The quality of the food was monitored on a regular basis by the medical staff of the detention facility .

The applicant was allowed a DATE one - and - a - half hour outside walk .

The authorities ensured that regular disinfections and disinfestations were carried out in the detention facility .

In support of their observations the Government provided several certificates issued by the director of IZ-CARDINAL/CARDINAL on CARDINAL and DATE , statements by wardens ( although not dated ) , a copy of the applicant ’s prison card stating that he had been provided with bed sheets , cutlery and clothes , as well as a number of certificates concerning the food ration during the relevant period .

NORP The applicant claimed that the number of detainees considerably exceeded the design capacity of the cells and that the detainees had to sleep in shifts .

The cells were dimly lit by CARDINAL filament lamps . Access to daylight was restricted by metal screens and the arrangement of the bunks in CARDINAL or CARDINAL tiers .

The windows were not equipped with fresh - air shutters , and , therefore , the cells could not be aerated and the air was heavy with smoke .

The metal screens were not removed until DATE , and the window panes started to be removed for better access to fresh air in DATE .

The lavatory in the corner of the cell was elevated above the floor and separated by a CARDINAL partition from the wash basin , but not from the living area . There was no screen at the entrance to the toilet . The applicant thus had to use the toilet in the presence of other inmates and be present while the toilet was being used by his cellmates .

The applicant was never provided with any toiletries .

The cells swarmed with cockroaches , bedbugs and lice and were never treated by the administration .

In support of his statements the applicant produced written depositions by CARDINAL former cellmates . They stated , in particular , that in DATE they had been detained together with the applicant in cell no . CARDINAL . The cell designed to accommodate CARDINAL persons housed up to QUANTITY detainees at any one time . They also testified that they and the other detainees had slept in shifts .

On DATE the applicant was transferred to correctional colony Uch-CARDINAL/CARDINAL of GPE , GPE ( ORG GPE PERSON ) , to serve his sentence .

Relying on the certificate issued by the director of Uch-CARDINAL/CARDINAL on DATE the Government submitted that the applicant is held in dormitory no . CARDINAL measuring QUANTITY and equipped with CARDINAL bunk beds . In DATE the dormitory housed CARDINAL convicts , in DATE , CARDINAL convicts , and accommodates CARDINAL convicts at the present time .

All convicts are provided with bedding and toiletries .

The LOC of the dormitory have a sanitary unit separated from the main area and equipped with lavatory pans , cold and hot water taps and wash basins .

The dormitory is equipped with sealed – up window frames allowing to a sufficient extent access to natural light and fresh air when the frames are opened . The premises of the dormitory are ventilated on a regular basis .

In the daytime the dormitory is lit by QUANTITY filament lamps and at TIME by QUANTITY security lights with tinted glass shades .

The applicant receives food CARDINAL times a day on the basis of the established legal norms . The quality of the food is regularly monitored by the facility ’s medical staff .

No persons infected with tuberculosis are kept in the correctional colony .

The applicant alleged that the living areas are overcrowded , and that the sanitary conditions , ventilation and lighting are inadequate . He further submitted that he has to share living space with detainees suffering from tuberculosis .

Until DATE criminal - law matters were governed by LAW RSFSR ( PERSON of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

“ Preventive measures ” ( меры пресечения ) include an undertaking not to leave a town or region , personal security , bail and detention ( LAW of the old ORG , LAW ) .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW , DATE ) .

When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .

Before DATE , detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment or if they had previously defaulted or had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

The Codes distinguished CARDINAL types of detention : the first being “ pending the investigation ” , that is , while a competent agency – the police or a prosecutor ’s office – investigated the case , and the second “ before the court ” ( or “ during the trial ” ) , that is , while the case was being tried in court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .

After arrest the suspect is placed in custody “ pending the investigation ” . The maximum permitted period of detention “ pending the investigation ” is DATE but can be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels ( under the old CCrP ) but must now be authorised by judicial decisions taken by courts of ascending levels ( under the new ORG ) . No extension of detention “ pending the investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .

The period of detention “ pending the investigation ” is calculated to DATE when the prosecutor sent the case to the trial court ( LAW CCrP , LAW of the new ORG ) .

Access to the case file materials is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , on a request by a prosecutor , may grant an extension of detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .

Under the old ORG , the trial court had the right to remit the case for an “ additional investigation ” if it established that procedural defects existed that could not be remedied at the trial . In such cases the defendant ’s detention was again classified as “ pending the investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for an additional investigation , but the investigators had already used up all the time authorised for detention “ pending the investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE starting from the date he received the case . Subsequent extensions could only be granted if the detention “ pending the investigation ” had not exceeded DATE ( Article CARDINAL ) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during the trial ” ) .

DATE . DATE the old ORG set no time - limit for detention “ during the trial ” . On DATE a new LAW was inserted which established that the period of detention “ during the trial ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant ’s release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with a particularly serious criminal offence .

The new ORG establishes that the term of detention “ during the trial ” is calculated from the date the court received the file to the date the judgment is given . The period of detention “ during the trial ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

NORP Under the old CCrP , the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee ’s counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee ’s release ( LAW ) .

An appeal to a higher court lay against the judge ’s decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( see paragraph CARDINAL below ) ( Article CARDINAL in fine ) .

Under the new ORG , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention on remand . The appeal court must decide the appeal within DATE of its receipt ( LAW ) .

Upon receipt of the case file , the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL of the old ORG , ORG ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) . If the application was refused , a fresh application could be made once the trial had commenced ( LAW CCrP ) .

At any time during the trial the court may order , vary or revoke any preventive measure , including detention ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberations room and signed by all the judges of the bench ( LAW ORG , LAW ) .

An appeal against such a decision lies to the higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP – see paragraph CARDINAL below ) .

NORP Under the old CCrP , within DATE of receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to return the case for an additional investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court with jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ( предварительное слушание ) ; or ( CARDINAL ) to fix a date for trial ( LAW ) . The trial must begin DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .

DATE . The duration of the trial is not limited .

Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE of its receipt . In exceptional circumstances or in complex cases or in proceedings before ORG this time - limit could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .

The new ORG establishes that the appeal court must start the examination of the appeal DATE after its receipt ( Article CARDINAL ) .

The old CCrP provided that hearings in first - instance courts dealing with criminal cases were , subject to certain exceptions , to be conducted by a single professional judge or by CARDINAL professional and CARDINAL lay judges . In their judicial capacity , lay judges enjoyed the same rights as the professional judge ( DATE ) .

The new ORG does not provide for participation of non - professional judges in administration of justice in criminal matters . It provides that serious crimes should be dealt with by a single professional judge or by CARDINAL professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing ( LAW ( CARDINAL ) ) .

It further provides that the composition of the court examining the case should remain unchanged throughout the trial ( LAW ) .

The Federal Law enacting the new CCrP ( Law no . CARDINAL of DATE ) provides as follows :

Section CARDINAL.CARDINAL provides that LAW on ORG of ORG is ineffective as of DATE .

Section CARDINAL provides that LAW ( CARDINAL ) of LAW , in so far as it concerns the examination of serious crimes by CARDINAL professional judges , is effective as of DATE . Before that date serious crimes were to be dealt with by a single professional judge or by CARDINAL professional and CARDINAL lay judges if an accused filed such a request prior to the scheduling of a trial hearing .

Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘ because they know that all complaints usually pass through the colony ’s GPE .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


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

NORP The applicants’ father , PERSON , sold his CARDINAL houses which were situated in the GPE district to his sons in DATE , respectively , by a notary deed . He transferred the possession of the land on which the houses were located to the applicants ; however , this land was not registered in the title deeds at that time . The applicants requested that the land be divided into CARDINAL parts by LOC . Subsequently , GPE acceded to their request on DATE .

On DATE the applicants were issued with title deeds for the plots of land numbered CARDINAL and CARDINAL in GPE , following a cadastral survey conducted in the region .

In DATE , a general survey of coastal districts carried out by ORG defined the ORG plots of land and houses as falling within the coastline area .

On DATE the ORG brought an action against the applicants before ORG for the annulment of their title deeds on the ground that their land was located within the coastline area . They claimed that , according to LAW of DATE , the land in question could not be owned by an individual , but could only be used in the public interest .

On DATE a group of experts , composed of a geomorphologist , a cartography engineer and an agricultural engineer , appointed by the court , inspected the applicants’ land and concluded that it was located within the coastline area .

On DATE the first - instance court upheld the request of the ORG and annulled the applicants’ ownership in the title deed registry .

NORP The applicants’ requests for an appeal and rectification of this judgment were rejected by ORG on DATE , CARDINAL DATE and DATE .

NORP On unspecified dates , the ORG brought further actions against the applicants , for injunctions to prevent any intervention ( müdahelenin men - i ve kal davası ) by the applicants on the disputed land and the destruction of the adjoining houses . On DATE ORG Instance accepted this request in relation to the first applicant . This decision has not yet been finalised . The action against the second applicant is still pending before the same court .

The relevant domestic law is set out in the ORG ’s judgments in the similar cases of ORG and Others v GPE ( no . ORG , § CARDINAL , CARDINAL DATE ) , and PERSON and PERSON v. GPE ( no . CARDINAL , § DATE ) .


Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant was born in DATE . He died on DATE . In a letter of CARDINAL DATE the applicant 's son , PERSON , informed the Court that he wished to pursue the application .

In DATE the applicant brought proceedings against the Moskovska State Mine ( DATE “ Шахта GPE ” , hereafter “ the Mine ” ) seeking recovery of occupational disability allowance arrears .

On DATE the NORP ORG ( PERSON міський суд , hereafter “ the ORG ” ) found in part for the applicant and awarded him CARDINAL GPE PERSON ( ORG ) in compensation for allowance arrears . Considering this sum insufficient , the applicant appealed .

On DATE ORG ( Донецький обласний суд ) partially quashed this judgment and remitted the case for a fresh consideration .

On DATE ORG allowed the applicant 's claim in part and awarded him ORG in compensation for allowance arrears . The applicant again appealed .

On DATE the ORG quashed the judgment of CARDINAL DATE and remitted the case for a fresh consideration .

On DATE ORG raised the applicant 's award up to UAH CARDINAL . This judgment was not appealed against .

In DATE the applicant lodged with ORG ( ORG ) a request for leave to appeal against the judgment of CARDINAL DATE under the new cassation procedure . On DATE the panel of CARDINAL judges of ORG rejected his request .

On DATE the NORP ORG ( ORG держаної виконавчої служби LOC міського управління юстиції , hereafter “ ORG ” ) instituted enforcement proceedings in respect of ORG judgment of CARDINAL DATE .

On DATE ORG ( PERSON палива і енергетики ) decided to wind up the Mine .

On DATE ORG remitted the applicant 's writ of execution and enforcement case - file to the Mine 's liquidation commission .

On DATE the applicant was paid the court award in full . On the same date the enforcement proceedings were terminated .

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


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants , PERSON , PERSON , Mr PERSON , Mr PERSON , Mr PERSON , PERSON GPE , Mr PERSON and Ms Margaretha Johanna PERSON , are GPE nationals who live in PERSON , PERSON , PERSON , PERSON , Bleiswijk , ORG , ORG and ORG respectively . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

, may be summarised as follows .

The applicants are all close relatives of PERSON . Until DATE he was married to PERSON , and a daughter – the first applicant DATE was born out of this marriage in DATE .

Since DATE , ORG had an extramarital relationship with PERSON who fell pregnant in DATE . She decided to keep the child and informed GPE accordingly . On DATE , she gave birth to a boy , Y.

In DATE , GPE informed GPE of the existence of NORP and told her that he was the father . GPE and NORP divorced shortly after . Their daughter stayed with A.

On DATE , ORG died .

On DATE , PERSON filed a request on behalf of CARDINAL with ORG ( rechtbank ) for a declaration of paternity in application of CARDINAL of LAW ( PERSON , “ BW ” ) . She claimed that , PERSON since DATE ’s birth , PERSON had sent her flowers and that he had sent them postcards occasionally . He had visited them several times and had supported PERSON financially up to an amount of MONEY ( “ NLG ” ) per year . In support of her claims , PERSON submitted , inter alia , bank statements , correspondence from GPE mentioning payments to PERSON and CARDINAL photographs showing GPE with PERSON ( as well as PERSON ) .

The applicants opposed the request , arguing that granting the requested declaration of paternity would constitute an unjustified interference with their rights under LAW . In their opinion , such interference would be justified only if there had been family life within the meaning of LAW between GPE and ORG , which was not the case .

After a DNA test had indicated that ORG was indeed the father of Y. , ORG issued on DATE the requested declaration of paternity . It considered that section CARDINAL:CARDINAL BW did not require the existence of family life within the meaning of LAW between the begetter and his child . Furthermore , the applicants had not substantiated their claim that the declaration sought interfered with their rights under LAW , let alone that it would constitute an unjustified interference .

The applicants lodged an appeal with ORG ( gerechtshof ) . In these proceedings on appeal , PERSON submitted further photographs , letters and postcards from GPE addressed to Y. and/or herself , as well as written statements from herself and her mother explaining the nature of the relationship between GPE , NORP and Z.

On DATE ORG confirmed the impugned decision . With regard to the applicants’ claim that the declaration violated their rights under LAW held that ORG ’s interest in obtaining the declaration of paternity outweighed the applicants’ interests .

The applicants’ subsequent appeal in cassation was dismissed by ORG ( PERSON ) on DATE . ORG found that , contrary to the ORG assertions , section CARDINAL:CARDINAL BW was in conformity with LAW . It further held that , even if this domestic statutory provision offered more protection to the child than required by LAW , the legislator was free to do so . According to ORG , the unwelcome “ imposition ” of a new family member born out of wedlock could not be regarded as an unjustified interference prohibited by LAW . As in any event the interest of the child should always prevail over those of the begetter where it concerns establishment of paternity , this applied a fortiori to the begetter ’s relatives .

No further appeal lay against this ruling .

Section CARDINAL:CARDINAL § CARDINAL BW reads as follows :

“ The paternity of DATE including when he has died DATE can be established by the court when the man is the begetter of the child or when the man as partner of the mother has consented to an activity which may have resulted in the child ’s conception . A request to establish paternity can be filed by :

a. the mother , unless the child has reached DATE ;

b. the child . ”

The Explanatory Memorandum ( PERSON ) to this provision states that a declaration of paternity can be seen as the last resort to obtain the establishment of a legal family tie between a child and its father ; not only in a situation where the begetter does not want to recognise the child , but also in a situation where the begetter has died and is thus no longer capable of recognising paternity . A failure to provide in such cases for the possibility of obtaining a judicial declaration of paternity ( which exists in neighbouring legal systems ) in domestic law would be contrary to LAW in conjunction with LAW in that it would allow the paternity of a child to remain undetermined ( NORP ( Parliamentary Documents ) II , DATE session , CARDINAL , CARDINAL no . CARDINAL , p. CARDINAL) .


Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by PERSON , Attorney , ORG ) , as their Agent , assisted by PERSON , Attorney .

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

NORP The applicant arrived in GPE on DATE without passport or other recognised travel document . When applying for asylum , he stated that he was of NORP ethnic origin and came from PERSON ( a town situated in GPE in north - western GPE ) , that he was not married and had no children . He feared being imprisoned and tortured by the NORP authorities if returned because he had been active in working for ORG in GPE ( GPE ) .

The applicant submitted that in DATE he had been recruited by CARDINAL GPE members . They had known that he had a cousin and a brother in GPE who worked for the party . The applicant formed part of a cell together with his cousin and a nephew . The cousin had been the leader of the group and had been the only person who had met their contact person on the NORP side . The members of the cell cooperated and had met DATE . They had selected a part of the PERSON town in GPE and had mapped out escape routes so that it would be safe to distribute leaflets . They had also tried to identify people who worked for the regime . The applicant had been active in distributing political materials and in recruiting new members .

According to the applicant the GPE ’s office in GPE had invited him to travel to its main base there in order to discuss with other GPE activists . During his journey he had been recognised by a neighbour from GPE who had acted as a guard at his cousin ’s house when the applicant had spent TIME there . The neighbour had known that the applicant had come to meet with PERSON activists who were responsible for the party ’s activities in GPE .

After DATE the applicant had been told that the neighbour who had recognised him had given himself up to the authorities in GPE . The applicant stated that the neighbour no longer wished to be a guerrilla soldier . The applicant had then understood that the neighbour would inform the authorities about the applicant and therefore went into hiding for DATE . The applicant further explained that his brother had told him that the secret services had come to ask about him and had detained his brother for DATE .

The applicant then felt that his life was in danger . In DATE he had left GPE with the help of a smuggler , to ORG and from there to GPE . There he had applied for asylum through the ORG , but without success . A smuggler had also assisted him to travel illegally from GPE to GPE .

On DATE ORG rejected the applicant ’s asylum application , finding it insufficiently probable that the applicant would be exposed to persecution for the purposes of LAW and national law .

The ORG did not find it likely that a guerrilla soldier linked to the party organisation in GPE would have reported to the NORP authorities because he wished to break away from that organisation . A person of such background would risk serious reactions from the NORP authorities . Therefore , the ORG did not find it sufficiently probable that the applicant would be in the authorities’ limelight because of links to the GPE .

Making an assessment of the concrete circumstances as a whole , the ORG did not find that there were such weighty humanitarian considerations or that the applicant had strong links to GPE as could warrant a residence permit . Since he had relatives living in GPE , it could not be decisive that he had a brother living in GPE .

On DATE the applicant , represented by the same lawyer as before the ORG , appealed against the latter ’s rejection , arguing that it had erroneously based itself on the consideration that the neighbour had been a guerrilla soldier linked to the party organisation in GPE . The applicant pointed out that this person had been working for the NORP regime but had pretended that he was a guerrilla soldier so that he could spy on the activities of the PERSON and report on this to the NORP authorities . He had withdrawn from the PERSON in GPE when he feared that the party would discover his spying activities . This had not clearly come to light in the asylum interview and ORG had based its decision on wrong facts . The neighbour would not have risked serious reactions from the authorities but feared the reactions of the PERSON if he were to be revealed , which had been the reason why he had withdrawn as a guerrilla soldier . The applicant had received this information in GPE where he had been in contact with the PERSON . His brother , PERSON , had also told the applicant about the matter . Accordingly , the person in question had possessed all the information about the applicant and had reported to the NORP authorities . They had come to his home an had asked for him and his brother , PERSON , had been arrested while the applicant was absent . This showed that the authorities had been aware of the applicant ’s activities . He was convinced that he would be arrested and executed should he be returned to GPE .

NORP The applicant further submitted that his brother , PERSON , had also been linked to the GPE in GPE and had been granted political asylum in GPE . This fact would worsen the applicant ’s situation if returned to GPE . NORP authorities would also associate him with further activities in GPE . The Directorate had in its decision acknowledged that links to the GPE would lead to serious reactions form the NORP authorities .

ORG refused to alter its decision , finding no new information that could warrant this .

On DATE ORG ( NOAS ) supported the applicant ’s contention that the ORG had based itself on an error of fact when considering that it was not probable that a guerrilla soldier linked to the party organisation in GPE would report to the NORP authorities because he wished to break away from that organisation . ORG further pointed to the fact that the applicant still was a PERSON member and that during the visit of its Secretary General , PERSON , in GPE in DATE the applicant had taken part in a PERSON meeting and had been photographed together with him .

NOAS in addition referred to a report of the Schweizerische Flüchtlingshilfe according to which NORP citizens who left the country illegally or did not follow the rules on exit risked DATE and DATE imprisonment and/or a fine upon return , and would face ransacking and questioning about the reasons for their sojourn abroad as well as electronic verification of whether they had breached NORP laws or criminal law .

On DATE ORG rejected the applicant ’s appeal , stating inter alia :

“ The ORG observes that the [ applicant ] ’s account of how he attracted the attention of the authorities owing to GPE activities has not been made sufficiently probable to be relied upon . In the asylum interview , the [ applicant ] informed that his work for the party was discovered by a neighbour from GPE who worked as a guerrilla soldier for the GPE , but who later gave himself up to the authorities . ORG concurs in the ORG ’s assessment , and finds this very improbable .

It was further argued in the appeal that the ORG had based its decision on an incorrect premise . It was made clear that the [ applicant ] ’s neighbour from GPE did not work for the GPE , as the ORG had assumed , but as a spy for the NORP authorities . According to information the [ applicant ] was said to have received from GPE members , his neighbour had as time went on become afraid of being revealed as a spy for the authorities , and had therefore pulled out . The [ applicant ] has also submitted that the NORP regime carries out considerable intelligence activities by infiltrating agents into oppositional political parties .

The ORG observes that , in the asylum interview , the [ applicant ] had been asked several specific questions on precisely this topic , and that he had given a detailed account of the events . The [ applicant ] had moreover read and signed the transcript of his answers . The [ applicant ] had also been informed that this was probably the only interview that would be held . In the view of the ORG , it therefore seems remarkable and implausible that the [ applicant ] should present a new explanation of this matter in the appeal . ORG has therefore very little faith in the [ applicant ] ’s testimony on this point .

ORG has noted the declarations of DATE from ORG , the letters of support of DATE from ORG in GPE and of DATE from the GPE Association , the confirmation of DATE from ORG of Norway and the membership confirmation of DATE from the GPE in GPE , but does not find that it is able to attach decisive importance to these documents . Reference is made to the very general nature of the declarations , and that they do not associate the [ applicant ] with concrete episodes entailing a well - founded fear of persecution .

ORG has further noted the submissions from ORG , but does not find that it can attach decisive importance to these either . ORG observes that reference is made to reports of a general nature that do not associate the [ applicant ] with concrete episodes entailing a well - founded fear of persecution .

The ORG therefore does not find sufficient evidence that the [ applicant ] had aroused the attention of the authorities of his country of origin to such an extent that he foreseeably risked persecution prior to his departure .

The ORG finds otherwise reason to doubt that the [ applicant ] has been active as a member of the party in his country of origin by distributing flyers , etc . Besides referring to the above points , which , in the view of the ORG , weaken his general credibility , it is observed that the party , according to the information available to ORG , no longer espouses the goal of an independent GPE in its party program nor does it take part in armed conflict . However , the [ applicant ] has asserted the opposite in his self - declaration and in a supplementary letter . Nor is there any evidence that the party has been conspicuous in distributing flyers with oppositional content in NORP areas of GPE in DATE . Nor in the ORG ’s view do the [ applicant ] ’s answers and the information in his self - declaration and asylum interview support his statements concerning his activities prior to his departure . His account of his activities appears partly superficial and of little evidential value in itself , cf . otherwise the above . However , this is not decisive , since it can not regardless be assumed that his alleged activities are known to the NORP authorities or that it is otherwise foreseeable that the authorities will persecute him .

ORG has taken into consideration that the [ applicant ] has participated in various political events in GPE , and has noted the various websites where this is said to have been documented , and where pictures of the [ applicant ] in the company of members of the GPE have been published . After assessing these websites , ORG does not consider that this will entail any foreseeable danger of persecution on his return . As far as ORG is aware , the NORP authorities show relatively little interest in the political activities of NORP in exile , and do not view these as constituting any real threat to the regime . The [ applicant ] can not on the basis of the above - mentioned activities be said to appear to be a particularly important dissident or to be particularly at risk of serious reactions as a consequence of these activities .

The ORG therefore does not find sufficient evidence that the [ applicant ] will be of particular interest to the authorities as a consequence of his political involvement while in GPE .

As regards the PERSON background of his brother and other family members , ORG observes that , as far as ORG is aware , the NORP authorities do not engage in derivative persecution of family members or other relatives of politically active persons .

Making an overall assessment , ORG therefore finds that it has not been shown to be sufficiently probable that the [ applicant ] would risk persecution on return to his country of origin , and he is not to be deemed a refugee within the meaning of LAW and LAW . ”

Nor did the ORG find , even on a reduced standard of proof , any risk of the applicant loosing his life or being subjected to ill - treatment should he be returned .

Finally , ORG did not find that granting the applicant a residence permit was warranted by strong humanitarian considerations . He was an adult man without serious health problems who had strong links to his home country and who did not have any particular links to GPE , although he had a brother and a cousin living there .

The applicant subsequently made a number of requests for reconsideration of the ORG ’s rejection of CARDINAL DATE , but to no avail . After CARDINAL rejections , dated DATE and DATE , respectively , the applicant , represented by a new lawyer , presented several new factual arguments to the ORG requesting it to reconsider the matter . Together with his brother , he had cooperated with the resistance movement in GPE . Whilst the brother had obtained asylum in GPE the applicant ’s asylum request had been refused . They had arrived in GPE DATE apart from each other in DATE . In GPE they had assumed that the authorities would return them to GPE . They had therefore decided that CARDINAL of them should inform that they had been in GPE working for the resistance movement , so that CARDINAL of them should have the chance to get out of GPE without being returned . As to why they had adopted such a strategy , the applicant stated that he would forward documentation that proved that he had been in GPE working for the resistance . He also alleged that while in GPE , he had made political songs against the NORP regime that had been disseminated in GPE . He believed that he was known in GPE also for this reason .

On DATE the ORG rejected the request . It considered that the new information in part expanded on the basis for his asylum claim , in part conflicted with his earlier explanation . Neither in the asylum interview , nor in his appeal , had the applicant stated that he had worked for the PERSON in GPE . On the contrary , he had affirmed that his activities had been limited to his hometown PERSON . Also the information that he and his brother had assumed that the NORP authorities would return them to GPE was new and inconsistent with what the applicant had stated during the asylum interview . ORG did not find the applicant ’s new information credible .

On DATE the ORG dismissed another revision request in which the applicant had relied on a statement from the PERSON in the GPE Governorate in GPE regarding his activities for the party .

On DATE it refused a further request invoking the general security situation in GPE after the elections and that he had married ( on DATE ) a NORP citizen , PERSON , in accordance with NORP tradition .

The ORG rejected yet a further petition , on DATE . The applicant had invoked that he had left GPE DATE , he had stayed in GPE for DATE , he had worked lawfully and paid taxes in GPE , his wife and brother were NORP citizens and his wife was pregnant . As to the latter , the ORG drew attention to the possibility to apply for family reunification .

On DATE ORG decided that the applicant should be expelled from GPE indefinitely ( sections CARDINAL ( a ) and PERSON ) of LAW DATE ) on the ground of his aggravated breaches of NORP immigration laws : He had avoided the implementation of decisions that implied a duty for him to leave the country , had resided illegally in GPE for DATE , and had worked illegally in GPE after the revocation of his work permit on DATE . The ORG observed that this was not a disproportionate measure . He had had no legitimate expectation of being able to stay in GPE when he married PERSON on DATE and no or little weight could be attached to the fact that he had a brother living in GPE . The ORG considered that this decision was consistent with LAW .

By a further decision of DATE , the ORG limited the duration of the prohibition on re - entry to DATE . In this connection it reiterated that no document had been submitted to the effect that the couple had concluded a valid marriage ( under NORP law ) . Neither their marriage nor their parenthood had been registered in the population register .

In the meantime , on DATE , the ORG decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to ORG , under LAW , that the applicant should not be expelled to GPE until further notice .

Under LAW of CARDINAL DATE No . CARDINAL ( tvisteloven ) , a decision by ORG could form the subject of an appeal to the competent city court or district court ( tingrett ) ( ORG CARDINAL , CARDINAL - CARDINAL , CARDINAL - CARDINAL ) , from there to ORG ( lagmannsrett ) ( ORG CARDINAL - CARDINAL and CARDINAL - CARDINAL ) and ultimately to ORG ( Article CARDINAL - CARDINAL ) . The domestic courts had full jurisdiction to review the lawfulness of the ORG ’s decision and were empowered to quash the decision should they find that it was unlawful . Pursuant to section CARDINAL of LAW DATE , the provisions of the LAW were to be applied in accordance with GPE ’s international legal obligations intended to strengthen the legal position of a foreign national . In the event of conflict between the national legal provision and GPE ’s obligations under the Convention , the latter was to take precedence ( sections QUANTITY and CARDINAL of LAW of DATE No . CARDINAL ) .

Under Chapters CARDINAL and CARDINAL of the Code of Civil Procedure , a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order .

Further conditions regarding judicial review of ORG decision were set out inter alia in the following provisions and guidelines .

At the material time , the fee for filing a lawsuit before a city court or a district court was CARDINAL NORP Krone ( ORG ) , corresponding to MONEY ( ORG ) , if the hearing lasted for DATE and ORG CARDINAL ( EUR CARDINAL ) if the hearing lasted for DATE .

Pursuant to section CARDINAL of LAW of DATE No . CARDINAL ( rettsgebyrloven ) , fees should be paid in advance . In the event that a sufficient amount had not been paid when a request for a judicial order had been made , the court was to fix a brief time - limit for payment . Should that payment not be effected within the time - limit fixed , the court shall dismiss the case , unless the provisions in section CARDINAL apply . The latter provided :

“ If a party has applied for free legal aid or for exemption from the payment of court fees under LAW of DATE No . CARDINAL [ rettshjelploven ] , a respite should be granted until the application has been decided . In this event no security can be required for the payment of the fee .

If a party who has requested a procedural step [ rettergangsskritt ] has obtained respite in accordance with the foregoing , the court shall grant the measure . In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken . If the measure requires payments , an advance payment may be made by the public authorities .

If a measure has been taken with a respite , the court shall fix a time - limit for payment . Until payment has been made or the time - limit has expired , the court shall only take such measures as it deems necessary . If payment is not made within the time - limit , the court gives a ruling in absentia according to ORG DATE and CARDINAL of LAW . ”

An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter ( section CARDINAL of ORG ) . A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section CARDINAL ( CARDINAL ) or ( CARDINAL ) had been fulfilled ( see below ) .

According to LAW be represented by counsel ( LAW ) , but was not obliged to be so represented , save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel ( LAW ) .

Section CARDINAL ( CARDINAL ) to ( CARDINAL ) of ORG DATE included the following provisions of relevance to the present case :

“ ( CARDINAL ) GPE legal representation shall be granted without means testing in ... the following instances :

NORP to a foreign national in such instances as mentioned in section CARDINAL ( CARDINAL ) , second sentence , and ( CARDINAL ) of LAW [ DATE ] ....

( CARDINAL ) In such cases as mentioned in CARDINAL ) nos . CARDINAL - CARDINAL [ not applicable in the instant case ] , an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by ORG .

( CARDINAL ) NORP In other cases , free legal representation may be granted exceptionally , provided that the financial conditions pursuant to the second sub - section are fulfilled and that the case affects the claimant especially from an objective point of view . In the assessment , weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub - sections .

( CARDINAL ) In such cases as mentioned in the second and third sub - sections , free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub - section , provided that the expenses for legal assistance will be substantial compared to the claimant ’s financial situation .

( CARDINAL ) GPE legal representation shall not be granted pursuant to the second through fourth sub - sections where it would be unreasonable that such assistance be paid out of public funds . ”

In Circular G-CARDINAL/CARDINAL ORG and ORG stated at paragraph CARDINAL :

“ In immigration cases not covered by LAW ( CARDINAL ) nr CARDINAL , the practice should be very restrictive . The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case . Legal aid to take the case before court should only be granted in exceptional cases , i.e. if there are very specific reasons , for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts . ”

Section CARDINAL ( CARDINAL ) of ORG Act DATE ( domstolloven ) provided :

“ In the event that a person , who does not know NORP , is to take part in the proceedings , an interpreter appointed and approved by the court shall be used . Recordings are to be made in NORP . If required by the importance of the case , the court may decide that recording shall take place in a foreign language , either in the court records or in separate annexes , to be submitted for approval . ”

The Government referred in particular to the following provisions of LAW :

“ ( CARDINAL ) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift , cost effective and sound manner . ”

“ ( CARDINAL ) NORP ....

( CARDINAL ) The parties have the primary responsibility for presenting evidence . The court can take care of the presentation of evidence if the parties do not object . The court is not bound by the parties’ arguments with regard to questions of evidence . ”

“ The court shall on its own motion apply current law within the scope of section CARDINAL(CARDINAL ) . In accordance with section CARDINAL - CARDINAL , the court shall ensure that there is a satisfactory basis upon which to apply the law . If the application of law can not otherwise be clarified in a fully satisfactory manner , the court may decide that evidence of the law shall be presented , or it may allow the parties to present such evidence . The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out . Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties . ”

“ ( CARDINAL ) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case . The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified . ...

( CARDINAL ) The court shall , in accordance with subsections ( CARDINAL ) to ( CARDINAL ) , give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules .

( CARDINAL ) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified .

( CARDINAL ) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case .

( CARDINAL ) The court may encourage a party to offer evidence .

( CARDINAL ) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel .

( CARDINAL ) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality . The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take . ”

“ ( CARDINAL ) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner .

( CARDINAL ) ....

( CARDINAL ) In each case , a preparatory judge shall be responsible for the conduct of the proceedings .


Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant , PERSON Mavrinac , is a NORP national who was born in DATE and lives in PERSON . She was represented before the ORG by Mr M. Šegota , an advocate 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 .

In DATE the applicant , whilst a passenger in a coach owned by company A. , sustained injuries in a road traffic accident .

In DATE she instituted civil proceedings against the company in question before ORG ( PERSON ORG ) . On CARDINAL DATE that court delivered a judgment in favour of the applicant and awarded her compensation .

On DATE the applicant ’s doctor made a request for an assessment of her work capacity to ORG .

On DATE ORG of ORG carried out an expert medical evaluation and found that the applicant ’s work capacity was reduced . It stated depression as the main disorder significantly affecting the applicant ’s capacity to work and noted several physical ailments as other disorders affecting that capacity . On DATE ORG carried out an expert medical evaluation with a view to assessing whether , owing to her physical ailments , the applicant could be considered as having a physical impairment ( tjelesno oštećenje ) within the meaning of the relevant legislation entitling her to certain benefits on that account . It found that no such impairment existed .

On DATE ORG of ORG issued a decision acknowledging the applicant ’s reduced work capacity and granting her the rights related thereto , such as the right to employment corresponding to her remaining work capacity and the right to compensation for the loss of salary resulting from a reduced capacity to work .

On DATE ORG of ORG , of its own motion , carried out an expert medical evaluation of the applicant ’s state of health and found that the applicant ’s health had deteriorated to the extent that she had lost her capacity to work completely and permanently and thus could be considered disabled for the purposes of awarding her a disability pension . It stated depression as the main disorder causing the applicant ’s disability and noted several physical ailments as other disorders contributing to that disability .

On DATE ORG of ORG issued a decision granting the applicant a disability pension on the basis of her incapacity to work .

On DATE the applicant brought a civil action in ORG against company A. , seeking compensation for lost earnings on account of her incapacity to work that had resulted from the injuries she had sustained in the road traffic accident in DATE .

ORG heard evidence from a medical expert , who established that PERCENT of the applicant ’s disability had been caused by the injuries sustained in the road traffic accident in DATE and PERCENT by her previous health problems .

On DATE ORG delivered a judgment whereby it awarded the applicant CARDINAL,CARDINAL.CARDINAL NORP kunas ( HRK ) in compensation for lost earnings , together with statutory default interest running from the date of the adoption of the judgment .

On DATE ORG ( Županijski sud u ORG ) dismissed an appeal by the defendant and upheld the first - instance judgment .

However , following an appeal on points of law ( revizija ) by the defendant , on CARDINAL DATE ORG ( PERSON ) reversed the lower courts’ judgments and dismissed the applicant ’s claim , on the grounds that the civil courts had had no jurisdiction to question the findings of the competent administrative authority as to the reasons for the applicant ’s incapacity to work . The relevant part of the judgment reads as follows :

“ In the [ ... ] proceedings it was established that the plaintiff was injured in a road traffic accident on DATE while travelling in the defendant ’s coach . On that occasion she sustained blows to her head , torso , left knee , left hip and neck . In the proceedings for damages conducted before the same court ... the plaintiff obtained damages by a judgment of DATE . In those proceedings it was established , by taking evidence from a medical expert , that owing to the whiplash injury the plaintiff ’s capabilities were reduced by PERCENT [ but ] that an even greater reduction in her capabilities existed due to previously existing neural disorders and degenerative processes in the plaintiff ’s spine and joints , for which she had been treated in DATE .

After the traffic accident , the plaintiff continued to work at her job until DATE when her employment was terminated as redundant . From then until her retirement she had been registered as unemployed at ORG .

It was also established that by a decision of ORG of DATE , the plaintiff had been granted a disability pension as of DATE on the basis of a loss of capacity to work due to an illness .

Despite the finality of the definitive decision of ORG , the [ first - instance ] court decided to take evidence by obtaining an opinion from a medical expert with a view to establishing that the immediate cause of the plaintiff ’s retirement was the consequence of the whiplash injury sustained in the road traffic accident in DATE , and not the disorders that manifested before the tortious event , as established by ORG in the proceedings for awarding the right to a disability pension .

The defendant is right in arguing that the lower courts’ judgments are based on a misapplication of substantive law . Where ORG of ORG has established that [ a ] plaintiff has lost capacity to work owing to an illness and where a final decision of a competent authority is based on that finding , it is not legally possible that the loss of capacity to work was caused by some other reason .

A court is bound by this final decision as regards the reasons for the incidence of the loss of the plaintiff ’s capacity to work owing to an illness , and the content of that decision can no longer be decided as a preliminary issue . A court can not examine whether the final decision rendered in the administrative proceedings was correct or assess its validity .

Since there is no legal basis for the defendant ’s liability in damages for the lost earnings , the defendant ’s appeal on points of law has to be allowed and ... the plaintiff ’s claim dismissed ... ”

On DATE the applicant lodged a constitutional complaint against ORG judgment . She alleged a violation of her constitutional right to work guaranteed by LAW paragraph CARDINAL of the LAW . In her constitutional complaint the applicant wrote , inter alia :

“ The purpose and scope of ORG decision [ of DATE ] is that it represents the basis for payment of the complainant ’s pension . ORG does not have a duty or a right to decide on the causes of one ’s difficulties , but [ rather ] only whether there was an incidence of disability , or alteration or reduction of the capacity to work . Therefore , it can not be expected that ORG be accurate or meticulous when determining other circumstances . Given that ORG wrongly assessed or interpreted that decision , the constitutionally guaranteed right has been breached . ”

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s constitutional complaint and served its decision on her representative on DATE . The relevant part of that decision reads as follows :

“ Having examined the arguments raised in the constitutional complaint , the contested judgment and the relevant statutory provisions , the Constitutional Court finds that the constitutional right relied on by the complainant was not breached by the contested judgment . ...

The right to work and the freedom of work also entail the right of an individual that his or her employment is not terminated in a manner contrary to that prescribed by the relevant law . The content of this right is also to protect statutorily established rights of citizens arising from their work , including the protection in respect of termination of employment if that termination is contrary to the law .

The Constitutional Court therefore finds that the complainant ’s constitutional right guaranteed by LAW paragraph CARDINAL of the LAW ( Everyone shall have the right to work and enjoy the freedom of work ) has not been breached by the contested judgment , which was rendered in accordance with the relevant legislation . ”

The relevant provisions of LAW ORG , ORG nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows :

“ All shall be equal before the law . ”

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ Everyone shall be guaranteed respect for , and the legal protection of , his personal and family life , dignity , reputation and honour . ”

“ The right of ownership shall be guaranteed .

Ownership implies duties . Owners and users of property shall contribute to the general welfare . ”

“ Ownership may be restricted or taken in accordance with the law and in the interests of GPE subject to payment of compensation equal to the market value .

The exercise ... of the right of ownership may , on an exceptional basis , be restricted by law for the protection of the interests and security of GPE , nature , the environment or public health . ”

“ Everyone shall have the right to work and enjoy the freedom of work . ”

In its decisions nos . U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL/CARDINAL ) and U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL ) ORG held that all rights guaranteed in the LAW and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of LAW .

The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of DATE – “ the LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a state authority , local or regional government , or a legal person invested with public authority , on his or her rights or obligations , or as regards a suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or the right to local or regional government , guaranteed by LAW ( “ constitutional right ” ) ...

If another legal remedy is available in respect of the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .

In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] is available , remedies shall be considered exhausted only after the decision on these legal remedies has been given . ”

“ A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [ together ] with an indication of the relevant provision of the LAW guaranteeing that right ... ”

“ ... [ t]he ORG shall examine only the violations of constitutional rights alleged in the constitutional complaint . ”

Section CARDINAL(CARDINAL ) of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) provides that when a court decision depends on the prior resolution of an issue whether a certain right or legal relationship exists , and this issue has not yet been resolved by a court or another competent authority ( a “ preliminary issue ” ) , the court may decide on that issue itself unless special legislation provides otherwise . From that provision it follows , by converse implication , that the court is not entitled to decide on a preliminary issue if that issue has already been finally decided on as a main issue in another set of proceedings .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in DATE and lives in GPE .

On DATE the applicant was issued with an occupancy voucher ( yaşayış orderi ) for a flat in a recently constructed residential building in GPE on the basis of ORG order of DATE .

At the same time , the applicant became aware that the flat was occupied by J. and his family , who were internally displaced persons ( “ ORG ” ) from PERSON , a region under occupation of NORP military forces following the NORP - GPE conflict over GPE - Karabakh .

On an unspecified date in DATE , the applicant lodged a lawsuit with ORG asking the court to order the eviction of J. and his family from the flat .

On DATE the ORG granted the applicant ’s request . The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of DATE and , therefore , the flat was unlawfully occupied by J. and his family . No appeals were filed against this judgment and , pursuant to the domestic law in force at the material time , it became enforceable within DATE after its delivery .

According to the applicant , PERSON and his family refused to comply with the judgment and the competent authorities did not take any measures to enforce it for DATE .

According to the ORG ’s letter of CARDINAL DATE , the judgment in the applicant ’s favour was enforced in DATE .

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